COMMONWEALTH of Pennsylvania, Appellee v. Isaac MITCHELL, Appellant
839 A.2d 202
Supreme Court of Pennsylvania
Argued April 7, 2003. Decided Dec. 30, 2003.
Clearly, Appellant is not a member of a discrete and insular group in need of protection. Nor is he, as he argues, a member of a class of one because no governmental entity participated in treating the reporter differently. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (finding an equal protection violation in disparate condemnations for sewer rights of way).
In this case, there is no state action involved in a legislator‘s release of his protected telephone records; and, reporters with hurt feelings are not a protected class. The reporter, who works for a newspaper, which buys ink by the barrel, surely has a more effective avenue of recourse than Section 1983.
Accordingly, I would affirm the order of the Commonwealth Court.
Justice CASTILLE joins this dissent.
Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, for the Com. of PA, Appellee.
Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.
OPINION
Chief Justice CAPPY.
This is a direct appeal from the imposition of two sentences of death.
Although Appellant does not challenge the sufficiency of the evidence with regard to his convictions for first-degree murder, we are required to undertake an independent review of the sufficiency of the evidence in all capital cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1314 (1995).
In order to sustain a conviction for first-degree murder, the evidence must establish that a human being was unlawfully killed, that the accused did the killing, and that the killing was done in an intentional, deliberate, and premeditated way.
On November 9, 1997, Hasan Mitchell and Montrell Washington were among a group of individuals that attended a professional basketball game in Philadelphia. After the game, Hasan and Montrell returned to the neighborhood where Hasan lived, at Montrose Street and Hall Place in Philadelphia, Pennsylvania. Montrell had previously lived in the same
About 10:00 p.m. Montrell was returning to his grandmother‘s house at 321 Hall Place, through the rear yard, when he observed that a small crowd had gathered. Montrell identified his brother Derrick, his cousin Jamika, and Appellant with his sons Yusef and Hasan; there was another man in the crowd who Montrell could not identify. As Montrell approached the group he observed Appellant fire a gun twice in the direction of Derrick. Montrell immediately turned away from Appellant and began to run. As he was running Montrell heard three more gunshots. Montrell was shot in the left shoulder. Montrell turned back towards the direction of the gunfire and saw Jamika lying on the ground and heard her crying. Montrell flagged down a car driven by a friend and was transported to a nearby hospital. The cause of death for both Derrick and Jamika was a gunshot wound to the chest, fired at close range, from the same gun that injured Montrell.
On November 18, 1997 Officer Garland of the Philadelphia police arrested Appellant. At the time of the arrest the officer asked Appellant if he knew why the police were looking for him; Appellant responded, “[y]eah, I got two bodies on me.” (Trial Transcript, hereinafter “T.T.“, 2/25/99, p. 41). Appellant added that he was glad about the arrest as he had
At trial, Appellant testified that he had gone to 321 Hall Place on the night of November 9, 1997, along with his two sons and his brother, Thomas Mitchell, to talk to Montrell about the earlier incident between Montrell and Hasan. While Appellant was talking to Derrick Washington, Montrell approached through the yard carrying a gun. Appellant turned and ran when he saw the gun. As he was running away, Appellant heard three gunshots. Appellant remained in hiding until his arrest, as he was afraid for his life.
In reviewing the above evidence in the light most favorable to the Commonwealth, as the verdict winner, we find it was sufficient beyond a reasonable doubt to support Appellant‘s convictions for first degree murder in the deaths of Derrick Washington and Jamika Wright.
In turning our attention to the issues raised by Appellant, we note initially that three of the six issues presented in his brief to this court raise questions as to the ineffectiveness of trial counsel. In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), this court overruled the requirement that claims of ineffectiveness of trial counsel must be raised at the first opportunity or said claims would be deemed waived. Grant examined the utility of this approach to ineffectiveness of counsel claims, and concluded that ineffectiveness of counsel claims are at their core collateral claims, and are best pursued through the avenue of post-conviction relief. Id. at 738. The new rule announced in Grant is retroactive to all cases that were pending at the time it was announced, where a claim of ineffectiveness was properly preserved. However, where a merits disposition of the claim was rendered in the intermediate appellate court or by the trial court, in cases brought on direct appeal, this court will address the claim on the merits. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), 2003 Pa. Lexis 920 (2003). In Bomar, also a direct capital appeal, the trial court had conducted a post-trial hearing on the ineffectiveness claims and rendered a merits decision as to
After the trial in this case, Appellant obtained new counsel, who prepared post-trial motions raising several claims of ineffectiveness as to trial counsel‘s performance. The trial judge died prior to disposition of the post-trial motions and another judge was assigned the case. There is no record of a hearing on post-trial motions. In its opinion, the post-trial court found no merit to any of the claims raised. The issues of ineffectiveness addressed and rejected by the post-trial judge do not exactly correspond to the claims raised by Appellant in his brief to this court.3 This disparity between the claims addressed by the post-trial judge and those raised in the current brief are not fatal to Appellant‘s claims as the doctrine of relaxed waiver, when applicable, permits Appellant to raise new claims of error for the first time before this court. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).4 Rather, the dilemma that is presented by the
We now turn to the remaining issues raised by Appellant. First, Appellant asserts that the decision of the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002), requires that his sentences of death be vacated as Appellant is mentally retarded. In Atkins, the United States Supreme Court barred the execution of criminal offenders who are mentally retarded, finding it to be excessive punishment precluded under the jurisprudence of the Eighth Amendment. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. In reaching its conclusion, the majority in Atkins relied upon evolving societal views of mentally retarded persons. Id. at 315-316, 122 S.Ct. 2242. When looking at the deficiencies of the mentally retarded person in conjunction with the stated purposes of capital punishment—retribution and deterrence—the court concluded that mentally retarded individuals should categorically be excluded from execution. Id. at 319, 122 S.Ct. 2242 (referencing, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (retribution and deterrence were
Appellant was tried on the above charges on February 22, 1999, a penalty hearing followed immediately upon his conviction of first degree murder, and the jury‘s sentence of death was formally imposed by the trial court on June 28, 2000. Almost two years later, on June 20, 2002, the United States Supreme Court rendered the decision in Atkins. Appellant‘s brief to this court was filed on October 23, 2002, a scant four months after the decision in Atkins. Appellant attempts to bring before this court a claim that he is mentally retarded and entitled to the benefit of the decision in Atkins, banning the execution of mentally retarded individuals convicted of capital crimes. As noted above, the United States Supreme Court left to the individual states the task of implementing this new restriction banning the execution of mentally retarded persons.
In order to address the merits of Appellant‘s individual claim this court would need to develop and adopt universal
Appellant attempts to mount an argument that the record supports his Atkins claim by relying on the testimony of Doctor Gerald Cooke, a forensic psychologist, who appeared on his behalf at the penalty phase of trial. Appellant points to a portion of Dr. Cooke‘s testimony wherein the doctor stated that Appellant had too many problems with comprehension and understanding to complete the entire M.M.P.I. test6 and that Appellant‘s I.Q. was in the borderline range of intelligence, at 74. (T.T. 3/3/99, p. 29 & 34). From this testimony Appellant argues that a strong presumption that he is mental-
The Commonwealth rejects Appellant‘s interpretation of Dr. Cooke‘s testimony. The Commonwealth points to another section of Dr. Cooke‘s testimony wherein the doctor was asked about Appellant‘s I.Q. and in response he stated:
Some of the sub-tests [I.Q. tests] are affected by education. Some are not. And that‘s why, when I described to you his verbal I.Q. score, I said actually on day-to-day bases he functions somewhat higher. When we put aside the education, and give him the benefit of the doubt, and calculate the score without those, we get an I.Q. of 80. So still in the ninth percentile. It‘s still pretty low. But it‘s not as low as 74.
(T.T. 3/3/99, p. 50-51). From this testimony, the Commonwealth argues that rather than a presumption that Appellant may be mentally retarded, the record shows exactly the opposite: Appellant is of borderline intelligence but has sufficient adaptive skills to function in society on a higher level than his I.Q. would indicate. The Commonwealth rejects the assertion that a remand is necessary to explore the applicability of Atkins in this case.7
Both Appellant and the Commonwealth attempt to muster persuasive arguments by taking Dr. Cooke‘s testimony out of the context in which it was presented and rereading it with the
Nor do we believe that a remand for an evidentiary hearing at this juncture, is the best possible solution for exploring this claim.8 The claim that Appellant cannot be executed because after the sentence of death was imposed a
In his second claim, Appellant argues that the trial court erred in permitting the prosecutor to impeach Appellant by reference to his right to remain silent in violation of the prohibition set forth in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). Appellant‘s argument focuses on a series of questions the prosecutor asked of Appellant concerning why Appellant had not previously told police that Montrell was the shooter. Appellant asserts that by permitting this line of inquiry, the court allowed the jury to infer that Appellant had a duty to tell the police about Montrell, and that his failure to do so was evidence of his guilt. Appellant asserts that he suffered substantial prejudice when the prosecution was permitted to ask this series of questions that infringed upon his right to remain silent, and that a new trial is warranted.
The Commonwealth denies that the line of cross-examination, addressing Appellant‘s failure to come forth about the facts of the shooting prior to the day of trial, caused an improper reference to Appellant‘s constitutional right to remain silent. It is the position of the Commonwealth that the questions posed in this case were limited to Appellant‘s public, pre-arrest behavior and therefore, do not implicate the rule of Turner. The Commonwealth, relying on Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996), asserts that the decision in Turner is limited to references to post-arrest silence, as distinguished from pre-arrest silence, and thus, Appellant‘s claim is without merit.
Q Okay.
So, sir, as I understand it, you are within feet of these two people, correct—or at least Derrick Washington, when he is shot and killed; correct, sir?
A Correct.
Q Okay.
And as soon as you hear these shots you run. Do you run to a pay phone to call 9-1-1?
A A pay phone? I was running for my life.
Q Well, when you got to this house, wherever you got, sir, did you ever call the police or rescue? Ever attempt to aid the people that were shot?
A The police was there, I believe.
Q Sir, did you ever call up and ask that fire rescue come and help the people that were shot?
A Wasn‘t no need for that because they was there.
Q Okay.
Sir, did you ever go to the police and tell them I saw Montrell Washington out there with a gun that night, and he was the one that was shooting. Arrest that man for killing my niece or my cousins. Did you ever do that, sir?
A No. Because they was looking for me for the killing.
Q Sir, you were out there. You saw what happened, right? The only person out there was Montrell Washington with a gun, correct? According to your testimony?
A That‘s right.
Q Okay.
You never called the police, never told the police what happened that night, did you sir?
A Why should I?
Q Why should you?
A Yeah.
Q That was your two cousins that were—
Q Sir, let me finish my question. Let me finish my question.
Sir, you found out within hours that Jamika Wright, your cousin, who was blind, was shot dead. You found out that Derrick Washington was shot dead. Correct Sir?
A Correct.
Q And you saw the people who did this, correct?
A Correct.
Q You‘re telling these jurors who did it. Montrell, correct?
A Correct.
Q You didn‘t think it was important to call the police and tell them that you saw who killed your two cousins?
A Like I said, I was fearing for my life.
Q Sir, isn‘t it correct that this is the first time since November ninth of 1997 that you ever told anybody publicly who killed your two cousins?
Mr. LORUSSO [defense counsel]: Objection.9
THE COURT: Overruled.
Q Today‘s the first day; isn‘t that true?
A Excuse me?
Q Isn‘t that true, sir? Today is the first day you ever publicly said that Montrell Washington was the killer of your two cousins?
A This is the first time I had a chance to say it.
(T.T. 2/26/99, pp. 37-39).
The accused in a criminal proceeding has a legitimate expectation that no penalty will attach to the lawful exercise of his constitutional right to remain silent. Turner, 454 A.2d at 540. Consequently, this court held in Turner that a defendant cannot be impeached by use of the inconsistency between his silence at the time of his arrest and his testimony at trial. Id.
Following Turner, this court has been consistent in prohibiting the post-arrest silence of an accused to be used to his detriment. See Commonwealth v. Costa, 560 Pa. 95, 742 A.2d 1076 (1999) (direct question to the arresting officer as to whether the accused made any statement when arrested on child molestation charges was an impermissible reference to post-arrest silence); Commonwealth v. DiPietro, 538 Pa. 382, 648 A.2d 777 (1994) (even where the accused responds to some questions at the time of arrest, it is impermissible to reveal to the jury those questions to which the defendant chose to remain silent). Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154, 156 (1993) (the prosecutor‘s open-ended question to the defendant, “Did you ever think of telling the police what happened“, could not reasonably be interpreted as limited to the defendant‘s actions pre-arrest, thus, it violated the rule of Turner). However, not all references to post-arrest silence were found to be detrimental to the accused so as to fall within the ambit of the rule of Turner. See Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994) (reference to fact that accused
To run afoul of the rule in Turner, it must be clear that the testimonial reference is to post-arrest silence. This clarification of the Turner holding was underscored by the decision in Bolus, supra. In Bolus, the defendant was interviewed prior to his arrest and made several statements to law enforcement inconsistent with his trial testimony. In cross-examination, the prosecution impeached the defendant by inquiring why he had not offered the information revealed at trial to the police during their investigation. On appeal the defendant claimed this line of cross-examination violated the rule of Turner. This court rejected that argument, distinguishing Turner as only relevant to the defendant‘s post-arrest silence, and holding that when a defendant chooses to testify he waives his Fifth Amendment protection and is subject to impeachment through reference to pre-arrest silence. Bolus, 680 A.2d at 843-844 (relying upon Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (the use of an accused‘s pre-arrest silence to impeach his credibility on cross-examination did not violate either the Fifth or Fourteenth Amendments)).
Appellant argues that the questioning in this case violated the rule of Turner as it implied that Appellant had exercised his right to remain silent, and because of the legitimate exercise of that right, his credibility was subject to impeachment. Appellant further argues that the distinction drawn in Bolus does not apply in this case, as the questioning encompassed the time frame from the day of the shooting until the day of trial. As the jury had already heard that Appellant
In the Commonwealth‘s view, all the questions at issue focused on the public conduct of Appellant at the time of the shooting, and not his failure to tell police of his innocence at the time of his arrest. The Commonwealth asserts that none of the questions posed raised the specter of Appellant‘s silence while under interrogation for this crime; thus, this case is firmly controlled by Bolus, and there was no violation of the rule in Turner.
Not all testimonial exchanges can be easily divided into pre- or post-arrest scenarios that will be governed by application of either the holding of Turner or the decision in Bolus. In this case most of the questions clearly went to Appellant‘s pre-arrest actions at the time of the shooting or shortly thereafter. However, when the prosecutor asked the open-ended question, “Sir, isn‘t it correct that this is the first time since November ninth of 1997 that you ever told anybody publicly who killed your two cousins?”10 the time frame was ambiguous. The ambiguity of the question is inherent in the absence of a clear time reference, thus, raising an inference that the question anticipated an answer that would embrace Appellant‘s actions from the moment of the shooting through the time of his arrest and up until the day of trial. This is exactly the type of question that this court condemned in Clark, 626 A.2d at 156.
Appellant is correct that a Turner violation occurred, as the last few questions posed in the series of questions set forth above do embrace more than the limited pre-arrest time frame as the Commonwealth asserts. Although we conclude that an improper reference to Appellant‘s silence was made, if we also conclude that it is clear that the error did not contribute to the
The standard for determining harmless error was firmly established in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of guilt is overwhelming, so that by comparison the error is insignificant. Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999). The burden of establishing that the error was harmless rests upon the Commonwealth. Story, 383 A.2d at 162 n. 11.11
The uncontradicted evidence in this case established that Appellant was at the scene at the time of the shooting. Appellant had gone to 321 Hall Place to meet with Montrell Washington after Appellant discovered Montrell had slapped Appellant‘s son earlier in the evening. Jamika Wright and Derrick Washington were shot at close range. The same gun that killed Jamika and Derrick fired the bullet that hit Montrell as he was running away from the scene. Appellant fled the scene of the shooting and evaded police for ten days, during which time he understood that the police were looking for him in connection with the shooting. Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991) (evidence of flight is admissible and relevant to establish an inference of guilt). Taking this evidence and comparing it in weight to the impact of the error caused when the prosecutor asked Appellant if the
In the final claim of error, Appellant asserts that a new trial is warranted as the Commonwealth failed to provide the defense with exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).13 The exculpatory evidence Appellant points to is the criminal extract of Montrell Washington, the Commonwealth‘s primary witness. Montrell had been convicted of illegally carrying a firearm on a public street without a license in 1990 and in 1991. Appellant claims that this evidence was exculpatory as it would have bolstered Appellant‘s testimony that Montrell had a gun on the night of the shooting, and because the two convictions would have served to undermine Montrell‘s credibility.
Brady requires the Commonwealth to provide the accused with evidence in its possession that is favorable to the defense and material to guilt or punishment. Id. at 87, 83 S.Ct. 1194. A violation of Brady occurs when the Common-
Appellant does not allege, nor is there any evidence, that the Commonwealth suppressed the prior criminal record of Montrell Washington. Nor is it evident that the two prior convictions for carrying a firearm on a public street, occurring some six years before the incident at issue, would have been relevant to the events on the night of the shooting. Not only is there no evidence linking the prior convictions to the current charges, but further, firearms violations are not crimen falsi, thus, they would not have been admissible to impeach Montrell‘s credibility. See Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990). Without any showing that the Commonwealth intentionally suppressed the information regarding Montrell‘s prior convictions, or that the information was material to Appellant‘s defense, Appellant cannot establish that a Brady violation occurred, thus, on this record he is not entitled to relief.
Appellant‘s allegations of error relating to the penalty phase are all raised as allegations of ineffectiveness of trial counsel, and therefore are not reviewable at this juncture. Grant. However, as required by statute, we will review the sufficiency of the evidence presented as to the aggravating circumstances found by the jury.
Accordingly, we affirm the verdict and sentence of death and dismiss Appellant‘s claims of trial counsel ineffectiveness without prejudice to Appellant to raise those claims on collateral appeal.14
Justice NIGRO files a concurring opinion, joined by Justice NEWMAN, who also joins the majority opinion.
Justice SAYLOR files a dissenting opinion.
Justice NIGRO concurring.
I concur in the result reached by the majority. I write separately, however, to comment on what I see as the troubling fact that in sentencing Appellant, the jury found as aggravating circumstances both
Section 9711(d)(10) of the death penalty statute provides for an aggravating circumstance where:
the defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
the defendant has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at issue.
Here, the jury found both Section 9711(d)(10) and Section 9711(d)(11) as aggravators for both of Appellant‘s first-degree murder convictions, meaning that each first-degree murder conviction formed the basis for a finding of the two substantially similar aggravators. In my view, such double-dipping is impermissible. See Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 21 (1992) (although language in Section 9711(d)(10) and Section 9711(d)(11) is different, both aggravators encompass first-degree murder and therefore, the Commonwealth was allowed to present its evidence “under either aggravating factor“) (emphasis added). However, whether the jury found three, as opposed to only two, aggravators in the instant case is of no moment, as they found no mitigating circumstances. See
Justice NEWMAN joins this concurring opinion, and also joins the majority opinion.
Justice SAYLOR dissenting.
The majority correctly frames the standard governing harmless error review as recently articulated in Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999) (on reargument): “[T]he properly admitted and uncontradicted evidence of guilt [must be] so overwhelming and the error... so insignificant by comparison that the error could not have contributed to the verdict.‘” Id. at 87, 748 A.2d at 194 (citation omitted). None the less, in its application the majori-
Here, as in Young, the defendant testified and, in doing so, contradicted material and substantial elements of the Commonwealth‘s case. Although I view the defense evidence as implausible, as several dissenting Justices also did in Young, the Young Court explained that courts are nevertheless obliged to faithfully implement the long standing, constitutionally based standard for harmless error, as follows:
The dissenting opinion suggests that the evidence presented by Appellant was simply incredible, and thus should not be considered by this court to have in any fashion refuted the Commonwealth‘s case. Such credibility determinations, however, are for the factfinder to make, and are not within the province of an appellate court.
Young, 561 Pa. at 87 n. 16, 748 A.2d at 194 n. 16; see also id. at 86, 748 A.2d at 194 (“Where such factfinding functions are implicated, appellate courts are incompetent to choose which side‘s evidence is more persuasive.“). Additionally, in its single-sentence comparative assessment concerning the impact of the prosecutor‘s reference to Appellant‘s silence, the majori-
Since I am unable to meaningfully distinguish Young in terms of harmless error review, or concur in the majority‘s weighing assessment, I am compelled to dissent.