*1
аround
and obvious
courts’ efforts to work
overt
appellate
here,
Simpson
deficiencies,
my
I
comments from
incorporate
id.
See
in the
case.
companion
as
Anthony Appellant. Supreme Pennsylvania. Court of
Submitted June 2012. Aug. Decided *11 Silverman, Daniel for Esq., Anthony Reid. Burns,
Hugh Willcox, J. Esq., Philadelphia, Suzan Elena Office, Esq., Philadelphia Attorney’s District Amy Zapp, Esq., General, PA Attorney Office of Pennsyl- Commonwealth of vania. CASTILLE, C.J., SAYLOR, EAKIN, BAER,
BEFORE: *12 TODD, McCAFFERY, STEVENS, JJ.
OPINION Justice TODD.
This is a capital appeal from the order of the Court Pleas of Philadelphia County Common An- denying Appellant thony petition Reid’s for relief under the Post Conviction (“PCRA”), §§ 9541-9546.1 For 42 Pa.C.S.A. Relief Act follow, reasons that we affirm. Background
I. 7, 1989, boys was group of March early evening In the Philadelphia neighbor- cars in a throwing passing snowballs by a vehicle driven Appel- hood. of the snowballs struck One lant, “Tone-Bey.” was also known as “Tone” or PCRA who 1925(a) (“PCRA Opinion, Rule Supplemental Court 2/14/11 vehicle, and he at 1. his Opinion”), Appellant stopped Court scattered, boys exited the car. The passengers and his two McKay two Daniel and Scott Appellant bystanders, and asked Keenan, the snowballs. The they throwing if were involved involvement, and, his as reached bystanders Appellant denied none jacket, hope he ‘You better was replied hand inside then said Appellant Court at 7. your family.” Opinion one of them.” Id. A “Well, get to his let’s at least passengers, what bystander, Coggins, realizing Appellant third Walter not statement, drive around suggested Appellant meant According Coggins, corner to one.” his discussion “get minutes. N.T. with lasted to 3 Appellant approximately Trial, 8/7/90, at 808. As and his drove Appellant passengers block, throwing some of the who had been boys around the into the middle of the street on stop sign snowballs pulled reached the driving. Appellant which was When onto the and gunfire he drove the car sidewalk stop sign, side of the vehicle. Michael passenger from the erupted Waters, old, fatally sixteen wounded when years who was by which before this Court is a Motion to Correct the Record 1. Also pleadings, previously-filed seeks to include in the record four inadvertently Specifically, which he contends were omitted. (1) copies Appellant's Supple- supplement with of: seeks to the record 1999; Petition, 18, (2) Appellant’s April mental Amended PCRA dated Response Motion to Dismiss and Consolidated to Commonwealth’s Evidentiary Hearing Summary for Grant of Relief and for an Motions 2002; PCRA, (3) July Appellant's Motion for under dated 1, 2005; (4) Recusal, Sept. Appellant’s Motion for Continu- dated and Evidentiary Hearing, Request Specific Schedule for dated ance and objected Sept. has not 2005. As the Commonwealth record, light protracted of the motion to correct involving history related case the same voluminous of this case and a record, Appellant's record. grant motion to correct the we *13 166 his chest. Appel-
a bullet struck him in the back and exited away. lant and his then drove Two 10-millimeter passengers scene, at the and one deformed .38 casings shell were found from a window frame. At nearby caliber bullet was recovered bullet, the another .38 caliber which was hospital, undamaged fell from apparently body, and had not entered Waters’ Wa- jacket. ters’ later, incident, a days separate Appellant
Six a used 10- incident, millimeter to kill Neal In this handgun Wilkinson. Bowman, and a Kevin asked Appellant companion, Wilkinson Darryl and Woods to them to collect a debt. accompany When Wilkinson and Woods ascended the stairs to the resi- debtor, dence of the Bowman shot them both with a alleged shotgun, Appellant handgun. and then shot both men with a gave police Woods survived and a statement naming Appellant as one of the casings two shooters. Ten-millimeter shell found at the scene of the Wilkinson murder were determined to have been fired from gun the same that was used in the Waters murder six earlier. days
In August
was tried for the
Appellant
Waters murder
Sabo,
before the Honorable Albert F.
represented by
and was
Bruno,
trial,
James
At
Esquire.2
Commonwealth intro-
duced ballistics evidence from both the Waters and Wilkinson
murders in an attempt to establish that the same
was
weapon
used to fire shots in both incidents.
a
Appellant raised
misidentification,
defense of
jury
but the
convicted Appellant
murder,
of first-degree
criminal
of an
conspiracy, possession
crime,
instrument of
carrying
and
a firearm without a license.
Following
penalty
found
phase,
jury
aggravating
two
specifically, that
created a
grave
circumstances—
victim,
risk of death to individuals other than the
42 Pa.C.S.A.
9711(d)(7),
§
and
significant history
had
of violent
felonies,
9711(d)(9).
§
jury
Pa.C.S.A.
The
found no miti-
circumstances,3
gating
required
and so was
to return a sen-
case,
Appellant's
having
2. This was
second trial in this
the first
resulted
trial, Appellant
represented by Harry
in a mistrial. At the initial
was
mistrial,
Seay, Esquire.
Following
Attorney Seay
withdrew as
counsel,
Attorney
appointed.
Bruno was
following mitigating
asked the
consider
circum-
age
(Appellant
years
stances:
of the
defendant
was
old at the
6, 1990,
formally
tence of death.
December
the trial court
On
conviction,
murder
a death sentence on the
imposed
years
consecutive
sentence of 10-20
aggregate
imprisonment
remaining
appeal, Appellant
on the
offenses.4 On direct
*14
27,
represented by
Fitzpatrick, Esquire.5
May
F. Emmett
On
1993, this
affirmed
of sentence.
Appellant’s judgment
Court
(1993).
Reid,
508,
v.
Commonwealth
533 Pa.
II.
relief,
In
the denial of
we examine
reviеwing
PCRA
is “supported by
whether
PCRA court’s determination
v.
Rainey,
record and free of
error.”
legal
(2007).
67,
215,
593 Pa.
To be entitled to PCRA
relief,
establish,
appellant
by
an
must
of the
preponderance
evidence, that his conviction or sentence
one or
resulted from
9543(a)(2);
§
more of the enumerated errors in 42 Pa.C.S.A.
waived,
id.
his claims have not been
or
previously litigated
9543(a)(3);
§
litigate
and the failure to
the issue
to or
prior
trial or on
during
appeal
direct
could not have been the result
rational,
Id.
of any
strategic or tactical decision
counsel.
9543(a)(4).
§
An issue is
if
previously litigated
highest
“the
court in
appellate
appellant]
which
could have had review
[the
as a matter of right has ruled on the merits of the issue.” Id.
9544(a)(2).
§
An issue is waived if
“could have
appellant
trial,
trial,
raised it but failed to do
...
appeal
so before
9544(b).
Id.
prior
§
or
state
postconviction proceeding.”
In order
to obtain relief on a claim of counsel
ineffectiveness, a
must
petitioner
satisfy
perform
v.
Washington,
Strickland
ance and
test set forth in
prejudice
(1984).
In
466 U.S.
104 S.Ct.
dice as a result
there is a reasonable
that the result of the
probability
whether
been different.
v.
would have
Commonwealth
proceeding
(2001).
Pierce,
203,
186, 786 A.2d
213
Counsel is
567 Pa.
assistance, and, if a claim
to have rendered effective
presumed
test,
any required
fails under
element of the Strickland
may
court
dismiss the claim on that basis. Commonwealth v.
(2010).
Ali,
282,
71, 10
608 Pa.
A.3d
291
at the time
filed his direct
in
Finally,
appeal,
1993, the
law
that an
raise
prevailing
required
appellant
claims of
of trial counsel at the first opportuni
ineffectiveness
counsel,
of new
of waiver.
v.
ty
pain
See Commonwealth
Hubbard,
259,
(1977), abrogated by
472 Pa.
Succinctly petitioner plead must his PCRA counsel, petition prior alleged that his whose ineffectiveness issue, is at was ineffective the claim failing raise who him ineffective in preceded taking counsel or addition, In omitting petitioner some action. must pres- memoranda, ent or court argument, briefs other on the three prongs layer of the Pierce test as to eаch relevant If one representation.... any prongs as to trial established, counsel’s ineffectiveness is not then necessarily the claim of if appellate Only counsel’s ineffectiveness fails. all three as to the claim of trial counsel’s ineffective- prongs established, are prongs ness do and 3 of the Pierce test as to the claim of counsel’s ineffectiveness have rele- appellate
171 vanee, to whether requiring appellate determination as had a reasonable for his course of conduct in counsel basis failing to raise a meritorious claim of trial counsel’s ineffec- 2) (prong petitioner prejudiced by tiveness and whether counsel’s course of conduct in not appellate raising 3). meritorious claim of trial counsel’s ineffectiveness (prong 832 A.2d matter, brief,
As a preliminary throughout we note its Commonwealth contends that has waived many of his ineffectiveness claims by failing properly to in develop appellate Amended PCRA Petition his claims of counsel’s ineffectiveness, by relying boilerplate language, with little standard, or no discussion of the applicable or simply appending a statement alleging appellate counsel’s ineffective- However, the caption ness to of his for the argument. follow- reasons, ing we decline to hold claims waived on this where he basis to assert attempted appellate counsel’s ineffectiveness in his Amended PCRA Petition. claims, regard nearly
With all of his in Appellant asserted claim, his Amended PCRA Petition a albeit in some instances one, a cursory appellate counsel was ineffective. Appel- upon many lant elaborated of those claims in his brief to this Walker, Court. In v. Pa. 1 (2011), we recognized continuing confusion as to the McGill, where, requirements and as impact particularly here, McGill, the appellant’s petition prior PCRA was filed but the appellate briefs were filed after also McGill. We noted the existence of cases where the post -McGill PCRA court failed to allow for an petition, amendment of PCRA an important safeguard in the Rules of Criminal contemplated McGill, Procedure and emphasized McGill. See A.2d (Pa.R.Crim.P. at 1024 905 “indicates the desire of this Court to provide petitioners legitimate opportunity PCRA with a present their claims to the court in a PCRA manner sufficient to avoid dismissal due to a correctable defect in claim pleading Thus, or presentation.”). we stated Walker: the complexities posed by layered Given these ineffective- claims, ness we now practice conclude the better is not to counsel’s ineffectiveness on the reject appellate claims of brief if appellate grounds inadequate development mirror those in the the deficiencies in the brief court invoked these deficiencies unless the PCRA pleadings, opportunity *18 for its decision and afforded an as the basis amend. omitted).
Walker,
(emphasis
In its the PCRA court opinion, case, filed in this and observed: supplements being request- no case is there indication of a court any [I]n to file late grant granting permission ed to or otherwise ones, let alone petitions establishing or to submit amended therefore be time frame within which to do so. It should of his explain why any incumbent the defendant upon be considered in the first place. various submissions should several status We realize of course that there have been cases, of both and outcome of most listings proceedings do appear possible of which not of record. It is may court have entertained and extended off-the-record accommodations, but, case, if that were the the defendant should have clarified those omissions utilizing proce- establishing dures for a reconstructed record. Not having so, done the black letter law would seem to an require however, outright Again, dismissal of the at issue. petitions in these recalling liberality pro- Court’s inclination to *19 will, course, this court of address all of the ceedings, issues submissions, by particular raised limited to those issues addressed matters com- defendant’s statements of plained appeal. of on Opinion
PCRA Court at 17. in Notwithstanding indulgence addressing the PCRA court’s claims, Appellant’s agree upon all of we that it was incumbent to in Appellant identify supplemental where the record the petitions were authorized to reconstruct the record if and/or provided such authorization was off the record. has not done so. This has condemned the unauthorized Court and filing supplements petitions, amendments subject held that claims raised in such are supplements Elliott, waiver. See Commonwealth v. 236, 622 Pa. 80 A.3d (2013); 1, Roney, Commonwealth v. 415, 430 622 Pa. Porter, v. 595, (2013); 510, 615-16 613 Pa. 35 (2012). 4, majority A.3d 12 Accordingly, although were, fact, claims raised in his Amended PCRA Appellant’s claims, several of his which are discussed further petition, below, unautho- apparently were raised for the first time
174 therefore, claims we find those supplemental petitions; rized to be waived. claims, which we have divided Appellant’s now consider
We claims, and, instances, in some penalty-phase into guilt- disposition. reordered for ease of
A.
Phase
Guilt
claim
1. Batson
argues
deny-
first
PCRA court erred
claim that the
ing
prosecu-
his motion for relief based on his
tion exercised its
strikes on the basis of race and
peremptory
79,
Kentucky,
in violation of Batson v.
106
gender
U.S.
(1986), and, further,
1712,
that prior
In held Supreme United States Court jurors that a on the prosecutor’s challenge potential solely Equal basis of race violates the Protection Clause of the United States Constitution. 476 U.S. S.Ct. violation, In order to demonstrate a an appellant Batson must a prima showing make that the has exercised prosecutor facie on the peremptory challenges basis of race. Id. at succeeds, S.Ct. 1712. If the the burden shifts to the appellant to articulate a race-neutral for the prosecutor explanation 97, 106 peremptory challenges. Finally, Id. at S.Ct. 1712. trial court must determine whether the defendant has carried *20 98, 106 his burden of proving purposeful discrimination. Id. 1712. S.Ct.
Where, here, only as a Batson claim arises in the counsel, allegation context of an of ineffectiveness of an appel lant is not entitled to the benefit of the burden of persuasion Appellant petition. raised this claim in his Amended PCRA
175 as to whether there is a race-neutral for the explanation use of prosecutor’s peremptory challenges. Commonwealth v. Uderra, (2004). 492, 74, Rather, 580 Pa. 862 A.2d 86 the appellant throughout bears the burden the and must inquiry “actual, demonstrate purposeful by prepon- discrimination evidence,” derance of the as well as meeting “performance standard for counsel’s ineffec- prejudice” demonstrating 87, tiveness discussed above. Id. at 106 1712. To S.Ct. burden, satisfy appellant an a Batson claim must raising make a specifically record the race of all the identifying removed the race venirepersons by prosecution, of the served, jurors jurors who and the race of the acceptable to the by Commonwealth who were stricken the defense. Common- v. Sepulveda, wealth 618 Pa. 1132 n. 23 (2012). above, case,
As noted in the instant Appellant did not raise a However, Batson claim at trial or on direct appeal. according case, Appellant, to voir dire in the during instant his counsel challenged the prosecutor’s prosecu- exercise of seven of the eight peremptory tion’s first strikes African Ameri- against objection, *21 176 contrast, 6 accepted By prosecutor
Hispanic.
blacks,
whites,
1
whose race is listed as other.
juror
18
to Com-
(quoting Appellant’s Response
Brief at 10
Appellant’s
14).14
Dismiss, 6/12/02, at
monwealth’s Motion to
grossly disproportion-
of strikes is
“pattern
contends that the
Court,
ate,” and,
he alleges
following
in his brief to this
“the
conceded that
proffer,
Commonwealth
on his Batson claim.” Id. at
evidentiary hearing
entitled to an
dated
2005
original) (referencing
July
letter
(emphasis
Judge Lineberger).
ADA Michelle
from
Seidner
review,
no
in the
Upon
we find
error
PCRA
funds,
discovery,
court’s denial of
for
an
Appellant’s request
relief
on his
claim.
evidentiary hearing, and
based
Batson
request
evidentiary hearing,
for an
respect Appellant’s
With
evidentiary hearing
the decision whether to
an
is within
grant
the discretion of the
court and will not be overturned
PCRA
absent an abuse of discretion.
Accordingly, evidentiary an Batson claim for hearing Appellant’s June 2005. How- ever, 8, 2005, on June defense counsel advised the court Appellant correctly notes that the PCRA court failed to address his and, instead, case, Batson claim in this focused on the claim Batson he However, appeal raised in his as No. CAP. we address the merits claim, Appellant's Batson we need not discuss the PCRA court’s regard. omission this (1) hearing; he was unable to attend the scheduled letter that (2) him to attend the necessary he did not believe it was if intended to dismiss the simply the court hearing (3) if the court did not intend to petition; Amended PCRA dismiss the he was the matters be relisted petition, requesting *22 Accordingly, so that he could the PCRA court relist- appear. 21, ed the matter for 2005. In a letter dated June July 2005, however, objected sug- defense counsel to the hearing, alia, gesting, inter that it was unfair for the Commonwealth to agree to an when it maintained evidentiary hearing previously warranted, that no was and if the court intended hearing an recuse evidentiary hearing, judge conduct should himself. Counsel further averred: cases,
If anything the Court does other than dismiss these we need the set no will Court aside fewer than three consecutive weeks for these In addi- protracted hearings. tion, I will need to substantial funds and file request expert motions, motions, various additional including discovery properly order to our case. present Fifth, if the Court is inclined to accede to the Common- position, wealth’s new then we intend to file a formal motion for sanctions to address its unprofessional conduct. These should include an precluding Order the Commonwealth from cross-examining witnesses, defense from any presenting any witnesses, and from making any argument. written or oral ... continue to maintain our long-held position [W]e evidentiary the issues we raised deserve an but we hearing, want an if it only evidentiary hearing can be fair. 6/21/05,
Letter from Daniel Judge Lineberger, Silverman 19, 2005, August On the PCRA court issued an order recusal, denying Appellant’s scheduling motion for and alia, inter 15, 2005, of, hearing for on the issues September Appellant’s Batson claim and his claim that trial counsel was failing mitigation testimony ineffective for from present doctor Appellant’s family penalty phase and members at the 31, 2005, counsel Appellant’s August Appellant’s trial. On filed another motion for continuance to have the seeking motion, Before on the
hearing acting Judge rescheduled. retired, and, case, in December the instant Lineberger case, with the to the Honorable along Lisby assigned Mazzola, following which time filed addi- William funds, discovery tional motions for expert alleging claims, discovered Batson all of which newly Judge Mazzola denied. set forth the above procedural history
We to demonstrate evidentiary was offered an on his hearing claim, Batson but frustrated the repeatedly PCRA court’s to conduct the attempt hearing. Accordingly, we find he cannot now that he complain improperly a'hearing. was denied Thus, we find no merit to claim that the PCRA improperly court denied him an evidentiary hearing.
Likewise, reject Appellant’s we claim that court improperly request discovery. denied his Discovery in death penalty proceedings permissi collateral is court, *23 only upon only ble leave of and for good cause shown. 902(E)(2). Pa.R.Crim.P. We review a PCRA court’s denial of for an abuse discovery of discretion. Commonwealth v. Satta zahn, (2008). 648, 640, 597 Pa. 952 A.2d 662 In discovery request, Appellant sought documents in a civil produced suit by filed Bruce Sagel against Philadelphia in Magazine June 1997 after the magazine published comments Sagel was al leged selection, to have made his 1990 lecture during jury purportedly wherein he advocated the use of racial stereo lawsuit, in selection. In types the which was withdrawn 1997, in December Sagel claimed that the magazine’s publica tion of the alleged comments he was to have made defamed him. Appellant requested copies of Answers to Sagel’s Inter rogatories Request Documents, for Production of as well as Sagel’s deposition transcript, to the In pertaining lawsuit. addition, Appellant sought copies of lecture Sagel’s notes. See Appellant’s Motion for Discovery, According to Ap 2/21/06. pellant, the documents he sought necessary were to enable him to meet his burden of establishing prima case of facie However, discrimination under Batson. this Court has deter mined that information relating to the lecture notes Sagel is
179 discrimination. required purposeful to establish the insufficient 1145 n. v. 601 Pa. Ligons, Commonwealth (2009). Thus, discovery unsup- motion for Appellant’s 19 cause, err in the court did not good PCRA ported by motion. denying Appellant’s reason, of Appel- the court’s denial
For the same Professor experts, including lant’s for funds to retain request Baldus, who conducted a of study regarding practice David from the racially discriminatory jury Philadelphia selection 1990’s, claim testify support 1980’sinto the of his Batson was not erroneous. the merits of
Finally,
regard
Appellant’s
with
claim,
hold that he is not entitled to relief. As
Batson
we
above,
prosecutor
noted
contends that the
struck 15
jurors,
only
21
African American
but struck
4 of
potential
jurors,
Hispanic juror, resulting
and 1
potential Caucasian
“grossly disproрortionate” pattern
strikes.
Initially,
by
Brief at 11.
contends
jurors
to make a record of the race of
who
failing
potential
Commonwealth, but
acceptable
were
to the
excluded
defense,
prima
is unable to establish even a
facie
case of discrimination. The fact that the
struck
prosecutor
Caucasians,
itself,
African
than
in and of
is
more
Americans
insufficient to demonstrate
discrimination when
purposeful
Ligons,
of the circumstances.
considering
totality
Moreover,
identify
A.2d at 1144.
as
fails to
an
record
composition
jury,
adequate
racial
of his
we lack
Sepulveda,
which to evaluate his Batson claim. See
upon
information
(noting
required
A.3d at 1132 n. 23
that we have
jurors
challenged by
race of
potential
peremptorily
about
*24
Commonwealth,
jurors
the race of
to the
potential
acceptable
defense,
challenged by
but
the
peremptorily
selected).
the
of the
we
jury
Accordingly,
composition
purposeful
conclude
has failed to establish
discrimi
preemptory
on the
use of
strikes.
prosecutor’s
nation based
Nevertheless,
in further
of his contention
Appellant,
support
discrimination,
in
prosecution engaged
purposeful
that
the
in
of a culture of discrimination
oft-asserted claim
makes an
1980 and
between
Philadelphia
Attorney’s
the
District
Office
an
Pro-
analysis by
asserts that
Specifically, Appellant
1996.
Roger Bang,
prosecutor
that
fessor Baldus demonstrates
likely
two times more
case,
to strike
in
was “over
Appellant’s
was not black.”
to one who
person compared
a black venire
also
(emphasis original). Appellant
Brief at 12-13
Appellant’s
Baldus documents a
study by
contends
that a
Professor
during
in
selection
jury
of racial discrimination
pattern
argues
further
that
years
through
by
selection
training tape
prepared
now infamous 1987
Attorney
Assistant District
Jack McMa-
Philadelphia
former
District
Philadelphia
hon
an inference” that
“supports
discrimination,
as do
Attorneys’
engaged
purposeful
Office
notes taken
a
lecture for
during
training
prosecutors
lecture
in 1990. Id. at 13-14.
Sagel
delivered
Bruce
prosecu-
This
has held that evidence that a
previously
Court
tor was found to have violated Batson
case is
prior
a
prosecutor
impermissibly
insufficient to demonstrate that the
Ligons,
jurors
struck
in a later case.
181 him relief crimination, denying did not err the PCRA court claim. on his Batson request a Kloiber instruction
2. Failure to Next, that trial counsel was contends Appellant instruction15 re for to a Kloiber failing request ineffective Keenan, all of whom testified at Coggins, garding McKay, threatened as the individual who Appellant trial and identified snowballs. throwing one of the who had been “get” boys to ineffective that counsel was Appellant alleges appellate further charge A Kloiber is appeal.16 to raise this issue failing regarding are concerns particular where there appropriate identification, oppor did not have an such as where a witness defendant, on the identi tunity clearly equivocated view defendant, an identifi problem making fication of the or had a Ali, 71,10 Pa. A.3d cation in the Commonwealth v. 608 past. (2010). eyewitness “protracted an has had Where consistently of the defendant and and unobstructed views” and at “throughout investigation identified the defendant trial,” there is no need for a Kloiber instruction. Id. was ineffec first contends that trial counsel charge respect
tive for a Kloiber with failing request viewed a testimony McKay McKay identification because only after the did photo arrays shooting, “[n]ot series of someone else.” identify he fail to he identified Appellant, 686-87). Trial, 8/6/90, at (citing Brief at 20 N.T. McKay identify that denied emphasizes The Commonwealth as the who exited ing person someone other than throwers; get threatened to one of the snowball the car and rather, stated viewing photo array, McKay simply when something “looked like the man photographs that one Brief at 21. The Com but it wasn’t him.” Commonwealth’s statement that one of McKay’s monwealth further notes that “looked like the driver was cor photographs something” McKay when made present roborated a detective who the statement. Id. Kloiber, (1954). v. 378 Pa.
15. Commonwealth petition. Amended PCRA raised this claim in his court, in rejecting Appellant’s argument The PCRA a Kloiber failing request trial counsel was ineffective for noted that McKay’s testimony, Appel- instruction regarding identify not failed to allegation McKay only Appel- lant’s lant, else, mischaracterization,” in but identified someone “is a *26 (1) was not included in the Appellant’s photograph photo that (2) 1989; 21, array McKay McKay, shown to on March array, identify anyone the did not as the viewing photo when one “looked perpetrator, but rather stated that individual it wasn’t him.” something like the man but PCRA Court at 37. Opinion the court’s conclusions. supports McKay
The record 8, testified at trial that he was shown a on March photo array (the after the several additional day shooting); photo 1989; arrays photo array May on March and another in Trial, 8/6/90, McKay 1989. N.T. at 682-87. acknowledged identify that he did not from the he was Appellant photos March Appellant’s shown on March 8 or but first identified array May from the he was shown in 1989. photograph photo 682-83, however, Id. at the Notably, 687.17 assistant district trial attorney Appellant’s photograph advised the court that was contained in one shown to the only photo arrays of addition, witnesses. Id. at 687. In Detective Paul Raley testified that was “never” Appellant’s рhotograph included of the any photo arrays prior shown to witnesses to the time murder, became a in another suspect which was Trial, 8/7/90, early part April 1989. N.T. at 854-855. Thus, the evidence demonstrates that photograph photo arrays, was not contained in the March 21 or in any photo arrays prior thereto.18 McKay Appellant during lineup
17. added that he identified on Janu- Trial, 8/6/90, ary 1990. N.T. at 688. During questioning Raley, Paul of Detective the trial court recognized misleading questioning nature of defense counsel's re- garding photo arrays, particular, photo arrays the various shown 21, 1989, McKay to both and Keenan on March and addressed defense counsel as follows: see, brought you brought you you up, pictures up, Since it these you give everybody impression picture this defendant’s identifica- McKay’s purported with Additionally, regard arrays, McKay 21 photo from the March tion photograph] him out. I said pick [one testified that he “didn’t Id. at 686. like the man but it wasn’t him.” something looked when asked Raley McKay’s testimony; Detective corroborated Appellant’s photo whether McKay picked on cross-examination 21, 1989, on March arrays from the he was shown photo “No, no. entirely right, [he] not What Raley replied Detective looks at a and said this photographs did was looked [he] N.T. guy night.” like the that was involved something Trial, 8/7/90, Thus, for a at 828-29. there was no basis cannot McKay, Kloiber instruction and trial counsel regarding deemed ineffective for one. failing request be trial counsel was ineffec next contends that instruction failing request regarding tive for a Kloiber from a Coggins identify Appellant because failed Coggins array Raley. Coggins he was shown Detective photo one week approximately testified that he was first interviewed *27 incident, at photographs after the and that he was shown some time,19 identify Appellant photo that but that he didn’t from time, at that or at time thereafter. Id. at 811-12. graphs any did, however, hearing at a Coggins identify Appellant at trial. again that failed to acknowledges Coggins
The Commonwealth he was “from the hundreds identify Appellant’s photograph however, him in court.” identify shown. He did Common- there, may why displays. very It well not have been that’s in those identify along. they him. I said this all didn’t doing. objecting— you’re He’s not You have to be careful what properly. question you’re phrasing questions The should be not looked, they they picture in when failed to was this defendant’s there Sure, identify you pictures and not identify. can show a lot of anybody picture's Now Commonwealth [the because his not there. trying picture come in until later on. to show his didn’t is] reiterated, Trial, 8/7/90, bring "to out at 840. The trial court later N.T. shown, being nobody whether photographs ever tells us about a lot of there,” photo to which the assistant district or not the defendant’s was attorney replied, Id. at 846-47. “It was not.” previously, Appellant's photograph would not have 19. As discussed photo array Coggins week after the included in a shown to one been incident. that, Brief at 22. The further offers wealth’s “effectively highlighted in of the fact that counsel at trial light and, identification of Coggins’ Appellant, the weakness” and Keenan unequivocal testimony McKay because of the the individual who out of the car stepped was snowballs, failure to group throwing any and shouted at the Kloiber instruction give regarding Coggins “meaning- less.” Id. at 23.
The court failed to iden- acknowledged Coggins tify array, from a but noted that the record photo fact, was, Appellant’s picture did not indicate whether group photographs Coggins included in the was shown. Opinion PCRA Court at 38. The PCRA court thus concluded any “failed to establish real inconsistencies in the testimony, any witnesses’ let that could be considered [alone] to be inconsistent to the degree require that would a caution- Id. We conclude the PCRA court did not err ary instruction.” in rejecting Appellant’s ineffectiveness claim regarding Cog- gins, slightly albeit for different reasons. Raley point,”
Detective testified “at one around the was, fact, early part of shown a April Coggins photo Trial, 8/7/90, array containing Appellant’s N.T. photograph. cross-examination, at 855. On Coggins candidly admitted that, although police showed him “a few he told pictures,” not, police he “wasn’t sure if it was him or I wouldn’t want to Id. at 815.20 pick wrong person.” Coggins further testi- fied, however, that he was certain of his identification of Appellant at trial and because he during prior hearing “held a conversation I Appellant]. [with didn’t hold a conversation Id. Indeed, trial, with a picture.” the assistant district attorney Raley asked Detective “what if did Mr. anything *28 that he to Coggins say had see or do before he could make an identification,” and the detective “Each time he was replied: photo spread shown a he said I couldn’t make —he couldn’t make an identification. He T him in kept insisting got to see ” Id. at (“Mr. 838-39; that, person.’ 856 indicated Coggins Coggins despite request by police, also testified at trial he Trial, 8/7/90, up” lineup. never "showed for a N.T. at 814.
185 him he wanted to see every photographs, after time I showed in person.”). him the need for a Kloiber case law makes clear
Our identify to the ability instruction focuses on the of a witness Fisher, 105, Pa. 813 defendant. See Commonwealth v. (2002) 761, (opinion announcing judgment A.2d 770-71 court) based on petitioner no relief to PCRA (providing appeal conclusions Kloiber instruction on direct litigated witness, to failed to prior shooting, where who knew defendant identify at due to fear that identify pre-trial line-up defendant him ing endanger family); would her and her (1991) Lee, (finding v. Pa.Super. identifying Kloiber instruction where fear of inappropriate identification); equated defendant cannot be to failure to make Ali, 10 (“Any perceived A.3d at 304 weaknesses N.M’s to testimony years, attributable her tender the circumstances matter, subject ability of the horrific and her experience, to recall as credibility details were matters of for decide; factfinder to those undermine but issues did not ability identify appellant N.M.’s actual to time physical murder, of the so as to identifica place trigger special line of testimony underlying tion concerns the Kloiber deci sions.”). testimony Coggins
Based on the above-recounted failure Raley, Coggins’ pick Appel- Detective we conclude to photo photo array lant’s from the he was shown was not based so, but, rather, inability unwillingness on his to do identify array making from a for fear of photo preference in-person mistake and his for an identification. Accordingly, there was no basis for a Kloiber instruction with Coggins, and trial counsel cannot bе deemed inef- respect fective for one. having request failed
Finally, Appellant alleges trial counsel was ineffective
concerning
a Kloiber instruction
Keenan
failing
request
because “Keenan testified at trial that it was
who
someone,”
out of the car and threatened to kill
but
got
at the line-
“Keenan identified someone other than
*29
case, in
Appel-
held in this
which
up
procedure
identification
someone
lant
and that “Keenan also identified
participated”
when he viewed the
ar-
photographic
other than
Brief at 20.
rays.” Appellant’s
Commonwealth, however,
The
that “Keenan
emphasizes
repeatedly
[Appellant], helped prepare
composite
identified
(after
sketch, picked
[Appellant’s] photograph
viewing
out
photos
[Appellant]),
that did not include
approximately
identification,
he
told the detective that
was 100% sure of his
at a
[Appellant]
lineup,
identified
and testified at trial that he
was
the man he had
absolutely positive
[Appellant] was
seen.” Commonwealth’s Brief at 22. The Commonwealth
further
that Keenan
he
explains
immediately recog-
testified
lineup,
“momentarily
nized
but
what
forgot
number
was
He told the
[Appellant]
holding.
detective that
he
person
recognized
believed
he
was closest to the
end,
number,
and then recalled the
correctly identifying [Ap-
testimony.” Id21 The
the detective corroborated this
pellant];
Commonwealth also
assertion that
disputes Appellant’s
Keen-
an identified someone
photograph, noting
else’s
that Keenan
concluding
In
Appellant,
that Keenan misidentified
the dissent cites
21.
testimony
Wynn,
the trial
of Detective William
who conducted the
lineup
present,
in which
was
and who testified that he would
have made a
note
his records if Keenan had tried to correct his
238-42,
Dissenting Opinion
"misidentification.”
at
In claim was ineffec- rejecting Appellant’s that trial counsel Keenan, tive for as to failing request Kloiber instruction the PCRA court observed that Keenan “testified that he *30 the defendant in the he recognized lineup, simply, but out of nervousness, the the gave police wrong person, number of the actually anyone and testified that he didn’t in the recognize photos.” Opinion PCRA Court at 38. The court that, further noted the trial court had the jury instructed where a witness gave testimony at trial that was inconsistent with a statement or prior testimony given police, to it was for which, statement, the jury to determine if any accept as true. Id. at 39. In convicting Appellant of first-degree murder, statements, the jury obviously credited the witnesses’ Keenan’s, that including Appellant was the shooter. Appel- maintains, however, lant that a general jury instruction on does not credibility satisfy of Kloiber. requirements review, Upon we with the agree PCRA court’s determina- tion that no Kloiber instruction was warranted with regard Keenan. Keenan testified trial that he was shown photo arrays day 21; after the shooting; April on March and on 29. Keenan confirmed that he first identified Appellant’s 29, photo photo arrays from the he was shown on April Id. at 801. As discussed regard McKay, above with evidence demonstrates that Appellant’s was not photograph included the March 8 or March 21 photo arrays. Further- more, as with McKay, Raley Detective testified that Keenan identify did not from the March 21 photo array, but simply indicated that one individual resembled the person Keenan saw exit his vehicle on the of the incident. night See Trial, 8/7/90, N.T. at 828-29.
Moreover, although Keenan have had recall- may difficulty ing Appellant’s placement in the we cannot lineup, conclude difficulty identifying that Keenan had as the driver of the vehicle who threatened get boys one of the who were Kloiber, throwing snowballs. supra. acknowledge See We in rejecting Appellant’s Kloiber claim as to Keenan’s 188 during lineup, the PCRA identifying Appellant
error in Keenan’s for the dis- necessarily accepted explanation court hearing a holding identification without crepancy determinations are credibility. Generally, credibility Keenan’s court, court following for the trial or the PCRA reserved Thus, the matter to the PCRA we could remand hearing. credibility. Keenan’s hearing expressly regarding court for a however, case, we are satisfied that a remand is In the instant This has sanctioned the dismissal unnecessary. Court credibility implausibility involve “in light claims which from the record.” Com- existing based on conclusions drawn 1110, Gibson, 402, v. 597 Pa. 1139 n. monwealth (2008). Small, Pa. See also v. (2009). A.2d 559-61 Commonwealth, Appel-
As noted Keenan observed lant out of his car from a few feet Keenan get away. helped sketch, out prepare composite picked Appel- police array lant’s from the sole that contained photograph photo *31 photograph, stating he was 100% sure of his Appellant’s Moreover, identification. Keenan was cross-exam- thoroughly his the regarding identifying Appellant by ined mistake Thus, case, number the in this we wrong during lineup. conclude a remand for an determination express credibility by necessary, Appellant’s the PCRA court is not and we hold ineffectiveness claim the absence of a Kloiber in- regarding struction as to Keenan fails. by
3. Admission of statements made Woods next that the trial court erred in Appellant argues Commonwealth, objection by the over an defense allowing counsel, Woods, to introduce at trial stаtements made the surviving shooting victim the in which Wilkinson was during killed, while Woods was in the and that hospital, appellate failing properly litigate counsel was ineffective for the issue on direct in one of the appeal. According Appellant, statements, told that involved in police “Appellant Woods was him with a .357 Brief at shooting pistol.” Appellant’s caliber statement, contends another Woods the individual who told that police Wilkinson “purportedly to his death and prior to the murder scene brought guns Id. at Bowman and Appellant.” that he handed them to Kevin 24-25. is within the discre solely
The admission of evidence
court,
evidentiary rulings
tion
the trial
and a trial court’s
abuse of that discre
only upon
will be reversed on
an
appeal
868,
Travaglia,
v.
611 Pa.
Commonwealth
tion.
(2011). The trial court allowed the Commonwealth to
introduce the above statements when Woods testified at trial
him,
possess
that
“did not shoot
did not
a ten
and that he had never made
such
handgun
any
millimeter
Trial, 8/8/90,
Brief at 25
Appellant’s
(citing
statement.”
N.T.
941).
917, 936-37,
court
According
Appellant,
trial
erred in
to confront
with
allowing
Commonwealth
Woods
statements
his ...
prior
impeach
testimony
“both
Brady,
as substantive evidence under Commonwealth v.
(1986).”
Pa.
Appellant’s (quoting Brief at 25 A.2d However, Appellant argues now that this Court “did not address the fact that statements were neither audio- Woods’ actually were not taped videotaped, contempora- nor and thus Brief neously Appellant’s recorded verbatim statements.” relies decision in Appellant 25. on this Court’s Common- Wilson, 518, (1998), Pa. 1114 wealth v. A.2d for recorded, that “a verbatim proposition contemporaneously videotaped statement must be audio or to be sufficiently reliable for admission as substantive evidence.” Appellant’s Brief at 25. never raised claim in any petition, this PCRA and 1925(b) statement;
first in supplemental raised it according- ly, Appellant has waived this argument. See Commonwealth (2004) (claim v. Santiago, 579 Pa. not petition raised cannot be raised for the first time on waived”). Nevertheless, and is appeal, “indisputably even if claim trial preserved, Appellant’s that court erred in allowing the Commonwealth to confront prior Woods with his statements is without merit. was not Wilson decided until 1998, approximately Thus, after eight years Appellant’s trial. requirement there was no at the time of trial Woods’ statement be audio- or videotaped, and so there was statements, no error the trial court’s admission of the and appellate counsel cannot be ineffective deemed failing appeal. raise this claim on present
4. Failure to rebuttal ballistics evidence Appellant asserts that trial counsel was ineffective for failing investigate present ballistics evidence to rebut presented by ballistics evidence the Commonwealth to victim, establish that Appellant shot the and to connect Appel Wilkinson, lant to the shooting killing Woods and that appellate counsel was ineffective for failing investigate and raise the issue on appeal.22 Appellant submits:
Trial ineffectively counsel allowed the Commonwealth to suggest shot with the 10 mm. weap- Waters raised this issue in his Amended PCRA Petition. *33 on, is inconsistent though overwhelmingly even the evidence that would have investi- theory. with Reasonable counsel there evidence that gated to determine whether could be out either in the defense case or on cross- brought examination of witnesses to show that the .38 prosecution bullet, in any way Appellant, which was not linked caused Appellant proffered decedent’s death. that trial counsel totally failed to the ballistics evidence. Such a investigate failure to investigate performance. constitutes deficient that, Brief at 30. further states in Appellant’s an effort to demonstrate he consulted a ex- prejudice, ballistics pert and asked the PCRA court for funds to retain the expert, but the request PCRA court denied his for funds. Appellant challenges request the denial of his for funds as a separate issue. See Part II.A.10. infra to the respect proffered testimony,
With substance Welch, Appellant avers that his have expert, William would “jacketed testified that a .38 bullet can a human pass through body relatively undamaged, theory consistent with the that the decedent,” and, injury .38 bullet caused the fatal to the had evidence, jury heard such “it is that the reasonably likely rejected would have the argument that could have been the shooter.” Id. at 31. did, fact,
The that trial responds counsel argue by that the victim was killed a .38 caliber bullet. Brief at 28. The Commonwealth’s Commonwealth further of whether was killed a suggests regardless by Waters bullet from Appellant’s weapon by 10-millimeter or a bullet from co-conspirator’s weapon, Appellant fired .38 caliber “demonstrated a intent to kill sufficient for specific first- degree get murder. He announced his intent to ‘at least one them,’ sidewalk, pursued fleeing boys by driving onto a opened they fire on the victim and his friends as fled.” Id. at 28. court, claim, rejecting
The PCRA noted the Appellant’s nature of of the fact confusing Appellant’s argument light (1) there was no evidence at trial to establish gun from 10-millimeter caused Waters’ bullets (2) death; the ballistics evidence showed that Waters was (3) 10- caliber the evidence of the weapon; killed .38 only millimeter caliber shell at the scene was used casings in the shooting. show and involvement Appellant’s presence Thus, the court ques- *34 Court at 101. PCRA Opinion ballistics could expert tioned what additional evidence another perceivable have and concluded there was “no differ- provided, proposed argument ence in the form of from that which was Id. at 102. made.” agree
We with the PCRA court that the evidence retained presented, contends could have been had trial counsel merely another ballistics would have been cumulative expert, of the evidence Trial counsel actually presented. argued but, by was not killed a 10-millimeter rather weapon, Waters weapon. a .38 caliber The prosecutor, during closing, conceded that the circumstantial the proved evidence victim (1) by was killed a .38 caliber because a .38 caliber weapon, (2) jacket; was found in the slug slug victim’s .38 caliber scene; (3) in a found windowsill near the crime medical testimony injury indicated that the victim’s was consistent Trial, 8/13/90, Thus, with a .38 caliber bullet. N.T. at 1200. with agree we the PCRA court that there was no reason for trial counsel to have sought to obtain additional ballistics issue, and, testimony on this even if there was no basis for testimony, trial counsel’s failure to obtain additional ballistics did prejudice. not suffer there is no Accordingly, merit claim that Appellant’s underlying trial counsel was ineffective for failing to introduce additional ballistics evi- dence, and his claim that counsel appellate was ineffective likewise fails.
In a related argument, Appellant contends that “[r]e- cent developments forensic science” demonstrate that of the testimony Commonwealth’s ballistic expert, Officer Finor, that the casings John 10-millimeter found at the scenes of the Waters and the murders were “fired from the Wilkinson firearms,” same firearm to the of all other exclusion was not “scientifically defensible.” Brief at 32. In so February issued on report relies on arguing, Appellant (“NAS”) Academy criticizing National Sciences evidence, “including of forensic tool- types the introduction ballistics,” reliability testing. meaningful marks and without Id.
According to Appellant, was an expert testimony Commonwealth’s ballistics
[T]he of the The important part proof. police Commonwealth’s fired from the scene of the cartridge casings officer matched fired from the scene of cartridge casings Waters case with testimony only [purportedly] case. That not Wilkinson to, used, previously showed that Reid had access and had in the it gun shooting, helped open used Waters present door for the Commonwealth to other evidence of However, Petitioner’s involvement in the Wilkinson case. the NAS reveals that the officer’s conclusions Report police are scientifically Consequently, unsound and unreliable. jury’s guilty verdict in this matter likewise unreliable. [is] *35 Amendment, The Due Process of the Fourteenth Clause allow does not such an unreliable verdict. Brief at 38-34.
Appellant’s observes, however, Appellant The Commonwealth that did below, not this claim present Appellant and asserts much, that he “effectively acknowledging only concedes as presented petition [Capital this claim a habeas filed Habeas Unit of the Federal Division of Defender Association] 27, 2009, his April years petition on two after PCRA dismissed.” Brief at 29 n. 33. The habeas Commonwealth’s 12, “premature was dismissed on October 2011 as a petition Pеtition.” Id. at 7 n. 15. second PCRA The court also noted that Appellant attempted PCRA 1925(b) statement, claim in his Rule Appel- raise this wherein time, this moment in has Appellant “[a]t lant averred timely filed a successor Petition in the Court of Common Pleas newly regarding reliability based on discovered evidence trial,” of the forensic evidence but the presented Appellant’s not Rule petition. Appellant’s trial court had acted on the ¶ 1925(b) Statement, 8/28/09, at 4 12. The PCRA court stated motion, been with such presented any because it “has not docket, on the court ... this reference to it appears and none at 101. disregarded.” Opinion will be PCRA Court this, Court, Despite Appellant persists in his brief to this with this claim and asserts that “the docket of the Court of raising reflects that the this issue was petition Common Pleas 21, 2009,” and, the issue was April “[accordingly, filed on before the court below and is before this properly properly Brief at 36. is incorrect. The Appellant’s Appellant Court.” court dismissed and the petition PCRA PCRA 2007, in late than one appeal year within was filed more before Appellant Appellant first raised his claim. The fact that now frames his issue as an after-discovered evidence claim does not allow him to the rules that a claim providing may circumvent not be the first time on appeal. Santiago, raised for See supra. As did not raise his claim regarding court, NAS before the for report purposes this review, Court’s the claim is waived. discovery hearing Brady
5. Denial of
claims
next
contends that
the PCRA court
erred in
and an
denying
request
discovery
evidentiary
Commonwealth,
so that he could establish that the
hearing
violation of
v.
Brady Maryland, 373 U.S.
83 S.Ct.
(1963),
exculpatory
L.Ed.2d 215
withheld material
evidence
Woods,
concerning
whom
characterizes as one of the
In
key
Brady,
Commonwealth’s
witnesses.
United States
Supreme
“suppression by
prosecution
Court held that
evidence favorable to an accused
violates
upon request
due
process
guilt
where the evidence is material either to
or to
*36
of the
faith or
faith
punishment, irrespective
good
bad
of the
87,
prosecution.”
The contends that failed initially Commonwealth any to establish that document existed. implicating Woods Moreover, Commonwealth, if according to the even such a exist, document trial testimony did because Woods’ favorable to in that Woods refused to Appellant, implicate murder, clearly in the Wilkinson counsel had a corrupt reasonable basis not to seek a source instruction Thus, regarding testimony. sug- Woods’ the Commonwealth that, because the evidence would not have been favor- gests Appellant, Brady able to it did not constitute material. Com- monwealth’s Brief at 30 v. (citing Birdsong, *37 (2011) (to Brady establish
611 Pa. alia, inter show, that was violation, must evidence defendant accused)). favorable to the court, claim, rejecting explained: in
The PCRA statements in exis Defendant contends that there are witness, Woods, Darryl gave police to the tence that case, and that he was an Defendant accomplice. about this that these statements show that Woods say alleged does not fact, in makes no accomplice; allegations was an defendant what, fact, he is contained in those concerning suspects these is what making statements. His sole basis for claims camera while said prosecutor describing Woods’ court, previous testimony to the which defendant character Darryl izes as “... that ‘suspected ” was the # 3 in the guy shooting].’ [involved Woods Waters He then makes the bold that “The allegation Common wealth never disclosed to the information it had any defense that linked to this or was otherwise related to killing Woods sole bases for these are credibility____[T]he allegations sidebar, prosecutor what said at and this was general part days non-relevant conversation that took two after testified. he said “... but it actually Woods What was was our Bowman was the number two and suspicion guy number three from possibly guy jump Woods the [sic].”[23] (N.T. 8/10/90, 1092), and, p. why when the court asks Woods shot, “Well, shoot him because he to the they talked back, days. for two asked him where police they Comes he’s been. The Police me but I tell kept days two didn’t them Because lock him anything. they up gun with he an appointment makes to see two detectives the same day They that he’s shot. intended to kill Wilkinson just him—he lucked out—because he knew too much about what, what were That’s of the reasons they doing. why one Id. From which whole cloth does defen up.” he clammed dant create a vast conspiracy.
The fact the prosecutor thought police that that have in the thought might Woods been involved Waters jump" аpparently slang beginning.” "From is for "from the was, in let alone that he shooting prove anything, does not fact, prosecutor speculated The fact that the then involved. he have might have been shot because might Woods not slaying prove to the after the Waters does spoken police fact, In in his actual the existence of 'written statements. was involved in his testimony, Woods denies that defendant *38 and nowhere makes contribution to the shooting, any [sic] in fact ten millimeter bullets were involved both [that the] (N.T. 8/8/90, 913-64); only it is the forensic shootings pp. that ten millimeter police by showing evidence that did fired from casings killing shell found at the Wilkinson were the same used in the never gun shooting. Waters Woods testified that he statements to the after the gave police never, fact, killing; anywhere any he in said at time Waters that he talked to the It is the police. only prosecutor’s stated belief that he did that defendant uses to claim that he did, assumption which unfounded he then uses to make the egregious logic further in to claim that statements must leap Thus, exist and that the Commonwealth withheld them. there is absolutely suggest no evidence to that Woods was he any way shooting, any involved the Waters that had whatsoever, any information about the or that shooting absolutely nothing statements about it exist. There is the record to defendant’s claim that Woods’ testi- support was crucial to the mony prosecution. at Opinion
PCRA Court 58-60. review, Upon findings we conclude the PCRA court’s record, are the and its conclusions of law are supported above, legal free from error. As noted the first coun “[o]n case, discovery seled in a death no shall be petition penalty any at of the leave permitted stage proceedings, except upon 902(E)(2). showing of court after a cause.” Pa.R.E. good A cause more than a demand showing good requires generic evidence; rather, discovery re potentially exculpatory quests setting accompanied by in the PCRA must be an information unavailable explanation why exculpatory the prior identify specific counsel and must documents or items pretrial during proceedings. that were not disclosed or trial Carson, v. 590 Pa. (2006) (“a discovery where petitioner PCRA is not entitled documents, he not shown the existence of ... as requested has uncover requested exculpatory documents will speculation 902(E)(2)”). of Rule satisfy requirements evidence does not observed, court sole basis Appellant’s As PCRA Brady prosecutor for his claim is a statement made in that it was the of the suspicion prosecutor police camera guy possibly that “Bowman was number two Woods Trial, 8/10/90, guy jump.” the number three from N.T. However, the Commonwealth advised PCRA counsel and the court that the trial file did not contain any Woods, other material implicating documents or and the PCRA court credited the Commonwealth’s representation. offers no evidence to existence support alleged indeed, of a statement by police; non-disclosed Woods to he states “it is the evidence known to simply likely included prosecution statements from Woods.” *39 identify Brief at 37. As failed to a docu specific disclosed, ment that not failed to make the showing good necessary discovery cause for of potential Carson, Moreover, Brady material. supra. See because the supports record the court’s determination that PCRA no exculpatory impeachment or evidence was suppressed by the Commonwealth, we decline to disturb the PCRA court’s hold ing denying Appellant’s request discovery for and relief under Brady.
Appellant also contends the PCRA court erred in denying his to review the archive request police files for evidence. exculpatory Appellant asserted that the Common wealth failed to disclose the extent of incentives provided witnesses, Commonwealth trial that “the police and archive cases, files have been found to contain material in Brady other case, likely and contain similar material in this including any records on the prosecutor which based his assertion that the Darryl believed was one of the in police people Woods involved the shooting.” Appellant’s Waters Brief at 90. Commonwealth, The was not entitled arguing Appellant files, was a police suggests Appellant’s request to review the expedition only alleging mere because the basis fishing the prosecutor’s expressed existence of such evidence “was involvement,” and the Common- suspicion as Woods’[] wealth confirmed on the record that there were no documents Brief at implicating or other material Woods. Commonwealth 63. The reiterates even if such evidence exist, because, did it would not be useful to the defense on the stand, recanted his statements prior implicating Appel- Woods lant and testified that not shoot anyone. did Id. court,
The PCRA claim addressing Appellant’s regarding files, observed, archive police inter alia: requesting production Petition of the archive file police (1) alleges that the it contains evidence that [sic] Woods was (2) suspect, that the assertion that it Commonwealth’s has no evidence of such is an response discovery insufficient to a (3) that request, the Commonwealth failed to disclose any it provided incentives to the witnesses to in the testify Lisby (4) case, murder that PCRA counsel was informed that the Defender Association of Philadelphia possession has its file, police archives but that the file has been ordered sealed (5) over, Association has refused to [turn it] "... it alleged has been that similar files in other police cases have revealed the existence of undisclosed previously evidence, ”, ... exculpatory general and concludes with a discussion of the law to turn over requiring prosecution all material in its exculpatory possession. Opinion
PCRA Court at 112-13. The court noted that rejected it already Appellant’s allegation had that the Com- provide monwealth failed to the defense with evidence that suggested Woods was an court further accomplice, *40 there is “a lack of evidence to opined complete any support [Appellant’s] allegations.” other Id. at 113. above, showing good requires
As discussed
a
of
cause
more
just
generic
potentially exculpatory
than
a
demand for
evi-
dence that
be discovered if a defendant is
might
permitted
Sattazahn,
review the
materials.
6. of evidence related murder Wilkinson Next, improper asserts ly exploited ruling by allowing a the trial court Common to introduce evidence related to the Wilkinson murder wealth shooters, prove identity in order to of one of Waters’ prior failing preserve that all counsel were ineffective for this In the trial court’s litigate addressing ruling claim.24 in this on direct regard appeal, we observed:
The
to admit
seeking
Commonwealth’s reason
[informa-
tion about the unrelated
murder that occurred six
Wilkinson
days
theory
empty
after Water’s
was its
that
shell
murder]
casings found at both murder scenes
from the same
[came]
handgun and
identification as one
two shoot-
[Appellant’s]
ers in the
murder make the evidence admissible
[Wilkinson]
show
in both murders.
In
[Appellant]
shooter
short, the
with
to the
murder
respect
[Wilkinson]
evidence
identity
[Appellant]
was offered to establish the
as
in the
shooter
murder.
[Water’s]
Reid,
Appellant, conceding evidence, however, now complains, prosecutor raised this issue in his Amended PCRA Petition. *41 identity” ruling from the limited trial court “strayed far stated, of the presentation both in his prosecutor when the alia, that Wilkin- inter closing argument, and in his evidence death,” “in head” and “mur- “shot to shot son had been wounded,” “in dered,” “critically had been was and that Woods Brief at 41. ICU,” and was “about to die.” Appellant’s According Appellant, that was relevant and admissible was only evidence
[t]he had used a 10 mm. on another occasion. gun that of gun lawfully unlawfully he used the or was no Whether discharged weap- moment. The fact that he that purported on on some other occasion was all that mattered this case. Thus, legitimate jury there was no reason to tell that killed, wounded, or critically Wilkinson was that Woods was head, shot one in the The execution-style. that underlying circumstances of the other incident were irrele- vant. were also They supremely prejudicial.
Id.
The Commonwealth that this claim has been final- responds Court, ly because this on direct ruled that the litigated appeal, The properly evidence was admitted. Commonwealth further prosecutor present argument avers that is entitled to its evidence, based on the and that trial counsel was not ineffec- to the evi- declining pointless objection tive “for to make a argument.” dence or to the related Common- prosecutor’s Finally, wealth’s Brief at 32. the Commonwealth observes that the trial court instructed thе as to the limited evidence, and, for which it could consider the there- purpose fore, that from the state- any prejudice resulting prosecutor’s ments cured. was court, claim,
The determined rejecting Appellant’s statements, from the any prejudice resulting prosecutor’s minimus,” which was at most “de was obviated the follow- given jury by instruction to the the trial court: ing tried for an You have heard evidence that the defendant was he is not on trial here. I am speaking offense for which shooting Reid tried for Neil Anthony the evidence that days at 1101 six Darryl Ogden Wilkinson and Woods Street in this case when at shooting after the of Michael Waters millimeter found which the cartridges Place four 10 Ogden through expert its witnesses contend in the cartridges shooting the two 10 millimeter found say through expert this case—I should its [Waters] *42 millimeter cartridges witness contend match the two 10 in in shooting found of Michael Waters this case. This evidence is before for a limited that is to you purpose, Anthony substantiate the Commonwealth’s identification of in gun Reid as the one who used a 10 millimeter both in by you situations. This evidence must not be considered I any way just other than for the stated. You must purpose showing not consider this evidence as that the defendant is a of character or criminal from person bad tendencies which be infer If you might guilt. you inclined to find defendant it must be are guilty you by because convinced charged the evidence that he committed the crime and not because believe he is wicked or has you committed other conduct. improper Opinion
PCRA Court at 48. A a trial jury presumed is to follow court’s instruc tions, Travaglia, Appellant 28 A.3d at and fails to offer any evidence that the failed to follow the court’s instruc Moreover, above, tions in this case. as noted Appellant’s to the challenge admissibility testimony regarding the addressed, rejected, by Wilkinson murder was this Court appeal. on direct To the extent now Appellant argues that trial counsel failing object was ineffective for to the manner evidence, in which the such prosecutor presented including the specific language by used we conclude there prosecutor, result, was no a prejudice. Appellant As has failed to estab ineffectiveness, lish trial counsel’s can appellate counsel not be deemed ineffective for to raise the issue of trial failing appeal. counsel’s ineffectiveness on composite Appellant 7. Failure to sketch of introduce Appellant argues next that the PCRA court erred in claim denying, evidentiary hearing, without an his that trial that failing counsel was ineffective for to “utilize evidence Brief Appellant’s the defense of misidentification.” supported 45.25,26 that trial counsel was Specifically, Appellant argues composite ineffective for to introduce a sketch failing prepared artist, with the of Keenan and police McKay, assistance Id. which, view, “does not resemble Appellant.” Appellant opines closely that the sketch “more resembles Id. Noble, an early police suspect.” Appellant Gerald ac- knowledges opined the PCRA court that the sketch did however, that, Appellant; resemble maintains exists, this a factual and a remand is regard, dispute necessary to determine whether “there is reasonable likelihood that jurors one or more would have found that the lack of resem- the misidentification defense.” Id. supported blance The Commonwealth has waived his responds by failing layered claim to make a claim of ineffectiveness in The also petition. observes Court, his brief to this has abandoned his allegation regarding ineffectiveness direct counsel. appeal Common- *43 Finally, wealth’s Brief at 33 n. 38. the con- tends that trial strategic counsel had a reason for not intro- Appellant challenged appellate both trial counsel and effec- counsel’s regard tiveness in this in his Amended PCRAPetition. brief, argues separate Appellant broadly 26. Set out as a issue in that refusing evidentiary hearing the PCRA in court erred to hold an on pleadings several material issues of fact raised in his and exhibits relating performance appellate Appellant’s to the of trial and counsel. that, Appellant correctly Brief at 94. asserts where there are material actions, disputes regarding hearing the reasonableness of counsel's a is alia, required. 458, (citing, Beasley, Id. at 95 inter Commonwealth v. 600 Pa. (2009)). recognized capital A.2d in 967 376 This Court has cases, required petitioner develop a PCRA court allow a is to to the respect any "genuine concerning any record with to issues material Collins, 397, 237, fact.” Commonwealth v. (2008). 598 Pa. 957 A.2d hearing required Where the PCRAcourt determines that a is as some, all, petition, hearing may to but of the in a not issues raised However, justify hearing be limited to those issues. Id. to on a issue, particular petitioner prove will must offer to facts which Lark, 441, 43, him entitle to relief. Commonwealth v. 548 Pa. (1997). Accordingly, Appellant’s we will address claim that he was improperly evidentiary hearing only Appellant alleges denied an where facts, dispute specific Appellant's present as to such as misidentifica- tion claim. sketch, that light of the fact ducing particularly Appellant, the sketch resembled court concluded PCRA prejudice to establish that he suffered Appellant failed alleged based on counsel’s ineffectiveness. the sketch
In its the PCRA court reiterated opinion, defendant,” and further observes that “does resemble evidence to trial counsel’s any support failed offer that he never knew the sketch was avail- alleged statement Thus, 111-12. the PCRA court Opinion able. PCRA Court establish basis which any upon concluded “failed to Id. at 112. harm, In to find let alone ineffectiveness.” any and, of the court’s determinations in this light regard, PCRA finding its factual that the sketch resem- particular, police there was no basis for the court Appellant, bles as hearing Appellant’s conduct a to whether trial counsel was failing Accordingly, ineffective for to introduce the sketch. if claim is meritless. preserved, Appellant’s even burglary
8. Failure to introduce evidence of against Coggins charges next that trial counsel was argues ineffec failing tive for to introduce evidence that Commonwealth Coggins charged burglary witness Walter with and relat he August ed offenses after was interviewed about the Waters, shooting appellate and that counsel was ineffective to raise this The failing argument appeal.27 burglary were dismissed in charges against Coggins ultimately January However, prior Appellant’s according Appel trial. lant, trial counsel should “to burglary charges have used Coggins’ ... identification as a recent fabrication impeach Coggins hoped which to obtain favorable treatment on the charges against him.” Brief at 46. *44 rejecting
In this court determined argument, any attempt impeach Coggins in this manner would have been because the were impermissible burglary charges against not either at the timé he first pending Coggins spoke to the or at the time testified. This police Coggins agree. We Appellant 27. raised this issue in his Amended PCRA Petition.
205 that, may witness be prosecution has held when a Court outstanding because of prosecution biased in favor of the criminal any disposi- because of non-final charges criminal or jurisdiction, fairness requires tion him within the same against bias. possible be made aware of the witness’s (1989). Hill, 252, 270, Commonwealth v. 523 Pa. 566 A.2d However, outstanding charges against Cog- there were no as or at the questioned by police, at the time he was first gins trial, no reason time testified at there was Coggins Appellant’s of the burglary charges, for the trial court to admit evidence and neither trial counsel nor counsel can be deemed appellate ineffective for to raise this claim. failing impact of victim evidence
9. Introduction his should Appellant next contends that convictions be they vacated because were tainted the trial court’s admis improper impact Specifically, Appel sion of victim evidence. in allowing lant avers that the trial court erred the Common testimony gave wealth to introduce that Waters “never trouble,” any happy, outgoing, bright, persona mother “was a kid, humor,” that, on the good way ble sense [with a] hospital, Waters mistook an officer for his mother and other members. Brief at 48. family 1990, impact at the time of his trial victim argues inadmissible because evidence of a victim’s testimony was circum non-statutory aggravating constituted a good qualities alia, Fisher, v. Id. at 50 inter (citing, stance. (1996)).28 233, A.2d 130 contends that 545 Pa. failing object trial counsel was ineffective for to the admis evidence, counsel was appellate sion of this and that improper raise trial counsel’s ineffectiveness failing ineffective for regard.29 this 1995, Pennsylvania Sentencing of the Code
28. Prior to amendment trial; any stage capital impact victim evidence was inadmissible at however, 11, 1995, Sentencing was amended to on October Code during penalty phase impact allow the admission of victim evidence Jordan, capital v. 619 Pa. of a trial. See Commonwealth (2013). Petition, although in his Amended PCRA raised this issue testimony argument that the was irrelevant the basis of his therein was *45 The characterization of disputes Appellant’s evidence, avers “the impact as victim and testi- testimony from the victim’s mother that her son was not a mony a fair to the defense at- simply response troublemaker was as racist tempt paint hooligans the victim and his friends fight. to attack black and start a The looking people police in the testimony as to the victim’s final moments ambulance on way hospital part gestae.” to the was of the res Common- omitted). (record wealth’s Brief at 36 citation The Common- suggests impact testimony wealth further while victim was at the sentencing phase capital inadmissible trials 1990, corresponding prohibition “there was no reference added). victim at the Id. guilt phase.” (emphasis court, claim,
The in rejecting explained PCRA Appellant’s that it allowed the based on the state- testimony prosecutor’s testimony solely any ment that the “was intended to dispel notion that the victim was bad and deserved to be shot that the jury may have derived from the fact that he was involved in throwing Opinion snowballs.” PCRA Court at 91. With ambulance, regard to Waters’ statement while he was in the stated, court “since the aware that the scene, victim being was alive while from the it was transported only to make them aware of he have logical anything may said before he died.” Id. find no merit to that the Appellant’s argument
We testimo- ny regarding the victim constituted victim improper impact trial, testimony. At the victim’s mother not did testify to the devastation she or members suffered family as 9711(a)(2) § result of the death of her son. 42 Pa.C.S.A. (describing victim-impact evidence as “evidence concerning victim and the that the death of the victim impact has had on victim”); the family Tedford, of the Commonwealth v. 598 Pa. (2008) (testimony regarding victim’s looks impact testimony was not victim because it did not relate to by family devastation suffered as a result of the victim’s designed sympathy family. to elicit for We the victim his find present argument sufficiently preservation pur- is related issue but, poses, regardless, that the claim is meritless. murder). reason, statements on the For the same Waters’ impact to the do not constitute victim evidence. way hospital Accordingly, object there was no basis for trial counsel to evidence, the introduction of the and trial counsel cannot be objection. deemed ineffective for to raise a meritless failing As claim that Appellant’s underlying trial counsel was ineffec- *46 object tive for to to the evidence at trial is without failing merit, so is claim that counsel failed to Appellant’s appellate trial argue appeal. counsel’s ineffectiveness on Appellant’s request expert 10. for funds for witnesses the Appellant argues PCRA court violated his state and process rights by denying federal due his for funds for request assistance. that he expert Appellant alleges sought to hire ballistics William Welch in of expert support his ineffectively claim that trial counsel failed to hire a expert.... helped ballistics Mr. Welch could have to estab- claim, lish on that that an could prejudice by showing expert have the that the was supported conclusion decedent killed bullet, a .38 caliber not a 10 mm. by by handgun allegedly associated with to hire an Appellant. Appellant sought in the expert production reliability police composite and sketches to his claim that trial counsel support ineffectively failed to the police composite use sketch to attack the identification of two Appellant by eyewitnesses. Brief at the regard expert, Appellant
With to ballistics elaborates: Although presented evidence trial indicates that bullet, was caliber both at trial on Waters killed .38 appeal actually the Commonwealth which bullet questioned entered the victim’s the lower body. Notwithstanding no to court’s assertion that it would make difference show bullet, that the victim had been killed aby particular expert ballistics assistance would give Appellant necessary tools to was not the shooter of the bullet prove Appellant jury that killed Waters. If the had understood that Appel- shooter, accepting lant could not have been the even mm weapon, Commonwealth’s evidence him to the .10 tying degree of first only guilty then could have been The co-conspirator theory. on an or accomplice murder also have believed that the shooter the .10 jurors could kill, only frighten youths. mm not intend to but did event, would have been unable to find jurors In that intent kill with respect Appellant. specific sketches, to the respect expert police Id. at 92. With expert stresses that the for which the was purpose was to requested counsel’s failure to prejudiced by
show that an to the how artists expert explain police obtain sketches, they the manner in which are why assemble that the excul- arguing created would assist the defense whole, nature of the facts that the sketch as a and its patory features, specific [Appellant]. do not resemble Id. at 93.
This addressed a Court similar claim Commonwealth v. Albrecht, wherein the court erred appellant alleged denying funds to a fire science request public employ *47 expert to “establish his claim that after-discovered evidence undermined the of 554 reliability had his conviction.” Pa. (1998). explained: We The funds to hire to assist in the provision public experts in against charges defense criminal is a decision vested sound discretion of the court and denial thereof will not be reversed absent an abuse of that discretion. At the trial “an accused is entitled to the stage, experts assistance necessary prepare a defense.” This court has never decided that such an appointment required is a PCRA must proceeding. We review the PCRA court’s exercise of its discretion in the context of the an request, expert’s is to establish his entitlement to relief testimony necessary 9543(a)(2)(vi), § provision under Pa.C.S. of the PCRA which deals with claims of innocence based on after-discov- ered evidence.
Id. court,
The PCRA its reasons for explaining denying funds, stated: Appellant’s request regard expert], ballistics the evidence showed [the With that the victim was killed a bullet of unknown caliber as by a result of a number of various people firing weapons, defendant does not difference it explain possible what would make to show that the victim have been killed might by bullet. particular regard [police With to the composite sketch the defendant expert], explain why expert fails to an would be needed to confirm that a sketch does or does not Any resemble someone. could make that determina- person tion, and defendant cites authority proposition no for the that such a supposed expert’s opinion would even be admis- sible. Opinion Court at 114-15. agree Here,
We with the PCRA court. sought expert funds of his claims that trial support counsel and appellate counsel were ineffective. As supra, discussed argued trial counsel that Waters was not killed a 10- millimeter but a .38 weapon, weаpon, caliber and there was no evidence to establish that fired the fatal Ap shot. fails to pellant demonstrate how a ballistics expert would have provided evidence that merely was not cumulative of that already presented by trial counsel. regard With to the police sketch expert, trial counsel did not seek to introduce at trial sketch of composite Appellant, and we have deter already mined that he was not ineffective in regard, this particularly concluded, because the PCRA court contrary claim, that the sketch did resemble See Part Appellant. supra Thus, II.A.7. we fail to see a police expert how sketch would support Appellant’s claim that trial counsel was ineffective for obtain, instance, failing to in the police expert first sketch substantiate his contention that the sketch did not resemble sum, In as Appellant. any fails to demonstrate that *48 evidence or information he have obtained had he been may allotted funds to hire a ballistics or a sketch expert police expert would have been trial helpful proving counsel’s ineffectiveness, has to Appellant failed demonstrate that the PCRA court abused its discretion in denying application his for expert witness funds. guilt-phase closing argument
11. Prosecutor’s process rights next that his due were argues of the prosecutor’s alleged improper violated as a result exhortations to “inflammatory attacks on his character and crime society’s larger problem” during closing argument solve trial, and, further, in the of the that trial and guilt phase failing preserve counsel were ineffective for to and appellate Brief at 51.30 litigate Appellant’s Specifically, this issue. to the Appellant alleges prosecutor improperly appealed jurors’ hostility “fear of crime and their toward criminals generally” by stating Appellant: streets____We your
is can’t tolerate that.... marauding Anthony have Reid and his kind on streets.... your We on Being Philadelphia the streets of shouldn’t be hazardous life____Those to still believe your right right us who is justice____ is demand wrong wrong [Asking jury is something: wrong society stand] Stand What with Anthony Tone Reids.... I am Mr. going stop you Reid. Trial, 8/13/90, 1209-10, Brief at 52 N.T. at Appellant’s (quoting 1219). 1214-15, 1217, objects further to the prose- Appellant: cutor’s comment that is a potato chip gangster, gunslinger.... a robot We have I’m Anthony your going Reid and his kind on streets.... streets, you ask to cut his kind out from the cut his kind out from at the shooting people slightest whim.... de- [The longer is no alive because of that man and ceased] kind----But that won’t wash the blood away from Waters and Wilkinson. Trial, 8/13/90, 1209-10, Brief at
Appellant’s (quoting N.T. 1218). 1213, 1215, According Appellant, this statement improperly attacked his character.
Appellant contends that the prosecutor’s emphasis soci- thereto, ety’s problem, crime contribution jurors’ an to the “improper appeal general outrage, sense of which likely weighing distracted them from the evidence dis- passionately.” Appellant’s Brief at 53. He further asserts raised this issue in his Amended PCRA Petition. *49 in calling Appellant “potato chip gang- that the prosecutor, error “gunslinger,” ster” and a committed reversible because killer, “the is from an accused prosecutor prohibited labeling or a befоre the finds him gangster, gunslinger guilty.” Id. also that the comments suggests prosecutor’s to “others of ‘his and linking Appellant thugs gangsters kind’— streets,” jurors’ who are the were and marauding improper, constitute for relief. Id. at 54. grounds
The counters that claims are Commonwealth baseless, and it notes the court found them to be so that it obligation baseless warned counsel of his ethical not to raise frivolous claims. The further argues prose- this Court held that similar remarks the same in the Lisby involving Appellant cutor case31 did not exceed advocacy the bounds of reasonable and did not constitute a basis for misconduct claim. Commonwealth’s prosecutorial Brief at 37.
A is free to prosecutor present argument with force in logical vigor long so as there is a reasonable basis prosecutor’s Tedford, record for the remarks. 960 A.2d at Further, reversible error arises from a com prosecutor’s only prejudice ments where the unavoidable effect is to jurors, forming hostility their minds a fixed bias and toward they weigh the defendant such that could not the evidence a fair Id. at 33. To objectively render verdict. succeed on a claim of ineffective assistance of counsel based on trial misconduct, object counsel’s failure to prosecutorial the prosecutor’s defendant must demonstrate that actions constitutionally statutorily protected right, violated a or such privilege as the United States Constitution’s Fifth Amendment self-incrimination or the Amendment against compulsory Sixth trial, to a fair or a constitutional interest such as due right process. Id. at 29. remarks which
Initially, we observe that not, improper contends were were as his brief seems to Rather, of one succinct statement to the suggest, part jury. 31. See note 8. supra numerous isolat- has in two reproduced paragraphs clos- throughout prosecutor’s appeared
ed statements the trial pages ing argument, spanning approximately those statements their transcript. In order evaluate context, necessary it is to recount its we believe proper prosecutor’s closing argument of the entirety portion those the statements to which appear; wherein statements *50 for ease of refer- refers are italicized Appellant specifically ence.
Now, jacket in this red with you bag, Georgetown before it; in in mind of the your person a hole minds or here, now, I’m I ladies and looking right at what have left of He could been a gentlemen, boy. is what is a have joy. joy bundle of I know he was a bundle of on his birth. just birthday, looking He had celebrated his sixteenth for- ward. sixteen, lucky. back at I was kind of I
Looking myself school, got through accelerated did nine —did twelve high nine; sixteen I of years my year college. second me. Lucky, lucky lucky. just
Michael Waters wasn’t He to be at happened couple potato chip gangsters, a location that a of—that three streets, millimeter, gun stingers, marauding your robot Yo, man, unique guns, .38s. don’t do this to me. I’m you Tone Reid. You you messing don’t know who with. Gets out, coat; hand in his and what does he does he say? What “I say? not one of them is members of hope your family.” get “At least let’s one of them.” Ladies and If gentlemen, we can’t tolerate that. not Waters, Michael who could it been? have Bullets don’t have addresses, Damn, man, they zip don’t have codes. it was snowball; only forget it. Uh-uh. We Let me strapped. around the block. I’m go going get me one of them. Waters, Michael with his hot Joseph half-digested dog, does, started because that’s running what a kid he runs. trouble, out, For his Christmas was blown New Year’s was out, out, sun, birthday blown seventeenth was blown stars, that we hold dear. everything I it. come to this hall Forget say. Forget what We justice, if there is such a today looking thing, because Joseph justice. Michael Waters deserves I lay wondering, going He there in the snow am to die? why? Anthony And Because we have Reid and his kind on streets; him your overnight and we have there because he just sprung up everywhere, the macho men. say, hey,
You like he’ll take might punk grow up, of him. It no way guy care ain’t that more. One said—it him say person hurt to hear hard to find a who gives —it’s today. damn Is that I not. you? hope Michael, friends, were there with you being when on the Philadelphia your streets shouldn’t be hazardous to life. Trial, 8/13/90, N.T. discussing at 1208-10. After the testimony Keenan, Woods, Coggins, Darryl Walter Scott see id. at 1210-12, the prosecutor continued: coincidence, mind, yeah,
Another it crossed too. Mr. my *51 Bruno he says grow [defense counsel] couldn’t hair. Ladies and gentlemen, fungible goods, easily exchangeable. In school when we or I high grew up growing up, when was members of the football team used to exchange jackets, sweaters, what have the easiest you. thing That’s world to rid of. It’s about to get supply answer. Mr. well-loved, week; every Reid must be he’s a haircut getting you they’re you, hey get and if know for one looking every day other if I need to.
But that won’t Michael away Joseph wash the blood from that, and Neil can do ladies Only you Waters Wilkinson. gentlemen; you by using your and and can do it common sense. evidence, allowed that in for one Judge
Circumstantial issue, identification, to one the likelihood purpose, going Wilkinson, that the man that did also did to the Waters you, exclusion of all others. Thank Officer Finor. The gun. same Woods, Finor, if you Darryl
If believe believe you Officer witnesses, you’ve if believe the tied you Commonwealth’s Anthony Reid to 29th and Tasker. in this case more than one
You heard that there was the act of one is the act of you The Court will tell person. them all. don’t need a lot of time between at this stopping
You intersection, to The and “I walking up saying hope Store they your family” are not members of and “at least let’s enough premeditate. one of them.” That was time to get That time to this enough get unique weapon perverted another one and drive like some sense of the Corral; but at at the men they OK least OK Corral were boys to shoot at men with not defenseless with enough guns, snowballs. know,
You ladies and I’m gentlemen, going you ask jurors do one stand thing, up. (Whereupon up.) stood I you up you got And want stand because to stand for If don’t stand something. you something, you’ll fall for anything.
I submit to can you you (Whereupon be seated now. — seated.) jurors were You’ll have a chance to come back in this courtroom and you’ll you’re have a chance to up; going stand to be standing for one what is and what up thing, right wrong. is Reids, wrong society Anthony
What is with Tone gun slingers callously any robot who sense of what’s —with with right, any you sense of what’s decent do shoot in a court, crowd of one? Then people, killing coming saying, hey, my haircut’s different.
Looking is that a box? What is it? cares? Who *52 Your barber I cut a in it. I says always part don’t see and are fourteen any parts, days these about different (holding photographs).
And, oh, oh, he I reluctantly, says, yeah, remember this haircut he here I didn’t cut testifying, got because I I never cut that’s a German Brush. don’t cut them kind. this kind. kind,
I’m to ask cut his kind out going you to cut his out shooting people the streets. Cut his kind from from slightest whim. Id. at 1212-15.
The then prosecutor suggested Commonwealth had proven illegal the elements of of a possession weapon, conspir- acy, first-degree Finally, and murder. See id. at 1216-1217. prosecutor continued:
The justice. Commonwealth demands Mrs. de- Waters justice. right right mands Those us who still believe is of wrong wrong justice. and is demand I’m now I’m closing closing thought, and with the ladies gentlemen, you that will do the You right thing. will you come back and will to a that no one has speak person (sic), spoken to for awhile because this is all that remains of kid, kid, kid, A good thing him. bad indifferent one that he was, he was alive. He is no alive because longer kind, man and his his thing, posturing. mistake, time,
Made a left calling this Tone. You one card Woods, many; too and although your buddy Darryl who saw you every day, got almost before this group people amnesia, didn’t recall I got anything, right right. hope is didn’t, the jury through saw Mr. Woods. And even if it didn’t Officer Finor stand tall when he called it.
I you, gentlemen, submit to ladies and return with one verdict, guilty degree, of murder in the first for this has to Reid. him stop. Stop Anthony Stop right now. Because as I growing up days they say, you the old used to raise children and save America. I’m turn that asking you to around, save the children up system and stand in, we all believe where is fair is fair. He has right right, had his trial. Pronounce as swift as he was judgment going block, he around that as swift as he was when took a life. down, I I going I’m to sit down now but sit look at this bag. only thing say years, The I can after seventeen what a *53 Reid. First you, degree I am to Mr. going stop
waste. nothing. murder or you.
Thank
Id. at 1217-1219. contends the comments “were
Appellant prosecutor’s process.” Appel as to amount to a denial of due egregious so However, reviewing prosecutor’s lant’s Brief at 54. the entirety, any statement in its we do not believe of the closing by comments cited had the unavoidable effect of jurors, creating hostility the or a fixed bias or that prejudicing rendering would them from a fair verdict based on the prevent evidence.
In “robot referring “potato chip gangsters” gunsling- to and streets, ers” the the was to marauding prosecutor referring shooting the three individuals involved in the chasing Furthermore, noted, in stating victim. as PCRA court that,” referring “we can’t tolerate was to his prosecutor statement exited his car and announced prior one of the “get” boys simply his intent to who had been throwing Opinion snowballs. PCRA Court at 66. The PCRA prosecutor’s Ap- court also determined that the reference to “and his kind” on the and that on pellant being being streets hazardous, the streets of be Philadelphia shouldn’t “was the prosecutor’s answer to the hypothetical question himself, die?; had the victim ask am I prosecutor why going day, because was on the street that [Appellant] being it[’]s Waters, truthful answer. On that for Michael as estab- day, evidence, lished it was hazardous for him to be on that street.” there particular Philadelphia legitimate Id. As remarks, basis in the record for the we cannot prosecutor’s designed capitalize conclude remarks were on the jurors’ general fear of crime in order to obtain a conviction. trial not Accordingly, failing counsel was ineffective for object prosecutor’s closing argument,32 to the derivative claim of appellate counsel ineffectiveness also fails. transcript prosecutor The 32. reveals after the concluded his clos- ing argument, placed objection trial counsel on the record an to the accomplice liability Jury instruction as process next maintains that he was denied due liability, trial instruction on accomplice a result of the court’s which, to find him allowed the according Appellant, an even if he did guilty first-degree accomplice murder as the mens rea not murder. possess required first-degree *54 refers to the instruction re- Specifically, Appellant following garding accomplice liability: find of in the guilty order to the defendant murder first
[I]n degree you must first find that the defendant caused the person accomplice co-conspir- death of another or that an or you ator caused the death of another That is must person. find that the defendant’s or an or accomplice’s co-conspira- Waters, legal tor’s act is the cause of death of Michael thereafter must determine if the you killing was intentional. 1246). Trial, 8/13/90, Appellant’s Brief at 57 N.T. (quoting contends that all counsel were ineffective Appellant prior failing to this claim.33 preserve litigate
The Commonwealth notes that
relies
Appellant
primarily
Huffman,
Court’s decision Commonwealth v.
this
in
536 Pa.
(1994),
In the PCRA court addressing Appellant’s in engages tendency defense counsel again Once single paragraph the record. He selectively depict quotes instructions, out of more than repeated, of the court’s albeit instructions, us to find error fifty and asks pages objection else. He bases his on the ignoring everything where the was found to be holding charge Huffman However, this exact same improper. charge again Daniels, v. reviewed in 600 Pa. (2009) not when improper and found to be considered There,
light entirety. of the instructions their court first noted that the lower court should not have decision because it was not decided applied Huffman and, complained given, until after the instruction of wаs therefore, trial could not be ineffective for not counsel held (as here). *55 to it is the case objecting PCRA at 105. Opinion Court
As both the
and the
court
Commonwealth
out,
point
was not decided until after Appellant’s
Huffman
trial, and, therefore, trial counsel cannot be deemed ineffective
object
for
to the trial court’s
instructions on the
failing
jury
Nevertheless,
in reviewing
basis of
Huffman.
“Huffman-
type
objection,”
requirement
we follow the “well-settled
that
the
is
challenged jury charge
entirety.
to be examined
its
reviewing
charge
Such an examination includes
to deter
mine whether the
of the ele
jury
adequately apprised
ments of
murder and the related
of
first-degree
concept
Daniels,
specific intent to kill.”
In where one of the elements of a crime re- intent, mind, you or a state of will quired knowledge specific intent, always possible prove knowledge note that it is not unless, for by example, or state of mind direct evidence there is the defendant made a statement evidence However, intent, knowledge his state of mind. concerning matter, mind, be any may proved by or state of like other evidence, by circumstantial that is inferences that reason- circumstances, may be drawn from all the facts and ably including the defendant’s acts and conduct which have been shown in this case. evidence
Thus, the defendant had the you may conclude intent, required or state of mind for one knowledge specific of the elements of the crime based on circumstan- charged tial evidence alone but if the circumstantial is only evidence strong enough you to convince that the has intent, beyond established his or state of mind knowledge I previously reasonable doubt as have defined that term for you. in Pennsylvania you may
Under law find a defendant guilty of a crime without that he finding personally engaged in the of that A required conduct commission crime. if guilty accomplice defendant is a crime he is an another who commits that crime. person
A defendant does not become an accomplice merely by if, at the He is being present accomplice scene. an with crime, intent of or commission of the promoting facilitating solicits, commands, he the other encourages, requests per- aids, son to commit it or to aid or agrees attempts aid it; other and once so person committing they proceed, they equally subject punish- then are liable and to trial and *56 ment for all in furtherance of such consequences occurring action, including homicide. the a crime the may guilty
You find defendant of on theory long you he was an as as are satisfied accomplice beyond a reasonable doubt that the crime was committed who accomplice person an of the
and that the defendant was committed it. Trial, 9/13/90, at 1234-1238.
N.T. identical to the lan- substantially The above is language to the given jury in the instructions contained guage Daniels, determined, entirety, in their which we when viewed liability consis- jury accomplice instructed the accurately the case in tent this case law. As was also with Court’s Daniels, jury the as to the trial court herein also instructed we con- first-degree Accordingly, the elements of murder.34 read, jury part: 34. The trial court’s instruction to the Thus, guilty in the in order to find the defendant of murder first you degree must first find that the defendant caused the death of person accomplice co-conspirator caused the another or that an or you person. is must find that the defendant's death of another That accomplice’s co-conspirator’s legal of death or an or act is the cause Waters, you killing if of Michael and thereafter must determine the intentional. was Now, 2502(d) killing. what is an intentional Section of that same verbatim, word, provides or word for as follows: Inten- Crimes Code by by killing. Killing by poison lying means of or in wait or tional willful, killing. any premeditated kind other deliberate upon killing degree The third basis an international under first willful, by any premeditated killing. murder is other deliberate and Now, words, willful, by premedi- what is meant these deliberate and killing consciously If an kill if a done tated. intention to exists or knowledge consequences, consciously or if killer with of such victim, killing decided to kill the is willful. If this intent to kill is accompanied by such circumstances as evidence or demonstrate a kill, fully design purpose mind conscious of its own it is deliberate; and if time sufficient has been afforded enable the fully design mind of the killer to frame the to kill and to select the execution, plan carry design to frame it instrument or this into premeditated. is premedita- consistently requirement have held that the Our cases purpose tion and deliberation is met whenever there is a conscious bring picks length about death. Note well that the law no of time or appreciable length necessary no of time as to form or frame the intent kill, design to second, which to kill can be formulated in a fraction of a fully-framed it leaves the or of a but existence non-existence all intent to kill as a fact to be determined from of Accordingly, apprecia- facts and circumstances in the evidence. no ble amount of time is needed between formation of intent and the killing killing you if fact determine that the was done as finders of Further, required required to kill with the intent to kill. intention *57 instructions, read in their jury trial court’s when elude the liability, correctly jury accomplice instructed the entirety, and, therefore, object to the that trial counsel had no basis to result, counsel As a claim that trial was charge. Appellant’s fails, his derivative claim of regard ineffective in this as does counsel’s ineffectiveness. appellate Penalty Phase
B. Appellant’s 1. Evidence of effect of father’s death trial, his focus to the of his Turning penalty phase that trial court violated under Appellant rights asserts his Eighth by Amendment to the United States Constitution precluding arguing Appellant’s counsel from foster father killed, which, shortly died before and were Waters Wilkinson to his conduct and according Appellant, “helped explain emotional state at the time of the incident.” Brief Appellant’s at 60. maintains that evidence of his foster father’s recent death was admissible as evidence of concern mitigation 9711(e)(8), ing § his character under 42 Pa.C.S.A. and that “in failing adequately trial counsel was ineffective support to admit this evidence the trial court to request by alerting ... controlling authority failing preserve and the issue 61,35 motions.” Brief at He further post-verdict that all counsel were ineffective alleges prior failing this claim. preserve appeal submits that direct counsel conceded in an affidavit to the PCRA court that he had no to raise this claim on strategic failing reason for that, he had evidence intro appeal, suggests such been duced, reasonably likely “it is that a that understood and weighed mitigating significance of the evidence would have verdict,” rendered a life if such error had been raised on “it is this appeal, reasonably likely direct Court would sentence on the trial have vacated the death based court’s erroneous order.” Id. at 62. acts, declarations, may be found in the words or conduct defendant’s killing accomplished. which or the circumstances under Trial, 8/13/90,
N.T. at 1246-1249. in his Amended PCRA Petition. raised this issue Appellant’s allegation Initially, disputes Commonwealth evidence of Appel- was not to introduce permitted that counsel Banks, death, foster noting “Lydia defendant’s lant’s father’s years foster father died two sister testified that defendant’s earlier, to elicit the fact that permitted and the court counsel after a illness.” long occurred on March death The further Brief at 40. Commonwealth’s *58 that he had been scarred assertion responds Appellant’s “ridiculous,” in father’s death was view of subse- by his foster sisters that his foster by Appellant’s declarations foster quent affection, him, kept was and lacked uncaring father “beat money.” in collect care only him his home foster Common- wealth Brief at 40. court, claim, this called addressing Appellant’s
The PCRA introducing claim that he was from evidence re- prohibited father’s a “blatant misstatement of garding his foster death at 247. A review of the trial Opinion the facts.” PCRA Court findings. Lydia the PCRA court’s Banks transcript supports father, older, testified that foster was had been Appellant’s died, he approximately years sick for three before and was Trial, at 1350. bedridden for the last two. N.T. 8/14/90 further testified that his death was not result of an She but that he had “some other and that he injury, problems,” he died. Id. at 1351. years Accordingly, was 85 old when merit claim that the trial court Appellant’s there is no him of his father’s death. precluded introducing from evidence ineffective for Accordingly, failing trial counsel was not or this claim. present preserve presentation of non-
2. Commonwealth’s statutory aggravating circumstance pending charges
of murder maintains that the trial court erred Appellant to introduce at the allowing penalty phase Commonwealth “pending of his trial evidence that had murder Appellant him. Brief at 74. charges” against Appellant’s Specifically, that, although significant history contends of Appellant convictions is an factor under felony aggravating violent 9711(d)(9), criminal is pending charges § evidence of Pa.C.S.A. further asserts that counsel were ineffec- prior not. claim.36 litigate tive for this failing preserve is as follows. Appellant’s The basis for claim Several matter, tried months before trial in the instant 8, the supra Lisby. for the murder of Mark As noted note a verdict on the Lisby initially only case reached Herein, the conspiracy. offense of criminal conviction, as as conspiracy introduced evidеnce of this well Wilkinson, conviction for the murder of Neil of circumstance of a purpose establishing aggravating history felony of violent convictions. At one significant point one of the during questioning, the Commonwealth’s detectives “was and there conspiracy, stated convicted are charges possessing of murder and instruments a crime Trial, 8/14/90, N.T. pending.” Appellant argues still impermissible that this statement constituted evidence of an non-statutory aggravator. claim,
In court concluded rejecting Appellant’s *59 (1) the the harmless because the admission of statement was jury only was instructed to consider convictions when deter- whether there was an factor under Section mining aggravating (2) 9711(d)(9), jury aggravating the had found a separate circumstance, i.e., grave a risk to others under creating 9711(d)(7), circumstances, § and no mitigating Pa.C.S.A. of a death sentence. thereby requiring imposition “[wjithout however, that the evidence of Appellant suggests, jurors more have charges,’ may the murder one or ‘pending been unconvinced that the two valid convictions established 9711(d)(9)], or have aggravating the factor Section [under weight.” Appellant’s those convictions little Brief at 75. given that, “but for counsel’s deficient Appellant further claims jury it is that the would have performance, reasonably likely circumstances,” and that the re- “prejudice found mitigating rights alleged of here sulting Appellant’s from the violation should be assessed performance and from counsel’s deficient Appellant in his Amended PCRA Petition. 36. raised this issue light, in that the error was not cumulatively____ Viewed Brief at 76. Appellant’s harmless.” First, by as noted Appellant’s find no merit to claim. We court, that it jury specifically the was instructed the PCRA the use of “felony involving consider convictions only could violence,” of aggrava- threat of the existence determining above, N.T., 8/14/90, is jury at 1380. As noted ting factors. Travaglia, to follow a trial court’s instructions. presumed any 884. fails to offer evidence that the Appellant A.3d at follow the court’s instructions in this case. jury failed to court, Moreover, the found a jury as noted 9711(d)(7), factor under Section which separate aggravating the facts of the instant case. solely was tied to Where finds at least one circumstance and no aggravating mitigating circumstance, it must a sentence of death. Additional- impose ly, irrespective pending of the statement as to the murder there was evidence to charges against Appellant, support 9711(d)(9) jury’s finding aggravator, including Section conviction for the Wilkinson murder and his con- Lisby viction for to commit murder case. conspiracy Thus, fails to establish that he was prejudiced by subject the detective’s statement that to pend- ing charges. Accordingly, murder we hold trial counsel was object statement, and, for failing not ineffective to further, counsel cannot be deemed appellate ineffective raise the issue on failing appeal. proof aggravating Commonwealth’s circumstances
through hearsay inadmissible next argues permit the trial court erred Commonwealth, objection, over its ting prove defense aggravating hearsay, circumstance with inadmissible and that appellate failing preserve counsel was ineffective for *60 litigate significant this issue.37 To establish that he had a convictions, of violent the murder of history felony specifically, conspiracy Lisby, Wilkinson and to murder Common introduced from the clerk of ses- testimony quarter wealth Appellant 37. raised this issue in his Amended PCRA Petition. testimony also introduced the of sions. The Commonwealth Koscinski, testified that the murder of Detective Chester who and committed to a drug-related pursuant Wilkinson was was 8/14/90, contract, Trial, of testimony N.T. McGuoirk, Lisby Detective Franklin who stated that was Lisby, drugs killed because his Terrance sold for an nephew, drugs use of some of those organization Lisby’s personal in Lisby approximately caused Terrance to be short $100 Id. at 1328-29. Trial counsel objected collection. mistrial, testimony and moved for a but was denied. Appellant argues because Detective Koscinski’s testi- mony reports eyewitness was based on the of an and the examiner, medical and Detective testimony McGuoirk’s was others,” on “entirely reports testimony based hearsay, both men was inadmissible which violated his right confront and cross-examine witnesses. Brief at Appellant suggests “every damaging also fact of the underlying aggra- conviction” is not admissible to establish an 9711(d)(9). Id. § vating factor under Pa.C.S.A. appellate contends there was no reasonable basis for counsel to raise on appeal. not this issue
The Commonwealth contention that the disputes Appellant’s testimony improper hearsay, detectives’ because the de- tectives had “first-hand information as to the crimes— prior they saw the victims’ bodies and were court when the They competent verdicts were delivered. were witnesses as to the circumstance.” Commonwealth’s Brief at aggravating 58. The also was enti- argues prosecutor underly- tled to evidence and as to the facts present argument ing Appellant’s convictions. cannot succeed on his claim that counsel appellate because failing appeal
was ineffective to raise this issue claim that the trial court erred Appellant’s underlying Detective Koscinski admitting the evidence is without merit. investigation testified that he in both the and the participated murder, arrest of in connection with the Wilkinson Trial, and that he was for the trial in that case. N.T. present 8/14/90, at 1324. Detective testified that he investí- McGuoirk *61 Appel- and was shooting Lisby, present the death of
gated at 1328. fails to Appellant for that murder. Id. lant’s trial his that the detectives’ support allegation offer evidence in others, thereby only reports was based on the testimony Moreover, this has hearsay. explained: Court constituting a hearing proceeding is not sanitized capital sentencing [A] circumstances. to evidence of only aggravating limited Rather, must, the of the by necessity, jury history it inform natural of the events and offenses with development and as well as those of which he has Appellant charged, which is convicted, understand the jury may truly been so that the character. nature of the offenses and Marshall, v. 537 Pa. Commonwealth (1994). in the instant case was brief testimony The detectives’ jury and informed the of the straightforward, simply and was convict- Appellant events which led to the crimes of which the allowing ed. The trial court did not err evidence, counsel was not appellate to introduce this and ineffective for to raise the issue on failing appeal. during penalty phase
4. Prosеcutor’s comments Appellant prosecutor next maintains that the violated his Sixth, Eighth, and Fourteenth Amendment under the Unites comments rights by making improper States Constitution trial, during closing argument phase at the of his penalty and that all counsel were ineffective for prior failing pre- litigate Specifically, Appellant argues serve and this claim. (1) that the commented on his lack of prosecutor: improperly (2) contrite?”; jury remorse the “is he by asking misrepresen- ted the record the by suggesting Appellant “pulled trig- (3) same; when the evidence did not the im- ger” establish properly mitigating by asking jurors attacked the evidence child, if it was their fault that was a foster (4) Bible38; making improper several references to the im- stated, written, point, prosecutor 38. At one are the “[fit’s blessed they mercy,” whether merciful for shall receive and asked Trial, 8/14/90, shooting had been merciful when Waters. N.T. at 1365. swayed youth suggesting jury by Appellant’s mitigat- In not be as murders, ing prosecutor factor in the Wilkinson and Waters stated: (5) argued Appellant’s dangerousness; future properly to the for a sentence improperly personalized plea made of death. that, in correctly
The Commonwealth
observes
his Amended
petition, Appellant challenged only
prosecutor’s
PCRA
contrite,
comment regarding
whether
and that
court did not
remaining
address the
comments
*62
opinion. Accordingly,
its
to the re-
Appellant’s challenges
prosecutor’s
mainder of the
comments are waived. See Santi-
(claim
ago,
Regarding
claim,
the merits of Appellant’s preserved
the
that,
transcript reveals
at one
in his
point
closing,
prosecu-
“No,
tor stated:
it’s not about him
a
being
foster child. It’s
not about him
being
high
drop-out.
school
It is not about
and,
him
here in
appearing
today.
court
He chose this path
strange, his own evidence now only
you,
comes before
is he
contrite? And the Court will tell
he doesn’t
you,
have to
Trial, 8/14/90,
testify here.” N.T.
at
Appellant argues
that,
contrite,
he was not
suggesting
prosecutor improp-
erly commented on his failure
testify
because
only
“[t]he
way Appellant could show contrition
by
would be
testifying.”
Appellant’s
Brief at 81. Appellant also asserts
in com-
contrition,
menting on his lack of
the prosecutor urged the
jury to consider a non-statutory aggravator as a basis for
imposing the death penalty.
Id. The PCRA court concluded
that the prosecutor’s remark was “clearly addressed to the
submitted, and, therefore,
character evidence” that Appellant
Clark,
was
pursuant
admissible
to Commonwealth v.
551 Pa.
(1998)
spake grew up, gave up as a I acted as a I but when I things.” childish Id. at 1368. case, because, did not in the instant distinguishable Clark did behalf, whereas the defendant testify on his own testify. argument, Commonwealth response
In comment on a defendant’s may maintains that a prosecutor as it is not an extended tirade long failure to show remorse so factor. undue attention on this Commonwealth’s focusing Holland, 405, 543 v. Commonwealth (citing Brief at 60 518 Pa. (1988) improperly did not comment (prosecutor A.2d 1068 testify closing not to when he noted appellant’s right had shown no argument sentencing appellant crimes)). The thus contends remorse for his proper that “the brief ‘contrite’ comment was a prosecutor’s to the that defendant’s cir- response argument past defense Brief at 60. mercy.” cumstances warranted Commonwealth’s This has repeatedly explained Court “Com ments not constitute reversible error prosecutor do of such comments would be to unless unavoidable effect in their minds fixed bias and prejudice jury, forming *63 the defendant so could not the hostility they weigh toward Common evidence and render a true verdict.” objectively Fletcher, (2004) wealth v. 580 Pa. (citations omitted). Moreover, prosecutor’s a comments do Id. Furthermore: not constitute evidence. case, the of a where the
During penalty phase capital presumption longer applies, of innocence no the Common- in arguing position wealth is afforded reasonable latitude its in jury may employ arguing to the oratorical flair nothing improper the death “There is penalty. of the death prosecutor arguing appropriateness penalty jury is the issue before the at the only penalty because that phase prosecutor may properly respond of the trial.” The defendant to presented by prove mitigating to evidence Moreover, may urge circumstances. prosecutor “[a] mitigation to disfavor the defense’s evidence in favor of jury imposing penalty.” the death (citations omitted). to hold prosecu- Id. at 917 We decline tor’s comments in the instant case constitute reversible error. judice,
In the case sub introduced at the Appellant penalty sisters, trial the phase testimony Lydia his two foster Banks and Lillian Appellant’s White. Banks testified that him; mother abandoned that their elderly; foster father was and that didn’t have Appellant really figure. a father Banks jail, also testified since he has been has been school, to going and has become a Muslim. also White him, testified to the fact that mother Appellant’s abandoned and, when she felt why jury asked that the should impose life sentence instead of the penalty, death she stated: “[h]e really get wants to his life back He together. get wants to now, religion just GED. And he is into and he deserves a Trial, 8/14/90, chance.” N.T. at 1353. agree
We with the PCRA court that the prosecutor’s com- ment was in response fair to Appellant’s presentation of mitigation evidence under the catch-all mitigator specifically, — testimony of Appellant’s foster sisters that has See, Fletcher, found religion become a Muslim. e.g., Moreover, A.2d at 917. we find no merit to Appellant’s contention that the prosecutor’s suggested comment to the jury duty had a as the testify, prosecutor specifically told the Appellant was not required testify, and the court instructed the jury accordingly. See Trial, 8/14/90, Thus, N.T. at 1381-82. as the comments by the prosecutor response were fair introduction of Appellant’s evidence under the mitigating mitigator, catchall and did not suggest that Appellant duty testify, had a there was no basis which upon objected trial counsel should have to the comment, and, thus, prosecutor’s upon no basis which to such, conclude trial counsel was ineffective. As derivative claim of counsel’s appellate ineffectiveness also fails.
5. “Life means life” instruction
Appellant
argues
next
that his due process rights
were violated when the trial
give
jury
court failed to
a
sentencing hearing
“life-means-life” instruction at his
pursuant
Carolina,
154,
2187,
to Simmons v.
512
114
South
U.S.
S.Ct.
(1994)
that,
(plurality).39 Appellant argues
As Simmons Simmons, Prior to years Appellant’s decided four after trial. in an instruction to the prohibited the law this Commonwealth parole. that life meant life without Com- imprisonment Edwards, 134, 818, monwealth v. 521 Pa. 555 A.2d 830-831 (1989). Therefore, because, trial, at the time of Appellant’s forbidden, instruction was the trial court did not err Simmons Likewise, such instruction sua failing give sponte. an trial counsel cannot be deemed ineffective for to re- failing instruction, quest expected such an as counsel cannot be Gibson, change the law. Commonwealth v. anticipate (1997). Pa. Accordingly, Appellant’s claim fails. evidentiary hearing
6. Denial of on claim of counsel’s presenting mitigation ineffectiveness in evidence next contends that the court Appellant erred an denying evidentiary hearing without his claim that he did not receive effective assistance of counsel at the sentencing of his trial. phase Appellant alleges that counsel “conducted no meaningful failed to pre-trial mitigation investigation; develop more than the most minimal life history mitigation; failed to evidence; mental health develop mitigation presented to none of the jury virtually compelling mitigation available to the defense.” Brief at 62-63. fur ther asserts that counsel “utterly failed to advocate for Appel closing argument,” lant at and “failed to discuss how the mitigating outweighed aggravating evidenced circum stance.” Id. at 63. case, above,
In the instant and as noted defense counsel two witnesses at presented Appellant’s penalty Appel- trial: sisters, lant’s foster Lydia Banks and Lillian White. Both witnesses testified that had been abandoned raised this issue in his Amended PCRA Petition. *65 mother; life; that, that he lacked a father in his and figure incarcerated, working since towards his being Appellant GED, and became a devout Muslim. Banks further testified jail, that had never been in and she stated that their Appellant Trial, “taught right wrong.” mother all from N.T. [them] 8/14/90, at that Appellant 1347. She stated was raised home, family every and that went to church Christian at 1348. In Sunday. closing jury, Id. his to the defense argued, counsel inter alia:
I’m that under the law also it’s suggesting you proper give a life because when take those imprisonment you factors, mitigating you when take the factor he has never himself, opportunity you had an to rehabilitate take the factor of his take the factor of youth, participation being minimal, others, weigh against and them that balances it out it and balances such that he should be entitled to live. at 1379. Id.
Thereafter, its to the the trial court during charge jury, instructed the jury that it could consider three mitigating crime; circumstances: at the time Appellant’s age of the fact that in the Appellant’s participation homicidal act was minor;” and other “relatively any regarding evidence character and of Appellant record and the circumstances of however, the offense. Id. at 1381. The miti- jury, found no circumstances. gating
Appellant argues now that trial counsel was ineffective for witnesses,” failing “readily including to contact other available sisters, mother, two additional Appellant’s foster foster and birth mother. Brief at Appellant’s According these Appellant, additional witnesses would have estab- lished, alia, child; inter Appellant that was abused as a had slow development; injuries. Appel- and sustained two head lant further despite knowing contends had care, been in foster trial records from counsel failed to obtain Alliance, organization super- the Women’s Christian which care; vised his foster his records from the Philadelphia public schools; Hospi- and records from Pennhurst State School and tal, all of which would have documented his birth purportedly impairments of mental retardation and history
mother’s also claims that trial his own difficulties school. a mental health failing present counsel was ineffective suffered from a expert who would have testified of mental disorders as a result of his foster care variety environment, abuse, prior injuries. childhood head that Appellant explicitly
The Commonwealth emphasizes *66 or mental health psychiatric told the trial court that he had no issues, or alcohol. drugs and that he did not use Common- Brief The further notes that wealth’s at 41-42. Commonwealth they foster sisters testified that with were raised Appellant’s id. environment,” in a and stable and that “supportive affidavits included his purported Appellant Supplemental Reproduced describing Appellant’s Record abusive alleged are “diametrically opposed” testimony childhood to the offered Id. at 46. by Appellant’s penalty hearing. foster sisters at the Moreover, that, the contends the Commonwealth because unwitnessed,” they “documents are unsworn and do not quali- Id. fy as affidavits. at 45 n. 44. above,
Based on the the Commonwealth maintains that trial counsel’s “decision to as a foster present [Appellant] deprived child, was a changed supportive who now man with a and reasonable,” loving family, objectively was and cannot form ineffectiveness claim. Id. at 44. the of an Additionally, basis the Commonwealth asserts that has failed to estab- that, by lish had the additional prejudice showing evidence presented been and considered the would jury, have found a circumstance that mitigating outweighed two aggravating circumstances. conclude that has waived this claim
We for two First, reasons. we note in his separate Amended PCRA Petition, (1) the trial court erred in alleged refusing him mitigating allow to introduce evidence of his foster offense, shortly father’s death before the commission of the (2) above; rejected claim which we have and trial counsel was failing ineffective for to discuss the mitigating evidence and “how and circumstances presented why mitigating outweighed circumstances.” Amended Pe- aggravating PCRA ¶ specific allegations regard tition at 84-85 184. Appellant’s members, family trial counsel’s failure to contact other ing records, mental present obtain his school and foster care evidence, however, health were raised for the first time Petition, Amended Supplemental PCRA which PCRA Thus, does not to have appear Appellant’s court authorized. Elliott, claim is waived on this basis. supra; Roney, See Porter, supra; supra.40
Moreover, as we have discussed above with
regard
Appel-
claim,
lant’s Batson
after the Commonwealth filed its initial
Petition,
motion to dismiss
Amended
Appel-
on,
lant
that he was entitled to an
argued
evidentiary hearing
alia,
inter
his Batson claim and the issue of whether
trial
failing
counsel was ineffective for
investigate, prepare,
present
mitigating
sentencing.
relevant
evidence at
Although
to an
agreed
evidentiary hearing
these
issues, and, although Judge Lineberger
hearing
scheduled a
occasions,
on several
Appellant repeatedly sought
delay
hearings; sought recusal of the
judge;
PCRA court
demanded
funds”;
“substantial
expert
demanded three
consecutive
*67
weeks
which to conduct
during
“protracted” hearings;
threat-
file
ened to
a formal motion for sanctions
against
Com-
monwealth;
and
an order
sought
preclude
would
witnesses,
Commonwealth from “cross-examining any defense
witnesses,
presenting any
from
and from making any written
that,
separate argument
40. We also note
in a
section of his Amended
Petition, Appellant
contends that his death sentence should be
jury
penalty
vacated because the trial court’s instructions to the
at the
phase erroneously
weigh
aggravating
advised the
how to
mitigating
part
argument, Appellant
circumstances. As a
of this
as-
serts:
paper
jury apparently
The fact that on
this
did
find
not
even one
mitigating circumstance does not somehow render "harmless” this
matter,
significant
general
grievous
many
error. As a
so
errors were
applicable mitigating
committed
connection with the otherwise
surprising
mitigation
circumstances that it is not
that no
was found.
First,
mitigating
trial counsel failed to introduce abundant
evidence
(3)
supported
mitigators.
would
have
at least three
distinct
See
Supplemental Amended Petition.
¶
However,
supplemental
Amended PCRA
Petition
89-90
195.
petition
amended PCRA
to which he refers was not of record at the
time.
Judge
from Daniel
argument.”
or oral
Letter
Silverman
6/21/05,
regard
at 3. As we concluded with
Lineberger,
claim,
hearing
Appel-
Batson
the absence of a
Appellant’s
dilatory
the result of his own
mitigation
lant’s
claim was
demands,
he cannot now complain
tactics and excessive
improperly
hearing.
that he was
denied
effect of errors
Cumulative
that, if this
con
Finally, Appellant argues
Court
that he is not
to relief based on the prejudicial
cludes
entitled
error,
any single
effect of
he is entitled to relief because of the
cumulative
effect of all of the errors set forth in his
prejudicial
brief.
It is well settled that no number of failed
appellate
warrant relief if
may collectively
they
ineffectiveness claims
Johnson,
fail to
v.
individually.
do so
Pa.
(2009).
However,
we have recognized
found,
multiple
performance
“if
instances of deficient
are
may
the assessment of
be
prejudice properly
premised upon
(citations omitted).
cumulation.”
Similarly, regard Appellant’s penalty-phase claims of counsel, ineffectiveness of rejected only we have one of his object claims—trial counsel’s failure to to testimony that pending charges had murder him—on the against basis that he failed to demonstrate prejudice. Accordingly, claims, with respect Appellant’s penalty-phase there is no upon basis which to evaluate claims under the theory prejudice. of cumulation of
III. Conclusion *68 sum, In as we conclude that none of are Appellant’s issues meritorious, we affirm the of the denying order PCRA court relief. affirmed.
Order EAKIN, and Justices Chief Justice CASTILLE join opinion. McCAFFERY STEVENS BAER a concurring opinion. files Justice dissenting opinion. SAYLOR files a Justice BAER, concurring. Justice join subject my
I reservation Majority Opinion, claim of regard Appellant’s prosecuto- discussed below with rial misconduct. describes, Majority
As the
that his due
Appellant argues
process rights
by
prose-
were violated
several statements the
guilt
cutor made
during closing argument during
phase.
202-04,
Maj.
at
other state-
Op.
Among
See
at
99 A.3d
objectionable
prosecutor’s derog-
ments
finds
is the
comment
him as a
atory
characterizing
“gangster”
“gun
streets,”
and the
slinger” “marauding
prosecutor’s plea
jury
take
“and his kind” off the streets. See
211-14,
Maj. Op. at
As we have
explained,
effect is to
only
tute reversible error
where their unavoidable
in their minds a fixed bias and
prejudice
jury, forming
such that
could not
hostility
they
weigh
toward the defendant
objectively
the evidence
and render a fair verdict.” Common-
(2008).
Tedford,
wealth v.
598 Pa.
Not-
reversal,
have
this
standard for
we
“stri-
withstanding
high
which,
certain
statements
dently
prosecutorial
condemned”
message”
a criminal
to “send a
to the
example, urge
*69
justice
or the criminal
v.
community
system. Commonwealth
(2009).
Patton,
307,
1283, 1287
604 Pa.
985 A.2d
LaCava,
221,237
160,
In
v.
542 Pa.
666 A.2d
Commonwealth
(1995),
jury
to the
in the
prosecutor argued
penalty
where the
dealer,
drug
that the defendant was a
that
dealers
phase
drug
him”)
that
neighborhood,
like
had wrecked the
and
(“people
this,”
like
had made the streets
guys,”
“guys
“these
and
unsafe, we found that
the
crossed the line and
prosecutor
purpose
in misconduct. We
that “the sole
engaged
explained
jury’s
comments
to turn the
prosecutor’s
attempt
of the
was
into
sentencing
appellant
plebiscite
drugs
drug
a
and their destructive effect on
Id. at 237.
society.”
dealers
Johnson,
527,
also
v.
516 Pa.
The
holds that
the comments made in this case
sufficiently
they
were
rooted in the evidence because
referred
individuals,
to the three
specifically
including Appellant, who
to thrown
responded
by chasing
group
snowball
a
of children
streets,
through city
and to
fired
Appellant specifically, who
people, killing
very
into a crowd of
the victim.
I view this as a
I ultimately agree
Majority
close case. While
with the
in
carefully reading
prosecutor’s closing argument
its
totality, one can conclude that there
adequate
was an
basis
remarks,
for the prosecutor’s
the record
and that
the com-
ments did not have “the unavoidable effect” of
prejudicing
verdict,
jury
they
to the extent that
could not render a fair
see
Patton,
(2009)
Commonwealth v.
604 Pa.
Prosecutors who to the to consider the actions appeal defendant, kind,” of individuals other than the “his in the words, prosecutor’s by injecting risk reversal irrelevant con- siderations of into the general criminality society jury’s deliberations. Such comments be construed as may designat- *70 ing the defendant as the of such representative criminality, may encourage jury way curing convict as a broader social affliction of crime rampant perpetuated by “his Here, kind.” potential this for reversible error was exacerbat- prosecutor ed when the referred to as a gangster, marauder, macho gun slinger, Although man. with some join hesitation I the Majority Opinion herein because the record, prosecutor artfully tied his comments to the his argu- error, ments were as close as I can conceive to reversible without I reaching suggest threshold. that prosecutors would be well-advised to avoid comments such as these in the future.
Thus, I ultimately agree while with the in its Majority issue, resolution of this I admonish prosecutors to curb their try excesses and to their cases on the evidence against defendant, rather than on unconnected to the criminality Moreover, evidence in the case. prosecutors should avoid the gratuitous name-calling herein. test- prevalent By continually flair, ing the outer limits of oratorical prosecutors may well cross prosecutorial the line into misconduct and invite a reversal. This instance came perilously close. SAYLOR, dissenting.
Justice I find that the post-conviction court has offered unsustaina- ble reasons its denial of an supporting evidentiary hearing several claims raised in first post-conviction peti- tion.
For example,
summarily
the PCRA court
dismissed Appel-
lant’s claim that his trial counsel was ineffective for
failing
request
special, cautionary
concerning
instruction
the reha-
bility
eyеwitness
per
identification
Commonwealth v. Kloi-
(1954).
Kloiber,
ber,
412,
378 Pa.
where the witness is not observe the assailant, identity, or he is not as to or his positive positive by statements as to are weakened or identity qualification on one by identify prior or more failure defendant occasions[J 424, added);
Id. at (emphasis 106 A.2d accord Com- Rollins, 435, monwealth v. 558 Pa. 555 n. (1999) n. 14 that a Kloiber (observing charge instructs the eyewitness’s that an should identification be viewed with cau- tion, alia, inter where the witness “had a problem making an identification in the past”). court, however,
The
simply ignored
highlighted
aspect
example,
of Kloiber. For
the court
explained
“while it is true that some of the witnesses to whom the
[Appellant
having
identify
refers to as
failed to
him pretrial]
statements,
give
did
inconsistent
their
prior
testimony at trial
could not be characterized as
from one
coming
who lacked ‘a
position to observe’ or not
or
being
‘weakened
positive,
*71
qualifications,’ such as to
such a
require
cautionary charge.”
Reid,
CP-51-CR-1024821-1998,
Commonwealth v.
Nos.
CP-
(C.P.Phila.
51-CR-0602521-1989, slip op.
14,
at 35-36
Feb.
2011).
course,
analysis
Of
the court’s
is materially incomplete,
since it
displaces
aspect of Kloiber most relevant
to
Appellant’s arguments
cautionary
is
charge
required
also
—the
eyewitness’s
where the
statements as
“positive
identity
are
by
weakened ...
failure to identify defendant on one or more
Kloiber,
prior occasions.”
Q. correct? correct,
A. That’s counsel. you If Mr. Keenan had come back to at a later time Q. [to misidentification], correct the would have recorded that? you A. Yes. in
Q. you your And don’t have that records? No, I
A. do not.
N.T., 9, 1990, at 1047-48. Aug.
The court aware of Keenan’s misidenti- previous was Nevertheless, fication. based on its apparently piecemeal ambit, Kloiber’s the court shifted the from portrayal inquiry whether there in previous identify failure to the first any instance to whether there was in Keenan’s inconsistency Reid, CP-51-CR-1024821-1998, testimony. trial Nos. See CP-51-CR-0602521-1989, at 38 slip op. (opining Appel- lant “has any inconsistency failed to establish real testimony, any witnesses’ let that could be considered alon[e] degree to be inconsistent to the that would a caution- require instruction”). however, ary Kloiber or its Nothing progeny, Rather, it, such I suggests any redirection focus. as read merely the trial court’s role relative to a Kloiber is charge determine whether there were with identi- problems previous (or fications other circumstances an suggesting eyewit- caution) and, so, if testimony ness’s should be treated with See, Kloiber, give e.g., the instruction. 378 Pa. at at 827.1 A.2d contrary, post-conviction approach,
To the
court’s
credit-
majority,
by
ed
relies on time-of-trial
explanations
identify.
others for the
failure to
eyewitness
previous
and/or
See,
183-89,
e.g., Majority Opinion at
apparent face, in- thereby removing properly on their explanations juries determining from their essential role the structed Common- before them. credibility appearing of the witnesses Markman, (2007) 249, 280, 586, wealth v. 591 Pa. 916 A.2d 604 credibility that “witness assessments are within (explaining realm”).2 the exclusive jury’s
Significantly, the recent decision Commonwealth v. Walk-
er,
(2014),
450,
625 Pa.
241
identification.” Id.
eyewitness
“the
of
vagaries
tion to address
Wade,
v.
471,
at 779
United States
(quoting
at
92 A.3d
(1967)).
1926, 1933,
218, 228,
The court also trial counsel posited PCRA should have a Kloiber there is no reason- requested charge, able that the result of trial would have probability Appellant’s Reid, been event. Nos. any different CP-51-CR-1024821- 1998, CP-51-CR-0602521-1989, In slip at 38-39. this line op. of the court relied standard reasoning, upon credibility inconsistent-statement instructions as supplanting any N.T., Kloiber at separate charge. (citing role for See id. 1234-36). 13, 1990, 1227-30, August apprehend, I do not however, jurors to generic advising adjudge how instructions and inconsistent statements obviates the role of a credibility Indeed, so, if is as cautionary charge. may Kloiber this we remove Kloiber from our lexicon. well I have concern about the Separately, expressed my type judicial reflected in the court’s decision-making post-conviction impact and the deleterious such deficient opinion accepting See, v. appellate e.g., treatment on review. (2013) 60, 111-15, 620 Pa. 284-86 Simpson, J., thoughts I those here (Saylor, dissenting). incorporate reference. above, I would vacate the court’s order
Based on the claims and remand for treatment of appropriate stewardship to the of his trial counsel including challenge Moreover, in the request charge. for his failure to a Kloiber hurdle, I believe that an evidentia- procedural absence of some so that the reasonable- ry hearing should be made available inquiry might basis and of the ineffectiveness prejudice prongs properly. be addressed
Supreme Pennsylvania. Court of 26, Aug.
ORDER PER CURIAM. NOW,
AND
day
this 26th
August,
Petition for
GRANTED,
Allowance of Appeal is
the order of the Superior
VACATED,
Court is
and the matter is REMANDED to that
Castro,
court for reconsideration in
v.
light Commonwealth
(2014).
625 Pa.
relinquished.