*1
cient to
result
the forfeiture
right
of his
to counsel under
Lucarelli,
Commonwealth v.
185,
(2009).
601 Pa.
Mark Newton Supreme Pennsylvania. Court of
Submitted Nov. 2009. April
Decided 2011.
38 Zuckerman, Dunham, Lee Michael Brett David
Robert of Phila- Wiseman, Eric Defender Association Montroy, John Spotz. for Mark Newton delphia, Philadelphia, County Attorney’s District Keating, M. Cumberland Jaime Office, of Harrisburg, Pennsyl- for Commonwealth Amy Zapp, vania. C.J., SAYLOR, EAKIN, BAER, TODD,
CASTILLE, MELVIN, McCAFFERY, ORIE JJ.
OPINION Justice McCAFFERY. has from the Spotz (“Appellant”) appealed
Mark Newton relief to the pursuant of his for collateral filed petition denial (“PCRA”), following Relief Act1 his conviction Post Conviction of a sentence of first-degree imposition for murder and affirm. death. We 1995, in a crime engaged three-day spree early
While
four
in four counties. He was tried
people
killed
homicide,
and he was
convicted
separately
ultimately
each
brother,
voluntary manslaughter
of
in the death of his
Dustin
murder in the
Spotz,
County,
first-degree
Clearfield
Gunnet,
Amstutz,
Ohlinger, Penny
Betty
deaths of June
in,
York,
Schuylkill,
respectively,
Cumberland Counties.
man
Although
Superior
Appellant’s
Court overturned
trial,
conviction and
him a new
slaughter
granted
Court
reversed and reinstated the conviction.
v.
Commonwealth
(2005)
IV”).2
207,
582 Pa.
2. We
claims
ineffective
dismissed
assistance
counsel
manslaughter
prejudice
right
pursue
conviction without
to his
his
207,
Spotz,
those claims under
PCRA. Commonwealth v.
582 Pa.
822,
(2005)
IV").
("Spotz
870 A.2d
837
degree murder convictions and sentences of death. See Com
(1998)
499,
monwealth v.
552 Pa.
Spotz,
(Schuyl
Here, Appellant seeks review of the order of the PCRA *19 court denying petition his for collateral relief from his convic- tion for the murder of Betty Amstutz in County. Cumberland Briefly, case, the circumstances of the as set forth court, Court on direct review by the PCRA are as and/or 2, 1995, follows. February On having already committed three homicides in the prior days, two Appellant abducted Ms. Amstutz in or near her home. her Harrisburg Holding hos- tage, he directed her to cash two checks at two different banks, transactions- that were by security filmed cameras. also Appellant used Ms. Amstutz’s purchase credit card to items from a sporting goods store and to check into a Carlisle In early hotel. evening, two witnesses a observed white male standing along a Carlisle road close to a parked car matching the description Ms. Amstutz’s vehicle. Later in the evening, individuals, Appellant and two other Charles Carothers, Rhinehart, an acquaintance, and Michelle children, mother of two Appellant’s smoked crack in cocaine the hotel room. Mr. Carothers left the subsequently hotel and drove Ms. Amstutz’s car to the apartment of Ms. Rhinehart’s sister.
The following morning, near the side of road where car, witnesses had seen Ms. Amstutz’s a worker discovered body, wounds, her which had multiple sustained gunshot and notified the authorities. Later in the morning, police stopped car, Ms. Amstutz’s in which Ms. Rhinehart’s sister and Appellant’s appeal 3. from the denial of collateral relief from his murder County pending conviction York in this Court. Ms. Rhinehart and traveling pick up Appellant
friend were hotel room Appellant’s hotel. Police then surrounded at the him after a standoff. lengthy and apprehended yielded following: A of the hotel room post-arrest search knife; cards issued in the name jeans; a credit blood-stained victims; an Gunnet, murder and previous one of the Penny money of the he by Appellant, itemized written accounting, other his on crack cocaine and expenditures had stolen and body Ms. Amstutz’s and from items. Bullets recovered from a nine- body where her was discovered matched location in Appellant’s possession. Ap- millimeter semiautomatic pistol car, on Ms. Amstutz’s fingerprints were found pellant’s with that of Amstutz. blood on his shoe was consistent Ms. Amstutz’s murder in by jury was tried Ms. Appellant 17-year-old girlfriend, 1996. sometime May Noland, regarding testified for the Commonwealth Christina days prior and motivation in the two to the Appellant’s actions Two days abduction and murder of Ms. Amstutz. before Ms. murder, Amstutz’s Ms. Noland was with his County mother’s when he shot and killed home Clearfield brother, an during argument. Appellant his Dustin Spotz, where, in of a Schuylkill County, Ms. Noland fled to need vehicle, car, stole her Ohlinger, abducted June *20 Delaware, trip Appellant murdered her. After a short to this time York Pennsylvania, Ms. Noland returned Gunnet, abducted her County, Appellant Penny where stole car, her. then went on to Appellant and murdered Cumber- Noland, land without Ms. where the abduction and County murder of Amstutz took evidence admitted place. Ms. Other Amstutz, the kill at trial showed bullets used to Ms. Gunnet, and all Spotz, Ohlinger Dustin Ms. Ms. matched Appellant’s pistol. se, proceeded pro trial,
During guilt the of phase Appellant defense, attempting and he asserted an innocence to cast company day blame on those in his on the of the murder. murder, After of jury Appellant guilty first-degree found Andrews, Chief Public Defender of Cumberland Taylor Esq., assumed the role of defense counsel for the County, penalty witnesses, phase. After hearing testimony from numerous jury found three aggravating and two circum mitigating stances, latter, determined that outweighed former imposed the death accordingly penalty. aggravating The circumstances were that had Appellant killing committed the 9711(d)(6); while in the perpetration felony, § of a Pa.C.S. convictions, had a significant history of violent felony 9711(d)(9); murder, § and had been convicted of another 9711(d)(ll). § The mitigating Appel circumstances were that lant neglected had been his during poor childhood and had a 9711(e)(8). parents. § his upbringing Pa.C.S. Follow 17, 1996, formal ing sentencing on June filed a Court, direct appeal to this which during time he continued be represented by Mr. Andrews. We judgment affirmed the 20, 2000, of sentence on October and the United States Supreme Appellant’s petition Court denied of for a writ certio III, denied, rari. Spotz 1104,122 759 A.2d cert. 534 U.S. 902,151 (2002). S.Ct. L.Ed.2d 871 4, 2002,
On December Appellant filed a “Petition counseled Corpus I, for Habeas Relief Under Article 14 of the Section Pennsylvania Statutory Constitution And For Post-Conviction Relief Act;” Under The Post-Conviction Relief supple- three petitions mental were filed 2007.4 The court con- PCRA ducted an evidentiary over six hearing period days, of following which the issues orally were briefed and then ar- 26, 2008, gued. On June the PCRA court filed a 63-page opinion and order all denying Appellant’s of claims. 25, 2008,
appealed to Court on July via a entitled filing Statement,” “Jurisdictional in which he sought “review each every part the [PCRA court’s June Order.” 2008] Statement, 7/25/08, Jurisdictional filed at 1. In Appellant’s Court, brief issues, to this he has twenty raised many which have multiple parts.5 mid-2003, that, Appellant represents
4. proceedings instant PCRA pending were suspense held in appeal this Court's decision in the of his County manslaughter Clearfield conviction. See Brief at 3. *21 issues, 5. reproduced disposition, The verbatim but reordered for ease of are as follows: Appellant's capital three trials the to consolidate 1. Did failure process the Commonwealth jeopardy and due when violate double life; Appellant’s did the opportunity a to take was afforded third admitting of purposes were the same for determination that the facts multiple purposes for of trials but different other crimes evidence Appellant's process; inconsistent of and due did the resolution violate equal § violate under 18 Pa.C.S. Noland's claims Christina arbitrary capricious resulting prosecution and
protection; was the Amendment; Eighth failing in and was ineffective the counsel under litigate the claims were these in the manner in which to claims or appeal? litigated in the and on trial court trial, right Appellant incompetent to waive to counsel 2. Was his knowing, intelligent, it that invalid because was not and was waiver voluntary? and present opportunity and to a Was denied a full fair 3. error, counsel, of ineffective assistance defense because of trial court prior exculpatory was suppression of evidence and counsel and failing litigate in this claim? ineffective to argu- and prosecutor improper the make comments 4. Did trial that, individually collectively, a at trial and entitle to ments failing object at prior trial and in to trial new was counsel ineffective post-trial appeal? the motions and raise issues in and on jury the that the could draw an 5. Was trial court’s instruction against deadly weapon inference of intent to kill from the use of a body portion of when the vital the deceased’s unconstitutional court require jury to the that the defendant had failed that conclude body; prior part to hit the and was intended a vital deceased’s failing litigate and claim? counsel ineffective in to raise this presentation Appellant's prior the 6. Did of extensive evidence of acts, provide failure to advance criminal the trial court's an caution- instruction, ary subsequent provision and its of an instruction that the that had stressed value of the "other crimes” evidence been Sixth, Eighth, Pennsylvania violate law and and admitted tire Four- Amendments, raising counsel in teenth and was ineffective issue solely presented and in he as matter of state law the manner that appeal? claim at trial and on improperly Did the describe the 7. trial court's instructions nature mitigating prior aggravating and was and use factors and counsel failing appeal? in and ineffective to raise this at trial on issue and be 8. Should convictions death sentence reversed prosecution presented in because extensive unreliable evidence guilt sentencing relating circumstances of his invalid assault, aggravated manslaughter, convictions murder other three counties? aggravating Was the circumstance the defendant 9. that had a significant history felony involving the use or convictions threat of case; unconstitutionally person applied violence to in this did the prosecution falsely imply upon Appel- based facts not of record burglaiy gun lant's convictions involved use of a circumstances victims; burglary prior put him in with conflict counsel (d)(9) challenge failing aggravating ineffective circumstance applied, pretrial preclude the evidence to move or limit as
43 Under the applicable review, standard of we must determine whether ruling the of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Marshall, 587, 714, (2008). 596 Pa. 947 A.2d 719 The PCRA circumstance, argument support failing of this litigate and for to appeal? these issues on jury's guilt-stage 10. Did the rejecting finding verdict a that the during murder occurred the felony preclude commission of a the (d)(6) application aggravating of the Appellant circumstance that killing during perpetration committed the felony? the of a Appellant's penalty 11. Must death be reversed because of numerous improper prosecutorial during penalty comments phase? 12. Did the trial court’s jury reject instructions to the that it must sentence, penalty the death impose before it could a life and the arguments erroneous of both counsel that a required life sentence mitigating circumstances, outweigh aggravating circumstances to im- properly penalty-phase shift the persuasion burden of and violated life; sentencing-stage presumption prior was counsel ineffec- failing litigate tive in to appeal? this issue at trial and on 13. Must death sentence be reversed because the trial jury court failed to instruct the ineligible that he would parole be for life; if prior sentenced to counsel failing ineffective at trial for to parole seek a life without appeal instruction and failing on to raise this issue under all available theories? 14. Was trial failing counsel ineffective in investigate, develop, present evidence, and reasonably mitigating available failing to ob- records, employ tain and available institutional adequately interview witnesses, available fully present and mitigating evidence that was available present? from the he witnesses did 15. Did the Commonwealth's produce Department failure to Corrections mental health guilt, records mitigation, material to and validity determination Appellant's of the waiver of counsel Brady Maryland, violate v. and was failing counsel ineffective for records, independently provide obtain these them to a mental health expert, present part them as of a mental mitigation, health defense competency to seek a evaluation? 16. Was counsel failing ineffective for investigate present mitigating Appellant's evidence that mental health disorders were prison? treatable in 17. Is entitled to relief from his conviction and sentence because of the cumulative effects of the individual errors in this case? 18. Did the process Commonwealth violate due consuming an sample entire blood that could exculpated Appellant; have and did denying discovery? PCRAcourt err in court; 19. Was denied full and fair review in the PCRA did the improperly PCRA court limit the prevent Appel- record and presenting proffering lant from or material facts? improperly 20. Were monies Appellant’s prison deducted from ac- count?
Appellant's Brief at 1-3. 44 the rec- determinations, when supported credibility
court’s Johnson, v. this Court. Commonwealth ord, binding are on (2009). However, 532, 523, 329, A.2d 539 Pa. 966 600 to the PCRA of review novo standard a due applies Court Rios, Pa. v. Commonwealth court’s conclusions. legal (2007). A.2d relief, must petitioner for PCRA petition To on a prevail that his of the evidence prove by preponderance plead more of the from one or or sentence resulted or her conviction 9543(a)(2). § These *23 in 42 Pa.C.S. enumerated circumstances or Unit- Pennsylvania violation of the include a circumstances counsel, of either of or ineffectiveness Constitution ed States that no truth-determining process the which “so undermined taken innocence could have guilt or adjudication reliable 9543(a)(2)(i) (ii). addition, In a § 42 Pa.C.S. place.” been the claims of error have not must show that petitioner 9543(a)(3). § An waived. 42 Pa.C.S. litigated or previously could have raised it petitioner “if the issue has been waived trial, trial, prior on or a appeal to do so before at but failed 9544(b). § 42 An Pa.C.S. proceeding.” state post[-]conviction highest appellate if “the previously litigated has been issue have had review as petitioner in which the could court 42 the merits of the issue.” has ruled on right matter 9544(a)(2). § Pa.C.S. issues, alleged he has ineffec many Appellant’s
In
our
of ineffec
begin
analysis
of counsel.6 We
tive assistance
effective.
the
that counsel is
presumption
tiveness claims with
claims,
Rios,
ineffectiveness
at 799. To
on his
swpra
prevail
of the
plead
prove, by
preponderance
must
Appellant
(1)
evidence,
claim has
underlying legal
three elements:
2000, which time
Appellant's
appeal was decided in October
6.
direct
petitioner
trial counsel
prevailing
required
law
that a
raise claims of
obtaining
v.
upon
new counsel. See Commonwealth
ineffectiveness
259,
Hubbard,
(1977),
A.2d
overruled
Common-
472 Pa.
372
687
Grant,
48,
(2002).
record indicates
Pa.
GUILT PHASE ISSUES 1. Consolidation of Trials issue,
In his first Appellant alleges that the failure to consolidate his joinder homicide trials violated the compulsory requirements § of 18 Pa.C.S. as well as the constitutional *24 protection against jeopardy double and of guarantee due process. Appellant asserts that he “was ‘harassed’ four counties, in separate prosecutions quick succession” in four offenses that arose out of the episode same criminal and thus should have been consolidated for trial. Appellant’s Brief at Appellant 36. without implies, expressly so that the stating, relief he seeks is dismissal of the County Cumberland charges. it is not if Preliminarily, entirely clear is Appellant asserting that all four of his homicide trials should have been consolidat ed, or that only capital his three murder trials should have 2, been consolidated. id. at Compare Questions Statement of Presented to the failure (referring to consolidate his three trials) (dis 35, capital murder with id. at Argument Section cussing all four homicide trials and asserting the “failure to consolidate these cases for trial” violated Section double and jeopardy protections, process guarantees). due court recognized, Appellant direct as the PCRA appeal,
On ie., similar, issue, if that the failure to raised a not identical all four homicides violated consolidate his trials for Section County- and entitled him to dismissal of Cumberland III, 1285; and Spotz charges. Opinion 759 A.2d Order (hereinafter Court, Opin- PCRA dated “PCRA Court 6/26/08 ion”), This previously litigated). at 25 this claim as (rejecting first three appeal Appellant’s Court determined on direct killings part episode were not same criminal as homicide, but rather were County essentially Cumberland occurring different counties and on different independent, four criminal days, generating separate investigations. killings “logically pri- concluded that the were connected We marily by [Ajppellant the fact that committed all four of III, sum, Spotz supra them.” at 1286. In on direct appeal, Appellant’s we held that there was no merit to claim of trial failing court error for to dismiss his County Cumberland charges joinder based on violation of the compulsory provision of Section 110. Id. at 1285-86.
Thus, first claim previously PCRA has been PCRA. See litigated and is not under the cognizable 9543(a)(3) 9544(a)(2). §§ Pa.C.S. Whether Appellant appeal actually the instant to consolidation of referring only his three capital murder trials or to consolidation of all four homicide trials does not alter this The holding. rationale set forth in our on direct holding appeal applies equally to either III, Spotz supra See claim of consolidation.7 at 1285-86. previously We very 7. further note that has raised similar convictions, claims connection with his other murder and we have consistently rejected appeal those claims as well. In direct his of his Gunnet, County first-degree Penny York conviction for the murder Appellant argued that trial his should have been consolidated with his prior voluntary manslaughter two trials for the of his brother and for first-degree Ohlinger, respectively murder of June in Clearfield County Schuylkill County. compulsory joinder Based on the provision § of 18 Pa.C.S. asserted that the trial court by denying quash charges against erred his motion to him. Com *25 498, 1139, (2000) Spotz, monwealth v. 562 Pa. 756 A.2d 1157-59 claim, ”). (“Spotz rejected relying II We this on the same factual legal Compare rationale in the as instant case. id. and Commonwealth 269, 1280, (2000) III’’). Spotz, (“Spotz v. 563 Pa. 759 A.2d 1285-86
47
issue,
Also in Appellant’s first
he asserts that coun
sel was
claims,
ineffective for
to
failing
raise constitutional
grounded
alleged
jeopardy
violations of double
protections
process,
and due
related to
failure to consolidate his
stated,
trials.8 As the United States Supreme Court has
constitutional prohibition
“[t]he
‘double
against
jeopardy’ was
an
designed
protect
subjected
individual from
being
hazards
trial and possible conviction more than once for an
DiFrancesco,
alleged offense----” United States v.
449 U.S.
117, 127,
426,
(1980) (citation
101 S.Ct.
part episode, of the same arguable criminal so there was no merit to Appellant’s underlying claim of error. Id. at 1210. We further noted that our rationale in County the York County and Cumberland cases Schuylkill County instructive to the case. Id. Thus, the instant PCRA constitutes the fourth time that has permutation raised some of the issue of multiple consolidation of his claims, consistently homicide trials. We rejected have concluding these Appellant's killings, four they might however cataloged, be grouped, arranged, part or single were not episode. of a criminal sub-claim, 8. The PCRA court did not address this only but rather made generalized previously litigated. conclusion that Issue 1 had been See Opinion PCRA Court at 25. We reiterate here that a claim of ineffec- tiveness of underlying counsel is distinct from the claim of trial court Collins, 45, (2005) error. Commonwealth v. 585 Pa. 888 A.2d (holding that "a Sixth Amendment claim of ineffectiveness raises a legal ground purposes distinct of state PCRA review under 9544(a)(2) § ... recognize a PCRA [and] court should ineffectiveness claims as distinct issues and review them three-prong under the ineffec- Pierce, tiveness standard announced in v. [Commonwealth 515 Pa. (1987) ]”). Thus, 527 A.2d although Appellant's claim of trial court failing error for previously litigated, to consolidate his trials has been his claim of litigating underlying ineffective assistance of counsel in claim has not. *26 48 for the
tion; multiple punishments against and protection 222, 229, 114 S.Ct. Farley, v. 510 U.S. same offense. Schiro DiFrancesco, (1994) (citation omitted); 47 127 L.Ed.2d omitted). (citation “These protec at 426 supra S.Ct. a defendant that underlying premise from the tions stem offense.” or for the same punished not be twice tried should Schiro, supra. in four days four three people killed
Appellant counties, investiga four criminal homicide generating separate “essentially indepen these appeal, As we held on direct tions. by the fact primarily are connected killings “logically dent” III, Spotz all four of them.” committed [A]ppellant subjected was Appellant The mere fact that A.2d 1285-86. beings of four human independent killing to four trials for the concerns. process nor due implicates jeopardy neither double and, developed argument contrary, has no to Appellant authority supports has cited no surprisingly, not perhaps was not his assertions of constitutional violations. Counsel Appel a meritless issue. All of failing ineffective for to raise first issue are meritless.9 lant’s claims his Right 2. Waiver of to Counsel of the right second issue is focused on his waiver Appellant’s of his trial. was during guilt phase Appellant to counsel Taylor Andrews for represented by public pre-trial defender trial, on during penalty phase of proceedings, however, following colloquy, the trial court appeal; direct represent during motion to himself granted Appellant’s trial. now contends that his guilt phase Appellant of his violation, grounded Appellant alleged 9. has also a third constitutional equal protection prosecution and based on the state's asserts, co-conspirator, without Christina Noland. benefit supporting argument, "similarly that he and Ms. Noland were situat- ed," individuals, although killing he was tried for the of four and she cooperating government conspiracy tried and was a witness at for factually legally, developed been or his trial. This sub-claim has not supported statutory and it is not with citations to relevant decisional or fact, impossible exactly law. In it is to discern what error is unreviewable, alleging it waived for lack here. The sub-claim is development. waiver of the right to counsel was not voluntary, or knowing, intelligent; that he competent was not to waive this right; and that Mr. Andrews was ineffective for failing object to the trial court’s allegedly inadequate colloquy, for declining to present defense, a guilt-phase failing investigate and defense, an develop intoxication for failing to investigate Ap- pellant’s competence counsel, to waive his right to and for failing reveal an alleged conflict of interest related to *27 counsel’s prior representation of Appellant’s brother and first victim, homicide Dustin Spotz. After all the evi- considering presented dence at the PCRA hearing, the PCRA court concluded that Appellant was competent; that his waiver of counsel was voluntary, knowing, and intelligent; and that counsel was not ineffective. See PCRA Court at Opinion 5-9. agree.10 We
A criminal defendant has a constitutional right,
necessarily implied under the Sixth Amendment of the U.S.
Constitution, to self-representation at trial. Faretta v. Cali
fornia,
806,
422
2525,
U.S.
95
(1975).
S.Ct.
inquiry waiving consequences significance counsel and of A.2d Starr, Pa. v. Commonwealth right. that deter- (1995). court must specifically, More 1335-36 the following: mine has the that he or she
(a) the defendant understands that counsel, to have right and the to be right represented indigent; if the defendant counsel appointed free of the the nature (b) understands the defendant of each of the elements the defendant and against charges charges; those range
(c) permissible aware of the that the defendant is charged; the offenses fines for sentences and/or waives (d) that if he or she understands that the defendant by all counsel, will still be bound the defendant right be that counsel would procedure the normal rules of rules; familiar with these
(e) there are possible that the defendant understands of, be aware might that counsel charges to these defenses trial, be they may are not raised and if these defenses *28 and permanently; lost that, to de-
(f) in addition the understands that defendant that, timely if not fenses, many rights the defendant has if occur asserted, and that errors be lost may permanently; raised to, timely otherwise timely objected are not or defendant, may permanently. be lost the these errors Starr, 655; 121(A)(2); supra at supra Blakeney, Pa.R.Crim.P. at 1335. specific requirements our rules set forth
Although distinguish we have been careful to colloquy, for a waiver to designed it was colloquy right between a follows: protect, as device; it not a consti- a is colloquy procedural
A waiver on-the- “right.”.... [A]n tutional end or a constitutional tool whenever colloquy procedural is a useful record issue, or is at constitutional any significant right waiver of trial, otherwise, right waiver of the waiver of a e.g., counsel, witnesses, of the right waiver to call waiver of the witnesses, right to cross-examine waiver of rules-based limits, speedy trial time etc. But the does not colloquy share the same status as the itself. right 686, v. Mallory, Commonwealth 596 Pa. 941 A.2d (2008) the above in the (applying principle context of waiver of trial). the right jury to a clear,
As Mallory made when explicitly petition a er claims ineffective assistance of counsel failure based on a object allegedly to an defective waiver the claim colloquy, must be like analyzed any other ineffectiveness claim. Id. at 698. The petitioner prevail merely cannot by establishing that the colloquy waiver was indeed defective in way. some Rather, that, the petitioner prove must because of counsel’s ineffectiveness, he waived the constitutional issue un right at knowingly or he involuntarily, and that was To prejudiced. prejudice, establish must petitioner demonstrate reason able ineffectiveness, that but probability for counsel’s he would not have waived the issue. right at Id. at In 698-704. considering ineffectiveness, such claim of the court considers the totality record, of the circumstances and the entire not just itself. colloquy Id. at 704.
Here, the record shows that trial court conducted confirmed, alia, a colloquy that inter the following: Appellant himself, wanted to represent at least at the first of his phase trial, selection; including jury Appellant understood his right to represented by be counsel to have free counsel him; appointed for Appellant not under the influence of alcohol, narcotics, or medications would his affect deci sion; threatened, was not pressured, subjected to physical abuse, or psychological promised or to en anything him waive courage counsel; his right to under stood the elements of the with which charged; offenses he was *29 Appellant the knew Commonwealth was death seeking the penalty; knew he be Appellant would bound all by the normal rules of procedure evidence; and Appellant recognized that there se, were certain to dangers proceeding with pro dangers familiar, including possible permanent be counsel would
which that errors understood rights; and Appellant loss of defenses manner could but raised timely trial not occurring during Appellant significance understood the permanently; be lost Notes of to waive counsel. See and of decision consequences re- (“N.T.”) Testimony Hearing, Appellant Waiver 5/2/96. telling the he what court was stated that understood peatedly him, colloquy, at the of the and a written waiver end signed he all of the at 22-23. After accepted. posing which court Id. 121, the trial determined by Rule court questions required voluntarily, intelligently and Appellant knowingly, that was addition, appointed In the court waiving right his to counsel. Andrews, as counsel serving Appellant’s Mr. who had been case, to in the role of and thus familiar with his serve stand-by counsel. that, as court
It is from record the PCRA apparent concluded, colloquy, trial court conducted a thorough safeguards. of the encompassing required questions all merit, contrary to the have no and we Appellant’s assertions to a failing object will not counsel ineffective for to hold Furthermore, thorough, colloquy. Ap- complete, proper circum- way totality fails to address of the pellant any counsel, under surrounding required stances his waiver of as Mallory. does that prejudiced, not establish he was Appellant i.e., right not have his counsel but for he would waived object to colloquy.11 counsel’s failure to next avers that his decision waive counsel was not it necessitated Andrews’s voluntary because was Mr. defense, effectively refusal prepare guilt-phase which Brief at Appellant’s constituted abandonment of his client. 12-15; 5/11/07, at 84. Hearing, specifically, N.T. PCRA More investigate that counsel’s failure to Appellant contends left him choice but to develop an intoxication defense no Brief at 14-15. court proceed pro se. The PCRA circumstances, respect totality With we 11. to the of the note already represented capital at his murder had himself second trial, II, killing Penny County. Spotz for the Gunnet in York See A.2d 1149. *30 claims, rejected these crediting Mr. Andrews’s PCRA hearing testimony, clearly which belied assertion that Appellant’s Mr. Andrews refused to a present defense at the guilt phase addition, trial. Opinion PCRA Court at 6. In the PCRA court held that an intoxication defense was not available to he never Appellant because admitted that he had killed Ms. Amstutz. Id. at 8-9.
The record supports the PCRA court’s conclu sions. At the hearing, PCRA Mr. Andrews testified that he Appellant had advised to plead guilty, Appellant advice that 5/10/07, did not “appreciate! N.T. PCRA Hearing, ].” at 175. Mr. Andrews testified neither that he represent refused to trial, at the Appellant guilt phase of his nor that he declined to present a During trial, defense. the guilt phase of Mr. Andrews stand-by counsel, served as in which capacity he provided Appellant with advice on legal range a of issues. Id. at 175-76. Appellant’s assertion that he had no choice but to represent himself because of abandonment his counsel was supported only by his own self-serving testimony, which was rejected by the court. PCRA The PCRA court’s determina support record, accordingly tion has in the and we will not disturb it.12
With to regard Appellant’s more specific assertion that his waiver of the to right counsel was not voluntary sub-claim, part 12. As another of this asserts that the trial inquired court should have wanting into reason for to waive right his questioning certainly to counsel. Such required is not voluntary, knowing, order to establish that a intelligent. waiver is and fact, disagreement In a proceeding court’s with a defendant’s reason for pro grounds se right. does not constitute for denial of this constitutional Starr, 564, See Commonwealth v. 541 Pa. 664 A.2d 1336-37 (1995) (concluding that a trial permit court erred when it refused to himself, represent defendant partially based on the defendant's provide failure to what adequate the court considered to be an reason counsel). seeking right to waive his constitutional Consideration interests, e.g., by evaluating of a defendant's best his reasons for exercising right self-representation, simply his irrelevant to an right assessment of whether a waiver of the to counsel has been made knowingly, voluntarily, intelligently. may A court not substitute its judgment own knowingly, voluntarily, for that of a defendant who intelligently right waives his to counsel. an develop investigate counsel’s failure to because of defense, is avail we reiterate that such defense intoxication their criminal defendants who admit capital able to those only murder, guilt their degree in the but contest liability intent. See inability requisite of an to formulate because Gibson, 1110,1131-32 Pa. 951 A.2d v. Commonwealth (2008). concluded, never court admit As the PCRA *31 Amstutz, thus an intoxication he killed Ms. and ted that him. at 8. Opinion was not available to PCRA Court defense that counsel’s failure to investi- avers Although Appellant right caused his waiver of the to an intoxication defense gate certainly pursue did not involuntary, Appellant counsel to be Rather, se during pro representation. such defense his any trial, an innocence de- Appellant his maintained throughout fense, to blame consistently attempting and divert repeatedly Amstutz onto others. He has continued for the murder of Ms. that appeal, asserting to in his collateral pursue strategy was the killer. Brief at 28 Charles Carothers See (“[T]he that jury compelling never heard evidence Charles Carothers, admission, his own was the one who killed Ms. .... the was substantial against Amstutz evidence Carothers highly exculpa- ... The confession would have been Carothers Thus, evidence at the even now tory guilt phase....”). still fails to admit that he killed Ms. Amstutz. Appellant There no evidence in the record to absolutely suggest but for ineffectiveness in to investi- alleged failing counsel’s defense, an intoxication would not gate develop Appellant counsel, Appellant have waived his and thus has not right that he was counsel’s fail- prejudiced by alleged established ings. 2,
In next in Issue his sub-claim asserts that he was not to waive the to counsel and competent right that Mr. Andrews was ineffective for failing investigate Brief Appellant’s competency. Appellant’s raise issue of waiver product at 18-19. contends his was disorders, “an specifically, of mental active PTSD-related disorders, which affected thought personality disorder” and rights, his to waive his and thus rendered his waiver capacity
55 the right to counsel not knowing, voluntary, not and not intelligent. Id. at 15-17. After considering all of the evidence at presented the PCRA hearing, including testimony of Mr. Andrews psychiatrists witnesses, called as expert PCRA court found that Appellant competent to represent himself and that his waiver of counsel was knowing, voluntary, and intelligent. PCRA Court Opinion at 8. Once again, PCRA court’s record, conclusion is supported by the as dis- infra, cussed and we will not disturb it.
This Court has previously made clear that “the
competency standard for waiving the
right
counsel is pre
cisely the same as the
trial,
competency standard for standing
and is not a higher
Puksar,
standard.” Commonwealth v.
(2008)
Pa.
Starr,
A.2d
(quoting
important trial, to appellant burden is on and the to stand competent Brown, v. Commonwealth incompetent. that he was prove (2005). 461, 1139, 1156 872 A.2d 582 Pa. that, at the testified Mr. Andrews hearing,
At the PCRA competen- trial, Appellant’s about questions of he had no time rational, questions understood he was lucid and because cy in them, accordingly himself and conducted to responded and 5/11/07, Mr. Andrews at 40-41. Hearing, N.T. court. PCRA Appellant that, proceedings, at one in point also testified instructions, an to one of the court’s objection made an considered, that was not but one objection Mr. Andrews had Furthermore, 1995, at 41. sometime indeed correct. Id. trial, psychologist retained a to Mr. Andrews had prior the psychologist’s Appellant, conduct an assessment purposes, [Ap- “For forensic following: included the findings comprehend respond pellant] certainly competent is,He there- legal related to his situation. complex matters fore, Psy- trial.” Forensic intellectually competent to stand A. by Stephen Ragusea, Assessment of chological Appellant 12/12/95, at 7. assessment dates Psy.D., 11/20/95 testimony as to this issue from offered PCRA Appellant Fox, Jr., M.D., A. and Neil two forensic Robert psychiatrists, Fox, forensic M.D. Dr. who conducted Blumberg, Howard in 2000 and and reviewed Appellant evaluations of record, not capa- “was opined portions litigation his regarding ble of rational decisions making 2/22/07, Blumberg, at 143. Dr. Hearing, trial.” N.T. PCRA and reviewed interviewed three times who materials, the trial and including sentencing background trials, had a of all four somewhat transcripts Dr. was asked on direct Blumberg different When opinion. *33 counsel whether he had by examination PCRA Appellant’s any difficulty understanding “had Appellant determined that ... the courtroom questions surroundings or the “I trial],” Dr. testified as follows: Blumberg the time [of argument. rely competency attempted on Edwards for his cited or Thus, not relevant to this case. the Edwards distinction is any didn’t find evidence that he impaired way, was in that frankly the disorders that he was from at suffering time preclude wouldn’t his able to being represent himself and ask direct questions and do cross[-]examination.” N.T. 1/18/07, PCRA Hearing, at 44-45.
Thus, the rejection PCRA court’s claim of incompetence and related claim of ineffective assistance is strongly supported by record. The psychologist retained by trial, Appellant before as well as one of the psychiatrists retained Appellant for PCRA proceedings, concluded that Appellant was able to stand trial. Mr. Andrews’s own obser- vations of Appellant’s lucidity, rationality, comprehension, and conduct during the proceedings further support Appellant’s capacity to have stood trial. There is no merit to Appellant’s assertion that Mr. Andrews was ineffective for failing to investigate and raise the issue of Appellant’s competency. In addition, we must note that Appellant’s conduct during his self-representation, as revealed through the notes of testimo- ny, any belies notion that legally incompetent to Uderra, stand trial. See 492, Commonwealth v. 580 Pa. (2004) A.2d (rejecting the appellant’s contention that the trial court had erred in failing to order a competency hearing, proffered because the evidence was insufficient to bring his competency into question, particularly light of his extensive assistance in defense, his own including testimony his during the penalty phase). entitled to no relief on this claim.
In the final sub-claim of Issue Appellant alleges that Mr. prior Andrews’s representation Dustin Spotz con an stituted undisclosed conflict of interest because counsel’s duty loyalty to his deceased client precluded counsel from pursuing viable avenues of defense for Appellant. Appellant’s Brief at 17-18. Appellant specifically cites information counsel would have during representation learned his of Dus tin regarding Dustin’s mental illness and propensity for vio lence, including against violence Appellant. Appellant sug gests that his counsel did not develop capacity diminished defense nor present mitigating circumstances based on this
58
Thus,
according
Dustin.
loyalty
of
information because
conflict
alleged
failure to disclose
counsel’s
Appellant,
and not
knowing
not
waiver of counsel
Appellant’s
rendered
Amendment
right
his
and also violated
Sixth
intelligent,
at 18.
Brief
Appellant’s
of trial.
phase
at the penalty
counsel
out,
a
raised
Appellant
has pointed
As the PCRA court
Schuylkill
relief from his
seeking
when
PCRA
similar issue
Opinion
Court
murder conviction. PCRA
County first-degree
Andrews,
V,
part
Mr.
as
6-7;
Similarly, in the instant PCRA of Dustin affected neither prior representation Mr. Andrews’s nor Mr. representation Andrews’s at 7. Opinion himself. Court represent decision to PCRA interest, there was no conflict of The PCRA court concluded and we agree. that, a reiterated to establish conflict recently
We have interest, actively repre- an must show that “counsel appellant interests[,] adversely conflict and the actual conflicting sented Small, v. performance.” affected counsel’s Commonwealth (2009) V, 425, 549, (citing Spotz 563 896 A.2d 602 Pa. 980 A.2d Weiss, Pa. 986 1232); v. see also Commonwealth (2009) that counsel’s (rejecting repre- A.2d the view time as the client’s of a client continues until such sentation who expires, requiring petitioner alleges sentence obligation conflict interest rooted his counsel’s to a client that the adversely former to establish conflict affected Here, performance). counsel’s Appellant has established nei- interests, ther that his counsel represented conflicting nor that alleged adversely conflict performance. affected counsel’s *35 fact, In Appellant’s allegations of a conflict of interest are and vague, entirely speculative, by the evidence contradicted of record. Mr.
At PCRA Andrews as hearing, testified follows: was important [I]t to show Dustin to have been the aggres- sor[,] really guy and the bad in County[,] Clearfield that had assaulted and [Appellant] set this chain events in motion. IAnd was to do so feel in prepared any and didn’t way inhibited from from doing having previously represented so Dustin. 5/10/07,
N.T. PCRA at Hearing, 135. Mr. Andrews also that he “recall testified did not having any informa- privileged from tion Dustin that a presented problem in infor- pursuing case,” mation that was in [Appellant’s] relevant and that he did not think there any was conflict in an pursuing investiga- or handling tion case in any way. Id. at 137. provides contrary, just no evidence to the bald V, assertions and gross speculation. As we concluded in Spotz at supra “the record reveals that Attorney [ ] Andrews zealously advocated of [Appellant] on behalf [was] and unham- by any pered alleged conflict of interest created Attorney prior representation Andrews’[s] of Dustin.” Thus, all of Appellant’s merit, claims of error in 2 lack issue no relief and is warranted. Testimony
3. Exclusion of Witman issue, In Appellant’s third he contends that the trial court in Witman, erred barring testimony of one Thomas Mr. Andrews was ineffective for argue failing favor of the admissibility of this testimony failing and for to raise issue on direct The appeal. background factual to that, indicated at trial admitted follows. Evidence
issue is as murder, man named Charles Amstutz’s of Ms. day on the hotel in the use with drug engaged Carothers also drove credit card and Amstutz’s with Ms. room secured 797-801, 5/13/96, 815- Trial, the hotel. N.T. her car from Witman, custody was in 3, 1996, who Thomas April 820. On crime, police a statement made an unrelated to the Mr. admit overheard Carothers that he had effect rep- Mr. Witman specifically, More of Ms. Amstutz. murder 1995, when July that, May between sometime resented he overheard County had prison, he was the Cumberland inmates, Mr. Carothers two other conversation between as identified Vernon, subsequently named who someone shooting Robinson, admitted in which Mr. Carothers Vernon Witman, dated of Thomas Ms. Amstutz.14 Statement 4/3/96. testimony of Mr. Witman refused to admit The trial court statement, it was determining that regarding Mr. Carothers’s Appellant argues exception applied. no hearsay to which under the hear- was admissible both testimony Mr. Witman’s *36 also pursu- interest and against for a statement say exception forth in v. law as set Chambers ant to federal constitutional L.Ed.2d 297 410 U.S. S.Ct. Mississippi, (1973). and Mr. Robinson both Mr. Witman hearing,
At the PCRA in- however, Carothers, attorney, his testified; through Mr. self-incrimination right against Fifth Amendment voked his 5/10/07, at 62. Mr. Hearing, N.T. PCRA appear. and did not concerning to police that his 1996 statement testified Witman accurate, had at- and that he confession was the overheard regarding office attorney’s contact the district tempted to 66-67, Mr. had an extensive 73-75. Witman matter. Id. represented that Mr. Witman overheard Specifically, the statement 14. say following: going “I to let the white mother am Mr. Carothers head, you in the but fry;" and "I shot the old bitch f-take it—let him he did not Mr. Witman then stated that might as well let him take it.” statement, "head” or not. In his if Mr. Carothers had said remember say Mr. Carothers claimed that he had overheard Mr. Witman also dumped pulled out of the car and Appellant had Ms. Amstutz he and Witman, along of Thomas dated of the road. Statement her the side 4/3/96.
record, including convictions for prior falsi, crimen and he that he acknowledged was with the cooperating police on other crimes of which he had because he knowledge help wanted to Robinson, himself. Id. at 87. Vernon the inmate to whom confessed, Mr. allegedly Carothers testified that he remem- bered a conversation with Mr. Carothers as follows: you Counsel: Do remember what [Mr. Carothers]
Defense said about he why [prison]? was
Mr. Robinson: About him getting high with some guy riding lady around with a in the trunk. say Counsel: Did he whether the lady was alive?
Defense Mr. basically Robinson: He said that she was alive when trunk, they put her in the you know what I’m saying, and later on he said that she was dead.
The Court: Did he say anything more about [Appellant]? Mr. Robinson: Yeah. That much pretty he was going to let him fry for what he had done. I That’s when ended the conversation____ Counsel: At point some did you talk to prison
Defense officials or guards about Mr. being Carothers in your cell? Yes, Mr. Robinson: I did. When we went to dinner and dinner, after we came back from this is when I found out that he telling on [Appellant]. So I went to the guard at the next ... morning time.....[T]he C.O. Durnin moved him out the cell.
Id. at 98-100. Mr. Robinson also testified that he would have *37 testified at if Appellant’s trial Appellant’s counsel had asked
him. Id. at 100-04.
Appellant’s claim of trial court error in Issue 3 is both waived and not cognizable under the PCRA it because could have been raised on direct appeal. 42 See Pa.C.S. 9543(a)(3) 9544(b). §§ and With to the regard ineffective 3, assistance claims Issue court PCRA relied in on part 62 119, v. 579 Pa. Bryant, decision in Commonwealth
this Court’s (2004), 726, to hold that 855 A.2d 736-38 claims of ineffective assistance of raising any from precluded trial because he had elected guilt phase from the of his counsel period. right self-representation during exercise his to at 12-14. The court also con- PCRA Opinion PCRA Court claim ineffective assistance of direct cluded that merit because Mr. Witman’s arguable counsel had no appeal confession was testimony concerning alleged Mr. Carothers’s agree at 14-22. with hearsay. excluded as Id. We properly court, address these conclusions in more detail the PCRA below. California, v. supra,
In Faretta
United States
held that a defendant has a Sixth Amendment
Supreme Court
defense; however, “a
to conduct his own
defendant who
right
himself cannot thereafter
that the
represent
complain
elects to
of his own defense amounted to
denial of ‘effective
quality
”
46,
of counsel.’
Id. at 834 n.
In the instant Appellant represented himself through- out the guilt phase of his trial. As discussed Issue after a thorough colloquy, the trial court that Appellant determined had knowingly, voluntarily, and waived his intelligently right counsel, and, the court him accordingly, permitted to pro- pro trial, ceed se. Throughout guilt phase of his Appellant witnesses, continued to call and question objections, raise counsel; otherwise serve as his own at no point during guilt phase did seek to Appellant withdraw his waiver of the right to counsel or to cease his self-representation. Nonethe- less, Appellant now attempts avoid the application that, Bryant’s bright-line rule arguing respect with to the particular matter of the admissibility of Mr. Witman’s testimo- he ny, permitted However, Mr. Andrews to represent him. record, below, our review of the presented as in detail does not support Appellant’s assertion that he withdrew his waiver of the right to counsel or abandoned his exercise of the right to self-representation at any this or other point during guilt of his trial. phase
When call Appellant sought to Mr. to testify, Witman Appel- Andrews, lant himself—not Mr. standby his counsel—made court, proffer to the in the absence of the Mr. jury, as to Trial, proposed 5/14/96, Witman’s N.T. testimony. at 1222-25. The Witman, court then addressed Mr. whom the sheriff had courtroom, and, to the brought after determining that Mr. Witman to speak wished with counsel before he spoke to the court, secured an attorney for Mr. Witman. Id. at 1225-26. session, counsel, Later the same after his discussion with Mr. again courtroom, Witman was to the brought and the objected Commonwealth to his proposed testimony hearsay. as Id. at 1283. In response, Appellant again, not Mr. himself— argued there had been at trial testimony as to Andrews— involvement Mr. Carothers in the case. The court then asked if Appellant he was to call Mr. going Carothers as certainly “I don’t
witness, himself answered are say or—what his statements say know what he could a discussion off Following me.” Id. at 1284. help nothing Andrews, Appellant Mr. the record between *39 to call Mr. Carothers. going reiterated that he was not himself that it wanted additional Id. at 1285. The court then indicated testimo- proposed the matter of Mr. Witman’s time to consider ny. Id. at 1287. session, that it the court stated day-long
At the end of the admissibility about the ready argument to entertain if he testimony, and the court asked Mr. Witman’s if he would trust Mr. legal argument wanted to make that or conferring After with Mr. Andrews to do so. Id. 1424-25. Andrews, “Mr. following: stated the Andrews said that, that is no to be made. argument has indicated there ... cannot be used unless Carothers would be an Witman following dialogue witness.” Id. at 1425. The unavailable then occurred: Well, ready any argument.
The I am to entertain Court: argument present. There is no [Appellant ]: any You are me that if there is telling argument The Court: yourself? Mr. Andrews will it instead of present, present Is that it? That is fine.
[Appellant ]:
The All right. Court: there argu- But Mr. Andrews indicated is no
[Appellant ]: some, fine, if I he can make you guess ment. So find is it.
The I am at the whole issue. looking Court: Mr. I think has said that he [Appellant] Andrews: would agree to me to this. speaking Yeah, [Appellant is fine. ]: I don’t think —I hate to for the speak Mr. Andrews: cases, Attorney, exchanged District but we have or at least cases, they me their are the same cases they given have disagreement I I don’t think there is a with the law. had. if Mr. only This statement could be admitted Carothers unavailable, were unavailable. If he is then there ais decision the Court to make as to whether that renders the statement admissible. Well, think,
The Court: I for openers, you have to call Carothers. him a
[Appellant ]: Call as witness? The Court: Yes. Because ... he is available and can be brought up here to testify. that,
Mr. Andrews: In the absence I think what [Appel- accurate, is I saying lant] don’t think there is an argu- ment, disagreement, a divergent point of view between the two tables.
[*] Hi [*] The Court: At this point, you haven’t done what I feel has to be done get this statement in. I
[Appellant will. ]:
The Court: So at this point—
[Appellant I will. ]: The you should it know is not in. That going could Court:— but change, on the depends circumstances. All right. This of the part record is closed.
Id. at 1425-29.
Immediately following discussion, the above the court ad- journed for the day. During proceedings the next morning, Appellant requested a break in order to with speak Mr. Carothers before him calling as a witness. jury The courtroom, escorted from the and the following discussion transpired:
The you Court: Did have something you wanted to Mr. say, Andrews? who is running Or the show? down,
Mr. Andrews: I am going to sit Your Honor. .... The Court: Did you [Appellant] want to say something to me now?
[Appellant just I ask for a few my ]: minutes to talk to next witness before—I never talked to him. He was originally Commonwealth witness. to wants Oh, understand that Carothers you
The Court: saying? are you, you is that what speak to Yes, sir. [Appellant ]: you courtroom? Would Is Mr. Carothers
The Court: speak [Appel- You want to you? I can see up stand so lant]? (Shook negatively.) head
Mr. Carothers: He his head no. The Court: shakes she told law clerk ask him-—and I had the [Appellant]: said yes. to me. And she willing speak he was me-—if he his mind. guess changed I ask. I now why That is You are Mr. up again, Stand Carothers. The Court: Carothers? Charles (Nodded affirmatively.)
Mr. Carothers: answer? you The Court: Can Yeah. Mr. Carothers: speak [Appellant]? Do want to you
The Court: me or something. If he needs to talk to Mr. Carothers: Pardon me? The Court: me, to talk to I guess.
Mr. If he needs Carothers: him? youDo want to talk to The Court: If he needs to talk to me. Mr. Carothers: me a or a no? you give yes The Court: Can Mr. No. Carothers:
The Court: What?
Mr. No. Carothers: your
The No. Is that answer? Court: *41 Mr. Yeah. Carothers: here, Now, we going All where else are right.
The Court: [Appellant]? him. He if I I had asked to to said
[Appellant]: speak him, me. He has no need speak want to to he will to speak him. And he speak to me unless I have need to to speak to him I want a chance to he will talk to me if I want to. said to him. speak Carothers,
The Court: Mr. Okay. come on up. Trial, 5/15/96,
N.T. at 1501-03. The sheriff then escorted Appellant and Mr. from Carothers the courtroom to allow Appellant the opportunity consult Carothers, with Mr. and the court was in approxi- recess for mately one-half hour. Id. at 1504. When all the parties were courtroom, back in the the following dialogue took place: The Court: .... business, Where are we on this [Appel- lant]?
[Appellant only The left thing ]: is to read in the transcripts of the witnesses that invoked their Fifth Amendment right, and the stipulation of Trooper Lander’s-—(cid:127) The Court: You have had your to talk opportunity Carothers, you him, are not calling is that it? No,
[Appellant I will let it go. ]: The All Court: Then right. bring down, the jury and let’s get pieces these of evidence read.
Id. at 1504.
The above excerpts of the notes of testimony make clear that Appellant did not withdraw his waiver of the right to counsel change or his mind about exercising right his self-representation,' but rather direct, continued to prepare, defense, and present his own including developing his own strategy, witness, interviewing the whether deciding or not Therefore, to call the witness. Appellant’s claim of inef fective assistance of counsel during guilt phase of his trial is precluded by the categorical rule promulgated by this Court in Bryant.
inAlso Issue Appellant contends that Mr. Andrews was ineffective for not on claiming direct that the appeal trial court had erred denying admission of Mr. Witman’s testi mony as hearsay. Appellant argues that Mr. Witman’s testi mony admissible under the hearsay exception for a state interest, ment against which reads as follows: *42 statements, as (b) following The Hearsay Exceptions. if hearsay rule defined, by excluded are not hereinafter a witness: is unavailable as the declarant [*] [*] [*] was at A statement which (3) interest. against Statement contrary far to declarant’s making its so the time of interest, far tended to sub- or so proprietary or pecuniary to render liability, criminal or to civil or ject the declarant another, against the declarant a claim invalid have would not position in the declarant’s person reasonable true. In a believing it to be the statement unless made the declarant case, tending expose to criminal a statement corroborating unless liability criminal is not admissible of the the trustworthiness clearly indicate circumstances statement. 804(b)(3).
Pa.R.E. text, hearsay unmistakably excep- its clear Notably, by interest, be against that the statement requires only tion not clearly circumstances corroborating there be but also trustworthiness, be and that the declarant indicative of its case, trial court did not reach In the instant unavailable. in question of the statement the issue of the trustworthiness case, i.e., Carothers, Mr. the declarant in the instant because fact, Trial, 5/14/96, In at 1427. was not unavailable. See N.T. testimony, of notes of on excerpts in the presented supra as trial, physically present Mr. was day the last Carothers calling Mr. actively contemplated the courtroom. Appellant but, witness, after with conferring privately as a Carothers Carothers, that he not going told the court Mr. to the witness stand. The trial court to call Mr. Carothers unavailable, was not concluded that Mr. Carothers correctly refusing apply hearsay err in accordingly, did not interest Mr. Witman’s against statement exception claim of underlying Because testimony. proffered merit, appeal his claim of direct trial court error has no failing alleged counsel ineffectiveness for to raise the claim of trial court error must fail.15 also contends that counsel should have appellate *43 that the exclusion of Mr.
argued
proffered testimony
Witman’s
unconstitutional,
based on
v.
410
Mississippi,
Chambers
(1973).
284,
1038,
In
during
appellant’s
the
murder
he had
sought to introduce
from three
that an
testimony
persons
McDonald,
acquaintance, one Gable
had confessed to them
that he had committed the murder. The trial court refused to
testimony,
admit this
that it was
Id. at
determining
hearsay.
298-99,
However,
1038.
Supreme
S.Ct.
the U.S.
Court
rejected
concluded that the testimony
by the trial court “bore
persuasive assurances of trustworthiness and thus was well
within the basic rationale of the exception for declarations
302,
against interest.” Id. at
Appellant attempts rely general Chambers, him relief in the provide but it does not instant little, any, because the circumstances of Chambers bear if case resemblance to his own circumstances. None of the assur- in concerning ances of trustworthiness McDonald’s confession alleged Carothers’s confession present Chambers jailhouse instant case. Mr. confession was alleged Carothers’s individual, inmate; other who was another it overheard one office; it signed was not sworn and counsel’s and was not three repeated verbally acquaintances. *44 addition,
In it be that the high must noted Court’s judgment reversal of the of sentence in appellant’s Chambers solely was not based on the trial court’s exclusion of certain Rather, hearsay. evidence as it was the concurrent application evidence, only hearsay of two state rules of not rule but rule,16 also the voucher that had deprived appellant due process and rendered his trial unfair:
In we new reaching judgment, establish no principles constitutional law. Nor does our diminu- holding signal any in the respect traditionally tion accorded to the States in the establishment and their implementation of own criminal Rather, trial rules and we hold procedures. quite simply under facts and circumstances of this case the rulings of the trial court deprived appellant] [the Chambers of a fair trial. 302-03,
Id. at
In the final part Issue asserts that the evidence, Commonwealth exculpatory withheld in violation of 83, Brady 1194, 10 v. Maryland, 373 U.S. 83 S.Ct. L.Ed.2d (1963), another, Mr. concerning Carothers’s involvement in earlier, unrelated murder more than years two for which he had not been prosecuted.17 Appellant’s assertion is frivolous. law,
Under Brady and decisional subsequent prosecutor has an obligation to disclose all exculpatory infor mation accused, material to the guilt or of an punishment See, including evidence of an impeachment nature. e.g., Com 455, monwealth v. Strong, 1167, 563 Pa. 761 A.2d 1171 & n. 5 (2000). violation, To establish an Brady must appellant prove three elements:
[1] the evidence [at issue] was favorable to the accused, either because it is or exculpatory because it impeaches; [2] the evidence was suppressed by prosecution, either willfully or inadvertently; and [3] prejudice ensued. Lambert,
Commonwealth v. 584 Pa. 884 A.2d (2005) (citation omitted).
The evidence at issue must have been “material *45 evidence that the deprived defendant of a fair trial.” Com Johnson, 283, (2002). v. 563, monwealth 572 Pa. 815 A.2d 573 alleges 17. Brady also that the by Commonwealth violated withholding reliability evidence of Mr. prior cooperation Witman’s and with the Commonwealth as an informant. We see no indication that court, presented this issue was PCRA and has failed to any portion direct tous of the record that would show otherwise. Therefore, 302(a) ("Issues this issue has been waived. Pa.R.A.P. not raised the lower court are waived and cannot be raised for the first appeal.”) time on We opinion also fail to see how the Commonwealth's of Mr. Witman's material, reliability Brady can be not least because it is neither material exculpatory. nor
72 material, constitutional error re- is
“Favorable evidence
if
there is
by
government,
sults from its suppression
that,
been disclosed to
had the evidence
probability
reasonable
defense,
would have been
proceeding
the result of the
sufficient
probability
A reasonable
probability
different.
Id. (quoting Kyles
confidence in the outcome.”
to undermine
419, 433,
1555,
115
The burden rests with the to “prove, record, sup reference to the that evidence was withheld or Porter, pressed by prosecution.” Commonwealth v. 556 (1999). 301, 890, Pa. 728 A.2d There is no violation Brady or, when the knew with reasonable appellant diligence, could question, have uncovered the evidence in or when the evidence non-governmental was available the defense from sources. Lambert, 856; 47, v. Pa. supra Paddy, Commonwealth (2002). 800 A.2d
Here, Appellant contends that the Commonwealth withheld that, evidence more than two before Ms. Amstutz’s years murder, in, Mr. but never implicated charged Carothers with, the murder of one Another Thompson. Samuel individu- al, Devenshire, Phillip Thompson’s was convicted of Mr. mur- at Mr. although der three witnesses Devenshire’s trial, himself, testified Mr. including defendant Car- nearly others was the shooter. Mr. Devenshire was convicted trial, no years Appellant provides three before way Mr. was in related Thompson’s any evidence that murder *46 Nonetheless, to Ms. Amstutz’s murder. Appellant asserts that the evidence Mr. implicating Carothers Mr. Thomp- son’s murder probative to show Mr. Carothers’s motive intent, well as as his violent propensities, his including propensity to commit the murder of Ms. Amstutz. Appellant’s Brief at 24-25. Remarkably, Appellant further asserts the as following to the significance the evidence implicating Mr. Carothers in Mr. Thompson’s murder: suppressed “[T]he evidence was clearly exculpatory and highly material. The prior murder accusations showed Carothers was the likely shooter.” Id. at 26.
The PCRA court did not address the above allegations as a However, Brady issue. court PCRA did find Appellant’s suggestion that evidence as to Mr. Thompson’s murder could have been admissible at Appellant’s trial for the murder of Ms. Amstutz to be “totally without legal merit.” Supplemen- tal Opinion Pursuant to Pa.R.A.P. Court, 1925 of the PCRA 8/7/08, dated at 8.
We conclude that none of Appellant’s allegations has any law, basis in fact or in and his assertion of a Brady First, violation is frivolous. the involvement of Mr. Carothers in the murder of Mr. Thompson is a matter of pure conjecture. Mr. for, Carothers was not with, arrested not charged not for, tried not convicted of the Thompson murder. The “evi dence” that Mr. Carothers killed Mr. Thompson consists of some testimony presented at the trial of Mr. Devenshire. witnesses, Three one of whom was Mr. himself, Devenshire testified that Mr. shooter, Carothers was the but the jury must have concluded that credible, the testimony was not as it Mr. found Devenshire of the guilty first-degree murder of Mr. Second, Thompson. regardless of whether Mr. Carothers participated murder, Mr. Thompson’s it is simply unfound ed, improper, and indeed outlandish to suggest, as Appellant does, that because Mr. Carothers murder, committed one he must also have second, committed a unrelated murder years later. There literally no way that the evidence implicating Mr. Carothers in the murder of Mr. could Thompson possibly be exculpatory the murder of Ms. Amstutz. how the Commonwealth suggest fails to
Finally, Appellant *47 otherwise, testimony present- withheld, or willfully could have 3, like claim in Issue Brady Appellant’s trial. public ed in a meritless, issue, entirely in this is claims presented the other to no relief.18 is entitled Appellant Closing Ar- during Phase Guilt Misconduct 4. Prosecutor gument made 4, that several comments argues Appellant
In Issue closing argument the during guilt phase by prosecutor the and, accord- impartiality jury’s objectivity the destroyed also as- Appellant of a fair trial. Appellant ingly, deprived counsel, Andrews, was stand-by in role as that Mr. his serts comments, nor advis- these objecting for neither to ineffective time, to pro during who was se acting ing Appellant, ineffective that counsel was Finally, asserts object. Appellant See appeal. the comments on direct failing challenge Brief at 28-31. Appellant’s claims of Appellant’s
The
court held that all of
PCRA
he
not
were waived because
did
misconduct
prosecutorial
improper
the
objection
allegedly
contemporaneous
make
addition,
court held that no ineffec
In
the PCRA
comments.
the
guilt phase
of counsel claim derived from
tive assistance
because he had chosen
Appellant,
trial was available to
the proceedings.
that
during
portion
himself
represent
726,
A.2d at
Bryant,
at 22-23
855
Opinion
(citing
Court
PCRA
13).
II,
with these
737;
agree
A.2d at 522 n.
We
Fletcher
court.
conclusions of
PCRA
claim to his
an ineffective assistance of counsel
18.
tacks on
claim, asserting only
performance
deficient
Brady
that counsel’s
was
despite
evidence
that
could have obtained this
"to the extent
counsel
Appellant’s
26. As we have
prosecution’s suppression.”
Brief at
text, supra, any
assistance of
claims of ineffective
discussed
during
guilt phase
precluded
Commonwealth
of trial are
counsel
119,
726,
(2004),
because
Bryant, 579 Pa.
855 A.2d
736-38
v.
Furthermore,
underlying Brady
acting
pro
because
se.
frivolous,
any
arguable merit to
ineffectiveness
there can be no
claim is
material,
alleged Brady
grounded in
failure to seek
claim
counsel’s
appeal.
at trial or on direct
whether
For the same
3,
reasons as we
discussed
Issue Appellant
precluded
from
raising
claim of ineffective assistance of
trial counsel arising from the guilt phase of
trial.
his
See text
supra (discussing Bryant Fletcher
the context of Issue
3);
III,
(“The
see also Fletcher
A similar issue has been raised before this Court on several occasions. In 493, Commonwealth v. 585 Duffey, Pa. 889 A.2d 56, (2005), 64 we refused grant to relief on a claim of appellate counsel ineffectiveness for failing to raise a waived claim of trial court error under the relaxed waiver doctrine, noting that this doctrine was discretionary, and thus there was no guaran- tee that we would have reviewed the III, issue. In Fletcher 775, 779, 986 A.2d we declined to allow an appellant to invoke the relaxed waiver doctrine to obtain review of several issues he had waived during period pro se representation. To allow an appellant to obtain review under relaxed waiver of completely would litigant se pro he as waived
an issue and Fletcher Bryant of this Court holdings undermine Williams, Pa. v. However, in II. Commonwealth was counsel (2007), appeal held that direct we A.2d 24-26 review waiver to secure invoke relaxed failing ineffective of a actual innocence appellant’s implicated of a claim that recognized 25-26. Id. at We charge. racketeering in deter- this Court Williams, faced difficulty supra, a particular have reviewed that we would the likelihood mining collateral are faced with when we under relaxed waiver claim failing ineffective in counsel appeal claims that direct Id. at 25. relaxed waiver. invoke in the however, difficulty concluding no have, We Appel accepted any not have that we would instant case for review misconduct prosecutorial claims of lant’s waived of Appellant’s None the relaxed waiver doctrine. under innocence; indeed, are the claims actual implicates claims reading or reasonable any logical reflect trivial, they as do not comments challenged The comments. prosecutor’s of the as follows. are closing argument the prosecutors from Ap- First, demeaned prosecutor asserts that and to self-representation a defense rights present pellants comment: following with the controlling individual. extremely is an [Appellant]
Because you in front of and show to come in here And he wanted and how he is, things, how he can control how smart he women, fool you. and then manipulates *49 in 5/15/96, Appel- Trial, (Closing Argument) (quoted at 94 N.T. 24). n. lant’s Brief at 28 & the
Second, prosecutor improperly asserts that Appellant the victim to duty society had a to jurors that the argued him, following excerpt: the upon based apparently convict being are just you to be fair. When you The on now is duty of this him, people to be fair to the you got to also have fair state, Amstutz. Betty and to 29). (cited Brief at in Appellant’s Id. at 91 Third, prosecutor improperly that the asserts only identity to that it needed decide jury to the opined crime, and not the other elements of the perpetrator, following based on the comments: apparently Betty First murder has four elements. Amstutz is degree has to that. And I don’t prove dead. The Commonwealth think about it. that any Secondly, there is doubt Third, killing one killed her. that that defendant is the who heart, was with malice. That means that hardness And, that it done with the cruelty, disposition. finally, was you, intent to kill. I submit to whoever did this to a specific specific old woman had malice and intent. So seventy year thing. guy pulling we are down to one Is that was the trigger? in particular
You have some tools to use got special case. Because I have to show that are state of mind. things
[*] [*] [*] I have in got proof prove the burden of this case. Got to each and one of those four elements a reason- every beyond able doubt. (cited 29-30).
Id. at Brief at Appellant’s Fourth, asserts that the prosecutor improperly judge required give commented that the instructions as murder, and third-degree following: second- based on the are murder in the first You are charging degree. going We Judge to hear the instructions required give you [sic] about third I degree degree murder and second murder. say degree will that those are lesser crimes of first murder. (cited 30). Id. at 91 Brief at Appellant’s that, There if question appellate is no counsel had invoked attempt relaxed waiver doctrine an to obtain review of comments, the above we would have declined to such grant prosecutorial review. assertions of misconduct are text of the unquestionably plain refuted and belied prosecutor’s presenting any significant comments. Far from innocence, constitutional issues or actual implicating Appel- frivolous, just lant’s claims are not the context of the ignoring *50 comments, plain meaning. Appellant but the obvious is not of his in Issue 4.19 any entitled to relief on claims challenging above-quoted 19. In addition to four comments from prosecutor's guilt phase closing argument, Appellant challenges also aspect prosecutor's Stephen one of the cross-examination of Dr. Antho- ny Ragusea, psychologist Appellant's a clinical who testified on behalf penalty phase. in the examination, Ragusea During opined Dr. direct has Phase, throughout Penalty made bad decisions 5/17/96, his lifetime. N.T. example poor decision-making, Appellant’s As an 1885. trial, Ragusea represent Dr. cited decision to himself at as follows: decision, them, is, The most recent bad not as terrible as some of course, trial, pretty representing preposterous himself at which ais thing to do. Id. at 1885-86 cross-examination, Subsequently, prosecutor questioned on Dr. Ragusea interpretation significance Appellant’s as to his of the self- representation: you things you And talk Prosecutor: about some of these about [sic] indicate, well, gee, pretty preposterous represent it is that he would Now, average intelligence, right? himself. he is of Ragusea: Dr. Yes. you lawyer, Prosecutor: First case were at he had a correct? Ragusea: Dr. Yes. Prosecutor: He didn't win? Ragusea: Dr. That is correct. Now, Okay. suppose you put Prosecutor: in a few other that I factors pose you average intelligence, through to of an [sic] who has been system, represents who now sees that if he himself he can have a lot prison, jury more visitors in he can be in of the front and talk and else, question everything testify, subject but not have to or be to cross-examination, in, you pretty if add those factors could be a decision, smart couldn’t it? Ragusea: Dr. I don't think. Prosecutor: No? Ragusea: you represent yourself Dr. I don't think would in this case. your I represent don’t think assistant would himself this case. I Judge you enough don't think the would. I think would all be wise clearly enough and think put to know that it is better to it in someone else's hands. (emphasis Id. at phrase 1889-90 added to indicate the cited and relied 29). upon by Appellant; Appellant's see Brief at phrase challenged by This is the context in which the eleven-word words, context, Appellant appears. Based on those eleven taken out of penalty phase failing asserts that counsel was ineffective for object [Appellant’s] right present because the words "demeaned defense, right self-representation, privilege against his and his self- incrimination,” Fifth, Sixth, implicating Eighth, his and Fourteenth rights. Appellant’s Amendment Brief at 29. *51 Jury 5. Instruction as to Intent 5, challenges following portion
In Issue the of the Appellant instruction, jury guilt trial court’s delivered at the close of the you “If believe that the defendant used a phase: intentionally deadly on a vital of the victim’s weapon part body, you may that as an item of circumstantial regard evidence from which choose, if you may, you infer that the the defendant had Trial, 5/15/96, intent to kill.” N.T. specific at 1562. Appellant asserts that this instruction diminished the Commonwealth’s burden of proof thereby process violated due because it “did not the require jury to find that intended to [Appellant] We see no that indication this issue was raised before the PCRA court. petition supplemental It is not included in peti- PCRA or questions appeal tions or even in his statement of on to this Court. The comprehensive PCRA court opinions. does not address the issue in its any provide has failed to citation to the record where this 302(a). is issue raised. The issue is waived. See Pa.R.A.P. Further, entirely Ragusea, the issue is meritless. Dr. a wit- defense initially Ap- ness—not a Commonwealth raised the matter of witness— pellant's represent example choice to himself as an of his bad decision- cross-examination, making. On the Commonwealth was entitled to question Ragusea concerning interpretation significance Dr. his of the Appellant's represent of to decision himself and to offer an alternative view, i.e., Appellant, represented previous who had himself in a experience judicial system, trial and thus had with the had made an strategic Although informed and decision. the Fifth Amendment af- self-incrimination, protection against compulsory fords "where as in prosecutor's opportunity this case the reference to the defendant’s counsel, testify response a fair is to a claim made defendant or his privilege.” we think there is no violation of the United v. States
Robinson,
25, 32,
864,
(1988);
485 U.S.
108 S.Ct.
aim the
further
Brief at
(emphasis
original).
lant’s
failing
ineffective for
to raise this
asserts that counsel was
appeal.
or on direct
post-verdict briefing
issue
that,
acknowledge
throughout
fails to
Appellant again
himself,
thus,
trial,
represented
he
as
guilt phase
no claim of
supra,
we have discussed
Issues 3 and
during
guilt phase
ineffective assistance of trial counsel
to him.
6. Prior Criminal Acts Evidence and
Instruction
6,
In
Appellant argues
Issue
that the admission of
Clearfield, Schuyl
evidence related to his other homicides in
kill, and York counties without an
“appropriate”
“immedi
Sixth,
cautionary
ate”
instruction
Eighth,
violated
Appellant’s
Fourteenth Amendments.
Brief at 32.
direct
On
However,
20. This issue is waived.
text
we cannot
See
fail to
infra.
Appellant’s underlying
directly
note that
contention
with
conflicts
stated,
inquiry
law in
we have
this Commonwealth. As
"the critical
deadly weapon
part
body,
use of
on a vital
of the
not
aiming
weapon
part
body.”
intentional
of the
at a vital
of the
Common-
698,
586,
(2007)
Washington,
(emphasis
v.
wealth
592 Pa.
927 A.2d
original).
appears
asserting
21.
also
to be
some version of relaxed
following
waiver with the
sentence in Issue 5: "Nor was this constitu-
preserve
tional error waived
virtue of the failure to
it at trial.
Freeman,
Appellant's
827 A.2d at
Brief at
400.”
32. We stress that this
entirety
Appellant's argument against
one sentence is the
waiver of
reasoned,
developed,
this issue. This one sentence does not constitute a
supported,
intelligible argument.
or even
The matter is waived for lack
development.
appeal, this Court held that the trial court did not err with
respect to the timing or content of the limiting instruction as
III,
to other crimes evidence. Spotz
However, as
6,
another sub-claim in
Issue
further asserts that direct appeal counsel was ineffective in
the manner in which he challenged the jury instruction. More
specifically,
Appellant argues
appeal
direct
counsel was
ineffective because he failed to raise a violation of Appellant’s
state and federal constitutional rights, but rather
only
relied
upon state decisional law. This is a distinct claim and one that
has not been previously litigated. See Commonwealth v.
Collins,
45,
(2005)
585 Pa.
888 A.2d
(holding that “a
Sixth Amendment claim of ineffectiveness raises a distinct
legal ground for
purposes
state PCRA review under
9544(a)(2)
§
...
[and] PCRA court should recognize ineffec
tiveness claims as distinct issues and review them under the
three-prong ineffectiveness standard announced in [Common
Pierce,
(1987)
wealth v.
]”).
515 Pa.
82 claim Appellant’s behalf. on argument Appellant’s an
divine in Issue 6 is counsel appeal of direct of ineffective assistance Steele, v. Commonwealth development. for lack of See waived (2008) when an 786, 341, (stating A.2d 797 Pa. ineffective- of the prongs forth all three fails “to set appellant them, he is not entitled discuss meaningfully and [to] ness test for claims waived relief, constrained to find such and we are development”). lack of
PENALTY ISSUES PHASE Mitigating Fac- Jury Aggravating on and 7. Instruction Affecting “Terribleness” tors as i.e., 7-10, issues, are related to next four Issues Appellant’s circum- and aggravating mitigating of the aspects various during penalty phase or not presented, presented, stances challenges one trial. In Issue Appellant’s of explain- jury generally of the trial court’s instruction sentence circumstances. ing concept aggravating mitigating and or killing are about [Aggravating things circumstances murder —which make a degree the killer which make first deserving of the first murder case more terrible degree things while circumstances are those penalty; mitigating deserving which make the case less terrible and less death. (cited 5/15/96, Phase, at Brief Appellant’s
N.T. Penalty 73) added). at (emphasis “ ‘terri- that this instruction’s focus on
Appellant contends based arbitrary an sentence produced capricious bleness’ the ‘less terrible’ in- upon passion prejudice [and that] consideration of substantively impaired jury’s struction Brief at 73. fur- evidence.” mitigating to the agreeing that counsel was ineffective for ther asserts failing to raise the above instruction and portion 74. matter on direct Id. at appeal. challenged out that the instruction points
The court PCRA was, Pennsylvania trial of a part the time of
83 suggested standard criminal jury instruction.22 PCRA Court Opinion at 57. Appellant acknowledges that this Court has repeatedly rejected instruction, challenges to this and he is presenting it “to it preserve for future review.” Brief at 74. notes, has,
As Appellant correctly indeed, this Court consis tently rejected challenges inclusion of the concept of “terri bleness” the instruction regarding aggravating mitigat and ing circumstances. See Commonwealth v. 592 Washington, 698, (2007) 586, Pa. 927 A.2d 613-14 (rejecting appellant’s assertion that the instruction improperly restricted the weight afforded mitigating factors that did not affect the “terrible offense); ness” of the Marinelli, Commonwealth v. 589 Pa. 682, (2006) 672, 910 A.2d 687 (Opinion Announcing the Judg Court) ment of the (rejecting appellant’s assertion that the “ description circumstances as ‘more terrible or less terri ble’ diverted the focus of the jury’s life or death deliberation from a reasoned determination as to the personal defendant’s to an culpability amorphous unguided consideration of was”); how ‘terrible’ ‘the Johnson, case’ Commonwealth v. 572 (2002) 283, 563, Pa. 815 A.2d 588 (concluding that the instruc tions “merely expressed to the jury, laymen’s terms, the purpose for the distinction between aggravating and mitigat ing circumstances in a capital penalty phase”); Common Hawkins, 310, wealth v. 292, (2001) 567 Pa. 787 A.2d (concluding that a jury instruction defining aggravating and circumstances, mitigating respectively, as that make “things first degree murder cases either more or less terrible” was not or amorphous unguided because instructions must be read in their entirety and because the court gave also detailed instruc tions as to each aggravating and mitigating circumstance); Saranchak, Commonwealth v. 544 Pa. 675 A.2d 276- (1996) (holding jury instruction proper that defined aggravating circumstances, and mitigating respectively, as “things make a first degree murder case more or less 22. The PCRA court further indicates that the instruction was modified in 2005 to eliminate of the purposes use word "terrible” clarity accuracy, prejudicial also out of fear of the nature of this term. Opinion PCRA Court at 57. *55 in conformity was
terrible,” the instruction noting and Jury Standard Criminal Suggested Pennsylvania with the Instructions). Appel- ample precedent, Based on Court’s are meritless. claims in this issue lant’s Aggravating Factors as 8. Prior Homicide Convictions that, his 8, prior asserts because In Appellant Issue Clearfield, convictions, and York Schuylkill, in homicide three “invalid,” were counties, they improperly were respectively, of the aggra as evidence during penalty phase the introduced 9711(d)(9) § and in 42 circumstances set forth Pa.C.S. vating i.e., felony (d)(ll), history of violent significant respectively, Appel another murder.23 convictions, conviction of prior that counsel further asserts Appellant lant’s Brief at 9-12. of the admissibility the failing challenge ineffective in was trial or on direct phase of during penalty convictions prior for Appellant’s Id. at 12. There is no basis legal appeal. claim.24 that the term “convic expressly
This
has
held
Court
in
when used
the context of
guilty”
tion” means
“found
simply
42
set
forth in
Pa.C.S.
circumstances
aggravating
Morales,
51,
v.
9711(d).
Pa.
494 A.2d
Commonwealth
508
§
County voluntary manslaughter
aggravat-
Appellant's
23.
Clearfield
pursuant
were introduced
to subsection
ed assault convictions
9711(d)(9),
history
felony
Appel-
significant
convictions.
of violent
first-degree
Schuylkill and York Counties
murder convictions in
lant’s
l(d)(l 1),
pursuant
to subsection 971
conviction of
were introduced
murder,
prior
at the time of the
which was committed
to or
another
5/16/96,
1635-36, 1639,
Phase,
Penalty
at
1641—
offense at issue. N.T.
42;
154-55,
5/17/96,
(Closing Argument).
158
claim, invoking only
acknowledges,
Appellant
24.
he raised a similar
As
conviction,
voluntary manslaughter
prior
County
in his
Clearfield
his
V,
Spotz
Schuylkill County
appeal of his
murder conviction.
collateral
manslaughter
Appellant’s voluntary
We held that
Ohlinger,
Schuylkill County,
Penny
York
County,
and this Court affirmed
judgment
I,
593;
sentence of death in each
Spotz
case. See
716 A.2d at
II,
Spotz
eighth entirely issue is in merit. lacking Burglary 9. Aggravating Convictions as an Factor 9, In Issue that Appellant claims his three prior burglary convictions were improperly admitted as evidence to support the aggravating significant circumstance of “a history felony convictions involving use or threat of violence to the 9711(d)(9). person.” that, § 42 Pa.C.S. reasons “nonviolent,” because burglaries his were they could not be used to establish this aggravating circumstance. Additionally, Appellant asserts that counsel was ineffective for stipulating convictions, to the burglary rather than moving limine to bar their introduction aggravating as an circumstance. Appel- 75-79; Phase, 5/16/96, lant’s Brief Penalty at N.T. at 1629-33. As the recognized claim, PCRA court this denying Appel- lant raised the same issue in his collateral appeal of his
86 conviction, murder
Schuylkill County first-degree precedent defining his based on our rejected arguments Court V, A.2d at 1240-41. Spotz as a crime of violence. 896 burglary Rolan, cases, v. Commonwealth precedential In one of those 1, 553, (1988), that “burglary 549 A.2d 559 we stated 520 Pa. and continues to be viewed as a crime always has been to the Accord- person.” the use or threat of violence involving convictions prior burglary we held that defendant’s ingly, history as evidence of a properly significant had been admitted 9711(d)(9). to subsection felony pursuant of violent convictions 322, Bracey, In v. 541 Pa. Id. 558-59. Commonwealth (1995), Rolan, 1062, we supra, A.2d 1075 n. 15 cited failing counsel was not ineffective in proposition “[t]rial [ ] object to the accurate instruction of the trial court that the burglary crime of is a crime of violence as a matter of law.” Small, Pa. recently, More Commonwealth v. (2009), A.2d 576-77 we reiterated that is a crime burglary violence, in the element non-privileged entry which rejected dangerous outright invites resistance. We the Small that, specific appellant’s burglaries contention because his did violence, not could not they satisfy involve be used 9711(d)(9) subsection factor. aggravating Small, Rolan, Bracey, Based on as well as Spotz V, we hold that the trial court did not err in presuming *57 is se a crime of violence for of burglary per purposes subsec 9711(d)(9). arguable tion Because there is no merit to Appel error, underlying lant’s claim of trial court his derivative claim of trial counsel ineffective assistance is entirely lacking merit.25,26 Appellant burglaries “unoccupied
25. insists that because his involved cabins,” they "self-evidently Appellant’s vacation were non-violent.” 109, view, support Appellant attempts rely n. Brief at 78 79. To 9714, Assembly § on 42 Pa.C.S. in which the General determined that burglary purposes Pennsylvania's a crime is of violence for of two- sentencing only person present strikes law if a is at the time of the offense. reliance on Section 9714 him affords no relief. Assembly burglary The General has indeed deemed as a crime of purposes mandatory punishment violence for of two and three strikes only burglary adapted overnight when is "of a structure for accom- any person present.” modation in which at the time of the offense is 9, Also Issue contends that his penalty phase failing object counsel was ineffective for to the following allegedly misleading by prosecutor, statement which the use or threat of violence suggested during Appel lant’s commission of the burglaries:
The second [aggravating significant history is circumstance] of felony convictions.... But we went all of these. through convictions, Two Franklin robbery here, County; one here; conspiracy robbery to commit three that is burglaries, crime, breaking into someone’s house to commit another or to commit dwelling place another crime. That is a signifi- cant history.
The will tell Judge you those crimes are felonies. And just felonies, it is not a record of it significant history is of felony what, involving, convictions the use or threat of force. That you means take one gun] these when are you [a it, doing you where are doing something violent. And they talk about burglary being type brings case that you into with other human beings. conflict Phase, 5/17/96, N.T. Penalty at 154 (Closing Argument) (por- 77-78; tions cited in Appellant’s Brief at emphasis added Appellant).
Appellant argues that because his burglaries involved vaca- tion cabins and no actual violence or threat to a person, prosecutor’s comment was false insofar as it suggested vio- Small, 425, (2009) (Cas- Commonwealth v. 602 Pa. 980 A.2d
tille, C.J.,
However,
concurring) (quoting
9714(g)).
§
42 Pa.C.S.
as
explained,
Chief
Assembly
Justice Castille has
the General
is free to
burglary
any
define
differently
purposes.
or
other offense
for different
Assembly
The fact that the General
applicability
has limited the
burglary
setting punishment
under the
sce-
two-strikes/three-strikes
regarding
nario does not alter
burglary
established law
the use of
9711(d)(9)
support
aggravator.
convictions to
the subsection
Id.
containing
26. Also in
explication, Appellant
Issue
one sentence
no
9711(d)(9)
aggravating
claims that the
circumstance of subsection
case,
unconstitutionally vague
applied
and overbroad as
in this
because
jury
the trial court failed to instruct the
as to the definition of three
elements, i.e.,
violence,”
"significant history,” "use or threat of
person.” Appellant’s
"the
exactly
Brief at 75.
raised
V,
*58
Spotz
rejected
Spotz
same issue
penalty phase counsel: the of—the Setting question specific
PCRA Counsel: aside not were violent or question burglaries of whether or nonviolent, recall the you closing argu- do Commonwealth’s talk the —that were the they burglaries ment when about you of case that into contact with other human type brings point picked up gun and the at that had beings, prosecutor that had been one of the exhibits?
Mr. Andrews: I don’t recall that. 5/10/07, Hearing,
N.T. PCRA at 217-18. interpretation prosecutor’s The Commonwealth’s of the pen- alty phase quite statement is different. The Commonwealth prosecutor portraying Appellant’s contends that the was not conflict, as but rather burglaries involving armed was describ- theft of a from one of the ing Appellant’s shotgun cabins that he Brief at burglarized. Commonwealth’s 68-69. The Com- monwealth that the prosecutor’s gun admits reference to the in the above statement was an reference to improper evidence record, not of but that the isolated and argues vague reference to a have gun prejudiced jury could not so that it would have weigh fairly been unable to the evidence presented. Id. 69; Jones, see Commonwealth v. 546 Pa. 683 A.2d (1996) 1181, 1203 it (“[Ajlthough improper to comment on record, evidence not of we cannot conclude that the isolated ... reference here made was so prosecutor pervasive or deliberate so that the unavoidable effect thereof was prejudice jury point they fairly to the could not weigh presented.”) evidence any The PCRA court did not make factual with findings matter, to the rather regard prosecu- but concluded that the *59 tor’s remark was not so prejudicial as to make the jury incapable of rendering true verdict. PCRÁ Court Opinion at 53-54. We conclude that the PCRA court’s determination supported by record, is the and we will accordingly not disturb it.
Contrary to Appellant’s assertions, it strains reason to that suggest brief, the prosecutor’s vague, passing reference to a gun during his discussion of Appellant’s prior felony convictions could have so prejudiced the jury that there is a reasonable probability that the outcome of the proceedings would have been different had objected. counsel prosecu- The tor’s reference to a gun must be in considered the broader context of Appellant’s lengthy history felony convictions. Specifically, the following felony convictions were presented to jury to support the aggravating circumstances of a signifi- cant history convictions, violent felony pursuant to subsec- 9711(d)(9): tion voluntary manslaughter and aggravated as- convictions, sault 27, September 1995; on two felony robbery on, convictions 12, 1990, respectively, 3, June July 1990; conspiracy to commit felony robbery conviction, 12, on June 1990; and three felony burglary convictions, on April 1990. Phase, N.T. Penalty 5/16/96, 1623-24, 1629-32, 1635-37; N.T. Penalty Phase, 5/17/96, (Defense at 158 Closing Argu- ment). addition, In Appellant’s two prior first-degree murder convictions presented were to the jury as evidence of the aggravating factor set forth in 9711(d)(ll), subsection convic- tion of another murder. Phase, N.T. Penalty 5/16/96, at 1639- 42. all
Given of Appellant’s prior violent felony convictions and prior his two first-degree convictions, murder we cannot con- clude that the prosecutor’s brief reference to a in gun context of the burglaries was prejudicial. To prevail on this claim, Appellant would have to establish that the prosecutor’s one brief mention of a gun the context of the burglaries tipped balance away from mitigation and in favor of aggravation jury’s mind, resulting the verdict of death. This simply not a tenable position. Given Appel- lant’s lengthy record of violent felonies and murders with sig- and determinative overriding
firearms, ascribe we cannot in one sentence to a gun reference to one brief nificance he failed to establish Thus, has the prosecutor. ineffec- on his to relief he is not entitled prejudiced, counsel claim. phase penalty tive assistance of Killing in the While Aggravating Circumstance 10. Felony Perpetration of a guilt-stage jury’s argues In Issue *60 murder second-degree but not murder first-degree verdict of “a factor of the aggravating of applicability the precluded 42 felony.” a Pa.C.S. of perpetration while in the killing that the 9711(d)(6).27 words, asserts § In other murder second-degree of guilty find him failure to jury’s the was commit- killing phase finding a penalty precludes Brief at felony. Appellant’s of a the during perpetration ted ineffective that counsel was further asserts 80-81. motions, trial, in post-trial this issue at to raise failing Id. at 82. appeal. on direct out, argument Appellant’s points
As the Commonwealth the that it jury instructions to explicit trial court’s ignores the of guilty, guilty not four verdicts: possible could find one of murder, murder, guilty or second-degree of first-degree guilty 1566, 5/15/96, 1559, Trial, at N.T. murder. third-degree of claim, court held that the PCRA In denying 1568. not constitute or murder did jury’s first-degree the verdict of murder. second-degree not of finding guilty to a of equate 8/7/08, 2. at The Opinion, dated Supplemental Court PCRA Walker, 80, 540 Pa. cited v. court also Commonwealth PCRA (1995), a 90, rejected this Court 100-01 which 656 A.2d grounded statute penalty to the death challenge constitutional 9711(d)(6) aggravating of the identity in the definitions murder, a offense. felony non-capital circumstance and Second-degree killing.” mur- First-degree murder is "an intentional 27. engaged principal killing while defendant was as "committed der is felony.” Pa.C.S. perpetration of a 18 accomplice in the or an 2502(a) (b), respectively. §§ agree We with the PCRA court and the Common jury wealth. The found that Appellant was guilty of first- murder, an degree intentional killing. By logic no can the jury’s verdict be considered a finding Appellant did not commit the murder while perpetrating a and thus felony, was not guilty second-degree murder. Appellant’s assertions to the contrary are groundless; law, inconsistent with the see Walker, supra; unsupported by record or the facts. Accordingly, there is no merit to Appellant’s assertion that counsel was ineffective for failing raise this issue.
11. during Penalty Prosecutorial Comments Phase
Appellant challenges numerous by comments made prosecutor during the penalty phase and contends that trial counsel was ineffective because he object failed to to each of these comments. The PCRA court denied Although relief. the PCRA court not did address individually each of the numerous challenges, it concluded that “[njothing stated prosecutor prejudicial was so that the jury incapable of rendering a true verdict.” 52, PCRA Opinion Court Carson, (citing Commonwealth v. 590 Pa. 913 A.2d (2006)). After careful review of the notes of testimony, including the prosecutor’s entire opening statement and clos- ing argument, we conclude that the PCRA court’s conclusion *61 record, is supported by the and we will not disturb it. reiterated, As we have recently a claim of ineffec tive grounded assistance in counsel’s failure object to to a prosecutor’s comments “may succeed when the petitioner demonstrates that prosecutor’s the [comments] violated a con stitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self-incrimination or the trial, Sixth Amendment to a right fair or a constitutional interest such as due process.” Cox, Commonwealth v. 603 Pa. 223, (2009) 666, 983 A.2d 685 (quoting Commonwealth v. Tedford, 639, 1, (2008)). 598 Pa. 960 A.2d 29 “To constitute a violation, due process the prosecutorial misconduct must be of sufficient significance result the denial of the defendant’s Cox, right to a fair trial.” supra at 685 v. (quoting Greer 92 3102, 618 765, 97 L.Ed.2d
Miller, 756, 107 S.Ct. 483 U.S. trial, not the of the (1987)). the fairness touchstone is “The Id. the prosecutor.” culpability on the make fair comment may prosecutor A to defense fair rebuttal may provide evidence admitted com improper otherwise Even an Id. at 687. arguments. to defense if it in fair response is appropriate ment bemay com prosecutor’s to a Any challenge Id. remarks. counsel’s in which the comment in the context be evaluated ment must penalty in the closing argument During Id. was made. latitude, and afforded reasonable must be prosecutor phase, in favor of arguing flair when employ oratorical permitted Stokes, 299, Pa. 839 v. the death Commonwealth penalty. (2003). the prosecutor It not 226, improper A.2d 231-32 evidence with mitigation defense’s the to view the urge jury Id. at 233. penalty. the death impose thus to disfavor and unwise, remark improper or intemperate, every Not the of a new trial: grant mandates by prosecutor made unavoidable effect of only occurs when the Reversible error jurors prejudice comments would challenged toward the hostility a fixed bias and form in their minds not the evidence jurors weigh that the could defendant such a true and render verdict. (citation
Cox, omitted); see also Commonwealth at 687 supra (2006). Carson, A.2d v. 590 Pa. case, comments so prosecutor’s
In the instant none of the chal- has taken most of jury. Appellant prejudiced context, their misinterpreted out of has lenged comments directly to consider relevant deci- has failed meaning, and/or Court, as discussed below. sional law from this made First, challenges several comments closing statement or during opening his prosecutor jury, alleging the role of the as to his role and argument *62 the sense of for jury’s responsibility the comments diminished penalty: the death impose the decision to I am law to be in I did ask each required by you. front of juror on you you questioned being one of when were about if me that in an you promise appropriate case could case, I could vote a death have to now ask you penalty. for oath, every you up each and one of to live to that to be a juror.
And, remember, are still the fact in this case. you finders by That is The sentence is set the law. It is a important. very simple process..... just you again.
I will read it to now You find the facts of them, aggravating mitigating weigh and then the Commonwealth, law sets the sentence. The statutes of our state, The people laws of of this verdict must be [sic] death, be, a sentence of must if the jury unanimously finds aggravating mitigating at least one circumstance and no circumstance; jury unanimously or if the finds one or more circumstances which aggravating outweigh any mitigating circumstances.
I am not to to going say you going any now this is to be But I look each easy thing. every you, one of remember that all us in this are society governed by law. I have you read to what the law stated. And I ask you to remember oath to simply your that law. follow Phase, 5/16/96, (Prosecutor’s 121-22, N.T. Penalty Statement) Opening added to (emphasis portions cited 84). in his Brief at are here certain I things. We because of have a as the duty elected prosecutor people Cumberland County present says penalty cases where the law that the should be death.
You, lot, by guess got I sheer chance of chosen to take on a law, special duty and now to decide the follow willful, deliberate, appropriate sentence for the and premed- killing Betty itated Amstutz.
94 law, the verdict must be a sentence of death again, says
The one unanimously aggravating if the finds at least jury or if the mitigating jury circumstance and no circumstance finds one or more circumstances unanimously aggravating outweigh any mitigating which circumstances. that the case you says mitigation
Because if one of circumstances, But, it is life. outweighs aggravating the law, have under the again, person say that would still outweighs have these and that the weighed mitigation ag- gravating circumstances. 5/17/96, (Prosecutor’s Phase, Penalty Closing
N.T. at 144-15 by added to cited Argument) (emphasis portions Appellant 84). his Brief egregiously,
Most contends that the Appellant prosecutor jury to the that it “had a ‘societal’ argued responsibility return a death verdict.” Brief at 84 N.T. (citing 124). Phase, 5/16/96, at Penalty allegation This constitutes a statements, mischaracterization of the gross prosecutor’s su- “ The pra. only responsibility” ‘societal’ implied prose- Furthermore, cutor was to follow the law. previously we have concluded that there was no error where a prosecutor asked a jury to “live to” the it up promise made under oath to follow the law impose penalty and to the death in an appropriate Carson, 268-69; Rollins, case. 913 A.2d at Commonwealth v. (1999). 558 Pa. 738 A.2d The fact that prosecutor duty jurors discussed the of the to follow the law immediately discussing after his own duty “nothing constitutes Carson, more than a simple comparison.” supra at 269. The made clear that the prosecutor jury was the fact-finder and that weighing aggravating its and mitigating factors would determine the sentence to be imposed under the law.28 Appel- lant’s allegation prosecutor diminished the jury’s jury, 28. Toward the end of its instructions to the the trial court also point made this in no uncertain terms: your merely Remember verdict is not a recommendation. It actually punishment imprisonment. fixes the at death or life Phase, 5/17/96, Instructions). Penalty (Jury N.T. at 1915 meritless, as it penalty phase in the responsibility sense reflect fair or reasonable of the any interpretation does not prosecutor’s own words. comments,
In his challenge prosecutorial second expert focuses on the cross-examination of defense Dr. a clinical Stephen Ragusea, psychologist, witness Dr. miti closing argument regarding Ragusea’s prosecutor’s testimony. contends that gation prosecutor distorted, *64 the mental improperly denigrated, and trivialized The mitigating Ragusea. health evidence offered Dr. context, relevant in their are as follows: excerpts, proper view, Prosecutor: take the devil’s advocate this model Just is, now, ing then is what we are approach telling [Appellant] fault, your this isn’t have all these [Appellant], you had problems, you really Betty, so are not responsible killing right?
Dr. Stephen Ragusea: No. Phase, 5/17/96,
N.T. Penalty 1887-88. Prosecutor: I mean as a Hinckley diagnosed [Mark] Jody who was a move to schizophrenic making impress Foster. sense,
Dr. Stephen Ragusea: Absolutely in that Mark Hinckley was a much more ill man than mentally [Appel- is From the perspective knowing right wrong lant]. and understanding reality. from, what, assuming diag-
Prosecutor: I am these are nostic manual?
Dr. Stephen Ragusea: Diagnostic Statistical Manual Disorders, Mental Fourth Edition. are they
Prosecutor: The fourth edition is apparently [sic] up point to 995 5 disorders now?
Dr. That has been there. That is Stephen Ragusea: always just system. a categorical many
Prosecutor: How are there now? I Stephen Ragusea:
Dr. don’t know. them, Prosecutor: There is an awful lot of aren’t there? [sic] A Ragusea: Dr. bunch. Stephen not, one, for—if drink a you Prosecutor: There is is there coffee, there, something being lot of isn’t about addict[ed] caffeine? It there. I don’t know. I Ragusea: may
Dr. be Stephen I verify recall it. I have never used it. So can’t don’t for sure. true, not, sir, you go It is it can into
Prosecutor: any person that book and take almost in this [the DSMJ room, and down there and went with you through sat if long enough, you them and talked with them would find it? somebody, one those numbers that doesn’t fits Stephen Ragusea: remotely Dr. No. Not even like that. Many people everyday practice of the we see our don’t meet the criteria for That is a real any diagnostic category. overstatement. in trouble there people though,
Prosecutor: When are al- fits, ways seems to be one that isn’t that true? But,
Dr. Stephen Ragusea: certainly again, It is common. is that all these have important point things been throughout [Appellant’s] consistent lifetime. None of them *65 unique is or unusual. It his entire life parallels experience. Id. at 1896-87 added to cited (emphasis portions by Appellant 85). in Brief at his
During penalty phase closing, prosecutor argued his as follows offered in regarding testimony mitigation:
Talk about the accounting capacity for his to appreciate has, what, is he criminality because attention deficit disor- well, know, der? You of say, you people lot have that. I think he even percent said seven of the population. Seven percent of the don’t end what population up doing happened particular case. thing The whole comes down to that Dustin is the big boogie man. (Prosecutor’s Phase, 5/17/96,
N.T. Penalty at 148-49 Closing Argument) (emphasis added to portion by Appellant cited 86). his Brief at
Finally, we to get [mitigating eight: factor] number Other. Andrews, I’m sure Mr. doing job his as he required, is to going have a list long things that we heard yesterday. of I it pointed out back before, the computer suggested that this is an profile invalid to due exaggeration tendencies. It is a psychological It thing. objective is not as it was made out to be.....
Now, I submit to you, as the Doctor [Ragusea] admitted and Molly admitted, Muir they have a thousand cases Chil- Youth, dren and does every one of those people grow up to be a killer? No. Did the Doctor say that every time somebody gets in trouble their profile will probably into fit that diagnostic manual? Yeah. And that certainly is [sic] everybody with attention disorder doesn’t end in a up room like this.
Id. at 150-51 (emphasis portions added to by cited 85). in his Brief at
So now that is the mitigation. That is supposed excuse this.
Id. at 153 (emphasis added to portion cited Appellant in his 86). Brief at
To accept that mitigation that has presented been to you— and think about it—he got has the rest his life, anything he does now on is mitigated because his from childhood. No responsibility No society. responsibility to make positive some choices about don’t take one these and do that to an old woman. You have got to weigh that. Id. at 155 (emphasis portion by Appellant added to cited in his 86). Brief at
We have held that the prosecutor may rebut mitigation evidence in his arguments and may urge jury view such evidence Carson, with disfavor. supra at 271 (concluding *66 the following prosecutorial argument did not improperly pre- vent the jury from giving full effect to the appellant’s mitiga- tion evidence: “[A]ny argument say to that appellant] [the didn’t have that opportunity climb out poverty [to of and make one of any in the face to slap is a out of
something himself] succeed, managed have to to managed who to those children climb of themselves something make of the gutter out man’s 53-year-old through some of bullet putting instead (conclud- Rollins, Stokes, 233; at head”); supra supra to disparage the prosecutor it permissible that was ing imply and to by appellant proffered evidence mitigation affect the that it should not weight little that it was of so 348, 548 A.2d verdict); 519 Pa. Duffey, v. Commonwealth (1988) for the 1178, improper that it was not (concluding of history childhood appellant’s to comment on the prosecutor had introduced when the himself appellant seizures epileptic circumstance). a mitigating into the record as the evidence we conclude that precedents, Based on these clear mitigation mental health denigration of his improper claim of meritless.29 evidence is chal
In the third sub-issue of Issue that closing argument of the lenges portion prosecutor’s statutory proffered factors not mitigation mentioned Appellant. yesterday against heard
Weigh mitigation you all of the against circumstances we showed and aggravating trial. It days in in the five of is put prior evidence that was of like of numbers. It is not a little checklist question not three, well, it only is eight mitigating if there are question quality. It is a question quality, obvious. circumstances, there is mitigating You these go through will to the last get listed in the statute. And we eight [sic] one, you else want consider. basically anything which dwell on that at going length. I am sure Mr. Andrews is are they? But what sub-issue, Appellant again that the part of this contends
29. Also as right Appellant's prosecutor improperly commented on exercise his right testify. Appellant raised the self-representation and his not to claim in that issue. claim in and we have addressed the same Issue supra n. 19. See
99 (Prosecutor’s Phase, 5/17/96, N.T. Penalty at 146-47 Closing Argument) (emphases represent portions cited and relied 86-87). by upon Appellant his Brief at forth, prosecutor The then set in the order in which they statute, in the appear the list of possible mitigating circum- stances. Id. at prosecutor 147-50. The rebutted the four statutory mitigating circumstances that Appellant prof- had fered,30 and briefly also mentioned statutory three circum- stances that Appellant had not invoked. Id. On the sentenc- ing verdict slip, only the mitigating circumstances proffered were court, listed. The trial in its instructions to the jury, restated the proffered mitigation factors and clearly informed the jury how to consider them:.
In whether deciding aggravated outweigh mitigating [sic] circumstances, do not simply count their number. Compare the seriousness and importance of the aggravating with the mitigating [circumstances]. are to regard
[Y]ou a particular aggravating circumstance present as if only you agree all present. it is On the hand, other each of you is free to regard a particular mitigating circumstance as present, despite ju- what other may rors believe.....
This different treatment of aggravating cir- mitigating cumstances is one of the law’s safeguards against unjust death gives sentences. It a defendant the full benefit of any mitigating circumstances. Phase,
N.T. Penalty 5/17/96, Instructions). at 1911-12 (Jury cannot We conclude that the prosecutor’s brief mention of statutory uninvoked mitigation prejudiced circumstances Ap- mitigating 30. The four Appellant proffered circumstances that were the following: he was under the influence of extreme mental or emotional disturbance, 9711(e)(2); §§ 42 Pa.C.S. impaired he had capacity an to appreciate criminality of his conduct or to conform his conduct law, 9711(e)(3); §§ 42 Pa.C.S. relatively young, just he was under 24 9711(e)(4); and, years age, §§ of pursuant Pa.C.S. to the catch-all 9711(e)(8), mitigator, §§ “neglected Pa.C.S. during he was his childhood,” abused,” “physically “poor was upbringing by had a his parents,” helpful and "could have been Sentencing to others.” Verdict 17, 1996, Slip, May dated at 2. in- correctly also prosecutor since pellant, particularly versus weigh aggravating duty that its jury formed the counting not a matter simply circumstances mitigating addition, In Appellant. category applied each many how mitigating the relevant jury reiterated for the trial court informed the circumstances, correctly and detail and then weighing aggravating to its respect the law with jury of possibility there no reasonable hold factors. We mitigating *68 mitigators mention of uninvoked brief prosecutor’s that the jurors’ in the toward hostility Appellant bias and created such render the evidence and weigh unable to they minds that were a true verdict. sub-issue, he contends that the fourth Appellant’s
In non-statutory argued and presented prosecutor improperly factors: aggravating you death when penalty to talk about the always easy
It’s about all the you polls the street and hear are out on like people there are few fortunately else. But everything in it. involved get personally or like me that ever you [*] [*] [*] lot, on a You, got chance of chosen to take by guess I sheer law, the the and now to decide duty to special follow deliberate, willful, premed- the sentence appropriate for Amstutz. killing Betty itated of
[*] [*] [*] You make a choice here But it is a of choices. question February The made a choice on that today. defendant night. any Betty didn’t choices was person get
I the one who guess in a room the rest might Amstutz. have liked to sit She her unite get family, poetry, her and at least to see life going get opportunity. and read books. isn’t She 5/17/96, Phase, Argument) at 144-45 Penalty (Closing N.T. upon by the cited and relied represent portions (emphases 87-88). in his Brief at consti allegation excerpts that the above Appellant’s fac improper presentation non-statutory aggravating tute jury The trial court instructed the as clearly tors meritless. aggravating proffered by to the three circumstances Com monwealth; closing statement and prosecutor’s opening as well as the verdict were consis argument, sentencing slip, tent with those In the excerpt and reinforced instructions. above, jury reminded the of its to follow prosecutor duty law, did not certainly suggest “unconstitutionally expanding] the death to include the entire class of penalty first murders.” Brief at 87.31 degree Appellant’s
Fifth, contends that the prosecutor made concerning number of material misstatements of law and fact each contention in aggravating circumstances. We address turn. Appellant argues prosecutor “erroneously de (d)(9) circumstance,” fined the aggravating merely referring page prosecutor’s penalty phase opening argument. one of the (d)(9) Brief at 88. The circumstance is a signifi cant history felony involving convictions the use or threat of *69 sub-claim, Appellant alleges prosecutor Coordinator, in 31. Also this that the "made jury County sure the knew that the York Victim Jane Riese, present testify prosecution.” Appellant’s to for the Brief at unexplained simply incompre- 88. This one-sentence sub-claim is hensible. identify Appellant Ms. Riese was in the courtroom to as the convicted County Penny defendant in the York murder of Gunnet. Because case, Appellant stipulated that he was the defendant in that Riese Ms. stand, following testimony did not take the as the notes of reveal: stipulate Spotz Counsel: We will that the Mark in identified Defense County] Spotz record is the Mark that is the [York defendant proceeding. one, [prosecutor]? Court: Who is here on that Mr. Ebert Another your one of detectives? spell present I Prosecutor: Jane Riese. that R-i-e-s-e. She was at the conviction, County time of the is the York Victim Coordinator. right. stipulated [Appellant] Court: All That has been to that is one conviction, degree, Penny the same for the murder [sic] first of So, ma’am, you may you Gunnet. be excused if wish. Phase, 5/16/96, Penalty N.T. at 1642. any argument fails to offer or rationale as to how this exchange possibly prosecutorial could constitute misconduct. His nothing claim is short of nonsense. relevant of the person. only portion page violence to the The as follows: to which refers is going you The in this case is to show three Commonwealth all, circumstances. First of Common- aggravating [the that that defendant had a going prove you wealth is] history felony convictions before he killed significant Betty Amstutz. robbery
You are to hear evidence of three going prior convictions, conspiracy robbery, a conviction for to commit convictions, prior that he had three that he was burglary aggravated involuntary manslaugh- convicted of assault and ter with to the death of his brother on the last two. regard That, law, you, significant history under the I submit to is a prior felony convictions. Phase, (cited 5/16/96, Penalty (Opening Argument) N.T. at 123 88). Brief at failed to state in the prosecutor excerpt While above 9711(d)(9) that the subsection aggravating circumstance re- quired significant history felony convictions involving use or threat of violence to the he person, correctly listed the felonies that been proffered satisfy had that subsection. In addition, the trial court defined this aggravating circumstance Phase, 5/16/96, precisely correctly, Penalty see N.T. 1909; the sentencing verdict also bore the slip correct definition. There is absolutely no evidence to that the suggest jury instructions, did not follow the trial court’s did not the verdict slip, understand or was confused the prosecu- tor’s omission.
Next, Appellant asserts that the prosecutor “improp erly sought to rebut the case mitigation by further misstating the gravity and relevance of Appellant’s juvenile offenses.” Appellant’s Brief at 88. The below excerpt apparently basis for this assertion:
Talk possible about the next mitigation, mitigating circum- is the of age stance the defendant at the time of the crime. was, what, He two weeks short of his twenty-fourth birth- day. what he to that time? He had a particular
And had shown felony point. serious record serious convictions at started, exhibit, Which even his own when he was a by juvenile. felony of the second Risking catastrophe, degree. (cited Phase, 5/17/96,
N.T. at 149 Penalty (Closing Argument) 88). in Brief at Appellant’s
The information summarized
in the above
prosecutor
evidence,
excerpt
accordingly,
had been admitted into
could
comment on it and draw reasonable
prosecutor
properly
Carson,
(concluding
inferences from it. See
The second [aggravating significant history factor] is felony I you get convictions. don’t know to see these if upstairs because have other they things you on that consider, shouldn’t because they just they are records and big tell a But we went all of story. through these. Two convictions, here, Franklin robbery County; one a conspira- here; cy robbery to commit three burglaries, that is break- crime, into ing someone’s house to commit another or dwelling place to commit another crime. That is a signifi- cant history. 5/17/96, (em- Phase, Penalty
N.T. at 154 (Closing Argument) phasis represents portion quoted Appellant’s Brief at 88).
The prosecutor’s vague brief and statement about the con- tents of criminal record is insignificant, particular- ly prosecutor immediately since the also states that “we went all of these through [felony excerpt supra. See convictions].” Thus, none challenged statements this sub-issue remotely reaches the level of misconduct. prosecutorial
104 11 final sub-issue in Issue is sixth and the burden of applicable persua that the misstated prosecutor aggravating mitigating to the regard weighing sion with challenged by Appellant circumstances. The comment specific below in its context: presented proper is law, the verdict must be a sentence of death again, says The aggravating if finds at least one jury unanimously the circumstance, or if the jury circumstance and no mitigating or more circumstances unanimously aggravating finds one circumstances. outweigh any mitigating which that, well, Now, you jury give will tell [defense counsel] decide, unanimously you all twelve of will have death has individually. question to check that block And that is the asked, during you you up voir dire were will stand when your opinion, you your guns. will stick to you says mitigation Because if one of that the in this case circumstances, But, it life. outweighs aggravating the law, the I again, person say would still have under mitigation have these and that weighed outweighs ag- gravating circumstances. (Prosecutor’s Phase, 5/17/96,
N.T. at 145 Penalty Closing Argument) (emphasis quoted by Appellant added to portion 88). his Brief at Appellant correctly recognizes, statutory
As stan imposition dard for of a death sentence is “one or more aggravating any circumstances which cir outweigh mitigating 9711(c)(l)(iv); § cumstances.” 42 Pa.C.S. see also Common Bardo, (1998) wealth v. Pa. 709 (stating A.2d 9711(c)(l)(iv) § jury that “if the finds that the provides circumstance(s) aggravating do not outweigh mitigating sentence”) circumstance(s), it a life impose (emphasis must omitted). Thus, standard, statutory under the when the ag gravating circumstances and circumstances are mitigating pre balanced, i.e., “tie,” in a cisely proper sentence is life not death. imprisonment,
However, that for the prosecutor stated verdict to be a juror sentence of life must imprisonment, one conclude that mitigating circumstances outweigh aggravating circumstances. Thus, excerpt See supra. under the prosecutor’s formulation standard, of the when there ais tie between aggravating circumstances, circumstances and mitigating the sentence would be death —and this is contrary to the statute. Appel- lant’s Brief at 88.
We decline to conclude that Appellant was prejudiced by the prosecutor’s misstatement. to give any fails recog- that, nition to the fact in the first sentence of the above excerpt, where the prosecutor is telling jury the what the law requires, he states the standard exactly correctly and com- pletely. The prosecutor then reiterates that an imposition of the death penalty must be unanimous and jurors reminds the that during voir they dire were if they asked would up “stand for opinion.” [their] The challenged comment is made in this context, correct, and while it strictly is not we cannot conclude that it jurors rendered the unable to the weigh evidence and Cox, render true verdict. See at supra 687.
It is noteworthy that the trial
correctly
court
repeatedly
and
instructed the
on the
jury
appropriate
standard
which to
weight aggravating and mitigating factors.
N.T.
See
Penalty
Phase, 5/17/96,
1905, 1911,
1913-14. The trial court’s clear
instructions
any possible
remove
confusion as to the appropri-
ate standard. There is no evidence to suggest that the jury
did not follow the trial court’s detailed and clear instructions.
V,
(“The
See Spotz
In above, as we have discussed none of Appellant’s claims of ineffective assistance of penalty phase counsel for object to failing to prosecutorial statements has any merit. Accordingly, Appellant is not any entitled to relief in Issue 11. Jury 12. “Presumption Instructions as to the of Life” 12, In Issue Appellant argues that the trial penalty court’s phase jury erroneously instructions required the jury “re- ject death,” thereby “unconstitutionally the shifting] sentenc- to the from the Commonwealth of persuasion burden
ing-stage afforded defen- of life defense, undermining] presumption violating] sentencing proceedings, capital dants Sixth, Eighth, sentencing statute Pennsylvania Appel- at 69. Brief Fourteenth Amendments.” failing ineffective that counsel was lant also asserts Id. instructions. object jury to the of the court’s specifically portion challenges sentencing fill out the how to jury that directed instruction However, because, reviewing challenge when slip. verdict just instruction, charge, entire not we must consider the a jury thereof, Eichinger, v. see Commonwealth portions selected (2007), much of the we set forth Pa. 915 A.2d in the below: paragraphs instruction you unanimously if must be a sentence of death Your verdict cir- aggravating all least one you is if find—at find—that mitigating no circumstances. cumstance and findings, other of these not all on one or the you agree If do *73 a sentence of may that return is only you then the verdict life imprisonment. Instructions). Phase, 5/17/96, (Jury at 1905 Penalty
N.T. jury regarding The trial court then instructed applicable Commonwealth differing proof burdens to, aggravating regard respectively, the defendant with and The continued with circumstances. instruction mitigating circum- aggravating each of the proffered an explanation circumstances, and then continued as mitigating stances and follows: earlier, on one of unanimously must you you agree
As I told the defendant you before can sentence general findings two that there is findings] finding are a general to death. [The mitigating circumstance and no aggravating at least one circumstances, are or more there one finding or any mitigating outweigh circumstances which aggravating circumstances.
If you all on either agree one of the general two findings, then can you and must sentence the defendant to death. When on the voting general findings, you are to regard a particular aggravating circumstance present as if only you all agree that it present. hand, theOn other each of you is free to regard a particular mitigating circumstance as present, despite jurors what other may believe.....
This different treatment of aggravating mitigating cir- cumstances is one of the law’s safeguards against unjust death sentences. It gives a defendant the full any benefit of mitigating circumstances.
It is closely related to the burden of proof requirements. Remember, the Commonwealth must prove any aggravating beyond circumstance a reasonable doubt. While the defen- dant only has to prove any mitigating circumstance evidence, preponderance of the [sic] you If do not agree unanimously sentence, on a death on one of the two general findings that it, would support then you have two immediate options.
You may either continue to discuss the case and deliberate the possibility of a death sentence, or if all of you agree to so, you do may stop deliberating and sentence the defendant to life imprisonment.
If you should come to a point you where have deliberated conscientiously and thoroughly, and still cannot all agree either to sentence the defendant to death or to stop deliber- ating and sentence him to life imprisonment, report me. If it seems to me that you are deadlocked, hopelessly it will be my duty sentence the defendant to life imprison- ment.
I now you ask to pick up the verdict slip again.....I shall *74 now give you specific directions about how to complete this of part the verdict slip. you Before can sentence the death, defendant to you must all agree on a general finding in either B-l three, B-2, on page or on beginning the of top page four. the and sentence deliberating
Remember, stop can you to do so. agree if all only you imprisonment to life defendant you should life imprisonment, is your .... sentence [I]f why will explain or which either C-l C-2 finding check the a life imposing penalty death rejecting the you are sentence. that one or death penalty the rejecting
If the reason for circumstances, check C-l. aggravating no you more of find that, you all of although death is rejecting reasons for If the circumstance, more one or aggravating on at least one agree are not out- circumstances mitigating that you find circumstances, then would you by aggravating weighed check C-2. Instructions). Phase, 5/17/96, (Jury 1911-14 Penalty
N.T. that, phrase the by repeatedly using contends life to make clear that death,” trial court failed the “rejecting sentence unless Com- appropriate imprisonment that death high persuasion met its burden monwealth Brief at 70. imposed. Appellant’s should be respect of error with claim rejecting Appellant’s In v. instruction, court cited Commonwealth the PCRA “pre the words for the Eichinger, supra, proposition in a mandatory capital penalty not of life” were sumption at 56. The Opinion Court instruction. PCRA phase jury adequately the trial court had court concluded PCRA treatment of deliberately aggravating disparate explained life in circumstances, made clear that and had mitigating sentence unless Commonwealth appropriate is the prison agree. Id. proof. its burden of We high has carried Pa. 467 A.2d Travaglia, v. In Commonwealth that, sense, a in some (1983), acknowledged this Court capital sentencing in the of life” is inherent “presumption arises from the limited number This “presumption” statute. circumstances, any one of which statutory aggravating doubt, as a reasonable prove beyond must Commonwealth circum- mitigating latitude granted to the wide compared stances, prove only by preponder- need which the defendant *75 1137, Eichinger, Id. In the supra anee of the evidence. allege process to denial of due Travaglia relied on appellant to include an explicit the trial court because it had declined by jury recognized of life” instruction. We “presumption the by “life has intrinsic value and should not be taken state cause, standard, highest to our whereas good proven without our default imprisonment punishment capital life remains However, consistent with this cases.” Id. at 1138. Court’s in the phras- to trial courts latitude and discretion policy give instructions, that the ing jury “presumption we held words life” instruc- explicitly required penalty phase were not what in a instruction required proper tions. We clarified was as follows: deliberately disparate
An of the treatment of explanation under the aggravating mitigating and circumstances standards of and a clear indication that life applicable proof prison is the sentence unless the Commonwealth meets high convey its burden is sufficient to the fact that life is presumed.
Id.; accord, Lesko, 128,15 Commonwealth v. 609 Pa. A.3d 345 (2011). instruction, the entire jury
Based on our review of we conclude that the trial court here met this standard. The trial court and the correct rationale for clearly explained provided treatment of and the disparate proof distinct standard of In applicable aggravating mitigating and circumstances. addition, the trial court directly indirectly stated that life imprisonment appropriate was the sentence unless the Com high proof regard monwealth met its burden of with fact, factors. In the instruction here in entire aggravating its ty very challenged was similar to the one v. Commonwealth Marinelli, (2006) 589 Pa. 910 A.2d 682-84 (Opinion Court), of the even to the Announcing Judgment point using “rejecting penalty” the death or phrase “rejecting death” three times. We concluded that there was no merit to the Marinetti claim that the use of the appellant’s repeated “reject” word rendered the instructions erroneous.32 We Court, Announcing Judgment Opinion of the 32. Marinetti was an joined by by Newman Justices Eakin and Baldwin. authored Justice lio here,
reach the same conclusion hold that accordingly object ineffective for to the failing jury counsel not instructions.33
13. “Life Means Life” Instruction Simmons contends that the trial court erred fail *76 that, jury to instruct the if were ing sentenced to life he imprisonment, eligible would not be for In parole. addition, penalty he that counsel was argues phase ineffective instruction, failing to seek such an and that appeal direct in the way counsel was ineffective in which he litigated matter on direct appeal.
In his direct appeal, Appellant grounded his claim of trial
court error for
to instruct the
that “life
failing
jury
means life”
Carolina,
on Simmons v. South
2187,
U.S.
S.Ct.
(1994)
III,
Spotz
See
Ill Id. at 1291. Thus, request.” and did not court PCRA current properly Appellant’s denied claim of trial court error previously litigated as and not under the cognizable PCRA.34 9543(a)(3) See PCRA Court Opinion §§ at 48 (citing Pa.C.S. 9544(a)(2)). addition, In correctly PCRA court concluded claim of Appellant’s penalty ineffective assistance of Simmons phase counsel for instruction failing request fail must because future had not Appellant’s dangerousness placed been at issue and thus he an was not entitled to such III, 1291; Spotz supra instruction. at Opinion PCRA Court at 49. not Counsel will be held ineffective for failing an request instruction to which his client was not entitled. counsel, regard With to appellate Appellant’s claim of inef- fectiveness is based on counsel’s failure to on direct argue appeal that future dangerousness was placed issue the introduction of evidence of his violent prior offenses, including three homicide and other felony convic- *77 tions, juvenile and his record of crimes and detention.35 Some of this presented evidence was at the penalty phase support as circumstances, for aggravating while certain evidence of other crimes, the specifically voluntary manslaughter and two first- degree murders committed during the three to the days prior Amstutz, murder of Ms. presented was also during guilt the phase Appellant of trial. further testimony contends that the Supreme 34. The United capital States Court has a clarified that defen- ineligibility parole may dant’s imparted jury by for be to the either the by arguments trial court’s instruction or of counsel. v. South Shafer Carolina, 36, 39, 1263, (2001). 532 U.S. 121 S.Ct. 149 178 L.Ed.2d Here, argue jury guilty while defense counsel did to the that its verdict prison, meant explicitly would die in counsel never jury Appellant ineligible informed the that a life sentence would render Phase, 5/17/96, 157, parole. Penalty See N.T. at 182. opinion resolving 35. In Appellant's appeal, our direct we stated that "Appellant argue both that concedes the Commonwealth did not future dangerousness requested charge.” Spotz and that he never a Simmons III, 1291; (acknowledging 759 A.2d at see also Brief at 69 that, appeal, Appellant's on direct counsel conceded the absence of the instruction, predicates arguing two for a Simmons but that had he terms,” "appropriate sentencing proceeding raised the in issue a new granted). should have been 112 propen-
of his mental health
Dr.
a
expert,
Ragusea, supported
claim,
sity
rejected
citing
for violence. The
court
this
PCRA
(1998),
286,
v.
Pa.
In like appellant, that, circumstance of a argued by raising aggravating convictions, significant history felony of violent the prosecutor injected had the issue of the future appellant’s dangerousness therefore, into the the trial sentencing hearing, court had by failing provide erred instruction. We denied Simmons claim, holding that a Simmons instruction was not re- quired because the evidence proffered support appel- lant’s of violent history felony only convictions addressed his conduct, past not his future dangerousness. May, supra. We reached a similar conclusion more recently Common- Chmiel, (2005), wealth v. 585 Pa. A.2d triple first-degree murder case which the Commonwealth’s evidence to support appellant’s history prior violent felonies the description included of a violent held rape. We that the introduction of this evidence of the Chmiel defen- dant’s violent past implicate convictions did not the issue of his Chmiel, future Id. at dangerousness. 538. Also the appel- lant contended that future dangerousness his was implied the prosecutor’s concerning comments the circumstances of the triple murder and his characterization of the appellant’s *78 actions as “despicable” “abysmal,” revealing a “coldness of heart, the type depravity you that tells that he deserves death.” Id. at 537. challenged We concluded com- ments focused on the exclusively surrounding facts the mur- convicted, of which the appellant ders had been not and did speculate about the inherent appellant’s characteristics implied dangerousness. future Id. at 538. Because the chai-
113 comments, lenged context, when taken in “were com- proper mentary on appellant’s] [the crimes as an appropriate predi- cate for the death no penalty,” relief was due. Id. at 537-38.
Appellant submits that this Court’s rulings Chmiel and similar cases are erroneous as to the nature and sufficiency of evidence and prosecutorial argument that can establish future dangerousness for purposes a Simmons instruction. Appel- lant’s Brief at 64 & n. 80. Appellant relies on primarily Kelly Carolina, v. South U.S. 122 S.Ct. 151 L.Ed.2d (2002), in which case the high Court reversed a state court’s determinations that the appellant’s future dangerous- ness had not been placed at issue and a Simmons instruction was not required. The high Court held that the state court erred, had not in issue, its formulation of the legal but rather “on the facts [because] evidence and argument cited state court flatly are at odds with the view that ‘future ” dangerousness was not an issue in this case.’ Kelly, supra (citation 252-53,122 omitted). at S.Ct. 726 Kelly The provided Court the following guidance toas how to evaluate evidence for purposes of Simmons instruction:
A jury hearing evidence aof defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior....
Evidence of future dangerousness under Simmons is evi- dence with a tendency to prove dangerousness future; in the its relevance to that point does not disappear be- merely it cause might support other inferences or be described in
other terms.
Kelly, 253-54,122 supra S.Ct. 726.
The evidence admitted during the sentencing phase of the trial in Kelly showed the following: the appellant attempt- had ed an armed from escape prison, had plan formulated a to hold a female guard hostage, and had exhibited sadism at an early with an age, inclination to kill anyone who him rubbed 248-49, Id. at wrong way. S.Ct. 726. With to the regard *79 high the Court arguments, closing opening prosecutor’s the following: stated future implication the clear accentuated prosecutor
The the case placed evidence and raised dangerousness already He had corners of Simmons. within the four in their would “never jurors that the hope his expressed away feet being thirty some experience have to again lives appellant].... [S]ince as person” [the from such they any prison, time unlikely spending to be jurors were appellant] from the likes of away [the 30 feet up would end if were might parole as he prison, if he out of only got possible..... court to be sure considered
And there was more. The state a notorious appellant] comparison [the the prosecutor’s killer, “bloody” calling “dangerous” him a variously serial did butchery go “butcher.”.... Characterizations retribution, them the less any argu- but that did not make down the dangerous ments that would be appellant] [the submissions prosecutor’s They complemented road. than a serial frightening was “more appellant] [the killer,” will Thus that “murderers be murderers.” [ ] Simmons, jury, predecessor was like its appellant’s] [the who predator to infer “that is a vicious petitioner invited community.” threat to the pose continuing would omitted). (internal 255-56,122 citations Id. S.Ct. argu- and the prosecutor’s Based on the evidence admitted evidence, Supreme from that States Court ments United future had Kelly appellant’s dangerousness held that However, the Kelly been at issue. Court placed indeed “The ruling: only questions careful to the limits of its specify and the are whether the evidence presented in this case trial future placed danger- made at argument appellant’s] [the 4,122 n. 726. No issue was ousness at issue.” Id. at 254 S.Ct. to “a defendant’s entitlement to Kelly respect raised in with law when the State’s ineligibility instruction on a parole evidence shows future dangerousness but the prosecutor does not argue it.” Id. Baumhammers,
In Commonwealth v. 599 Pa. 960 A.2d (2008), 90-92 this Court applied the United States Su *80 preme Court’s constitutional in directives Simmons and Kelly to a case in which the jury rejected had the appellant’s insanity defense and had sentenced him to death for the first- degree murder of trial, five individuals. At the Common wealth had introduced evidence of the appellant’s derogatory comments Jews, and actions toward blacks and his anti- immigration views, and pro-segregation his desire to start a white supremacist party, and his hatred for all “ethnic” people. Id. at 71. On direct appeal, the appellant claimed that the trial court had erred by failing give to a instruction, Simmons and he asserted that the issue of his future dangerousness had been brought before the jury by proffered evidence, including not only the testimony views, as to his racist but also the extensive testimony concerning his mental illness and disorder, personality which, in the opinion of the Common witness, wealth’s mental health liar, made him a a rule- breaker, and an irresponsible person. Id. at 90-91. We claim, denied this concluding the evidence cited by appellant was not evidence of future dangerousness or of a violence, demonstrated propensity for and was “not even remotely similar in character to the evidence in Kelly.” Id. at 91. case,
In the instant
Appellant’s attempt to rely on
Kelly
equally unavailing. Appellant raised a similar claim in his
collateral appeal of his Schuylkill County first-degree murder
V,
conviction. Spotz
Furthermore, applicable to be held Kelly even if were relief not be entitled to he would Appellant’s appeal, Supreme Court’s because, to the United States pursuant them Baumham interpreted as we have Kelly, directives not mers, placed dangerousness future *81 to Contrary Appellant’s proceedings. the trial during issue not at issue under assertions, placed is dangerousness future forth a sets merely prosecutor because Simmons/Kelly offenses, without history of violent prior defendant’s capital signifi implying of violence and without graphic description here did not prosecutor behavior. The cance for future violent nor Appellant, of violence to describe epithets suggestive use the implications conclusions about attempt any did he to draw offenses for his future behavior. With previous of Appellant’s health, Ragusea Dr. psychologist to mental regard Appellant’s features,” had “lots of antisocial Appellant testified that rules,” law, perfectly lying “was content “broke the broke wanted,” trouble in contact being whatever he get “[had] to decisions,” “does have mental ill “makes bad reality,” with not a ness[,] guy.” nice personality[, and] is an antisocial 5/16/96, 1881, 1885, Phase, Ragu at 1895. Dr. Penalty N.T. had a imply Appellant propensity did not that testimony sea’s reject a for violent behavior. We for violence or was risk assertion, on that the evidence and Kelly, based Appellant’s trial his placed at his argument presented Commonwealth issue, reject his accordingly at we dangerousness future to appellate failing claim of counsel ineffectiveness for raise these matters on direct appeal.37 ineffective assistance
Finally, Appellant alleges Issue appeal failing identify of direct counsel for and raise theories, independent additional constitutional of future dan- Simmons, from as gerousness legally grounds distinct requesting parole instruction. Brief ineligibility Appellant’s at 66. to seek a broad and Appellant appears general ruling evidence, Appellant suggests pieces 37. that several other in addition health, history support to his criminal and his mental his assertion that dangerousness placed his future at issue. The first these other pieces testimony of evidence is a bit of the of a witness who had defense very Appellant’s parent. served for a brief time in 1985 as foster The lay opinion Appellant witness offered a related to her conclusion extremely was an difficult child. given opportunities, my opinion, Witness: He ... was never develop a conscience. He has no conscience. Phase, 5/16/96, (direct examination). Penalty N.T. at 1735 you just Prosecutor: And found him to have no conscience? Witness: That is correct. He stated he didn’t. (cross-examination). at Id. Second, Appellant testimony poems cites of his wife that some of the he names, violent-sounding specifically, had written had "Media Blood through Lying Lips." Penalty Phase, Lust” and "Voices Roared N.T. 5/16/96, at 1851. prosecutor excerpts testimony The not even mention did these in his jury. testimony statements to the There is no obvious relevance of this dangerousness, certainly support to future and it not does the issuance instruction, Kelly. of a Simmons even under Third, allegedly placed Appellant's as additional evidence that future issue, “[ejvidence dangerousness cites had parole thought been aware of his status at the time of the murder and possible eventually that it was that he could be released if sentenced to specific by Appellant Brief at The life." 65. evidence cited Miller, support testimony trooper is the of Scott assertion state Appellant shortly Trooper who interviewed after his Miller arrest. *82 Appellant following police testified that stated the to a officer also life, conducting you plus the interview: think I will have "[D]o to do the Trial, 5/13/96, remaining years my parole.” on N.T. at 982. objected regarding parole prejudicial, to the witness's statement as out presence jury, jury of the the of and the court then instructed the to disregard parole. the reference to Id. at 982-87. testimony implies Appellant thought It is far from clear that this he might eventually imprisonment. be released if sentenced to life Fur- thermore, Appellant presents argument why speculations no as to his started, trooper, posed a well had state before trial even as to the receive, might support sentence he should the issuance of a Simmons
118 ineligibility always that a instruction is parole from this Court com- jury capital when the knows that defendant required asserts, Appellant baldly parole. mitted the offense while on rationale, that argument benefit of or accompanying without jury the failure to such a instruction violates either provide the or Eighth Amendment to United States Constitution ways: Eighth in the violates the process, following due jury permitted Amendment because the was not to consider evidence and was with a false mitigating presented all relevant sentencing options; Eighth choice of violates the Amendment offends against arbitrary capricious sentencing; bar standards of in violation of the evolving decency Eighth Amendment; process by imposing violates due a death sen- inaccurate, tence on the basis of material information which rebut; the defendant had no opportunity and violates an right impartial jury by skewing weighing aggrava- of ting mitigating Appellant’s circumstances. Brief at 66-67. for each these Appellant’s “argument” alleged constitutional consists, violations in its of footnote entirety, lists United devoid of even a Supreme opinions, parenthetical States Court explanation, any much less of the relevance development or significance opinions the listed to the relief seeks. id. See stated,
As we previously have the United States Supreme Court has never ruled that the Eighth Amendment instruction, requires parole ineligibility nor have we ever made a parole ineligibility mandatory instruction in capital Baunhammers, 1, cases. Commonwealth v. 599 Pa. 960 A.2d (2008); Simmons, 4,114 see also U.S. 162 n. clear that the (making opinion ground S.Ct. Court’s Due ed Process Clause of the Fourteenth Amendment and specifically clarifying that the Court no “expressed] on the whether the opinion question result also com [was] Amendment”). Here, pelled by Eighth one- sentence, undeveloped assertions of Amendment Eighth viola- "advocacy”
instruction. This sort of neither credits counsel nor bene- fits his client.
119 for fail to reviewable or rationale provide any argument tions those decisions. revisiting precedential Simmons to recast the lack of a instruc- Appellant’s attempt having tion into an assertion of “inaccurate information” been Brief at imparted jury Appellant’s to the likewise must fail. information, otherwise, 67. No inaccurate material or Simmons to the the mere fact that a imparted jury by to the given, instruction was not and assertions contrary legal have no or factual basis.
Finally, Appellant’s parole assertion that the lack of a instruction skewed the ineligibility weighing aggravating evidence the mitigating impaired jury’s ability and and follow the law The entirely unsupported. Commonwealth factors, presented statutory Appellant three aggravating factors, the “catch-all” mitigating including offered several which includes other evidence of mitigator “[a]ny mitigation concerning character and record of the defendant and the 9711(e)(8). § circumstances of offense.” 42 Al his Pa.C.S. though, during penalty phase, evidence bemay presented any as to matter that the trial court relevant deems admissible on the of the sentence to be 42 question imposed, 9711(a)(2), weigh only § “[c]apital juries Pa.C.S. are to aggravating and circumstances in the mitigating enumerated Robinson, statute.” Commonwealth v. 358, Pa. 583 877 A.2d (2005) added); see also (emphasis Pa.C.S. 9711(c)(l)(iv). § neither provides authority for his view that a apparent parole ineligibility instruction somehow factor, implicates mitigation any nor sets forth for support his view that here was unable to jury follow the law regarding duty statutory its weigh mitigating factors that were aggravating proffered.
Because there arguable any is no merit to of Appellant’s theories, alternate appeal direct counsel will not be held sum, ineffective failing to advance them. In for all the above, reasons discussed is not entitled to relief on of the he any numerous sub-issues raised under Issue 13. Mitigating
14. Evidence Presentation In that trial counsel was ineffec- Appellant alleges Issue *84 develop, present mitigating tive in to and failing investigate, Specifically, Appellant evidence the during penalty phase. ineffectiveness, that, jury contends because of counsel’s the (i) following: did not hear evidence of the complete physical and extensive and sexual abuse to which pervasive subjected, family history had been as well as his of (ii) dysfunction impairment; Appellant’s history drug and of (iii) abuse; and alcohol addiction and extensive abuse and violence that had suffered at the hands of his (iv) Dustin; history brother the mental health of Appellant’s (v) family; problems. and own mental health Ap- pellant alleges investigation presentation counsel’s the above circumstances were mitigating deficient under 668, 2052, v. Washington, Strickland 466 U.S. 104 S.Ct. (1984), L.Ed.2d 674 that he deprived was therefore of his Sixth Amendment to right counsel. We first summarize the relevant general legal principles, and then address each of Appellant’s sub-issues below.
Appellant raised similar claim in his collateral appeal of his Schuylkill County murder conviction. In first-degree de- claim, nying we reiterated the prior following principles regarding duty investigate counsel’s evidence of a defen- dant’s mitigating circumstances:
It well capital established that defense counsel duty has a to undertake investigations reasonable or to make reason- able decisions that particular investigations render unneces- sary. In the context of penalty phase, trial counsel has an obligation conduct a thorough investigation of the background, defendant’s with particularly respect to the preparation presentation mitigation evidence. [T]his obligation duty includes the of penalty phase counsel to reasonably discover all available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced prosecutor. The reasonableness particular investigation depends upon evidence known to counsel, well as as evidence that would cause a reasonable attorney conduct a further At the investigation. same time, counsel’s obligations do not require an investigation into every conceivable line of evidence mitigating no matter how unlikely the effort would be to assist the defendant at sentencing. V, (internal
Spotz
In we have made clear the following: The reasonableness of counsel’s investigation and prepara- tion for the penalty course, phase, of often depends critically upon information supplied by the defendant. Counsel cannot be found ineffective for failing to introduce informa- tion uniquely within the knowledge of the defendant and his family is not provided [that] to counsel. Bond,
Commonwealth v. 572 Pa. 819 A.2d 45 — 46 *85 (2002) (internal omitted); citations see also Commonwealth v. Bracey, 264, 935, (2001) 568 Pa. 795 A.2d 944 that (concluding counsel could not be found ineffective for failing present to evidence of the appellant’s of history abuse where appellant and his family failed to reveal such history during their counsel). consultations with
We have been careful to note that “different light falls upon counsel’s performance depending upon whether [counsel] told, asked and was not or [alternatively, whether did counsel] not ask and therefore was not told.” Commonwealth v. Basemore, (2000). Pa. 744 A.2d
Appellant’s first sub-issue in Issue 14 is that counsel was ineffective for failing to investigate and present sufficiently detailed and corroborating evidence of the pervasive sexual and physical abuse that suffered, Appellant had as well as his family history of dysfunction impairment. and 44-48, Brief at 50-51. the During penalty phase, numerous family witnesses chaotic, abusive, testified as to the violent, deprived, dysfunctional environment in which Appellant raised; addition, was Dr. Ragusea, a psychologist expert witness who had conducted a psychological assessment of Appellant, reinforced much of this family testimony. See detail). Nonetheless, (describing testimony more infra that, if his and sexual abuse physical now contends
Appellant mental illness had family dysfunction of history and his in more de- extensively and presented addressed more been mitigation. the toward tail, swayed jury it would have likely contention, cites, alia, his inter the Appellant support In Redden, testimony grandmother, of his maternal Jean PCRA provided graphic she detail of some incidents wherein upon Appellant. abuse inflicted sexual efforts that pen- court the extensive recognized The PCRA Andrews, counsel, regard taken with to Mr. had alty phase that nor and determined neither Ms. mitigation, full extent of the had ever to counsel the suggested Redden the sexual family dysfunction physical or of abuse The hearing. which she at the PCRA PCRA court testified counsel Bracey, supra, principle cited for the cannot be of abuse failing present ineffective for evidence deemed family and his failed to reveal to counsel. a defendant PCRA addition, at 42-43. In the court concluded that PCRA Opinion testimony from her penalty Ms. Redden’s PCRA differed testimony in “a matter of and held that phase only degree,” had failed to show how prejudiced by he entirety failure to the abuse to which jury’s learn of Ms. Redden had testified at the PCRA We conclude that hearing. conclusions, supports record as PCRA court’s dis- cussed below. Attorney
At the PCRA testified as follows hearing, Andrews investigative numerous activities relevant regarding he mitigation factors that undertook on behalf of possible *86 The for three Appellant. attorneys Appellant’s various capital responsibilities shared for the of his investigation cases back- n 5/10/07, mitigation Hearing, N.T. ground purposes. PCRA Attorney for the responsibility at 122. Andrews had investi- hired, assistants, Appellant’s story, life and he as gation investigator; local a retired state and forensic trooper; Dr. who Ragusea, Appellant, interviewed re- psychologist, records, numerous prepared psychologi- viewed and a forensic 123; Psychological cal assessment. Id. at Forensic Assess- A. Appellant by Stephen Ragusea, Psy.D., ment of assessment dates Attorney Andrews met with 11/20/95 12/12/95. Appellant as soon as he so, was able to do conducting and recording interviews, two long which focused on Appellant’s life story; information, with this counsel tried to construct Appellant’s life chronology and looked for significant mitiga- tion witnesses. N.T. 5/10/07, PCRA Hearing, 129; at 5/11/07, at 26. Attorney Andrews also corresponded with Appellant on an on-going basis. N.T. 5/11/07, PCRA Hearing, addition, at 26-27. In Attorney Andrews sought institutional records. He obtained records from Appellant’s elementary school, which led to a discussion with one of Appellant’s teachers, and from Children (“CYS”), and Youth Services which led to his procurement of mental health records. N.T. 5/10/07, PCRA Hearing, 129-30,138-42. at Redden, With regard to Ms. Attorney Andrews testified during PCRA hearing she was “actively participating” and “very helpful [and] anxious to in the help,” investigation of mitigation 159-60; factors. Id. at N.T. PCRA Hearing, 5/11/07, at 38. Although he did not recall if she had told him that Appellant abused, had been sexually he understood her to be quite forthcoming and had no sense that she was withhold- ing information. N.T. 5/10/07, PCRA Hearing, 159-60; at 5/11/07, at 38-39. Attorney Andrews further testified that he had a “pretty recorded long” interview with Ms. Redden at her home and spoken had with occasions; her on other addition, his investigator spoke also with her as necessary. N.T. 5/11/07, PCRA Hearing, 77. An- Attorney drews’s testimony concerning his interactions with Ms. Red- den flatly contradicted Ms. Redden’s testimony that counsel had not visited or conversed with her prior to her courtroom testimony. N.T. Hearing, 1/17/07, PCRA at 61.
During the penalty phase of trial, Attorney presented Andrews fourteen witnesses and focused on Appel- abysmal lant’s upbringing and its effects on his mental state. We summarize the most relevant portions of the penalty phase testimony the next few paragraphs.
Appellant’s maternal grandmother, Redden, Ms. testified regarding Appellant’s chaotic upbringing, which was charac- *87 out-of-state; relocations, in-state and numerous by
terized and children’s homes at various institutionalization periods father absent, jailed biological homes; often largely foster living condi- dilapidated and step-fathers; and two abusive 5/16/96, and 1743-53. Phase, at 1645-80 Penalty tions. N.T. custody not maintained she had why asked When wanted mother and herself, stepfather that “the testified she in assistance brought times. It them at certain the kids with addition, as to Ms. Redden testified at 1752. In money.” Id. brother, his and Appellant, against she observed the abuse particu- in step-fathers; the children’s at the hands of mother so whipped had been lar, that the children she testified school for three go not sit down or they could severely Id. at 1744-47. days. mother, to the also testified as Newpher, Appellant’s
Jean up. She Appellant grew in which household environment Beish, “stopped Bill step-father, first Appellant’s testified that Dustin after Mr. and his brother associating” with blamed. Id. at son died and Dustin was biological Beish’s and her sons were abused testified that she 1802-03. She children, Beish, locked them their bed- who hit the Mr. and burned Dus- through night, supper rooms after also of matches. Id. at 1803-04. She tin’s hand with a book Newpher, Darrell step-father, second testified and had them marijuana cigarette sons a young showed her Dustin had cut at 1809-10. testified that smoke it. Id. She times, 1815-16, gave at a knife several id. Appellant -with detail as to Dustin’s childhood abuse following further Appellant: there other times when Andrews: Were Counsel
Defense [Appellant Dustin]? there violence between Oh, whole life Basically, [Appellant’s] Newpher: yeah. Ms. him, [Appel- him. When beating up hurting Dustin was on ... was a little over [Appellant] was—it was lant] old, fever, three, and he had rheumatic years almost four .lived in a step to slide down the on—we trying and he was house, down the trying steps and he was to slide two-story him down the steps. And Dustin kicked on his bottom. [Appellant] stabbed the back with a He pencil. [Dustin] had stabbed him in the arm with He pencils. sat *88 fork, pick up dinner table and would his and out of absolute- nowhere, and reach ly jump up across the table and nail fork, in [Appellant] the back of the arm with a or whatever with, part body of his he could attack him poke would [sic] him something. with he had in Anything really. his hands He used stars. He Chinese used broomsticks. right. Counsel Andrews: All
Defense Ms. Newpher: pulled [Appellant] [Dustin] out of a tree the one time. Said—he moved the ladder so [Appellant] couldn’t down. get [Appellant] was short. Dustin tall. was And [Appellant] couldn’t reach the ground. And Dustin here, I’ll says, help you, me give your just hand. And he him yanked right down out of the tree. And [Appellant] landed on his chest with the wind knocked* out of him. just And it was time he put [Appellant’s] head —another arm, ribs, under his against his and rammed his head right room, into the wall in the living and a put great big hole wall, [Appellant’s] with head. Another time he picked him up pile[-]drived and he him on the room floor a living times. couple
Id. at 1817-18. family
Other members were also called as defense wit- nesses. Lorraine Page, Appellant’s great-aunt, testified she and her husband adopted Appellant’s half-sister Annette as a toddler. Ms. had decided to Page adopt the child after she visited the household and found the conditions deplorable, with no food supervision. and little Id. at Nancy 1753-58. Jo Dale, Appellant’s babysitter, cousin and testified that condi- tions the household were “disgusting,” with little food and poor Dale, environment. Id. at 1770-72. Appellant’s Carol great-aunt, that, testified for a short time Appellant when was a young teenager him, and his mother did not want he lived however, with her her family; the Dale family was unable to maintain the household because his behav- ioral problems. Id. at 1775-82. CYS, Muir, County an administrator Clearfield
Molly with agency the extensive involvement of that testified as to Ac- agency records. family, through as revealed record, that Ms. Muir read into the cording agency reports mother, lonely; depressed Newpher, Appellant’s Ms. including a emotion- problems, complete had severe emotional suicide; time, at one al in 1975 and threats of breakdown met at a to stay two men that she had bar young had invited her The her in the trailer she shared with children. with it to take caseworker’s concluded that seemed best report possibility suicide threats and the seriously Newpher’s Ms. 1687-89, her Id. at being danger her to herself or children. indicated that she had married the father Newpher 1691. Ms. and Dustin because he had threatened her and *89 Id. at 1689-90. to other re- family. According agency her stormy marriage Ms. had had a brief and with ports, Newpher father, sons, her did not want or love either of her and sons’ for after he was Appellant days did not look at two born. She recognized problems, that both sons had severe behavioral attempted by yelling which she to address at them. Id. at Beish, 1690-91. Ms. to Bill was Newpher’s marriage, second also Id. at 1691. Based on re- stormy. continuing agency Ms. Muir further testified to an incident in 1977 in ports, which, because Ms. had said that she never wanted Newpher again, to see her sons a caseworker had picked up Appellant Dustin at in a placed and his brother school and had them thereafter, Shortly children’s home. Id. at 1693. Ms. New- mind, pher partially changed wanting her still no contact with sons, forbidding her but and instead her adoption wanting mother to raise them. Id. at 1694-95. The children were grandmother, released into the care of their but subsequently Then, 1983, back into their they moved mother’s home. in as family a result of “severe dysfunction,” Appellant was admit- Society; ted to the Children’s Aid claimed that he Appellant home, mentally had been beaten and abused at he although also that he family stated missed his and wanted to maintain some contact with them. Id. at 1700-01. Appellant homes, foster placed several but because of his severe Ms. problems, placements behavioral were short-term. Muir also testified as to involvement with specifically CYS’s Id. at 1703-06, 1717-20, brother Dustin Spotz. in the consistently reports 1722-25. Dustin made of abuse home, involuntarily and he was committed to hospital Id. at holding Appellant knife-point. after 1720. Dr. a at the Thompson, psychologist David G. licensed School, Milton his brother Hershey Appellant where that, Dustin were enrolled for a short time in testified interview, during reported psy- pre-admission life. Id. home at 1784-88. chologically physically abusive Dr. also testified Psychologist Ragusea during penalty as to the environment in which phase deplorable raised, reinforcing testimony family had been of the testimony witnesses. of Dr. are as excerpts Ragusea’s Some follows:
But let me go through some realities here. And that is [Appellant] had an awful childhood and an awful adoles- .... cence he lived in like different something twenty-three he went places, public to eleven different schools and [ ] he specialized finally dropped schools before out eleventh least, He was At the grade. very abused. we have evi- dence for abuse. He he physical sexually also contends was brother, by stepfather, by abused his his others. In that, addition to all of we neglected know that he was of time. long periods We know that his mother vacillated forth, records, upon back and based from I hate saying *90 child, me, him, take him away from I don’t love I have him, never loved I don’t him again; ever want to see all saying, you people the Children’s Agency Services are my bad out of life people screwing up family, stay my I will my take care of kid. him back to me. Bring forth, forth, And so the kid went back and back and between his mother and like a something dozen different other and institutions at times. people various Phase, 5/16/96, Penalty N.T. at 1871-72. vulnerable from the From the
[Appellant] beginning. he was very beginning, vulnerable to violent behavior due to, one, environment, poor early already a as we have described, trial, neglect as have heard about in this you throughout abuse his life.
Id. at 1877. records, of the we upon my
Based review what have is an wherein [Appellant’s] incident hand was held on a burner of severely stove. And his hand was burned on that stove.38 And then what happened was Children’s Services was said, no, in to it. brought investigate The children then that happen. really didn’t That isn’t what happened. This was some time later.
That is common with children who have been abused. Then happened what was interviews were later conducted on with who said had with people they spoken of the perpetrator abuse, and he had confirmed that he had indeed done it. So is what I am looking at terms of confirmatory evidence of severe abuse. (footnote added).
Id. at 1890-91 difficulty The in this situation was kids [Appellant and were never returned home Dustin] because the situation had in the improved home. The kids were returned home because the mother wanted them there.
And even though Children’s Services knew Agency exist, those horrible conditions continued to the judge insist- ed on returning kid[s] to home. And that never fact, should have In been done. it was done against the advice of the Children’s agencies. Service And that is a fact.
Id. at 1893.
By offering the extensive mitigation testimony above, Attorney summarized presented picture Andrews 38. There is some confusion in the Appel- record as to whose hand — lant’s, Dustin's, burned, stepfather apparently punish- or both —a as ment. *91 chaotic, Appellant’s dysfunctional environment, family in which his ill mentally mother and absent or abusive father figures
could neither provide life’s basic necessities nor love and emotional to their support children. In the testimony, a home atmosphere simply not but neglect, also of violence and abuse apparent. Despite extensive evidence summa- above, rized Appellant argues that had his presented counsel abuse, even further details and more examples of of whatever nature, it likely that the jury would have attributed determi- native weight mitigation circumstances and not imposed the penalty. death We agree with the court that PCRA Appellant’s argument is unconvincing and ultimately unavailing. As he V, 1226-30, did in Spotz 896 A.2d at Appellant simply labors under the mistaken notion that if only the jury had more details and more data his regarding upbringing, it would not have returned a addition, death sentence. In we also agree with the court PCRA that Attorney Andrews cannot be held ineffective for failing uncover details and instances of abuse that Appellant and his family failed to disclose.39 Accordingly, Appellant’s allegations of penalty phase counsel’s ineffective- ness failing to investigate and present sufficient evidence of abuse and family dysfunction and impairment have no merit.
In the second sub-issue under Issue Appellant asserts that counsel was ineffective for failing to develop and present further evidence of Appellant’s drug and alcohol ad diction and abuse. Dr. Although Ragusea testified that Appel lant abuse, suffered from polysubstance argues now that counsel was ineffective for failing to present additional evidence addiction, of his drug use and including testimony from family witnesses, members and other CYS and child records, placement and court records of his prior offenses. Appellant’s Brief at 49. The rejected PCRA court Appellant’s claim, noting Spotz, wife, Linda testified that a problem had with drugs, marijuana, smoked used hearing, Ragusea 39. At the PCRA Appellant gave Dr. testified that an indication that there family, was sexual abuse in his grossly but "he 1/18/07, Hearing, understated it." N.T. PCRA at 138. *92 when he beer, very different crack, and was drank LSD 39; Penalty N.T. Opinion PCRA Court using drugs. was 5/16/96, Phase, at 1847-48. has claim Appellant’s court that with the PCRA agree
We of diagnosis that Appellant’s Dr. testified Ragusea no merit. a whole lot that he had “abused abuse meant polysubstance hashish, alcohol, all cocaine, substances, marijuana, different Phase, 5/16/96, at 1879. Penalty N.T. things.” those different mother, both Newpher, and Ms. Ragusea Dr. marijuana at the introduced to was testified that 1809-10, 1877. Dr. Id. at step-father. his by of seven age a home in in Appellant grew up that further testified Ragusea used, sold. Id. at bought, and commonly were drugs which 1877. counsel by Appellant’s
Attorney questioned Andrews excerpt, which we hearing, at the PCRA this issue regarding below: part, Andrews, testi- you previously Mr. PCRA Counsel: Defense present have wanted to evidence you that ... would fied Ragusea’s diag- Dr. support witnesses that would lay from diagnosis polysub- Dr. respect Ragusea’s noses. to With abuse, as much present have wanted you stance would history drug [Appellant’s] as was available of evidence abuse? you put as to how much would
Mr. Andrews: There’s limits
mean,
you
a fact is established
don’t
you
I
once
believe
on.
cumulative
on more evidence that’s
just keep putting
that
any dispute
that
there was
nature.
I don’t know
history
had a
of substance abuse.
[Appellant]
5/11/07, at 18.
Hearing,
N.T. PCRA
was ineffective
Attorney
Andrews
We will not conclude
additional,
evidence of Appel-
cumulative
failing
present
V,
In his third Appellant contends that counsel was ineffective for failing investigate, develop, present evidence of the lifelong history of violence perpetrated by Dustin Spotz against Appellant members, and other family as records, revealed Dustin’s psychiatric reports, CYS criminal history. Appellant’s Brief at 51-52 & n. 65. Appel- lant that if the argues full extent of Dustin’s violence and its effect on Appellant’s mental state had been presented, jury given would have mitigating circumstances more weight and not imposed death penalty. Contrary to Appellant’s assertions, jury heard considerable evidence as to Dustin’s abuse of and violence toward Appellant.
At least three witnesses testified in penalty the phase Dustin’s regarding abuse of Appellant the effect of and/or Dustin’s violence on Appellant. Ms. Newpher, Appellant’s and mother, detail, Dustin’s in testified with chilling numerous as to examples, gratuitous Dustin’s childhood violence against Appellant. excerpts See of notes of testimony, In supra. addition, trial, during guilt phase of Ms. testified Newpher as to the events that took in place her home on night Trial, 5/14/96, Dustin’s death. N.T. at 1170-1206. She testi- fied that Dustin in rage, was had threatened Appellant, and had him in stabbed the back with a steak knife butter knife. Id. at 1186. She further testified that Dustin had hurt both her and Appellant numerous times in the past, once stabbing Appellant the hand so severely that stitches were required. Id. at 1228-29. Muir,
Molly administrator, the CYS also testified during penalty phase as to Dustin’s episodes, violent including one where he held at knife-point. Phase, N.T. Penalty addition, at 1720. In Ms. Muir testified as follows 5/16/96 regarding Appellant’s with relationship Dustin and its effects on Appellant:
[Appellant] was torn between allegiance brother, his to his Dustin, and his interest in family. his Dustin’s behav- by to be drawn also tended
[Appellant] relation- sibling iors, follower and defender being the ship. place took on a children’s runaway home]
The last [from left his roommate 24, 1983, with [Appellant] when October and brother. were called to St. Inglefritz and Bill Lynn Washburn
When neces- boys, it was pick up Lutheran John’s Church behaviors. aggressive of his to restrain Dustin because sary difficulty clearly displayed his This is when most [Appellant] He Bill to let Dustin kept asking in determining allegiance. restrained, became upset was but being while go [Dustin] Lynn, to kick telling [Appellant] he was with Dustin because and, kill the baby. [Appellant] pregnant, quote, who was such and eventu- saying things, Dustin to pleaded stop with in the side. that he kicked Dustin ally angry became so incident, ... be- [Appellant] fluctuated During this whole behavior. It and abhorrence of support [Dustin’s] tween identity his own [Appellant] losing seemed that his down. letting [Dustin] values because of fear of id. at 1706. 1701-02; see also Phase, 5/16/96, at Penalty N.T. sexually Dr. had been Ragusea suggested Phase, 5/16/96, 1872, Penalty molested his brother. N.T. addition, during fight In Dr. testified Ragusea 1886. *94 death, Dustin stabbed in Appellant that culminated in Dustin’s times, to conclude that he was leading Appellant the back two to the death.” Id. at 1878. fight “in a testimony The thus established presented was, and his brother Dustin relationship between violent, childhood, volatile, Appel and abusive. early from to failing that counsel was ineffective for lant’s contention psychiat evidence in the form Dustin’s yet offer additional records, is meritless. history, ric and criminal reports, CYS cumulative of the merely have been Such evidence would to the matter of Dustin’s testimony regard with presented Appellant. abuse of and violence toward 14, Appellant alleges In fourth sub-issue of Issue his Appel to failing investigate that counsel was ineffective illness, which, Appellant argues, of mental family history lant’s directly also mitigating,” not but only “independently for mental illness.” “susceptibility Appel affected Appellant’s in the various particular lant’s Brief at 50. cites father; given biological of mental illness to his diagnoses mother, and brother Dustin as “relevant and Newpher; Ms. to the Id. at 51. jury’s mitigation.” material consideration evidence Appellant ignores penalty phase substantial Molly of mental illness. presented family history as to Muir, administrator, Newpher testified that Ms. had CYS emotional problems, including complete severe emotional care; for which she received psychiatric breakdown time; long period had over a experienced depression Phase, 5/16/96, Penalty had threatened suicide. N.T. at 1687- 89, 91. Ms. Muir also testified as to Dustin’s mental health behavior, his uncontrollable problems, including anger resentment, and threats of self-harm. Id. at 1703- aggression, 06, 1717-18; testimony. see also of Ms. Muir’s swpm, excerpts jury. Dustin’s violent behavior was well documented before the reports The Ms. Muir read into the record indicated that to hit him talking Dustin asked the caseworkers instead of occasions, at grabbed him. Id. 1705. On several Dustin had object hurt sharp and threatened slit his wrist or someone else, requiring physical crisis intervention and restraint. Id. addition, involuntarily at 1723-25. In Dustin had been com- hospital mitted to a 1982 on a crisis basis. Id. at 1719-20. Dr. the director of services at the Thompson, psychological School, subjected Milton testified that Dustin was Hershey from the school because psychiatric discharged evaluation Id. 1789-90. aggressive, extremely of his difficult behavior. that, Appellant’s concep- Dr. testified at the time of Ragusea tion, heavy kinds of which using “very drugs,” his father was can affect the material suggested genetic research has neurological syndromes. and result in with sperm offspring Id. at 1875.
Appellant argument why no as to how or additional provides family history evidence as to his of mental illness would not addition, In he merely provides have been cumulative. no to how or evidence of argument why family as additional his history possibly of mental illness could have been determina- tive in the balance of and fac- jury’s mitigating aggravating merit Attorney tors. There is no to his assertion that An- drews ineffective for such failing present was additional evidence. last, in the fifth
Finally, and and somewhat redun dant, sub-issue of Issue asserts that Appellant counsel failing ineffective for to obtain and consider all available records and evidence of his mental health problems, which abuse, incorporated abandonment, the effects of neglect, drug addiction, family history and of mental illness. More specifi that, witness, cally, Appellant asserts because his Dr. expert Ragusea, did not have access to all of the records and information regarding Appellant’s background,40 Dr. Ragusea “a in provided merely drop an ocean of background and data,” collateral and accordingly, presented “materially inac picture curate” life mental and health to the jury. Appellant’s Brief at 52-53. on Relying the PCRA hearing testimony psychiatrists, of two Dr. Neil Blumberg Fox, Jr., Dr. Robert A. as well Dr. Ragusea, as that, argues had all the evidence relevant to his background considered, “additional, and history been significant more mental health diagnoses” would have been rendered. Id. at significant would, 54. These “more mental diagnoses” health have argues, tipped balance favor of mitigat ing during circumstances the jury’s deliberations. Id. at 54-55. First,
The PCRA court denied relief. the PCRA court that, pointed out to the extent the records challenged issue were allegedly incomplete and inadequate CYS institu- records, information, allegedly incomplete 40. The or absent and evi- by Appellant dence following: testimony cited includes of Ms. text; Redden Appellant, supra as to abuse suffered discussed criminal, institutional, hospital Spotz, Appel- records of Dustin see 51, 47, 63; lant's Brief at 45 n. 50-51 n. CYS other institutional members, regarding Appellant family records and his see id. at 47-49 *96 tional records regarding Appellant family, and his immediate the matter had also been in the collateral of appeal raised Schuylkill County first-degree murder conviction. V, V, Spotz See 896 A.2d at In Spotz 1230-31. this Court Appellant concluded that had not been prejudiced by records, allegedly incomplete any because additional records would have been merely cumulative and redundant. Id. at case, 1231. in the Similarly, instant court PCRA conclud- ed that was not prejudiced by Dr. lack of Ragusea’s access to all the records and other evidence relevant Appellant’s background. The PCRA court carefully compared the various mental health diagnoses had re- ceived, both at the time of trial and for purposes collateral review, when the additional records brought were forth. The court PCRA determined that the differences in the diagnoses were prejudicial not and would not have altered the outcome the penalty phase, particularly of the substantial light evidence the three supporting factors found. aggravating See PCRA Court Opinion 45-46. The court’s PCRA conclusions record, are supported by them, and we will not disturb as below. explained
At the hearing, PCRA Dr. Ragusea explained general the significance terms of the additional records and other evidence regarding Appellant’s background as follows: have much
[We now] more information in general both from [Appellant] and collateral sources about his condition and the condition family result, of the for many years, and as a there’s a greater level of that I specificity didn’t have [at trial]. addition,
In the information that is derived from all that more specific information is more profoundly disturbing suggests more severe family dysfunction, more severe abuse, more severe sexual inappropriate activity. 1/18/07,
N.T. PCRA Hearing, at 142. Thus, words, Dr. Ragusea’s own the additional records and information merely allowed him to be more specific about Appellant’s condition and suggested greater degree of dys- Dr. abuse; however, from there is no indication
function and records and informa- that the additional Ragusea’s testimony change or substantially insights qualitative new any tion led in his opinions. then more how he had Ragusea explained specifically
Dr. on the additional diagnoses Appellant his based modified trial, Ragusea At the time of Dr. records and information. following he with the diagnosed Appellant testified that had deficit disor- hyperactivity mental health disorders: attention cocaine, der; abuse, marijuana, hash- polysubstance involving alcohol; disorder, ish, stress from the trauma post-traumatic *97 disorder, with fea- killing; personality of Dustin’s and mixed behavior, of antisocial and schizo- personality, tures borderline 34-35; at N.T. Penal- typal personality. Opinion PCRA Court Phase, 5/16/96, at 1877-81 and 83-84. After ty reviewing regarding Appellant’s additional records and other evidence counsel, at the of Dr. background request Ragusea PCRA (1) ways: diagnosis his in two the old of diagnoses modified person- mixed disorder with features of borderline personality behavior, ality, schizotypal personality antisocial and was re- disorder, with “a such as placed specific personality schizotyp- disorder, al because now is some personality simply [there] was at [Appellant] hallucinating evidence and delusional that that also in points family various and occurred members.” (2) 1/18/07, 142; Hearing, diagnosis N.T. PCRA at the old replaced stress disorder was with chronic post-traumatic disorder, duration, stress posttraumatic many years’ induced, just not Dustin’s but more by killing, generally by violence Appellant habitually and abuse had suffered his life. Id. at 145-46.41 family psychiatrist expert
41. The two witnesses offered the defense at the hearing Appellant PCRA also concluded that suffered from chronic and disorder, post-traumatic polysubstance severe stress as well as abuse. One, Fox, diagnosed Appellant compulsive Dr. also with obsessive disorder. diagnosed Although, Ragusea, psychiatrists Dr. like both also disorder, personality they regard type. with a differed with to the Dr. disorder, diagnosis personality Blumberg's Fox's was borderline but Dr. diagnosis personality specified, was disorder not otherwise with fea- borderline, dependent, schizotypal, personali- from and antisocial tures While we do not minimize the potential significance of the diagnoses revised to trained or psychologists psychiatrists treatment, involved mental health we can locate nothing suggest record to the revisions have would been determinative in jury. the deliberations of the with agree We the PCRA court that Dr. Ragusea’s diagnoses revised on appeal collateral constitute no prejudice Appellant because he has not established that the revisions would have caused the jury differently weigh mitigating versus aggravating circumstances. Opinion See PCRA Court 45.
Dr. Ragusea also testified both at trial and at the PCRA hearing statutory as to the mitigators, Pa.C.S. 9711(e)(2) (e)(3). (e)(2) §§ regard With to subsection (“The defendant was under influence of extreme mental or disturbance”), emotional Dr. Ragusea testified at trial that met this mitigating circumstance. N.T. Penalty Phase, 5/16/96, at 1882. At the post-conviction Dr. hearing, that, Ragusea testified based on the additional information he received, had he testify could to this mitigating circumstance “with a much greater degree certainty now because the emotional disturbance far greater and far bigger than that was—that was related to that single incident with his brother. [Appellant’s] level of emotional disturbance was broader, deeper, more than I severe had an appreciation for based upon the evidence that I had available to me at the time *98 1/18/07, N.T. [of trial].” PCRA at Hearing, 149-50. (e)(3) (“The regard
With to subsection capacity of the defendant to appreciate the criminality his conduct or to conform his conduct to requirements the of law was substan- tially Dr. impaired”), Ragusea testified at trial as follows: Ragusea:
Dr. I [Appellant] believe that could have con- think, formed his conduct to the law if he chose to. I Ibut am not certain. 26; ty Opinion disorders. PCRA Hearing, Court at 41 n. N.T. PCRA 2/22/07, 76; 1/18/07, 10-11, 17, at Blumberg at 26. Dr. clarified personality specified that disorder simply not otherwise is the newer 1/18/07, personality
term for mixed Hearing, disorder. N.T. PCRA Thus, appear type 10. it personality diag- would that the disorder Blumberg purposes appeal very nosed Dr. of collateral is similar i.e., type diagnosed by Ragusea, to the Dr. at the time of trial. first that the fact that has to do with the reason for And murders. commit these me that he did not told [Appellant] it like at the therefore, him what was And, I asked anytime said, he I was murder, you thinking, the what were time of driver, I the back lying and was unconscious behind concerned, I So, couldn’t as far as I was of the car. seat But, my answer general, at all. really that area explore I couldn’t tell. is ability ... just Let me back to get Counsel:
Defense law, really don’t you you said conform his conduct to you told always that because he had opinion have an on —he make a you that could you enough information give didn’t determination? That is correct. Ragusea:
Dr. you hypothetical If assume as a Counsel: Defense that he is in the fashion committed this offense [Appellant] on the say your findings are able to whether charged, you circumstance, to an being subject about mitigating first disturbance, upon would bear extreme mental or emotional the law? ability to conform his conduct to his Yes, It have impacted Dr. it have. could Ragusea: might it. doing him so he would have trouble adequately 5/16/96, Phase, at 1882-84. Penalty N.T. hearing, Ragusea regarding
At the Dr. testified PCRA (e)(3) mitigator subsection as follows: the fact that Dr. The other issues involved include Ragusea: they show of the these additional records do things one in a home in brought up that this man was then-young me He he was abhorrent behavioral standards. taught which humiliation, violence, life- taught degradation, was every It part actions were all normal. was threatening day family life.
Now, context, I know if he understood how within that don’t within the doing it that he was wrong things do our morality understanding framework of our sense of *99 of the law. Counsel: So then let me refer you to the first
Defense (e)(3) ], of [mitigator clause of the capacity defendant to appreciate conduct,.... the criminality of his Based on what we know with the augmented records and of[,] the extent as you abuse and degrada- characterized^] humiliation];,] tion and and the fact it continued life, throughout his entire can you today render an opinion to a reasonable degree of psychological certainty as to that first clause there?
Dr. Ragusea: Given that it is impossible for us to be inside head, somebody’s there are limits to what we can conclude. But to the degree that psychologists can make such a determination, yes, within a degree reasonable of psycholog- ical I certainty can say [Appellant] did not have the capacity appreciate the criminality of his conduct.
N.T. 1/18/07, PCRA Hearing, at 152.
Appellant has failed to establish that it was prejudicial for the jury not to hear Dr. Ragusea’s opinions modified regard- ing two statutory mitigating factors of subsections 9711(e)(2) (e)(3). The modifications in Dr. Ragusea’s opinions subtle, are largely a matter of or degree emphasis. As with the revised mental health diagnoses, nothing suggests record that the subtle modifications in Dr. Ragusea’s opinions as to the statutory mitigators would have led the jury to give determinative weight to mitigating circumstances and spare thus Appellant the death penalty.
Because none of Appellant’s multiple claims of ineffective merit, assistance in issue any 14 has Appellant is entitled to no relief. Department
15. of Corrections Reports Mental Health
In Issue asserts a violation of v. Brady Maryland counsel, ineffective assistance of both grounded in the failure of the Department provide Corrections to two reports of a mental health evaluation of Appellant conducted by prison health care personnel January 1996. Appellant contends that one of these documents constituted mitigation *100 to adjust he well that would it indicated
evidence because the addition, contends that documents life; in Appellant prison distur- capacity/emotional for a “diminished support provided was not defense,” Appellant that finding well as for a bance as 57-59. Brief at Appellant’s waive counsel. competent of fact with following findings the court made The PCRA at 46. When Opinion matter. PCRA Court to this See regard mental health sought Appellant’s Andrews defense counsel Corrections, the Department of Department from the records not be released without him records would informed that such 5/10/07, 160-64; at Hearing, N.T. a court order. See PCRA Livingood, Ben Corrections to Mr. Andrews from Letter (Petitioner’s Assistant, Exhibit dated Superintendent 11/13/95 82). Defender in York that the of Public Knowing Office records, Attorney same Andrews seeking County The of Corrections sent Department deferred to that office. records, that noting they psychological/psychiatric Appellant’s murder, to the to his incarceration compiled prior were 21, 1996.42 These February defender on County public York records, 1990 incarceration for Appellant’s which dated from assault, were for- burglary, conspiracy, robbery, simple February Andrews on County Attorney from York warded addi- counsel discovered two Subsequently, 1996. PCRA documents, mental health Appellant’s which summarized tional 31, 1996, but which January on by prison personnel evaluation had not been sent to counsel. apparently not ineffective The court concluded that counsel was PCRA imme- records re-requesting Department for not Correction addition, trial; the PCRA court noted that diately before had told counsel that he there was no evidence professionals. evaluated mental health by prison had been raised, court had Finally, recognized the PCRA Department of Corrections sent The court found that 42. PCRA County Appellant’s psychological/psychiatric records to the York Office 1995; however, the court's find- of the Public Defender in November ings regard with exhibits of record. The in this are not consistent February at issue were sent on 1996. exhibits show that the records discrepancy not relevant to our Petitioner's Exhibit 83. This See resolution of the matter. issue in the collateral rejected, and this had a similar Court in Schuyl- murder conviction appeal Appellant’s first-degree V, at 47 Opinion (citing Spotz kill Court County. PCRA 1237). V, issue, relief on this A.2d at In we denied Spotz nature of the documents’ assessment speculative based on the adjustment prison Appel- life and on future V, 896 A.2d prejudice. Spotz lant’s failure to demonstrate here, thus we affirm applies 1237. The same conclusion court’s on this issue. ruling PCRA at issue. consider first the content of the two documents We *101 Appellant, The first document is a evaluation of psychological Ph.D., the chief by Ryan, psychologist conducted Franklin P. Corrections, 31,1996, January for the on which Department shortly was a after crime and before year spree Evaluation, Dr. Psychological by his murder trials. conducted (Petitioner’s 84) (hereinafter Ryan, dated Exhibit 1/31/96 “Ryan The evaluation was Report”). apparently prompted Appellant’s complaints prison personnel sleep, decreased hallucinations, and Refer- depression. Psychiatry Department Form, Crowell, by Cynthia ral referred M. dated 1/29/96 (Petitioner’s 34). included, Exhibit The inter Ryan Report alia, the a following findings: Appellant IQ had verbal “bright “markedly normal he had a deviant” Minneso- range;” ta Multiphasic Personality Inventory profile; he described his “critical, love, family quarrelsome, lacking as under- isolated, alienated, standing] or he was support;” lonely, obnoxious, immature, and viewed him- unhappy, generally failure; self as he misunderstood and had demonstrated aggression towards others and admitted to having impulses something shocking. Ryan do harmful and at 1-2. Report report following The also suggested “Diagnostic Impres- (1) (2) mood; adjustment sions”: disorder with anxious per- disorder, severe, mixed, sonality passive- with features of narcissistic, antisocial; (3) aggressive, passive dependent, po- (4) remission; lysubstance abuse/dependence, problems at 2-3. under “Recommenda- legal system. Finally, with Id. tions,” eventually report following: “[Appellant] stated life. It him with a struc- adjust prison provides will well to ture, limits, and It will meet his guidelines. dependency aggression. and won’t tolerate his acts of He is strivings, can at a the next bright prison During be trained trade. decided, however, being while his cases are heard and he year, held in closer for the of those around custody safety must be him.” Id. at 3. document,
The second authored by Department Correc Maue, tions Frederick R. and also dated psychiatrist January 1996, 31, informal, extremely comprising only short and notations, few hand-written notations. to the Dr. According Maue saw who claimed to have felt better Appellant, after well, meeting Ryan, slept with Dr. and had fewer flashbacks Form, nightmares. Psychiatry Department Referral com Maue, (Petitioner’s M.D., R. pleted by Frederick dated 1/31/96 34) (hereinafter Notes”). Exhibit “Maue The Maue Notes do any diagnosis potential adjustment not mention or life.43 prison
For his argument as to the relevance of these documents to
trial,
the penalty phase of
relies on
v.
Skipper
South
Carolina,
1, 4,
7 & n.
U.S.
S.Ct.
143
a
Relying
prior holding
sentencing
L.Ed.2d 1 (emphasis original)) respectively. case, In the instant that counsel Appellant submits his ineffective proffering, for not as evidence under mitigation in the Skipper, projection Ryan Report that will “eventually adjust prison Ryan well to life.” at 3. Report that, Appellant has failed to establish the Ryan Report had the Maue Notes been mitigation offered as additional and/or evidence, there is a reasonable that the would probability jury have upon decided life not the death imprisonment, penalty. Appellant totally ignores the fact that the documents present far uniformly from positive picture personal his characteris- tics, relations, interpersonal future Al- likely conduct. though Appellant imprisoned nearly year had been when written, little, the documents were if they give any, as insight adjustment to his conduct in and prison during time. Ryan While the Report speculate does indeed life,” will “eventually adjust well to it also mentions prison others, aggressive several times his tendencies toward *103 Furthermore, we will not hold counsel ineffective for to failing proffer guilt phase these documents as evidence in
144 Appellant’s defense or of support capacity of a diminished The abso- provide to waive counsel. documents incompetence mental state at the time of lutely insight Appellant’s no as to offense, capacity the relevant time for a diminished only the 67, 593 Pa. 928 A.2d Rainey, Commonwealth v. defense. See 215, (2007) a defense of advancing 237 a defendant (requiring mental defect to “establish capacity [that diminished based on a mental defect at the time of murder that [the] he or had she] abilities of deliberation and cognitive [or her] affected his kill.”). intent to premeditation necessary specific to formulate Furthermore, remotely implies in the documents that nothing capacity not have the mental to understand the Appellant did not trial legal proceedings, competent and thus was stand Puksar, Starr, 1339; or to waive 664 A.2d at counsel. See fact, Ryan Report A.2d at 288. In the constitutes evidence to contrary, noting Appellant IQ that exhibited verbal 118, bright range which him in the normal of mental placed Thus, ability. capacity far from a diminished supporting defense, logically the documents more support Appellant’s to stand trial waive counsel. competence Accordingly, there is no merit assertions that arguable failing counsel was ineffective for to offer these documents as evidence of trial. during guilt phase 15,
Finally, in Issue
asserts a violation of
v.
Brady Maryland grounded
Department
the failure of the
of Corrections to
the documents at issue.
produce
with
neglects
accompany
any argument,
his assertion
but it
violation,
is meritless on its face. To establish a
an
Brady
alia,
accused must
inter
the evidence
prove,
allegedly
withheld
“material
deprived
evidence
defendant
Johnson,
aof
fair trial.” Commonwealth v.
572 Pa.
(2002).
material,
A.2d
evidence is
“Favorable
constitutional error
suppression by
gov
results from its
ernment,
that,
if there is a reasonable probability
had the
defense,
evidence been disclosed to the
the result of the
A
proceeding would have been different.
reasonable probabil
ity
probability
is a
sufficient to undermine confidence
419, 433,
Whitley,
outcome.” Id.
v.
514 U.S.
(quoting Kyles
*104
(1995)).
115 S.Ct.
16. to and of Mental Health Mitigating Treatment as a Factor In Issue Appellant asserts that penalty phase counsel was ineffective for failing proffer, as a circum- mitigating stance, disorders, evidence that Appellant’s mental including PTSD, treatment, were amenable to and that appropriate treatment for his mental disorders was available to inmates a life serving sentence. Appellant relies on the Department of Corrections mental health documents supra discussed in Issue 15 to support Furthermore, these assertions.44 he contends that his amenability to and the availability of appropriate mental health treatment should have been considered as addi- tional evidence supporting his favorable prognosis adjust- ment to prison life. Appellant’s Brief at 60-61.
Our review of the record reveals no indication that this matter presented to the PCRA court in a timely enough fashion to preserve it for appeal, fails to provide citation to the record to establish the contrary. See 2117(c)(4) Pa.R.App.P. (requiring “specific reference to the places the record where the matter appears ... as will show that the question was timely and properly raised below so as to preserve question on appeal”); see also Pa. 2119(e). R.App.P. The matter was first in Appellant’s raised reconsideration, motion for 21, 2008, which was July filed on nearly month after the PCRA court had issued its opinion and order denying all of Appellant’s claims for relief. There is 44. asserts that the Maue Psychiatry Notes and the DOC Department symptoms Referral Form "evidenc[e] Post- However, Appellant's traumatic Stress Disorder.” Brief at 60. there is no writings, only Appellant's mention of PTSD in self-reported these hallucination, symptoms sleep, depression. of decreased Further- more, "Diagnostic PTSD is not included in Impressions” of the Ryan Report. court the PCRA from the record
also no indication matter has been that the the matter. We conclude addressed 302(a) (“Issues in the not raised Pa.R.App.P. waived. See time for the first and cannot be raised court are waived lower on appeal.”) Alleged Errors and Ineffective Effects of
17. Cumulative Assistance *105 that the cumulative effect of next contends
Appellant grant warrants a of and ineffective assistance alleged errors relief, from the summarily prejudice “cumulative asserting error, prosecu- actions improper of court combination the trial tion, counsel at both performance by and deficient Comprising Brief at 92. Appellant’s appellate stages.” total, develop any in this claim does not only six sentences Appel- cumulative argument prejudice. reasoned for specific, Johnson, 329, v. 600 Pa. 966 lant cites Commonwealth merely Sattazahn, 523, (2009), Pa. v. 597 A.2d 532 and Commonwealth 648, 640, (2008), that a claim principle 670-71 for the 952 A.2d be viable. The prejudice may error based on cumulative claim cumulative effect Appellant’s court denied PCRA that individual claims findings Appellant’s based on its none 25, at 58. Opinion warrant relief. PCRA Court that “no number of failed [ ] We have often held relief if fail to do so may collectively they claims warrant Johnson, (quoting at 532 Commonwealth individually.” supra (2007)). 698, 586, Pa. A.2d 617 How Washington, v. 927 ever, that to claims that principle applies we have clarified Sattazahn, arguable fail because of lack of merit or merit. ground the failure of individual claims is supra 671. When the cumulative from prejudice, prejudice ed in lack of then Id.; assessed. John may properly those individual claims be 385, son, v. 537 Pa. (citing Perry, at 532 Commonwealth supra 705, (1994), may that a new trial principle 644 A.2d through accrued prejudice be awarded due to cumulative ineffective representation). instances of trial counsel’s multiple We have denied most of claims based on merit, lack of and there is no basis for a claim of cumulative error with to these regard regard claims. With to the few see one claims that we have denied based on lack of prejudice, 9, 15, sub-claim Issue two sub-claims Issue and Issue we are satisfied there is no cumulative prejudice warrant relief. ing These claims are independent factually and legally, with no reasonable and logical connection that would have caused the jury to assess them cumulatively.
PCRA PROCEEDING Testing Sample 18. DNA of Blood
In Issue asserts court PCRA erred by denying discovery related to the Commonwealth’s handling of a blood sample obtained from Appellant’s sneaker. right At trial, Appellant and the Commonwealth to a stipulated report by Cellmark Diagnostics, DNA laboratory Maryland that performed DNA analysis on the blood obtained from the sneaker, as well as on blood obtained from Appellant and his four victims. The DNA analysis excluded and the first three blood; victims as sources of however, Betty *106 Amstutz Trial, could not be 5/14/96, excluded. N.T. at 1133- 35. Appellant now that alleges the Commonwealth did not employ an independent lab for analysis of the blood from the sneaker, but rather lab, relied on a police which used out-of- date and less reliable testing methods. Appellant further that, states when he sought to re-test the blood from the sneaker, he that learned it had been destroyed, and he alleges the Commonwealth exercised bad faith in failing to preserve sample.45 the Appellant’s Brief at 92.
Appellant’s motion discovery related to these allegations was denied the PCRA court based on failure to show good Bloser, Jr., appears 45. It that Donald a employed by forensic scientist Pennsylvania the Laboratory, State initially Police Crime extracted and preliminary testing then did some of the blood stain on the sneaker. testing After belong established that the Appellant, blood did not to sample Mr. Bloser recommended that the be forwarded to Cellmark Trial, 1/13/96, Diagnostics analysis. for DNA N.T. at 1012. he stipulated the fact that had cause, light particularly PCRA Court Diagnostics. from report DNA Cellmark the that no also concluded The court at 62. PCRA Opinion proceedings the PCRA during been offered evidence had had been con- sample that the entire allegations support consumed, any had been that there sumed, or, if it had been addition, In sample. of the a way preserve portion of bad faith that there no evidence court concluded PCRA Commonwealth, that re- and no evidence of the part on the Appel- have exculpated sample possibly of the could testing 8/7/08, at 5- dated Opinion, Supplemental lant. PCRA Court 6. a in a petition in the context of PCRA requests
Discovery Rule of Pennsylvania are addressed death case penalty 902(E)(2), as follows: provides which Procedure Criminal case, (2) in a death petition penalty the first counseled On of the any stage proceed- be discovery permitted no shall showing good of court after upon leave ings, except cause. 902(E)(2).
Pa.R.Crim.P. discovery request post- of a We review denial for abuse of discretion. Common proceedings conviction (2004). Bryant, wealth v. Pa. 855 A.2d 749-50 has with the PCRA court agree We good respect cause with making showing not come close to of the blood analysis related to the discovery requests to his mention, much fails to obtained from the sneaker. and his discuss, analysis DNA Diagnostics’ less Cellmark His assertions of out-dated resulting report. to the stipulation bad faith on sample, destruction of analysis, methods of Commonwealth, of the exculpatory nature of the part Bald entirely unsupported. are barely explained evidence evidence, not assertions, do unaccompanied by any supporting cause, and we hold that *107 good of showing constitute denying Appel in court did not abuse its discretion PCRA Bryant, supra motion. See (stating at 750 discovery lant’s potentially as to errors or speculation possible that mere good not constitute cause under exculpatory evidence does 902(E)(2)). Rule Rulings
19. PCRA Court 19, allegations In Issue raises numerous PCRA (1) error, court failure to transmit the entire record including (2) review; of his preclusion proffers Court for testimony hearing, thereby allegedly pre- the PCRA during (3) record; preclusion him from venting developing evidence, particularly testimony much material and relevant (4) claims, supported his constitutional denial of his each motion for reconsideration.46 We address sub-claim turn. sub-claim,
In his first asserts that the PCRA court “transmitted those exhibits that were admit- only PCRA evidence, ted but did not transmit other exhibits [that into inadmissible, those though PCRA ruled even exhibits court] subject relate to issues that are the of this appeal.” Appel- lant’s Brief at 94. that it was error for the Appellant contends court to this the nineteen PCRA not forward Court exhibits not admitted into evidence.47 does not Notably, Appellant 19, Appellant exactly 46. In another of Issue sub-claim reasserts already rejected Appellant’s same issue addressed Issue 18. 95; text, supra. Brief at see approximately presented 47. There were 90 defense exhibits in total court, objected the PCRA of which the Commonwealth to 21. N.T. 5/11/07, Hearing, PCRA at 102. transmitted, i.e., allegedly We note that one of the exhibits not Exhibit inis fact included in the record transmitted to this Court and was apparently Hearing, admitted the PCRA court. See N.T. PCRA 5/11/07, by Appellant at 115-16. The exhibit is identified as P-10, "Schuylkill Hrg. Schuylkill PCRA Exh. handwritten note from prosecutor’s Appellant's file." Brief at 94 n. 123. It was described in testimony the notes of as a handwritten note from the file of the 5/11/07, Schuylkill County Attorney. Hearing, District N.T. PCRA note, entirety, 107-08. The reads as follows: its 10/6/95 Re: Noland atty won’t be here on the 18th [Noland's counsel] Cammarano Negos. Plea parents won’t be able to meet her until the 20th w/ 39. Exhibit *108 rulings the specifically challenge regard PCRA court’s with to issue, the of of the admissibility any exhibits and he does explain any not even how of the exhibits are relevant or material to the issues raised in this He appeal. merely that the complains inadmissible exhibits were not sent to this Court. duty
It is the of the clerk of court to transmit to the appeal, Court record on the including transcript necessary exhibits for the determination of the Pa. appeal. (c). 1931(a)(1), court, R.A.P. As an appellate we are “limited those considering only duly facts that have been certified Williams, the appeal.” record on Commonwealth v. 552 Pa. (1998). 715 A.2d Appellant authority cites no implied for his assertion that properly inadmissible exhibits Furthermore, constitute of the on part appeal. record Appel lant was free challenge appeal on the PCRA court’s eviden tiary rulings with to the regard admissibility of of the any Indeed, exhibits. He has not done so. he not has set forth a single argument or citation to authority legal or principle support of admissibility any of the exhibits at issue. Appellant’s bald assertion of error the transmission of record to this is entirely Court without merit. To remedy the non-existent problem record, transmission of the end, idea, seeks remand —to what we have no as no explana tion is offered. This sub-claim is frivolous in the extreme. sub-claim,
In his second comprises which three sen footnote, tences and a Appellant asserts that he was precluded from preserving and developing record because the PCRA precluded court his proffers testimony throughout PCRA hearing. Appellant’s Brief at 94-95. During the hear ing, PCRA court made clear the reasons for its rulings with regard to the proffers testimony. Appellant could Noland, pled guilty Christina charges who to several in connection with killings charged first three but was not in the instant crimes, County against Cumberland testified at trial. See Trial, 5/10/96, N.T. Appellant provides absolutely at 261-406. no insight note, materiality as to the conceivable relevance or of this which apparently scheduling Schuylkill concerns the County of Ms. Noland's plea negotiations, appeal. to his instant certainly challenged have these on with rulings appeal proper argument authority, and citations to relevant but for whatever reason, Instead, lists, he chose not to do so. Appellant merely footnote, in a seven citations to the where the record PCRA court allegedly precluded proffer testimony; counsel’s each citation accompanied only by to the record is which phrase, purports to summarize the in- proffer precluded, but which Id. at n. *109 argument cludes no as to the court’s error. alleged 124. This sub-claim is unreview- completely undeveloped and able, and, accordingly, it is waived.48 undeveloped Appellant's
48. To illustrate the nature of contentions in sub-claim, below, examples two are set forth each of which in- excerpt testimony by cludes the of the Appellant PCRA notes of cited accompanying unexplained and his excerpt. but assertion as regard example, Appellant only With to the first asserts that the PCRA "preclud[ed] proffer court expert testimony regard- on the relevance of ing Spotz's Dustin Appellant's sexual abuse.” Brief n. 124. Doctor, Counsel: in the ... [Spotz], records related to Dustin Defense there a propositioned boy asking reference that Dustin another him to have oral sex. Is that consistent with the conduct of a child who sexually reenacting has been abused and is that abuse? Objection. Commonwealth: PCRACourt: Sustained. significance Counsel: What would the anof event like this Defeme be? Objection. Commonwealth: PCRA your Court: Sustained. Move on to client. De Counsel: Your Honor— feme ruling. PCRA Court: I hammering have made the You are in the thing angles. same from 50 different Get me information that I have not heard that is relevant. just Counsel: proffer. Your Honor-I would ... offer a Defense PCRA proffer. Court: No. I don't want hear a You are ahead of game. 1/17/07, (cited Hearing, N.T. PCRA Appellant's at 181-82 Brief at 94 124). n. testimony It is clear reproduced from the notes of above that the PCRA proffered testimony court denied admission of die based on relevance absolutely argument and cumulative effect. has set forth no ruling that the PCRAcourt’s was erroneous. regard example, With only to the second asserts that the "preclud[ed] proffer expected expert testimony regard- PCRA court ing Appellant’s killing state of mind at the time” of the of his brother. Appellant’s Brief at 94-95 n. 124. [Blumberg], your Counsel: Doctor I would now like to turn Defense County attention to the Clearfield incident where Dustin attacks all, [Appellant], [Appellant] [Appellant]— kills Dustin. First of was [Appellant] propensities? how aware was of Dustin’s violent sub-claim, asserts that Appellant similarly In next his and relevant evi from material precluded presenting he was claims by of his constitutional PCRA dence support As in the hearing. prior evidentiary rulings during court’s sub-claim, relevant authority no and no citations to argument court error. bald assertions PCRA accompany Appellant’s ten areas in which he contends Appellant merely general lists evidence, foot lengthy and adds “precluded” PCRA court testimony, the notes of with each cite listing *110 PCRACourt: How is this relevant? Counsel: Because there was no mental health evidence that Defense all, rebutting presented was in that case at and in terms of the manslaughter aggravating of the conviction as an circum- seriousness stance, Blumberg going give opinion Dr. his Your that —well. Honor, may say— approach? I I don't want to may going approach. PCRA You not I am the Court: sustain objection. enough. I have heard It is not relevant in this case. sorry? Counsel: I’m Defense getting [Appellant] We are know what PCRA Court: not into the—we case, voluntary manslaughter. guilty It that has been Now, determined. how that case was tried and what the circum- case, stances were and what was admitted is not relevant in and I period. will not allow it 1/18/07, (cited Hearing, Appellant’s N.T. at PCRA 34-36 Brief at 94- 124). 95 n. excerpt It is clear from the above that the PCRA court sustained the objection finality Commonwealth’s based on relevance and the of a prior Again, example, Appellant conviction. as in the first has forth set absolutely argument ruling no that the PCRA court's was erroneous. text, generalized supra, Appellant's As summarized in the assertion rulings, examples, the PCRA court’s such as in the above denied him record, rights develop "the chance to in violation of his constitutional meaningful post-conviction review” does not constitute a reasoned argument amenable to review. of the testimony “precluded.” Appellant’s Brief at 95-98.49 are
Examples necessary to appreciate the manner in which Appellant has set forth this sub-claim. In the following paragraphs, two of the ten general areas of evidence listed Appellant, footnotes, and their accompanying reproduced are verbatim:
The PCRA ... precluded Court
evidence regarding Clearfield incident that counsel should have developed and presented trial and during penalty hearing would have supported Appellant’s men- tal state defenses for this incident and challenged the prosecution’s aggravation;
Appellant’s Brief at 95-96.
The footnote at the end of this claim is as follows: See, 1/18/07, e.g., PC 57 (precluding expert testimony about the impact of the Clearfield incident on Appellant’s pre- existing 2/22/07, impairments; PC 120-21 (precluding ex- pert testimony about Appellant’s mental state at the time of incident; Clearfield state; decedent’s mental the impact of the Clearfield incident on Appellant’s pre- existing impairments).
Id. at 96 n. 127.
Similarly, general another area of evidence by Appel- cited lant is as follows:
The PCRA precluded Court ...
evidence of Dustin Spotz’s history of violence and abuse against both Appellant and others that was relevant and material to at, both mental Appellant’s state and following, general 49. One of the ten testimony regarding areas concerns prosecution circumstances of guilty plea. Ms. Noland’s testimony contends that this was relevant Brady and material to his claim. Brady Brief at 97. raises two claims in *111 appeal, rejected, supra, this which we have in the text. One concerns murder, evidence as to the involvement prior of Mr. Carothers in a and the other reports concerns mental Department health from the of text, 15, supra, Corrections. See and respectively. Appellant Issues 3 provides absolutely suggestion no as to how the circumstances of Ms. prosecution guilty Noland’s plea possibly could be relevant and Brady material to either of these claims. constitu- counsel was County that in the incident Clearfield of support develop investigate tionally obligated the defenses; challenge in order to mental state guilt-phase penalty-phase of support and in aggravation; prosecution’s to his obligated present and that counsel mitigation that Appellant to ensure in order expert mental health health mental constitutionally required competent, received hearing. during penalty trial and at assistance Brief at 96-97. Appellant’s claim is as follows: at the end of this
The footnote (counsel eliciting from See, 1/17/07, prevented e.g., PC 176, at 181 (preclud- id. Spotz’s rages); of Dustin evidence Dustin regarding Spotz’s Blumberg testifying Dr. from ing 1/18/07, Dr. Fox from testi- (precluding 96-98 history); PC abuse and history of sexual Spotz’s Dustin fying regarding corroborating Appellant’s had on impact history him). abused sexually that Dustin allegations n. 129.50 Id. Appellant’s from paragraphs that the above emphasize
We ten areas of “evi- only examples Appellant’s are two brief footnotes, citations to the which in total fist 51 dence” and ten areas of “evi- testimony. Appellant’s In each of notes of above, which dence,” examples format is the same as the entirety In no case “argument.” Appellant’s constitute or rationale explanation Appellant provide slightest does from precluded claim that he was general his support evidence. presenting assertions; are not they arguments, generalized
These are with developed arguments supported reasoned and much less Appellant’s assertions legal authority. citations to relevant lack reviewable, is waived for utter and this sub-claim are not of development.51 testimony excerpt citation to the notes of
50. The second 2007, February Dr. Fox testified on brief is error. January 2007. not on phrases Appellant’s parenthetical after fail to note that 51. We cannot consistently testimony in do not even to notes of this issue his citations excerpt. For exam- accurately the circumstances of the describe *112 that, pie, Appellant following contends in the excerpt, the PCRA court precluded "expert testimony regarding impact Appellant's of foster- emotional, experience care on psychological, his stability.” and mental Appellant’s Brief at 96 n. 128. A review excerpt of the shows that Appellant incorrectly has characterized the PCRAcourt’s action. devastating Counsel: If it was emotionally was the most Defense —it caseworkers, devastating day for the what would it have been like for young those [Appellant two children Spotz]? and Dustin Blumberg: Dr. Well— Objection, assuming Commonwealth: facts not in evidence. What, being PCRA Court: they told going that weren't home with parents? their question Is that what the is? Counsel: Yes. Defense PCRACourt: Are or are not? going Counsel: Are not home. Defense PCRA Court: Sustained. I did not come from the moon. Come on. people There are sitting no over here. Get me the facts that I need to resolve the issues on. Honor, Counsel: Your this could have jury. been told to the Defense PCRACourt: question. Sustained. Next [Blumberg], Counsel: Doctor what ldnd of effect would this Defense type experience of [Appellant's] have on development? emotional Blumberg: Dr. Very damaging. Again, just implied is not an or indirect abandonment rejection but a definite parent from the that they don't want the child. It’s kind of hard to think anything terms damage of an emotional damaging. could be more Counsel: Would that compounded effect be with each addi- Defense parental tional instance of abandonment? Yes, Blumberg: Dr. certainly it would be cumulative. 1/17/07, Hearing, N.T. PCRA at 159-60. Blumberg Dr. then continued to answer questions regard- several other ing the effect on placements his foster care and abandon- Contrary assertion, ment his Appellant's mother. the PCRAcourt preclude did not testimony as to the effects of experi- his foster care psychological ences on his emotional and health. that, example. In a second following asserts in the excerpt of examination, grandmother's his prevented defense “counsel was from eliciting Spotz's evidence rages.” of Dustin Appellant's Brief at 97 n. Again, Appellant 129. import has misstated the excerpt. of the [Appellant’s] brother, Counsel: ---- relationship with his Defense you Dustin. Could describe —was there a way difference between the responded Dustin to the way abuse at home [Appellant] and the responded to the abuse? abused, Ms. [Appellant] Redden: When was very passive. he was He fight Dustin, did not back. quiet He took it and was about it. on the hand, abused, other when he was he fight returned abuse. He would stepfathers. with these other, And relationship their to each boys the two already —Dustin growth spurt. had [Appellant] his was small. Dustin was tall and of stronger course [Appellant], than they wrestling. would start initiate, Usually Dustin would let’s wrestle. go beyond Counsel: .... wrestling? Would it Defense Yes, he [Appellant]. He said didn't yes. would hurt Redden: He Ms. rages get these violent intentionally, he would started it but once do described that— Dustin Honor, going— I’m Counsel: Your Defense world him. Redden: —he had a different inside Ms. question. PCRACourt: Next any you observe these occurrences? Counsel: Did Defense Ms. Redden: Oh, was when I was yes, yes. The time I intervened getting really rough watching where them.....I saw Dustin *113 [Appellant]..... with [Appellant] finally twisting all different directions..... he And was Dustin, you’re hurting [Appellant’s] saying, me..... and improve they got ... situation or Counsel: older did this As Defense get worse? older, depressive got bipolar, manic Redden: As Dustin his Ms. violent, worsened, although course he more condition and of became [Appellant] growing was and he defend himself little bit too could more, got just time as he older he not but Dustin at that get wrestling spells. these for fun. He would violent 1/17/07, Hearing, PCRA at 39-41. N.T. assertions, preclude Contrary Appellant’s the did not PCRA court eliciting testimony by grandmother Appellant’s as defense counsel from outbursts, they against particularly violent were directed to Dustin’s as Appellant. eliciting precluded testimony Appellant further that he was from asserts system Brief Appellant’s failed at 97 n. [him].” that "the social services false, testimony following excerpts entirely This is as the of show: 130. many placements now Counsel: I want to turn to the Defense My question you [Appellant] specific [is] underwent as a child. can opinion and an whether Child and Youth Services other form as to agencies, governmental agencies responsible well-being the to insure Commonwealth, they in well as of children functioned as could have? they Ragusea: The worse than that. Dr. answer is functioned far This years agencies, all the I’ve worked with I’ve never seen was—in these given example society the a worse of that were affirma- —individuals protect never seen a [ ] tive action to children fail. I’ve worse — assigned example group of a individuals the who were task of suffering badly saving pain children fail as as this. That’s from question. the answer flags Counsel: Were there sufficient red for those—for the Defense authority something, remove to do these children from home? know, you Ragusea: Many. Again, points severity Dr. various known, enough there was information that [sic] wasn’t but these brought should been to their home. children never have back specific Counsel: was it one instance or were there And Defense multiple? No, multiple upon Ragusea: And based Dr. it was instances. at, brought that I kids were back to the home more record looked points, they their wanted them at various because mother there In the fourth sub-claim of asserts that Issue remand is in order to him to amend his required permit PCRA to include certain petition additional issues raised his mo- tion for The procedural background reconsideration. of this 26, 2008, sub-claim is as follows. On June PCRA court an all opinion denying filed and order claims. se, 4, 2008, Appellant, acting pro or about July On sent a Court,” “Letter to the he alleged which ineffective assis- counsel, sought tance of PCRA to remove PCRA counsel and himself, represent requested rescission of the PCRA court’s denying petition, order his and set forth several issues that he wanted the PCRA court to consider. These issues were the (1) following: to waive Appellant’s competency counsel at the (2) trial; time of penalty ineffective assistance of coun- phase sel based on failure to elicit that there testimony was treat- ment disorders, available in prison Appellant’s psychiatric (3) term; he were to be sentenced to a life inconsistent verdict, grounded jury’s in the of the finding subsection 9711(d)(6) (murder aggravating circumstance committed (4) murder; of a felony), course but not of second-degree *114 9711(d)(6) unnamed deficiencies in the statutory subsection aggravating circumstance. 21, 2008, July
On counsel Appellant’s PCRA filed a motion reconsideration, order; for to vacate the seeking PCRA court’s requesting consideration or reconsideration of the four issues were sent out of the home because their mother didn't want them at points. various records, reviewing Counsel: And even the Child Service Defense ones, enough minimal even from there there's indication that system failed? Objection, Commonwealth: asked and answered. your question Court: Sustained. He answered before. 1/18/07, Hearing, N.T. PCRA at 168-70.
Thus, Appellant's precluded eliciting assertion that he was from testi- mony system completely that the by social services failed him is belied objection, sustaining the record. The Commonwealth's and the of that objection, grounded continuing were in the cumulative nature testimony, nothing more. sub-claim, undeveloped challenges The sheer number and the excerpts, examples Appellant's above which are non-exhaustive mis- record, interpretation suggest attempting of the to compensate overwhelming for a lack of overall merit with an number of assertions of error. Court; Letter to the pro
raised in his se any extent that counsel failed to stating [present that “to the of a any support of merit or available evidence issue issue], have been ineffective.” meritorious those failures would Reconsideration, 7/21/08, Notably, filed at 3. Motion they provided counsel did not aver that unequivocally PCRA matter, with to nor regard any specific ineffective assistance as to the form that their they provide any insight potential did Nonetheless, have taken. the motion for might ineffectiveness averred that appropriate remedy reconsideration “[t]he enforce [Appellant’s] right effective assistance would be for presented PCRA to address the issues [Appel- [the court] ” 25, 2008, lant’s ‘Letter to the pro July se Court.’ Id. On ] after days filing his motion for reconsideration with the PCRA court, Appellant filed instant counseled to this appeal Court.
There is no indication from the record the PCRA court specifically Appellant’s addressed motion for reconsideration. However, the court already reject- PCRA had considered and ed claim that he was not to waive competent 5-8; at counsel trial. See PCRA Court at Opinion see also (discussion text, 2). addition, supra of Issue In the PCRA court, in a supplemental opinion, rejected had considered and Appellant’s claim of an inconsistent verdict jury’s based on the finding of both first-degree murder and the subsection 9711(d)(6) factor. aggravating See PCRA Court’s Supplemen- Opinion Pennsylvania tal Pursuant to Appellate Rule of Proce- 8/7/08, 1-4; (discus- text, dure dated see also supra 10). sion of Issue
In this appeal, Appellant now seeks remand to “amend” his petition PCRA include the issues raised in his reconsideration, Letter to the Court and motion for and to *115 allow PCRA court to consider or reconsider the merits of Appellant’s essence, those issues. Brief at 99. In Appellant seeks to file a second—and untimely petition, raising —PCRA issues, four more at least two of which have already been by addressed the PCRA court. Appellant cites no in provision the PCRA or other or decisional statutory undoubtedly law—
159 because there is no such which can upon this Court basis — v. See Commonwealth him relief grant he seeks. Williams, (2001) 553, 517, 566 Pa. 782 A.2d (explaining that the practical effect of the scheme of the legislative PCRA interpreted by as this is to limit the for opportunity Court collateral relief in most cases to a counseled single, petition); Lawson, v. Commonwealth 504, 107, 519 Pa. 549 A.2d (1988) (concluding that a second or any subsequent post- conviction for relief request “may be entertained for the only purpose of a avoiding justice, demonstrated miscarriage tolerate”).52 which no civilized society Appellant’s can fourth sub-claim is frivolous.
There is no merit any Appellant’s numerous claims 19, and, Issue accordingly, no relief is warranted.
20. Appellant’s Deductions from Prison Account issue,
In his final
Appellant contends that deductions
Department
of Corrections
from his inmate account were
addition,
assert,
appears
52.
In
vaguely,
also
albeit
PCRAcounsel were ineffective.
that,
Appellant’s
[]
filed
counsel
a Motion for Reconsideration
part, requested
permit
that the [PCRA] court
counsel to amend to
[¿.e.,
include those
Appellant’s pro
claims
claims raised in
se Letter to
Court],
specifically
they
Counsel
noted that
had no intent or strate-
that,
gic
failing
basis for
to raise these issues and
to the extent
issues,
counsel failed to raise
counsel was ineffective.
Appellant’s Brief at 99.
Other than
authority
a few
principle
person
citations to
for the
that a
seeking
counsel,
post-conviction relief is entitled to assistance of
entirety
sentences above constitute the
Appellant’s “argument”
apparent
his
assertion that PCRA counsel was ineffective.
We first note that
Philadelphia, Capital
the Defender Association of
Unit,
Corpus
represented
Habeas
Appellant throughout
has
the PCRA
proceedings
appeal.
To the extent that
PCRA
ineffectiveness,
attorneys
asserting
are
their own
such an assertion
general
violates the
argue
rule that counsel cannot
his or her own
Ciptak,
ineffectiveness. See Commonwealth v.
542 Pa.
A.2d
(1995) ("As
rule,
general
public
1161-62
may
defender
not
argue the
public
ineffectiveness of another member of the same
defend-
counsel,
essence,
appellate
er’s office since
is deemed to have
ineffectiveness.”)
asserted a claim of her
However,
her
or
own
impossible
exactly
because it is
to determine
what
brief,
assertions,
arguing
vague,
qualified
from his
we conclude
development.
the matter is unreviewable and waived for lack of
*116
the trial court’s sen-
unconstitutional because
unlawful and
pay
him to
directing
order did not include an order
tencing
now
with
Common-
agrees
costs of prosecution.
no
requires
has been resolved and
wealth
this issue
Commonwealth,
v.
judicial
Spotz
further
consideration. See
(Pa.Cmwlth.2009);
Brief at 21.
Appellant’s Reply
Chief Justice Justices join the opinion. ORIE MELVIN joined a concurring opinion, Chief Justice CASTILLE files Part II of by Justice McCAFFERY and which Justice ORIE joins. MELVIN a concurring opinion.
Justice SAYLOR files CASTILLE, concurring. Chief Justice join Majority Opinion entirety. separate- I in its I write ly implicated by to note and address broader issues the role performance purely of federal counsel state court cases, in capital collateral such as this one. proceedings Although funding the sources of the Federal Defender’s are ascertainable, entirely easily not clear or federal courts apparently play financing central role in these activities in state court the Administrative Office of Federal through my Courts.1 To this has been determined knowledge, policy implemented without the consultation and involvement of Court, any authority. or of other Commonwealth The federal courts—as well as other federal authorities and the Prothonotary Supreme The directed to 53. Court is transmit complete with 42 record of this case to the Governor accordance 97U(i). § Pa.C.S. 484, 488-89, Hill, 1. See Commonwealth v. 609 Pa. 16 A.3d 489-90 (Pa.2011). (who Pennsylvania citizenry generally even may not be aware of this unusual federal activity state not courts) may be — just aware of how global, strategic, and abusive these forays judicial have become. The federal policy has raised issues that should be known to the federal authorities financing and *117 authorizing incursions; Pennsylvania’s Senators and members; House and to the taxpayers ultimately who foot that bill. This is an appropriate highlight case to those issues.
I write to these in global issues this case because the cumulative effect of the Defender’s has taken strategy substantial and courts; unwarranted toll on state and also because the Defender has begun complain, both in this court, in Court and federal delays about in state court deci- sion-making, claiming that the delays violate various federal even, rights and in one intemperate federal pleading, asserting to, that this Court is indifferent and incapable of its managing, capital docket.2 The pleadings do not disclose or upon focus the primary cause of the delays, very which often is the prolix and abusive pleadings by filed the Defender in their many cases, as well as the Defender’s ethically dubious strategies and activities in other Pennsylvania capital cases—cases in- volving both initial and serial petitions PCRA of which —all bog Pennsylvania down courts. If the Defender is to be taken at its word respecting delay actionable and the Court’s sup- posed then it incapacity, is time for this Court to take affirma- tive measures to address the most obvious delay, causes of Court, which are well known to this and which to a great end, extent involve the Defender. To that this Court should immediately eliminate its existing page-limitation in- briefing matters, in dulgence capital PCRA and should begin regulat- ing the rampant briefing abuses found briefs such as the improper one the Defender has filed in this case. I also believe it is time to take seriously more requests by Commonwealth to order removal of the Defender in cases where, as is becoming distressingly frequent, lawyers their act Beard, (Petitioner’s Dougherty 2. See v. No. 09-CV-902 Motion to Reacti- Proceedings), lodged vate Habeas on this Court’s docket Common- Dougherty, v. wealth 585 CAP. I would refer to There are other measures inappropriately. in the remedial measures suggested our Rules Committees abuses, I will the Defender’s which discuss Section face of II below.
-I- effort in the face of the appreciate Majority’s yeoman I brings my which me to appellate briefing, Defender’s abusive case; later, main This is not a civil and point. federal if may appellant ultimately collateral iteration of it be federal relief, point federal at which the feder- pursues corpus habeas it al district court will be free to whichever counsel appoint But, there role of the federal courts at pleases. proper is no and, it is not clear that the courts of this Common- point; are obliged wealth suffer continued abuses federal “volunteer” counsel the federal courts. The paid by capital if petitioner, indigent, PCRA is entitled under our Rules to the But, counsel, of PCRA at state appointment expense. *118 Defender has decided federal tax dollars should be de- attacks; and, to conduct the ployed appellant’s state collateral litigation strategy federal authorities who finance their state the apparently approve tactic. The resources Defender bring was able to to bear in this state collateral litigating fact, attack on the perverse, border and this combined with employed, global tactics and the obvious efforts of the capital Pennsylvania Defender obstruct at all punishment costs, strongly suggests that there is more at work here than non-political, professionally responsible, advocacy.” “zealous
There are members of the bar who private continue to PCRA in our litigate capital appeals responsibly Court and (as needed) if effectively, proving proof were that abusive briefing necessary component is not of competent advocacy. zealous are im- Capital appeals inherently PCRA portant the ultimate is involved. are penalty They —because briefs, time-consuming- we the review permit longer —because trials, encompasses lengthy capital lengthy plead- collateral exhibits, (oftentimes) ings, and both the hearings, proce- dural and substantive law at issue an intersec- may encompass because, tion of federal and state law. are They difficult— cases, all virtually issues, of these there are a few troublesome of and procedure, substance which often divide the seven- member Court.
However, difficulties, the inherent and the inherent time commitment required, has been made needlessly more bur- densome by litigation Defender’s which strategy, is con- ducted on multiple litigants, fronts. New much taxpayer- less financed litigants, could afford to mount such strategic cam- This paigns. presents case a typical example myriad of the Defender; but, abuses of the there are of worse examples Indeed, conduct I outline later. I write in this case part because of its typicality, as it raises the question of the current, propriety of the partisan federal role in Pennsylvania collateral capital proceedings.
The Defender “volunteered” itself here before direct review Dunham, was completed: Robert Brett Esquire, filed appel- lant’s unsuccessful direct appeal petition certiorari in the U.S. Supreme Court. See v. Spotz Pennsylvania, 534 U.S. (2002).
122 S.Ct.
On Dunham, Mary Hans- attorneys: four by petition, prepared Five Gonzales, days L. Zuckerman. sens, and David Michael seeking later, supplemental petition filed another yet Dunham new claim. filings to add another prior to amend hear- 17-18, 2007, days the first two of PCRA January On Dunham, Hanssens, Zuckerman and were conducted. ings witnesses, the Defender Among other represented appellant. in a Defender expert psychiatry, forensic proffered called “mitigation specialists,” proffered Defender investigator, two County and a Clearfield Children expert psychology, clinical 12, 2007, Dun- February Youth caseworker. On and Services Gonzales, ham, Hanssens, sup- and Zuckerman filed another argu- additional claims or petition asserting yet plemental 22-23, 2007, February days hearings ments. two more On conducted, Dunham, Zuckerman, rep- and Gonzales were with witnesses, other the Defender resenting appellant. Among Another expert psychiatry. another presented proffered 10, 2007, four law- May was held on where full-day hearing Hanssens, Zuckerman, ap- yers Dunham, Gonzales— — final full day for The sixth and PCRA peared appellant. 11, 2007, Dunham, May featuring held on Zuck- hearings was erman, and Gonzales. 26, 2008, the PCRA court issued its order and
On June denying appellant’s all of claims. motion opinion Gonzales, reconsideration, Dunham filed was de- July notice appellant’s appeal nied and followed 2008. course, right Of there is a federal constitutional to counsel trial, government and I the federal could decide to suppose finance the states in such assistance to vindi- help providing But, cate the to ensure fairer trials. right, scope here, trial, try resources not to ensure a fair but to deployed lawyer that a trial prove presumptively competent incompetent simply perverse. This is a state collateral devoted, minimum, The Defender at a five law- proceeding. yers, investigator, multiple mitigation specialists, an and multi- It ple experts project. inundated PCRA court with pleadings, including trivial and frivolous claims inter- prolix
165 issues; lawyers it deployed multiple mixed with more serious to conduct and attempted multiple at who then hearings, redundant examinations. in
The of claims sound overwhelming majority appellant’s counsel, Amend- implicating ineffective assistance Sixth ment 104 S.Ct. Washington, and Strickland v. U.S. (1984). 2052, 80 claims involve not L.Ed.2d Strickland trial, mere at of constitutional lapses errors or mistakes but if a circumstance where it is as the defendant did magnitude, lawyer Proper not have a at all. examination of such claims counsel, avoiding hindsight, recognizing deference to requires by the art in and that mere errors lawyering, accepting relief, prejudice. counsel are not to To warrant enough prove involve kind of readily appar- a Strickland claim has to some ent, preju- undeniable counsel of obvious and serious lapse by foregone dicial effect. It is not a law school test of “spot And, objection.” lawyers it takes a team of five federal investigators of untold size supporting group comprising in experts prove the Strickland violation this case? obstructionist of the De- Laying overtly aspect aside here, fender’s the commitment of federal man- performance remarkable, one power beyond something alone is would major law firms. It is expect litigation involving large judiciary knowingly to think that the federal makes perverse Pennsylvania this sort of financial commitment in cases capital the collateral level. The review individual counties Pennsylvania, which murder typically pursue capital prosecu- tions, lack the sort of provide representation resources this And, prosecution at the main event—for the or the defense. resources, the federal commitment of equally perverse, on review, partisan, only collateral is apparently assisting capital attempting judgments. defendants in to undo their final state similarly The Defender’s in this is abusive. briefing Court Court, product The of officers of the it was not a faith good restrictions, it already-lax briefing effort to abide our borders on a of those Rules. The contemptuous flouting manner exhaust as much of briefing designed time as The incentive for possible. Court’s and resources day delay such conduct cases is obvious: each capital generates delay day abuse is another of the of eventual But, reckoning. legitimate justification this is not for bur- dening pleadings. Court with abusive *121 The “Initial Brief’ bears the names of four Defenders: Dunham, Zuckerman, Gonzales, and Eric The Brief Montroy. Rule, runs exactly pages. By principal briefs in this custom, however, are limited to 70 pages; by Court we have routinely indulged 100-page principal capital briefs cases. The Appellate Rules of Procedure dictate that the brief “shall” Case, 2111(a)(5); include a of the Statement Pa.R.A.P. and contain, alia, the Statement “shall” inter “A closely statement, chronological form, condensed in narrative of all of the facts which are necessary to be known in order to deter- mine the points with an controversy, appropriate reference in each instance to the place the record where the evidence substantiating the fact relied upon may be found.” Pa.R.A.P. 2117. The purpose importance and of the requirement obvious any lawyer who has drafted an appellate brief.
The Defender deliberately Case, omitted a Statement the so that it could raise more claims thereby and evade the 100- page briefing limit. In an endnote to a truncated one-page procedural summary that inaccurately it calls the “Statement Facts,” the says: number, Defender “Because of the and nature, fact-intensive of the claims presented in this appeal, and so as to both all preserve issues and keep this brief to a reasonable seriously, the says Defender this—“the size”— facts material to the individual claims are set forth in connec- tion with the discussion of each claim.” Initial Brief of at 4 n. 1. briefing Our rules are not bizarre Pennsylvania procedural requirements. the Notably, Federal Rules of Appellate (a) Procedure limit briefs to principal (b) 14,000 words, (c) mere 30 pages, or 1,300 or no more than lines of text if the brief employs a “monospaced face.” Head- footnotes, ings, quotations count toward the word fine R.App. 32(a)(7). limitations. Fed. P. The Federal Rules also mandate that the Appellant’s Brief “must contain” both a matters) statement of the case (addressing procedural and a to the submitted for review “statement of facts relevant issues R.App. Fed. P. with references to the record.” appropriate 28(a)(6), (7). brief,
In a where a maximum as appellant case files here, violation both particular hampers deliberate many review with however Court’s and burdens Court it has squeezes pages additional claims the Defender into And, the Defend- improperly gained by squeeze violation. issues, er did. The Brief raise which pretends “only” But, would be within those enough. twenty burdensome are My claims multitudes of additional claims or sub-claims. conservative count of the total number of distinct “claims” Brief, in the presented including Defender’s both derivative subsidiary allegations, exceeds 70. How does the Defend- manage er 70 claims in a brief? It “litigate” 100-page employs number of additional tricks. *122 Brief,
For in 100 of the Defender includes example, pages footnotes, no less than 136 of extreme single-spaced many routinely and then advances distinct substantive length, argu- See, ments those footnotes. Initial Brief of e.g., Appellant, 15, 18, 20-29, 32-33, 43-51, 53, 59, 61-70, 72-77, 37-39, nn. 79- 85, 94-95, 103, 107-18, 123-25, 127-34. The Defender also seizes more not briefing space single-spacing, indent- Presented, ing, Questions its Statement of them virtu- making See, ally unreadable in the id. at 2 process. e.g., (containing single-spaced lines of text running margin margin). to Anoth- abuse, er common Defender immediately recognizable to those Briefs, of us with charged attempting to read their is to list distinct claims or sub-claims bullet by single-spaced point text, essentially doubling points number of to be made. worse, To make the abuse points simply these bullet often declare the legal support; sub-claims without or development times, footnotes, may other the Defender will which append contain factual or or support argument, may pro- substantive meaningful development vide no or of the rele- explanation See, 27-29; vance of at 29-30 nn. e.g., bald citations. id. & 53-57; 53; 86-92; 82-83; nn. nn. nn. 47-48 & 64-65 & 66-67 & 71-72 & nn. 96-101: 75-76: 83: 95-98 & nn. 125-34. The then to
time-consuming placed attempt burden is on Court Query: does the Defender do this decipher arguments. in federal district court? In the Supreme U.S. Court? Or the federal abuse reserved for state courts? For a it is but a particularly egregious example and, single — this abusive take Issue # third
example briefing, sub- —of argument. The consists of a declaration that the “argument” court in “Precluding Appellant PCRA erred from Presenting during days Material Evidence” the six of collateral review ten, the court held. What follows are hearings single-spaced Brief, point pages bullet claims over two of the all spanning footnotes, accompanied by accompanied by legal and none developed Majority citation or The a sense argument. gives just are, how single-spaced frivolous these claims discussing 46-50, examples. Majority some See at 149-54 & nn. Op. A.3d at 322-325 & nn. 46-50. good
This is not a faith effort by officers of the Court to abide by perfectly briefing reasonable restrictions. What is next: framing the entire section of argument the brief as a giant single-spaced legitimate footnote? What ex- purpose And, plains briefing such tactics? is it appropriate, given principles federalism, for the federal courts finance litigation abusive in state courts that places such a burden on this Court? defendant,
A capital any like has the litigant, right to raise And, course, and pursue viable claims. capital cases are different. This Court’s commitment to more than affording colorable, opportunity sufficient to raise non-frivolous claims is Court, date, reflected in the fact that this permitted has capital appellants to file briefs that are 43% than other longer *123 litigants’ briefs —both appeal on direct and on appeal. PCRA The Brief here a thorough is and deliberate abuse of that Moreover, indulgence. out, as the Majority correctly points of many appellant’s stated, claims here are frivolous as often- times unsupported by recourse to case law or the record. See 50,18 also Majority Op. at 154 n. A.3d at 325 n. 50 (“Appellant to attempting compensate for a lack of overall merit with an error.”). overwhelming number of assertions of Other claims are obviously makeweight: example, as if other every word prosecutor’s out of a trial mouth both process, violates due represents test of the constitutional competence of trial counsel. ethical,
There is no legitimate, faith basis for good obstreperous briefing. The Defender’s who are offi- lawyers, Court, cers of this have right jam no as many undeveloped and frivolous claims into their briefs as possible, employing footnotes and single-spaced blocking sabotage re- briefing strictions, in pursuit of an agenda maximizes the burden time, on this Court’s resources and so delay. as create If time, this Court had the I striking would recommend the Brief professional, brief; ordering appropriate but that would matter, only delay and I will we suggest address the problem by specifically altering our rules. briefing
It did not have to come to this. The of provision federally- financed lawyers for state capital petitioners PCRA appears welcome; on its benign face and it spares Pennsylvania tax- payers the direct expense But, of state-appointed counsel. that veneer ignores reality of the time lost and the expenses generated in the face of the litigation resources and agenda of the cases, Defender. Capital like criminal cases generally, are highly individualized. Each case is invariably about one defendant crime; and one primary capital and the lawyer defense a duty has of zealous in advocacy advancing his cause, client’s within the ethical limits that all govern Pennsyl- lawyers, vania they whether are paid by the federal govern- But, ment or not. the Defender has the resources and the luxury to pursue a more global agenda, and its conduct to date that, strongly suggests if it once engaged mere legitimate clients, zealous defense particular it progressed has to the zealous pursuit what is difficult to view anything as but a political cause: to impede sabotage the death penalty Pennsylvania. It is not difficult to understand the motivation: indeed, there are persons good faith and integrity who sincerely oppose capital punishment and are to contrib- willing ute their time defeat, and talents to its by whether one stroke politically, or incrementally, case case.
But, realm, this is not the political lawyers must act ethical- ly, and obstructionist tactics and agendas litigation are *124 must Pennsylvania the courts of Assuming
inappropriate. state purely at all the Defender the of participation abide of are officers only they because it is proceedings, collateral like it abolitionists penalty death lawyer Whether this Court. of 83 other not, people like the Pennsylvania, the people or whole, capital have on spoken a the nation as states and lawful; this is not is Court penalty and the death punishment, to dismantle or that seek tactics indulge political obliged does not mean difference of death law. The impede governing capital of a of the defeat pursuit and all tactics any are legitimate. judgment unaware of the judicial brethren are
I am sure our federal abuses, the effect of they fully appreciate nor can extent of the abuses, The Defender to illustrate. attempt so I will these case, the to overwhelm attempts revealed in this strategy, as many pleadings, volumes of claims and courts with state frivolous, prosecutors which burdens strategy simply strategy It also a a trial court for weeks. can shut down of its increasing portion an to devote requires which Court the Defend- and decision of and time to consideration docket Court, Court and Supreme like the U.S. er’s cases. Our Circuit, jurisdiction. in its highest is the court unlike Third Court, manpower, we have finite Like the U.S. Supreme which determining functions is of our most important one review. Like the dockets warrant discretionary cases on our Court, to grant not have the resources Supreme we do U.S. new questions, we look for cases every posing review in case: cases, range a wide affecting questions, questions close courts, supervisory cases posing which have divided questions errors, etc. Also like with apparent egregious cases questions, Court, typically pose we accept the cases Supreme U.S. But, the High issues. unlike very limited number of discrete docket, Court, governs which capital appeal we also have a have no statu- review. We rounds of intensive direct multiple far, docket, and, it has been so capital discretion over tory types the number and who determines capital appellant we will review. claims petition
Our in first PCRA cases where the Opinions capital away Defender are far and time-con participated most on suming Certainly, they of the cases our docket. appeal *125 case, our generate many longest of Take this where opinions. the exceeds 125 as the Slip Opinion pages, Court painstakingly below, record, the slogs through pleadings the and the morass also, that is the brief. e.g., Defender’s See Commonwealth v. Lesko, 128, 15 (2011). 609 A.3d very Pa. 345 As a conservative estimate, it to say is fair that the of the practical consequence expenditure to of resources decide a Defend necessary typical er in appeal these cases is to render this unable Court to accept and about discretionary review five As a appeals. result, for example, rarely this Court of accepts review cases (via PCRA) direct or appeal where convicted murderers are sentenced in prison, to life without of possibility parole. death, those are Though sentences not as “different” they as are certainly different from criminal cases the where defen release; dant has the of prospect they and are importance to the serving defendants them. course, objection
Of the will be that all claims must be in But, so, raised a case. capital is simply not and particularly on collateral review. Abusive does not briefing increase the chance what it prevailing; increases the (both sides, in delay cases, in briefing capital require multiple briefs) extensions of time to file in decision-making. Moreover, the notion that all of the claims in these abusive briefs are is a Many deliberately colorable canard. are unde- Consider, also, veloped. the last theoretical of collateral stage convictions, capital review of state which is the defendant’s federal appeal habeas to the federal Circuit Court. How many federal in those ultimately issues cases under the qualify certificate of appealability requirements federal attending ha- (state § beas review? See U.S.C. cannot prisoners appeal issues; final orders unless certificate of appealability “A appealability certificate of issue ... may only appli- if cant showing has made substantial of the denial of a constitutional right.”). The bulk in issues raised case, PCRA this petitions and renewed in appeal, are courts down bog the state only makeweight, designed pure delay. induce lawyers for of federalism principles it with comport Does Supreme a state to so affect courts the federal by financed of federalism principles with comport Does it Court’s docket? capital to enter state group finance a the federal courts the PCRA that inundates agenda an pursue will and cases at frivolous pleadings with abusive and this Court courts bypass of attempting ultimate aim claims, the apparent with the state courts? recent In a number of theoretical. are not questions
These briefing prolix typically cases with involving pending instances Defender, complained have PCRA defendants capital in the decisions delay court about or federal this Court has not that this Court complaining appeals, PCRA of their *126 cases in a time- to decide their other business all dropped See, Dough v. e.g., to them. Commonwealth frame acceptable filed (Motion Proceedings Habeas to Reactivate erty, CAP court, failure Court’s premised upon district in federal months); v. eleven Commonwealth within appeal decide Court, (Motion filed in this Hutchinson, Expedite 517 CAP vio delay that in decision assertion consisting boilerplate of circum none of which address rights, lates various federal (alleg issue); Douglas, v. 495 CAP stance at Commonwealth documentation, diagnosis recent of ing, supporting without cancer, warrants arguing diagnosis and fatal potentially decision). none of the Notably, of expedition preferential in the the Defender’s briefs length the of motions mention claims, the of complexity of or prolix or the number appeals, below, overall and or the maneuverings and proceedings the on this Court. imposed Defender has burden the collective Dougher- In revealing. Dougherty The federal motion four two by lawyers: is represented the ty, capital appellant Edelman) (Robert and Renee Dunham from the Defender ” Spahr the law firm Ballard from partners bono “pro two Farmer). subject The of the (David and Shannon Fryman of the in disposing of this Court alleged is the lassitude Motion not and Ballard did but the Defender appeal, pending PCRA the Motion.4 The federal copy favor this Court with of motion, 9, 2010, “re- dated November states this Court inaccurately represents fused” to expedite appellant’s appeal, the time that had then and declares that “no action” passed, fact, had been taken on the case. In counsel have no idea by what actions have been undertaken this Court its deliberations. The Defender and Ballard then on to attack go handling capital this Court’s entire of its docket. The Defend- that, er and declare on contemptuously Ballard “Based Pennsylvania track record of Supreme deciding capital Court’s appeals, opportunity any substantive state [appellant’s] away.” court review of his case is still The years Defender they and Ballard then declare that face “continued inordinate delay proven before a state court that has itself incapable docket,” managing its later capital accusing Court “leaving appeal] languish” falsely alleging [the that it has been held “in The suspense.” Defender and Ballard “judicial delays declare that the determination of initial PCRA have become routine.” The appeals Defender and Ballard then of the undecided complain “active” cases on our docket, no to account for: making attempt record and cases; remands; briefing status of whether there have been they whether are serial fre- petition appeals (appeals, PCRA frivolous, quently time-barred and most often filed Defender, which automatic in the generate delay disposition of federal pending petitions); habeas role of individual delays circumstances —such as or requested by chargeable to motion, course, the Defender itself. The aim of the federal is to convince the federal habeas court to forgive the Defend- *127 er’s clients the necessity exhausting their claims in state court, so that in they may proceed system de novo the court that finances them. grievous by
These are accusations made members of the bar true, of this Court. If these accusations were and if candor armamentarium, part were of the Defender the federal plead- 4. The Motion forwarded the Commonwealth via a was Post-Submis- Communication, Motion, seeking lodge sion with the Common- noting wealth made that this Court should be aware of the accusations. granted We the Commonwealth's Motion. 174 have that “the in
ing would stated Defender has succeeded in causing delay capital such the decision of cases that in [fill in outrage]. exhausting We have succeeded the state now, courts; please forgive so us the federal habeas exhaus- But, true; indeed, tion the accusations are not requirement.” they beyond disingenuous.5 are And the Defender knows it. examples delay 5. Two of Defender in cases the Defender calls “active” “pending” “languishing” supposed incapa- and due to this Court's bility are of the illustrative abusiveness of the federal motion filed in CAP, Dougherty. Clayton, Commonwealth v. involves a serial PCRA petition filed in 2004. That matter was not briefed and submitted to 29, filing underlying the Court until March 2011. Before serial petition, successfully Clayton’s the Defender had moved to have federal petition abeyance ping-pong habeas held in so he could back to state pursue court to serial claims. State relief was denied in June of 2008 petition untimely; yet, appealed. because the serial Thereafter, the Defender delayed the matter was because the Defender failed to discharge duty appellant forwarding its as to ensure the of the record. only It was after the Commonwealth filed a Motion to Dismiss in March broke, Defender, logjam response of 2010 that the and the to the Motion, requested briefing that a schedule issue. The Defender obvi- ously knew these facts when it filed Dougherty. its federal motion in defendant, Defender, delay The and then the also caused the bulk of the Ali, CAP, opinion Commonwealth v. as detailed in our recent 282, deciding (Pa.2010). that case. See 10 A.3d The PCRA himself, petitioner sought represent in Ali and we remanded for a hearing opposed on the issue. The every Defender its client's wishes step way, claiming of the which incompetent included that Ali must be services, filing interlocutory if he did not want appeal, attempting its an order, to add new collateral claims in violation of the limited remand filing appeal granted then an unauthorized after the PCRA court request represent Ali’s himself. It is debatable whether all of these procedural legitimate; maneuvers were what is not debatable is that it maneuvers, request, ensuing was the defendant's and the Defender's indifference, judicial delayed not the case. below, In the text I discuss three other cases on the Defender/Ballard "languishing resulting list of cases” "incapability” from this Court's Hill, managing capital (decided); its docket: Commonwealth v. 521 CAP (pending); Commonwealth v. Porter (pend- Commonwealth v. Banks cases, ing). strategic In all three conduct of the Defender was the primary delay. cause of Furthermore, case, briefing which involves abusive Defender re- quiring dispositional opinion pages, excess of 125 is on the list. Defender/Ballard In addition, eight capital appeals other on the list Defender/Ballard by published opinions were decided of this Court between December (PCRA April 2010 and appeal 2011: Commonwealth v. Ali above; impeded by 57-page slip opinion); Defender as discussed Com- Dennis, (PCRA remand, appeal following monwealth v. 491 CAP a fact
175 of the federal courts to such unethical response Whatever conduct, it will not be fashioned with a first-hand awareness of the burden that their decision to finance defense-side collater- al has on courts. capital litigation imposed Pennsylvania’s Does it with to finance law- comport principles federalism yers pursue who an in state court to bottle agenda designed up state courts? Does it with federalism when comport those undertake an lawyers agenda designed to maximize the decisions, power ignore federal courts to state court or to authorize bypassing state courts?
Notably, with to the in the respect specific delay issue of decision of capital appeals, PCRA the local federal Circuit Court must have some sense of the In Motion to difficulty. its Lodge the Defender’s federal pleading Dougherty, delay Commonwealth notes the substantial in the resolution of appeals numerous various involving capital state defendants. See, (3d Cir.2008) Horn, e.g., Abu-Jamal v. 520 272 F.3d (initial 2001; appeal habeas filed in Third in December Circuit 2008; final order by issued Third Circuit in March on petition Commonwealth, by Supreme granted U.S. Court certiorari not "delays”); accounted for in federal motion and calculation of (direct Briggs appeal necessitating 76-page slip opin- Commonwealth v. ion); Lesko, (PCRA cross-appeals; Commonwealth v. 518-520 CAP 93- page appeal raising principal Defender brief on Lesko's 22 claims and sub-claims, including allowing innumerable in 68 footnotes brief to limitation; page 91-page violate appellee; Defender brief as necessitat- (PCRA ing 104-page slip opinion); appeal; v. Commonwealth Hill issue); representation Defender primary and conduct the Common- (PCRA Paddy, appeal; 99-page principal wealth v. 478 CAP Defender claims; raising primary necessitating brief 57-page slip opinion); Smith, (PCRA remand, appeal following Commonwealth v. 591 CAP claims, 71-page raising principal despite Defender brief fact that issues; guilt phase necessitating 62-page slip case was limited to opinion). capital Decisions in another two cases on the Defender/Bal- being contemporaneously lard list are issued with the decision in this itself; Houser, Dougherty case: Commonwealth v. and Commonwealth v. 541 CAP. addition, time-barred, involving peti- In two other cases serial PCRA per tions were decided this Court via curiam affirmance: Common- Fisher, brief); (third petition; wealth v. 607 CAP PCRA Defender Bridges, Commonwealth v. 609 CAP. capital largely courtesy represent These cases— Defender— part supposed small of the workload of this Court. Such is the approach capital lassitude of our to our docket. 2010; on January April
and remanded to Third Circuit
*129
2011,
reinstating
previous
its
opinion
Third Circuit issued
grant
penalty phase
order
district court’s
of habeas
affirming
367,
486
Maryland,
relief on a claim
Mills v.
U.S.
involving
(1988)).6
1860,
And those appeals,
108 S.Ct.
I The as I have say lightly. none of this a in pursues complex legally questionable global strategy But, Pennsylvania just cases. as the Defender stares capital Court, And, we have choice but to stare back at it. this no this case is case of abuses. merely typical Defender We have had circumstances where the conduct of the Defender is not even this benign. occasions,
On
the Defender has taken
multiple
unauthorized
in
matters
former
appeals
capital
against
PCRA
its
clients’
Ali,
282,
(Pa.2010);
10
wishes. See Commonwealth v.
A.3d
290
Saranchak,
1197, 1198
Commonwealth v.
570 Pa.
810 A.2d
(2002).
Sam,
Accord
v.
597 Pa.
Commonwealth
A.2d
(2008)
that Robert Dunham initiated
(noting
pro
PCRA
without
from
ceeding by filing
petitioner,
PCRA
authorization
“behalf’).
claiming
doing
petitioner’s
he was
so on
Each such
course,
appeal,
unauthorized
exhausts the time and re
sources of the Commonwealth and the state
The
judiciary.
employed
strategy involving
Defender has
the same
unautho
rized
in at
litigation
reported
least one
federal habeas case
involving Pennsylvania
defendant.
Michael v.
capital
See
(3d
Horn,
Cir.2006).
It is with highly significant, respect indeed the tenuous nature of these that Michael proceedings, [the did not an in capital appeal defendant] decide take this and, fact, place case in the first case never this should may rehearing petition 6. The Commonwealth seek still en banc or Supreme U.S. Court for review of the certiorari Third Circuit's recent decision. Thus, have reached this court. question actual before us is whether a defendant may cause an appeal filed his name without his authority by someone else to be dismissed. case, In this the Capital Habeas Corpus Unit of the Defend- er Association of without Philadelphia, Michael’s authoriza- tion, filed the appeal from the district court’s order of 10, 2004, March granting Michael’s motion to dismiss the habeas corpus Thus, petition. truly case is extraordi- nary because the Capital Habeas Corpus Unit filed this unauthorized appeal the name of an appellant whom the district court had found to be competent, from an order that appellant sought had which, obtained and from quite naturally, he did not want to appeal.
Moreover, yet there is another extraordinary fact about *130 this appeal. The Capital Habeas Corpus Unit filed the appeal even though 10, the district in court its March 2004 order dismissing the petition for habeas corpus also dis- missed the Capital Corpus Habeas Unit and all its attorneys Michael, as counsel Horn, 438678, Michael v. 2004 WL (M.D.Pa. at *24 10, 2004), Mar. and neither we nor the district court ever has stayed that order. Accordingly, the Capital Habeas Corpus Unit acted without authority when it filed this appeal in an to attempt frustrate Michael’s wishes. The reality of the situation could not be clearer. The Capital Unit, Corpus Habeas rather than Michael, representing its client, supposed was representing itself and advancing its own agenda when it filed this appeal.
459 F.3d at J., (italics 421-22 (Greenberg, concurring) added; omitted).7 footnote
In
instances,
other
the Defender’s conduct has been so
inexplicable (inexplicable when
by professional
measured
ethi-
Lambert,
461,
(2005),
7. Commonwealth v.
584 Pa.
As of Atkins a remand for a bench determination requests that The asserts mental retardation.... Commonwealth reward federal might ultimately appellant’s other result any the Commonwealth for their which gamesmanship, counsel courts on the bypass state strategy submits was substantive question. Thus, Atkins the Commonwealth av- ers that refusing remand the matter would appel- reward lant’s “contumacy by him enabling to raise the claim anew in a federal petition, habeas without the burden of fact-finding by the state courts.” Brief of the Commonwealth at 17. The Commonwealth argues appellant’s stated rationale for refusing introduce relevant evidence before the PCRA judge of his supposed mental retardation —a professed fear of thereby waiving his claim of an existing “right” jury to a “nonsense,” determination —is since appellant made an ob- jection court, before the PCRA which the court specifically objection noted that the preserved the jury question for this Court’s review. The Commonwealth hypothesizes that such a facially risky position suggests that appellant and his counsel have their strategic sights set on de novo habeas corpus review in courts, the local federal which appellant’s federal lawyers view as a more sympathetic forum in capital matters. Luring this Court into finding the Atkins claim waived, the Commonwealth argues, “would offer them their best long-term relief,” prospect since “if no Atkins hearing court, held in state defense counsel will on argue habeas review that defendant is entitled to such a hearing And, federal court. since it has been decades since the federal courts have upheld a sentence of death with respect to any Philadelphia prisoner who did not consent to be executed, they will find themselves in a remarkably favor- able forum for that argument.” See Brief of the Common- wealth at 19-20. The Commonwealth argues that reject Court should this illegitimate strategy, and order a bench hearing on the mental retardation claim. (italics
Bracey, 986 A.2d at added; omitted). 137-38 footnote This Court ultimately sustained the PCRA court’s unassaila- ble finding there was no constitutional right to a collateral attack Atkins jury. Like Commonwealth, we recognized was, Defender’s gambit for what it describing the refusal to participate in the Atkins hearing it had requested as lacking any legitimate justification. We noted that the De- fender’s disagreement with the PCRA court’s ruling that the *132 court, jury, not a for the was properly
Atkins claim by to abide to refuse ground decide, legitimate “was not a evidence, as if a present thereafter and decline ruling ” ‘chicken.’ game capital some invites import matter of this that: added Id. at 138. We to present refusal appellant’s outcome of
The presumptive fail on claim would that the Atkins case would be his Atkins par- here. Most that occurred very result the merits —the with of their claims of the merits not risk defeat ties do recognizes But this Court manipulations. these sorts of federal counsel capital by experienced the calculations that Steele, 599 v. See Commonwealth sophisticated. are more (2008) (Castille, C.J., joined by 836-38 961 A.2d Pa. position The ... Defender’s J., concurring). McCaffery, the notion that tenuous: both risky and obviously below was to a right the claim of a waive would somehow appellant of his by presentation prejudiced would somehow be jury, or claim factfinder, as the substantive judicial as well case to a import of constitutional “right” trial jury of an Atkins below, any existing, which, support finds no explain as we that Indeed, is so much the case governing authority. position to the Commonwealth’s it lends some credence to ensure that no state designed strategy below claim the merits of the Atkins pass upon would judge court (or delay the substantial did, only if it be after it would to this appeal record and incomplete an occasioned remand). Court, seeking however, pressed has not
Notably, Commonwealth here, argument forth an or even set argument waiver merits----Instead, it on the Atkins claim fails appellant’s conclusion and logical overlook this that this Court suggests can be hearing Atkins matter so that bench remand this primary court serves its held, thus that the state ensuring claims, and avoid- for constitutional as the initial forum role that appellant determination of Atkins the initial federal ing prefer. seems all we had obduracy were strategy
If the defense all, remand. After here, deny inclined to might we be *133 be doctrine should not salutary Pennsylvania procedural or even concerns attorney manipulations by defeated by habeas review.... Unfortu- subsequent corpus with federal horns, by the court did not take this bull the nately, PCRA appellant appropriate, explicit and did not to the put circumstances, we will not hold that choice.... In these remand any has waived entitlement to an Atkins appellant the he refused below. evidentiary hearing for bench Our in of the holding regard approval should not be read as below; rather, defense tactics it should serve as a caution to in cases to be aware of the capital potential PCRA courts be in these stakes manipulations may high forwarded cases, proceedings to take clear control of the before them.
Id. at 139-40. conduct, assigned
A more recent case where the Defender’s cause, the rather than the merits of the client’s became focus Hill, 410, of the v. 609 Pa. 16 A.3d appeal Commonwealth (2011). The in that case was also capital appellant PCRA Ñolas, and was awarded a new represented by penalty hearing court, in the trial guilt phase but was denied relief. She but the Defender failed to file a Rule appealed, inexplicably 1925(b) by statement as ordered the court. The De- PCRA then in no than raising fender filed a brief this Court less fifteen claims. principal guilt-phase that, by
The Commonwealth
his con-
preliminarily argued
duct,
law
Rule
Ñolas had
concerning
under settled
Recognizing
defaulted Hill’s claims and was
se ineffective.
per
however,
may
strategic,
that Nolas’s default
have been
affirmance,
but
instead
argue
Commonwealth did not
to remove the Defender and remand to
urged
Court
new counsel to
with the Rule 1925 directive.
appoint
comply
The
also
that the Defender’s conduct
argued
Commonwealth
use of federal
questions concerning
proper
raised serious
because,
tax dollars
while the Federal Defender is funded
Courts,
routinely
of Federal
they
the Administrative Office
court
at a time when state and
appeals
state
appear
curtailed because of
being
budget
services are
municipal
In
light,
shortfalls in the current economic recession.
that this Court exercise its
suggested
supervi-
Commonwealth
sory authority
practice
Pennsylvania
over the
of law
require
being
the Defender to address these concerns before
418-20,
Pennsylvania
Id. at
permitted
proceed
appeals.
The Defender that it had with replied complied Rule 1925 because Ñolas had assured the in a PCRA court series of ex communications of the he parte issues intended to raise. The Defender did not or acknowledge discuss Rule governing focusing cases under instead on Hill’s alleged “right” to have Ñolas continue to her. The represent that, argued Defender also to the extent Nolas’s conduct had *134 (and review, impeded delay) Court’s remand attendant was appropriate. the particular point
On of the Commonwealth’s argument Defender, removal of the concerning we recounted the De- fender’s as argument follows:
Appellant also asserts that the Federal Defender is the counsel of her choice and its removal contrary would be to what “right” she claims is a to taxpayer-financed counsel of her choice. Appellant contends that the Federal Defender has her protected interests and advocated her ably on behalf, and that given experience its and in competence Pennsylvania death penalty proceedings, state it be should to permitted continue to her in represent Pennsylvania courts. Finally, respect with to the Commonwealth’s con- cerns the federal regarding funding sources for the Federal court, forays Defender’s into state appellant asserts that the Federal Defender is full compliance with feder- applicable al administrative rules and regulations and has a separate source funding its elective support excursions into state court. Appellant does not attach or cite those rules and regulations. 421-22,16
Id. at A.3d at 490. that, Ultimately, this Court held under our settled jurispru- dence, grant we could not the Commonwealth’s request matter; instead, remove counsel and remand the the Defend-
183
427-29,
er’s default had waived Hill’s issues.
Id. at
[I]n 1925(b) rate our Rule jurisprudence, we are mindful of the significant potential resulting capital mischief cases. can Delay be an end in itself for capital some defendants. See, Sam, e.g., 565, v. Commonwealth 597 Pa. 952 A.2d — denied, (2008), -, cert. U.S. S.Ct. (2009). L.Ed.2d 42 Manufacturing requested exception would serve as an invitation delay-minded counsel to Rule, flout the deliberately that it knowing trigger would remand, time-consuming process of of new appointment 1925(b) counsel, statement, filing Rule preparation and a lower court opinion.
Id. Since all claims were waived there was no basis to remand, there was no need for the Court to pass upon Commonwealth’s request to order the removal of the Defend- er, or its broader concern judicial with federal funding for these questionable endeavors.
A competent appellate lawyer global without a agenda, intent on his having client’s issues actually heard on appeal, would never deliberately ignore But, a Rule 1925 order. Defender is financed positioned to strategize differently In globally. Pennsylvania cases, capital the Defender routinely argues federal habeas court that various Pennsyl- *135 vania procedural default rules arbitrarily are applied, and reward, therefore should be ignored. The if the federal court accepts the argument, review, is de novo federal unimpeded by state court findings, and unimpeded by the federal habeas standard of review requiring deference to state court deci- sions. The result of perverse system this of incentives for professional capital counsel who ping-pong back and forth courts, between state and federal and who have seemingly inexhaustible federal resources and ample cases to choose from, opportunity an feign and incentive to that they do not know comply rules, Steele, how to with procedural state see (Castille, C.J., 961 A.2d at joined J., 834-38 by McCaffery, concurring); and in the process attempt generate to “uneven”
184 Then, counsel rulings by the state courts. procedural default particular court that argue will in federal proceed re- in all cases. The state ignored default rule should be proce- criticism that our continuing faced with federal sponse, flexibility to be con- discretionary dural rules have.too much is to sovereignty, adopt of state legitimate expressions sidered Gibson, 402, v. 597 Pa. 951 less flexible rules. Commonwealth (2008) (Castille, C.J., J., 1110, joined by McCaffery, A.2d (“The threat of dismissive federal concurring) responses legislatures flexible rules can lead to state procedural state rules.”). ever-more inflexible adopting and courts But, luxury with the pursue global agenda, for those the incentive to create disruption this refinement does not end court; just strategy. in state it a shift in Faced with requires clear, 1925, and known rule such as Rule simple, Appellate in up by deliberately engaging counsel can ratchet the stakes defaults, the most court to daring apply overt of state its If an exception, “inflexible” Rule. the state devises the De- court, in all proceed involving fender will then to federal cases “Aha, say; they always Rule 1925 waivers and do not follow default; it you may my and consider claims de ignore novo”
Recently,
thankfully,
Supreme
the U.S.
has is
Court
sued unanimous
in cases which operate
decisions
to reduce the
incentive for counsel such as the
to pursue
ploy.
Defender
my
As I
in
recent concurrence in
explained
Commonwealth v.
(2011):
272, 15
431,
Paddy, 609 Pa.
A.3d
439 n. 1
decided,
since
Significantly,
Supreme
Steele
U.S.
has
Court
issued unanimous decisions
two federal habeas
corpus
involving
prisoners,
cases
state
Beard
including
v.
Kindler,
-,
558 U.S.
S.Ct. L.Ed.2d 62 The deci Walker Kindler, sion built upon significantly expanded making it clear that a procedural state default rule not need be in every invoked case in order for the rule to be deemed adequate.
These corrective decisions came too spare late to this Court Steele, the time and energy expended was in cases like Hill, and Paddy.
The Defender has also burdened this
with improper
Court
in
appeals
serial capital PCRA appeals, thereby
building
delay
cases which
be
should
to
proceeding
resolution in
federal court. For
example,
Commonwealth v. Abdul-
Salaam,
(2010),
606 Pa.
case,
This quashed Court the bogus Defender appeal, deeming it improper because the PCRA court no opportunity had order; address merits and issue a final appealable we *137 186 are not and appeal “the Appellant’s praecipe that
recognized invoked, or the rule he the terms of the by remotely supported for this justification no basis or case. There was facts of this 485-88. More to maneuver.” Id. at procedural transparent we added: point, the the possibili- do not discount is not naive. We
This Court characterization of his serial misleading appellant’s that ty confusion, to set to create and designed petition PCRA delay inherent maneuvering and stage very that appellant’s lost this Court upon followed. It is also not juris- below of deprive the court maneuvering purported supposed he first forwarded his very at the moment diction being promptly. the matter not decided about complaint 801(d), he obvi- [Appellate] cited Rule Although appellant the court or the Com- permitting had no intention of ously concern, he took supposed to address his since monwealth has immediately. Appellant’s maneuvering “appeal” his in the building-in year’s delay disposition a succeeded the tactic. We do not condone petition. his serial PCRA time required The decision in more Id. at 488. Abdul^Salaam Court, effort, highest expended by Commonwealth’s frivolous conduct by deceptive, unprofessional, occasioned by the Defender. a serial involving
Another dubious in a case PCRA appeal currently before the Court Common- petition pending is Porter, of that case Following wealth v. 557 CAP. submission briefs, file parties supplemental on the we directed the issue. jurisdictional briefs because there was an obvious Our as order reads follows: NOW, October, 2010, it day appearing
AND this 13th jurisdiction in this implicated colorable issue of parties, which has not been addressed appeal, supplemental addressing are directed to file briefs parties the following: dismissing appellant’s pres- the lower court’s order
Whether
claim under
v.
373 U.S.
Brady Maryland,
ent serial PCRA
(1963),
10 L.Ed.2d
without also
215]
S.Ct.
[83
claim
long-pending
serial PCRA
disposing
appellant’s
under Atkins v. Virginia,
L.Ed.2d 335] was an appealable final In order? briefing jurisdictional question, the parties should ad- dress these necessarily included points:
(a) whether a PCRA petitioner may “amend” a pending serial petition to add an entirely claim; new serial (b) whether, instead, a new serial claim comprises a new and separate petition under PCRA; the terms of the (c) whether a PCRA court authority has to pass upon a new serial claim where prior petition PCRA has been stasis; held
(d) whether a serial petition PCRA may properly be held in stasis to allow for federal review of different claims already litigated in state court. Defender, Ñolas,
The per Billy has responded that the lower court’s order was not an appealable final order. And the yet, Defender But, took the appeal. what is more remarkable is Porter, the record in which reveals the logjam federal/state litigation Defender’s strategy has in created that case. At September on hearing appellant’s 2006 Brady petition, “amendment” Ñolas stated that the PCRA court was holding appellant’s 2002 Atkins serial petition “in abeyance,” awaiting the outcome of the federal habeas cross-appeals by Porter Commonwealth, and the which were pending Third Circuit. Porter, N.T., Commonwealth v. 9/25/07, at 12. The following exchange court, occurred among Ñolas, the assistant district (“ADA”), attorney after the court an- nounced its intention to dismiss the new Brady petition: I
Court: am denying the PCRA petition on the grounds that it is not timely and it does not meet the requirements Brady material.... Are there any other reasons? Ñolas: This is a separate issue before the Court pertaining in our Atkins[ ] submission that [appellant] has mental
retardation.
Court: I didn’t deal with that. deny that If don’t you before the Court. That’s
Ñolas: deposition Gentile’s] taking [Mr. with wrong what’s today, Brady claim]? of the furtherance [in together.... mix The two don’t Court: the Third before Circuit? ] that issue [Atkins Is Court: Third not Circuit. Ñolas: It is before with me? squarely that’s Court: So held it Yes, I know Your Honor Your Honor. Ñolas: the death Third reversed because the Circuit abeyance that appealing and the Commonwealth sentence guilt relief of the the denial of appealing is] [appellant reasoning I think the Third Circuit. So from the phase the Third to see what abeyance holding [ ] before was if there’s no death sentence do because would [C]ircuit Atkins. doing in us an point then there’s no appeal? All it is is an no death sentence. Court: So there is you Yeah, going suggest I was exactly. ADA: So just on hearing] [dismissing notice without send 907[8] And Brady claim. discovered evidence slash the after denying are you that that’s the claim specify we’ll Atkins to abeyance leave in to the and then we’ll today the Third hear from Circuit. *139 The Third if I understand this. Circuit Let me see
Court: off the table. penalty taken the death already has relief No, granted The District Court Your Honor. Ñolas: in the penalty an instructional error on [appellant] that to the Third The appealed Commonwealth phase. the Third Circuit pending [sic] That appeal Circuit. arguing issues]. from us appeal [other with an along the table? is still on penalty the death Court: So potentially, yes. the [t]able Ñolas: It’s still on [*] [*] [*] ADA: I misspoke. 907.
8. Pa.R.Crim.P. Ñolas: why And that’s we asked Your Honor to look at
Atkins issue. It appears Court: that from what I read he won on the death issue. penalty just
Ñolas: He penalty won a new from the phase District subject Court which is to the Commonwealth’s appeal may subject be to resentencing They down the road. didn’t take the death off the penalty table.
Court: When will that issue be resolved? They waiting
ADA: are for us. They waiting Ñolas: were for Your Honor to decide on issue____ Brady [new ] Court: all. Okay. They That’s Third [the are not Circuit] on me to deal with the Atkins issue? [Both
counting counsel in the respond negative.] just respect
Court: So I need to do a 907 with to the Brady claim surrounding and timeliness issue [fil- ing]. object
Ñolas: And I think I have to to that because strange. that’s proceeding You have a before the Court being with two claims that are raised. And I guess objections with a 907 notice we’d restate our appeal you file a notice jurisdic- and then have no tion, non-process. so it’s a
Court: are you What I do? suggesting Ñolas: I suggest you let us do deposition [Mr. Gentile’s]
[i.e., drag out the of the time-barred Brady disposition claim]. beyond you
Court: are suggesting We that. are What do, rule on Atkins ? that I you I can rule on Atkins.
Ñolas: don’t think I don’t process before, know I haven’t seen that so I think I object. have to
N.T., 9/25/07, at 12-15 (emphasis supplied). *140 argument
Nolas’s the respecting power PCRA court’s to that the argued He was out of “Catch-22.”9 straight decide (a (a) claim Brady the serial court: could not dismiss PCRA stay a federal of the claim that led Ñolas to secure new PCRA Circuit) without also in the Third appeals pending habeas (b) could not rule petition; the Atkins ruling pending on claim, au- the court somehow lacked on the Atkins because So, so, object. have to accord- to do and Ñolas would thority “claim,” Ñolas, neither the court could act on ing to PCRA having succeeded in the federal habeas already counsel had the claim. Brady held until the PCRA court acted on appeals Then, the non-final order. This Defender appealed Ñolas facto, perpetual stay a de of execution. strategy assured argument by It that the advanced Ñolas mentioning bears in Porter to rule on Atkins power that the PCRA court lacked in any frivolous. There is no basis the PCRA or other was petitions rules or law to hold serial PCRA in governing in certainly there most is no basis law to hold a abeyance; and merely petitioner in stasis petition permit PCRA Likewise, federal habeas relief. Nolas’s earlier argument seek there “no in the serial Atkins issue point” deciding other, already-exhausted, until the Third decided non- Circuit The Third appeals Atkins claims is baseless. before the If in Porter will not eliminate the Atkins claim. Circuit relief grant perceived penalty phase district court’s on reversed, instructional error is Porter’s death sentence will affirmed, stand. If the determination is the Commonwealth is in a Either penalty proceeding. free seek death new way, capital it is a case and the Atkins issue must be decided. once, did way,
Not Ñolas forward Defender’s delay delay new-found concern with while in both ensuring Porter, judicial systems in instead each court it could telling not act. The same very group engaged —the Defender— shenanigans these in Porter and then forwarded the “court can’t its docket” These are manage complaint Dougherty. keep addressing the sorts of abuses that us from all of the simultaneously Defender’s over-maximum briefs their other cases, rendering according decisions to their schedule. (1961). Joseph Heller, See 9. Catch-22
191
But, there is more. Another
by
case cited
the Defender in
the Dougherty federal
as an
pleading
example
this Court’s
Banks,
incapacity Commonwealth v.
461, 505,
Nos.
578
and
CAP, which also prominently
Ñolas. Banks
Billy
features
executed,
concerns narrow issues of
competency
be
and is a
case in this
plenary jurisdiction.
Court’s
This Court is well
familiar with the
Banks.
in
record
strategic
Nolas’s
maneu-
Banks,
in
verings
including but not limited to forwarding
unauthorized motions before our masters to
the
impede
Com-
monwealth’s expert’s
Banks,
examinations of
caused numer-
ous, lengthy
addition,
periods
delay; and in
required this
Court to
in on
step
multiple occasions and assure that the fair
we
hearing
held,
had ordered would be
consistent with our
Banks,
Commonwealth v.
directive.
297,
596 Pa.
943 A.2d
230,
(2007)
curiam)
(“[W]ith
(per
exception
of sched-
matters,
uling
logistical
and
the trial court
is not to be
diverted by tangential motions and
by
assertions
counsel: this
Court
jurisdiction
retains
over such matters. The trial court
is to act
rehearing.”); Com-
expeditiously
conducting
Banks,
monwealth v.
435,
(2009)
Pa.
The is but foregoing diversions. strategic the Defender’s up has been taken with delay. on When obviously position has no fixed The Defender they do their litigation strategy, their delay global advances halt, with their prolix courts to a as grind best state case, and their more briefing abusive pleadings Banks, Ab- like misconduct cases extreme conduct and/or dul-Salaam, Bracey. about the de- outrage When faux serves their strategy necessarily their overall induces lays claim, accusing Pennsylvania purpose, they forward *142 laziness, unencum- argument of or their incompetence courts candor. accuracy, honesty, concerns for and by bered judicial what of the Defender’s financing This is federal in wrought Pennsylvania. court has litigation strategy state victims, and other concerned the families of murder When citizens, in Penn- why penalty ask there is no effective death answer is: ask the federal court. sylvania, dirty secret want to reply, you may And if the federal court fails to ask your Representatives. U.S. Senators and
-II- recent out of the back-end of rolling Given Defender’s that the decisional de- global litigation strategy claiming its — that their tactics induce to lays necessarily give abusive rise time-frames a right preferential some decisional and/or to immediate de novo review in federal court—it is time right for this Court to take formal measures to ensure quicker decisions in To curb the capital appeals. rampant PCRA cases, in abuses this case and other I would: (1) Direct the Supreme Prothonotary immediately Court a limit in briefing pages capital appeals, reinstate of PCRA (a) with no a exceptions showing extraordinary absent: of circumstances; (b) explicit and concurrence of the Com- monwealth.
(2) Direct the Supreme Prothonotary Court brief- amend (a) arguments notices to advise that: substantive ing parties are not to be in sub-arguments and set forth footnotes or texts, compressed quotes other such as block or single-spaced points, practices bullet since such facilitate violation of the (b) briefs; restrictions on the of length arguments set in forth such fashion will not be considered. I would also refer the matter to the Procedural Rules Appellate Committee abuses, to recommend to our Rules to curb changes these (a) brief, limitations on the including: number of words (b) Rules, such as are found in the Federal required certification from counsel that the brief compliant.
(3) Make
referrals to
Criminal Procedural Rules Com-
mittee and the
Procedural
Appellate
Rules Committee to
consider measures that will lead to the more efficient disposi-
(a)
tion of capital
appeals including,
PCRA
but not limited to:
whether
rules can
procedural
adopted
and should be
to pro-
vide for the operation
unitary
review as
envisioned
Assembly
General
in the Capital Unitary Review Act
(“CURA”),
9570-9579,
§§
42 Pa.C.S.
consistent with the con-
cerns outlined in In re Suspension
Capital Unitary Review
Act,
(1999)
554 Pa.
Justice McCAFFERY this and Justice ORIE joins MELVIN Part II of opinion. SAYLOR,
Justice concurring. 6, 7, 8, 10, 12, 14, join I Sections and 20 of the majority opinion, concur in the result with regard to the following offer the comments opinion,
balance of the the sections of the conformity designated with arranged majority opinion. Phase
Guilt Right 2. Waiver of Counsel counsel, waiver of a main thrust of right As to the claim that his counsel failed to conduct an and, therefore, left him with adequate guilt-phase investigation with counsel or proceeding unprepared a Hobson’s choice of representing himself. See Brief for at 13-15. outset, record,
At the on review of this it to me that appears time, effort, the deal of into attorney put great thought client, of his with to the representation particularly regard 122-29, penalty phase. Majority at 18 A.3d at Opinion, See clear, however, equally 306-11. It seems that he conducted a very limited For the fol- guilt-phase investigation. example, lowing interchanges attorney post- with the occurred conviction proceedings:
Q. upon discovery, you [B]ased Commonwealth’s did
not conduct an independent investigation? that, A. I think there’s truth to yes. some Q. you You said that considered the evidence of the Com-
monwealth to advise the defendant to plead guilty. Is you that all considered in advice to Mr. giving your Spotz?
A. No.
Q. you What else did in giving consider that?
A. I though he was an unpersuasive witness.
Q. recall you why why you may [D]o or not have [decided
against representing at trial through sepa- rate attorneys guilt penalty phases trial]? effort, A. I major Because think the was at frankly, *144 penalty phase.
Q. you When it came time for—when were in the pretrial
stage, did there come a time in which indicated to you Mr. what Spotz you present defense wanted to at the guilt phase? My
A. No. counsel to Mr. was to not Spotz plead guilty, put guilt phase. forward defense at the It was not a position appreciated. that he it after
Q. Was that that he indicated that he wanted to represent himself?
A. Yes. N.T., 10, 2007, 280; N.T., 11, 2007, 31; at May May at id. at 28-29; N.T., 10, 2007, May at 175.
Moreover, counsel confirmed that there was no investigation relative to an and, capacity defense intoxication/diminished intoxication, had there been evidence of drug such an investi- gation N.T., 10, 2007, should have been pursued. May See attorney’s 229. The decision not pursue the line of inquiry was in tension with testimony his that he understood that Appellant’s extensive drug day use on the of his Cumberland County N.T., offenses was well established. May See at 20. explanation
Counsel’s foregoing guilt-phase investiga- tion possibility into the culpability diminished was:
I I guess persuaded by the Commonwealth’s evidence of Mr. Spotz’s behavior starting Harrisburg with the apparent abduction bank, and withdrawal of money from a Carlisle, a car driving of from there to at a shopping that, store. In all sporting goods I was not receiving any information impairment.
You asked me whether I yesterday pursued an intoxication defense, ... and I did not. So either as a defense or the fact mitigation that he was on flying high drugs on the event, day of the I did not put that forward.
I’m not certain that that would have a mitigating effect to jury, and I’m not certain question you insofar as the asked me yesterday being high on cocaine has the same *145 I an intoxication defense. sus-
intoxication effect as to be guilt phase. at the why investigated that’s that was not pect 11, 2007, 10, 2007, 280; N.T., N.T., May at at 20. May light multiple I that —in of the murders commit- appreciate crime as well as the brutal during Appellant’s spree, ted in the of Ms. apparent kidnapping killing calculation to both attorney’s guilt penalty Amstutz—the task relative Nevertheless, the limited and the daunting. given options was use, it seem to contemporaneous drug evidence of does strong me that the of an intoxication defense should have possibility I counsel’s reservations investigated. agree been While with voluntary the that a would consider jury about likelihood in reducing Appellant’s culpability intoxication as the circum- stances, very range counsel was faced with a limited plainly in options any event. join majority’s holding point, primarily
I the on this because I that has not that a further agree Appellant established investigation concerning degree the of his intoxication would decision-making have his own as to his waiver. impacted See 53-54,18 Majority Opinion, at A.3d at 264-66.
I also believe counsel have investigated allega- should regarding tions Charles Carothers’ involvement in potential 59-61,18 killing Majority of Ms. Amstutz. at Opinion, See at 268-70 out the (setting background allegations A.3d involvement in relative Carothers’ with the rele- frame). however, vant time I am persuaded, that counsel’s hearsay produced assessment evidence from fellow in the prisoners implicating killing Carothers was not suffi- N.T., ciently trustworthy admissibility. May to warrant See 2007, Furthermore, that, at 230-39. it would to me appear intoxication, much like the evidence of voluntary evidence of Carothers’ involvement was a two-edged any sword event. For one of the on example, prisoners post- testified that, killed, conviction before she was Ms. Amstutz had been in the trunk of her car while placed Appellant and Carothers “riding “getting high.” were around” and See id. at 98. jurors were appalling These details which the did not hear but very prisoners testimony could well have encountered had the Moreover, been admitted into evidence at trial. the other inconsistent prisoner’s internally accounts were material instance, prisoner For while some accounts the respects. said when implied incapacitated Carothers killed, Ms. Amstutz was in another he had said he “heard how he and out saying Spotz pulled [Ms. Amstutz] Carothers of the car and her the side of the Id. dumped along road[.]” 1996). (quoting prisoner’s statement dated April
In in light Appellant’s previous involvement two calculat- victims ed of female he killings whose vehicles had also seized the past days, very unlikely within two it seems to me to be jurors that it would have believed would have been his intention to ever release Ms. Amstutz. I
Finally,
respectfully disagree
majority
with the
to the
it
that a defendant’s
degree
suggests
exercising
reasons for
to
in
right
self-representation are irrelevant
a waiver colloquy.
12,
at
n.
Majority Opinion,
See
53
4. Prosecutor Misconduct Guilt
Argument claims majority’s
I differ with the decision that in are “trivial” and “frivolous.” category Majority Opin- this ion, 76, 77-78, at In under- particular, at 18 A.3d 279. justifiable frustration with standing prosecutor’s Appel- in his I do not believe performance self-representation, lant’s him performance Appel- it was to relate such proper lant’s crimes or to the matter with the personalize jury asserting attempt part pro litigant an on the of a se to “fool N.T., 15, 1996, at 94. I also differ with the you.” May “[tjhere that, is no if majority’s speculation question appellate counsel had invoked the relaxed waiver doctrine comments, attempt an to obtain review of the above we would have such grant Majority Opinion, declined to review.” believe, In I regard, A.3d at 279. do not in the relevant time period, widely exercising Court its deny discretion to relaxed-waiver review on direct review cases. capital end, however,
In the of the trial light court’s instructions counsel, concerning the remarks of I although would comments, some of the disapprove prosecutor’s I find that *147 Appellant has not established that they “had the unavoidable effect of the undermining neutrality jury of the so as to a preclude rendering of true verdict.” v. Commonwealth 621, 634, 916, (2008) Pa. Kennedy, 598 959 A.2d 923-24 (setting forth the of prevailing standard review relative to misconduct). prosecutorial claims of Jury 6. Prior Acts Evidence Criminal Instructions noted, join As I the majority’s reasoning and on disposition only this claim. I would add that I strongly agree with the jurisdictions wide majority of other which have concluded that instruction on the contemporaneous prior-bad- limited use of See, acts evidence the preferred practice. is v. e.g., Lesko (3d Owens, 44, Cir.1989); Cuch, 881 F.2d 56 v. United States (10th 1173, Cir.1988); Heard, 1177 842 F.2d v. People 187 36, 577, 58, (1999); Ill.2d 240 Ill.Dec. 718 N.E.2d 72 People v. 736, 737, Abernathy, Ill.App.3d 402 341 Ill.Dec. 931 N.E.2d
199 79, 345, (2010); 746 A.2d Angoy, N.J.Super. 361 State v. 329 (“[A] 1046, (App.Div.2000) prompt delivery limiting 1052-53 instructions, before, with, or simultaneously either immediate- after, ly preferable, the admission of other crimes evidence is otherwise- compelling and-unless there is some reason do should be standard followed trial courts in all procedure by cases.”); State, 318, Lott v. 98 P.3d 335 (Okla.Crim.App. cf. 2004) (indicating contemporane- that a trial court “must issue instructions”). limiting ous and final
Penalty Phase
Burglary
Aggravating
9.
Convictions as an
Factor
I
I
support
majority’s holding
question,
on this
as have
331, 369-70,
in and since
King,
Commonwealth v.
554 Pa.
721
763,
(1998),
A.2d
782-83
based on
I note
precedent.
only
Appellant’s references to the
more lenient
substantially
ap
law,
reflected in the
proach
sentencing
Majori
two-strikes
see
86-87,
25,
ty Opinion, at
200 Thus,
inject into the as with prejudice proceedings. unfair issues, in- many types other assessment of these of claims categorization. volves matters of and not mere Nota- degree moreover, bly, jurisdictions some other have taken more denigration mitigation restrictive to overt of a case. approach (Fla.2008) See, State, 1000, v. 994 1014 e.g., Williamson So.2d high “long recognized that the Florida court has (highlighting that a cannot dur- prosecutor improperly denigrate mitigation To the we continue to see ing closing argument”). degree that no should be prosecutorial arguments implying weight by jurors afforded to statutorily-prescribed mitigators and/or fairness, approaching the boundaries of it seems to me advisa- approach. ble to consider a similar 13. “Life Life” Simmons Means Instruction
I support
majority’s
on this claim
holding
solely
light
Carolina,
of this
holding
Kelly
Court’s
v. South
534 U.S.
(2002),
applied
S.Ct.
L.Ed.2d 670
is to be
92-93,
only prospectively.
Spotz, 587 Pa. at
See
Finally, of the in Mr. light assertions Chief Justice concurrence, Castille’s some of which I have previously sup- I ported, lawyer believe that a referral to our disciplinary apparatus is warranted. This would the named permit attor- neys to and it respond, provide would a foundation for the imposition any appropriate sanctions. notes need to maintain him in “closer for the custody safety of those around him” while were being his cases decid- added). Ryan ed. at 3 There Report (emphasis is no reason- able that' the have probability jury would chosen not sentence Appellant upon speculative to death based —and largely negative in the documents issue. Ac- —assessments cordingly, we will not hold counsel ineffective for failing proffer these documents as evidence. mitigation
Notes
notes citations to stating only summary short accompanied by parenthetical Intimately by Blumberg: Dr. aware. He had been assaulted him on by threatened him on numerous numerous occasions. He had been know, him, you prior on one occasions. He had been stabbed actually signifi- in which he stabbed with a knife and occasion cantly injured by on, again, objects, sharp with him other occasions explosive nature. and he was well aware of Dustin's violent [Appellant] When Dustin and there are two Counsel: stabs Defense well, all, who did Dustin threaten? knife stabs first of threatens — Objection, Commonwealth: Your Honor. [Appellant] PCRA Court: How is all this relevant? was convicted of what? [Voluntary] Manslaughter. Counsel: Defense