*1 896A.2d 1191 Pennsylvania, Appellee, COMMONWEALTH SPOTZ, Appellant. Mark Newton Supreme Pennsylvania. Court 20,May
Submitted 2002. 2,May
Decided 2006. *18 Dunham, Robert Brett Esq., for Mark Philadelphia, Newton Spotz. Serina, Cori, J. Frank Esq., Amy
Andrew Robert Esq., and Zapp, Esq., Orwigsburg, for of Pennsylvania. Commonwealth C.J., CAPPY, CASTILLE, NEWMAN,
BEFORE: SAYLOR, BAER, BALDWIN, JJ.
OPINION
Justice NEWMAN. Mark Newton Spotz (Spotz) appeals from an Order of the (PCRA court) Court of Common Pleas of Schuylkill County Petition for denying his Post Conviction Relief pursuant to (PCRA).1 Post Relief Act Conviction For the set reasons herein, forth we affirm Order of the PCRA court.
FACTS AND PROCEDURAL HISTORY2 *19 31, On evening January 1995, brother, the of and his Spotz Dustin, became in a involved A family argument. heated verbal exchange began in the living room of the Clearfield of County home their mother and stepfather and escalated into a physical in altercation the kitchen. Spotz has main- knife, tained that Dustin him in stabbed the back with a butter him to prompting leave the kitchen upstairs and to go retrieve a handgun. .9-mm Spotz returned to the kitchen the with weapon and the argument Spotz continued. fired at least Dustin, at fatal, seven shots of two which were him in striking the Spotz chest. then the put gun in pants his and his fled parents’ (No- house with then-girlfriend, Christina Noland land), in a Spotz’s vehicle driven by stepfather.
After Spotz’s stepfather dropped and Spotz Noland off at a house, friend’s they Grove, were driven to Pine Schuylkill County, and made their toway the main street of town §§ 1. 42 Pa.C.S. 9541-9546. 20,
2.
large
The tacts recited herein
part
July
are taken in
from the
Opinion
this
appeal
Spotz's first-degree
of
Court on direct
of
murder
conviction,
Nigro.
authored
Spotz,
Mr. Justice
Commonwealth v.
499,
(1998),
denied,
1070,
After car to taking Ohlinger’s cut Maryland, where Noland and Noland traveled They Pennsylvania, her hair. then returned dyed County. Spotz separated; time in York and Noland stopping a police car. The arrested kept Ohlinger’s Noland Carlisle, In the February motel on 1995. Pennsylvania, meantime, car disposed Ohlinger’s Noland and took bus Altoona, At police. surrendered eventually she where arrest, Ohlinger’s the time of her she was possession jewelry. of Common proceeded against Spotz
Trial first Court (Clearfield court) for County County Pleas Clearfield jury death Dustin. convicted September On assault,4 reck- voluntary manslaughter,3 aggravated *20 a firearm lessly endangering person,5 carrying another with- license,6 a violating provision forbidding out a and the former firearm;7 jury Spotz a owning acquitted convict from (amended 1995). § 18 2503 3. Pa.C.S. 1995, 1996, 1998, 2002, 2004). (amended §
4. 18 Pa.C.S. 2702 § 18 5. Pa.C.S. 2705. 1995, 1997, 2000, (amended 2005). §
6. 18 Pa.C.S. 2002, 2003, 1995, 1997, 1998, 1999, (amended § 18 Pa.C.S. 7. 2005). 17, 1995, first-degree8 third-degree murder.9 On October the court an sentenced term aggregate imprison- ment of to thirty-five years. Spotz seventeen-and-one-half did not file a direct from appeal County the Clearfield trial court’s Judgment Sentence.
Trial next proceeded against Spotz the Court of Common court) Pleas of Schuylkill County (Schuylkill County trial trial, the death of Ohlinger. At Noland testified that head; had shot in the back of Ohlinger State Trooper ,9-mm Joseph Kalis testified that a police recovered handgun from the Carlisle motel they where arrested Spotz. Forensic analysis revealed the Spotz’s existence of finger- prints vehicle, on certain items recovered from Ohlinger’s police which the recovered in The County. York Common- presented wealth also testimony the fiancée of Dustin and her son concerning leading events the death of up Dustin to establish Spotz’s motive for fleeing Clearfield Coun- ty and the chain of up events to the leading murder of Ohlinger. 4, 1996,
On March the jury found Spotz of first- guilty degree murder, assault, aggravated kidnapping,10 a robbery of vehicle,11 motor robbery,12 theft by taking,13 unlawful criminal conspiracy.14 At the penalty hearing, jury found (1) three aggravating circumstances: the killing was (2) committed perpetration felony;15 has significant history of felony convictions involving the or use threat of violence to person;16 had been of voluntary convicted manslaughter committed either before 2502(a). § 8. 18 Pa.C.S. 2502(c). §
9. 18 Pa.C.S. §
10. 18 Pa.C.S. 2901. §
11. 18 Pa.C.S. 3702. §
12. 18 Pa.C.S. 3701. §
13. 18 Pa.C.S. 3921. §
14. 18 Pa.C.S. 903. 9711(d)(6). §
15. Pa.C.S. 9711(d)(9). §
16. Pa.C.S.
26 found one jury offense.17 The present
or at the time of of any mitigation other evidence circumstance: mitigating the circum- of and Spotz the character and record concerning (the provision),18 specifically, of .his offense catchall stances The jury a home. determined dysfunctional that he had cir- outweighed mitigating circumstances aggravating death. The and, sentenced accordingly, Spotz cumstance imprisonment of Spotz to an additional term court sentenced twenty-nine years, to run consecu- of fourteen-and-one-half trial imposed by County the Clearfield tively the sentence 28, 1998, July this Court for the of Dustin. On court death I, and sentence. Spotz death Spotz’s affirmed convictions supra.19 17, 1998, a se Petition for Post Spotz pro filed
On November PCRA, Relief, pursuant challenging to the Conviction The Defender Association of Schuylkill County conviction. Spotz its on behalf of appearance entered Philadelphia a Certiorari to the filed Petition Writ of subsequently court dismissed Court. The PCRA Supreme United States resolution of by Spotz pending PCRA Petition filed pro se of Certiorari. The United States Su- his Petition for Writ July on certiorari 1999. preme Court denied 1070, 119 L.Ed.2d Pennsylvania, 526 U.S. S.Ct. (1999). an Amended Petition on the same Spotz filed PCRA hearing on the PCRA The PCRA court conducted day. 28, 2000, 2000. through October September Petition from 5, 2001, court April dated the PCRA By Opinion and Order Petition, had not concluding denied PCRA Spotz’s evi- proving, by preponderance met burden dence, or that trial rights that his constitutional were violated County trial. Schuylkill ineffective at his counsel was and PCRA court appeal his direct During pendency convictions, Schuylkill County from the proceedings stemming l(d)(12). § 17. 42 Pa.C.S. 9711(e)(8). §
18. Pa.C.S. Watkins, (trial counsel) Esq. represented at his Kent D. 19. Schuylkill County appeal on direct to this Court his first- degree sentence. murder conviction death Spotz attempted to obtain review his Clearfield County 4, 2001, voluntary manslaughter conviction.20 On October approximately six after the PCRA court months denied *22 Schuylkill County convictions, collateral relief from his Court Superior Spotz’s reversed Clearfield County voluntary conviction manslaughter and remanded for a trial. The new Court Superior Spotz’s held that counsel for his Clearfield County voluntary manslaughter trial “was ineffective for not objecting prosecutor when the asked questions and made concerning comments [Spotz’s] post-arrest right to remain silent.” 1998, Commonwealth v. No. 2164 Spotz, Pittsburgh 11, slip op. 4, 2001). 790 (Pa.Super. A.2d 343 filed Oct. Thereafter, sought the Commonwealth appeal, allowance of granted 12, which this Court on December 2002.21 The decision the Superior Court reversing Spotz’s Clear- County voluntary field manslaughter conviction cast on doubt the continuing validity of Spotz’s Schuylkill County death sentence because based, that death sentence was at least part, on the Clearfield County manslaughter conviction. Nev- ertheless, in a 29, unanimous 2005, decision filed March this Court reversed the Order the Superior Court and reinstat- ed Sрotz’s County Clearfield voluntary manslaughter convic- tion. Commonwealth v. Spotz, 207, 582 Pa. A.2d (2005) IV). (Spotz doing so, we recognized that the claim that his Spotz trial counsel was ineffective failing object to the prosecutor’s post-arrest references silence arguable 832; possessed merit. Id. at see Commonwealth v. Turner, (holding that prosecutorial references post-arrest to the accused’s silence are potentially prejudicial). However, emphasized we also that there was no evidentiary hearing on this ineffectiveness 16, 1996, January 20. On Spotz filed a Petition for Post Conviction Relief, in he which County claimed that his counsel for his Clearfield appeal trial failed to timely his conviction in a manner. On November 17, 1998, County granted Clearfield pro trial court nunc tunc appellate rights. reinstatement of his filed a Cross-Petition of Appeal, asking for Allowance 21. Court to rule on additional claims trial counsel ineffectiveness upon he believed would granted recur his re-trial. We also allowance cross-appeal of this on December 2002. or the claim that the trial court did not address
claim and
that, ab-
explained
The Court
make factual determinations.
record,
could
complete evidentiary
we
sent a full and
had a reasonable
counsel
adequately determine whether
or
comments
object
prosecutor’s
to the
basis for
by trial counsel’s failure
been
prejudiced
had
whether
Therefore,
to our mandate
Common-
object.
pursuant
(2002),22
Grant,
Pa.
DISCUSSION *23 review, presents fifteen issues for our appeal, Spotz On of In particular, have reordered for ease discussion. which we issues, he did plus a claim that Spotz raises twelve substantive review, generalized claim independent appellate receive counsel, a claim of cumulative error. of ineffectiveness of claims, the first which Initially, discuss five substantive we will guilt-phase are all based.
A. PHASE GUILT 1. Joinder Compulsory court County that the trial Schuylkill first contends Spotz refusing join charges pending in for four deaths erred him, against and that trial counsel was ineffective on The evidence shows that appeal. this issue direct preserve 1995, 31, 2, 1995, February went January through Spotz from people: he killed four on a crime in the course of which spree, that, Grant, rule, general claims 22. In this Court announced as time on be raised for first ineffective assistance counsel should Grant, 738. review. 813 A.2d at collateral IV, prejudice addition- Spotz 23. also without In Court dismissed by Spotz in his Cross- of trial counsel ineffectiveness raised al claims review. pursue claims on collateral Appeal so that he could these
29 Dustin, (Gunnet), Ohlinger, Penny Betty Gunnet Amstutz (Amstutz). Each killing was committed in a different coun ty in Clearfield County, Ohlinger Schuylkill Coun —Dustin Gunnet ty, in York and Amstutz in County, Cumberland County. discussed, As previously County the Clearfield trial court Spotz voluntary convicted manslaughter, which sen tence initially by the Superior reversed Court on direct appeal but later reinstated this Court on discretionary IV, Spotz supra. Moreover, review. Schuylkill County murder, trial court convicted of first-degree which sen I, tence we affirmed. supra. Similarly, Court of (York court) Common County Pleas of York County trial convicted first-degree murder Gunnet and sentenced him to death. We affirmed the death sentence on 22, 498, August 2000. Spotz, Commonwealth v. 562 Pa. 756 denied, (2000), 932, A.2d 1139 cert. U.S. S.Ct. (2001) ).24Likewise, II (Spotz L.Ed.2d 307 we affirmed the
death sentence imposed upon Spotz for the
Coun
Cumberland
ty murder of
Amstutz. Commonwealth v.
Spotz,
(2000),
denied,
pursuant as part, relevant follows: of a different is for a violation
Although prosecution a a or is prosecution than former of the statutes provision facts, prose- former by it is barred such on based different following the circumstances: cution under or in a acquittal resulted an prosecution The former (relating 109 of this title as defined in section conviction prosecution barred former prosecution to when offense) is for: subsequent prosecution and the same
[*] [*] [*] (ii) arising the conduct or any offense based on same if offense episode, such was from the same criminal the time officer at prosecuting the appropriate known to of the first trial and was within of the commencement a unless the court ordered jurisdiction single court of such offense---- charge separate 110(l)(ii). York and § maintained that the 18 Pa.C.S. on the same conduct County murders were based Cumberland killings criminal as episode from the same or arose The trial courts both and Clearfield Counties. Schuylkill rejected Spotz’s County cases the York and Cumberland sentence, of each death we affirmed appeal motions. On not to dismiss or quash of the trial courts decisions as follows: We reasoned charges pending against Spotz. crimi- single constitute To whether various acts determine relationship the logical must nal a court consider episode, The the acts. mere relationship between temporal other crimes was [Spotz’s] that certain evidence fact does not mean prosecution admissible in relevant and a single be killings part the four must deemed may be admissible crimes evidence episode. criminal Other Here, evidence variety evidentiary purposes. for a i.e., motive, [Spotz’s] need relevant establish intent, as killings, identity his previous after the escape up killer, sequence leading of events establish evidentiary limited These to the murder [Amstutz]. *25 purposes of the relevant evidence stand in to the contrast purposes portions for which of the evidence were introduced in the separate prosecutions for each of killings, where the relevant evidence constituted direct of [Spotz’s] evidence guilt.
However, the mere fact that the prior killings were admissi- ble here purposes for limited does not alter their essentially independent nature. The killings involved four different victims, counties, committed four occurring on different days, generating separate and four criminal investigations. 31, 1995, The first killing occurred on January Clearfield County, [Spotz] when killed his brother during a family argument. The killing second occurred on Februаry 1995, in Schuylkill County, [Spotz], where after fleeing Clearfield County, abducted her [Ohlinger], stole car and murder, her. murdered Following that [Spotz] and Noland Beach, fled to Rehoboth They Delaware. returned to York County, 2, 1995, Pennsylvania, on February they where [Gunnet], abducted stole her car and [Spotz] ultimately murdered her. [Gunnet], After murdering [Spotz] fled to Noland, Harrisburg, [Amstutz], without abducted stole her car, used her to get victim, money lodging from the then her. killed The killings are logically connected primar- ily by the fact [Spotz] committed all four of them. Furthermore, although Noland was an important at witness capital trials, all three other, there were equally important witnesses here who only testified to evidence proving [Amstutz], [Spotz] Thus, murdered the Commonwealth called numerous witnesses to establish that [Spotz] seen was with prior murder, to her [Amstutz] that man matching [Spotz’s] description was seen standing near a vehicle matching [Amstutz’s] the location where her dead body found, later was [Spotz] staying Knight’s Moreover, Inn. an investigation unique to this killing was conducted officials, local law enforcement which resulted in testimony from different investigating officers and authorities. What this in Spotz Court noted II is equally applicable here: not a case in which the witness(es) to the same solely upon relied
Commonwealth Instead, generated the cases the killings. each of prove *26 the as well as lay police of and witnesses testimony different custody. Accordingly, of chains of separate establishment of of issues law duplication such a substantial there not was in the four cases duplicative witnesses and fact and joinder required. II, 1285-86; 756 A.2d at III, see also 759 A.2d at
1157-59. litigated. that this issue was agree previously not
We do PCRA, previously “an issue has been of the purposes For petitioner court which highest appellate if the litigated on the as a matter of has ruled right had review could have in a it been raised and decided the issue has merits of [or] the conviction or sentence.” attacking proceeding collaterally 9544(a)(2)-(3). never ruled on the issue § We have 42 Pa.C.S. County crimes Schuylkill and of Clearfield Spotz’s whether II, In Spotz criminal we part episode. of the same were not of the County part murder was York determined Schuylkill County as the and same criminal Clearfield episode crimes; III, County held that Cumberland we criminal as the episode of the same part murder was not However, Clearfield, crimes. County and York Schuylkill, that the possibility forecloses the neither of these decisions County part crimes of the same Schuylkill and were Clearfield be distinct from Although may act three episode. criminal one, two, from acts act four be distinct may one and acts one two, three, automatically follow that acts it does from each other. and two are distinct Schuylkill error alleged We cannot review that assertion is waived directly because County court Thus, will appeal. it on direct we preserve failure to Spotz’s Spotz’s issue in conten light consider the substantive only failing preserve trial counsel was ineffective for tion that County convic appeal Schuylkill the issue on direct from his 12). (Brief To demon tion and death sentence. counsel, petitioner a PCRA ineffective assistance strate merit; (1) of arguable that the claim is underlying must show: (2) that counsel had no reasonable for or strategic basis (3) inaction; that, her action or but errors and counsel, omissions there is a reasonable probability that outcome of the proceedings would have been different. Com- Pierce, (2001). monwealth v. 567 Pa. Counsel not be will deemed ineffective for raise a meritless claim. Commonwealth v. Tilley, (2001). A.2d 649 reiterate,
To joinder rule compulsory bars subse quent prosecutions if:
(1) the prosecution former acquittal resulted an or a conviction; (2) the prosecution instаnt is based on the same criminal conduct or arose from the same criminal episode as the former prosecution; the prosecutor was aware *27 instant charges before the commencement of the on trials the former charges; and the instant charges and the former charges jurisdiction were within the single of a court. III,
Spotz
1285;
759
II,
1157;
A.2d at
Spotz
accord
“[W]here are and/or temporally fact, related and share common issues of law and exists, criminal single episode and separate trials in would substantial duplication volve and judicial waste of scarce re cases, sources. such failure consolidate will bar succes prosecutions.” Hude, sive Commonwealth v. (1983).
A.2d
“To determine whether various acts
a single
constitute
criminal episode, a court must consider the
logical relationship
temporal relationship
and
between
III,
1285;
II,
acts.”
Spotz
A.2d at
Spotz
accord
1157-58;
Bracalielly,
must aware logical establish a issues is insufficient to legal factual and is a required Rather relationship between offenses. what A.2d Bracalielly, and fact.” duplication of law substantial at 761. of his broth Spotz’s shooting of though
Even evidence admissible at er, Dustin, County in was relevant and Clearfield trial, in not render his actions County that does Schuylkill his criminal part episode. deaths of the same causing the two II, III, Spotz’s of Spotz supra. The evidence supra; relevant and admissible to his brother actions towards were intent, and to estab need to escape, demonstrate Spotz’s Ohlinger leading to the death sequence up lish the of events (as Spotz’s killing Ohlinger was relevant the evidence motive, intent, sequence identity, admissible show trials). County in the York and Cumberland events during in County occurred shooting The of Dustin Clearfield Schuyl- in family argument. Ohlinger The murder of heated flight from Spotz’s in the midst County kill occurred in arriving Schuylkill County, After County. Clearfield killing stole her ear before her. Law Ohlinger abducted County investigated in Clearfield enforcement officers Schuylkill in law enforcement officers shooting of Dustin while robbery, and murder of County kidnapping, investigated are II and III holdings While our Ohlinger. is instructive. As our rationale those cases dispositive, cases, case in “this is not a which previous we noted both witness(es) to solely relied the same upon the Commonwealth *28 Instead, generated killings. of the the cases prove each as the as well lay police of different and witnesses testimony III, 759 custody.” Spotz chains of separate establishment II, Moreover, 1286; at at 756 A.2d 1158-59. A.2d see shooting of Dustin was County of the the evidence Clearfield to motive and Schuylkill County the case establish relevant events; of Dustin detailing shooting the chain of evidence Spotz’s to County prove case was admitted in the Clearfield Thus, logical relationship not find a directly. we do guilt County prosecu- County Schuylkill the Clearfield and between
35 tions compulsory joinder. sufficient to mandate As counsel be will not deemed for to a failing ineffective raise meritless claim, Spotz is not entitled to relief on Tilley, this issue. supra.
2. Jury Selection Spotz next alleges prosecution violated constitutional rights by exercising to peremptory challenges strike prospective jurors female from pool. the venire As trial trial, counsel failed to raise this claim at it 42 is waived. 9544(b). However, § Pa.C.S. contend does and suffi ciently argue that trial counsel was ineffective for failing (Brief 18). Thus, raise the issue at trial. at we will cоnsider his argument light determining standard for whether trial counsel was ineffective raise the at argument Morales, 400, trial.26 Commonwealth v. 549 Pa. 516, (1997). 701 A.2d 520 T.B., 127, J.E.B. v. Alabama ex rel. 511 U.S. S.Ct.
1419,
(1994),
To establish
facie
(1)
all the
the
of
identify:
gender
must specifically
dant
(2)
venireper
all
gender
the
the
of
jury pool;
venirepersons
cause; (3) the
of
gender
challenges
after
remaining
sons
(4)
of the
gender
the
prosecution;
the
those removed
(5)
served;
jurors
to
acceptable
of
jurors
gender
the
who
by the defense.
Id.
were stricken
Commonwealth who
established,
the trial court must
such a record is
“After
to
determine wheth
totality
of
circumstances
consider
on account
venirepersons
to exclude
challenges
er
were used
affirmative, it
in the
of
If the trial court finds
gender.
their
to
or her reasons
explain his
may
require
prosecutor
then
519-20,
491;
668 A.2d
accord
challenge.”
for the
Id. at
233,
1176, 1182-83
Pa.
627 A.2d
Commonwealth v.
534
Spence,
discrimination).27
(claim
To decide
of race-based
totality
of the
militates toward
whether
circumstances
challenges
that the
used
finding
prosecution
peremptory
may
gender,
of their
court
exclude women because
I,
Aaron Jones
independent
conduct an
review
record.
as
an absence of
finding by
“A
trial court
supra.
on ap
must
deference
given great
intent
be
discriminatory
520,
Id. at
In some cases the trial court and counsel are able to discuss jury selection on process based their own recollection of events; however, in this case the claim of discrimination in selection was jury not raised until years three after the trial occurred, and those had only sketchy independent involved recollection of the jury selection. particular
There is no
number
peremptory strikes that
equates
prima
Stern,
a
case.
Commonwealth
facie
Pa.Super.
(Pa.Super.1990),
petition
denied,
allowance
appeal
struck from the his during jury by prosecutor] remarks made [the ble selection, transcript else in the anything nor is there jurors. on female focusing primarily that he suggest circumstances, find that totality of the we on the Based that the showing a prima has make failed [Spotz] facie challenges such its peremptory exercised Commonwealth jurors gender. on exclude based way as to purposefully has made [Spotz] to be if it were determined Even record, on the we based case discrimination prima facie for his prosecutor] explanations given [the find the his reason for exer- gender-neutral demonstrate a selections At challenges. hearing the [PCRA] [the cise of peremptory strikes peremptory for his explanations offered prosecutor] Exhibit 30 introduced as jury notes of selection were *31 prima the whether a ruling a from court without facie prosecutor] had been made. [The of discrimination showing panel the striking jury women from intentionally denied for had the looking jurors capacity who stated that he was jury His the as to the ultimate sentence. to make decision jurors the he questions posed notes and the selection during in his mind this issue foremost reflect that question raise the continuously His notes process. selection make the choice between juror a could particular of whether life death. modified) 42-43) (citations at of PCRA Court
(Opinion omitted). (internal marks quotation make out a “the defendant must previously, As noted of the relevant ‘by showing totality case prima facie ” discriminatory purpose.’ gives rise to an inference facts 2410, 162, 2416, 162 125 California, 545 U.S. S.Ct. Johnson v. Batson, 93-94, 106 U.S. at (quoting 476 L.Ed.2d 1712). burden, need In order to meet this defendant S.Ct. the trial permit judge sufficient only produce “evidence at has occurred.” Id. an inference discrimination draw 2417.28 Johnson, recently explained Supreme States Court
28.
In
the United
that:
York,
1859,
v. New
Hernandez
500 U.S.
111 S.Ct.
(1991),
case,
Id. S.Ct. 1859 citation The judge case, court present PCRA in the President Judge (President Baldwin), William Baldwin Judge did have the opportunity to witness the demeanor of the prosecutor and to prosecutor’s evaluate the state mind because he sat as trial judge Pierce, in this case. See Commonwealth v. Pa. (2001) (“[I]t generally preferable the same judge who presided preside at trial to over the post- conviction since proceedings with familiarity the case will assist the likely proper justice.”). administration of President Judge Baldwin observed the testimony prosecutor hearing PCRA and was gauge able to his demeanor and state of mind in that as proceeding well. *32 approximately
While years passed five between the time of trial and President Judge ruling on Spotz’s Baldwin’s PCRA petition, does not present any why reason this Court step analysis! We did not intend the first a[of Batson to sobe onerous that a defendant persuade judge would have to the the of basis —on facts, impossible all the some of which are for the to defendant know certainty challenge likely with was more than not the —that Instead, product purposeful of discrimination. a defendant satisfies requirements step by producing of Batsons first evidence suffi- permit judge to cient the trial draw an to inference that discrimina- has tion occurred.
8.
Failure
Disclose
Alleged
im
that the
next contends
Commonwealth
to him that the
failed to disclose
Commonwealth
permissibly
exchange for
agreement
an
Noland had entered into
that the
contends
testimony against Spotz. Spotz
Noland’s
arrangement
him of this
apprise
failure of the
prosecution
process requires
process rights.
his due
“[D]ue
violated
and a
prosecution
any
understanding between
potential
Strong,
v.
jury.”
to the
Commonwealth
witness be revealed
1167, 1172
v. United
(citing Giglio
(1972)).
States,
150, 154,
763,
To be relief post-conviction on this by must prove preponderance that an evidence agreement between Commonwealth Noland existed and that its introduction would changed have outcome of 9543(a). § trial. 42 Pa.C.S. cross-examination trial On counsel, Noland testified at trial as follows:
Q: you are also charged right Now with criminal now homicide, homicide, criminal to commit attempt robbery, theft, and conspiracy kidnapping], [and is that correct? Yes, A: sir.
Q: you And do go to on expect charges? those A: I don’t know.
Q: you expect Do a deal? I they
A: it hope take into consideration. are Q: You telling jury charges that these have not been dropped, they? have No,
A: sir.
Q: Nor reduced? No,
A: sir. are Q: you And telling jury is no there agree- ment? Yes,
A: sir. are Q: just You testifying out of the goodness your heart? Yes,
A: sir. Q: You are not expecting go trial on these charges, correct?
A: I don’t know.
Q: expecting You are deal? have a A: I it hope they take into consideration.
Q: you Are expecting charges re- dropped be or duced?
A: I don’t know. or attorney your ever discussed that with you Have
Q: Attorney? the District with *34 No, sir.
A: here to see that just today are You never—You Q: have done, you telling are us? is is that what justice Yes, A: sir. 3/1/96,
(Notes (Trial N.T.), at 373- Trial Testimony, Jury Noland, 75). fact, Schuylkill testimony prior a sidebar conference with Claude trial court conducted County Attorney (Shields), Schuylkill County District Shields A.L. case, counsel, and Michael Spotz’s in this prosecutor At con- (Cammerano), for Noland. that attorney Cammerano the record ference, requested that trial counsel for and Cammerano that had been informed Shields reflect he any plea bargain not offered Noland prosecution had that (Id. 344). 'The exchange testimony. for her leniency or as conference is follows: of the remainder of sidebar text have I can state for the we Commonwealth [Shields]: I on numer- Noland. have agreement spoken no with Miss my not We have as with ous occasions [Cammerano]. briefly any particular negotiat- outlined understanding even case. may particular applicable ed be plea Honor, a your that is fact. my That’s position, agreement? There’s been no THE COURT: no agreement. There has been [Shields]: discussion about lenient THE Has there been COURT: for her— in exchange treatment se, meetings We had your Not Honor. have per [Shields]: if him he were explored asking I [Cammerano] had where indicated, no, deal, at this he has looking negotiate a negotiations. is the extent and that point, [(trial Spotz)]. Mr. counsel for THE COURT: Watkins if Well, Brady obviously disclosure requires Counsel]: [Trial no understanding, absolutely there is is any there according prosecutor]. understanding [the I it would like on the [Shields]: record from [Cammerano] that, fact, case, and the witness that because that is the case. Yes, it is. prosecutor]
[Cammerano]: has broached [The subject and I I’m have said in negotiating interested case, plea in this and that’s where it is. (Id. 344-46).
Spotz refers numerous occurrences that demon- allegedly that, strate despite the testimony Shields and Cammerano above, recited the Commonwealth and Noland had entered into secret agreement. Those occurrences are: (1) shortly arrested, after and Noland were Shields attended a weekend meeting prosecutors with from Clear- field, York, and Cumberland counties to discuss consolida- *35 tion; Shields asked when was about this meeting at the hearing, PCRA he tеstified that he did not recall whether they seeking discussed Noland’s cooperation; (2) the York County prosecutor sent to a Shields letter from Cammerano, in which Cammerano referred to “earlier dis- cussions;”
(3) Shields acknowledged hearing the PCRA that he was aware of discussions between the York County prosecutor and Cammerano regarding potential Noland’s cooperation; (4) shortly Spotz’s before preliminary hearing, Shields spoke Cammerano; with Noland and after the court held Spotz over for trial on all charges, Noland waived her preliminary hearing;
(5) at the time of arraignment, Noland’s Shields sent her offer; letter extending a plea written (6) the Commonwealth did not file a notice of aggravating circumstances against Noland and did not seek the death her; penalty against
(7) on occasions, at least three separate the prosecution agreed to continue Noland’s trial because she expected testify against Spotz; had there agreement been no for her cooperation testimony, and there would have been no trial; need to continue her conversa-
(8) acknowledged that he had numerous Shields testimony Noland’s regarding tions with Cammerano and against Spotz;
(9) Cammerano sentencing guilty plea, after her at Noland’s lighter impose a that the court should argued and Shields Spotz’s in trial. cooperated Noland had sentence because 20-22). (Brief of more nothing amount to regard allegations
Spotz’s no He has conjecture speculation. presented than mere Noland and Shields. agreement of an actual between evidence is: to this contention on the record relevant only The evidence trial, (1) County Spotz’s Schuylkill of Noland at testimony any not entered into stated that she had during Noland which exchange the Commonwealth type agreement with made the statements testimony Spotz; her against Schuylkill County trial court to the Cammerano Shields testimony of Noland’s immediately before the commencement a plea into they entering to the had discussed effect did not wish but that Cammerano and Noland bargain then, has to meet failed possibility. Clearly, pursue of the evidence that by a proving preponderance his burden of agreement such an existed. erred in that the PCRA court
Spotz also contends of No- hearing transcript to admit at the PCRA refusing petition to her testimony County York related land’s asserts that plea her there.29 guilty withdraw *36 sentencing in leniency receive shows that she would transcript invoked testimony against Spotz. for her Noland exchange testify Spotz’s to to at privilege her Fifth Amendment refuse charges County later originally pled guilty in York but Noland to 29. County plea, trial court to withdraw her which motion the York moved Opinion PCRA filed its and Order granted. As of the date the court relief, County had denying Spotz post-conviction the York trial court 5-6). yet (Opinion at Accord- retried Noland. of the PCRA Court not court, sought her ing appeared to it that Noland to withdraw the PCRA (1) plea had never discussed with her guilty because: Cammerano (she attempting decertify from adult court was possibility to her case offenses); had not seen at the time of the she seventeen day plea. her guilty plea colloquy entered until the court written absence, Spotz in her to hearing; attempted produce PCRA County pursuant the York to transcript Pennsylvania Rule 804(b)(1), which excepts testimony Evidence former from the hearsay rule.
The crux of Spotz’s complaint regard this he that believes that Noland her guilty plea withdrew because the Commonwealth the terms of a plea agreement violated that Noland and the Commonwealth entered into in for exchange against Spotz. Noland’s A testimony transcript review of the otherwise. Noland did testify reveаls on cross-examination at her hearing County to her York guilty plea withdraw to I always used tell me that going go “[C]ammerano was to (Exhibit home I and was to going get time served.” to the Initial Noland, Brief Spotz, Sentencing Hearing Christina 42). 10/7/96, However, at Noland stated that she did not have idea her any long how sentence could possibly be at the time (Id. 18). pled fact, she guilty. at Noland confirmed that prosecutor promises never made Noland her any about (Id. 64-66). Thus, sentence. Spotz has not presented Court any with evidence Noland and the Commonwealth had entered into an agreement whereby Noland testify would against Spotz exchange for a more lenient sentence.
4. Guilt Phase Defenses Spotz argues next that trial counsel was ineffective for present a diminished capacity defense.
avers that there was significant evidence available counsel at the time of trial that suffered from mental trial, illness. Prior to trial counsel arranged undergo a examination mental health by Dr. Stephen A. (Dr. Ragusea Ragusea), expert. a mental health Ragu Dr. sea’s examination revealed the existence of post-traumatic stress disorder but out possibility ruled an insanity defense. throughout maintained the trial and direct Noland, he, appeal that had shot and killed Ohlinger he did not know that kill planning Ohling Noland (Notes (PCRA er. of Testimony, N.T.), PCRA Hearing 10/2/00-10/8/00, 647-48). When questioned attorney *37 trial counsel hearing, PCRA during
for the Commonwealth testified as follows: a trial Now, you developed said you point at one
Q: was, Noland that Christina was essentially that strategy here? shooter Right.
A: develop that you strategy? come right. All How did Q: with Well, on the evidence and discussions it based A: was the client. that defense your opinion felt that was
Q:
you
And
of the situation?
the facts
Spotz given
for Mr.
everything.
on
fingerprints
facts—there were
A:
Given
may
there.
I mean I could have —I
say
I couldn’t
he wasn’t
car
out in the
or
say
passed
he was
have been able
circumstances from
I
that under the
something,
thought
but
testimony
co-conspirator’s
knowing
[Noland’s]
what
know,
long,
how
that
everything
you
else and
be and
would
followed,
picked
some time until he was
and it took
he was
incidents, I
out
other
although, I was
these
keeping
up;
just
minimize his involvement.
thought
try
172-73).
9/28/00,
(PCRA N.T.,
of diminished
capacity
defense
“[a]
have held
We
liability
criminal
but
to a defendant who admits
only available
Laird,
v.
guilt.”
of
Commonwealth
degree
contests the
346, 353
Commonwealth
(citing
726 A.2d
Pa.
(1983)). Weaver,
Weaver,
counsel
Weaver, a
the consent of
without
presented,
for Weaver had
defense,
though
insisted
capacity
diminished
even
Weaver
which he
on
the murder for
someone else had committed
murder and
first-degree
A
Weaver of
jury
trial.
convicted
Pleas of Tioga
and the Court of Common
related crimes
life
Weaver filed
County
imprisonment.
sentenced Weaver to
determined that counsel
to this Court.30 We
appeal
direct
conviction,
detailing the direct
At
time Weaver’s
the statute
of
30.
Court,
722, provided
§
appellate jurisdiction
42 Pa.C.S.
jurisdiction
appeals
Supreme
have
from
Court shall
exclusive
”[t]he
following
pleas
classes of
in the
final orders
the courts
common
(1) [fjelonious
by Act
No.
Repealed
137.
homicide....”
cases:
but, nonetheless,
presented
only
defense
Weaver
viable
*38
Judgment
imposed
we vacated the
Sentence
the Court of
by
Pleas of Tioga County, finding
authority
Common
that the
to
a
present
defense of
capacity, thereby conceding
diminished
general
solely
criminal
is
within the
liability,
province of the
Weaver,
accused.
“[C]ounsel’s than a diminished pursue capacity defense does not constitute ineffective assistance if a there is reasonable basis strategy Jones, chosen.” Commonwealth v. James 539 Pa. (1994). 222, 1101, 651 A.2d Spotz maintained throughout the trial he did that not directly participate killing Ohlinger. Absent an admission from Spotz that he had shot Ohlinger, and killed trial counsel could not have presented a Thus, diminished capacity defense. we cannot that trial say counsel did not have a strategic reasonable basis for rejecting a diminished capacity defense. trial Accordingly, counsel was not for failing ineffective to a present such defense. See Paolello, v. Commonwealth 542 Pa. (“If
(1995) we conclude that particular course by chosen basis, counsel had some inquiry reasonable our ceases and effective.”). counsel’s assistance is deemed manner, In the same argues that trial coun sel was ineffective for failing present a intoxi voluntary cation defense. asserts that there ample was evidence available to trial that counsel he used mind-altering drugs at the time of the offense. Nevertheless: mere fact of intoxication does not
[t]he make out a diminish- Rather, ed capacity defense. warrant that a finding homicide does not rise to murder, of first[-]degree level the evidence must demonstrate that the defendant was intoxicated such an extent he that was unable to form the requisite intent. Jones,
James
We find to Spotz’s present failure evidence of any alleged during confession the PCRA to his hеaring fatal claim. responsibility had the all bringing evidence to Gieler, the PCRA If he hearing. trouble having locating he petitioned could have the PCRA court in advance of the hearing PCRA postpone He did no such proceeding. thing. While the PCRA permits liberal amendment of a petition, it does extend to forgive petitioner’s failure to present evidence at the PCRA If hearing. are to we believe Spotz’s allegation that trial counsel trial knew the time of willingness Gieler’s testify alleged confession of Noland, Spotz clearly had notice of alleged failure of trial counsel well before the instant PCRA The hearing. statement of Spotz’s admit, PCRA counsel they intended to in the PCRA Gieler’s hearing, testimony from the County York of Spotz, to, but inadvertently failed unavailing.
Spotz has presented no evidence to that trial show counsel was aware of Gieler’s willingness testify the alleged fact, confession of Noland.31 the evidence indicates that present (Smith), 31. Trial testimony counsel did Darcy Smith *40 accompanied friend of Noland's who police Noland to the station when Noland February turned herself on 1995. Smith testified as follows: got Sheetz's, dropped away We off a block from and we walked to soda, bought Sheetz's and we went in. I standing a we and were minute, her, there for a I why and asked when that's I asked her she hair, said, run, dyed cut and her and she because I was on the and I said, said, why. She somebody. because I killed She said it with a face, dropped dead I serious so it after and went outside and City they got called Hall and came and us. (Trial N.T., 3/2/96, 576). presented at Trial following counsel also testimony Shugars, corresponded of Lawrence who with Noland while they were both County incarcerated in the Clearfield Prison: testify so because would counsel did not know Gieler conversation with alleged informed him of her never
Gieler alleged conversation Noland, after the though they spoke even to Spotz has failed County trial. Schuylkill but before strategic not have a reasonable that trial counsel did show Trial counsel will testimony. this failing present for to basis he has a reasonable or she deemed ineffective where not be Paolello, supra. or actions. for his her basis ineffective that trial counsel was next submits could have who properly prepare Newpher, for to (1) fight her after the left residence testified that: when Dustin, pain much that he needed he in so with was (2) home; Noland knew how of Noland to leave assistance alleged murder been with practicing and had shoot death; and when Dustin’s shortly before weapon wounds, he did not have stab treatment his initially sought the gun. possession testified that after hearing, Newpher
During the PCRA arms, death, bleeding not raise his was could Dustin’s Noland to leave the the assistance of profusely, needed 322). (PCRA 9/29/00, N.T., Spotz points house. actually shot theory that Noland testimony support his trial, following testimo- At trial counsel elicited Ohlinger. ny Newpher: from he—You had leaving, he was And was Mark when was
Q: any to have effect injuries, they appear did mentioned him? on on Yes, very unsteady white Mark chalk
A: was his arm the whole time he holding onto feet. was [Noland] pulling I she was on of the house. mean walking out was him, very of his Mark she had hold elbow. but Mark, something doing about wrote notes about me She had some other, did, basically things. I kicking But what Mark’s and some butt gangster know had to I bitch. You she I had told her that wanted trigger, you pull the know. And she gangster not be afraid to be a problem with me that that would be no back to me and told wrote her, willing do would be it had done it before and she that she again. (Id. 662). *41 unsteady always on Ms feet. Mark unsteady has been on injured. his feet he’s when been
(Trial N.T., 628). 3/2/96, at testimony We fail to see how elicited from Newpher materially at trial differs from her PCRA testimony. The trial record establishes that trial coun- sel adequately question did Nеwpher concerning the effects of the stab wounds at Spotz suffered the hands of Dustin.
As Spotz’s claim that Newpher could testified have Noland knew how to shoot and had been practicing with the shortly death, murder weapon before Dustin’s Spotz points no place the PCRA record to establish that Newpher could have so testified. We refuse conclude that trial counsel was ineffective for to question Newpher about Noland’s use of the murder weapon when Spotz has failed to establish that Newpher practice saw Noland with the murder weapon short- ly Moreover, before Dustin’s death. dowe not see how this testimony would have affected the outcome the trial. Trial presented counsel evidence that possession Noland had of the gun when she and Spotz left the house after the incident with (id. 627) (id. Dustin at and that Noland had killed someone 576, 662).
Spotz also alleges that trial counsel was ineffective for failing to elicit from Newpher testimony Spotz did not have the murder weapon sought when he for help his wounds. However, there is no evidence that and Newpher had any face-to-face contact between the time when he left the house immediately after having shot Dustin and his arrest several later. days point does to the PCRA testimony (Chirdon), Malissa Chirdon a friend to whose house and Noland immediately fled after the incident with Dustin. Chirdon testified when questioned by Spotz’s PCRA counsel it would have impossible been for Spotz to have had possession weapon, murder but that it would have been possible (PCRA Noland possessed to have gun. N.T., 10/2/00-10/3/00, 573-74). trial, During questioned when examination, trial counsel on re-direct Chirdon testified that she did not see gun with the when he came her (Trial N-T., shot Dustin. after help having house to seek *42 615). 3/2/96, at admittedly of fail see the absence Chirdon’s
We to how the “so undermined hearing at the PCRA stronger testimony guilt no of adjudication that reliable truth-determining process 42 Pa.C.S. place.” have taken innocence could or No- 9543(a)(2)(h). that counsel evidence presented § As trial the Spotz the she and left possession gun had of when land Dustin, had question the of who shooting after the house thereafter, but several soon still weapon possession rela- is Ohlinger, before the murder kidnapping hours for deemed ineffective Counsel will not be tively meaningless. which did not testimony, to the absence of failing present at Whitney, 708 A.2d 480. Spotz. prejudice trial counsel was ineffective also that Spotz posits from injured Spotz badly that was so failing for to establish days for a matter of incapacitated that he was his stab wounds therefore, has and, Ohlinger. Spotz not killed could have forms, that trial counsel contending claim in other raised this In this question Newpher Chirdon. adequately did not context, contending impermissi that trial counsel simply he is testimony or expert medical records bly present failed not so that he could Spotz’s injuries that were severe establish However, any us to point does not Ohlinger. Spotz have killed proceedings in the record the PCRA testimony or evidence debilitating. so injuries that his were claim support he Thus, how was prejudiced he has not demonstrated he has shown that such medical failure because alleged available. “Absent a testimony were expert records and pre cannot prejudice, petitioner] demonstration of PCRA [a of counsel and no a for ineffective assistance vail on claim claim is Commonwealth into the warranted.” inquiry further Pierce, (citing Com 786 A.2d 567 Pa. (2000)). Fletcher, monwealth v. Prosecutorial Remarks Allegedly Improper 5. ineffective next claims that counsel was when, during for a object or move mistrial statement, Commonwealth’s opening prosecutor told the jury (Anderson), that Doris Anderson Dustin’s girlfriend, accident, would left testify “the scene of the (Trial killing, scene shooting Cоunty.” Clearfield 40). N.T., 2/29/96-3/4/96, The prosecutor also during stated his opening (Maldonado), statement Juan Maldonado a friend spoke who with after day Ohlinger’s murder, said, would testify Spotz pulled gun out a (Id. 45). them like flies.” dropping “[T]his “Generally, prosecutor’s arguments jury are not a basis for the granting of new trial unless the unavoidable effect of such comments be to prejudice would jury, forming their minds fixed bias and hostility towards the accused prevent which would them from properly weigh *43 the ing evidence rendering a true verdict.” Common Jones, 161, 1181, wealth v. 546 Pa. Gilbert 683 A.2d 1199 (1996). Improperly admitted evidence can be treated as (1) harmless where either: the guilt, evidence of without regard evidence, to the tainted is so overwhelming that convic tion would have beyond followed a reasonable doubt without it; (2) regard to the tainted merely evidence was cumulative of other proper persuasive evidence on the for it issue which is offered; or that it slight was so or tangential its effect that its influence on the can jury be determined be to de Eisenhart, minimis. 103, Commonwealth v. 531 Pa. 611 A.2d 681, (1992); Norris, 685 308, Commonwealth v. 498 Pa. (1982). A.2d if “Even an opening argument is somehow relief improper, will be granted only where the unavoidable effect is to so prejudice the finders of fact as to render them incapable objective of judgment.” Common Brown, (1998) (Brown wealth v. 551 Pa. I) (citing Jones, Commonwealth v. Damon (1992)). A.2d 931 trial,
Before Schuylkill the County trial court ruled that Commonwealth could Spotz introduce evidence that shot Dus- tin, but not could introduce evidence that Dustin had died as a result the shooting because Spotz was not aware brother’s death at the time he from fled Clearfield County. during opening its isolated statements than these two
Other regard- no evidence presented the Commonwealth argument, had that allegations of Dustin or the ing the death The Com- killed Ohlinger. murders after he committed two of these elicit from either attempt not to did monwealth had died or that been that Dustin statements witnesses agree subsequent murders. We with of additional accused state- court, determined that these two isolated which PCRA not have the in nature and did de minimis ments were it jury point to the where prejudicing effect of unavoidable judgment. (Opinion objective not able to render would be 37). As not be deemed counsel will the PCRA Court claim, to a meritless not failing raise ineffective Tilley, supra. to on this entitled relief issue. ineffec that trial counsel was
Spotz further submits impermissibly object prosecutor to tive for when from Noland. seized Ohlinger’s bag rings husband showed rings belonged testified that some of the husband Ohlinger’s the testimo presenting maintains Ohlinger. Spotz rings belonged some of the only husband that ny Ohlinger’s were wife, implication was that there to his obvious rings. from Noland had taken How additional whom victims for the ever, possibility has failed to account belonging rings have believed jury would absolutely herself. There was belonged Noland Ohlinger additional jury that there were presented no evidence had the opportunity Noland would have victims from whom *44 therefore, likely jurors is more that the it jewelry; take Spotz Noland. belonged the to rings that additional believed resulting prosecu from the any prejudice has failed to show therefore, and, claim his of this evidence presentation tor’s Pierce, supra. fails. of trial counsel ineffective assistance Next, trial counsel ineffective Spotz asserts that was when the object prosecu or for a mistrial failing for to move in introduced previously exhibits that had been tion introduced he in trial, tried connection County where Clearfield of the alleges that one the death of Dustin. with numbers, exhibits bore a tag Commonwealth’s with two sets of to which indicated the had jury already been charged causing with the death of been Dustin had tried on those The charges. jury did not hear about the anything and as soon tag, sought as the Commonwealth tо introduce the evidence, it Schuylkill County informed the trial court of the existence Clearfield County tag the a sidebar conversa- tion, the court whereupon prosecutor ordered the to remove (Trial County tag, the Clearfield prosecutor which the did. N.T., 2/29/96-3/4/96, 219-20). the testimony Given evidence relating Spotz’s involvement the death of Dus- tin, jurors would have reasonably inferred that Spotz would be on potentially brought up charges for that incident Therefore, as well. if jurors even noticed the Clearfield County if, contends, as tag jurors and even believed the tag indicated that Spotz had been previously charged having Dustin, and tried for caused the death of Spotz has still Thus, failed to demonstrate prejudice. counsel was for ineffective failed having object or move a mistrial on Pierce, this basis. supra.
Finally, with respect this broad contention of allegedly remarks, improper prosecutorial Spotz cites to two statements prosecutor that vouched for the credibility prosecu- tion witnesses and stated his personal opinion testi- mony presented and evidence by the Commonwealth was true. (1) According prosecutor: Spotz, stated as a fact that (2) Ohlinger; Noland did not kill asserted as a fact that Spotz was wanted at the time that he tried to steal car Grove, Pine Pennsylvania. While the underlying contention is waived because trial object trial, counsel failed to during does argue that trial counsel was ineffective for object, so we will review claim as of alleged one ineffective assistance counsel.
It is prosecution, well settled that “the similar to defense, is accorded reasonable latitude and may employ oratorical flair its arguing jury.” version case to the Jones, Commonwealth v. Gilbert
1199-1200 (citing Williams, Roy Commonwealth v. *45 56 (1995)). advanced 85, arguments “The
Pa. 660 A.2d upon must, however, matters in upon be based evidence and/or Id. that can therefrom.” inferences be drawn any legitimate Chester, 578, A.2d Commonwealth v. (quoting (1991)). improper prosecu- “Finally, any allegedly within the context of must be examined torial comments also Id. Commonwealth (quoting counsel.” the conduct of defense (1987)). Clayton, 516 Pa. statement of the following first to the Spotz points “Well, make no mis during closing argument: prosecutor not it, Ohling did shoot June girlfriend take about defendant’s from Ohlinger not Mrs. er, the did order girlfriend defendant’s curb, in the car, on the and shoot her up the make her climb 755). (Trial N.T., 3/2/96, this Clearly, at of the head.” back trial presented at argument comports line of with evidence to response Spotz’s was the crux of Commonwealth’s Noland, he, in the back of Ohlinger not shot contention entirely the bounds of was within the head. Such statement thus, conclude that trial argument; we proper prosecutorial Pierce, object. supra. for counsel was ineffective portion to the following also refers as argument prosecutorial evidence prosecutor’s closing misconduct: area and familiar father lived the Pine Grove was
Whose Defendant, approached Mark Who Spotz. with the area? Lyle asked Miller not call Miller a ride? Who Leroy defendant, at The Mark Who was wanted cops? Spotz. tried to girlfriend defendant and defendant’s time the Defendant, Mark Spotz. steal a car in Pine Grove? 760-61). (Trial N.T., 3/2/96, correct pre- no there was evidence argument improper because in connection with jury was wanted sented a car attempted Noland to steal crime at the time he and any February 1995. morning hours of early in Pine Grove counsel did However, fails note is that trial what statement, Schuylkill County which the object to this 761). (Id. objection, In sustaining court sustained. court jury instructed the as “There’s nothing follows: *46 ... suggest there’s nothing in the evidence to indicate [Spotz] was wanted at that time. The disregard should jury {Id,.). argument.”
We not deem will counsel ineffective for to object to a statement he object when in fact did to that statement for the same reason that claims now the Moreover, statement was improper. Spotz has failed dem onstrate that he suffered prejudice from this statement. “The presumes law that the jury will follow instructions of the Brown, court.” Commonwealth v. 786 A.2d (2001) (Brown II); O’Hannon, Commonwealth v. Pa. (“Absent evidence jury presumed contrary, to have followed the trial instructions.”). court’s Spotz does attempt not even argue jurors that the would have been unable to follow the instruc tions of the Schuylkill County trial court. Having thus dis posed Spotz’s trial, claims regarding guilt of his phase turn his eight claims, we now remaining substantive all of relate penalty which to the phase.
B. PENALTY PHASE 1. Invalid Prior Conviction As his first claim of error, penalty phase Spotz as serts that he is to a entitled new sentencing hearing because based, his death sentence was least on a part, prior conviction that has been subsequently particu overturned. lar, pursuant 9711(d)(12), § Pa.C.S. jury unanimously found as an aggravating circumstance that had been (in convicted a voluntary manslaughter connection with the Dustin) County Clearfield death of either committed before or at the time present offense.
As discussed, previously Court Superior reversed Spotz’s County Clearfield voluntary manslaughter conviction based on the alleged ineffectiveness of his trial counsel. How- ever, our Court has since reversed this decision of the Superi- or IV, Court. Specifically, we Spotz’s reinstated and, pur- conviction voluntary manslaughter County
Clearfield Grant, claims of ineffec- dismissed his holding to our suant could so that he prejudice counsel without assistance of tive to the pursuant claims on collateral review pursue these of Spotz’s that at least one acknowledged Although we PCRA. Court, merit, never- arguable claims had ineffectiveness developed evidentiary theless, inadequately an concluded that determining Spotz had us from whether precluded record of the Pierce test prongs two remaining satisfied the counsel, namely wheth- ineffective assistance demonstrating or for his actions had a reasonable basis er trial counsel such, inaction. As by counsel’s prejudiced whether the Clear- Judgment imposed Sentence we affirmed voluntary validated his thereby trial court and County field *47 conviction. manslaughter IV, argu- current light Spotz’s
In of our decision being initially Despite been rendered meritless. ment has overturned, County voluntary manslaughter Spotz’s Clearfield valid, Therefore, this has been reinstated. since conviction by considered properly conviction was voluntary manslaughter 42 circumstance at Pa.C.S. jury finding aggravating 9711(d)(12). § to Evidence Alleged Mitigating
2. Failure Present Next, that his trial counsel was ineffective argues evi- present mitigating and all available investigate failed to: penalty phase counsel According Spotz, dence. witnesses; (1) mitigation the existence several investigate (2) already by repre- identified counsel the witnesses interview (3) cases; capital prepare in his other senting Spotz (4) miti- he did elicit available mitigation present; witnesses witnesses; (5) records from these obtain vital gating evidence expert wit- psychological information for his background (6) ness; portion mitigating a substantial present (Brief expert that his witness identified. evidence 39).
It defense capital “[c]oun is well established or to duty investigations to undertake reasonable sel has a 59 make reasonable decisions that render particular investiga- Basemore, 258, unnecessary.” tions Commonwealth v. Pa. 560 717, 744 (citing Washington, A.2d 735 Strickland v. 466 668, 691, 2052, (1984)). 104 80 674 U.S. S.Ct. L.Ed.2d context of the penalty phase, obligation trial counsel has an “ a thorough investigation ‘to conduct of the defendant’s with background,’ particularly respect preparation presentation of mitigation evidence.” Commonwealth Grib- ble, 455, (2004) (Gribble II) 647, Pa. 863 580 A.2d 475 (quoting 362, 396, v. Taylor, Williams 529 U.S. 120 S.Ct. 146 (2000)). L.Ed.2d 389 we explained As in Commonwealth v. (2004), Hughes, 581 Pa. 761 obligation A.2d duty penalty phase includes counsel “to reasonably discover all available mitigating evidence and evidence to rebut any aggravating may evidence that be prosecutor.” Smith, introduced Wiggins v. 539 U.S. 510, 524, (2003). 123 S.Ct. L.Ed.2d The reasonableness of a particular investigation depends upon counsel, evidence known as well as evidence would cause reasonable attorney conduct a further investiga tion. See id. at time, S.Ct. 2527. At the same obligations counsel’s require do not an investigation into “every conceivable line of mitigating no evidence matter unlikely how effort would tobe assist the defendant at 533, 123 Id. sentencing.” S.Ct. 2527. (citations (internal
Hughes,
modified)
A.2d at 813-14
omitted). Further,
footnote
as the
Supreme
United States
Court
recently
Beard,
elucidated Rompilla
v.
545 U.S.
(2005),
125 S.Ct.
a. Redden Jean investi contends that trial counsel failed to Spotz interview, lay mitigation wit certain gate, prepare and/or First, met that his trial counsel neither nesses. asserts (Redden), nor his maternal Jean Redden grandmother, with testimony to the date that penalty phase prior discussed her However, hearing, at the PCRA trial counsel she testified. on the several telephone that he Redden spoke testified with at her concerning testimony. her trial and appearance times (PCRA 143-46). N.T., 9/28/00, addition, In trial counsel Costs, of Fees and which Payment offered a Petition counsel detailed at least conferences between telephone five (Id.). to the date that she testified. Such prior and Redden credible, found testimony, explicitly court which PCRA that his trial counsel clearly refutes the contention of the PCRA (Opinion Redden for trial. prepare failed 16). Court at event, failed to how he any has demonstrate of trial counsel to alleged failure prejudiced earlier, for trial. noted and Redden As prepare
interview petitioner] prejudice, a demonstration of PCRA [a “[a]bsent cannot on a claim for ineffective assistance of counsel prevail no into the claim is warranted.” Com inquiry further (2001). Pierce, Pa. A.2d monwealth Moreover, in the context of ineffective assistance “[prejudice there demonstrating of counsel means reasonable that, error, the outcome probability but counsel’s different.” Id. at 213. proceeding would have been sentencing phase at the During lengthy testimony her trial, described, detail, Spotz’s: Spotz’s alarming Redden with (1) (2) childhood; relationship with his dysfunctional volatile (3) (4) abuse; brother, Dustin; lifestyle; transient substance (6) emotional, issues; history health of physical, 43-80). N.T., 3/5/96-3/6/96, This (Sentencing sexual abuse. pic- effectively painted disturbing penalty phase testimony life, jury found Spotz’s ture of domestic such circumstance, namely, that had mitigating “catchall” *49 dysfunctional been raised household. now insists counsel ineffective for insufficiently interviewing preparing hearing. and Redden before his sentencing Howev- er, Spotz has to any prejudice resulting failed show from trial alleged additional, counsel’s present failure to arguably cumulative, penalty phase testimony from Specifical- Redden. ly, Spotz has failed to demonstrate that there is reasonable that, probability but for counsel’s failure alleged to elicit additional from testimony concerning Redden Spotz’s dysfunc- childhood, tional penаlty outcome of the phase would have Pierce, Therefore, been different. supra. this claim of inef- fective assistance of trial necessarily counsel fails. vein,
Along a similar Spotz also asserts that alleged failure of trial prepare counsel to Redden deprived him of the opportunity present to “powerful mitigation evi dence” “the regarding circumstances of his brother Dustin’s death, including Dustin’s violently wish, death history, abusive premeditated suicidal designed provoke behavior his (Brief 40). death.” claim, In support points to Redden’s testimony hearing, at the PCRA where she testified that approximately death, two weeks prior Dustin’s Dustin hinted that he would antagonize into him. killing Notably, that, Redden testified during one Dustin’s fre quent and rages, violent Dustin “I’m stated: going have someone I whom love and someone who loves me me help (PCRA N.T., 288). my 9/29/00, take life.” According to Spotz, his counsel was for failing ineffective to elicit this significant testimony at trial.
However, contention, in rejecting Spotz’s the PCRA found newly offered testimony of Redden incredible. partic- ular, the court found “this recent be a grand- recollection to mother’s attempt grandson to save her assign [could not] 17). it any credence.” (Opinion the PCRA Court at As the explained, PCRA court Redden testified at the penalty phase recurrent, about several Dustin’s Thus, violent episodes. the court concluded that “it is hard believe that [Redden] would have long ago remembered accounts of vio- [Dustin’s] lence but one, have forgotten most recent especially when *50 conversation, personally wit- she claims have
this was (Id.). nessed, strange comments.” that involved such and one opportunity afforded the the PCRA court was Because the credibility of Redden at PCRA weigh assess and de- credibility its disturbing from hearing, should refrain we IV, 886 (“[A]ppellate 870 A.2d at See terminations. finders, require since to so as do would do not act fact courts that is testimony and credibility an assessment of function.”). clearly not our the result of his has failed show how
Regardless, Spotz had different this additional would have been penalty hearing We fail to see how presented. of Redden been testimony newly testimony offered at PCRA of Redden’s absence process that no truth-determining hearing “so undermined taken or innocence could have adjudication guilt of reliable 9543(a)(2)(ii). § counsel will Accordingly, place.” Pa.C.S. present testimony, failing ineffective for not be deemed Spotz. Whitney, supra. prejudice of which did not absence Newpher b. Jean Next, his ineffective trial counsel was Spotz avers mother, Newpher, prepare to interview and his for that, maintains testimony. Spotz to her prior penalty phase trial, for she Newpher adequately prepared had trial counsel child overwhelming of Spotz’s offered evidence would have According Spotz, sentencing abuse. neglect hood “a of child superficial description [Spotz’s] heard jury only hood,” to the they paled comparison little heard “[w]hat of mother and male endured at the hands [Spotz] horrors of that abuse and devastating and the effects companions, (Brief 41). at abandonment.” acknowledged that she had hearing, Newpher At the PCRA minutes, couple phone “[a] to trial counsel on the spoken her testi- regarding penalty phase different times” couple testi- evidentiary hearing, Newpher also At this same mony. counsel, that, by adequately prepared had she been fied (1) suffered repeated how: she she would have described father; (2) Spotz’s the hands of and mental abuse at physical she giving Spotz considered up adoption shortly after his birth; (3) (Beish), husband, her Bill Beish regularly locked (4) room; and Dustin in their Beish beat her regularly (5) (6) in front Spotz; Beish verbally Spotz; abused lived approximately places by fifteen different age (7) eighteen; Dustin hinted of his death. impending (PCRA 308-50). N.T., 9/29/00, However, at Sрotz’s sen- tencing hearing, Newpher or offered the same similar testimo- ny concerning Spotz’s daunting dysfunctional and otherwise testified, alia, (1) general, childhood. In Newpher inter that: (2) Spotz’s father drugs; abused Beish ignored Spotz and (3) Dustin; her; Beish frequently abused subsequent her husband, (Darrall), Darrall Newpher physically abused Spotz; *51 (5) Dustin Spotz stabbed on one occasion because Spotz was (6) her; (7) protecting family frequently; Spotz moved (8) care; Dustin both time in spent Spotz foster deeply was (9) the adoption child, Annette; saddened of her other both treatment; (10) she and Dustin received mental health Spotz (11) prescribed was Ritalin at point; rejected one she Spotz until he was approximately thirteen because he resem- N.T., 3/5/96-3/6/96, 81-103). bled his father. (Sentencing at Redden, Similar to the testimony Newpher’s penalty phase testimony thoroughly Spotz’s described violent and unstable Hence, home life. jury found the “catchall” mitigating circumstance that Spotz grew in a up dysfunctional household.
Although Newpher offered additional recollections Spotz’s volatile childhood at the PCRA hearing, we fail to see how the elicited testimony Newpher from at trial differs from materially Rather, her PCRA testimony. trial rec- ord that establishes counsel did adequately question Newpher Spotz’s dysfunctional childhood, about which was plagued by abuse and neglect. The PCRA testimony Newpher further detailing Spotz’s background merely of her cumulative prior testimony offered Spotz’s at sentenc- ing hearing. “Trial counsel cannot be deemed ineffective for failing pursue to cumulative evidence of appellant’s back- ground.” Hall, 269, 190, Commonwealth v. 549 Pa. 205 Cross, (citing Commonwealth v. 535 Pa. Clemmons, (1993)); Commonwealth accord
A.2d (1984). Thus, must this claim A.2d fail.
c. Dale Carol was ineffec that his trial counsel next reasons (Carol), Dale a friend to prepare tive for Carol According testimony. penalty phase her Spotz family, before prior effectively Carol prepared had trial counsel Spotz, that “Spotz testified hearing, she would have sentencing for children —rife language ‘inappropriate’ used and Dustin they matters about which and other reference sexual with (Brief of at 43 (quot knowledge.” have had no should 354)). 9/29/00, N.T., at ing PCRA never that that she Carol testified hearing, At the PCRA testifying penalty phase at the prior met with trial counsel 353-54). However, (PCRA 9/29/00, during N.T., at hearing. that, accord- trial counsel testified hearing, that same PCRA records, at least one he had conducted ing billing to his to the date she prior conference with Carol telephone 149). Moreover, (PCRA 9/28/00, N.T., Spotz’s testified. that, visiting testified after Carol sentencing hearing, household, and Dustin used she remembered had “they exposed been language and inappropriate should have been.” age children their much more than what *52 117). N.T., 3/5/96-3/6/96, penalty this Although (Sentencing nature of mention sexual testimony explicitly did phase readily such an inference was language, the “inappropriate” from the context of the statement. apparent he Nonetheless, preju- has failed to show how that the emphasize counsel to failure of trial diced Dustin by Spotz language allegedly used “inappropriate” Spotz has not demonstrated sexual references. included that, alleged but for counsel’s probability there is a reasonable Carol, testimony from additional procure failure to Pierce, different. any trial would have been outcome of his such, for not be deemed ineffective supra. As counsel will witness, failing to additional from present testimony prejudice absence of which did not Spotz. Whitney, supra. d. Linda Chirdon his Spotz avers that trial counsel was for ineffective wife, (Linda), failing to inform his Linda Chirdon she prior would be time testifying that she was called at that, Spotz’s sentencing hearing. Spotz insists had trial coun sel adequatеly prepared phase Linda before hear penalty she ing, escalating would have testified about his drug and during alcohol abuse the time period preceding alleged However, murders. as alluded to previously, numerous wit nesses, himself, including Spotz testified at the sentencing hearing about Spotz’s recurrent and drug destructive alcohol abuse. failWe to see how the absence additional from Linda testimony further detailing Spotz’s well-document ed drug and alcohol “so abuse undermined the truth-determin process ing adjudication that no or guilt reliable innocence 9543(a)(2)(ii). could have taken place.” § Pa.C.S. Such from testimony concerning Linda Spotz’s substance abuse would been purely have cumulative nature. As defendant not prejudiced by the failure of trial counsel to pursue cumulative evidence of the background, defendant’s Spotz’s claim of Hall, ineffective assistance of counsel must fail. Clemmons, supra; supra.
e. Malissa Chirdon Similarly, Spotz also asserts that his trial counsel was ineffective Chirdon, interview and prepare sister-in-law, testify at the sentencing hearing. Accord ing Spotz, his wholly “counsel failed to bring out evidence of downward psychological spiral [his] immediately before his (Brief 39). brother’s death.” Other making than assertion, this bald Spotz does not direct the any Court to support Linda, evidence to his argument. Like Chirdon also testified briefly at the hearing Spotz’s PCRA about escalating drug and alcohol abuse and he run appeared “pretty how (PCRA N.T., prior alleged down” murders. 10/2/00- *53 572). Meanwhile, Spotz’s penalty the 10/3/00, phase at at “[mjarijua- abused trial, Spotz regularly testified that Chirdon n N.T., crack, (Sentencing acid.” na, alcohol, [and] 3/5/96- from 146). testimony the elicited 3/6/96, We fail to see how at materially from the court differs before the PCRA Chirdon sentencing hearing of during offered the testimony that she from further detail- testimony Chirdon Spotz. additional Any mere- abuse have been escalating substance would ing Spotz’s by the prejudiced defendant is not A ly cumulative evidence. evidence, present merely cumulative of counsel to failure therefore, Clemmons, claim must this ineffectiveness supra.; fail. Dale Page Lorraine and Chester
f. Next, his trial counsel was Spotz professes (Page) or Page to call either Lorraine ineffective (Chester) at sentenc mitigation his Dale as witnesses Chester Chester, Page that both and who Spotz claims ing hearing. at testify family, the were available are friends of to call either as but trial counsel failed penalty phase hearing, earlier, prove that counsel As noted mitigation witness. witnesses, a certain defen presenting for not was ineffective availability the the existence and dant “must establish awareness, know, of witnesses, duty or the counsel’s actual witnesses, of the ability and witnesses willingness and neces on the defendant’s behalf appear cooperate testimony prejudice.” order avoid sity proposed for the Pa. Whitney, Commonwealth (1998). that, testified had she been Page hearing,
At PCRA (1) witness, Spotz’s have described: as a she would called (2) environment; living condi- deplorable unstable home (3) household; widespread drug tions household; (4) Spotz’s throughout alcohol abuse violence; regu- physical encounters with frequent his stepfather, the hands of lar abuse suffered 70-92). Moreover, (PCRA N.T., 9/28/00, at the Darrall. that, he been Chester also testified had hearing, same PCRA *54 witness, that, as a mitigation called he would have described subjected growing up, Spotz while was to deplorable living Spotz’s conditions and that an mother lacked emotional bond (PCRA N.T., 358-63). 9/29/00, him. with at Spotz, however, has failed to show how absence of such of testimony Page prejudiced Instead, Chester him. testimony appears merely PCRA be repetitive and cumula- phase tive the penalty testimony by offered other mitigation witnesses, which more than adequately illustrated the dis- tressing childhood and home life to Spotz which had been subjected. As a defendant is prejudiced by the failure trial counsel to pursue cumulative evidence of the defendant’s background, Spotz’s claim ineffective assistance counsel Hall, Cross, Clemmons, must fail. supra; supra; supra.
g. Institutional Records In continuing argument trial counsel was ineffective for failing to investigate present available evidence, mitigating Spotz contends that his trial counsel conducted no independent investigation of available institu tional records. Spotz acknowledges that his trial counsel had provided been variety a institutional records through coordinated effort with his defense other counsel coun ties where he been charged. Nonetheless, had Spotz main records, tains that these institutional including his Clearfield records, County Children & Youth which were provided by County (Attor Cumberland Public Defender Taylor Andrews Andrews), (Brief ney were “woefully incomplete.” of Spotz at 44). Moreover, claims trial counsel failed to obtain mental any diagnoses members, of other Spotz family includ ing Dustin, which, institutional records of according Spotz, necessary were “to understand the shocking extent of abuse, neglect, and violence home or the genesis of the Clearfield incident County precipitated (Id. 45). killing.”
At the PCRA hearing, that, trial explained counsel because Spotz had been charged with homicide in three different counties, the defense attorneys in each county developed 101-03). (PCRA N.T., 9/28/00, at
joint effort. investigation Andrews, effort, coun- Attorney Pursuant to this coordinated of investi- County, charge sel for in Cumberland concern- background information gating gathering Spotz’s (Id.) addition, trial issues. ing potential penalty phase investigators out his own that he had sent counsel testified sup- “to information County get from additional Schuylkill by investigator that given had been plement what [he] (Id. 102.) had hired.” Attorney Andrews notes, Youth County & As the Clearfield Children Andrews and utilized by Attorney obtained records However, rec- incomplete. these institutional counsel were of their extensive condensed because purposely ords were *55 large, joint the file so counsel asked volume. Because was (Muir), Spotz to the assigned Muir the caseworker Molly file, provide out the that would family documents “pick (PCRA 9/29/00, N.T., at family’s file.” best of overview 194). that response, hearing Muir testified at PCRA until the case was closed pick examples she “tried out family give Spotz] counsel an of how [the would overview its involve- during functioned & Youth did and what Children 280). (Id. at ment.” of by the failure Spotz prejudiced to see was
We fail how every text of each and available trial counsel to obtain the full Contrary and relating Spotz record Dustin. institutional the condensed institutional records position Spotz, Youth County from Clearfield Children & provided by Muir abuse, neglect, and violence more than detailed adequately (Id. 278-79; Exhibit Spotz in the household. at prevalent 18A). Moreover, above, numerous penalty as referenced abuse, meticulously recounted substantial phase witnesses subjected been Spotz and violence to which had neglect, found, Hence, the jury by preponderance home. circumstance, evidence, namely mitigating the “catchall” in a dysfunctional had been raised household. Spotz that there a reasonable has failed to demonstrate Spotz that, to obtain the alleged but for counsel’s failure probability records, the outcome of text of all available institutional full Pierce, the penalty phase would have been supra. different. Additional, abuse, full-text reiterating institutional records neglect, violence in the Spotz home would been have merely A cumulative redundant. is not preju- defendant diced the fаilure of counsel present merely cumulative Clemmons, Thus, evidence. claim of supra. this ineffective of trial assistance counsel is meritless. claim,
In a related argues also counsel was ineffective for on relying the records collection of Andrews, Attorney Spotz alleges who labored under a conflict interest. notes that Andrews, Attorney part as of a effort, tri-county coordinated responsible for investigating gathering Spotz’s background information and institution al records. also identifies that Attorney had Andrews represented Dustin prior, during unrelated criminal proceed ings concerning involuntary Dustin’s commitment to Warren State Hospital.32 prior Because representation of Dustin, Spotz maintains that an actual conflict interest existed between Attorney Therefore, Andrews and him. Spotz asserts that his trial counsel was ineffective “[h]av ing completely relied on conflicted product.” counsel’s work (Brief 46-47).
“A defendant cannot prevail on a conflict of interest claim absent a showing of actual prejudice.” Commonwealth Karenbauer, (citing *56 Faulkner, 57, Commonwealth v. 528 Pa. 595 A.2d 38 (1991)). Hawkins, Commonwealth v. 567 Pa. 787 A.2d (2001), 292 this Court reiterated that “it is while true that prejudice presumed is when is by counsel burdened an actual interest, conflict of this only is if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of adversely interest affected his law ” yer’s performance.’ Id. at (quoting 297-98 Commonwealth v. Buehl, (1986)) (holding According 32. pretrial to a Appendix Spotz's Order an attached as to Brief, Attorney represented during Andrews Dustin involuntary a 1990 (Exhibit proceeding. commitment Spotz, to Initial Brief of Order Court, 4/3/90, 1). at that, a by the fact at defense not prejudiced was
“[a]ppellant’s time, a represented his counsel had Commonwealth prior witness”).
Here, “actively that counsel Spotz has failed demonstrate Id. Hawkins interests.” Similar to represented conflicting Buehl, involving repre- dual circumstance and was Rather, as in Hawkins single attorney. sentation by Buehl, of Dustin terminat- Attorney representation Andrews’ Spotz in Clearfield appointed represent before he was ed Karenbauer, “[w]here, here, the as As we stated County.33 actively that counsel did not clearly record demonstrates interests, a claim based on the conflicting appear- represent Karenbauer, merit.” ance of a conflict interest lacks A.2d 1094. Hawkins, how has failed show
Additionally, as de- Attorney representation now previous Andrews’ representation affected trial counsel’s adversely ceased Dustin Although Attorney in the matter. Andrews present infor- background into spearheaded investigation Spotz’s mation, independent trial counsel also conducted own (PCRA N.T., circumstances. investigation mitigating into 102). 9/28/00, that Spotz Other than bald assertions Court, he offered no in his Brief to this has evidence presents Attorney any withheld of Dustin’s suggest Andrews of an alleged records from trial counsel because institutional Furthermore, there is no conflict of interest. evidence requested Dustin’s institu- suggest that trial counsel record by Attorney denied access Andrews. tional records Instead, Attor- that both trial counsel and the record reveals behalf of zealously advocated on were ney Andrews by any alleged conflict of interest created unhampered representation of Dustin. Attorney prior Andrews’ Nevertheless, alleged that this conflict inter Spotz insists from insti prevented Attorney providing est Andrews Dustin’s records, substantially richer detail tutional which “were presents Attorney representation of no Andrews’ 33. evidence persisted beyond alleged involuntary commitment Dustin any proceeding, representation. continued and the record devoid of *57 (Brief [Spotz] family about the abuse violence.” a, 48). Spotz, at inform According to this “[w]ithout essential tion, could did accurately counsel not—and inform the not— (Id.). in jury of the horrific situation the Spotz household.” However, that, in Spotz’s own admissions his Brief reveal even if had Attorney provided Andrews Dustin’s rec institutional counsel, ords to trial these records would have uncovered nothing abuse, more than neglect, cumulative evidence prevalent violence inside household. previ As ously emphasized, numerous mitigation Spotz’s witnesses at including himself, sentencing hearing, detailed abuse, neglect, and violence that Spotz endured his home life. A not prejudiced by defendant the failure pursue counsel cumulative evidence of the defendant’s Hall, Cross, background, Clemmons, supra; supra; supra; therefore, Spotz’s claim of ineffective assistance of counsel must fail.
h. Ragusea Dr. Next, Spotz argues that his counsel ineffective for failing to provide defense mental health Dr. expert, Ragusea, with sufficient records so that he an could make accurate diagnosis. At hearing, the PCRA Dr. Ragusea, a psycholo that, trial, gist, testified prior Spotz’s he did receive all Spotz’s records, available institutional including rec those ords contained in Spotz family at file the office of Clear- (PCRA field & County N.T., 10/2/00-10/3/00, Children Youth. 507).34 at After reviewing additional pro records family trial, vided to him following Spotz’s Dr. Ragusea testified that (Id. 510-11). he diagnosis would have his changed Spotz. Ragusea Dr. particular, stated that he changed would have from diagnosis just a simple post-traumatic case of stress disorder caused by stabbing and shooting death of Dustin Clearfield a more County “severe case of post traumatic that, trial, Ragusea Spotz’s 34. Dr. testified after supplemen- lie received tary records “for an additional trial on comity,” later in a different Dustin, (PCRA N.T., Spotz, which referred to Newpher. 10/2/00- 10/3/00, Thereafter, 504-05). a1 Spotz's connection with PCRA proceedings, Ragusea Dr. testified he received even more institu- "[ijn multiple (Id. 505). shipments.” tional records *58 disorder,” inci- predated County the Clearfield which stress (Id. 511). Ragusea, the additional at Dr. According dent. stress post-traumatic that this preexisting records indicated the and traumatic abuse frequent resulted from disorder household, Dr. Ragusea explained his which Spotz endured at the than believed frequent “more and more severe [he] documentation then upon of trial based the [Spotz’s] time 512-13). (Id. at to [him].” available at the hear- Ragusea also testified PCRA Additionally, Dr. that, him provided the records light of additional ing trial, Spotz’s changing [his] he would have “consider[ed] after disor- possibility schizophrenic the diagnosis regarding schizoaffective a given apparently disorder that there is der or 511). (Id. at Dr. family.” Ragu- in the strong genetic trend explained as follows: sea boys Spotz and the father of both were
Both Dustin of schizoaffective disorder diagnosed diagnoses with those as result it raised concerns and disorder and a schizophrenic having the same my Spotz possibly mind about Mark I my I did report load and at time wrote genetic me. have that documentation available 511). (Id. at contends that absence Consequently, Spotz testimony materially records weakened of these additional thereby mitigation his case for hampered of Dr. and Ragusea penalty phase. at earlier, were col- Spotz’s institutional records explained
As cooperative of effort of defense tri-county lected as a part Dr. to assist him Ragusea then forwarded to counsel and Muir, hearing, At Spotz. of the PCRA during his evaluation County, Youth from Clearfield the Children & caseworker that, overwhelming size and volume because testified file, intentionally in the she Spotz family contained records (PCRA N.T., records. many surplus duplicative excluded 9/29/00, 194). such, “tried to pick As she testified she at give until the closed would out case was examples family functioned and Spotz] an overview of how counsel [the (Id. at during & Youth did its involvement.” Children what 280). records,
According Spotz, the absence of these additional Dr. deemed Ragusea significant, materially which affected However, diagnosis. this argument was discredited and undermined testimony PCRA of his own expert (Dr. witness, Fox), Robert Fox At the psychiatrist. PCRA that, Dr. Fox hearing, testified reviewing after all of the available institutional Spotz family, including records those to Dr. Ragusea which privy, interviewing was not hours, at privately prison for diagnosed three he post-traumatic disorder, with preexisting stress which dated back to his childhood as result of abuse neglect home. (PCRA N.T., 465-66). 10/2/00-10/3/00, 383-84, Although the post-traumatic stress diagnosis disorder Fox Dr. dif- *59 slightly fered from the in diagnosis Ragusea, of Dr. it that predated Dustin, the stabbing and shooting death of Dr. Fox did not slight attribute this disparity Ragusea’s to Dr. alleged Rather, lack of available institutional records. when if asked the absence of these additional materially records would have affected the diagnosis Ragusea, Dr. Dr. Fox responded:
No, I don’t think that the absence of these records would materially I you affect it. think diagno- could make the body sis based on the other of records. The diag—the records that were not provided to Doctor are Ragusea important records. They’re useful in very records but looking it’s—I’m in a difficult in situation to trying —and answer that question T because read all the togeth- records er. I didn’t say didn’t read what he had and then read —I I additional stuff. just read —I read all them. inSo well, retrospect say to if you page didn’t have this and you only this, had there are an awful lot of records —I think there were an awful Ragu- lot records that Doctor sea they’re way had and I think that more records than I normally expect would receive a case like this. (Id. added)). at 477 (emphasis
Furthermore, Dr. Fox ascribed the difference in each doc- tor’s to the diagnosis timing examinations, of the respective (Id. and not the availability 484). of additional records. Specifically, Dr. Fox noted that he “had somewhat of an had the benefit Ragusea” because he over Doctor
advantage stabbing after the traumatic years several examining Spotz (Id.). hand, Dr. the other Dustin. On shooting death of after shortly Ragusea Dr. evaluated explained Fox during a time County, when in Clearfield the traumatic events by his brother [Spotz] being stabbed related to “the trauma ... prevalent much more his brother were the death of (Id.). Thus, as history of trauma.” lifetime than the whole illustrates, expert witness Spotz’s own testimony this PCRA institutional absence additional claim dismissed Ragusea. of Dr. diagnosis materially affected records prejudiced that he was so, has failed to establish Even Ragusea Dr. with provide of trial counsel by the failure Pierce, theAs PCRA supra. records. institutional additional Ragusea’s difficulty crediting Dr. explained, court “[t]he identify is that he unable point on this testimony important new records were specifically which court (Opinion his opinion.” formulating necessary 31). hearing, Notably, at PCRA PCRA Court exchange occurred: following specifi- for me not able to delineate You’re
THE COURT: mind your you change [con- records caused what cally your diagnosis]? cerning not, I point your Not at this could Ragusea]:
A. [Dr. matter. very complicated just Honor. It’s —it’s *60 565). 10/2/00-10/3/00, a of (PCRA N.T., showing at Absent to court, not entitled Spotz is before the PCRA prejudice relief on his claim. records that the additional
Ultimately, Dr. testified Ragusea of information that much the corroborating helpful were 556). (Id. at evaluation. his initial had detailed during information, background cumulative providing than Other would the records to additional has failed show how a of As diagnosis Ragusea. Dr. influenced materially have of trial counsel by failure prejudiced is not defendant background, defendant’s cumulative evidence present Hall, Cross, supra; supra, Spоtz’s claim of ineffective assis- tance counsel is merit. without claim,
In a related also asserts that his trial counsel was ineffective for Dr. prepare Ragusea during penalty of his trial. phase According Spotz, guide counsel failed to direct and testimony Ragu Dr. sea, his causing to ramble expert “through disjoined mono observations,” logue general jury which came across (Brief 53). as disorganized and at imprecise. of his support argument, Spotz points testimony to the of Dr. at the Ragusea hearing, PCRA he testified as where follows: expected “I to be asked lots of questions and I was sort of I surprised. kept over at looking looking attorney (PCRA guidance just or structure and I get any.” N.T., didn’t 520). 10/2/00-10/3/00, at Despite allegedly “set loose” being by “just trial counsel to talk until nothing had further to [he] Dr. say,” Ragusea testified that he “still plenty had more to say,” (Id.). but guided by was not properly Spotz’s attorney.
At the PCRA hearing, trial counsel acknowledged that he only had asked Ragusea very Dr. ques- limited number of (PCRA at N.T., 154). tions the sentencing hearing. 9/28/00, at However, he explained strategy behind approach stating: “If experts can get away putting with that with on them, their show with nobody stopping stop I don’t them.” (Id.). Moreover, trial counsel “gone testified that he had over Ragusea’s] [Dr. with testimony him several times” and even created a checklist of items that he Ragusea wanted Dr. (Id. 155). cover front of him. Because he recollected that he list, had “checked off everything” on the trial counsel testified that he did not believe it was to continue necessary Dr. questioning Ragusea further.
Despite being asked questions, limited Dr. Ragusea testified at length during penalty phase concerning, inter alia, Spotz’s information, background his evaluation of Spotz, the diagnoses he N.T., reached. (Sentencing 3/5/96- 3/6/96, 234-62). concluded, As the PCRA court “[t]here appears disjointed to be nothing or about confusing [Dr.
76 occupy nearly thirty to testimony, happens
Ragusea’s] which at (Opinion of PCRA Court transcript.” in the trial pages Ragusea to 34). to allow Dr. The decision of trial counsel a matter of sound trial was testify freely uninterrupted and not be trial counsel will As noted strategy. previously, basis for or she has a reasonable ineffective where he deemed Moreover, Paolello, the mere fact supra. his or her actions. proved unsuccessful does ultimately trial strategy that this Rizzuto, Pa. it unreasonable. Commonwealth render (2001). has failed to Spotz Because 777 A.2d strategic a reasonable did not have show that trial counsel in this of Dr. testimony Ragusea for presenting basis claim. manner, to relief on this he is not entitled narrative (“If that, Paolello, at 454 we conclude See some reasonable course chosen counsel had particular basis, assistance is deemed inquiry ceases and counsel’s our effective.”). Records Department
i. Corrections his trial counsel was Spotz maintains that Finally, mitigating during evidence present, to as ineffective records, of Corrections penalty phase, Department which, detailed his favorable allegedly according Spotz, that an claims adjustment prison. particular, (Dr. Ryan, Franklin Ph.D. prepared by report institutional facility at state correctional psychologist the chief Ryan), provided have “clear imprisoned, would where was ‘provides [Spotz] with a that incarceration admissible evidence that, structure, limits, judgment guidelines’ own psychologist, correctional institution’s chief the state ” (Brief life.’ ‘adjust prison in time will well [Spotz] PV Spotz, the Initial Brief of Exhibit (quoting Eval, 2)). 1/31/96, Psych Spotz insists Reclass corrections either to introduce this failure of trial counsel or to sentencing hearing at the mitigating as evidence report evalua Ragusea Dr. for his provide report this institutional highly prejudicial. tion of *62 notes, Carolina, As Skipper 1, v. South 476 U.S. (1986), 1669, 90 S.Ct. L.Ed.2d 1 the United States Su preme Court determined that it error was for a trial to court preclude testimony that defendant had a good adjust made ment to life prison during the time between his arrest and decision, trial. In reaching its the Supreme Court explained that, cases, “in capital sentencer not [may] precluded be from considering, any aspect of a mitigating factor, as a defendant’s character any or record and of the circumstances of the offense that the defendant as a proffers basis for a sentence less Skipper, 4, than death.” U.S. 106 S.Ct. (internal omitted); marks quotation see also Common Bomar, 426, wealth (2003); 573 Pa. 826 A.2d 851-52 Harris, Commonwealth v. 572 Pa. 1053-54 (2002).
Here, unlike Skipper, Spotz does not contend that the trial court erred in precluding adjustment evidence of his favorable prison Rather, to life. Spotz asserts that his counsel was ineffective for to failing present such mitigating evidence. This Court was faced with a similar ineffective assistance Wharton, counsel claim in Commonwealth v. (2002). Wharton,
A.2d 978 In the defendant claimed that his trial counsel was ineffective for to failing obtain and introduce that, during years evidence the seven between his first and second penalty hearings, adjusted he favorably prison to life and, therefore, he be to prison should sentenced life in because he was amenable to argued rehabilitation. The defendant that positive adjustment to prison environment was rele- vant mitigating evidence that his counsel constitutionally was obliged produce pursuant to Skipper. distinguishing Skipper, explained as we follows: however,
The issue in Skipper, whether counsel could be deemed for failing ineffective to introduce this sort evidence, rather, but whether the trial court there erred in excluding actually proffered evidence that the incarcerat- ed defendant’s had prison good.... behavior been Prop- erly speaking, the issue before this Court is not whether appellant’s prison adjustment was relevant mitigation evi- Instead, excluding. trial court that the erred
dence
counsel was ineffective
appellant’s
is whether
issue
mitiga-
as
adjustment
introduce evidence of that
failing to
he
had made a
jury
tion
convince
evidence
adjustment
prison.
positive
the defendant’s
Wharton,
examining
988. After
811 A.2d at
records,
this Court concluded
prison
voluminous
an
that his counsel lacked
had failed to demonstrate
defendant
mitigat-
present
basis for
objectively reasonable
the defendant’s
we noted
Specifically,
evidence.
ing
negative ad-
positive
both
records detailed
institutional
concerning
Because the evidence
justments
prison
life.
con-
adjustment
ways,”
“cut both
we
defendant’s institutional
*63
constitutionally
hardly
that “counsel can
be deemed
cluded
produce
for
to
it.” Id.
989.
incompetent
failing
Wharton,
to
how his
Spotz has failed
demonstrate
to
Similar
his
of
failing
present
Department
ineffective for
to
counsel was
First,
has
mitigating
records as
evidence.
Corrections
did not have a reasonable
failed to show that
trial counsel
to
institutional
choosing
present
basis for
not
these
strategic
Paolello,
Likewise,
has
failed to dem-
supra.
records.
the failure of counsel to
by
he was prejudiced
onstrate how
Notably, the
his
of Corrections records.
Department
offer
to have been an
Ryan,
appears
Dr.
which
prepared
report
likely
evaluation,
to
merely
indicates that
intake
to
life.35
the records in either
adjust favorably
prison
Unlike
actual,
not
Spotz’s
detail
Skipper,
report
Wharton or
this
does
life,
as
adjustment
speculates
but rather
to
prison
favorable
adjustment.
the specula-
Because of
potential,
his
favorable
“counsel can
nature of the
we believe
trial
report,
tive
for
constitutionally incompetent
deemed
hardly be
part:
report
Ryan
rеlevant
The institutional
of Dr.
states in
35.
provides
eventually
adjust
It
[Spotz]
prison
well to
life.
him with
will
limits,
structure,
guidelines.
dependency
It will meet his
a
aggression.
bright
strivings,
acts
He is
and won’t tolerate his
of
however,
During
year,
prison
a
trained at
trade.
the next
can be
decided,
being
he
held
are
heard and
must be
while his cases
custody
safety
those around him.
closer
for
Eval, 1/31/96,
Psych
(Exhibit
Spotz,
Initial Brief of
PV-Reclass
2).
Wharton,
case,
it.”
In
produce
any
has failed to that there is a probability show reasonable present Department but for trial counsel’s failure to his records, sentencing hearing Corrections the outcome of his Thus, have been would different. this claim ineffective Pierce, assistance of trial counsel must fail. supra. (d)(6) Finding
3. Aggravating Circumstance Spotz next that his asserts death sentence must be jury reversed because the trial court failed to instruct during the sentencing phase aggravating circum of committing stance a while in the a killing perpetration of 9711(d)(6), § felony, Pa.C.S. apply does an accom plice who did not personally bring about the death of the have, failed, victim. Because trial counsel but could to raise trial, 9544(b). § claim at it is waived. Pa.C.S. Spotz, however, presents the argument terms ineffective ness trial counsel for failing to make a request such Therefore, an instruction at trial. this Court will excuse the waiver and in light consider his claim of the standard for determining whether counsel was for failing ineffective Morales, raise the issue at trial. supra. death, order to impose sentence of the jury must (1)
unanimously agree: that the Commonwealth has proved at least one “aggravating circumstance” beyond reasonable doubt; (a) that either: *64 the defendant has failed to prove any “mitigating circumstance” a preponderance of evidence; (b) the or the aggravating circumstance or circum outweigh stances any mitigating circumstances. 42 Pa.C.S. 9711(c)(1)(iv). § During trial, the sentencing phase of his the jury Spotz proved found that had one mitigating circumstance the that had Commonwealth established three aggrava ting circumstances, including that Spotz “committed a killing while in the perpetration felony.” 9711(d)(6). § of a 42 Pa.C.S. 23, 1998,
On December this Court held in Commonwealth v. Lassiter, 586, 657, (1998) 554 Pa. 722 A.2d 662 (plurality 9711(d)(6) opinion), that the Section aggravating circumstance “may not be applied to an accomplice who does not ‘commit’
80 finishing it to or bringing completion in the sense of killing
the first-degree of a murder Thus, sentencing phase it.” the prove this trial, aggravator has failed the Commonwealth a doubt beyond it established reasonable unless and until has the killer. At the trial that the defendant himself was the requirement to make this clear to the court failed Spotz, Spotz that his trial counsel was jury; hence the claim request to make a for such an instruction failing ineffective for arguable has merit.36
Nevertheless,
that the effective
it is well established
existing
under the standards
ness of counsel is examined
the
an
point
rather than at
when
performance
the time of
See,
v.
e.g.,
claim is made.
Commonwealth
ineffectiveness
(1997)
Todaro,
545,
(citing
1343
Common
549 Pa.
701 A.2d
(1983)).
Dunbar,
74,
v.
wealth
Therefore,
trial counsel was
Spotz must demonstrate that
The
at the time of trial.
ineffective under the law in existence
in
the
only
Spotz
compelling
relies as
upon
decision
which
however, Lassiter,
which
decided
question,
struction in
we
him, on March
years
jury
three
after the
sentenced
nearly
the
court
Consequently,
say
cannot
trial
1996.
Court
it find that
the
nor can
improperly
jury,
instructed
a
for the
failing
request
to make
counsel
ineffective for
was
II,
required.
have
instruction that Lassiter
See Cribble
would
(“Counsel cannot
for
863 A.2d at
be deemed ineffective
law.”);
changes
or
in the
failing
developments
predict
Fowler,
Pa.
A.2d
Commonwealth
(“Counsel
can never be deemed ineffective for
merit.”).37
no
raisе a claim that has
first-degree
general
36. The
murder was
conviction
Therefore,
jury
necessarily
find
the
did not
himself
verdict.
rather,
shooter;
long
jury
that it was the
so
as
determined
was
i.e.,
specific
to aid or
aid or assist Noland —in
intent of
assist —
victim,
predicated
guilt
killing
juiy
on
could have
finding
accomplice. Consequently,
merely
an
Lassiter
that he
sentencing
jury at
required
would have
the trial court to instruct the
brought
phase
jury
first have to find that
himself
would
killing
had
it could find that
the Commonwealth
about
before
9711(d)(6)
aggravating
as an
circumstance.
established Section
request for
of trial counsel
to make the
37.
In addition to
failure
jury, Spotz
ineffectiveness claim on the
instruction to the
also bases his
*65
In his Concurring
Dissenting
and
Justice
Opinion,
Saylor
that
development
change
denies
Lassiter constituted a
or
existing
the
at the
sentencing,
law
time
Spotz’s
suggesting
that “Lassiter’s holding merely enforces the plain meaning of
the
Concurring
Dissenting Opinion
statute.”
of Justice
Saylor, op. at
at
Because “capital
A.2d
1256.
counsel
responsible
are
to vindicate their clients’
exist
interests under
ing statutory provisions,” Justice
finds that
Saylor
arguable
the
satisfies
merit and reasonable
prongs
basis
the
Moreover,
instant
jurors
ineffectiveness claim. Id.
“since the
circumstance,
therefore,
mitigating
found a
the sentencing
decision was committed to their
of the
weighing
aggravating
mitigating circumstances,”
Saylor
Justice
concludes that
Spotz has shown
that there
a reasonable
probability
the
jury
imposed
penalty
would
have
the death
but
counsel’s failure to
jury
at
challenge
instruction.
Id.
111—
Therefore,
To determine whether trial for Spotz counsel had a reason- able basis for not objecting jury instructions regarding (d)(6) aggravator, we must consider many decisions of this dealing Court with the application aggravator of that were in effect the time of Spotz’s sentencing. An examina- tion of that, these cases reveals of reviewing course Lassiter, imposed sentences before our decision in we often identify did not who must person killing commit the when (d)(6) referring to the More aggravator.38 importantly, on object failure of counsel to to the law” “misstatements of that the (Brief 64-67). prosecutor made at trial. Because making relies on argument, Lassiter claim ineffectiveness based on it fails for concerning the same reason as the one jury charge. See, Romero, e.g., 38. Commonwealth v. (he (1999) ("The jury following n. 1 aggravating found circumstances: *66 a occasions, the of defen- upheld sentencing this Court
several Lassiter, (d)(6) the dant, aggra- where the found jury prior case, may it as the instant though, even applicable vator liability.39 accomplice the based on defendant have convicted text of the Therefore, argument based on the the although merit, trial counsel’s although has arguable statute indeed hindsight, trial counsel may unreasonable decision seem object- believed at the time might reasonably have (d)(6) the aggravator would jury charge regarding to the ing its given prior upholding our own decisions been futile have decline to Accordingly, we accomplices. application against request ineffective for deem trial counsel Spotz’s (d)(6) does jury aggravator that the the trial court instruct bring about personally who did not apply accomplice an of the death the victim.40 (2) felony, killing perpetration a 42 committed in of ... Rios, 419, 9711(d)(6)....”); Pa. 721 § v. 554 Pa.C.S. Commonwealth 1049, (1998) ("The aggravating n. three circumstances A.2d 1051 8 perpetration felony, a 42 in the of werе that the murder was committed Bardo, 140, 9711(d)(6)....”); v. Pa. 709 § Commonwealth 551 Pa.C.S. 871, (1998) (“The finding penalty after jury imposed the death A.2d 875 circumstances, killing perpetration felony of a in the a aggravating two 9711(d)(6)...."); Anthony Washing- § v. ... 42 Pa.C.S. Commonwealth 400, ton, 12, (1997) (citing "42 Pa.C.S. A.2d 406 n. 7 549 Pa. 700 (the 9711(d)(6) during perpetration of killing a § ... occurred 550, felony”)); Washington, Pa. 692 A.2d v. Vinson 547 Commonwealth Lambert, 320, 1018, (1997) (same); v, 529 Pa. 603 Commonwealth 1020 568, (1992) ("The aggravating were: 2 three circumstances A.2d 572 n. felony 42 perpetuation of a ... Pa.C.S. killing [sic] Chambers, 558, 9711(d)(6)....”); v. Pa. 599 A.2d § Commonwealth 528 630, (1991) (”[T]he aggravating jury ... found one circumstance to 633 i.e., killing during the of a present, that the occurred commission
be
9711(d)(6)).”);
(42
Appel,
v.
Pa.
robbery
§
Commonwealth
517
Pa.C.S.
780,
529,
(1988) ("Th[e]
aggravating
that two
court found
539 A.2d
782
proved beyond
...
had
a reasonable doubt:
circumstances
been
felony,
killings
perpetration
42 Pa.C.S.
in the
of
were committed
971(d)(6).").
§
358,
Chester,
See,
A.2d 1242
e.g.,
v.
557 Pa.
733
39.
Commonwealth
Laird,
(1999);
(1999);
v.
Pa.
In Commonwealth
sentencing
,
just
years
decided
before
which was
two
chal-
vagueness
rejected as “absurd”
this Court
Spotz,
of
of
portion
language
history”
to the
lenge
“significant
v.
9711(d)(9).
719;
Id.
see also Commonwealth
Section
(1986).
The terms
697-98
512 Pa.
Fahy,
course,
are,
person”
“to the
“use or threat of violence”
history;” Spotz cannot
than
ambiguous
“significant
less
even
had
position
in his
would have
that someone
argue
be heard to
language.
straightforward
meaning
at the
such
guess
Therefore,
to Section
vagueness challenge
because
9711(d)(9)
merit,
for
cannot be deemed
counsel
lacks
Travag-
it.
make
Commonwealth
ineffective
(1995).
lia,
108,
Finally, Spotz raises erroneous at testimony according him, renders improper jury’s finding of the 9711(d)(9) Section aggravator. the sentencing During phase trial, presented Commonwealth Robert C. Gwinn (Gwinn), the Clerk of of Courts Cumberland County, as a witness. While testifying to criminal of record Spotz, Gwinn stated pled had guilty to eight counts of N.T., 3/5/96-3/6/96, 29). burglary. (Sentencing at It is undis puted, however, that Spotz of only was convicted three counts of burglary. To determine whether Spotz “significant had a of history” violence, convictions for crimes of the jury was consider, alia, instructed to inter “the number of previous (Id. 292). Therefore, convictions.” the erroneous nature of 41. argument, Spotz a related claims determination burglary per trial court that se a crime of violence "erect[ed] presumption conclusive that relieved the Commonwealth its burden proving (d)(9).]” (Brief all the elements [Section 74). contrary, To the presumption conclusive is one this Court has repeatedly perfectly found consistent with the burden of the Common I, prove wealth to aggravator. Bracey all the elements See A.2d at 1062. reason, 42. For same for counsel was not ineffective burglaries to introduce evidence that the committed were not, fact, *69 in in violent nature. corrected, Gwinn, undermine unless would testimony of the the see Common- finding aggravator, the of support jury for (1989), and, in Karabin, Pa. wealth sentence, the turn, imposing it the in death jury on reliance I, supra. see Aaron Jones record, however, of shows examination
A careful did not stand uncorrected. Just the misstatement of Gwinn objected, immediately misspoke, for after Gwinn counsel N.T., (Sentencing Gwinn, a and sidebar followed. interrupting 29-31). sidebar, the 3/5/96-3/6/96, judge instruct- at After a of of portion testimony Gwinn. jury disregard ed (Id. 31-32). not mention the Although judge did at instructions, examination con- once direct misstatement his a tinued, Spotz entered asked Gwinn whether prosecutor “Yes.” burglary, responded, and Gwinn to three counts plea (Id. 32). Moreover, on the immediately following Gwinn at officer, Bennett, a parole state who was David John stand to “three counts guilty had pled confirmed that 34). (Id. burglary at the number of convic- Once burglary.” clarified, a meritori- longer there was no had thus been tions made, Spotz may for not be to be and counsel argument ous object regard. in that Tra- for failing deemed ineffective vaglia, supra. Instruction
5. Lack Simmons Next, sentence of death that his Spotz alleges provide failed “to court should be reversed because Pennsylvania sentencing an accurate instruction first-degree for murder receives life sentence defendant who 79). (Brief for at parole.” statutorily ineligible trial, raise claim at it is failed to Because trial counsel 9544(b). However, Spotz does contend § 42 Pa.C.S. waived. for trial counsel was ineffective sufficiently argue 87-90). (Brief of at trial. raise the issue the standard Thus, light argument we consider will ineffective for fail whether trial counsel was determining Morales, argument supra. trial. ing to raise *70 maintains that his trial Spotz counsel was ineffective for request a jury penalty phase instruction at the that imprisonment life Pennsylvania means life without the Carolina, parole. possibility See Simmons v. South 512 154, 2187, (1994). U.S. 114 S.Ct. 129 133 L.Ed.2d claims that his counsel’s failure to request such an instruction violat- ed his due process rights, right impartial jury, his to an and requirement pursuant Eighth to the Amendment that a capital sentencing jury be permitted give consider and effect to all relevant mitigating circumstances. Simmons, the United States Supreme Court rec
ognized
a
“may
state
not create a false dilemma by
advancing generalized arguments regarding the defendant’s
while,
dangerousness
time,
future
at the same
preventing the
from
jury
that the
learning
defendant
be
never will
released
171,
parole.”
Therefore,
on
Id. at
114
2187.
S.Ct.
the Sim
that,
mons Court held
puts
where the state
danger
future
issue,
ousness of the defendant into
process
due
requires that
the defendant be
entitled
inform the jury that he or she is
ineligible
parole.
During
Id.
the time since the decision of
Simmons,
Supreme
Court
precedent from this Court
has established
instruction,
Simmons
“[a]
detailing what
a life sentence means in Pennsylvania, is
if
required
only
prosecution makes the defendant’s future dangerousness an
issue in the case and the defendant specifically requests such
III,
an
instruction.”
Therefore, because the that principle the Court articulated in is Kelly procedural nature, in we ask next whether it law, should be a characterized as rule new of as
90
retroactivity
of
purposes
contends. For the
Saylor
Justice
“it
ground
new if
‘breaks new
a
is defined as
analysis,
ruling
or Federal Govern-
a
on the State
imposes
obligation
or
new
otherwise,
ment,’ or,
‘the result was not
stated
where
dictated
time the defendant’s conviction
at the
by precedent existing
”
Teague,
489
Hughes,
(quoting
91 a that it was far more than mere clarification of Simmons.
See,
C.J.,
261,
534
e.g., Kelly,
U.S. at
More our importantly, own interpretations of Simmons prior Kelly confirm that the Kelly standard constitutes new rule of subject law not to retroactive application. “ Kelly, prosecutor presented evidence during trial ‘that Kelly part took in escape shank,’ attempts and carried a that ‘he had caught been carrying weapon and planning or ” participating in escape attempts.’ 253, 534 Kelly, U.S. (quoting S.Ct. 726 State v. Kelly, 343 S.C. 540 S.E.2d (S.C.2001) (internal omitted)). Nevertheless, citation South Supreme Carolina held Court that the prosecutor did thereby put issue, the future dangerousness of Kelly at interpreting the phrase from contemplating Simmons as “evi- dence demonstrating future if danger prison,” released from Kelly, U.S. (quoting Kelly, S.Ct. 726 540 S.E.2d (internal quotation omitted)), at 857 n. marks whereas the prosecutor’s remark meant portray only Kelly’s likely behavior during remainder of his prison term. The Unit- Court, however, ed States Supreme reversed, rejecting suggestion dangerousness “evidence future counts under only Simmons when the State introduces evidence for possible there is no which other inference but future danger- society.” (second ousness Id. at 122 S.Ct. 726 empha- added) (alteration (internal sis original) quotation marks
92
omitted). Instead, future under dangerousness “evidence of tendency prove dangerousness is a to evidence with Simmons future; point disappear its relevance does not in the or be de- support it other inferences merely might because instance, terms,” id., as, for future in such other scribed dangerousness to fellow inmates. however, this denied Simmons claims Kelly,
Prior to
Court
in
echoed those at issue
prosecutor’s arguments
the
where
558,
Fisher,
in
v.
559 Pa.
Kelly.
example,
For
Commonwealth
a
(1999),
during
noted
prosecutor
the
(“[Counsel’s stewardship judged must be under the existing at the time of law trial and counsel cannot be deemed ineffec- tive for to predict developments future or changes law.”).
Finally,
argument just discussed,
addition
Spotz also contends that his trial counsel was ineffective for
*75
“failing at trial to
evidence of
present
the uncontested fact
that no life-sentenced defendant who had been
prose
capitally
[pursuant
cuted
Pennsylvania’s
penalty
to]
death
statute has
ever
any
received
reduction of
pardon,
sentence
clem
through
(Brief
ency, commutation,
87).
parole.”
or
of Spotz at
In
Commonwealth v. Trivigno,
We now Simmons instruction is hold when a required because the prosecution has argued defendant’s future dangerousness, the trial court ... should inform the jury that a life sentence means that a defendant is not eligible parole, for but that the Governor has the power grant a of of commutation a sentence life or death if on based recommendation of the Board Pardons following public a Further, hearing. relay the trial court any should available statistical information relating to the percentage life sentences that been have within the commuted last several years.
Id.
255-56,
However,
fective for swpra. Aggravating on Use
6. Instruction Mitigating and Circumstances claim, that his death sen- Spotz argues next the trial court and unreliable” because “arbitrary tence was the nature and use of jury on instruct properly “failed 90). (Brief of at factors.” aggravating mitigating and trial, at it this claim is waived. to raise As trial counsel failed 9544(b). However, argues that § also 42 Pa.C.S. at trial. raise the issue failing for was ineffective counsel 91-92). Thus, (Brief argument evaluate his we will whether trial counsel determining for light of the standard trial. argument to raise was ineffective Morales, supra. instructed the hearing, the trial court sentencing
At Spotz’s jury as follows: decide you must now Jury, gentlemen
Ladies and
to death or
life
the defendant
whether
to sentence
depend upon
you
what
your
and
sentence will
imprisonment,
circumstances
mitigating
aggravating
find about
aggravating
mitigat-
sentencing
The
code defines
case.
circumstances,
they
things
are
that make
ing
or
terrible.
either more terrible
less
first[-]degree murder
*76
290).
3/05/96-3/06/96,
N.T.,
asserts
(Sentencing
Pennsylvania
from the
materially deviated
this instruction
In-
Jury Instructions Pattern
Standard Criminal
Suggested
15.2502F,
aggravating
mitigat-
and
states
struction
which
mur-
first[-]degree
that make
things
circumstances “are
ing
(Emphasis
or less terrible.”
der case either more terrible
added).
his trial counsel was ineffective
According
Spotz,
of the term
object to the trial court’s omission
for
instruction,
jury allegedly caused the
from its
which
“case”
mitigating
of the
evidence.
skew their consideration
instruction, we
reviewing
challenged jury
“In
and
isolated
simply
as a whole
charge
must review the
conveys
required
it
fairly
to ascertain whether
portions,
Jones,
legal principles at issue.” Gilbert
Spotz insists that his trial counsel was ineffective for failing object to trial court’s of the omission word “case” from its jury instruction on aggravating mitigating circum- However, concluded, stances. as the PCRA court find we “hyper-technical semantical claim” to be “patently frivolous.” 57). (Opinion PCRA Court at Porter, swpra, this Court rejected a similar hyper-techni- There,
cal claim. the appellant argued it that was reversible error for the trial court to instruct the jury that a reasonable doubt one that “would a reasonably cause careful and Porter, sensible person to restrain acting.” before added). Instead, (emphasis the appellant insisted that the jury given should have been the Pennsylvania Standard Jury Section, 7.01(3) Instructions: (1979), § Criminal which states that a reasonable doubt is one that “would cause a reasonably careful and person sensible to hesitate before added). acting.” Id. (emphasis In dismissing this semantical claim, that, we noted “although historically we have considered language these contained standard instructions to an be review, aid our we have not our placed imprimatur upon Moreover, them.” Id. we also that the emphasized trial court has broad discretion phrasing its instructions as long as the adequately, instruction clearly, and accurately reflects the law. Id. Because the distinction between “hesitate before acting” minimis, and “restrain before acting” was de we concluded slight such a deviation by the trial court an was not abuse of discretion. Porter,
Similar to believe we that the trial court’s omission of the word “case” was de minimis. As court PCRA concluded, given, “[t]he instructions as clearly, adequately *77 accurately explained to the jury how to use the aggravating the law.” in accordance with circumstances mitigating
and
57).
such, we do not
As
of the PCRA Court at
(Opinion
consti-
would
phrasing
a
omission
believe that such
trivial
Likewise, as
of the trial court’s discretion.
an abuse
tute
object to the
for trial counsel to
there
no reasonable basis
for
ineffective
not be deemed
given,
as
counsel will
instruction
objection. Tilley, supra.
a
failing to raise meritless
Records
Alleged Failure to Produce Institutional
7.
failed
Next,
that the Commonwealth
alleges
the time of
records at
relevant
institutional
produce
Correc
trial,
Department
from the
namely, those records
of Children
County Department
tions and the Clearfield
83, 87, 83
Brady Maryland,
v.
373 U.S.
Youth Services.
(1963),
Supreme
States
the United
10 L.Ed.2d
S.Ct.
recognized
suppression by
prosecutor
that “the
Court
violates due
upon request
to an accused
evidence favorable
guilt
either to
or
is material
process where the evidence
bad faith of
of the
faith or
good
punishment, irrespective
has
Concerning materiality,
Supreme Court
prosecution.”
is
‘if there is a reason
that “such
material
explained
evidence
that,
been disclosed to
able
had the evidence
probability
defense,
differ
proceeding
of the
would have been
result
”
Greene,
263, 281, 119
v.
S.Ct.
ent.’ Strickler
U.S.
Bagley,
United States v.
(quoting
C. PROPORTIONALITY REVIEW Spotz next contends that his sentence death must be vacated because he “meaningful failed receive proportionali- (Brief 97). ty review.” Specifically, main- tains that he failed to receive “meaningful appellate review” the proportionality because database compiled by Admin- (AOPC) of Pennsylvania istrative Office Courts contained “systematic defects” and he given was not copy data provided to Court in determining proportionality.
This Court has consistently recognized that issues regarding the proportionality of capital sentences been by have decided and, therefore, on direct appeal Court are previously litigated. Edmiston, Commonwealth Pa. A.2d (2004) Albrecht, (citing Commonwealth v. Pa. (explaining that issues concerning proportionality sentence are beyond of PCRA purview where this has already against Court ruled on defendant these however, rherely is Spotz, appeal)). on direct
issues Rather, Spotz of his sentence. challenging proportionality in con- utilized our Court methodology challenging Because the appeal. on direct proportionality review ducting raise this first represents opportunity PCRA the merits of the issue. claim, will consider we statutorily required this Court was appeal, On direct upon imposed whether the sentence death determine imposed the penalty or disproportionate “excessive 9711(h)(3)(iii).44 In undertaking § 42 Pa.C.S. similar cases.” review, this stated: Court proportionality *79 in the sen- light sentence of [Spotz]’s have reviewed [W]e by the Administrative compiled and monitored tencing data We conclude that the of Courts. Pennsylvania Office the not excessive or upon imposed [Spotz] sentence of death in similar cases. the penalty imposed disproportionate I, at 593. Spotz 716 A.2d review of attempts proportionality now to attack the the by arguing AOPC’s appeal
this
on direct
Court
provid-
that he
not
is flawed and
was
proportionality database
compilation
of data
concerning
notice
adequate
ed with
However,
readily
as Spotz
acknowledges
ease.
relevant
his
Court,
rejected similar
consistently
in
Brief to this
we have
in
past, particular-
review the
challenges
proportionality
to our
neither
the AOPC is
noting
compiled by
the data
ly
Edmiston,
901;
Com-
nor
See
A.2d
dеfective
flawed.
Marshall,
289,
539,
571 Pa.
812 A.2d
551-52
v.
monwealth
Wharton,
978,
85, 811 A.2d
(2002);
v.
571 Pa.
Commonwealth
Miller,
(2002);
A.2d
v.
Commonwealth
Albrecht,
708;
I,
(2000);
720 A.2d at
Gribble
for us to
has
no
reason
presented
compelling
at 440.
Thus,
must
precedent.
line of
we
revisit
established
that,
legislature repealed
requirement of
in
44. We note
Nevertheless,
undertake
proportionality review.
this Court continues to
appeal
of death sentences
cases
proportionality review on direct
25, 1997,
imposed prior to June
the sentence of death was
where
n
Gribble,
Pa.
repeal.
date of the
See Commonwealth
effective
(Gribble I).
Additionally, Spotz challenges methodology uti lized concluding this Court that his sentence of death product prejudice was not “the of passion, any or other 9711(h)(3)(i). arbitrary § factor.” 42 ap Pa.C.S. direct On peal, stated: we record,
Upon review of the
conclude that
we
the sentence of
death
not the product
passion, prejudice
was
or
other
any
Rather,
arbitrary factor.
it was based upon
prop-
evidence
admitted
erly
at trial.
I,
review,
alleges examining whether passion, prejudice or other existed, arbitrary factors this Court “failed to indicate the (Brief scope performed.” substantive review [it] 99). However, noted, as the PCRA court Spotz does any not cite to relevant case or statutory law authority requir- ing this Court to elaborate on scope our review determining whether passion, prejudice, or other arbitrary Here, factors existed. after conducting our independent own record, review the we concluded that the sentence of death imposed upon Spotz product was of passion, prejudice, or other any arbitrary factors. No further analysis into scope our review necessary. such, As Spotz is not *80 entitled to relief on this meritless claim.
D. ALL INEFFECTIVENESS OF PRIOR COUNSEL
Next, Spotz to argues that the extent that his prior counsel “failed to or adequately assert preserve any trial, claims either at motions, in his post-verdict or on direct appeal, counsel rendered ineffective assistance of counsel.” (Brief 99). of However, Spotz at in baldly asserting counsel, prior ineffectiveness of all Spotz has to failed develop in any meaningful claim fashion. Specifically, Spotz has to failed set forth his claim pursuant to the Pierce three-prong test for an establishing ineffective assistance of counsel claim. “Claims of ineffective assistance of self-prov counsel are not Wharton, ing. 986; ...” 811 A.2d at see also Commonwealth 100 (2001) 203, an Pierce, 186, (noting 221 that 786 A.2d
v. 567 Pa. of of ineffective assistance on claim prevail cannot appellant Therefore, Spotz’s is not developed). counsel claim when ineffective respecting undeveloped argument boilerplate, entitle to establish an all counsel is insufficient prior ness of Bond, v. relief. See Commonwealth ment to post-conviction (2002) 588, 33, boilerplate 41 (noting 819 A.2d 572 Pa. to failing for prior counsel were ineffective that all allegation bur discharge appellant’s does not litigate waived issues ineffectiveness); Bracey, v. 568 proving den of Commonwealth II) (2001) (noting that 264, 935, (Bracey n. 4 Pa. A.2d 940 795 for ineffective prior counsel were a mere statement all satisfy the does not to raise claim error failing underlying he is or she entitled establishing burden of appellant’s of counsel on assistance relief ineffective post-conviction Abdul-Salaam, 79, 808 A.2d claim); 570 Pa. v. Commonwealth (2001) bald, allegation 558, undeveloped that a (noting 560 n. litigate claims that trial counsel was ineffective establishing burden satisfy appellant’s on fails to appeal relief). entitlement PCRA
E. ERROR CUMULATIVE that he is entitled Finally, Spotz post-conviction contends has errors he the cumulative effect uрon relief based find no merit his Brief to Because we this Court. alleged the cumulative by Spotz, claims raised any of the individual relief. See alleged effect of these errors does warrant Pa. A.2d 1208- v. Blystone, Commonwealth (1999) (“No collectively attain may of failed claims amount individually.”); Commonwealth if not do so they merit could (same). Williams, Craig
CONCLUSION reasons, has failed to demonstrate the foregoing For Accordingly, PCRA. we for relief to the eligibility pursuant court.45 affirm the Order the PCRA full Prothonotary Supreme to transmit a 45. Court directed The *81 in proceedings to the accor- complete of these Governor record l(i). § with Pa.C.S. dance joins BAER the opinion. Justice
Justice EAKIN participate did the consideration or decision of this case.
Chief Justice CAPPY concurring opinion. files a Justice CASTILLE files a concurring opinion.
Justice files SAYLOR a concurring dissenting opinion. Justice BALDWIN files a concurring dissenting opinion. CAPPY,
Chief Justice
concurs.
join
I
majority opinion
in all but one facet. With
respect to the
analysis
claim
Appellant’s
alleging discrimi-
in jury
nation
selection on the basis
I
gender,
join
expressed by
views
Mr.
Saylor
Justice
in his Concurring and
Dissenting Opinion and Mr. Justice
in his
Castille
Concurring
Opinion
regarding
application of our recent decision in
Uderra,
Commonwealth v.
580 Pa.
Justice concurs. join I Opinion, the Majority subject to the three qualifying points set forth below.
First, with
respect
A(2),
Part
pertaining
appellant’s
claim of ineffective assistance of counsel in failing
allege
gender-based
selection,
discrimination
jury
I agree with Mr.
that,
Justice Saylor
under the majority
set
view
forth in
Uderra,
Commonwealth v.
(2004),
Id. at 74
joined
concurring).
light
Majority’s analysis
of the state
law the
*83
here,
of
time
I am satisfied that counsel cannot be labeled
predict
ineffective for
to
failing
Lassiter’s
interpretation
aggravating
circumstance.
Third,
B(5),
regard
pertaining
with
to Part
to appellant’s
claim based on
ineffectiveness
trial counsel’s failure
request
to
jury
instruction consistent
the
Supreme
with
United States
Carolina,
Court’s
in
154,
decision
Simmons v. South
512 U.S.
2187,
(1994)
114 S.Ct.
against (1976), Ohio, 49 L.Ed.2d v. U.S. S.Ct. Wainwright Greenfield, v. circumstance penalty-phase (1986): 284, 106 634, 88 S.Ct. L.Ed.2d 474 U.S. conclusion that disagree Majority’s I with the respectfully references penalty phase nature of the objectionable not impeach employed silence in this were case—which insolubly ambiguous criminal with responsibility denial of silence, assertion of response but instead as a a defense penalty in the mitigating the mental health circumstance alone, and does not de- plain by Doyle made phase—was v. extension upon Wainwright pend Greenfield’s lawyers I dispute not that creative Doyle rationale. do post-Doyle, in the operating pre-Wainwright Greenfield in the extension and advo- could seen the logic world have But, lawyer as did. holding, for such a Greenfield’s cated competence before us is one reasonable question Amendment and the circumstances under Sixth from obviously were so distinct Wainwright v. Greenfield I Court Doyle Supreme do believe that U.S. incompetent having to be failed lawyer would deem a that decision. anticipate Supreme
It
in this
the U.S.
significant
regard
retroactive
has not
on
issue
spoken
Court still
*84
rule,
v.
much less
application
Wainwright
of the
Greenfield
failing
antici-
the
of counsel ineffectiveness
question
it,
or, as
Majority
that extension
the
would have
pate
the
Notably,
single
case that
application of the rule....
result,
its
arguing
Doyle
in
commands
Majority cites
(7th Cir.1990),
Indiana,
is
rule” is relevant to a only situation where defendant claims that he actually raised preserved claim; a Kelly-type essentially, direct Here, review paradigm. appellant did claim; (to not raise the aspect Kelly of his current claim one) the extent there is is reviewable only as a distinct claim in the sounding ineffective assistance of his trial counsel in failing to predict Kelly. For purposes claim, of assessing that counsel’s performance must be light legal viewed landscape that cannot the Kelly And, include decision itself. 91-93, as the Majority op. 1245-46, 896 A.2d at counsel acted reasonably light of the existing landscape. In my view, that *85 is all be need to said resolve the claim forwarded.
106 that, I if I could with the agree should note even
Finally, Majority assumption dispute that animates between ineffective Saylor i.e., question that the and Mr. Justice — is rule in of what a new question is identical assistance diffi development case law would be involving an instance —it new rule for Strickland a Kelly anything as but cult view “clarification” retroactively-applicable rather than a purposes, because Simmons so was a Simmons rule. This is existing definition, a it is difficult to view such plurality By decision. commanding any particular interpretation, “clarifi as decision cation,” involving in a case different facts. or future expansion decision in O’Dellv. Nether regard, High In this Court’s land, (1997), 117 S.Ct. L.Ed.2d U.S. matter, decided after the trial which was also O’Dell, the Court considered whether Sim In instructive. mons itself was habeas purposes. “new” rule for federal affirmative, began in the the Court its answering question that Simmons a mere plurality analysis by emphasizing outset, that Simmons observe, is an “We at the decision: ... unlikely candidate for old-rule status there was [because] Id. 159, 114 for the 2187 117 S.Ct. opinion no Court.” S.Ct. token, Simmons By plurality decision at 1974. the same an odd candidate become settled conduit would be ineffective based retroactively which counsel could be deemed the plurality’s non-majority a future interpretation upon “rule.” SAYLOR, concurs and dissents.
Justice (2) B(l), A(l), (5), (4), join I Parts I the denial opinion, holding affirming concur majority conviction, regard relief from the I reverse would with I to the penalty hearing, of a and write the denial new following points. A(2), claim of pertaining Appellant’s to Part regard
With selection, I gender-based jury discrimination in add to would Uderra, that Commonwealth majority’s analysis (2004), adopted approach this Court Pa. post-conviction to the effect that a of various federal courts
107
petitioner asserting
unpreserved
an
claim of racial discrimina-
jury
tion in
may
rely
selection
on a prima
case under
facie
79,
1712,
Batson v. Kentucky, 476 U.S.
106 S.Ct.
90 L.Ed.2d
(1986),
actual,
69
but must prove
purposeful
by
discrimination
Uderra,
a
of
preponderance
513,
the evidence. See
580 Pa. at
Henderson,
McCrory
1243,
862 A.2d
v.
(citing
82 F.3d
(2d Cir.1996)).
Since the rationale
supporting
posi-
tion
in
adopted
Uderra was not
on
dependent
type
asserted,
rather,
discrimination
but
on the
premised
absence of contemporaneous
court,
assessment
the trial
see
Uderra,
511-12,
85-86,
Concerning the treatment of Appellant’s claim of ineffective
assistance
counsel for
present a diminished capaci
A(4)
ty defense in Part
of the
I
majority opinion,
have
reservations
general
about
application of the precept
foreclosing
diminished capacity defense to a
charge
first-
murder,
degree
where
guilt
Commonwealth asserts
under
principal
accomplice
liability
alternative,
theories in the
but where the defendant has not conceded that he
acted as
principal. See Majority Opinion,
47,
op.
With (d)(6) aggra- of the jury’s finding to the challenge Appellant’s circumstance, applies, where vating aggravator “[t]he such of a perpetration a while in the killing committed defendant added). 9711(d)(6) This (emphasis § 42 Court felony,” Pa.C.S. the of the application words foreclose plain has held that these for first- are liable persons circumstance who aggravating an See solely capacity accomplice. in the degree murder 657, Lassiter, 586, 595-96, 722 A.2d v. 554 Pa. Commonwealth have, Parenthetically, the Court’s Justices over the course of 1. various capacity, insanity history, short expressed the view that diminished as negating liability, simply be available a criminal should not all 119-21, Weinstein, 106, defense, see, e.g., v. 499 Pa. 451 Commonwealth J., 1344, (1982) (McDermott, concurring partic- without 1350-51 A.2d certainly Pennsylvania unique of the ipation), law is not in terms implement expansive approach to an the defense. reluctance to questionable applied an ac- particularly as 2. The restriction seems capacity application will never allow a diminished complice, since its defense, accomplice first-degree despite murder as established via crime, liability theory specific see v. remains a intent Commonwealth 196, 201, 961, ("Unless (1994) Huffman, 638 A.2d 964 536 Pa. kill, guilty found possessed specific he could not be appellant intent to degree.”). in the first Paul H. of murder Robinson, Criminal Law Cf. 64, (1984 (discussing the tension Supp.1993) § 273 & at Defenses particular support liability for an requiring a state of mind to between it). excluding evidence relevant to but nevertheless offense
109 statute, (plurality).3 spite plain text of however, the trial court the sentencing jury instructed that the if aggravator applied “the committed in the killing was perpe- N.T., 6, 1996, 292; tration of a March felony,” see also at id. 296, thus, effect, in conveying that the defendant’s actual perpetration of killing was immaterial.4
The majority deems Lassiter it inapplicable because post however, noted, dates the trial in this case. As Lassiter’s holding merely plain statute, enforces the meaning capital responsible counsel are to vindicate their clients’ inter statutory ests under existing provisions. See Commonwealth 274, 36, 761, v. Hughes, Pa. 331-32 n. 865 A.2d 795 n. 36 Lassiter, (2004); 596, 554 Pa. at at 662.5 A.2d More- cf. reasons, Although plurality opinion Lassiter is for six other Justices 3. agreed prosecution accomplice that a liability for murder based on will support aggravating the use of the under circumstance Section 9711(d)(6), strategy and that counsel in the case lacked a reasonable pursue point at least in with consultation his client. See Williams, Commonwealth 93 n. 526-27 J., (2004) (Saylor, dissenting) (describing positions n. the various in Lassiter). majority incorrectly 4. The jury Appellant indicates that the found that killing "committed a perpetration felony." while of a See fact, Majority Opinion, op. at alignment A.2d 1205. In instruction, with the trial slip only court's the verdict jury's reflects finding "killing perpetration felony." committed of a *88 special simply finding There is no on the the record to effect that victim; Appellant actually perpetrated killing the the Appellant of tending support adduced affirmative evidence theory to his defense that Nolan, killer, accomplice, e.g., Christina Majority was the actual see 31, Opinion, op. at 49 (citing testimony n. 896 A.2d 1220 31 at n. of Darcy Shugars); primary Smith and Lawrence the direct evidence that who, Appellant Nolan, was by the actual shooter derived from virtue law, source, N.T., 2, applicable regarded is to be as a tainted see March 1996, (reflecting jurors at 770 the trial court’s directive that the “shall testimony [Nolan's] view corrupt with disfavor because it from comes a source”); polluted affirmatively and jury the trial court instructed the guilt phase the Appellant in degree trial that could be held liable for first- 788-90; accomplice, an jury murder as see id. at and the general first-degree returned a verdict to murder. light 9711(d)(6), plain language 'In of the of Section it seems me to 5. that, simply if the trial courts would use the words of the statute in their penalty-phase slips, instructions and on verdict should be sufficient convey plain meaning (although to the I preferable believe that it is jury specifically aggravator applied advise the that the cannot be if the guilty first-degree was accomplice defendant found murder under
110 by the over, view, none of the decisions referenced in my that the position argument its persuasively supports majоrity in Lassiter rejected had otherwise been and/or prevailed trial in a that would relieve the fashion diminished Court See it. Majority Opinion, obligation pursue of his counsel Indeed, 38-39, at 1239 nn. 38-39.6 op. at 81-82 nn. 896 A.2d contrary prevail to the position regard in this majority’s the Lassiter, 596, itself. See Pa. at ing reasoning of Lassiter 554 where, here, significant deficiency as liability theory). most arises The voice, passive aggravator using remov- paraphrases the a trial court the in the position active that is elemental ing the defendant from the statute. by majority post-date many the regard, 6. of the cases referenced In this case, thus, of limited relevance in these are the 1996 trial of this 1996; was assessing in the Lassiter issue trial counsel's calculus (in any the of the that are cited addressed in decisions raised and/or question, the the Court only the that touches on Lassiter one of cases it, jury unnecessary to since the had found address noted that it Rios, aggravators mitigators, v. other and no see Commonwealth two 1049, (1998)); 16, of the Pa. 435-36 n. 1057 none penalty-phase that were specifies the relevant instructions decisions 9711(d)(6) jury concerning aggravator; trial the Section issued the indeed, actually many the trial under review had of the cases courts (d)(6) directly penalty- in their quoted aggravator from the statute the displacing required phase charges, opposed focus on the active as see, case, e.g., present Common defendant as occurred in the role of the C.A.1987, Chambers, (V.VII), at 1524 v. No. 42 N.T. June wealth (C.P.York) (reflecting the court’s instruction this case ”[i]xi is, aggravating which presented one circumstance has Commonwealth Act, killing a the Defendant committed while I read it from the Chester/Laird, felony”); v. Nos. perpetration of a Commonwealth in the 741-88, 746-88, 20, 1988, N.T., (C.P.Bucks) (reflecting a May at 797 requirement that “the defendant centered on similar instruction felony”); killing perpetration of a Common while in the committed 1983, N.T., 25, 1984, Lambert, Aug. Apr. v. al. Term Nos. 343 et wealth (C.P.Phila.) judge’s reading aggravating (reflecting the trial at 67 statute); finally, penalty the death circumstances verbatim from phrase same has continued after Lassiter to utilize the shorthand Court setting merely procedural ology majority references in out that the cases, see, e.g., Singley, history Commonwealth and, view, (2005), my least in it would be unreasonable A.2d imprecision (paiticularly instanc position mere take the that such for) displaces precision is not called Lassiter. es which Certaixxly agreed appellant’s who six in Lassiter Justices convey strategy failing to focus lacked reasonable counsel *89 9711(d)(6) killing participation in the on the defendant's active Section controlling prior phrasing by imprecise or future not deem some did
Ill
(“Clearly,
A.2d at 662
trial counsel
have no
could
reason-
able
for failing
explain
appellant
basis
to the
that a strong
argument
be
penalty
could made that the death
could not be
law[,
(d)(6)
applied to her under Pennsylvania
because the
aggravator does not
to an
apply
accomplice who does not
599,
commit the killing].”); see also id. at
In the previously circumstances as see note supra 4, in light of trial testimony post-conviction counsel’s on (d)(6) review to an understanding aggravator erroneous misstatement, N.T., akin to 28, the trial court’s September see 152-53, I find arguable merit and reasonable strategy prongs of the Further, ineffectiveness test satisfied. since the jurors mitigating circumstance, found a and there- fore, the sentencing decision was committed to their weighing of the aggravating and circumstances, mitigating see 42 Pa. 9711(c)(l)(iv), §C.S. I believe that counsel’s deficient steward- ship was sufficient to undermine confidence the penalty I verdict. Accordingly, would award a new penalty hearing.
Finally, concerning the discussion of the range of evidence and argumentation that implicate will capital defendant’s dangerousness future for purposes of determining the avail ability of an instruction concerning the meaning a life sentence Carolina, under Simmons v. South U.S. (1994),
S. Ct.
the
(2002),
726,
the
States
246, 122
Id. at S.Ct. 732. test, prior relies on majority this the applying Rather than Com- Kelly. that are inconsistent with of this Court decisions 88, (cataloguing A.2d at Opinion, at 1243 Majority op. pare the that reflecting proposition “[t]he Pennsylvania precedent upon issue the instruction based required court is not trial alone”), acts with past a violent references to defendant’s (“A jury hearing at 731 at S.Ct. Kelly, 534 U.S. for violence propensity demonstrated of defendant’s evidence a of violent that he risk presents conclude reasonably will a rule behavior[.]”).8 Kelly as new majority regards While the Majority see subject only prospective application, of law 88-89, at I that the believe Opinion, op. previously a that was unset- merely decision clarified matter jurispru- Court Supreme as a of United tled matter States a dence, holding requiring the breadth of Simmons namely, in a defendant’s future in instances which special instruction a in prosecution is in issue placed dangerousness counsel competent capital It to me that case.9 seems capital opinion response dissenting asserting that under the Notably, in to a 8. all, of, proportion Kelly if not the evidence a substantial standard future, likely dangerous in capital show a defendant to be cases will be,” indicated, majority "may Kelly, Kelly well see 534 U.S. respond declined to 254 n. at 732 n. albeit it S.Ct. . definitively Kelly presents new rule 9. As the foundation for its conclusion law, majority holdings to the effect relies this Court’s various on implicate dangerousness express must be that references future Majority Opinion, op. at See requirement of a Simmons instruction. that, 91-93, reasoning is since this Court’s A.2d at 1245-46. The be open should well aware of controversies associated with Simmons, highly prominent capital which is matter such, and, litigation, as and where not inconsistent otherwise strategy, necessary preserve do with what favoring the instruction for state position both and federal review. BALDWIN,
Justice
concurs and dissents.
A(l), (2), (3)
(5)
(5)
join
B(l), (2), (4),
I
Parts
I
majority opinion.
holding
concur
affirming
*91
conviction; however,
denial of relief from the
I would reverse
to the
regard
hearing.
with
deniаl of
penalty
new
A(4),
With regard to Part
I concur with
Saylor’s
Justice
result, but write
to
separately
clarify
reasons for
my
doing so.
trial,
During Appellant’s
the Commonwealth asserted two
alternative theories of guilt
first-degree
for the
murder
(1)
charge:
Appellant pulled the
trigger
directly
was
prior holdings
contrary Kelly,
Kelly
are
represent
then
must
a novel
however,
legal proposition.
logic,
id.
See
Such
fails
account for the
possibility
might
correctly
that a
implement existing
state court
not
doctrine;
thus,
rationale,
federal
majority’s
constitutional
under the
it
appear
by
would
that even a mere correction
the United States Su-
preme
misinterpretation
Court of a state court's
of federal constitution-
al
apply prospectively only.
law should
I therefore believe that a
warranted,
approach
retroactivity question
broader
to the
which does
integrally
Pennsylvania
not focus
the
on
decisions.
view,
particular, my
Kelly
In
represents
in
whether
a new rule of law
should be determined with reference to the relevant decisions of the
Court,
Supreme
including Kelly
regard,
United States
itself.
it
apparent
Kelly majority
ruling
seems
applica-
the
its
viewed
as an
Simmons,
tion
example,
Kelly
rather than
anas
alteration. For
the
specifically
majority
credited the state court decision tinder review for
correctly framing
legal
arising
by considering
the
issue
under Simmons
dangerousness
logical
whether the defendant's future
was "a
inference
evidence,"
injected
from the
through
or was
into
case
the State's
252,
Moreover,
closing argument. Kelly,
responsible
the intent to kill and
had
pulled
trigger,
Appellant
but
an
It is well-settled
accomplice.
as
guilty
thus
Appellant
guilty
first-degree
accomplice
for an
be
order
law
murder,
beyond
reasonable doubt
it
determined
must be
intent to
necessary specific
accomplice possessed
that the
Hannibal,
132, 140,
Pa.
753
v.
562
take a life. Commonwealth
Bachert,
(2000);
499 Pa.
1265,
v.
1270
Commonwealth
A.2d
(1982).
931,
majority,
to the
406,
According
453 A.2d
killed
“[ajbsent
Spotz that he had shot and
an admission from
a diminish
victim],
presented
not
trial counsel could
have
[the
47, 896 A.2d at
Majority Opinion, op. at
defense.”
capacity
ed
However,
neces
requirements
to the intent
pursuant
1218.
murder,
liability for
accomplice
first-degree
sary
establish
here,
Where,
asserts
as
the Commonwealth
this is not so.
on alternate
may put
the defense
liability,
alternate theories
defense,
theories are
those alternative
theories of
even when
551 Pa.
Legg,
v.
inconsistent. Commonwealth
601, 606 n.
(1998);
Jorgenson,
Commonwealth
(1986). Therefore,
response
n.
A.2d
liability
asserted
the Common
the alternate theories
wealth,
did
responded:
Appellant
have
the defense could
intend,
realize,
that Ms.
and did not
or
trigger
pull
*92
(2) if,
reason, the
and
for some
pull
trigger;
would
the
Noland
Ms. Noland was
that
did realize that
Appellant
concludes
jury
victim,
they
then
should be aware
going to kill
the intent
capacity
not
to form
neces
did
have
Appellant
Saylor
As
first-degree
aptly
murder.
Justice
sary
commit
Opinion,
because
Concurring
Dissenting
discusses
frowned on'the use
a diminished
court and others have
alternative,
trial counsel’s failure
defense in
capacity
necessarily
rise to
an alternative defense does
raise such
J., Concurring Saylor,
of ineffectiveness. See
the lеvel
106-08,
at
115
have been ineffective
our
because
decision Commonwealth
Lassiter,
586,
v.
554 Pa.
722 A.2d
(1998)(plurality opinion),
657
which clarified
accomplice
killing
for a
liability
does not
9711(d)(6),
fit
of 42
meaning
§
the plain
Pa.C.S.
was not issued
until
years after the trial in the
two
case sub judice. Majority
108-09,
Opinion, op.
However,
at
The prong second the test for ineffective assistance of requires counsel tous determine whether “counsel’s action or inaction grounded was in a Legg, reasonable basis.” 551 Pa. 443, A.2d at 432. Trial counsel testified he did not object judge’s to the trial misstatement of the statute in the (i.e., jury instruction that the aggravator applied killing if “the was N.T., 6, committed the perpetration felony,” of a March 292) 1996, 9711(d)(6) he § because believed that applied to N.T., accomplice liability. September 2000, at 153. As stated previously, plain meaning of statute belies that belief and reasonable counsel should have at least made the argument plain that the meaning prevail. should There is no reasonable basis for trial counsel’s inaction.
To establish the prong third of the test for ineffective counsel, assistance we must determine that the counsel’s gave omission rise to a reasonable probability of changed Marshall, outcome. Commonwealth (2002). A.2d jury Because here required balance the aggravating and mitigating circumstances in ac 9711(c)(1)(iv), § cordance with Pa.C.S. it is possible that the *93 of one removal factor aggravating would have changed sentence from resulting “death” to “life.” to the
Therefore, penalty hearing new grant I would Appellant. A.2d 1260 Respondent v. Pennsylvania,
COMMONWEALTH WHITE, Raymond Petitioner. Pennsylvania. Supreme Court of May 2006.
ORDER PER CURIAM: for NOW, the Petition May, day this 17th
AND
Superi-
The order
is GRANTED.
Appeal
Allowance
REMANDED
matter is
and this
or
VACATED
Court
light
matter in
it
reconsider this
Superior
Court
on
docketed
which was
petition
PCRA
Petitioner’s amended
relinquished.
2004.
April
Jurisdiction
As
notes
Justice
v.
Kelly
Court in
senting
Supreme
the United States
opinion,
Carolina,
246,
726,