COMMONWEALTH of Pennsylvania, Appellee, v. Johnny Ray HARRIS, Appellant.
No. 41 MAP 2004
Supreme Court of Pennsylvania
Decided June 23, 2004
852 A.2d 1168
Submitted Oct. 7, 2003.
I respectfully dissent as I believe that the packaging equipment at issue in this case falls within the General Assembly‘s definition of “manufacture” as “packaging ... passing to the ultimate consumer,”
Unlike the majority, I simply cannot accept an interpretation of the manufacturing exclusion that excludes from taxation equipment used by an assembler of component parts to package its completed product for sale to a retail consumer, while simultaneously permitting the taxation of packaging equipment utilized by the manufacturer of one of the retail product‘s component parts to prepare its completed product for delivery to its ultimatе consumer, i.e., the assembler. Moreover, I disagree with the Commonwealth Court‘s conclusion that the small geographical distance and time delay between AMP‘s assembly of its products and its packaging of those products at the Distribution Center was sufficient to remove the equipment used in the packaging process from the scope of “direct use” as set forth in
Jules Epstein, Esq., for Johnny Ray Harris.
Hugh J. Burns, Esq., Amy Zapp, Esq., Philadelphia, for the Commonwealth of Pennsylvania.
Justice NIGRO.
Appellant Johnny Ray Harris appeals from that part of the order of the Court of Common Pleas of Philadelphia County denying his claims related to the guilt phase of his trial in his petition filed pursuant to the Post-Conviction Relief Act (“PCRA“),
On August 3, 1992, at approximately 10:00 p.m., Appellant and Ahmeen Mustafa arrived at R‘s Variety Store in Philadelphia. The owner of the store, Owen Edwards, and two of his employees, Ronald Caison and Steven Parrish, were preparing to leave work when Appellant and Mustafa entered the store. Without warning, Appellant shot Edwards with a .357 caliber revolver, and Edwards collapsed. Appellant then fired five more shots at Edwards, killing him. After Appellant spit on Edwards, he and Mustafa went through Edwards’ front pockets to retrieve cash. The men fled, and Caison, who had managed to escape from the line of fire, called 911.
Following a jury trial, Appellant was found guilty of first-degree murder, robbery, criminal conspiracy, two counts of recklessly endangering another person, and possessing an instrument of crime.1 At the penalty hearing, the jury determined that the one aggravating factor it found, that Appellant committed the killing in the perpetration of a felony,2 outweighed the one mitigating factor it also found, that Appellant had no significant history of criminal convictions.3 Accordingly, the jury returned a verdict of death.4,5 After denying post-
Appellant obtained new counsel and filed a direct appeal to this Court, which affirmed Appellant‘s judgment of sentence on November 20, 1997. Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998). On December 11, 1998, Appellant filed a pro se PCRA petition, alleging ineffective assistance of counsel during both the guilt and penalty phases of his trial. After counsel was appointed, Appellant filed an amended petition on October 21, 1999, and supplements to the amended petition on November 23, 1999 and March 10, 2000.
On October 25, 2000, the PCRA court entered an order granting an evidentiary hearing on Appellant‘s claims that counsel had been ineffective during the penalty phase, but denying relief on the guilt-phase сlaims.6 This timely appeal followed.7
In his brief to this Court, Appellant first contests a ruling made by the trial court precluding Appellant‘s counsel from questioning Caison about information contained in certain reports regarding his alleged history of mental illness.8 Apparently, Appellant‘s counsel used certain criminal and mental health records in Appellant‘s and Mustafa‘s first and second trials in an effort to impeach Caison with respect to his ability to accurately perceive, recall, and communicate the events of the night of the murder. See N.T., 11/30/93, at 64. The Commonwealth, in order to prevent Appellant‘s counsel from using these records during the instant trial, presented a
Appellant now argues to this Court that the trial court‘s ruling deprived him of his Sixth Amendment right to confront Caison as an adverse witness. However, given that this claim is one of straight trial court error, and that Appellant failed to raise this issue on direct appeal, it has been waived.9,10 See
Inside this waived claim regarding the trial court‘s ruling, Appellant alsо apparently attempts to advance a claim of trial counsel‘s ineffectiveness as it relates to the ruling. Appellant then proceeds to raise additional claims that trial counsel was ineffective for: (1) committing further errors relating to the testimony of Ronald Caison; (2) failing to object to the prosecution‘s use of inadmissible “habit” evidence; and (3) entering into an erroneous stipulation before the jury. Appellant also asserts at the end of his brief that direct appellate counsel was ineffective for failing to raise the above claims.
In Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003), this Court explained how we had recently clarified the requirements for preserving a PCRA claim challenging the effectiveness of counsel in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, (2003):
[We explained in McGill that] [w]hen a court is faced with a “layered” claim of ineffective assistance of сounsel, the only viable ineffectiveness claim is that related to the most recent counsel, appellate counsel. See McGill at 1022. In order to preserve a claim of ineffectiveness, a petitioner must “plead, in his PCRA petition,” that appellate counsel was ineffective for failing to raise all prior counsel‘s ineffectiveness. Id. Additionally, a petitioner must “present argument on, i.e. develop each prong of the [ineffectiveness] test” as to appellate counsel‘s deficient representation. Id. “Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review....” Id. The opinion in McGill then elaborated on how a petitioner must present his claim of layered ineffectiveness. We explained that consistent with Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001) a рetitioner must prove the three prongs of appellate counsel‘s ineffectiveness. [McGill] at 1022-23. The first prong of the ineffectiveness analysis as to appellate counsel‘s conduct — arguable merit — is best understood as a “nested” argument. In essence, to
Rush, 838 A.2d at 656 (emphasis in original).
Thus, pursuant to McGill, we must determine as a threshold matter whether Appellant has preserved his claims. First, Appellant has sufficiently pled his ineffectiveness claims given that he has, as noted above, asserted that appellate counsel was ineffective for failing to raise his claims regarding trial counsel‘s ineffectiveness. See id. As for Appellant‘s presentation of his argument as it relates to appellate counsel, Appellant has at least made reference in his PCRA petition to all thrеe prongs of the Pierce test as it relates to his appellate counsel. PCRA Pet., at 20-21. However, Appellant‘s brief to this Court fails to develop any meaningful argument on the third prong of the Pierce test, i.e., how appellate counsel‘s representation prejudiced Appellant. While such pleading deficiencies may be cured with a remand, see McGill, 832 A.2d at 1024 (“a remand to the PCRA court may be appropriate for cases currently pending in the appellate courts where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review“), we have made clear that such a remand is not necessary where the petitioner “has not carried his Pierce burden in relation to the underlying claim of trial cоunsel‘s ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim
The law presumes that counsel has rendered effective assistance. Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341, 343 (2000). Therefore, to succeed on a claim that counsel was ineffective, an appellant must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for the act or omission in question; and (3) he suffered prejudice as a result of counsel‘s deficient performance; i.e., there is a reasоnable probability that, but for counsel‘s error, the outcome of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Trial counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Smith, 539 Pa. 128, 650 A.2d 863, 866 (1994). In addition, where an appellant has not met the prejudice prong of the ineffectiveness standard, the claim may be dismissed on that basis alone. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995) (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Appellant‘s first allegation of ineffective assistance of counsel relates to the trial court‘s ruling, discussed above, which precluded trial counsel from questioning Caison about information contained in certain reports regarding his alleged history of mental illness. While Appellant‘s argument concerning counsel‘s ineffectiveness in this regard is both underdeveloped and unclear, Appellant appears to be arguing that trial counsel was ineffectivе for failing to impeach Caison with information contained in these records concerning Caison‘s history of both mental illness and drug abuse. This claim, to the extent that it is properly presented to this Court, fails in both respects. First, given that the trial court explicitly precluded Appellant‘s counsel from introducing information in these records pertaining to Caison‘s mental health, trial coun-
In his next claim, Appellant argues that trial counsel was ineffective for failing to impeach Caison with prior inconsistent statements that he made to the police on the night of the murder. Specifically, Appellant argues that Caison‘s statement to Philadelphia Police Officer Sean Cobette, the initial officer on the scene, that the murder was committed by two “unknown males,” one “wearing an orange hat ... and also wearing sunglasses,” directly contradicted his testimony at trial that he recognized Appellant at the time of the shooting. According to Appellant, he “was failed by trial counsel, who never let his jury know” about this inconsistency. Appellant‘s Bf., at 35. This claim fails.
Q: Why did you say two black men wearing white shorts and one was wearing shades? Why didn‘t you just say John Harris, I know who he is? ... Did you know my client‘s name was John Harris?
A: No.
Q: You just knew his name was John?
A: Yes.
Q: Why didn‘t you tell the police John had just shot your boss?
A: I don‘t know why I didn‘t say it. They didn‘t ask me what his first name was.
Q: I‘m sorry?
A: The operator didn‘t ask me what the name was.
Q: So you didn‘t volunteer it?
A: They asked for it from homicide, what the name was.
Q: When you called, you didn‘t think it was important to tell the police who it was?
A: It was important, they asked me the information at homicide.
N.T., 12/1/93, at 153-54. In addition, later in his cross-examination of Caison, trial counsel again asked Caison why he failed to tell the 911 operator that he recognized the shooter:
Q: According to this transcript, the operator asked you, “can you tell me what this person was wearing,” and you said one had an orange hat on. Do you remember saying that?
A: Yes.
A: I said before, it was a shock to me....
Id. at 161. Given that the information that Caison provided to the 911 operator was nearly identical to the information he gave to Officer Cobette, and that Appellant‘s trial counsel thoroughly cross-examined Caison about his failure to identify Appellant in his 911 call, it is clear that the jury was aware of Caison‘s failure to identify Appellant immediately after the shooting. In light of these circumstances, Appellant hаs failed to show how he was prejudiced by counsel‘s failure to cross-examine Caison about the similar statement he made to Officer Cobette, and his ineffectiveness claim necessarily fails. See Travaglia, 661 A.2d at 357 (where appellant has not met prejudice prong of ineffectiveness standard, ineffectiveness claim may be dismissed on that basis alone).
Appellant next contends that trial counsel was ineffective for failing to object to the Commonwealth‘s introduction of several out-of-court statements by Caison that were consistent with his testimony that he recognized Appellant as the shooter.11 Appellant appears to argue that these statements were improperly admitted because they were hearsay and failed to qualify under the “prior consistent statements” exception to the heаrsay rule. We disagree.
Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes under the Pennsylvania Rules of Evidence in two instances. First, it is admissible if “the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of fabrication, bias,
Here, on direct examination, Caison stated that he recognized Appellant as the shooter on the night of the shooting and, as discussed above, Appellant‘s trial counsel then questioned Caison on cross-examination about why he had not told the 911 operator that Appellant was the shooter. Id. at 153-154. To rehabilitate the credibility of Caison‘s testimony that he had recognized Appellant as the shooter, the Commonwealth asked Caison on redirect examination about a statement Caison made to police just one hour after the shooting occurred, in which he identified Appellant as the shooter. N.T., 12/2/1993, at 19-21. Further, the Commonwealth introduced evidence that Caison had also named Appellant as the shooter when he testified in prior proceedings. Id. at 20-21.
Appellant appears to argue that counsel should have objected to these statements as they were not admissible as prior consistent statements under the first subpart of Rule 613(c) because the statements postdated Appellant‘s prior inconsistent statement, i.e., Caison‘s statement to the 911 operator neglecting to name Appellant as the shooter. This argument, however, fails to recognize that regardless of their admissibility under
Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior
In his final claim regarding Caison‘s testimony, Appellant argues that trial counsel was ineffective for failing to request a jury instruction to explain the significance of the evidence introduced that at the time of Edwards’ murder, Caison was on parole or probation and had criminal charges pending against him. According to Appellant, the jury should have received a specific instruction about how to consider this information in evaluating Caison‘s credibility. We disagree.
As in Thompson, here too we find that Appellant has failed to demonstrate that he was prejudiced by the absence of an instruction specifically addressing how Caison‘s criminal record related to his credibility. See Pierce, 786 A.2d at 213. During cross-examination, Appellant‘s trial counsel questioned Caison about the fact that he had been on probation or parole and had pending criminаl charges at the time of the shooting, and suggested that he had received “a deal” in exchange for his testimony against Appellant:
Q: Mr. Caison, I believe when Ms. Fairman questioned you earlier, she asked you whether you had made any deal with the police or agreement with the police about your charges in relation to whether or not you were going to testify in this case. Do you remember her asking you that?
A: Yes.
Q: You testified there isn‘t any deal; is that correct?
A: That‘s correct.
Q: When you spoke to the police immediately after this incident, were you afraid that you were going to be arrested for selling marijuana, for admitting that you were selling marijuana?
A: No.
A: Yes.
Q: You had no fear about that?
A: No.
Q: But in fact, you never were accused of violating your probation for these marijuana sales; is thаt correct?
A: That‘s correct.
Q: You‘re smiling, but that‘s not a deal —
A: I‘m sorry.
Q: Is that a deal or not?
A: It‘s not a deal.
Q: Nothing to do with it?
A: No.
N.T., 12/1/93, at 162-63. Thus, the jury was clearly made aware of the possibility that Caison had agreed to testify against Appellant in order to receive favorable treatment from the Commonwealth. Moreover, the trial court‘s general jury charge thoroughly instructed the jury to consider the possibility of bias in evaluating the credibility of each witness. Specifically, the court stated:
You should consider whether the [witness] has any interest in the outcome of the case or has friendship for or animosity toward any other persons concerned in the case; you should consider the behavior of the witness on the witness stand; the witness‘s demeanor; the witness‘s manner of testifying; and whether the witness shows any bias or prejudice that might color the witness‘s testimony.
N.T., 12/3/1993, at 8. Given this instruction, and the fact that the jury was aware of Caison‘s potential bias stemming from his pending charges, Appellant has failed to show how he was prejudiced by trial counsel‘s failure to request a specific instruction explaining the significance of Caison‘s criminal record as it related to his credibility. See Thompson, 739 A.2d
In his next claim, Appellant asserts that trial counsel was ineffective for failing to object to the testimony of Parrish, one of the employees working at R‘s Variety Store on the evening of the murder, that Edwards, the owner of the store, usually collected money from the cash register each night before closing. This claim fails.
Pennsylvania Rule of Evidence 406 provides that:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevаnt to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Here, Parrish testified that, although he had only worked at the store for one week when the murder occurred, it was Edwards’ custom during that week to return to the store at night to close up. N.T., 12/1/93, at 23. Specifically, Parrish stated the following:
Q: Why did [Edwards] come around that evening?
A: Close up the [s]tore.
Q: Was that something that was his custom? Would he do that every day?
A: Yes.
Q: In the week that you worked there, was that his habit?
A: Yes, by what I could see.
...
Q: What happened to the cash register? Was that your responsibility?
A: What do you mean?
A: He usually pick that up.
Q: Did you see him pick it up on that day?
A: I don‘t remember.
...
Q: Why did [Edwards] come to the store every day at closing?
A: Well, to pick up the money at the end of the day.
Id. at 23-25. Mustafa‘s counsel objected to Parrish‘s testimony regarding what Edwards “usually did,” and the court sustained the objection. Id. at 24. Counsel then objected to the Commonwealth‘s next question asking Parrish if he saw Edwards take the money out of the cash register every day that he worked at the store. Id. This time, the court allowed Parrish to answer the question, stating, “the objection is overruled. I‘ll permit the district attorney to question as to business practices.” Id.
Appellant essentially argues that his trial counsel was ineffective for failing to object to this testimony because Parrish did not personally witness Edwards pick up the money with sufficient regularity to permit the jury to infer that it was Edwards’ “habit” or “business practice” to do so. This claim is a bit curious, as an objection was made to this testimony, albeit by Appellant‘s co-defendant‘s counsel. In any event, to the extent that Appellant is suggesting that his counsel should have also objected, this claim fails, as we agree with the PCRA court that Parrish‘s testimony was properly admitted. As noted above, Parrish testified that during the week that he had worked at the store, he witnessed Edwards pick up the money at the end of the night when the store would close. We see no abuse of discretion in the trial court‘s determination that this practice occurred with “sufficient regularity” to make it probable that it occurred on the night of the murder as well. See Matthews, 106 A.2d at 811 (hotel clerk‘s testimony that it was routine practice for hotel to require advance payment when guests register without luggage was admissible to show that defendant had luggage with him when he stayed
In his next claim, Appellant argues that trial counsel was ineffective for entering into an erroneous stipulation before the jury. Appellant claims that the jury was told that he made “four statements” concerning the case, when these statements were actually made by Caison. According to Appellant, this error gave the jury the impression that Appellant had confessed to the crime charged. This claim fails.13
Here, during trial counsel‘s recross-examination of Caison, counsel asked whether Caison had ever mentioned to police that Appellant had spit on Edwards after shooting him. N.T., 12/2/93, at 23. The Commonwealth objected, and a sidebar conference followed in which counsel for both defendants and the Commonwealth agreed to stipulate to the fact that Caison had never mentioned that Appellant spit on Edwards in any of his statements to the police. Id. In addition, during this sidebar conference, counsel for all parties also agreed to stipulate that Caison never told the police that he took a gun from Edwards and put it back on the shelf, but that he had testified to this fact in four previous proceedings. Id. at 24.
Following the sidebar conference, the court excused Caison, and informed the jury that the Commonwealth and the defense had entered into an additional stipulation. Id. at 26. At this time, the Commonwealth stated the following:
Id. (emphasis added). Thus, when the prosecutor recited the stipulation to the court, she misspoke, and referred to statements made by “the defendant” rather than by Caison. Apparently, neither the court nor counsel for the defendants noticed the prosecutor‘s mistake, and the error was left uncorrected.
Appellant argues that “[t]he erroneous stipulation could only generate speculation and diminish appellant‘s privilege against self-incrimination by inviting jurors to conclude that he had made statements with knowledge of the criminal еvent.” Appellant‘s Bf., at 42. However, we cannot agree with Appellant that the jury was misled by the prosecutor‘s misstatement. First, the stipulation referred to statements that the jury already knew to have been made by Caison. At this point in the trial, the jury was well aware that Caison had given four statements to the police, that he had just testified that he had taken a gun from Edwards’ body and placed it in the back of the store, and that he had also just testified that Appellant spit on Edwards after shooting him. Moreover, the jury heard the stipulation right after Caison‘s testimony. Finally, counsel for Appellant addressed the subject of the stipulation during her closing argument to call into question the credibility of Caison, not the credibility of her client. See N.T., 12/2/93, 90-95. Given these circumstances, we agree with the PCRA court that Appellant has not shown that he was prejudicеd by the prosecutor‘s misstatement, and thus that trial counsel cannot be said to have given ineffective representation for failing to correct it. Accordingly, this claim fails. See Pierce, 786 A.2d at 213 (stating that in order to
In his final claim, Appellant contends that the PCRA court below erred in refusing to grant him at least an evidentiary hearing on the above guilt-phase claims. However, as the above discussion makes clear, no hearing was necessary to dispose of Appellant‘s guilt-phase claims as those claims are clearly without merit. See
Having found that Appellant is not entitled to relief on any of his claims related to the guilt phase of his trial, we affirm that part of the order of the PCRA court.
Justice SAYLOR files a concurring opinion.
Justice SAYLOR, concurring.
I am unable to join fully the majority‘s treatment of several issues in this appeal and write to explain my primary difference. This concern is with the majority‘s approach to Appellant‘s claims relating tо the Commonwealth‘s sole identification witness, Ronald Caison, and in particular, those centered on the fact that the jury did not hear evidence in the guilt phase of trial concerning Caison‘s assertedly impaired mental health condition.
Was not Appellant deprived of the effective assistance of counsel, a fair trial, and his right to confront witnesses, under the Sixth and Fourteenth Amendments and the Pennsylvania Constitution, when trial counsel failed to properly establish the рredicate necessary for questioning Ronald Caison, the sole identification witness, with his [Caison‘s] substantial psychiatric ... history.”
Brief of Appellant at 5, 22 (emphasis added).1 While the development of the issue on such terms in the body of Appellant‘s brief is sparse, there are multiple references to the assertion of trial counsel ineffectiveness for failing to secure independent proof of mental infirmity on Caison‘s part. See, e.g., Brief of Appellant at 13, 22, 31 n. 19; see also id. at 33 (same, but focused primarily on the claim related to trial court‘s asserted failure to develop evidence concerning Caison‘s drug usage). As such, I believe that Appellant has done enough to put the issue before this Court on such terms, particularly where he has not been afforded an evidentiary hearing at which to submit his proofs. I make this point only because I believe that, althоugh form is certainly important, particularly in the aftermath of McGill, in which the Court implemented a fairly formalistic set of requirements for layered claims in subsequent cases,2 I understand the Court‘s concomitant commitment was to focus more closely on substance with respect to those claims, such as these, that were advanced prior to McGill‘s issuance. See generally McGill, 574 Pa. at 590-91, 832 A.2d at 1024.
Additionally, it appears to me that the trial court‘s ruling was within the boundaries of its discretion, since although that the records from Caison‘s sentencing proceedings establish some mental health difficulties, primarily along the lines of a personality disorder, they are unspecific in terms of the effect of these difficulties on Caison‘s ability to observe and recall. Accord Commonwealth v. Rizzuto, 566 Pa. 40, 62-64, 777 A.2d 1069, 1082-83 (2001) (framing the essential inquiry concerning the admissibility of witness mental-health evidence in terms of the witness‘s ability to observe and remember). In absence of some offer of explanatory, expert testimony, a fair degree of speculation would have been required to close the gap between the proffered records and the witness‘s capacity in the relevant respects, thus implicating the trial court‘s discretion to disallow the references. Compare, e.g., Commonwealth v. Mason, 358 Pa.Super. 562, 569-71, 518 A.2d 282, 285-86 (1986) (holding that the trial court erred in precluding cross-examination of a cruсial Commonwealth witness about his history of