COMMONWEALTH of Pennsylvania, Appellee v. Joseph D‘AMATO, Appellant.
Supreme Court of Pennsylvania.
Decided Sept. 2, 2004.
856 A.2d 806
Submitted Aug. 21, 2002.
Former Justice LAMB did not participate in the decision of this case.
Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, for Com. of Pa.
Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice SAYLOR.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County dismissing a capital, post-conviction petition. For the reasons that follow, we affirm in part, and remand for limited further proceedings.
I. Background
The facts and procedural history underlying the judgment of sentence in this matter are detailed in this Court‘s disposition on direct appeal. See Commonwealth v. D‘Amato, 514 Pa. 471, 476-80, 526 A.2d 300, 302-04 (1987). Briefly, on the evening of March 19, 1981, the victim, Anthony Patrone, approached Joseph D‘Amato (“Appellant“) in a restaurant in Philadelphia, and the two began to discuss a plan to defraud an insurance company by reporting as stolen an automobile belonging to Appellant‘s girlfriend, Bernadette McFarland.
After the shooting, Appellant and his girlfriend abandoned the vehicle and fled Philadelphia. Appellant ultimately became a suspect in the Patrone homicide, as well as in the shooting deaths of two other individuals, John Amato and Anthony Bonaventura. Philadelphia police obtained an arrest warrant for Appellant and, later, a federal fugitive flight warrant. Appellant and Ms. McFarland remained at large for approximately nine months. In December of 1981, FBI agents apprehended them near Youngstown, Ohio. Appellant waived extradition and was returned to Philadelphia. After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Appellant agreed to speak with the police without an attorney present, and provided separate written confessions to all three homicides. Appellant subsequently filed pre-trial motions to suppress the confessions, as well as evidence obtained through police searches. All of the statements and evidence from the three matters were consolidated for a suppression hearing. At the conclusion of the hearing, the court denied Appellant‘s suppression requests.
Appellant was tried separately for the three homicides. He was ultimately found guilty of first-degree murder as to Mr. Amato, and sentenced to life imprisonment. Appellant was thereafter convicted of first-degree murder as to Mr. Patrone, the victim herein. In the penalty phase, the jury found one
In March of 1989, Appellant filed a pro se petition for collateral relief under the Post Conviction Relief Act,
Appellant presently argues that he has never had the benefit of an evidentiary hearing with respect to any of his post-conviction claims, which include assertions of ineffective assistance of counsel, after-discovered evidence, and deprivation of counsel at a critical stage in the penalty phase of his trial. Relevant to the present case, we note that, to be eligible for relief, Appellant must plead and prove, by a preponderance of the evidence, that the challenged conviction or sentence resulted from: ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place; or the unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced. See
Appellant initially advances several allegations of ineffective assistance of counsel relating to events at both the guilt and penalty phases of trial. In framing his argument, Appellant presents lengthy quotations from his various amended PCRA petitions. These quotations include statements of the alleged instances of ineffectiveness, together with a conclusory assertion that post-trial and direct appellate counsel were ineffective for failing to raise them. See Brief of Appellant at 17, 21–22.
All of the allegations relating to trial counsel‘s stewardship are waived, as they were not raised during post-trial or direct appellate proceedings. See
Still, in McGill, this Court recognized that it has not been entirely clear in the past as to what is required of a PCRA petitioner seeking to plead and prove a layered claim of ineffectiveness, and, accordingly, indicated a general preference to remand to the PCRA court for further development in circumstances such as are presented here. See id. at 590-91, 832 A.2d at 1024. McGill also clarified, however, that such a remand is unnecessary where the post-conviction petitioner fails to “thoroughly plead and prove” the underlying allegation that trial counsel was ineffective.6 The reason is that a necessary condition of success, even on a properly-layered ineffectiveness claim, is the presentation of an underlying issue with arguable merit. Hence, a lack of arguable merit in the underlying issue is fatal to a post-conviction petitioner‘s ineffectiveness claim regardless of whether his pleadings and proofs conform to the layering requirements expressed in McGill. See Rush, 576 Pa. at 14, 838 A.2d at 657-58; McGill, 574 Pa. at 591, 832 A.2d at 1024-25.7 Here, the PCRA court
dismissed Appellant‘s claims without a hearing because it found that all of the underlying allegations of trial counsel ineffectiveness were waived, previously litigated, or meritless. We agree with the PCRA court‘s determination in this regard, and therefore, find that all ineffectiveness claims presented here fit within the McGill exception.
A. Alleged ineffectiveness at voir dire
First, Appellant charges that trial counsel was ineffective for omitting to life-qualify the jury and for failing to “rehabilitate” jurors who were excused for cause when they expressed moral or philosophical opposition to the death penalty.8 The PCRA court rejected this issue as having been both waived and previously litigated. Unfortunately, the court applied the previous litigation bar based upon a 1986 Superior Court memorandum opinion affirming Appellant‘s judgment of sentence for the Amato homicide. Under the applicable version of the PCRA, an issue may only be deemed previously litigated if it was disposed of in the trial court and no appeal was taken; or the highest appellate court in which the post-conviction petitioner could have had review as a matter of right has ruled on its merits; or it was raised and decided in a prior proceeding collaterally attacking the pertinent conviction or sentence. See
Although a defendant must be permitted, on request, to ask life-qualifying questions during voir dire, see Morgan v. Illinois, 504 U.S. 719, 736, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992), counsel is not required to do so, see Bond, 572 Pa. at 617, 819 A.2d at 50, and any such omission on the part of counsel does not constitute ineffectiveness absent a showing that counsel‘s overall performance led to the seating of a jury which was not fair and impartial. See generally Commonwealth v. Morris, 546 Pa. 296, 308, 684 A.2d 1037, 1043 (1996). Here, Appellant merely advances a contention that trial counsel should have asked life-qualifying questions, but he does not identify any aspect of the voir dire proceedings that would suggest that the jury ultimately empaneled was biased in favor of the death penalty. See Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80 (1988) (stating that the appellant carries the burden of showing that his jury was not impartial); Keaton, 556 Pa. at 471, 729 A.2d at 545 (denying relief where the appellant did not “contend that any of the jurors who actually decided his fate were not impartial” (citing Ross, 487 U.S. at 84, 108 S.Ct. at 2276)). Moreover, this Court has repeatedly rejected claims similar to the one under review. See, e.g., Commonwealth v. Johnson, 572 Pa. 283, 305-06, 815 A.2d 563, 575-76 (2002); Commonwealth v. Peterkin, 511 Pa. 299, 320, 513 A.2d 373, 383-84 (1986); Commonwealth v. Szuchon, 506 Pa. 228, 256-57, 484 A.2d 1365, 1380 (1984). Therefore, this allegation of trial counsel‘s ineffectiveness is insufficient to prove an entitlement to relief even under appropriate layering.
B. Alleged ineffectiveness in cross-examining a Commonwealth witness
Next, Appellant asserts that trial counsel was ineffective for failing to object to a Commonwealth witness‘s testimony that her prior statement to the police was given pursuant to a lie detector test. The witness, Elizabeth Klitsch, was a bartender at the restaurant where Appellant met the victim on
The PCRA court denied relief on this claim, stating that the issue was waived and that it was meritless, as it would have been “preposterous” for counsel to object to his own reliance upon the polygraph results. Presently, Appellant only offers a one-sentence argument that the PCRA court erred, stating that its analysis overlooks that the allegation of ineffectiveness pertains to trial counsel‘s alleged “bolstering of the credibility of the witness based upon her having been polygraphed.” Brief of Appellant at 28-29. This argument is so undeveloped that it is the functional equivalent of no argument at all. Therefore, the issue must be deemed waived in this Court. See Commonwealth v. Williams, 557 Pa. 207, 223, 732 A.2d 1167, 1175 (1999) (noting that relief is unavailable based upon undeveloped claims for which insufficient arguments are presented on appeal); Commonwealth v. LaCava, 542 Pa. 160, 176 n. 9, 666 A.2d 221, 228 n. 9 (1995). Moreover, Appellant does not explain how counsel‘s purported bolstering could have unfairly harmed Appellant, particularly as neither Ms. Klitsch‘s trial testimony, nor her statement to police, reflected that she had seen Appellant or his girlfriend at the restaurant on the evening in question, but only that she had seen the victim. To the extent Appellant perceives harm from any consistency between Ms. Klitsch‘s statement and
C. Alleged ineffectiveness concerning a remark by Detective Chitwood
Appellant next contends that his trial counsel was ineffective in failing to react properly to a comment made by Detective Michael Chitwood during cross-examination. Detective Chitwood was one of the Philadelphia police officers who brought Appellant back to Philadelphia after he was arrested in Ohio. During cross-examination, counsel began discussing the automobile trip from Ohio to Philadelphia in an attempt to show that Appellant suffered coercion. Counsel asked whether, at a certain point during that journey, Appellant was handcuffed. Detective Chitwood responded, “Absolutely; he was a murderer. I mean we had arrested him for murder.” The following colloquy ensued:
[Defense Counsel]. He hadn‘t been found guilty, had he?
[Det. Chitwood]. He had.
[Defense Counsel]. Had this jury found him guilty on this murder?
...
[Det. Chitwood]. No, he hasn‘t been found guilty on this murder, but—do you want me to answer your question? You asked me a question, “Was he found guilty?”
[District Attorney]: I ask that he be allowed to answer the question that counsel asked him. If the defense attorney is going to go into it, then the witness should be allowed to—
[Defense Counsel]: Objection.
[District Attorney]: The defense asked a question, was he found guilty of murder. I think the witness should be allowed to answer the question.
THE COURT: That is all. You will withdraw the question?
[Defense Counsel]: I withdraw the question.
N.T. 2/3/83 at 100-01.
In his PCRA petition, Appellant stated that counsel was ineffective because he did not object to Detective Chitwood‘s comments, move for a cautionary instruction, or move for a mistrial. The PCRA court concluded that the issue was waived, and that it was also meritless because the detective‘s answer was responsive to the question asked. Appellant insists that Detective Chitwood‘s statement was not responsive, as Appellant had not been convicted of murder at the time he was handcuffed en route to Philadelphia, and that the detective‘s comments served to inform the jury that Appellant had been convicted of a separate murder. He cites to this Court‘s decision in Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978), for the position that the introduction of such information is grounds for a new trial.
In Spruill, during the direct testimony of a Commonwealth witness, the prosecutor sought to prove that the defendant had instructed the witness to transport and bury the victim‘s body. The prosecutor asked whether the witness had ever done anything for the defendant, to which the witness responded that he (the witness) had “[b]uried a couple of bodies” for the defendant. Defense counsel moved for a mistrial, which was denied. This Court reversed and remanded for a new trial, observing that the witness‘s use of the phase, “a couple of bodies,” implied that the defendant had committed at least one other homicide besides the one for which he was on trial. In support of its decision to grant a new trial, the Spruill court noted that evidence of prior criminal activity is highly prejudicial, and that the introduction of a statement indicating first-hand knowledge of an unrelated homicide may have impermissibly undermined the defendant‘s presumption of innocence. See id. at 606-07, 391 A.2d at 1050-51. Appellant presently indicates that the above-recited colloquy involving Detective Chitwood unfairly prejudiced him in the same manner as in Spruill, and that counsel‘s failure to request remedial measures rendered the verdict unreliable.
In this regard, several differences between Spruill and the proceedings now under review warrant discussion. First, the other-crimes evidence in Spruill was elicited during direct examination of a Commonwealth witness; whereas, in the present matter, Detective Chitwood was testifying during cross-examination in which defense counsel, attempting to demonstrate that the confession was coerced, inquired at length concerning the physical restraints placed upon Appellant. This line of questioning opened the door for the witness to proffer some explanation as to why use of handcuffs was warranted. Additionally, the challenged testimony in Spruill unequivocally reflected first-hand knowledge that the defendant had committed multiple homicides. Here, by contrast, the detective initially stated that “he was a murderer. I mean we had arrested him for murder,” thus clarifying that he only
We find more troubling the district attorney‘s actions in imploring the judge to allow the witness to state whether Appellant had been convicted of a separate murder. This arguably raised an inference that she expected information favorable to the prosecution to be forthcoming. Still, counsel immediately withdrew the question, and it was never answered. Moreover, in the overall circumstances of this case, this incident does not stand out as being unduly inflammatory. Indeed, on direct appeal this Court rejected several claims of prosecutorial misconduct by making specific reference to the impassioned advocacy involved at trial, in which both sides “occasionally exceeded the boundaries of overzealousness.” The Court observed that the trial judge repeatedly warned the jurors that such “heat-of-battle” remarks should not influence their deliberations. See D‘Amato, 514 Pa. at 491, 526 A.2d at 310. The judge also cautioned the jury that the comments of counsel do not constitute evidence available for consideration in reaching a verdict. See, e.g., N.T. 2/3/83 at 119, 121; N.T. 2/7/83 at 97-98, 138-39. In light of these factors, we cannot conclude that Appellant has carried his burden of demonstrating that he would have been entitled to a mistrial based upon the challenged remarks, or that the lack of a curative instruction at that point in the proceedings resulted in a process in which no reliable adjudication of guilt or innocence could have taken place.
The conclusion that the verdict was not undermined is supported by noting that the independent evidence of Appellant‘s guilt was abundant. Of particular importance is Appellant‘s detailed confession which was read to the jury. This Court recognized on direct appeal that the confession was the “critical and most damaging evidence introduced at trial.” See
D. Penalty-phase jury instruction on preponderance
Appellant next alleges that the trial court rendered an erroneous penalty-phase instruction regarding the proof necessary to establish mitigating circumstances, and that counsel was ineffective for not objecting to it. In the relevant portion of the jury charge, the judge stated:
[T]he Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt. The defendant has the burden of proving mitigating circumstances but only
A preponderance of the evidence exists when one side is more believable than the other side. All the evidence from both sides, including the evidence you heard earlier during the trial in chief, as to aggravating or mitigating circumstances is important and proper for you to consider.
N.T. 2/9/83 at 41.
Appellant contends that the trial court‘s formulation pertaining to one side being “more believable” than the other was error. Citing to Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), he argues that, as a general matter, trial courts may not deviate from the language of the sentencing statute,
The standard instruction cited by the PCRA court, namely, Pennsylvania Instruction 15.2502E (Crim), is intended for use at the beginning of the sentencing hearing and contains only a brief definition of preponderance, namely, “by the greater weight of the evidence.” The charge designed for use before the jury retires to deliberate adds context and clarifying language to the definition:
The Commonwealth must prove any aggravating circumstance beyond a reasonable doubt.... By contrast, the defendant must prove any mitigating circumstance. However, the defendant only has to prove it by a preponderance of the evidence, that is, by the greater weight of the evidence. This is a less demanding standard than proof beyond a reasonable doubt. Facts are proven by a preponderance when the evidence shows that it is more likely than not that the facts are true.
Pennsylvania Standard Jury Instruction 15.2502F (Crim).
The instruction provided by the trial judge in this case mirrored the standard instruction in that it placed the preponderance standard in context by noting that it is a lesser burden than that carried by the Commonwealth. Thus, the gravamen of Appellant‘s complaint is that the judge erred by not utilizing the tipping-of-the-balance metaphor, and by inserting the phrase “more believable” in place of “greater weight” or “more likely than not.”
We do not believe that the challenged instruction misinformed or confused the jury as to the meaning of the preponderance-of-the-evidence standard. This Court has held that trial courts need not specifically refer to the tipping of a balance when describing the burden of proof applicable to mitigating factors, see Commonwealth v. Williams, 532 Pa. 265, 285, 615 A.2d 716, 726 (1992), and has on multiple occasions deemed the “more believable” phraseology to be acceptable. See Commonwealth v. Wilson, 538 Pa. 485, 518, 649 A.2d 435, 451-52 (1994); Commonwealth v. Baker, 531 Pa. 541, 569, 614 A.2d 663, 667 (1992); Commonwealth v. Tilley, 528 Pa. 125, 146, 595 A.2d 575, 585 (1991). Indeed, from a lay person‘s perspective, the “more believable” and “more likely than not” formulations would appear roughly equivalent, and courts in other jurisdictions have used some variation of the phrases “more credible” or “more convincing” in describing the meaning of preponderance. See, e.g., Calcote v. Texas Educ. Found., Inc., 458 F. Supp. 231, 237 (W.D.Tex.1976) (resolving the preponderance of the evidence by determining which side‘s witnesses were “more credible and convincing“);
Appellant‘s reliance on Billa is misplaced. In that case, the jury was instructed to “add up” the number of aggravating and mitigating circumstances, and impose the death penalty if and only if it found more of the former than the latter. This Court noted that such a charge disregarded the language of the sentencing statute, under which the jury is directed to perform a weighing process rather than a simple counting process. While forbidding trial courts to deviate from this statutory prescription, the Billa decision specifically recognized the need for trial courts to define the significant terms contained in Section 9711, see Billa, 521 Pa. at 188, 555 A.2d at 845, one of which is the phrase, “preponderance of the evidence.” See
E. Other instances of alleged ineffectiveness
Appellant also states that trial counsel was ineffective for: allegedly preventing Appellant from testifying during the suppression hearing and at trial; failing to move for a mistrial in response to certain remarks made by the district attorney during her closing argument in the guilt phase; and failing to
Appellant also separately suggests that the matter be remanded to the PCRA court for an evidentiary hearing on all of his allegations of ineffective assistance. See Brief of Appellant at 37.
Under the pre-1996 PCRA, which is applicable here, see supra note 9, waiver is excused if the petitioner demonstrates either that the alleged underlying error resulted in the conviction or affirmance of sentence of an innocent individual, or that the waiver did not constitute a state procedural default barring federal habeas corpus relief. See
III. Alleged deprivation of counsel at a critical stage
Appellant next argues that the PCRA court erred in denying relief on his claim that he was deprived of counsel at a critical stage in the proceedings. Near the conclusion of jury
THE COURT: Sir, I am now going to give you your appellate rights so that you will understand them. Your counsel for this moment [Mr. Durst] is standing right next to you. He is a very learned associate of Mr. Mozenter and I believe you know him. Whatever I say, if you wish to, you may ask him what I am talking about. I may direct you to do so if there is any question. Does that cause you any problem?
THE DEFENDANT: No, sir.
N.T. 2/9/83 at 51-52. The court then described Appellant‘s appellate rights and directed Appellant to consult with “your attorney” (Mr. Durst) to explain any aspect of those rights that remained unclear. After Appellant conferred with Mr. Durst, both affirmed that Appellant understood his rights. See id. at 52-54.
In his PCRA petition, Appellant alleged that the trial court erred and deprived him of his right to counsel when it allowed Mr. Durst to represent him for the portion of the proceedings in which the jury returned the death penalty, and that post-trial and appellate counsel were ineffective in failing to raise this issue.13 The PCRA court rejected this assertion, concluding that the reading of the verdict was not a critical stage of the proceedings, inasmuch as “nothing counsel could have
Pursuant to the Sixth Amendment, a criminal defendant has a right to be represented by an attorney at all critical stages of a criminal proceeding, that is, stages at which substantive rights may be preserved or lost.14 See Commonwealth v. Holzer, 480 Pa. 93, 104, 389 A.2d 101, 107 (1978); see, e.g., White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963) (per curiam) (entry of guilty plea); Commonwealth v. Johnson, 574 Pa. 5, 14, 828 A.2d 1009, 1014-15 (2003) (instruction of the jury); Commonwealth v. Shirey, 333 Pa.Super. 85, 105-06, 481 A.2d 1314, 1325 (1984) (voir dire); Holzer, 480 Pa. at 105, 389 A.2d at 107 (suppression hearing); Commonwealth v. Hughes, 477 Pa. 180, 185, 383 A.2d 882, 885 (1978) (post-complaint, post-arrest interrogation); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A.2d 811, 812 (1966) (first appeal as of right). See generally 21A AM.JUR.2D Criminal Law §§ 1205-1222 (listing stages at which the right to counsel does, or does not, attach). Proceedings relating to the imposition of a criminal sentence constitute a critical stage, at least to the extent that
Relevant to the present case, courts in other jurisdictions have concluded that jury deliberations and the return of the verdict are critical stages for Sixth Amendment purposes. See, e.g., Siverson v. O‘Leary, 764 F.2d 1208, 1214 (7th Cir. 1985); United States v. Smith, 411 F.2d 733, 736 (6th Cir. 1969); Spencer v. State, 85 Wis.2d 565, 271 N.W.2d 25, 28 (1978). Moreover, a capital sentencing proceeding is sufficiently like a trial to implicate counsel‘s role in assuring that the adversarial testing process produces a just result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A logical corollary is that a critical stage occurs when the jury returns a penalty of death. As demonstrated by the case sub judice, this is the point in the proceedings at which the judge informs the defendant of his appellate rights, and the defendant has an opportunity, in consultation with his attorney, to ensure that those rights are understood and preserved. Additionally, the important right of polling the jury to ensure that the death sentence was reached unanimously is either exercised or forever lost at this juncture. See generally Rush, 576 Pa. at 18, 838 A.2d at 660 (observing that a defendant has an absolute right to poll the jury after it reaches a verdict of death); Smith, 411 F.2d at 736; Thomas v. Hunter, 153 F.2d 834, 839 (10th Cir.1946) (explaining the significance and importance of the ability to poll the jury); State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610, 612 (1990).
This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst‘s substitution for Mr. Mozenter failed to conform to the criminal procedural rules, it does not follow that a deprivation of counsel occurred, as Appellant was in fact represented by Mr. Durst when the jury returned to the courtroom and announced its verdict. Appellant does not allege that Mr.
By the time Mr. Durst‘s representation of Appellant began, moreover, the jury‘s decision as to both guilt and sentence had already been reached, and Appellant‘s presentation does not suggest a reasonable probability that Mr. Durst did not do everything on Appellant‘s behalf in reaction to these events that Mr. Mozenter could have done. Under these circumstances, it is difficult for Appellant to argue that he lacked counsel at this stage of the proceedings. Cf. United States v. Osterbrock, 891 F.2d 1216, 1218 (6th Cir.1989) (concluding that, where the verdict was returned and the jury was polled in the presence of the defendant, any prejudice resulting from counsel‘s absence was merely speculative). But cf. Behnke, 456 N.W.2d at 612 (finding denial of counsel prejudicial where the jury was not polled). While we do not approve of an attorney sending stand-in counsel, whose appearance has not been entered, to represent his or her client during criminal proceedings, nevertheless, our disapproval of this practice does not alter the conclusion that Mr. Durst acted as Appellant‘s counsel during the relevant interval. But cf. Wilson v. State, 764 So. 2d 813, 816 (Fla.Dist.Ct.App.2000) (holding that, where a stand-in attorney was unfamiliar with the case, denied that the defendant was his client, and did nothing on the defendant‘s behalf, he did not function as counsel). Consequently, there is no need for a McGill remand to develop further the allegation that post-trial and appellate counsel
Finally, as we have determined that no underlying error occurred, Appellant cannot prove that Mr. Durst‘s appearance as his counsel constituted an error resulting in the conviction or affirmance of sentence of an innocent individual. See
IV. Alleged after-discovered evidence
Appellant finally contends that the PCRA court erred in not holding an evidentiary hearing to explore his claim that he is entitled to a new trial based upon after-discovered evidence. See
Initially, Appellant avers that Mason‘s April 7, 1981 statement to police constitutes after-discovered evidence entitling him to a new trial. Mason witnessed certain events connected with the killing of Bonaventura and disposal of his body. He gave police a detailed statement concerning his knowledge of that matter on April 1, 1981, in which he implicated Appellant in that offense. On April 7, 1981, Mason gave the police another statement, clarifying several minor aspects of his April 1 statement. Appellant argues that the Commonwealth concealed Mason‘s April 7 statement in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a charge the Commonwealth denies.
Regardless of whether the Commonwealth concealed evidence, this claim is meritless, as Appellant cannot demonstrate that Mason‘s April 7 statement could have altered the outcome of the proceedings. See
In Appellant‘s second claim, he contends that Mason‘s 1997 affidavit constitutes after-discovered evidence entitling him to relief. In this affidavit, Mason affirms that: he gave state-
This claim, too, is meritless. First, Mason‘s 1997 affidavit contains no representations to the effect that his April 1 and 7, 1981 statements to the police contained falsehoods. Additionally, there is no apparent nexus between the conduct described in those statements (which, as noted, pertains to the death of Bonaventura) and the events recounted by Boyle at Appellant‘s trial for the murder of Patrone. Indeed, the events described in Boyle‘s testimony are not even discussed in Mason‘s April 1 and April 7 statements, and hence, any alleged falsehoods contained in them would be immaterial to the Patrone murder. Consequently, Appellant has failed to demonstrate how any information contained in Mason‘s 1997 affidavit could have been helpful in impeaching Boyle‘s credibility at the trial in the Patrone matter.
In his third and final claim, Appellant argues that Boyle‘s 1997 statement constitutes after-discovered evidence entitling him to relief, as Boyle, in effect, recants his trial testimony from fourteen years earlier. By way of background, Boyle testified at trial that, between 11:00 a.m. and 2:00 p.m. on the day that Patrone was murdered, Appellant came to his (Boyle‘s) home and met with himself, Mason, and one other individual. During this meeting, Appellant asked to borrow
In its opinion dismissing Appellant‘s petition, the PCRA court made no specific mention of Boyle‘s recantation.18 Rather, the court stated that all of the after-discovered evidence claims were either baseless or duplicative. The court then proceeded to address the merits of the claim relating to Mason‘s April 7, 1981 statement to the police (discussed above), and, thereafter, indicated that all other issues raised in the Amended Response had already been discussed earlier in the opinion. This assertion is mistaken; the Boyle recantation is not discussed or mentioned anywhere in the opinion, and hence, it appears that the PCRA court may have overlooked it.19
We acknowledge that, as a general matter, recantation evidence “is notoriously unreliable, particularly where the witness claims to have committed perjury.” Commonwealth v. Dennis, 552 Pa. 331, 356, 715 A.2d 404, 416 (1998); accord Commonwealth v. McCracken, 540 Pa. 541, 548, 659 A.2d 541, 545 (1995); Commonwealth v. Mosteller, 446 Pa. 83, 89, 284 A.2d 786, 788 (1971). This Court has also emphasized, however, that, even as to recantations that might otherwise appear dubious, the PCRA court must, in the first instance, assess the credibility and significance of the recantation in light of the evidence as a whole. The Williams decision, in particular, criticized the PCRA court for failing to make any independent determination as to the subject recantation‘s believability, opting instead to adopt the Commonwealth‘s arguments on the matter wholesale. This Court explained that
the incorporated segment of the Commonwealth‘s brief ... did not contain any particularized finding as to the actual credibility of Ms. Boone‘s prospective testimony as reflected in her declaration. Nor is there anything in the Commonwealth‘s brief which would demonstrate that the PCRA court actually considered Ms. Boone‘s recantation in light of the trial record of her testimony and her post-trial declaration. The PCRA court‘s decision, therefore, is tantamount to the per se preclusion of post-conviction relief based upon recantation evidence. Since this would be inconsistent with our precedent, we find that the PCRA court abused its discretion not only in failing to make an independent credibility determination, but also in adopting reasons in support of its decision that were insufficient on their face.
Williams, 557 Pa. at 232-33, 732 A.2d at 1180-81. The Williams court remanded for a proper disposition, noting that “the PCRA court as factfinder is in a superior position to make the initial assessment of the importance of Ms. Boone‘s testimony to the outcome of the case....” Id. at 233, 732 A.2d at 1181.
The same principles apply here. Although the PCRA court did not adopt the Commonwealth‘s argument, by failing to address Boyle‘s recantation it equally defaulted in its duty to assess the credibility of that statement and its significance in light of the trial record. Therefore, we will remand the matter for the limited purpose of making such a determination.
After reviewing each of Appellant‘s claims, we affirm the decision of the PCRA court in all respects except as indicated in the body of this Opinion. We remand the matter for further proceedings in accordance with Williams, 557 Pa. at 232-33, 732 A.2d at 1180-81, limited to the single issue raised by Appellant pertaining to Boyle‘s 1997 recantation. To aid its resolution of this issue, the PCRA court is directed to conduct a hearing at which Mr. Boyle may be heard. The PCRA court is further directed to complete the proceedings within 90 days, and Appellant may file supplemental briefing in this Court within 20 days after the entry of a supplemental opinion by the PCRA court, with the Commonwealth being afforded 20 days to respond. This Court retains jurisdiction over this matter. See Rush, 576 Pa. at 21, 838 A.2d at 662.
Justice EAKIN files a concurring opinion.
Justice CASTILLE files a concurring and dissenting opinion.
CONCURRING OPINION
Justice EAKIN.
I join the majority opinion with respect to the resolution of all issues. Recognizing the precedent of employing the after-discovered evidence test to analyze recantation testimony, I write separately only to suggest that test is not really designed to assess post-verdict recantation, and ought to be reconsidered. Recantation at this stage may “fall under the heading” of after-discovered evidence, but this is only because it is “discovered after” trial. True “after-discovered evidence” is evidence that was existent but undiscovered at the time of trial as opposed to recantation evidence which did not exist at trial.
Analysis under the after-discovered evidence exception requires examination of whether a petitioner has shown the evidence:
has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; - is not merely corroborative or cumulative;
- will not be used solely to impeach the credibility of a witness; and
- is of such nature and character that a different verdict will likely result if a new trial is granted.
Commonwealth v. McCracken, 540 Pa. 541, 545, 659 A.2d 541, 545 (1995) (citation omitted).
As the test clearly assumes, after-discovered evidence existed at the time of trial, it was just not discovered until later. Recantation is new evidence, withdrawing, or repudiating that which went before; by definition, this “new” evidence was nonexistent at the time of trial. Thus, as applied to recantation, the first prong is never determinative; it is definitionally redundant and meaningless.
Likewise, the value (or lack thereof) of recantation evidence is not measured by the second prong, which considers whether it is merely corroborative or cumulative. It is inherently non-corroborative and non-cumulative of the testimony recanted; while the substance of it may, in the end, corroborate or be cumulative of other evidence, this has little to do with whether it should be the basis of relief. The very act of recanting gives the resultant version a different reputation and pedigree than other consistent-from-the-first testimony. When can recanted trial testimony be termed “merely cumulative,” such as to make this prong analytically valuable?
The third prong is likewise not designed to measure recantation evidence, which will not be used solely to impeach. Recantation is new and different testimony. It certainly may involve credibility issues for the recanting witness, but the testimony must have some relevance beyond impeachment or it is not admissible in the first place. If the original testimony was used to impeach, the recanted testimony would tend to un-impeach, not impeach; conversely if it was not originally
The last prong certainly applies, but the first three do not. The fourth prong is, in my judgment, sufficient to test recantation evidence, understanding that such is always of questionable credibility. However, in trying to fit the shoe of the after-discovered evidence test on the foot of recantation evidence, we end up simply with a test that is not a good fit. Thus, I offer this concurrence, suggesting the applicable rule be recobbled.
CONCURRING AND DISSENTING OPINION
Justice CASTILLE.
I join the Majority Opinion, except with respect to its resolution of appellant‘s after-discovered evidence claim involving William Boyle‘s alleged “recantation.”1 Because I believe that this claim is resolvable now, and fails, I respectfully dissent from that portion of the opinion which orders a remand for review of Boyle‘s new statement.
After-discovered evidence claims may arise far earlier in a criminal matter than upon review under the Post Conviction Relief Act (PCRA),
I certainly agree with the Majority that recantation evidence can fail outright if the fact-finder hears the witness and deems his testimony non-credible; indeed, given the notorious unreliability of recantation testimony and the concomitant admission of perjury, and the heightened standard attendant upon it, it is an exceedingly difficult claim upon which to prevail. However, I do not believe that the only reason recantation testimony can fail is if it is deemed non-credible, and thus, I do not believe that a hearing and credibility findings are always required to resolve such a claim. Where the issue is resolvable as a matter of law based on the existing record—i.e., where the proffered evidence, even if deemed
Even assuming the best possible scenario for appellant upon remand—i.e., that Boyle would repeat his “can‘t recall recantation” under oath before the PCRA judge, and his necessary admission that he perjured himself at trial; and that the PCRA judge would find Boyle‘s new testimony credible—PCRA relief still cannot issue, as a matter of law, because: (1) Boyle‘s new account is not exculpatory; and (2) it is not of such a nature that it likely would have changed the outcome of the trial. There is nothing in the recantation tending to exonerate appellant in Boyle‘s belated claim, contrary to his trial testimony, that he did not provide appellant with a gun similar to the never-found murder weapon on the day of the murder. Moreover, as the Majority makes clear in rejecting other of appellant‘s claims, the direct evidence of appellant‘s guilt in this case was “abundant,” including appellant‘s detailed confession, which this Court recognized on direct appeal was the “‘critical and most damaging evidence introduced at trial.‘” Majority op. at 508, 856 A.2d at 817 (quoting Commonwealth v. D‘Amato, 514 Pa. 471, 471, 526 A.2d 300, 304 (1987)). That devastating confession was corroborated by eyewitness testimony and by appellant‘s post-murder flight evidencing a consciousness of guilt. While Boyle‘s testimony that he provided appellant with a gun similar to the murder weapon was circumstantial evidence that was helpful in securing the conviction, offering Boyle‘s new statement to contradict that testimony would not likely lead to a different verdict. The recanting statement—“I did not give appellant a gun“—is not relevant except to impeach Boyle‘s former relevant testimony that he did, in fact, give appellant a gun. Furthermore, Boyle‘s recantation, even if admitted, would not erase the former testimony if the matter were retried. Rather, a new jury would be faced with the same damning confession, the same corroborating eyewitness testimony, and the same guilty post-murder conduct, accompanied still by Boyle‘s former testimony, admissible as substantive evidence but now im-
I recognize, as the Majority does, that the PCRA court, in an apparent oversight, did not address this claim. I also recognize our precedent suggesting that remand is appropriate where the PCRA court‘s failure to address a claim impedes effective appellate review; or where a failure to address the claim below (particularly in the pre-dismissal notice) has impaired the petitioner‘s ability to amend his PCRA petition and better develop the claim; or where the PCRA court adopts the Commonwealth‘s response rather than conducting an independent review. See generally (Craig) Williams, 566 Pa. 553, 782 A.2d 517 (2001); (Roy) Williams, 557 Pa. 207, 732 A.2d 1167 (1999). In my view, however, this is not an instance in which the PCRA court‘s lapse impedes either appellant‘s ability to prosecute his claim or impedes this Court‘s present ability to resolve the claim. For the reasons stated above, the claim clearly fails as a matter of law. See Bond, 819 A.2d at 50; Clayton, 816 A.2d at 222. In such an instance, I believe a remand is futile and, consistently with this Court‘s recent decisions in Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 659, n. 10 (2003) (remand of claims is unnecessary, despite concerns arising under (Craig) Williams, where those claims involve questions of law that can be resolved on existing record); and Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1024-25 (2003) (remand for proper development of layered ineffectiveness claim is unnecessary where appellant has failed to prove underlying allegation of trial counsel‘s ineffectiveness), I would resolve the claim now.
Because I would deny relief on the after-discovered evidence claim involving Boyle, I dissent from the remand order.