*1 stage embryo what or fetus is ensouled or acquires questions These are entirely irrelevant to crim- ‘personhood.’ statute.”) inal liability under the added). (emphasis that, I Accordingly, view, stress in my our today decision upholding legislation question not, cannot, should be interpreted define, as an attempt any way to generally, a fetus as a life-in-being as endorsing the notion that interruption of reproductive process is the killing hu- man life. Roe its progeny remain the in this law nation and any attempt, based upon legislature’s choice of lan- guage Act, in the to undermine its imperative constitutional unavailing
913A.2d 220 Pennsylvania, Appellee, COMMONWEALTH of CARSON, Appellant. Samuel Supreme Court of Pennsylvania. 5,May
Submitted 2004.
Decided Dec. 2006.
Reargument Denied Feb. *18 Abreu, Esq., Victor J. Philadel- Angelí, Esq., Samuel J.B. phia, for Samuel Carson. Burns, Jr., Philadelphia
Amy Esq., Hugh Esq., J. Zapp, Fetterman, Office, for Esq., E. Attorney’s District Jason of Pennsylvania. NEWMAN, CAPPY, C.J., CASTILLE, and BEFORE: SAYLOR, EAKIN, BALDWIN, BAER JJ.
OPINION Justice CASTILLE. capital appeal
This collateral matter before this Court on for relief appellant’s petition from the trial court’s dismissal of (“PCRA”), Act 42 Pa.C.S. under Post Conviction Relief 9541, reasons, § appel- et For the we remand seq. following miti- layered concerning lant’s claim of counsel ineffectiveness hearing. for an gation evidentiary evidence to the court PCRA affirm order respects, In all other we below. 18, 1999, appellant’s this Court affirmed
On November
first-degree
appeal
sentence on direct
for
judgment of
(Car-
see Commonwealth v. Carson
Lloyd,
murder of William
I),
son
460,
(1999),1
559 Pa.
A.2d 686
and the
United
denied
for a
Supreme
appellant’s petition
States
Court
writ
5,
certiorari on June
2000.2 Carson v.
Pennsylvania,
U.S.
1216,
(2000).
2220,
S.Ct.
On June
the trial court granted
petition
stay
a
for
appellant’s
execution filed on
behalf by
Bradley,
Yvonne
Esq.,
the Defender Association of Philadelphia. The trial
court appointed Attorney Bradley
appellant’s
counsel and
ordered that an amended
petition
PCRA
be filed no later than
21,
September
2000. Subsequently, counsel obtained several
extensions from the trial court and
filed an
timely
amended
petition
on September
aby
supplemental
followed
habeas corpus relief on October
petition
1, 2001,
and a
for habeas corpus relief
supplement
to the
petition
amended
on February
23, 2002,
May
On
the Commonwealth
dismiss,
filed motion to
response
filed
opposition
to the motion on July
2002.3 In an order dated
26, 2002,
December
the PCRA court
granted
Common-
wealth’s motion and dismissed appellant’s
an
petition without
evidentiary
hearing.
court
denied
motion for
*19
6, 2003,
30,
reconsideration on January
2003,
and
June
issued its opinion addressing the claims raised
in
by appellant
procedural
1. The
history
leading
factual and
up
of this case
to the direct
appeal
opinion.
is set forth in that
necessary
Those
which
facts
are
appellant’s present
the examination of
collateral claims will be dis-
necessary.
cussed herein as
Appellant
Greene,
represented by
Esq.,
was
Daniel H.
at trial and
2.
McMahon,
Jack
Esq.,
appeal.
on direct
states in a footnote that the PCRA court never
a
filed letter
3.
announcing
petition,
its intent
pursuant
to dismiss his
to Pa.R.Crim.P.
909(B)(2). Appellant’s
previously
Brief at 4 n. 1. This Court has
noted
909(B)(2)
importance
of a PCRA court’s adherence to Rule
and has
remanded
where
cases
a PCRA court's failure to follow the Rule has
impeded
See,
petitioner's ability
meaningful
e.g.,
obtain
review.
Hawkins,
104,
(2005)
Commonwealth v.
curiam);
(per
583 Pa.
524
v.
Commonwealth
supplemental petitions.
and
his amended
(Pa. C.C.P., Phila-
Carson,
Nos. 1841-1848
Nos. 2887-2840 &
ct.”).
2003) (hereinafter
Appellant’s
“PCRA
County
delphia
to this
follows.
timely appeal
Court
eight
claims:
twenty-two
total of
all,
raises a
In
trial;
arising from
of his
twelve
guilt phase
from the
arising
and one
seeking
discovery;
PCRA
one
penalty phase;
of the errors
effect
cumulative
summarily alleging
claims warrants
twenty-one
in
of his other
each
asserted
phase
twenty guilt
penalty
and
All but
relief.
two
assis-
of
ineffective
layered allegation
in a
claims sound
organization,
of
we will
purposes
of counsel.4 For
tance
first, then turn to his
claims
guilt phase
address
claims, otherwise
then his other
claims and
sentencing phase
they
in
are
claims in the order
which
addressing appellant’s
disorganized
in his
brief.
prolix
presented
in
noting our decision Commonwealth
begin by
We
(2003),
McGill,
this Court
McGill,
v.
at 1023
(citing
832 A.2d
(2001)).5
claim of
pleaded
A properly
A.2d 203
Pa.
appeal,
represented by
on direct
appellant was
new counsel
Because
decision, appellant's
prior
review
to our
and this case was on collateral
layered
only cognizable claims. Commonwealth
claims are
current
Grant,
(2002).
A.2d
739 n. 16
572 Pa.
explaining
case in
its
to the
Pierce
5. The McGill Court cited
course,
McGill,
case in our
holding,
at 1020. Of
seminal
A.2d
name.
jurisprudence
is an earlier case with the same
ineffectiveness
*20
153,
(1987)
Pierce,
(adopting
v.
Pa.
525
(1)
posits
underlying
under Pierce
ineffectiveness
that:
(2)
merit;
an
legal
arguable
issue has
counsel’s actions lacked
(3)
basis;
objective reasonable
prejudice
actual
befell
petitioner from counsel’s act
v.
omission. Commonwealth
Pierce,
153,
973,
(1987). Therefore,
515 Pa.
A.2d
in
527
975
appellate
cases where
be
alleged to
counsel
ineffective
failing
ineffectiveness,
to
a claim of
raise
trial counsel’s
McGill
instructs
inability
petitioner
prove
prong
to
each
of the Pierce
in
to
respect
purported
test
trial counsel’s
alone
fatal
ineffectiveness
will be
to his layered ineffectiveness
McGill,
1023;
832
claim.
A.2d at
see
v.
also Commonwealth
Edmiston,
284,
883,
(2004);
Pa.
578
851 A.2d
891
Common-
Rush,
(2003).
3,
651,
wealth v.
Proving
Pa.
838 A.2d
ineffective, however,
trial counsel was
argua-
will establish the
ble
in
merit
of Pierce
prong
respect
appellate
counsel.
Rush,
As
to the
pleading
adopted
rule
McGill,
in
it is
that a
necessary
PCRA
have
petitioner
ability to
in
petition
amend
order to
plead,
properly
attempt
layered
claims
prove,
where dismissal of the peti
tion is imminent on
grounds
ade
such claims were not
McGill,
Indeed,
quately pled.
526 Harris, claim.” underlying relation to Rush, (2004) 1168, (quoting 838 578 Pa. 852 A.2d 657-58). A.2d at addressing appellant’s before individual
Additionally, claims, on previously litigated it is note law pertinent PCRA, from statutorily which are barred claims under we 9543(a)(3). § If the highest Pa.C.S. reviewing according has a claim right court in had review petitioner which claim, previ the claim has been the merits that evaluated 9543(a)(2). must, § This Court ously litigated. 42 Pa.C.S. however, substantively analyze an ineffectiveness consider and for PCRA review. Com legal claim as a “distinct ground” Collins, (2005). monwealth v. Pa. 888 A.2d Collins that an ineffectiveness recognized This Court while claim underlying for the reasons that may claim fail same review, basis for faltered on direct the Sixth Amendment for creates a technically separate claims issue ineffectiveness PCRA. Id. We also pre acknowledged review under an Collins may decisions PCRA courts have dismissed touching as previously litigated claim without ineffectiveness of the claim. Howev proper on Sixth Amendment merits er, in need to remand those claims that were only we resolved duty this exercised its of further clarification before Court Id. case, court, In the PCRA which review. 574. decided, Collins passed upon disposed issues before on previous litigation a number of ineffectiveness claims and, thus, no ineffectiveness grounds, we have substantive circumstance, however, This analysis to does review. are the claims require remand because we satisfied plainly fail.
I. PHASE GUILT CLAIMS Peremptory A. Denial of Defense Strike6 first counsel ineffective Appellant appellate claims that his the trial court forwarding appeal claim direct appellant’s right peremptory to exercise a improperly violated Appellant’s claim I. voir dire. challenge during that the trial argues juror over improperly Dorothy Spicer court seated as a his challenge despite that he explanation his race-neutral believed ruling, appellant looked The trial untrustworthy. she court’s process rights rights violated his due under argues, Sixth, Eighth, and Fourteenth Amendments U.S. the Pennsylva and Article Sections 9 and 13 of Constitution respect alleged nia Constitution. counsel’s appellate With performance, appellate deficient contends coun (1) failing there was no argue sel was ineffective that: (2) established; prima case of trial coun discrimination facie *22 juror, accepted Yoder, sel had a Scott whom the Com white Elem, (3) Purkett v. 765, rejected; had 514 monwealth U.S. (1995) 1769, curiam), supported 115 131 834 (per S.Ct. L.Ed.2d (4) claim; subject and court’s ruling his the trial is not to Vasquez Hillery v. error under analysis harmless 474 U.S. (1986). 254, 106 598 S.Ct. 88 L.Ed.2d claim responds The Commonwealth that was appellant’s previously litigated appellant’s seating since to Dor- challenge Spicer on the othy jury by was decided this Court direct The agreed PCRA appeal. court with the Commonwealth and, accordingly, analyze did not the of merits appellate ineffectiveness claim. direct appeal, appellant
On this Court characterized as juror that should not arguing Spicer have been seated be- cause:
(1) the trial court in sua sponte raising erred the issue of of discriminatory peremptory challenges by use defense; (2) at the the issue time there had been raised establishing prima pattern prejudice no discrimina- facie and tion warranting explanation peremptories; the use of (3) placing juror and on the panel appropri- was not remedy. ate I,
Carson 741 A.2d at noting 693. While that case law supported contrary Commonwealth’s trial position are duty-bound respond courts racial prevent dis- crimination, we stated that: ultimately claim, into step
In decline to addressing appellant’s we jurisprudence” created “peremptory challenge morass of For if were to Supreme the United Court. even we States contention that the trial court erred in accept Appellant’s sponte, the issue sua agree must raising we nevertheless preju- no with the suffered dice.
Id. regard, In this observed that had we juror incompetent biased or Spicer failed show impartial and that a defendant’s to an juror right serve to a does not entitle him of his choice. jury peers jury Louisiana, (citing Taylor Id. U.S. S.Ct. (1975)). L.Ed.2d 690 claim on appellant’s underlying resolution of foregoing i.e., claim, of his appeal requires rejection
direct
current
because we
determined that
suffered no
previously
juror
trial
prejudice by
seating
Spicer, appellant
court’s
argue
that a
hard-pressed
performance by
deficient
now
appeal
precluded
reaching
counsel
from
an
direct
Court
argues
opposite
Although appellant
result.
inappropriately
Vasquez prohibits employing
analysis
harmless-error
claims,
portion
discrimination
this discrete
U.S.
Supreme
opinion
only
Court’s
three votes
con-
garnered
nothing. Vasquez,
trols
617. More
U.S.
106 S.Ct.
*23
importantly, Vasquez
as it
is a case where
inapposite,
members
race
from a
of the defendant’s own
were excluded
Here,
Id. there are no
grand jury.
B. Prosecutorial Misconduct8 Appellant appeal next claims that his direct counsel was failing ineffective for to raise trial his counsel’s tolerance prejudicial the prosecutor’s repeated conduct which violated Amendment, process, his federal due Sixth and Fourteenth Amendment as state rights, rights well his constitutional Pennsylvania under Article Sections and 18 of the Consti- Appellant argues prosecutor impermissibly: tution. that the (1) presented impact testimony argu- victim and made related (2) concerning ments testimony jury; that offered (3) conjecture opinion; during and testi- commented witness (4) mony; impeachment concerning withheld evidence Brady Commonwealth v. Maryland, witnesses violation (1963). 83 S.Ct. U.S. L.Ed.2d asserts that trial objected his counsel have for should asked and, thereafter, a mistrial appellate counsel ineffective for was trial failing raise counsel’s omissions appeal. on direct Moreover, appellant contends appellate that counsel inef- arguing fective not trial to investigate counsel’s failure impeachment facts about the Commonwealth’s witnesses.
The Commonwealth any denies that of appellant’s claims merit, have arguing they nothing that are more than waived the guise claims recast in of boilerplate ineffectiveness claims. (1) argues that: the victim’s mother was properly called to testify that the victim a life-in-being; (2) prosecutor did not insert personal opinions trial Indeed, gives juror Spicer the record no indication would be discussing juror Spicer’s responses unfair. When jury question- her naire, gave response signaled trial court noted that she no she appellant's be dispute would biased counsel trial did noting juror assessment. N.T. at 33. It is also worth 7/5/1995 Spicer appellant's was excused from the while courtroom counsel her, 27, and, therefore, objection articulated his id. at specific objections to develop her could caused not have her bias against him. *24 Appellant's claim III.
530 (3) evidence; not and the did prosecutor
or extra-record argue any to Brady regard violate with witness. not conduct did prosecutor’s court found that
The PCRA trial, fair fair remarks were of a since his deprive appellant of record. argument on evidence proper comment and Moreover, jury trial court’s PCRA court reasoned to any guard against prejudice instructions sufficient to were claims, Brady to associated appellant. As of proposed impeachment found that the Com- court below Wylie Edgar would Monique Clarke monwealth witnesses and that the the outcome of the case Com- have altered related impeachment of evidence monwealth was unaware its Ramon Burton. witness for alleged prosecutorial
In order to obtain relief
“misconduct,” a
must first demonstrate
petitioner
constitutionally
statutorily
action
some
prosecutor’s
violated
79,
See, e.g.,
Kentucky,
Batson v.
476 U.S.
protected right.
(1986)
89,
1712, 1719,
(using peremp
Appellant’s mother, he which from the victim’s testimony entation impact and victim inflammatory prohibited both argues was asserts further phase. Appellant during guilt evidence alleged inappropriate exacerbated the prosecutor and guilt phase closing argument his testimony during objectivity. jurors’ thereby destroyed claim to be frivolous deems The Commonwealth Miller, 746 A.2d 560 Pa. under Commonwealth that the (2000), mother testified properly because the victim’s identified conclusively and that she life-in-being a victim was remarks, the Common- closing prosecutor’s him. As to the about nothing improper that there is explains simply wealth verdict, just to reach a duty to fulfill its asking v. Ragan, (citing Brief at Commonwealth’s (1994)). 645 A.2d 538 Pa. Code, impact victim evidence Sentencing
As defined
our
impact
and the
vic-
concerning
is information
victim
42 Pa.C.S.
family
on the
of the victim.
tim’s death has had
9711(a)(2).
no error in a
in Miller that there was
§
heldWe
during
guilt phase
testifying
murder
mother
victim’s
identified the
and that she had
life-in-being
her child was
Additionally,
child.
The entire examination Collier, questions answers: consisted five Ma'am, Lloyd? know William you
PROSECUTOR: Did Yes. MS. COLLIER: he?
PROSECUTOR: Who was My
MS. COLLIER: son. 22nd, 1993, PROSECUTOR: Before November was Mr. Lloyd alive well?
MS. COLLIER: Yes.
PROSECUTOR: When was the next time that you had your seen son?
MS. COLLIER: He was dead. you identify
PROSECUTOR: Did body the office of the medical examiner?
MS. COLLIER: Yes. N.T. at 84-85. Ms. Collier’s prosecu- answers 7/11/1995 questions tor’s more than were never three words and were far from highly emotional testimony that charac- *26 terizes his brief. Nor they did involve victim impact. Since Miller establishes of appropriateness prosecutor’s questions and Ms. Collier clearly nothing unfairly said to stoke passions jury, of the appellant’s claim that the prosecutor objectionable fails, committed “misconduct” and his attendant layered claim ineffectiveness is without merit.
Likewise, there was no misconduct in the prosecutor’s closing remarks which obliged appellant’s prior counsel to object. Appellant objects to the prosecutor’s statement that:
I am not going to take more of up any your time. You have people seen these here you saw the mother victim’s take the I hope you stand. can send her home a sense with justice of justice and that has been done. She has to go back to that neighborhood, too. I am urging you to use your common sense because think you when about every thing, why he did he what did. Do not let him out of this one. (p.m.)
N.T.
at 49.
allegedly
This
impermissible
7/12/1995
statement contains no mention of how the victim’s mother’s
death,
life has been
by
altered
her son’s
but rather merely
jury
asks the
give
just
victim’s mother a
verdict
declaring appellant
The
guilty.
prosecutor’s statement did not
amount
to impermissible
impact argument.
victim
Nor is
there
in the
anything
argument
that could be said to so
destroy the
objectivity
jury
obliged
counsel were
object.
prosecutor
Because this
claim
miscon-
individual
first,
merit
duct has no more
than the
cannot
McGill,
primary layered
establish his
claim.
ineffectiveness
2. Closing Argument In his advancing prosecutor second list of claims of misconduct, appellant labels several the prose statements that cutor made during closing his arguments prejudicial. First, statement that: “I appellant quotes prosecutor’s I speak why have the evidence to for me that is am going to take N.T. long,” (p.m.) as an improper 7/12/1995 expression personal prosecutor’s opinion belief as to appellant’s guilt.
The responds proper it was for the and, prosecutor ask the consider evidence addition, it response fair to defense counsel’s suggestion attorneys may say district anything get guilty verdict.
Appellant’s underlying argument is meritless because the prosecutor merely upon stated that case relies simply placed evidence the jury. before did not prosecutor say that he personally guilty, believed but rather Marshall, that the evidence showed See guilt.
A.2d at 1110 (prosecutor’s arguments based on the evidence *27 are If proper). arguments such were improper, Common- hard-pressed wealth be to any argument would make in to response the defense.
Next, appellant claims the prosecutor improperly during “vouched himself’ closing arguments and violated appellant’s “constitutional to right cross-examine his own statements,” Brief at Appellant’s prosecutor when “Well, stated: if I of type you were a would guy, probably see ten eyewitnesses up having about there all in paid been full.” (p.m.) N.T. at 30. The replies 7/12/1995 that remark was a to prosecutor’s response fair defense counsel’s accusation that prosecutor would “do anything in a in to a verdict engineer guilty order say anything prosecu- that the agree
case.” N.T. 5. We (p.m.) 7/12/1995 large- to counsel’s response a fair defense tor’s statement was prosecutor ly implication and baseless improper indeed, criminally, in order to win unethically, or would behave cases. impermissi the prosecutor also claims that
Appellant authority’,” Appellant’s in ‘cloak of state bly “wrapped himself said, People he “.... are scared death. Brief at when scared to death They are That’s [r]ule [n]umber [o]ne. contends (p.m.) at 32. City.” N.T. th[is] 7/12/1995 to sentence prosecutor’s compelled that the comment appellant to death. Commonwealth, however, re- prosecutor’s portrays
The correctly testimony mark a of proper synopsis as witness *28 Amendments, rights under Sixth and Fourteenth in the following exchange: man, I telling you
PROSECUTOR: am that this right now Carson, in Samuel was not the house the second time. I never maintained that. Objection.
DEFENSE personal opinion COUNSEL: of the prosecutor case, has nothing do with this Your Honor. just
PROSECUTOR: I said he was not in the house.
THE COURT: Stick to the record.
PROSECUTOR: He wasn’t in I the house. never main- maintain, however, tained that. I will gentlemen, ladies and that he A right outside. lookout because these men came back in the house. (p.m.)
N.T. at 42. 7/12/1995 The Commonwealth maintains that the prosecutor’s state- ment was a fair response defense counsel’s accusation that prosecutor given had the jury incorrect information. Moreover, the Commonwealth notes that supports the record theory its of the preceded events that the murder.
The prosecution’s that, theory case prior murder, appellant came with two other to men rob a drug house in South Philadelphia and acted as lookout outside of the home during robbery. ofOne the men in the home at the time of the Clarke, robbery, Edgar men, testified two other than appellant, entered the house and committed the robbery. N.T. at 81-85. Outside of the home a short 7/7/1995 later, time Ramon Burton testified to in engaging a shootout with appellant and two other men. N.T. at 63-67. 7/10/1995 Mr. Burton’s and Mr. Clarke’s testimony provided record support for the prosecution’s argument that appellant was Furthermore, lookout. the prosecutor’s closing remarks were a fair response to the defense closing argument, counsel’s which he claimed that the prosecutor’s theory was “mistaken or disingenuous”:
What did prosecutor] [the say He opening? said at one I point wrote it down—the three came back and —and *29 Now, not know that that’s true.
robbed Clark we [sic]. disingenuous. or he I being Either he made a mistake was him, in I’m to sit over judgment don’t And not here know. that saying you, you wrong but I am to he gave what information, from because we heard Clark [sic]. (a.m.) the prosecutor’s closing at 72. Because N.T. 7/12/1995 specific both to this of defense response portion was a fair on the closing argument counsel’s and was based evidence trial, that appellant’s obliged at claim counsel was to presented object has no merit. claim, prose next he that the appellant’s
In contends witness, Beverly, for cutor vouched his Ms. when improperly he said: you having
If to set man free for shot at going are' a times, brain, just put someone seven one bullet in his and you that I to a please, presented remember witness who had no to in here and to absolutely you. motive come lie at The (p.m.) argues N.T. Commonwealth 7/12/1995 prosecutor’s response remark to defense counsel’s was he closing, during repeatedly Beverly’s Ms. which attacked credibility. The is correct. his argument,
In defense counsel a considera- closing spent Ms. attacking Beverly’s explanation ble amount of time for waiting speak so to come and to the long police. forward Id. 11-18. to Appellant personally sought Beverly’s attack Ms. stand, testimony he took the her of accusing witness when him for having drugs giving police sex and state- with 141-43; in exchange E.g., ment N.T. drugs. 7/11/1995 Clearly, 160-61. based on direct attacks Ms. appellant’s Beverly, reply it fair for the to prosecutor argue was no not obliged his witness had motive to lie. Counsel to object. claim appellant’s
Sixth on list is a that it inflam about matory prosecutor speak family for the to his own and supposedly provide about alibi wit opinion nesses. The stated: prosecutor Naturally, had alibi witnesses who came here. You two going give are to the I am them they related defendant. I I am they very am sure care much about him. this. witnesses, I taking anything away from them. two am sure, I am him as they they love this man. sure love much my you as I love children wife as much my and love anyone your up loved ones. And if of them is locked for a crime, you I tell some- going go better believe that am night. you that this with me Aren’t body person was going do that?
N.T. at 44. asserts these (p.m.) 7/12/1995 him, prejudicial comments introduced extra-record evidence including prosecutor’s information about family *30 appellant jail fact that was in during trial. argues
The that it entirely Commonwealth was proper jury ask the to infer from the evidence that appellant’s alibi prosecutor’s witnesses had a motive to lie. As to the com- ments about his the family, own Commonwealth argues that the prosecutor was a drawing credibility analogy in order to jury focus the on reasonable from inferences that flowed the evidence. assertions,
Contrary appellant’s prosecutor the did not give opinion an about the of truthfulness alibi appellant’s witnesses nor he state appellant currently jail. did was The prosecutor’s comments were simply hypothetical exam- ple to something nature, illustrate about human to ask the jury to think about what actions a person might take to exonerate an accused one for and, loved arrested a crime accordingly, appellant’s what motivations alibi may witnesses testifying have had when not him. It misconduct was pose analogy, such an much less an that obliged event counsel to object. addition,
In even supposing prosecutor’s the com ments were improper, appellant’s testimony own about the events that did evening more to undermine the credibility of his alibi. claimed he chased home murder, the gun-wielding man on night but he said that heard minutes later to gunshots he connect the he a few did he his He further claimed that never told individual. chasing gun; father about the man him with the girlfriend the day he did the of exactly that he remembered what murder, the time he was about questioned when first later; he month and a half and that never activities was a witnesses, girlfriend to his alibi his father and his talked two child, about his case. N.T. pregnant who with his murder 153, 151, In light own testimo- 7/11/1995 alibi ny, credibility, prose- which weakened his witnesses’ exploration prejudicial. cutor’s of human nature was Next, prosecutor violated argues rule” the shoes of victim “golden placed intent. The explained when he the doctrine transferred “Regardless you your whether hit prosecutor explained: person’s for that death to the same target, you are still liable if hit the If degree you target. aiming as had Juror I[am] Twelve, still Number Two and I hit Number I am liable Juror degree.” (p.m.) to the same N.T. at 47-48. 7/12/1995 odd, appellant’s argument Commonwealth dismisses be cause never how violated explains prosecutor and a “golden prosecutor permitted rule” with comment jury. applicable to make accurate statements on law accurately We that the Commonwealth charac agree. Given transferred precedent terized this Court’s doctrine of intent, Rios, 546 Pa. 684 A.2d (1996), denied, cert. U.S. S.Ct. *31 (1997); Pa. Gwaltney, L.Ed.2d 1032 see Commonwealth (1978), identify A.2d has appellant failed objectionable in the summation of anything prosecutor’s Therefore, the issue lacks merit. law.
Eighth appellant’s prosecu list is claim that the declaring appellant tor introduced extra-record evidence when crimes, punishment. had committed other but received no prosecutor The stated in his closing: I sense because you your am use common when urging did, why he did what he do you everything, think about one, him not let him out of this one. Don’t let out of this Ladies Don’t him on the give slap and Gentlemen. wrist. No, No, Don’t let him out of this one. No. First degree murder, Ladies you and Gentlemen. The evidence tells it’s degree first murder and less. nothing, nothing N.T. at 49. The (p.m.) Commonwealth reads 7/12/1995 argument prosecutor’s promotion as the of a first-degree murder verdict and notes the irony appellant’s argument, appellant admitted freely drug he was a dealer on direct examination.
Again, appellant prosecutor’s has misconstrued remarks, closing since the prosecutor never mentioned his closing that appellant had committed other crimes or had been lightly punished for past wrongdoing. The prosecutor’s focus on this “one” does not ineluctably there suggest were crimes, “other” much less crimes for he escaped punish which Moreover, ment. trial counsel not constitutionally obliged to assume some nefarious intention behind the remarks— particularly there, since counsel was and heard they how were Finally, delivered. appellant cannot from the prejudice show argument under his theory, own since appellant himself re peatedly acknowledged he sold “I am not a killer. drugs: I am drug dealing 106; at, N.T. e.g., id. [sic].” 7/11/1995 113, 114, 115, 118.&
The next claim on this list of complaints is that the prosecutor argued evidence, thereby extra-record painting criminal, as a callous by maintaining gun jammed and that he then returned to the scene of the crime to fire more shots. Conversely, the Commonwealth finds no harm in the prosecutor’s conjecture during closing because a prosecutor permitted to make reasonable infer ences from the record evidence.
Here, weapon murder prosecu- never found and the (1) argued tor that: people who commit murder do not keep (2) the fatal weapon; appellant may the gun have thrown if it away were defective. N.T. at 34.9 (p.m.) 7/12/1995 Also, Beverly’stestimony arguably provided Ms. a factual basis for the prosecutor’s gun jammed, inference that the as she testified to
540 the explanations why reasonable merely offered prosecutor found, since it point not weapon murder could be relevant obliged counsel be at trial. Trial was produced could not object. claim, asserts that In his penultimate integrity preju counsel’s disparaged defense prosecutor following argument: him diced with Mr. outraged interested to see how Greene very I also was here, he way pound- he self-righteous got up got. How desk, the most he that this was way pretended ed in the justice he had seen miscarriage of ever outrage[ous] life, along. until his next case comes What course of his to a eyewitness about? There an outaged was he so [sic] case, why in the but poke He tried to holes Okay. murder? nothing go Because he has else outraged? does he act on, and Gentlemen. Ladies efficacy denies the
Id. at 30-31. The Commonwealth counsel first considering person- claim defense In morality. by attacking prosecutor’s alized matters stat- notes that defense counsel the Commonwealth particular, attorneys may “step in that district sometimes closing ed say anything order anything out of bounds and will do in a case.” Id. at 5. engineer guilty verdict reciprocal do not condone certainly we While —or character, previously initial —assaults on counsel’s we have attorney remark an every that not unwise made recognized trial. of a new grant amounts to misconduct warrants Faulkner, 57, 28, Pa. 38- 528 595 A.2d E.g., Commonwealth denied, (1991), cert. 503 U.S. S.Ct. (1992); 450 Pa. Goosby, Commonwealth v. L.Ed.2d 397 (1973). only granted A trial should be 301 A.2d new that it to the such prejudicial the remark was where Chmiel, 889 A.2d at a true verdict. incapable rendering firing. he was N.T. making particular motions with his hands as Beverly prosecutor whether it While the asked Ms. at 137. 7/10/1995 something,” “pulling back she answered that looked like gesture the hand that she saw. That could not tell and mimicked she unfortunately, record. Id. gesture, is not further described instance, In reciprocal remarks were and per- sonal to There was lawyer. nothing particularly prejudi- each *33 cial and counsel have hard-pressed object, would been having subject broached the himself.
Taking each of the prosecutor’s together, comments appel- prosecutor lant last contends that the tainted the trial with such unfairness as to render his conviction a denial of due however, process. Appellant, is not entitled to relief on his prosecutor cumulative claims of misconduct none of his when him Commonwealth individual claims entitles to relief. Williams, (1992). 532 Pa. 615 A.2d
3. Examining Comments to Witnesses next Appellant claims that the prosecutor unaccept ably testimony bolstered the of Ms. Commonwealth witness Beverly, testifying eyewitness crime, the sole as to the as well of portraying her as a victim the killed shooting that William Lloyd. Specifically, appellant objects to the prosecutor’s during statement of cross-examination Monique witness Wylie:10 Tell why
DEFENSE COUNSEL: the members of the jury you Raymon went see Burton? [sic] MS. buy WYLIE: To narcotics from him. To buy
DEFENSE COUNSEL: narcotics from him. And how often did you buy narcotics?
THE COURT: of relevancy question? What’s Judge, DEFENSE COUNSEL: the District Attorney witness, going to call Mr. Burton aas and when he calls Mr. Burton I as witness and an opportunity have cross examine see you certainly relevancy. will I PROSECUTOR: don’t care if the guy [Ramon Burton] does narcotics. in Everybody excep- the case did with of eyewitnesses. tion record, Wylie's In the alternately spelled we find Ms. name is as: "Willie,” "Wiley,” "Wylie.” We Wylie,” refer to her as “Ms. as this signature spelling is the signed she affixed her to in a declaration that petition. with submitted his PCRA that the argues 29-30. The Commonwealth
N.T. 7/10/1995 evidence was based on the established prosecutor’s comment that he was a freely admitted in the case and he in his own defense. drug dealer when testified characterizing the state- leap logic makes a First, Beverly’s testimony. Ms. bolstering ment above as to a discus- response made in prosecutor’s statement was line the trial court because defense counsel’s by sion initiated Second, Beverly had seemed irrelevant. Ms. questioning and, did, admitted on cross- yet testify she she when in the past. been addicted to narcotics having examination to Id. at 154-56. Ms. effectively admission eviscerated Beverly’s by her testimony prosecutor any supposed validation and, result, prejudiced appellant could not have *34 any a fair In jury incapable reaching the of verdict. rendering event, failing be to counsel cannot faulted forward strained interpretation. of Ms. prosecutor painting accuses the
Appellant also Beverly shooting Lloyd. as a of the that killed William victim to this sub- respond specific The does not Commonwealth counsel, by defense Ms. During claim. cross-examination no it I Beverly stated that don’t have name on so “bullets the there until after I heard fire.” N.T. stayed gun down commented, at 175. The trial court then “[t]hat’s 7/10/1995 about,” I and re prosecutor would be concerned the what Id. Although too.” “I’m concerned about those sponded, objectionable vouching for exchange frames this as the the Beverly’s testimony by prosecutor, Ms. trial court and a does not by prosecutor legitimize irrelevant comment on testi portion Beverly’s testimony of Ms. even comment to mony directly guilt. prosecutor’s relevant The appellant’s comment, merely unnecessary, humanity’s albeit verbalized such, gunfire. fear of As trial counsel was not universal object. obliged to prosecutor “sought next that the complains Brief expense,” Appellant’s himself at ingratiate Appellant’s
to “[s]ir, an of 120 to you IQ are man with by stating: [sic] than mine.” N.T. at 151. higher which 7/11/1995 help such a statement would questions how explain why prose- does not prosecution, he jury by saying cutor seek to in front of the would “fawn” than and that the intelligent appellant, argues prose- was less merely implausibility cutor wished demonstrate Brief at 29-30. appellant’s story. Commonwealth’s brief, the trial context from his Appellant, yet again, omits by as this statement allegedly unfitting was followed prosecutor asking respect appellant’s testimony: with
If a half from chasing you gun a man is block and with house, ran in and hear a series your you your you house gunshots your just first reaction is that it’s a random firing coming and not from the corner. Your first immedi- corner, ate reaction is not that it is from the but it’s coming random? question
N.T. at 151. This was an appropriate 7/11/1995 follow-up appellant’s earlier on direct examina- testimony 130,” tion that his “in IQ range 125 or id. at and his recollection of hearing random on the gunshots night murder, but which he testified he did not attribute to being chased an armed man a short time prior shooting. Id. at 150. In the context of implausible self-proclaimed account and intelligence, prosecutor’s statement was more than nothing oratorical flair aimed at persuading jury not to credit appellant’s version of events. Counsel not obliged object to the prosecutor’s state- *35 ment.
Since each of these claims no validity, appellant’s have claims, overarching layered ineffectiveness are reliant which on the independent merit of the claims of prosecutor impro- McGill, priety, also fail. 832 A.2d 1023.
Jp. Brady Violations Appellant next claims that he prejudiced Brady under when several pieces by evidence were not disclosed to him the Commonwealth. Before addressing appellant’s specific
544 ex- respective responses, we
claims and the Commonwealth’s the case law. plain relevant (1)
A
has occurred when:
Brady violation
(2)
evidence,
evidence;
whether
prosecutor
suppressed
has
(3)
defendant;
is
to the
impeaching,
helpful
or
exculpatory
Collins, 888 A.2d
the defendant.
suppression prejudiced
47,
294,
577-78;
Paddy,
v.
569 Pa.
800 A.2d
Commonwealth
(2002).
material,
that there is
must be
such
305
The evidence
that,
been disclosed
had the evidence
probability
a reasonable
defense,
been
proceeding
the outcome of the
would have
to the
Burke,
402,
A.2d
v.
566 Pa.
781
different. Commonwealth
(2001).
1136, 1141
duty
exculpa
to turn over
prosecutor’s
to the
exists
evidence
defense
even
tory
impeachment
material,
request
of a defense
for such
United
the absence
2399,
97, 107,
2392,
49
96 S.Ct.
Agurs,
v.
427 U.S.
States
(1976),
police
found
L.Ed.2d 342
and includes evidence
Com
government bringing
prosecution.
files of the same
(2005);
Lambert,
461,
848,
Pa.
884 A.2d
853
monwealth v.
584
419,
Burke,
v.
514
(citing Kyles Whitley,
a. First, pressured appellant complains prosecution officer her for her testify police paid Monique Wylie from Mo- signed offers a declaration statement. from Police Wylie,11 stating money she received nique him information about providing Glen Keenan for Officer prosecutor Brady must have withheld appellant, proof Appellant erroneously post-trial from Com- refers to statements affidavits, they though have and defense witnesses as even monwealth judicial having the authori- not been confirmed oath before a officer (7th ed.1999); ty Dictionary to administer that oath. See Black’s Law Brown, (2005) A.2d Commonwealth v. 582 Pa. J., (Castille, concurring). *36 material from him. The that Ms. disputes Commonwealth Wylie’s recantation can form the basis of a claim. Brady if true,
Even Ms. Wylie’s signed statement were evi- dence does not help appellant unless such information was within or prosecution police files be only and could found assert, however, there. fails that there any was evidence in police prosecution files relating any pay- Furthermore, ments Wylie. made to Ms. appellant does not it explain why only for him possible to obtain this alleged information after trial. is Accordingly, appellant not due relief under this claim.
b. Edgar Clarke Appellant’s second claim Brady under that Mr. Clarke gave police statements, two different prosecution but the only divulged claim, one. This like the last is based on a declaration, signed this time one obtained from Mr. Clarke. declaration, In the Mr. Clarke states that he first police told he then, knew nothing about the crime and a break in the questioning station, at the police he of his saw wife friend Ramon Burton in the Edgar station. Signed Clarke Declara- tion at 1. Because Mr. Clarke was concerned with what the police might already have been his told friend’s wife the police told him they that he present knew was at the scene crime, he states that he then told the he police what knew about the night of Lloyd’s William murder. Id. at 1-2.
The Commonwealth argues Mr. Clarke only provided one statement to the police.
The very of Mr. words Clarke’s declaration not support do appellant’s claim that he gave statements, the police two but instead reveal that he only signed Moreover, one. even assuming that two, Mr. Clarke’s signed statement counts as there is no evidence that soliciting this fact at trial would have produced another verdict. The evidence against appellant ample, presented Beverly’s Ms. testi- mony appellant committed the shooting and Mr. Burton testified that appellant gun fired his at him a minutes few before Furthermore, the murder. it is not clear that Mr. he knew alleged police initial denial to the
Clarke’s credibility considering nothing damaged would have he time of drugs had been near the the murder selling *37 understandably such divulge would have been reluctant Appel- information to the N.T. at 91. authorities. 7/7/1995 lant’s merit. claim without Ramon
c. Burton that appellant’s night Mr. Burton testified at trial on the appel- he in a battle Lloyd’s engaged gun William death with cohorts, appellant’s lant one of Mr. Burton wound- and whom prosecutor ed. that withheld evidence Appellant claims trial impeach that used to Mr. Burton at appellant could have and Bur- disputes argument he Commonwealth’s that Mr. First, ton that Mr. appellant alleges had no motive to lie. Smith, alias, Burton had a 1992 conviction under his drug John as- year probation. sentenced to one was serts that this not the time of completed sentence had been at and, non-disclosure, trial as a appellant result of was testify that Mr. Burton had a potential unaware motive Moreover, for the as- favorably appellant Commonwealth. serts that he been had should have informed Mr. Burton murder, an on the of the that he unregistered weapon night was for that he did prosecuted carrying weapon, never not his business records to the Internal Revenue supply (IRS), illegally. Service and that he in the States was United Appellant’s Brief it could dis-
The Commonwealth counters that not have (INS) an file Immigration closed Naturalization Service and, exist, not exist at the time of trial even if it did did equal defense would have had access to it. While specifically respond Commonwealth does not allegation that should told Burton’s have been of Mr. alias, an it that the argues jury probably conviction under did not believe a dealer such as Mr. Burton file his drug would taxes register his firearm. The PCRA court found appellant did not demonstrate that knew alias not Mr. Burton’s conviction under his and could drug responsible yet be an file that not been producing INS had created. see no error in the rejection
We PCRA court’s of this claim. When Mr. Burton testified at appellant’s trial that he was business, 81-83, selling drugs out of his N.T. 7/10/1995 could reasonably have surmised that Burton not Mr. IRS, filing proper paperwork with the nor they would have surprised been to learn that an drug admitted dealer was carrying unregistered an firearm. As to Mr. Burton’s immi- status, gration appellant offers an record from INS which would have been available at trial that it given made years five after guilty. was found See INS Record of Ramon Burton. Any immigration records that existed 1995 for Mr. Burton were not the exclusive possession prosecution. Respecting drug Mr. Burton’s conviction, alias, under an appellant has not that the shown *38 conviction, of that knew or that it was in a position better than he to uncover it. has Instantly, appellant not demonstrated that of any the evidence of im- purported peachment material on Mr. Burton was in the exclusive knowl- and edge possession of the Equally impor- Commonwealth. he has tantly, that the trial shown outcome of the would if only have differed this mere impeachment material had been Accordingly, introduced. his claim Brady fails as meritless. 5. Failure to and Investigate Discover
Impeachment Evidence At the end of prosecutorial his list of complaints, misconduct appellant inserts three sentences which that his trial argue counsel was for neglecting investigate ineffective to and dis- impeachment Burton, cover on Wylie, evidence Ms. Mr. and and, thereafter, Mr. Clarke appellate counsel was ineffective for failing argue trial counsel’s Appellant’s ineffectiveness. Brief at 27. This boilerplate argument fails as does not mention what specific impeachment his trial evidence discover, counsel failed to adequately investigate but instead cites to trial counsel’s “declaration” in he pro- which fesses his failure to adequately impeach the aforementioned Ap- Brief at 27. subjects. Appellant’s on various
witnesses claims, in Brady runs counter his argument thin pellant’s impeachment certain evidence was he contends that which crucially, More prosecution. of the possession exclusive claim, left to are his insubstantial we cannot evaluate we should trial counsel material evidence guess what relevant his so easily within and how evidence have uncovered grasp. of Trial Court12 Misconduct
C. During Questioning Bias Witnesses Alleged of Beverly a. Ruth Ribner, judge Paul the Honorable accuses the testi- trial, bolstering impermissibly presiding over her and for Beverly by answering questions mony Ms. the trial According appellant, coaching responses. her Beverly’s he found Ms. told the essentially court and, function thereby, usurped an exclusive testimony credible counsel ineffective prior He claims were jury. Appellant’s to the trial court’s behavior. object failing be citations will discussed specific infra. cited instances appellant’s denies
The Commonwealth notes that any merit and judicial misconduct have alleged his trial counsel could what action suggests never court’s bias. The Commonwealth taken to cure the trial have trial counsel trial court provided states that the Beverly, but the trial court was question Ms. latitude wide counsel questioning counsel’s when forced to curb defense *39 the began badger witness. court, one of addressing any
The PCRA without witnesses, found claims of toward impartiality individual during the trial. any not exhibited bias the trial court had if the trial court Moreover, court ruled that even the PCRA bounds, cured any prejudice was potential its overstepped had disregard any they to the were by instructions Appellant's claim IV. 12.
perceived bias that the trial court might have exhibited and render their as to credibility. own decisions witness portion first cites to transcript support his claim counsel’s repeti involves end defense of Ms. Beverly, Beverly tive cross-examination Ms. wherein distain for displayed obvious defense counsel’s tactics and the trial had told her wait until court defense counsel was asking question finished it. beginning before to answer N.T. questioned 167-68. Defense counsel Ms. Beverly 7/10/1996 as to long lying how she was on her stomach when the trial volunteered, court she got up again.” Id. “[u]ntil Defense counsel then asked the Ms. Bever question again and ly it. Id. answered Beverly
Ms. had on already testified direct examination that lying scene, she on until ground police was reached the 145; cross-examination, id. at and on a few moments before comment, the trial court’s she said that stayed she scene, until ground police arrived at id. at 169-70. The record reveals that the trial continually permitted court once, defense counsel to ask same question more than but apparently, the court eventually lost its tolerance for defense and, style counsel’s of questioning in this in- ungracefully stance, attempted curb the Al- repetitive questioning. though it would have been better not to employ apparent sarcasm, Ms. Beverly answering hindered in question asked, repeatedly and appellant has not shown that the exchange so prejudicial obliged that counsel was object.
Appellant next cites as comment a improper a few lines later the transcript, when the trial court commented too, it, be would concerned flying about bullets re sponse to Beverly’s explanation Ms. she not recall why did long lying ground. how she was on the Id. at 175. The trial statement, court’s albeit unnecessary, was harmless.
In the of alleged conduct, third instance improper appellant accuses the trial court of coaching Beverly’s Ms. Specifically, answers. cites the trial court’s state- *40 had how much time did not know Beverly ment that Ms. Lloyd prior and a shooting of William elapsed between no This claim also has nearby location. a gunshots series of merit. asked after defense counsel occurred court’s comment had elapsed how much time the third time Beverly
Ms. Beverly Id. at 175-76. Ms. of gunshots. between two series twice, she was stating question already had answered trial court by, gone time had before unsure how much Ms. summarized, at 176. know.” Id. accurately “She doesn’t Ms. stated, Certainly, know.” Id. then “I don’t Beverly already provided in an answer she not “coached” Beverly was trial to judicial for the court It “misconduct” twice. step in here. Anthony Troy
b. Powell Next, trial court discred- sought claims that the Powell, that he was who claimed Anthony it defense witness from blocks gunfight began few Beverly with Ms. when argues Lloyd Appellant murdered. where William Mr. questioning in his the trial court’s was shown partiality following passages: Powell. cites say why you THE Was there reason wanted COURT: get why trying were something Beverly], you about [Ms. thought jury? some across to No, nothing like that. MR. POWELL: why you Do some reason wanted you THE COURT: have Beverly’s] conduct? something about say [Ms. No, MR. Your Honor. POWELL: you You it out because just THE blurted wanted COURT: it to blurt out. Yeah, that. guess you say I could
THE WITNESS: go THE COURT: ahead. Alright, (a.m.) Also, cites: at 12-13. N.T. 7/12/1995 sir, Sir, you asked did see you [Ms. were PROSECUTOR: scene], murder Beverly MR. POWELL: Yes.
PROSECUTOR: And said no. you
THE COURT: Wait a minute. say probably You she because, otherwise, there wasn’t they would have taken her they down homicide like took you down.
MR. They POWELL: sure did. sure They picked—. THE COURT: Maybe you suspicious looked and she didn’t. There are a lot of why they reasons you would have taken her; and not right? is that
MR. POWELL: We all together. were Id. at 17-18.
While a trial judge should normally questioning leave counsel, justice witnesses to that a may require judge trial absurd, questions ask when ambiguous, or testimony frivolous given or testimony is in need of further elucidation. See Roldan, Commonwealth v. 524 Pa. 572 A.2d (1990) (citing Commonwealth v. Myma, 278 Pa. 123 A. (1924)). 486, 487
To properly evaluate the questioning by conducted court, the trial must we consider it in context. The Common argues wealth that the trial court’s questions were aimed highlight that Mr. Powell’s assertions about Ms. Beverly’s absence at the scene of the murder was not based on first hand knowledge. Mr. Powell was asked whether he on was at drugs the time of the murder and he responded that Ms. on Beverly drugs was as well. N.T. (p.m.) at 9-10. 7/12/1995 cross-examination, On the prosecutor attempted several times to question Mr. Powell about his interjecting motives for his opinion on Ms. Beverly’s sobriety, but Mr. Powell once an “[bjecause swered she high” and then responded “[t]hat inwas mind.” my context, Id. at 12. Given this respecting the first set of cites, questioning appellant the trial court did not abuse its discretion in seeking pointed more explanation for Mr. Powell.
As to the trial court’s of Mr. questioning Powell concerning recollection that Beverly Ms. scene,
murder the court’s justified intervention was in again repeatedly
context. The had asked how Mr. prosecutor Pow- scene, Beverly resulting ell knew Ms. was not at murder Id. argumentative an cross-examination. trial 16-17. unproductive question- court’s ended this line of intervention clear police but also made it to the that the did not ing, Moreover, at the simply everyone arrest scene. trial prosecution accusations that the court wanted help the court’s prosecutor. are belied admonishments of before latter questioning Just few lines cites, the trial court instructed the prosecutor stop twice interrupting questions Mr. Powell with before he had finished Id. at & record speaking. squarely appel- This belies lant’s claim of hindsight partiality. accuses trial
Appellant additionally judge di credibility: Mr. rectly questioning Powell’s THE way anything This no my COURT: indicates *42 just I’m I’m in no part your credibility. way judge. you an Did take expressing opinion. anything morning this a little you light-headed? makes just MR. No. That’s me. POWELL: you THE That’s the are. I’m way always COURT: not being I to know so I derogatory; wanted know whether we should on or have a recess or what. go Id. 20. trial speculates court’s above dis- Appellant claimer was calculated to diminish Mr. Powell’s question and testimony, only was harmful because he defense which was murder, lone eyewitness witness offered to discredit the to the Beverly. Ms. Commonwealth
The disputes appellant’s claim. When the trial court if Mr. had taken anything asked Powell would him make light-headed, the Commonwealth asserts court’s question logical response to Mr. Powell’s odd demeanor was responses and on the witness stand. also prefaced question notes that the court his to Mr. Powell not stating commenting that he was on Mr. credibili- Powell’s ty- aside that the
Even the fact cold record does laying demeanor, the Powell’s reveal record shows that Mr. testimo- ny Beverly had been Mr. Powell asserted that Ms. peculiar. lost of “totally space” had been at the scene the murder and, just issue, to the prior question at his answer odd was instance, prior and For Mr. rambling. uninterrupted Powell’s following answer feed- “giving included statements: me back, feedback, crazy not make questions. That does no sense me, that you asking crazy questions;” me to answer “Think it;” about it. Duh. Think go about “Let me know who would back, please. somebody Please let me know. Would anybody back, hand, here go please know;” raise let me your please logical? “Does it Am I I right wrong? sound or am Does it sound Id. at logical?” Considering 19-20. Mr. Powell’s lengthy strange counsel, response and the fact that who present and could observe the demeanor and assess whether the trial court acting “partiality,” out fails. hindsight judicial impro- claim We see no evidence priety. Prior Relationship with the Prosecutor
Appellant next alleges that the trial must judge have acted manner, in a favoring biased the prosecutor, because the prosecutor had testified on behalf Judge Ribner in an legal unrelated matter. Appellant Judge states Ribner during proceedings revealed in Commonwealth v. Christo- Williams, Div., pher April Term, Crim. Nos. 1770-96 1825- & (Pa. C.C.P., 1992) Philadelphia County that the prosecutor had testified on behalf in another matter. legal identify does not the case in which the prosecutor supposedly *43 behalf, testified on trial it judge’s or reveals how bias this trial.
The Commonwealth notes that this on the judge attack trial is frivolous since failed appellant any to or provide affidavits documentary evidence to his support Appellant’s claim. omis- sion, maintains, the dictates that his claim should be dismissed. to or evidence any any did not attach document Likewise, insinuation.
his PCRA to substantiate his petition Court, not his did address in brief before this reply claim or argument that his was frivolous the Commonwealth’s claim. support Pennsylvania other evidence provide 902(D) that a PCRA requires of Procedure Rule Criminal affidavits, records, docu- petition any “attach to the petitioner ments, facts stated or other evidence which show relief, shall state grounds petition or support however, did why Appellant, are not attached.” they supposed proceeding prosecu- record of the where attach a of signed of trial declaration judge, tor testified on behalf any willing to the other testify proceeding, a witness judge. his attack on the trial support document that would reckless. This claim is both frivolous and of D. Miscellaneous Failures Trial During Guilt Phase13 Counsel Impeachment 1. Commonwealth Witnesses counsel did not Appellant broadly argues properly trial Clarke, Burton, Beverly, Ruth impeach Edgar Ramon trial making raising counsel ineffective for not appeal direct The Common- opportunities. counsel’s missed impeachment wealth, course, any impeachment denies that of appellant’s claims merit. have witnesses, court,
In each of these the PCRA respect any particular argument appel- specifically addressing without advanced, merely complaints impli- lant that appellant’s found already areas “depth angle” impeachment cated the trial. at 12. explored slip op. defense counsel at PCRA ct. failures, the PCRA court Due the’ nature of proposed prejudice held could not demonstrate such probability there a reasonable verdict would have errors. alleged been different without correct, court as consideration of PCRA claims each witness demonstrates. specific respect Appellant’s claim V. *44 Edgar a. Clarke claims that counsel in impeach- was ineffective his Clarke, (1) ment of Mr. in that counsel did not elicit that Mr. Clarke never charged selling for on the drugs day (2) William Lloyd was murdered and establish that Mr. Clarke failed to for appear an August court date for a theft charged under another name.
The Commonwealth appellant’s characterizes claims as baseless and frivolous. The points out that appellant never offered any proof by way of supporting docu- mentary evidence that Mr. Clarke evaded in drug charges exchange for his testimony against appellant. As to the theft charge, the Commonwealth notes that Mr. testify Clarke did charge. Moreover, about the the only proof appellant cites to particular aspects of Mr. Clarke’s theft case comes from a hearing dated after trial appellant’s an unrelated case. earlier, 902(D)
As we noted Criminal Rule requires PCRA petitioner to attach supporting documentary evidence for his claims or an explanation as to why such evidence was unavail- able. When evidence is easily obtainable and would provide necessary claim, support petitioner’s for a rejected we have claims that were unsupported by documentary evidence. See Commonwealth v. 566 Pa. Begley, 780 A.2d 630-31 (2001) (rejecting claim due to absence of stating affidavit witness trial); would have been to testify available Com- Collins, (1996) monwealth v. 546 Pa. 687 A.2d (claim fails absence of document showing petitioner request- appeal). ed
Here, appellant never prove offered to that the Common- bargained wealth with Mr. Clarke in exchange for his testimo- Moreover, ny. Mr. Clarke expressly denied at appellant’s trial that he promised any benefit from the Common- in exchange wealth testimony. N.T. at 76. 7/7/1995 record, On appellant has failed to prove that defense counsel had a basis in fact to impeach Mr. Clarke’s testimony in relation to the alleged lack of drug charges. Nor does appellant prove prejudice. theft charge, Mr. Clarke’s the circumstances
Regarding by- prejudiced that he was establish begun has At details. failure to extract further alleged trial counsel’s open he an trial, admitted that had Mr. Clarke Id. We are unconvinced against him. charge pending theft to a been undermined credibility would have Clarke’s Mr. *45 proven counsel had also only if trial greater degree materially that he in the case or hearing attend a Mr. failed to Clarke claims impeachment of appellant’s alias. Neither had an Mr. Clarke succeeds. involving Burton
b. Ramon ineffec trial counsel was next that argues Burton, the listing virtually impeach Mr. failing for tive in Brief the Com claimed earlier appellant same evidence counsel. from defense withholding of guilty was monwealth B(4)(c). appellant argues supra See Specifically, at Section Mr. Burton with impeached should have trial counsel (1) handgun carrying unregistered he an was evidence that: for murder, charges no criminal yet faced night on the (2) out of his store act; a narcotics business operated the he (3) business; to that illegal relation escaped prosecution (4) records; he entered business he failed to file IRS (5) he used Religion;” a “Minister of illegally as country aliases. from arguments appellant’s its revives surprised not be
Brady claim. It notes that would not file did unregistered weapon Burton had an that Mr. Additionally, Common- records IRS. business with Mr. prove never offered argues appellant wealth had not or that Mr. Burton unregistered gun Burton’s file, the Commonwealth records. As for INS filed IRS to trial it not have been available contends that would again trial. appellant’s exist at the time of since it did not counsel demon- notes that never appellant the Commonwealth Finally, trial, information, would if any presented of this strates how his verdict. have altered
We has not agree preju- shown he trial by alleged impeachment diced counsel’s Estab- lapses. lishing that Mr. in other illegal Burton was involved activities ineluctably jury’s him, would not alter of much less opinion lead to a different verdict. The INS record cites did trial; exist at the any against time accusation counsel on that basis extent that appellant implies frivolous. To testimony that Mr. Burton provided exchange promise Commonwealth, treatment favorable from are allegations unsupported proof. These claims are base- less.
c. Beverly Ruth Appellant next claims that trial counsel should have impeached Beverly Ms. on the basis of false statements she gave police to the night the murder. Since Ms. Beverly gave false statements the police, appellant argues, she had motive to lie at appellant’s trial prosecution avoid crime, for her contrary to the prosecutor’s contentions trial. *46 also that trial argues his counsel have elicit should ed testimony from Ms. Beverly concerning the “coercive pres sure” the police applied to produce her eventual statement against him. Appellant’s Brief at 36.
The argues that the record does not reflect that the police applied pressure Beverly undue on Ms. to force her Moreover, a give notes, statement. the Commonwealth Beverly’s Ms. displeasure police with the her enhances credi- bility because she cooperated with despite displea- them that sure. As for appellant’s that charge Beverly gave Ms. false to police murder, statement on the night of the the Common- wealth notes that this is another of appellant’s unsupported However, accusations. Beverly even if Ms. give did such a statement, asserts, false the Commonwealth such would be understandable her given state. Common- frightened wealth notes Ms. Beverly that out of Philadelphia moved she because was by appellant’s threatened to stay friends silent, thoroughly appellant’s which undercuts speculation that she against testified him to escape criminal sanction. attempted impeach Beverly trial Ms. counsel
Appellant’s counts, her of sexual notably, accusing having on most several uncovering Ms. Bever- appellant drugs for relations with 141-43; N.T. at drug E.g., former ly’s addiction. 7/11/1995 use, Beverly’s drug appellant admitted Despite 160-61. Ms. Lloyd. William The additional murdering was convicted now have argues evidence that should impeachment outcome. used not that changed been at trial would have Indeed, have impeachment may evidence well alleged credibility. Beverly Ms. testified Beverly’s bolstered Ms. and, after witnessing her life after the crime she feared for to move her police, threats not to talk to she decided receiving N.T. family Philadelphia. from away 7/10/1995 accusation, only if it appellant’s Her fear were explain would true, of the Beverly police night that Ms. lied to evidence, however, no identity. her There is murder about Beverly being prose- Ms. threatened or feared was with Furthermore, police. for statements to the making cuted false Beverly that Ms. false gave had defense counsel established murder, of the to the scene police statement witness, Mr. Pow- testimony have undermined defense would ell, not in the location Beverly asserted that Ms. who where murder occurred. coercively accusation that the
Addressing appellant’s police Beverly, the obtained a statement from Ms. record does not hearing support argument cites to police. so N.T. compelled reflect that she was Instead, Beverly it at 52-53. illustrates Ms. 2/22/1994 police her station angry bringing police with bathed, she not but she nevertheless told when had eaten again, Once if police she observed. even what true, has proven he allegations accepted fictitious were *47 that that there is reasonable the verdict would probability these accusations to presented been had counsel have different jury. Discovery 2. Use Commonwealth trial ineffec next claims that counsel was Appellant that he did not failing Penny testify tive for call Hairston and, instead, see on the appellant night of the murder Ike saw gun, gun Jones with a .22 caliber capable firing bullets Lloyd.14 that killed William that Mr. Hair- Appellant argues testimony supported ston’s would have his claim that he did murder, not commit the since especially Mr. Hairston did not tell the police he saw on the once the appellant street claim, To shooting began. support this cites sepa- rate statements that Mr. Hairston gave police.
asserts that Mr. Hairston was available to but testify, never called. responds testimony from Mr.
Hairston merely would have been cumulative evidence of the battle that gun occurred outside of Mr. Hairston’s home and which involved several individuals. Testimony from Mr. Hair- ston, states, the Commonwealth would not exculpa- have been tory given the number of people involved the shootout and an given eyewitness saw Lloyd. murder William The PCRA court found that Mr. Hairston could not have provided significant impeachment evidence appel- relevant to such, guilt. lant’s As the court ruled that appellant did show a reasonable probability that if the evidence had been presented, the verdict would been have different.
Mr. Hairston’s would testimony only have validated the testimony of Mr. Clarke and would not have been exculpatory. The jury heard testimony that several men were involved in the initial battle gun prior Also, to the murder. proof Mr. Jones had been carrying a .22 caliber does not handgun prove that appellant Therefore, did not have a similar gun. appellant’s claim is without merit.
3. Oral Statement Monique Wylie Appellant next assails his trial object counsel for failing to Officer Glenn Keenan’s testimony concerning Monique what him Wylie told about the robbery at Mr. Hairston’s on the Jones, Johnson, Anthony Ike a.k.a. Penny and another man entered drugs Hairston’s house to shortly Lloyd steal before William Mr. murdered. Clarke was in Mr. Hairston’s home at the time of the intrusion. *48 object to the night failing prosecu- the murder for tor’s during use of Officer Keenan’s statement his summation. Specifically, appellant Wylie being notes that Ms. testified to on of the him night help asked Mr. Jones murder to by home, rob Mr. Hairston’s did not name other individu- any but Appellant objects als be to Officer who would involved. Wylie Ms. him that contrary testimony that told Keenan’s to be in the Mr. appellant going robbery involved with was Jones. contends that Officer Keenan’s account Appellant Wylie’s for its police Ms. oral statement was inadmissible testimony highly Officer Keenan’s purpose. substantive was it prejudicial, appellant argues, prosecutor because the utilized Moreover, closing. in his claims that trial counsel appellant of Ms. ineffective for to introduce failing portion was that Wylie’s police official statement contradicted Officer recollection. Keenan’s
The that Ms. oral state- Wylie’s disputes Commonwealth ment to Keenan offered as Officer was substantive evidence and, instead, that argues the statement was introduced examination, impeach Wylie’s testimony. During direct Ms. *49 witness, against a that is the rules except prohibited by which 607(b). of Hearsay, evidence. Pa.R.E. is a statement which by someone other the made than declarant while testifying trial and is offered into to the evidence the truth of prove asserted, normally matter is inadmissible at trial. Pa.R.E. 801(c) & 802. a the Impeaching through witness introduction of an inconsistent out-of-court statement not be consid- will (1) if ered the is: hearsay subject statement under oath to the trial, penalty of at a perjury hearing, proceeding, other (2) in deposition; writing adopted declarant; the and by (3) a of the contemporaneous recording verbatim oral state- 803.1(1).15 ment. Pa.R.E. agree to appellant
We with that there was a basis object to Officer Keenan’s recollection of Ms. Wylie’s state ment, an Wylie as it oral recollection of Ms. him was what told 803.1(1). comport of requirements did not with the Rule However, appellant has not prejudice shown because there ample independent was co- appellant evidence was a in conspirator the that occurred robbery befo're William Lloyd’s murder. Mr. Burton testified that at his car after shooting shortly Hairston’s house Mr. had been robbed. Mr. Clarke recalled appellant being present at Mr. Hairston’s house earlier day with two men who him at that Additionally, robbed location short time later. Ms. Wylie testified that appellant was Jones at a with Mr. local bar Mr. her participate when Jones asked to in the robbery day of the murder. This alone evidence would have been sufficient of to convict conspiracy and, therefore, robbery commit has not proven Strickland prejudice. may
15. Prior statements witnesses also be admitted in accordance with Pa.R.E. Doubt Instruction Object Failure to Reasonable I. trial of ineffectiveness next accuses counsel doubt instruction failing object given to the reasonable says guilt Specifically, appellant and penalty phases. both jury improperly the trial court instructed a reason- is a “a doubt that would restrain reasonable doubt matter person acting upon and sensible from ably [a] careful at 6. in his or her own affairs.” N.T. importance 7/13/1995 “restrain,” appellant argues using Instead word “hesitate,” use required trial court the word which non-binding Pennsylvania in the Standard Criminal employed 7.01(3). § Jury Instruction that trial did not err argues
The Commonwealth counsel he to the “restrain” object failed use word when instruction, re- the reasonable doubt since this Court has in such instructions. peatedly approved the use word agreed. The PCRA court instructions, evaluating this Court
When as a whole were must consider whether instructions *50 Hawkins, 310, v. 567 Pa. 787 Commonwealth prejudicial. 292, (2001). any not required A.2d A trial court is use 301 instructions, particular of particular jury expression, forms accurately as those instructions character long clearly so Prosdocimo, (citing ize relevant Id. v. law. Commonwealth 1273, (1990)). 147, previously 525 Pa. 578 A.2d 1274 We have describe a reasonable doubt approved jury instructions that reasonably a careful and something that would “restrain from v. 560 person acting.” Ragan, sensible Commonwealth 106, 390, (1999); v. Pa. A.2d 401 see also 743 Commonwealth 102, 258, (1974); A.2d 263 Young, 456 Pa. 317 (1954). Donough, Pa. 103 In Com v. A.2d Porter, held that “the distinction between monwealth we is min acting’ ‘hesitate before and ‘restrain before de acting’ in clearly phrasing imis and such a subtle variation would the court’s 556 Pa. be an abuse of trial discretion.” (1999). authority, this the light existing A.2d In is frivolous. notion that counsel was ineffective 5. Handgun Appellant’s Associated with Arrest final that trial
Appellant’s category claim under is chal counsel and counsel for not appellant were ineffective the testimony expert concerning the of the ballistics lenging .38 caliber found at time of his handgun appellant with the arrest, have of the expert which the noted could fired some in Mr. the Appellant argues bullets found Burton’s car. that probative outweighed preju value of this its testimony was (1) evidence; effect, akin dicial because: the is to bad acts gun (2) gun the not the same caliber as the .22 caliber bullets was (3) victim; killed the there distinct time interval at between the bullets that were fired Mr. Burton’s car and (4) victim; the be a .38 bullets that could attributed to caliber were Mr. Burton fired at handgun found where Moreover, *51 body any did not match the weapons the recovered in police investigation. their The gun certainly Id. recovered was relevant to establish a link possible appellant between and, such, the of the murder as vicinity scene was admissible. Appellant’s goes to argument weight the evidence.
Moreover,
from
prejudice resulting
has not
appellant
proved
counsel,
admission,
being
trial
far from
particularly
its
because
incompetent,
gun
appellant
established that
recovered
weapon.
arrest
not match the murder
time of his
did
Appellant
in
E.
Saw
Handcuffs16
Jurors
next
that his
and appellate
claims
trial
Appellant
neglecting
steps
counsel
ineffective for
take sufficient
were
that he had
at trial
several
prejudiced
establish
been
when
handcuffs,
in
jurors
largely
him outside of the courtroom
saw
a claim he
on direct
resurrecting
argued
appeal. Appellant
signed
juror
Lang
cites
from
declarations obtained
Duwan
jurors did
juror Cynthia Wright as evidence that
alternative
trial,
him
noting
see
in handcuffs
at least one
during
jurors
dangerous.
argues
looked
thought
resulting
that the
not
any
trial court’s instructions did
cure
and, instead,
was a
prejudice
actually suggested
Moreover, he
dangerous individual with past convictions.
accuses trial’counsel of
ineffective for not
being
requesting
jury,
that the trial court
conduct a
or issue a
poll
hearing,
in
instruction
connection
incident.
proper
purported
with
appellate
failing
counsel as
Appellant labels his
ineffective
in
litigate
these issues on
manner that
appeal
direct
current
the issue.
prefers
pose
counsel
argues
claim
appellant’s
previ-
Commonwealth
below,
just as the
court
because
ously litigated,
PCRA
decided
trial
argued
direct
counsel
that the
court abused its
appeal
motion for
on the
denying appellant’s
discretion
a mistrial
basis
seen
in handcuffs.
jurors may
that some
have
him
However,
not
previously litigated
since
claim was
claim,
an
not
ineffective assistance of counsel
we will
Collins,
dismiss it out of hand. See
appellate to have light in of this prior holdings jury’s Court’s that a brief in viewing prejudicial a defendant handcuffs is not so destroy jury’s a in a Even objectivity rendering verdict. though clearly this Court’s case law indicated that appellant not a cautionary could more than instruction from the expect jurors handcuffs, trial court in the him in in event observed denied, here point requested, fact trial counsel but was relief in the form aof mistrial. Trial counsel not incom- in petent ask failing poll the trial court to or jury conduct a hearing.
Similarly, trial court’s in response appel- instruction request lant’s for a mistrial did harm not The trial appellant. jury court instructed the that:
The fact that is someone arrested and accused of a crime or even the fact the he might be held in that is custody, not any against evidence him should you any not draw conclusion from those facts. is held person
Sometimes in custody reasons which nothing have to do or guilt with innocence.
You cannot consider anyway that as evidence one way the other. Prudently,
N.T.
at 4.
the trial court did not alert the
7/13/1995
jury’s attention to
specific
why
reason
appellant requested
jury
mistrial
instructed the
it
could not consider the
possibility
appellant might
custody
be held
as evidence
guilt
of or innocence. Appellant’s contention that the trial
argument,
17. The main
in support
cases
cites
of his
Rhoden
Rowland,
(9th Cir.1999) (whether keeping leg
172 F.3d
shack-
prejudicial),
les on
Flynn,
defendant at trial was
and Holbrook v.
560, 568-69,
1340, 1345-46,
(1986)
U.S.
106 S.Ct.
The Confrontation Clause to confront witnesses. right criminal adverse prosecutions Const, to the states via the applicable amend. VI. Made U.S. Appellant’s VII. claim
567
Constitution,
Fourteenth Amendment of the
U.S.
Pointer
Texas,
400, 403,
1065, 1068,
380 U.S.
85 S.Ct.
L.Ed.2d
(1965), the Confrontation Clause
may
be violated
admission of
hearsay
harmful
testimony as substantive evi
Collins,
against
dence
the defendant.
In the instant Officer Thomas testified that he heard on the police radio that the individual shot who William Lloyd ran toward Catherine Street. He then requested another officer arriving the scene check the area. Since the evidence conduct, was introduced for course of and not for truth, its it not hearsay, and counsel cannot be deemed incompetent for failing object. *54 Robbery
G. Consolidation and Murder Cases19 Appellant argues in both the consolidating robbery and case, murder into charges single a and in presenting two different theories of the case during the proceedings against him, the Commonwealth’s actions were improper and that his prior counsel were ineffective when they did not argue judicial estoppel prevented the Commonwealth from making inconsis- tent arguments. Appellant cites the Commonwealth as argu- in ing its motion for consolidation that appellant a co- and defendant shot William Lloyd a during gun battle Mr. with Then, trial, Burton. appellant argues, the Commonwealth characterized William Lloyd’s murder separate as a shooting appellant singularly committed. Appellant contends that his trial counsel was for ineffective failing publish to the jury the Commonwealth’s admission that people two struck the in shootout, victim the because such evidence would have Appellant's claim VIII.
568 doubt, appeal reasonable and direct provided jury with argued should have claim. counsel responds The Commonwealth that consolidation the mur- robbery as the proper, der and cases was Commonwealth house, robbed a appellant proved co-conspirators house, and, in outside of as defen- gun a battle engaged- fled, he murder. says dant committed The Commonwealth falsely Commonwealth claimed at alleges that the stemmed from shooting separate trial two incidents. in The PCRA court held that there no error the trial of the cases because there was ample court’s consolidation charges to show that the related. were evidence in be charged separate may Offenses indictments joined together charged if the “offenses are based the same 582(A)(1)(b). act or transaction.” Pa.R.Crim.P. The trial has discretion decide separately charged court whether trial, joined together offenses should be and its decision will the trial its discretion only be overturned where court abused the defendant. clearly prejudiced or the consolidation Com 460, Robinson, (2004), 581 Pa. 864 A.2d monwealth — denied, -, 163 L.Ed.2d cert. U.S. S.Ct. (2005) Newman, (citing Commonwealth v. 528 Pa. (1991)). A.2d
Here, consistently Commonwealth maintained in consolidation, for oral argument motion for motion for consolidation, solely responsible trial that killing the innocent Lloyd, bystander gunfight William after the at Mr. Hairston’s house. began shortly robbery that the Appellant’s argument presented two refuted he very theories ease is documents that to his PCRA Supplemental petition. Although attached said his oral prosecutor during argument on motion “[t]hey strike his next breath he asserted that bystander,” *55 N.T. eyewitness an saw shoot the decedent. at 24. Appellant blatantly quoted prosecutor’s 3/20/1995 context, poor statement out of an to characterize a attempt choice of words as the Commonwealth’s intentioned admission. ineffective, Appellant’s prior but counsel was not was instead ethical, failing similarly argument. for to forward a frivolous Jury Regarding H. a Instruction Permissible Inference20 claims that the court an
Appellant gave improper trial permissible inference instruction related to the doctrine intent it transferred when allowed the to infer appellant’s specific deadly to kill from Lloyd intent William the use of a weapon thereby, on a vital organ; allegedly relieving the from proof its burden of to establish Commonwealth intent. maintains, The on the wounds victim’s body, are irrelevant determination of whether appellant had the 'specific to kill argues intent someone else. that it only specific to infer to kill rational a intent the victim is when the person Lastly, the defendant intended to shoot. appellant contends his trial he counsel was ineffective when and, thereafter, did object not the instruction appellate counsel raising was ineffective trial counsel’s ineffec direct tiveness on appeal. appellant’s previ- asserts that claim was
ously litigated, since he challenged appropriateness of the relief, intent charge, transferred albeit on alternate theories of on direct The PCRA appeal. accepted argument court below, but will claim we review within the context of the layered us, assistance claim he presents ineffective Collins, claim he which did not raise on appeal. direct See A.2d at 573. permissive
A evidentiary inference is an tool that permits proceed a fact-finder to inferential reasoning, such that a fact-finder infer an may proof elemental fact from of a MacPherson, basic fact. Commonwealth v. Pa. (2000).
A.2d a permissive When inference leaves the inference, fact-finder free to accept reject permissive inference does not of proof only affect burden and it beyond when, affects a reasonable doubt standard under case, the facts way there is no the fact-finder could permitted arrive at the County the inference. conclusion Appellant’s claim IX. *56 570 Allen, 157, 140, 99 N.Y. 442 U.S. Ulster v. County,
Court of 2213, 2225, (1979); 60 L.Ed.2d see also Common- S.Ct. (2003). Hall, 547-48 574 Pa. 830 A.2d We wealth inferred a intent to kill can be opined “[s]pecific have of the upon part a a vital deadly weapon from the use of Jones, Pa. body.” v. Damon victim’s Commonwealth (1992). 610 A.2d that, if found that
Here, court it the trial instructed a vital of the victim’s appellant deadly weapon part used a free, required, appellant to infer that had body, it was but not evidence trial presented a intent kill. The specific present- this inference because Commonwealth permitted before shortly at Mr. Burton testimony appellant ed shot the trial court did not Lloyd Consequently, William was killed. away for intent erroneously proof specific the burden shift Furthermore, noting that it bears from the Commonwealth. (and unsupported by is indeed exist- appellant’s theory novel faulted for ad- ing authority). failing Counsel cannot be (and theories. yet unaccepted) vance novel as
II. PCRA DISCOVERY21 discovery, for which was Appellant request renews request He a broad denied the PCRA Court. makes discovery all replicate pro be ordered to Commonwealth counsel, uncertain to trial because counsel claims vided PCRA discovery all materials from trial ty they received whether nothing from direct and current counsel received counsel that the appeal hoping dispute counsel. More specifically, from at his arrest could be linked gun appellant recovered crime, all appellant reports the instant desires ballistics for school testing. Appellant also asks evidence ballistics Mills, in deten placed records from where Glen files, since he juvenile, juvenile tion a and his corresponding says they performs that he well detention. show any file other disciplinary next Keenan’s requests Officer Finally, history evidence to witnesses. showing payments files information in any seeks Commonwealth’s Appellant’s claim X. Burton, including information on his related to Ramon name, because, says, he criminal under another prosecution to the case him. credibility important against Mr. Burton’s unre- claim is The contends that Commonwealth viewable, requested sufficiently develop as he how did discovery to his PCRA appeal. relates list” request “boilerplate laundry calls appellant’s for the good production insufficient to establish cause materials he desires.22 *57 in a death petition first counseled
“On the [PCRA] case, permitted stage penalty discovery any no shall be showing of court after a proceedings, except upon leave 902(E)(2). discovery A good cause.” Pa.R.Crim.P. denial is for abuse of request reviewed discretion.
Lark, (2000). 487, Common 585, 591 In 560 Pa. 746 A.2d Williams, wealth v. 207, 1167, (1999), Pa. A.2d 732 1175 are general discovery this Court held that for PCRA requests cause, it good especially insufficient to establish is when why discovery unclear PCRA counsel was unable to obtain Furthermore, peti materials from former counsel. a PCRA tioner is not discovery entitled to he has not shown where Bridges, Commonwealth v. documents, existence of requested (2005), 584 Pa. speculation 886 A.2d that requested exculpatory documents will uncover does evidence 902(E)(2). not satisfy Common requirements of Rule (2004). wealth v. Bryant, 579 Pa. A.2d than a Appellant’s discovery requests nothing are more fishing expedition possible for He has exculpatory evidence. erroneous, not demonstrated ballistics results were witnesses, that Officer Keenan was for or disciplined paying impeach- the Commonwealth possessed purported Moreover, ment Mr. explain evidence on Burton. he does not why his may PCRA counsel received a set complete have of trial discovery why counsel’s files or Mills records Glenn he given hearing, at the as he admits in a later sentencing denying appellant's 22. The PCRA court did not for discuss its reasons discovery request opinion. in its written (III.B.), claim are Even if phase missing. now PCRA penalty counsel, contact appeal counsel has been unable to direct trial files would explained why has not counsel’s good has not Appellant require differ. demonstrated cause discovery request pursuant Rule granting speculative 902(E)(2).
III. PENALTY PHASE CLAIMS Qualified
A. Death Jurors23 to a sentencing hearing, that he entitled new Declaring jury claims that his because sentencing partial jurors life-qualified death-qualified was not argues excluded for cause. improperly Appellant were jury’s his trial partially responsible sup- counsel was partiality any because he did not voir dire posed conduct concerning jury against imposition bias of a life sentence or trial court jurors Appellant rehabilitate whom the dismissed. also contends that his trial counsel was when he ineffective members accepted jury specifically life-qualifying without argues them. counsel appeal also that direct should issues, litigated strategic have these declares he no 'had doing tactical reason for otherwise.
In the trial response, argues Commonwealth court properly jurors inability dismissed for cause who an expressed or to trial impose penalty to the death court’s follow instructions on the law. The asserts that Commonwealth authority there is no claim legal support appellant’s that his obliged trial constitutionally specifically counsel was life- all qualify jury members. held
The PCRA court that the record no instance revealed in dismissing where trial court abused its discretion a cause, juror specific jurors for as each of the cites expressed ability doubts about his or her for death vote jurors As to claim that all must be penalty. life- court qualified, authority the lower noted Court’s that a impartial jury require selection of a fair and does not such an Appellant's claim II.
573 Moreover, the court offered no inquiry. found that or jury ultimately that the seated fact was unfair evidence partial. juror disqualify
The decision to
a
is
within
court,
only
trial
a
which
be
discretion
decision
will
v.
reversed
an abuse
discretion. Commonwealth Wil
son,
293,
(1996).
429,
Any
543 Pa.
A.2d
299
person
672
may
a
on
capital punish
be excluded from
holds
who
views
substantially
ment
from
prevents
person
impairs
adhering to the trial court’s
on the
Robin
instructions
law.
son,
488;
Lark,
441,
If
jurors
a defendant
to life
qualify
wishes
voir
dire,
Illinois,
he must be
to do
permitted
Morgan
so.
v.
504
719, 735,
2222, 2233,
(1992);
U.S.
112 S.Ct.
Here, the trial court was its within discretion to jurors expressed exclude who reservations about the imposing death had no penalty obligation and trial counsel constitutional Furthermore, jurors’ to views.24 since attempt change a that trial requirement does not
existing precedent impose juror, each claim life-qualify appellant’s counsel must in this frivolous. regard counsel was ineffective B. Mills Records25 Glen consti- Next, argues that the trial court committed appellant error, both the and Fourteenth violating Eighth tutional Amendments, I, 13 of Pennsylva- Article Section as well as Constitution, appellant’s nia it refused admit Glen when Appellant without authentication. Mills records into evidence Mills, for at Glen a school performance contends that his in an youth, positive performance demonstrates his delinquent making mitigating the records vital evi- setting, institutional trial ruling prevent- that the court’s Appellant dence. asserts He from to the death presenting penalty. ed him defense a Brody also that the committed violation prosecutor declares earlier. by records to disclosing not of error prosecutor then attaches these claims trial court ineffectiveness. boilerplate allegations counsel has responds previously The Commonwealth and, therefore, it not litigated this claim does deserve redun- agreed dant review. The court with the Common- PCRA wealth, resolu- previous it was bound Court’s stating tion of the claim on direct appeal. jurors support improperly court
24. To his claim that trial struck cites, summation, cause, appellant quotation questioning without Wade, Gregory, Patricia Ethel five individuals: Nelson Daniels Clemmons, McEntee, Gregory and Daniel Cuten. indicated Marcille impose penalty he did he the death that he not know whether could difficulty giving unequivocal an trial court's repeated had answer questions. Wade it be hard to N.T. at 25-26. said would 7/5/1995 particularly penalty, she felt convince her vote for the death because representation. jail simply poor Id. people are sent to due to innocent impose never the death Clemmons affirmed that she would 48-50. regardless penalty evidence. Id. at 57. McEntee confirmed she penalty. "problem” with death at 10. Cuten had a N.T. 7/6/1995 penalty impose he death twice told the trial court that would impair taking that he was medication that would and also stated jury. service on Id. 14. Appellant's claim XI. *60 575 trial argued that his counsel was On direct appeal, to authenticate the failing produce ineffective for to witnesses into Glen Mills records and introduce the records evidence. I, at This that appellant Carson A.2d 707. Court found 741 of prejudiced by did not demonstrate that he was absence records, willing he failed to were because show witnesses he neglected and to on his behalf and to testify available Id. helpful establish that records would have been to him. Thus, re- any ineffectiveness claim now makes in spect to trial failure to present his counsel’s witnesses authenticate the records 42 previously litigated. is Pa.C.S. 9544(a)(2). However, § to the appellant argues extent that that appellate failing counsel to make was ineffective review, certain to the on direct arguments accept Court we claim as a distinct ineffectiveness claim and will conduct Collins, 888 573. substantive review. See A.2d at counsel Appellant’s argument appellate should curious, Brady have raised a is argument appeal direct since he previously acknowledged appeal on direct that trial counsel could have become aware of the Glen Mills records simply client by questioning appellant’s his gathering I, criminal history through discovery. 741 Carson A.2d at 707. claims, I.B.4, In appellant’s Brady discussing Section supra we no explained there is Brady violation where information is through available non-governmental sources and can be through obtained defense own counsel’s reasonable Morris, 696; investigation. Paddy, 822 A.2d at A.2d Obviously, appellant’s performance at attendance and Glen Mills was information within the exclusively govern ment’s it knowledge qualifies such that as Brady material. portion Consequently, is argument frivolous. Regarding appellant’s argument additional trial court’s exclusion the records violated constitutional rights right present against and his a defense the imposi punishment, tion of capital Supreme United States Court has stated that a “disposition defendant’s make a well- adjustment behaved and peaceful prison” life in is a rele- sentencing factor in determinations. South Skipper vant Carolina, 1, 7, U.S. 106 S.Ct. 90 L.Ed.2d (1986). However, at a may evidence be before admitted hearing, trial court must determine sentencing whether on the question and admissible evidence “relevant 9711(a)(2). § Business imposed.” sentence to be Pa.C.S. institutions,26 records, non-profit records from which include are: if the custodian or other wit-
competent qualified evidence identity preparation, ness testifies its the mode its *61 regular in of at or and if it was made the course business act, event, if, time of near the condition or and tribunal, information, of method opinion of sources of as to its admis- preparation justify and time were such sion. 808(6) (amended 6108(b); §
42 also see Pa.R.E. Pa.C.S. 2001 records to be certifica- by to allow business authenticated tion).
Here,
has never accused the trial court of
appellant
erroneously ruling that an individual needed to authenticate
Mills
before
could be
admissi
they
Glen
records
deemed
Instead,
rules should
appellant argues
evidentiary
ble.
he
reliable
prevent
not
introduction of
feels is
operate
what
to the
sentencing
being presented
and critical
evidence from
not
this
jury.27
obliged
argument,
Counsel was
invent
novel
6108(c).
§
26. 42 Pa.C.S.
only
Appellant’s
support
proposition
for
Green v. Geor-
cited
is
95,
2150,
curiam)
(1979)
gia,
60
(per
442 U.S.
99 S.Ct.
L.Ed.2d 738
Wood,
(9th Cir.1996). First,
Rupe
93
1441
this Court is
v.
F.3d
obligated
Hall
to follow the decisions of the lower federal courts.
Parole,
(2004).
Pa.
&
Pa.
A.2d
Bd.
Prob.
of
Green
Second,
distinguishable,
readily
it
concerned the admission
hearing
penalty
petitioner
participate
of
at a
evidence
did not
appeal
propriety
in the murder.
was the
of the exclusion
issue
co-defendant,
petitioner’s separately
from
tried
who
a statement
solely
mur-
responsible
admitted to another individual that he was
Green,
dering
pair
raped.
victim
had
that the
442 U.S.
though
may
Even
have
in a lesser
S.Ct. at 2151.
the statement
resulted
petitioner,
originally
sentencing
sentence for
it was
excluded from his
Georgia
exception
hearsay
not have a
trial because
did
for statements
Id.,
against
Supreme
penal
which be yet accepted any has tribunal. controlling is, furthermore, Appellant prejudice ill-suited demonstrate from the exclusion Glen Mills records when found four aggravating factors28 and no factors.29 mitigating Most notably, appellant’s sentencing jury opted any not to find mitigating after appellant’s presentation arguably factors more mitigation than compelling delinquency evidence his school namely, from the mother of testimony appel- records — lant’s child and his father depicted appel- cancer-stricken lant family as a man. loving proved Because has not his merit or argument prejudiced, has that he was he is not due this claim. any relief on Investigation Presentation
C. Mitigating Evidence30 next Appellant claims that his trial counsel inef fective for failing investigate, develop, mitigat and present ing alleged evidence of his organic damage, brain traumatic childhood, positive and prior adjustments to incarceration. counsel, contends, Direct appeal subsequently failing ineffective for to argue trial counsel’s ineffectiveness. *62 in unstructured environment he his neglected by which (2) parents; his dysfunctional psycho- childhood influenced his sentencing reversed for and remanded a new trial. Id. at S.Ct. at 2152. appellant 28. killing found that in committed a while the 9711(d)(6); perpetration felony, § of a Pa.C.S. in of the commission offense, appellant knowingly the grave a created risk of death to victim, 9711(d)(7); person another addition to § in the 42 Pa.C.S. appellant significant history felony involving has a of convictions the 9711(d)(9); person, use or threat of § violence the 42 Pa.C.S. and killing perpetration drug the the committed while in of a 9711(d)(13). felony, § 42 Pa.C.S. Appellant unsuccessfully presented following mitigating factors: 29. convictions, significant history prior defendant no of has criminal 9711(e)(1); § 42 crimes, age Pa.C.S. of the defendant at the time 9711(e)(4); § mitigator, and catchall Pa.C.S. 42 Pa.C.S. 9711(e)(8). § Appellant’s claim XII. (3) im- his brain development; organic and emotional
logical control; (4) adjusts he and explain poor impulse his pairments to a favorably structured environment. and that trial counsel never researched
Appellant asserts childhood, trial coun- citing of his uncovered evidence difficult matter any mother or brother on sel’s failure interview his limited of his father and questioning and trial counsel’s child. investigation, appellant mother his lack of of This learning appellant’s from argues, trial counsel prevented her and out of operated speakeasy illegal gambling mother a his and his home. contends that mother’s activities Appellant him little leav- parental supervision, father’s absence left with his ing siblings. him in the care of primarily his he Appellant claims that due to childhood environment problems. proof For asser- developed psychological tion, Dudley, offers a 2001 declaration from Richard signed he M.D., caused him stating adequate parenting that his lack of immature, extremely be developmentally delayed, impul- sive, ar- Additionally, appellant and in self-esteem. lacking Crown, that he that Dr. found gues Barry neuropsychologist, intellectual with significant impairments, had emotional and control, impaired impulse stemming from extremely possibly that trial counsel syndrome. Appellant argues fetal alcohol for to consult with a mental health failing was ineffective organic damage. evidence of his brain expert develop also Appellant reiterates that the Glen Mills records were they in positive established his potentially mitigating environments, he response performed to structured since well Player” voted “Most academically and was Valuable juvenile his time in detention. during school basketball team investigated maintains trial counsel should have juvenile performance facility at the advance trial support To presented mitigation records evidence. claims, validity provides of these “declara- signed counsel, summarily tion” trial trial counsel from which failing adequately prepare penalty phase admits to trial, from his claiming lapse *63 of resulted a less than murder. expecting first-degree verdict proffer appellate includes no declaration or other respecting counsel. arguments
The contends that appellant’s Commonwealth ignore the substantial mitigating prior evidence counsel actually on his presented appellant behalf and accuses attempting retry case on a sentencing theory new Contrary appellant’s law. current hindsight mitigation theory, argues, Commonwealth the evidence presented at the that he sentencing hearing indicated Moreover, caring family. raised the Commonwealth out that trial no points suspect counsel had reason to upbringing. had traumatic if the jury Even had heard evidence of appellant’s supposedly “unstructured envi- ronment,” the Commonwealth it is posits, doubtful would have viewed such evidence as mitigating, especially many people when are raised in such environments and do not become murderers.
The Commonwealth further notes that neither appellant’s experts explained how be they may assured that appellant’s mental state their during evaluations it same as was eight years before, when appellant murdered Lloyd. William Moreover, the Commonwealth deems it significant appel- experts lant’s attempt did not to explain contrary two mental health examinations of appellant, one three years prior murder during and one the penalty phase of appellant’s trial. only Not did these more timely mental health exams indicate no signs of brain damage, argues, Commonwealth but appellant’s argument is also directly contrary to his testimony at trial that he had a IQ minimum of 125. In the face of appellant’s self-proclaimed high intelligence, the Common- wealth surmises that the jury appellant’s would have viewed brain claim damage with disdain. argument As pertaining records, Mills Glen ar- gues that that aspect of the claim was previously litigated direct appeal. rejected PCRA court this claim a hearing. without In view,
the PCRA court’s appellant’s mitigation claim was noth- more ing than “Monday morning of a thor- quarterbacking”
580 counsel. PCRA presentation by mitigation reasonable
oughly court also noted that at 18. The slip op. ct. claim his support did not current belated sentencing witnesses trial and that in a home without structure grew up that he cognitive had suspect appellant no reason to counsel had defects. evidence, mitigation to respect penalty phase
With
or to
investigations
reasonable
duty
has a
to conduct
counsel
investigations
that make certain
make reasonable decisions
Sneed,
318, 899 A.2d
v.
587 Pa.
superfluous. Commonwealth
425,
v.
Pa.
856
Malloy,
1067,
(2006);
579
Commonwealth
1079
Gribble,
647,
v.
(2004);
Pa.
767,
580
A.2d
784
(2004). Likewise,
Court
Supreme
U.S.
863 A.2d
475
duty
has
capital
for a
defendant
a
recognized that counsel
has
back
of the defendant’s
thorough investigation
“conduct a
to
362, 396, 120
Taylor,
529
S.Ct.
ground.” Williams
U.S.
(2000).
makes a
1495, 1515,
counsel
We
here where
presented
to the one
claims similar
hearing
in a
demon-
had an
PCRA
petitioner
opportunity
Thus,
claim,
so.
merit of
but failed
do
strate the
his
affirmed the denial
Bridges, 886 A.2d
this Court
petitioner’s
claim
his trial counsel was ineffective for
failing
mitigation
present
evidence
his traumatic child
after
hood
court
counsel’s
hearing
PCRA
conducted
Saranchak,
stewardship. See also Commonwealth v.
581 Pa.
(2005)
303-04
court’s
(affirming
A.2d
PCRA
presenta
denial of claim that trial counsel
was ineffective
of mitigation
evidentiary
tion
after
court
evidence
PCRA
held
(same).
Williams,
Brown,
hearing);
In
A.2d at 520-21
1150-51,
A.2d at
Court affirmed
denial
trial
petitioner’s
failing
claim that
counsel was ineffective
mitigation
concerning
evidence
brain
present
organic
damage and traumatic
no
Although
evidentiary
childhood.
*65
case,
hearing
held in the
was
the PCRA court
afforded
petitioner
opportunities
possible
several
to demonstrate the
of
merit
his claim during
the court held to
hearings
for an evidentiary
determine the need
at 1151 n.
hearing.
Id.
Conversely,
PCRA
has
evidentiary
when
court
held no
hearing on
a claim
trial
in failing
counsel was ineffective
present
evidence,
this sort
mitigation
essentially
but
found counsel effective as a matter of
on the mere
law
pleadings, we have remanded the matter for a
hearing
least
resolvable,
in cases
deem
where
either
question
we
Gribble,
on
way,
the pleadings.
Here, court evidentiary PCRA did not conduct an hearing on the reasonableness of trial investigation. counsel’s We, therefore, possess only the trial record to evaluate substance of appellant’s mitigation appellant’s claims. During case, mitigation trial counsel presented from his testimony sister, father, paramour, and childhood friend to demonstrate appellant an intelligent generous was and man. No testimony at the penalty hinted at hearing the traumatic upbringing appellant claims his trial counsel failed to uncover. In appellant participated in a court-ordered mental health evaluation he where was labeled as a Mixed having Personality and exhibiting average Disorder was described as intelligence, fair social judgment, and some tenden- impulsive Psychological cies. Evaluation De by Jules Cruz at 2. This evaluation not presented mitigation was at appellant’s hearing. other mental health evaluation
Although had one appellant case, in his conviction immediately following psychologist, the licensed Lawrence cooperate refused with attempted appellant’s M.Ed. Trial counsel introduce Bryne, being given Mills after sentencing hearing, Glen records just hearing, before the but copy prosecutor them from so without a witness to authenticate prevented doing was them.
Now, medical his claim opinions supporting offers declarations, in from Dr. damage, signed of brain the form Crown, Dud- Barry a licensed Dr. Richard psychologist, each the conclusion of ley, psychiatry, post-dating licensed signed also offers decla- appeal. Appellant direct appellant’s father, sister, mother, asserting rations from his and brother them question appellant’s trial counsel did not about childhood, allegedly may appellant’s have contributed which trial notably, appellant’s medical condition. Most purported he essentially admitting counsel a declaration signed ineffective. summarily appellant’s the PCRA court dismissed
While meritless, claim as are unable to reach such underlying we no held on factual judgment hearing where trial investigation. the reasonableness of counsel’s proffer not as as in some Although proffer strong in this case is others, a case put mitigation counsel here did which *66 cannot attempted positive light, in a we portray appellant trial with the court that the claim agree respecting PCRA The deficiencies in appel- counsel fails as matter law. proffer certainly are fair both as a matter of game, lant’s credibility assessing question. and as matter of the ultimate they only be after a But are matters should assessed family hearing credibility appellant’s experts, where the members, properly and his trial counsel can be evaluated. find that the course is to remand Accordingly, appropriate we claim to the court for an layered ineffectiveness PCRA hearing. predetermi- In make no evidentiary remanding, we claim; ultimate of the concerning strength nation for the court in the first instance. remind PCRA We well, parties, as that this claim is layered, and that appellant bears the burden of proving appellate counsel ineffective.31 D. During Penalty Prosecutorial Misconduct Phase32
Appellant accuses the prosecutor of engaging misconduct during junctures numerous during his penalty phase argu- Then, ments. appellant attaches these claims a skeletal layered claim. ineffectiveness We each will address of these turn, claims in after a brief of the focus of analysis review our in like claims.
When arguing to the jury during the sentencing phase trial, of a defendant’s a prosecutor must be afforded reasonable may Williams, latitude and invoke oratorical flair. 522; Stokes, A.2d at Commonwealth v. 576 Pa. (2003). A.2d 231-32 During sentencing phase, the prosecutor has more latitude to make arguments because the presumption of innocence is longer no applicable. Common wealth v. (1998). 554 Pa. Rompilla, 721 A.2d
1. Prosecutor’s to His Oath Reference Appellant argues first impropriety follow ing statement of prosecutor:
12 years ago I took an oath to uphold the law and have done that consistently for 12 years. About a week and a half ago you were asked to do the same thing, uphold the law and one every you is posed the can question, you and would in the you appropriate circumstance impose the death penalty. And I submit to you, ladies and gentlemen, this is the appropriate circumstance.
N.T. 76. contends that the jury 7/17/1995 more predisposed to believe the prosecutor’s words when he referenced the oath he took. Appellant asserts prosecutor vouched personally and professionally for the ap- 31. We make no determination on argument the Commonwealth’s concerning sub-claim previously Glen Mills records is litigated, noting that the argument Commonwealth is free to raise the on remand. Appellant's claim XIII. *67 that the sentence.
propriateness Appellant poses the death to his served to remove prosecutor’s experience reference his appellant from for sentence. jurors responsibility Finally, to oath jurors’ that the reference the prosecutor’s maintains the the death implied jury compelled that was return sentence. contentions, citing dismisses appellant’s
The Commonwealth no finding jury error in the precedent asking Court’s the As to by promise prosecutor’s abide its to follow law. the oath, to his the the argues reference Commonwealth own the recollec- simply placed prosecutor’s reference was beside if jury’s tion the Even the remark could prosecutor’s oath. himself, the vouching be Commonwealth construed that of the prejudice light maintains cannot show four found his failure aggravating jury circumstances the single mitigating to establish a factor. objection court ruled that each raises PCRA com- prosecutor’s argument the fair
respecting closing was ment record not error. on the and did constitute Rollins,
In 558 Pa. 738 A.2d (1999), error asked prosecutor this Court found no where jury promise to “live to” the it made oath up under Here, prosecutor’s jury request follow law. nearly Although prosecutor placed request the same. himself, recalling after the oath he took the prosecutor’s simple to both more nothing reference oaths was than doubt, comparison. No trial counsel could an have leveled objection to the the prosecutor personalized argu- extent obliged every lodge any ment. But counsel objection, jury particularly given reminded evidence, attorneys’ arguments argument. were not but It cannot be said that the reference in this context was so an ineluctably prejudicial required that the Sixth Amendment objection. Aggravating Fourth Circumstance Reference argues prosecutor next that the committed invoke suggesting
misconduct should *68 society. death in this case to The Common- penalty protect quotes the is taken out passage appellant wealth retorts that argues of that the prosecutor’s context. The Commonwealth remarks to the fourth proffered aggravating were related the in circumstance that murder was committed connection felony. agree. with a We drug passage appellant quotes, prosecutor
Just before the argued: this, in and aggravating fourth circumstance ladies it is
gentlemen, makes it the most heinous because probably case, everything of and it this entire indicative characterizes thing that this this a place guy whole took because wanted place to drugs. deal his however, 83. out the Appellant, only singled
N.T. 7/17/1995 of prosecutor’s subsequent underlined section argument: IAnd want to listen to the you aggrava- that definition of shrouded, ting circumstance because the whole case is decay, shrouded in that that cancer that is this decaying city and part every that state and what’s pervaded aspect and gave this case motive man to complete to this blow away Lloyd. William And that’s the legislature what said that is so heinous that when man does in and of itself just cause to pursue the ultimate of death. penalty Id. at 83-84. evaluating prosecutor’s
When statement context of his argument on fourth it is aggravator, evident that prosecutor merely emphasized Lloyd that William sense- was lessly a drug dispute, killed over common circum- enough stance that the Assembly specifically ag- General created an gravator Moreover, for it in capital cases. the prosecutor’s drug reference to crime decaying that is was Philadelphia an isolated reference of the not a purpose aggravator, pervasive image repeated throughout argu- the prosecutor’s ment. to Victim References
Appellant accuses the in prosecutor intentionally flaming the of the passions jury by reminding it continue rights experiences appellant
constitutional will Lloyd ap- cannot. experience, Specifically, but that William the following passage: cites pellant and think about the you But do think about case when you may Lloyd under which William shot circumstances 12 people the fact this man does have consider courtroom, in a nice judgment night orderly sitting fair-minded, impartial taken and a being with a record very, competent of a representation very and the Judge fact of the United States and attorney defense Lloyd didn’t have that Pennsylvania constitutions. William gunned when he Remember that. down. *69 of in he penalty prison,
And if Mr. does a life Carson serve general be He in going prison. going is to in the is to be be and his freedom will be population. He will confined restricted, in away. general population taken But he will be and his get weights and he his cable TV he will have will and he eat 8 meals get and his chance to exercise will he will to a he to And he be able day and be able shower. will will cry is a far from the trash many, things do which many All Lloyd in he was of the that William fell when shot. heap now, Carson, rights rights he has Mr. are will him. follow line argument
Id. at this of According appellant, 77-78. to it belief that misguided a inappropriate perpetuates because many criminals have too protections. convicted all *70 something out of themselves. And not to just be people obey who the people law but prevail who and the go above law.
There are thousands of them prevail who and any argument say to that Mr. Carson didn’t have that a opportunity slap in the face to one of any those children managed who succeed, to have managed to climb out of gutter the and make something of themselves instead of a bullet putting through some 53-year-old man’s head.
N.T. at 82. Appellant contends that it is irrelevant 7/17/1995 people whether other succeeded under similar circumstances. 588 Eighth that the violated his Amendment
Arguing prosecutor appellant prevented that remarks rights, asserts above to his giving from full effect evidence. jury mitigation merit, appellant’s agree find claim is without as we with We a expressly permitted that this Court has Commonwealth See, Rollins, e.g., mitigation rebut evidence. prosecutor (no stating in that mitigation A.2d at error defendant’s verdict); weight of too little to influence the evidence was Basemore, (prosecutor permitted at 869 A.2d not age that defendant’s and did constitute dispute occupation Duffey, Commonwealth v. evidence); mitigating Pa. (no (1988) argument harm prosecutor’s 548 A.2d in not fac mitigation that defendant’s should constitute epilepsy tor). appellant’s The prosecutor permissibly argued against offering mitigator, appellant catchall testi supported which monetary from his mony family appellant provided sup for his friends. port family and
5. to Appellant’s Opportunities Reference Rehabilitation
for In claim penultimate involving penalty phase ar prosecutor that the referred to gument, appellant claims facts and rehabilitation that by referring therapy not evidence objects to the appellant undergone. Appellant prose had also that, nine theory his murder during years cutor’s between conviction, and most recent conviction other “building his time” “biding arrogance.” Appel and wave of 73; Appellant posits lant’s Brief at N.T. 7/17/1995 argument prevented considering aggra from actually vating mitigating presented. evidence that was The facts prosecutor argued denies Commonwealth evidence, previous adjudications appellant’s juvenile facility commitment rehabilitation were made facts, these record. From Commonwealth part infer argues that one could would receive rehabilitation his commitment. during no gives weight also characterization *71 prosecutor’s argument suggesting appellant that waited for bystander. nine to Mil years an innocent before,
As said to prosecutor permitted we have argue reasonable from the evidence. Common inferences (1995). LaCava, wealth A.2d Pa. of appellant’s previous juvenile Evidence crimes as a was into sentencing admitted evidence at his hearing, including separate mention of his to two commitments Glen Mills follow ing adjudications delinquency, N.T. at 50-51. 7/17/1995 evidence, it for Based on was reasonable the to prosecutor refer appellant’s to opportunities unrealized rehabilitation juvenile. while in detention as a Lastly, we consider prosecutor’s comment appellant that his time” “biding was more a reference to nothing than failure to im prove himself following juvenile his convictions. Counsel was to obliged object the prosecutor’s argument.
6. Victim Impact Appellant’s final claim prosecutor’s relates reference Lloyd William not have the opportunity bury would parents. He argues conjunction in with testimony trial, from Lloyd’s prosecutor’s William mother argu- ment improperly engendered sympathy for victim. Appel- lant asserts impact that victim evidence neither admissi- ble nor a capital relevant case at time of his trial in rejects
The Commonwealth the notion that the prosecutor made this statement to create sympathy and declares that it made response testimony defense witness get would not to see his children if he again were Furthermore, sentenced death. argues that appellant could not be prejudiced by prosecutor’s jury, statement since the no mitigating which found circum- stances, did not to weigh aggravating have factors versus a mitigating factor. son,
The mother of appellant’s Johnson, Aisha made a passionate plea to spare appellant’s during life the sentencing opportunity had not had the lamenting
hearing, *72 her growing up she did not want son his son and that know 57. response, N.T. In knowing not his father. 7/17/1995 argued closing appellant the in his that while would prosecutor not have again, Lloyd like children William would to see his Id. at 82-831. There- his parents. the to survive opportunity fore, argu- rebuttal permissible the was prosecutor’s argument of defense. mitigation ment to this emotional aspect appellant’s See, Rollins, e.g., at 449. 738 A.2d Charge33
E. Simmons his trial was ineffective According appellant, counsel a Simmons instruction the request following prose- failing and, thereafter, direct counsel argument appeal cutor’s closing not raising ineffective for trial counsel’s error. was injected not the issue argues that the should have prosecutor significant history the dangerousness arguing of future while dangerous- because future felony aggravator, of convictions aggravating ness not circumstance. Because statutory a jury weigh requires aggravators the Commonwealth Eighth and his Amendment mitigators, appellant argues, the argument “weigh- an that skewed rights by were violated Brief process Appel- at 76. ing Appellant’s towards death.” the the door” to prosecutor “opened lant further claims that the could argued appellant the instruction when he amenities Id. at 77. utilize in prison. continues, instruction,
The absence of Simmons a a the trial court: process constituted violation of due because (1) acting to be a sentencer penalty imposed by allowed his law; (2) of his understanding an erroneous the violated upon by choosing a liberty being jury interest sentenced between death; (3) life without and violated the parole proscription the against being upon sentenced to death based information not also explain. Appellant defendant was rebut allowed argues Amendment was he was Eighth violated when did not have and accurate by complete sentenced information it. before Appellant's IV. claim
The ad- disagrees prosecutor Commonwealth In- appellant’s dangerousness closing. dressed future stead, prosecutor Commonwealth claims was 9711(d)(9) discussing § intent behind Pa.C.S. legislative “in (significant history aggravator), violent felonies no way [appellant] Com- implied posed danger.” future monwealth’s Brief at 74. did not prosecutor Because issue, make con- future an dangerousness required, especially tends that a Simmons instruction not since an at the request did such instruction sentencing hearing. claim, denied that the noting PCRA court imprison-
“jury
amply
informed
the life nature
including
prosecutor.”
slip op.
ment-even
PCRA ct.
*73
Moreover,
20.
the PCRA court held that
did not
prejudiced
charge.
establish that he
the absence of the
by
was
Carolina,
154,
In
v.
512
114
Simmons
South
U.S.
2187, 129
(1994)
133
of
plurality
S.Ct.
L.Ed.2d
a
(plurality),
that,
if
Supreme
United States
Court would have held
a
prosecutor
capital
a
future
argues
dangerousness
defendant’s
trial,
at a
may
be
sentencing
request
defendant
and should
granted a
in
penalty
prison
instruction
of life
will
170,
render the
114
ineligible
parole.
defendant
Id. at
S.Ct. at
This Court
2197.
has held that a Simmons instruc
(1)
tion
only
is
if
occur:
the prosecutor
mandated
two events
issue;
place
must
dangerousness
the defendant’s future
and
(2) the
must
requested
defendant
have
that the trial court
issue the
v.
580
Dougherty,
instruction. Commonwealth
Pa.
183,
(2004),
denied,
-,
31,
860
37
A.2d
cert.
-U.S.
126
63,
Jones,
(2005);
S.Ct.
object argument by prosecutor: to the made following felony history is that aggravating
The third circumstance they legislature passed were convictions when Carson, enough enough. you Mr. you and to me is saying not to let your going anymore people chance. are had We be injured. felonies, ladies,
3 of them out gentlemen, two came of them guns, the same circumstance with with knives. One enough. 14-year-old. Enough prosecutor N.T. in this focuses instance 7/17/1995 ties his history felony of violent convictions and into purpose failure to reform his conduct served v. Commonwealth In circumstance. statutory aggravating denied, cert. May, 551 Pa. 286, 44, (1998), 47 710 A.2d 525 U.S. (1999), 1078, 818, found 119 S.Ct. 142 L.Ed.2d this Court 676 a Simmons not charge warranted because violent by the fo aggravator argued prosecutor felonies which was conduct, danger on the not his past cused defendant’s future have held not dangerousness ousness. We also future if implicated prosecutor argued where a the defendant law, to the he going was not conform conduct should Douglas, be to live. Pa. allowed (1999) (Opinion Announcing Judgment 737 A.2d denied, cert. Court), U.S. S.Ct. (2000). certainly sought L.Ed.2d 252 Counsel could have the Simmons case; however, principle given extend *74 prosecutor’s remark, in of light precedent, context our for appellant’s trial counsel cannot be deemed ineffective object to argument. to failing
“A fair re attorney performance assessment of every distorting be to eliminate the quires that effort made hindsight, to reconstruct of coun effects of the circumstances conduct, sel’s and to the from challenged evaluate conduct Strickland, at the time.” at perspective counsel’s 466 U.S. however, 726, conduct, (2002). L.Ed.2d Trial must 151 670 counsel's trial, prevailing the be evaluated under the law at the time of which was plurality non-precedential in Simmons.
598 Here, fact that 104 in addition to the S.Ct. at 2065. counsel’s any assessment of Simmons opinion, was a plurality the difference between acknowledge must the performance Simmons appel- in and that that succeeded which argument Simmons, prosecutor argued In the belatedly lant forwards. danger- consider future jury should the defendant’s considering aggravator punish- as when ousness a stand-alone Simmons 512 114 did ment. S.Ct. at U.S. to another argument pertaining aggravating whether
address
of
raise an
future
might
dangerousness
circumstance
inference
then,
Simmons
trigger
would or should
rule. Since
which
course,
a
Kelly
expanded
of
has
the law
include
broader
interpretation of
future
implies
dangerousness,
evidence
that case
not decided until
after
direct
but
was
well
was
An
cannot be
ineffec-
appeal
complete.
attorney
deemed
anticipate
change
in the
failing
development
tive
a
See,
Sneed, 899
e.g.,
law.
A.2d
1076.35
misapprehends
analysis
35. Madame
Baldwin’s
our
Justice
concurrence
surrounding
appellant's
of
state of the
at the
of
law
Simmons
time
Christy,
trial. The
cites
concurrence
Commonwealth v.
540 Pa.
(1995) (plurality),
proposition
A.2d
877
this Court
for the
interpreted
require
meaning
on
of
Simmons
an instruction
life in
capital
prison
dangerousness
whenever a
defendant’s future
is "at
requested
Respectfully,
issue”
the defendant
the instruction.
certain,
it,
analysis is not so
as the concurrence would have
to second-
counsel,
court,
guess
Christy
only
was decided
a six-Justice
with
joining majority opinion.
Additionally,
three Justices
the concur-
recognizes,
Christy
rence
issue in
whether the
rule announced
applied retroactively,
in Simmons
and not the extent to
Simmons
which
grounds
object
aspects
prosecutor's
established
of
various
argument.
penalty phase
agree
importantly,
More
we cannot
that the Simmons case alone
required
argument
made clear
instruction
that an
where
on a
aggravating
may
implied
dangerous-
distinct
circumstance
have
future
ness, such as in the instant case
asked the
where
(d)(9)
Indeed,
aggravating
to find the
circumstance.
U.S.
Supreme
recognized the'difficulty
ascertaining
Court itself
in
the reach
array
years
Simmons
after it
of
three
was decided:
views
“[t]he
was,
expressed
suggests
in
itself
the rule
there
Simmons
announced
light
precedent,
among
'susceptible
this Court’s
to debate
reason-
Netherland,
151, 159-60,
able minds.'”
U.S.
O’Dell
S.Ct.
1969, 1975,
(1997) (citations omitted). The
this statement of the law was after conclusion attorney appellant's appeal. direct If no at the time of trial reasonable (d)(9) concerning argument acquiesced aggravator would have ground dangerousness, it an of future as the on the raised inference suggests, Supreme U.S. concurrence one must conclude that the then Kelly superfluous. Court’s decision in Appellant’s claim XV. Constitution, of the U.S. and Article 9 and 13 of Sections Constitution, Pennsylvania juvenile adjudication that a could *76 aggravate be used to a murder at the time he conviction was adjudicated delinquent 1986 and he Finally, 1987. asserts (d)(9) of the expansion aggravating circumstance is unreasonable, arbitrary, unprincipled, which violates Eighth guarantees and Fourteenth Amendment of heightened procedural safeguards in capital sentencing. argues Commonwealth claim previ- is
ously litigated, challenged since he of the applicability aggravator appeal. on direct The PCRA court noted that appellant now offers a different argument respect with to the (d)(9) circumstance, aggravating but nevertheless declared appellant’s claim previously was litigated.37 appeal,
On direct appellant argued that trial counsel was ineffective for failing argue the sufficiency evidence (d)(9) used to aggravating circumstance. Carson support I, 741 A.2d at Appellant’s 706-707. instant ineffectiveness arguments are obviously distinct from those he advanced Collins, review, thus, direct See we will them. review 888 A.2d at 573. begin by
We
noting that an error in
an
submitting
aggravating circumstance is harmless
the jury
where
finds
multiple aggravators
and no mitigators. Commonwealth v.
Lester,
644,
(1998).
554
997,
Pa.
722 A.2d
1006 n. 15
In any
event, appellant has failed to
acknowledge
this Court has
rejected
(d)(9)
repeatedly
argument
that the
aggravating
Miller,
circumstance is unconstitutionally vague.
In
746 A.2d
604,
at
this Court noted that
this argument
previously
was
rejected and
revisit the issue. See also Common
declined
Williams,
wealth v.
207,
1167,
(1999);
557 Pa.
732 A.2d
1185
Hill,
Commonwealth v.
291,
642,
(1995),
542 Pa.
666 A.2d
654
denied,
cert.
1235,
1880,
517 U.S.
116 S.Ct.
596
485,
Beasley,
v.
(1986);
504 Pa.
475
697-98
(1984). Moreover,
730,
to set-
appellant’s approach
A.2d
obliged Trial counsel was not
tled
novel.
precedent
theory.
precedent with this
challenge settled
new
Facto
and the
The Ex Post
prohibits Congress
Clause
for an act
punishment
impose
from
laws which
passing
states
committed or
the time it was
punishable
was
previously pre
than
punishment
additional
imposes
Parole,
v. Board
Prob. &
582 Pa.
Cimaszewski
scribed.
(2005)
(quoting
on other
(plurality
grounds)
868 A.2d
Graham,
24, 28,
960, 964,
v.
S.Ct.
Weaver
U.S.
words,
(1981)).
law, in other
post
An ex
L.Ed.2d 17
facto
before it
enacted and burden
that occur
applies
events
Cimaszewski,
Gryger
at 423.
In
868 A.2d
the offender.
(1948),
Burke,
Here, appel- based on aggravator the found the for crimes that not considered adjudications lant’s were time he committed deliberations the capital sentencing effective- assessing For of counsel’s purposes those crimes. ness, as to Gryger analogous case warrant significantly the theory novel fail. appellant’s conclusion that would the (d)(9) circum- aggravating to the Appellant’s challenge final broad, expand- has claim that this Court unspecific stance is a manner in arbitrary the in an application aggravator the of ed Since Fourteenth Amendments. Eighth of the and violation explanation particular fails to this claim with couple an juvenile adjudications represents why as to the use of his unsuc- aggravator, excluding of the arbitrary expansion above, why does not he believes explain arguments cessful claim, reject counsel this this obliged was forward we argument well. Drug Felony Aggravating Circumstance,
G. 9711(d)(13)38 §
42 Pa.C.S.
Appellant submits that
counsel
appeal
direct
in the
argued
manner which he
that
ineffective
Pa.C.S.
9711(d)(13)
§
inapplicable
to this case. Specifically, ap
pellant argues that direct
counsel should have asserted
appeal
that
“drug
evidence of a
turf
did not constitute a
war”
Act,
violation of the
Controlled Substance Abuse
finding
prove
aggravator
con
necessary
issue.
appellate
tends
for not informing
counsel was ineffective
necessity
of the
construe the
strictly
aggravating
Court
factor,
establishing
insufficiency
support
facts to
9711(d)(13),
of
elements
Section
arguing
jury’s
finding
requirements
violated
Due Process Clause
Amendment,
Eighth
and the
which
each
mandate that
element
be proven beyond
must
a reasonable
aggravator
doubt.
claims
claim has been
litigated and the
previously
agreed,
PCRA court
but our
in Collins
us from
holding
prevents
employing
particular
Collins,
See
direct
terminology.
appeal,
A.2d at 573. On
appellant argued that there were insufficient facts to support
(d)(13)
circumstance,
because the
aggravating
Common-
wealth did
offer
that he was
in the
engaged
evidence
sale
I,
drugs.
Carson
Despite
gloss,
appellant’s
ineffectiveness
crux of
argument remains the same.
previously
We
found that the
(d)(13)
evidence
sufficient to
the
aggravating
was
establish
circumstance, id., and,
such,
as
prior
defer to our
evalua-
we
Collins,
tion of the claim. See
Court’s over, holding, to our prior appellant even if we invalidate were in sentenced to death prejudiced being cannot he show was no factors and aggravating the found three other when Lester, at n. 15. 722 A.2d mitigating circumstances. See Sufficiency Aggravator Notice of H. of 9711(d)(6)39 §
42 Pa.C.S. for ineffective argues prior that his counsel were the circumstance failing properly argue aggravating 9711(d)(6) of a (killing § perpetration defined in 42 Pa.C.S. the jury’s been from consider- felony) should have excluded ation, Pa. comply did not because the Commonwealth with 352,40 right to due appellant’s process in violation of R.Crim.P. the Common- Although objected of law. trial counsel notice of its intent to offer inadequate provided wealth circumstance, was argument claims his aggravating appellant accompanied insufficient because no citation case law objection argue aggravating counsel failed that the trial Mo- based admission of improper circumstance was on sentencing during out-of-court statement nique Wylie’s Thereafter, counsel was inef- appellant says, appellate phase. direct appeal. fective for to raise issues failing did, hold, The us to as PCRA court Commonwealth asks litigated. claim This Court previously given indeed addressed the of the notice adequacy instant circumstance on direct regard aggravating with of found that had constructive notice appeal. We (d)(6) aggravating the Commonwealth’s intent to introduce arraigned robbery aggra- circumstance when he Appellant’s XVII. claim provides: 40. Rule which has since been renumbered Rule attorney Aggravating shall file a of for the Commonwealth Notice Circumstances the Commonwealth intends to submit sentencing contemporaneously provide hearing and the defendant copy Aggravating Notice with a Notice of Circumstances. such attorney arraignment, unless the shall be filed or before the time aggra- for the aware of existence an Commonwealth becomes filing vating arraignment the time extend- circumstance after for ed the court cause shown. *79 occur- charges assault in connection the incidents with vated I, of ring Lloyd’s on the William murder. Carson night at claim is appellant’s layered A.2d 705. ineffectiveness While claim underlying previously, from the we addressed distinct Collins, 888 A.2d at we decline to revisit the Court’s see on analysis underlying appellant’s argument the claim when claim 574. substantially is the same. See id. at underlying argu- though Even Court did consider to state- Monique Wylie’s ment with the admission respect ment, he does not cite statement is specifically which to, referring excluding sentencing hearing a citation page only generally the trial court is transcript where explaining circumstances. Com- aggravating mitigating Brief 44.41 Appellant’s with N.T. at pare 7/17/1995 is merit. Consequently, appellant’s claim without Jury Responsibility I. Instructions Determining Death for Sentence42 next Appellant claims the trial court’s instruction jurors to erroneously they led believe that did not have for responsibility determining ultimate appropriateness sentence, First, death process. which violates his due appellant cites trial court’s statement that the Supreme death Court Governor review a sentence from a He jury. also notes the trial court’s jury instruction that the should law, version, his summation of follow not defense counsel’s because defense counsel remedies for a trial inac has court’s curate statements law. When the trial court thus implied that jury responsible was not his death sen tence, it appellant alleges that caused the less give proffered consideration to his mitigating Appellant evidence. dispel denies the trial court’s instruction necessary chamber,” idea prosecutor that the “is not an execution Appellant’s Brief because such a statement self- Appellant actually transcript being 41. cites date recorded years sentencing two full after his trial. Appellant’s XVIII. claim to a ultimately arguments attaches these
evident. claim. boilerplate layered ineffectiveness the trial court argues appropriate- The Commonwealth *80 prosecutor counsel’s reference to the corrected defense ly chamber.” The trial court’s correc- the “execution operating tion, Commonwealth, a to that according explained the when by to death a he is executed by jury defendant is sentenced Moreover, cites Com- injection. the lethal 34, (1990), Pa. 1235 for Beasley, monwealth 524 568 A.2d prosecutor’s that of a proposition approved the this Court has death, if to suggestion that even a defendant were sentenced he would not be executed. Caldwell v. Mississippi, that 472
The PCRA court noted 320, (1985), 2633, 86 231 indicate 105 S.Ct. L.Ed.2d would U.S. but that that the trial court’s statements ruled improper, were jury’s findings aggravating and circum- mitigating the trial by the prejudiced stances showed court’s instruction. Caldwell, Supreme
In
the
States
United
Court evaluated
prosecutor’s
counsel’s
propriety
response
the
to defense
the
sentencing
phase argument
repeatedly emphasizing
responsibility”
deciding
had “an
whether
awesome
Id.
life in
at
prison
sentence the defendant
death.
by
prosecutor
responded
I’m in complete disagreement approach with the defense has I don’t think it’s I think I think taken. fair. its unfair. Now, you lawyers they know better. would have believe you’re they they to kill this man going know — God, decision is not the final decision. your My know can Your you job They how unfair be? reviewable. know it. (citations
Id. at 325, 105 2637 marks quotation S.Ct. at omitted). objection to the Despite prosecu- defense counsel’s prosecutor the trial court in the argument, acquiesced tor’s 325-26, Id. continuing his in the at 105 argument same vein. argu- at found High prosecutor’s S.Ct. 2638. Court unacceptable, constitutionally ment as it concluded that “it is a impermissible rest a death sentence on determination has made a sentencer who been led to believe that determining de- responsibility appropriateness Id. 328-29, fendant’s death 105 S.Ct. rests elsewhere.” acknowledged Court its decision While Califor- Ramos, nia v. U.S. S.Ct. 77 L.Ed.2d (1983) juries (capital sentencing may be informed of ability of California’s a sentence of life Governor commute imprisonment), approving the distribution accurate post- the Caldwell sentence it jury, information disapproved prosecutor’s inaccurate implications regarding post-sentencing procedure and observed that the was not argument linked to a Caldwell, sentencing valid consideration. 472 U.S. at S.Ct. at 2643. Caldwell,
Evaluating case under this Court has found *81 error a trial jury with court’s instruction to the that:
Now, regard with to death penalty, you know what that implies. line, Somewhere down the if do the you impose penalty, death the case be thoroughly. will And reviewed thorough after may review the death be penalty carried out. I won’t into all the go various that That reviews we have. concern you point. shouldn’t at this
Commonwealth v. Jasper, 281, 196, 558 Pa. 737 A.2d 196 (1999). Jasper The Court found the following particu factors (1) larly in reaching troublesome its the trial decision: court “unduly” the role of the courts emphasized appellate by sug gesting out; that the death might sentence not be carried (2) the jury found two one aggravating circumstances and Id. at mitigating circumstance. its 197-98. This Court stated se rule to per unwillingness adopt a reference that to the appellate process impermissible, is recognized because we that defense argument may counsel’s necessitate a reference to Id. appellate review. at 198. in Notably, Williams, denied, (1998), cert. 554 Pa. A.2d 691 526 (1999), U.S. 119 S.Ct. no L.Ed.2d we found error trial with a court’s instruction a that a defendant had an error occurred at case if he believed
right appeal to trial. case, from the
In instruction resulted challenged the the objection to counsel’s statement that defense prosecutor’s trial in execution chamber. The jury prosecutor’s was not the jury: the objection court the and told sustained is a not an execution chamber. What it is prosecutor a institution Pennsylvania in the State of that certain place those who are injection given in where lethal is to behind to has by jury committed a and when sentence death the and as the Judge supreme been reviewed imposed by the governor. court and place
And of execution which is referred legal the it. not sentencing formal if the find It’s my jury were prosecution’s the execution chamber. (errors Here, trial
N.T. the original). 7/17/1995 explaining jury court’s instruction not aimed how returning much feel for jury penal- should responsibility death, explained but rather trial court the State ty indi- prosecutor, physically executes Pennsylvania, imposes a sentence of The trial jury viduals after death. of a execution explanation place court’s defendant’s procedures be without reference thorough would not Moreover, instruction that occur he is executed. before for away jury did not from the responsibility serve shift death it was not giving appellant by implying sentence decision-maker, feel that the should not suggest ultimate gravely responsible penalty, imply the death imposing not be any imposed by jury might death sentence *82 any carried also did not find Appellant’s jury out.43 During sentencing jury, it 43. court’s formal instructions to the trial weight jury’s emphasized responsibility: further you your I to not for want remember that verdict is here recommen- actually punishment life It fixes the in either death or
dation. imprisonment.... just telling you ought me what think to be done. You’re You're says telling going to The law must. I must me what I'm to have do. impose you bring the verdict that in. factors, proffered mitigating Jasper. unlike the defendant reasons, For these we conclude that the issue underlying claim ineffectiveness is without merit. Sympathy Appellant44
J. for next Appellant accuses the prosecutor making improp- an argument er that the jury should not sympathy consider for appellant during deliberations, its citing prosecutor’s argu- ment that:
Mr. Greene is to going up stand here and he going say everything he can possibly say to get you sympathize as he did with the evidence in this case with this defendant. I you don’t want sympathizing anybody, with or the victim defendant. It’s not a matter of sympathy.
It cannot be a matter of because then sympathy we are thinking guts with our and we can’t do that. It would render system justice our meaningless.
N.T. 77. contends his trial counsel 7/17/1995 ineffective when he object did not argument or seek a court, corrective instruction from the trial appellate coun- sel was ineffective neglecting pursue it on direct appeal. Appellant asserts that the prosecutor’s argument was com- pounded by the trial court’s instruction that: “I don’t want blooded, sound cold but you must decide on the [the case] evidence, not on any sympathy, not on any prejudice, not on anything influences you or raises passions you.” N.T. at 25. 7/18/1995 argues that appellant’s “barebones boil-
erplate” ineffectiveness claim cannot overcome his waiver of claim, adding further that the claim underlying is frivo- lous. Commonwealth’s Brief at 80. The Commonwealth in- cludes a lengthy string citation to cases both this Court the United States Supreme Court rendering holdings directly
N.T. any at 26. If the responsibility had doubt about 7/18/1995 its after passing the trial process, court’s reference to the review ambiguity was eradicated with this instruction. Appellant’s claim XIX. *83 604 issue in ineffective- underlying appellant’s to the
contradictory claim. ness under Common rejected claim appellant’s
The
court
PCRA
(1995),
220,
cert.
K. Trial Court’s Instructions on Mitigating Circumstances45 *84 According to the trial court appellant, Eighth the violated it jury aggravating Amendment when instructed that the mitigating that circumstances are factors make murder case or more less terrible. declares the that trial court’s jury thinking instruction the prevented from him as an individual, by limiting jury considering the to circumstances crime, only related the and that this erroneous instruction compounded by prosecutor’s argument jury that sympathy during should consider its He deliberations. also accuses the prosecutor telling jury ignore mitigating Again, factors. his grievances attaches with the trial court’s to a boilerplate instruction claim of layered ineffectiveness, counsel claiming prior counsel objected should have to the trial court’s incorrect instructions. The appellant’s Commonwealth counters that claim inval- Likewise, id under settled law. the PCRA court found no error with the trial court’s instruction.
Addressing arguments similar to those appellant raises here, this Court has approved given by of the instructions trial court in case. Spotz, 1, this Commonwealth v. 587 Pa. 1191, (2006); Johnson, A.2d 1246-47 Commonwealth v. (2002); Pa. 815 A.2d 587-88 Commonwealth v. Stevens, (1999). Furthermore, Pa. 739 A.2d appellant overlooks the trial court’s instruction to the jury, regarding circumstance, the catchall mitigating that it should all consider the mitigating evidence that appellant presented at the penalty phase throughout the trial. N.T. 7/18/1995 so, at 20. In doing the trial gave jury permission court all look at record-based factors regarding appellant’s life. we Finally, reject appellant’s unsupported argument that the prosecutor jury ignore told the mitigating evidence Appellant's 45. XX. claim during its circumstances mitigating
it should not consider unworthy of relief. Appellant’s claim is deliberations. Unanimity Life Verdict46 L. Instruction claim, he that the argues In penultimate you jury it that: “[w]hen trial court erred when instructed life imprison final it’s death or your come to verdict whether every member of the ment it must be unanimous. Each and verdict, death or life all on the final jury, agree twelve must Appellant says N.T. imprisonment.” 7/18/1995 an trial conflicted earlier court instruction instruction with aggravating if on one of the jury agree could not circumstances, of life in only impose could sentence attaching layered 2-3. this claim a Id. at Before prison. claim, trial that the counsel ineffectiveness asserts charge deprived process rights. court’s him of his due trial by stating counters *85 the for unanimity required aggravating court’s instructions on the legally proper, and circumstances was whereas mitigating only to related the trial verdict. passage appellant referred the offered argument reasoning echoes Commonwealth’s rejecting the court in claim. by PCRA instruction, do we must so reviewing jury When the as a whole to ascertain whether evaluating instruction by the of a legal principles it the at heart fairly conveys required at 1247. An instruction will be dispute. Spotz, 896 A.2d adequately explains if it upheld clearly, accurately, Chambers, 570 Pa. 807 A.2d law. Commonwealth (2002). Chambers, that a sen capital In we reiterated could be jury tence should be vacated if instructions interpreted mandating finding mitigating a unanimous as Id. circumstances.
Here, instructions, the jury at the outset of the trial court’s if that it must return a life sentence all twelve was instructed not on one circumstance or jurors agree aggravating could outweighed it that the circumstances found was aggravating Appellant's 46. claim XXI. at 2-3. mitigating the found circumstances. N.T. 7/17/1995 it must explained jury court to the clearly
The trial circumstances, but that it unanimously aggravating find required unanimity evaluating to reach when mitigating 23-24, Id. Although at 807 A.2d trial circumstances. 872. of must be found court said that a sentence life or death id. that instruc- unanimously, qualified 807 A.2d it that: by explaining tion if sentence or you agree unanimously do not on a death
Now support on one of the general findings two would sentence, immediately. then have 2 You you options death can either continue and discuss the case and deliberate the sentence, of a or if possibility you you may stop all agree, deliberating and sentence the to life imprison- defendant ment.
If can you point come to a where have deliberated you conscientiously thoroughly agree and still all cannot either sentence the defendant to life imprison- death or ment, you then would come back me that you and tell agree. cannot deadlocked, if I are you
And decide that hopefully [sic] must, to, I then it is I my duty under law under law impose must a life imprisonment.
Id. 27-28, 807 A.2d After the trial court’s reviewing entirety, instructions their Court is satisfied jury adequately apprised requirements legal absence, unanimity, or its in the sen- implications capital process. Additionally, even if to find error in tencing we were instructions, the trial court’s counsel cannot be faulted failing object because four aggravating found circumstances, mitigating circumstances and no which man- *86 the jury impose dates that must the death sentence. This claim fails.
M. Cumulative Error47 final claim that if Appellant’s is even this Court finds that is not relief on any argued entitled to of the claims Appellant's 47. claim XXII. to the cumula- to relief due
above,
entitled
he is nonetheless
errors,
deprive appellant
functioned to
which
effect of
tive
precautions owed
procedural'
heightened
a fair trial and
that appellant
contends
The Commonwealth
cases.
capital
claims entitles
of his
relief if none
individual
not entitled to
state
Indeed,
of the law to
a
assessment
proper
it is
him to it.
one of
any
appellant’s
no merit
found
that since we have
the cumulative
claims,
must conclude that
this Court
individual
to relief.
not entitle
alleged
errors does
effect of
Brown,
1208-09.
Blystone,
1158;
725 A.2d at
E.g.,
872 A.2d
haye
appear
claim does not
Alternatively,
since
See
court,
claim is
waived.
before the PCRA
been raised
Bond,
302(a);
IV. remand, affirm, reasons, in part, foregoing we For opinion. hearing consistent with evidentiary for an part, in join opinion. EAKIN and Justice NEWMAN Justice opinion. files a concurring Justice CAPPY Chief concurring opinion a which BALDWIN files Justice joins. BAER Justice opinion. concurring dissenting files
Justice SAYLOR CAPPY, concurring. Chief Justice pages 35 on save footnote join majority opinion I disagree I with 593-94, Respectfully, 913 A.2d dan- “future regarding majority forwards interpretation Pennsylvania. has evolved concept as that gerousness” narrowly limited may have itself Although Simmons1 dangerous- “future to instances when requirement instruction any I believe aggravator, stand-alone ness” arose Carolina, 114 S.Ct. 512 U.S. v. South 1. Simmons (1994) (plurality). L.Ed.2d *87 609 Pennsylva- must be informed inquiry regarding by Simmons following nia Simmons. law in that the state of the re-
Accepting Pennsylvania law mained uncertain at the time of this court’s decision plurality any in v. lack of Christy, clarity Commonwealth was rectified in Following Christy, its immediate aftermath. our case law in spoke dangerousness” terms of “future “at being placed by issue” either not party, place and did a restriction rule that it was limited to those circumstances future when See, dangerousness aggravator. was raised as stand-alone 331, 763, e.g., v. 554 King, Commonwealth Pa. 721 779 A.2d (1998) (pointing out that a Simmons instruction was not “the required dangerousness when issue of future the jury. before At no time during phase either trial did of the prosecutor argue suggest penalty the death should be imposed Appellants because could potentially hurt someone ....”) added); Chandler, else (emphasis Commonwealth v. 401, (1998) 554 1040, Pa. 721 A.2d 1046 (noting a Sim- “[ujnder mons instruction required current state of law, dangerousness where future is at issue a specific defendant”) by request added); made capital (emphasis Clark, 258, (1998) 31, Commonwealth v. 551 Pa. 710 A.2d 36 (extending Christy rule in noting include either counsel and Christy, that in “this court acknowledged applicability Simmons to cases Pennsylvania subsequent decided Simmons, where the issue of the danger- defendant’s future raised”); Smith, 219, ousness was Commonwealth Pa. v. 544 1221, (1996) 675 A.2d 1232 (noting that “[t]his court held Christy that Simmons dangerous- mandates where future ness is issue and a specific request is made capital defendant, it is process a denial of due to refuse to tell a phrase means”); what the ‘life sentence’ see also Common- wealth v. Trivigno, Pa. 243 (2000)(0pinion A.2d Court) Announcing Judgment (concluding that it was error for prosecutor argue dangerousness future part history criminal I aggravator). Accordingly, tend to agree with Madame Justice Baldwin that counsel defense obliged request would be a Simmons instruction whenever the prosecutor injected “future dangerousness” into the penal- ty after phase Christy. issue,
Nevertheless, I of this join- majority’s analysis related to past I the statement at issue since agree dangerous- “future implicate Appellant’s and did not conduct Williams, A.2d v. 557 Pa. ness.” See Commonwealth Robinson, (1999); 554 Pa. *88 (1998).2 344, 721 A.2d 355 BALDWIN, concurring.
Justice III, the Part join majority opinion, exception I the with of E, I in where concur Charge,” only Section entitled “Simmons disagree I with the separately result. I write because the I analysis prosecutor’s in that section. believe majority’s your “enough “you is had language enough,” use of that stated chance,” let be going anymore people and are not to “[w]e dangerous- injured” placed future unquestionably Appellant’s Nevertheless, I fail see at in this case. to how ness issue from trial counsel’s failure prejudice necessarily resulted in Consequently, instruction this case. while we request the I to reach the approaches, compelled different am employ the majority. same result as order to succeed on a claim of ineffective assistance
In (1) counsel, underlying that: must demonstrate Appellant merit; (2) had basis claim has counsel not reasonable arguable (3) inaction; and resulted from prejudice for his action Pierce, v. performance. counsel’s deficient (1987). 973, Here, 153, 157-59, Pa. 527 A.2d 975-77 515 trial for alleges that his counsel was ineffective v. jury pursuant instruction failing request Simmons Carolina, 2187, 154, 114 129 133 512 U.S. S.Ct. L.Ed.2d South (1994) jury instructed the that (plurality), which would have in prison possibility means life without the imprisonment life appellate further that counsel parole. Appellant argues by trial failing alleged to raise this error was ineffective counsel. past implicating implied allegedly
2. We have in the that statements context, dangerousness” "future be read in and when read must context, past agree majority I the statement related with Fisher, A.2d 559 Pa. conduct. See Commonwealth (1999). Simmons, Supreme In United plurality of the States dangerousness Court “where the future held that defendant’s issue, at defendant’s release prohibits is and state law be parole, requires sentencing due process Id. ineligible.” defendant is parole informed notes, As the this Court majority correctly S.Ct. at 2190. held that a Simmons instruction only has is mandated when: (1) future prosecutor places dangerousness defendant’s the instruction. See (2) issue; requests defendant omitted). (citations Majority Opinion A.2d at Appellant’s danger- The on to future majority goes find that issue, and, therefore, placed at Appellant’s ousness was not arguable disagree. claim merit. I is without language prosecutor’s closing The part contested argument. It reads as follows: felony is that aggravating history third circumstance they passed when the were legislature
convictions and Carson, you to me saying enough enough. Mr. you *89 people are to let your going anymore had chance. We not injured. be felonies, ladies, came of them gentlemen, two
[Three] guns, out of the same circumstances One with with knives. [fourteen]-year-old. Enough of them a is enough. 81.
N.T.
at
7/17/1995
v.
286,
May,
551 Pa.
majority
relies
(1998) in
not
finding
instruction May “mer- as dangerousness” argument “future jected the itless,” legal argument resulted from the that determination arguing simply contended that May in that case. presented history of violent significant circumstance of a the aggravating injected dangerousness future necessarily felony convictions case. Id. A.2d defendant into the a criminal however, hold, infer, used while language nor did not We amount to factor could never specific aggravating arguing Thus, at issue. dangerousness future a defendant’s placing judice. of the matter sub If that were May dispositive is not case, essentially danger- future place could prosecutor to his issue, pertaining it in an argument ousness at but couch May convictions, so felony impunity. and do with history no such result. requires view, aforementioned, prosecutor’s argument my
In at issue. The use of dangerousness future placed Appellant’s be anymore people are not to let going the phrase, “[w]e argument regarding Appellant’s an injured,” coupled with Appellant to mean that only interpreted felonies can be prior, he is felonies in the and unless past, has committed violent executed, Togeth- to commit felonies. he will continue violent “... you “enough enough,” the use of the words er with chance,” prosecutor’s the undeniable effect of the your had dangerous- place Appellant’s future closing argument was did not sentencing jury. prosecutor While ness before if he danger state that would be specifically executed, required is not to warrant language such Chandler, 554 Pa. instruction. See Commonwealth (1998) (Simmons 414-15, instruction was A.2d specific did not use though prosecutor even necessary precise The absence of word- dangerousness language. future *90 state- prosecutor’s not the effect of ing could overcome ments). I that claim has Appellant’s would find Consequently, of the Pierce standard merit, meeting prong the first arguable assistance of counsel. reviewing for claims of ineffective if that majority’s finding I from the even depart also “it is implicated,- doubt- dangerousness future was Appellant’s
613
would have believed a Simmons
attorneys
ful
reasonable
instruction
be warranted
the state of the
at
would
under
law
trial.” See
at
Majority Opinion
the time
was
[A]ppellant
593,
interprets
913
The majority seemingly
A.2d at 274.
Simmons
a
encompass only
prosecutor
the situations where
argues future
sole
factor in
dangerousness
aggravating
as the
capital sentencing phase,
a
this concern
unknown
was
Carolina,
246,
in Kelly
v. South
to the
decision
534 U.S.
prior
726,
(2002),
122 S.Ct.
language majori- not support does ty’s narrow interpretation.
Although Simmons was a plurality opinion, holding the core Indeed, not is unclear. process seven Justices found that due required informing the an jury, by either instruction or by rebuttal, life in prison defense means life if parole without future dangerousness of the injected defendant into the Simmons, See 156, 2190;2 case. 512 id. at 114 U.S. S.Ct. at (Souter, J., 114 concurring);3 id. at at S.Ct. at 2198 J., 114 S.Ct. at id. (Ginsburg, concurring); (O’Conner, J., view, S.Ct. concurring).4 In my a reasonable attorney, im- particularly one who undertakes the mense responsibility defendant, of representing a capital should have understood Simmons warranting request “life jury instruction, means life” if future dangerousness is Simmons was decided over one Further, at issue. before year of Appellant’s Moreover, commencement trial. prior Appellant’s trial, this Court expressly discussed Simmons Commonwealth Christy, (1995) Pa. A.2d 877 (holding that Simmons did In apply retroactively). Christy, we stated, “Simmons future mandates where Court, 2. Justice judgment Blackman announced the which was Stevens, Souter, joined by Ginsburg. Justice Justice and Justice concurring opinion joined Justice Souter’s Justice Stevens. concurring opinion joined by 4. Justice O’Conner's Justice Chief Rehnquist Kennedy. and Justice *91 614 made the request by is and a is
dangerousness specific at issue tell defendant, a of due to refuse to capital process it is denial Christy, Pa. the ‘life means.” jury a term sentence’ what Therefore, Appellant’s A.2d at the time of at at 889. trial, the Supreme trial counsel had the benefit of Court’s Simmons and a decision from this interpret- decision Court Simmons the a “life means life” instruc- ing holding require so in this For these tion. Trial counsel failed to do case. reasons, claim lacks Appellant’s the conclusion that majority’s say merit least. arguable puzzling the text of Simmons does a not support More importantly, a only limited of case situations where application argues prosecutor specifically dangerousness future where Rather, it factor aggravating argued. is the sole Court prosecu- based on of a general arguments reached its decision “... language, tor. The lead opinion employed following alluded to the defendant’s prosecution when the particularly Sim- ...” to the dangerousness argument future its mons, added); at at 2194 (emphasis 512 U.S. S.Ct. specter petitioner’s dangerous- state of future raised “[t]he generally id. at ...” at 2194 (emphasis ness 114 S.Ct. added); by a false dilemma may and create “[t]he [s]tate advancing generalized the defendant’s regarding arguments (em- id. ...” at 2198 dangerousness future S.Ct. Chandler, added). See also supra. phasis above, I agree In do not that the state the law light a at the time of trial was in such of flux Appellant’s state believed a Simmons have in- attorney no reasonable would To a contrary, struction have been warranted. would attorney competent capital requested defense should have Simmons instruction, deci- particularly when armed with trial year prior subsequent sion decided over a I trial decision this would find that by Accordingly, Court. life” counsel’s failure to a “life means instruction was request However, I in the result without a reasonable basis. concur failed to that he suffered because demonstrate prejudice failings. Appellant result his counsel’s merely that he because his sentence was prejudiced states asser- Appellant, not reversed. Brief 79. Such a bald to meet the of the Pierce prejudice prong tion is insufficient standard.
Therefore, I this is case a direct recognize that is not while claim counsel rather a of ineffective assistance of appeal, restate, PCRA,5 I still separately under the write taken Court in adopt, position former members *92 in past, the that a instruction should be mandated Simmons case, every regardless of the ex capital prosecutor whether future pressly impliedly places dangerousness defendant’s issue, or capital formally requests whether defense counsel Clark, 258, the instruction. Commonwealth v. 551 Pa. See 283-86, 31, (1998) J.J., 43-44 710 and (Nigro Zappala, A.2d I concurring).6 my position announce here because I believe that the mandating instruction eliminate the endless will issue, stream of litigation accompanies including this of claims assistance of ineffective counsel.
As the Supreme United States Court has “a recognized, dangerousness defendant’s future sentencing bears on all de- Simmons, in terminations made our criminal justice system.” 162, 2193, Texas, 512 U.S. 114 S.Ct. at citing Jurek v. 262, 275, 2950, 2958, (1976) (joint
U.S.
96 S.Ct.
only capital but also that whether if life parole imprisonment dant be will given will released I see reason to deliberating juries. enter into the minds of no Pennsylvania, fact that in means imprisonment, hide the life premise life I cannot parole. accept without truth. prosecution simple, would be this relevant prejudiced justice. truth is of This Hiding system antithetical our in capital is of the utmost concern cases. joins BAER concurring opinion.
Justice SAYLOR, concurring dissenting. Justice I join majority post-conviction for a evi- remanding sufficiency of hearing concerning trial counsel’s dentiary mitigation stewardship presentation connected with trial, I phase Appellant’s but penalty circumstances remand to include at least ineffec- would broaden this some guilt Notably, arising phase tiveness claims from trial. Appellant’s post-conviction evidentiary a dec- proffer includes from his trial counsel failed indicating laration counsel *93 to pursue to locate a material witness and available attempt for of the of impeachment testimony avenues critical Common- declaration, In further indicates wealth witnesses. counsel no that he or tactical reasons such failures. strategic had my In it is appropri- of such it is light proffer, position instance, court, in the the ate for the PCRA first to hear testimony findings and issue of fact and appropriate relevant developed conclusions of law on a record. majority the benefit proceeds,
The without of evidence claims, concerning the extra-record to evaluate the cold trial and to offer the concerning poten- record conclusions various exam- tial of better trial counsel. For impact performance by of ple, regard potential impeachment the one Common- with witness, majority “[establishing wealth the indicates that Mr. Burton in other activities not ine- illegal was involved would him, to a luctably opinion alter of much less lead jury’s 557, Opinion at 913 at 252. Majority different verdict.” A.2d burden, however, It petitioner’s not a post-conviction is
617 (or According ineluctably inescapably). establish conclusions Court, Supreme to the United States whose decisions this in Court follows ineffectiveness arena: Although attorney’s a defendant need not establish that performance likely deficient more than not altered outcome in order to establish prejudice [v. under Strickland 668, 2052, 466 104 674 Washington, U.S. S.Ct. 80 L.Ed.2d (1984)], a must defendant that “there is a reasonable show that, probability errors, but for unprofessional counsel’s result the proceeding of have would been different.” 466 694, U.S., Strickland, 104 at According S.Ct. probability “[a] reasonable is a probability sufficient confidence the outcome.” Ibid. Strick- undermine land Court noted that the an “benchmark” of ineffective- assistance claim the adversary fairness proceed- ing.... Whiteside, 157, 175, 988,
Nix v. 475 U.S. S.Ct. (1986).
L.Ed.2d 123 standard, Pursuant to this I my maintain perspective these involving allegations cases of serious constitutional viola- tions supporting evidentiary with be proffers should assessed on a evidentiary developed Accord record. (2004)
Bryant, J., Pa. (Saylor, A.2d dissenting) (“My position is that give the Court would better effect to the values of regularity and fairness that are essen- judicial tial to the by requiring function closer and more consistent adherence to the procedures that have been de- signed convictions, to ensure the reliability of criminal particu- arena, larly capital where the need for reliability is Further, greatest.”). its relative these inqui- fact-sensitive ries, (here, court) I that a fact-finder believe PCRA should which, determine any, if instances asserted ineffec- tiveness are true in light post-conviction evidence before *94 impact any collective of stewardship upon deficient fairness of the trial be proceedings reasonably can evaluated.
I also differ the majority degree with it opinion suggests that counsel cannot be failing deemed ineffective for to advance arguments merely supporting because theories tribunal, see any controlling yet accepted by
have not
been
569-70,
260,
In this
576,
ORDER PER CURIAM. December, 2006, NOW, the Board’s day
AND this 4th granted. to Dismiss for Motion Mootness notes is taken out of context. appellant’s quotation full prosecutor’s The statement was: of Beverly, example As Ruth as an what you by dictated to are That’s society, people in this scared death. happens in this city, number are scared to death They rule one. scared is she? She Ruth is scared death. How Beverly are they out here. a do that person of Does when moved the truth? lying telling murder, Id. Ms. to the testified that eyewitness an Beverly, one receiving after threats from Philadelphia she moved out of N.T. The pros- of 146-47. appellant’s witnesses. 7/10/1995 jury, testimony, on this to contemplate ecutor asked the based about a murder— person lying witnessing whether who was her from her lying counsel accused flee defense —would viewing responsive statement in prosecutor’s home. When context, jury weigh Beverly’s it Ms. credibili- prompted did not seek ty light prosecutor the evidence. a cloak This claim is nonsensi- “wrap authority.” himself in cal. prosecu Fourth claim that the list argued instruction and extra- tor did not abide the court’s evidence, Clause record which violated Confrontation
Notes
notes Mr. Wylie the Commonwealth that Ms. denied that also Jones had told her third man would appellant Commonwealth, According rob Mr. Hairston’s home. testimony contrary to told the Wylie’s Ms. was what she had her prosecutor testifying, namely, before Mr. Jones told robbery. in the The participate would Common- intro- prosecutor’s further notes purpose wealth ducing by the statement he supported closing, where Wylie completely remarked that Ms. had not been truthful Furthermore, argues the witness stand. by cannot admission prejudice show statement, to tie because there substantial other evidence him to robbery. layered makes an ineffectiveness also additional statement, Ms. that the argument Wylie’s claiming related to under sentencing should not have found the aggravator (murder 9711(d)(6) § committed the pérpetration Pa.C.S. felony) of a because it based on the admission improper statement Wylie’s Ms. to Office Keenan. credibility of a may party witness be impeached 607(a); see Commonwealth that witness. calling Pa.R.E. Kimbell, (2000). Any 563 Pa. A.2d 1276-77 impeachment evidence may relevant issue be used
and not at the murder scene. notes judge importance testimony had no basis from the been how expert may ballistics and should have told guns capable other bullets that killed the firing were victim. argument response, Commonwealth devotes little in single claiming paragraph argument baseless because the .38 caliber found at time of gun appellant’s arrest could been the source of bullet have several fragments Mr. car. Agreeing found Burton’s with Commonwealth, the cir- PCRA court found that the factual surrounding concerning cumstances made it gun testimony admissible. The ballistics expert gun testified recovered from day he was arrested could fired a have bullet found in Mr. car. fragment Burton’s N.T. 7/11/1995 cross-examination, however, 74. On appellant’s trial counsel clarified that bullet fragments Lloyd’s found near William
notes specifically present trial counsel did not (1) evidence at sentencing in an hearing grew up that: he
notes
to mention
prosecutor neglected
in
experience
prison.
he
hardships
would
Commonwealth,
turn,
in
cites several cases where
arguments
jury
a
that ask the
upheld
prosecutor’s
Court has
to the victim.
mercy
the defendant
the same
showed
show
in
Additionally,
cites a host of other cases
the Commonwealth
no
that utilized
arguments
this Court found
error with
which
more
than
cites.
passage appellant
oratorical flair
request
a
of a
upheld
prosecutor’s explicit
jury
We have
a
mercy
show the same
defendant as
defendant showed
Jacobs,
138,
556
A.2d
Commonwealth v.
Pa.
727
victim.
(1999)
545,
Basemore,
Commonwealth
(citing
525 Pa.
512,
861,
(1990),
denied,
1102,
582 A.2d
cert.
502 U.S.
(1992)).
S.Ct.