COMMONWEALTH of Pennsylvania, Appellant v. John Amos SMALL, Appellee.
Supreme Court of Pennsylvania.
October 5, 2009
Re-Submitted Jan. 5, 2009.
980 A.2d 549
Submitted June 6, 2006.
Matthew C. Lawry, Philadelphia, for Small, John Amos.
Clarence N. Patterson, Jr., York, Office of the District Attorney, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.
Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
OPINION
Justice EAKIN.
A jury convicted John Small of attempted rape and first degree murder for killing Cheryl Smith in 1981. Small was tried jointly with co-defendant James Frey, who was also convicted of first degree murder and attempted rape. The facts underlying Small‘s conviction follow:
[O]n the evening of August 5, 1981, a group of people, including the victim, attended a party in the Borough of Hanover. Even though many of the attendees at the party were underage, large quantities of alcohol and marijuana were consumed. At some point during the evening, a fight
erupted and the police were called to the scene. Prior to the arrival of the responding police officers, a group of the partygoers left in two separate vehicles and drove to a local tavern. After consuming more alcohol at the tavern, the group drove to a wooded area outside of Hanover, known as “the Pines.” Several members of the group departed. At one point, the victim left the remaining members of the group and went into the woods to relieve herself. She was followed by [Small] and co-defendant James Frey. Sometime thereafter, witnesses testified that they heard the victim scream. An eyewitness, Larry Tucker, later testified at trial that he had followed [Small] into the woods and then watched [Small] and the co-defendant grab the victim, throw her to the ground and say to her “you give it to everybody else.” [Small] was seen shortly thereafter coming out of the woods with blood on his hands. Co-defendant Frey followed several minutes later and the remaining members of the group then left the Pines leaving the victim in the woods. The victim was never seen alive again and her body was found seven weeks later, in a spread eagle position, naked from the waist down with her shirt rolled around her neck, exposing her upper torso. Forensic evidence indicated that the cause of death was a head trauma. No arrest was made for a number of years. Finally, police investigators learned that [Small] had been making incriminating statements implicating himself in the murder. Linda Rhinehart testified that she overheard [Small] at an arcade in Hanover state to some friends that: “I followed her into the woods ‘cause I was going to get some of that. . . . She won‘t be a tease anymore. It‘s amazing what a tire iron can do to hush someone making that much noise.” Cerenna Hughes testified that [Small] told her that after the night at the Pines, Cheryl “run away” and “she gave in, she gave up.” Harry H. Carper III testified that sometime during 1981, he visited [Small] at his home and [Small] stated “he might have killed” Cheryl Smith and that “he hit her over the top of her head.” Lastly, Janice Small, [Small‘s] wife at the time of the murder, testified that one
night in 1981 when Carper was visiting at their residence, she overheard [Small] say to Carper “I killed a girl. . . . [We] hit her over the head, dumped her ass in the woods and left her there.” She also testified that on one occasion when she was reading a newspaper article about the murder, [Small] walked by and said, “that‘s the girl we killed.”
Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 671-72 (1999) (footnotes omitted). At the penalty phase, the jury found two aggravating circumstances and two mitigating circumstances, and the aggravating circumstances outweighed the mitigating circumstances.1 The jury imposed a death sentence for the murder conviction. This Court affirmed. Id., at 671. The United States Supreme Court denied certiorari. Small v. Pennsylvania, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42 (2000).
Small filed a timely Post Conviction Relief Act (PCRA) petition, which was amended shortly thereafter. The Commonwealth filed a motion to dismiss the petition, which the PCRA court granted on 372 of the 397 paragraphs in Small‘s petition. The court conducted a hearing concerning the remaining 25 claims, most of which alleged ineffective assistance of counsel. The PCRA court divided the remaining 25 claims into seven groups, addressing each separately. See PCRA Court Opinion, 12/16/04, at 7-8. The PCRA court found merit in three claims.
First, Small contended his trial attorneys, Robert O‘Brien and Robert Evanick, were ineffective for failing to procure two trial witnesses. In 1995, State Police interviewed Darick Sofi and Robert Elzey regarding a conversation they had with
Second, the PCRA court found trial counsel were ineffective for failing to object to Janice Small‘s testimony under the confidential communications marital privilege. See
Lastly, the PCRA court found merit in Small‘s assertion of ineffectiveness resulting from a conflict of interest arising from Attorney Evanick‘s prior representation of one of co-defendant Frey‘s witnesses, Patrick Berlan. Id., at 31, 813 A.2d 707. At Small‘s trial, Berlan testified regarding a conversation he had with Tucker in 1993 about the Smith murder. Two years prior to trial, the York County Public Defender‘s Office represented Berlan. Attorney Evanick was York County‘s chief public defender. When the public defender‘s office represented Berlan, Berlan never mentioned the Smith murder, although he was trying to help police solve some crimes. Attorney Evanick wanted to use that information to impeach Berlan. However, as he informed the court, he had learned
Relying on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the PCRA court found the apparent conflict of interest actually affected the adequacy of Attorney Evanick‘s representation of Small. As such, the PCRA court found prejudice did not have to be demonstrated under Sullivan. PCRA Court Opinion, 12/16/04, at 30.
Ultimately, the PCRA court concluded these three claims were meritorious and warranted a new trial, stating, “An inadmissible admission of killing, the non-appearance of witnesses who could undermine the credibility of the prosecutor‘s chief witness, and a retreat from aggressive cross examination of a witness due to a perceived conflict, in combination, raise a reasonable probability that the outcome of Small‘s trial would have been different if not for these errors and omissions of counsel.” Id., at 33.2
In reviewing an order granting or denying post conviction relief, we examine whether the PCRA court‘s determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999). We are bound by the PCRA court‘s credibility findings where those determinations are supported by the record. Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 99 (2004) (citation omitted).
I. Commonwealth‘s Appeal
In review of ineffective assistance of counsel claims, counsel is presumed effective. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 594 (2007). To overcome this presumption, Small must establish his underlying claims have arguable merit, counsel had no reasonable basis for their action or inaction, and he was prejudiced by counsel‘s ineffectiveness.3 Id. In order to show prejudice, he must show but for the act or omission in question, the proceeding‘s outcome would have been different. Id.
Although claims of trial counsel‘s ineffectiveness raised for the first time in a PCRA petition are no longer waived, Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), that holding does not apply here because Small‘s direct appeal
A.
The Commonwealth argues the PCRA court erred in finding trial counsel ineffective for failing to interview and produce Sofi and Elzey at trial. As explained above, Sofi and Elzey would have testified the Commonwealth‘s main witness, Tucker, told them they could not remain where they were for long because “this is where I iced this chick.” PCRA Court Opinion, 12/16/04, at 11. Tucker also speculated he would get away with the murder because he felt police were stupid. Id. The Commonwealth argues the “iced this chick” statement‘s context is not apparent in the record. Specifically, the Commonwealth admits “iced” is slang for killing a person; however, the Commonwealth maintains nothing in the record demonstrates what precise meaning Tucker intended for the term. Moreover, the record also fails to indicate the identity of the person allegedly “iced” or the specific location of the murder to which Tucker may have been referring.
The Commonwealth also contends even if the statement was a confession, its admission would not have altered the trial‘s outcome. The Commonwealth‘s theory throughout was multiple assailants murdered Smith. Thus, evidence of Tucker‘s guilt would not “exonerate nor diminish the culpability of
Small argues Tucker was a critical Commonwealth witness, and Sofi and Elzey should have been called to impeach Tucker‘s credibility. Small argues counsel‘s minimal efforts to find them were unreasonable. Small contends the jury could have believed Tucker was the killer and he implicated Small and Frey to save himself.
To establish ineffectiveness for failure to call a witness, Small must prove the witness existed and was available to testify for the defense, counsel knew or should have known the witness existed, the witness was willing to cooperate, and the proffered testimony‘s absence denied him a fair trial. Washington, at 599. Small has the burden of showing trial counsel had no reasonable basis for failing to call a particular witness. Id.
Small has the burden to prove trial counsel‘s conduct prejudiced him and thus his direct appeal counsel should have raised this issue on direct appeal. The PCRA court concluded confidence in the trial‘s outcome was undermined because Sofi and Elzey were not called to testify that while drinking with Tucker ten years after the crime, he uttered the words, “this is where I iced this chick.” PCRA Court Opinion, 12/16/04, at 11.
Even assuming the jury believed Tucker‘s statement to be a confession, and assuming Sofi‘s and Elzey‘s testimony would have effectively and fully impeached Tucker‘s testimony, such impeachment would not have changed the verdict. On direct appeal, this Court concluded “the eyewitness accounts, [Small‘s] numerous statements admitting to the killing and forensic evidence amply established [Small‘s] conviction for attempted rape and first degree murder.” Small, at 672. We did not find this in mere reliance on Tucker‘s testimony—
In any event, the Commonwealth‘s theory was never that Small acted alone, but that he acted in concert with others. If the jury believed Sofi and Elzey, and intuited that Tucker‘s statement meant “I killed Cheryl Smith right here in 1981,” the statement would discredit Tucker, but it would not undermine the Commonwealth‘s theory of the case, nor would it discredit the other evidence previously mentioned. Tucker‘s credibility had been assaulted to the nth degree already—the jury was shown he was a crook, a recidivist, a drug abuser, a drunkard, and an admitted liar. Given this, Sofi and Elzey were not really “crucial witnesses” who would have made an “immeasurable” difference when piled on top of the mountain of disparagement already there. Even if it were meant as a complete confession to this specific crime, this would not exculpate Small, because none of Sofi‘s or Elzey‘s testimony could contradict any of the other evidence against Small.
Therefore, the verdict probably would not have been different. The burden Small carries is not just to prove the jury was likely to reevaluate Tucker if it heard from Sofi and Elzey; he must also prove this would in turn have caused a different verdict. In the face of significant other evidence, including the forensics and the four other witnesses to whom Small made directly incriminating statements, see Small, at 671-72, this cumulative rebuttal would not have resulted in a different verdict.
One may always second-guess strategy after a trial is over; indeed, this is done in every murder case brought to this Court. But, however hindsightedly clean the trial might now appear had Sofi and Elzey been called, the legal standard is not cleanliness, much less perfection. Ultimately, we conclude Small did not meet his burden of showing any likelihood the verdict would have been different, and thus he has not established prejudice under our jurisprudence. Therefore, direct
appeal counsel was not ineffective for not raising this issue on direct appeal.4
B.
Concerning marital privilege, the Commonwealth argues the privilege does not apply as Small was charged with murder, his statements were made in the presence of third parties, and Janice Small, his then-wife, waived any applicable privilege that may have applied.
Small argues the communication at issue occurred when Janice and he were alone, and it was confidential. Small argues trial counsel said he was aware Janice‘s testimony could have been excluded, but provided no reason not to object. Thus, Small contends counsel provided no adequate basis not to object and counsel‘s failure to object was unreasonable because it allowed in highly damaging testimony.
A spouse may refuse to testify against his or her spouse in a criminal proceeding, but there is no privilege “in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.”
Section 5914, “which is waivable only by the spouse asserting the privilege, prevents a husband or wife from testifying against their spouse as to any communications which were confidential when made and which were made during the marital relationship.” Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1341-1342 (1995). Because the privilege could only be waived by Small, the Commonwealth‘s argument Janice Small waived the privilege is unpersuasive. While Janice Small was divorced from Small when she testified, N.T. Trial, 5/17/96, at 773-74, since the statement at issue occurred when they were married, the privilege could apply. See Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa.Super.2001) (“The privilege remains in effect through death or divorce.“).
For
Here, Small‘s statement, “That‘s the girl we killed,” PCRA Court Opinion, 12/16/04, at 25, does not meet
Even if the statement at issue is considered confidential, it is clearly cumulative. Janice Small testified Charles Small (Small‘s brother) and Small returned to the Smalls’ home one night in August, 1981, and were “really panicked,” N.T. Trial, 5/17/96, at 784-85. She testified Small and Charles Small cut their hair, shaved their beards, and Small had blood on his hands. Id., at 774, 778. Janice Small testified Small said “they thought they killed someone,” in front of Charles, herself, and Charles’ wife, and they all could hear what was said. Id., at 776-77.5 Janice Small also testified Small said the same thing at Charles Small‘s home the next day with Charles and herself present. Id., at 782. Janice Small further testified Small told Junior Carper a few days later he killed a girl; specifically, he said, “I killed a girl.... [H]e killed—that they hit her over the head, dumped her ass in the woods and left her there.” Id., at 783-84. Janice Small was in the room next to where Small told Carper. Id., at 784. Finally, as we recounted on direct appeal, Linda Rhinehart and Cerenna Hughes also heard Small confess to Smith‘s murder. See Small, at 671-72.
As indicated, Small made multiple similar incriminating statements to multiple persons. Thus, he lacked the requisite
C.
Concerning the conflict of interest, the Commonwealth argues the record does not reveal how Attorney Evanick‘s past representation of Berlan constituted a contemporary or concurrent conflict of interest. The Commonwealth contends the trial court made clear to the jury Berlan‘s testimony was only to apply to co-defendant Frey, not Small. The Commonwealth contends Berlan‘s testimony did not implicate Small.
Small argues Attorney Evanick had a conflict of interest preventing him from impeaching Berlan‘s testimony. Small contends but for the conflict, counsel would have shown Berlan was acting as a police informant when he spoke with Tucker, but he never told police about the conversation until after Small was charged.
A defendant who failed to object at trial must demonstrate an actual conflict of interest adversely affected his counsel‘s performance. Cuyler, at 348, 100 S.Ct. 1708. Cuyler held a defendant who shows counsel‘s conflict of interest actually affected the adequacy of his representation does not have to show prejudice. Id., at 349-50, 100 S.Ct. 1708. However, we have consistently stated, “A defendant cannot prevail on a conflict of interest claim absent a showing of actual prejudice.” Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1231 (2006) (quoting Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1094 (1998) (citing Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 38 (1991))).
Frey called Berlan to discredit Tucker‘s testimony. Berlan recounted a conversation he had with Tucker while they were in prison in 1993, in which Tucker did not mention Frey was present at the Smith crime scene. Specifically, Berlan testified that on the night Smith was murdered:
He [Tucker] stated that it was five people that was with him in the car. When the first car left, that remained [sic] five people with him in his car. He stated that the one girl was sick ... , that‘s all he gave as far as details of the girl was throwing up in the car and she stayed in the car, while her—himself, Lawrence Tucker, a girl named Cheryl, and the Small brothers—....
N.T. Trial, 5/20/96, at 939 (emphasis added). Small‘s counsel objected after the statement. After a side-bar discussion, the court instructed the jury:
[W]hat you‘re hearing from the witnesses that are being called by James Frey only apply to the James Frey case. That is clear.
Now, you‘ve just heard testimony that affected not only James Frey, but also the ... Smalls. You are to disregard that.... I‘m instructing you that what this witness said about what Mr. Tucker said about the Smalls is not for you to consider in the case against the Smalls, because we are not in their case, we‘re in the ... Frey case. And the only thing you are to consider in what Mr. Berlan said is what Mr. Tucker said so far as ... Frey is concerned.
Id., at 948. Shortly thereafter, Attorney Evanick informed the court and opposing counsel of his office‘s prior representation of Berlan and that Berlan did not inform police of the
We conclude the PCRA court erred in finding the failure to cross-examine Berlan about this matter was reversible error. First, as indicated above, Berlan was Frey‘s witness, and Berlan‘s purpose in testifying was to recount Tucker‘s statement that Frey was not present. The trial court clearly reiterated this in its curative statement, which only “cured” a statement otherwise present in evidence at trial and known to the jury—the Smalls were present at the Smith murder scene. The jury is presumed to have followed the court‘s instruction. Spotz, at 1224.
Second, it is unclear what value Attorney Evanick could have gained for Small from cross-examining Berlan in this regard. Berlan was informally providing police with some information on crimes in the area after Tucker made his 1993 statement. The fact Berlan did not specifically mention Tucker‘s 1993 statement when informally informing police of crimes does not rise to the level of such a conflict of interest that it prejudiced Small. Tucker‘s 1993 statement is highly valuable for Frey as it does not place Frey at the murder scene. However, Tucker‘s statement, and the fact Berlan did not relay it to police earlier, is not as obviously valuable to Small. The only negative for Small from Berlan‘s trial testimony is he mentioned the Smalls were at the crime scene. But Attorney Evanick quickly objected, and the trial court provided a lengthy curative instruction (which the jury is presumed to follow) of already known information. If Berlan was cross-examined as to why he did not mention Tucker‘s 1993 statement to police, he might have said he simply forgot, or since he was only informally helping the police, he did not tell them; there could have been any number of different reasons. Ultimately, this uncertainty only allows us to conclude such cross-examination might have helped Small. And even if it would have helped him, we are uncertain to what degree it would
II. Small‘s Appeal
The PCRA court dismissed 372 of the 397 paragraphs in Small‘s PCRA petition, but granted relief on the three issues discussed above. After the Commonwealth appealed, Small filed a 129-page responsive brief, including a cross-appeal raising 18 issues (some with sub-parts). The Prothonotary permitted Small to exceed the 70-page brief limit. See
This Court has stated:
[It] is aware of the felt need to leave no stone unturned when counsel presents a capital appeal. However, we note that the quality of representation is measured by the number of issues raised. It is not necessary to raise patently unavailing matters in order to ward off fears of a later finding of ineffectiveness; a good attorney will not disguise and thus weaken good points by camouflaging them in a flurry of makeweight issues which clearly have no merit.
Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 510 n. 5 (2004); see also Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 479 n. 28 (2004) (“While we certainly understand the duty of the attorney to be a zealous advocate, we pose that conduct such as what we presently encounter does not advance the interests of the parties and, if anything, is a disservice to the client.“); PCRA Court Opinion, 6/20/05, at 2-4 (citing United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982) (“Appellate advocacy is measured by effectiveness, not loquaciousness.“)); Mary Beth Beazley, A Practical Guide to Appellate Advocacy, 182-83 (2nd ed.2006) (stating views of
A.
Small first claims the PCRA court erred when it found counsel was not ineffective for failing to impeach Tucker with his crimen falsi convictions. Small argues Tucker‘s credibility would have been eroded to the point where it was reasonably likely Small would have been acquitted. The Commonwealth did not file a brief in response to Small‘s cross-appeal;7 thus, there are no Commonwealth arguments to summarize. See Commonwealth‘s Letter, 5/11/06.
Evidence of a witness‘s conviction for a crime involving dishonesty or a false statement is generally admissible.
Here, the PCRA court found Tucker could have been impeached for his burglary, unauthorized use of a motor vehicle, and escape convictions. See PCRA Court Opinion, 12/16/04, at 9-11. However, both of Small‘s counsel cross-examined Tucker extensively, “highlighting his numerous prior inconsistent statement and false statements to police. They cross-examined Tucker about his history of drug and alcohol abuse, including on the night in question. Counsel exhaustively impeached Tucker regarding his motive for testifying, and his plea agreement with the Commonwealth.” Id., at 10-11. Counsel made sure the jury heard Tucker had been in jail twice between 1988 and 1989, and again in 1995; Tucker admitted lying to police. “Many of the conversations and letters about which he was questioned were from jail.” Id., at 11. Thus Tucker‘s credibility was already assaulted to the nth
Consequently, we agree with the PCRA court that ”[c]rimen falsi impeachment would have been merely cumulative and was unnecessary.” PCRA Court Opinion, 12/16/04, at 11. Essentially, Small was not prejudiced by counsel not cross-examining Tucker about crimen falsi as that information would have just reiterated a significant credibility attack that already occurred; Small‘s counsel was highly effective in being able to show the jury all the holes in Tucker‘s credibility. To now conclude such an effective cross-examination was ineffective would defy common sense. Thus, direct appeal counsel was not ineffective for not raising this issue on direct appeal.
B.
Small argues trial counsel were ineffective for failing to litigate a claim that he was denied due process via prosecutorial conduct. First, Small alleges counsel did not demonstrate the prejudicial effect that coercive police and prosecutorial conduct had on Cerenna Hughes’ and James “Smitty‘s” testimony. Small cites portions of Hughes’ testimony showing such conduct occurred. See Small‘s Brief, at 55 (citing N.T. Trial, 5/16/96, at 517-20, 530). However, trial counsel extensively asked Hughes about such alleged conduct during this portion of the testimony. See N.T. Trial, 5/16/96, at 517-24. Small also argues police yelled at Smitty, poked Smitty, and threatened Smitty after Smitty said he did not remember what happened the night of the Smith murder. Much of this testimony came before Small‘s counsel could question Smitty. Even though the jury was aware of this information when Small‘s counsel questioned Smitty, Small‘s counsel still referred to, and questioned Smitty about this line of beneficial testimony for Small. N.T. Trial, 5/17/96, at 570-75, 590-91, 593; see also N.T. Preliminary Hearing, 7/26/95, at 135-36 (Attorney Evanick elicited testimony on how police helped Smitty remember). Since Small‘s counsel elicited such beneficial testimony for Small, we do not find trial counsel ineffec-
Next, Small argues the Commonwealth knowingly presented false evidence from Janice Small since her testimony about the Small brothers’ acts the night of the Smith murder was actually proven to pertain to the night of an incident concerning Hannah Sussman that occurred close in time to the Smith murder. Small relies on the general proposition that the knowing presentation of false testimony violates due process. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
Small argues his direct appeal counsel was ineffective for not raising this issue. As discussed above, Janice Small testified about the Small brothers’ acts after they returned home the night of the Smith murder. See supra, at 13. Small contends she was mistaken, and was recalling when the Small brothers returned home after the Sussman incident. The Commonwealth was merely asking Janice Small her recollection of the night of the Smith murder; if the defense successfully showed her recollection was mistaken since she was really recalling the night of the Sussman incident, that was extremely beneficial lawyering for Small, not ineffective assistance. Further, Janice Small potentially mistaking which incident the Small brothers returned home from, when testifying to an event occurring nearly 15 years earlier, is obviously not the solicitation of patently false or perjured testimony. We find direct appeal counsel was not ineffective for not raising this issue on direct appeal.
Next, Small argues the Commonwealth improperly forced Charles Small to present a defense since it knew he had an alibi before trial. Small alleges the Commonwealth should have agreed to Charles Small‘s dismissal from the trial before Charles Small had to present a defense. The Commonwealth agreed to the dismissal of Charles Small after he presented alibi evidence at trial. N.T. Trial, 5/21/96, at 1055-56, 1058. Small argues the Commonwealth‘s decision regarding Charles Small prejudiced him, and Small‘s counsel was ineffective for
Next, Small argues Tucker‘s plea agreement created an impermissible risk of perjury, and the Commonwealth committed misconduct during closing argument. Small cites no legal authority in this section of his brief; thus, he fails to carry his burden here. See Washington, at 594.
Finally, Small argues the PCRA court erred in denying relief. In this subsection, he essentially reiterates the claims discussed above, arguing in total they require he be granted relief and the PCRA court erred. As these claims are discussed individually above, and Small provides nothing further, he is not entitled to relief on this issue.
C.
Small argues trial counsel were ineffective concerning testimony of the Sussman incident. Donald Jeffries testified for the Commonwealth, stating he had a conversation with Charles Small about his brother‘s involvement in a burglary and assault on Sussman. Charles Small‘s wife also testified about this incident. Small argues counsel were ineffective because this evidence was inadmissible hearsay and counsel did not request a stronger limiting instruction than what the trial court gave. Small refers to two authorities for this issue, a Ninth Circuit case and a decision from this Court asserting a general principle. See Small‘s Brief, at 64 (citing McKinley v. Rees, 993 F.2d 1378 (9th Cir.1993); Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989) (trial counsel ineffective for not requesting limiting instruction on evidence of other crimes)).
The PCRA court acknowledged Small‘s counsel could have objected to certain testimony as inadmissible hearsay. PCRA
The PCRA court also concluded the trial court properly issued a cautionary instruction on prior bad acts. PCRA Court Opinion, 12/16/04, at 23. The trial court first instructed the jury the Commonwealth introduced evidence of the Smalls shaving their hair “to show consciousness of guilt. The defendants argue that that [sic] did not occur at a time frame that could possible [sic] have exhibited consciousness of guilt here, because that happened, according to the defendants’ explanation, ... after the Sussman matter.” N.T. Trial, 5/23/96, at 1474. The court told the jury it could consider the evidence as “consciousness of guilt,” but it may not regard it as evidence that John Small “is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. If you find John Small guilty, it must be because you are convinced beyond a reasonable doubt that he committed the crime charged and not because you believe he committed the Sussman offense or that he cut his hair or shaved his beard.” Id., at 1474-75.
The trial court later told the jury, “I was speaking about the cutting of the hair, do you remember, and the shaving of the beard. Disregard that. Erase it from your minds.... This evidence, the fact that the burglaries, testimony about the burglaries and the Sussmans, must not be considered by you in any way other than for ... the context of other things, conversation, so on.” Id., at 1510. The trial court concluded in this regard, “You must not regard this evidence, the burglaries, as showing that John Small is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. If you find the defendant guilty, it must be because you are convinced by the evidence that ... John Small ... committed the crimes charged, and not because you believe he is wicked or committed that burglary crime involving the Sussmans.” Id.
“It is well settled that juries are presumed to follow the instructions of a trial court to disregard inadmissible evidence.” Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264, 1272 (2000). Small does not argue or point to anything suggesting the jury disregarded the trial court‘s instruction that it must not consider the Sussman burglary evidence or any belief Small was wicked, but only convict Small for the Smith murder if the evidence proved that. There is no assertion, let alone proof, the jury disregarded this instruction.
Further, we cannot find Attorney Evanick erred for not requesting a different instruction. Quite the contrary, Attorney Evanick informed the trial court of the possible confusion in its original instruction, and was able to get the court to issue a very clear, limiting instruction benefitting Small. We affirm the PCRA court on this issue. Thus, direct
D.
Small argues the Commonwealth deprived him of due process by not disclosing exculpatory evidence that Smith‘s “family had received numerous threats via telephone calls and drive-by actions after her body was found.” Small‘s Brief, at 66. Small concedes he raised an after-discovered evidence claim on direct appeal that this material warranted a new trial. He argues his claim here is not previously litigated because this claim is that the Commonwealth did not disclose the information, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
A PCRA petitioner‘s allegation of error cannot have been previously litigated.
Here, since Small is raising the issue of whether the Commonwealth failed to disclose information about the phone calls and drive-bys, it is not a previously litigated claim. The Commonwealth‘s alleged failure to reveal exculpatory evidence is a discrete legal ground with its own legal standards. See generally Brady, at 87, 83 S.Ct. 1194.
As Small notes, for his claim to succeed, he must show the Commonwealth possessed the evidence but did not
E.
Small argues the trial court improperly excluded evidence concerning Commonwealth witnesses’ alcohol and drug use following the Smith murder. On direct appeal, Small argued the trial court erred by prohibiting him from cross-examining Commonwealth witnesses regarding their extensive drug and alcohol use from the Smith murder until his trial about 15 years after the murder, and in preventing his expert from testifying to the long-term effects of substance abuse on one‘s memory. Small, at 677. Small argues this issue is not previously litigated because he is now relying on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), for the proposition state evidentiary rules cannot be mechanically applied to prevent a defendant from presenting a defense, and he claims trial counsel was ineffective for not obtaining a neuropsychologist to be an expert witness. Small‘s citation to Chambers does not change the fact this issue was previously litigated. To hold otherwise would mean
Counsel cannot be ineffective for failing to raise a meritless claim. Commonwealth v. Harris, 578 Pa. 377, 852 A.2d 1168, 1173 (2004). When an appellant has not proven counsel‘s conduct prejudiced him, his ineffectiveness claim may be dismissed on that basis. Id.
A jury should not consider for impeachment purposes the drug or alcohol use of witnesses, except regarding “the time of an occurrence about which [the witness] has testified ... ” Small, at 677 (citing Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318, 321 (1983); Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956, 961 (1978)); see also Harris, at 1174. On direct appeal, we concluded, based on this legal principle, the trial court “did not err in limiting cross-examination about Commonwealth witnesses’ drug and alcohol abuse[,]” and thus “there was no relevance to having the expert testify and the trial court properly excluded this portion of his testimony.” Small, at 677. Since it is clear Small could not have impeached the witnesses concerning their alcohol and drug use after the Smith murder, nor presented related expert testimony, he fails to show he was prejudiced as his direct appeal counsel did not have to raise these meritless claims. We affirm the PCRA court on this issue.
F.
Small argues trial counsel failed to impeach certain Commonwealth witnesses and to object to improper and prejudicial testimony. Small refers to five instances where counsel were allegedly ineffective. Small cites no legal authority in this section of his brief. See Small‘s Brief, at 73-77. In order to show he was prejudiced by his counsels’ conduct, he must
He first claims counsel should have impeached a Commonwealth witness, Linda Rhinehart, more strenuously. Rhinehart testified “she overheard [Small] at an arcade in Hanover state to some friends that: ‘I followed her into the woods’ cause I was going to get some of that ... She won‘t be a tease anymore. It‘s amazing what a tire iron can do to hush someone making that much noise.‘” Small, at 671-72. Small‘s counsel effectively cross-examined Rhinehart in this regard, learning an older gentleman who served her pizza on the day in question could have heard Small‘s conversation. N.T. Trial, 5/20/96, at 841-42. Small‘s trial counsel called Larry Bowers on direct examination. Bowers testified he worked at the pizza counter during the time in question, never heard the conversation to which Rhinehart testified, and had he heard it, he would have reported it to police. N.T. Trial, 5/21/96, at 1127-28. Small contends his trial counsel were ineffective for not confirming Bowers was the man to whom Rhinehart referred, and not asking if he could have heard the conversation from where Bowers was standing. Bowers provided Small with beneficial testimony that he did not hear an incriminating conversation, and if he had, he would have reported it to police. Trial counsel were not ineffective for soliciting such beneficial testimony for Small. Thus, direct appeal counsel was not ineffective for not raising this issue on direct appeal.
Next, Small claims no evidence was produced at trial showing Janice Small had a motive to lie. Small argues trial counsel should have produced documents showing Janice Small filed contempt proceedings related to child support against him. As stated above, Small provides no legal authority in this section of his brief; it is unclear if this evidence would have been admissible at trial. Oddly, he argues his trial counsel should have introduced evidence that child support contempt proceedings were filed against him, yet he also claims counsel was ineffective for not acting to exclude evi-
Small next claims trial counsel did not impeach Mary Trish about her lack of truthfulness, to which Nancy Hoffman would have testified. Small‘s argument in this regard is two short paragraphs.
To establish ineffectiveness for failure to call a witness, a petitioner must prove the witness existed and was available to testify for the defense, counsel knew or should have known the witness existed, the witness was willing to cooperate, and the proffered testimony‘s absence denied him a fair trial. Washington, at 599. It is Small‘s burden to show trial counsel had no reasonable basis for failing to call a particular witness. Id. Small argues several witnesses, including Hoffman, could have testified to Trish‘s reputation. However, he does not assert how trial counsel knew or should have known of the witnesses, or if the specific witnesses were available at trial. Further, Small concedes trial counsel impeached Trish with prior inconsistent statements and her drug and alcohol abuse when the Smith murder occurred. Because Small fails to show trial counsel knew or should have known of several witnesses and that those witnesses were available to testify, and trial counsel extensively impeached Trish, trial counsel were not ineffective in this regard. Thus, direct appeal counsel was not ineffective for not raising this issue on direct appeal.
Next, Small claims three Commonwealth witnesses provided inadmissible testimony to bolster the Commonwealth‘s argument that Small and Frey attempted to rape Smith. Small refers to Trish‘s testimony that although she was intoxicated and passed out, she recalled Small making sexual advances toward her. Michelle Starling testified she heard Small,
Again, Small cites no legal authority in this regard, and after referring to this testimony, summarily concludes this evidence was speculative and inadmissible. Since Small offers nothing else, he has not met his burden of showing direct appeal counsel‘s ineffectiveness.
Finally, within this issue, Small argues trial counsel failed to present admissions by others. Small summarizes these statements, again cites no legal authority, and summarily states trial counsel did not make a strategic decision not to present this evidence. Since Small offers nothing else, he has not met his burden of proving direct appeal counsel‘s ineffectiveness regarding this issue.
G.
Small argues trial counsel was ineffective during jury selection. Small first contends the jury pool was contaminated and counsel did not do enough to alleviate this contamination.
Three court employees heard prospective jurors discussing how to get out of jury duty. The trial court then questioned those jurors, and told counsel they could further question them if they wished. Small‘s counsel did not conduct further questioning of them, which Small claims constitutes ineffectiveness. Small cites no legal authority in this section of his brief, see Small‘s Brief, at 77-78, and does not explain how the trial court‘s questioning of the jurors was deficient, or if the questioned jurors were ever impaneled. Thus, he fails to demonstrate direct appeal counsel was ineffective for not raising this issue on direct appeal.
Next, Small contends trial counsel were informed some prospective jurors had a discussion about which defendant was most culpable. Again, Small claims counsel should have conducted individual voir dire concerning this issue, but he cites no legal authority and does not explain if any juror in this
Next, Small contends trial counsel were ineffective for using peremptory challenges to strike three jurors who could have been struck for cause. Small cites Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), which states a “capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is impaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” Id., at 729, 112 S.Ct. 2222. Here, none of the three jurors were impaneled, as Small‘s counsel struck them using peremptory challenges. Small cites no legal authority stating counsel can be ineffective for using a peremptory challenge to strike a juror instead of attempting to strike them for cause. The three potential jurors Small objected to being impaneled were not impaneled because his counsel struck them. Small has not shown how this use of peremptory challenges led to a prejudicial jury panel.
Next, Small contends trial counsel were ineffective for not removing the jury foreperson for cause or using a peremptory challenge to strike him. Small relies on the foreperson‘s statement during jury selection that the death penalty is “need[ed] to be done sometimes to try to keep society on a straight, even keel, I think.” N.T. Jury Selection, 5/13/96, at 690. Small argues this statement showed the jury foreperson would be inclined to impose the death penalty to regulate society generally, as opposed to making a judgment based on the aggravating and mitigating factors.
However, a more complete review of the foreperson‘s jury selection testimony reveals he was a more than suitable juror. Regarding imposing the death penalty, he said, “[It is] a tough decision to make, but based on the evidence I think that decision is sometimes necessary....” Id., at 677. The foreperson agreed the death penalty is appropriate for some homicides, and not for others. Id., at 677-78. He promised to be as fair as possible to the Commonwealth and the defen-
The foreperson did not say he would always impose the death penalty; instead, he said it was needed “sometimes.” Id., at 677, 690. The foreperson did not indicate he would ignore aggravating and mitigating factors; instead, he promised to be fair and follow the court‘s instructions. Far from being a juror prejudicial to Small, this is a suitable death penalty juror—willing to impose the death penalty, but only when it is appropriate. Thus, direct appeal counsel was not ineffective for not raising this issue.
Finally, Small argues trial counsel were ineffective for not objecting to Juror Graham, who was impaneled. Small contends Graham believed the death penalty was appropriate for any homicide above involuntary manslaughter. Small relies on Graham‘s statement in response to a question of whether “it‘s a good idea or not to punish people by death?” N.T. Jury Selection, 5/14/96, at 1042. Graham responded, “I think it‘s required; if it‘s necessary, I think it‘s the right thing.” Id.
Like the foreperson, a more complete review of Graham‘s jury selection testimony reveals he was a suitable juror. After counsel informed Graham that murder does not in and of itself make the death penalty appropriate, Graham said, “The murder I was thinking of was just killing someone for no reason, not self-defense, not by accident, okay.” Id., at 1043. In response to a question of whether he would be able to impose the death penalty if the Commonwealth met its burden, he said, “If it was required, yes, sir.” Id., at 1040. Graham also agreed a murder conviction without considering other circumstances and the trial court‘s instruction would not be sufficient to impose the death penalty. Id., at 1043. He understood any murder conviction does not automatically lead to the death penalty, and he was committed to following the court‘s instructions and evaluating other circumstances in determining whether to impose the death penalty. Thus,
H.
Small argues the trial court erred during jury deliberations. The jury asked the court to provide it with Rhinehart‘s testimony regarding a conversation she had with Scott Fisher about a possible sighting of Smith, certain testimony from Tucker, Cerenna and Smitty Hughes, and copies of letters from Trish and Tucker that were entered into evidence. Small contends the trial court‘s refusal to provide the jury with the requested information was error.
Small cites one authority in this section of his brief, McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993), asserting it stands for the proposition that “[t]o promise a jury they will be presented with certain evidence, and then fail to deliver on that promise, is highly prejudicial.” Small‘s Brief, at 83 n.36. However, McAleese dealt with counsel‘s promise to produce evidence during trial, not anything to do with the trial court‘s actions. McAleese, at 166 (“The failure of counsel to produce evidence which he promised the jury during his opening statement that he would produce is indeed a damaging failure sufficient of itself to support a claim of ineffectiveness of counsel.“).
Small raised the same issue on direct appeal:
[Small] next claims that the trial court erred when it denied the jury‘s request that certain testimony be read back to it during its verdict deliberations. The jury asked to hear the testimony of Linda Rhinehart regarding a conversation she had with “Scott” about a possible sighting of the victim and to hear the testimony from Larry Tucker, Cerenna Hughes, and James Hughes recounting the events of the night of the murder. The jury also asked to see several letters written by Mary Trisch Knight (“Knight“) and Larry Tucker that were entered into evidence but which were not part of the material sent out with the jury.
I.
Small argues his waiver of his right to present mitigating evidence was invalid. A capital defendant has a right to present mitigating evidence at sentencing,
The trial court issued an order indicating Small was competent to waive his right to present mitigating evidence. Trial Court Order, 7/15/04. The court concluded, “[I]n three separate colloquies, [Small] was thoroughly instructed and advised of the ramifications of waiving said rights. He demonstrated a broad understanding of the consequences of his decision. . . . [C]ounsel was not ineffective in following [Small‘s] clear and unambiguous instructions not to present mitigation evidence. [Small‘s] resolve did not waver.” Id.
The first colloquy occurred before trial and after the court learned Small wanted to receive the death penalty if he was convicted of first degree murder. N.T. Pre-Trial Conference, 5/1/96, at 2. The trial court thoroughly explained the trial and penalty phase process to Small. Id., at 3-34. Notably, the court stated, “If you don‘t present any testimony of mitigating circumstances, it is likely that the jury isn‘t going to find any mitigating circumstances, . . . do you understand that?” Id., at 27. Small responded, “Yes, sir.” Id., at 28. The court asked Small if he had any questions, and Small said, “No, sir.” Id. The court asked if Small understood the penalty phase, and Small responded, “Yes, sir.” Id. Then the court asked if Small‘s position about receiving the death penalty if he was convicted of first degree murder changed, and Small said, “If I
The second colloquy occurred after the jury‘s verdict. Small‘s counsel informed the court Small desired to receive the death penalty. N.T. Trial, 5/24/96, at 1568-69. The court thoroughly informed Small of the penalty phase process and his rights. Id., at 1569-85. Small said he understood the process throughout the colloquy. Id. Notably, Small asked if the colloquy was “what we talked about in your chambers the other week, same thing. I stand by it.” Id., at 1571. The court informed Small it was his choice whether to present mitigating evidence. Id., at 1576-77. Small admitted he discussed whether he should present mitigating evidence with his counsel, and he decided not to present such evidence against his counsel‘s advice. Id., at 1580-82. Small admitted he understood aggravating and mitigating factors, including his right to present mitigating evidence, and he was making his choice from his own free will, and no one threatened him or promised him anything. Id., at 1580-81.
During the third colloquy, which occurred during the penalty phase, the trial court again spoke with Small and his counsel concerning what takes place at a death penalty sentencing phase and whether Small really wanted to waive presenting any mitigating evidence. Notably, Small initially did not want to answer any questions during this colloquy. The court stated, “How can I discharge my duty, then, to be sure that you understand what‘s going on?” N.T. Sentencing Phase, 5/28/96, at 2. Small responded, “We went through this twice. I understand what‘s happening.” Id. The court then completed a thorough colloquy. Id., at 1-5.
The trial court completed three thorough colloquies with Small over a one-month period concerning his decision to not
Regarding Small‘s claim his counsel was ineffective, it is clear from the three colloquies that Small consistently directed his counsel to not present mitigating evidence. Small said he discussed death penalty law with his counsel, who answered his questions. N.T. Trial, 5/24/96, at 1580. Small said his counsel advised him to present mitigation evidence and wanted to prepare a penalty phase defense for him, but through his free will he decided not to present mitigation evidence. Id., at 1581-83. Since Small consistently chose to not present mitigating evidence, against his counsel‘s advice, and was extremely well-informed of the consequences of that decision through the three colloquies, we do not find counsel ineffective for not raising this issue on direct appeal.
J.
Small argues he was constructively denied assistance of counsel in the penalty phase. Small again claims his decision to waive presentation of mitigation evidence was invalid and his counsel abandoned him during the penalty phase by not advocating for him. Since counsel was following Small‘s consistent and specific instruction not to present mitigation evidence and thus receive the death penalty, direct appeal counsel was not ineffective for not raising this issue on direct appeal. See supra, at 574-75.
Small argues counsel was ineffective for failing to investigate, develop, and present mitigation evidence. Again, counsel was following Small‘s consistent and specific instruction not to present mitigation evidence; therefore, direct appeal counsel was not ineffective for not raising this issue on direct appeal. See id.
L.
Small argues the jury improperly found the aggravating circumstance that he committed the murder during the perpetration of a felony. See
As Small concedes, this issue was not raised on direct appeal; Small argues direct appeal counsel was ineffective for not raising this issue. Small relies on Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998), for the proposition accomplice liability is insufficient to meet
“[E]ffectiveness of counsel is examined under the standards existing at the time of performance rather than at the point when an ineffectiveness claim is made.” Spotz, at 1238 (citations omitted). Spotz relied on Lassiter, “which we decided nearly three years after the jury sentenced him, on March 6, 1996. Consequently, this Court cannot say that the trial court improperly instructed the jury, nor can it find that trial counsel was ineffective for failing to make a request for the instruction that Lassiter would have required.” Id. (citing Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 464 (2004) (“Counsel cannot be deemed ineffective for failing to predict developments or changes in the law.“) (second citation omitted)).
Here, as in Spotz, Small‘s trial and penalty phase occurred in May and June, 1996, Small, at 670-71; Lassiter was not
M.
Next, Small argues his sentence must be vacated because his burglary convictions were nonviolent crimes that could not establish the aggravating factor of a substantial history of violent convictions. See
Burglary is defined as “[entering] a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”
In Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), this Court suggested that in order for a burglary to be classified as a violent crime, the Commonwealth may have to present evidence the defendant actually threatened another with violence or used violence. Id., at 841. Two years later, however, we clarified our view of burglary in Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988), where we explained the portion of Christy discussing burglary was merely dicta, and in Pennsylvania “the crime of burglary has always been and continues to be viewed as a crime involving the use or threat of violence to the person.” Id., at 559, n. 5. “Every
The trial court‘s instructions did not create a conclusive presumption that Small‘s burglaries would meet the aggravating factor of a substantial history of violent felony convictions. The court properly instructed the jury that “the following matters if proven to your satisfaction beyond a reasonable doubt can be aggravating circumstances. . . .” N.T. Sentencing, 5/28/96, at 102. The court reiterated the beyond a reasonable doubt standard for the aggravating factor of a “significant history of felony convictions involving the use or threat of violence to the person. . . .” Id., at 103. The court stated it was referring to Small‘s burglary convictions from the 1970s and 1980s. Id. The court accurately described burglary as a crime of violence, and stated such a crime “may be related [sic] upon during the penalty phase of capital murder prosecution to prove a history of violent convictions.” Id. The court twice told the jury to determine if Small had a significant history of felony convictions, it should consider the number of prior convictions, their nature, and their similarity to or relationship with the Smith murder. Id., at 105. The court concluded in this regard by stating, “So that is going to be up to you to decide whether the Commonwealth has established in your mind beyond a reasonable doubt that he does have the—John Small has a significant history of felony convictions involving the use or threat of violence to the person.” Id.
N.
Small argues he is entitled to a new trial because Tucker recently made an exculpatory statement concerning Small‘s role in the Smith murder. Small contends Elzey testified at Frey‘s PCRA hearing that in 2000 Tucker told him, “We‘ll let bygones be bygones, because I got off from it anyway, and the other guys got shafted.” Small‘s Brief, at 118 (citation omitted). Small argues Tucker admitted his guilt in this statement, which would have resulted in a different verdict for Small if introduced at trial.
First, this statement appears to be hearsay, as Elzey is testifying to what Tucker told him, and Small wants to present it to prove the truth of the matter asserted. See
Second, even if admissible, the statement would not warrant granting Small a new trial. The part of the statement where Tucker supposedly admits his guilt is not damaging to the Commonwealth‘s case. As explained above, the Commonwealth argued Small did not act alone, but in concert with others. See supra, at 443-44, 980 A.2d at 560. A confession from Tucker would not undermine the Commonwealth‘s theo-
O.
Small argues he is entitled to a new sentencing hearing since at his sentencing he did not know Frey would be convicted of third degree murder, and Charles Small would not be subject to any criminal liability. Other than citing the general PCRA standard that if this information was available to the jury, the sentencing outcome would have been different, Small‘s Brief, at 120 (citing
P.
Small argues the Commonwealth‘s reliance on contradictory theories of whether Charles Small was involved in the murder violated his due process rights. The Commonwealth charged Charles Small in relation to the Smith murder. Be-
Q.
Small argues he is entitled to a new trial and sentencing because of the prejudicial effect of the cumulative errors in the case. Small broadly and vaguely asserts “counsel‘s serious failures, and the constitutional errors committed by the court and the prosecutor, so undermined the . . . trial and sentencing . . . that [Small‘s] conviction must be overturned, or, . . . his sentence of death must be vacated.” Id., at 126. As discussed above, we do not find any errors warranting a new trial or new sentencing; thus, Small‘s cumulative effect argument fails. See Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716, 722 (1992) (“We have found no misconduct on the part of the prosecutor, and no number of failed claims may collectively attain merit if they could not do so individually.“). Further, his argument in this regard is too broad and vague to warrant granting a new trial or new sentencing. We affirm the PCRA court on this issue.
Finally, Small argues the PCRA court erred in denying his requests for discovery and abatement of the proceedings and in limiting the evidentiary hearing. Small contends he was entitled to many items through discovery; he focuses on information concerning the Commonwealth‘s prosecution of Charles Small. Small cites no legal authority concerning his discovery/abatement claim; thus, that argument fails.
Next, Small argues the PCRA court inappropriately limited the extent of his PCRA hearing. He cites cases concerning whether, and when, a PCRA petitioner is entitled to a hearing. See Small‘s Brief, at 128 (collecting cases). However, he provides no authority concerning his argument the PCRA court inappropriately limited its hearing. As Small offers nothing else on this issue, we affirm the PCRA court.
III. Conclusion
We reverse the PCRA court‘s decision granting Small a new trial, and affirm the remaining portions of the PCRA court‘s decision denying Small relief. We direct the Prothonotary of this Court to transmit the complete record of this case to the Governor of Pennsylvania. See
Jurisdiction relinquished.
Justice BAER and McCAFFERY and Justice GREENSPAN join the opinion.
Chief Justice CASTILLE files a concurring opinion.
Justice SAYLOR files a concurring opinion.
Justice TODD files a dissenting opinion.
Chief Justice CASTILLE, Concurring.
I join the Majority Opinion, writing separately only to elaborate on three minor points. First, a decision in this case was made unnecessarily difficult by the York County District Attorney‘s unexplained failure to brief appellee/cross-appellant Small‘s 20-issue cross-appeal. I agree with the Majority‘s
Second, respecting the Commonwealth‘s argument on Small‘s conflict of interest claim, I note that, pursuant to U.S. Supreme Court decisional law, a defendant alleging a conflict of interest in a successive representation case may be required to establish Strickland prejudice, rather than merely demonstrate that, at the time of his trial, his counsel actively represented conflicting interests and that such conflict adversely affected counsel‘s performance. See Mickens v. Taylor, 535 U.S. 162, 174-76, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).2 In the present case the Majority seems to apply this standard in reversing the PCRA court‘s grant of a new trial on Small‘s conflict of interest claim. See Majority Op. at 451, 980 A.2d at 565-66 (“we conclude Small has not shown Attorney Evanick had a conflict of interest creating prejudice to require vacating the guilty verdict“). I join in that approach. Although Strickland prejudice was not shown in the case sub judice, I agree with the Majority that, as a supervisory
Finally, I would add the following observation respecting Small‘s claim that burglary is not a crime of violence for purposes of the Section 9711(d)(9) aggravator.3 As the Majority notes, this Court has previously recognized that, in Pennsylvania, burglary was always viewed as a crime of violence, and we have consistently construed it as such for purposes of Section 9711(d)(9). Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553, 559 (1988) (“[T]he crime of burglary has always been and continues to be viewed as a crime involving the use or threat of violence to the person.“); see also Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 321 (2008) (“[B]urglary is always classified as a violent crime in Pennsylvania“) (internal quotation marks omitted); Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 814 (2007) (same). I would note, however, that the General Assembly is, of course, free to define the crime differently for other purposes, and it did so (after Rolan was decided) in the two-strikes/three-strikes scenario. See
Justice SAYLOR, Concurring.
The majority‘s rationale in overturning the PCRA court‘s award of a new trial is grounded largely on a finding of insufficient prejudice to support it. See Majority Opinion, at 442-44, 448-51, 980 A.2d at 559-60, 563-64. Although I join
This case was obviously a difficult one for the Commonwealth to investigate and prosecute. None of the immediate fact witnesses was forthcoming with police—most lied repeatedly to the investigating officers. See, e.g., N.T., May 23, 1996, at 1425 (reflecting the district attorney‘s remark to the jury, “make no mistake here, I told you up front when I talked to you about what our case was going to be, all these people lied initially to the police“).1 The Commonwealth admitted a serious misidentification by several of its witnesses, since those individuals had testified Appellant‘s brother, Charles Small, was at the scene of the killing, but the district attorney conceded late in the trial that Charles Small was not present. See N.T., May 23, 1996, at 1424 (reflecting the prosecutor‘s remark: “Now Charles Small, up front, no mistake, be clear, is a mistaken identity.“). The investigative records are replete with rumor, innuendo, and hearsay statements implicating numerous parties, including the brother of Commonwealth witness Lawrence Tucker, who committed suicide a few months after Ms. Smith was killed, see, e.g., N.T., May 16, 1996, at 313; N.T., July 26, 2004, at 31; an individual named Kevin McClatchey, who was later shot and killed by Appellant‘s codefendant, James Frye, see N.T., May 16, 1996, at 494; N.T., May 17, 1996, at 735; and another individual named Mitch Trivitt, who allegedly confessed to the killing of Cheryl Smith, see N.T., July 26, 2004, at 154. The investigation persisted for more than a decade before sufficient information was obtained to support arrests. The only actual eyewitness to the crimes to provide testimony, Tucker, had been charged by the Commonwealth as a participant, and the prosecutor conceded Tucker also lied to police. See id. at 1427 (reflecting the prosecutor‘s statement that: “Mr. Tucker is not anyone‘s favorite person, but the Commonwealth takes the people who are witnesses to crimes as they get them. Pleas bargains are
Against this backdrop, the PCRA court found several instances of deficient stewardship on the part of Appellant‘s trial counsel and a reasonable probability of a different verdict had constitutionally adequate representation been provided, or, in other words, a probability sufficient to undermine confidence in the verdict. See generally Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Although the PCRA judge was not the trial judge, significantly, the court highlighted similar findings in parallel post-conviction proceedings initiated by Appellant‘s co-defendant, James Frye, which were adjudicated by the trial judge. Notably, this Court continues to recognize the PCRA and trial courts’ superior point of vantage and to accord deference to supported factual determinations. See Commonwealth v. Sattazahn, 597 Pa. 648, 677 & n. 10, 952 A.2d 640, 657 & n. 10 (2008) (citing Commonwealth v. Gorby, 589 Pa. 364, 395, 909 A.2d 775, 794 (2006) (Cappy, J., concurring)).
In my view, recognition of the above background is necessary to a balanced and directed prejudice assessment. I also believe there is fuller, essential context relative to the individual claims accepted by the PCRA court.
With regard to Issue I(A) (ineffectiveness for failure to interview and produce Darick Sofi and Robert Elzey), the majority reasons that, even accepting Tucker‘s statement as a confession and assuming full impeachment of his testimony, the verdict could not have been different. See Majority Opinion, at 443, 980 A.2d at 560. In support of its conclusion, the majority recounts that, on direct appeal, this Court concluded in its sufficiency review that Small‘s “numeral statements admitting to the killing and forensic evidence” also supported the verdict. See id. at 443, 980 A.2d at 560. The majority reasons, in any event, the Commonwealth‘s theory was never that Appellant acted alone; thus, the jurors’ disbelief of Tucker would not have undermined the Common-
I differ substantially with the majority‘s assessment. As reflected above, there were substantial reasons to question the credibility of all of the Commonwealth‘s fact witnesses, who, as reported to the jurors by the district attorney, had all lied to police and withheld their relied-upon testimony for up to a decade. The majority‘s recounting of this Court‘s sufficiency review on direct appeal is not persuasive, as sufficiency review is very different a review of the prejudicial impact of particular items of evidence. The majority‘s vague reference to “forensic evidence” also provides little support, since the only forensic evidence identified in the trial record is the testimony that the cause of death was head trauma and the manner of death was a homicide. Notably, such evidence does not serve as direct evidence of Appellant‘s involvement. Cf. Commonwealth v. Gibson, 597 Pa. 402, 444, 951 A.2d 1110, 1135 (2008) (“[T]he issue at trial was not the physical location of the victim‘s wounds, but rather who fired the shots in the first instance, a question that the referenced [forensic] report cannot answer.“).
Appellant‘s trial counsel and the trial judge believed Elzey and Sofi to be important witnesses. See, e.g., N.T., July 21, 2004, at 98; Commonwealth v. Frey, No. 2819 CA 1995, slip op. at 27 (C.P. York May 16, 2001) (“Because Tucker‘s testimony was so crucial to the Commonwealth case against the Petitioner, the testimony which would have been presented by Sofi and Elzey to impeach Tucker would have been very helpful to Petitioner‘s case.“). The district attorney also viewed them as significant, as demonstrated by his highlighting of Sofi‘s and Elzey‘s absence as witnesses to the Common-
wealth‘s advantage at trial. See N.T., May 23, 1996, at 1429 (“Did we hear from Elzey? Did we hear from Sofi? Of course not.“). Furthermore, trial counsel offered no strategic reason for failing to make timely and reasonable efforts to secure the witnesses’ appearance at trial. See, e.g., N.T., July 22, 2004, at 368.
The majority‘s assertion that Tucker was cross-examined to the “nth degree” can be regarded only as hyperbole, since Appellant‘s trial counsel conceded traditional lines of cross-examination were omitted without strategic justification. See, e.g., N.T., July 22, 2004, at 372. Additionally, in arguments to the jury, the district attorney ably bolstered Tucker‘s testimony with “truth verifiers” gleaned from the other evidence. See, e.g., N.T., May 23, 1996, at 1445. This powerful strategy, however, might have been seriously undermined with credited evidence that Tucker himself perpetrated, or at least participated in, the killing.
The majority is correct in its reasoning that a conclusion by jurors that Tucker participated in the killing would not have excluded the possibility of Appellant‘s own involvement. It is difficult to disagree with the trial judge‘s assessment, however, that such a finding would have seriously undermined Tucker‘s important testimony concerning the circumstances of the killing.3 In this regard, it may have yielded a reasonable doubt on the part of jurors concerning, at a minimum, the degree of Appellant‘s participation in the actual killing, and thus, potentially made the difference between a verdict of first-and second-degree murder. Therefore, I believe the trial judge‘s finding of prejudice in the Frey post-conviction proceedings, as well as that of the PCRA court in Appellant‘s post-conviction case, has facial appeal.
Nevertheless, there is also a fuller context to be considered regarding Elzey‘s and Sofi‘s statements themselves. In this regard, in describing the PCRA court‘s role in post-conviction matters, this Court has emphasized the importance of reasoned assessments of credibility and developed reasoning.
There are multiple circumstances strongly suggesting untrustworthiness on the parts of Elzey and Sofi. First, their various statements are internally and externally inconsistent. For example, Elzey gave a tape-recorded statement in May 1995 containing significant detail. This included assertions that Lawrence Tucker repeatedly bragged that he and his brother had killed a girl, and that his brother committed suicide soon thereafter due to his feelings of guilt. See N.T., July 28, 2004, Exhibit D-3, at 2-3, 12. When he testified at Frey‘s post-conviction hearing, however, Elzey omitted this significant sequence of events in its entirety. See N.T., October 10, 2000 (Frey), at 11 (“All I know is that [Tucker] said that he wasn‘t selling any drugs, because the police were questioning him [about a homicide].“).4 In Sofi‘s tape-record-
Although, again, I believe matters of credibility are best left to the post-conviction courts, recent decisions of this Court suggest that the appellate courts may resolve those matters in
My approach to various other of Appellant‘s claims is also distinct from that of the majority. On the issue of marital privilege (Issue I(B)), while I support the majority‘s analysis solely in light of the testimony of Appellant‘s admissions in the presence of Junior Carper, see Majority Opinion, at 446-47, 980 A.2d at 562,7 I differ with its discrete analysis concerning the private conversation between Appellant and his wife. See id. at 446-47, 980 A.2d at 562. In my view, the circumstances of that conversation, viewed independently, would appear to support the PCRA court‘s finding of a confidential nature.8 I
Indeed, this Court had previously applied a presumption of confidentiality to private marital communications, consistent with the approach of a number of other jurisdictions. See Commonwealth v. Hancharik, 534 Pa. 435, 442, 633 A.2d 1074, 1078 (1993) (“Communications between husbands and wives are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption.“); accord 3 WHARTON‘S CRIMINAL EVIDENCE § 11:44 (15th ed. 2008) (“A communication between a married couple is presumed to be confidential . . . unless evidence exists to the contrary.“). The evidence of Appellant‘s admission in the presence of Junior Carper, however, tends to undermine the conclusion that the information was intended to remain in confidence between Appellant and his wife.
Justice TODD, Dissenting.
I respectfully dissent. On collateral review, the PCRA court, after conducting a hearing, awarded Appellee John Amos Small a new trial based, inter alia, upon its conclusion that counsel‘s stewardship was constitutionally deficient for failing to interview and produce two witnesses who would have testified regarding an admission to the murder by an individual other than Small. In doing so, however, the court did not make any express evaluation of these witnesses’ credibility. In light of our proper role as an appellate court of limited review, our recent case law emphasizing that PCRA court credibility findings are essential to fulfilling this role, and the unique circumstances surrounding this prosecution, I believe that a remand is required for the PCRA court to make specific credibility findings regarding the testimony of these witnesses.
Our role under the PCRA is one of limited appellate review. Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009) (“Our standard of review in PCRA appeals is limited to determining whether the findings of the PCRA court are supported by the record and free from legal error“). In fulfilling this role, Chief Justice Castille, writing for a unanimous Court, recently emphasized the import of a PCRA court‘s express credibility determinations in evaluating the prejudice prong of the Strickland/Pierce test.1 “A PCRA
In the appeal before us, our review focuses on the PCRA court‘s award of a new trial on the basis of trial counsel‘s failure to interview and produce two witnesses, Darick Sofi and Robert Elzey. These witnesses would have testified that Lawrence Tucker made the statement, “this is where I iced this chick,” implicating him as the murderer of the victim, Cheryl Smith. Tucker added that he believed the police were stupid and that he would get away with it. At trial, however, Tucker implicated Small as Smith‘s killer. Employing our Commonwealth‘s three-prong Strickland/Pierce test, the PCRA court found that Small‘s ineffectiveness claim based upon counsel‘s failure to call Sofi and Elzey at trial had merit, that there was no reasonable trial strategy for failing to obtain this witness testimony, and that Small was prejudiced by this failure.
Justice Saylor‘s Concurring Opinion, as well as the Concurring Opinion of Justice Baer, persuasively explain that witness
Yet, as Justice Saylor cogently points out in his concurring opinion, noticeably absent from the PCRA court‘s analysis in granting Small relief are any express credibility findings concerning witnesses Sofi and Elzey. Concurring Op. (Saylor, J.) at 482-83, 980 A.2d at 583. In my view, such credibility determinations are absolutely essential because of the circumstances surrounding this prosecution. Tucker was the Commonwealth‘s primary witness. Additionally, Tucker was sexually intimate with Smith, abused her, and threatened to kill her. In fact, the Commonwealth initially charged Tucker with criminal homicide. Tucker, however, testified against Small after he entered into an agreement with the Commonwealth for the reduction in charges against him. Not only would have Sofi and Elzey‘s testimony cast doubt upon Tucker‘s testimony against Small, but the prosecution highlighted the absence of their testimony to the jury to convict Small. The import of Sofi and Elzey‘s testimony was not inconsequential—the extent of Small‘s participation in the murder of Williams may have been the difference between first-degree murder and second-degree murder.
For these reasons, I respectfully dissent.
980 A.2d 588
Joel S. ARIO, Acting Insurance Commissioner of the Commonwealth of Pennsylvania, Appellant
v.
RELIANCE INSURANCE COMPANY, Appellee.
Supreme Court of Pennsylvania.
Argued March 3, 2009.
Decided Oct. 5, 2009.
Notes
Frey, No. 2819 CA 1995, slip op. at 17-18. Again, I would acknowledge the facial appeal of this reasoning, albeit I ultimately agree with the majority that the record evidence of Tucker‘s admitted dishonesty, as well as his disclosed motivation to secure favorable treatment relative to the Cheryl Smith murder, served similar purposes at trial. I also agree the Commonwealth‘s case against Appellant was stronger than the prosecution against Frey, given the more consistent testimony of fact witnesses concerning Appellant‘s presence at the scene of the killing.One of the most effective ways to impeach a witness‘s credibility is by bringing to the jury‘s attention that witness‘s inability to testify truthfully, by questioning the witness about his prior convictions. Trial counsel did try to impeach Tucker by implying that he had a self-serving motive for testifying and by showing that Tucker had a decreased ability to remember because of his use of alcohol and drugs on the night of the crime. However, because of Tucker‘s pivotal role in this case as the only witness who placed [codefendant Frey] at the scene of the crime and because the only evidence that the Commonwealth had in this case was circumstantial evidence offered through the testimony of witnesses, trial counsel‘s failure to properly impeach Tucker without a reasonable basis for this omission prejudiced [Frey‘s] case and constituted ineffective assistance of counsel.