Commonwealth v. SantiagoCommonwealth v. Santiago
Lead Opinion
Salvador Carlos Santiago (“Appellant”) appeals from the denial of his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
On January 17, 1985, Appellant robbed and murdered Patrick Huber (“Huber”) at the Minuteman Press, a print shop located on the South Side of Pittsburgh. Cindy Pasternak (“Pasternak”), a co-employee of Huber’s, observed Appellant in the Minuteman Press during the commission of the crimes.
Appellant was tried before a jury on charges related to this murder. His defense was that he was insane at the time of the commission of the crime. The jury rejected this defense and found Appellant guilty of, inter alia, first degree murder.
On appeal, this court found that Appellant’s Fifth Amendment right to counsel had been violated when Appellant invoked his right to counsel with regard to a different offense, but was questioned by police concerning the murder of Huber. Commonwealth v. Santiago,
A new trial was held in September of 1992. Rather than once again presenting a mental defect defense, a defense which failed to persuade the jury in Santiago I, Appellant’s guilt phase counsel at the second trial attempted to establish to the jury that reasonable doubt existed in this matter. The jury rejected this defense, and Appellant was found guilty of first degree murder and robbery.
A penalty phase hearing then commenced at which Appellant was represented by new counsel. The jury found three aggravating circumstances: the killing was committed during the perpetration of a felony;
Appellant, represented by a new attorney, appealed to this court. We affirmed. Commonwealth v. Santiago,
Appellant then filed the instant appeal with this court. For the reasons that follow, we affirm the order of the PCRA court.
The first claim that must be addressed is Appellant’s contention that the trial and PCRA proceedings were conducted by a biased jurist and therefore Appellant’s constitutional rights were violated. Appellant contends that he is entitled to either a new trial, a new PCRA hearing before a different jurist, or an evidentiary hearing at which .this issue of alleged bias can be explored.
This claim, however, was not raised in Appellant’s' PCRA petition. In an apparent effort to explain this failing, Appellant asserts that he did not know of the facts establishing the judge’s alleged bias until after the jurist had disposed of the PCRA petition.
Regardless of the reasons for Appellant’s belated raising of this issue, it is indisputably waived. We have stressed that a claim not raised in a PCRA petition cannot be raised for the first time on appeal. We have reasoned that “[pjermitting a PCRA petitioner to append new claims to the appeal already on review would wrongly subvert the time limitation and serial petition restrictions of the PCRA.” Commonwealth v. Bond,
Appellant next contends that a hearing should have been held on all the issues he presented in his PCRA petition, and not just on the claim that he was incompetent to stand trial. The Rules of Criminal Procedure provide that a PCRA court judge is to hold a hearing where a PCRA petition raises any material issues of fact.
In the matter sub judice, the PCRA court determined that there were issues of material fact only as to the claim that Appellant was incompetent to stand trial. The PCRA court found that it could resolve the other issues on the record presently before it. Appellant’s scant argument as to this issue, which amounts to nothing more than the bald claim that there were material issues of fact relating to his other claims, does not establish that the PCRA judge improperly refused to hold a hearing on the remaining issues.
We now turn to examining Appellant’s assertion that he was incompetent at the time of trial. At the outset, we note that the issue of Appellant’s competency was not raised at trial or on appeal. Usually,
Appellant argues that it is impossible to determine his competency at the time of trial via a retrospective PCRA hearing. He contends that since the issue of competency was not litigated in his September of 1992 trial, a new trial must perforce be awarded. He asserts that the PCRA court abused its discretion when it held a hearing on this issue and did not simply award Appellant a new trial.
We first address Appellant’s assertion that the PCRA court abused its discretion when it held a hearing on the issue of Appellant’s competence at the time of trial rather than automatically awarding a new trial. Apparently, Appellant is of the belief that whenever a claim regarding a defendant’s ability to stand trial is raised for the first time after the trial has ended, a new trial should be awarded. He argues that such a rule is compelled by the United States Supreme Court’s decisions in Drope v. Missouri,
There are decisions of this court in which we have accepted, without discussion, that the issue of the defendant’s competency at trial may be decided via a retrospective hearing. See, e.g., Commonwealth v. Johnson,
At this juncture, we must articulate the test as to when a retrospective hearing may be held where the issue of defendant’s competency at trial is raised in a PCRA petition, and apply this test to the matter sub judice. First, the PCRA court must determine whether the defendant’s PCRA petition raises a material issue of fact concerning whether he was competent at the time of trial such that he would be entitled to a hearing on the claim. See
Next, the PCRA court must decide whether there exists sufficient evidence of defendant’s mental status at the time of trial such that a hearing would be adequate to address the issue of competency, or whether the evidence is so lacking that a new trial must be awarded. In determining whether a meaningful retrospective hearing can take place, some of the factors that the PCRA court should consider are the passage of time since the trial, statements made by the defendant at trial, the availability of contemporaneous medical and psychiatric evidence, and the availability of witnesses—both expert and nonexpert—who could offer testimony regarding the defendant’s mental status at the time of trial. See Reynolds,
In applying this test to the matter sub judice, we find that Appellant established that there was a material issue of fact. Appellant claimed in his PCRA petition that at the time of trial, he was incompetent as he was unable to understand the nature of the proceedings and was unable to offer assistance to his counsel at trial; he indicated that he had experts ready and willing to testify on this point. The Commonwealth, on the other hand, denied that Appellant was incompetent at the time of trial. As there were real factual disputes concerning Appellant’s mental status at the time of trial, the PCRA court appropriately ordered that a hearing be held.
Next, we must determine whether the PCRA court properly held that there was sufficient evidence available in order to determine Appellant’s competency. The PCRA court below found that a hearing could be held as evidence regarding Appellant’s mental state at the time of trial—in the form of observations of experts and trial counsel—was available. Furthermore, we note that the hearing in this matter was held approximately three years after Appellant’s trial. This passage of time is not so lengthy as' to call into doubt the witnesses’ ability to recall Appellant’s demeanor and actions. In light of these factors, we conclude that the PCRA court did not abuse its discretion when it held a retrospective hearing.
We now turn to an examination of the PCRA court’s conclusion that Appellant was competent at the time of the 1992 trial. Our analysis begins with the principle that a defendant is presumed to be competent to stand trial. See Commonwealth v. duPont,
After reviewing the evidence, the PCRA court found that Appellant was not incompetent at the time of the 1992 trial. The PCRA court noted that of the experts testifying on behalf of Appellant, the bulk of them had not examined Appellant at the time of the 1992 trial.
The PCRA court then turned to examining testimony of the attorneys who represented Appellant at the guilt and penalty phases of his trial. The attorneys testified that Appellant manifested that he understood the nature of the charges against him. Furthermore, Appellant participated in formulating his defense. PCRA court slip op. at 9-12. The PCRA court credited this testimony.
The PCRA court weighed all of the evidence presented at the hearing. It concluded that Appellant had not established that he was incompetent at the time of his 1992 trial. As we do not perceive that the PCRA court abused its discretion in making this determination, we deny Appellant relief.
Appellant’s remaining claims are of trial court error, prosecutorial misconduct, and ineffective assistance of all prior counsel. As Appellant’s issues of trial court error and prosecutorial misconduct were not raised on direct appeal, they are waived. See Commonwealth v. Albrecht,
Appellant claims that guilt and penalty phase counsel were ineffective for failing to raise several issues, and that all previous counsel were ineffective for failing to raise these claims. The ineffectiveness claims relative to guilt and penalty phase counsel have been waived, however, as they were not raised when Appellant obtained new counsel on direct appeal, the time which represented the first opportunity to raise these claims. See
Yet, Appellant has also raised a layered ineffectiveness claim as he has alleged that counsel on direct appeal was ineffective for failing to assert claims of guilt and penalty counsels’ ineffectiveness. See PCRA petition at 150. The query now is whether Appellant’s layered claim of ineffectiveness has been preserved.
We recently acknowledged that our court’s jurisprudence regarding the proper manner in which to present and establish a layered ineffectiveness claim has been undeniably “murky”. Commonwealth v. McGill,
Yet, a petitioner does not preserve a layered claim of ineffectiveness merely by focusing his attention on whether guilt or penalty phase counsel was ineffective. Rather, the petitioner must also present argument as to how the second and third prongs of the Pierce test are met with regard to the layered claim. In the matter sub judice, this requirement demands that Appellant establish that direct appellate counsel lacked a reasonable basis for failing to raise the claims that guilt and penalty phase counsel were ineffective, and also that Appellant was prejudiced by direct appellate counsel’s failures.
In applying McGill to this matter, we conclude that Appellant met the pleading requirement as he did plead in his PCRA petition that immediately prior counsel was ineffective for failing to raise the underlying ineffectiveness claims. Yet, he has failed to develop argument on the second and third prongs of the Pierce test with regard to direct appeal counsel. Thus, per McGill, he has not properly preserved his claims of direct appellate counsel ineffectiveness.
We must next determine the appropriate course of action vis-a-vis these unpreserved claims. In some matters where a petitioner has failed to present argument on all three Pierce prongs with regard to the layered ineffectiveness claim, we will remand the matter to allow the petitioner to amend his PCRA petition. McGill,
where the petitioner has pled, presented, and proved his “nested” claim of trial counsel ineffectiveness, a remand is warranted to give the petitioner an opportunity to correct any errors with regard to the pleading and presentation of his claim of appellate counsel ineffectiveness. Nevertheless, there is simply no need to remand a PCRA petition when the petitioner has not carried his Pierce burden in relation to the underlying claim of trial counsel’s ineffectiveness, since even if petitioner were able to craft a perfectly layered argument in support of his [claim of appellate counsel’s ineffectiveness], the petitioner’s claim would not entitle him to relief.
Commonwealth v. Rush,
Thus, per Rush, we need not remand this matter if we determine that Appellant failed to carry his burden of proving that guilt and penalty phase counsel were ineffective.
In examining Appellant’s underlying claims of guilt and penalty phase counsel, we apply general principles of law relating to ineffectiveness claims. As the starting point for our review, we presume that counsel is effective. Commonwealth v. Cross,
In applying this standard to the claims raised by Appellant, we first examine the underlying claims of ineffectiveness. Appellant’s first ineffectiveness claim is that guilt and penalty phase counsel were ineffective for failing to request a competency hearing at the time of trial. As discussed supra, this claim is without merit and thus Appellant has failed to meet the first prong of the Pierce test. Furthermore, to the extent that Appellant’s argument can be read to stand for the proposition that whenever a defendant has at one point in time been diagnosed with a mental illness, then his trial counsel will be deemed ineffective if he does not request a competency hearing at the time of trial, Appellant’s argument is expressly rejected. The fact that a defendant has experienced mental illness in the past does not per se render him incompetent to stand trial.
Next, Appellant asserts that all prior counsel were ineffective for failing to allege that the Commonwealth improperly withheld evidence of Appellant’s mental illness and incompetence in derogation of Brady v. Maryland,
Next, Appellant claims that guilt phase counsel was ineffective when he failed to present a mental health defense. This claim must be rejected. At the PCRA hearing, guilt phase counsel testified that he and Appellant discussed the nature of the defense that would be presented at the second trial. They both agreed that since a mental health defense had failed to convince the jury at the first trial, then it was not sensible to pursue this failed defense at the second trial. PCRA court hearings, N.T., 2/06/1997, at 469-70. Declining to pursue a defense which had proven unsuccessful at an earlier trial is eminently reasonable, and therefore Appellant has not satisfied the second prong of the Pierce test with regard to this underlying claim. Therefore, this claim must fail.
Appellant next contends that all prior counsel were ineffective for failing to allege that the trial court erred when it admitted the psychiatric testimony of Dr.
Appellant himself admits that this court previously rejected his claim that the testimony of Dr. Wettstein was inadmissible at the 1992 trial. See Santiago II. As the claim has been previously litigated, it is not cognizable under the PCRA.
Appellant next contends that prior counsel were ineffective for failing to raise the claim that Appellant’s confession to the police was not freely given because Appellant was mentally ill at the time he made these statements; he also claims that Dr. Wettstein’s testimony, which Appellant considers fruits of his confession to police, should not have been admitted.
This claim must be rejected. First, the confession to the police officers was not introduced at trial in Santiago II. Thus, there is no basis for a claim that counsel was ineffective for failing to object to evidence that was never admitted. Second, as noted supra, the admissibility of Dr. Wettstein’s testimony had been previously litigated in Santiago II and this claim cannot be revived by alleging that counsel was ineffective for failing to argue other theories vis-á-vis this particular claim. Beasley, supra.
Appellant’s next contention is that prior counsel were ineffective for failing to raise the claim that the identification testimony of Pasternak was unreliable. Appellant contends that Pasternak’s identification of him was improperly influenced by a suggestive photo array.
It is clear that the underlying claim of ineffectiveness is not valid as this issue was pursued in post-trial motions; the trial court denied relief on this claim. See Tr. ct. slip op., dated 8/04/1994, at 8. Thus, we cannot find post-verdict counsel ineffective as he did indeed pursue the very issue that Appellant contends he failed to raise.
To the extent that Appellant’s claim challenges the effectiveness of direct appellate counsel for neglecting to raise this issue on direct appeal, this issue also fails. In order to establish that this claim has any merit, Appellant must show that the totality of the circumstances indicate that Pasternak’s identification of him as the murderer was unreliable. Commonwealth v. Baker,
We find that this issue has no merit. In reaching this . conclusion, we rely heavily on the trial court’s disposition of the issue that Pasternak’s identification testimony was unreliable. In rejecting Appellant’s claim, the trial court found that the totality of the circumstances indicated that Pasternak’s identification was reliable. The trial court noted that Pasternak had a clear opportunity to view Appellant committing the crime, and that she watched him for at least fifteen seconds from a distance of no more than twenty feet. Furthermore, Pasternak identified Appellant’s picture only days after the incident and never-failed to identify Appellant as the murderer. Finally, the trial court found that the photographs in the array were sufficiently
Next, Appellant contends that trial counsel was ineffective for failing to present substantial mitigating evidence at sentencing phase. First, he contends that penalty phase counsel should have introduced expert testimony regarding his mental illness. We are somewhat mystified as to this claim as penalty counsel did present expert testimony as to Appellant’s mental health problems. Specifically, Drs. Himmelhoch and Wettstein testified extensively as to Appellant’s history of mental illness. N.T., 9/08/1992, at 321-336; 338-53. To the extent that Appellant’s claim can be read as an argument that counsel was ineffective for failing to put additional experts on the stand, we reject it. We will not find counsel ineffective for failing to produce additional experts who would have given testimony which would have merely been cumulative.
Appellant also contends that penalty phase counsel was ineffective for failing to introduce in mitigation evidence related to Appellant’s troubled childhood. Specifically, he argues that counsel should have elicited testimony that his father had abandoned him, and that his mother and other women in his childhood household abused Appellant, treating him more harshly because he was male.
First, he claims that penalty phase counsel should have called family members, specifically his sister, to testify to the harsh treatment to which Appellant was subjected throughout his childhood. In order to prevail on this claim that penalty phase counsel was ineffective for failing to call a witness, Appellant must show: (1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness’s existence; (4) that the witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) that the absence of the testimony prejudiced appellant. Commonwealth v. Fletcher,
Appellant also claims that penalty phase counsel should have solicited expert testimony that Appellant suffered mental problems due to his allegedly troubled childhood.
Next, Appellant contends that penalty phase counsel was ineffective for failing to request a jury instruction that if Appellant were sentenced to life imprisonment, he would be ineligible for parole; he claims that all prior counsel were ineffective for failing to raise this issue.
A jury instruction that “life means life” is commonly referred to as a Simmons instruction. This is in reference to Simmons v. South Carolina,
Appellant also contends that all prior counsel were ineffective for failing to raise the issue that the Commonwealth inappropriately relied on a murder and two robbery convictions in order to establish the aggravating circumstance of significant history of prior convictions for violent felony crimes,
Appellant now claims that since he was found guilty but mentally ill—rather than simply guilty—the January 15, 1985 crimes cannot be used to establish that Appellant had a significant history of violent felony crimes. Apparently, Appellant is of the belief that guilty but mentally ill convictions are not evidence that a defendant committed acts which this Commonwealth finds to be criminal in nature. The thrust of his argument is that guilty but mentally ill convictions can be used only in mitigation as they establish Appellant suffered from mental illness.
Appellant appears to misunderstand the import of a guilty but mentally ill conviction. Such a conviction does not negate Appellant’s intent to commit a criminal act. Rather, a determination that a defendant is guilty of a crime, but was mentally ill at the time of its commission, expressly recognizes that all elements of the crime have been met. See
In a related claim, Appellant contends that counsel was ineffective for failing to argue that because of the close temporal relationship between the January 15, 1985 crimes with the murder of Huber two days later, it is improper to consider the January 15, 1985 crimes for purposes of establishing that he had a significant history of violent felony crimes. This argument is specious. There is nothing in
Next, Appellant argues that all prior counsel were ineffective for failing to argue that it was improper for the Commonwealth to use the January 15, 1985 crimes to support two separate aggravating circumstances, namely
We addressed this same issue in Commonwealth v. Lesko,
Appellant also contends that all prior counsel were ineffective for failing to argue that trial counsel was ineffective when he failed to request that the trial court instruct the jury that they must find that Appellant’s prior convictions of guilty but mentally ill constituted a mitigating factor. Such an instruction, however, would have been in error. It is the purview of the jury to determine whether the evidence establishes an aggravating or mitigating circumstance. See Caldwell v. Mississippi
In a closely related claim, Appellant argues that all prior counsel were ineffective for failing to allege that penalty phase counsel was ineffective when he failed to request, and the trial court erred when it failed to provide, an instruction that if the jury were to find the aggravating circumstance of significant history of violent felony crimes, then it was required to find that the mitigating circumstance of
Appellant also maintains that penalty phase counsel was ineffective for failing to argue that the jury should consider Appellant’s extensive history of mental illness as a reason to spare his life. This claim is baffling as such an argument was the core of penalty phase counsel’s closing. N.T., 9/08/1992, at 364-70. This claim therefore has no merit.
Appellant’s next series of ineffectiveness claims involve the instructions the trial court gave the jury at penalty phase. First, Appellant contends that the trial court’s instructions impermissibly informed the jury that they were not to consider the unique aspects of Appellant’s
Next, Appellant contends that all prior counsel were ineffective for failing to raise the claim that the jury was erroneously informed that it should not consider sympathy in rendering its verdict. The pertinent part of the trial court’s instruction reads as follows:
You are not to base this decision on your own whim or some feeling of personal choice that you have and you should not allow sympathy, prejudice or any emotion to influence you just as were my instructions to you in the guilt phase. It is your duty to base your decision strictly upon the evidence of aggravating and mitigating circumstances.
N.T., 9/08/1992, at 370.
This instruction was correct. We have stated that sympathy is properly considered by the jury only when it arises from relevant evidence of mitigation offered by the defendant. Commonwealth v. Rainey,
Appellant also contends that appellate counsel was ineffective for failing to present the claim that this court’s proportionality review, which had been mandated by
we examine not only the compiled data from the AOPC, but we also have at our disposal the verdict sheets and the review forms submitted by the President Judges. This allows us to conduct a thorough review of cases similar to the one in question and provides additional screening for any anomalies that may be present in the AOPC database. We have carefully reviewed these procedures and find nothing arbitrary or capricious in this scheme. Instead, we believe that our proportionality review comports with the General Assembly’s desire to afford capital defendants an additional check against the arbitrary imposition of the death penalty.
In conclusion, we find Appellant has not established any of his claims that guilt and penalty phase counsel were ineffective. Thus, while we acknowledge that Appellant’s argument regarding his layered ineffectiveness claims are deficient, there is no need for a remand to cure this deficiency as Appellant has not established that he is entitled to relief on any of his underlying ineffectiveness claims. See McGill, supra; Rush, supra.
For the foregoing reasons, we affirm the order of the PCRA court.
Notes
. Where post-conviction relief has been denied in a death-penalty case, the matter is directly reviewable by this court.
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. Our colleague in the dissent appears to be of the belief that we recognize that Appellant waived the issue of whether he was competent to stand trial, and then proceed to analyze this waived claim. He posits that such a position is inconsistent with the PCRA’s pronouncement that we should not review waived claims, and our decision in Commonwealth v. Albrecht,
With all due respect to our learned colleague, his analysis rests on a faulty premise. We do not, as he seems to believe, conclude that Appellant waived the issue of his competency to stand trial and then review it. To the contrary, we find that this issue has not been waived. As noted supra, it would be virtually an oxymoron to say that an individual may have been incompetent to stand trial, but nonetheless competently waived this issue.
. We note that Appellant also argues that Appel v. Horn,
. Two witnesses—Dr. Jonathan Himmelhoch and Dr. Robert Wettstein—had last examined Appellant in the mid-1980s. Dr. Fred Gallo examined Appellant in 1985 and again in 1996. Dr. Robert Fox evaluated Appellant in 1996. Finally, Dr. Henry Dee never examined Appellant; he based his opinion on records prepared by other experts and on Department of Corrections records.
. We acknowledge that we recently stated that “as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant,
. Commonwealth v. Pierce,
. A remand may also be necessary if a PCRA court fails to provide adequate pre-dismissal notice to a PCRA petitioner. See Rush, 838 A.2d at 658. As such a concern is not present in this matter, there is no need for a remand on this basis.
. Appellant also asserts that evidence of his alcohol and drug abuse should have been presented to further substantiate his mental health problems. The jury was, however, informed of Appellant’s substance abuse issues. N.T., 9/08/1992, at 344 and 351.
. Specifically, Dr. Wettstein would have testified as to the "emotional abandonment and abuse inflicted upon [Appellant] by his mother and subsequently his aunt as a child; physical abandonment by his father; [and] an impoverished and deprived childhood....” Affidavit of Dr. Wettstein. Dr. Himmelhoch’s affidavit is substantially more vague on this point; Dr. Himmelhoch merely indicates that he would have testified as to Appellant's "background, history, mental illness and character...." Affidavit of Dr. Himmelhoch. We note that Appellant also references the affidavit of Dr. Gallo in his PCRA petition. Dr. Gallo's affidavit, however, does not indicate that he would have testified as to Appellant's troubled childhood.
. We are aware of the United States Supreme Court’s recent decision in Williams v. Taylor,
This is in sharp contrast to the matter sub judice where penalty counsel introduced substantial evidence in mitigation. This evidence was so substantial that, as noted supra, the jury did in fact find the existence of the two mitigating factors relating to Appellant's mental health.
. Appellant claims that Zant v. Stephens,
. Following the imposition of Appellant's sentence, the legislature eliminated the statutory provisions requiring this court to conduct a proportionality review of death sentences. Act of June 25, 1997, No. 28, S 1 ("Act 28"), effective immediately.
. The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor.
Concurrence Opinion
CONCURRING OPINION
I join the Opinion Announcing the Judgment of the Court in the disposition of appellant’s claims with the exception of the discussion pertaining to appellant’s mental competency which I would hold as waived. The lead opinion today sua sponte converts a preserved claim of layered counsel ineffectiveness for failing to assert that appellant was mentally incompetent to stand trial into the underlying claim of incompetence itself—a claim which I believe is waived under the plain language of
The lead opinion recognizes that appellant—who was presumed to be mentally competent and who was represented by counsel at all times—failed to raise a claim that he was mentally incompetent at the time of his retrial. Appellant also failed to raise this claim on his ensuing direct appeal to this Court. It is indisputable that appellant had a full and fair opportunity to raise, at the appropriate time, the issue of his competency to stand trial. In addition,
On collateral attack, appellant’s current counsel explicitly recognize that his mental competence to stand trial was not challenged either at trial or upon direct review and, for that reason, they pose the current claim as a federal, Sixth Amendment claim sounding in the “layered” ineffective assistance of all of his previous counsel. See, e.g., Initial Brief of Appellant, 12 (“The counsel who represented [appellant] at the retrial rendered woefully inadequate assistance in failing to raise, in any way, the questions about his lack of competency;” in so doing, “these counsel did not function as the counsel envisioned by the Sixth Amendment ...”) (emphasis original); id., 30-33 (same, while adding that all previous counsel were ineffective for failing to properly raise and litigate the competency issue); Appellant’s Reply Brief, 1-9 (same). The Commonwealth responds to this Sixth Amendment-based claim as the ineffective assistance of counsel claim that it is. The lead opinion nevertheless would sua sponte convert the claim into the underlying, but constitutionally distinct and waived, due-process-related claim of competency to stand trial. The lead opinion neither acknowledges nor attempts to defend its constitutional alchemy.
The lead opinion’s conversion of the claim leads it to a totally unnecessary examination of the propriety and contours of “retrospective” competency hearings.
Collateral attacks upon final state convictions in Pennsylvania are supposed to be governed exclusively by the terms of the PCRA, and not by ad hoc doctrines
The PCRA waiver provision makes no mention of exceptions for hindsight-based claims of mental incompetence to stand trial first forwarded years later by PCRA counsel upon collateral attack. Nor does the PCRA require that a waiver of a claim affirmatively appear to be “knowing and intelligent” or “competent” for the waiver provision to apply. In addition, the provision does not state that claims which this Court has deemed to be unwaivable if pursued for the first time on direct appeal—a rule which makes it even easier for a defendant to present the claim at a time when a meaningful hearing might be held—are not subject to the waiver provision. Instead, the PCRA is written logically: claims are deemed waived if there existed a fair opportunity to litigate the claims before final judgment.
The lead opinion’s inexplicable return to relaxed waiver leads it to suggest a review paradigm which betrays an uncharacteristic misapprehension of the very operation of the PCRA. Most claims which could have been raised at trial or on direct appeal but were not—including claims implicating fundamental rights and claims of constitutional dimension— are waived under the PCRA. But, that is not the end of the matter. By deeming claims premised upon the ineffective assistance of counsel to be cognizable upon collateral review, the PCRA appropriately channels and allows waived claims to form the basis for constitutionally-distinct claims arising under the Sixth Amendment. The actual claim raised by appellant here—that his prior counsel were ineffective for failing to challenge his competency to stand trial—is no less amenable to rational, jurisprudentially sound decision-making than other claims of counsel ineffectiveness deriving from foregone rights of constitutional magnitude, such as the validity of a jury waiver or a guilty plea or a waiver of counsel, etc.
When a claim of trial court error—such as a court’s permitting an allegedly incompetent defendant to be tried-—has not actually been raised at the appropriate time before final judgment, it is unrealistic to entertain collateral attacks upon that final judgment which are premised upon a pretense that the claim has been preserved. Indeed, the perversity of pretending that waived claims have not been waived is what led to this Court’s abrogation of relaxed waiver on PCRA review in Albrecht. This Court’s increasing familiarity with the deficiencies inherent in the relaxed waiver rule was also a major reason why the Court recently abrogated that judicial doctrine in direct capital appeals, where the waiver derives from judicial doctrines rather than statutory command. Commonwealth v. Freeman,
The General Assembly, of course, could have exempted claims of mental incompetence from its collateral review paradigm, but it chose not to do so. The reasons for this are not difficult to imagine. An exception for waived claims of mental incompetence would be absurd, given the presumption of competency and the inherent complications in retrospective competency assessments which concern the lead opinion. The practical difficulty in retrospective competency determinations and the very real prospect of meritless claims are factors which should caution against judicially manufacturing an “exception” to the PCRA waiver provision to indulge this claim above all others. A competent trial lawyer presumably can be trusted to ascertain those instances where his client’s mental competency may be called into question, i e., those instances where his client is so beset by mental disease or defect that he could not even consult with counsel or could not even understand the proceedings as they were occurring. Indeed, it is difficult to imagine a situation where ethical and competent counsel would fail to perceive and timely raise the incompetence of the client, if the client truly were incompetent. When a claim of incompetence is not pursued by counsel before final judgment despite ample opportunity, a rational system of collateral review, such as is embodied in the PCRA, dictates that the proper claim must focus upon counsel’s reasons for not pursuing such a claim.
The lead opinion cites to no constitutional basis for concluding that this single type of waived claim falls beyond the power of the General Assembly to channel review through the logical lens of counsel’s performance. Instead, the plurality would simply usurp the authority of the General Assembly.
It is also notable that the lead opinion’s approach—that ineffectiveness claims relating to failures to litigate competency challenges must be sua sponte converted into the underlying claim and then deemed impervious to the PCRA waiver provision—is squarely contrary to recent precedent from this Court. In Commonwealth v. Marrero,
In support of its declaration that competency claims stand as a proper, court-manufactured exception to the PCRA’s waiver provision, the lead opinion cites no case decided under the PCRA, or even to a case involving a collateral attack upon a final judgment. Instead, the lead opinion relies upon two cases which predate the PCRA by years, and which involved questions of judicial waiver and issue preservation for purposes of direct appeal. See Commonwealth v. Tyson,
The lead opinion fails to recognize the fundamental distinction between this Court’s authority to modify waiver doctrines emanating from this Court’s procedural rules and practices as opposed to waivers which result from application of the terms of a statute, such as the PCRA. In my Concurring Opinion in Bracey, supra, I explained that, while this Court obviously has the power to refine or modify waiver doctrines of its own creation to better balance jurisprudential concerns, we do not have the same unbridled power when interpreting a statute:
the calculus is entirely different when the waiver at issue arises from a non-judicial source such as the legislative commands of the PCRA. When an issue is waived under the PCRA, it is not because of our appellate preservation/waiver doctrine, but because a legislative judgment has been made as to what types of claims should be available at all on collateral review. We cannot simply ignore that legislative judgment as if it were a judicial concern subject to weighing against other judicial concerns.
My research has found one case from this Court, not cited or relied upon by the lead opinion, which has discussed the reviewability of claims of competence to stand trial upon collateral attack. Commonwealth v. Nelson,
The plurality opinion by Justice O’Brien recognized that the three issues on appeal were not properly raised and preserved in
It is, of course, true that Tyson ... .and Marshall ... were direct appeals.... Nevertheless, our waiver doctrine, although judge-made and not statutory, is one we stringently apply. We have expressly discarded the fundamental error rule.... Thus, while not recognizing fundamental error, we nevertheless will not permit the waiver of a claim of incompetency, so basic is it to our concepts of justice that a trial of an incompetent is no trial at all. Although we recognize the PCHA includes a waiver provision of its own ..., having held the competency of an accused to be an absolute and basic condition of a fair trial, we further hold the no-waiver rule in Tyson to be applicable here as well.
Instantly no competency hearing was held, nor was one requested. The issue as it had survived for us, then, is not whether appellant would have passed the two-pronged test for competency, it is rather only whether his counsel was ineffective for failing to raise the claim that he would not.
Since counsel elected not to argue this issue at the PCHA hearing, we have no record before us relevant to the claim of incompetency. The two psychiatric evaluations which are of record are concerned with the question of insanity and legal culpability. These are not the same as competency to stand trial. There is, moreover, no evidence of record indicating what information relative to appellant’s competency may have been available to counsel, or what considerations prompted counsel not to seek a hearing on the issue.
Accordingly, the case is remanded for an evidentiary hearing to determine whether trial counsel had any reasonable basis for foregoing a claim of arguable merit. Following such hearing should the court determine trial counsel was ineffective for not requesting a competency hearing, it should order such a hearing. If no ineffectiveness is found, the judgment of sentence is affirmed.
As a plurality opinion, of course, Nelson has no precedential value. In addition, the Nelson plurality was construing the PCHA, not the PCRA, and the vitality of the decision is further diminished by this Court’s extensive interpretations of PCRA waiver practice, including our decision in Albrecht which restored respect for the authority of the waiver provision. What is notable about Nelson is that, at the very same time that the plurality reaffirmed the importance of providing an opportunity to inquire into an accused’s competency, it also recognized that, once that claim has been foregone, the only appropriate inquiry must focus upon counsel’s performance in failing to pursue it. The plurality did not sua sponte convert the ineffectiveness claim into the competency claim from which it derived.
Here, the presumptively competent appellant was represented by presumptively competent counsel at the guilt phase of his second trial, by presumptively competent new counsel at the penalty phase, and by yet another new, presumptively competent counsel upon his direct appeal. There was nothing to prevent these lawyers—who were in the best position to determine whether there was a legitimate question of appellant’s competence to stand trial—from raising a claim concerning competency if there were a factual basis for doing so. Since counsel did not challenge appellant’s competence, the claim is waived under the PCRA. The only claim available to appellant now must sound in counsels’ alleged ineffectiveness.
The practical effect of the rule posed by today’s plurality would be to impose a burden upon prosecutors to take preemptive measures against meritless collateral claims of incompetence that are sure to follow from the lead opinion. Since prosecutors and trial judges will no longer be able to rely upon the presumption of competency, and the presumption that defense counsel are competent and ethical, the only way to protect against belated, meritless, collateral claims of incompetency will be to insist upon a pre-trial competency determination in all serious cases. It is ironic, to say the least, that the lead opinion adverts to this Court’s recent attempts to make some sense of our capital PCRA jurisprudence in Commonwealth v. Rush,
On the merits of the question of counsels’ effectiveness for failing to allege appellant’s incompetence to stand trial, the PCRA court’s findings, the testimony of appellant’s trial counsel, and the PCRA court’s recollection of its own observations of appellant’s interaction with counsel at the trial, prove that the claim lacks even arguable merit and therefore fails under Strickland. Because I agree that appellant is not entitled to relief on any of his other claims, I concur in the result.
. The waived claim would have been reviewable both under this Court's then-existing capital direct appeal relaxed waiver rule and under the direct appeal competency cases the lead opinion today sua sponte invokes, and radically expands, to nullify the requirements of the PCRA.
. This Court's general proscription against raising and reviewing issues sua sponte is well-settled. E.g., Danville Area School Dist. v. Danville Area Educ. Ass'n,
. This Court may someday have to pass upon the propriety of retrospective competency assessments; for example, where a defendant timely requests, but is erroneously deprived of, a competency hearing. But there is no reason to convert the ineffectiveness claim raised here in order to reach out and decide that question in this case.
. It is notable that, in the U.S. Supreme Court cases cited by appellant concerning the propriety of retrospective competency hearings, see Drope v. Missouri,
. As Justice (now Chief Justice) Cappy noted in Commonwealth v. Porter,
A defendant is presumed to be competent to stand trial. Commonwealth v. duPont,545 Pa. 564 ,681 A.2d 1328 , 1330 (1996). Where a defendant claims he was incompetent to stand trial, he must establish his claim by a preponderance of the evidence. Id. In order to prove that he was incompetent to stand trial, Appellant must show that at that time of trial, he suffered from a mental illness or defect such that he did not have the ability "to consult with counsel with a reasonable degree of rationale ] understanding,” and did not have “a rational as well as factual understanding of the proceedings.”Commonwealth v. Appel, 547 Pa. 171 ,689 A.2d 891 , 899 (1997) (citations and internal quotation marks omitted). We stress that the temporal focus of this inquiry is limited to the time of trial or when other legal proceedings occurred. Id. at 899 n. 8.
. In passing upon appellant's other claims of ineffective assistance of counsel, the lead opinion does not make it plain that it appreciates that federal claims are at issue and that it is federal law which governs. Indeed, the lead opinion cites no federal cases. In the past, this Court’s lack of clarity in this regard has led to avoidable complications when matters pass on to federal habeas corpus review. See, e.g., Rompilla v. Horn,
Concurrence Opinion
CONCURRING OPINION
I concur in .the result and write to make the following observations.
First, I am able to join the lead opinion’s affirmation of the PCRA court’s retrospective competency assessment because Appellant has not demonstrated that the trial court improperly failed to make a determination of his competency in the course of the proceedings on his second trial. Although certainly there was information before the trial court implicating substantial mental infirmity on Appellant’s part (schizophrenia), thus bringing competency into question, Appellant had been deemed competent upon hearing during the course of his first trial; Appellant did not seek a competency hearing in his second trial; and there appears to be no indicia of record demonstrating that the judge presiding at the second trial should have discerned a change in Appellant’s mental condition. In these circumstances, I agree with the lead that the burden of proof was properly placed upon Appellant in the post-conviction proceedings concerning the retrospective competency assessment. Nevertheless, I would also note that in circumstances in which there was in fact an unjustified failure on the part of the trial court to make a contemporaneous determination of competency, a substantial argument can be made that the burden in connection with a retrospective competency assessment is more appropriately allocated to the government. See James v. Singletary,
Second, I disagree with the lead opinion’s categorical statement to the effect that “[djeclining to pursue a defense which has proven unsuccessful at an earlier trial is eminently reasonable.” Opinion Announcing the Judgment of the Court,
Finally, I view as a closer question, than does the lead, the issue of whether Appellant was entitled to a hearing concerning his allegations of ineffectiveness of penalty-phase counsel in failing to present life-history mitigation evidence. In this regard, I read the United States Supreme Court’s recent decision in Wiggins v. Smith,
. In terms of detail, the affidavits submitted by professionals offered little more than the same types of generalized references to Appellant's life history as were alluded to in the expert testimony presented at the penalty phase of trial. Moreover, no fact-witness affidavits were tendered with the post-conviction submission to develop the asserted neglect and abuse (principally, the fact affiants attested to unusual behaviors on the part of Appellant which reflected his mental illness, which, as the lead opinion notes, was developed as of record in the penalty phase). It is also noteworthy that the allusions that were made at the penalty phase to life-history mitigation had mixed implications, since a defense expert held the view that Appellant had, at least at one point, sought to rely on his background manipulatively. See N.T., Sept. 8, 1992, at 332-33.