Lead
OPINION
Bernard Cousar appeals from the order of the Philadelphia Court of Common Pleas denying, without a hearing, the guilt phase claims contained in his petition for relief from his death sentence under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we remand to the PCRA court for an evidentiary hearing limited to two issues—whether counsel rendered ineffective assistance for failing to: 1) show the ballistics evidence purportedly tying appellant to a series of crimes and murders was inconsistent; and 2) impeach an eyewitness’s in-court identification of appellant with the witness’s inability to identify appellant at his preliminary hearing.
I. Background
We summarized the underlying facts in our opinion on direct appeal affirming appellant’s sentence of death. Commonwealth v. Cousar,
With respect to the Santos killing, we noted appellant was identified at trial by four witnesses, one of whom followed appellant after the shooting and saw him enter a rowhome on the 3900 block of
Regarding the home invasion, the developed facts indicated appellant was captured by police after fleeing the front door of the subject property, and two conspirators who fled through a rear window were apprehended next-door to the property.
Appellant filed a timely petition for relief under the PCRA. An amended petition was filed by Billy Ñolas, Esquire, of the Federal Community Defender Office, raising numerous claims of error and ineffectiveness of counsel.
The facts pertinent to the instant appeal are that three bullet fragments were taken
The guns found in the alley behind Schoenberger’s house were one black Bryco semi-automatic .380 caliber pistol, identified as P-1 on the FIU print-outs, and a silver Taurus Brasil .357 magnum revolver, identified as R-l on the FIU printouts. At trial, Sehoenberger testified R-l was his gun, taken from his home by the intruders.
The print-outs indicate on April 6, 1999, Officer Joyce examined the bullet recovered from Santos’s body. On May 14, 1999, Officer Little examined the bullet fragments taken from Townes’s body and determined two of the fragments (B-l and B-2) were fired by a single firearm.
The three guns recovered from the home invasion were examined by Officer Finor. On July 29, 1999, Officer Finor concluded two of the three bullet fragments taken from Townes’s body and the bullet taken from Santos’s body were all fired from R-2, the black Astra .357 magnum revolver recovered in the basement of Schoenberger’s home. Specifically, the print-out information for “FIREARMS EXAMINER P/O FINOR” for “EXAM DATE 072999” indicates:
REMARKS: CROSS CHECK: BULLET SPECIMEN B-1 SUBMITTED ON PR [property receipt] # 2180296 (FIU 991555) AND BULLET SPECIMENS B-l AND B-2 SUBMITTED ON PR#2192162 (FIU 991854) WERE ALL FIRED FROM REVOLVER R-2 SUBMITTED ON PR#2198306 (FIU 991974). THERE ARE INSUFFICIENT MICROSCOPIC MARKINGS TO PERMIT A POSITIVE IDENTIFICATION OF B-3 (FIU 991854) AGAINST REVOLVER R-2 (FIU 991974).
FIU Computerized Print-Out, case no, 991974, 7/29/99. (Officer Finor’s report) (emphasis added).
However, a separate print-out at FIU case no. 991854 by Officer Little, also generated on July 29, 1999, indicates the bullets recovered from the body of Townes were fired from R-1, the silver Taurus Brasil .357 magnum revolver recovered in the alley behind Sehoenberger’s house. Specifically, the printout information for “FIREARMS EXAMINER P/O LITTLE” for “EXAM DATE 072999” indicates:
REMARKS: ADDENDUM: AS REQUESTED B1 & B2 OF THIS REPORT WAS [sic] COMPARED TO EVIDENCE SUBMITTED ON REPORT 991974 WITH THE FOLLOWING RESULTS: B1 & B2 WERE FIRED FROM R-l (991974).
FIU Computerized Print-Out, ease no. 991854, 7/29/99. (Officer Little’s report) (emphasis added).
Prior to trial, the Commonwealth filed a motion to consolidate based largely on the theory the ballistics evidence warranted joinder of the separate cases. Trial counsel opposed the motion, but did not assert discrepancies existed in the ballistics evidence. Counsel opposed consolidation on the basis the two homicide cases entailed distinct, unrelated motives, and the evidence respecting each was individually weak and inadmissible in the trial of the other. At the hearing on the motion, when counsel argued “I don’t know how they associate that gun [found in Schoenberger’s basement] with my client[,]” the court replied, “I think the ballistics report is what does that.” N.T. 10/22/99 at 7 (unpaginated original). The court, per the Honorable Anne E. Lazarus, granted the motion to consolidate.
At trial, conducted before the Honorable James A. Line-berger, Officer Finor testified as an expert with respect to the firearms identification evidence. The Commonwealth produced the three FIU print-out reports for his review at the outset of his testimony, and the following exchange took place:
MR. SCOTT (defense counsel): Your Honor, may I just take a look at those, make sure I have exactly the same thing he [Officer Finor] has?
THE COURT: Yes.
(Exhibits shown to defense counsel)
MR. SCOTT: Your Honor, I have ballistic reportfs] by Officer Little and Officer Joyce. I don’t seem to have a report by Officer Finor.
MS. FISK (assistant district attorney): [Officer Finor] has an extra copy of it. It has previously been provided. It has been provided as well.
THE COURT: Did you find it?
MR. SCOTT: I don’t have it. I got those two.
MS. FISK: May I proceed your Honor?
THE COURT: I don’t know. Are you ready now?
MR. SCOTT: If I could have a moment your Honor.
(Pause)
MR. SCOTT: Yes, your Honor
THE COURT: All right. Commonwealth.
N.T. 5/4/01 at 65-66.
Officer Finor testified “we have three different reports here” and the “initial examination of [the] projectiles was conducted by Police Officer Joyce and Police Officer Little ... prior to my involvement.” Id. at 82. Officer Finor identified Commonwealth exhibit 16 as the black Astra .357 magnum revolver recovered in the basement of Schoenberger’s home. He testified he test-fired bullets from that gun and compared them to the bullet removed from the body of Santos. He concluded the Santos bullet was “fired from this particular revolver [R-2 Astra .357 magnum]” to the exclusion of any other gun. Id. at 80. He further testified he compared the three bullet fragments recovered from the body of Townes, and “the first two, B1 and B2,
On cross-examination, counsel posed no questions regarding Officer Little’s report indicating the bullets recovered from Townes’s body were fired from R-l, the silver Taurus Brasil .357 magnum revolver found in the alley behind Schoenber-ger’s home. Counsel did not question Officer Finor regarding the number of cartridges in P-1. Counsel offered no re-cross-examination following questions by the court and re-direct-examination by the Commonwealth.
During closing argument to the jury, the Commonwealth stated:
Officer Finor looked at that gun and the bullets taken from William Townes’[s] body, he said, that’s the gun that killed William Townes. And when he looked at that gun and the bullet taken from Mr. Santos’[s] body, he said, that’s the gun that killed Mr. Santos, the same gun .... Want to talk about evidence beyond a reasonable doubt? It has been presented.
N.T. 5/8/01 at 61.
II. Review standards
We review a ruling by the PCRA court to determine whether it is supported by the record and is free of legal error. Commonwealth v. Blakeney,
To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2). These errors include a constitutional violation or ineffectiveness of counsel, which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. Additionally, appellant must show his claims have not been previously litigated or waived, and “the failure to litigate the issue prior to or during trial ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(3), (a)(4). An issue is previously litigated if “the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). An issue is waived if appellant “could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postcon-viction proceeding.” 42 Pa.C.S. § 9544(b).
Most of appellant’s issues are cognizable only as ineffective assistance of counsel claims. In analyzing such claims, we begin with the presumption counsel is effective. Commonwealth v. Robinson,
Appellant, who is represented by federal counsel, is raising federal Sixth Amendment claims under Strickland. This Court has made clear the Pennsylvania standard for ineffectiveness is the same as Strickland, albeit we divide the performance element into two sub-components. See, e.g., Commonwealth v. Laird,
III. Failure to conduct evidentiary hearing
In a two-paragraph argument, appellant asserts the PCRA court erred in dismissing his guilt phase issues without a hearing, and maintains if this Court determines he is not entitled to relief “on the pleadings” an evidentiary hearing is warranted. Appellant’s Brief at 16. Whatever the merit of this assertion, we will address the propriety of the court’s dismissal of claims without a hearing as necessary when they arise in the context of the discrete claims presented. We preliminarily note the PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied “ ‘there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.’” Commonwealth v. Roney,
IV. Inconsistent firearms reports
Appellant argues alternative theories of relief concerning the inconsistent reports. His ineffectiveness claim alleges, “[i]f the Commonwealth s representation [it disclosed all the reports in pre-trial discovery] is accurate, then [trial counsel] was ineffective for failing to .,. utilize the contents of the reports before trial to oppose the consolidation of [a]ppellant’s three separate cases for trial.” Appellant’s Brief at 25. Appellant’s alternative issue asserts if the Commonwealth waited until trial to provide a copy of Officer Finor’s report, it committed a Brady violation “by failing to disclose the complete FIU reports until after consolidation of [a]ppellant’s separate offenses had been granted.” Id. at 39. In sum, appellant asserts “whether [counsel’s] failure can be attributed to ineffective assistance of counsel under Strickland, or to the Commonwealth’s failure to provide discovery consistent with the requirements of due process, the result is the same: [a]ppellant was prejudiced to such a degree that confidence
A. Ineffectiveness. Appellant first claims, if counsel possessed the conflicting FIU reports pre-trial, he rendered ineffective assistance for failing to use them to challenge the Commonwealth’s motion to consolidate. He argues this claim has arguable merit and no reasonable or strategic basis existed not to use the conflicting reports because they would have called into question the reliability and conclusiveness of the ballistics evidence that formed the basis for joining appellant’s cases for trial. He claims prejudice on the basis he was wrongfully forced to defend against the cumulative weight of three unrelated offenses at trial.
Appellant further claims counsel rendered ineffective assistance at trial for failing to impeach Officer Finor with Officer Little’s conflicting report. Appellant posits the claim has arguable merit, and no reasonable or strategic basis existed for counsel’s failure because the FIU examiners’ conclusions contradicted each other and undermined the reliability of the ballistics evidence generally, and undermined specifically Officer Finor’s testimony indicating the murder victims were killed by bullets fired from R-2 to the exclusion of all other guns.
Appellant also claims counsel was ineffective for failing to use Officer Little’s report indicating the murder victims were killed by bullets from R-l to impeach Schoenberger’s trial testimony R-l was his gun, stolen from him on the night of the home invasion. Appellant further claims counsel was ineffective for failing to confront Schoenberger with his prior statement to police that the gun stolen from his home was a Colt .357 magnum. He asserts the claims have arguable merit and no reasonable basis existed for failing to impeach Schoen-berger’s testimony with the ballistics reports and his own prior statement to police, as doing so would have cast doubts on his reliability and undermined the evidence linking appellant to the killings of Santos and Townes.
The Commonwealth responds appellant may not rely on boilerplate assertions there was no reasonable or strategic basis for counsel’s performance relative to the firearms identification evidence, and maintains the PCRA court properly dismissed the claims without a hearing because appellant failed to show counsel had no reasonable basis for his actions or that appellant suffered Strickland prejudice. The Commonwealth’s contention is grounded in appellant’s failure to proffer evidence, through an affidavit or otherwise, regarding counsel’s rationale and strategy.
Specifically, the Commonwealth posits there was no record indication that Officer Little actually conducted his own, separate examination of the relevant projectiles on the same date Officer Finor conducted his examination and comparison. Instead, the Commonwealth asserts there was no plausible reason for Officer Little to do so, and that, in his addendum report he simply made a typographical error in updating his own log to reflect the findings in Officer Finor’s log, accidentally typing the incorrect identifier R-l for the correct identifier R-2. The Commonwealth posits appellant proffered no evidence concerning the scope and outcome of counsel’s investigation into the firearms evidence, theorizing that counsel may have spoken to the examiners, learned of the typographical error, and reasopably decided not to present the error as a contrary expert opinion. Ultimately, the Commonwealth asserts the lack of any proffer as to what the substance of counsel’s testimony would be if an evidentiary hearing were conducted is fatal to establishing appellant’s ineffectiveness claim.
The PCRA court concluded appellant did not demonstrate he was prejudiced by counsel’s failure to impeach Officer Finor at trial with Officer Little’s report. The court reasoned, “[Wjhether this was a typographical error or a legitimate discrepancy in the analysis, [appellant] was ultimately not prejudiced in this case because Officer Little’s conclusion also connected appellant to the murders.” PCRA Court slip op. at 27. In support of this rationale, the court notes the Taurus revolver (R-l) was found in the alley behind Schoenberger’s home “immediately after appellant and his co-conspirators escaped through Schoenberger’s back window.” Id.
Appellant replies the evidence at trial showed he was arrested after fleeing the front door of the Schoenberger residence, and Schoenberger identified R-l as his gun, stolen during the home invasion. Appellant also asserts the court’s analysis fails to consider the prejudice caused by counsel’s failure to use the discrepant reports before trial to oppose consolidation.
In recent years, this Court has expressed a preference for an evidentiary hearing on counsel’s strategy before determining counsel lacked a reasonable basis for his or her actions or inactions. Commonwealth v. Colavita,
This Court has previously held PCRA hearings are not discovery expeditions, but are conducted when necessary to offer the petitioner an opportunity to prove his explicit assertion of ineffectiveness raising a colorable claim about which there remains an issue of material fact. Commonwealth v. Sneed,
Here, it appears appellant sought a statement from trial counsel to explain his strategy, receiving in response an “affidavit” in which counsel averred he would testify at a hearing if ordered; counsel’s statement did not provide any explanations regarding his reasons for not using the discrepant reports to challenge consolidation or impeach the Commonwealth’s witnesses.
Moreover, although the PCRA court dismissed appellant’s ineffectiveness claim on lack of prejudice, it did so while highlighting opposing factual possibilities. In our view, whether Officer Little’s report contained a typographical error or represented a legitimate discrepancy may be relevant to the inquiry. Indeed, the court’s resolution of the issue on its determination both guns were linked to appellant failed to address the potentially contrary facts that appellant did not flee through the alley where R-l was recovered, and Schoen-berger testified R-l was his gun stolen at the time of the home invasion. In sum, we conclude appellant has raised genuine issues of material fact, which if resolved in his favor would entitle him to relief, and that a legitimate purpose would be served by further proceedings. The PCRA court’s determination to the contrary was error, and we remand to that court for further proceedings. The PCRA court’s task on remand is to determine whether appellant’s ineffectiveness claims respecting the conflicting ballistics evidence have arguable merit, and if so, whether a reasonable basis existed for counsel’s failure to use
B. Brady. Appellant claims the trial record supports an inference the Commonwealth did not provide counsel with a copy of Officer Finor’s report until Officer Finor was presented as a witness at trial. The Commonwealth responds appellant proffered no actual evidence of a pre-trial Brady violation to the PCRA court, and the trial record is inconclusive on the matter, as counsel merely remarked at trial he did not “seem” to have Officer Finor’s report. Commonwealth’s Brief at 27. On this basis alone, the Commonwealth posits the claim must fail. See Commonwealth v. Porter,
Although the PCRA court acknowledged appellant argued “late disclosure prevented counsel from preparing an adequate cross-examination of Officer Finor,” the court rejected the Brady claim on the grounds appellant failed to establish suppression actually occurred. The court noted “[t]rial counsel was provided with Officer Finor’s FIU report before he got on the stand to testify.” PCRA Court slip op. at 36. The court concluded, “this evidence was not suppressed by the Commonwealth.” Id., citing Commonwealth v. Lambert,
To succeed on a Brady claim, the defendant must show: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted. Commonwealth v. Daniels,
Brady claims, nevertheless, may be subject to waiver. See Roney,
Here, appellant fails to indicate when or how he became aware of the alleged Brady material, i.e., the conflicting ballistics reports. However, since Officer Finor’s report was disclosed at trial, the evidence was available at the time of post-sentence motions or direct appeal. Appellant did not raise an alleged Brady violation in his post-sentence motions or on his direct appeal. Appellant also fails to offer any explanation as to why this information could not have been obtained earlier with the exercise of due diligence. These omissions are potentially fatal to the claim, particularly since Officer Little’s report, which counsel had in his possession pre-trial, referenced Officer Finor’s report. Accordingly, because appellant’s Brady claim was cognizable but not raised on post-verdict motions or direct appeal, and appellant has not shown the allegedly undisclosed evidence could not have been discovered with reasonable diligence, we conclude the claim is waived and the court did not err in dismissing the claim without a hearing.
V. Uncharged robbery
Appellant claims evidence of the robbery of Natisha Evans should have been excluded at trial, and claims counsel “was ineffective for failing to adequately challenge the admission of this unfairly prejudicial evidence, or to seek corrective measures once the evidence was admitted.” Appellant’s Brief at 45. Specifically, appellant asserts Evans’s identification of appellant (and Shiem Gary, appellant’s conspirator in the Schoen-berger home invasion) as the men who robbed her of Townes’s drugs the night before Townes was murdered, was unreliable. Appellant further asserts Dr. Penrod, an expert in human memory, reviewed the ease at the PCRA pleadings stage and concluded there were numerous factors pertaining to the witness’s ability to perceive and remember the events in question which support appellant’s claim the identification was unreliable. Appellant asserts "even if Dr. Penrod (or a similarly qualified expert) could not have provided testimony on the reliability of Evans’[s] identification!;,]” counsel should have presented “such testimony” to the court “in a motion in limine[,]” and his failure to do so was ineffective assistance of counsel. Id. at 49.
Appellant further posits the robbery evidence was irrelevant to the Santos homicide and Schoenberger home invasion, and counsel was ineffective because he “raised none of these arguments” as a basis for exclusion of the evidence. Id. at 47. Additionally, appellant argues even if the evidence of the robbery was credible and relevant, it should have been excluded because its potential for unfair prejudice outweighed its probative value. Id. at 49. Appellant claims after the evidence was admitted, counsel was ineffective for failing to seek an instruction limiting the jury’s consideration of the evidence. Appellant argues these claims have arguable merit, counsel had no reasonable basis for
The Commonwealth responds a motion in limine to exclude the evidence would have been futile, as defense counsel objected to the admissibility of the evidence at trial and the objection was properly overruled. The Commonwealth posits the evidence was admissible because it was probative of the motive for Townes’s murder and to explain the history and natural development of the crime. Moreover, the robbery was probative of the relationship between appellant and his conspirators in the home invasion. The Commonwealth asserts counsel’s performance is presumptively reasonable, and argues appellant did not carry his burden to show counsel’s actions were unreasonable, asserting the decision not to further highlight Evans’s testimony could be considered a sound trial strategy.
The PCRA court determined “[b]ecause trial counsel did object to this evidence, and evidence of this crime was properly admitted at trial under the res gestae exception to Pa.R.E. 404(b) to show the sequence of events or story of the case, th[e ineffectiveness] claim lacks merit, and was properly dismissed by this [c]ourt.” PCRA Court slip op. at 12.
At the time of appellant’s trial, expert testimony in the area of eyewitness identification was per se inadmissible. See Commonwealth v. Walker,
Additionally, the rules of evidence provide:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1), (2).
In Commonwealth v. Lark,
Moreover, the record shows trial counsel objected to the admissibility of the uncharged robbery evidence on the basis “it’s not relevant to any of the charges against [appellant].” N.T. 5/3/01 at 30. Thus, the record belies appellant’s current claim counsel was ineffective for failing to argue the robbery evidence was irrelevant to the Santos homicide and Schoenberger home invasion. Finally, where evidence of a defendant’s prior bad acts is admitted, the defendant is entitled to a jury instruction that the evidence is admissible only for a limited purpose. Commonwealth v. Hutchinson,
VI. Identification evidence
As previously noted, four eyewitnesses (Khalid Abdu, Luz Diaz, Janice Khabir and Emma Carrasquillo) identified appellant at trial as the person who shot Santos. Abdu, Diaz and Carrasquillo also identified appellant prior to trial in a photo array and at his preliminary hearing. Khabir was not shown a photo array. Instead, she viewed a live line-up and selected someone other than appellant. At appellant’s preliminary hearing the next day, she identified appellant as the shooter while admitting she had not identified appellant at the line-up, but stating she had no doubt appellant was the shooter. At trial, Khabir explained her inability to identify appellant at the lineup was due to her extreme claustrophobia; the line-up was held in a locked room deep inside a correctional facility.
Moreover, as we stated previously, Debra Redden was the sole eyewitness to the Townes shooting. She identified appellant as the shooter from a photographic array, but failed to identify appellant at his subsequent preliminary hearing. At the preliminary hearing, she admitted she identified appellant in a photographic array, but denied she was positive it depicted the person who shot Townes. Specifically, at the preliminary hearing, she testified, “Yes, it [the photo] looked like him, but that man right there [indicating appellant] does not look like him.” N.T. 10/19/99 at 36-37. At trial, however, Redden identified appellant, recounting she not only saw appellant commit the shooting, but shortly thereafter, as she sat on a porch, heard appellant say as he walked past her, “That’s what the f_he get.” Cousar,
Appellant claims counsel was ineffective for failing to adequately challenge all the eyewitness identifications of appellant “before or during trial.” Appellant’s Brief at 53. He claims the police photo array identification procedures tainted the identifications, and the identifications were unreliable. Appellant claims the photo array of eight “mugshots selected and arranged by detectives” shown to Abdu, Diaz, Carrasquillo and Redden was overly suggestive because it was presented weeks after the shootings and included photos of appellant and a conspirator in the home invasion, both of which were conspicuous, because both were the only depictions of men with bare shoulders. Appellant’s Brief at 68-69.
Appellant claims counsel was ineffective for failing to conduct more thorough cross-examination of all the eyewitnesses. With respect to Redden, appellant alleges counsel was ineffec-five for failing to impeach her with her inability to identify appellant at his preliminary hearing. Appellant additionally avers Dr. Penrod reviewed the record at the PCRA pleading stage and concluded, to a reasonable degree of scientific and psychological certainty, that specific factors existed which raised valid concerns regarding the reliability of the identifications by all the witnesses. On that basis, appellant avers counsel was ineffective for failing to consult an expert to assist him in preparing his cross-examinations of the eyewitnesses. He argues the unreliable identifications and suggestive police practices, taken together, produced a substantial likelihood of irreparable misidentification. Thus, appellant claims counsel was ineffective for failing to file a motion to suppress the identifications.
The Commonwealth asserts the PCRA court properly rejected these claims because the identification procedures were not unduly suggestive and, in any event, the witnesses had independent grounds for their identifications. The Commonwealth posits trial counsel’s decision not to hire an expert to substantiate unreliability was “manifestly reasonable, since case law made clear that expert testimony on eyewitness identifications was categorically inadmissible” at the time of appellant’s trial. Commonwealth’s Brief at 49. The Commonwealth also asserts cross-examination
The PCRA court concluded a motion to suppress the eyewitnesses’ identifications would not have been successful because the photo array shown the witnesses was not unduly suggestive and their identifications of appellant were not unreliable; thus the court ruled appellant’s claim his trial counsel was ineffective for failing to seek suppression lacked arguable merit. PCRA Court slip op. at 16-17. With regard to counsel’s failure to cross-examine Redden with her failure to identify appellant at his preliminary hearing, the PCRA court held “while the better course would have been for trial counsel to question her earlier testimony, not all errors ... entitle petitioner to a new trial—petitioner is entitled to a fair trial, not a perfect one.” PCRA Court slip op. at 24. The PCRA court determined appellant received a fair trial because the trial court gave the jury a general Kloiber charge, and the PCRA court dismissed the claim of counsel’s ineffectiveness on that basis. PCRA Court slip op. at 24, citing Commonwealth v. Kloiber,
The court additionally held expert testimony regarding unreliability of eyewitness testimony was inadmissible at the time of appellant’s trial and thus, counsel could not be deemed ineffective for failing to consult an expert in this area.
A. Motion to suppress
Whether a pretrial identification should be suppressed as unreliable is determined from the totality of the circumstances. Commonwealth v. Pierce,
The PCRA court correctly noted appellant pointed to no case law directly supporting his contention the bare-shouldered photos of himself (and a conspirator) rendered the array shown to the witnesses impermissibly suggestive. The PCRA court also correctly noted the array photos showed eight men whose facial characteristics were similar to that of appellant, PCRA Court slip op. at 15. Under the totality of the circumstances, we decline to find the photo array was suggestive and we determine the PCRA court correctly dismissed the claim of ineffectiveness based thereon as lacking merit. See Commonwealth v. Carson,
B. Cross-examination
The record shows counsel cross-examined every eyewitness in this matter at some length regarding their identifications. On direct appeal, in assessing the sufficiency and weight of the evidence, this Court agreed the eyewitnesses were vigorously challenged on cross-examination. With respect to the Santos shooting, we reject appellant’s claim that counsel rendered ineffective assistance for failing to conduct competent cross-examinations of the four eyewitnesses to the shooting because the claim is belied by the record and thus, lacks arguable merit.
With respect to the Townes shooting, however, the issue regarding the effectiveness of counsel’s cross-examination is more challenging, as Redden was the only eyewitness to that killing, and counsel did not impeach her with her inability to identify appellant at the preliminary hearing. Although counsel did cross-examine Redden vigorously on her excessive drug use, poor memory, equivocal photo identification, and the details of her statement to police, he failed to bring to the jury’s attention the fact Redden did not positively identify appellant at his preliminary hearing. It is clear Redden’s testimony was crucial to the Commonwealth’s case, as she was the only witness to the Townes shooting. Thus, we cannot agree with the PCRA court’s determination that, while the better course would have been for counsel to question Redden about her inability to identify appellant at his preliminary hearing, counsel’s failure to do so did not undermine the fairness of appellant’s trial. PCRA Court slip op. at 24. Instead, we determine appellant has raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief. Accordingly, we remand to the PCRA court for fuller evidentiary development of this claim.
VII. Eyewitnesses who failed to identify appellant at line-up
As previously noted, on direct appeal, we held the trial court did not err in precluding evidence showing a number of potential eyewitnesses to the Santos shooting, who did not testify at trial, failed to identify appellant in a line-up. At trial, appellant attempted to admit this non-identification evidence through the testimony of Detective Wynn, who conducted
Appellant now claims counsel was ineffective for failing to present “the court with compelling arguments to support his proffer of Wynn’s testimony.” Appellant’s Brief at 81. Appellant alleges the line-up “non-identification evidence” would have provided “an important factual context” for evaluating the photo array identification evidence. Id. Specifically, Appellant alleges the fact “no witness” identified appellant at the live line-up supported an inference the photo array was improperly suggestive because “every witness shown the photo array identified [a]ppellant.” Id. (emphasis deleted). Appellant further asserts counsel’s statement to the court, “Your Honor, I could not have anticipated your ruling on Detective Wynn’s testimony[,]” establishes counsel’s lack of preparation, and shows he had “no reasonable basis for failing to support his proffer” by arguing the non-identification evidence at the lineup would show the photo array was highly suggestive. Id. at 83-84, quoting N.T. 5/7/01 at 51.
The Commonwealth and the PCRA court both note the claim was previously litigated on direct appeal. Appellant acknowledges the underlying evidentiary claim was litigated on direct appeal, but maintains “this independent claim of ineffective assistance of counsel has not been previously litigated.” Id. at 84. This Court agrees the admissibility of the proposed testimony was litigated on direct appeal as a question of alleged trial court error. However, appellant’s derivative Sixth Amendment claim that counsel rendered ineffective assistance by failing to procure a determination of admissibility from the trial court has not been previously litigated. See Commonwealth v. Hanible,
VIII. Charge on burden of proof
Appellant challenges the following instruction, given by the court to the jury during its guilt phase charge:
The Commonwealth’s evidence must convince you of the defendant’s guilt beyond a reasonable doubt on each and every element of each and every crime charged. Now if the Commonwealth’s evidence fails to meet its burden, then it will be your sworn duty to find this defendant not guilty. On the other hand, if the Commonwealth’s evidence does prove beyond a reasonable doubt this defendant’s guilt, the verdict should be guilty.
N.T. 5/8/01 at 71-72.
Appellant alleges he presented some evidence of his “innocence” to the jury, such as testimony he was home “around the time” of the Santos shooting, as well as testimony on cross-examination which undermined the reliability of certain eyewitnesses. Appellant’s Brief at 84-85.
The Commonwealth responds appellant does not cite any authority for the proposition it is error for a court to omit instructing a jury that defense evidence may create a reasonable doubt. Thus, the Commonwealth posits the claim is waived because of appellant’s failure to develop the issue in any meaningful way under applicable decisional and rule-based precedent. In the alternative, the Commonwealth asserts the charge was proper, and maintains appellant’s ineffectiveness claim fails on that basis. The Commonwealth additionally asserts the ineffectiveness claim fails because appellant proffered no evidence counsel’s decision was not the product of reasonable strategic considerations, and appellant made no showing of Strickland prejudice. The PCRA court did not address the claim.
Appellant offers no legal support for his claim aside from a single citation to Chambers v. Mississippi,
Even if appellant did not default on the underlying claim regarding the propriety of the instruction, his claim of ineffectiveness relies on conclusory arguments regarding counsel’s failure to object. This Court has noted counsel is not constitutionally required to forward any and all possible objections at trial, and the reasonableness of counsel’s trial performance is not measured by an exercise in “spot the objection,” as might occur in a law school evidence examination. Colavita,
IX. Conflict of interest
Appellant asserts appellate counsel (Mischak) harbored an actual conflict of interest because, prior to representing appellant on appeal, he represented Ronnell Davis at Davis’s trial for the Schoenberger home-invasion robbery. The gravamen of appellant’s claim is that during his representation of Davis, Mischak’s investigator, Brian Grievous, took a statement from Marshall Ray Whistleman in which Whistleman said Schoenberger told him (and his wife) appellant was at the scene of the home-invasion robbery but did not brandish a weapon. Appellant claims Whistleman’s statement could have been raised post-trial in appellant’s case as after-discovered evidence, but Mischak could not
The Commonwealth responds the claim is waived, as appellant did not allege an actual conflict of interest in his amended PCRA petition. The Commonwealth posits the claim is merit-less in any event because Davis and appellant did not have competing interests, the triple-hearsay statement could not have formed the basis of a valid after-discovered evidence claim, and, with respect to the alternative claim of ineffectiveness, appellant has not supported his proffer with an affidavit from counsel to substantiate counsel had no reasonable basis for his actions or inactions.
The PCRA court determined the statement contained only inadmissible hearsay, and even if the statement were admissible, it could not have formed the basis of a valid after-discovered evidence claim because it was not exculpatory, and there was no showing it could not have been obtained prior to trial by reasonable diligence. Specifically, the court noted Whistleman’s statement indicated Schoenberger said he opened the front door of his home to appellant because he recognized him, and three others brandishing guns, whom Schoenberger had not previously seen or recognized, immediately entered behind appellant. Significantly, Whistleman’s statement indicated Schoenberger said he “thought [appellant] was involved in it [the robbery] because [Schoenberger] would not have opened the door if he did not recognize [appellant].” PCRA Court slip op. at 47, quoting Whistleman Statement, dated 12/2/01, at 4-5.
We disagree with the Commonwealth’s assertion appellant did not allege an actual conflict of interest in the amended PCRA petition. While the petition does not use the phrase “actual” to describe the alleged conflict of interest, the essence of the claim is that “Mischak’s division of loyalties affected his performance.” Amended PCRA Pet. at 113, ¶ 445. The United States Supreme Court has noted an actual conflict of interest is one which adversely affects counsel’s performance. See Cuyler v. Sullivan,
To show an actual conflict of interest, an appellant must demonstrate: 1) counsel actively represented conflicting interests; and 2) the conflicting interests adversely affected counsel’s performance. Commonwealth v. Sepulveda,
Appellant concedes this is a case of successive representation. Amended PCRA Pet. at 113, ¶ 446. Because this case involves successive and not dual representation, appellant must demonstrate he was prejudiced by any potential conflict of interest. Commonwealth v. Tharp,
The claimed prejudice here is “Mischak’s failure to plead information in his possession [Whistleman’s statement] that exculpated [appellant] but inculpated Davis.” Appellant’s Brief at 94. Whistleman’s statement, however, does not reference Davis at all, or the role he may have played in the Sehoenberger robbery, but only references appellant in the company of three unidentified individuals and suggests appellant was part of the conspiracy on that basis. Thus, Whistle-man’s statement does not exculpate appellant or inculpate Davis. Appellant has not shown he was prejudiced by any alleged potential conflict of interest which might have prevented counsel from disclosing the statement.
Additionally, in order to be granted a new trial based on after-discovered evidence, appellant must show the evidence: 1) has been discovered after trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely to impeach a witness’s credibility; and 4) is of such a nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Randolph,
X. Rebuttal evidence
In his penultimate issue, appellant alleges the ineffectiveness of prior counsel for failing to investigate and uncover a number of available witnesses to rebut the Commonwealth’s evidence at trial.
Appellant’s argument in support of his issue spans four pages of his brief. Appellant’s Brief at 95-98. Appellant does not cite to any authority, relevant or otherwise, to support his contentions. Although we could properly determine appellant’s argument is waived on this basis, as the Commonwealth contends, we conclude a merits determination is the better course. To prevail on a claim of trial counsel’s ineffectiveness for failure to call a witness, an appellant must show: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or should have known of the witness’s existence; (4) the witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) the absence of the testimony prejudiced appellant. Commonwealth v. Fletcher,
At trial, Abdu testified he had a “very, very good chance” to see appellant’s face when appellant shot Santos, and when viewing the photo array “I immediately knew it was him. I couldn’t forget his face.” N.T. 5/3/01 at 11, 17. Appellant has failed to discuss, much less show, that at the time of trial, counsel could have known that a decade later, Abdu would express some doubt about the certainty of his identification, such that counsel rendered ineffective assistance for failing to probe, presumably, whether Abdu’s certainty was such that it would never waver in the future. The unsupported claim is devoid of merit, and the PCRA court properly dismissed it.
At trial, Diaz testified that, at the time of the Santos shooting, she only saw the side of appellant’s face for a moment, but maintained her identification of him despite admitting on cross-examination she told a police officer at the scene she was not sure she could identify the perpetrator again. Thus, her trial testimony and her declaration a decade later in which she stated she “got a quick glimpse of his face,” and “did the best I could to pick out the right photograph” during the photo array, were not inconsistent. PCRA Court slip op. at 39, citing Diaz Declaration. Appellant has not shown the failure to elicit the substance of the witness’s subsequent statement resulted in prejudice as it was consistent with her trial testimony and thus, would not have affected the verdict. See Pierce,
Regarding the statements of Whistleman (and his wife), appellant has made no reference, much less a showing, that counsel was informed of the existence of these witnesses or should have known of their existence or that they were prepared to cooperate and testify on appellant’s behalf. The claim of ineffectiveness lacks arguable merit and was properly dismissed by the PCRA court. Fletcher,
With respect to Hill, appellant alleges counsel should have known of Hill’s existence because he was interviewed by police. However, Hill told police he did not see the Townes shooting. In his 2012 statement he claims he was afraid to talk to police and was also afraid of Bridges, whom he alleged was the actual killer. Although Hill avers in his statement he would have been “willing to help” if contacted by counsel, the fact he did not cooperate with police at the time he was questioned makes the asserted and belated claim of willingness to help illusory. Appellant has failed to satisfy the arguable merit and reasonable basis prongs of the ineffectiveness analysis. Moreover, appellant has not shown a reasonable probability the result of his trial would have been different if Hill had testified, particularly since Hill’s credibility would likely have been called into question, given his proposed testimony would have conflicted with his statement to police that he knew nothing about the shooting. Thus, the PCRA court correctly dismissed the claim.
With respect to Douglas’s 2013 hearsay statement Bridges confessed to him he shot Townes, appellant has failed to show the statement would have been admissible. Moreover, the fact Douglas, who was reportedly a longtime friend of appellant, waited until 2013 to come forward with this supposedly exonerating hearsay evidence, weakens the substance of the statement such that even if counsel should have known of the existence of Douglas, appellant has failed to show any decision by counsel not to present this hearsay testimony in rebuttal would have been unreasonable. Thus, the claim of ineffectiveness fails, and the PCRA court properly dismissed it. Fletcher,
XI. Cumulative prejudice
Appellant argues “even if this Court finds that [a]ppellant is not entitled to relief based on any single claim, he is entitled to relief because of the cumulative effect of these constitutional errors.” Appellant’s Brief at 98. While this Court has emphasized that “no number of failed claims may collectively warrant relief i[f] they fail to do so individually,” Sepulveda,
XII. Conclusion
Accordingly, we vacate that portion of the order of the PCRA court denying a hearing on appellant’s claims that counsel was allegedly ineffective for failing to: 1) use the discrepant ballistics reports to oppose consolidation or impeach the Commonwealth’s witnesses; and 2) impeach
Jurisdiction relinquished.
Justices Baer, Todd, Wecht and Mundy join the opinion.
Chief Justice Saylor files a concurring and dissenting opinion in which Justice Donohue joins.
Notes
. The fourth conspirator, who also fled through a rear window, was never apprehended or identified.
. Appellant was represented during the guilt phase by Norman Scott, Esquire, and by Laurence Narcisi, Esquire, during the penalty phase. David Mischak, Esquire, represented appellant on direct appeal. On December 13, 2013, attorney Scott submitted a sworn and notarized “affidavit” averring he is the attorney who represented appellant in the capital proceedings at issue here, and stating "I will testify and respond to all questions at a Rearing ordered by a court, in lieu of an affidavit.” Affidavit of Norman Scott, 12/13/13.
. Officer Joyce’s print-out report was for FIU case no. 991555. Officer Little’s print-out report was for FIU case no. 991854. Officer Finor's print-out report was for FIU case no. 991974.
. When interviewed immediately after the robbery/burglaty, however, Sehoenberger told police the gun taken from his home was a Colt .357 magnum revolver.
. The third fragment taken from Townes’s body (B-3) lacked sufficient microscopic markings to determine whether it was fired by the same gun as the other fragments.
. The PCRA court opinion confirms the reports admitted at trial were the print-outs corresponding to FIU case no. 991555 (by Officer Joyce), FIU case no. 991854 (by Officer Little) and FIU case no. 991974 (by Officer Finor).
. As briefly explained at n.2, supra, counsel submitted a notarized and sworn statement on December 13, 2013, entitled “Affidavit of Norman Scott, Esq.” It is one-half page in length and contains three enumerated averments: 1) counsel’s name and his profession, 2) a statement he had represented appellant in a capital case in Philadelphia, and 3) a statement “I will testify and respond to all questions at a hearing ordered by a court, in lieu of an affidavit,” This "affidavit,” which lacks any discussion of what counsel’s testimony would be at a PCRA hearing on appellant’s issues, is not the type of statement envisioned by our case law and statutory authority. See Roney,
. Appellant’s discussion of the Brady issue, at times, infuses language more suitable to presentation of an ineffectiveness claim. For example, in discussing Brady materiality, appellant argues, ”[t]here is a reasonable probability that, had the complete FIXJ reports been disclosed to competent counsel [pre-trial] ... the Commonwealth's [petition for consolidation] would not have been granted.” Appellant’s Brief at 40 (emphasis added), We emphasize appellant’s Brady claim is substantive, and raised only as an alternative to the claim of counsel's ineffectiveness for failing to properly use the contradictory ballistics evidence, There is no claim, layered or otherwise, specifically alleging ineffectiveness of counsel for failing to raise a Brady claim.
. In the photo array, appellant was photo number six; his conspirator was number five. Appellant’s Brief at 69, citing Appendix at 1466.
. Appellant acknowledges the record “indicates Redden selected photo number six, [a]ppellant’s mugshot, from a multi-photo array” which "may have been the same array shown to Abdu, Diaz and Carrasquil-lo,” but alleges the photo Redden signed “is an individual photo” of appellant. Appellant's Brief at 60. The PCRA court noted, “it is unclear to this [c]ourt what individual photograph [appellant] is talking about.” PCRA Court slip op. at 15 n.29.
. In a related argument, appellant acknowledges expert testimony regarding the accuracy of eyewitness testimony was not admissible at the time of appellant's trial, He nevertheless claims counsel rendered ineffective assistance for failing to consult an expert in this area in order to aid counsel’s preparation for cross-examination of the witnesses. This precise argument was presented to the PCRA court which dismissed the issue on the basis expert testimony regarding the accuracy of eyewitness testimony was inadmissible at the time of appellant's trial, without discussing counsel's decision not to consult an expert in this area to aid counsel's trial preparation. Accordingly, because we remand for a fuller evidentiary hearing regarding counsel’s failure to impeach Redden with her prior inconsistent testimony on cross-examination, and recognizing the argument regarding consultation with an expert appears to be part-and-parcel of the claim, we conclude the PCRA court may consider expert evidence in this area if offered on remand.
. Counsel’s reason for not calling the individual witnesses themselves was his fear of possible spontaneous in-court identification. N.T. 5/7/01 at 9-10.
. The PCRA court addressed a related claim raised below, but not raised in the present appeal—whether counsel was ineffective for failing to object to penalty phase instructions.
. Despite the “prior counsel” phrasing, the issue statement and argument presented focus exclusively on trial counsel's actions. Appellant’s Brief at 95-98. Appellant articulates no explicit or cognizable issue of appellate counsel's ineffectiveness, either for failing to uncover the alleged rebuttal witnesses himself, or for failing on appeal to allege trial counsel was ineffective for failing to uncover the alleged rebuttal witnesses.
Concurrence Opinion
Concurring and Dissenting Opinion
I join Parts I, II, III, and VI(B) of the majority opinion, concur in the result as concerns Parts IV, VI(A), VII, VIII, and IX, and respectfully dissent as to the balance, in favor of a fuller evidentiary hearing.
Preliminarily, I note that the allegations of the post-conviction petition include the following:
As shown throughout this Petition, [Appellant’s trial] counsel had done very little to prepare for trial. [The attorney] retained no experts and no investigator. He seemed not to understand, or even to be familiar with, significant discovery materials provided before trial to the prosecution. He failed to interview critical guilt phase witnesses. He failed to interview and present other witnesses, identifiable through reasonable investigation, who could have cast doubt on essential aspects of the Commonwealth’s case. He ignored and avoided Petitioner’s family, who, from the earliest days of [counsel’s] appointment, were eager to work with the defense and could have supplied a wealth of helpful evidence and investigative leads. He also failed to obtain and review available school and juvenile records which contained numerous mitigation “red flags,” even though the defense was on notice that the Commonwealth would be using Petitioner’s juvenile adjudication at the penalty phase to prove the existence of an aggravating circumstance. Indeed, [counsel] was so neglectful that he failed to visit Petitioner, who was held in county jail without bail, one single time before or during Petitioner’s trial. In short, [counsel] neglected his duty at every stage to investigate, prepare and present an adequate defense.
Petition for Habeas Corpus and Statutory Post-Conviction Relief in Commonwealth v. Cousar, CP-51-0508652-1999, et al. (C.P. Phila.), at ¶ 11, Moreover, by agreement, Petitioner has been awarded a new penalty hearing based upon his claim that counsel failed to investigate, develop, and present mitigation evidence at his penalty hearing. See Commonwealth v. Cousar, No. CP-51-0508652-1999, et al., slip op. at 2 (C.P. Phila. Aug. 12, 2015).
To my mind, the above allegations and circumstances raise substantial concern, particularly as they are consistent with a pattern of deficient representation that we have seen in capital litigation in Pennsylvania, see, e.g., Commonwealth v. King,
Regarding Part IV(A) of the majority opinion, I support the reasoning and determination, subject to the following. Initially, I agree with the majority that, to the extent that there is a specific requirement for some form of attestation from a capital defendant’s trial attorney to support a post-conviction petition, that requirement should not be strictly enforced. I remain circumspect, however, about maintaining the requirement for a specific attestation of counsel in the first instance, particularly since trial counsel whose stewardship is in question effectively may be a hostile witness. Accord Commonwealth v. Roney,
Regarding Part V, I agree with the majority that evidence of the uncharged robbery was relevant to Appellant’s motive, see Majority Opinion, at 199-200,
Furthermore, I would require that Appellant be afforded an opportunity for evidentiary development, at least with respect to the claim of deficient stewardship on trial counsel’s part for failing to request a limiting instruction. On this issue, as with the claim pertaining to the ballistics evidence, Appellant’s failure to supply a particularized evidentiary proffer may relate to the lack of a developed proffer from trial counsel.
Concerning Part VII, from a broad perspective, I am circumspect about whether trial counsel could have a reasonable explanation why he would not have solicited interviews from eyewitnesses who did not identify his client at a line up. See Brief for Appellant at 80 (asserting that trial counsel’s “decision to forego presenting the testimony of eyewitnesses who did not identify Appellant at the line-up was unreasonable because it was made with no advance preparation”). Nevertheless, in the absence of any post-conviction proffer concerning what those witnesses might have said, I accede to the position of the majority and the PCRA court that this particular claim was amenable to summary rejection.
With respect to Part VIII and the jury charge concerning the overarching burden of proof, I believe that a trial court should instruct jurors that they are to consider all of the evidence in determining whether the Commonwealth has established the case for guilt beyond a reasonable doubt. Accord Martin v. Ohio,
As to Part IX, I have difficulty with the majority’s treatment of Appellant’s conflict-of-interest claim as an after-discovered evidence challenge. See Majority Opinion, at 211,
Finally, with respect to the fact-bound matters associated with Part X, and consistent with my thoughts expressed from the outset, I would err on the side of allowing for evidentiary development and associated credibility determinations.
Justice Donohue joins this concurring and dissenting opinion.
. I also note that the majority refrains from framing the proffer obligation in terms of a requirement to submit an "affidavit.” See Majority Opinion, at 192,
I also believe that, to the extent that a specific requirement for affidavits existed or exists in the abstract, there has been and is tremendous inconsistency in how such requirement is being observed, since many decisions do not appear to reflect enforcement.
. Indeed, the Superior Court previously expressed the view that res gestae should be abandoned as it applies (as I believe that it is being applied by the majority here) to conduct that is not part of the same transaction as the charged conduct. See Commonwealth v. Murphy,
. I believe, however, that dismissal of a claim based upon the inadequacy of a proffer should occur only after adequate pre-dismissal notice of such deficiency and an opportunity to correct it. See generally Commonwealth v. Simpson,