*1 A.2d 594 Pennsylvania, Appellee COMMONWEALTH COOK, Appellant. Robert Pennsylvania. Supreme Court of 5,Oct. 2006. Submitted July Decided *9 Phil- Feinberg, & Kairys, Rudovsky, Messing Epstein, Jules for Robert Cook. adelphia, Office, Defender’s County R. Public Crowley,
David Centre Assoc, Lawyers. for Pa. of Criminal Defense Jr., Gen., Burns, Hugh PA J. Amy Zapp, of’Atty. Office Office, for Attorney’s District Com. Philadelphia EAKIN, BAER, TODD, CASTILLE, C.J., SAYLOR, GREENSPAN, McCAFFERY, JJ.
OPINION Justice CASTILLE. Chief on appellant’s appeal matter is before this Court
The instant
Pleas of
of the order of the Court of Common
part
from that
him
trial
to the
denying
pursuant
a new
Philadelphia County
(“PCRA”),
§§
Relief Act
Pa.C.S.
9541-
Post Conviction
follow,
affirm the order below.
For the reasons
we
15, 1988, a jury sitting
On November
before the Honorable
murder,
first-degree
Robert A. Latrone
appellant
convicted
murder,
criminal
to commit
an
conspiracy
possessing
instru
crime,
robbery.
ment of
The
arose from the
convictions
stabbing
Tyler,
death of
from
Alvin
whom
had
cohorts to steal
and a
conspired
drug money
with two
video
cassette recorder.1
the same
three
Subsequently,
jury found
aggravating circumstances and no mitigating circumstances
*10
and, accordingly,
appellant
sentenced
to death.2 See 42 Pa.
l(c)(l)(iv) (“[T]he
§C.S.
verdict must be a sentence of
jury
death if the
at
one aggravating
finds
least
circumstance
circumstance....”).
20, 1996,
. .. and no mitigating
May
On
this Court affirmed appellant’s
judgment
convictions and
of
Cook,
sentence on direct appeal. Commonwealth v.
544 Pa.
361,
(1996).
On October
appellant
timely pro
se
filed
PCRA
petition.
counsel,
Following
appointment of
an
PCRA
11,
amended petition was filed on March
The
1999.
amended
relief,
petition
twenty-six
raised
claims for
one
including
alleg-
that “the
ing
Commonwealth
its peremptory jury
exercised
strikes in both racially
sexually
and
discriminatory manners.”
omitted).
Amended PCRA Petition at 43
(emphasis
for-
claim,
warding
that,
1997,
appellant noted
of
April
Office
District
Attorney
Philadelphia released a
videotaped training
on jury
session
selection that Assistant
Attorney
District
given
Jack McMahon had
assistant
fellow
underlying appellant's
1. The facts
convictions are set forth
detail in
Cook,
361,
(1996).
Commonwealth v.
544 Pa.
585 from 12, appealed The on June Commonwealth opinion that hearing of a but later discontinued penalty new grant from of a timely appeal the denial new appeal. Appellant’s to deny In of the PCRA court’s decision trial follows. review trial, to examining our standard of review is limited a new findings supported by of fact are court’s whether free of error. legal and whether its conclusions are record Sneed, 1067, 318, n. 6 587 Pa. 899 A.2d (2006).
I. Batson Claim McMahon, was the Attorney first claims who case, challenges peremptory trial exercised prosecutor trial considerations of upon impermissible based Kentucky, race and violation Batson v. U.S. gender (1986) its In progeny. 106 S.Ct. 90 L.Ed.2d and claim, his Batson makes a number forwarding arguments require Appel- discussion. separate distinct argues proge- lant first that McMahon violated Batson and its (1) in three a race- ny ways, namely: by failing provide reason three black striking particular venireper- neutral (2) sons; other by giving striking reasons for two pretextual (3) mothers from venirepersons; striking black black mothers nor no the venire but neither white black women with addition, evidentiary In appellant challenges children. two that the court made at the it held on rulings hearings PCRA In claims that particular, appellant his Batson claim. (1) excluding: Philadelphia court erred comments Attorney Lynne District Abraham made about the McMahon release; at a conference held at the time of its videotape news (2) prac- statistical evidence McMahon’s selection in other tices cases. Batson, held that “the Supreme U.S. Court
Equal prosecutor challenge Protection Clause forbids [a] jurors on account of potential solely their race.” Id. at *12 the for explained analyzing S.Ct. 1712. We framework a Batson claim in direct appeal opinion our (2002): Harris, 489, Pa. A.2d 1033 572 817 586
[FJirst, a prima showing the defendant must make facie to an the give that the circumstances rise inference that jurors prospective struck one or more on account prosecutor race; made, second, if the is the prima showing facie a prosecutor shifts to the to articulate race-neutral burden issue; third, juror(s) the at the explanation striking court then make the ultimate determination of trial must the has carried its burden of proving whether defense Batson, 97, 106 purposeful discrimination. U.S. S.Ct. 1712. prima purposeful
To establish case discrimination facie ... the defendant show that he a member of a [must] [i]s cognizable group, prosecutor racial the exercised a challenge challenges or to remove from the peremptory race;C7] venire members of the defendant’s and that other an relevant circumstances combine raise inference [ ] juror(s) for racial reasons. prosecutor removed Batson, 96, 106 476 U.S. at S.Ct. 1712.... test,
The second
of the Batson
prong
involving
prosecu-
to come
obligation
expla-
tion’s
forward with
race-neutral
challenges
prima
nation of the
once a
case is proven,
facie
explanation
persuasive,
“does not demand an
that is
or even
Elem,
765, 767-68,
plausible.” Purkett v.
514 U.S.
115 S.Ct.
(1995).
1769,
Rather,
If
the trial
explanation
a race-neutral
court
test, ie.,
must then
to the third
of the
proceed
prong
opponent
ultimate determination of whether
of proving purposeful
strike has carried his burden
discrimi-
Batson,
Supreme
In a case decided after
Court held
while
identity
juror(s)
might
racial
between the excluded
and the defendant
violation,
help
necessary requirement.
a Batson
it was not a
establish
Ohio,
400, 416,
Powers v.
499 U.S.
111 S.Ct.
587 Purkett, 768, nation. 514 at 115 1769. It is at U.S. S.Ct. persuasiveness stage facially-neutral that the of the explanation proffered by is relevant. Commonwealth Id. (footnotes
Harris,
“
trial
on the ultimate question
court’s decision
‘[T]he
intent
of fact of the sort
discriminatory
represents
finding
great
accorded
deference on appeal’ and will not be over
Cockrell,
clearly
turned unless
erroneous.” Miller-El v.
537
322, 340,
(2003)
1029,
123
U.S.
S.Ct.
154
931
(quoting
L.Ed.2d
York,
364,
1859,
352,
Hernandez v. New
500
111
U.S.
S.Ct.
114
(1991)
Beard,
395
(plurality));
L.Ed.2d
accord
v.
426
Wilson
(3d Cir.2005).
653,
F.3d
668
great
Such
deference is neces
sary
court,
“because a reviewing
analyzes only
dire,
from voir
transcripts
is not as
as the trial
positioned
well
Miller-El,
court is to make credibility determinations.”
537
339,
at
123
U.S.
S.Ct. 1029. “There
seldom
will
be much
evidence
on”
bearing
question”
the “decisive
of “whether
counsel’s race-neutral
for a
explanation
peremptory challenge
Hernandez,
should be
(quoting
365,
believed.” Id.
listener’s omitted); Casper, United marks States quotation nal . (3d Cir.1992) 416, F.2d appropri the more The clear error standard of review all faces an the Commonwealth ate on collateral review when many years have given burden of production even heavier the Third Circuit since voir dire conducted. As passed it time ... passage [i]s “in explained, light has the burden the Commonwealth” appropriate lessen terms. Wil peremptory challenges its race-neutral explain *14 (3d Cir.2005) Beard, (where 653, twenty 426 F.3d 668 son v. trial). years elapsed had since relief, must eligible appellant
To be for post-conviction raises either that the that he now not been show issues have 9543(a)(3). For § 42 litigated or Pa.C.S. previously waived. PCRA, petitioner issue is if the of the “an waived purposes trial, ... to do so at trial could have raised it but failed before 42 or in a appeal prior postconviction proceeding.” on state 9544(b). § The “issue” refers to the “discrete Pa.C.S. word to relief. Common legal ground” entitling petitioner See Collins, 45, (2005); 564, 888 v. 585 Pa. A.2d 570 wealth (Pa.2008) 940, (noting v. A.2d Gwynn, 943 Commonwealth Collins, of meaning in we defined “issue” within Section 9543(a)(3)). may multiple allega there be theories or While relief, in those theories ground tions offered of a support are of allegations presented.” or a subset the issue “simply Collins, A.2d at 570. Attorney first exercise challenged McMahon’s upon an at trial by raising objection
peremptory challenges
Testimony
conclusion of
See Notes of
selection.
11/1/88,
(“N.T.”),
race
stating
After
on the record the
at 639.
venireperson
each
either the Commonwealth
challenged
defense, the
claim and
appellant’s
or the
trial court considered
to make a
case
prima
concluded
he failed
facie
Batson.
discrimination under
Id. at 642. Follow-
purposeful
conviction,
claim
failed to
the Batson
ing
his
raise
subsequently
post-trial
appeal. Appellant
either
or on direct
Rely-
in
petition.
to
a Batson claim his PCRA
sought
renew
Basemore,
560 Pa.
On
this Court first noted that
to the
extent that
contents of the
are
tape
otherwise
admissible,
are,
fact, relevant,
they
as they constitute
*15
prosecutor’s
direct evidence of the
at least at
motivations
made,
the time the tape
may
constitute circumstan-
tial evidence of
occurred in
what
the selection of the
at
trial,
Basemore’s
been
alleged
have
conducted
the year following
within
seminar.
training
Basemore,
Moreover,
opportunity develop tion he asserted. in that McMahon violated Batson
Instantly, arguing challenges racially discriminatory exercising peremptory manner, not to a explicitly rely does substantial Brief at videotape. Appellant’s on the McMahon See extent 32-39; (asserting at 32 one-sentence footnote id. n. here, claim “is as release of the proper of Batson review after-discovered evidence not disclosed videotape constituted or at the time of trial or direct appellant’s discoverable Indeed, it is not clear appeal”). altogether why appellant not made these same on direct arguments could have review. Basemore, Nevertheless, unlike in the Commonwealth does assert, argue, let alone various Batson- appellant’s are due to his failure to raise them arguments based waived Therefore, on our appeal. given recognition direct videotape previously Basemore that the McMahon constitutes unavailable circumstantial evidence McMahon’s motivations dire he conducted in the same timeframe during general voir tape, proceed as the lecture recorded we to consider on their arguments Basemore-based merits. claim, collateral Batson examining appellant’s PCRA (14 19) court noted that McMahon had used of his 74% black The peremptory challenges against venirepersons. (14) court further that McMahon struck 58% observed venirepersons opportunity 24 black whom he had an to strike (5) of he an venirepersons opportunity and 18% the white had pattern to strike.8 “On the basis of this of strikes and Attorney training tape,” McMahon’s comments on the preliminary finding PCRA court “made defendant had established a case” of discrimination prima purposeful facie the trial court’s to the notwithstanding finding contrary. 12; N.T., 12/11/02, see also at 15-16. The Op. PCRA Ct. provided opportunity court then venireperson prosecutor PCRA court defined a whom the had an The excused, opportunity to strike as "one who was not struck for cause and *16 by go not struck the defense when it was the turn to first." defense[’s] Op. PCRA Ct. at 12 n. 3.
591 appellant’s prima by presenting testimony rebut case facie from McMahon.
After reviewing testimony McMahon’s to each respect with to a peremptory challenge venireperson, black the PCRA court that the gave found reasons he for ten of them were race “credibly Op. neutral.” PCRA Ct. at 13-14. The court (24) further noted that: 43% of the 55 venirepersons were (7) black; 12 jurors ultimately 50.9% selected were black;9 and both the defendant and the victim black. were Finally, the court stated that its “review record dis- closes no remarks by prosecutor during voir dire that indicate that of his strikes any racially were motivated.” Id. at 14. Accordingly, the court concluded that defendant “[t]he has failed to his carry showing burden of that the prosecutor exercised his peremptory challenges discriminatory man- ner.” Appellant Id. challenges now PCRA court’s conclu- sion that he failed to prove purposeful discrimination. argues first that Attorney explana- McMahon’s
tions for striking three black venirepersons amounted to merely a denial of a discriminatory “general motive and assertions” of good his faith. Bui v. Citing Haley, F.3d (11th Cir.2008) Beard, 1317-18 Wilson F.3d (3d Cir.2005), appellant asserts that federal two Courts of Appeals have considered similar explanations and held that they were insufficient to rebut the Batson challenger’s prima case. facie
In response, the emphasizes that the PCRA court’s finding that appellant prove failed to purposeful dis- crimination great is entitled to deference this Court. The Commonwealth cites a multitude circumstances supporting (1) determination, the PCRA court’s that: including, the vic- (2) black; tim McMahon did not exhaust his available peremptory challenges though jury ultimately even includ- The Commonwealth asserts that it was established at the PCRA hearing jury actually eight that the consisted of blacks and four whites dispute and that hearing did not at the that the trial court had erroneously juror identified a black as white. Our decision does not require discrepancy. a resolution of the *17 trial, (3) after McMahon blacks; years thirteen and eight
ed for most race-neutral reasons credibly to provide still able was observes The Commonwealth challenges. peremptory his no case prima found that the trial court because facie made, not called McMahon was was discrimination purposeful years until thirteen challenges peremptory his upon explain Wilson, the on Bui and reliance appellant’s later. As for support cases do not that these contends rather, but, confirm that the failure position does every challenge peremptory reason for provide specific a collateral Batson review. not establish a violation 11, 2002, Attorney held on December hearing At the PCRA peremptory he exercised as to the reasons McMahon testified venirepersons black each of the thirteen against challenges three venireper- to the respect at trial. With that he struck provide McMahon failed now claims appellant sons that fol- testified as striking,10 for McMahon race-neutral reasons lows: I can’t—there’s Again # Peremptory 15]:
[Commonwealth I me as to a reason would have out at nothing jumps talked than what I’ve again other struck this individual jurors. very long This is not a voir other of the about few that I either, nothing and there’s very short voir dire dire Iwhy as to reason my recollection can—that refreshes something outside obviously It was struck this individual. answered, dressed, record, she how she how the cold how only is the questions these how she answered appeared, she you. I can tell thing intangi- # was Peremptory probably 7]:[I]t
[Commonwealth unemployed I mean she case. was particular bles this but unemployed, living child at home was and had her automatical- you exclude unemployment wouldn’t generally I reasons. unemployed various ly. People could be been a factor may have say unemployed it was wouldn’t unemploy- intangibles again of the other with some coupled for, I looked stability something stability, ment was goes explanations generally that McMahon's asserts 10. Because insufficient, explanations jointly. three we consider the were I I say necessarily. but that’s the sole reason here wouldn’t it probably unemployment plus intangibles. think was Peremptory # the life of me look- [Commonwealth 10]:[F]or at this one I can’t tell I ing you why peremptory used I challenge Again only thing you on her. could tell is situation, this been intangible could be—must have answered, read, must have been she book she clothing, how something gave that told me that me some kind of vibe that somebody not because this reading cold record I somebody usually would have exercised a perempto- ry challenge on. This is I believe I have somebody would accepted. Knowing myself knowing what these an- *18 I say, somebody swers this is believe I have taken. would So it must been else I can’t something you have that tell right here I can’t person go because see that now and through again. that
N.T., 12/11/02, 48, 43-44, at Batson,
Under
to fulfill its
obligation
rebut a
selection,
prima
case of discrimination in
prose
facie
explanation
cution’s
of its race-neutral reason must be “clear
Batson,
20,
and reasonably specific,”
594 969, Collins, 333, 338, 163 L.Ed.2d 546 126 S.Ct. Rice v. U.S. 1769) (2006) Purkett, 768, 514 115 S.Ct. U.S. (quoting 824 added). Thus, can a prove a defendant while (emphasis juror one black by showing even Batson violation 84, reason, F.2d 88 Ryan, Harrison v. 909 struck for a racial (3d Battle, 1084, Cir.1990); v. 836 F.2d States United David, (8th Cir.1987); v. 803 F.2d States United (11th Cir.1986), every to explain peremp failure prosecutor’s fatal to the jurors necessarily of black is not tory challenge Duncan, Yee v. 463 F.3d production, burden of prosecutor’s — U.S. —, (9th denied, Cir.2006), 128 S.Ct. cert. David, (2007); Bui, 1317; 321 F.3d at L.Ed.2d 517 Forbes, 1006, 1011 1571; 816 F.2d 803 F.2d at United States Cir.1987). (5th evidence, in addition to the n. 7 Circumstantial in the ultimate may probative be prosecutor’s explanation, made challenges were peremptory determination whether Moreover, above, noted for racial reasons. we have delay attending from the collateral impediment arising natural Batson claims is factor. arguing eases that cites appellant
The federal
failed to
determining
court erred
PCRA
sup-
rather than
discrimination undermine
prove purposeful
Wilson,
the Third
affirmed the
his
Circuit
port
position.
purpose-
that the defendant proved
District Court’s conclusion
McMahon,
part Attorney
on the
who was
ful discrimination
Although
lead
in that case.11
Wilson
prosecutor
also the
*19
in
the McMahon
part
videotape,
court
its conclusion
on
based
challenged
that every venireperson
it also considered relevant
McMahon,
known,
race
black
by
whose
was
was
peremptorily
McMahon’s
statements to the District
“equivocal
as well as
Wilson,
Indeed,
reliance Wilson and Horsley, prosecutor which the conceded a complete inability to of the explain any peremptory challenges he exercised black against venirepersons, is una- vailing. Bui, also upon relies where the at- prosecution
tempted carry its burden of production by relying solely on general explanation assistant, prosecutor’s who was dire, merely present for they voir “struck those who we acquit. believed would Those strikes were not on race based just but on exercising jurors our our right strike [who] be most acquit. would favorable to On that grounds only.” Bui, 321 F.3d at here, 1309. Unlike the Commonwealth prosecution Bui provided explanation no at all for striking any particular venireperson and offered no evidence whatsoev- er as to the state of mind of the prosecutor actually who *20 held the Eleventh Circuit Accordingly, voir dire.
conducted determina- in made an “unreasonable trial court Bui that the in the contained of the evidence light tion of the facts above, non-explana- the explained As record.” Id. at 1317. to the facts sub in stark contrast tion offered in Bui stands time, of McMahon where, notwithstanding passage the judice, most of the for explanations offer race-neutral able to black venire- against that he exercised challenges peremptory to be court determined PCRA persons, explanations credible. trial upon legal principles
As for failed to ultimately the defendant finding court relied Bui, were principles those persuasion his burden of carry in that case. the Eleventh Circuit by endorsed actually that, in circumstantial fact, theory, noted the Eleventh Circuit helped support could have in the favor prosecution’s evidence peremptory that the ultimate determination the trial court’s reasons. For ex exercised for race-neutral challenges were observed, supported if the record Circuit ample, Eleventh prosecution provided that the the trial court’s determination its chal peremptory for most of explanation race-neutral strongest “the circumstantial have been lenges, would addition, the Id. at 1318. In Eleventh in its favor. evidence” African-Ameri single the fact that noted that even Circuit “a fact that significant served on the is ultimately can Id.; see also as circumstantial evidence.” may be considered neither defendant nor “noteworthy” fact that (deeming id. black). of composition that the racial agree victims were We or victims and of jury, the race of victim petit exer defendant, peremptory challenges and the number credibly explained has prosecutor blacks that the against cised as circumstantial evidence in race-neutral terms all serve the defen determination of whether to the ultimate relevant under Batson?12 persuasion has carried his burden dant where, here, the Commonwealth particularly This is so federal Courts Although is not bound the decisions of this Court guidance. may Appeals, we look to them (1999). Ragan, 560 Pa. A.2d attempting carry production years its burden thirteen *21 after selection.
Instantly, the PCRA court noted that McMahon of fered specific explanations respect with to eleven of the four teen black venirepersons against he exercised peremp whom tory challenges, and that the explanations were both credible addition, and In race-neutral. PCRA court cited all of the circumstances in mentioned Bui and noted that each one weighed against in appellant and favor on the question ultimate of purposeful discrimination. The court’s PCRA inclusion of these in factors its Batson analysis entirely was reasonable. As for the PCRA court’s weighing these factors of the credibility and explanations, McMahon’s error, we see no especially given necessarily our deferential review standard. argues next that facially race-neutral
explanations that
McMahon
Attorney
provided for peremptori
ly challenging
black venirepersons
two
pretextual.
were
Cit
Marshall,
(9th
Turner v.
ing
Cir.1997),
At the evidentiary Batson hearing, McMahon explained his decisions to strike each of the unemployed two black venire- persons, respectively, follows: Peremptory
[Commonwealth # girl This is a at 24 8]: who again the factor stability mother, was still living with her her mother student, doesn’t work and that she’s a that again the stability factor. My question looking juror at this where is the money coming from? they How are surviving? are they living How a normal life if she’s a student and not mother is not mother at lives her with
working, factor there. stability me rose the That to working? that out jumps # one Peremptory 17]:[T]he [Commonwealth factor, again but unemployment is the again at me criteria, I do in in mind a but my and of itself. This wasn’t me that he had appeared it dire looking at this voir to it because he worked my reaction been fired. That was and he was from PECO and he didn’t for PECO retire specifi- and he was asked right at the time now unemployed PECO, go any no. And I didn’t from did retire cally you he that guy to embarrass because I didn’t want further that belief at my fired from PECO had been again goes to the time, he had been fired factor, not a but he was stability factor, That’s you know. *22 may there you to be fired and know appeared that guy as testi- previously other reasons that I’ve been some have me as I—that concerned fied, something but was stability is concerned. far added). 12/11/02, 44,
N.T., (emphasis at 49 testimony at the elsewhere his explained As McMahon he of the reasons that instability one hearing, was Batson goes to stabili- jurors “unemployment and prospective struck automatically. you exclude “unemployment but wouldn’t ty,” Id. at 43. for reasons.” could be various People unemployed re- Here, McMahon struck venirepersons of the whom both just other than instability of additional indications vealed was, twenty-four years #8 Peremptory unemployment. mother; Peremptory her old, still lived a student who with job. In previous from his been fired appeared # 17 have not to McMahon chose contrast, venireperson whom the white any # not exhibit strike, did ultimately became Juror who unemployment. other than instability indications of additional residence, dire, her her stating place than During voir other and previous occupation, status and unemployment husband’s merely ques- # answered Juror daughter’s occupation, her fair ability and her to be her service previous tions about if appropriate. for the death penalty and to vote impartial N.T., 10/19/88, at 135-37. See record, in Turner light the Ninth Circuit’s decision At- supports portrayal
undermines rather than torney explanations using Peremptories McMahon’s for #8 # pretextual. only striking 17 as As the reason for venireperson, black in Turner cited the prosecutor venire- reluctance to person’s type gruesome photographs view the be prosecu- would shown a homicide case. Because the not to venireperson tor chose strike a who exhibited white reluctance, greater even the Turner court deemed the prose- explanation cutor’s the court pretextual. Importantly, was emphasize careful to that it “not a case in confront[ing] was the prosecutor offered several for a explanations per- strike, emptory juror and a seated shares some of the same Turner, justifications.” characteristics cited as 121 F.3d at Indeed, the Turner court found the prosecutor’s expla- “[bjecause nation pretextual specifically the reluctance to view only photographic evidence was the reason actually proffered added). venirepersonj’s exclusion.” Id. (emphasis [the Here, McMahon offered additional using Peremp- reasons for status, tories # 8 and # other than employment their reasons inapplicable venireperson he accepted. whom Therefore, appellant’s allegation of lacks merit. pretext See Harris, 572 Pa. 817 A.2d (2002) (“Appellant’s jurors comparison with select charac- here, teristics does not establish that the strike which was upon reasons, based a combination of pretextual”). briefly argues next that Attorney McMahon vio- *23 by
lated Batson “striking black females with children who relate to might a black declining defendant” while to strike “similarly situated white women.” Appellant’s Brief at 36-37. a Appellant provides chart that showing McMahon struck the only two black mothers he had an to opportunity strike but did any strike of the three black women or without children the three white women without children he could whom have stricken. Id. The Commonwealth that responds appellant fails event, to independently develop this claim and the any record does not support it. the court noted merely this PCRA addressing argument,
In he entitled to relief “because that asserted that was appellant had of the black he an the struck 69% women prosecutor After Op. noting to Ct. at 14. strike.” PCRA opportunity further, argument any this the develop that failed to appellant lacked In his Brief to court that it merit. Id. PCRA concluded Court, the informa- appellant includes above-mentioned petition Neither his PCRA specific venirepersons. tion about to to dismiss his reply nor his the Commonwealth’s motion however, any to circumstances from voir referred petition, stricken than the of black that percentage dire other women Attorney struck any rise to the inference that McMahon give gender. on black women based their race particular and/or ¶ Therefore, 133; Reply Petition at at 3-9. we See PCRA failed to establish a appellant PCRA court agree with striking by case discrimination black prima purposeful facie females with children. next PCRA court erred when argues deny January its PCRA relief on
announcing decision to In asserts that “the PCRA court particular, appellant 2003. on the jury on the record that relief was denied stated had even claim because failed to establish appellant selection (a it case of discrimination has since prima position facie reversed, silentio, in Brief Opinion).” Appellant’s sub its that the PCRA response, argues In the Commonwealth element, court’s ultimate conclusion on third Batson discrimination, to purposeful failed renders appellant prove respect immaterial its determination with to first Batson element. Batson, appellant framework of burden-shifting
Under prima purposeful case of required establish facie made peremptory challenges discrimination certain required before the Commonwealth was Commonwealth those challenges. race-neutral reasons for Once the provide reasons, returned provided such the burden dispute of those reasons. persuasiveness 1925(b) of relief explaining its Rule its denial opinion claim, it Batson the PCRA court stated that “made *24 that preliminary finding prima a defendant had established a case.” at 12. The court then Op. PCRA Ct. reviewed facie testimony by Attorney the McMahon that the Commonwealth to rebut id. at 12-13. appellant’s prima used case. See facie deeming explanations After McMahon’s both race-neutral and credible, the that court concluded defendant has failed “[t]he carry showing prosecutor burden exercised peremptory challenges discriminatory his manner.” Id. Therefore, it is clear that the court properly PCRA burden-shifting of Batson applied appel- framework and lant’s allegation analytical error is meritless. argues next that the court erred in PCRA exclud-
ing the admission of critical Attorney comments that District Lynne Abraham made about the tape McMahon at a news conference held at the time of its According release. appellant, Attorney’s the District comments were admissible pursuant to the party exception admission to the hearsay rule.13 The responds District Attor- is not a ney party, that her comments do constitute an admission, event, in any and are not they relevant to Attorney McMahon’s individual state of mind during voir dire in this case. Court, Brief his to this appellant cites the following two
excerpts from articles newspaper published after shortly District release of the Attorney’s tape: McMahon
At a news conference Thursday, Abraham vehemently de- nied using tool, as a tapes political saying she was “ethically, morally legally” compelled release the information “on prosecutor a former who advocated select- ing jurors race, on the basis of seeking panels unfair lying about process.”
At a news conference today, Ms. said Abraham some convic- tions might judicial merit in light reviews of what she called the “outrageous” training tape. “That tape prose- shows a 13. A hearsay statement that would otherwise be considered is admissi- by 803(25). party ble if it was against party by made and is offered its opponent. Pa.R.E. discriminating to the court and lying advocated
cutor who race,” Abraham said. Ms. grounds on the appearing n. 6 articles (quoting Brief at 9-10 Appellant’s *25 1997).14 Times in of April and in New York Post Washington 401 defines relevant Rule of Evidence Pennsylvania make the exis tendency to having any as “evidence evidence of to the determination consequence that is of any of fact tence it be than would probable or less probable the action more this Building upon 401. Pa.R.E. the evidence.” without full, “All definition, in relevant 402 follows: provides, Rule admissible, provided by as otherwise law. except is evidence Pa.R.E. 402. is not admissible.” that is not relevant Evidence admissibility rule of the relevant Thus, general while rule that irrele subject exceptions, various evidence is. categorical. Accordingly, is is not admissible vant evidence is admission evidence whether inquiry threshold with “[t]he Collins, Pa. v. 585 is relevant.” Commonwealth the evidence Treiber, (2005); 582 45, 564, v. A.2d 577 Commonwealth 888 Robinson, 26, (2005); A.2d 32 Pa. (1998). A.2d 554 Pa. fact mate as the central correctly identifies
Appellant had a Attorney claim McMahon rial to his Batson whether his chal exercising peremptory intent discriminatory when in voir dire during African-Americans lenges against however, fails to trial, in 1988. place Appellant, took subject on the Attorney’s opinion District explain how or any probable makes more less tape matter of any particular venireperson struck that McMahon possibility does not appellant’s of race at trial. on account did not assume Attorney, that the District who even allege trial, years appellant’s more than two after that office until against case way in the Commonwealth’s participated any training tape, of the there of her evaluation Regardless him. Attorney the District is no reason believe simply to McMahon’s state of mind any privy more herself was released, running tape was McMahon was At the time the McMahon Attorney. against office of District Abraham for the for election during voir dire at appellant’s any trial 1988 than other person who viewed the 1986 training tape.
Therefore, because the remarks any were relevant to issue, material fact at the PCRA court did not err in excluding the District Attorney’s out-of-court regarding statements her opinion McMahon tape. Consequently, we need not consider whether the party exception admission to the hearsay rule applicable. Because it fails the threshold inquiry admissibility, this basis for relief on Batson claim lacks merit.
In his final argument claim, support his Batson appellant baldly asserts that the PCRA court erred in ruling that statistical evidence of McMahon’s Attorney allegedly dis- criminatory jury selection practices in other cases “was not necessary and then claiming had failed to prove a prima case.” Appellant’s Brief at 42. Although facie *26 of a consisting Brief, brief paragraph appellant’s this argu- ment is the focus of the amicus curiae brief submitted the Pennsylvania Association of Criminal Defense Lawyers. The responds that the statistical study upon which appellant relies is both flawed as a matter of and methodology to the irrelevant issue sub judice, namely, whether McMahon exercised peremptory challenges account of race during voir dire at appellant’s trial. noted, 1925(b)
As previously
in its Rule
opinion explaining
its denial of relief on appellant’s
claim,
Batson
the PCRA
court stated that it “made a preliminary finding that defen
dant had
prima
established a
case.”
Op.
PCRA Ct.
at
facie
Therefore,
12.
appellant can only be
to argue
heard
that the
study
statistical
was admissible to prove purposeful discrimi
nation on the part of Attorney McMahon “in
particular
Batson,
case.”
98,
at
Instead,
U.S.
605
668,
2052,
v.
466
104
80
Washington,
Strickland
U.S.
S.Ct.
(1984).16
L.Ed.2d 674
To demonstrate
prejudice,
petition
er must show that there is a reasonable
but
probability
omission,
proceeding
for counsel’s error or
the result of the
Sneed,
been different.
v.
587 Pa.
would have
Commonwealth
(2006)
318,
1067,
Strickland,
899 A.2d
1084
(quoting
466 U.S.
2052).
694, 104
A
probability
probabil
S.Ct.
reasonable
is a
of
ity
is sufficient
undermine confidence
the outcome
Strickland,
694, 104
proceeding.
(quoting
Id.
Because
represented by
was
new counsel on direct
appeal,
appeal
and his
pending
prior
collateral review
Grant,
48,
decision in
our
Commonwealth v.
Pa.
813
572
(2002),
A.2d 726
current
ineffectiveness claims are
Grant,
only cognizable
“layered
claims.”
A. Failure the medical examiner claims that trial counsel was ineffec first at the time for to secure medical evidence available failing tive theo the Commonwealth’s conclusively disproved of trial that that trial argues counsel ry Specifically, appellant of the case. Catherman, M.D., the failing for to ask Robert was ineffective conducted the au medical examiner who Philadelphia deputy time at could Tyler, Tyler the earliest topsy Alvin Catherman, “Dr. contacted According appellant, have died. that the deceased was investigation, confirmed P.C.R.A. which, a.m.,” appellant at 1:30 or near 1:30 anytime not killed testimony from the trial Commonwealth witness deduces Harmon, time of death. approximate Appel was the Sondee at 44. lant’s Brief appellant asserts response, the Commonwealth (1) that trial assumptions: false following
makes the two time of death Tyler’s to ascertain attempt counsel did (2) Catherman; of Dr. his cross-examination during on the exact theory depended of the case Commonwealth’s ar- Consequently, time of death. Tyler’s counsel’s decision not to Dr. Catherman as to gues, press trial and, event, in any the exact time of death did was reasonable appellant.17 not prejudice claim,
The court denied relief on finding PCRA did not that trial failure to Dr. press show counsel’s *29 on Tyler’s Catherman the time of death prejudiced appellant. The reasoned Dr. if it testimony, court that Catherman’s even death, had been more to the have specific as time of would not testimony, been inconsistent with Harmon’s left a rela- which window which have died. tively Tyler wide within could defense of Dr. During counsel’s cross-examination Cather- trial, man at the following exchange occurred: Doctor, to the first referring page [Defense counsel]: your there postmortem report, is an indication the third line in the blank it says injury”, where “date and hour of you question have 12-7-86 after that. with mark Could you explain that? That means on the
[Dr. Catherman]: that based available my information and body, examination of the that this death December, had occurred sometime on the 7th of 1986. The precise timing noon, whether before noon or after was not established. There were some indications on body early postmortem that changes begun had to occur. Iwas, guess There indications that this in layman’s were terms, early decomposition change of so some hours or prior to the time body when the It was seen examined. alternative, argues, appellant's 17. The Commonwealth in the that inef- claim is fectiveness hearing. waived because he abandoned it at PCRA acknowledging pleaded While appellant that PCRA his petition failing that trial counsel was ineffective for to ascertain the death, argues appellant time of the Commonwealth that waived by focusing hearing claim at the PCRA on related but claim distinct failing that trial counsel was ineffective for retain his own medical expert. Although questioning PCRA counsel’s of trial does counsel overlap development reflect some in the former’s of the record with issues, respect testimony to these two PCRAcounsel did elicit trial from press counsel that is relevant to his failure to Dr. Catherman on the N.T., 12/13/02, (reflecting exact time death. See at 30 trial counsel’s precise respect recollection that Dr. Catherman "couldn’t be more with so”). following day to minutes or even hours from 12:00 noon the or Therefore, we conclude that did not waive the instant claim. to be able to be more unfortunately, me is possible, or hours to determine say within minutes even precise to on 7th noon or after noon December whether it before actually that the death occurred. you. Thank counsel]:
[Defense N.T., 11/8/88,at 979-80. 17, 2002, the on held December hearing
At the PCRA Dr. a statement of accepted stipulation PCRA court counsel introduced lieu of that PCRA Catherman statement, N.T., 12/17/02, at 5. testimony. doctor’s See 1998, is Dr. Catherman stated dated December that he conducted autopsy had report he reviewed 9,1986, transcript as on December as well Tyler’s body on above, gave that he trial testimony, quoted that, after further stated November 1988. Dr. Catherman documents, he had those concluded follows: reviewing certainty reasonable medical my opinion It with December 1986 but sometime after noon on [Tyler] died *30 day before noon that shortly that it occurred possibility does exist. if could Tyler in a Mr. hypothetical question
If I were asked AM 7, 1986 between 3:00 seen alive on December have been AM, upon I based observation respond and 4:00 would be my opinion his it would body presented, and facts at that time. he was alive Exhibit # D3. PCRA statement, exceeds one barely page
Notably, Dr. explain nor even mentions length, neither attempts ... possible is not testimony trial “[i]t Catherman’s before or after noon on determine it noon whether occurred.” Nor does actually December 7th that the death supposed trial to know suggest the statement how counsel was mind More changed opinion. that Dr. his and Catherman had that he have Dr. does not state would importantly, Catherman and 4:00 Tyler likely testified that was most alive between 3:00 if him at trial as to the exact pressed a.m. defense counsel had trial baldly asserts that Appellant time of death. nonetheless the exact challenge pinpoint counsel’s failure to the doctor and hearing time of death “led to the conclusive scientific defense.” Brief at sustaining appellant’s Appellant’s evidence specific predicate 43. In the absence of a factual demonstrat Dr. to the exact ing pressing trial counsel’s Catherman as how better Tyler’s time of death would have served interest, appellant carry showing has failed his burden Smith, Therefore, prejudice. (Clifford) supra. appellant See is not entitled to relief on this ineffectiveness claim. See Sneed, supra.
B. Irreconcilable conflict with trial counsel next claims that he was denied effective assis- tance of counsel to an conflict” allegedly due “irreconcilable counsel, Attorney Appellant’s with trial Lorusso. Brief at 46. Appellant bases this ineffectiveness claim on the trial court’s (1) (2) counsel; failure to: new trial appoint conduct a mean- conflict; (3) to examine the ingful hearing alleged appoint counsel to assist independent appellant establishing existence of the conflict. claim,
As his first basis for relief on this appellant asserts that Attorney Lorusso had an irreconcilable conflict with appellant during the trial because appellant had raised claims Lorusso’s Attorney representing ineffectiveness at his trial for another prior murder that was when pending the instant murder trial began. Appellant notes that on 27, 1988, 31, 1988, September again October he notified Latrone, Judge judge presided trial, at appellant’s who his concerns Attorney handling with Lorusso’s of and prepara- N.T., 9/27/88, tion for his at defense. See id. 47-48 (citing *31 21-25; 624-30). N.T., 10/31/88, at Appellant alleges that he that the court requested appoint new trial counsel on these occasions. In that arguing Judge Latrone erred in to refusing Lorusso, replace Attorney appellant upon relies Common- 193, Tyler, (1976), wealth v. 468 Pa. 360 A.2d 617 this which held trial Court that the court had its abused discretion refusing appoint new counsel.
610 Latrone Judge counters that addressed
The Commonwealth Attorney that raised as to Lorusso’s appellant the concerns Attorney for trial and that Lorusso assured readiness for trial. The prepared that he Commonwealth judge to the concerns that response appellant further notes that 27, 1988, Judge postponed Latrone September raised on Finally, noting three commencement of trial for weeks. trial charges speedy also moved to dismiss the trial, for demanded a and moved recusal grounds, waiver Latrone, argues Judge Commonwealth just many one of tactics to avoid for new counsel “was request Brief at 47-50. to trial.” Commonwealth’s going claim, relief on this the PCRA court found denying reason for his any cogent unable articulate appellant “was Lorusso, assured the trial Attorney dissatisfaction” with who on the zealously court that “he would be able advocate Thus, at 6. the PCRA Op. defendant’s behalf.” PCRA Ct. err in refusing court determined that the trial court did not counsel failure to show “irrecon- appoint given appellant’s new ... him from prevented cooperating cilable differences [Attorney Id. Lorusso].” with 122(C)
Pennsylvania Rule Criminal Procedure change motion for of counsel a defendant provides that “[a] assigned has been shall not be granted to whom counsel 122(C)(2). “To for substantial reasons.” Pa.R.Crim.P. except standard, he a defendant must demonstrate that satisfy that precludes has an irreconcilable difference with counsel Spotz, from him.” Commonwealth v. 562 representing counsel 1139, (2000). 498, 756 A.2d Whether motion Pa. is change granted of counsel should be within sound appeal of the trial court and will not be disturbed on discretion Id.; Basemore, v. absent abuse of discretion. Commonwealth (1990). 861, 512, an is indigent 525 Pa. 582 A.2d “While counsel, free he not entitled to free counsel of his entitled to 626, Chumley, 482 Pa. choosing.” own (James (1978); 507 n. 3 accord Commonwealth v. A.2d Lee) Smith, (1978); Pa. 1012 n. 3 391 A.2d *32 Commonwealth v. Segers, 460 Pa. 331 A.2d (1975).
We first note that the notes of from the testimony pre-trial hearings that Judge Latrone held to specifically ap- address pellant’s concerns toas his do representation not reflect that appellant ever requested that the court Attorney replace Instead, Lorusso as trial counsel. the record reflects that at the September 1988 hearing, appellant notified court that he had “talked to Mr. LoRusso in reference to certain things pertaining know, case my just and he doesn’t you know, going N.T., 9/27/88, what’s on in this matter.” at 22. Judge Lorusso, Latrone then questioned Attorney who con- firmed matter, due to his in involvement another he and appellant yet had not had an opportunity to discuss appellant’s defense. Consequently, the court rescheduled selection 11th, for October thus allowing defense additional two to prepare Nevertheless, weeks for trial. on the very eve of trial, appellant again voiced concerns to the relating court Attorney Lorusso’s for readiness trial. After hearing appel- concerns, lant’s Judge Latrone asked Attorney twice Lorusso whether he adequately prepared times, for trial. Both Attorney Lorusso responded N.T., the affirmative. See 10/31/88, 624, 631.
In light of the foregoing, appellant’s reliance on Common wealth v. Tyler, case, is supra, misplaced. In that Tyler alleged “an irreconcilable opinion difference of him between self and his court appointed to the counsel as manner in which the trial of his case should be Tyler, conducted.” 360 A.2d at Tyler 618. change counsel, moved for but the trial court denied the motion. appeal, On that the holding trial court abused its motion, discretion in denying the this Court noted Tyler’s counsel actually agreed Tyler with that a differ of opinion ence existed them between as to how to conduct his defense. Id. at contrast, the dispute here did not involve a differ
ence Moreover, over the defense. sub judice record reflects that Attorney Lorusso denied specifically assertions that he was unprepared represent Where, here, and his trial.. the defendant
adequately at
contentions as to the readiness
competing
counsel offer
trial,
court
it is for the trial
to decide
defense counsel
preparedness
counsel’s
degree
of defense
portrayal
whose
(finding
abuse
A.2d at 1150
no
Spotz,
more accurate. See
appoint
trial
counsel
by
refusing
of discretion
court
new
the matter and was assured
“investigated
where court
*33
advocate zeal-
they
that
be able to
appellant’s counsel
would
Basemore,
behalf’);
582 A.2d at
ously
to
by
refusing
trial court
no abuse
discretion
(finding
that the defense
counsel
appoint
“stat[ed]
new
where
“related
but defense counsel
complete”
was
investigation
trial”).
that
to
to
prepared
go
he was
case,
In
concerns
considering appellant’s
the instant
after
trial,
the court determined
to
Lorusso’s readiness
Attorney
trial
unjustified. Consequently,
that
the
the concerns were
to
allowing
court
not abuse
discretion in
the trial
did
its
a
defense counsel.
proceed
change
appointed
without
ineffec-
layered
As
basis for relief on the instant
his second
claim,
the trial court insuffi-
appellant argues
tiveness
ciently
his
of irreconcilable differences
explored
allegations
that “the trial
Attorney Lorusso.
contends
Appellant
with
Mr.
court
not hold a
which both counsel and
‘hearing’
did
air their
and
to their
respond
respective
Cook could
views
acknowledges
Brief at 50.
Appellant’s
Appellant
claims.”
opportunity
court
him “a limited
to air
the trial
allowed
Nevertheless, citing
some
concerns on the record.” Id.
of his
(9th
Moore,
Cir.1998), appel-
In for the Ninth Appeals U.S. Court Circuit held that an irreconcilable conflict between defendant and his right counsel violated defendant’s Sixth Amendment assistance of opinion, effective counsel. its the Moore court separately considered three factors that it deemed relevant determination, (1) (2) conflict; namely: the extent of the conflict; (3) into adequacy inquiry court’s the timeliness of the defendant’s motion for new counsel. Id. factor, at 1158-59. As for the first the court found that “[i]n consistent, court, persistent representations to the Moore conflict,” presented strong evidence of an irreconcilable id. at by testimony which was corroborated from Moore’s counsel, alia, included, see id. at 1160. This evidence inter argument” “serious between Moore and his counsel his over defense, handling belligerent Moore’s threat Moore to by malpractice, sue his counsel for and testimony by Moore’s counsel that he “felt physically threatened Moore.” Id. at *34 It after only finding was in the record such strong evidence of an irreconcilable conflict that the Moore court proceeded to its three-factor to apply test examine the ade- quacy inquiry district court’s into the conflict.
In contrast to the strong evidence of an irreconcilable Moore, conflict that the presented defendant in appellant, who is a lawyer, merely voiced to the trial court general his misgivings about the extent of Attorney Lorusso’s preparation for trial. Rather than confirming appellant’s representations court, to the Attorney Lorusso stated on the record that “Mr. I Cook and have discussed the I really case and feel I am ready based on our discussions and the evidence at hand[.]” N.T., 10/31/88, Therefore, at 631. even if the Ninth Circuit’s three-factor test to determine the adequacy a trial court’s into inquiry conflict with defense counsel binding were Commonwealth, Judge we would conclude that Latrone’s in- sufficient quiry given of the evidence that weakness appellant presented of a irreconcilable supposed conflict with appellant’s layman opinion from
Attorney arising Lorusso of preparation. to Lorusso’s state final basis for relief on the instant As his third and claim, the trial briefly argues appellant ineffectiveness counsel at the independent to “failing] provide erred court Brief at 51. Citing United proceedings.” Appellant’s conflict (9th Cir.1987), Wadsworth, F.2d 1500 States claim of an irreconcil hearing that a on defendant’s contends of trial stage proceed his counsel is a critical able conflict with counsel attaches. The Common right to to ings which distinguishable that Wadsworth is briefly responds wealth judice. from the case sub Court, it does not bind this
In addition to the fact that case. from instant readily distinguishable Wadsworth “[u]nder Ninth determined Wadsworth The Circuit case, court should of this the district unusual circumstances to attorney” an proceedings appointed suspended have on his motion for new hearing at the Wadsworth represent circumstances” included Id. at 1511. Those “unusual counsel. to “antagonistic” opposition active and Wadsworth’s counsel’s his that he was bitter about the motion and his “admi[ssion] at 1510-11. The of confidence in him.” Id. client’s lack hostility not reflect such level of judice record sub does it Attorney Lorusso such that would appellant and between during denial of effective assistance counsel amount explored appellant’s the trial court proceedings no relief is representation. Accordingly, his concerns with claim. on this warranted object references
C. Failure witnesses’ appellant’s prior “bad acts” *35 claims that trial counsel ineffective for next was Appellant testimony “regaled four instances of that failing object to to Brief at Appellant’s of other crimes.” jury] with evidence [the testimony particularly that this Appellant argues 52. the trial court in the absence of an instruction prejudicial explaining proper purpose for which the could consid- er such evidence.19
In counsel response, Commonwealth notes that defense did, fact, in object testimony appellant to some of the that presently forwarding cites this claim and that the trial court counsel, objections. those Defense properly overruled argues, object- had a reasonable basis for not ing, grounds, subsequent testimony, on the same to as the trial court any objections. would have overruled such claim, relief on denying the PCRA court addressed of two the four instances of to testimony appellant which Specifically, refers. the court that of testimony found Brown, Anna Darcyne Serrano and of see infra, was relevant to explain delay each woman’s to the her reporting police knowledge appellant’s involvement in murder. Tyler’s “[ejvidence Pennsylvania Rule of Evidence 404 provides crimes, of other wrongs, or acts is not to prove admissible character of a person order to action in conformity show 404(b)(1). therewith.” Pa.R.E. of other acts Evidence bad however, may, be admitted if purpose, offered another motive, intent, such as proof opportunity, preparation, plan, 404(b)(2). or common scheme. Pa.R.E.
In advancing claim, the instant appellant first quotes testimony from his girlfriend, former Anna Serrano. Ms. Serrano that a testified few weeks after the murder Alvin Tyler, he, Harmon, told appellant her that Sondee and Raul (Ms. brother) Serrano Serrano’s robbery had committed a Tyler’s house and that “there was a struggle” among them. N.T., 11/2/88,at 897. When asked she did not why immediate ly report this information to the police, Ms. Serrano testified appellant times, “had threatened me so many he had told me that if jerked him, woman, any woman ever she would pay, and me specifically, my brother be the to would first does not failing claim that trial counsel was ineffective for Therefore, request analysis such an instruction. we confine our appellant presents, namely, the issue that whether trial counsel was failing object ineffective for testimony to the four instances refers. *36 prosecutor at 899. the asked whether she Id.
go.” When him, course, I responded: Ms. believed believed Serrano “Of he I had done before. I knew what was him. seen what he this point, of.” Id. 900. At defense counsel capable at mistrial, but the trial court allowed objected requested and that it at a sidebar conference was testimony, reasoning Therefore, why to afraid of him.” Id. “relevant she was objection, first actually trial counsel made desired testimony appel- support of acts” does not prior instance “bad Moreover, underlying ineffectiveness claim. evi- lant’s to proffered purpose for a other than plainly dence was show and, thus, relevant. propensity criminal was testimony upon appellant The second of relies excerpt knowledge for his of explanation withholding is Raul Serrano’s in Mr. testi- Tyler’s involvement murder. Serrano appellant’s July 8, seven months after the murder and fied in a the crimes statement to robbery, he described written had “afraid to Serrano further testified he been police. do anybody” appellant something tell believed that “would N.T., 11/3/88, Serrano, however, did not to me.” any prior part appellant on the testify actions whatsoever his it mention fear. Because did not “other inspired crimes, acts,” testimony impli- or does not wrongs, Serrano’s and, therefore, trial not cate Rule 404 counsel was ineffective object propen- on other crimes criminal failing thereto / sity grounds. testimony Dareyne next cites from Brown that she advancing
in the instant claim. Brown testified did immediately knowledge appellant’s her involve report Tyler’s appellant. ment in because she was afraid murder N.T., 11/4/88, at further testified that she was 1112. Brown that he used to things afraid “because do [of] I to hurt them bad. didn’t girlfriends, pretty to his he used ], I just in chains so left it alone.” Id. put any be [ want delay relevant to Again, explain evidence was Brown’s Indeed, she day what knew. before Brown relaying testified, objection the trial to Anna court had overruled an appellant’s prior threatening references to vio- Serrano’s behavior, lent that the “relevant to reasoning testimony was and, turn, him” why why she afraid of she did not N.T., immediately implicate appellant Tyler’s murder. 11/2/88, As at 900. Brown’s reference to violent reason, for the same the trial court behavior was relevant properly objection overruled an trial counsel if would have it had been made.
Moreover, in subsequent testimony given day before *37 testified, Brown Ms. Serrano elaborated on the nature violent relationship appellant. particular, of her In Ms. with Serrano (1) testified that appellant: “throwed down the stairs” [her] (2) once; head, more than “put gun to and then asked [her] (3) had prayers lately”; said “pulled [her] [she] [her] [her] (4) times,” arm of place”; out and a couple “swelled [her] including one occasion on he so up “swelled head” [her] N.T., severely sought that she treatment at a hospital. 11/3/88, addition, at 949-50. generally when asked more she no [appellant] problem physical whether “knew had with [her]self,” violence towards or responded, women Ms. Serrano “Absolutely.” Id. at 950. Thus, a passing when Brown made reference on the stand to appellant’s history of domestic violence, fresh in already jury’s the mind detailed ac- were counts of injuries the that appellant allegedly inflicted as provided by person the very who endured them. These facts directly explain why were relevant to initially witnesses were reluctant to come forward.
Furthermore, assuming even the trial court would objection have sustained an testimony Brown’s one had made, been it not reasonably is probable ulti mately would have reached a different verdict. This is espe cially true given overwhelming evidence against appellant presented at trial. That evidence the eyewitness included testimony co-conspirators; two witnesses, testimony Serrano, other including two Anna children, mother of appellant’s bragged that he had about murder; committing that, testimony Ms. Serrano’s further just murder, prior weeks to the made victim had sexual advances to her appellant and that had responded casually by identified at trial as worry; glove not to
telling her underneath the victim’s that was found belonging appellant Cook, A.2d 544 Pa. body. See Commonwealth (1996) sufficiency supporting of evidence (reviewing 643-44 conviction). Therefore, of all the light foregoing, trial counsel has failed to show had appellant find that we history testimony referencing appellant’s objected to Brown’s behavior, probability appellant there is a reasonable of violent failed to demonstrate Having been convicted. would have his layered not entitled to relief on prejudice, appellant trial counsel’s failure upon claim based ineffectiveness Dareyne Brown. object testimony to the testimony appel- final instance of trial The fourth and that of his his “bad acts” claim is forwarding lant cites mother, Defense counsel called Mrs. Cook Dorothy Cook. (1) Mrs. that she: Anna once told Cook testify that Serrano Tyler’s during murder had lied implicating when (2) immediately hearing; at a testimony preliminary her to such an extent upset an stomach experienced thereafter testified medical treatment. When Mrs. Cook sought that she prelimi- had discussed Ms. Serrano’s that she and Ms. Serrano defense counsel asked Mrs. Cook hearing testimony, nary *38 testimony. that At that concerning Ms. told her what Serrano a sidebar conference en- objected the and point, prosecutor conference, the defense prosecutor At the warned sued. the door to cross-examination as opening counsel that he was complaining contacted Mrs. to Ms. Serrano had Cook whether on three testifying against appellant of an stomach after upset in appellant other cases which occasions two separate defense counsel voiced his con- murder. After charged with charged that had been jury’s learning appellant cern as to the murders, prose- the court instructed that the other trial with long as he “as as cutor could cross-examine Mrs. Cook wished N.T., to offenses.” any specific he does not earmark it as 11/9/88, 1205. at sidebar, the permit- the issue at trial court
Having resolved continue direct examination of Mrs. defense counsel to ted Cook, her that she had lied testified that Ms. Serrano told who hearing. at the Id. testifying against appellant preliminary cross-examination, prosecutor at 1206. On asked Mrs. “got Cook whether she was aware that Ms. Serrano so sick that this lie that she problems and caused her such testified three times in three after separate distinct and incidents this came great upon sickness her?” Id. at 1217. Mrs. Cook her attempted prosecutor interrupted answer when the rephrased point, Id. at 1218. At that defense question. counsel moved for a mistrial on the refer- prosecutor’s based incidents, ence to “three distinct” court but trial overruled Thus, objection. Id. at 1218. actually as defense counsel objection, made the desired testimony the last instance of upon appellant which relies does not support instant layered ineffectiveness claim.20 Appellant is therefore not entitled to relief on this claim. object
D. Failure to to the Commonwealth’s improper bolstering of Sondee Harmon21 next claims that trial counsel was ineffective for failing object to the improper bolstering Commonwealth’s cooperating co-conspirator Sondee Harmon. Appellant alleges the Commonwealth bolstered Harmon improperly by (i) referring trial to: certain comments made the Honor- able Charles L. Durham presiding while over the on hearing Harmon’s guilty plea for her role in the murder and robbery appellant To pose the extent sounding would this as one issue appellate claim, pursue preserved counsel's failure to trial counsel’s it prosecutor fails question, because the withdrew the there was no crime, any specific reference to incident or other has not prejudicial shown the effect of the reference. claim, part appellant styles 21. As generally being based evidence,” on Appellant’s appellant briefly "inadmissible Brief at argues failing spousal trial counsel was ineffective for to invoke the privilege preclude testimony response, from Anna Serrano. correctly object notes that defense did counsel at a preliminary hearing taking grounds to Anna Serrano’s stand N.T., 9/21/88, spousal privilege. (reflecting See at 522 defense counsel’s position statement that "it is our [Ms. is the wife of Serrano] and, therefore, competent testify Robert Cook in matters not *39 assault”). consideration, involving her After careful the trial court Therefore, objection. overruled the See id. at 544. because defense actually objection, appellant counsel made the desired is not entitled to relief on this basis. (ii) the crimes about statement prior and Tyler;22 of Alvin consis- and that was attorney made to her Harmon had that trial. at testimony her tent with comments Durham’s Judge i appel of Harmon at his cross-examination During Judge the decision that trial, referred to counsel lant’s defense the Common hearing accept plea at her Durham made N.T., 11/2/88, $5,000. to set bail at recommendation wealth’s examination, asked ADA McMahon 843-44. On re-direct following: Harmon the issue, judge that same Page on thing other
One no record statement, “All You have right. to that prior said recommendation, and this is Attorney’s and on the District [i.e., Attorney District for this high regard I because have investi- thoroughly I he has and know Attorney McMahon] this, though even your part out case and found gated the statement, according your of the participants, are one you case.” Did in this principle the main [sic] you were that? you understand
Id. at 844. for counsel was ineffective claims that defense
Appellant com- read these Attorney McMahon object failing when comments that the argues Appellant ments into the record. the prosecutor.” ‘veracity of [Harmon] for “vouched quotes Commonwealth Brief at 56. Appellant’s (2002), proposi- for the Miller, Pa. 819 A.2d the existence and can reveal “the Commonwealth tion that action any take further but cannot agreement, of a plea terms that the vouches prosecutor to the indicate would omitted). (emphasis Brief at 56 testimony.” Appellant’s opened that' defense counsel responds The Commonwealth mention of the comments prosecutor’s the door to the trial plea agree- Harmon that the cross-examining suggesting when The falsely against appellant. testify her to ment induced certain counsel chose that defense contends 10, 1988, third-degree pled guilty murder February Harmon 22. On 11/2/88, N.T., at 844. Judge Durham. See conspiracy before *40 isolated of the excerpts testimony *41 nature, in nor time only prospective at that which was
pellant, Rather, the ADA McMahon. veracity for the of vouched mere- read into the record prosecutor that the trial comments for the Com- accepting Durham’s reasons Judge articulated ly $5,000 in set Harmon’s bail at recommendation to monwealth’s her for third- separate against case the Commonwealth’s Therefore, the Common- conspiracy.24 and murder degree credibility the of Sondee not bolster improperly wealth did comments into the rec- Judge Durham’s by reading Harmon allegation of error lacks underlying appellant’s ord. Because merit, failing for counsel not ineffective defense arguable . object to the comments. attorney to her Harmon’s statement prior ii. counsel argues also that defense was ineffective at trial to a object the referred prosecutor for when failing Tyler robbery the Alvin statement about murder prior attorney to her and that was consis- Harmon had made briefly trial. Appellant at testimony tent her with reference to the statement was prosecutor’s that the contends i.e., direct during it occurred improper because examination — appellant's Although necessary disposition of ineffective- not to our 24. Miller, claim, in accordance with the trial we further note ness during charge exhaustively jurors final as to the the its court instructed N.T., testimony. they See skepticism which should view Harmon’s with 11/15/88, testimony (noting be that Harmon’s "should at 1406-07 corrupt pollut- from a upon with because it comes looked disfavor bargained prosecutorial and that whether Harmon ed source” or self interest in leniency be considered "as a factor bias should testimony”). determining to believe her whether or not anticipation impeachment in of trial counsel’s Harmon —and to rebut the because “had no access to information examine the Brief critically Appellant’s contention or same.” at 57.
In that Harmon’s testi- response, the Commonwealth notes mony prior did not disclose the details of her statement. adds, if Har- improper,” “Even somehow the Commonwealth reference” on the to the statement “passing prior mon’s stand Brief 61. prejudice appellant. did Commonwealth’s at stated, As court found that the Com- previously PCRA improperly monwealth did not bolster Harmon. its Sondee In opinion, the court did not address Harmon’s specifically prior attorney. statement her Harmon, concluding during his direct examination she principal appellant played described role that
Tyler’s murder and robbery, prosecutor asked her wheth- er she had of December 6th and incidents “discuss[ed] attorney handling 7th” with her defense the Common- N.T., case her for her in the against part wealth’s crimes. 11/1/88, affirmative, After Harmon answered direct examination of Harmon concluded as follows:
[Q]: you Did tell him here everything you today? told *42 Yes, I did. [A]:
[Q]: just That and him? you was Just the of us.
[A]: two I no other questions. have [McMahon]: Id. at 791. 613(c)
Pennsylvania Rule of provides Evidence follows:
(c) prior Evidence consistent statement of witness. Evidence of a consistent a is prior statement witness purposes admissible for rehabilitation if the opposing party given an opportunity cross-examine the witness about statement, the the statement is offered to rebut an or express implied charge of: motive,
(1) fabrication, bias, influence or or improper made before that and the statement was memory faulty arose; or or charged has existed which been ' statement, (2) a inconsistent prior made having state- and the consistent explained, denied or witness has or explanation. denial supports ment witness’ state- 613(c). of a consistent Usually, prior evidence Pa.R.E. testimony introduced until after the witness’s may ment not be ways in one of the two on cross-examination has been attacked 613(c) 613(c). Occasionally, cmt. in Rule Pa.R.E. specified that the defense however, cross-examination it is clear before witness, by showing either impeachment focus will fabrication, bias, etc., a inconsistent by introducing prior or cases, discretion the trial court is afforded statement. In such in anticipation consistent statement prior to admit Wilson, 439, 861 v. See Commonwealth 580 Pa. impeachment. (2004). A.2d Melvin) (James decision in
This Court’s Smith, (1988), Pa.15, is instructive. 540 A.2d Smith, erred in the trial court appellant argued examination, state- prior consistent admitting, on direct Rucker, agreed testify had ment of a co-defendant who Levi coun- Citing a defense against plea agreement. Smith under may argument that Rucker during opening sel’s suggestion in order to testimony against appellant his have fabricated sentence, entire noted that “[Smith]’s obtain a more lenient we credibility around impeaching line of defense centered Therefore, that the the co-defendants.” Id. at 258. we held in allowing discretion” trial court “well within [its] consistent statements to rebut prior “to introduce prosecution in of the announced corrupt anticipation motives charge defense, partic- than cross-examination of following rather Id. ular witness.” case than in Smith
It is clearer the instant even acted its discretion that the trial court would have within of im anticipation consistent statement admitting prior *43 just before pre-trial hearing At a held two weeks peachment. Harmon, the direct examination of Sondee defense counsel plainly stated to the court that general defense that “[t]he [he] gleaned from Mr. Cook discussions [his] Sondee Harmon and N.T., Raul Serrano are not telling [ ] truth.” 10/17/88, Thus, from trial, at the beginning of there nowas doubt as to the general trial strategy the defense. More- over, knew, trial counsel certainly at the time he chose not to object, his strategy what was. Had defense objected counsel to the Commonwealth’s reference to Harmon’s prior statement to her attorney, the trial court would been have well within its discretion to the objection overrule in light of defense coun- sel’s previously announced intention to portray co- defendants as falsely testifying him in against order to obtain a more lenient sentence. Ultimately, the claim boils down to an order of proof issue. There is no merit arguable to appellant’s ineffectiveness claim based on defense counsel’s objection failure to raise an to the Commonwealth’s reference prior Harmon’s consistent statement. Because its underly- ing allegation improper bolstering merit, lacks arguable instant Sneed, ineffectiveness claim necessarily fails. See supra. object jury
E. Failure to instructions adverse inference and reasonable doubt next claims that trial counsel was ineffective for failing object portions to certain of the trial court’s instructions, (i) namely: the adverse inference charge that the trial court gave instructions; (ii) in its preliminary trial court’s reasonable doubt instruction.
i. Adverse charge inference Appellant first claims that trial counsel was ineffective object when, failing during instructions, its preliminary trial court referred to the defendant’s right not to testify his right “not to incriminate himself.” Appellant’s Brief at 58 N.T., 11/1/88, 659). (citing Appellant argues that the trial court thereby “explicitly linked the silence of the accused at trial to the of revealing avoidance incriminating information.” *44 v. Commonwealth
Id. acknowledges at 58-59. (1992) Stokes, 242, Announcing Pa. A.2d 704 (Opinion 532 615 (“OAJC”)), a claim in which similar Judgment the the Court Nevertheless, reasons appellant why offers two rejected. was First, appellant not the instant case. Stokes should control elapsed because too much time Stokes argues, inapposite the court’s initial adverse inference instant case the between instructions, the it its final gave during one that charge Second, appellant con proper. concedes was appellant Stokes “used an tends, analysis reviewing jury incorrect Brief at 59. Instead Appellant’s constitutional error.” charge whole, a jury on the court’s instructions as focusing trial submits, the this Court should ask whether trial its allegedly improper corrected instruc explicitly court ever Franklin, 307, 105 1965, Citing Francis v. 471 U.S. S.Ct. tion. Hernandez, v. (1985) and United States L.Ed.2d 344 176 85 (3d 719, Cir.1999), he is entitled appellant argues F.3d 735 the because counsel failed to court’s to relief trial draw had given to the instructions that it “contradictory” attention his to testify. not respect right with argues the that the trial court’s response, In Commonwealth a charge was correct statement the initial adverse inference specifically The denies con- Commonwealth law. jury comment the infer encouraged tention that court’s guilty. any at meant that he that his silence trial was notes, the clarified event, any trial court jury. in its final to the point charge on ambiguity rejected It court denied relief this claim. as The PCRA the trial court’s “brief the notion “pure speculation” jury made trial caused the to conclude that prior remark that he testify not to meant the defendant’s decision Ct. at 6-7. guilty.” Op. PCRA “It is reviewing challenged axiomatic instruction, court consider the entire jury appellate an must whole, merely isolated to ascertain charge fragments, as conveys fairly legal principles instruction whether Williams, 207, Commonwealth v. Pa. 732 A.2d issue.” (1999). “An if upheld clearly, instruction be it will adequately accurately reflects the law. The trial court legal use its form of difficult may expression explain own to the as trial court’s concepts jury, long instruction accurately conveys Spotz, law.” Commonwealth 563 Pa. (citation omitted). (2000) 759 A.2d instructions, During preliminary its the trial court instruct- ed the that: I you during my
as have instructed the course of voir dire instructions, instructions in terms of as a mat- preliminary evidence, law, ter of obligation defendant has no to offer bears no burden to introduce evidence and no risk of *45 persuading of the fact that he is innocent or not you guilty reason of the the The by fact of introduction of evidence. defendant has a to assert not to right rights his incriminate himself and remain silent Fifth under the Amendment. law, the every presumed Under defendant is innocent and right has the to remain silent Fifth under the Amendment. The sole only and and exclusive burden is on the Common- wealth this case to the prove guilty beyond defendant reasonable doubt.
N.T., 11/1/88,at 659-60. trial,
At appellant chose not to take the stand in his own Accordingly, defense. its final the during charge, trial court jury, instructed the in pertinent part, as follows: Furthermore, infer, you conclude, must not presume, or any entertain idea or inkling guilty the defendant is the charge for which he stands from the fact that accused he has not testified in his behalf in own this case. The defendant, Amendment, under the Fifth as I have instructed heretofore, you several times has a to right remain silent and not to testify.
N.T., 11/15/88,at 1378. Stokes, supra, appellant claimed that his counsel was to failing object ineffective to the trial court’s reference to the defendant’s not “right during to incriminate himself” its were, in The court’s instructions jury. to
instructions as follows: part, pertinent testify. and not to remain silent right has a
The defendant to of assertion process mental are not the indirect You any respect he silence to conclude right his anything by hiding or is anything wrong, guilty, done himself and to incriminate right' his not assertion of party as a take the stand and not to witness remain silent defendant. crime, is defendant, accused of the person as a
Again, in his prove anything or evidence required present defense. own internal
Stokes, quotation (emphasis A.2d at 709 omitted). judice, in the case sub like Much marks “incriminate” “create[d] the word argued Stokes that had taken jurors [Stokes] in the minds impression his involve- proven have testimony his own would the stand OAJC, then-Justice Id. In his charged.” in the crimes ment Justice) other (later for himself and writing two Cappy, Chief Justices, judge’s phraseology the trial acknowledged that id. Never- future use. See its against and cautioned flawed that the theless, charge, determined the three Justices whole, accurately sufficiently apprised in- Refusing review to remain silent. right defendant’s out of the one or words taken focusing on two “by structions the three Justices they spoken,” were context within which *46 ineffective “for counsel not that trial was concluded Stokes’ Id. choice of a words.” improper to the" few object to failing 450 Pa. 854 A.2d Speight, In Commonwealth rejecting in relied on Stokes (2004), a of this Court majority argued the Speight, appellant claim. similar ineffectiveness voir describing, during trial counsel ineffective that his “Fifth Amend dire, testify as his right not the defendant’s like Id. at 457. Much self-incrimination.” right against ment case, that argued “equating Speight in the instant appellant right Amendment the Fifth to remain silent with right failure jury [Speight]’s told the self-incrimination against incriminating.” to do so be be because would testify would (internal omitted). quotation Id. at 457-58 marks Noting that judge clearly the trial and accurately jury instructed the as to right defendant’s held that testify, Speight we failed to show that his counsel’s use of the phrase “right against self- incrimination” in prejudice resulted and therefore rejected his ineffectiveness claim. Id. at 458-59. case, in
Similarly, the instant has failed to show a probability reasonable had the trial court not made the one-time reference to right “not to incriminate himself,” the jury Moreover, would not have convicted him. the challenged reference did not purport to or restrict narrow rather, Fifth Amendment right; the initial infer- adverse charge ence as if reads rights. defendant had a series of Further, the initial charge appears in the context of the court’s comprehensive and accurate explanation that the burden of proof always remained on the Commonwealth. Both its initial instructions, adverse inference charge and its final the court and repeatedly broadly referred to appellant’s Fifth Amendment right as his “not to right testify” or “to remain silent.”
Appellant’s
Francis,
reliance upon
Hernandez,
supra, and
supra,
misplaced. Francis
involved an instruction that
erroneously directed the jury to presume an essential element
offense,
Francis,
315-16,
see
atU.S.
105 S.Ct.
while the trial court in Hernandez instructed the
“[tjhere is no specific definition” of reasonable
...
doubt
[i]t’s
you
what
in your
heart
your
own
own soul and your own
spirit
your
judgment
own
determine is proof beyond a
doubt,” Hernandez,
reasonable
verdict.”
Hernandez,
rejected
argument
the same
Third Circuit
given,
erroneous
instruction is
reasoning
an
“when
compel-
be
clear and
sufficiently
clarification must
subsequent
to
there
court
conclude that
was no
ling
reviewing
to allow
inaccuracy
initial
affected
that the
reasonable likelihood
Hernandez,
(emphasis
In the the various trial phrases instant to the Fifth Amend referring court used when defendant’s contradictory nor irreconcilable. Al right ment were neither “not to incriminate” is less charitable though phrase right right “not to or the right testify” the defendant than the “to to erroneous, silent,” inaccurate, it not or constitution remain Therefore, and are inapposite infirm. Francis Hernandez ally Furthermore, not the notion indulge here. we should astray. are so naive that the reference could lead them jurors the claim as one in counsel ineffec- Finally, sounding fails objected, Had the court could have ad- tiveness. counsel there, point merely then and which would dressed have i.e., it in fact had that one highlighted already what said— not right right Fifth Amendment is the to component if counsel the phraseology, incriminate oneself. Even noticed obliged object to a that he could charge he was to well Certainly, caused no has not believe harm. offered objectively that counsel’s conduct was unreasonable. prove to The court did not err this ineffectiveness rejecting PCRA object on trial counsel’s failure to to the court’s claim based to “not to incriminate” himself. right reference doubt
ii. Reasonable
instruction
The other
of the trial
portion
court’s
instructions
appellant bases his ineffectiveness claim is its
upon doubt. Specifically, appellant
instruction
reasonable
ob
of reasonable doubt as a
jects court’s definition
doubt
hesitate,
person
“pause,
cause a reasonable
would
(or
hesitate,
himself
acting
“stop,
restrain”
before
act)
consider”
he
rather
than
seriously
should
whether
merely hesitate before
Brief at 61
acting.
Appellant’s
See
*48
11/15/88,
1382).
N.T.,
(quoting
at
Appellant argues
“hesitate,”
unlike the
the
and “restrain”
“stop”
word
words
suggest that the action is not
taken
thus
ultimately
and
denote
a “much higher
process.”
level of doubt than is allowed
due
Id. at 63.
Appellant argues
the trial court’s instructions
“explained reasonable doubt to
jury
a manner that
diminished the Commonwealth’s burden of
Id. at 61.
proof.”
objects
also
to the court’s
of a
description
reasonable doubt as “much more serious” than a possible
N.T., 11/15/88, 1383).
doubt.
(quoting
See id.
Citing Victor
Nebraska,
1239,
U.S.
S.Ct.
The Commonwealth dismisses claim as “remark- ably frivolous.” Commonwealth’s Brief at 62. Noting that this Court “has explicitly approved of instructions containing decades,” word ‘restrain’ for nearly five id. (quoting Marshall, Commonwealth v. 570 Pa. 810 A.2d (2002) (OAJC)), the Commonwealth contends that the trial court’s reasonable doubt instruction in the instant case was “entirely proper,” id.
The PCRA court denied relief on this claim. In particular, it determined that the trial court’s use of the words and “stop and pause” “retrain and seriously consider” change “did not the meaning of reasonable doubt accurately and conveyed the concept to the jury.” Op. PCRA Ct. at 8.
During charge, its final the trial court instructed the reasonable doubt as follows:
isWhat a reasonable doubt? Note initially although the Commonwealth has the of proving burden defendant is guilty, does not mean that the Common- prove wealth must its beyond case all doubt and to a mathematical certainty, nor must it demonstrate com- plete impossibility innocence. cause a is such a doubt as would
A reasonable doubt careful, pause, reasonably prudent, person sensible hesitate, acting upon or before restrain himself herself affairs. his or her own highest importance a matter a person a doubt as cause A reasonable doubt is such would of impor- at a conclusion in a matter arriving to hesitate person.... to that tance one strikes a fairly
A to be must be doubt reasonable which It is' not such judgment. conscientious mind and clouds out conjure up or dig up, up, doubt as one summon might or or escaping purpose purposes of nowhere of an or unwanted avoiding consequences unpleasant honest, verdict; but it doubt reasonable and is a pre- out of the that was arriving real doubt evidence [sic] *49 lack, sented, out or just or of the void importantly, element absence of evidence with to some presented respect crime____ aby A as would be taken notice of reasonable doubt such case, case, in the is question in a or a or issue juror deciding reasonable of the same as a doubt that would cause a nature woman, affairs in a man or in the conduct his or her own hesitate, herself, stop, or importance matter of to himself seriously do a as to whether he or she should and consider thing finally acting. certain before Further, and something a doubt is different reasonable possible During much more serious than a doubt. acquisition worldly day-to-day course of in our knowledge a us and conclude that living, safely logically all of can things, in all it is almost doubt exists possible any human or come to impossible possess any knowledge There- possible to a doubt. certainty beyond conclusion fore, case required prove is not its beyond all doubt.
[*] [*] [*] [*] [*] [*] So, summarize, guilty not find you may the defendant conjecture, guilt. mere based on or surmise suspicion, N.T., 11/15/88, at 1381-84 (emphasis appellant’s, Appel- see 61). Brief at lant’s most an recently
We
considered
ineffectiveness claim of the
(Damon)
type
appellant
raises in
now
Commonwealth v.
Jones,
(2006)
Pa.202,
A.2d 301-02 (upholding instruction that “a mere doubt, hesitation and of itself a reasonable but a *50 hesitation ... become may a reasonable doubt if when and restraint”); that hesitation becomes a Commonwealth v. Pear son, 467, (1973) 481, 450 Pa. 303 A.2d 484-85 (rejecting appellant’s argument “halt, court’s phrase trial use of the hesitate refuse to take action” necessity indicated for jurors’ existence of in stronger doubt minds than re law quired).
Similarly, rejected this Court has consistently challenges to a trial court’s description of reasonable doubt as “much more serious possible than a doubt.” See Commonwealth v.
684 (2004); 761, 274, Commonwealth Pa. 865 A.2d 790 581 Hughes, (1999) 141, 71, (citing A.2d 147 559 Pa. 739 Murphy, v. (1992) Stokes, Pa. 615 A.2d 709 v. a chal- (OAJC)).25 Moreover, rejected also Murphy, in we Nebraska, The instruction at supra. lenge based Victor as “an actual and reasonable doubt in defined issue Victor arising ... from doubt distinguished doubt substantial fanciful or from imagination, from bare possibility, from mere Victor, Although 1239. at S.Ct. conjecture.” U.S. “substantial” noted that the use of word Court Victor challenge rejected Victor’s ultimately it “problematic,” was trial court meant clear that the context made because rather than “to a imaginary” or seeming as in “not substantial 19-20, 1239. As this at 114 S.Ct. Court Id. large degree.” further reasoned in the Victor Court Murphy, noted had an provided the trial court charge, in the elsewhere that cured the puta- of reasonable doubt definition alternative “substantial.” its use of word caused problem tive Victor, 20, 114 at (citing at 148 U.S. 739 A.2d Murphy, 1239). Therefore, after-decided Victor case does S.Ct. trial court erred in describ- claim that the support possible more serious than a doubt as “much reasonable ing to raise a claim failing cannot be faulted for doubt.” Counsel if a at the time of trial. Even no the law support that had appellant’s preference, someday uphold court were acting ineffective in 1988 for not make counsel would arguable there is no law. Because governing accordance with reasonable doubt to the trial court’s challenge to his merit this ineffec- instruction, not entitled to relief on Sneed, supra. claim. See tiveness jury charge object portions of final F. Failure to trial counsel ineffective next claims that “repeatedly the trial court intervened object when failing essentially This claim is trial.” Brief 7. Appellant’s final of the trial court’s instructions portions challenge two Stokes, judge Hughes, Murphy, Notably, presided in the same trial case. and the instant *51 First, jury.26 to the counsel appellant asserts that trial should objected improperly “presumed appellant have the court when the the that it perpetrator” instructing jury was when could “evaluate the facts about the how what defendant did before the actual killing, showing engaged activity he was N.T., directed to do the Id. at killing.” (quoting 65 & n. 43 1467). 11/15/88, Second, at appellant contends that trial coun- when, sel objected should have after the court instructed jury that it had the of of option convicting appellant voluntary manslaughter, the court stated its under the “opinion [that] facts and circumstances of this case ... voluntary manslaugh- ter not be an appropriate would verdict.” Id. at 65 & n. 44 1482). N.T., 11/15/88, (quoting at Appellant argues judge trial out of thereby “stepped proper by his role express- ing personal his to the opinion jury.” Id. at 65-66.
The
not
Commonwealth does
offer a
specific response
appellant’s allegation that the trial
improperly presumed
court
that appellant
perpetrator.
was
response
reliance on the court’s
of
expression
opinion
its
as to the lack
of evidence of voluntary manslaughter,
the Commonwealth
argues that
rejected
this Court
claim in
exact
Common-
Cox,
(1997).
Cox,
wealth v.
546 Pa.
26. the Factual section of his Brief in which he excerpts testimony, from the appellant single notes of also in a asserts sentence that "the trial interrupting court inserted itself into the trial witnesses, questioning defense counsel's one made least statement counsel, critical of testimony trial and summarized the of the various (thus putting imprimatur testimony).” witnesses the court's on their however, Appellant's Appellant, Brief at develop any fails to argument that objectionable, the trial court committed much less re- versible error in these instances. Because does no more than baldly arguable assert underlying that there is merit to this claim of error, allegations trial court we undeveloped do not consider these evaluating the instant ineffectiveness claim. based on statement
Appellant’s argument first instructing jury court in the trial made course murder. The court first-degree offense instructed *52 guilty first-degree “in find the of order to defendant deliberate, murder, wilful, that a you killing must find the was N.T., 11/15/88,at 1461. further act.” The court premeditated willful, that the jury killing instructed that the could infer was deliberate, deadly the of a and “from killer’s use premeditated body.”. of Id. at 1466. weapon upon part a vital a victim’s type court to “other of evidence proceeded suggest The then or should considered or to whether important be is as [that] willful, deliberate, namely: killing premeditated,” not a and is one, could the how and you evaluate facts about [N]umber the actual he killing, showing defendant did before the what in to do This engaged activity killing. was directed the as of planning activity, prior means such a possession the victim the weapon, sneaking up taking murder and Two, about the victim where others will not intrude. facts relations, association, or the conduct prior defendant’s with three, killing.... victim which show motive for the [A]nd killings. the facts nature of the added). Id. at 1467 (emphasis context, in full the instruc
Considered its trial court’s tion—that “could the facts about how and jury the evaluate he killing, showing the defendant did before the actual what engaged activity killing” in directed to do —did fact, was, presume or in improperly suggest Rather, murder. guilty first-degree explaining “type[s] to the jury evidence” relevant determination willful, deliberate, a premeditated, killing whether facts merely might perti court be specified particular jury nent. The did not direct the the facts apply court Therefore, by trial. there is portrayed the Commonwealth at no merit to claim that trial counsel was arguable required object by to this statement trial court.
Proceeding underlying to the other of error allegation has re- alleged we first note this Court appellant,
637 1983 that a is entitled to peatedly held since murder defendant on the lesser man- jury voluntary instruction offense there is slaughter only support where sufficient evidence 106, v. 560 Pa. Ragan, such verdict. Commonwealth (1999) alia, (citing, A.2d inter (1983)). Carter, 466 A.2d 1332-33 In the Pa. case, instant the trial court the jury did instruct that “volun- if tary manslaughter you you, your should be returned by wisdom, N.T., 11/15/88, proper decide that is a verdict.” at Nevertheless, appellant argues court erred telling “opinion the court’s under the facts and [that] ... voluntary manslaughter circumstances of this case would not be an Brief appropriate Appellant’s verdict.” at 65 & n. 1482). N.T., 11/15/88, (quoting
The full context of the court’s statement that “volun manslaughter not be an is as tary appropriate would verdict” *53 follows: here, judge
As the I am to presiding give opinion about an on or not the facts in supported by whether evidence this case voluntary show defendant committed man- instance, slaughter, in this or provocation passion man- understand, slaughter. Clearly you by are not bound that I opinion express am about to as the trial court judge. You have in the to every right disregard my opinion world that is about to be to are the expressed you. You factfin- any ders. You can return in you verdict that want this case. voluntary You are to consider all manslaughter equally with of the other in this If you verdicts case. to return that want verdict, so, it in your power is to do and feel free to do so. are not obligated by my opinion You statement of the about you. to be made to You can return a of voluntary verdict if the manslaughter even facts do not show the defendant of crime. I guilty pushing you; that am not I am not But, event, in prevailing upon you. any it is the of opinion little, this court if any, that there is of the crime of evidence case, voluntary manslaughter my this statement to is an you opinion respect with to the are you evidence which manner, by bound to abide or to or form way, shape,
in no you by. are not bound with which comply N.T., 11/15/88, at 1481-82. Cox, that appellant claimed supra,
In
Commonwealth
when,
its
object
during
for
to
failing
counsel
ineffective
his
was
commented that there
to the
the trial court
charge
jury,
final
voluntary
a verdict of
insufficient evidence
sustain
Cox,
discussing
A.2d at 1291.
In
Cox’s
manslaughter.
trial court “instructed the
claim,
first noted that the
this Court
their decision to make and
that the decision was
jurors
in ‘any
no
effect
controlling
of the evidence had
court’s view
”
trial,
further noted
Cox
or form.’
Id. We
way, shape
passion
of a sudden and intense
no evidence either
presented
2503(a),
§
or
from serious
see
Pa.C.S.
resulting
provocation,
self-defense,
see 18 Pa.C.S.
an unreasonable belief
of
2503(b). Cox,
Therefore,
rejected
§
In the trial court the instant as to the lack opinion not bound the court’s it was verdict. voluntary manslaughter a support of evidence Moreover, any evidence would appellant present did manslaughter instead voluntary support conviction fact, counsel re- closing argument, in his defense murder. presented had not asserted that peatedly any credible evidence of involvement whatsoever any See, N.T., 11/15/88, at killing. e.g., in Tyler’s part (“There’s case not an inch of evidence physical at all on the any culpability part indicate which would (“The Cook.”); only testimony you id. at 1310 Robert guilty upon in this case base verdict have *54 from motivation testimony people with Robert Cook ”). Therefore, offering court not err in its the trial did lie.... little, if evidence of any, there was opinion accurate it for charge open The court’s left voluntary manslaughter. unsupported man- voluntary verdict of to return an an for have been unwarranted windfall slaughter, which would no merit to either of his arguable Because there is appellant. to the jury, the trial court’s final instructions challenges to appellant is not entitled to relief on this ineffectiveness claim. Sneed, See supra. Evidentiary Hearing
III. Denial of Finally, appellant claims that the PCRA court erred an denying evidentiary hearing on “numerous” ineffectiveness claims. Appellant’s Brief at 98. Appellant argues by issues, denying hearing on these unspecified PCRA court prevented appellant from establishing absence of a reasonable basis on part both trial and counsel appellate failing to raise response, these issues. the Common- disputes wealth this claim on the basis that the underlying allegations of trial court error are waived and meritless. above,
As explained we have is not entitled to any claims, relief on of his ineffectiveness regardless wheth- prior er counsel had reasonable basis for failing to raise Therefore, them below. further development of the post- conviction record this case is unwarranted.
IV. Conclusion For reasons, the foregoing we affirm the order of the PCRA court.
Justice participate GREENSPAN did not in the consideration or decision of this case. EAKIN,
Justice Justice TODD and Justice McCAFFERY join the opinion.
Justice SAYLOR files a dissenting opinion in which Justice joins. BAER
DISSENTING OPINION Justice SAYLOR.
This matter falls into a particularly problematic set of criminal cases handled then-Assistant District Attorney Jack McMahon within a short time after gave he his 1987 jury-selection training session as recorded on the tape Basemore, issue. As with Commonwealth v. 560 Pa. *55 1988, this case in (2000), Mr. McMahon prosecuted
A.2d 717
Ex-
training
the
session.
year
one
approximately
within
tape
on the
are provided
of McMahon’s comments
cerpts
280-88,
Basemore,
at
The case law cases. to look I in the I had get wrote it down. looked —I jury. of a purpose I didn’t this was up because know fair, jury.” and impartial dire to a get competent, “Voir is Well, that. trying get ridiculous. You’re to that’s to jury likely are most trying get You’re—both sides them to do. they do whatever want you going if in there and one of think you any you’re And go jurors, try get to be libertarian and some noble civil “well, him,” fair; go he can be I’ll with that’s says he office; you’ll lose and be out of the you’ll ridiculous. You’ll doing happen. law. Because that’s what corporate be will You’re there to win[.] McMahon, at 45-46.
Jury transcript Selection with Jac k above, training in the class McMahon Consistent with indicates, a things, attempts other that: he to obtain among a in his to secure jury possible; that is as “unfair” efforts of jury-selection he to a set conviction-friendly jury, adheres are, in large part, gender;1 based race and principles women, experience, young example, my black 1. For he states "in bad,” 57; having very prosecutors black id. at should avoid women are young on the the defendant black “older black women” when is possible male instinct” that would cause lenien- because of “maternal order,” cy, "demanding” and "law id. at men are more whereas 56; attorneys an area of should also exclude individuals from district Streets, Philadelphia an 33rd and near the intersection of Diamond 21; black, predominantly December area known to be see id. N.T. (reflecting knowledge composition 2002 at 65 McMahon's racial Diamond); if a district neighborhood around 33rd and blacks, attorney "sitting you’re going you take want down and very good.” particularly ... black men are older blacks men. Older McMahon, transcript Jury at 55. Selection with Jack of Batson v. light Kentucky, 476 U.S. S.Ct. (1986), L.Ed.2d 69 he asks African American prospective jurors him questions designed provide pre- various with a textual, for exercising race-neutral basis a race-based peremp- strike; tory strike the event defense counsel challenges *56 tactics, and he never from these he deviates which likens to blackjack basic rules for in playing they should be always Again, followed. the also reflects tape contempt appel- toward late decisions the interpreting Constitution and a similar disrespect articulated toward the of the trial integrity process, in as manifested a studied lack of candor toward the trial court.2 view, evidence,
In my
words,
this
through McMahon’s own
strongly implicates
attitudes,
that he carried his impermissible
and applied
practices,
his unconstitutional
in trials within a
temporal
reasonable
proximity before and after the
making
I
tape. While
no difficulty
have
with the notion that a
Batson
here,
claimant maintains the burden of persuasion,
I
believe that
met
and exceeded his
in
burden
this
regard, and it therefore fell to the
rebut
that case with evidence
at
carrying
equal strength.
least
Cf.
Louisiana,
625, 631-32,
Alexander v.
405
1221,
U.S.
92 S.Ct.
1226,
(1972) (“Once
642 the more present case does not present
In this
regard,
met the
merely
a defendant has
scenario
which
typical
case, thus
Batson-type prima
threshold of a
fairly low
facie
explana-
his race-neutral
to articulate
prosecutor
requiring
Batson,
96-97,
at
476 U.S.
strikes. See
preemptory
tion for
Rather,
instance in
this is a more unusual
at 1723.
106 S.Ct.
has advanced the kind
direct
petitioner
the PCRA
actual,
envisioned
discrimination
purposeful
evidence
824,
Alabama,
202,
L.Ed.2d
85 S.Ct.
v.
380 U.S.
Swain
Uderra,
(1965),
580 Pa.
Centrally, I believe McMahon’s recorded and concerning consistently applied practices unconstitutional the jury ques- attitudes toward selection raise impermissible to he any experi- tion of there is basis believe that whether heart him to enced that could have caused change some the time he made jury alter his to selection between approach the trial the case. In his recorded tape present the comments, to simply too far his remarks McMahon went merely explained away. be recast or in the McMahon did testimony proceedings, his PCRA fundamentally to that he any not reference basis believe jury following his in the months altered selection approach tape; expressly of the nor did he making disavow Rather, tape. in the confronted with policies expressed when racially- using of the which he advocated portions tape justify he demographic profiling, sought based method of overarching goal such view of the obtain- methodologies—in person’s on the ing Commonwealth-friendly —based (as racial) classification and what demographic opposed his or her attitude to- regarding classification could indicate eliminating any possible ward or terms police, juror a female feel toward a male defen- empathy might December 2002 at 88-99. dant same race. See N.T. me, attempt his in the nature of an To comments were more or is no away, simply recast there evidence explain necessary change. watershed ordinary regime applied
Even under the Batson majority, Swain-type backdrop I believe that described analysis in the case. present above relevant to Batson Supreme explained As the in Miller-El United States Court (2005) Dretke, 545 U.S. S.Ct. L.Ed.2d 196 (“Miller-El ”): II
Although the from move Swain to Batson left a defendant challenge free to the prosecution without to cast having net, the Swain’s wide net was not entirely consigned history, Batson’s individualized focus came with a weak- owing ness of its to its very emphasis own on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson not amount to would much more than Swain. Some stated false, reasons are and although some false are reasons up case, shown the given within four corners of a sometimes a court may not be sure unless it beyond looks the case at hand. Hence Batson’s explanation that a may defendant rely on “all relevant circumstances” to raise an inference of purposeful discrimination. 239-40, Batson,
Id. at
at
S.Ct.
2325 (citing
evident his transcript explanations. to formulate race-neutral voir dire in itself is 2002 at 17. While this N.T. December See prosecutor’s demeanor re- point is that unique, challenge plainly significance to a of less Batson sponding he his reasons at time provides a context than such when in his they fresh mind. Miller-El v. of trial while are still Cf. *60 1042-43, Cockrell, 322, 343, 1029, 123 S.Ct. 154 537 U.S. ”) (2003) (“Miller-El explana- I (recognizing L.Ed.2d 931 a a after trial are hearing years offered at prosecutor tions from imprecision to the risks of and distortion “subject usual time”). Accordingly light McMa- passage —and regular question his to practice hon’s admission that it was develop pretextu- Americans in manner calculated to African a a peremptory race-neutral for race-based explanations al to believe that this Court entitled scrutinize strike5 —I in a less deferen- explanations facial of McMahon’s plausibility tial mode than usual. I rationale for strik- applied presently,
As
find McMahon’s
jurors
accepting
but
one
ing
unemployed,
two black
who were
juror
unemployed,
also
weak.
exceptionally
white
who was
328, a
juror
struck
black
prospective
He indicates
he
female,
24-year-old
living
because
a
student
with her
she was
mother,
“money
it
unclear where the
unemployed
was
[was]
from,”
coming
that these circumstances “rose
[sic]
N.T. December
at 44. It is not
stability factor.” See
2002
however,
evident,
24-year-old
may
a
student
be
why
consid-
any respect
prospective
ered in
unusual or unstable. As to
male,
black
that he exercised
juror
McMahon states
a
strike
the individual had
been
peremptory
apparently
because
job,
again, “goes
fired from his
a circumstance
However,
factor.”
there is
in the voir
stability
nothing
dire
McMahon,
70; Basemore,
Jury
transcript
with Jack
at
5. See
Selection
731;
II,
255-63,
Pa. at
at
Miller-El
Presently, observes, as the majority the record shows that McMahon peremptorily percent struck he blacks whom strike, had an opportunity to only percent versus of whites whom he had an opportunity strike. See Majority Opinion, at 605 n. 8 (noting that the PCRA court defined a venireper son prosecutor whom the had an to strike opportunity as one cause, who was not or excused stricken for and not stricken by *61 first). the defense when it was defense’s turn to go Additionally, of the nineteen peremptory challenges that exercised, McMahon fourteen percent) against (73 were Afri I, can Americans. Miller-El 537 U.S. at at S.Ct. Cf. that, 1042 (observing prosecutor where the ten of used his fourteen strikes percent) against Americans, (71 African such a result was not likely “happenstance”). due to It is not a convincing say answer to that African Americans served Appellant’s jury and that McMahon did not exhaust all his peremptories: in the he videotape, tailors his based racially jury selection theory to advocate some allowing blacks onto where, here, the jury the defendant eyewitnesses and the are black. McMahon hypothesizes respect this unless room, there are a few African Americans in the jury the white jurors might be inclined to an adopt apathetic attitude toward transcript only prospective juror 6. The reveals 203 had worked for an employer longer and no employer, worked for that same but that he had not retired. with Jack Jury deliberations. See Selection the crime during McMahon, (“I’ve id. at 59 see also 58-59; always transcript eight great like and four blacks is a felt that a whites three, you’re going get then jury, or nine and because there.”). of that any [apathy] circumstances, I conclude that of all of these would light McMahon’s explanations court’s decision to credit PCRA would, find accordingly, clear error and or Batson. carried his burden under either Swain joins dissenting opinion. Justice BAER
952A.2d 640 Pennsylvania, Appellant COMMONWEALTH
v. SATTAZAHN, Appellee. David Allen Pennsylvania, Appellee Commonwealth
v. Sattazahn, Appellant. Allen David Appellee Pennsylvania, Sattazahn, Appellant. David Allen Supreme Pennsylvania. Court of April
Submitted 2007. July Decided notes from Harmon’s plea that hearing helpful were to the defense. On re-direct exami- nation, the argues, prosecutor Commonwealth the merely those placed excerpts context the reading por- omitted tions, including the statement of Judge Durham that is pres- ently at issue.23 The PCRA court determined that claim based on Judge Durham’s comments was meritless. After quoting comments, the court found that they did relate to Har- credibility mon’s and therefore relief. denied Miller, presented of a testimony co-defendant who previously had entered into a plea agree- ment pursuant to which he expected avoid the death penalty in exchange Miller. testifying against During his direct and co-defendant, re-direct examination of the the pros- ecutor repeatedly questioned him as to whether his plea agreement him required testify truthfully. On appeal, Miller that argued prosecutor thereby bol- improperly stered the testimony. co-defendant’s disagreed, We holding that the Commonwealth can reveal the existence and terms of a plea agreement, but cannot take further any action that would indicate to the jury that the prosecutor vouches for testimony, such as introducing plea written agree- ment for the jury to peruse during deliberation ... or putting counsel for the on the co-conspirators stand to vouch clients____ veracity for the Moreover, their the trial court must give an instruction to the jury them cautioning to look upon testimony with disfavor and realize that (hat 23. appellant’s argument The Commonwealth also asserts is a “hybrid claim” that "is different from [appel- either of the claims that is, hence, lant] raised below and waived.” Commonwealth’s Brief at however, petition, appellant In his PCRA very cited the same portion testimony of the notes of that he cites his Brief to this Court ADA Judge McMahon read Durham’s comments into the argues, appellant petition record. Just as he now contended in his opinion was a only purpose "[t]his statement of that was for the bolstering testimony.” the witness' [Harmon's] PCRA Petition at 35. Therefore, we find properly preserved argument has for our review. others because of some falsely blame may such witnesses motive. corrupt and wicked added) (citations and inter- Miller,. (emphasis at 515 819 A.2d omitted). Mil- rejected Accordingly, marks we nal quotation of the “the use word claim, prosecutor’s reasoning ler’s co-defendant] [wa]s in his direct examination [the ‘truthful’ plea agree- of the parameters an articulation merely ment.” Id. statement, Judge of his plain from the words As is clear testimony against ap- for Harmon’s Durham neither vouched