COMMONWEALTH of Pennsylvania, Appellee v. Khatib COUSIN, Appellant.
Supreme Court of Pennsylvania.
Submitted Aug. 8, 2005. Decided Dec. 28, 2005.
888 A.2d 710
Hugh J. Burns, Philadelphia, PA, for Com.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice SAYLOR.
This is an appeal by allowance from the denial of post-conviction relief from a judgment of sentence for voluntary manslaughter and related offenses. The dispositive question is whether prejudice should be presumed in the evaluation of a defense attorney‘s stewardship in undertaking a strategy of conceding his client‘s guilt of voluntary manslaughter in order to gain credibility in the eyes of the fact-finder and avoid a conviction of a higher degree of criminal homicide.
The underlying facts are uncontested. On the evening of August 9, 1998, Appellant Khatib Cousin approached Pedro Torres on Jasper Street in Philadelphia to inquire as to an incident the prior night and the whereabouts of George Dascenzo. Torres directed Appellant to the home of Dascenzo‘s uncle, Charles Ertell. Some time after Appellant entered the home, he and Dascenzo left the house together, while Ertell followed. A verbal argument ensued and turned physical when Dascenzo swung at Appellant, but failed to hit him. Appellant struck back and Dascenzo fell to the ground. Appellant then repeatedly punched and kicked Dascenzo in the head, neck, and chest as he lay on the ground. Ertell and Torres intervened and pushed Appellant away. Appellant then walked away from the fight scene to the steps of a nearby house and retrieved a handgun from inside of a folded baseball cap. Loading the gun, he walked back to the scene
Appellant was charged with murder, aggravated assault, and related offenses. See
The following day, the trial court ruled from the bench, indicating that “[i]t has always been clear that there would be a verdict of guilty in this case. The question was guilty as to what.” N.T. May 28, 1999 at 5. After summarizing the evidence, the court made a specific finding that Appellant did not act with malice and, therefore, that he was guilty of voluntary manslaughter rather than murder. Id. at 6. The
On direct appeal, appointed counsel raised issues relating to Appellant‘s sentence. She did not, however, assert any claim pertaining to Attorney Savino‘s decision to concede Appellant‘s guilt of voluntary manslaughter during the closing argument at trial. The Superior Court affirmed Appellant‘s judgment of sentence, and this Court denied allocatur. See Commonwealth v. Cousin, 570 Pa. 682, 808 A.2d 569 (2001).
Thereafter, represented by new counsel retained by his family, Appellant filed a petition pursuant to the Post Conviction Relief Act,
The PCRA court, per Judge Hughes, dismissed the petition without a hearing.4 In its
The Superior Court disposed of the appeal in a memorandum opinion dated May 24, 2004. Initially, the court expressed its discomfort with applying a prejudice requirement in this situation because it perceived counsel‘s actions to be “inconsistent with the mainstays of our criminal justice system,” primarily, the defendant‘s presumption of innocence and the Commonwealth‘s burden to prove guilt beyond a reasonable doubt. As an intermediate appellate court, however, the Superior Court deemed itself without authority to “alter established rules of procedure adopted by the Pennsylvania Su-
Upon Appellant‘s petition, this Court granted allocatur to consider whether trial counsel‘s guilt-conceding strategy should be deemed per se prejudicial. In order to have the benefit of a full and complete record, in a per curiam order dated December 22, 2004, this Court also remanded the matter to the PCRA court for a limited hearing on whether counsel acted without Appellant‘s consent in conceding guilt on the charge of voluntary manslaughter. The PCRA court, again per Judge Hughes, held the required hearing on January 18, 2005. Trial counsel (Attorney Savino) testified at the hearing and admitted that he never specifically discussed his closing argument with Appellant, see N.T. Jan. 18, 2005, at 20, 23, although he maintained that he and Appellant both understood that there was no basis for a self-defense claim and, after hearing the Commonwealth‘s evidence at trial, that there was no possibility of acquittal. See id. at 32, 37. Appellant, for his part, testified that he had wanted to “beat this case on self defense.” Id. at 65. However, he conceded that he never discussed that possibility with Attorney Savino; moreover, he was unable to identify any harm that might have befallen him had he not fired at the unarmed victims. See id. at 48, 59-72.
At the conclusion of the hearing, the PCRA court made factual findings, including that: Appellant was fully aware that there was no possibility he would be acquitted; he knew his “best strategic defense” was to seek a conviction of voluntary manslaughter; he was initially “elated” to have been found guilty of that offense; and he only became dissatisfied when a
[Appellant] may not have known the words Louis Savino would use but he absolutely knew that Louis Savino‘s strategy was to get voluntary manslaughter out of a case that when presented in the Commonwealth‘s favor looked like first degree murder. And Lou Savino did a masterful job of chipping away at the Commonwealth‘s evidence to bring this down to manslaughter. So I don‘t see that there are further questions necessary to elucidate me on the credibility of [Appellant] continuing to say that he did not understand what he confronted at this proceeding. He understood fully that he faced death and he walked out of there with his life. He just doesn‘t like the sentence and that‘s the bottom line.
Id. at 74-76.
With these findings now of record, the matter has been returned to this Court for resolution of the per se prejudice question. Again, we recognize that this claim does not reach us directly, but is cognizable only as a component of Appellant‘s derivative claim of ineffective assistance of appellate counsel. See supra note 2. As this issue is a question of law, our scope of review is plenary and our standard of review is de novo.
To safeguard the fundamental right to a fair trial, a criminal defendant is entitled to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970).5 Counsel is presumed effective, and the
As discussed, the Superior Court denied relief upon finding that Appellant was not actually prejudiced by counsel‘s actions. Appellant does not directly contest this determination but instead urges this Court to hold that counsel‘s concession of guilt to the lesser charge was presumptively prejudicial, thereby relieving him of the burden of proving harm. In support, Appellant highlights that, on the same day the United States Supreme Court filed Strickland, it also issued its companion decision in United States v. Cronic, 466 U.S. 648, 653-56, 104 S.Ct. 2039, 2043-45, 80 L.Ed.2d 657 (1984), acknowledging that certain cases entail a level of inadequacy on the part of counsel that is of such a quality that prejudice is automatically assumed. Appellant urges, as he did before the PCRA court and the Superior Court, that trial counsel‘s concession of guilt before the trial court so undermined the adversarial nature of the proceedings as to constitute a “structural defect” in the proceedings, thus making it proper to resolve the present case under the presumed prejudice stan-
A number of other courts have addressed the central question presented in this appeal: whether, and under what circumstances, prejudice should be legally assumed when the defendant has pleaded not guilty, but counsel, facing overwhelming evidence of guilt, decides as a strategic matter to admit a certain level of culpability in order to preserve credibility with the fact-finder so that his or her argument for a lesser degree of guilt (or for a lenient sentence) will have a higher chance of succeeding. On one hand, admitting guilt almost always results in a guilty verdict to at least some charge; at the same time, however, it may be difficult to conceive of how anything but a guilty verdict could result from the evidence presented, and counsel‘s strategy may appear to have been the best way to avoid a worst-case scenario under the circumstances.
Jurisdictions have not been uniform in resolving this issue. Some have applied a presumed-prejudice rule to situations such as the present one, often on the view that only the defendant is entitled to plead guilty, and—as Appellant urges here—counsel‘s admission of any level of criminal liability prior to the fact finder‘s verdict amounts to the equivalent of a guilty plea.8 Among these jurisdictions, some have deemed relevant the question of whether counsel acted contrary to his
On the other side of the ledger, a number of jurisdictions have refused to apply a per se prejudice standard in every case where counsel admits guilt as to a particular charge, reasoning that such may reflect a sound tactical decision in view of the circumstances of the case.9 In fact, this Court has
Based on the overwhelming evidence that Appellant had escaped from prison, trial counsel‘s actions can certainly be considered reasonable in view of the circumstances of this case. In order to maintain his credibility and not antagonize the jury, counsel may have conceded the escape charge in an effort to defend against the other more serious charges which could have resulted in the imposition of a death sentence. Trial counsel had a reasonable basis for his actions, and therefore, Appellant‘s claim of ineffectiveness must fail.
Id. at 18, 650 A.2d at 44; see also Commonwealth v. Johnson, 572 Pa. 283, 307, 815 A.2d 563, 577 (2002) (finding that “counsel had a reasonable basis for conceding Johnson‘s presence at the [crime] scene and some degree of complicity and, thus, counsel was not ineffective” in presenting a guilt-based defense); Commonwealth v. Lofton, 448 Pa. 184, 189, 292 A.2d 327, 330 (Pa.1972) (finding that counsel‘s admission of guilt of felony murder (then a form of first-degree murder), in order to concentrate on avoiding the death penalty, was not ineffective as it had a reasonable basis designed to advance the client‘s interests).
Appellant does not explain why DeHart should not control the outcome here. Additionally, although the two post-Cronic decisions listed above—DeHart and Johnson—are silent on the question of whether Cronic or Strickland/Pierce presented
Cronic delineated a category of cases in the ineffectiveness arena where prejudice is presumed: the Court suggested, for example, that if counsel is physically absent or “entirely fails to subject the prosecution‘s case to meaningful adversarial testing,” no showing of prejudice is necessary. Id. at 659, 104 S.Ct. at 2039. Referencing prior Sixth Amendment cases, the Court also indicated that, even where counsel is present, surrounding circumstances may make it so unlikely that any lawyer could provide effective assistance that ineffectiveness is appropriately presumed. The Court pointed to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as an example of such a scenario, as the trial judge in that matter had, on the eve of a capital trial, appointed as defense counsel an out-of-state attorney who was unfamiliar with local customs and procedures and had had no opportunity to prepare. See Cronic, 466 U.S. at 660-61, 104 S.Ct. at 2047-48. Finally, in a footnote, the Court cited cases in which it had found a Sixth-Amendment error due to actual or constructive denial of counsel by government action. See Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25. See generally Bell v. Cone, 535 U.S. 685, 695-96 & n. 3, 122 S.Ct. 1843, 1851 & n. 3, 152 L.Ed.2d 914 (2002) (summarizing the Cronic categories of presumed prejudice).10 Courts have additionally assumed
It is important to note, however, that the defining feature of all of these of cases is that the acts or omissions of counsel were of the type that are virtually certain to undermine confidence that the defendant received a fair trial or that the outcome of the proceedings is reliable, primarily because
As time has demonstrated, both before and after Cronic, there are multiple scenarios in which a defense attorney may reasonably determine that the most promising means of advancing his client‘s interests is to admit what has become plain to all concerned—that his client did in fact engage in at least some of the underlying conduct complained of—but either to argue for conviction of a less severe offense, or to plead for mercy in sentencing based upon the facts viewed in a light favorable to the defendant. We conclude, therefore, that the Cronic exception to Strickland was not intended to be triggered by the type of action undertaken by Attorney Savino, at least in the absence of some additional circumstance which makes counsel‘s concession of guilt especially prejudicial (such as where counsel directly contradicts his client‘s trial testimony, as in Anaya).13
[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney‘s failure to test the prosecutor‘s case, we indicated that the attorney‘s failure must be complete. We said, “if counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing.” Cronic, supra, at 569, 104 S.Ct. [at 2047] (emphasis added). Here, respondent‘s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.
Id. at 696-97, 122 S.Ct. at 1851 (emphasis added by Bell court).
Presently, as well, Attorney Savino‘s strategic decision to concede guilt only to manslaughter during closing arguments
We also find support for this position in the Supreme Court‘s very recent decision in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).15 In that matter, Nixon
In a unanimous opinion authored by Madame Justice Ginsburg, the Supreme Court reversed, holding that counsel‘s strategy of conceding guilt did not automatically render his performance deficient. While reaffirming that a defense lawyer lacks authority to enter a guilty plea without the client‘s express consent, see Nixon, 543 U.S. at 186-88, 125 S.Ct. at 560 (citing Brookhart v. Janis, 384 U.S. 1, 6-7, 86 S.Ct. 1245, 1248, 16 L.Ed.2d 314 (1966), and Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)), the Supreme Court differed with the Florida court on the question of whether counsel‘s tactics were the “functional equivalent” of such a plea. See id. at 188-89, 125 S.Ct. at 561. The Supreme Court reasoned that, notwithstanding defense counsel‘s concession, Nixon retained all the rights accorded a defendant during a criminal trial, including the right to force the state to adduce competent, admissible evidence during the guilt phase of trial sufficient to establish the essential ele-
Attempting to limit Nixon‘s scope, Appellant points to several perceived differences between that dispute and the present matter. Here, for example, Appellant maintains that it is not apparent from the record that the Commonwealth was seeking the death penalty.16 Although Appellant does not fully explain the relevance of this distinction, it appears aimed at undermining the position that Attorney Savino‘s strategic choice was reasonable, as, unlike in Nixon, there was presumably no need to insulate a sentencing hearing at which the death penalty was imposable from the Commonwealth‘s “aggressive evidence” of guilt. Id. at 188, 125 S.Ct. at 561. Even to the extent that this consideration can be seen as having supplied one basis for counsel‘s actions in Nixon, it does not follow that the Court‘s holding in that case was meant to apply only in death penalty cases, particularly as the specific justifi-
More plausibly, Appellant highlights that Nixon involved a scenario in which defense counsel had explained his strategy in advance and had tried, but failed, to obtain his client‘s approval; whereas, here, Attorney Savino apparently conceded guilt only upon the tacit understanding that both he and his client understood from the state of affairs at trial that this comprised the best opportunity to attain a favorable verdict. We do find it somewhat troubling that counsel did not, at a minimum, expressly apprise Appellant in advance of his intention to admit guilt of voluntary manslaughter. This would at least have given Appellant an opportunity to articulate any objections or reservations to such a course of action. Additionally, the Nixon Court did make note of the defense counsel‘s attempts in this regard, when it stated that counsel, as a general matter, “has a duty to discuss potential strategies with the defendant.” The Court continued, “[b]ut when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course.” Id. at 178, 125 S.Ct. at 555. Appellant highlights this language and urges us to construe Nixon narrowly as applying only in capital cases where defense counsel has informed the defendant that the optimal strategy is to concede guilt but the defendant fails to respond. See Brief for Appellant at 57.
While Appellant‘s argument is not without some foundation, we ultimately do not read Nixon so narrowly. On review of the opinion as a whole, the Court‘s emphasis was upon the difference between a guilty plea and a reasoned strategy of conceding guilt while still preserving all of the defendant‘s other rights, rather than on the fact of counsel‘s unsuccessful attempts to elicit a response from his client after formulating his defense strategy. In this respect, the Supreme Court was focused more on the integrity of the adversarial proceedings
Nixon nevertheless urges, relying on Brookhart v. Janis, [384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)], that this Court has already extended the requirement of “affirmative, explicit acceptance” to proceedings “surrender[ing] the right to contest the prosecution‘s factual case on the issue of guilt or innocence.” Defense counsel in Brookhart had agreed to a “prima facie” bench trial at which the State would be relieved of its obligation to put on “complete proof” of guilt or persuade a jury of the defendant‘s guilt beyond a reasonable doubt. In contrast to Brookhart, there was in Nixon‘s case no “truncated” proceeding, shorn of the need to persuade the trier “beyond a reasonable doubt,” and of the defendant‘s right to confront and cross-examine witnesses. While the “prima facie” trial in Brookhart was fairly characterized as “the equivalent of a guilty plea,” the full presentation to the jury in Nixon‘s case does not resemble that severely abbreviated proceeding. Brookhart, in short, does not carry the weight Nixon would place on it.
Nixon, 543 U.S. at 188-89, 125 S.Ct. at 561 (second alteration in original).
In this passage, the Court‘s discounting of the centrality of “affirmative, explicit acceptance” to a guilt-based defense, combined with its primary distinction between Nixon‘s attorney‘s strategy and the disapproved action in Brookhart of releasing the prosecution from its evidentiary burden at the beginning of trial, convinces us that the mere fact that Nixon‘s attorney tried unsuccessfully to obtain approval from his unresponsive client was not a dispositive factor in that case. Moreover, the PCRA court here made an express factual finding that Appellant understood counsel‘s intentions in advance of the closing argument, making his situation only
For the reasons stated, Appellant‘s underlying ineffective assistance of counsel claim must be evaluated pursuant to the Strickland/Pierce performance-and-prejudice standard. As Appellant does not contest the Superior Court‘s determination that counsel‘s actions did not result in actual prejudice, relief is unavailable on that claim. Accordingly, the judgment of the Superior Court, affirming the common pleas court‘s dismissal of Appellant‘s PCRA petition, is affirmed.
Chief Justice CAPPY, Justice NIGRO, Justice NEWMAN and Justice EAKIN and BAER join the opinion.
Justice CASTILLE files a concurring opinion.
I join the Majority Opinion with the exception of the statement suggesting that it is “troubling that counsel did not, at a minimum, expressly apprise Appellant in advance of his intention to admit guilt of voluntary manslaughter” and the ensuing discussion of that point. See Majority op. at 305-07, 888 A.2d at 722.
The issue posed on this appeal is one of counsel ineffectiveness and, as the Majority properly notes, the claim must be measured by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing of actual prejudice, and not by United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which permits a presumption of prejudice in certain, very limited instances where the defendant is effectively denied meaningful counsel at all. As the Majority necessarily notes in rejecting appellant‘s attempt to expand Cronic, nothing in existing law requires a specific advance disclosure from counsel that he intends to concede a lesser offense in argument, and that is all that is necessary to resolve the question actually before us on this collateral attack. This is so because even if such a requirement were to be foisted upon defense counsel in the future, such a requirement could not operate retroactively to call into question the historical performance of counsel here. Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 819 (2004) (Castille, J., joined by Eakin, J., concurring and dissenting) (“collateral attack is simply not the place for courts to innovate new holdings concerning trial issues, since counsel cannot be faulted for failing to predict those new rulings.“).
It may be preferable that counsel “specifically discuss” an intention to concede a lesser offense in closing before he does so, but for purposes of Strickland analysis I am not troubled when such an affirmative disclosure does not occur. Counsel‘s limited “concession” in this bench trial, where the evidence easily supported a verdict of first degree murder, was perfectly rational and it was spectacularly successful. Far from being “prejudiced” by counsel‘s conduct, appellant should be
In my view, to require counsel to discuss his specific intention with his client merely to permit the client to object or “express reservations” on the record delves too deeply into matters of trial tactics, and in a fashion which may seriously undermine counsel‘s effectiveness and the client‘s interests. This is particularly so where, as here, the trial is non-jury. Such a requirement would run the risk that the defendant will display to the factfinder a stubborn and unrealistic unwillingness to recognize any responsibility in a case where the course of trial has made it readily apparent that there is no colorable factual or legal defense to the lesser crime counsel intends to concede.1 Where a trial is non-jury, this forced revelation may seriously undermine the only rational strategy available to counsel. In the real world in a case such as the one sub judice, counsel‘s “effective” performance under the Majority‘s preference may well ensure only that a stubborn client receives a verdict of murder, rather than one of manslaughter. Rather than intrude into such trial strategy matters, I would continue to trust in the professionalism and assumed competence of the trial defense bar.