*1
Submitted 2011.
Decided June *8 Office, Abreu, Jr., Billy Defender’s Federal Public Victor J. Ñolas, Philadelphia, Philadel- Defender Association Horatio for Willie Edward Sneed. phia, Burns, PA Amy Zapp, Office Philadelphia, J. Hugh General, Pennsyl- for Harrisburg, Attorney vania.
11 CASTILLE, C.J., SAYLOR, EAKIN, BAER, BEFORE: TODD, McCAFFERY, MELVIN, ORIE JJ.
OPINION PER CURIAM. is
This appeal from order of the Court of Common County Pleas Philadelphia denying Willie Appellant Sneed’s petition seeking relief pursuant the Post Conviction Relief (“PCRA”), §§ Act 42 9541-9546. Pa.C.S. For reasons that follow, we affirm of the the order PCRA court. 13,1980, October Appellant
On
Calvin
fatally shot
Hawkins
(“Hawkins”)
discovering
after
and
Hawkins
two accom
sold him
plices
instead of
A
aspirin
jury
cocaine.1
convicted
Appellant
murder
first-degree
possession
and
of an instru
14, 1985.2
of crime
ment
on March
During
penalty phase,
jury
found two
and
aggravating circumstances
no mitigat
circumstances,3
ing
resulting
of a
imposition
sentence of
death.4 We
direct
affirmed on
appeal, Commonwealth v.
Sneed,
(1987),
514 Pa.
On timely pro filed a se PCRA reasons, For petition.5 unknown appointed was not underlying 1. A full recitation of the facts is set forth Sneed, 514 A.2d 749 526 2502(a) § § 2. 18 Pa.C.S. 18 respectively. Pa.C.S. aggravating significant
3. The
history
felony
circumstances were a
involving
person,
convictions
or threat
use
of violence
9711(d)(9),
conviction,
prior
§
Pa.C.S.
murder
42 Pa.C.S.
9711(d)(10).
§
9711(c)(l)(iv),
§
Pursuant
Pa.C.S.
"the verdict must be a sen-
jury unanimously
tence of death if
aggravating
finds at least one
mitigating
circumstance ... and no
circumstance....”
9545(b)(1),
petition
timely
§
5. The
under
Pa.C.S.
as it was filed
year
one
within
date
effective
of the 1995 amendments
to the
Fenati,
(2000)
PCRA. See Commonwealth v.
6. Pursuant
defendant
potential
purposefully
jurors based on their race.
prosecutor
struck
93-97,
prima
If
makes a
Batson was decided while direct was appeal pend- ing and we noted that entitled Batson’s raised, if only retroactive benefit he anticipated, preserved not, claim a Batson at trial and on direct he appeal. Since did we that any qua claim,” held “Batson Batson such as that erroneously which the PCRA court cognizable deemed both attack, and meritorious on collateral was waived under the PCRA, and could proceed only via a claim of ineffective assistance of counsel explained claim. We counsel could not be faulted “for failing raise Batson objection at trial because did not yet Batson exist.” We *11 reasoned, however, that if even counsel could be faulted for rule, failing anticipate the Batson there “practical were Sneed, hurdles that would have derailed an such endeavor.” at 1075-76. We concluded: trial record contained no objection, [The] Batson no argu- ment, case, no of a finding prima no statement of facie for reasons strikes in the face a a prima of of finding facie case, no and assessment of the credibility of those reasons. The PCRA court’s of finding ineffectiveness failed to accord any effectiveness, deference to the presumption of or the fact that Batson awas new rule. Because the award of a Batson,____we new trial is unsustainable under vacate the order below a granting new trial.
Id. at 1077 (emphasis original).
This Court affirmed the grant PCRA court’s of a new penalty hearing based counsel’s failure to present mitiga- evidence, tion explaining that trial obligation counsel had an a conduct reasonable investigation into back- Such an ground. investigation have would revealed that Ap- pellant experienced an abusive and dysfunctional childhood from which he continued to suffer mental health effects. We stated: the jury “[I]f had heard testimony argument the regarding mitigation evidence presented by [Appellant] at the PCRA there is a hearing, probability reasonable that at juror least one have a would struck different balance 1084. Id. at impose penalty.” the death Since voted not during of counsel was denied the effective assistance the a new penalty affirmed phase, grant we penalty hearing. hearing, new Appel- scheduling penalty
Prior to
allegations
his
court address
requested
lant
PCRA
petition
raised in the amended
but
error that were
guilt phase
16, 2006,
court held
reviewed.
November
the PCRA
never
On
argued that while
court
at which
hearing
claims, it did
rule on the other
two of his
reviewed
so
error and
to do
guilt
required
prior
allegations
phase
Bryant,
hearing.
to the
See Commonwealth
penalty
The
countered
Appellant appealed, opinion then review sought on March 2007. before this 13, 2007, we quashed appeal On December be- Court. Order, the order was not “entered on the docket.”10 cause 12/13/07, action Neither took further until party any *12 9, 2009, when that the Appellant requested October PCRA the The entered an court resolve matter.11 PCRA court order hearing appear Upon record. transcript 9. The does not in the certified documents, inquiring transcript any the related into absence of the and apprised missing we were materials) the PCRA court to locate thе that is unable transcript attempting copy but is obtain a the the to of from reporter. court remaining denying Appellant’s The claims was entered on the order 10. Thus, 28, quashed it appears on 2006. that we the docket December appeal because no written final there was order. disapproval passed with the of time that 11. We note inordinate amount quashal appeal by the parties the the and the action taken between of Indeed, prompted PCRA it seems was to and the court. only by pendency petition for a address the matter the of writ of corpus the in the United States District Court for Eastern habeas
15 remaining 21, the dismissing claims on October 2009. Appel- lant the subsequently appeal. filed instant
Before of turning claims, to substance we Appellant’s procedural posture address the of this case. In his amended PCRA petition, Appellant twenty-five raised claims of error. The court hearing PCRA conducted a on two these claims. decision, As noted in our 2006 the PCRA court did pass Sneed, other Indeed, claims raised. 899 at 1071. parties agree that the PCRA court never issued an order dismissing N.T., 11/16/06, dеnying remaining claims. at 5, 13-14. allegations Since these remaining error were resolved, never by review at PCRA court the present Williams, See Commonwealth v. stage was appropriate.12 207, 1167, 1192-93 (1999) (Castille, J., Pa. 732 A.2d concurring) (emphasizing importance meaningful opinion “which ad dresses all the relevant issues and which states the court’s Fletcher, v. relief’); Commonwealth reasons for denying (2006) 527, 508, 896 A.2d to (remanding PCRA court address any unresolved claims necessary for final disposition and to prepare opinion). written
Likewise, we ascertain no error the PCRA court’s decision to address the outstanding guilt phase claims prior Pennsylvania. Although petition, District of which filed stayed pending December of was the exhaustion of state remedies, Appellant required reports prog- to file status on the progress report ress—or lack thereof—in his case. The October counsel, by the federal district court the Federal Commu- nity ("FCDO”), PACER, Organization Defender which is available on provides the internet website that access to federal case information status, quashal prior indicates the order entered The Court. report request “will ... states counsel a written order” from the upcoming listing. PCRA court an explanation why status There is no request counsel did not entry twenty-two such order in the months since quashal emphasize necessity of our order. We counsel expeditiously act unnecessary delays so as to reduce ensure justice. efficient administration of Nonetheless, review, piecemeal we reiterate that "to avoid PCRA capital thorough courts in cases should be and should all address Daniels, issues.” (2009). vein, In this we note that the litigation instant case has been in twenty-five for over years subject and has now been the of three opinions by this Court.
16 this Bryant, supra, In penalty hearing. a new conducting denying of a PCRA court’s decision held that review Court of a new imposition phase precede relief should guilt engaging before “Re-sentencing the defendant sentence: relief ... results review of the denial of PCRA appellate guilt phase in the of delay determination piecemeal litigation, issues, judicial if the new misuse of resources potential guilt by subsequent moot disposition sentence is rendered 648; v. 780 A.2d at see alsо Commonwealth phase issues.” 564, (2005). Thus, Collins, 45, the PCRA Pa. 888 A.2d 568 585 resolving the by course of action appropriate court followed the new phase conducting claims outstanding guilt prior penalty hearing. PCRA turn to the substance of Appellant’s
We now relief, from the denial of our “On PCRA challenges. appeal court findings standard of review is whether the the PCRA legal Com by are the record and free error.” supported Abu-Jamal, 723 monwealth (2003), denied, 1048,124 2173, 158 cert. 541 S.Ct. L.Ed.2d U.S. (2004) Breakiron, (citing Commonwealth v. 566 (2001)). n. 4 We must determine whether the dismissing of relief re by PCRA court’s denial hearing phase evidentiary claims without an maining guilt proper. relief,
In to be for a PCRA must eligible petitioner order of the evidence that his convic- by preponderance establish tion or from or more of enumerated sentence resulted one 9543(a)(2)13 § circumstances found in 42 and that the Pa.C.S. 9543(a)(2) provides: § Pa.C.S. (a) eligible subchapter, under General rule. —To be for relief petitioner plead prove preponderance must of the evidence following: all of the (2) the conviction or sentence resulted from one or more of That following: (i) or thе A violation of the Constitution of this Commonwealth which, States in the circum- Constitution laws of United case, particular truth-determining so undermined the stances guilt process adjudication that no reliable or innocence could place. have taken *14 of error been allegation litigated has not previously waived. 9543(a)(3). § A claim 42 Pa.C.S. is previously litigated under if appellate the highest petition- PCRA court which er entitled to as a matter has right was review of ruled on the 9544(a)(2). § merits issue. 42 Pa.C.S. An allegation is “if deemed waived could have raised it but petitioner failed trial, trial, to do so before at a appeal prior or in state post- 9544(b). § conviction 42 proceeding.” Pa.C.S.
Under Rule Pennsylvania 909, of Criminal Procedure the PCRA court has the petition discretion to dismiss a a hearing without when the court is satisfied “that there are fact, no issues genuine concerning any material the defendant relief, is not entitled to post-conviction collateral and no legiti mate would purpose by any be served further proceedings.” 909(B)(2). Pa.R.Crim.P. “[T]o obtain reversal of a PCRA court’s decision to a petition dismiss without a hearing, an must he appellant show that raised a genuine issue of fact which, favor, if resolved in his would have entitled him to relief, or that the court otherwise its abused discretion in 'Amato, denying hearing.” 490, Commonwealth v. D 806, (2004). 820 Appellant raises claims of ineffective assistance of counsel under both Pennsylvania Constitution and the United States The Constitution. test for ineffectiveness is the (ii) which, Ineffective of assistance counsel in the circumstances of case, particular truth-determining process so undermined the adjudication guilt
that no reliable or innocence could have taken place. (iii) plea guilty unlawfully A induced where the circumstances likely make it petitioner plead that the inducement caused the guilty petitioner and the is innocent. (iv) improper The by government peti- obstruction officials of the right appeal tioner's where a appealable meritorious issue exist- properly preserved and ed was in the trial court. (v) Deleted. (vi) unavailability The exculpatory time of trial of evidence subsequently changed that has become would available and havе the outcome of the trial if it had been introduced. (vii) imposition greater The a sentence than the lawful maxi- mum. (viii) proceeding A jurisdiction. in tribunal without
18 Washington, v. charters. Strickland under both
same (1984).14 To prevail 80 L.Ed.2d 104 S.Ct. U.S. ineffective, the constitutionally was that counsel on a claim that counsel the presumption must overcome defendant (1) claim substantive underlying showing that: effective (2) being is merit; effectiveness counsel whose arguable has her for his or a reasonable basis not have challenged did (3) suffered act; petitioner failure to actions or Com- performance. of counsel’s deficient as a result prejudice Pierce, monwealth no reasonable bald assertions of
“[B]oilerplate allegations satisfy petitioners *15 a cannot ensuing prejudice basis and/or Common- counsel was ineffective.” to prove burden (2011). 431, 272, 443 More- 609 Pa. 15 A.3d Paddy, wealth v. Pierce, bars relief. over, any prongs meet a failure to 221-22. A.2d at 786 at trial the same counsel represented by
Appellant was thus, Appel proceeding the PCRA appeal; and on direct prior challenge stewardship opportunity lant’s first ineffectiveness claims are Consequently, Appellant’s counsel. 274, 865 v. 581 Pа. Hughes, not waived.15 Commonwealth (2004). allegations each of his 761, We address A.2d 775 seriatim. “Abdication” of the Defense
I. that counsel was ineffective first asserts three raises he “abdicated” the defense. because Pennsylvania as is the same While the test for ineffectiveness 14. standard, two-part performance prejudice this Court Strickland's i.e., parts, performance into two distinct element has divided basis, tripartite to create a arguable lack of reasonable merit and 994, 112, Jones, A.2d 1002-03 analysis. v. 571 Pa. 811 Commonwealth (2002). & n. 7 are waived argues that all of claims The Commonwealth 15. signed as certification from counsel he failed to include because find, 9545(d)(1). reasons § Because we for the required by 42 Pa.C.S. denied without infra, the claims the PCRA court that each of discussed merit, the Commonwealth's hearing we decline to address lacks Collins, 397, 957 A.2d argument. v. 598 Pa. Commonwealth waiver 237, (2008). 260 n. 12 distinct claims under this rubric. Appellant initially contends that counsel was because ineffective he “failed to an give statement, which opening would have laid foundation for an attack on the credibility.” witnesses’ Brief of Appellant рresents further argument no or analysis of his bald support assertion. As the Commonwealth and the articulated, law, PCRA existing court decisional Appel- which lant inexplicably acknowledge, fails to makes clear decision concerning such statements within falls the realm trial This strategy. recognized Court has that counsel cannot be deemed ineffective se for to make per failing an opening Johnson, 329, statement. 600 Pa.
523, (2009) (“[W]e 531-32 will not presume that the PCRA law, court was unaware of the trial prevailing which holds that counsel ‘cannot be deemed ineffective se for per failing Busanet, make an opening statement.’ Commonwealth v. (2002).”). 817 A.2d Appellant’s undevel- oped claim relative to counsel is insufficient prove Wharton, entitlement relief. Commonwealth v. claim,
In his second Appellant argues that counsel’s performance was because deficient counsel failed to “ade quately” cross-examine three of the Commonwealth’s wit *16 Russell, Liverman, nesses: Zeb Charles and Robert Although Henderson. the PCRA court did not address allegation opinion, in its a remand is unwarranted it is because apparent from record that the claim lacks merit. See Smith, 605, 17 (2011). v. 873, Commonwealth Pa. 609 A.3d 888 “Where matters of strategy and tactics are con cerned, counsel’s assistance is deemed effec constitutionally tive if he a particular chose course that had some reasonable basis to his designed effectuate client’s interests.” Common Colavita, 1, (2010) 874, wealth v. 606 Pa. 993 A.2d 887 (quoting Howard, 233, v. Commonwealth 553 Pa. 237 (1998)). “A finding that a chosen lacked a strategy reasonable basis is not warranted unless it can be an concluded that alternative not chosen a potential offered for success substan- Id. A claim actually pursued.” than the course
tially greater “through compar- cannot succeed generally ineffectiveness with alternatives hindsight, strategy employed the trial ing, Miller, v. 819 A.2d not Commonwealth pursued.” 504, 517 that, as the Common must in mind kept
It also be avers, claims involve hindsight even though Appellant’s wealth make an allega herein failed even to strategy, Appellant trial state in to accusa response to what counsel would tion as Instead, Brief at 17-19. Commonwealth tions. a remand for conclusory allegations requests mere or presents discovery expeditions; are hearings a PCRA not hearing. rather, to offer necessary peti are conducted when they he prove already that which has opportunity tioner asserted, proffer when his establishes colorable only about which there remains material issue fact. See claim Edmiston, n. record, (2004). It is to take a cold state that enough addition,” instead, could have done this or in and then “counsel relief or and further discovery delay. an entitlement to declare made, that counsel proven has not proffers On is entitled a hearing. was ineffective that he (“Liverman”), Zeb Liverman respect With that counsel failed to use available evidence under- argues In credibility. particular, Appellant mine his claims failed to to Liverman’s histo- pertaining counsel elicit evidence is use behavior. This assertion belied ry drug and criminal the record. Defense counsel cross-examined aggressively history, including twenty about criminal lengthy Liverman his arrests, convictions, six violations. parole several prior 3/11/85, N.T., Defense also elicited testimo- 139-42. cоunsel activities his drug Liverman’s as a dealer and ny regarding large question, including quantity use on drug night Thus, 142-50,159. Id. at there is no of cocaine he consumed. *17 that defense failed to inquire merit to the contention counsel history. Liverman’s use or criminal drug into Appellant further avers that counsel was ineffective for failing cross-examine Liverman about a statement he gave police. Appellant following cites “I excerpt: could have been garage [at the at 17th and but I Kater] don’t time, I doing drugs was I heavy doing rememberU cocaine, heroin, meth, on, I I anything get could hands my so D, (“C.R.”) really don’t remember.” Exhibit Certified Record at D-25. Appellant omits that conveniently after immediately claiming murder, he remembered nothing about the Liverman stated, “Wait a minute let you me tell the truth about this.” Id. Liverman then proceeded to recount the events surround ing the also shooting and told police about the murder of D’Amore, Anthony victims, another of Appellant’s discussed questioned If counsel had Liverman about initial infra. comment, the Commonwealth have could rehabilitated him with the remainder of his statement. we Consequently, will not find counsel failing ineffective for to introduce this state ment, as counsel’s strategy had a reasonable designed basis effectuate interests. noted,
As previously defense forcefully counsel cross-exam- Liverman, ined him portraying as a criminal habitual who was high drugs at the time of the murder. The mere fact that current counsel have might utilized alternative strategy does not render approach trial counsel ineffective. Accordingly, the claim that defense counsel failed to “ade- quately” cross-examine Liverman fails.
Appellant makes a claim similar of dereliction of duty with regard to counsel’s cross-examination of Charles Russell (“Russell”). He asserts that counsel “did next to nothing” with Russell’s initial statement the police, taken shortly murder, after the in which he denied any knowledge of the events. Brief of at 15. again, Once a review of the Indeed, record belies this claim. defense counsel thoroughly queried statement, Russell his about initial his motives for denying knowledge crime, subsequent false statements he made to the police, his eventual accurate recitation N.T., 3/11/85, the events surrounding murder. at 86-100. *18 Thus, of ineffective- Appellant’s allegations the record rebuts and this claim fails. ness Appellant’s allegations are ineffec
Also baseless the cross-examination Robert founded upon tiveness (“Henderson”). the explicate does Henderson to claim of ineffectiveness other than for his precise grounds to Henderson “adequately” impeach that counsel failed state intimates that background. Appellant his criminal regarding Henderson was egregious failure was since particularly near the crime “only” place Appellant the witness who could completely to be devoid of We find these contentions scene. Henderson question Defense first to con merit. counsel’s record, testimony which elicited that cerned his arrest had arrested “at least fifteen times” for Henderson been N.T., 3/12/85, burglaries. numerous robberies and at 36. drug also Henderson’s exposed Counsel’s cross-examination use, murder, failure the and numerous inconsis report his to Consequently, in his Id. 37-90. testimony. Appel tencies failed to that did not “adequate lant has demonstrate counsel ly” cross-examine Henderson. defense, his
In his finаl claim that counsel “abdicated” was ineffective for to failing asserts that counsel testimony the of three witnesses: David present “exculpatory” Paris, Dickerson, According Natalie and Dewitt Poindexter. individuals statements Appellant, gave to all three to present in 1980 was not in the police indicating He night question. near the on the faults garage shooting for to witnesses for failing speak trial counsel these and testimony to failing present jury. their When a claim of ineffectiveness for the raising witness, failure to call a a satisfies the potential petitioner requirements Strickland performance prejudice (1) (2) existed; that: the witness by establishing test (3) defense; for testify witness was available to counsel of, of, witness; of the knew or should have known existence (5) (4) defense; testify willing the witness was for of the was so testimony prejudicial the absence witness as to have denied the defendant a fair trial. Commonwealth Johnson, 329, 523, (2009); 600 Pa. 966 A.2d Common- Clark, wealth v. 599 Pa. 961 A.2d To demonstrate prejudice, petitioner Strickland “must show how the uncalled witnesses’ testimony would have been benefi- cial under the circumstances сase.” Commonwealth v. Gibson, (2008). Thus, counsel will not failing be found ineffective for call witness petitioner unless the can show the witness’s testimony would have been helpful to the defense. Commonwealth v. *19 Auker, 1305, 545 Pa. 681 A.2d 1319 “A failure to call a per witness is not se ineffective assistance of counsel for such usually decision trial strategy.” involves matters of Id. observed,
As the PCRA court Appellant has not—and cannot —show that the testimony of these witnesses would have been helpful to defense. The statements on which rather, Appellant relies are not exculpatory; they demonstrate only that the witnesses question possessed no knowledge Indeed, about the shooting. prosecutor stated before the court: are of
[T]here statements copies by other that people were inside the at on garage 17th and Kater the night that the surrounding the shooting began. Specifically, event[s] there Paris, are statements attributable to [David Natalie Dicker- son, gave and Dewitt All Poindexter]. of them informa- saying they tion anything. However, didn’t know if [defense needs of any them be present counsel] during his trial his ... during part case I will of course make them available.
N.T., added). 3/13/85, at 9-10 Defense (emphasis counsel “I responded, have reviewed those copies the statements defense, ... part and as we agreed our that they would not be necessary to be introduced.” Id. at 11. Counsel clarified that “we” my referred to “me and client.” Id.
Since the statements do not exculpate Appellant, he has failed to show testimony that the of the uncalled witnesses would have been “beneficial under the circumstances of Gibson, Thus, has not
case.” such, counsel cannot be deemed As prejudice. demonstrated ineffective, denying not err in and the court did PCRA a hearing. claim without
II. Misconduct Prosecutorial allegations prose- six issue delineates Appellant’s second fol- closing argument, during misconduct committed cutorial counsel’s assertions of trial general perfunctory lowed object counsel’s failing appellate for ineffectiveness alleged “meritorious for to raise the failing ineffectiveness arguments.” Brief of prosecutor’s challenges Appellant’s all of claims. at 30-31. The PCRA court dismissed below, agree more fully As discussed we hence, merit; lack his prosecutorial claims of misconduct succeed, cannot and dismissal allegations of ineffectiveness hearing appropriate. without a miscon prosecutorial
In an assertion of reviewing duct, the defendant was inquiry “center[s] our whether trial, a fair of a trial.” deprived deprived perfect LaCava, v. Commonwealth
(1995) Holloway, (citing (1990)). *20 687, that “prosecutor A.2d 693 It is well-settled a present arguments logical must free to his or her with be Hutchinson, 277, A.3d vigor.” force and Commonwealth v. 25 (Pa.2011). the or rea grounded upon 306 Comments evidence objectionable, inferences are not nor are sonable therefrom flair.” at 307. Fur comments that constitute “oratorical Id. thermore, the must be to to prosecution permitted respond Consequently, Id. this Court arguments. defense counsel’s advocacy that permitted vigorous prosecutorial provided has [prosecu a the record for the “there is reasonable basis Robinson, v. tor’s] comments.” Commonwealth (2004). A do not 516-17 remarks prosecutor’s their effect constitute reversible error unless unavoidable in thеir fixed jurors, forming would the minds bias prejudice so that could not hostility they and toward the defendant render true verdict. weigh objectively the evidence and a Bond, we Finally, review the allegedly remarks in improper the of closing LaCava, context the as a argument whole. A.2d at 235. posits first the prosecutor that committed by jurors
misconduct “suggesting that are Commonwealth employees who are there to the prosecutor’s do bidding.” Brief of 23. In his closing argument during guilt phase, prosecutor stated: Gentlemen, and
Ladies it is common practice for criminal sides, lawyers they both when first toup stand address jury at the end to you case thank for your participation the trial. I am not a subscriber to that particular practice because I firmly believe, as I you told when opened I days ago, few that jury job service is a it job you is a that haven’t yet completed. am quite I sure your that none of employers you on back pat until you job, finish the and I don’t want do to that either.
N.T., 3/13/85, at asserts that these remarks suggested jurors that the their prosecutor was “boss” they and that had obligation their perform “job” by finding Appellant guilty.
We find no to Appellant’s merit The allegation. comment came beginning at the prosecutor’s closing argument designed counsel, was to mirror that defense who the jurors thanked their for attention and fulfillment of their “duty” N.T., 3/13/85, citizens. Thus, as at 12. when viewed in context, it is apparent that the prosecutor responding defense counsel’s argument reminding jurors that their job “duty” yet was not complete; they that still had to reach point a verdict. At no prosecutor did the link the notion “job” to the Commonwealth or indicate he was their “boss.” The prosecutor simply echoed the argument of de- fense jurors counsel and reminded the they yet had *21 Thus, fulfill obligations. claim, their there is no merit to this and the PCRA did not in court err denying evidentiary hearing. prosecutor asserts that the deliberate
Appellant next “You not here jury, the law he told the are ly misstated when so witnesses; judge [Appellant], are here to you to the judge N.T., 3/18/85, According at 40. to that in keep let’s mind.” because particularly egregious Appellant, this statement testimony him to the crime was the the evidence only linking witnesses, credibility their making of the Commonwealth’s centrаl issue. the argument, Appellant pros
In his takes advancing told the prosecutor comment out of context. The ecutor’s jury: from upon you to focus in this case what did hear
You have witnesses, main of which are Robert the the two ones the They key Henderson Zeb Liverman. are witnesses in ... operative case. the word here is witnesses. And ... not on trial here. they are not defendants are They not the may is on trial here. You care for [Appellant] lead; either, that I don’t but doesn’t lifestyles [they] of as far as the or innocence any guilt make difference You here the judge is concerned. are not [Appellant] witnesses; you judge [Appellant], are here to Let’s focus on on the [Appellant] lifestyles and not witnesses. N.T., 3/13/85, Thus, at 40. the comment was prosecutor’s had no jurors they obligation tantamount to telling Rather, sug- he was credibility assess witnesses. that the look the character flaws gesting jury beyond should witnesses and focus the evidence Commonwealth’s presented. noting prosecutor’s It also bears that the remarks in closing in counsel’s response argument, were to defense credibility of witnesses. aggressively which he attacked in trial we observe that its Finally, charge jury, any court remedied harm have the sole stating: “[Y]ou testimony whether the each wit- responsibility deciding ness in the case is and is believed truthful accurate be N.T., 3/13/85, at 77-78. part.” disbelieved whole or we claim to be without merit. Consequently, find *22 also that the committed Appellant argues prosecutor by that it a in telling jury duty misconduct the had to convict order to a neighborhood place. According make safer comment Appellant, prosecutor’s injected impermissible factor into the deliberative process. claim, advancing
In differ- Appellant improperly strings parts argument ent the closing together. prosecutor The stated: Philadelphia you section South where “[I]n in it heard about this case is not safe for very person a [ ] N.T., family 3/13/85, raise a at anymore.” 41. twenty Over indicated, in pages transcript, later the prosecutor “So now, it is for gentlemen, you your [l]adies time to do duty.... Now is the for you go time out and deliberate and N.T., return a verdict of guilty 3/13/85, in this case.” at 66. Upon reviewing entire it is closing, apparent that prosecutor never that the a argued jury duty had to convict in order to make the safer. This neighborhood post argu- hoc ment, by crafted context, isolated statements taking out of fails to withstand scrutiny.
Even when the comments identified are Appellant isolation, in context, viewed no there is error. in When read the initial comment regarding high-crime area of Philadel- in phia which the murder occurred simply an explanation that the Commonwealth takes its witnesses as it them. finds The prosecutor was merely attempting to convey jury to the that since area, the murder occurred in a high-crime it was not surprising that the had witnesses criminal histories.
Likewise, there is no error the statement jury that the should a return verdict. guilty “We can find no error prosecutor asking jury render a verdict to his favorable position.” v. Kemp, 562 Pa. (2000), abrogated on other grounds by Common- Freeman,
wealth v.
In his fourth allegation avers the prosecutor improperly commented on Appellant’s claim, upon relies Ms support To silence. because say anything didn’t “[Appellant] statement: following his open not to right and constitutional an absolute he has trial, on trial but he is still of this length the entire mouth for 3/13/85, N.T., it.” said he did people because other this statement made the prosecutor argues naturally would jury that “the tone” such a “negative with the failure a comment on it to be take necessarily *23 Fenton, F.2d Bontempo testify.” to accused Cir.1982). pros- contends that the (3d Additionally, Appellant him to by requiring persuasion the burden of ecutor shifted (“[Defense 3/13/85, N.T., counsel] at 56 innocence. his prove years get three to had witnesses] to that suggested you [the somebody, covering are for they that acts and together their they hint who it is you slightest give he doesn’t although for.”). covering are of Regardless are frivolous. allegations
Appellant’s made, was in which the statement tone derogatory any alleged summary of was an accurate statement the prosecutor’s was comment prosecutor’s that Assuming arguendo law. to the charge error in its any the trial court cured improper, jury, explaining: to the
Now, entirely up that it is you I have told before one, trial, that includes this in criminal every defendant has an absolute testify. not to The defendant whether or constitution, to remain silent. Since on the right, founded case, you, uneqmvocally, I now tell in this that occurred adverse not, may any not draw inferences you must you nor testify he did not did from the fact that the defendant his own behalf. testimony he on present Thus, N.T., 3/13/85, this claim fails. at 79. that the
Likewise,
allegation
no merit to the
there is
commenting
persuasion by
the burden of
shifted
prosecutor
that another
substantiate his contention
failure to
remark was
The prosecutor’s
the crime.
individual committed
that one of
by the defense:
theory espoused
to the
response
murder since
committed the
witnesses
the Commonwealth’s
3/13/85,
N.T.,
was the
Appellant
“perfect patsy.”
at 28.
It
entirely
proper
prosecutor
for
respond
defense
argument
counsel’s
emphasize
implausibility Appel-
Hutchinson,
lant’s “cover up” claims.
Appellant next asserts
the prosecutor
engaged
misconduct when he bolstered the
credibility
Common
wealth witness Charles Russell. Our
review
the record
objected
reveals that counsel in fact
еxchange
however,
underscores. Appellant,
ignores
context
exchange.
notes,
As the Commonwealth
Appellant fails to
acknowledge that
the exchange occurred on redirect after
subject
himself broached the
on cross-examination.
Moreover, Appellant litigated the claim on
appeal,
direct
a fact
Sneed,
fails to
inexplicably
mention. See
754-56;
9543(a)(3).
§
Finally,
Pa.C.S.
Appellant never
explains why
litigation
counsel’s
claim at trial and on
direct appeal was deficient. Couching this issue as one of
bar,
counsel’s ineffectiveness does not overcome the statutory
“for it is
that a
petitioner
well-settled
PCRA
cannot obtain
additional review of previously
litigated
presenting
claims
*24
new theories of relief including allegations of ineffectiveness.”
Wharton,
circumstances,
In his final allegation, Appellant contends that the prosecutor engaged in by misconduct a making “flurry of inflammatory” and “vindictive” rеmarks designed to solely inflame the jury’s Brief passions. Appellant at 28. Appel objects lant to the following remarks:
But we maybe, maybe ought give to [Appellant] a break. we Maybe ought to show him a little mercy maybe and we give him ought to a second you chance. But when get to that point, gentlemen, ladies and you testimony recall the in here, this case because that is important what is and you give him same he gave break to when he [the victim] him, lured lured him back Philadelphia to south to the he could shoot knew was so that gun he his
garage where him and kill him. he mercy [the victim] showed
You same guy show him, at shooting hitting he him down the street when chased hitting and him major artery, a severing him the and lung chance the same second he give You him in both arms. who, already the street suffer- to on gave lying victim] [the ... wound, only up [Appellant] looked ing from a mortal to receive ... a bullet the brain. chances, gentle- and more ladies any
He is not entitled his jury peers. to fair trial men. He is entitled [the And that is lot more than you. That is thirteen of the audacity because he had died got. victim] [The victim] I have lot of theft from tried a [Appellant]. to steal $50.00 career, but never saw one gentlemen, cases ladies and my appropriate. was yet penalty where the death here to did judge [Appellant], [Appellant] You are people He himself. tried him and he on judging [the victim] he him. him and executed convicted N.T., 3/13/85, argument at 66-68. avers that the as Appellant jurors destroy impartiality a whole designed concerning “mercy” were not related the comments to the evidence.16 is merit as the remarks were
This
devoid of
allegation
noted, a prosecutor
As
is
proper closing argument.
previously
force
logical
“free to
his or her
with
present
arguments
Hutchinson,
Since miscon- merit, lack not duct counsel was ineffective for to raise failing Thus, them. the PCRA court did not err in an denying evidentiary hearing. Jury
III. Interference Appellant next asserts that counsel was for ineffective raising jury claim interference. claim This is confined to allegation counsel’s respecting performance appeal. (“[Cjounsel Brief of at properly preserved trial.”) issue The court rejected PCRA reviewed and contention, finding pure that it was speculation. again, Once agree we with the PCRA court. 25,1985,
On February several weeks to the in the prior trial case, instаnt Appellant was convicted of murder second-degree for D’Amore. killing Anthony See Commonwealth v. Sneed, Pa.Super. D’Amore’s widow attended trial for the murder of Calvin trial, Hawkins. day On the second defense raised counsel following for the record”: “point Defense: aware, court is well Mrs. [A]s D’Amore who was the victim’s wife in the last Sneed case is in the present courtroom with either her her paramour husband or something.
The court: am puzzled I about she is here. I assume why she is not a witness.
Prosecutor: called me see if she could come She down see what happens the second case. it, particularly
Defense: I am not crazy about but I have no reason to say anything regard with to that.
The court: Is doing Wait minute. she with the anything other jury than there? sitting *26 jury gave Your Honor know. I don’t When
Defense: the ladies room.... to togo permission officer]. court by [a They accompanied were The court: that correct, M[r]s. I understand That’s Defense: so, room, and rightfully into the ladies go tried to D’Amore go cannot you D’Amore told M[r]s. officer] the [court men’s into the took them court officer] I assume [a there. what- husband, or paramour D’Amore’s but [Mrs.] room is for I don’t need in the hall—what ever, walking was only pre- I’m talking out loud—and to do some somebody this guy like to see I would at this point saying supposing — what he deserves. get don’t Please, sir, anything you don’t add court:
The know____I here, I have no to but for them be see no reason I can do thing The away. only them keep in the law to way jury. from the away them keep is N.T., 3/11/85, 61-62. later, closing arguments, to the start prior days
Two jurors, one of the the court that counsel informed defense in the bathroom. McCool, by a woman approached was Alberta McCool, which she during Ms. colloquy held a with The court wind her about “the that the woman asked the court informed hair. Ms. McCool styled she her her hairdo” and how woman, know did not respond that she did stated the court. but was, anyone and did not inform she who and defense Thereafter, prosecutor assent of both to the her counsel, companion D’Amore and the court informed Mrs. N.T., in the courtroom.17 longer permitted were no they that 3/13/85,at 3-7. not to companion the order and her abided
17. While Mrs. D’Amore courtroom, hallway during penalty they were seen in the enter the ex- Appellаnt them observed phase. Defense counsel claimed jurors they the courtroom. as entered changing "pleasantries” with the highly suspect allegation since was prosecutor stated that The jurors. hallway The court in the with the Appellant not allowed information, any action since there to take but declined took note of this any likewise refused contact. The court actual evidence of was no juror individually question to ascer- request each defense counsel's N.T., 3/15/85, at 34- they D’Amore. had contact with Mrs. tain whether brief, instant in his occurrence While cites this foregoing, Based contends actions companion of Mrs. D’Amore and her “infected the trial pro- -with ceedings, specific interfered members of the jury, and [Appellantj’s rights interfered with due process and an impartial jury.” He maintains that counsel was ineffective for “failing raise this claim on properly litigate appeal.” and/or Brief at 37.
An extraneous
may
influence
the im
compromise
partiality and integrity
jury,
of the
the
raising
specter of
prejudice. See
by
Corp.,
Carter
Carter v.
Steel
529
U.S.
Pa.
409,
1010,
(1992)
604 A.2d
1015-16
(plurality). The relеvant
is
inquiry whether the extraneous influence
“a
caused
reason
1016;
able likelihood of
Id.
prejudice.”
see also Common
v.
25,
(1983)
wealth
501
Bradley,
Pa.
459 A.2d
(requiring
that contact
showing
between member of the jury
and court officer resulted in “a
of preju
reasonable likelihood
defendant.).
dice”
In making
the “reasonable likelihood of
determination,
“(1)
prejudice”
the court must consider:
wheth
er the extraneous influence
a
relates to
central
issue
the
case
merely
issue;
(2)
or
involves a collateral
whether the
extraneous
provided
influence
the jury with information they
(3)
did not have
trial;
before them at
whether
extraneous influence was emotional
inflammatory
in na
Carter,
(footnote
ture.”
omitted).
While the contact was Appellant has improper, failed to demonstrate that there awas reasonable likelihood that he prejudice. suffered Mrs. D’Amore’s remarks bore no relation to the Moreover, case and were innocuous.18 her comments were “ambiguous and not of such a nature that it can be said without speaker hesitation that intended to influence a dеcision adverse to [Appellant].” Laird, v. Commonwealth (1999).
appeal only guilt phase Consequently, concerns claims. we will not portion Appellant's argument. address immediately apparent It is from the record how court or the attorneys question knew that woman in was Mrs. D'Amore. speculative. Appel-
Further, entirely claim is Appellant’s say counsel would as to what trial proffer lant made no scene, he noticed at the this claim. Counsel was response to contact,” the issue supposed “improper of some prospect a supports nothing developed was explored, trial denied a fair was somehow claim on appeal have been may who person of innocuous remarks because who had murder victims and related another Appel- to attend any public much as member right as lant’s trial. record, that Mrs. we cannot conclude
Based jury. integrity compromised D’Amore’s comments merit. will this claim lacks Counsel Consequently, arguable claim. for to raise meritless failing not be deemed ineffective 1191, 1210 Spotz, extension, err in the claim denying the PCRA court did not By hearing. without a Brady
IV. Violation *28 the with next asserts that Commonwealth
Appellant
in violation of the United
potentially
held
evidence
exculpatory
v.
Brady Maryland,
373
Supreme
States
Court’s decision
(1963)
83,
1194,
(holding that
83
35 Instead, only that Appellant, states he should be allowed to discovery conduct granted be an evidentiary hearing to claim. develop his
Appellant’s assertion is comprised entirely of con jecture. “prove, by The burden with rests record, reference to the evidence withheld sup Porter, pressed by prosecution.” Commonwealth v. 556 301, (1999) (citations 890, omitted) Pa. A.2d 898 (emphasis added). Appellant prove has failed to the existence of the evidence, allegedly exculpatory let that it alone was material and deprived 272, him of a fair trial. Paddy, See 609 Pa. Likewise, A.3d at 450. Appellant does not identify the “wit nesses” who received supposed favorable Ap treatment. pellant’s bald assertions are insufficient to establish a viable claim. Brady
Appellant cannot circumvent his pleading requirement by an requesting evidentiary hearing to determine coun- whether sel was failing ineffective for develop purported excul- “An patory evidence. ... evidentiary is not meant to hearing function a fishing expedition as for any possible evidence that may some claim support speculative of ineffectiveness.” Com- Scott, monwealth v. (2000); 877 n. 8 Edmiston, 887 n. In light Appellant’s complete failure to meet his burden proving Brady ineffectiveness, claim and counsel’s he is not entitled to relief. Treaty
Y. Bar Appellant proposes a claim based upon alleged violation *29 of the United Nations Organization’s International Covenant (“ICCPR”) on Civil and Political Rights and other similar treaties. See International Covenant for Civil and Political 16, 1966, Rights, (entered Dec. 999 I.L.M. U.N.T.S. 6 368 23, 1976). into force Mar. that posits the ICCPR bars the of state rule application any procedural as a basis to deny substantive review of federal in “constitutional violation 45. He suggests Brief at Appellant’s case.” penalty
a death
that
ensure
death
treaty
is bound
the United States
that
in “contravention of
are not
or carried out
imposed
sentences
Fifth, Eighth,
in the
and
standards embodied
the substantive
concerning
pun-
cruel and unusual
Amendments”
Fourteenth
claim is
As the Common-
Id. at 47. This
frivolous.
ishment.
out,
under a sentence
currently
is not
points
wealth
Moreover,
litigated
the
itself
in a case
FCDO
of death.
rejected
than an
lost,
the notion
ICCPR
expressly
this Court
the
v.
under
PCRA. See Commonwеalth
cognizable
claim is
(2007)
(discussing
VI. Cumulative that he is entitled to Finally, Appellant asserts the errors he has light relief in the cumulative effect of has his brief to this Court. “As this Court often presented held, collectively number claims warrant may no of failed fail they individually.” relief if to do so
37
67,
215,
(2007);
593 Pa.
928
Rainey,
A.2d
245
Commonwealth
Williams,
(2006).
553,
523,
v.
586 Pa.
896 A.2d
Conse-
rejected
merit,
where claims are
quently,
arguable
for lack of
there is no basis for an accumulation claim. Commonwealth
Sattazahn,
(2008).
648,
640,
v.
Where
the failure of individual claims is
of
upon
founded
lack
prejudice, then the
prejudice
cumulative
from the individual
Johnson,
claims is properly assessed.
We of majority Appellant’s allegations of error for arguable lack of merit. there is no for Accordingly, basis an accumulation claim. As no rejected claim is on solely of grounds an absence of are prejudice, there no claims to cumulate.
Having
Appellant’s
error,
reviewed
allegations
hav-
ing
merit,
that all
concluded
lack
we
affirm
order
PCRA
denying
court
Appellant’s
petition
amended
without
evidentiary hearing.20 We remand the case to the PCRA
conduct,
court to
as expeditiously as
possible,
new рenalty
phase
pursuant
Sneed,
hearing
previous
to our
decision. See
Jurisdiction Justice McCAFFERY did in the participate consideration decision of this case.
Justice ORIE did not MELVIN in the participate decision of this case. CASTILLE,
Chief Justice Justices BAER, EAKIN and join TODD the per curiam opinion.
Justice SAYLOR files a dissenting opinion. Appellant’s boilerplate argument evidentiary that he is to an entitled hearing rejected. of his all claims is We have considered all his thereof, individually, including proffers, contentions all of his or lack made to the PCRA purpose evidentiary court. Mindful of the of an hearing, we conclude proven respect has not error with Scott, any regard. claims in his 561 Pa. (2000) ("An evidentiary 752 A.2d hearing n. 8 ... is not fishing expedition possible meant to as any function for evidence that ineffectiveness.”); may support speculative some claim of Common- Edmiston, wealth v. 887 n. 3 SAYLOR, dissenting.
Justice evidentiary hearing of an in favor dissent respectfully I claims. Giv- ineffectiveness guilt-phase regarding in a we have seen ineffectiveness patent en the extent *31 relative to the this one (including these cases fair number of 12-13, 45 A.3d at lеast, Majority Opinion, see at penalty phase on a be decided claims should 1103), maintain that such I record. developed reasonably prosecuto- disapprove “I would I reiterate
Finally, render juries to sentencing asking capital rial practice the victim was manner as cold deliberate in the same verdicts Amendments and Fourteenth killed, Eighth since under jurors is to Constitution, the obligation the United States of the killer.” Com- law, lawless mindset not the follow 532, 587, Freeman, 573 Pa. v. monwealth v. (citing Penry (2003) J., dissenting) concurring (Saylor, 1910, 1920-21, 150 782, 797-98, 121 Johnson, S.Ct. 532 U.S. (2001), King, v. and Commonwealth L.Ed.2d 9 (1998)). 359-60, A.3d643 Astemborski, Abruzzese, Henry CAIARELLI, James David H. Collier, Joseph Ciorra, W. Joseph Bozynski, Kenneth Michael Jackson, Lang, Decaria, Henry Grubbs, Joseph R. Robert T. Marletti, Lerch, Littlejohn, James J. Michael M. Marvin John Petrus, Taylor, Obranovich, J. Jack Nese, Daniel Donald John Woodside, Young, Appellants Tomes, Tinelli, Fred Mark Robert Lacy CO., SEARS, J. & Alan ROEBUCK Heidemann, Appellees. Lyle G. Barth, Joseph Blough, Baker, Albertini, Keith A. James W. David Brandt, Joseph III, Gladys Breiten- Bombash, M. Andrew J. Bunland, Budner, Brenneman, Thomas bach, Thomas Brian Cerra, III, Giovanni Campbell, M. Cavich E. Michael Brian Clymer, Chauvenne, Jr., Christopher, Ron- Dale William Robert Davis, Cressman, Cole, Comley, James A. John Bill ald William