*1 938A.2d 310 Pennsylvania, Appellee COMMONWEALTH v. Appellant. NATIVIDAD,
Ricardo Pennsylvania. Supreme Court of 5, 2007. Sept. Submitted Decided Dec. *12 Phil- Kairys, Rudovsky, Messing Feinberg, & Epstein,
Jules Natividad, appellant. for Ricardo adelphia, Burns, Dist. Amy Zapp, Harrisburg, Hugh Philadelphia J. Office, PA, Attorney’s appellee. for the Com. CAPPY, C.J., CASTILLE, SAYLOR, EAKIN,
BEFORE: FITZGERALD, BAER, BALDWIN and JJ.
203 OPINION Justice FITZGERALD. case,
In this capital (Appellant) appeals Ricardo Natividad from the order of the Philadelphia County Court Common (PCRA Court), Pleas for petition which denied his relief filed (PCRA), to the Post 42 pursuant Conviction Relief Act Pa.C.S. §§ 9541-46. We affirm. 9, 1996,
At 2:00 on a.m. Michael Havens November car, Lincoln, preparing to unlock a dark his blue when two men, one of Mr. whom Havens later identified as Appellant, approached him. Mr. pointing faced while a Havens him, stainless steel revolver at as his cohort him approached from behind. Mr. Havens keys surrendered his wallet and Appellant, then who ordered Mr. into the car Havens threatened to kill him initially when Mr. Havens hesitated. backseat, Mr. Havens sat in the sat in the front seat, facing and his at pointing gun Mr. Havens while Appel-
lant’s cohort drove. Appellant repeatedly demanded cash Havens, from Mr. he and when found the cash Mr. Havens on had hand he unsatisfactory, threatened to shoot Mr. Ha- vens he unless withdrew more cash from an automatic teller Havens, however, machine. Mr. Appellant that he convinced account, had no available cash in his bank so his Appellant and cohort him abandoned on the side of a road and drove off.
At 7:00 p.m. that same evening, Appellant picked up his friend, Price, Byron Lincoln, in a blue which Mr. Price had seen Appellant never before. Appellant pulled drive the car into a nearby gas station and instructed Mr. Price to inwait seat. Mr. passenger Price testified to a hearing gunshot, then seeing Appellant run back to the car awith chrome man, revolver his hand. Mr. Price observed a later identi fied as Robert Campbell, lying on the ground next to a gas pump, point Appellant sped which from away gas station. Mr. When Price asked Appellant why he shot the man, Appellant replied, “He drew on me.” Commonwealth v. Natividad, (2001) (Natividad 167, 172 I) (Opinion denied, Announcing Judgment Court), cert. (2002). The 152 L.Ed.2d
U.S. S.Ct. Johnsons, station, the gas who across street from lived his hands they further testified that saw the victim raise they The gunshots. fall heard right air and backward when into the they saw shooter run Johnsons indicated lumberjack- a wearing driver’s side of dark Lincoln while identify Appellant unable to style jacket, although they were as the shooter. specifically *14 11, 1996, the charred re- police
On November recovered They lumberjack-style a a mains of dark blue Lincoln. found car, in the car as his. the and Mr. Havens identified jacket his, he had left jacket claiming He identified as that it also the robbery. in car at the time the his of that he took Appellant’s acquaintances of indicated Several the the incident. gas-station day for the murder after credit 1996, gave In December Keith a revolver his Smith .357 it to homicide detec- attorney, immediately who surrendered approach that he Appellant tives. Carl Harris testified saw the take Mr. Smith Mr. Smith several after murder and weeks left, Appellant to a area. Mr. Harris noticed private When Police .357-Magnum gun. Mr. Smith a chrome carrying 1997, and arrested in March Mr. Havens identified Mr. also array. him from a Havens identified photographic him of gun the .357 as to the one used to rob his similar Campbell the fatal Mr. vehicle. Tests that revealed wound by a gas injuries at the station consistent with caused .357 was Magnum. separate robbery indictments for tried of Campbell.
of Mr. Havens
the murder
Mr.
These
and
10,
indictments were
for trial. On November
consolidated
murder,
1997,
jury
a
of
18
first-degree
convicted
street,
2502(a),
§
a firearm
a
18
carrying
public
Pa.C.S.
on
6108,
§
of
of an instrument of
possession
Pa.C.S.
two counts
crime,
907,
robbery,
§
18
counts
18
Pa.C.S.
two
Pa.C.S.
vehicle,
§
one
of a
18
robbery
count of
motor
Pa.C.S.
conspira-
§
§
and criminal
kidnapping, 18 Pa.C.S.
trial,
§
cy,
penalty phase
18 Pa.C.S.
903. At the
aggrava-
a
after
finding
rendered
verdict of death
two
of a
circumstances,
in the
killing
perpetration
while
ting
9711(d)(6),
of vio-
significant history
§
and
felony,
Pa.C.S.
9711(d)(9),
convictions,
outweighed
§
felony
lent
Pa.C.S.
factor,
history,
life
Pa.C.S.
mitigating
Appellant’s
the sole
9711(e)(8).
motions, the trial
denying post-verdict
§
After
first-degree
of death for the
murder
imposed
court
a sentence
conviction,
the other
additional sentences on
and numerous
to run concurrent to the sentence of death.
charges
Appellant throughout
Trial counsel continued to represent
direct
appeal.
appeal,
the duration of his direct
On automatic
722(4)
9711(h)(1),
§§
to 42
this Court
pursuant
Pa.C.S.
and
Opinion Announcing
Judgment
affirmed
an
I,
Court,
at 181.
then-
Writing
Court. Natividad
for
justice,
found the
sufficient
Cappy
now Chief Justice
evidence
conviction,
rejected
murder
support
first-degree
Appellant’s guilt-phase claims that the trial court should have
suppressed
photographic
Appel-
Mr. Havens’s
identification
lant, the trial court should not
Mr.
permitted
have
Smith’s
attorney to
testify,
sup-
evidence was insufficient
port
robbery
for the
station incident. Re-
gas
conviction
claims,
Mr.
garding
penalty-phase
Cappy
Justice
*15
concluded that Pennsylvania Sentencing Code subsections
9711(a)(2)
(c)(2),
statements,
permit victim-impact
which
are constitutional
in
pursuant
holding
the then-recent
Com-
Means,
(2001)
309,
monwealth v.
565 Pa.
(plurali-
206 peti-
The denied Supreme Appellant’s United States Court 28, tion for writ of certiorari on a May filed 25, 2002. The se PCRA pro petition on November PCRA counsel, an appointed subsequently court current who filed Appellant’s guilt- The court denied petition.1 amended PCRA claims, evidentiary hearing allega- but an on his phase granted of After penalty-phase tions of ineffective assistance counsel.2 of court denied days hearings, two PCRA This followed. petition. timely appeal PCRA jurisdiction Appellant’s petition pursuant We have over 9546(d), to PCRA which mandates direct review Section cases. post-conviction appeals penalty this Court of death 9546(d). See § 42 the denial of Pa.C.S. We review PCRA relief for a determination of court’s find whether PCRA error. supported by legal are the record and free ings Breakiron, 94, v. n. 4 Commonwealth 781 A.2d (2001) A for relief he petitioner eligible only . is PCRA when a that his conviction proves by preponderance evidence from one or more of the circumstances or sentence resulted 9543(a)(2). in 42 § delineated Pa.C.S. claims
Instantly,
Appellant’s eight primary
all of
ineffective assistance of trial counsel. Pa.C.S.
allege
9543(a)(2)(h)
relief if
petitioner
eligible
§
is
for
(providing
or
by preponderance
he
of evidence that conviction
proves
counsel).
result of
Nor
sentence was
ineffective assistance
are
their claims
mally,
petitioners
required
“layer”
PCRA
See Commonwealth
of trial counsel.
of ineffective assistance
McGill,
(2003).
v.
1014, 1024
Pa.
This Court
before
appeal approximately
year-and-a-half
decided his direct
Grant,
Commonwealth v.
Pa.
ling
fi
207 counsel current counsel. See Com- immediately preceded who 698, 586, Washington, monwealth v. 592 Pa. A.2d 594-95 927 (2007) claims (assessing whether ineffectiveness were waived under direct concluded pre-Grant appeal framework when filed); Rush, 3, Pa. before Grant was Commonwealth v. 576 (2003) 651, (limiting 838 A.2d 656 court’s re- ineffectiveness counsel). case, to In only view that related to most recent this trial represent Appellant ap- counsel continued to on direct Therefore, peal. proceed we will to his claims. See review Williams, 553, 517, v. Commonwealth 566 Pa. 782 A.2d 523 (2001) (noting difference between PCRA of ineffec- allegations tiveness when one case involved different trial and appellate counsel, and other case involved trial counsel continuing repre- sentation appeal).3 on direct
It is well-established that
presumed
counsel is
provided
have
representation
effective
unless the PCRA peti
(1)
tioner pleads
proves
all of the following:
underly
(2)
merit;
ing legal
arguable
claim is
counsel’s action or
inaction
any objectively
lacked
reasonable basis
designed
interest;
(3)
effectuate his client’s
prejudice,
to the effect
that there
a reasonable probability
was
of a different outcome
if
Pierce,
not for counsel’s error. See Commonwealth v.
515
153,
973,
(1987);
Pa.
527 A.2d
975-76
v. Washing
Strickland
ton,
668,
2052,
(1984).
466 U.S.
104
80
S.Ct.
L.Ed.2d 674
The
may
PCRA court
an
if
deny
ineffectiveness claim “the petition
er’s evidence fails to meet a single one of these prongs.”
Basemore,
258,
717,
Commonwealth v.
560 Pa.
A.2d
738 n.
Lambert,
346,
3. We
note that Commonwealth v.
568 Pa.
28 argue he failed to because under the PCRA cognizable are not test in the Pierce third of prongs the second and develop or the that counters Appellant claims. of his ineffectiveness each it did not raise because is waived argument Commonwealth’s argue preju- he did court and that the PCRA this claim with Appel- petition. his PCRA the litigation throughout dice that, he is the however, appellant, as lant, recognize fails to satisfy did not that he finding court’s the PCRA challenging that must presume courts Because proof. his burden prove to effective, burden petitioner’s it is the counsel was Pierce, Holloway, v. Commonwealth supra; See otherwise. (1999). cannot 1039, This Court 258, 1044 Pa. 739 A.2d 559 appellant claim unless an ineffectiveness relief on grant failed to that he determined wrongly court PCRA proves Breakiron, supra elements. See all of the Pierce satisfy to is limited of review this standard (noting that Court’s record before ruling supported court’s PCRA whether Albrecht, 554 Pa. error); v. legal it and free of Commonwealth (1998) that this Court will 693, (observing 31, A.2d 701 720 element) each Pierce if satisfies only appellant relief grant 31, 258, 35 Clark, A.2d 551 Pa. v. Commonwealth (quoting Commonwealth, (1998)). Thus, permit- as the is appellee, develop not properly did to on that argue appeal ted test. Common- of the Pierce See prongs and third the second (1995) 345, Katze, (plurali- A.2d 540 Pa. wealth v. is not when issue rule of waiver ty) (finding general appellants).4 applies court lower raised its that, presented insists had the Commonwealth court, been he would have to the PCRA argument waiver pursuant petition to amend his opportunity entitled to the While Rush, misplaced. on Rush is His reliance supra. 909(B)(2) to issue court requires PCRA Pa.R.Crim.P. dismissal, opinion court’s PCRA notice of its reasons for observes, to dismiss filed a motion the Commonwealth 4. As alleged argue his failure petition, not in the motion but did Nonetheless, appeal- Appellant is prongs. develop the second and third therefore, prove petition; it is his burden ing denial of his from the court error. trial claims denied them.5 instantly addressed the merits his Further, of pleading continue to bear the burden appellants of the Pierce elements on to this proving appeal each Jones, v. Court. Commonwealth (2005) appellant properly 385-86 (examining whether determining Pierce elements in brief before pleaded appellate Accordingly, he them PCRA we pleaded petition). whether examine his briefs on each appellate petition will and PCRA claim to determine he properly pleaded whether has Pierce elements.
In
of ineffective
examining Appellant’s arguments
counsel,
reviewing only
assistance of trial
we are limited to
court,
arguments
those
raised
as this
with
PCRA
Court
abolished the
doctrine for capital post-convic
relaxed-waiver
1998,
tion
appeals
Appellant
petition.
well before
filed this
Albrecht,
petitioner
See
940 n. 4 to undeveloped argument, which fails meaningfully apply governing discuss and the standard claims, of simply satisfy Appel review ineffectiveness does not relief.”). lant’s burden establishing of that he is entitled to any mind, With these standards in to examine proceed Appel we of trial lant’s claims counsel’s at the guilt phase ineffectiveness of trial. granted evidentiary hearing
5. We note that PCRA court an on the claims, penalty-phase Although guilt-phase but not on the claims. docket does not indicate whether the PCRAcourt filed an official notice dismiss, Appellant clearly of its intent 1o notice of the had trial court's April hearing, intentions at the where the PCRA court and N.T., parties scope evidentiary hearing. both discussed the 4/13/05, (discussing evidentiary hearing necessary at 5-8 whether record). they on trial claims because were had issues of object opportunities numerous to to the limited nature of the evidentia- ry hearing, object but chose not to do so and does not now to the lack of notice. Guilt-phase Ineffective of Counsel I. Assistance Carjacking
A. Evidence alleges that trial counsel was ineffective as object carjacking proof to the use of evidence failing for robbery, failing impeach intent to commit witness, Appel have examined carjacking Mr. Havens. We reply his to the Commonwealth’s petition, lant’s amended dismiss, these thoroughly his briefs on appellate motion to claims, the merits of the vigorously argues and while he extent, and, prejudice alleg to a underlying claims lesser result, noticeably any meaningful incurred as a absent is edly is, whether prong, to invoke the second Pierce attempt trial counsel’s objectively reasonable basis for any there was Pierce, The second is supra. prong action or inaction.6 See claims, trial counsel evidentiary as especially pertinent client’s must decide certain tactics harm his often whether certain introducing to the or the costs image jury, whether does not make outweigh evidence its benefits. even trial reasonable assertion that counsel had no boilerplate no Accordingly, upon for his inaction. we have basis basis Spotz, relief on these claims.7 See grant Appellant which Bracey, supra; supra. *19 Third-Party Opening Threats Evidence
B. Door to Next, that trial argues counsel substan Appellant Price, in Mr. tially by questioning harmed his case who was substantially Although reply may new a brief not introduce a and 6. brief, original that from raised in the we note different issue those prong, Appellant’s reply does not address the second brief also Pierce Basemore, despite pointing out the Commonwealth's its omission. (finding appellant's reply claim from brief waived when it at 726-27 court, statement, 1925(b) or not in PCRA in Pa.R.A.P. was raised fact, brief). develop original In in each claim where we find failure to prongs, attempted plead prove Appellant the Pierce has not to required prong reply in brief. his litigat- initially previously The PCRA court found that this claim was ed, attempt under a and that could not to raise issue days theory. Opinion at 7. Three before the different PCRA Court opinion, court filed this Court filed its decision in Common- PCRA its Collins, (2005), A.2d which clarified that v. wealth post-conviction claims are considered ineffective assistance counsel shooting, gas the car with at the time of station providing According about his in a statement to delay police. trial that Appellant, the trial court advised counsel before allege such a the door for Mr. Price to question open would Mr. Price by Appellant’s family, witness intimidation which did of the Pierce eventually testify. Appellant’s development of the prongs following: consists Here, nothing by attacking whatsoever Price’s gained was harm, delay reporting police. his to the The knowledge however, substantial, as it to “other was led acts” evidence. Petitioner contends that a that jury hearing his relative was for him intimidating against [petition- arrested the witness effect, in a murder case had a standing er] deleterious both alone in conjunction with the “other acts” impermissible evidence from the arising robbery prove use of the [ ] intent. Petition, 1/20/04,
Amended PCRA
filed
at 19-20. See also
(“[A]s
Brief
at 30-31
is
the trial
evidenced
strategy, counsel had no
or tactical
strategic
reason for seek-
information.”).
ing this
Although Appellant
arguably
has
pleaded the
Pierce
second
prong by arguing
“nothing
whatsoever
gained by attacking
was
Price’s
delay
reporting
his
knowledge
police,” we cannot consider this one-sentence
argument to constitute a
development
sufficient
of his claim.
Moreover,
See Bracey, supra.
agree
we
with the Common-
wealth that Mr. Price’s accusation of witness intimidation by
Appellant’s cousin did not prejudice Appellant’s defense. Ap-
pellant consistently attempted to establish that he shot the
gas
sell-defense,
victim the
station in
but the
gun
victim’s
still
holster,
in its
snapped
and witnesses testified to
seeing his hands in the air after
shot him. Nativi-
dad,
Pierce ineffectiveness test. Id. at 573. because the PCRA court offered denying an alternative basis for this claim of ineffective- ness, unnecessary. remand for consideration of Collins is Arguments Closing Object to Failure to Prosecutors C. objected counsel have to that should argues during closing by prosecutor made several statements He specific categories prosecutorial arguments. argues two (1) defense counsel’s attacking misconduct: impermissibly (2) However, making religious arguments. strategy; Pierce regarding prong, the second Appellant’s argument well, following: of the prejudice and the as consisted prong object clearly impermissi trial to to “Finally, as counsel failed basis, petitioner deprived tactical argument, ble with no (and thereby, for prejudiced the effective assistance of counsel above).” Petition at 24. the reasons set forth Amended PCRA claims boilerplate also Brief at These to establish either the reasonable- clearly insufficient were Bracey, of the Pierce test. See prejudice prong basis or supra.
Moreover, merit to Appellant’s underlying find no we by statements Appellant challenges following claims. prosecutor:
Now, designed is that [questioning counsel] defense designed you forget to the is it to make get you truth? Or he, victim], carjacking unambigu- that Mr. has Havens [the hesitation, any any ously consistently pause, without without opportunity, since she’s had the beginning, since [sic] ... here the unsuggestively right ... said this is man [sic] me, carjacked Ricardo Natividad who earring designed him he an asking maybe Is about had forget aspects description make all the other you hit on ... right he and the question question
Is that like earlobe a[sic] truth or to make earring question get you to the designed ... forget you 11/10/97, N.T.,
Amended PCRA Petition at 61- (quoting 63) (emphasis by Appellant). added not as prosecutor may opinion
While a offer his trial he to attacks on strategy, may fairly respond defendant’s
213 Williams, Pa. v. 581 Commonwealth credibility. a witness’s Miller, (2004); v. 572 Pa. 57, 505, 863 A.2d 518 Commonwealth (2002). consider- 623, 504, Trial counsel devoted 819 A.2d 516 prosecu- and the credibility, time Mr. Havens’s attacking able Further, to each of those attacks. responded tor’s statements innocuous and were challenged the statements of that would opinion type not obvious offers or were a mindset of fixed forming into unavoidably prejudice Paddy, v. bias and him. See Commonwealth hostility toward (2002) 47, 294, (stating prosecutorial 800 A.2d 316 that 569 Pa. occur unless comments had unavoidable conduct does not in fixed bias and prejudicing jurors by forming effect of minds defendant). hostility toward religious attack on the prosecutor’s following is the equally
reference is without merit. At issue statement: preliminary best friend had this case for the
My who and, things you talked about a lot of different hearing, we know, not has to decide this case Judge you it’s as told no sympathy certainly sympathy on or for Ricardo Nativi- for the Not because Campbell family. dad but not even at going sleep there is a who would when we’re all God night batting you go and when we’re down the hatches [sic] another car hopefully prevent out and make sure He would getting window smashed. from 89) N.T., 11/10/97,
Amended PCRA Petition at 21
(quoting
that refer
(emphasis
by Appellant). Appellant argues
added
at the
during arguments
penalty phase
ences
the Bible
se,
prosecu
render death sentences reversible
but because
per
greater
argu
tors are entitled to
latitude in penalty-phase
guilt phase,
religion
ments than at the
references to
should
also constitute
at the
prosecutorial
guilt phase.
misconduct
Chambers,
558,
630,
Commonwealth v.
528 Pa.
599 A.2d
(1991) (finding
during penal
643
reliance on
material
religious
denied,
se),
ty phase to be reversible error
cert.
504 U.S.
per
(1992);
946,
2290,
214
v.
S.Ct.
119 L.Ed.2d
Commonwealth
Morales,
(1997)
400,
516,
(noting
549 Pa.
701 A.2d
exercising
are afforded
latitude in
oratori-
prosecutors
greater
death).
cal flair
for sentence of
As
arguing
while
in
limited to
recognize,
holding
Chambers is
appears
Chambers,
in
arguments
favor of a death sentence.
(“We
in
prosecutors
any
at 643
now admonish all
that reliance
any
writing
manner
the Bible or
other
upon
religious
a
death is
support
imposition
penalty
reversible
added).
....”)
Further,
not
se
this Court has
per
(emphasis
imposed
mandating
prosecu
a rule
automatic reversal when
Rather, this
religion during closing arguments.
tor refers to
Cook,
v.
D. Guilt-Phase Instructions 1. Malice Instruction that trial should Appellant contends counsel have objected to the trial court’s instruction on malice because it already 8. The Cook Court had found that trial counsel was not ineffec- years tive Cook's concluded three was because trial before Chambers Nonetheless, Cook, at further decided. 676 A.2d 651. Court applied, decided that even if Chambers "under the circumstances hand, object failing permissi- for trial counsel was not ineffective to to ble comment on the evidence.” Id. reduced the prosecution’s burden of disproving his self-de fense Appellant again claim. only boilerplate raises claims regarding the second and third Pierce prongs: “trial counsel could no imaginable object have basis for to failing such a instruction!,] burden-diminishing and as the instruction went core, fact, to a disputed appellant harmed error Appellant’s occurred.” Brief at 36. he has Accordingly, failed to develop this ineffectiveness claim properly. Bracey, supra.9 Degree
2. First
Murder
Instruction
Appellant contends that the trial court
failed
define
specifically which aspects of its instructions consti
Moreover,
Appellant objects
this claim has no merit.
to the instruc-
may
tion that malice
be inferred where there is “intentional use without
legal
legal justification
deadly
excuse or
weapon
part
of a
on a vital
N.T., 11/10/97,
body.”
another human
According Appellant,
at 101.
jurors
permitted
were
to find
they
malice even if
believed he acted
self-defense,”
in “unreasonable but sincere
Amended PCRA Petition at
lowering
thus
disproving
Commonwealth’s burden of
his self-
However,
defense claim.
we
charge
must
consider
court’s
to the
jury as a whole to
determine whether
isolated concern was
prejudicial.
Hawkins,
See Commonwealth v.
(2001).
Our examination reveals that while the trial court's malice
clearly
instruction did not
state
jury may
whether the
infer
if
malice
it
finds unreasonable but sincere
long
self-defense as
as it finds intention-
deadly weapon
victim,
al use of a
on
part
a vital
the court’s
*23
subsequent
voluntary manslaughter
instruction on
rejected
possi-
that
bility:
you
If
find
killing
that at the time of the
the defendant believed the
they
circumstances to be such
killing,
if
that
justified
existed would have
the
unreasonable,
but his
you
was
and if
believe that as a
belief
intentionally
victim],
result thereof he
knowingly
or
killed [the
then
your
guilty
verdict
voluntary
should be
of
manslaughter.
The
person
law is that a
intentionally
who
knowingly
or
kills an
voluntary
individual commits
manslaughter if at the time of the
killing he believes the
they
circumstances to be such that if
existed
justified
would
killing
have
the
but his belief was unreasonable.
N.T., 11/10/97,
added).
(emphases
at 108-09
presume
jury
We
that the
followed the
Spotz,
court's instructions.
Instantly,
tuted actual beyond a reasonable of elements er it must find each those boilerplate made a only has again, Appellant doubt. Once any object to was “without that counsel’s failure allegation 30, basis,” at and Brief Appellant’s tactical see imaginable court or this with the PCRA Court provide therefore failed Bracey, supra.10 him relief. See upon grant a basis which Unanimity 3. Juror have the trial court should argues that Appellant to the it unanimous not that must be jury instructed the verdict, proven each element but as to whether also again attempts a reasonable doubt. beyond of an assistance through ineffective preserve argument this manner, as and boilerplate in an insufficient allegation counsel preju “ineffectiveness and merely incorporates he his claim. analysis previous of’ See dice/harm Thus, supra. fail. Bracey, at 31. his claim must See Brief
4. Self-Defense that the trial court’s instruction challenges in to consider him from fault” order jury must find “free solitary plead attempt his self-defense claim. His paragraph, the final prongs appears second and third Pierce in a of he resulted reduced burden which states: “[T]his Furthermore, thoroughly informed the court’s instructions 10. murder, first-degree provides no of the elements of specifically each support for that a court must label his assertion Additionally, find with the we no error element as "an element.” instruction, Sug Pennsylvania verbatim from court's which was almost 7.01(2), (Crim.) gested Jury on reasonable doubt: Standard Instruction always proving each has the burden of "It is the Commonwealth charged defendant every and that the element of each the crimes N.T., 11/10/97, beyond guilty doubt.” is crimes a reasonable those challenge language to the used in previously We addressed have Holloway, found the claim meritless. this instruction and Therefore, object no to this trial had reason to at 1047-48. counsel Marinelli, A.2d v. 910 instruction. See Commonwealth Court) (“Counsel (2006) Announcing Judgment (Opinion claim.”) failing to raise will not be ineffective for a meritless deemed Hall, Pa.269, (Darrick) (citing A.2d v. Commonwealth *24 (1997)). basis and the absence of tactical establishing both proof, boilerplate This Brief at 35. harm/prejudice.” counsel that was proving his burden of satisfy claim fails also fails.11 supra. This claim Bracey, ineffective. See Carjacking 5. Evidence defined improperly that the trial court asserts Appellant carjacking evi- to consider the jury permitted the was how His sole Campbell. to his intent to rob Mr. dence relation I.A of claims from Section incorporation is a full his argument reasons we deny this claim for same Opinion. of this We Part I.A. supra his claim in Section I.A. See denied 6. Malice —Reasonable Doubt that the trial court failed instruct argues malice, the use way finding that the inference of of jury by be found body, on a must deadly weapon part of a vital Here, arguably has a reasonable doubt. beyond that there is prongs properly by claiming the Pierce pleaded claim, that there was no arguable underlying merit to the of malice remaining tactical basis for silent because absence and that charge, essential to his defense on the homicide was by he diminished burden prejudiced prosecution’s was Pierce, Nonetheless, is not proof. supra. See previously entitled to relief on this claim. This Court has court, language considered the utilized the trial which Pennsylvania Jury mirrored the Standard Instruc Suggested tions, jury found that it that the properly informed element of proving every Commonwealth had burden Holloway, each crime a reasonable doubt. beyond turn, jury A.2d at 1047-48.12 In the court instructed the that Additionally, supra, jury properly as noted footnote 11 required beyond informed of the elements it was to find a reasonable guilty properly doubt in order to return a verdict. If the trial court jurors proof instructed the of the Commonwealth’s burden of for each element, jurors not crime and then it follows that the could reach a finding verdict each Commonwealth had unanimous without that the proof. burdens of satisfied all its Holloway trial 12. The difference between the statements is that “always has the court instructed the the Commonwealth *25 malice an element of murder. no reason why was We discern the believe the Commonwealth could malice jury prove would another, Thus, standard. there no reason for lower was Marinelli, object to the malice instruction. counsel See (Darrick) Hall, supra; supra. adds,
Appellant compounded by “This error is that detailed in regarding jury jury instructions. The was [Part I.D.2] murder, never told what constituted ‘elements’ of and thus of had to the points proof satisfy never knew which reasonable However, doubt standard.” Amended PCRA Petition at 36. provides no for his assertion that a court support element,” each element “an specifically must label as and this Holloway contradicts his claim. Hollo- holding Court’s See Accordingly, counsel cannot be faulted for way, supra. failing Marinelli, (Darrick) object to this instruction. supra; Hall, supra.
7. Malice —Self-defense final claim of error Appellant’s regarding guilt- jury instructions is that the trial court failed to instruct phase malice, may that self-defense that negate a prove beyond Commonwealth must reasonable doubt that not in self-defense. Appellant arguably his actions were has each Pierce trial pleaded contending of the elements that counsel for claim failing was ineffective raise this with trial court. raises these concerns: specific
No matter entirety closing argument how is this parsed, explained, using any language, Court never that (]2) self-defense, source, of That evidence from [ whatever (3) murder; tends to the malice for That in negate required malice, proof order to meet its burden of on the element of proving every charged,” burden of each and element of the crime "always whereas the trial court here instructed that the Commonwealth proving every each and has burden of element each the crimes N.T., 11/10/97, charged." Compare Holloway, 739 A.2d at with at added). (emphasis properly adjust language The trial court added multiple charged. for the crimes with which a reason- beyond must exclude self-defense prosecution able doubt. Brief at v. Heather- (quoting Commonwealth (1978)) (internal quota- Pa.
ington, 477 omitted). tion however, examination of the entire reveals jury charge,
Our Appellant’s argument is without merit. The completely (1) following trial court issued the instructions: self-defense is (2) N.T., 11/10/97, 128; “a to the complete charge,” defense “the has the proving beyond Commonwealth burden in justifiable reasonable doubt that the defendant did not act (3) self-defense,” added); at 125 (emphasis id. “because *26 the proving Commonwealth has burden that defen- dant not act in self-defense find the you did cannot defendant are satisfied that guilty you beyond unless a reasonable doubt justifiable the defendant not act in self-defense as I did have it defined Id. at 127-28. It is true that these you.” instructions did not malice as that specifically identify element Nonetheless, which self-defense would it specifically negate. logic prejudice defies that could incurred have when the trial court instructed that the dis- Commonwealth must prove Appellant’s claim of self-defense a reasonable beyond doubt, that complete and further self-defense is a defense to if charge overall of murder. Simply put, Common- beyond wealth failed to a reasonable doubt that prove Appel- self-defense, lant’s actions not in the jury were then could not murder, find him thus guilty charge rendering overall the effect of on Accordingly, self-defense malice irrelevant. there was no for object reason trial counsel to to these Marinelli, (Darrick) Hall, instructions. supra; supra. Appeal Sufficiency Argument E. Direct Counsel’s Although this Court on direct appeal found first-degree evidence was sufficient his murder support conviction, Appellant challenges appellate counsel’s litigation of that issue. Appellant allegedly contends that counsel’s deficient “Statement of the Case” failure to file a reply and or petition reargument brief for prevented this Court from that this court found claim The PCRA
resolving properly. his on direct sufficiency claim underlying his addressed Court claim previous- his ineffectiveness thus considered appeal, and correct- at 9. As Op. PCRA Court ly litigated. See because we notes, under PCRA cognizable this claim is ly legal to be a discrete claim consider an ineffectiveness now Collins, 888 claim. See underlying for relief from the ground this claim Thus, finding erred the PCRA court A.2d at 571. litigated. See id. previously claim to the remand this
Normally, we would claim. ineffectiveness court to reconsider PCRA negate does not However, in Collins holding this Court’s prove properly must and plead that a requirement petitioner Washington, test. See all the elements of the Pierce this would in situations where Court (noting at 594 that even of claim development further remand for customarily “fails to court, unnecessary petitioner is when PCRA remand (inter elements) ineffectiveness prove” and thoroughly plead omitted). argues in the instant case quotation nal depth claim in substantial underlying his the merits of mention, alone plead let but fails argues prejudice, also Therefore, Appellant strategy” prong. the “reasonable prove, ineffective. See counsel was appeal fails to that direct prove Bracey, supra. Background Investigate
F. Failure to Victim’s [31] raises his next claim as a *27 challenge of guilt penalty phases at both the counsel’s effectiveness investigate failed to whether trial. He asserts that counsel his the firearm found on carry licensed to Campbell Mr. was had According Appellant, day he killed.13 person was not was Campbell that Mr. trial counsel introduced evidence firearm, his supported such fact would have carry licensed to a wheth- attempt to determine that he made no 13. Trial counsel admitted N.T., 10/31/05, carry gun. at 45- Campbell er had a license to Mr. that, Campbell was known that Mr. speculated had he 47. Counsel evidence, unlicensed, though he to introduce the he would have tried purpose have done hearing what he would specify not at the for could Id. at 45-46. so. and, at the of trial at guilt phase claim of self-defense trial, of countered the Common- phase would have penalty as an member depiction Campbell upstanding Mr. wealth’s of the community who was a member “Town Watch” requisite prejudice develop We find failure program. in either claim.14
1. Guilt Phase
claim for the
arguing
underlying
In
the merits of the
trial,
the facts of
case
guilt phase
Appellant compares
his
Hall,
233,
(Reginald)
those Commonwealth v.
with
(2003).
Hall,
In
the trial
(Reginald)
not
it at another man” and “the
firing
in the act of
caught
was
willing
pre-
a
...
suggested
person
trial evidence thus
hands,
if neces-
including,
to take matters into his own
pared
shooting
out and
others.” Id. at 549-50.
sary, seeking
Thus,
belief,
contrary
Appellant’s
(Reginald)
espouse
illegal
Hall does not
an automatic inference of other
firearm,
but rather
activity by
illegal possession
mere
of such an inference
requires
legitimacy
courts to examine
such,
case-by-case
basis. As
situation is
on
that in
Hall because he
markedly
(Reginald)
different from
that Mr.
about
Campbell
offers no other evidence
than
claim of self-
illegal activity
in
other
his own
engage
Moreover,
of a
Campbell’s possession
gun.
defense and Mr.
failing
counsel’s
alleging
because he is
ineffectiveness
firearm,
of Mr.
investigate
licensing
Campbell’s
status
not
that the trial court
have
prove
only
must
would
evidence,
admitted this
but also that this evidence would have
Strickland,
in a different outcome. See
466 U.S.
resulted
“there
(holding
prejudice
2.
Phase
that,
avers
presented
had counsel
evidence
of
non-licensure,
he could have
countered the
effectively
Commonwealth’s victim-impact
portraying
evidence
Mr.
as an
Campbell
active member of the community.
many
For
above,
reasons stated immediately
Appellant fails to
prove prejudice on this claim. He cites no other
or
illegal
dangerous activity by Mr. Campbell, nor does he offer any
guidance as to
how
unlicensed
of
status Mr. Campbell’s
holstered and secured firearm would have enhanced his miti
evidence,
gation
particularly since he was unaware that the
firearm was unlicensed until he filed the instant petition. He
claims
that the consider,
must be peimitted “to
to,
give weight
any potentially mitigating evidence arising
from the defendant’s background or from the
of
circumstances
the crime.” Appellant’s Brief at 54 (citing Mills v. Maryland,
367, 374-75,
486
1860,
(1988))
U.S.
108 S.Ct.
failed to (permitting § do 42 Pa.C.S. claim if raised underlying challenge as issue to stewardship). of counsel’s at the scene. is the evidence crime gathered with no relief on due this claim. Penalty-phase
II. Ineffective Assistance Counsel Mitigation Evidence
A.
several errors
relation
trial
Appellant alleges
evidence
investigation
presentation mitigation
counsel’s
observed,
As this
phase
of trial.
Court has
penalty
has
that the
Supreme Court
held
Sixth Amend
United States
pursue
reasonably
“to
all
avail
requires capital
ment
counsel
mitigation
Common
developing
able avenues
evidence.”
(2006)
364,
775,
(citing
Pa.
Gorby,
wealth v.
Smith,
v.
123 S.Ct.
Wiggins
539 U.S.
*30
(2003)).
must exercise reasonable pro
L.Ed.2d 471
Counsel
conduct,
examining
judgment, and in
counsel’s
“we
fessional
counsel’s deci
investigation supporting
focus on
whether
...
itself
mitigating
sion not to introduce
evidence
was
reason
Malloy, 579 Pa.
able.” Commonwealth v.
(2004)
2527).
We Psychologist to Provide Failure Mitigation Records
with to his Appellant argues provide psy- that counsel’s failure records in a Tepper, Dr. Allan M. with various chologist, Tepper testifying fashion Dr. from timely prevented effective- questions to certain factors. first ly mitigating Appellant provide and Dr. investigate Tepper counsel’s failure to with abuse, of on the history drug of his father’s based evidence He also that counsel’s affidavit his older brother. contends drug history, to as Tepper Appellant’s submission Dr. report, untimely in a was because Dr. pre-sentence detailed after Fi- Tepper interviewing Appellant. received them present criticizes failure or nally, investigate he counsel’s mother caretaking of his function his was evidence while claims, pleaded many guilt-phase 16. Unlike of his has Pierce elements. counsel’s prove cancer. fails suffering from for each of these claims. ineffectiveness abuse, Dr. drug history his father’s Regarding evidentiary at the PCRA following testified to Tepper hearing: father, that the in addition reported
The fact that it’s physical absent somewhat being using separated home, also, had a represented, in at least it’s discipline very cocaine would be daily problem, again, or chronic his de- upbringing, significant respect [Appellant’s with to, exposed literally he whether that velopment, what was he modeled. something in parents very important piece The substance abuse is a any of information for kind of evaluation. added).
N.T., 10/31/05, At the (emphasis penalty- at 114-15 hearing, Tepper Appellant’s Dr. added that father was phase N.T., 11/12/97, at during Appellant’s years. absent formative Appellant explain 94. Dr. did not nor does Tepper explain, now, drug modeled his father’s how could have Furthermore, Appellant rarely abuse when saw his father. brother, their who claimed an affidavit daily, father used cocaine testified:
Well, ’81, I from 1968 to if he did cocaine wouldn’t know '63, I I daily. years was born so that would be five old. don’t think he have that then. would showed me
In I separated my Okay? '81 he from mom. know he So *31 doing wasn’t it '68 '81. I didn’t see him do it between and Or then.
N.T., 11/28/05, fact, In in at 67. the first instance which Appellant’s brother claims to have seen their father use daily cocaine was and rather than state that it awas cocaine, abuse of he made a of vague response seeing usage cocaine on than occasion. Id. at 75. “[m]ore [o]ne” Moreover, Dr. noted the of Tepper history substance abuse mother and considered in of Appellant’s siblings. light When Appellant’s penalty-phase argument that his father’s abandon- hardship, ment created and the of his life jury’s finding history factor, as a we cannot conclude that counsel’s mitigating Strickland, prejudicial.17 omission of this evidence was supra.. timing claim about the of counsel’s disclo history Tepper equally of to Dr. is Appellant’s drug
sure merit. Dr. testified that this information Tepper without regarding part “would have been additional information that of N.T., 10/31/05, of at 109- drug-use history. evaluation” his 10. Dr. noted that the information Tepper While would have outside confirmation of provided Appellant’s drug-use history it, further he did not that and details state evidence he in his changed diagnosis expressed report would have this jury. merely or Because evidence would have been Dr. no Tepper’s findings, Appellant cumulative to suffered prejudice timing from the of counsel’s disclosure.
Finally, Appellant presents numerous from affidavits that they Appel witnesses who state would have testified to illnesses, family lant’s duties his caretaking during particularly Dr. Tepper mother’s battle with cancer. He claims that would thorough have conducted a more interview of had he from these Dr. did not claim Again, Tepper heard witnesses. any point that these affidavits a different suggested diagno fact, penalty-phase jury. sis from the one he offered to the In observes, Tepper specifically as the Commonwealth Dr. admit ted that affidavits “don’t now allow to make [him] Id. at 135. make diagnosis did not back then.” [he] Accordingly, we hold has failed to the ineffec prove tiveness of his trial counsel relation to the information to Dr. provided Tepper. investigate drug also claims that the failure to his father’s 9711(e)(2) (3) arguing mitigators deprived abuse him of the Section 9711(e)(2), (3) jury. (providing § to the See 42 Pa.C.S. that extreme impairment capaci- mental or emotional disturbance substantial factors). ty criminality mitigating Appel- appreciate of conduct are evidence, through provided Tepper lant either no Dr. or some evidence assertion, linking drug any other than his own his father's abuse with may impairment or he have been time influence under at the result, undeveloped. crimes. As a this claim is *32 Investigation Mitigation Witnesses
2. again potential offers affidavits of mitigation argue witnesses that counsel was ineffective them failing present penalty-phase at the At the hearing. PCRA evidentiary hearing, Appellant questioned trial counsel witnesses, only Brown, about one of those April However, former girlfriend. counsel explained that Brown “extremely was hostile” at the trial. Id. at 79-80. According ly, counsel provided a reasonable basis for his decision not to present as a mitigation Brown witness. Because did not question witnesses, counsel about the other we have no basis upon which to evaluate counsel’s strategy regarding these and grant witnesses cannot relief on this claim. See Bracey, supra.
3. Failure to Introduce Successful Rehabilitation
and Mental Health Evidence Appellant argues that counsel was ineffective for fail ing present (1) evidence of the following: his successful juvenile (2) rehabilitation at a institution; diagnosis of mixed 1989; (3) personality disorder in psychiatric evaluation an revealing IQ of 75. He fails to develop the second third claims in any fashion, meaningful except provide citations to the reports, relevant nor did he question counsel about these claims. Accordingly, those claims are waived.18 Therefore, See Bracey, supra. we will address his reha bilitation-evidence claim.
Appellant raises
arguments
two
in regard to his reha
juvenile
bilitation at the
institution. He first
insists that
counsel
required
to foiward the Forestry Camp records
to Dr. Tepper because they
to,
that he
indicated
is receptive
argue
did not
to the PCRA court that his sentence is
Virginia,
unconstitutional under Atkins v.
536 U.S.
122 S.Ct.
(2002),
Atkins-based from, He suggests rehabilitation. also and would benefit Camp, Forestry from Youth counsel have used records should *33 secure, institution, the juvenile to counter Commonwealth’s at the problems that had behavioral evidence School. Sleighton acknowledged Dr. evidentiary hearing, Tepper
During the records: Forestry Camp of the that he was aware Youth Yes, Investigation A. I I had the [Pre-Sentence know. report].
Q. Okay. an there had indication A. that he made—there’s —and Forestry at the adjustment he Youth positive that made a I of. and that was aware placement discussed, if say percent I a hundred Today, as cannot we themselves, Forestry all records specific I had those Youth in the presentence there a reference to them but was report.
N.T., 10/31/05, specifically Dr. also acknowl- Tepper at 140. during penalty- the the edged report on cross-examination phase hearing: period And he was there for some
Q: records indicate your time, they? don’t Camp? At Forestry A: the Yes.
Q:
A: Yes. N.T., the 11/12/97, Tepper 121. Even if Dr. did not receive he Forestry Camp, from Youth was aware report not it crucial report and did consider existence of a beneficial said that Tepper] “[i]f [Dr. to his evaluation. Counsel added Id. at brought I it out.” report] is have important, would [the prove preju- cannot that he was Accordingly, Appellant failure, any, provide report if by of counsel diced Tepper. Dr.
Nonetheless, counsel should Appellant asserts that counter Forestry Camp Youth report have introduced the had indicated Sleighton report, School which unfavorable Initially, not to rehabilitation.19 receptive that was also claims the Commonwealth observe we “non-statutory as a introduced evidence impermissibly After reviewing Brief at 68. aggravator.” Appellant’s instructions, find no we penalty-phase transcripts that the to introduce attempted evidence Commonwealth Rather, the Com Sleighton report aggravator. School as an questioned Dr. further about his evaluation Tepper monwealth Thus, N.T., 11/12/97, at 121. Appellant’s schooling. See appropriate, introduction of the report Commonwealth’s citations Appellant’s supporting involving impermissible evidence, are non-statutory aggravating inapposite. use Edmiston, v. Compare Commonwealth (2004) (permitting question 898-99 Commonwealth prior defendant about when direct examination acquittal subject), door to Brief at 68 n. 40 opened with *34 761, (citing Hughes, Commonwealth v. 581 Pa. 865 A.2d (2004) (finding 795-97 evidence that defendant entered into consent decree because it not finding guilt inadmissible was issue); and defendant’s character was not at Commonwealth DeJesus, (2004) v. (vacating sentence prosecutor when exhorted to “send a message” (same)).20 during closing arguments); Malloy, supra whether, We therefore examine in the context of Dr. Tepper’s testimony, counsel should have asked Dr. on Tepper re-direct examination about the Youth Forestry Camp report. questioned by Appellant why When about he did not introduce report, the counsel “I responded, do see the next sentence report], the which gives pause [from me here. ‘His counselor of the that he opinion was derived maximum benefit from his Appellant’s supporting actually We note that citation is to the unfa- 19. Sleighton report. (citing vorable School See Brief at 68 D-5, 2). Regardless, Sleighton Exhibit at we have reviewed both the report Forestry Camp report. School and the Youth See Exhibit C-l. claim, Appellant provides consisting bare assertions on this of a five- bulletpoint line and a footnote with the citations those cases involv- ing impermissible non-statutory aggravators. Notably, Appellant use of provides testimony alleges no citation to the notes of where he the evidence, prosecutor introduced the nor does he elaborate on the appeared. context in which the evidence ” 10/31/05, N.T., 52. The there.’ at Commonwealth placement the statement as reasonably counsel assessed argues that be any attempts that further rehabilitation would “implying Counsel, disagree. Brief at 53. We futile.” Commonwealth’s cross-examination, of the report: clarified his evaluation on Well, jury just convicted pause A. it me because gave they’ve report him crimes and the indicates doing these Forestry him they could for at Youth already done what I Camp why given pause. so that’s—that’s was words, In it he could not be rehabilitated? Q. other showed A. Yes. 10/31/05,
N.T., of the reveals report at 96. Our review .that unreasonable, clearly the report as counsel’s evaluation was all of the complied camp’s had with details that. Thus, not, implies, did as the Commonwealth camp goals. had suggested on but rather give up Appellant, leaving camp. for adequately requirements satisfied therefore, cannot that counsel’s assessment agree, We evidentiary hearing by at the and construed report, as stated Commonwealth, reasonable. was Nevertheless, that coun must demonstrate assessment, Pierce, supra. When prejudicial. sel’s Forestry Camp of the Youth potential impact asked about Dr. less than certain: report, Tepper was Forestry Q. you by Had been asked what [counsel] me, struggling [Appel- I’m for a word—how Camp forgive— been Forestry Camp, you at the would have behaved lant] points prosecutor]? to the made respond [the able *35 to respond point by A. I can’t I have been able say would me, asking Forestry to Mr. but point what Sax was a to way be—would have been Camp background would structure, that, guidance certain kind or show with [sic] to re- ability had certain either resources or [Appellant] Forestry Camp That’s records seem spond. what indicate.
N.T., 10/31/05, above, had at 118. As we found Dr. Tepper to discuss the Youth For- opportunities on cross-examination
231 Further, estry but did not Camp report, Appellant do so. compiled significant history a abuse and criminal drug activity positive soon after his from the Youth report Forestry Camp, years prior which was issued seven to the instant In crimes.21 the context of Dr. and the Tepper’s testimony jury’s finding previous-crimes of the cannot aggravator, we conclude that Appellant prejudiced by interpre- was counsel’s tation of the Youth Forestry Camp report. Accordingly, Basemore, is not to relief entitled on this claim. See supra. Life-Qualifying Jury
B.
Appellant asserts that he
prejudiced by
was
trial court’s and counsel’s failure to “lile-qualify”
jury.
He
argues
counsel’s,
that it
not only
but also the
duty
court’s
inquire
a prospective juror
whether
be
would
unable to
a
return
life-sentence verdict based on his or her
view
death
It is
penalty.
well-settled that
trial counsel
while
is
permitted
life-qualify
the jury, he is not
se
per
ineffective
for failing to do so. See Commonwealth v.
933
Rega,
A.2d
(Pa.2007)
997, 1020
(citing Commonwealth v. Speight, 578 Pa.
520,
450,
(2004);
854
Rollins,
A.2d
Commonwealth v.
(1999);
Pa.
Commonwealth v. Hardcas
tle,
(1997)).
did not argument court, raise this with the PCRA thereby waiving Basemore, it on appeal. supra. evidence, explored, may This if have been relevant to counsel's strategy, potentially as could incapa- have considered long-term ble activity rehabilitation as a result of his criminal soon leaving Forestry after Camp. Youth
Thus, must demonstrate that he was actual Rega, life-qualify jury. the failure to ly prejudiced that situation mirrors supra. In this regard, here Speight, and and our resolution is appellants Rega 1020; at 854 A.2d at Speight, the same. See Rega, also hold Rega Speight, as this held and we Just Court any “by to demonstrate prejudice has failed life-qualification questions,” particular counsel’s failure to ask juror concern ly questioning when “each underwent extensive or her and assured the trial ing ability his to follow law fair that he or be able to render a court she would A.2d at 1021. Rega, verdict and sentence.” impartial on is no relief this claim. therefore due Jury Instructions C. objected that counsel should have
Appellant contends during three of court’s following the trial instructions of trial: penalty phase Now, your you if is life should imprisonment, sentence
[1.] or explains why check the in either C-l C-2 finding which imposing the death sentence and life you’re rejecting sentence. Now, aggravating circumstances are loosely speaking,
[2.] and the make a first things killing about the killer which deserving murder terrible and degree case more circumstances are those penalty, mitigating death while things deserving the case less terrible and less which make of the death penalty. The must in accordance with you impose sentence be
[3.] I and not based on you sympathy, the law as instruct emotion, not based opinion or on prejudice, public impact. victim 11/12/97,
N.T., 151, 49,147. instruc- Appellant recited each to counsel at then evidentiary hearing, tion the PCRA asked any object, whether he had reason to which counsel time, responded, thought each that he there no reason N.T., object, at ended. point Appellant’s inquiry which 10/31/05,at 54-56.
Appellant pleaded has the three of prongs Pierce reviewing challenge jury test. When a to the instruc tions, the entire not charge, merely we consider the individual portions highlighted by appellant. See Commonwealth v. Prosdocimo, (1990). 147, 1273, 525 Pa. A.2d “The 578 1274 trial expressions court is free to use its as as the long own concepts at issue are clearly accurately to the presented Laird, jury.” 629, 346, v. Commonwealth 555 Pa. (1999) Faulkner, 57, 360 v. (citing Commonwealth 595 (1991)). A.2d 28 We turn now to each of chal Appellant’s lenges to the penalty-phase jury instruction. “Rejecting
1. the Death Sentence” Court, acknowledges this in a plurality decision, recently rejected a similar challenge to this instruc Marinelli, tion. Appellant’s Brief at 81 (citing 910 A.2d at Court)). 682-84 (Opinion fact, Announcing Judgment of In he admits that rejected Marinelli “his precise claim.” Id. He nonetheless contends that Marinelli wrongly was decided because it did not consider the Supreme United States Court’s Arizona, holding in v. Ring 536 U.S. 122 S.Ct. 153 (2002), L.Ed.2d or a conduct constitutional of analysis competing instructions.22 disagree We with both of his rea for revisiting sons Marinelli. that, first
We
note
although Marinelli
a plurality
was
decision, a
of
majority
joined
Justices
the holding and reason-
ing of Madame Justice
of
Newman’s resolution Marinelli’s
challenge to the relevant instruction. Mr.
Eakin
Justice
Madame
joined
Justice Baldwin
Madame Justice Newman’s
Court,
Opinion Announcing Judgment
and Mr.
concurred,
Saylor
Justice
expressly
Madame
joining
Justice
inapplicable, despite
states that Marinelli is
acknowl-
edging
“precise
that it
Appellant's
addressed this
claim.’’
Brief at 81.
proceed
assumption
argues
We
apply
on the
that he
does not
Marinelli
wrongly
because it was
decided.
Marinetti, 910
at
resolution of this claim. See
A.2d
Newman’s
J.,
that the Mar-
(Saylor,
concurring).23 Appellant argues
to evaluate the
instructions
plurality
required
inetti
because,
claims,
Supreme
Ring
he
United States
light
that the burden of
for
emphasized
proof
aggravating
Court
at
Brief
81-
factors lies with the Commonwealth.
see, however,
why
required
fail to
this Court was
82. We
of the instruction.
Ring
evaluating
propriety
discuss
held that
Amendment forbids
Ring
The
Court
Sixth
determining
undertaking
jury’s
from
function
judge
a death sen-
aggravating
justifying
circumstances
whether
The
Regardless, Ring espouses: claims dard *38 Thus, excerpt upon the three-sentence which trial repeated in the context of the court’s appears relies that the Com- exacting requirements on the more emphasis attempting prove aggravating to its two momvealth faced circumstances, lenient standards compared relatively to the respect mitigating to his two applicable Appellant with circumstances. added).
Marinelli,
In evaluating
that the Marinetti Court should examined “com have whether instructions,” unconstitutional, one of peting which is renders a death sentence reliance on illegal. Appellant’s Boyde is misplaced. He relies on the specifically following statement from Boyde: instances, sure,
In some to be have held that a we when case is jury submitted on theories the alternative unconstitutionality any requires of the theories that the cases, conviction be set aside. In those a jury clearly is instructed the court that it a may convict defendant on an impermissible legal as as on a theory, proper theory well or theories. it is Although possible guilty that the verdict basis, may have had a it proper equally likely is that the ... verdict rested on an ground, unconstitutional and we have declined to choose such likely possibili- between two ties. omitted).24
Id. at
1190 (quotations
S.Ct.
and citations
However,
instant,
challenged instruction did not clearly
instruct
jury
sentence the defendant
to death on an
Rather,
impermissible legal theory.
surmises
instructing
“explain[]
why you’re rejecting the
death sentence and
imposing
equates
life sentence”
to an
instruction that it may
rejects
return a life sentence
if it
*39
the death sentence.
agree.
We cannot
While Boyde reflects
the sound
principle
jury instructions should not put
appellate
in
position
courts
a
they
where
must determine
whether a
relied on a
jury
proper
illegal
or
basis
guilt,
of
it
does not prevent courts from examining the
of a
propriety
Ultimately,
Boyde
only
single jury
tlie
Court determined that
a
issue,
instruction was at
and therefore found that a “reasonable likeli-
applied
jury
prevented
hood” standard
as to whether the
was
from
considering
mitigation
relevant
evidence.
Id. at
portion instruction Therefore, if the instruction does not entire instruction. basis, to an require jury rely the on unconstitutional clearly a to may then the examine the instruction as whole courts In challenged point of statement. determine the context the fact, at Boyde the that the instruction issue of Court found subject and an erroneous “ambiguous there was therefore to Id. at Appel- 1190. Although interpretation.” S.Ct. ambiguous, claims is not he lant that the instant instruction a of a sentence. argues only implies presumption that it death is, to Thus, subject that it an actuality, arguing he in was death, a sentence of interpretation presuming erroneous Boyde triggers probability” the “reasonable which Court’s test. See id. Marinetti, in question
In
and
the statement
instantly,
why
a
next
the reason
jury
place
structs
to
checkmark
to
entirely
requirement
it
life
This
is
a
sentence.
was
imposing
9711(c)(l)(iv),
mandates that the
consistent with Section
which
if it
least one
jury must return a sentence of death
“finds at
(d)
and no
aggravating
specified
circumstance
subsection
jury unanimously
or if the
finds one
mitigating circumstance
miti
any
more aggravating
outweigh
or
circumstances which
9711(c)(1)(iv).
§
In
gating circumstances.”
Pa.C.S.
instruction,
issue,
jury
context
the entire
instruction
statutorily-
required
a
notation of the
which
written
sentence,
actually
mandated
for
a life
did not
imposing
reason
overwhelming
per
“conflict” with the clear
instructions
taining
heightened
proof
burden of
unanimous votes
death, and
the lower
necessary to
a sentence of
also of
impose
proof
necessary
burden of
and fewer number
votes
find
Marinelli,
2. More Terrible Terrible/Less regard in primary arguments Appellant raises two He first contends “more terrible” instruction. terrible/less that, cannot, definition, terrible,” be “less by that murder wrongly once this decision Marinetti was again, Court’s He also asserts the trial court failed to instruct decided.25 9711(e)(8) mitigator, as to the Section and thus jury properly for on a more failing specific counsel was ineffective insist instruction. There is no merit to either of these claims. reached
Appellant again by asks us revisit the decision instruction, using that the plurality, insisting Marinetti conjunctive disjunctive “and” rather than the “or” factors, describing mitigating jury’s restricted the overall con mitigating sideration of evidence unrelated to the “terrible have, however, ness” of the crime. no merit to this We found exact on numerous Mari argument occasions before and after See, 613-14; e.g., nelli. 927 A.2d at Washington, Common Rios, 583, 790, (2007); v. wealth 591 Pa. 920 A.2d Com Johnson, 563, v. monwealth 572 Pa. 815 A.2d 587-88 (2002); Stevens, Commonwealth v. (1999). issue, argument raises no new on this
and thus no reason to provides prece revisit well-settled rejecting dent his claim. in attempts distinguish nonetheless by contending
stant case from Marinelli and similar cases instruction, "reject majori- 25. Unlike the death” it is unclear whether a ty agreed of Justices with Madame Justice Newman’s evaluation instruction, Saylor’s “more terrible” as Mr. Justice concur- terrible/less ring opinion specifically join provide did not that section or further comment. that the trial court’s failure to instruct the on the Section 9711(e)(8) mitigator, combined with the “more terrible/less instruction, jury’s terrible” narrowed the consideration of miti factors even further. claim gating arguably While his has merit, Appellant cannot demonstrate that he prejudiced *41 by jury the court’s omission. The found in of Appellant favor 9711(e)(8) for the mitigator, despite Appellant’s Section con cerns, it specifically and listed “His Life as the History” Therefore, factor. at 1. if mitigating See Verdict Sheet even in arguing is correct that the trial court impermissi bly narrowed the focus of factors to those mitigating itself, relevant to the murder jury appear would have ignored that instruction his finding family difficult back a ground mitigator. as Because he cannot demonstrate preju dice, he fails to counsel’s prove ineffectiveness. See Base more, Pierce, supra; supra. Sympathy
3. No Appellant’s challenge final to the jury instructions is that they jury any from effect to precluded giving feelings it sympathy may have had for him. He argues while Pennsylvania constitutionally statute forbids “mere sympathy” verdicts, or “absolute mercy” jury may nonetheless consid- “feelings er for the sympathy defendant that arise out of in mitigating presented evidence the case.” Appellant’s 302, 326-27, Brief at 89-90 v. (citing Penry Lynaugh, 492 U.S. (1989) 109 106 (plurality)). S.Ct. L.Ed.2d 256 This claim, Court addressed this exact quoting United States Supreme clarifying Court decision the standard for sympathy instructions:
Further, the United States Supreme Court has also held that an directing instruction to disregard sympathy in its determination not sentencing Eighth does violate the Parks, In Amendment. v. 110 U.S. S.Ct. Saffle (1990), rejected L.Ed.2d 415 the Court the very argument by Appellant set forth here. It explained:
This argument misapprehends the distinction between allowing jury to consider mitigating evidence their guiding consideration. It is no doubt constitutionally if permissible, not constitutionally required, for the State to insist that the individualized assessment of the appro- priateness of the death penalty a moral inquiry into [be] defendant, culpability and not an emotional response to the mitigating evidence. 492-93,
Saffle, 494 at U.S. S.Ct. it 1257. As is well established that a jury instruction not to feelings allow sympathy to influence the sentencing consideration is con stitutionally proper, counsel this case were not ineffective in failing object to such instruction. claim thus fails.
Rios, 920 A.2d 817-18. As Appellant presents no new argument consideration, for our relywe on our holding Rios claim deny his of ineffective counsel.
4. Cumulative Instruction Error Appellant concludes his challenge to counsel’s effectiveness *42 pertaining to the jury by instructions claiming that the cumu- lative effect of the instructions resulted in a prejudicial verdict. provides He no citation in support of his claim and 2119(b). therefore it. Moreover, waives See Pa.R.A.P. be- cause we have found no error in any of the challenged instructions, there upon is no basis which to any find accumu- lation of errors.
D. Penalty Cumulative Error at Phase Finally, Appellant contends that all of his claims pertaining to counsel’s stewardship at the penalty phase of trial cumula tively impacted the reliability of those proceedings. We have long held that “no number of failed claims may collectively warrant relief if they fail to do so individually.” Common 215, (Pa.2007) wealth v. Rainey, 928 A.2d 245 (citing Common (James) Williams, Pa.553, wealth v. 586 523, 896 A.2d 548 (2006), denied,-U.S.-, cert. 1253, 127 S.Ct. 167 L.Ed.2d (2007); 88 565, Commonwealth v. Blystone, 555 Pa. 725 A.2d 1197, (1999), 1208-09 Williams, (Craig) Commonwealth v. 532 Pa.265, (1992)). 716, 615 A.2d
III. Conclusion reasons, for affirm the above-stated we all of Accordingly, Prothonotary the of the PCRA court. We direct order of this case to complete this to transmit record Court 9711(i). § Governor, Pa.C.S. pursuant relinquished. Jurisdiction Order affirmed. CASTILLE, EAKIN and BAER and Justice
Justice join opinion. BALDWIN a concurring opinion. CAPPY files
Chief Justice
in the
concurs
result.
Justice SAYLOR
concurring.
Chief
CAPPY
Justice
for
I
the reasons
majority opinion
concur in
result of
Common
in
fully
my concurring opinion
set forth more
Marinelli,
(2006).
wealth v.
Pa.
689-90
out,
any
this
does not involve
majority points
As the
case
Thus,
there is no need
“layered” claims
ineffectiveness.
analyzing “layered”
the case
claims
consider
law
Pierce,
v.
Commonwealth
analysis
in this case
controlled
is
(1987).
reason,
this
I respect