*1 960A.2d Pennsylvania, Appellee COMMONWEALTH of TEDFORD, Appellant. Donald Supreme Pennsylvania. Court of July
Submitted 2005.
Decided 2008. Nov.
654 Pennsylvania, Defender Ass’n of Lawry,
Matthew C. Tedford, appellant. Donald General, Attorney Amy Ross of Stoycos, Office
William Eshbach, York, Harter for the Zapp, Harrisburg, Jonelle PA, appellee. of Com. C.J., EAKIN, BAER, CASTILLE, SAYLOR,
BEFORE: TODD, GREENSPAN, McCAFFERY and JJ.
OPINION Chief Justice CASTILLE.* of appeals Tedford from the order Donald (“PCRA court”) County of Pleas of Butler
Court Common for relief filed to the Post petition pursuant denying (“PCRA”), §§ 42 Relief Act Pa.C.S. 9541-9546. Conviction below, reasons forth we hold that appellant For the set and, of accordingly, to relief affirm the order entitled court. PCRA sitting a the Honorable February jury before
On repre- Floyd Rauschenberger appellant, A. convicted who was counsel, by first-degree rape.2 sented of murder1 in occurring Cranberry arose from an incident convictions Butler Township, County, appellant, which who was on Institution at from State Correctional work-release victim, twenty-two-year-old Jeanine Greensburg, lured Revak, her, place to his and then employment, raped her prevent notifying police her death to from strangled rape. Following penalty hearing appellant at which evidence, jury present mitigation elected to no the same found circum- mitigating circumstances no aggravating two sentence of death. See stances, returned accordingly 9711(c)(iv)(verdict if jury § must be sentence of death Pa.C.S. unanimously at least one circumstance and aggravating finds * reassigned this author. This matter 2502(a). § 1. 18 Pa.C.S. 3121(a). §
2. 18 Pa.C.S. circumstance). The mitigating no two circum- aggravating (1) stances found committed the jury appellant were: killing perpetration (rape), of a felony while Pa.C.S. 9711(d)(6); § history had a significant felony convictions the use or threat of violence to the involving 9711(d)(9). 20, 1987, § person, Pa.C.S. On March the trial formally imposed court the death for the first-degree sentence conviction, murder and a term imprisonment consecutive years to 17 for the rape conviction. 8/£ *14 Subsequently, appellant permitted to file post-verdict motions nunc pro tunc. The trial court then appointed new counsel to represent appellant, and amended mo- post-verdict tions were filed. The motions multiple raised issues of trial error ineffectiveness, court and over 80 claims of trial counsel trial including alleged counsel’s failure investigate and call witnesses, witnesses, recall certain prosecution impeach prose- -witnesses, present evidence, cution scientific challenge the evidence, prosecution’s forensic present cir- mitigating 29, 1988, court, cumstances. On April the trial after a hear- ing, denied appellant’s post-trial motions.
On direct appeal, this Court unanimously affirmed appel
lant’s convictions and sentences. Commonwealth v. Tedford,
305,
7”)
523 Pa.
Essentially,
in his
appellant,
allegations of ineffective
counsel,
assistance of
takes a “shotgun” approach and at-
tempts
challenge every
trial
decision
counsel made with
Grant,
prior
3. This Court decided
I
to Commonwealth v.
572 Pa.
Tedford
48,
(2002) (defendant
We 3, 1, 2 and 1988 and February hearing of evidentiary filed on motions and corrected se amended pro appellant’s of ineffec- 1988, that the claims 19, and conclude February are merit- appellant trial counsel raised tiveness order in the lower court’s no error find less. We claims. ineffectiveness appellant’s all of dismissing of certiorari for a writ petition did Id. 626.4 Court. Supreme in the U.S. 12,1995, pro petition filed a se PCRA appellant July
On
counsel”).
(“PCRA
August
On
appointed
new counsel was
dismissing appellant’s
an order
court entered
the PCRA
directing appel-
prejudice
petition without
pro se PCRA
assistance
counsel’s
petition with
to file a new PCRA
lant
extensions,
time
several
being granted
After
days.
within
On
petition.
filed his new
January
the PCRA
28, 2000,
court dismissed
the PCRA
January
it was
untimely because
it was
determining
petition,
filed
not been
and had
petition
PCRA
second
*15
brief,
forth each
declined to set
appeal
his direct
4.
In
stated that
and instead
alleged trial counsel ineffectiveness
instance
appellant’s Decem-
pages of
by
over 50
incorporating
reference
he was
relief,
5,
extraordinary
which set forth
pro
application for
ber
1988
se
Although
since
this Court has
claims.
counsel ineffectiveness
trial
party
brief
that a
fails to
will
consider claims
clear that we
not
made
Lambert,
reference,
v.
incorporate by
see Commonwealth
purports
but
232,
(2001)
Announcing
346,
the
(Opinion
n. 4
A.2d
237
568 Pa.
797
Edmiston,
("OAJC”));
535 Pa.
v.
Court
Commonwealth
Judgment of the
1078,
(1993),
210,
permitted the
I Court
n. 3
the
1092
634 A.2d
Tedford
record, however,
pro
appellant’s
does not contain
incorporation. The
application itself nor
appellant includes neither the
application and
se
the
filed with
petition
PCRA
brief
in his
of it its contents
discussion
this Court.
decided,
that,
this Court made
I was
after
We should note also
Tedford
currently represented
counsel is
criminal defendant
clear that a
litigate certain is-
representation”
i.e., he cannot
“hybrid
entitled to
—
v.
See Commonwealth
forwards other claims.
pro se while counsel
sues
(1999);
233,
293,
Pursell,
v.
Commonwealth
301-02
Pa.
724 A.2d
555
Ellis,
(1994);
581,
v.
534
223
Rogers,
Pa.
645 A.2d
(1993).
176,
Following this Court’s per PCRA Doerr, the Honorable Thomas J. denied renewed request discovery, permitted but of another filing Thereafter, petition. 5, 2004, amended March PCRA PCRA court dismissed all but one of appellant’s claims. counsel, claim remaining alleged that an appellant’s appellate Office, attorney County the Butler Public pos Defender’s sessed a conflict of interest at representation. the time of his 18, 2004, On May evidentiary PCRA court held an hearing solely on the conflict of interest claim. requested Doerr himself Judge recuse from the case on the basis that he was a member of the Butler County Public Defender’s Office at the time of appellant’s trial and the time relevant the conflict of interest claim. Judge Doerr denied appellant’s 16, 2004, request. July On the PCRA court an entered order denying relief on the conflict of claim. appeal interest This followed.5 outset,
At the note pro we that because se appellant filed prior to the petition PCRA’s amendment and this Court already has held that petition PCRA counsel’s 1997 PCRA merely appellant’s pro petition, gov- amends se this case is appeals determining 5. Our standard of review in PCRA is limited to *16 findings supported by whether the of the PCRA court are the record Sneed, legal and free from error. Commonwealth v. 587 Pa. (2006). A.2d 1071 n. PCRA. See Commonwealth pre-amendment the by erned (1997) (“Appellant 1174 n. Pa. 688 A.2d Boyd, 547 the 1995 amendments to before the petition filed his PCRA Therefore, pre January [the in of 1996. Act became effective case.”). exception the to this With applies amendment PCRA] deleted, the 9453(a)(2)(v), differences of which was Section do not affect amended and PCRA pre-amendment the between PCRA, a the appeal.6 pre-amendment Under present if, of preponderance for relief may eligible be petitioner evidence, proves following: he from one or or sentence resulted That the conviction following: of the more
(i) Pennsylvania of or laws A of the Constitution violation or the United Constitution case, which, particular circumstances of the States that no truth-determining process so undermined could have adjudication guilt or innocence reliable taken place. which,
(ii) in the circum- assistance of counsel Ineffective case, the truth- so undermined particular of the stances adjudication guilt that no reliable determining process taken place. innocence could have [*] [*] [*] [*] Constitution, (v) of the law provisions A violation require of the United States which would or treaties pris- relief to a State corpus of Federal habeas granting oner.
(vi) exculpatory at the time of trial of unavailability The subsequently that has become available if it been the outcome of the trial had have affected would introduced. than the
(vii) greater of a sentence lawful imposition maximum.
(viii) jurisdiction. in a tribunal without A proceeding alia, previous litigation discussing, inter case law we cite 6. Much of the interpreting the amended PCRA. As derives from cases and waiver text, however, materially operative language the same noted pre-amendment or amended PCRA. either the under
659 (3) That the of error has not been allegation previously litigated and one of the following applies:
(i) allegation error has not been waived. (ii) waived, If the allegation of error has been the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If waived, allegation error has been the waiver of the allegation trial, of error during pretrial, post-trial or appeal proceedings direct does not constitute a State procedural default barring Federal habeas corpus relief. (4) That the litigate failure to prior issue to or during trial or on direct appeal could not have been the result of rational, any strategic or tactical decision counsel. 9543(a)(2)-(4)(amended 42 1995). § Pa.C.S.
Before turning
claims,
individual
some
discussion of the
for
framework
our
is helpful.
review
Most of
appellant’s claims
in
sound
ineffective assistance of counsel.
To obtain relief on a claim of
counsel,
ineffective assistance of
petitioner
a
must demonstrate that
performance
counsel’s
deficient and that such deficiencies prejudiced the petitioner.
Strickland
668, 687,
v. Washington, 466
2052,
U.S.
104 S.Ct.
(1984).
A.2d U.S. Court’s Strickland)). is not under cognizable A that has been waived claim “an issue is PCRA stated that pre-amendment the PCRA. The it if it could have if failed to raise petitioner waived trial, trial, in habeas appeal, been raised before actually or other conducted proceeding proceeding corpus subchapter.” under proceeding initiated prior actually (amended 1995).7 9544(b) § 42 Pa.C.S. represented by new
Because did) (and at a time counsel could raise on direct when appeal *18 ineffectiveness, any claim that claims of trial counsel court or ineffective sounding now make in trial error would 42 under the See assistance of trial counsel PCRA. waived 1995). (amended 9543(a)(3) Any § such defaulted Pa.C.S. claim under the aspect cognizable an of a claim could be as a posed developed the extent it is only PCRA on coun focusing appellate of ineffectiveness “layered” claim McGill, 574, v. 574 Pa. A.2d 1014 In 832 sel. Commonwealth (2003), of set forth a framework for consideration Court claims, as follows: layered ineffectiveness petition prior in his that his plead must PCRA petitioner [A] counsel, issue, inef- is at alleged ineffectiveness whose who failing to raise the claim the counsel fective for taking omitting or some him was ineffective preceded addition, ... present argument must petitioner action. In as relevant Pierce test to each prongs on three layer representation.
McGill, 1023. inability petitioner 832 A.2d at “[T]he respect test in to trial counsel’s each Pierce prove prong layered be fatal to his ineffectiveness alone will purported Carson, Conversely, A.2d at claim.” 913 233. ineffectiveness claims, trial counsel’s ineffective layered establishing with fail- appellate counsel’s prior assistance demonstrate will 9544(b) currently purposes follows: of this ”[f]or reads as 7. Section subchapter, petitioner raised it but is waived if the could have an issue review, trial, trial, during unitary appeal at failed to do before so 9544(b). § prior postconviction proceeding.” 42 Pa.C.S. in a state
661 ure to raise the suggests former’s ineffectiveness a claim possessing arguable merit. Id. (citing Commonwealth v. Rush, 3, (2003)). 651, instances, 576 Pa. 838 A.2d 656 In such petitioner bewill entitled to relief if he demonstrates that appellate counsel’s actions lacked a reasonable and prej basis udiced the petitioner. Id. issue,
In cases layered where claims are at a PCRA petitioner fails to properly layer who his claims of ineffective ness before the PCRA court petition should have his dismissed on that ground without first being provided his opportunity pleading amend to address these substan tive points. (citing Id. Washington, Commonwealth v. 583 Pa. 566, 536, (2005); Williams, 880 A.2d 540 Rush, 651). (2004); 581 Pa. 863 A.2d A.2d a petitioner When has not been afforded the opportunity by the PCRA court to so pleading, amend his this Court may, but will not necessarily, remand the matter: is not “remand necessary petitioner where the ‘has not carried his Pierce burden in relation to the claim of underlying trial counsel’s ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument claim support [with counsel], respect to petitioner’s claim would not ” Harris, entitle him to relief.’ Commonwealth v. 578 Pa. Rush, 657-58) A.2d (quoting 838 A.2d at *19 (alteration in original). Because in the appellant present case had new counsel on direct appeal, all claims of counsel ineffec relating claims, tiveness to trial layered matters are making it necessary for to comply with To the extent McGill. this Opinion discusses of underlying alleged claims trial court error ineffectiveness, or trial counsel it purely does so for of purposes analyzing appellant’s derivative and cognizable layered claims of ineffectiveness.
In addition to of considerations waiver and layer the ing, merits of a claim PCRA will not be if reviewed the claim previously 9543(a)(3) was 42 litigated. § Pa.C.S. (amended 1995). Under the pre-amendment version of the PCRA, an issue has been previously litigated if:
662
(1) court, trial trial court it has been raised in the the has on the of the issue and the did not petitioner ruled merits (2) petition- court in highest appellate which appeal; has ruled right could have as a matter of on er had review (8) issue;, it has merits of the been raised and decided or sen- collaterally attacking the conviction proceeding in a tence. (amended 9544(a)(1)-(3) Carson, 1995); also § see
42 Pa.C.S. “issue” to the “discrete A.2d at 234.8 The word refers 913 and would appeal forwarded direct legal ground to relief.” v. entitled defendant have Collins, 564, (2005); 45, Pa. 888 A.2d 570 see also Com 585 (2008) 398, 940, Pa. 944 v. 596 943 A.2d Gwynn, monwealth Collins, that, meaning in we defined “issue” within (noting 9543(a)(3)). Section
This
that a PCRA
previously
had
held
Court
cannot
post-conviction
previously
obtain
review
petitioner
prior
by alleging
claims
ineffective assistance
litigated
theories of relief on the same
presenting
new
Peterkin,
538 Pa.
649 A.2d
facts. See Commonwealth
Wilson,
452 Pa.
(citing
123
Commonwealth v.
(1973)).
Collins,
Following
penalty alleging his well one claim as counsel, conflict interest maintained alleg- two error, ing PCRA court and one that the summarily alleging previous cumulative effect of the claims relief. In an warrants bar, the previous effort avoid waiver litigation a makes number of broad introductory declarations “umbrella opening dispose claim.” We will first of these overarching procedural claims.
First, appellant asserts that this grant Court should because, PCRA, relief the merits under the pre-amendment a to relief for petitioner any entitled claim “which would require granting of Federal habeas relief to corpus a State 9543(a)(2)(v) § prisoner.” See Pa.C.S. (repealed effective 1996). January This provision was deleted when the PCRA was amended in 1995 for reasons are not which hard to difficult, as imagine, it is impossible, oftentimes for this to predict Court which state-defaulted claims would be later both deemed reviewable meritorious on federal habeas corpus Appellant’s review. boilerplate umbrella argument identifies no U.S. controlling Supreme Court authority which require would federal any habeas merits relief on of his claims in particular. pre-amendment Under either the or the amend PCRA, appellant ed must still prove the cognizability and of his merit claims.
Second, appellant claims that none of his claims be can deemed waived because the pre-amendment PCRA had exception an waiver contained similar ping-ponging reference to federal habeas Specifically, review. the pre waiver, amendment PCRA an provided exception as follows: allegation “if the waived, of error has been the waiver of allegation during pretrial, trial, error post-trial direct appeal proceedings does constitute State procedural default habeas barring Federal See 42 corpus relief.” Pa.C.S. 9543(a)(3)(iii) 1996). § (repealed January effective Citing *21 (3d Cir.2005), Horn, 92, appellant 117-18 395 F.3d
Jacobs v. Third Circuit does not federal law the contends that habeas cases Pennsylvania capital default” for recognize “procedural prior occurred to this Court’s deci any alleged waiver where Albrecht, 31, Pa. A.2d 693 v. 554 720 sion Commonwealth The (1998), relaxed on PCRA review. abrogated waiver which abrogation of relaxed counters that Albrecht’s Commonwealth case this has present to the because Court applies waiver to PCRA when petitions pending Albrecht previously applied Furthermore, the Com according Albrecht decided. monwealth, of relaxed the of Albrecht’s invalidation application constitutional appeal PCRA has survived pending waiver point is well-taken. See challenge. Commonwealth’s 258, 717, Basemore, v. 560 Pa. 744 A.2d 726 Commonwealth Pursell, (2000); Pa. 724 A.2d v. Commonwealth (1999). the the and reinstate ignore decline PCRA We unpredictability doctrine. The discretionary relaxed waiver 9543(a)(2)(v) implicated is with equally inherent in Section 9543(a)(3)(iii). a Third panel The fact that Circuit Section default, as the state such says salutary procedural that not be statutory provision, respected will PCRA’s waiver scope the of the former the fact that the Circuit misconstrues interpretation cannot control our relaxed doctrine waiver Finally, by is bound of the PCRA. Court enforcement Court, the Supreme opinions not decisions of U.S. in terms provision speaks inferior federal courts. The PCRA (“does constitute”); holdings not inferior of absolutes courts, has not High in instances Court federal where Thus, definition, reject are, tentative. we spoken, apply does not provision notion that the PCRA waiver allegedly Third believes claims because the Circuit no claim is capital waivable. Miller, 746 A.2d Third, 560 Pa. citing that merits is 602 n. 9 review proposition solely previously a claim does rest warranted when that, evidence, he pre- contends because litigated appellant on direct appeal, that was not considered senting litigated” be to be “previously none of his claims can found 9543(a)(3). Appellant § also meaning Pa.C.S. within of previ- review precluding that this Court’s doctrine submits stan- claims conflicts federal constitutional ously litigated with Appellant, assistance of counsel. regarding dards effective however, little, any, if “new” evidence would proffers Moreover, in Collins intervening Miller. decision trigger litigation issues. guide previous our consideration will assertions, con- introductory these broad Despite treats his of trial and sistently averments why underlying reasons claims should ineffectiveness as rather than previously litigated, not be considered waived claims under Strickland. As developing his ineffectiveness *22 above, distinguish a previously stated under Collins we will claim from a ineffectiveness litigated underlying derivative claim raised on collateral review. The manner of the dismissal however, claim, previously litigated underlying will often render lacking the derivative ineffectiveness claim in See, Dennis, merit. arguable e.g., Commonwealth 950 A.2d (Pa.2008) (claim that trial counsel 970-71 was ineffective for failing object prosecution testimony to to cloth- regarding ing allegedly seized from home of father’s defendant’s had thus, been on direct previously litigated appeal, and defen- petitioner satisfy arguable prong could merit dant/PCRA ineffectiveness). regard Pierce with to counsel’s appellate brief, In his appellant reproves over 20-claim appellate “shotgun counsel for his to his approach” claims trial appeal, counsel’s ineffectiveness on direct and then ironically approach a similar to his claims here. layered follows Given the posture disposition appeal, only on direct substan- tive ineffectiveness claims reach are may layered we claims of ineffectiveness or stand-alone claims of counsel inef- appellate But, despite fectiveness. submission of this matter post- McGill, appellant argues often his claims as primarily sound- (claims in ing trial counsel ineffectiveness which themselves waived), been either previously litigated only have with sentence or cursory declaring appellate two counsel was as ineffective well. the trial
Moreover,
which of
has failed
show
appellant
present lay
“nested”
his
claims
within
counsel ineffectiveness
on direct
previously litigated
claims were
ered ineffectiveness
impor
is
Such
distinction
and which were waived.
appeal
al
because,
claim was
if a trial counsel ineffectiveness
tant
codnsel
appellate
must show
ready litigated, appellant
claim;
litigated
manner in
he
ineffective
which
was
hand,
waived,
must
appellant
on the other
if the claim
for failing
counsel
ineffective
demonstrate that
Brief,
his
appeal. Throughout
claim on direct
to raise the
however,
only
boilerplate “appellate
often
offers a
appellant
Although
this issue” declaration.9
failed to raise
his claims could
adequately present
failure
appellant’s
remand,
remand is un
ultimately determine that
we
require
has not carried
Strick
necessary
because
of his claims. See
any
burden
relation
land/Pierce
mind,
Harris,
concerns in
overarching
the above
supra. With
claims.
individual
now turn
we
I.
PHASE CLAIMS
GUILT
Knowledge of Prior Record
A. Juror
of his
juror knowledge
prior
first claims that
right
due
and his
process rights
criminal record violated his
facts
underlying
A brief discussion of the
impartial jury.
an
dire,
court, trial
voir
helpful. During
procedure
room discussions
jury
learned of
counsel,
prosecution
*23
appel-
the basic facts of the victim’s murder and
regarding
First,
stated
many
jurors
criminal record.
of the
lant’s prior
of the
murder
had read
accounts
victim’s
they
newspaper
Second,
juror
a
mentioned
potential
after it occurred.
shortly
lunch, he
to read a
that,
began
he
out to
newsletter
when went
thoroughly,
infra,
examining
when
issue is addressed more
9. This
guilt
specific
at the
appellant’s
claims of trial counsel
ineffectiveness
though
problem
equally
respect
with
to the trial
phase,
the
arises
underlying
his
claims he attaches to each of
ineffectiveness
appellant's
address
failure to show that
The fact that we do not
claims.
litigated every
we
these
previously
time
address
a claim was
problem
boilerplate
does not mean that
the
ineffectiveness claims
disappears.
schedule,
facts
discussing
basic
of
case and the trial
stopped upon recalling
but
court’s instructions. See Ted
I,
newsletter). Third,
(describing
Now PCRA he testimony, voir dire as well as what calls “affidavits” jurors counsel potential seated that were secured new review, for of PCRA and claims that trial counsel purposes that, Appellant argues although parties was ineffective. jurors for cause selected admitted agreed any excuse who articles, trial counsel reading newspaper the newsletter jurors be recalled previously never that selected requested that circulat- questioned regarding supposedly the articles in the contends that out- jury subsequent ed room. potential jurors that of-court demonstrated questioning prejudicial appel- had information about they exposed been prior Appellant acknowledges lant’s criminal record. trial for mistrial and the trial court counsel moved he that trial any juror, to remove tainted but asserts promised to ascertain was nevertheless ineffective place alleged jury the record full extent taint *25 by questioning every panel member about the distribution of about on newspapers any speculation newsletters and and/or criminal appellant’s prior history. Appellant also claims that investigate counsel was ineffective taint, extent of jury jurors full call testify post- issue, evidentiary hearings, verdict and raise this this fashion, Miller, on appeal. direct con- Citing supra, which cluded that a claim not previously litigated when it did not evidence, rest solely upon previously litigated appellant fur- alleges ther that claim concerning trial counsel cannot be litigated considered he previously proffers because evidence— jurors unsworn “affidavits” of actual was absent —that from the direct claim. appeal responds Commonwealth that this claim previously on
litigated appeal. direct The Commonwealth states that the appellant evidence currently proffers is not substantially dif- ferent from the evidence submitted on direct appeal, where this Court that concluded the trial court had taken substantial adequate steps insure the selection of an impartial jury. that, The Commonwealth further states if even there any were error, given the overwhelming of appellant’s guilt, such error was harmless. court,
The PCRA operated which without the benefit of this decision, Court’s Collins found that this claim previ- had been ously litigated on direct appeal. The PCRA court noted that Miller did not involve evidence obtained following the conclu- trial, sion of juror such as the proffered “affidavits” here. Accordingly, the PCRA court dismissed this claim as previous- ly litigated. opined that, The court also even if the claim were not previously litigated, appellant to a failed state a cognizable claim under the and Pierce McGill standards.
The PCRA court and the correctly note that the underlying tainted claim jury was previously litigated on direct appeal and is thus not cognizable as such under the PCRA. For review, purpose ineffectiveness also we agree with the Commonwealth that appellant’s new “evidence” is not substantially different from the evidence cited direct mis- appellant appears it importantly, More
appeal.10 Brief, inter- In his the declarations. characterizes prior knowledge declarant-jurors’ weaves jury room discussions references to record with criminal in his Brief: submits example, appellant For voir dire. during that, potential dire while of the voir reveals Review the court and waiting questioned to be jurors were in the distributed were counsel, and newsletters newspapers jurors discussed also The record reveals room. jury more and more and conviction the 1972 arrest the case and they speculated began progressed, jury as selection offense, preju- enhancing the prior the nature of as to Mr. Tedford. dice to Shirley Pickerd jurors Perry Ray,
Three seated — *26 they stating affidavits given [sic] Ronald Stitt —have about Mr. misinformation information and of were aware The affidavits and conviction. arrest previous Tedford’s about it clear that information testimony make dire voir freely among jury venire. circulated the 1972 offense not disclosed in the affidavits was contained The information sentencing prejudicial. and was at trial or omitted). (citation Fol- and footnote at 12 Brief Appellant’s characterization, concludes “[a]s lowing reached demonstrate, information prohibited clearly affidavits “affidavits,” “newly” juror discovered appellant refers While 10. he which three unsworn declarations in fact consists of evidence (unsworn § declarations under pursuant 1746 proffers to 28 U.S.C. (unsworn § falsification penalty perjury) and 18 Pa.C.S. course, authorities). between an significant distinction there is a Of Hall, 582 See Commonwealth v. unsworn declaration. affidavit and an ("[Tjhere (Caslille, J., (2005) concurring) 872 A.2d Pa. affidavit, which is contem- between a sworn significant distinction is a governing practice, and Rules PCRA plated Court's Criminal under this Brown, witness.”); declaration of a mere unsworn J„ (Castille, concurring) A.2d 1168-70 582 Pa. (affidavit of oath because from other out-of-court statements is distinct falsehood, certification, consequences convey which to declarant prosecution; affidavit also con- potential felony perjury including says is who he that declarant veys some level of assurance to tribunal fraudulent, is, willing to and that declarant is is not he that declaration court). behind his statement stand jurors who found him [a]ppellant guilty sentenced death.” Id. at 17. declarations, however,
Review of the three demonstrates that the declarant-jurors to be appear referring learning penalty phase record prior at the when Com- presented to prove significant-history- monwealth of-felony-convictions aggravator, and not from room any jury during discussions voir declarant-juror dire. For example, Pickerd stated in her declaration: “I remember that second part the trial when given we were information about Mr. Tedford’s criminal take history to back to the room jury with Pickerd, Petition, us.” Declaration of Shirley Amended PCRA C, (unnumbered).11 Thus, Exhibit at 1 to the extent appellant claims that he has new facts regarding previously litigated claim, jury taint facts prove which trial and appellate counsel ineffective, to have been the declarations he attached to his petition provide PCRA do not These support. subsequently- produced do not prove declarations counsel ineffective. framed,
Properly appellant’s current claim that appellate counsel was ineffective for failing investigate and raise trial counsel’s performance ineffective in the manner he preserved developed which the claim concerning al juror leged knowledge of appellant’s prior convictions. Appel lant fails to carry his respecting burden Strickland/Pierce trial counsel aspect ineffectiveness of his claim. Appellant claims that trial counsel was ineffective for “to ade quately place upon the record the juror full extent of this *27 noted, misconduct.” Brief at Appellant’s 18. As appellant’s declarations do not his support predicate accusation. More fundamentally, appellant’s claim depends an upon assumption that had constitutional to duty interview Appellant declaration, argues 11. also that in her Pickerd states that the prior victim of a only way assault was a nurse and the she could have known that fact if newspaper present jury is she had read a in the however, declaration, room. Pickerd’s support any does not such inference, prior as she does not state how she learned that the victim Obviously, awas nurse. Pickerd could learned have that information way during in years another appellant's the close to 10 between trial and the date of her declaration to PCRAcounsel.
672 Appellant taint claim. jury present jurors properly and, contrary assumption this support cites no case to assertion, duty general recognized there is no appellant’s fact, is condemned. See practice In jurors. interview 130, 79 A.2d v. 367 Pa. Darcy Claudy,. ex rel. (“The jurors after a (1951) interviewing 785, practice 786 ex unsworn statements parte, from them obtaining and verdict by representations and questions to undisclosed answer long improper highly unethical interviewers court[.]”). Moreover, of the review condemned ago that previous I demonstrates readily record Tedford juror impar- any potential in addressing diligent counsel were Therefore, claim of ineffective layered tiality. Carson, 913 merit. arguable lacks See of counsel assistance A.2d at 233. that he suffered also failed to demonstrate has
Appellant
the empan-
of voir dire is to ensure
“The purpose
prejudice.
capable
following
impartial jury
a fair and
elling of
Chmiel,
v.
585
court.” Commonwealth
of the trial
instructions
(2005) (internal
marks
quotation
889 A.2d
Pa.
Smith,
Pa.
omitted);
see also Commonwealth
(1988) (“The
examina-
dire
purpose
voir
A.2d
basis
a defendant
upon
a better
which
provide
tion is not
to determine
challenges, but
peremptory
can exercise
as to
opinion
has formed
fixed
any venireman
whether
innocence.”).
to outside
exposure
Even
guilt or
accused’s
is unfair and
jury
mean that a
ineluctably
does not
information
in the
appeal,
present
noted on direct
As this Court
partial.
and fair-
case,
jury’s impartiality
the trial court ensured
(1)
they
jurors who indicated
summarily striking
by:
ness
appel-
the crime or
account of
prejudicial
read a
recently
had
(2)
great
trial counsel a
history;
granting
criminal
lant’s
jurors;
prospective
leeway
questioning
degree
selected
jurors
who were
immediately sequestering
fair,
and untainted.
impartial,
that the selection was
ensure
to rebut
I,
has failed
B. Alterations Deletions & that Appellant meaningful appel- next claims he was denied late and effective assistance of counsel be- appellate review Brief, appellant cause the trial is inaccurate. In his transcript describes a number of alterations and deletions transcript which, asserts, he of meaningful appellate constituted denial that the audio of trial Appellant alleges recording review. testimony edited and substantial alterations to the reveals this relied suffi- upon finding which Court when his on direct prove guilt Similarly, appellant cient review. asserts that he is to an accurate and record complete entitled prerequisite adjudication as a fundamental for the of his claims. PCRA further contends that he
Appellant was denied effective appellate assistance of counsel on direct review because coun- provided sel could not have effective assistance the absence of a trial record. that complete appellate asserts counsel’s failure to obtain the of the trial audiotapes proceed- ings demonstrates ineffectiveness because he failed to take basic investigatory steps pursue appeal. Appellant an acknowledges appellate objections that counsel filed to the he transcript, argues but still counsel appellate nevertheless ineffective for to obtain the audiotapes and argue brief issue of alterations on direct Final- appeal. ly, claims that the court denying PCRA erred for request expert thorough analysis funds of the audio- tapes proceedings. the trial claim is responds cognizable Commonwealth
only sounding as one in the of appellate ineffective assistance counsel. The prong Commonwealth states that first Pierce could potentially be satisfied counsel’s by appellate appeal failure to address the alteration issue in his brief. The notes, however, that the issue was addressed counsel in motions appellate post-verdict upon by and ruled the trial court. The failure to the claim in appellate renew submits, been because must have
brief, the Commonwealth believed, trial following the reasonably merit. The Common- claim lacked that the ruling, court’s *29 that, the trial court reviewed because further asserts wealth of appellant’s and denied most individually transcripts coun- appellate from no resulted changes, prejudice proposed direct appeal. the issue on pursue not to sel’s decision claim the ineffectiveness concluded that court PCRA alterations appellant’s proposed merit because arguable lacked testimony pre- of the affected substance not have would that appellant court found the PCRA Additionally, sented. the judge, alterations and that who by the prejudiced not was changes to be appropriate ordered testimony, the actual heard transcript. made to the and accurate right complete has a
A defendant
19,
Illinois,
12,
351
76
v.
U.S.
of trial. See
transcript
Griffin
(due
(1956)
equal protec
process
L.Ed. 891
S.Ct.
transcript);
provided
defendant be
indigent
that
requires
tion
189, 195, 92
S.Ct.
City Chicago,
U.S.
Mayer
see also
(state
(1971)
full, verbatim
provide
must
extensive post-verdict issue, consideration of this has appellant proven counsel’s decision not to pursue this claim on direct appeal lacked a reasonable basis.12
Additionally, the alterations appellant now alleges assuming, decision, for purposes of that they exist—are Brief— not of such moment to prove as appellate counsel ineffective- ness. Appellant’s claim is premised alterations com- upon paring written transcript with an audiotape. Most of the alleged alterations cited in appellant’s brief constitute little more than the un-transcribable “urns” and “ers” and other linguistic stumblings trial, of the witnesses at while other allegations of transcript alterations are used *30 suggest deception and a scheme or design the pattern instance, alterations. For appellant claims that the following alleged alterations created a false impression that alibi witness Dr. Timothy McCormick was not sure when appellant arrived at his home:13 most,
[McCormick]:
Iway remember it was I think
Johnny Carson
on and
was
there was a theme song, and
that’s elevemthirty to twelve:thirty,
so I
and
can’t
tell
[can]
you that
I
when hear
the theme song
[heard]
that I would
assume
in
elevemthirty my head,
[it]
but I know that I
[I]
(E)
wa...
looked at a
clock,
watch or
you
[the]
know
Contrary
Baer,
Concurring Opinion
of Mr. Justice
12.
we do not
suggest
appellant
that "an
prevail
could never
appellate
on a claim of
ineffectiveness where
counsel raised an issue in his
post-trial motions and then
appeal.”
abandoned it on direct
See
Concurring Op. at
[McCormick]: [say], you That’s fíne. That’s said what [Commonwealth]: song elevemthirty you till heard theme [because] Johnny Carson— Right.
[McCormick]: to the he came door— [Donnie] [Commonwealth]:—when [Right.] [McCormick]: though, coming up —he in? you woke
[Commonwealth]: [there], Well, yeah. he came [McCormick]: to, ah, Doctor, make it custom Was [Commonwealth]: day I he show up, would plans prior to [date] (E) going he you he never when you say realize knew (fade)... (E) Had over [coming to come whatever... in] by phone least made with him at that week you plans had , get Friday? together [on] Yes, we had.
[McCormick]: 2/5/87, 489-90; N.T., Brief at 26. Appellant’s assertion, Contrary to the difference between “say,” of an and “heard” or “said” and or the deletion “hear” “of,” of an does not support appellant’s “ah” and the addition a false alleged give impression alterations contention ar- unsure of the time that McCormick was when fact, rived, testimony. In way as to diminish his such actually from “can’t” “can” would alleged alteration if more certain of when make it seem as McCormick were *31 Moreover, jury’s his home. consider- appellant arrived at these testimony obviously by unaffected ation of witness was n mis- Any instance witness alterations. alleged transcript stumbling credibility witness was speaking implicating these jury supposing at trial. Even that weighed occurred, they are de minimis and would transcription errors sufficiency this review of the have affected Court’s deny meaningful extent to to such an as review, such that counsel could be ineffec- deemed tive. alterations, however,
There other alleged are some which weighty. example, appellant are more For submits that Trooper testimony during Bernard Stanek’s rebuttal de- “Well, fense’s case was altered as follows: the victim’s car was eight I eight believe and about tenths of a mile from the Touch,” Finishing appellant’s scene place employ- N.T., 2/4/87, ment of the rape and the scene and murder. See 437-38; at Brief Appellant’s (appellant’s emphasis at 29 indi- text cating allegedly that was removed from the transcript). Appellant argues that such an alteration —the difference be- tween 0.8 miles and 8.8 miles—could have affected this Court’s sufficiency because the alteration it appear review makes prosecution’s theory is consistent with the timeline and tends to rebut claim that any trial counsel was ineffective for to use the timeline to prove appellant’s innocence. claim, however, Such falters because prior to this alleged alteration, Trooper Edward Peters clearly stated that victim’s car found “eight point eight tenths miles” and to “twelve seventeen minutes” from The Finishing Touch. N.T., 2/3/87, at 121. This testimony, presented during the (as Commonwealth’s case-in-chief opposed to Trooper Stanek’s testimony), rebuttal would have remained available Therefore, Court on direct review. allegations of prejudice arising from the alleged alteration fails.
Second, we see no error in the PCRA court’s denial of appellant’s request for funds to expert examine audiotapes of trial proceedings to determine the accuracy of the transcript. Appellant essentially argues that the denial of expert funds Oklahoma, 68, 83, violates Ake v. 470 U.S. 105 S.Ct. (1985) (due
L.Ed.2d 53 process requires provide state psychiatric assistance when defendant makes preliminary showing sanity issue), time of offense is likely be at and that the trial court could not have properly found that his claim arguable lacks merit knowing without whether the claim supported by expert findings. Ake is inapposite: Ake’s requirement provide state-paid expert applies assistance *32 trial, experts forensic audiotape at
psychiatric assistance ineffective- counsel try prove appellate to review on PCRA amasses now Moreover, appellant no matter what ness. the attack, presumption falters in the face of he still collateral had to Appellate counsel counsel was effective. that appellate that the judge the trial finding by face of a in the proceed has cited appellant and complete, accurate and transcript was newly appointed appellate proposition for the authority no and them audiotapes compare to order obliged are counsel in search of deviations. transcript the reasons, claims ineffectiveness appellant’s foregoing For the the are without transcript “alterations” to alleged on the based merit. Ineffectiveness Trial Counsel
C. trial alleged from deriving raises two claims Appellant that trial phase, arguing at the guilt counsel ineffectiveness (1) investi- adequately to: failing ineffective counsel was (2) issues; challenge and evi- certain develop gate Appellant presents convictions. rape supporting dence of trial counsel ineffective- as claims primarily claims these Having them. ness, layer only cursory attempt with ineffec- record, that the trial counsel conclude we reviewed ren- previously litigated, been waived or claims have tiveness claims of appellate derivative cognizable, dering McGill, supra. meritless. See ineffectiveness Investigate Adequately 1. Failure to Claims Develop Certain counsel was inef first claims that call, or re trial counsel’s failure to to raise fective for witnesses, develop specific call, investigate certain and/or of claims mindful list appellant’s laundry approach We points. hindsight evaluations teaching avoid of Strickland’s Strickland, 104 S.Ct. 466 U.S. conduct. See counsel’s counsel failed to claims that trial Specifically, 2052. (1) the cancellation alleged better develop: investigate and/or (2) Blackburn; friend, Susan meeting with Finishing from The away meeting with victim alleged (3) Touch; possible impeach evidence with which Com- (4) jailhouse informant Ferry; monwealth’s Michael an alibi (5) defense; challenging theory the Commonwealth’s Finishing that twine from The Touch strangle was used to victim; person evidence that another been could have *33 apparent the murderer. Without in irony awareness sincere flattery, appellant cites this of appel- Court’s criticism late counsel’s “shotgun approach” to trial counsel’s challenging as performance proof appellate counsel’s own ineffective- that, ness. Appellant declares although appellate counsel attempted to raise claims of trial counsel in ineffectiveness post-verdict motions on appeal, direct counsel appellate failed take necessary steps to develop litigate claims. Appellant also declares without elaboration that his current claims have not been previously litigated they because on supposedly rely facts other than presented those on direct And, appeal. claims, as with all of his appellant attempts to satisfy Strickland and McGill with a mere boilerplate state- ment that any waiver is by “overcome assis- ineffective tance of all prior counsel.” Appellant’s Brief at 46.
The Commonwealth counters that these claims
been
have
previously litigated because the same issues
on
were raised
and,
direct appeal
after reviewing
record,
the entire
this Court
held all of appellant’s claims of trial counsel
ineffectiveness
I,
be meritless. See
The PCRA court determined that these claims
previ-
were
ously litigated
and,
on
appeal
direct
citing Commonwealth v.
Senk,
(1981),
Pa.
late insufficient its own “shotgun counsel’s ineffective. prove counsel appellate counsel other than represented by Because in motions on direct post-verdict appeal, trial counsel appeal litigated direct under because rule, new counsel to raise obliged promptly which Hubbard ineffectiveness, for- appellant presently of trial counsel claims collateral, in claims layered the sort described wards ie., claims counsel was ineffective appellate McGill — sounding or claims trial counsel to raise claim earlier, However, it is as we have noted ineffectiveness. there claims that sound may to remember that be important ineffectiveness, unrelated to accu- counsel purely appellate may trial For trial counsel against example, sations counsel. objection, have claim which preserved be an extra-record may did Or there pursue appeal. arose after the trial. claim—factual case-law related —which the manner in respecting Or could be a claim which there *34 case, be a claim. In this it cannot counsel appellate litigated of litigated that direct counsel in fact dozens disputed appeal trial ineffectiveness. claims of counsel record, given restrictions procedural Given that his appellant plead' prove oblige PCRA which waived, in are nor previously litigated current claims neither on appellant has to account for what occurred prevail order cull duty It this Court’s the direct appeal. direct is not current appeal record determine which counsel, claims, in upon supposed deficiencies trial premised of, of, claims of trial counsel repeats are mere or variations on actually appeal. direct litigated ineffectiveness which were course, if ineffec- And, of those claims of trial counsel any on appeal, today’s in then litigated tiveness were fact direct necessarily appellant claim fails—unless layered derivative deficiency appellate manner in counsel proves which appeal. the claim on litigated direct summarize, Brief or reference append, does not Appellant’s raised of trial counsel ineffectiveness claims pages over has not incorporation. appellant on direct Because appeal claims distinguishing satisfied his burden between which litigated, claims he previously were waived and which were necessary step proving appellate has failed to take the first counsel to been instead makes have ineffective. assertions that ineffective for generic appellate often, or, manner in failing either to raise claims less for the he the claims he in fact raised. litigated Appellant, which however, why attempted has not to demonstrate appellate failing counsel was ineffective for the claims he litigate on appeal declined to raise direct counsel’s how performance on direct appeal pursuant was defective to the requirements of Appellant merely attaches Strickland/Pierce. a boilerplate layered ineffectiveness assertion to a nested trial Therefore, counsel ineffectiveness claim. has appellant failed to prove appellate counsel ineffective. event, McGill, claims,
In mindful of any we look to these reject them the merits.
a. Susan Blackburn that trial counsel Appellant argues was ineffective for Susan Blackburn and that appel interview discover lant’s date Blackburn had first been changed with from a Blackburn, dinner date to a lunch date and that it appellant, had cancelled January (day who their 10th murder) Blackburn, however, date. testified both at trial and at the post-verdict hearing, and each time stated that it was cancelled January who their 10th Tri engagement. al counsel post-verdict also testified and stated hearing that he did indeed Any interview Blackburn. further “investi gation” on counsel’s part would have been fruitless. There fore, this claim arguable lacks merit. *35 Meeting Away
b. from The Finishing Touch Next, that appellant argues trial counsel was ineffec for obtain failing tive to a of a that copy log UPS would have Touch, shown that a to delivery Finishing was made The for, appellant signed which on the morning rape and obtained, murder. If argues appellant, log, along with that records, appellant would have demonstrated telephone The away meet the victim' from had time to could not have Touch, how- Appellant, her car was found.14 where Finishing At information. ever, significance of such explain fails to Finishing in The trial, stated that victim was appellant he had consensual of the murder and that day on the Touch also Appellant on that date. intercourse with her sexual 10:00 delivery approximately was made that the UPS stated may disrupt- have log of the UPS the introduction a.m. While rape preceding timeline of events ed the Commonwealth’s murder, question not call into the Common- it would Furthermore, at the post- theory of case. overall wealth’s he drove the distance trial counsel stated that hearing, verdict timeline aspect that that and did not believe question argue every obliged Trial counsel is an issue. human triviality associated with every or pursue quibble, merit. This claim is without memory.
c. Informant Jailhouse for Next, trial counsel ineffective asserts that appellant Ferry inmate. Ferry, Michael a fellow impeach occasions, admitted, rap appellant multiple that stated victim, deal of detail providing great murdering ing contends that trial counsel the crimes. concerning of events and Ferry’s discredited version have further should at trial to Sunday as a witness Timothy called should have . Sunday that have maintains would Ferry Appellant discredit testimony exchange false Ferry provided testified This sentence with Commonwealth. pending “deal” on his rejected is discussed issue infra. Defense
d. Alibi “[tjrial have Next, counsel should maintains jurors for the testimony explain used available distances, and the established locations and the known how alibi, his innocence.” demonstrated [appellant’s] time-line of that, deliveryman hearing, post-verdict the UPS at the 14. It is notable interviewed, that, only the the State Police when he told testified Finishing delivery Touch. made his approximate time when he *36 Appellant’s Brief at 42. Such is the extent to which appellant briefs this It claim. fails for lack of explication.
e. Murder Weapon Next, appellant contends that trial counsel inef for failing fective to challenge the prosecution’s theory twine found in The Finishing Touch was murder “weapon” (the victim was killed by strangulation). Appellant argues that trial counsel should have investigated to determine if the Commonwealth’s striation analysis and had report ruled out twine as the weapon. murder argues also that trial counsel could have tor accounted the twine fibers found on the by victim explaining that the fibers could have come from something elsewhere in the In shop. claim, making this however, appellant that, trial, ignores the forensic patholo gist testified that the ligature marks on the victim’s neck could have been made twine in question. Appellant also ignores fact that no testimony was offered by either trial counsel or the prosecution regarding a striation analysis and that trial counsel did challenge indeed the twine-murder weap on theory more, at trial. Without appellant’s speculation fails to establish a predicate to call question into trial counsel’s effectiveness.
f. Other Murderer Theory Next and finally, appellant maintains that reasonable coun- sel would have investigated and presented evidence that the victim was killed by person. another Appellant believes that that effort should have husband, focused on the victim’s James Revak, as the However, most logical suspect. besides gener- ally opining James Revak behaved suspiciously, appellant merely argues that “[cjompetent counsel would have investi- gated these in facts order to make a reasoned decision wheth- er or not to introduce such evidence support of [appellant’s] defense.” Appellant’s Brief at 44. This is utter speculation. Appellant’s argument fails specifically describe trial how counsel regard. Furthermore, ineffective this appel- lant ignores the fact that trial counsel did in fact present murder- that James Revak was his wife’s to suggest arguable claim merit. lacks Accordingly,
er.15 reasons, of trial skeletal claims foregoing For the are merit. counsel ineffectiveness without Challenge 2. the Evidence Failure Rape Conviction Supporting *37 rape that the murder and Appellant argues next that one would have challenging were so intertwined charges on the other. weakening of the case prosecution’s the effect evidence, that, of the given the lack physical asserts charge testimony the of rape the supporting evidence was only the adequately develop and that trial counsel did Ferry, also that counsel was point.16 Appellant appellate claims pro for to this issue in failing post-verdict raise ineffective appeal. or on ceedings direct responds previously that this issue was
The Commonwealth The notes that this appeal. on direct litigated physical held and circumstan- compelling Court that there was conviction, the including supporting rape tial the evidence appel- and seminal fluid consistent with presence sperm and characteristics on the vic- groupings genetic lant’s blood appellant’s in her as well as admis- clothing vagina, tim’s he then murdered Ferry raped to and White that sions to the reporting rape police. to her from the prevent the victim I, agreed, A.2d 618. The court See at PCRA Tedford relitigate that to this suffi- finding appellant attempting was of coun- guise issue under the of ineffective assistance ciency sel. At the hearing current lacks merit. arguable claim motions, trial appellant alleged that post-verdict
appellant’s challenge was ineffective evidence counsel Stanek, testimony Trooper who stated Trial counsel offered 15. said, sorry, body "I'm I’m when Revak viewed his wife's he James N.T., 2/5/87, sorry, help I couldn't it.” 604. untrue; Appellant’s there additional circumstantial 16. assertion day proving rape, including the victim’s activities that evidence unusual admission, being shortly appellant, by his own her murdered after account). (consensually, with her his had sexual relations he Trial counsel testified that conviction. supporting rape to contradict important attempt not consider it did going because rape circumstantial consensual, contact, taking the to sexual albeit when admit his deci- questioned regarding Trial also stand. counsel was testimony Ferry, testimony impeaching not to offer sion that, admitted to jail, appellant who had testified while her murdering prevent and then the victim so as raping to the Trial counsel stated rape police. from reporting Sunday, supposedly who would have Timothy witness furthermore, trial testify; declined to impeached Ferry, noted, in a failed appellant’s accomplice escape as easily impeached by have been attempt, Sunday would foregoing, Based on the trial counsel’s deci- Commonwealth. to the challenge sion not to mount a further or different Thus, appel- reasonable. rape Commonwealth’s evidence was claim lacks lant’s counsel ineffectiveness derivative claim, Moreover, contrary ap- merit. arguable claim in pellate post- counsel did indeed address this February evidentiary hearing, verdict motions and at the *38 appellate pursue so decision on counsel’s not to this any part reasonably claim on direct also to have been appeal appears based.
D. Prosecutorial “Misconduct” next three claims derived from Appellant presents waived objections to misconduct at the alleged prosecutorial guilt (1) phase, including supposed: suppression manipulation and (2) evidence; discrediting of improper bolstering key (3) testimony; improper witness comments on silent, to remain the right receipt discovery, defense’s the of a credibility Appellant Commonwealth witnesses. as- that, violations, serts as constitutional these claims argu- have object able merit and trial counsel’s failure to constituted appends ineffective assistance of counsel. then customary declaration was ineffective failing for to raise related claims of trial counsel ineffective- above, ness on direct As with his claims has appeal. claims been identify distinguish failed which have 686 of these claims were waived. and which litigated
previously claims, underlying of the rejection lapse permits That alone turn, layered claims. cognizable in eviscerates which has been so
The
misconduct”
phrase “prosecutorial
The claim either
any
meaning.
to lose
particular
abused as
prosecu
that the
provision
in a
constitutional
specific
sounds
or,
like most
trial
frequently,
violated
more
allegedly
tor
under Four
issues, it
review available
implicates
narrow
Miller,
v.
483 U.S.
Amendment due
See Greer
process.
teenth
(“To
(1987)
3102,
constitute
756, 765,
Moreover, from a stemming ineffectiveness claims *39 may to a conduct succeed when object prosecutor’s failure to that the actions vio prosecutor’s demonstrates petitioner as statutorily right, or such constitutionally protected a lated self-in privilege against compulsory Amendment the Fifth trial, to a fair or a right or the Amendment crimination Sixth Carson, as process. constitutional interest such due Cf. (“In alleged prosecutorial at 236 order to obtain relief for A.2d a must first demonstrate petitioner ‘misconduct/ statutorily constitutionally prosecutor’s action violated some mind, this protected right.”). background With we turn layered claims of ineffective assistance of counsel objectionable on the claims of underlying prosecutorial based below, underlying argua- conduct. As detailed claims lack ble merit.
1. Evidence Suppression Manipulation of first claims that the mate prosecution suppressed rial, process in violation of due under exculpatory evidence 1194, 10 Brady Maryland, 373 U.S. 83 S.Ct. L.Ed.2d 215 (1963). Reloading shotgun, appellant alleges accusatorial (1) the prosecution failed to disclose: results of the (2) analysis; striation audiotapes interviews with witnesses (3) Manuel; Liz James Revak and an of alibi interview witness (4) McCormick; Timothy Dr. of the reports investiga further tion referred to in affidavits of cause probable placed which in his appellant place employment, from 9:00 a.m. to 9:00 (5) p.m.; logs showing delivery UPS to The Touch Finishing 10th, on the morning January day rape (6) murder; (7) scene; photographs and of the crime drawings (8) laboratory drawings; police report regarding victim’s car; and evidence of the plea agreements made with prosecution Ferry witnesses and Christopher Appel White. “[bjecause lant states that none of these items were ever defense, provided to the cannot [ajppellant demonstrate pre cisely they undermine how will confidence in the outcome of the trial when Brief produced.” Appellant’s at 52. Appellant states the basis for never his belief that these items particular that he has seen never even exist. Notwithstanding claims, confession that he cannot make out his appellant maintains “potentially” that the undis exculpatory value closed evidence is readily apparent. Focusing alleged on the “deals” between the Ferry, Commonwealth and White and argues also that evidence of such agreements would *40 been made credibility and should have
implicate witnesses’ purposes. Appel- impeachment trial counsel for available the claims supporting he has “affidavits” also states that lant falsely.17 testified Ferry that White appel- of the items that none responds The Commonwealth that and states exculpatory, receiving of not complains lant issues, as ineffectiveness presentation as as their these well to be claims, by and held this Court litigated previously were alleged agree- Regarding in I.18 evidence meritless Tedford witnesses, asserts the Commonwealth prosecution ments with ineffectiveness layered as a only cognizable this claim is that because the record demon- claim, merit arguable but lacks had no established “deals” with Ferry that and White strates Commonwealth, positive for some only hoping but were testimony. their exchange for consideration appel- court denied the PCRA issuing opinion, Prior to its claims, that finding on these discovery lant’s request that cause existed allow good had failed to show appellant found the PCRA court discovery opinion, In its discovery. and improp- to be broad many discovery requests or for the any necessity basis showing specific er. Far from evidence, discovery of the PCRA court’s review requested requesting basis for appellant’s only that opinion demonstrates exculpa- bemay often that the evidence discovery PCRA court In opinion, on its content. its PCRA tory depending claim and dismissed this discovery its denial incorporated that the evidence was did not demonstrate appellant because prejudicial. the failure disclose was or exculpatory (1) of three elements: A violation consists Brady (2) evidence, excul whether prosecution suppression defendant, to the to the or favorable patory impeaching, Timothy Sunday, inmate David “affidavits” of 17. references Geibel, pro appellant's se investigator Pamela Tucker contained petitions. Each declaration stated that PCRA and amended White, only Ferry testified Ferry and that never confessed and/or getting from thought he was a "deal” against appellant he because the Commonwealth. whether the items exist. does not address 18. The Commonwealth 569 Pa. prejudice Paddy, defendant. Commonwealth (2002). No if the 800 A.2d violation occurs non-govern- at issue is to the defense from evidence available importantly, Brady only mental sources. More violation guilt punishment, exists when the evidence is material i.e., that, “there is a reasonable had the probability when defense, been the result of the disclosed to the been different.” Id.19 proceeding would have *41 appellant’s original discovery request, Similar to overbroad, cause, improper, lacking good which was and his claim prosecutorial any current “misconduct” fails to set forth allegedly basis that the evidence is suppressed exculpatory defense, prejudiced favorable to the and that he was its alleged suppression. Appellant merely states that: potentially of these items ... exculpatory
[t]he value For readily apparent. example, any favorable not was disclosed with striation respect analysis] [the would tend discredit the prosecution theory twine Finishing from Touch the [T]he murder weapon. Moreover, any favorable of respect [reports evidence with “further investigation” to in the of proba- referred affidavit ble cause and log] the UPS rebut the prosecution would theory as to the crime place how took and create doubts about [a]ppellant’s guilt.
Appellant’s Brief at 52. claim is Appellant’s comprised entire- conjecture. of ly Appellant must affirmatively demonstrate exculpability; asserting the “potential exculpatory value” of Moreover, “any favorable evidence” is insufficient. appellant evidence, has not the of proven even existence some of the such as alleged undisclosed crime scene striation drawings, analysis, and the UPS As for the log. alleged agreements the prosecution between Commonwealth Ferry witnesses White, agreements record indicates that no such Additionally, Brady-like specifically cogniza- we note that a claim is 19. applicable ble under version of the PCRA. See 42 Pa.C.S. 9543(a)(2)(vi) (1995) (petitioner eligible § for relief if conviction or ‘‘[tjhe unavailability sentence resulted from at the time of trial of exculpatory subsequently evidence that has become available and that introduced”). would have affected of trial if it the outcome had been only that he that the Ferry hoped prosecu-
existed. testified Board, assistance to Parole tion would mention his counsel, he trial White testified that had questioned by when at his deals prison making heard inmates with never has authorities to themselves. Because help any Paddy regard any elements with satisfied claims, underlying claims fail. Brady of his Respecting appellant’s couching Brady alternative counsel, in boilerplate terms of ineffective assistance of claims fail, underlying Brady any note that because the claims we argua- assistance counsel claim lacks derivative ineffective merit. ble Credibility
2. Witness bol- alleged improper second claim involves the Appellant’s stering discrediting of a witness and the that his fair defense alibi witness. maintains trial Trooper the prosecution were violated recalled rights when information had offered the Ferry recount Stanek Appellant asserts that rebuttal constituted inad- police. hearsay, proper missible neither relevant nor rehabilita- tion, Ap- impermissibly Ferry’s credibility. vouched *42 Trooper testimony also contends that Peters’ pellant police offered to demonstrate that did not improperly McCormick, witness, testimony of alibi appellant’s believe from departed when arrived regarding appellant appellate that counsel was ineffective Appellant argues home. to failing object for to raise tidal counsel’s failure to improper Ferry of alleged bolstering alleged improper discrediting of McCormick.
The that Trooper Commonwealth counters Stanek’s rebuttal Ferry, testimony clearly admissible rehabilitate who been trial counsel cross-examination. impeached by had notes that did not Trooper The Commonwealth further Stanek or not Ferry’s for truthfulness refer vouch Reed, record, disapproved by as Commonwealth v. 300 Pa.Su- (1982). 224, 311, Additionally, 446 A.2d 314 the Common- per. testimony permis- asserts Peters’ Trooper wealth rebuttal
691 cast of the sibly memory night doubt on McCormick’s argues thus trial and question. Commonwealth counsel cannot be to make ineffective objections baseless claims. The PCRA court meritless claim, finding give dismissed this that neither instance could (1) the underlying rise ineffective assistance because: (2) merit; arguable claims misconduct lack trial counsel had (3) no reasonable objecting testimony; basis for prejudiced. was not It is may well established that the not prosecution inject “highly personal prejudicial opinion [an] evidence, credibility thereby clearly into improperly in truding upon the jury’s evaluating exclusive function Kuebler, credibility of witnesses.” Commonwealth v. 484 Pa. 358, (1979) 116, 399 A.2d 118 (quoting v. Commonwealth Potter, (1971)). 284, 492, However, 445 Pa. 285 A.2d 493 “as as long prosecutor does assert his personal opinions, he may, limits, or she within reasonable on the comment credibili of a ty witness. especially Commonwealth This is true when credibility has been previously witness attacked Simmons, 211, the defense.” 541 Pa. 662 621, (1995) (citation omitted). A.2d 639 This stems from the general principle prosecutor that the permitted respond arguments to the of the defense and to present “is free his or her case with logical force and vigor.” Commonwealth v. Koehler, (1999). 334, 225, course, Pa. 737 A.2d Of on a improper commentary credibility witness’ may be through achieved means other than prosecutor’s own statements, eliciting improper such as comments from a Com Tann, witness, monwealth see Commonwealth v. 500 Pa. (1983), 459 A.2d or by plea agreements admitting of Commonwealth into witnesses evidence to vouch for their credibility, Bricker, see Commonwealth v. 525 Pa.
A.2d (“[B]y 154-55 into admitting evidence [the *43 agreements for plea] credibility, that vouch their the govern was ment silentio testifying ‘just sub that once’ these believed; be ‘during lowlife witnesses should this trial’ halo of on the they governmental ‘being with the are crowned omitted). credible.”) (emphasis are right therefore side’ ruling the Presently, we see no error in PCRA court’s the lack As a witness for underlying claims merit. the Commonwealth, appellant’s of crimes testified details Ferry jail. in to him two by appellant as confessed while were cross-examination, Ferry by imply trial counsel impeached On crime from he could learned the details ing that have In an effort to rehabilitate reports. and television newspaper offered rebuttal evidence Ferry’s testimony, prosecution Trooper testimony. Stanek’s Trooper the form of Stanek’s that Ferry possessed to' demonstrate testimony was intended Moreover, Trooper to the murderer. only information known Ferry’s personal opinion not offer his own Stanek did indeed, merely Ferry’s described how testimo testimony; he prosecutor did investigation. the State Police ny affected on a witness’ credibili inject opinion particular a personal testimony elicit for ty, improperly vouching nor did he Here, deemed of a trial counsel cannot be credibility witness. object. for ineffective Peters, testimony appel Trooper Respecting police to show that the testimony lant claims this was offered McCormick, appellant’s alibi witness. Con did not believe assertion, properly Peters trary Trooper testimony Peters’ Trooper called a rebuttal as witness. evening memory of the intended to cast doubt on McCormick’s exchange question merely Trooper’s recounted with time at McCor arrived regarding McCormick drink and the fact that had been mick’s residence McCormick a these instances constituted ing alcohol. Neither of two through either or prosecution, personally situation where discredited, the credi witness, through opinion, vouched occurred, Therefore, bility as no misconduct of witness. are prosecutorial claims misconduct appellant’s underlying thus, baseless, claim of ineffective layered derivative any merit. arguable of counsel lacks assistance *44 3. Other Claims Misconduct Finally, appellant prosecutor improperly claims that the silent, right receipt commented on his to remain the defense’s credibility and the discovery, Commonwealth witnesses. (1) are, disputed respectively, The comments as follows: the his to prosecutor during opening comment made statement the I ask to listen as can to the jury: you closely you “So as evidence, All the both the evidence. Commonwealth evidence evidenee[,]” 28; (2) N.T., 2/2/87, the and the defense at during comment statement that the prosecutor’s closing evidence,” N.T., 2/6/87, 669-70; the defense “had all at and time effort closing regarding other comments “how much and case,” just had in this that because police put Ferry criminal appel- and White had bad records did not mean that them, lant not in did confide id. 706. object to the any potential
declares that waiver remarks is of all counsel. by prior overcome ineffectiveness that the court responds properly PCRA found each of these claims to be merit. The Common- without that, claims, asserts as other these wealth with representation only claims are waived as to trial counsel’s cognizable as claims of assistance of appellate ineffective counsel. The that the PCRA court concluded claims lacked arguable finding merit after that the comments did not have effect of prejudicing jury. unavoidable aby prosecutor
“Comments
constitute reversible
error
their
only
prejudice
where
unavoidable effect is to
in their minds a fixed bias
jury, forming
hostility
toward
they
weigh
the defendant such that
could not
the evidence
Miller,
objectively and render a fair verdict.”
746 A.2d at
unobjectionable
601-02. The
statements are
if
prosecution’s
they
proper
are based on the evidence or
inferences there
from,
represent
mere oratorical flair. See Commonwealth
Jones,
(2002).
Additionally,
571 Pa.
811 A.2d
prosecution
permitted
respond
arguments
must be
Carson,
made
the defense.
Review post- addressed of trial counsel ineffectiveness were claims motions, necessarily not renewed though they were trial finding in the court’s see no error PCRA appeal.20 direct We objectionable prejudicial not so that the comments were pur- declining unreasonable for counsel was appellate appeal. on direct sue the claims First, obliged view counsel was closely as as jurors “to listen requesting remark innocuous as “misconduct” the evidence” of both sides [they] can to *45 to remain appellant’s right and burden implicate to designed Indeed, making now-disputed before the moments silent. “if the comment, added the defense prosecutor proviso the addition, N.T., 2/2/87, the at 26. In any.” to present elects evidence, testimony the including in fact present defense did And, reference to defense finally, a himself. appellant from reference to evidence specific is broader than fails note also that claim own mouth. We the defendant’s trial counsel did in in ineffectiveness because sounding as’one comments, but the response a mistrial in to these request fact Furthermore, in at 29-31. denied. See id. motion was event, the court that the remark was agree we with PCRA any prejudicial. not the
Second, closing the comments in respecting evidence,” again agree with PCRA all the we defense “had allegedly improper no The prejudice. court that there was as comments follows: were surprise. heard no
The evidence the defendant was You police records in this ease. had all defense the defendant made tongue of the slip noticed perhaps him a prosecutors] asking was today when [one something Did he remember something: about question other? identify present which of his claims appellant's failure to 20. Because of litigated by appellate previously were of trial counsel ineffectiveness contends, whether, counsel, was not this issue it is unclear as appeal. by appellate counsel on direct raised Well, He said: I’m not sure if I from my memory know that or from reading report. a police gives you understanding
That an what in exactly happens this case. testimony yesterday
Defendant’s to its designed weave way through the evidence. He had all the evidence. He it knew what the had didn’t. He and what attempted yet way to his the evidence ex- through weave plaining away proved ignoring what we what we could not prove.
N.T., 2/6/87, added). Appellant (emphasis argues 669-70 that such a to attempts “penalize comment defense for exercising it rights discovery” generally to and could be used impeach credibility every in witness who testifies own defense. Brief Appellant’s at 70. conten- Appellant’s tions, however, supported are not the cited text. The prosecutor commenting merely upon way which appellant’s testimony attempted respond the Common- Moreover, wealth’s evidence. the prosecutor’s point is accu- rate: subject defendant criminal case sequestration witnesses, like other is uniquely and so posi- tioned to tailor his testimony try to account for whatever damning jury evidence the has Highlighting heard.
reality is not fail to improper. We see fair how such comment burdens a discovery rights; defendant’s certainly, appellant cites no authority for such governing and proposition, appel- counsel late cannot be faulted for failing to forward an argu- ment unsupported by existing law.21
Third, appellant claims that the following statements improperly for the thoroughness police vouched of the investi gation and the credibility of case: Commonwealth’s
The defendant no effort to try made help police with their investigation if what he is is the telling you truth and someone else murdered Jeanine You Revak. have seen objected 21. We note that trial in fact counsel to the remark based on grounds improper an suggestion that it constituted and reference to discovery. the defense's use of put police had in this and effort much time how case. telling us
If for a minute what defense was we assume it true, can much imagine help how yesterday you to the police.... been would have And, cooperate police. with the didn’t But defendant counterfeit an try he couldn’t even yet, the stand her death. emotion of concern for added). N.T., 2/6/87, Trial counsel did (emphasis at 678-74 context, these comments were not object. Taken in not it The had before jury improper prejudicial. merely The investigation. prosecutor the police
the extent of concern for the appellant’s police lack of upon commented murder, rape which seemed investigation into victim’s a friendship, claim that he had as well to-contradict encounters, fail to victim. We as romantic with recurring vouching, commentary improper amounts see how such obliged object, constitutionally that counsel was such the claim. obliged pursue comments in following also claims that prosecutor’s improper vouching constituted the closing credibility: witness than both bad records. Worse Ferry
Now White have That no secret. horrible records. is We They got bad. you told that.... It mean that the defendant necessarily
No secrets. doesn’t in them. didn’t confide why it
N.T., 2/6/87, these Again, at 706. self-evident objectionable be a matter of law. comments should deemed as unexceptional made the observation prosecutor merely The had criminal records did Ferry the fact that and White in them. not have confided not mean that would thereby improperly did not bolster vouch prosecutor Therefore, this claim witnesses. credibility for the two misconduct, and all derivative ineffectiveness prosecutorial merit. arguable claims lacks ef-
Finally, the Miller “unavoidable appellant asserts *47 the court is inconsistent employed by PCRA fect” standard Court applied by Supreme U.S. standards with Donnelly, Citing claims. misconduct prosecutorial evaluate recognizes High that the Court two states supra, appellant (1) generalized claims: of misconduct types prosecutorial misconduct, if the are reviewed to determine claims of which as to make the the trial unfairness error “so infected with (2) claims process”; of denial due resulting conviction Rights. of the Bill of See guarantees implicating specific contends at 1868. Donnelly, 416 U.S. S.Ct. effect” standard is inconsistent even the “unavoidable ar- generalized Appellant’s claims standard. Donnelly’s with however, merely The Miller “standard” is empty. gument, prosecutor’s that for a way stating proposition another error, they trial court comments to be a basis for reversible trial or him right deny affect the defendant’s to a fair must is therefore process. Appellant’s legal argument due without And, does not just importantly, argument merit. as side claim, must operate appellant’s cognizable to advance which at levels. satisfy prejudice Strickland two Jury E. Consideration Work-Release Status claim from of his Appellant’s next stems work- objection, trial continuing release status. Over counsel’s in his mentioned work-release status prosecutor of the opening presented testimony statement and later record Correctional Institution at supervisor State testified that release Greensburg appellant who was work morning from the granted furlough Friday, January 10th to the 1986. January evening Monday, supervisor appellant The record also testified that did not 13th, January p.m. 9:00 deadline. Susan Black- arrive burn, appellant’s arrangements friend had dinner with who 10th, for that January day rape murder, during preceding January testified week 10th, that he able to appellant had told her would be meet furlough approved. her for dinner because his had not been Additionally, appellant himself testified his work-release status, very that “status on release is noting work sensitive” *48 N.T., 2/5/87, following at 554. In the to lose. easy
and Blackburn lying admitted to to Susan exchange, appellant her: seeing so that he could avoid losing furlough about told you Blackburn] What had Counsel]: [Susan [Trial about status the week end your earlier the week over told her. ability you and to see her? Tell what your [sic] I that I had to return to had told Susan [Appellant]: Greensburg. Why?
[Trial Counsel]: I Liz earlier to see her. promised had [Appellant]: [Manual] Tim that I some promised spend I had would [McCormick] him, I he been his license. time with because had awarded very confusing. simply Diane. It And I to see wanted things up more of this. I lied to these any didn’t need cover me put that the he had and that’s snowballed what’s today. here
Id. at 551. jury the trial court instructed the guilt phase charge,
In its on its consideration of this evidence as follows: that the defendant tending prove
There was evidence I’m of the speaking on release. evidence introduced work of the defendant testimony the Commonwealth and the from This Greensburg. as the defendant’s work release [to] guilt. is not evidence of the defendant’s You must evidence from the evidence of release. This guilt not infer work only, be considered for one may by you purpose evidence is, to help you judge credibility weight the defendant as a in this trial. testimony given by witness N.T., 2/6/87, object at 749-50. Trial counsel did not to the charge. trial court appeal, appellant direct claimed that
On relating the introduction of permitting erred no compel- status because it served appellant’s work-release held inherently prejudicial. and was This Court ling purpose properly appel- that the trial court allowed the admission (1) three to establish purposes: lant’s status for work-release (2) murder; to demonstrate premeditation his motive for the murder; planning rape prove in his guilt consciousness of through appellant’s failure to return to I, prison the conclusion of his furlough. Tedford A.2d at 621.22 claims currently that the trial cautionary court’s
instruction was erroneous because appellant’s release work situation was irrelevant to his credibility. Appellant maintains that he does not seek to relitigate admissibility of the evidence, work-release a claim previously which was litigated appeal, direct but rather contends that appellate counsel was ineffective for failing to raise trial counsel’s failure to request a limiting instruction when the evidence was initially admitted and trial object counsel’s failure to to the court’s *49 closing charge.
The Commonwealth that this responds issue previously was litigated on direct appeal. The Commonwealth asserts that is attempting to repackage the admissibility issue into a challenge to cognate jury instructions. The PCRA agreed, court claim considering this to be previously litigated and finding that appellant attempting was to relitigate this issue under an ineffectiveness counsel theory. The PCRA court concluded that the jury instruction appellant presently faults was related to the three reasons this Court held that evidence of appellant’s work-release status was admissible.
As this I, Court in discussed because appel Tedford lant’s work-release status rise gave to relevant circumstantial evidence of matter, his guilt rejected we counsel’s challenge to its admissibility. Appellant’s current claim relates to trial counsel’s related, failure to raise a but distinct, challenge on the focusing of the adequacy trial court’s instruction. Contrary to the PCRA court’s conclusion that this claim previously litigated, this Court’s opinion in 22. It is unclear whether this Court determined that the evidence purposes admissible for these three or whether the evidence was in fact admitted for purposes. these three Our review of the current record produce has original failed to evidentiary the trial court's ruling, which was the continuing objection. basis for counsel's The Court on direct may appeal event, original have had the benefit ruling. any of the In clear, the trial court's final significantly instruction is and it narrowed purpose for which the evidence could be considered.
700 con- Amendment claim be that such Sixth requires
Collins underlying from the claim and distinct separate sidered ’ mandate, however, not appel- does trial Collins save error. it is lacking claim because ineffectiveness lant’s derivative merit. arguable crimes prior generally of a defendant’s is
Evidence or character propensity to show bad solely admissible 404(b)(1); Com for acts. See Pa.R.E. committing criminal (1989). 835, Billa, 168, Pa. 555 A.2d 840 v. 521 monwealth. be admitted for other relevant may of other crimes Evidence motive, intent, prepa “proof opportunity, such as purposes, or ration, identity or absence mistake plan, knowledge, it if accident,” only probative be admitted though should outweighs potential prejudice. its of the evidence value Billa, at 404(b)(2)-(3); also 555 A.2d 840. When see Pa.R.E. admitted, however, the defendant is entitled such is jury explaining to a instruction upon request jury admissible for one more only evidence is specific Billa, A.2d 841-42. 555 purposes. above-described limited if clearly, adequately it upheld “An instruction will be v. Pa. Spotz, 563 accurately reflects the law.” Commonwealth (citing Commonwealth A.2d 1287 (1997)). Hawkins, Additionally, Pa. A.2d to use form of permitted expression is its own trial court Finally, to the Id. concepts jury. difficult explain legal the court’s instructions. jury follow Common presumed *50 (2004). Pa. A.2d Speight, wealth find ineffective for cannot counsel Presently, we in this As on direct object to the instruction case. we noted in fact was admissi- evidence appeal, work-release-related motive, con- and multiple purposes: premeditation, ble for But, charge the quotation as our of court’s guilt. of sciousness reveals, the trial court fact an instruction which gave above a different and nar- of the evidence to limited consideration the fact that arising appellant from point: credibility rower Contrary lied friend his work-release status. to a about the work release respecting current lie appellant’s argument, and premeditation to the motive furlough and was relevant was, terms, in general status points. Appellant’s work-release appellant’s of judging weight credibility the and relevant the January against of 10th entire account weekend case, naturally of relied theory the which Commonwealth’s circumstances, sta- including work-release upon appellant’s furlough prison. charge tus and from The was favorable that it consider- jury’s the defense to the extent narrowed evidence, objection an risked a ation of the and would have all Further- charge encompassing purposes. broader relevant more, emphasized, charge it must be the trial court’s ad- arising head-on the for unfair only potential prejudice dressed evidence, jury from the that it should not squarely telling infer from the of release guilt work and that it for the purpose gauging was admitted limited weight credibility appellant’s testimony. jury presumed charge, Speight, to have followed the court’s see and the here supra, charge prospect prejudice. removed objection In of trial light continuing counsel’s and the trial instruction, court’s that trial limiting favorable narrow we find not the trial ineffective. Because court’s instruc- ineffective, tion any was not error and trial counsel not claim of assistance layered derivative ineffective of counsel lacks arguable merit. Jury
F. Relied on Ecclesiastical Law— Penalty
Guilt & Phases Appellant’s implicates guilt next claim both the that, the penalty phases. Appellant maintains in reaching sentence, jurors their upon verdict relied ecclesiastical law Commonwealth, which, rather solely upon than law of the true, if appellant’s rights would constitute a violation of under First, Sixth, Eighth Amendments Consti U.S. corresponding provisions tution and the of the Pennsylvania Specifically, Constitution.23 contends that unsworn juror gathered declarations his counsel some nine or ten years after juror Bible, trial one always how carried describe however, Appellant, present argument 23. does on the First and Amendments, Eighth present separate arguments nor does he under the Pennsylvania Constitution. *51 702 read from the Bible jury prayer, in and verses lead
would that counsel appellate claims Appellant deliberation.24 during issue develop failing investigate for to ineffective appeal.25 Appel and raise it on direct in motions post-verdict not the fact precluded that relief is lant maintains jurors relied allegedly not that the counsel did know appellate investigate his failure to law because upon ecclesiastical coun imply appellate to seems unreasonable.26 prejudi to juror exposure potentially of prior sel’s awareness at voir dire to gave duty rise information newspaper cial that, by interrogating speculates He then jurors. interview their exposure stumbled across may counsel have jurors, during information delibera prejudicial improper other and/or juror he in the declara tion, the information includes including tions he attaches.27 fact, claim, point implicate "ecclesiastical in does not Appellant’s
24.
"body
largely
canon
of law derived
from
Ecclesiastical law is
law.”
courts,”
law[,]
governs
by the
administered
ecclesiastical
and civil
discipline
particular church.”
and
(8th
of a
"the doctrine
Black's
Law
2004). Thus,
the Bible is different from ecclesi-
551
ed.
Dictionary
law.
astical
opinion
Court's
in
support
claim
states that this
In
of this
25.
Chambers,
630,
(1991)
644
528 Pa.
599 A.2d
v.
may
rely
Appellant’s
jury
on ecclesiastical law."
that a
"reiterated
Chambers, however,
jury reliance on
did not address
Brief at 58.
law,
prosecutors that reliance
rather admonished “all
ecclesiastical
but
religious writing
support
upon
any
any
the Bible or
other
manner
per
imposition
penalty of death is reversible error
se and
of a
Chambers, 599 A.2d at
may subject
action.”
disciplinary
violators
appeal in this
until after the direct
also was not decided
644. Chambers
case concluded.
“have often been found ineffective
Appellant declares that counsel
26.
knowledge."
they have
failing
a claim about which
no
to raise
quotations
Reply
(emphasis
and internal
marks
Appellant’s
Brief at
omitted).
Taylor,
proposition, appellant relies on Williams v.
For this
362, 395-99,
(holding
120 S.Ct.
the direct
“Counsel
to
decisions that
investigations or
make reasonable
able
investigations unnecessary.” Common
render particular
Basemore,
258,
717,
744 A.2d
735
560 Pa.
wealth v.
2052)
Strickland,
691,
(emphasis
The of as well as circumstances Sneed cases are Supreme by appellant, inappo Court cited U.S. cases, In claim. those counsel appellant’s present site to cursory investigations the most into failed to conduct even presenting mitiga for the background purpose his client’s obviously counsel have sentencing. Capital tion evidence investigations mitigation to conduct reasonable into evi duty recognized duty to inter dence. But do have jurors uncovering in the a collateral claim hopes view Furthermore, the fact that there to undo the verdict. which juror in concerning exposure was an issue voir dire media duty go post-verdict accounts does not rise to a on a give distinct, other, unrelated, speculative into fishing expedition influences.” As the court there is no “jury recognized, PCRA in present that counsel knew that the Bible was jury being improper purpose. room and was relied for an upon jurors that Additionally, given post-verdict questioning discouraged jurors may and that not im strongly generally verdict, “failure” to peach question their counsel’s jurors in of such a claim reasonable. perfectly search was the trial that the Finally, agree alleged presence we with court jury of the Bible room and the occasional do not prayer prove improper use of the Bible as at issue Chambers. Bible, and of do not mean it presence prayer, deliberation, a factor in the much jury’s jury less *54 law, teachings substituted biblical for the governing somehow teachings and those substitute harmful to were somehow reasons, appellant’s case. For the this claim of foregoing assistance of counsel merit. ineffective is without Improper Impact G. Victim Evidence— Penalty Phases
Guilt & that his next claim also Appellant argues implicates both the guilt penalty phases Appellant alleges trial. that the to improperly permitted Commonwealth was introduce victim- i.e., trial, impact evidence at of the victim’s attrac- per- court objection, trial counsel’s the trial Over tiveness.28 regarding to introduce evidence mitted the Commonwealth admis- testimony, prohibited but appearance through victim’s Revak, of the victim.29 James photograph sion of a husband, testified as follows: victim’s Revak, your describe wife you Mr. would [Commonwealth]: us, please? seven, hair, six, five brown was around five She [Revak]: my opinion. beautiful in eyes, and she was brown everyone And else’s? [Commonwealth]: Very much so. [Revak]:
N.T., 2/3/87,
testimony
contends that this
Appellant
at 164.
irrelevant,
not
inflammatory,
prejudicial,
and was
was
no
rape
for
because there is motive
to show motive
elicited
states that
the Common-
also
rape.
element
in
of the victim the courtroom
photograph
had the
wealth
admitted,
that,
it
still seen
although it was not
was
speculates
(1)
that:
trial counsel
claims
was
jury. Appellant
(2)
object; and
failing
for
supposedly
ineffective
this issue on direct
ineffective for
to raise
counsel was
that,
the evidence
although
also maintains
appeal. Appellant
the evidence affected the
guilt phase,
at the
presented
jury
the trial court instructed the
because
penalty phase
heard in the case-in-chief.
“all” the evidence
consider
testimony regarding
responds
The
because it
victim-impact testimony
beauty
the victim’s
trial, 1987, victim-impact
testimony was inadmissible.
28. At the time of
Fisher,
130,
145-47
v.
545 Pa.
681 A.2d
See Commonwealth
ap-
position and
(although
Supreme Court reversed its earlier
U.S.
Tennessee,
testimony
Payne
victim-impact
501 U.S.
proved of
(1991),
prior capital
Pennsylvania’s
The PCRA court concluded that this claim lacks arguable merit. The court found that the testimony appropriate was the alleged victim-impact establish motive noted that testimony presented guilt stage, at the Fisher whereas McNeil, and Commonwealth v. 545 Pa. 679 A.2d (1996), evidence, 1259-60 of the presentation victim-impact require penalty phase, which was deemed to new sentencing. introduced at claim that
Appellant’s clearly trial counsel was ineffective lacks merit arguable object because trial counsel did in fact the presentation of evidence on the victim’s attractiveness. In fact, the addressing objec- sidebar conference trial counsel’s tion up eight takes over of the pages transcript and trial objection counsel’s to the admission of the photograph Therefore, victim was sustained. appellant’s appel- claim that late counsel was ineffective raise trial counsel’s ineffectiveness on also lacks appeal arguable merit.
To extent appellant’s only claim sounds in appellate ineffectiveness, it also fails because the trial court’s ruling was For one proper. thing, James Revak’s testimony did not implicate impact.” “victim He did not testify family devastation he or members suffered after his wife was brutally raped and murdered. He testified to her looks. See 9711(a)(2) § 42 Pa.C.S. (describing victim-impact evidence as “evidence concerning and the impact victim that the death victim”). of the victim has had on the family informant, Ferry, jailhouse “[Appellant] testified: said she was 30. good looking body everything, and had a nice and he had hot nuts N.T., 2/4/87, for her." at 381. admis attractiveness was of the victim’s Evidence targeting reason for to explain in this case sible described, himself Ferry As victim. particular *56 Although to the victim. he attracted that was had stated evidence rape, the crime of such an element of is not motive motive, intent, plan, to prove Evidence be relevant. may cases. in criminal will, always malice is relevant ill or design, A.2d Gwaltney, Pa. he (1982). Here, relevant show motive was appellant’s of a crime. The victim committed the the one was who humanity to her and references prop, not merely murder is case, In as unfairly prejudicial. and inherently not are clear, on the victim focus appellant’s made Ferry’s testimony precisely on her arbitrary. He focused not or generic was of her looks. because noted, the time of trial at court
Finally, as PCRA victim-impact sentencing precluded scheme capital McNeil, the testi- Fisher and and, penalty phase, unlike for a valid guilt phase at the judice sub admitted mony at the impact as victim argued it never and was purpose not Therefore, claim is underlying appellant’s penalty phase. sentencing prohi- scheme’s capital the prior under cognizable in Fisher and evidence as described victim-impact bition appellate claim that McNeil. Accordingly, on direct raise this meritless claim for failing ineffective merit. arguable lacks appeal CLAIMS
II. PENALTY PHASE Mitigation Evidence Right to Present A. Waiver argues first phase, appellant to the Turning penalty evidence was mitigating right present of his his waiver voluntary. knowing, intelligent, it because was invalid not told that he was that the record shows argues Appellant face an “automatic” that he would not understand and did evi- mitigating presentation death sentence without be that a death sentence would asserts Appellant dence. had jury because the mitigation the absence “automatic” so, appellant This is aggravators. found one of the already killing him jury allegedly guilty because the found says, Further, rape. appellant the course of the during victim that, although contends trial counsel conducted a record waiv- the nature of colloquy appellant er said he “understood” sentencing proceedings, responses explana- capital questions suppos- tions to trial counsel’s demonstrate that he Appellant did not understand the also edly proceeding. the result of trial counsel’s in- maintains that his waiver was investigate effectiveness because trial counsel failed appellant mitigating inform of available evidence. Counsel’s rights, a defendant’s asserts duty protect appellant, im- mentally emotionally increased when the defendant is in the paired, present as claims he was case. Fur- ther, appellant contends that counsel was ineffective to raise this issue on direct appeal. *57 prejudice appellant maintains that is demonstrated because was sentenced to death as the result of the defective waiver because, ineffectiveness, and but for counsel’s appellant could presented have a case for a life sentence. Re- compelling to the PCRA court’s conclusion that sponding this issue was I, previously litigated appellant argues that this Tedford Court’s conclusion that appellant compelled could be to present mitigating evidence did not on the depend validity therefore, and, his waiver the waiver issue not previously was litigated.
The counters that this issue previously was litigated appeal, on direct that where this Court concluded appellant’s mitigation valid that the waiver was and waiver from colloquy was free error. The PCRA court also conclud- ed that this claim was that previously litigated appellant and presently attempting to this issue relitigate under new alternative, theory based on ineffectiveness. In the continued court, the PCRA lacks appellant’s argua- ineffectiveness claim ble merit because it is clear from the that record knowing, intelligent, voluntary. waiver was and surrounding appellant’s circumstances waiver are as trial, guilt phase follows. After the conclusion of the at a stated, chambers, previ- trial counsel as he had conference court, appellant before trial that ously advised weeks sentencing to prepare trial counsel not instructed to urged appellant also stated that he Trial counsel phase. trial, sister, present who were meet with his mother declined. Trial appellant but mitigation, discuss the issue advice, that, appellant his against counsel then stated mitigating evidence. formally waiving right present to ensure colloquy leave to conduct requested Trial counsel waiving. he knowingly understood what Thereafter, colloquy appel- conducted a record with lant, appear the relevant of which below: portions stage are and knowing So at what we Counsel]:
[Trial present, intends to what the Commonwealth knowing desire, my willingness ability go forward knowing you, your factors for is it desire mitigating and present factors present any mitigating and to not give up right your right on behalf now? affect the more How does this
[Appellant]: question: One appeal? possible that, I because I don’t know answer
[Trial Counsel]: had this situation. never Yes, Okay. give up rights. I those
[Appellant]:
[*] [*] [*] [*] ... the difference between Mr. Tedford knows Court]: [The mitigating? proof aggravating the burden of bur- You understand the difference on the counsel]: [Trial of proof? den No.
[Appellant]: *58 has the burden of The Commonwealth [Trial counsel]: is, doubt, they a reasonable that have beyond proving aggravating beyond circumstances proving the burden to factors only prove mitigating doubt. We have reasonable of the evidence. by preponderance factors? only prove mitigating We have [Appellant]: aby have to those lesser only prove We counsel]: [Trial aggrava- has to prove standard than the Commonwealth ting factors.
[Appellant]: I understand. Obviously, again try- once I’m ing to deal I something with feel inside rather than the law. I’m looking back at the court situation and we didn’t have to there, prove anything Now, and it didn’t do any good. we prove have to I something. don’t I really any hope. have this, understand I though you’re understand what saying. Okay, your [Trial is it desire counsel]: to waive the presen- tation of factors? mitigating
[Appellant]: Why Yes. prolong it? Yes. Why waste time it? with All right....
[Trial counsel]: N.T., 2/6/87, at 762-65. The prosecutor then described to appellant aggravators what present. Commonwealth would Afterwards, trial counsel stated appellant present could mitigating evidence in the form of testimony from family members, to which appellant “I replied, don’t put want to them through that. I think there’s been enough of that.” Id. at 767. Appellant even requested leave to attend the penalty phase, but the trial court stated that he was required Later, law be present. stated, again firmly won’t be any “[t]here mitigating circumstances.” Id. at 771. In his nunc pro tunc motion for a new trial and arrest of judgment prepared counsel, by appellate appellant claimed trial counsel was ineffective for failing present mitiga- tion evidence. Subsequently, direct appeal, appellant aban- doned that version of the claim and converted it into a claim alleging that the trial court had a duty of its compel own to the production of mitigating factors and that it had erred by failing to do so. This Court disagreed and held that a trial court does not have a sua sponte duty compel the presenta- tion of mitigating evidence against a defendant’s will. Tedford I, 567 A.2d at 626-27.31 framed,
Properly appellant’s current only claims can be that appellate counsel was ineffective for failing argue 31. The I Court also appellant’s prior adverted to version of the Tedford claim, stressed that despite "appel- ineffectiveness claim was made
712 because it a product
that
was invalid
appellant’s waiver
to
and ade-
failing
investigate
trial counsel ineffectiveness
appellant,
to
explain
mitigating
the available
evidence
quately
With
caused
waiver.
lapse
supposedly
a
which
counsel,
claim
trial
we reiter-
concerning
to the nested
respect
that,
has a
to undertake reasonable investi-
duty
ate
“[c]ounsel
particular
that render
or make reasonable decisions
gations
to
Basemore,
A.2d at 735.
unnecessary.”
744
investigations
failure to inves-
of a claim ineffectiveness for
Consideration
supporting
the investigation
must “focus on whether
tigate
of [the
not to introduce
evidence
mitigating
counsel’s decision
539
Wiggins,
itself reasonable.”
background was
defendant’s]
omitted);
523,
see also
(emphasis
at
A criminal defendant decide whether presented be on his behalf. We will not gating evidence will evidence. compel remove admission of such right no evi- duty argue Defense has to introduce and circumstances where his has mitigating dence of client specifically directed otherwise. at 611-12.
Id.
In
has
that a
years,
properly
recent
this Court
held
of a
challenge
validity
mitigating
waiver
preserved
examining
thoroughness
assessed
generally
evidence,”
present
specific
lant's
to counsel not
such
instructions
mitigating
evidence the trial
had not set forth
noted
court,
I,
counsel,
at 627
produced.
have
567 A.2d
n.
should
Tedford
7.
fully
understood
of the
to ensure that
defendant
colloquy
right
consequences waiving
and the
the nature
582 Pa.
873 A.2d
right.
Randolph,
See Commonwealth
also,
(2005);
e.g.,
Rega,
see
Commonwealth v.
denied,
(2007),
cert.
-U.S.
Pa.
933 A.2d
1027-29
*60
(2008);
-,
1879,
933 A.2d
Rega,
128
quire rejection be likened to the unreasonable-failure-to- this case cannot su- Taylor, cases such as Williams v. investigate-mitigation eases, supra. In those supra, Rompilla, pra, Wiggins, investigation most cursory counsel failed to conduct even the Here, mitigating readily into available evidence. apparently not contrast, investigate counsel did not “decide” trial Rather, he was present mitigating and decline to evidence. counsel’s by notwithstanding to do so appellant, instructed not “desire, willing- and counsel’s avowed existing investigation In mitigation forward” evidence. ability go ness and with fact, mitigation, appellant present trial counsel advised family who him discuss the matter members urged with evidence, certain notified mitigating could presented have family in the had form mitigating court that he informed the court that member testimony, repeatedly against advice counsel. appellant proceeding allega- facile the truth of current assuming appellant’s Even of the misunderstanding reflected a tion—that his waiver mental impairment— or was caused sentencing procedure counsel ineffective absent prove proof that fact would misunderstanding counsel or should have known knew that, or under impairment, and knew should have known law, di- ignore him to his client’s that fact authorized record, appellant’s rection. the circumstances on Given respecting mitiga- claim counsel was ineffective that trial waiver, and inform investigate tion for evidence, for real- failing to potential mitigating about and/or infirm lacks merit. arguable ize that waiver was ineffective claim that corresponding direct raise trial counsel’s ineffectiveness on failing to fails. appeal necessarily Trial
B. Counsel Ineffectiveness trial counsel ineffectiveness raises two claims of claims that trial counsel was penalty phase. Appellant at the penalty, powerless be etc.—the Commonwealth would about the death judgment. to seek to overturn *63 (1) mitigating present to and failing investigate for: ineffective Like evidence; jury. failing “life-qualify” and claims ad- we have trial counsel ineffectiveness guilt phase that these claims were above, has not shown dressed event, In be- any on direct litigated appeal. not previously lack ineffectiveness of trial counsel these nested claims cause similarly fails. merit, claim of ineffectiveness layered any Evidence Mitigating Present Investigate Failure to & 1. failing for trial counsel was ineffective claims that Appellant and that mitigating appel- investigate present and raise trial counsel’s failing ineffective for late counsel was arguable This claim lacks appeal. on direct ineffectiveness above, trial counsel did because, at length merit as addressed pres- mitigating evidence and wanted investigate potential evidence, not to do so by appellant. but was instructed ent Moreover, other evi- to the extent counsel failed to uncover his investigation torpedoed by mitigation, dence not to introduce appellant’s directive client’s directive. Given Schriro, supra; prejudice. cannot mitigation, appellant show Sam, Therefore, claim of ineffec- supra. appellant’s layered merit. tiveness is without Prospective
2. Failure to Ask Jurors Questions Qualifying” “Life also claims that trial counsel was ineffective Appellant “life prospective jurors qualifying” questions to ask which, in of due says, he resulted a death sentence violative Amendment. asserts that process Eighth jurors provided indicating five of the have declarations automatically impose any first-degree death they would jurors presence capital murder case that the of such that this Appellant argues case amounts to structural error. from cases like Commonwealth v. distinguishable claim is Simmons, (2001) (OAJC), 804 A.2d Pa. rejected claims based on counsel’s where ineffectiveness were jury, because at least five life-qualify failure bias jurors disqualifying here shared an actual and supposedly life against imposition of a sentence. previously- counters that this Court has
The Commonwealth
Simmons,
rejected
supra,
such a claim in cases like
(1999).
Williams,
557 Pa.
“ ‘Life
qualification’
process by
pro
which
*64
jurors
jury
excluded from the
based on their fixed
spective
are
be
for a first
penalty
imposed
that the death
must
opinion
Speight,
murder
Commonwealth v.
578
degree
conviction.”
(2004).
450,
Although
Pa.
854 A.2d
a defendant
jurors
to
on voir dire must be
wishing
life-qualify
permit
Illinois,
719, 735-36,
so,
Morgan
ted to do
v.
504 U.S.
(1992),
general
Appellant attempts distinguish case authority by referencing juror referenced decla- unsworn rations. that those declarations that the assuming prove Even said the same under oath at voir jurors thing five would have dire, subject challenge have been for cause would during life-qualification inquiry, appellant prove has failed to counsel was ineffective. The declarations appellate years after the fact in order to gener- PCRA counsel secured pursued ate this claim did not exist counsel when direct counsel no constitutional appeal; duty had interview jurors; any has not offered argument explaining there is that on notice to put what would have Moreover, jurors. interview the five choice given appellant’s evidence, not to present mitigation it is difficult to see any from the prejudice resulting underlying pursue failure to life- qualifying questions.
Furthermore, the trial record reflects prospective ju- rors were questioned regarding they whether could follow laws and instructions of the court their notwithstanding personal on the death penalty. views Appellant’s unsworn declarations do not account for this rec- fact, ord involving what the same jurors said under oath. Appellant’s juror unsworn declarations cannot serve as the basis a failure-to-life-qualify ineffectiveness claim and do not overcome the of-record evidence of an adequate voir dire. Accordingly, layered claim of ineffectiveness lacks argua- ble merit.
C. Prosecutorial “Misconduct” *65 Appellant asserts that prosecutor’s the following objectionable: statement was
It is an awesome burden. It is the highest duty you can perform jurors as under our to say law that a man should be But, put to death. unfortunately, under these set of circum- stances, I personally believe it is an I appropriate action. believe you jurors as can follow that.
N.T., 2/6/87, at Appellant argues 786. that prosecutor’s the statement of “personal belief’ improper. was claims that trial counsel was object ineffective for to the statement and that appellate counsel was for ineffective failing to raise the issue on appeal.33 direct responds Commonwealth that this claim is waived and any that layered ineffectiveness claim lacks arguable merit. Although appellant 33. appellate declares that counsel did not raise this appeal, again claim on prove direct he through has failed to that fact presentation description many trial counsel and/or ineffectiveness claims appeal. counsel raised on direct
720 merits, asserts it permissi- the the that is
On Commonwealth of the death argue application ble for that prosecutor the the of is action under circumstances penalty appropriate the 490, 515 Christy, case. v. 511 Pa. Citing the Commonwealth (1986), also- that it has *66 in position must reasonable latitude arguing tor be afforded in in employ arguing oratorical flair favor jury may penalty). death his framing prosecutor should have avoided
Obviously, Nevertheless, do in of his belief.” we point “personal terms
721 for failing not trial counsel was ineffective believe objection. arguing The for the pursue prosecutor an cir- appropriateness penalty present of the death under 9711(a)(3) cumstances, The fact permits. very Section which conveys pursuing penalty that the Commonwealth is death jury prosecutor penalty to the believes ultimate is reasonably Counsel could deem the appropriate. properly objection comment and its concomitant unworthy emphasis, the court’s instruction that particularly given standard addition, lawyers’ are not In arguments evidence. because evidence, appellant did not present any mitigating improp- likely er remark prejudicial. Accordingly, be layered claim is without merit.
D. Denial of Mental Health Evaluation Appellant next that he a argues had substantial histo ry of mental impairment resulting from post-traumatic stress disorder, therefore, mental mitigation health could have and should been developed presented have claims sentencing. Appellant rights that his under the Eighth Amendment, as as right process well his due and to present defense, because he were violated was not afforded a mental health evaluation. asserts that trial counsel was failing investigate ineffective for his mental health and that counsel was to raise ineffective this issue on direct appeal. Appellant also maintains that this Court’s 192, decision Commonwealth v. 540 Pa. Christy, 656 A.2d (1995), right which held that defendant’s to mental Oklahoma, 68, health assistance under Ake v. 470 U.S. (1985) S.Ct. L.Ed.2d 53 is limited to it cases where to rebut the prosecution’s needed evidence of future danger ousness, is inconsistent the later with decision Tuggle Netherland, 283, 133 516 U.S. 116 S.Ct. L.Ed.2d 251 curiam) (per and should be overruled. because, that Ake is inapposite counters
in Commonwealth v. Appel, 547 Pa. 689 A.2d (1997), only this Court held that Ake applies when defen- dant demonstrates that sanity at the time of the offense is
722 case, asserts trial. In the present factor at significant
to be a Commonwealth, or demonstration there no indication was offense, or that he the time of the insane at appellant was Therefore, trial. concludes Common- at incompetent was entitled to wealth, constitutionally not appellant because was evaluation, cannot be ineffective for his counsel health mental fur- The Commonwealth request such assistance. failing forbade trial fails appellant that this claim because ther notes court PCRA any mitigation evidence. present counsel to standards applicable to meet failing this claim as dismissed claim. an ineffectiveness state-paid psychiatric two scenarios where recognized “Ake required: could be capital an defendant indigent for assistance (1) the defendant is able phase to the relating guilt ‘[w]hen — trial court that his to the ex-parte showing make an threshold defense’; and factor in his significant to be a sanity likely is (2) presents the State phase to the relating penalty —‘when dangerous- of the defendant’s future psychiatric ” A.2d Pa. 946 Blakeney, 596 ness.’ Commonwealth 82-84, Ake, U.S. at S.Ct. (quoting 1087). mental health was not at trial that his argue did danger- argue did not future and the Commonwealth
at issue
Therefore,
governing
under the
law
sentencing.
at
ousness
existence,
demand a
not entitled to
appellant
then
trial counsel was
sentencing
mental health evaluation
More-
such assistance.
failing
request
ineffective for
not
trial counsel
over,
fails to demonstrate
known,
knew,
reason to
have
of a
counsel
or should
appellate
Furthermore, as discussed
health
a mental
evaluation.
pursue
counsel not
above,
directed trial
appellant specifically
because
evidence,
cannot be faulted
trial counsel
mitigating
present
for
searching
in a fishing expedition
engage
for
can
counsel be faulted
issues. Nor
mental health
ineffective.
claim that trial counsel
failing to
that this Court over-
Tuggle requires
claim that
Appellant’s
did not exist when
misplaced. Tuggle
Christy
rule
And,
claim.
act,
it does not further
had to
and so
event,
in any
did
Tuggle
purport
to broaden Ake’s applica-
tion.
Blakeney,
Moreover,
See
E. Instructions Maryland Violated Mills v. Appellant next claims that the trial court’s penalty phase instruction, jury stating that the jury had to be unanimous in finding any mitigating circumstance before it could give effect to that circumstance, mitigating violated the Eighth Amend- ment as construed by the U.S. Supreme Court in Mills v. Maryland, 367, 373-75, 486 U.S. 108 S.Ct. 100 L.Ed.2d (1988), 384 which was decided after the trial in this case. Appellant argues that the trial court’s instruction stressed the need for unanimity with respect to both the verdict and the jury’s findings and indicated that the jury to make was its findings as to mitigating and aggravating circumstances in the same manner with the exception of proof. burden Appellant contends that the instructions in the present case are similar to those which the U.S. Court of Appeals for the Third Circuit held Fulcomer, violated Mills in Frey v. 132 34. Ake was Virginia Supreme decided after the Court affirmed the sentence.
724 (3d Cir.1997). that, in maintains Appellant 916 further
F.3d
Banks,
406, 411-12,
159
v.
542 U.S.
S.Ct.
Beard
(2004), Court held that Mills
Supreme
L.Ed.2d 494
U.S.
cases,
that
judice,
such
the case sub
were
as
applies
at
time
decided.
contends
Mills was
appeal
Mills claim will be available to
that because a
court,
relief
Mills pursu
he can
seek
under
presently
federal
9543(a)(2)(v) of the
PCRA.35
pre-amendment
ant to Section
cognizable
claim
because trial
that this
is
Appellant argues
jury
failing
object
charge
for
to the
counsel was ineffective
trial
failing
ineffective for
raise
appellate
was
also
appeal.36 Appellant
on direct
counsel’s ineffectiveness
have raised this Mills
that
counsel could
asserts
re
the then-existent doctrine
relaxed waiver
claim under
it
trial counsel.
preserved by
gardless whether
merit
asserts that this claim is without
Commonwealth
not
trial counsel could
have been ineffective
because
objection
a trial that took
before Mills
place
raise a Mills
Peterkin,
538 Pa.
Citing
decided.
(1994),
n.
A.2d
the Commonwealth states
Pennsylvania
held that the
death
consistently
this Court has
Mills
does not violate Mills
statute
penalty
*69
Further,
the
notes that the U.S.
retroactive.
Commonwealth
the
Beard v. Banks after
PCRA
Supreme Court decided
in
has
that
High
the
case and the
Court
held
opinion
present
to a
such as
apply' retroactively
does not
defendant
Mills
completed prior
Citing
trial
to Mills.
appellant, whose
was
Banks,
that
the
explains
v.
the
U.S.
Beard
amendments,
9543(a)(2)(v) stated that
Prior
the 1995
Section
35.
provisions
the
was
violation of the
Constitu-
"[a]
relief
available
tion,
require
United
which would
the
law or treaties of the
States
corpus
prisoner.”
42
granting
relief to a
of Federal habeas
State
16, 1996).
9543(a)(2)(v) (repealed
§
Jan.
Pa.C.S.
effective
although
Appellant argues
was not decided at the time of
that
Mills
36.
trial,
series
cases
underpinning
the
of Mills was established in a
586,
2954,
Ohio,
including
S.Ct.
725 a rule of law has also held that Mills was new Supreme Court of non-retroactiv- exceptions does not fall within the two which 1060, Lane, 288, in 489 109 S.Ct. ity Teague U.S. described (1989). respect appellant’s argument 103 334 With L.Ed.2d cases the Lockett/Eddings/Skipper that the line of establish Mills, the the Commonwealth notes underpinnings not compel has held that those cases did Supreme U.S. Court Banks, 416, 542 at 124 S.Ct. holding in Mills. See U.S. argua- claim lacks 2504. The court concluded that this PCRA Peterkin, because, Pennsylvania death citing ble merit not apply not Mills and Mills does statute does violate penalty retroactively. Mills, in capital
In
Court held that
a
case
Supreme
U.S.
considering
giving
be
from
may
precluded
sentencer
Mills,
486
at
any mitigating
full effect to
evidence.
U.S.
govern-
Mills set forth a
rule
procedural
Here, pre raised or as in never direct appeal. a Mills claim before the trial court served the Mills Therefore, only claim derivative is waived claims, however, remains.37 claim ineffectiveness instruction, object did not to the though trial counsel that even ineffective for nevertheless appellate discretionary under the relaxed raise Mills appeal on direct ap in direct applied capital was then doctrine which waiver fact But, controlling once appellant again ignores peals. any mitigating trial counsel not to present that he directed his circum attempt prove any mitigating and not to thus, Because jury, mitigators weigh. had no stances. mitigators against aggrava jury weigh any could not Mills did not tors, appel implicating prejudice the instructions reason, ineffectiveness claim any lant. For this Mills-based fails. necessarily APPELLATE CONFLICT
III. COUNSEL
OF INTEREST only next claim is the claim that Appellant’s evidentiary to elicit required hearing court found an PCRA petition, appel facts. In his verify any necessary PCRA counsel labored under a conflict lant claimed that office, Defend County the Butler Public interest because his Office, concurrently wit represented er’s two Commonwealth trial, White, Ferry testified at nesses who However, at the their criminal matters. PCRA individual former testimony heard the of White’s hearing, the court waived, underlying fail. appellant's claim were not it would 37. Even if notes, judice charge jury charge is similar to the sub As Fulcomer, held violated Mills due to Frey v. which the Third Circuit mitigating juror circumstances also potential confusion over whether 923; unanimously. Frey, Abu- 132 F.3d at see also had to be found Court, Horn, (3d Cir.2008). 300-04 This v. 520 F.3d Jamal however, consistently do not violate held that similar instructions has rejected contrary See conclusion of the Third Circuit. Mills and has Breakiron, (1999). 729 A.2d 556 Pa. *71 defender, testified that his public Morgan, Esquire, John who representation of ceased trial. Fer- prior appellant’s White former ry’s attorney, Goldinger, Esquire, Richard also testi- representation fied and stated that his of Ferry concluded appellant July before murdered Jeanine In its Revak. order, 2004 memorandum con- opinion PCRA court involving cluded that there no conflict of interest was Public representation Ferry Defender’s of The White. court found that the Public Defender’s of representation Ferry and White had concluded prior appellant’s trial and that appellant failed to prejudice stemming ap- demonstrate from counsel’s pellate appointment following trial. The appellant’s court also found that Goldinger Ferry did not recall that Further, became a cooperating against appellant. witness PCRA court that appellant concluded failed to establish that any prejudice occurred.
Presently, appellant claims that the PCRA court erred when finding claim to be meritless. Appellant states that although Goldinger as Ferry’s withdrew counsel December 1985, Goldinger present was as Ferry’s attorney Ferry when gave statements to the police concerning appellant’s jailhouse admissions. argues that a attorney non-conflicted aggressively would have pursued possibility of an undis- closed Commonwealth, deal and the Ferry between whereas appellate counsel merely here asked Goldinger open- a few ended questions and drop. let matter Appellant also maintains that Goldinger, as the of head the Public Defender’s Office, experienced a conflict of interest based on responsi- bilities to appellant both Ferry. that, Commonwealth if responds appellate counsel
learned of undisclosed deals between the Commonwealth and White and Ferry, he would have ceased his representation of appellant. The that asserts argu- ment that appellate counsel must have labored under a conflict of because interest he “failed” to challenge alleged, but unproved, deals is meritless. It is far plausible, more main- Commonwealth, tains the that appellate counsel did not pos- any sess “mythical such deals” they because did also contends that
not exist. The Commonwealth prove because he did not the existence prove prejudice cannot Moreover, any deals. continues the Common- undisclosed wealth, appointed represent Ferry completed after the trial and after appellant until and White had testified. attorney loyalty, his client a duty
An owes Strickland, 466 of interest. including duty avoid conflicts “is attorney’s duty loyalty 2052. The U.S. S.Ct. *72 interest obligation the of counsel to avoid actual conflicts of behalf of adversely ability perform that affect his would 566, Washington, Pa. 880 his client.” Commonwealth v. 583 536, (2005). duty, To a breach that the A.2d 543 establish of of an actual of interest client must the existence conflict show of Id. An adversely that affected the outcome the case. interest the during actual conflict of “is evidenced whenever of the course of the interests representation, appellant —and client bears obli interests of another towards whom counsel or respect legal with to a material factual gations diverge— Saladin, 359 of action.” In Interest issue to a course A.2d Com (discussing 518 1261 Pa.Super. (1974)). Breaker, monwealth v. Pa. A.2d “deals” alleged has failed establish conflict claim in the first upon premises which he his existed fact, nor Ferry In neither White testified place. and the agreement existence any with Commonwealth Additionally, there agreements. record reflects that were no no longer represented because the Public Defender’s Office White, trial had Ferry concluded when no began representation appellant, appellate Furthermore, interest the PCRA actual conflict of existed. if he Attorney could not recall Goldinger court found that police made statements to the represented Ferry Ferry when Thus, failed to an actual against appellant. establish and, therefore, arguable this claim conflict interest lacks alleged shown appellant remotely merit. Nor has how And, him. he not shown prejudiced finally, conflict has any to raise con- counsel was ineffective flict claim.38 COURT ERROR
IV. CLAIMS OF PCRA Hearing Denial of A. PCRA summarily that the court erred in Appellant claims PCRA affording discovery of his claims dismissing bulk without that he evidentiary hearing. Appellant argues or an discovery, entitled to and declares that he should have PCRA on all evidentiary hearing been afforded an of his claims because, proven, if the claims entitle him to relief. The would that, 909(B), under responds Pa.R.Crim.P. justified dismissing appel- PCRA court all but one of hearing genuine lant’s claims without a because there nowas issue of material fact raised the claims. 909(B)(2)
Rule states that the judge is satisfied from “[i]f petition] genuine review a PCRA that there are no [his] [of fact, issues concerning any material defendant is not relief, to post-conviction legitimate entitled collateral and no purpose by any would be served further proceedings[.]” Pa. 909(B)(2). R.Crim.P. court’s reviewing When PCRA deni relief, post-conviction al of our “is standard limited whether the trial court’s determination is supported by evidence of *73 record it is legal and whether free of error.” Commonwealth Allen, (1999). 135, 582, v. 557 Pa. 732 A.2d
As our consideration of appellant’s many above claims dem- onstrates, hold that the PCRA court did not err in dismiss- we all ing appellant’s but one of claims or a discovery without hearing. has not an entitlement to Appellant shown collateral discovery. respect hearing, With to a the PCRA court and true, accepted appellant’s arguments this Court have as if but appellant’s have found that claims nevertheless fail as a we matter of The PCRA court adequately law. detailed its dismissing reasons for claims an appellant’s without evidentia- 909(B)(2)(a), as ry hearing required by Pa.R.Crim.P. and conflict, appellate required If 38. counsel labored under a he would be issue, to raise the of course. See Pa.R.P.C. 1.7. from that of the PCRA reasoning our often differs although court, same: claims do appellant’s the outcome is the necessary dispose material fact genuine issues of implicate of the claims. Motion
B. Denial of Recusal judge, Judge next claims that the PCRA Doerr, he recused himself because Thomas J. should have County in the Butler Public Defender’s Office formerly served 1986, District fall of when he left to become a until the up impartiality Doerr’s be Appellant questions Judge Justice. relationship Attorneys Goldinger of his with prior cause White, Ferry respectively, Morgan, represented who him at the replaced fact that due to the a District Defender’s Office he left to become Public when O’Shea, 384, 567 v. 523 Pa. Quoting Commonwealth Justice. (1989), contends that “[w]here A.2d ... in a facts personal knowledge disputed has judge from should him or herself judge disqualify proceeding, proceedings.” further no that appellant presented
The Commonwealth counters impar- Doerr’s Judge raise doubts as evidence which would order, opinion 2004 memorandum tiality. July In his fair and ability impartial Doerr his own to be Judge appraised had relationships may may he or not have as unaffected that he had no defender and stated serving public as when wit- appellant’s any appellant’s case involvement with Hence, motion for Judge nesses. Doerr dismissed recusal. discussed the stan
Recently, Blakeney, supra, we recusal: governing dards has trial recuse himself whenever he judge should
“[A] in a ability preside impartially as to his any doubt he can impartiality criminal case or whenever believes his Goodman, reasonably questioned.” be (1973). presumed 311 A.2d It is 454 Pa. he be ability has the determine whether will judge *74 prejudice, rule and and impartially able to without 731 unreviewable, assessment is personal, final. Common Druce, (2004). 581, 104, wealth v. Pa. 577 848 A.2d 108 a jurist “Where rules that he or she can hear dispose a case fairly prejudice, that decision without will be overturned on for an appeal but abuse of discretion.” Com Abu-Jamal, 485, monwealth v. 79, 553 Pa. 720 A.2d 89 (1998). (alteration
Blakeney, 946 at 662 A.2d in original). Additional ly, is the burden of the party requesting “[i]t recusal produce bias, evidence establishing prejudice or unfairness which raises a substantial doubt as jurist’s to the ability to preside White, impartially.” Commonwealth v. 589 642, Pa. 648, 910 A.2d (quoting Commonwealth v. Abu- Jamal, (1998)). 553 Pa. 720 A.2d
Here, appellant has not met the burden for demonstrating bias, partiality, or an abuse discretion. The bare fact that Doerr Judge served the Public Defender’s Office prior to there, counsel’s tenure attorneys with whose former clients subsequently testified at appellant’s trial after Judge Doerr Office, left the Public Defender’s are insufficient reasons to require recusal as a matter of law—which is appellant’s essential position. Stating that he had no prior knowledge or case, contact with appellant’s Judge Doerr ap- propriately determined that he could preside over appellant’s petition PCRA impartially. Our of appellant’s review laundry list of claims reveals nothing Therefore, untoward. the PCRA court did not abuse its discretion denying appellant’s recu- sal motion.
V. CUMULATIVE THE EFFECT OF ERRORS Finally, appellant claims that if even we hold that he is not entitled to claim, relief based on any individual he is neverthe- less entitled to relief because the cumulative effect of these allegations denied him a fair trial and in light of the height- procedural ened safeguards constitutionally required in capital cases. Quoting Commonwealth v. Bracey, 568 Pa. (2001),
A.2d the Commonwealth responds that this
732 of claims that “no number failed
Court has stated previously they merit if could not do individual- may collectively attain so not Likewise, court that could found ly.” PCRA that theory his effect based claims prevail on cumulative individually. no arguable had merit notes, repeated this has As the Commonwealth Court collectively “no of claims ly may held that number failed individually.” to do relief if fail so Common they warrant 698, 586, A.2d 592 Pa. 927 617 Washington, wealth v. 523, 553, Williams, A.2d 586 Pa. 896 (citing v. Commonwealth Rollins, Pa. A.2d (2006), v. 558 738 548 Commonwealth Williams, (1999), 532 Pa. 615 (1992)). This authority. Appellant ignores A.2d claim fails. CONCLUSION
VI. reasons, of the foregoing For the we affirm orders PCRA court.39 EAKIN, TODD, McCAFFERY Justice
Justices join the opinion. GREENSPAN concurring BEAR a opinion. Justice files in the result. Justice SAYLOR concurs BAER, concurring. Justice join Appellant’s guilt
I
resolution of
Majority’s
it
separately
I
I believe
claims. write
because
penalty phase
that,
view,
merit
my
arguable
at least in
there
noteworthy
in-
claim that counsel
ineffective for
Appellant’s
waiving
consequence
him that the
forming
pragmatic
be an automatic
evidence would
right
present mitigating
I see
I
this conclusion because of
death
reach
what
sentence.
the.
estab-
certainty
as the
Commonwealth would
virtual
committed
lish
factor
the murder was
aggravating
Prothonotary
Supreme
transmit
39.
of the
Court is directed to
with
complete record of
to the Governor in accordance
this case
l(i).
§ 971
Pa.C.S.
(the
Appellant
felony
rape
which
perpetration
9711(d)(6),
convicted),
§
see 42
doom-
simultaneously
Pa.C.S.
death,
him to
some case in
As de-
ing
mitigation.
absent
below,
from one of the
myself
scribed
I further distance
rejecting
reasons for
claims of ineffectiveness.
Majority’s
describes,
Majority
Appellant
rape
As the
was convicted
guilt phase,
and murder. At the conclusion of the
trial counsel
informed the
court that
had decided
penalty phase
prepare
participate
penalty phase
not to
for or
he
particular,
case.
In
counsel informed the court that
had
explained Appellant
respective
the difference between
that the
proof
penalty phase, stating
burdens
at the
Com-
*76
aggravating
has the burden of
circum-
proving
monwealth
doubt,
beyond
stances
a reasonable
and the defense had the
factors
proving mitigating
by
preponderance
burden of
Moreover,
penalty
trial counsel informed the
evidence.
court that he had
to meet
his
phase
urged Appellant
with
mitigation. Notwithstanding
mother and sister
to discuss
admonitions,
told
Appellant
penalty
these disclosures
participate
counsel that he did not desire to
phase
case, and, instead,
phase
formally
to
penalty
preferred
At
right
present mitigating
waive his
to
evidence.
the collo-
quy
properly
following penalty
that the trial court
conducted
phase
representations, Appellant
counsel’s
confirmed that he
abandoning
right
present mitigation
Ap-
was
evidence.
told the
he
pellant
penalty phase court that
understood what
doing,
really
he
and said that he
“I
don’t
was
believed
have
711,
Majority Op. at
734 present mitigation evidence consequence declining 42 automatic death sentence. See Pa.C.S. an 9711(c)(iv). miti-
§ asserts that his choice to waive knowing, intelligent, therefore gation evidence was not inform him of ineffectively because counsel did voluntary, right of his declination of his pragmatic consequence evidence. present mitigation has the to decide right
A “criminal defendant whether presented be his behalf.” Com mitigating will 576, 1277, 1282 Randolph, v. 582 Pa. 873 A.2d monwealth Reid, 1, A.2d v. 571 Pa. 811 (quoting Commonwealth Sam, (2002); 350, 530, v. 535 Pa. 635 A.2d 553 Commonwealth (1993)). capital may right 611 defendant waive “[A] evidence, so mitigating long as waiver was present voluntary.” Randolph, 873 A.2d knowing, intelligent, Davido, v. 582 Pa. 868 A.2d (quoting Commonwealth (2005)); Marinelli, 570 Pa. (2002). 1257, 1275-76 This involves an examina inquiry A.2d fully the defendant understood the nature tion of whether it. right consequences waiving Randolph, and the A.2d at 1282. finds that because Majority Appellant unequivocally defense, pursue mitigation counsel not to
directed
absolutely
potential-
this decision did not
foreclose the
because
*77
than
prison,
verdict of life
rather
ity
penalty phase
of a
death,
be
for
failing
Appel-
counsel cannot
ineffective
follow
conclusion,
Majority
In
the
reaching
lant’s direction.
asser-
rejects
Appellant’s
on three distinct bases
specifically
him of
ineffective for
to inform
tion that counsel was
mortal
from his
of his
peril resulting
the self-induced
waiver
First,
Majority
evidence.
the
mitigation
right
present
of
and
guilty
rape
had been found
opines
while
murder,
sen-
imposition
this did not
of the death
preordain
that the
jury
tence because the
could have concluded
victim’s
during
perpetration
rape,
not
the
see
death did
occur
9711(d)(6). Next,
Majority
§
the
cites the Common-
Pa.C.S.
be-
aggravators unanimously
of
proving
wealth’s burden
doubt, and,
yond
reasonable
finally, the
*78
(1995).
Graham,
agree
I
Although
Pa.
Notes
know existed. notes Commonwealth that in allegations prayer jury the room only became known (the after present PCRA counsel’s Court organization Federal Division of the Defender Association entered Philadelphia) its appearance on behalf of appellant. Commonwealth also asserts that it is improper attorneys post- for to elicit jurors verdict declarations or evidence from for the purpose and, citing the verdict impeaching Commonwealth v. Zlato- vich, 388, 469, (1970), 440 Pa. 269 A.2d 473 states that Penn- sylvania prohibits jurors law from recounting their mental process in reaching their verdict. The PCRA court concluded ineffectiveness claim is and, waived based on reasoning similar to that forth put by Commonwealth, lacks arguable merit. The court found juror and, consideration of the declarations be improper after reviewing declarations, that, if prop- concluded even er, the declarations do not provide support for they claim because do not demonstrate that the jurors read the Bible and considered biblical verses during deliberations. The PCRA court also noted declarations were ob- 1997, tained in late 1996 and early well after both trial and appellate counsel’s representation had ended. general It a juror may is rule of law that a impeach the verdict jury’s jury after the has been discharged, though an exception this rule is made in situations where the jury was to an exposed possesses ex influence parte which a reasonable prejudice. likelihood of Commonwealth v. Rol lins, 435, 558 Pa. 738 A.2d 451 (quoting Common Laird, (1999)). wealth v. 555 Pa. A.2d Although they may testify to the existence of an outside influence, jurors are prohibited “from as testifying to the through presentation description many appellate of claims and/or by incorporation appeal. counsel raised on direct extra-evidentiary upon influences had which these effect decision,” just jurors are prohibited as jurors reaching at they mental which arrived recounting processes by from omitted). Zlatovich, (emphasis 269 A.2d their verdict. reiterate, noted that long ago this Court Additionally, we from jurors obtaining them “interviewing after verdict ques answer to undisclosed parte, ex unsworn statements by highly unethi tions and interviewers representations this court.” ago condemned long cal and and was improper 367 Pa. 79 A.2d Darcy Claudy, ex rel. (1951). 785, 786 decision, legitimacy Assuming, purposes declarations, reject we the notion that juror of appellant’s jurors to obliged prepare to interview
the Commonwealth notes A.2d 843 bounds flair held the of oratorical permissible been within by die argue the that the defendant “must prosecutor that, instances further states in The Commonwealth law.” may the be inappropriate, statements prosecutor’s where the unavoidable of trial not unless the effect new warranted such a remark the defendant to prosecutor’s prejudice was the weighing from degree prevented jury properly it the that claim any The Commonwealth contends evidence. because, assuming the remark was ineffectiveness fails even fair not rendered inappropriate, jury incapable the was because, to present due to decision not deliberation the if the mitigators, jury penalty the had to death any apply either of factually aggravators. established the the claim underlying The PCRA court found to be waived arguable claim to be layered lacking ineffectiveness merely appro- prosecutor arguing merit because preju- penalty of the death priateness diced the remarks. 9711(a)(3) that, § held under 42 This Court has Pa.C.S. permitted argue appropriate must be prosecutor “[t]he to the circumstances penalty applied ness of the déath as penalty only jury because that is the issue before Sneed, 597, 526 of trial.” Commonwealth v. 514 Pa. phase omitted). (1987) Likewise, prose (emphasis A.2d may arguing cution oratorical flair when favor employ Basemore, 869; A.2d at also Common penalty. death see Williams, A.2d 581 Pa. wealth case, (stating during sentencing phase capital prosecu
notes
Majority
the
possibility of jury nullification.
Respectfully, I disagree with this
analysis. As
the
Majority’s assertion that the guilty verdicts as to the charges
rape
of
and murder did not require the
of a
finding
relation-
ship
is,
between
course,
these
it
charges,
accurate that
there is a distinction
the guilt phase
between
question—did
Appellant commit
rape
and murder —and the penalty phase
issue—was
murder committed
during
perpetration of
the rape. However, having found Appellant guilty beyond a
reasonable doubt
during
guilt phase of
luring
victim to
place
her,
of employment, raping
and then murdering her
to prevent her from
going
police,
I believe that the
likelihood that
the jury would decline to find the Section
9711(d)(6) aggravator was nonexistent.
As another basis for finding Appellant failed to
inef-
prove
fectiveness, the Majority refers to the Commonwealth’s bur-
den of proving penalty phase aggravators beyond a reasonable
doubt, and the requirement
that the jury be unanimous. As
recounted,
already
however, the
just
Commonwealth had
con-
cluded convincing
jury
unanimously
beyond
a reason-
able doubt that Appellant had committed the rape and mur-
der.
It is difficult for me to see how the
proof
burden of
juror
the mandate of
unanimity
provide any
would
impediment
in the penalty phase.
Finally, Majority
asserts
ineffective
in this regard because of the jury’s alleged right to
engage
nullification of the
nullification,
verdict.
Jury
however, has
been channeled in capital sentencing proceedings into the
process
balancing mitigating and aggravating factors. See
Peterkin,
299,
373,
Pa.
513 A.2d
387-88
(1986) (noting that
“channeling
mercy
considerations of
leniency into the scheme of aggravating and mitigating cir
cumstances,” is consistent with
alleviating
problems potential jury nullification and arbitrariness identified in Fur
man v. Georgia,
U.S.
92 S.Ct.