*1 dеath, hereby or- it is due to appeal conviction Applica- The is DISMISSED. appeal that the collateral dered in the File Post-Submission Communication tion for Leave moot. DENIED as Review is for Expedited a Motion Form of in the participate not MELVIN did ORIE Justice this matter. disposition or consideration A.3d 277 Pennsylvania, Appellee COMMONWEALTH v. HUTCHINSON, Appellant.
Steven Pennsylvania. Supreme Court of June 2008. Submitted Aug. Decided *10 of Philadel- Zuckerman, Defender Association David Lee Hutchinson. for Steven Philadelphia, phia, Office, Jr., Attorney’s Burns, District Philadelphia Hugh J. Harrisburg, for Commonwealth Amy Zapp, Philadelphia, Pennsylvania.
OPINION Justice McCAFFERY. sought relief guilt phase from the denial of
This is an appeal
pursu-
in a
filed
petition
(“Appellant”)
Hutchinson
by Steven
(“PCRA”).1 Concluding
Relief Act
ant to the Post Conviction
the record
is supported
of the PCRA court
ruling
that the
error,
affirm.
free of
we
legal
and
of first-
9, 1999,
Appellant
convicted
jury
December
a
On
to death one of
shooting
crimes for
murder and other
degree
young
her two
in front of
Stephanie Epps,
girlfriends,
his
trial, unequivocally
children had testified
children. The
who had shot their
as the individual
identifying Appellant
defense, attempted
an alibi
had
Appellant
presented
mother.
and
testimony,
of the children’s
credibility
to undermine
was
estranged
the victim’s
husband
theory
advanced
returned a verdict
jury
the murder. The
for
responsible
Appel-
affirmed both
death,
this Court
appeal,
and on direct
v.
sentence. Commonwealth
and death
lant’s conviction
(2002).
then
Hutchinson,
Appellant
Pa.
entered an order on July granting Appellant a new penalty phase thereafter, 9, 2006, hearing. Shortly on August the same court entered another order all of denying Appel- lant’s guilt phase claims. Appellant appealed has now from claims, the denial of his guilt phase ten raising issues for our review.2 issues, Appellant following
2. raises the which we have reordered for disposition reproduced ease of but verbatim: 1. Did peremptory the Commonwealth use its strikes in a discrimi- manner; natory appellate and were trial and counsel ineffective for failing object to and raise claim in this violation of the Sixth and Fourteenth corresponding provisions Amendments and the of the Pennsylvania Constitution? Appellant 2. Was rights process was denied his to due under the United States corresponding provisions Constitution and the of the Pennsylvania juvenile Constitution when the witnesses were collo- quies competency as presence to in jury; of the and were trial appellate failing object counsel ineffective for and raise this claim? Appellant rights Was denied his under the Sixth and Fourteenth corresponding provisions Amendments and the Pennsylvania of the Constitution where the Commonwealth introduced evidence of other including Appellant’s bad acts propensity for violence and the court give cautionary failed to jury; instruction to the and were trial and appellate failing object counsel ineffective for and raise this claim? Fifth, Sixth, Appellant 4. Was denied a fair trial violation of the and Fourteenth Amendments to the United States Constitution and corresponding provisions Pennsylvania of the Constitution as a misconduct; prosecutorial result of appellate and were trial and failing object counsel ineffective for and raise these claims? rights 5. Was denied his under the Sixth and Fourteenth corresponding provisions Amendments and the Pennsylvania ineffectively Constitution where investigate, trial counsel *12 failed to intoxication, Appellant, present, voluntary discuss with or diminished defenses; capacity passion and heat of appellate was counsel ineffec- raise, failing tive for argue appeal? brief and this issue on Appellant right 6. Was process denied his to due under the United States corresponding provisions Constitution and the Pennsyl- of the vania improperly Constitution when the trial closing court limited the counsel; argument Appellant’s of appellate and were trial and coun- failing object sel ineffective for and raise this claim? Appellant 7. Is entitled to relief from his conviction because of the prejudicial cumulative process effect of the errors denied him due prior and all they counsel were ineffective to the extent failed to properly object, litigate and raise these claims at trial and on direct appeal? Appellant 8. rights Was denied his under the Sixth and Fourteenth United corresponding provisions States Constitution and the of the 294 to determine requires us of review standard
Our by supported court is of the PCRA ruling whether the Marshall, v. error. Commonwealth legal and is free of record (2008). 714, The PCRA court’s 719 947 A.2d 596 Pa. they this when binding are on Court credibility determinations Johnson, v. 600 by the record. Commonwealth supported are (2009). However, 523, 532, this Court 539 A.2d Pa. legal the PCRA court’s of review to a de novo standard applies Rios, v. 591 Pa. conclusions. Commonwealth (2007). 790, 810 relief, must a petitioner a for PCRA petition
To on prevail that his of the evidence preponderance a prove plead from one or more of resulted or her conviction or sentence 9543(a)(2). § These in 42 Pa.C.S. enumerated circumstances or Unit- Pennsylvania a circumstances include violation counsel, either of or ineffectiveness ed States Constitution no truth-determining process which “so undermined taken innocence could have or adjudication guilt reliable (ii). addition, 9543(a)(2)© a In § 42 Pa.C.S. place.” of error have not been that the claims must show petitioner 9543(a)(3). § An 42 Pa.C.S. litigated or waived. previously have raised it petitioner “if the could issue has been waived trial, trial, in prior on or a appeal before аt but failed to do so 9544(b). § An Pa.C.S. proceeding.” state post[-]conviction highest appellate if “the previously litigated has been issue have had review as in which the could petitioner court the merits of the issue.” has ruled on right matter of 9544(a)(2). § Pa.C.S. peti to dismiss a court has the discretion
The PCRA “that there when the court is satisfied hearing without a tion fact, any material the defen concerning issues genuine are no relief, and no collateral post-conviction is not entitled to dant by any proceed- further would be served legitimate purpose court failed to recuse itself Pennsylvania when the PCRA Constitution upon Appellant? motion of Evidentiary Hearing? an 9. Was entitled to dismissing Appellant's trial claims of Did the trial court err 909(B)(2)? required by Pa.R.Crim.P. error without notice as Appellant's Brief 3-4.
295 909(B)(2). ings.” Pa.R.Crim.P. obtain a “[T]o reversal of court’s PCRA decision to dismiss a a petition without hearing, an appellant must show that he genuine raised a issue of fact which, favor, if resolved in his would have him entitled relief, or that the court otherwise abused its discretion in a denying hearing.” D’Amato, 490, Commonwealth v. 579 Pa. (2004). 806, 856 A.2d 820
Appellant’s first seven allege issues ineffective assis tance of his trial counsel and appellate counsel. We our begin analysis of these issues with the presumption that counsel is effective; the burden of otherwise proving rests with the Cox, petitioner. 223, Commonwealth v. 666, 608 Pa. 983 A.2d (2009). 678 Accordingly, prevail on his claims of ineffective counsel, assistance of Appellant plead must prove, by evidence, (1) preponderance of the three elements: the under (2) lying legal merit; claim arguable has counsel had no reasonable inaction; (3) basis for his or her action or Appellant prejudice suffered because of counsel’s action or Steele, inaction. 341, 786, Commonwealth v. 599 Pa. 961 A.2d (2008) alia, 796 (citing, Pierce, inter Commonwealth v. 515 Pa. 153, (1987)). 527 second, i.e., A.2d 973 regard With to the “reasonable basis” we will prong, conclude that counsel’s chosen strategy lacked a reasonable basis only if proves that “an alternative not chosen offered a potential for substantially success greater than the course actually pur Cox, sued.” supra at 678 (quoting Commonwealth v. Williams, 304, 1060, (2006)). 587 Pa. 899 A.2d To establish the prong, third Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. Dennis, 945, Commonwealth v. 597 Pa. (2008).
Because
direct appeal was decided in Octo
ber
approximately two months before this Court’s deci
Grant,
sion
Commonwealth v.
572 Pa.
813 A.2d 726
(2002), Appellant was
required
raise claims of trial counsel
ineffectiveness at the time that he obtained new counsel. See
*14
(1977)
259,
Hubbard, 472 Pa.
Commonwealth of trial counsel ineffec- a raise claims petitioner (requiring counsel). Al- new the time he or she obtained tiveness at Grant, in Hubbard was overruled Hubbard though this Court was decided. аppeal law when direct prevailing Appellant’s 204, 80, Clark, 85 599 Pa. 961 A.2d v. See Commonwealth (2008). Therefore, shows that new counsel because the record appeal, Appel- on direct represent Appellant was appointed trial counsel ineffective- was to raise claims of required lant to the pursuant time.3 PCRA’s Accordingly, ness at that mandates, trial counsel ineffectiveness any claims of statutory waived. 42 not raised on direct have been See Pa.C.S. appeal 1, 639, 9544(b); Tedford, § v. 598 Pa. 960 A.2d Commonwealth (2008). 13 raise claims of
Appellant may properly appellate PCRA, including under the claims of counsel ineffectiveness in grounded counsel ineffectiveness a failure to raise appellate Cox, ineffectiveness on direct at appeal. supra trial counsel 678-79; Dennis, 954-55; at v. Wash supra Commonwealth (2007) 698, 586, (citing Pa. 927 A.2d 595 Common ington, 592 (2003)). McGill, 574, 1014, v. 574 Pa. 832 A.2d wealth ie., However, “layered,” argument such claims must be must to each the Pierce test for each prong layer be as of presented Dennis, 954-55; defective at allegedly representation. supra ie., first, at 595. To establish the Washington, supra merit” of a claim of counsel ineffec “arguable prong appellate trial ineffective tiveness for failure to raise a claim of counsel ness, a must that trial counsel was ineffective petitioner prove Dennis, 955; supra Washing the Pierce standard. under ton, petitioner prove at 595. If a cannot trial supra ineffective, petitioner’s counsel was then derivative claim of fail, counsel ineffectiveness must also and the court appellate of the Pierce test as prongs need not consider the other two represented he at trial and on direct contention that was appeal by attorney supported by Appellant the same is not the record. Patrizio, who, by Stephen Esq., April represented at trial P. on was 2000, permitted by filing appeal, was this Court to after notice of 11, 2000, Bruno, July Esq., withdraw. On James S. entered his appearance this Court. on behalf before applied appellate counsel ineffectiveness. Commonwealth (2007). Rainey, v. 593 Pa.
It important is that a recognize claim of counsel appellate failing ineffectiveness for to raise a claim of trial counsel ineffectiveness is distinct from a claim of appellate counsel ineffectiveness grounded the manner in which appellate litigated counsel a claim of trial counsel ineffectiveness on appeal. Tedford, supra case, See at 16. In the former claim of trial waived, counsel ineffectiveness has been and the appellant must show that appellate counsel was ineffective for claim; failing however, to raise the case, in the latter the claim of trial counsel ineffectiveness claims has been previously litigated, and the appеllant must show that appellate counsel *15 was ineffective in the manner in which he or she litigated the claim.
We turn now to Appellant’s appellate claims of counsel ineffectiveness.
1. Batson Claim of Racial Discrimination Jury
in
Selection
In Appellant’s
issue,
first
he contends that trial and direct
appeal counsel were ineffective for failing to raise the claim
that the Commonwealth had used its
in
peremptory strikes
a
manner, in
discriminatory
violation of Batson v. Kentucky, 476
79, 106
1712,
(1986).
U.S.
S.Ct.
In 1712, at supra 106 S.Ct. the United States Supreme Court held that “the Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race.” Accordingly, the Supreme United States Court “an permitted individual defendant to show that he was denied 298 exercise of improper the prosecutor’s
equal protection in manner discriminatory racially in a challenges peremptory Daniels, 1, 600 Pa. v. Commonwealth individual case.” his (2009). explained 409, previously have 434 We 963 A.2d claim as follows: a Batson analyzing for framework showing First, prima make a must the defendant facie prosecu- an inference that the rise to give the circumstances account of jurors on or more prospective tor struck one made, is second, showing race; prima if the facie a race-neutral to articulate prosecutor burden shifts to issue; third, juror(s) striking for explanation make the ultimate determination must then trial court proving its burden of has carried whether the defense 97, Batson, 106 476 U.S. at S.Ct. discrimination. purposeful (2008) 572, 594, Cook, 602 Pa. 952 A.2d v. 597 Commonwealth 1033, Harris, 572 Pa. 817 A.2d v. (quoting Commonwealth (2002)). However, when, here, counsel did not raise as defense jury selection claim of racial discrimination any or preserve trial, we have objection at Batson contemporaneous with not apply. framework does held that the Batson repeatedly Pa. See, Ligons, v. e.g., Commonwealth Daniels, v. (2009);4 (citing at 434 Commonwealth supra *16 (2004)). Rather, when a Udera, 87 Pa. 580 has not been jury in selection claim of racial discrimination in “bears burden petitioner a preserved, post-conviction actual, establishing pur- throughout and the first instance joined only by opinion Ligons, the lead in 4. Justice Baer authored concurring opinion, authored a Todd. Chief Justice Castille Justice Saylor McCaffery. authored a joined by Eakin and Justice Justices However, regard the Bat- concurring dissenting opinion. with and issue, agreement joined and the lead justices were in most if not all son Castille, C.J.); (Concurring Opinion, supra opinion. Ligons, at 1170 See J.). Saylor, (Concurring Dissenting Opinion, Chief and id. at 1171 majority expres- opinion a that the lead was Castille concluded Justice joinder was points of and thus respect with to the numerous sion (Concur- majority opinion.” Id. at 1159 n. 1 a "properly referred to as Castille, C.J.). ring Opinion,
299 poseful by discrimination a preponderance evidence.” Ligons, at 1142. supra case,
In the instant contends that he has estab- a pattern lished of racial discrimination in jury selection based on the disparity the percentages of African-American ver- sus white venirepersons prosecutor struck by per- emptory challenges. alleges He that Assistant District Attor- Fisher, ney case, William prosecuted who his struck 10 out of (62.5%), 16 African-American venirepersons only but struck 8 out of (32.0%), 25 non-African-American venirepersons yield- ing jury composed African-Americans, of 3 8 white persons, 1 person and of unknown race. See Appellant’s Brief at 14-15 & n. 7.
In denying claim, Appellant’s the PCRA court pointed out that 53 persons were eligible to be struck by either the defense; Commonwealth or the total, of this 20 were African- American and 33 were non-African-American. The Common wealth used 18 of its strikes, available 20 peremptory against African-Americans 8 against non-African-Ameri strikes, cans. The defense used 21 against African-Ameri cans and 13 against non-African-Americans. Of the 8 African- defense, Americans struck by the Commonwealth had accepted of them before they were struck the defense. Opinion, 10/25/06, PCRA Court dated at 3. The PCRA court determined that the voir dire record as a whole refuted on its face claim of discrimination in jury selection. Id. We see no abuse of discretion with regard to the PCRA determination, court’s our repeat conclusion in Ligons, supra at 1144: “While it is clear that the prosecutor peremp torily Caucasians, struck more African Americans than this fact, itself, in and of is insufficient to demonstrate purposeful when discrimination considering totality of the circum stances.”
The allegations additional that Appellant proffers, even together when taken with the argument based on peremptory above, strikes discussed likewise do not purpose- demonstrate ful that, discrimination. Appellant contends in seven other
300 1997, Mr. between 1991 and juries before cases tried
capital
of African-Ameri-
percentage
a higher
likewise struck
Fisher
Appellant
than non-African-Americans.
venirepersons
can
as
Attorney’s
the District
Office
statistics for
similar
proffers
analy-
statistical
held that such
previously
have
a whole.5 We
satisfy petition-
a
ses,
collectively, do not
individually or
taken
in his
actual,
discrimination
purposeful
burden to establish
er’s
at 1145.
Ligons, supra
case.
or her own
support
Appellant proffers
other evidence that
only
The
Sagel
the McMahon and
is the existence of
his Batson claim
a video-
specifically
references
lectures.
training
then-
and handwritten notes
the McMahon lecture
tape of
numerous
lecture. On
Sagel
Lentz from the
A.D.A. Gavin
terms
occasions,
strongest possible
in the
have condemned
we
in the McMahon lecture
practices expounded
the tactics and
See, e.g,, Com-
principles.
of basic constitutional
as violative
(2008);
714,
Marshall,
587,
722
596 Pa.
monwealth v.
Basemore,
A.2d
731 n.
560 Pa.
744
v.
Commonwealth
However,
(2000).
we have also made
do so
here.
again
12
We
Sagel
and
mere existence of the McMahon
clear that
in the District
general policy
establishes neither a
lectures
selection, nor
jury
in
Attorney’s Office of racial discrimination
in an
jury
selection
of racial discrimination
presence
than McMahon or
case when a
other
prosecutor
individual
supra at
Ligons,
See
Sagel represented
Commonwealth.
Batson claim of a “culture
(rejecting
appellant’s
1145-46
lecture
and
videotape
based on the McMahon
discrimination”
no connection to the
lecture notes because there was
Sagel
Clark,
case);
(rejecting
33, 48-49 a (rejecting Batson claim because Mr. McMa- hon case, had not the prosecuted and the appellant offered only speculation that the had, McMahon training lecture in any way, affected the assistant district attorney who did try later); his case years Lark, Commonwealth v. 560 Pa. (2000)
A.2d (rejecting the suggestion that Mr. McMa- hon’s statements in the training lecture governed the conduct of a different prosecutor merely based on the fact that both attorneys worked in the Philadelphia District Attorney’s Of- fice). case,
In Appellant’s Fisher, the prosecutor was William and Appellant has not alleged any connection between Mr. Fisher and either Mr. McMahon or Mr. Sagel or their lectures. Furthеrmore, the two delivered, lectures were respectively, twelve nine years before Appellant’s trial.6 sum,
In we conclude that the denial of Appellant’s Batson by claim the PCRA court is supported by the record and is
legally Appellant’s sound. proffered evidence does not estab- actual, lish purposeful discrimination in jury selection. Appel- trial, lant has cited no occurrence at no words of the prosecu- tor or defense counsel or trial judge, and no action the court that could lead to an inference of racial discrimination in jury selection. meritless, Because Appellant’s Batson claim is he is unable to a claim of prove trial counsel ineffectiveness for failing trial, to raise a objection Batson and hence his derivative claim appellate of counsel ineffectiveness also must fail. delivered, Sagel
6. The
respectively,
McMahon and
lectures were
in
Philadelphia Magazine
1987 and
brought
1990.
both of the lectures to
Marshall,
public attention in June 1997. See
The Comment existing Pennsylvania law.” preserve (1959), Court McCoy, A.2d 310 this v. 397 Pa. 156 In Rosche rule, that, 'presumed when competency was prevailing under the stated however, age; when the witness was years of the witness was over judicial inquiry to mental years age, "there must be as under 14 of chronological searching proportion in capacity, which must be more immaturity.” and to tell the truth.” at In Delbridge, supra Pennsylva- 45. nia, issue, is a competency legal threshold to be decided trial court. Commonwealth v. Dowling, 584 Pa. (2005).
570, In Washington, supra, decision on which Appellant relies, defense counsel raised a challenge to the of competency the two complainants, who were eight years and nine old the time of the appellant’s trial for sexual offenses against them. Defense counsel a sought competency hearing outside the presence jury, but the trial judge denied this motion; instead, the prosecutor and defense counsel conduct- ed voir dire of the child witnesses before the jury. Id. at 644- 45. The children were questioned about a variety personal of matters, including schools, their ages, birthdays, siblings, teachers, and Christmas presents; about discussions with the assistant attorney district their regarding testimony; and about the difference between telling the truth and telling lie. When, Id. at dire, at the end voir defense counsel objected to the witnesses’ competency, the trial judge over- ruled the objection and specifically presence stated the jury that the witnesses were competent. Id. No caution- ary instruction was given jury to the regarding signifi- cance or limitations of this ruling. Trial proceeded, and the appellant was Court, convicted. On appeal before this *20 appellant argued that permitting jury the to observe voir dire and to hear the trial court’s competency ruling left the impres- sion that the trial court was the endorsing credibility of the addition, witnesses. In Id. the appellant argued that the witnesses’ repeated assertions that they were the truth telling unfairly bolstered their Id. at testimony. 645-46.
A majority of this Court the accepted Washington appel- lant’s arguments accordingly granted and him a new trial. In decision, reaching this the Court first reiterated the distinction determination, between a competency which is a for legal issue court, the determination, and a credibility which is a factual issue for the jury, and then concluded the “invariable result of a jury’s presence during competency proceedings is that the truth determining process exclusively reserved for
304 into Id. competency.” the by inquiry influenced jury
the
is
instruction,
not
which was
Thus,
cautionary
a
even with
646.
take
proceedings
competency
the
Washington,
in
when
given
they “inevitably permeate[ ]
jury,
presence
in the
place
to the
exclusively
assigned
determination
veracity
the
into
Moreover,
concern
expressed
the Court
Id. at 647.
jury.”
be interpreted
would
ruling
competence
of
judge’s
that a trial
the witness’s credibili-
of
judicial
as a
endorsement
by
jury
the
considerations, the
set
Court
646. Based оn these
Id. at
ty.
present
the
not be
jury
requiring
a
se rule
per
forth
witness.
Id. at 647.
for a child
hearing
a
during
competency
rule,
recognized that some
this
the Court
In promulgating
the
during
be
might
duplicated
questioning”
“foundational
fact that
arises from the
duplication
proceedings.
trial
Such
compe
of
requirement
the foundational
relevant to
evidence
instances,
relevant,
weight
to the
many
tency is also
testimony. Washington,
to a witness’s
credibility accorded
(Ohio
Harris,
Wisconsin law such law, question to be competency a child witness was sin court; however, Supreme Court when the Wisconsin determined 1, 1974, evidence, January the law as to adopted effective new rules Davis, changed. dramatically See State v. competency determination *21 that, 636, 505, (1975) (stating pursuant to the 225 N.W.2d 510 Wis.2d
305 906.01, "every § new Wisconsin rule of evidence set forth at Wis. Stat. (with competent testify exceptions) witness is certain noted and all [ ] competency former credibility issues now are issues of to be dealt with fact”); Hanson, 474, 133, by the trier of State v. 149 Wis.2d 439 N.W.2d (1989) (holding judge 136 that a trial erred as a matter of law in because, striking testimony competency a child’s on the basis of under 906.01, § "competency longer Wis. Stat. is no a test for the admission testimony only question of a witness’ credibility [and the] is which will merits”); be resolved when the Dwyer, case is submitted on the State v. 448, 121, 143 (App.1988) (explaining Wis.2d 422 N.W.2d 126 that the intention of judicial new Section 906.01 "is to remove from determina- question competency tion the of testimony jury and to submit the to the Daniels, may weight credibility”); so that it assess its and State v. 117 9, 411, Wis.2d (App.1983) (discussing 343 N.W.2d import 414-15 the witness). § new Wis. Stat. 906.01 in the context of a child courts, witness,” In "every person the federal competent is to be a see 601, presumed Fed.R.Evid. competent” child is "[a] be to be a witness, 3509(c)(2). § see 18 U.S.C. may compe- The court conduct a tency regarding proffered examination only child if witness the court determines, record, on the compelling reasons exist for such 3509(c)(4). § examination. 18 age U.S.C. "A child’s alone is not a compelling reason.” Id. If the court compelling concludes that reasons witness, competency exist for a examination of a child it must be 3509(c)(6). jury. conducted in the § absence of the 18 U.S.C. See also J., (10th Cir.1997) United States v. Allen 127 (upholding F.3d 1292 the district court’s competency refusal to hold a examination for a twelve- year-old female victim of sexual abuse challenged after the defendant competence her testify based on evidence that she suffered from developmental retardation). delays and mild mental many jurisdictions, In Pennsylvania, other in competency as of a testify law, child witness to in court question remains a threshold resting However, within the sound discretion of the opin- trial court. ions have varied as to whether voir dire of the child witness should be presence conducted in the jury. or absence of Washington, See 722 (citing A.2d at 646 n. 4 holdings and n. 5 jurisdictions from various on issue). Columbia, this In the District of voir dire may of a child witness be presence conducted in the jury, or absence of the at the discretion of States, 282, the trial court. See O’Brien v. United 962 A.2d 302 (D.C.2008); States, 821, (D.C.1991); Barnes v. United 600 A.2d 823 States, 1189, (D.C.1980); Smith v. United 414 A.2d 1198 Brown v. States, 451, (D.C.1978). United 388 A.2d 458 As the D.C. Court of Brown, Appeals supra stated in presence voir in dire of the jury jurors evaluating "assists the in independently qualifica- the child’s tions as a witness.” The Brown court held that the trial court did not permitting commit questioning reversible error in a brief line of in the presence jury of the understanding as to the child witness’s of the lies, distinction concluding between truth and questioning that such may jury assessing have aided credibility of the child’s testimony weight and the to be accorded to it. Courts in Rhode Island Missouri, hand, on the other have concluded that voir dire of a child witness should be presence jury. conducted outside the Girouard, (R.I.1989); Gantt, State v. State v. (Mo.Ct.App.1982). S.W.2d *22 case, from the record the there is no indication In instant juvenile the challenged competency that defense counsel to, or after trial. There any prior during, at time witnesses rather, a brief competency hearing; no formal separate, was trial, juvenile witnesses was conducted voir dire of immediately witnesses’ jury, prior presence day on the of their mother’s direct examination as to events Desiree, the victim’s entirety, In its voir dire of murder. as follows: nine-year-old daughter, was name? your What is Comi Officer: Desiree. Desiree: Desiree, what is last name? your
Comi Officer: Desiree: Epps know what the deference be- you [sic]
Court Do Officer: the truth and a lie is? telling telling tween Yes. Desiree: If I to swear on that Bible that you
Comi asked Officer: truth, whole truth so you help you would tell the God, would that? you understand Yes. Desiree: yes you if I asked that? you say
Comi Would Officer: Desiree: Yes. truth, the you Do to tell the whole promise
Court Officer: truth and but the truth? nothing Desiree: Yes. The you. judge gentlemen Thank and these
Comi Officer: you. keep your up. here will talk to Please voice Desiree, that you speak microphone. will have to into Comi: that in the back of pretend You will have to red box are to so you speaking everybody that courtroom is where you; can hear all right?
Desiree: Yes. you say. we hear what have to
Court: Because need to Desiree, Prosecutor: hello.
Desiree: Hello. Do know who I am? you
Prosecutor: Desiree: Yes. you
Prosecutor: Who are [sic]?
Desiree: Mr. Fisher. Desiree, you jurors
Prosecutor: would tell the how you old are. Eight,
Desiree: I mean nine. you
Prosecutor: When did turn nine?
Desiree: 14th. September Desiree,
Prosecutor: you you said know the difference lie; between telling the truth and telling is that right? *23 Desiree: Yes.
Prosecutor: What’s the difference between telling a lie and truth; telling the can tell you us? (no
Desiree: response). Prosecutor: Let me you ask another If I question: you told red, this suit was would that be the truth or it would be lie?
Desiree: Alie.
Prosecutor: If I in your now, said we were room living right would that be the truth or a lie?
Desiree: Alie. in, grade you
Prosecutor: What are Desiree?
Desiree: Fourth. you
Prosecutor: How are in doing school?
Desiree: Good.
Prosecutor: Some of us think are good. C’s Tell us what good is. got
Desiree: I all A’s and one B on my report card. Prosecutor: actually very good. That’s Did you get any awards or for anything doing that well?
Desiree: I got distinguished.
Prosecutor: You got distinguished?
Desiree: Yes.
Prosecutor: How many different kinds of awards could you get school? and what Distinguished else? honorable men- meritorious and Distinguished
Desiree: tion. highest? the middle or is distinguished So
Prosecutor: Highest. Desiree: right? very, very, very good; you’re doing Then
Prosecutor: Desiree: Yes. to? you go school do And what
Prosecutor: Leaf Middle School. Ivy Desiree: Leaf Middle School? Ivy Prosecutor: Yes. Desiree: there? you gone have long How
Prosecutor: togo Ivy I used to I started there. just going Desiree: Elementary Leaf School. school, right? to middle you graduated
Prosecutor: Now Yes. Desiree: [Philip] brother your Is that the same school
Prosecutor: to? goes
Desiree: Yes. Now, day you the last do remember you
Prosecutor: your saw mom?
Desiree: Yes. *24 12/1/99, (“N.T.”), at 117-21. Testimony Notes of immediately question then prosecutor proceeded The the day and what she saw on concerning what she did Desiree before, after during, or point murder. At no of her mother’s format or object to the voir dire dire did defense counsel voir to the made no comment as and the trial court questioning, examina- After the direct competency. prosecutor’s witness’s Desiree, extensively cross-examined defense counsel tion of concerning her, general questions with a few beginning time, shot, at that her in school grade her mother was year N.T., 12/2/99, at 8- after-school programs. her school and son, voir twelve-year-old The next witness was the victim’s consisted, entirety, following: its dire of whom Prosecutor: you? how old are Philip, Philip: I am 12.
Prosecutor: grade you What are in?
Philip: Seventh.
Prosecutor: I sorry? am
Philip: Seventh.
Prosecutor: Seventh grade?
Philip: Yes.
Prosecutor: What school do you go to?
Philip: Ivy Leaf.
Prosecutor: How are you doing in school now?
Philip: Good.
Prosecutor: good What does mean? A’s,
Philip: B’s and C’s.
Prosecutor: In that order?
Philip: Excuse me?
Prosecutor: order, A’s, In B’s and C’s?
Philip: Yes.
Prosecutor: Are you related to Epps? Desiree Philip: Yes.
Prosecutor: How are you related?
Philip: I am her brother.
Prosecutor: Were you Stephanie related to Epps? Coleman Philip: Yes.
Prosecutor: you How are related to her?
Philip: I am her son.
Prosecutor: Did you know a person by the name of Mr. Steve?
Philip: Yes.
Prosecutor: How you did know him?
Philip: He was my boyfriend. mom’s Prosecutor: Do him in you see the room today?
Philip: Yes.
Prosecutor: you please point Would him out for us? there. Right
Philip: defendant, your honor. the Indicating Prosecutor: you when you do remember you Do recall or Prosecutor: him? first met No, I don’t remember.
Philip: mom, you where were you your When last saw Prosecutor: living? House Bromley Apartments. I was in the
Philip: living Philip? you living, With whom were Prosecutor: my mom and sister. Philip: myWith there— stay Mr. Prosecutor: Did sometimes Steve Yes. Philip: with your apartment you? At
Prosecutor: Yes. Philip: between you do know difference Philip,
Prosеcutor: truth? telling a lie and telling Yes. Philip: is, you please?
Prosecutor: tell us what difference Could Well, Okay. right thing The truth is like the Philip: do— a lie the opposite it like the is right thing happen, is of the truth. pretty That is That is stated pretty good.
Prosecutor: it telling thing way The truth is about good. a lie else— telling something is happened Philip: Yes. recall happen, okay. Philip, you That didn’t do
Prosecutor: day you your the last saw mom? September It was in I think it was
Philip: September. 12/2/99, N.T., at 52-54. proceeded Philip questions
The then ask prosecutor day on the of his about his activities and his observations examination, murder; Philip this was ex- following mother’s point counsel. At no did tensively cross-examined defense *26 trial the court comment on or even mention Philip’s competen- cy to be a witness.
Appellant argues that trial counsel was ineffective for not to the objecting presence jury of the during above voir children, dire of the and that appellate counsel was ineffective for failing to raise this issue of trial counsel ineffectiveness. Appellant wherein, relies on Washington, supra, as discussed above, this promulgated Court a se rule that a per competency hearing for child witnesses must be held in the absence of the jury.
Although formal, trial court no held separate competency hearing, it is obvious from the above-quoted voir dire that the questioned children were as to their understand ing of the of truth concept versus a lie immediately prior to their testimony concerning the murder of their mother. The all jury heard of the questions directed to the children and their answers. Accordingly, we acknowledge, as did the court, PCRA there is arguable merit to Appellant’s assertion that the trial procedure court’s voir dire violated the se rule per promulgated Washington. See PCRA Court 10/25/06, Opinion, However, dated at 4. following careful re record, view of the entire we conclude that Appellant did not and cannot establish that he suffered prejudice because of defense counsel’s object, failure to and thus cannot succeed in his ineffectiveness claim.
It is important recognize that the trial court never issued an express or formal ruling that the children were competent fact, testify. In the trial court never made mention of any competency. children’s The children’s answers to ques- tions about the distinction between truth and lie flowed seamlessly into their testimony regarding their mur- mother’s Thus, der. contrary contention, to Appellant’s the trial court did not endorse or vouch for the of credibility any of the part testimony. children’s addition,
In the trial court expressly in- repeatedly structed the jury that it was the sole fact-finder and sole judge the trial court jury, to the initial remarks In its credibility.
of following: stated case, will you facts of this on the are decide you [sic]
While testimony of the weight and the credibility judge have to mean, course, its credibility I By other evidenсe. on the the credibil- you judge accuracy. its When truthfulness are testimony, you a witnesses’ weight [sic] ity and all, or none part will believe you whether deciding testimony important and how of the witness testimony *27 nature understanding of human your to the trial. Use is Please observe each witness sense. own common your in that wit- anything for testifies. Be alert as he or she other evidence that any or for testimony or behavior nesses] truthfulness, accuracy and the judge might help you testimony. person’s of that weight earlier, the facts judges are the sole of you you IAs told You must of the evidence. credibility weight the and of of the evidence and evaluation own recollection rely your on You mine or counsel’s. deliberations and not during your or I might that counsel by any opinion not bound are innocence, credibility or during guilt the trial about express evidence, the evidence or the by facts weight proven or of by to be drawn the facts. inferences 12/1/99, 93-94, N.T., of its just to the start charge jury prior in the to the
Similarly, deliberations, as follows: the court stated you are the sole you recall that I have told
You will are stipulations the facts where there except determiners of by reached counsel. that have been testimony, you, jury, there is a conflict Where If to believe.... testimony which duty deciding have the testimony, it is to up the conflict in the cannot reconcile you you to decide which if to believe testimony, any, and which reject as untrue or inaccurate.
[*] [*] [*] facts, As judges you are the judges sole credibility of the witnesses and their testimony. This means that you must judge truthfulness and the accura- cy of each testimony witnesses] and decide whether believe all or part or none of that testimony. you And should consider the following factors as indicators as to whether or not testimony is believable: see, Was the witness able to hear and know the things about testified; which he or she how well could the witness remember about; and describe the things they testified [sic] see, ability hear, know, was the of the witness to remember youth or describe these things or age [a]ffected old or by a physical, mental or intellectual deficiency; did the witness manner; in a testify convincing look, act, how they did speak; did a witness have any interest in the outcome of the case; bias, prejudice or other motive might [a]ffect their testimony; [sic] how well testimony did the of a particular witness with compare the other evidence in the case, including testimony of other witnesses.
sit [*] [*] While you judging witness, are the credibility of each you are to be likely judging the of credibility other witnesses or evidence. If conflict, there is a real irreconcilable it is toup which, you to decide if any, conflicting testimony or evidence to believe.
N.T., 12/8/99, added). Jury at Charge, 113-17 (emphasis
Thus, the court’s instructions to the both jury, before testimony began and at the close of all were testimony, absolutely clear: the jury jury the alone —was rеsponsi —and ble for evaluating and deciding upon credibility of the wit The nesses. court explicitly jury instructed the to consider see, hear, know, whether the ability remember, of a witness to alia, inter or describe was things by, youth. affected The to follow the court’s instructions. Common- jury presumed is (2006). Appel- A.2d Spotz, v. 587 Pa. wealth jury that the did slightest not the evidence provided lant has in this case. not do so testimony the importance the children’s recognize
We were the They against Appellant. the case Commonwealth’s murder, attempted the and the defense eyewitnesses to only testimony of their as inconsistent credibility to undermine the However, it must be noted that other with alibi. with the testimony at trial was consistent evidence admitted sister, the testified that Pugh, the children. Jennifer victim’s murder, very after the anxious immediately called her Philip excited, N.T., that had shot his mother. and and said “Steve” 12/7/99, what her report at 12.10 Ms. then dialed 911 to Pugh her, tape played jury. had told and the 911 was for nephew 12/2/99, 50-51; N.T., 12/3/99, N.T., at 122-24. Detective murder, who interviewed Desiree after the Dougherty, James that she named “Mr. Steve” as the man who shot her testified as “Mr. Appellant photograph mother and identified from N.T., 12/3/99, Starling, at 151-53. Officer Etienne Steve.” father Epps, who Melvin children’s and brought husband, shortly to the crime after estranged victim’s scene murder, testified that the children ran to him and hugged him, that that “Mr. shot his Philip and stated Steve” had 169,172-73, 177-78. mother. Id. at Furthermore, were un- very importantly, children their wavering testimony Appellant their shot mother apartment building after she had entered their and was wait- an knew their ing Appellant for elevator. The children as boyfriend stayed mother’s who had at their residence on some occasions, they him in court without hesitation. identified Their They type also knew the of car drove. examination at trial were lengthy direct and cross-examination minor inconsistencies. How- and detailed and revealed some ever, their testimony absolutely the essence of remained they the man knew Appellant, steadfast and unshakable —that *29 witness, initially Pugh called as a Commonwealth but 10. Ms. was testimony subsequently called her a the defense also as witness. This during Pugh. given of Ms. was Commonwealth’s cross-examination Steve,” as “Mr. shot their mother. The few following excerpts essence, of testimony illustrate the and the consistency, of children’s testimony. your you Counsel: When dad was with with the
Defense officers, police there came a time when the police officers Steve; showed of Mr. you picture is that correct?
Desiree: Yes. They you Counsel: showed one picture of Mr.
Defense Steve; right?
Desiree: Yes. They you Counsel: didn’t show pictures anybody
Defense else; right?
Desiree: No. Counsel: After they you showed the picture, your
Defense dad said that Mr. you Steve; is Steve and said is Mr. right?
Desiree: I just No. said it was him. just Counsel: You said it was him?
Defense Desiree: Yes.
N.T., 12/2/99, Desiree, Cross-examination of at 17-18. your
Prosecutor: Who shot mom?
Desiree: Mr. Steve. door,
Prosecutor: Who was the man who caught walked in the apartment building your and shot mom? Objection; leading. Counsel:
Defense Court: Overruled.
Prosecutor: the man? Who is Mr.
Desiree: Steve. Prosecutor: Have seen him you today? here Desiree: Yes.
Prosecutor: the guy? Is this *30 Yes.
Desiree: Desiree, at 34-35. Id., examination Re-direct court; to coming to me before You talked Prosecutor: right? Yes.
Desiree: court, to coming before your talked to dad You Prosecutor: too; right? Yes.
Desiree: [sic]; at sometime police You talked to Prosecutor: talked to happened, you that this night The right? is that correct? police; Yes.
Desiree: police night talked to the you Now when Prosecutor: tell them the truth? you this did happened, that Desiree: Yes. night; that police a statement gave
Prosecutor: You right?
Desiree: Yes. statement night your that police
Prosecutor: You told mom, you? didn’t your Mr. who shot that it was Steve Desiree: Yes. that? you say tell anybody
Prosecutor: Did No. Desiree: it? say didWhy you
Prosecutor: it is the truth. Desiree: Because case, this what talked to me about you Prosecutor: When thing? the most you important did I tell was the truth. Desiree: To tell
Id. at 44-45. anything [the remember you Do Counsel:
Defense time that met you [him]? asked from the you prosecutor] you or asked said you anything [he] Do remember you? tell the truth. always He said to
Desiree: else? Anything Counsel: Defense I Desiree: don’t remember.
Id., Desiree, Re-cross examination of at 47-48.
Prosecutor: Now are in you that door the apartment [to building] you and where are going? To the
Philip: elevator.
Prosecutor: Where was Mr. Steve then?
Philip: He was—he catch the door.
Prosecutor: He what?
Philip: door, He had the caught and then we had went into the apartment Then building. my mom had pressed the button. He shot her.
Prosecutor: mom, What after happened your he shot Phil- ip?
Philip: He had ran out the door. N.T., 12/2/99,Direct examination of Philip, at 59-60.
Prosecutor: Incidentally, Mr. Steve who your shot mom is in night, he the courtroom today? Philip: Yes. he,
Prosecutor: Where is Philip?
Philip: Right there.
Court: Let the record indicate that Philip has identified [Appellant].
Id. at 66-67.
Prosecutor: Each one of those you times when were talked officers, police when they first arrived on the you scene before anyone, you talked to [Appellant] said shot momma; your right?
Philip: Yes. you aunt,
Prosecutor: When talked to your who did tell you your shot mom?
Philip: Mr. Steve. at the police to the down you When talked
Prosecutor: killed, mom you your a half after saw an hour and station mom? your you say who did shot Mr. Philip: Steve. went to that you when April, Then in
Prosecutor: at the people preliminary told the hearing, you preliminary I lawyers and, by way, and the hearing, judge — Commonwealth, I? was then for the lawyer wasn’t No. Philip: lady; right? It some was
Prosecutor: Yes. Philip: [Appellant] them all there through You told
Prosecutor: mom? your shot Yes.
Philip: all those lawyers when all those asked Prosecutor: Then you told them least February questions you mom, you? your didn’t [Appellant] ten times that shot Philip: Yes. anybody [Appellant] ever tell you
Prosecutor: Did mom? your didn’t shoot *32 No.
Philip: Why?
Prosecutor: Because he did.
Philip: Id., examination of at 189-40. Philip, Re-direct of the only examples some excerpts present
The above children, consistent in its essence testimony of the extensive cross-examination, and corrob- aggressive and despite lengthy on our admitted at trial. Based by other evidence orated record, that there is entire we cannot conclude review of the trial Appellant’s that the outcome of probability reasonable trial counsel’s failure to but for would have been different of the the the voir dire jury during the of object presence to re- children, primarily brief questioning which consisted of of the distinc- understanding their schooling their garding Dennis, v. a lie. See Commonwealth tion between truth and (2008). has Appellant Because Pa. not established prejudice, his claim of trial counsel ineffective- fails, ness his accordingly derivative claim of appellate counsel ineffectiveness has no merit. Appellant is entitled to no relief on his second issue.11
3. Admission of Evidence of Prior “Bad Acts” issue, In Appellant’s third he that trial alleges counsel was ineffective for failing object to to the admission of evidence of acts,” (a) several prior specifically, “bad the following:12 testi- mony of the victim’s sister that Appellant had the assaulted victim a prior on occasion and also had to force attempted N.T., 12/3/99, (b) sexually, 68,118; himself on her at testimony Appellant briefly 11. Dougherty, also that asserts Detective who the took murder, concerning statement from Desiree her mother’s and the prosecutor testimony "vouched” for the Philip, respec- of Desiree and that, murder, tively. Dougherty Detective night testified on the of the although seen, Desiree seemed somewhat stunned what she had she questions telling was nonetheless able to answer about the truth. The detective concluded that he was comfortable with Desiree’s understand- ing of the Appellant’s truth versus a lie. See (quoting Brief at 54-55 N.T., 151). assertion, Contrary Appellant's at to 12/3/99 Detective Dougherty opinion credibility did not offer his as to the of Desiree’s testimony, opined but rather ability as to her demeanor and her distinguish during night truth from a lie his interview with her on the her mother’s murder. prosecutor effectively also asserts that the declared that Philip’s testimony prosecutor was truthful. The Philip asked if he could lie, distinguish responded, between truth and a and after the child answer, prosecutor rephrased stating good. pretty child’s "That is pretty good. That telling thing way is stated The truth is about the happened telling it something and a lie is Appellant’s else—”. See Brief N.T., 54); text, (quoting (statement at 55 supra at see also 12/2/99 context). assertions, reproduced Contrary prose- opinion cutor did not state his testimony the children’s was 48-49, Rather, truthful. id. prosecutor merely See stated Philip’s attempt to state the difference between the truth and a lie "pretty good.” was agree We do not testimony that these comments bolstered the children's Furthermore, eyes jury. in the there is no reason to believe that passing these brief and prejudice Appellant, comments resulted in such that the result his trial would have been different had defense text, objected. explained supra, counsel As we have in detail in the *33 cross-examination, despite lengthy probing and the children were un- wavering testimony Appellant in their that shot their mother. Appellant’s disposition. 12. We have reordered sub-issues for ease of Appellant's See Brief at 26-27. former Appellant’s that one of Fischer Joseph of Officer abuse from protection obtained had previously paramours (c) 198; N.T., 12/6/99, testimony him, at against order kill the threatened to had Appellant that Starling Officer (d) 13-14, 21; husband, id. at Epps, Melvin estranged victim’s Appellant’s and from two of victim’s sister testimony from the aliases, N.T., various had used Appellant paramours 12/6/99, 135,177-80. N.T., at 12/3/99, 129-31; at claims of sub- the ineffectiveness underlying The issues (a) (b) direct litigated. On previously have been issues and by court had erred that the trial contended appeal, Appellant the victim said testify to the victim’s sister allowing chal- her, testimony that is the same had struck Appellant (a). to this objected Trial counsel in sub-issue lenged here for trial, preserved thus the issue was at testimony 12/3/99, 61, 67-68; Brief at N.T., at review. See but appeal, raised the matter on direct Appellant 27-28 n. 13. relief, that, the trial court even holding to grant we declined if harmless testimony, any this error was admitting erred by had Appellant’s guilt” pre- “overwhelming evidence given Hutchinson, A.2d at 560- the Commonwealth. by sented support or any argument legal not provide does Appellant counsel raised appeal assertion that direct for his current must fail. this issue ineffectively, and'accordingly matter contended that on appeal, Appellant Also direct the testimo object for to failing trial counsel was ineffective had Appellant the victim had said of the victim’s sister that ny her, testimony of Officer himself on and to tried to force had obtained a Appellant’s paramours that one of Fischer 561; Id. against Appellant. from abuse order protection (b). (a) was not held that counsel We see sub-issues object testimony, concluding to this failing ineffective for complains now comments about which that “both witnesses dur by references made merely fleeting [the] were Hutchinson, su counsel.” cross-examination defense ing such, objection by might defense counsel As “an pra at 562. comments passing the otherwise only highlight have served further that Id. We concluded jurors.” minds of the *34 Appellant any had failed to make that he showing preju- was by object diced the failure of defense counsel to the Id. Thus, challenged testimony. these sub-issues of trial counsel ineffectiveness have been previously litigated. Appel- lant’s present general assertion that appellate counsel raised trial counsel’s ineffectiveness as to these sub-issues “ineffec- see tively,” Appellant’s Brief at is not in developed any meaningful way and thus is not reviewable. Appellant de- clines to state —much less develop any specific of aspects — appellate counsel’s performance that he problematic. finds Mere failure to on a claim prevail on direct appeal does not establish that appellаte counsel was Appellant ineffective. is entitled to no relief on these sub-issues.13 (c)
With regard (d), to Appellant’s sub-issues we first that, note of all the claims by asserted Appellant with regard sub-issues, to these the only one cognizable is ineffective assistance of appellate grounded counsel in trial counsel’s failure to object to the allegedly inadmissible testimony. Fur- thermore, we guided are the following well-established principles with to the regard of admissibility prior evidence of crimes or bad acts: reopen questions The dissent would of trial counsel ineffective- (a) (b), ness in though raised sub-issues even we resolved those J., matters on appeal. Saylor, the merits on direct dissenting See 359-61, opinion at 25 A.3d at Appellant’s proffer 325. Based on appellate engaged investigation, counsel in no extra-record the dissent appears suggest evidentiary hearing need for an as to whether objecting trial counsel had a testimony reasonable basis for not to the during that he elicited his cross-examination of the victim’s sister and agree. Officer Fischer. We cannot out, points As the dissent in our resolution of this issue on direct appeal, suggested objection by may we that an trial counsel have served only However, highlight passing jurors. comments in the of minds light we overwhelming further concluded that "in of the Appellant's guilt, evidence of has also failed to show a probability reasonable that the outcome trial would have been objected fleeting different had trial counsel to these two references.”
Hutchinson,
Commonwealth A.2d (internal 404(b). (2008) omitted); citations see also Pa.R.E. (c), In that the sub-issue asserts Commonwealth hearsay from Officer improperly testimony Starling elicited concerning threat kill the father and Appellant’s to children’s husband, estranged Appellant’s victim’s Mr. Brief Epps. the direct of Appellant cites Commonwealth’s examination murder, concerning of Starling investigation Officer his the that, murder, wherein after he shortly the officer testified his were Avenue partner to the Germantown driving However, registered. address to which Lexus was Appellant’s address, en they changed while route to that directions and Epp’s instead to Mr. home “because another call came drove over that the father lived in Mount up radio children’s N.T., 12/3/99,at Airy person may danger.” and that his be in Officer he and his Starling 163-64. further testified when lived, Epps they reached the street where Mr. sur- partner there. veyed area to determine if Lexus was testimony Id. at There was no suggesting 166-67. other to Mr. possibility danger during direct examination. Epps However, cross-examination, defense counsel re- during the matter in an that the peatedly attempt suggest raised home, he Epp’s they officers went to Mr. not because feared was in but because he danger, suspect was a in the murder estranged his wife. Relevant portions of Officer Starling’s testimony in response questioning by defense counsel are as follows: Counsel: You were going to that location [the
Defense address to which Appellant’s Lexus was in- registered] to vestigate; correct? Starling: Yes.
Officer Counsel: Then in the middle of going to that Defense location, over, another flash information came okay, that the father of the Avenue; children lived over at 8535 Williams correct? Starling: Yes.
Officer Counsel: Now decision, who made you, your Defense brother officer or some other investigator, that changed you from going Williams—I mean that changed you from going to the Germantown Avenue location to the Williams Street location? Why you did do that? Starling: Because we were in fear of the father’s
Officer *36 safety. Counsel: You were in fear of the safety? father’s
Defense Starling: Yes. Officer Counsel: What made in you fear of the father’s
Defense safety at that point? What other information you did have? location, While Starling: on there was talk of Officer against threats the father’s life. Counsel: ... you where did get information
Defense about threats to the life? father’s Starling: that, I can’t recall who told me it but was Officer just amongst people on talking location. Counsel: Were they police or they officers were
Defense civilian people? Starling: It have could been both.
Officer Counsel: Now it is say correct to that no portion Defense your statement references this additional information about there; threats to the you father when were correct? Correct. Starling: Officer event, your it was on why that was any In Counsel:
Defense information, that initiative, having as a result own Avenue to from to Germantown going locations you changed Street; right? Williams much, yes. Pretty Starling:
Officer else is Well, missing? I What what am Counsel: Defense You deter- determination? else went into the there? What it; right? mined me, solely. so it wasn’t driving, I wasn’t Starling:
Officer there because going You weren’t Counsel: Defense you? were suspect, have been a might father Starling: No. Officer all; Not at correct? Counsel:
Defense question. I Starling: answered Officer at all a Not you question. I asked Counsel: And Defense your mind? suspect, was he No. Starling: Officer the husband of the ] Did know that you [ Counsel:
Defense from her? estranged shot had been woman who was No. Starling: Officer information? Did receive that you Counsel:
Defense No. Starling: Officer a bitter that there was you Did know Counsel:
Defense on; of that? any did hear going you battle custody Starling: No. Officer an anything equitable hear about you Did Counsel:
Defense on? fight going division property distribution or No. Starling: Officer *37 Nothing like that? Counsel:
Defense No. Starling: Officer event, testimony But, your in it is any Counsel:
Defense fear, because of went there you here under oath today father, know you but don’t made to the some fear or threats where that came from other than civilian or wit- police nesses? Starling: That’s correct.
Officer Counsel: Then it [the officer’s says statement] Defense Steve, Melvin Epps said who boyfriend, is the has another car, ZX, a white 1990 300 back, with a in the spoiler PA BDS-3982, registered to a Jeanette McPherson of 6753 Germantown Avenue. Melvin Epps you told all that? Starling: He told Officer that. Speller Officer Counsel: he hand; So had all that information at Defense right? Correct? Starling: I assume so.
Officer Well, Counsel: you were there. It says your Defense statement Melvin [that] Epps said—and he had all that information about Mr. Hutchinson and gave that right there when he was all upset; right? Starling: Yes.
Officer Then, also, Counsel: Mr. Epps also told us that Defense Steve had threatened him in past; right? Starling: Yes.
Officer him, Counsel: And that he was to kill going right? Defense Starling: Yes. Officer
N.T., 12/6/99, 12-16, above,
With the line of questioning quoted defense counsel was clearly trying case, to support theory his which he statement, had also set forth in his opening as follows: What I believe the evidence will show is that there was arrested judgment here. That there awas failure to inves- tigate fully. Because as prosecutor] up [the said front in case, this that there was a breakup between Stephanie Epps and Melvin Epps.... There was and it was an acrimonious there split.... was a over dispute property. There were allegations abuse Ms. Epps against Mr. Epps____it’s *38 that Mr. is behind the death of Epps belief [Appellant’s] Epps. Stephanie say [Appellant] will in a statement that Epps]
I believe [Mr. Well, knew he was no good. threatened him and that he on, the other The really going really way. what was it was way [Appellant] was that it was and members of other family gone Epps’s] Melvin[ had to Stephanie [Epps’s] in the to early prior house to some abuse months prevent that it who was there at [Appellant] her death. And was [Epps]. times for Stephanie Statement,
N.T., 12/1/99, Opening Defense Counsel’s at above, when excerpts As illustrated considered context, in the assertion that defense appropriate object testimony ineffective for to to failing counsel was absolutely threats to Mr. is revealed to have regarding Epps no merit. The Commonwealth’s examination of Officer Star actions that officers ling concerning investigative police shortly after to the scene of the murder responding took testimony brief and only very general regarding possi elicited ble to Mr. Defense counsel—not the Common danger Epps. acknowledgement Starling wealth —elicited the from Officer that Mr. told of threats to kill Mr. Epps police Appellant’s 12/6/99, of Epps. quoted testimony supra. *39 (d), In sub-issue that Appellant asserts trial counsel object was ineffective for to failing to the Commonwealth’s introduction of evidence that Appellant aliases, used several ie., Marshall, Boswell, Steven Steven and Fabian Hutchinson. 27, Brief at Appellant’s 29-30. Appellant argues further that the evidence of Appellant’s aliases “served no relevant purpose and was solely introduced to Appellant’s establish bad charac ter.” Id. at 30. Contrary assertions, to Appellant’s evidence of Appellant’s aliases just served not one but two highly relevant purposes at trial.
First, the Commonwealth presented evidence that the vic- tim had a sought protection from against abuse order “Steven murder, shortly Marshall” before her and Appellant’s aliases were introduced to establish that the victim knew Appellant by this name. See N.T., 12/3/99, at 127-29. all Specifically, three aliases were written in the book, victim’s appointment which the evidence, Commonwealth introduced into and the victim’s sister testified that when the victim first met Appel- lant, she said his name was “Steven Boswell.” Id. at 130-31.
Second,
Appellant’s
evidence of
aliases was relevant to the
theory
Commonwealth’s
that Appellant
Pennsyl-
had fled from
vania shortly
Husbands,
after the murder. Shannon
another
that,
16,
one of Appellant’s paramours, testified
on September
J.,
360-61,
ing guilt-phase investigation.” Saylor,
dissenting opinion at
72). However,
(citing Appellant’s
Finally, Appellant that, contends even if the evidence of bad acts challenged in this issue was admitted for a discrete and limited purpose, trial counsel was ineffective for not request- ing a limiting instruction to the jury as to permissible its use. This has Court held that when evidence of a prior defendant’s criminal conduct or admitted, bad acts is the defendant is entitled upon request to a jury instruction explaining the limited purpose of such evidence. Commonwealth v. Tedford, 639, (2008) 598 Pa. 960 A.2d (citing Commonwealth v. Billa, (1989)). 521 Pa. 841-42 Billa,
In we granted the appellant a new trial after conclud- ing that his counsel was ineffective for failing request *41 limiting instruction. The appellant had been found guilty of the first-degree murder of a sixteen-year-old with whom girl Indeed, Appellant 15. proffered as evidence to the PCRA court several of Bahamas, Margaret his medical Hospital records from Princess in the 1985-1992, from which bore the name Repro Fabian Hutchinson. See Record, duced Exhibit 18. Billa, relationship. a to establish attempting he had been admitted, over defense The trial court had at 837. supra a violent testimony concerning objection, vigorous counsel’s committed victim that had been on a different sexual assault the mur- two months before appellant approximately the similari- The attacks bore numerous at 838-39. two der. Id. young Hispanic victims were ties, the fact that both including testimony the we noted that Although Id. at 841. females. vivid, highly prejudicial, graphic, victim was the sexual assault emotional, properly we that it was admit- held potentially motive appellant’s to proving because of its relevance ted Nonetheless, Id. we the absence of accident. and intent and to failing counsel was ineffective for that trial also held Id. at 842. We limiting an instruction. request appropriate inflammatory testimony prior highly recognized the substantial danger assault victim “created sexual ... by in this evidence swayed could be its deliberations jury and his propensity criminal character showing appellant’s [the] at In females.” Id. 841. sexually young Hispanic assault addition, in was not question we that the evidence recognized crimi- appellant’s reference to the merely fleeting vague a or record, inflammatory, well as nal but rather was extensive as of the Commonwealth’s component a substantial comprising closing argument. an in Id. garnering emphasis case and ... limiting instruction Accordingly, appropriate 843. “[a]n jury’s prior have increased the awareness would not assault, legal it well have its limited might placed sexual but concluded in Id. at 843. We significance proper perspective.” ineffec- constitutionally counsel was appellant’s that the Billa as limiting an instruction failing request appropriate tive for assault, prior of evidence of the sexual permissible to the use trial. Id. at a new appellant and we therefore awarded case, have the relevant circumstances In the instant Billa, little, with those of and we anything, if common failing ineffective for that trial counsel was decline to hold evidence of which instruction. The bad acts request limiting not inflammatory, graphic, was not complains
331
not extensive.
Some of
evidence was elicited as a single
in
sentence
passing during cross-examination of the witnesses
by defense counsel. In closing argument, the Commonwealth
victim,
make
did
reference to
abuse
Appellant’s
of the
but did
N.T.,
not mention the other bad acts. See
Commonwealth
12/8/99,
Closing Argument,
at 107. Under
these circum-
stances, an instruction as to the bad
may very
acts evidence
well have
only
re-emphasize
served
to
the evidence to the
jury. More importantly, Appellant has not
preju-
established
i.e.,
dice,
he has failed to demonstrate that there is a reason-
able
probability
the outcome of his trial would have been
different but for the lack of a limiting instruction. We have
previously noted the
evidence”
“overwhelming
Hutchinson,
guilt.
4. Prosecutorial Misconduct Appellant’s fourth issue is another claim of ineffective assis- counsel, tance of trial appellate based this time on under- lying claims of prosecutorial In misconduct. A of this part issue, Appellant focuses on the prosecutor’s closing argument, which Appellant B, contends was In inflammatory. part Ap- pellant focuses on evidence was allegedly withheld violation Brady v. Maryland, 373 U.S. S.Ct. (1963).
L.Ed.2d 215 turn, We consider A B in parts only mindful that the within allegation either part cognizable under the PCRA is ineffective assistance of appellate counsel raising for not a claim of trial counsel grounded ineffectiveness in failure object to the prosecutor’s alleged misconduct. We consider here the underlying prosecutorial claims of mis- prong merit they satisfy arguable if to determine
conduct of trial counsel. assistance Pierce test for ineffective that a principle long-standing In accord with the or her with arguments free to his present must be “prosecutor vigorous has permitted this Court vigor,” force and logical *43 is a reasonable basis “as as there advocacy long prosecutorial comments.” Common for the [prosecutor’s] in the record (2004). Robinson, 516-17 581 Pa. wealth v. evidence or reasonable comments based on the Prosecutorial nor are comments objectionable, are not inferences therefrom at 33. Tedford, supra flair. that constitute oratorical merely to to Furthermore, permitted respond must be prosecution the Any challenged prosecutori Id. arguments. defense counsel’s isolation, rather must be viewed in but al comment must not it Robin in the context in which was offered. be considered son, at 517. supra to offer his or her prosecutor
It is for a improper or the credibili as to the of the accused opinion guilt personal DeJesus, v. 580 Pa. testimony. of ty any Commonwealth (2004). However, 102, 112 it the bounds A.2d is well within the facts advocacy for the summarize proper prosecutor of guilty to find the accused jury of the case and then to ask on facts. id. based those See allegations
The which the court considers by standard a one: stringent comments is improper prosecutorial of only reversible error by prosecutor a constitute Comments prejudice jury, their unavoidable effect is to where hostility a fixed bias and toward the forming in their minds evidence they weigh such that could not defendant a fair verdict. objectively and render (citation omitted). at 33 Tedford, supra during closing misconduct prosecutorial In his first claim prosecutor sought asserts that argument, Appellant commented on Appellant, Appel- shift the burden of proof jury Appel- to the that testify, suggested lant’s failure to Ap- evidence. present corroborating lant had the burden to Brief at 40-41. pellant’s Appellant’s allegations are frivolous. context, in proper Placed excerpt prosecutor’s closing argument is the challenges following: Let’s talk about credibility, and the is to tell judge going you every case turns on credibility.... Credibility is just another way saying believability____Well, how do you just determine whether or not you somebody believe mean, whiz, I looking them? if gee you looked at witness], Maureen Edwards [Appellant’s alibi and you had case, no other evidence in you this would what say, gee, Gee, nice lady from Toronto. maybe got I’ve no other evidence this case. is She believable. You’ve no got other evidence. Now wipe your mind of everything. She is believable. one test looks, So is what? How the person demeanor, their they there, how look. you But do stop because if you looked, believe a person by just they how behaved, sometimes how they you would be where? Maybe where is. [the victim] No. You look at other things. You *44 look to see whether or corroborated, not their testimony is whether or not there is some other piece evidence that of that, says that corroborates testimony, their and I can’t go times; back to this too many the children this say guy shot their Well, mom and he left in this car. doggone who corroborates that? Eugene Green. What’s he to got [ ] lie about? Did Epps Mel[vin] make him make that Did I up? make him make it because he up told the that police night first thing. So it is corroborated? Is it consistent? Is it consistent internally, the statement given that is or the testimony, and is it consistent Do externally. they say the same later on? thing Have these kids said but anything one thing? This shot guy my mom. No. But we were talking about Ms. Maureen Edwards. you So look at the other things. Who else would know what kind car [Appellant] drove other than Octavia He lived her. Tucker[?]. with Ford____ what, Edwards says he drove a I is it said no, Taurus? said Explorer.... She What do people testify to, Tucker, at least Octavia who had seen him to recent- up Never ly[?] had one. Had a Taurus back in '96. The only that we showed the two cars drove are [Appellant] cars two looks. than how the just person more credibility is you. So surrounding them. It is the stuff (em- at 97-100 12/8/99, Argument, N.T., Closing Prosecutor’s paragraph of this only portion added to phasis 41). brief; Brief at Appellant’s see in his quotes Appellant assertions, prosecu- in the nothing Contrary Appellant’s bore Appellant remotely implied comments tor’s present was required innocence or proving his burden The em- prosecutor alibi witness. his corroborating evidence in this testimony the jury correctly—that phasized — The irreconcilably inconsistent. incontrovertibly and case was mother, but shot their testified that victim’s children murder, that, Appel- at the time of the testified Ms. Edwards were in another state. These stories lant was with her whom the depended the verdict on diametrically opposed, ar- prosecutor simply credible. The jurors viewed as more in the case was presented evidence jury to the that other gued determination, urged and he credibility to this relevant deliberations. during the evidence their jurors to consider all amount- arguments that the prosecutor’s assertion Appellant’s testify,” failure to Appellant’s “a comment on ed to direct prosecutor’s no basis in the Brief at finds Appellant’s improper. comments were not actual The prosecutor’s words. claims of prosecutorial In second and third Appellant’s misconduct, close to the following excerpt, on the he focuses developed prosecutor in which the closing argument, end of mo- of the case that theory the Commonwealth’s to control her. inability the victim was his murdering tive for ... wanted to take Stephanie Epps control. This is about Who things, though? her life. Who controls control of *45 ... many people it? How things? controls Who controls Stepha- Who controls it? Did came in here and testified? life. controlled it? control her Who nie control She didn’t with go cars to other buying lives? Who had them people’s controlled with women? Who Who lived other women? here to lie? Who the women in brings those women? Who This to break that control? Who wanted has control? is about free Stephanie Epps wanting psy- herself from chological and abuse ... she physical get away did from affair; her he Maybe husband. did have an that was the psychological away abuse. She is from him for a couple months she up hooks with this who kicks the guy, crap out her. How we do know that? How is that corroborat- bruises, bruises, ed? Old new within 24 hours of her death. What does victim’s [the tell us? She called her sister sister] on that Tuesday, said do believe he you [who] [ ] wanted to to have try sex with me last night? Tuesday, This was on killed, day she was day she writes [“]take control[”]. It was no accident. I suggest you this isn’t even out of anger. This is out of wanting to dominate a woman.... But this is about total control. You don’t do what I / say, am not going you to beat are anymore, you dead.
N.T., 12/8/99, (em- Closing Argument, Prosecutor’s at 106-08 phasis portions added to emphasized by Appellant; see Appel- 42). lant’s Brief at 40 and
Appellant asserts that in the above-quoted excerpt prosecutor expressed opinion his had Appellant pres sured his alibi witness to lie for him. disagree. We Using series of rhetorical questions based on the evidence presented, the prosecutor raised a logical and reasonable inference that Appellant had in succeeded his efforts to control the lives of his other paramours, his alibi including witness. There was no in the impropriety prosecutor’s strategy or comments. See (1994) Commonwealth v. 538 Pa. Ragan, A.2d (declining to conclude that the prosecutor engaged miscon duct when he commented that the appellant’s alibi defense had been fabricated because the comment was a fair inference based on evidence at trial presented and summarized prosecutor).
Finally, Appellant argument insists that this “was nothing more than a blatant attempt jury to inflame the and to ask the jury impermissible draw the inference that had a Appellant to kill.... propensity because had beaten the dece- dent in the infer he past, jury Appel- should killed her.” lant’s Brief at Again, we The disagree. prosecutor briefly *46 controlling Appellant’s regarding the evidence
summarized victim, and her desire with the relationship and abusive evidence, the prosecutor From this of her life. control regain Appellant’s inference as to reasonable logical and drew suggest not The did prosecutor the victim. killing motive from the inferences improper or jury any groundless the have no contrary to the evidence, assertions Appellant’s and merit. mis- of prosecutorial of assertions Appellant’s
Because none merit, slightest have the closing argument during conduct merit arguable prong the satisfy cannot Appellant grounded of trial counsel for ineffective assistance Pierce test comments. Because object to the prosecutor’s in failure to ineffective, claims derivative Appellant’s was not trial counsel also must fail. ineffectivenеss of counsel appellate four, that the prosecu- B of issue contends Appellant In part certain provide in misconduct when he failed engaged tor v. Brady Maryland, in violation of evidence to the defense (a) following: the state- question The evidence in is supra. (b) brother-in-law; a police and ments from the victim’s sister (c) murder; after the placed shortly of 911 calls tape radio the at the crime scene and notes from a detective handwritten Brief at 46. Appellant’s a crime scene See page log. second (a), sister and statements from the victim’s regard to With brother-in-law, nor Appellant must out that neither point we that such statements ever any the record indication provides selection, the beginning jury The before the day existed. that he call the might advised defense counsel prosecutor 11/23/99, N.T., as witnesses. victim’s sister and brother-in-law no stated that there were prosecutor explicitly at 61. The coun- Id. at 61-62. Defense statements from these witnesses. from his discussions *47 notes, the detective’s tape, and the second of the crime page N.T., 12/2/99, log. 36-39; N.T., 12/8/99, scene at at 3-8. However, none of these alleged Brady violations was raised on sub-issues, direct appeal. Within these the claim only cogniza- ble under the PCRA is ineffective appellate assistance of counsel for failing raise a claim with Brady regard to the above evidence on direct appeal. we Accordingly, consider these sub-issues pursuant to the Pierce test for ineffective assistance, first if determining any there is merit arguable claim of underlying Brady violations.
Under Brady the decisional law it has spawned, prosecutor has an obligation to disclose all exculpa tory information material to the or guilt punishment of an accused, including See, evidence of an impeachment nature. Lesko, e.g., 345, (Pa.2011). Commonwealth v. 15 A.3d 370-71 Thus, violation, Brady establish a an accused must prove three elements:
the accused, evidence [at was favorable to the issue] either because it is exculpatory or because it impeaches; [2] suppressed evidence was prosecution, either willfully or inadvertently; [3] prejudice ensued. Lambert, 461, 848, Commonwealth v. 584 Pa. 884 A.2d 854 (2005) (citation omitted).
The evidence allegedly withheld must have been “material evidence deprived defendant a fair trial.” Johnson, 283, 563, Commonwealth v. 572 Pa. 573 (2002). material, Favorable evidence is and constitutional error results from its suppression by the “if government there that, is a reasonable probability had the evidence been dis-. defense, closed to the result of the proceeding would have Weiss, 573, been different.” Commonwealth v. 604 Pa. 986 (2009) 808, A.2d (quoting 815 v. Bagley, United States 473 U.S. 667, (1985)). 682, 3375, 105 87 S.Ct. L.Ed.2d 481 This Court
338 materiality further how the standard
in Weiss discussed violation, of a as Brady element prejudice essence defines follows: of a differ- determining probability
In whether a reasonable demonstrated, “the is not question ent outcome has been not have likely the defendant would more than whether evidence, with the but whether received a different verdict trial, a fair understood as a trial in its absence he received v. worthy Kyles in a verdict of confidence.” resulting 434, 1555, 490 115 S.Ct. L.Ed.2d Whitley, U.S. (1995). A “reasonable of a different result is probability” “un- shown when the of evidence government’s suppression Bagley, confidence in the outcome of the trial.” dermines at 3375. The supra Supreme S.Ct. United States is Bagley’s materiality Court has made clear standard sufficiency Kyles, supra not a of the evidence test. “by 1555. A violation is established show- Brady 115 S.Ct. *48 be taken to ing reasonably that the favorable evidence could the whole in a different as to undermine put light case such 435, Kyles, supra confidence in the verdict.” at 115 S.Ct. Importantly, possibility 1555. “the mere that an item of defense, have or might helped undisclosed information trial, have the outcome of the does not might affected establish in the constitutional sense.” materiality Common- (2003) McGill, 1014, v. 574 Pa. 832 1019 wealth A.2d added). (emphasis
Weiss, supra rests with an to
Finally, appellant “prove, burden record, by reference to the that evidence was withheld or Porter, suppressed by the Commonwealth v. prosecution.” (1999). Pa. 556 898 case, above, In the Appellant instant as outlined that the withheld a radio of prosecutor police tape contends murder, after the as well as a detec placed shortly calls page tive’s notes from the crime scene and the second crime scene Brief at 46. The 911 calls log. Appellant’s See after she saw her mother by daughter were made victim’s murdered and the victim’s sister after the children called her to tell her of the Appellant murder. fails to provide as to how the argument tape satisfies the elements of a Brady Specifically, violation. to Appellant fails discuss how him, the 911 tape would have been favorable to either as evidence; exculpatory or in impeachment fact ac- knowledges that the 911 tape testimony “bolster[s] Id, juvenile Furthermore, eyewitnesses.” at 46-47. Appel- lant fails suggest how he was prejudiced by his failure to receive the 911 tape discovery. There is arguable no merit Appellant’s assertion of a violation with regard to the Brady 911 tape, and hence appellate counsel was not ineffective for failing to raise this issue on direct appeal.
Appellant’s next Brady allegations concern the hand written notes from a detective at the crime scene page second of a crime log. scene The in question documents were provided to defense counsel after the Commonwealth N.T., 12/8/99, rested. See at 3. Appellant contends that the detective’s notes “identified two previously undisclosed wit nesses to the However, shooting.” Appellant’s Brief at 46. this contention is not borne out by the record. The *49 at 46. For none of this evidence does make Appellant any him, argument why as how or it was favorable to it how could have been or it exculpatory, how could have been used to impeach Furthermore, any witness. makes no ar Appellant gument that the evidence was material that he and was Miles, testify 16. Officer who wrote the notes at issue was available to at trial, N.T., 5, 12/8/99, 9, but the defense declined to call him. See at 39-40. record, con- we close review Following prejudiced.17 merit to assertion Appellant’s arguable that there is no clude evidence, and any of this regard with Brady of a violation to raise failing not ineffective for counsel was appellate hence appeal. matters on direct prosecuto- claims of underlying Appellant’s Because none of does merit, fourth issue has any rial misconduct him to relief. any not entitle Defenses of Diminished
5. Alternative Capacity Heat of Passion issue, trial counsel was alleges fifth he In Appellant’s present or to several investigate for failing ineffective defenses, of diminished the defense specifically alternative intoxication, and voluntary mental defect or due to capacity, addition, alleges passion; appellant of heat of the defense this failing for to raise counsel was ineffective appellate The appeal. ineffectiveness on direct claim of trial counsel is the cognizable in this issue under PCRA only claim Appel- counsel ineffectiveness. appellate derivative claim of if trial counsel was not not be held ineffective late counsel will ineffective, Appel- whether begin by considering and hence we any ineffectiveness have lant’s as to trial counsel allegations merit. ground whether capacity,
A defense of diminished intoxication, extremely is an voluntary ed in mental defect or who admit only available to those defendants limited defense based degree culpability but contest the liability criminal intent to kill. specific to formulate the upon inability an Williams, 510, Pa. v. Commonwealth C. called as a witness at trial the officer 17. We note that defense counsel extensively prepared log and examined him. See who the crime scene N.T., 12/8/99, this examination at 9-30. does not assert that any way inadequate ineffective. was in or out, addition, points entirely clear the Commonwealth it was not In as many presented how shots had been fired at from the evidence at trial Brief at 33. Desiree testified that the scene. See Commonwealth’s fired, although she did not remember how than one shot had been more N.T., many; Philip five shots had been fired. See testified that four or 12/2/99, 12/1/99, N.T., respectively. at
341 (2009); Gibson, 402, 1110, Commonwealth v. 597 Pa. 951 A.2d (2008); 1, 1131 v. Spotz, Commonwealth 587 Pa. 896 A.2d (2006) (“Absent 1191, 1218 an admission from [the defendant] victim], that he had shot and killed trial [the counsel could not defense.”)18 presented have a diminished capacity If a defen- victim, dant does not admit that he killed the but rather defense, advances an innocence then evidence on diminished Laird, capacity is inadmissible. Commonwealth v. 605 Pa. (2010). 137, 618, 988 A.2d 632
A diminished capacity defense “does not exculpate the defendant from criminal liability entirely, but instead Williams, negates element of intent.” specific C. at supra Gibson, 1131). 527 (citing supra For a defendant who defense, a proves diminished capacity first-degree murder is mitigated to third-degree murder. Commonwealth v. Saranc hak, (2005). 490, 292, 581 Pa. 866 A.2d 299 To establish a defense, diminished capacity a defendant must that prove his cognitive abilities of deliberation and premeditation were so compromised, by intoxication, mental defect or voluntary he was unable to formulate the specific intent to kill. Com 67, 215, monwealth v. Rainey, (2007); 593 Pa. 928 A.2d 237 Spotz, supra at 1218. The mere fact of intoxication does not rise to a give diminished capacity Spotz, defense. supra; 510, 645, Commonwealth v. 596 Pa. Blakeney, 946 A.2d 653 (2008) (requiring that a defendant show that he was “over whelmed to the point of his losing faculties and sensibilities” to defense). prove a voluntary intoxication Evidence that the defendant lacked the ability to control his or her actions or acted impulsively kill, is irrelevant to specific intent to not thus is admissible to support a diminished capacity de Vandivner, 617, fense. Commonwealth v. 599 Pa. 962 A.2d (2009). Furthermore, diagnosis personality with disorder does not suffice to establish diminished capacity. Bracey, Commonwealth v. 568 Pa.
(2001).
Court,
Spotz
opinion
majority
justices
was the
of a divided
but a
joined
portion
opinion addressing
the defense of diminished
capacity.
Spotz,
(concurring
See
opinions,
In numerous cases before prior subsequently innocence trial have during had maintained their trial ineffective assistance of claims of post-conviction raised a defense of investigate failure to present counsel for and/or *51 consistently to hold We have declined capacity. diminished for to advance a failing trial was ineffective counsel conflicted with the directly irreconcilably and defense (declin- at 237 Rainey, supra of innocence. accused’s claims failing was ineffective for to conclude that defense counsel ing appellant a defense when the present capacity to diminished victim); the unwilling Spotz, supra was to admit that the shot ineffec- at 1217-19 to conclude that trial counsel was (declining capacity tive for to a diminished defense based failing present voluntary mental or intoxication because it would on defect liability, have to concede which was required appellant innocence his recapitu- inconsistent with his averments of counsel); v. R. lation of events to trial Commonwealth (2004) (“[EJven Williams, 105, 112 if 577 Pa. 846 A.2d past, had thoroughly investigated appellant’s] [the counsel would have capacity of а diminished defense presentation assertions that someone directly appellant’s] contradicted [the crime, have been else had committed the and thus would not defense.”). that “wheth- recently an available We have stated addressing investigate er a claim of counsel’s failure to or defense], this present capacity failure to diminished Court [a Gibson, analysis.” supra has the same employed Finally, authority we have held that the to concede criminal liability and to authorize the of a diminished presentation solely defense rests with the accused. Common- capacity (1983) Weaver, wealth v. 500 Pa. 506-07 capacity only that even if diminished was the viable (holding defense, trial would be ineffective for present- counsel deemed defendant). this without the consent of the ing defense case, any In the instant did not concede Appellant Rather, in the victim. relied liability killing witness, defense, an innocence an alibi presenting attempt on witnesses, credibility to of the child ing undermine the victim’s husband her murder. attempting inculpate circumstances, Under these where Appellant did not admit victim, innocence, killing but rather maintained his capacity him, diminished defense was not available to pursuant to this Court’s decisional law supra, discussed and trial coun- sel will not be held ineffective failing for an present unavailable defense.
Nonetheless, Appellant further asserts that counsel was ineffective for failing investigate diminished capacity de- claim, fenses. To this support Appellant has submitted an counsel, of his trial in which counsel “Affidavit/Declaration” asserts the following:
[Appellant] advised me he was not present at the time of the murder and me provided with the name of an alibi witness. Based on representations these I did not investigate a diminished capacity, voluntary intoxication or heat of pas- sion defense. Patrizio, of Stephen P. Esq., pursuant to
Affidavit/Declaration *52 ¶ 1746, § 28 U.S.C. § and 18 Pa.C.S. at 7.19 4904, Trial counsel prepared and presented the defense Appellant sought based on his claim of non-involvement in murder, his account of his whereabouts at the time of the murder, witness, his of the alibi naming and the testimony of the alibi witness. Appellant absolutely has offered no ratio nale why as to his counsel should not have accepted his claims witness, innocence and proffered the alibi except to aver that, recognize 19. We precedent, based on this Court's counsel's "Affi- properly is not characterized as an affidavit davit/Declaration” because the declarant did not swear to its truth an before officer authorized to Steele, 341, administer oaths. See Commonwealth v. 786, 599 Pa. 961 A.2d (2008) affidavit); (citing § 823 1 Pa.C.S. 1991 for the definition of Dennis, 159, 945, (2008) Commonwealth v. 597 Pa. A.2d 950 974 n. 27 ("[I]t appears standing that [an unsworn alone declaration] would be insufficient to prong” establish reasonable basis of the test for counsel.”); Brown, ineffective assistance of 461, Commonwealth v. 582 Pa. 1139, (2005) 1991); (citing 872 A.2d § 1148 n. 7 1 Pa.C.S. Hall, 526, 1177, (2005); Commonwealth v. 582 Pa. 872 A.2d n. 1188 10 Brown, 1169-70, (Castille, J., ("Unwit- supra concurring) see also at nessed and considerably unsworn non-affidavits ... are of less value affidavits.”). than sworn However, evidence, Appellant proffered has this document as does not contents, dispute any portion of upon argument. its and it relies for his Appellant's Brief at 77.
344 As Brief at 72. Appellant’s was “weak.”
that the alibi case clear, concede liabili- authority to expressly have made we capacity a diminished for prerequisite is an absolute ty, which Weaver, the accused. defense, strictly with solely rests in the stage proceed- at this even Importantly, at 506. supra for the victim’s any liability has not conceded ings, Appellant of trial counsel in his claim cannot succeed Appellant murder. a diminish- pursue failing investigate for to ineffectiveness an acknowledged has not Appellant when ed defense capacity defense, i.e., killed the that he for that prerequisite absolute efforts, investigative of trial counsel’s Regardless victim. capacity a diminished authority present had no counsel that he was assertions Appellant’s in the face of defense murder, that remain assertions innocent completely Williams, 112. There- supra R. unabated even now. See failed to establish that fore, has we conclude or to investi- failing present ineffective for trial counsel was trial counsel was defense. Because capacity a diminished gate coun- ineffective, appellate derivative claims of Appellant’s not must also fail.20 sel ineffectiveness in issue other claim We turn next i.e., to raise a heat five, failing was ineffective for that counsel defense, like the passion defense. A heat of passion defense, defense, focused on partial is a capacity diminished Laich, 19, Pa. v. the element of intent. Commonwealth (2001); Pa. Legg, v. 777 A.2d Commonwealth (1998). accused of 432 n. 3 A defendant murder, he she is not of may guilty, murder establish that or that, at the by proving voluntary manslaughter, but rather of *53 point that his case is "strik- 20. We must out that assertion Moore, 508, 569 Pa. 805 A.2d ingly to that of Commonwealth v. similar” Court), (2002) Judgment (Opinion Announcing the is 1212 Moore, argued appellant Appellant’s Brief at 75. In erroneous. See trial, petition then in his PCRA at his murder but asserted self-defense capacity presented a diminished defense. that trial counsel should have Moore, and diminished we "the theories of self-defense As stated presented mutually capacity exclusive and could have been are not contrast, Appellant presented an inno- together.” In here Id. at 1218. defense, irreconcilably incompatible with a diminish- cence which was attempt rely Accordingly, Appellant’s on Moore capacity ed defense. wholly unavailing. is
345 time of the he or she was killing, acting under a sudden and intense from serious passion resulting provocation by the Miller, 1, 638, victim. Commonwealth v. 605 Pa. 987 A.2d 649 (2009); 106, 390, Ragan, Commonwealth v. 560 Pa. 743 A.2d (1999) 2503(a)); (сiting 396 18 Pa.C.S. Commonwealth v. McCusker, (1972). 382, 286, 448 Pa. 292 A.2d 288 n. 4& encompassed by Emotions the term “passion” “anger, include rage, sudden resentment or terror which renders the mind Miller, of incapable reason.” at supra 650. Whether the provocation by the victim was sufficient to a heat support passion defense is determined an by objective test: whether a reasonable man who was confronted with the provoking events would become “impassioned the extent that his mind was incapable cool reflection.” Id. (quoting Commonwealth v. Thornton, 260, (1981)). 494 Pa. 431 A.2d “To reduce blow, stroke, an intentional or wounding in death resulting voluntary there manslaughter, must be sufficient cause of provocation and a rage cool, state of or passion without time to placing beyond reason, [defendant] control of his suddenly impelling him to the If any deed. of these be wanting there be provocation passion, without or passion —if without a sufficient cause of provocation, or there be time to cool, and reason has sway, resumed its the killing will be murder.” Id. at 651 (quoting Commonwealth v. Barnosky, (1969)). Pa.
Appellant that, no suggests evidence at the time of murder, he provoked had been so victim as to be compelled by passion beyond the control of his reason. The ie., evidence cited by Appellant, that Appellant and the victim murder, had been arguing shortly before the that there were problems serious in their relationship, that Appellant was jealous, and that Appellant’s prior or concurrent paramours sought him, had restraining against that, orders does not show murder, the time of the uncontrollably was compelled or by passion that the victim had him provoked into such passion.
Furthermore, Appellant provides no evidence or argument unreasonable, trial counsel’s strategy was to aver except *54 346 Brief at “weak.” Appellant’s was his alibi defense
that ineffective in seek- was that trial counsel cannot conclude We defense, the based on with an alibi ing Appellant’s acquittal opposed as by Appellant, named of an alibi witness testimony strategy, defense for partial passion a heat of advancing to trial counsel was not Because there was no evidence. which counsel ineffec- ineffective, appellate claim of any derivative does not fail. fifth issue Appellant’s must likewise tiveness relief. any entitle him to Closing Argument on
6. Time Limitation issue, that the trial court he contends In sixth Appellant’s closing argu- trial counsel’s the time for limited improperly counsel were inef- ment, and appellate and that trial counsel object and to raise this failing, respectively, fective for the alleges at 62. Appellant claim. Brief 20 to closing arguments to guilt phase “trial court limited the was side,” limitation that contends minutes a per to due rights and violated [his] unreasonable “completely only that the a fair trial.” Id. We must first note process appellate in this issue is claim undеr PCRA cognizable appeal to raise on direct failing counsel ineffectiveness for object to the failing for claim of trial counsel ineffectiveness argument. Appel- Because judge’s closing trial limitation on can- counsel ineffectiveness appellate lant’s derivative claim of ineffective, we begin if trial counsel was not not succeed trial counsel. allegations against considering Appellant’s Brown, 544 Pa. In v. Commonwealth (1996), the issue of time limitation this considered Court law on the prevailing closing argument on and summarized matter as follows: length to summation. The right
A defendant has a of the trial court. is left to discretion closing arguments limitation of time there is such an unreasonable Unless summation[,] right a defendant effectively denies [it] not be disturbed. a criminal conviction should omitted). citations Id. marks and (quotation counsel’s interrupted in Brovm had defense judge The trial conference that at a side-bar to announce closing argument side, the court limiting argument was to forty-five per minutes accordingly defense counsel had fifteen only minutes remaining for her closing argument. On direct appeal, *55 appellant action, Brown the trial challenged court’s arguing that the time prevented limitation his counsel presenting from an argument that would enable the jury to concentrate on the issues. Id. Although we disapproved of the trial court’s imposition of time limits after closing arguments had we begun, grant declined to the appellant relief because our “review of defense counsel’s argument that ample indicate[d] time was allowed to summarize the issues before the jury.” Id. case, to the
Turning instant we note first that the trial judge here testimony made clear to counsel before the start of she generally limited the time for closing arguments thirty N.T., 11/30/99, minutes. Furthermore, See at 201. it is clear abundantly from the court’s words that this was an not rule, absolute that it would not cut off an attorney who had something important to say, and that her general limitation was based on her experience as to a jury’s attention span. the trial Specifically, comment judge’s ar- concerning closing gument, made to the prosecutor and defense the day counsel commenced, before testimony was the following: Closings, I generally just limit to about a half hour. So think about that your now terms of closings. I mean I have stopped never someone who had something important I say, you but tell to hone in on important what’s because the jury doesn’t have an attention span that is than longer 15, 20 I you minutes. So tell now with the if proviso there with, is something you have to deal I very rarely have ever cut off an attorney, okay.
Id.
During defense counsel’s after closing argument, counsel minutes, spoken thirty had for the court interrupt did him as follows: shortly? [Counsel], wrapping up to be you going are
Court: already? a half hour That is Counsel: Defense Yes. Court: it, honor. your to do try I will Counsel:
Defense аrgument his N.T., 12/8/99, Defense counsel continued at 88. ended.21 time and then for a short we testimony, the notes of from excerpts on these Based court limit- that the trial contention conclude that minutes per to 20 to 30 arguments phase closing the guilt ed actions, or judge’s position, the trial truly not reflect side does not cut short defense judge the trial did Notably, words. rather, counsel had but after argument, closing counsel’s minutes, if was asked counsel thirty for jury addressed the something had If counsel still ending shortly. to be going from the record that is no indication say, there important *56 continued, instructions relying on the court’s could not have he fail to see on what testimony started. We any issued before to the court’s objected have trial counsel could or should basis actions.
Nonetheless, counsel was insists that defense Appellant closing argument matters in his include a number of unable to by judge, the trial imposed of time limitations because he did not seek more time ineffective when that counsel was have Brief at 64-66. We Appellant’s these matters. include record, in of the entire light of these matters considered each merit to Appellant’s is no arguable and conclude that there claims.
First, counsel was unable contends that defense Appellant victim’s children had been testimony that the of the argue father, by the Mr. their by Epps, influenced improperly ignores or disregards contention prosecutor. during counsel did make the that defense many arguments counsel that argued defense closing argument. Specifically, their had killed children believed truly argument up pages of the closing took total counsel's 21. Defense N.T., page testimony, interrupted him on 22. See and the court notes of 12/8/99, at 66-90. mother and thus really were not lying; the children knew all the answers to the prosecutor’s questions, but could not answer most of defense counsel’s questions; that there were many that, inconsistencies in the children’s testimony; for a murder, short time very after the Mr. was a in Epps suspect murder, the victim’s and Mr. Epps gained the most from the victim’s death because of the ongoing divorce and custody actions; that “somebody else” may have influenced one of statements, Philip’s in made the context of comments centered father; around his that Desiree’s testimony may have been “tainted”; and that there was a as to “program” Philip’s N.T., 12/8/99, testimony. 75-76, See at 85-87. The clear implication from defense counsel’s comments was that prosecutor had improperly coached the prior children their testimony, and that Mr. Epps had a strong interest deflecting blame for the victim’s death from himself to Appel- lant and did so by his influencing children’s testimony. De- fense counsel’s theory that Epps Mr. had influenced the children’s identification of Appellant as the man who shot their mother was weakened testimony of the victim’s sister. She testified that the children called her after immediately murder and told her thаt Appellant mother; had shot their 911 tape, played for jury, was consistent with the aunt’s N.T., testimony. 12/2/99, 50-51; N.T., See 12/3/99, at 122- 24. The children’s call place took prior to the reuniting children with Mr. Epps. Defense sought counsel during his closing argument to cast doubt significance on the aunt’s testimony, as it was incompatible with his theory as to *57 genesis the of the N.T., children’s testimony. 12/8/99, See at 76-77. all Given of defense counsel’s statements argu- and above, ments summarized there is absolutely no merit to Appellant’s contention that counsel yet needed more time to make yet more argument concerning the influence of Mr. Epps and the prosecutor on the children.
Second, Appellant contends that defense counsel was unable to argue certain details about the alleged Commonwealth’s inadequate investigation and presentation physical of evidence. In particular, Appellant claims he argument had to omit crime from the footprint a following: partial the
concerning the were found at casings five shell scene; testimony that four bullets scene; only that three of the testimony crime conclusively were determined the crime scene recovered from closing In the same firearm.22 fired from to have been stated that the instant repeatedly counsel defense argument, “failure to judgment” marked a “rush case had been 12/8/99, N.T., the on the Commonwealth. investigate” part the five shell 70, 71, 77, 81, 86, mentioned 88. Counsel at the evidence of mentioned the ballistics twice and casings once, investigate. of the failure alleged examples as bullets what N.T., 12/8/99, suggest does not Appellant at 82-83. See because of be but were not argued, more needed to points limitations, the ballistics casings, with to the shell regard time no merit evidence, There is footprint. or the partial more time. that counsel needed allegations Appellant’s that defense counsel contends finally, Appellant Third and the issue of closing argument in his lacked the time to include relies on testimo- specifically, Appellant intent. More specific no of the stippling examiner who found ny of the medical wounds, not shot at indicating that she was victim’s gun-shot 12/6/99, that N.T., insists Appellant 83-84. range.23 close of this significance time to inadequate develop counsel had shooter. See intent of finding specific for the issue Brief at 66. closing Defense counsel’s is frivolous. Appellant’s argument case, as theory argument appropriately—his reflected — trial, i.e., that could not have developed throughout state, but he was in another killed the victim because that three of testimony the ballistics evidence was 22. The actual as to single definitively a be matched to the four bullets recovered could definitively weapon. be matched to same One bullet could not possibility rule that all four weapon, but the evidence could not out N.T., 12/6/99, weapon. at i 1. bullets had comе from same text, supra, casings discussed in the The matter of the five shell was 4, alleged Brady under violations. issue meaning range” is derived from the of "close in this context 23. The testimony: stippling around the victim's The lack of medical examiner’s of at least two had been shot from distance wounds indicated she N.T., 12/6/99, at 83-84. or three feet.
351 husband, estranged victim’s who had motive ample for the murder, to sought place Appellant. blame on Consistent witness; with this theory, proffered defense counsel an alibi strongly challenged credibility of the testimony of the sister; victim’s children and and questioned investigation scene, at the police including officers their motivation going for to Mr. home after the Epp’s murder. All of this evidence was summarized defense counsel’s closing argu- ment. Counsel’s individual arguments and his overall strategy would have been undermined and the jury confused had counsel appended to his an aside that the closing shooter must kill, not have with intent acted to because the shots were not range. fired close There is no merit Appellant’s to allega- tion that time limitations trial prevented counsel from arguing the significance of the medical examiner’s as testimony issue of specific Certainly, intent. counsel did not argue specific intent —but the reasons for not doing nothing so had to do with time limitations. sum, record,
In above, our review of the as discussed reveals that there no is merit to Appellant’s contention that
trial counsel was ineffective for failing object to the trial court’s time limitation on closing argument. trial Because ineffective, counsel was not the derivative claim appellate counsel not raising ineffectiveness for the issue of trial counsel on appeal ineffectiveness direct also is meritless. Appellant’s sixth claim fails.
7. Cumulative Errors issue, In seventh he contends that cumulative him errors denied due In process. entirety, its sentences, claim comprises this three no authority citations to record, or to the no specifics, argument. and no It is impossi ble exactly to determine what is alleging, and thus the claim is unreviewable. a claimant has “[W]here failed errors, prove prejudice any as the result of individual he cannot on a cumulative effect claim prevail unless he demon particular strates how the cumulation requires different analysis.” v. 599 Pa. Wright, Commonwealth 961 A.2d Small, Pa. (2008); v. also 119, 158 see Commonwealth (2009) vague that a broad and (concluding *59 not cumulative errors did effect of the prejudicial claim of relief). prejudice cumulative Although appellant entitle the in the aggre assessed properly bemay individual claims from to lack of have failed due individual claims when the gate who appellant relieves an in our nothing precedent prejudice, specific, forth a setting from prejudice cumulative claims for argument reasoned, factually supported legally 329, Johnson, Pa. 966 A.2d v. 600 the clаim. Commonwealth 385, (2009) Pa. Perry, v. 537 523, (citing 532 Commonwealth (1994) trial 705, may that a new principle for the 644 A.2d 709 through accrued prejudice cumulative awarded due to be representation); ineffective of trial counsel’s multiple instances 640, Sattazahn, A.2d 671 597 Pa. 952 v. Commonwealth (2008). does not prejudice cumulative A bald averment of him to seventh issue entitles a claim. Appellant’s constitute no relief. Recusal
8. PCRA Court issue, claims that the PCRA he Appellant’s eighth In The same his motion for recusal. by denying court erred post-conviction trial and over the Appellant’s at judge presided remarks of the court that the Appellant alleges proceedings. in indicated a bias favor hearing during pre-trial suppression against Appellant, pre-judgment and a the Commonwealth post-conviction proceedings. recusal from the necessitating Brief at 77-78. recusal of a bears the judge A that seeks party bias, prejudice or establishing “to evidence produce burden jurist’s as to the raises a substantial doubt unfairness which Abu-Jamal, v. Commonwealth ability preside impartially.” (1998). reviews a This Court Pa. of discretion. a motion to recuse for abuse jurist’s denial of that, addition, it is general, we have concluded Id. In trial to over preside who judge presided for the preferable familiarity her because his or proceedings any post-conviction with likely the case will assist the proper administration of justice. Id. at 90.
Appellant based his motion to recuse on some statements made the trial court during a pre-trial suppression hearing, which following the court denied Appellant’s motion to sup- press in-court identification of Appellant by Philip and Desiree, juvenile witnesses. See N.T. Suppression Hear- 11/24/99, ing, at 47. Specifically, Appellant cites the following: Court: The bottom line in my courtroom is if you’ve got the someone, evidence to convict I want the conviction to stick. too, Prosecutor: Me Judge. don’t, If you don’t,
Court: you it, but if do have you let’s do it in a way there can’t be any PCRA’s down the because[,] lane----I say that not that I any have precon- *60 client, ceived ideas about the case or about your just but I want to make sure that if we can eliminate an appellate issue, we do so.
N.T. Suppression 11/24/99, Hearing, at 5-6.
Appellant argues that these comments show that the trial court case, had pre-judged the and accordingly the court’s “clear motive was to create an aura of a superficial due while process, that ensuring [Appellant] was convicted.” Ap- pellant’s Brief at 80. is mistaken —the quoted comments show nothing kind. The court stated that it had not pre-judged evidence, the Commonwealth’s and simply wanted any to avoid error might that lead to reversal on if appeal there was a conviction. No unfairness or desire to subvert due process was remotely implied by the court’s comments.
Appellant also claims bias in the trial court’s allegedly sоlicitous treatment Philip, the victim’s twelve-year-old son. Appellant is again mistaken. Recognizing the young age child, that, the court was to ensure if attempting Philip was called as a suppression witness at the it hearing, was done in the “least traumatic” way the court could think of. N.T. 11/24/99, Suppression Hearing, 5-6. When the prosecutor stated that he prefer would not to put victim’s children on him the court assured hearing, suppression at the
the stand he wanted to whichever witness to call that he was free for their basis independent had an that the children establish defense counsel at 4. When Id. Appellant. identification of witness, a the court Philip call as might that he indicated he want to might prosecutor to the merely suggested Id. at 5. The court such a possibility. the child for prepare sit grandmother it would allow the child’s also stated that he while “so he can be comfortable” jury with him in the box assertions, nothing Contrary Appellant’s Id. at 6. testified. against Appel- bias suggested in the words or actions court’s recognition The court’s guilt. of his pre-judgment lant or an and the court’s desire child is not adult twelve-year-old a testimony do not during trauma his unnecessary him spare against Appellant. bias or imply prejudice court’s denial of of error in the PCRA assertion Appellant’s in merit and entirely lacking provides his motion to recuse is no basis for relief. Evidentiary Hearing
9. PCRA issue, that he was ninth he contends In Appellant’s the “substantial evidentiary hearing regarding entitled to an Pennsyl and the Constitution claims under the United States Brief at petition. vania raised his Constitution” Proce Pennsylvania cites Rule of Criminal 83-84. Appellant 908(A), judge hearing which that a shall order provides dure relief raises material issues when a for petition post-conviction *61 rule to his However, not apply of fact. does general within specify vague he not this case and does by fact that in his view was raised his claim a material single of each of a review hearing. and warrants Our petition claims, text, reveals that the PCRA supra, see Appellant’s denying Appellant’s its discretion in court did not abuse Rush, v. 576 hearing. without a See Commonwealth petition (2003) a court (holding that PCRA Pa. 659-60 claim in denying petitioner’s its discretion did not abuse claim “could be when the merits of the hearing without a and it [was] the record upon reviewed based adequately unclear what purpose an evidentiary hearing would have served”). Appellant’s non-specific assertions PCRA court error for failure to hold a hearing do not entitle him to relief.
10. Notice of Intent to Dismiss In issue, tenth and final he contends that the PCRA court Pennsylvania violated Rule of Criminal Proce- dure 907 and 909 when the court did not provide notice that it was dismissing Appellant’s guilt claims phase without an evi- dentiary hearing.
Rule 907 in provides relevant part as follows: (1) as in Except provided cases, Rule 909 for death penalty the judge shall review promptly the petition, any answer the attorney Commonwealth, for the and other matters of claim(s). record relating to the defendant’s If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction relief, collateral and no purpose would be by any served further proceedings, judge shall notice give to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond proposed dismissal within 20 days of the date of the notice. 907(1).
Pa.R.Crim.P. Similarly, Rule 909 provides in relevant part as follows: (B) Hearing; Disposition
(1) No more than days after the Commonwealth an files 906(E)(1) (E)(2), answer pursuant to Rule or or if no answer 906(E)(2), is filed as permitted Rule within days after the expiration of the time for answering, shall judge review the petition, answer, the Commonwealth’s if any, and other matters of relating claim(s), record to the defendant’s and shall determine whether an evidentiary re- hearing is quired.
(2) If the is judge satisfied from this review that there are no genuine fact, issues concerning any material the defen- relief, dant is not post-conviction entitled to collateral *62 356 further by any be served would legitimate purpose
no proceedings, parties to the
(a) notice give shall judge in the notice shall state petition to dismiss intention for the dismissal. the reasons dismissal (b) proposed to the may respond The defendant notice. the date of the days 20 of within 909(B). Pa.R.Crim.P. that the intent behind made clear have previously
We is held evidentiary hearing an is to ensure that these rules that must be factual issues raises petition when PCRA 143, 467, Banks, A.2d 540 Pa. 656 v. resolved. Commonwealth is (1995). to dismiss of a court’s intention “[N]otice 473 court, the peti after review of where the trial required only thereto, any other tion, any by answer Commonwealth necessary, is not record, hearing that a determines matters relief, and to post-conviction is not entitled petitioner necessary.” (emphasis are Id. proceedings that no further Lark, 441, Pa. v. In Commonwealth original). notice was (1997), that no pre-dismissal we concluded 907(a) the court had heard to Rule because pursuant required evidentiary hear on the matter of whether an argument oral no there were determining required prior was ing be resolved.24 factual matters to Lark, we con in Banks and holdings Based on our or 909 not violate Rules 907 that the PCRA court did clude notice of with formal written failing provide Appellant procedural claims. A brief guilt-phase intent to dismiss his this conclu explain case will suffice to history Appellant’s January on petition filed a se PCRA Appellant pro sion. counsel, who filed an court appointed The PCRA 2004. 28, 2005. The Common January on petition amended PCRA 2, 2005, to which a motion to dismiss on June wealth filed February 2005. on December On reply filed a at which time 21, 2006, hearing, court held a the PCRA law, that, prevailing asserted under correctly counsel defense was, 1, 2001, Rule 1507. prior April numbered Rule 907 an is when evidentiary hearing required PCRA there is an *63 N.T., 2/21/06, outstanding issue of mаterial fact. Hear- PCRA ing, at 3. Defense counsel then that a argued hearing was many for of required Appellant’s guilt phase penalty as well as phase hearing arguments claims. After of defense counsel Commonwealth, and then the the court made clear its conclu- sion that there was no need for an evidentiary hearing as to Id. at 46-47. guilt phase However, claims. the court did grant an evidentiary hearing as to claims of inef- fective assistance of counsel Id. at during penalty phase. 46-47. Appellant ample had notice and ample opportunity to that, set view, forth the material facts in his remained at issue and accordingly justified an evidentiary hearing. Accordingly, 907(1) we hold that there was 909(B), no violation of Rules or is entitled to no relief on his tenth and final issue. sum,
In after review each of Appellant’s guilt phase issues, merit, we conclude that none any has and therefore we affirm the order of the denying PCRA court Appellant guilt phase relief. CASTILLE, EAKIN, BAER,
Chief Justice Justices ORIE MELVIN, join the opinion.
Justice in TODD concurs the result.
Justice SAYLOR files a dissenting opinion. SAYLOR,
Justice
dissenting.
I
Respectfully,
have material differences with the majority
reasoning
dissent
in favor of an evidentiary hearing.
Initially, concerning the state of
“layering”
this Court’s
jurisprudence
in
I
general,
have set down some of my own
Commonwealth v.
261,
in
Ly, 605
thoughts
Pa.
2
989 A.2d
(2010)
curiam),
(per
which I
here
incorporate
by reference.
262-65,
See id. at
J.,
doctrine in Federal A Solution the Knot: Untying Confusion for Capital Convic- State Court Pennsylvania Review Habeas (2009). tions, L. 985 11 U. Pa. J. Const. effec- cannot be that these difficulties remain convinced I process the due addresses until this Court tively mitigated application both the regarding raised being concerns con- constraints rule in of time-and-resources light Hubbard 262-65, at 989 A.2d 605 Pa. Ly, with direct see appeals, nected retroactive abolition of J., and the (Saylor, dissenting), 2-5 Steele, 599 Pa. v. relaxed waiver. See Commonwealth (2008) J., dissenting). (Saylor, n. 3 n. in which it is asserted another Notably, present yet case is that his duties did not counsel understood direct-appeal *64 of extra-record investigation presentation encompass (Feb. 17, McHugh, Jr. Declaration of James J. claims. See 2006) interview with contents from an (relating counsel). direct-appeal
Second, the of a detective’s the admission majority approves truth from a “ability distinguish to of a child witness’s opinion 11, n. 25 at 319 Majority Opinion, an interview. during lie” to testify I the detective could agree at 299 n. 11. While A.3d demeanor, I fail to see how a the child’s his observations of truth- extrajudicial as to her opinion law enforcement officer’s position not bolster the Commonwealth’s telling ability would Moreovеr, the in the courtroom. concerning capability such me be in tension with an seems to opinion admission of such determining involvement in limiting juror law prevailing the 289-91, well as the deci- see id. at as competency testify, jury. to the subject veracity the of witness reserving sions 576, Balodis, 567, 747 A.2d See, 560 Pa. v. e.g., Commonwealth (2000) “rejected] the that this Court has (explaining 345 a the of witness’ testimony question for on expert need majority Majority see Contrary position, veracity”).2 with the relaxed process concern associated Appellant discusses a due doctrine, appeal, see Brief applied at the time of his direct waiver which 9-10, majority. Appellant at albeit this is not addressed for expert, it reasonable qualified not as an seems 2. While the detective was might a law enforcement lay juror believe that such that a to assume evaluating telling. experience truth acquire special in would officer
359 Opinion, at 319 n. 25 at n. A.3d 299 I also believe the prosecutor’s affirmations of the other child witness’s answers to the voir-dire-type questions were in improper —which law, 310-11, first instance under at prevailing see id.
at represented objectionable Indeed, bolstering. it is 295— difficult to a straightforward envision more example of bolster- ing than affirming witness’s response “pretty good.”3 as
Next, I have difficulty with the characterization
testimony
that Appellant attempted to force himself upon the victim in
days
to the
prior
killing, and that a protection-from-abuse
order was
woman,
secured against Appellant by another
as
320-21,
“fleeting.” Id. at
360 299-300) 320-21, appears at at 25 A.3d
Majority Opinion,
and
of motivations
gleaning
extra-record
represent
me to
eschewed.
has previously
this Court
practice
strategies,
205,
186,
A.2d
Pa.
855
v.
579
See,
Duffey,
e.g., Commonwealth
clearly
the record
(2004)
“only
that
when
764,
(directing
counsel was
of trial
the act or omission
establishes
reason
resolve the
should the court
a reasonable basis
without
evidentiary hearing
remand for an
absent a
prong
able basis
McGill,
v.
(citing Commonwealth
strategy”)
as to counsel’s
(2003)).5
588,
1014, 1022
574,
A.2d
Pa.
con-
of ineffectiveness
Next,
claim
rejecting Appellant’s
in
evidence, the
of other-bad-acts
nected with the introduction
question
calls into
“implicitly
Appellant
indicates that
majority
of the case.”
theory
and
overarching strategy
trial counsel’s
fact,
at 303. In
at
25 A.3d
Majority Opinion,
overarching strategy, along
counsel’s
questions
brief explicitly
underlying guilt-phase investigation.
adequacy
of
with
argues:
example, Appellant
For
was
face,
against Appellant
case
guilt phase
its
On
knew
eye-witnesses,
It consisted of two
substantial.
shoot
clearly
Appellant
saw
they
who testified
Appellant,
presented
also
evidence
The Commonwealth
the decedent.
shooting.
after the
The
immediately
Appellant’s flight
of
evidence of domes-
also
extensive
presented
Commonwealth
and the decedent—in
tic discord between
least a week
physical fights
starting
form of verbal and
—
mo-
literally up to the
continuing
shooting
before
counsel
Clearly
the fatal shots were fired.
ment before
that the issue for
considered the fact
should have at least
Supreme Court
the United States
I realize that a recent decision of
pur-
gleaning
appropriate for
suggest that extra-record
is
appears to
—
Pinholster,
corpus
See Cullen v.
poses of federal habeas
review.
1404-06,
(2011).
-,
-,
361 it, in jury going the this case was not to be who did but rather what was the state of mind the shooter before he a weak alibi case. presented
Brief for at 72.6 such the
Despite
allegations,
extent of counsel’s guilt-phase
investigation and preparation remains
because
undeveloped,
the
court
evidentiary
PCRA
refused to conduct an
hearing.7
majority
While the
correctly indicates that the Court “will not
conclude that counsel was ineffective
because
merely
jury
the
credible,”
did not find his narrative
or
convincing
strategy
his
326,
303-04,
Majority Opinion,
here,
at
25 A.3d at
deficient
investigation
preparation
are alleged.
See generally
668, 690-91,
Strickland v. Washington, 466 U.S.
104 S.Ct.
2052, 2066,
(1984)
Next,
majority’s pronouncement
I differ with the
inflammatory or extensive.
was not
evidence
other-bad-acts
fact,
830-81,
the
at 306. In
at
Majority Opinion,
See
with a
in connection
the assertions
highlighted
prosecutor
theory
the Commonwealth’s
argument advancing
compelling
thwart-
the
centered on
killing
that the motive for
334,
As defense of diminished the alternate investigate present law is that majority prevailing with the that agree I capacity, an in the alternative to presented a cannot be such defense However, I ques- one. id. at 311-313.8 innocence-based See no basis to that trial counsel had majority’s suggestion tion the In regard, alternative defenses. this investigating consider that counsel was confronted asserts majority repeatedly the perpetrated overwhelming with evidence See, inconsis- logically n. 13. It seems e.g., id. at 300 killing. possibili- any obligation probe counsel lacked say tent to id. at 314. Commonwealth of alternative defenses. See ty Cf. (2005) (Castille, Davido, 52, 80, 868 A.2d 447 v. 582 Pa. “are not C.J., attorneys potted concurring) (commenting plants”).
Next, suggests it majority degree I with the differ between an unsworn declaration some material difference of an availability determining an affidavit for purposes at 343 n. 25 Majority Opinion, evidentiary hearing. See willingness Parenthetically, expressed to reconsider this I have a Spotz, arguments. v. prohibition upon appropriate See Commonwealth J„ 1, 107-08, (2006) (Saylor, concur- A.2d 1254-55 Pa. here, developed howev- dissenting). arguments are not ring and Such er. A.3d at 313-14 n. 19. only require Our rules that a petitioner “affidavits, records, documents, provide or other evidence which show the facts stated” in a petition. PCRA Pa. 902(D). R.Crim.P. Declarations have been long accepted by in evaluating Court assist whether a is hearing required on a In petitioner’s proffer. light of the limited purposes for which such documents are submitted —which is not to prove claim, merely but to demonstrate that material facts are issue and an evidentiary record should be do not developed—I see the distinction why between the different forms of submis- sions continues to be in our highlighted opinions.
In summary, and in line with many my previous expres- *68 sions, I believe that the appropriate way for this Court to address the intractable difficulties which have arisen in the arena death-penalty is to enforce the consistently requirement evidentiary issue; of an hearing where material facts are in require appropriately factual developed findings and legal courts; conclusions of the PCRA apply and to consistent and fair review criteria on It is appeal.9 my considered position there a great remains need for in improvement each of these areas.
26A.3d471
HETHERINGTON,
Milewski,
Zienkiewicz,
Burton
Julian
David
Cynthia Zienkiewicz,
Milewski, Peggy Forgotch, Joseph
Jason
Clews, Kelly Moran,
Seresky,
Glowacki,
David
Grace
Charles
Hampton,
Hampton,
Anczarski, Joseph Clews,
Anna Mae
John
Raymond Smith, Cynthia Smith,
Hampton, Lynn Lentes,
David
Uroskie,
Hampton,
Banning,
Wise,
Debra
John
David
Robert
Wise,
Kimmel,
Kimmel,
Rumbel,
Barbra
Dale
Lena
John
Mi-
Rumbel, Cathy
Raymond
Shoup, Roger Shoup,
chelle
Mishla-
Court,
Early my
attempted
roadmap
tenure on the
we
to set forth a
decision-making
for such
in the 1999
decision
Commonwealth v.
Williams,
(1999),
differing majority
557 Pa.
Notes
then notes sought prosecutor’s sel witnesses, holding this request, but the court denied with not work and hence attorney product the notes were challenge does not discoverable. Id. at 62. trial court’s record, challenge nor he veracity of this does alleges nonetheless but he product ruling, work turn over Brady by failing to acted in violation of prosecutor statements that apparently did not exist. See Brief at 46. We need not any address this claim further. (b) (c), to sub-issues Turning trial counsel strenuously objected to the prosecutor’s allegedly proffer late of the radio
notes testimony reveal that the “witnesses” identified in the detec tive’s notes saw the body victim’s when the elevator in which were they riding opened onto the floor where the shooting had just occurred; assertion, contrary Appellant’s there is no indication that they actually N.T., shooting. witnessed the See 12/8/99, at regard 5.16With to the page second of the crime log, scene Appellant points out that it “indicated that five shell casings scene, had been recovered at the not four as the Commonwealth’s evidence had indicated.” Brief