COMMONWEALTH of Pennsylvania, Appellee, v. Zachary WILSON, Appellant.
861 A.2d 919
Supreme Court of Pennsylvania.
Decided Nov. 19, 2004.
Submitted July 25, 2001.
439
decided by many factors, including the defendant‘s use of peremptory challenges, challenges for cause, and jurors’ claims of hardship. Thus, a Batson inquiry focuses on whether or not racial discrimination exists in the striking of a black person from the jury, not on the fact that other blacks may remain of the jury panel. A defendant can make a prima facie case of discrimination without reference to the jury‘s racial makeup.
Likewise, evidence of the race of jurors acceptable to the Commonwealth who were stricken by the defense finds no place in the prima facie case, as defense strikes are irrelevant to the determination of whether the prosecutor has engaged in discrimination. Batson nowhere suggests that a defendant must support his challenge to the prosecutor‘s actions by showing that he has clean hands, or by admitting that he too struck black jurors from the jury.... Holloway, 355 F.3d at 728-29 (citations and internal quotations omitted). I would therefore not reject a Batson claim on direct appeal based on the Appellant‘s failure to develop information extraneous to that necessary to establish an inference of discrimination.
As Uderra explained, however, the reasoning in Holloway is less persuasive in connection with an ineffectiveness claim stemming from the failure to lodge a Batson challenge at trial. See Uderra, 580 Pa. at 511-13, 862 A.2d at 86. In that situation, requiring either a full and complete record, or proof of actual, purposeful discrimination, is consistent with the burden under the Post Conviction Relief Act,
Catherine Marshall, Esq., Robert A. Graci, Esq., Philadelphia, for Commonwealth of Pennsylvania.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice SAYLOR.
This is an appeal in a capital case from an order denying post-conviction relief.
On August 3, 1981, Appellant entered a drinking establishment in the City of Philadelphia, brandished a handgun, and fired four rounds into Jamie Lamb (“Lamb“), killing him. As he was shot, Lamb fell against one of his friends, Jeffrey Rahming (“Rahming“). When Appellant turned to flee, he tripped over Edward Jackson (“Jackson“), who had dived onto the floor during the shooting; while they were on the floor together, Jackson was able to view Appellant‘s face before he scrambled to his feet and ran outside. Jackson and Rahming provided police with descriptions of what they had witnessed, and in March of 1982, police conducted a lineup with Appellant. Although Rahming identified Appellant as the perpetrator, Jackson did not. Appellant was charged with Lamb‘s murder; however, at the initial preliminary hearing, Rahming failed to identify Appellant, and the charges were dismissed.
While Appellant was incarcerated for an unrelated offense in October of 1983, a fellow inmate, Lawrence Gainer (“Gainer“), asked him why he had killed Lamb—Appellant responded that he had done so because Lamb had killed Appellant‘s adopted brother, Ronnie Williams.1 In the summer of 1984, Gainer related Appellant‘s admission to Officer John Fleming, but refused to cooperate further. In March of 1986, Gainer
At the ensuing jury trial, the Commonwealth‘s case centered upon the testimony of Jackson, Rahming, and Gainer. Jackson described the circumstances surrounding the shooting; acknowledged that he told police that he could identify the perpetrator; stated that, although he recognized Appellant in the lineup, he selected another individual because Appellant had threatened him; and explained that he told police of the reason for his actions at the lineup one week before the trial. Jackson then identified Appellant as the individual who shot Lamb. During his testimony, Rahming began by acknowledging his prior criminal record; he then related his observations of Lamb‘s killing, which he had given to police the day of the incident, and identified Appellant as having committed the crime. Like Jackson, Rahming said that Appellant had threatened him and, as a result, although he had identified Appellant at the lineup, he declined to implicate him at the preliminary hearing. Gainer testified to Appellant‘s admission and to having related it to Officer Fleming. In addition, both Gainer and his girlfriend, Linda Blakney, indicated that they had received telephone calls from Appellant entreating Gainer not to testify against him, which Blakney interpreted as threatening. Appellant did not testify during the guilt phase, and the sole defense witness was Steven Whitfield, Appellant‘s fellow prison inmate, who claimed that he had been in the bar at the time of Lamb‘s killing and had seen the perpetrator, who was not Appellant.
The jury found Appellant guilty, and the case proceeded to a penalty hearing, during which the Commonwealth incorporated the evidence from the guilt phase and offered as aggravating circumstances that, in committing the offense, Appellant knowingly created a grave risk of death to another person in addition to the victim, see
On March 11, 1996, Appellant filed a counseled “Petition for Habeas Corpus Relief and Statutory Post-Conviction Relief.” See generally
Appellant filed numerous affidavits in support of the petition, and the PCRA court conducted hearings from July of 1997 through January of 1998, focusing upon the alleged failure of the Commonwealth to disclose exculpatory evidence, the existence of an alibi,2 and the purported failure of trial counsel to investigate and present certain mitigating evidence. Regarding the exculpatory evidence claim, the proofs expanded beyond the allegation in the PCRA petition to include both nondisclosure of a criminal conviction on the part of Jackson and mental health diagnoses for Jackson and Rahming. In this regard, PCRA counsel, relying upon a 1981 pre-sentence investigation for Jackson, elicited that he had been convicted for impersonating a public servant (a police officer), see
Appellant also presented witnesses who claimed that: Gainer had admitted to having testified falsely at Appellant‘s trial; Officer Fleming was aware of a gambling business run by Gainer‘s father; and Gainer provided information in exchange for police protection of his father‘s business. In this same vein, Appellant called witnesses who indicated that Officer Fleming harassed and threatened Jackson, Rahming, and Gainer to incriminate Appellant.
Officer Fleming denied knowledge of a gambling business run by Gainer‘s father and maintained that Gainer had supplied information voluntarily. When questioned as to whether he had ever given money to Gainer, Officer Fleming admitted to having occasionally made interest-free loans to Gainer. The assistant district attorney who prosecuted Appellant ac-
In his testimony concerning various guilt-phase issues, trial counsel stated that, during his conversations with Appellant, there was never any mention of a potential alibi; rather, their discussions centered solely upon challenging the identification testimony. Trial counsel testified that, had he been aware of Jackson‘s prior record, he would have used it to impeach him and, similarly, had he been aware of the mental health histories of Jackson and Rahming, he would have attempted to use such information to challenge the credibility of their identifications.
Regarding the penalty phase, Appellant presented testimony from friends and family members, indicating that he was physically and emotionally abused by his mother, and that he had suffered closed head trauma at the hands of his mother and from neighborhood gang members. Appellant also presented expert testimony from two psychiatrists, Richard Dudley, M.D., and Dr. Kessel, and a neuropsychologist, Barry Crown, Ph.D., each of whom examined Appellant and reviewed 1975 psychological and psychiatric evaluations of him, together
Responding to such evidence, trial counsel conceded that he did not interview witnesses or family members in preparation for the penalty phase or secure Appellant‘s school or probation records, explaining that his reason for such decision was that Appellant was not interested in mitigation and was adamant in this regard. Furthermore, trial counsel emphasized that he had discussed the statutory mitigating circumstances with Appellant and the need to call upon family members, and that the trial court had similarly questioned Appellant concerning such evidence. Although noting that Appellant did not appear to be mentally impaired, trial counsel acknowledged that, had he been aware of the psychological report in Appellant‘s probation records, it would have prompted further investigation.
The Commonwealth offered no evidence of its own, and the PCRA court denied relief on Appellant‘s petition. In its opinion pursuant to
As to the penalty phase, and in particular the claim that trial counsel failed to present mitigating evidence, the court found that Appellant‘s allegation concerning the mental health evidence was without merit, reasoning that there was no evidence to establish that Appellant suffered from the alleged mental disturbances at the time of the murder or that such evidence was available to trial counsel. Furthermore, the court indicated (erroneously) that Appellant had not produced any evidence to show that a mental health professional or any doctor had examined him prior to the commission of the murder. Thus, the court reasoned, the opinion testimony of Drs. Dudley and Crown was unconvincing, as it was unsupported by pre-existing medical evidence and, instead, was premised upon interviews of Appellant and affidavits from his friends and family members. The court also stated (also erroneously) that Dr. Dudley never examined Appellant; observed that given Appellant‘s strategy of denying commission of the killing, the mitigation evidence would have weakened the evidence presented; and concluded that Appellant had failed to demonstrate that such evidence would have led the jury to find one or more mitigating circumstances that would have equaled or outweighed the aggravating circumstances.
Discussing Appellant‘s argument that he was improperly precluded from presenting mitigating evidence respecting motive to the jury, namely, that the victim had killed Appellant‘s adopted brother, the court stated that the Supreme Court had rejected this issue on direct appeal and, in any event, the jury was able to consider Appellant‘s testimony on this issue. As to the challenges involving the aggravating circumstances of a significant history of felony convictions involving the use or threat of violence and knowingly creating a grave risk of death to another, the court ruled that these circumstances were not unconstitutionally vague. The court rejected Appellant‘s assertion that he was entitled to an instruction that life imprisonment in Pennsylvania means life without the possibility of parole, as Appellant‘s case predated the United States Supreme Court decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), which required the instruction where future dangerousness was at issue. Moreover, the court found that, even if such instruction was required at the time of Appellant‘s trial, future dangerousness had not been placed before the jury. Likewise, the court determined that the jury instructions respecting mitigating circumstances were consistent with United States Supreme Court precedent, and that the jurors were not misled into believing that such circumstances must be found unanimously.
I. Waiver
Preliminarily, Appellant‘s brief in this Court includes issues that were not pled in his PCRA petition, specifically, claims based on: the alleged failure of the Commonwealth to provide exculpatory evidence relating to Jackson‘s prior crimen falsi conviction for impersonating a public servant; mental health evaluations of Jackson and Rahming that purportedly could have been used to impeach them; after-discovered evidence involving Officer Fleming and Gainer focusing upon corruption in the 39th Police District; Officer Fleming‘s al-
Although Appellant‘s PCRA petition included an allegation that the Commonwealth had withheld discoverable evidence, such evidence was described as coercion and threats by Officer Fleming and a detective directed against Jackson, Rahming, and Gainer, causing them to falsely incriminate Appellant. The averments supporting the allegation did not reference, most notably, Jackson‘s prior conviction, the mental health evidence concerning Jackson and Rahming, or the asserted after-discovered evidence relating to Officer Fleming and Gainer. Neither Appellant‘s discovery motion nor his “Post-PCRA Hearing Memorandum” is a substitute for a sufficient PCRA petition and, likewise, neither can be construed as an amendment to such a petition. See generally
Connected with the after-discovered and suppressed evidence claims respecting Officer Fleming, Appellant also asserts error on the part of the PCRA court in denying discovery requests for information concerning purported corruption in the 39th District, refusing to permit PCRA counsel to inspect Officer Fleming‘s personnel file, and disallowing Appellant from calling as witnesses certain 39th District police officers. As these allegations of error relate to claims that were not properly before the PCRA court, we will not address them here.
Appellant first challenges the admission of hearsay in the form of prior consistent statements from the Commonwealth‘s three primary witnesses, Jackson, Rahming, and Gainer, arguing that the admission of such testimony violated state evidentiary law and Appellant‘s constitutional right to confront witnesses against him. See
To prevail on his ineffectiveness allegations, Appellant must demonstrate, inter alia, that the underlying claim is of arguable merit; no reasonable strategic basis existed for trial counsel‘s failure to object; and counsel‘s error resulted in prejudice, or more specifically, that there is a reasonable probability that the outcome of the proceeding would have been different. See Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
In the first instance, Appellant fails to elaborate upon his constitutional claim, other than to assert that his right to confrontation was violated, since the statements were not admitted pursuant to a “firmly rooted” hearsay exception. The Confrontation Clause of the Sixth Amendment “provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987) (plurality opinion). These protections are not violated, where, as here, a testifying witness‘s out-of-court statement is admitted and the witness is subject to full and effective cross-examination. See
With regard to the state evidentiary law dynamic of Appellant‘s claim, in general, an out-of-court statement of a witness that is consistent with his trial testimony constitutes inadmissible hearsay. See Commonwealth v. Hutchinson, 521 Pa. 482, 486-87, 556 A.2d 370, 372 (1989). Where, however, the prior consistent statement is one of identification, it is admissible as an exception to the hearsay rule as substantive evidence, regardless of impeachment, provided that the declarant is present and subject to cross-examination. See Commonwealth v. Ballard, 501 Pa. 230, 233, 460 A.2d 1091, 1092 (1983); Commonwealth v. Saunders, 386 Pa. 149, 155, 125 A.2d 442, 445 (1956); accord
With respect to Jackson, Appellant contends that the Commonwealth improperly bolstered Jackson‘s in-court identification when he testified on direct examination that he had witnessed the shooting, that Appellant was the perpetrator, and that he had advised the police immediately following the shooting that he could identify the gunman. In addition, Appellant argues that the Commonwealth reinforced Jackson‘s identification testimony by examining him respecting a statement which he had provided to detectives shortly before trial, in which he explained that, although he recognized Appellant in the lineup, he purposely identified the wrong person. For similar reasons, Appellant maintains that Rahming‘s identification testimony was improperly augmented during direct examination, when the Commonwealth elicited that he had previously identified Appellant at a lineup and, on redirect examination, that he had provided a statement to detectives indicating what he had witnessed at the time of the shooting. Each of these instances, however, involved prior statements of identification from witnesses who were present and available for cross-examination. Under the circumstances, therefore, their admission was permissible. See Commonwealth v. Ly, 528 Pa. 523, 532, 599 A.2d 613, 617 (1991);
With respect to Gainer, Appellant contends that it was improper for the Commonwealth to elicit his prior consistent statements on direct examination, specifically, that he had advised Officer Fleming of Appellant‘s inculpatory admission to him. Appellant also maintains that it was impermissible for the Commonwealth to have Officer Fleming reiterate Gainer‘s statements in which he related Appellant‘s admission. Trial counsel, however, cross-examined Gainer, attacking his credibility and suggesting that his testimony was a recent fabrication or a result of a corrupt motive.11 Given counsel‘s tactic, it
is at least arguable that the trial court would have been within its discretion to allow the Commonwealth to elicit Gainer‘s prior consistent statements during his direct examination, as an exception to the general protocol for the order of proof of rebuttal-type evidence, had a timely objection to the testimony been lodged. See Smith, 518 Pa. at 39-40, 540 A.2d at 258.12 Moreover, Appellant fails to elaborate on the degree of prejudice resulting from the asserted ineffectiveness of trial counsel in failing to object, in terms of its probable impact on the outcome of the case. In such circumstances, relief is unavailable. Accord Commonwealth v. Pierce, 567 Pa. 186, 216-17, 786 A.2d 203, 221-22 (2001); Commonwealth v. DeHart, 539 Pa. 5, 15, 650 A.2d 38, 43 (1994).
Regarding the asserted failure on the part of the Commonwealth to provide exculpatory evidence of Officer Fleming‘s coercion and intimidation of witnesses, the PCRA court rejected the claim in part on credibility grounds, and in part because aspects of the claim were previously litigated, see PCRA Court Opinion at 7-10; see also supra note 6, and we discern no error in the court‘s determinations in this regard. While the PCRA court‘s opinion fails to mention the aspect of the claim alleging coercion/intimidation of Gainer, no evidence of record supports such a claim.13
At the outset, Appellant‘s central challenges to the constitutionality of the aggravating circumstances denominated at Sections 9711(d)(7) (grave risk) and (d)(9) (significant record of prior felony convictions) of the Sentencing Code,
With respect to the grave risk aggravator, Appellant also urges that the prosecutor‘s closing argument in the penalty phase erroneously defined the circumstance as applying where individuals were placed in jeopardy or endangered (as opposed to placed in grave risk of death) and the evidence was insufficient to sustain the aggravator. Depending on grammatical construction, Appellant‘s contention that the prosecutor‘s suggestion that putting others “in jeopardy, even danger of death” implicates Section 9711(d)(7), N.T., Jan. 11, 1988, at 40, might give rise to a colorable objection. No objection was lodged, however, and the trial court accurately defined Section 9711(d)(7) in the jury instructions. See N.T., Jan. 11, 1988, at 46. Furthermore, Appellant‘s conduct in firing a gun in a barroom with ten to fifteen people present and in close proximity, including Rahming, who was standing behind Lamb, provided a sufficient basis for the jury to
Next, Appellant argues that his constitutional right to have the jury consider mitigating evidence, see Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978), was violated when the trial court precluded him from testifying that he believed that Lamb had killed Appellant‘s adopted brother. Appellant maintains that this testimony was relevant as bearing upon the circumstances of the offense, see
Appellant next contends that trial counsel‘s stewardship was deficient in his failure to conduct a reasonable
In this regard, we acknowledge that some jurisdictions require capital counsel to conduct an investigation into potential mitigation evidence to ensure that a defendant‘s waiver of such proof is knowing and intelligent. See, e.g., Koon v. Dugger, 619 So.2d 246, 250 (Fla.1993) (requiring that counsel state on the record “whether, based upon his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be“). Other jurisdictions, however, do not so require, provided that the defendant‘s waiver is knowing, intelligent, and voluntary. See, e.g., State v. Smith, 993 S.W.2d 6, 14 (Tenn.1999) (stating that counsel will not be adjudged ineffective for following the decision of a competent and fully informed defendant who chooses to forego investigation and presentation of mitigating evidence, and requiring the trial court to conduct an on-the-record colloquy with the defendant to protect his interests). The capital jurisprudence of this Court has aligned more closely with the latter line of cases. For example, in Commonwealth v. Michael, 562 Pa. 356, 755 A.2d 1274 (2000) (plurality opinion), the Court relied on the defendant‘s waiver in declining to find his trial counsel ineffective for failing to investigate potential mitigating evidence, even though the trial court had instructed counsel to contact the defendant‘s friends and family members and to prepare a penalty phase defense. See id. at 366-67, 755 A.2d at 1279-80; cf. Commonwealth v. Marinelli, 570 Pa. 622, 654-55, 810 A.2d 1257, 1275-76 (2002).19 While we are not unmindful that the adequacy of
Finally, Appellant contends that he is entitled to relief due to the cumulative effect of the errors alleged. Having determined, however, that no individual claim has merit, Appellant is not entitled to relief based upon alleged cumulative effect. See Rollins, 558 Pa. at 562, 738 A.2d at 452.
The order of the PCRA court is affirmed.22
Justice CASTILLE files a concurring opinion.
Justice NIGRO files a concurring opinion.
Justice CASTILLE, concurring.
I join the Majority Opinion, with the exception of the following two points.
First, with respect to appellant‘s claim that the penalty phase jury instructions and verdict sheet were unconstitutional under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Majority correctly notes that appellant litigated this very claim on direct appeal, and therefore, he cannot seek to relitigate it in the face of the previous litigation proscription of the Post Conviction Relief Act (“PCRA“).1 Despite this clear statutory bar against relitigation, however,
In my view, appellant‘s Frey-based argument fails, not simply because this Court disagrees with Frey on the merits, but for the more fundamental reason that non-binding, subsequent decisions of the lower federal judiciary are no basis upon which this Court can dismiss the PCRA‘s previous litigation provision. The PCRA contains no such exception to the previous litigation bar for the very reason that decisions of lower federal courts do not bind this Court. Thus, for PCRA previous litigation purposes, it would not matter if a majority of this Court evolved to feel that the Frey Court articulated a “better” view of the Mills question: the point is that final decisions of issues cannot be subject to relitigation every time a court somewhere renders a decision which may be helpful to the defendant. Accordingly, even if this Court were inclined to reconsider its view of Mills in an appropriate case, this case would not be the appropriate vehicle to do so because, as the Majority states, appellant‘s Mills claim has already been finally litigated.
The PCRA‘s rational limitation upon relitigation is particularly salutary in matters raising Mills procedural questions.
Second, I do not join in footnote 20 of the Majority Opinion, which suggests certain points a trial court should address with
With the exception of the above concerns, I join the Majority Opinion.
Justice NIGRO, concurring.
I agree with the majority that the PCRA court‘s order denying Appellant post-conviction relief should be affirmed. I write separately, however, to note my serious concern with the prosecutor‘s failure to disclose Edward Jackson‘s crimen falsi conviction to Appellant when, as the majority notes, a record reflecting that conviction was in the prosecutor‘s own file. Given this Court‘s clear pronouncement that the prosecutor‘s Brady obligation extends to exculpatory evidence contained in the files of police agencies, see Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1142 (2001), there can be no doubt that Brady also requires the prosecutor to disclose such evidence in her own files. Of course, knowing what documents must be disclosed is necessarily predicated on knowing what is in one‘s file in the first instance, and it is therefore disconcerting that the prosecutor in this capital case was unfamiliar with the contents of her own file.
That said, I agree with the majority that the Court is unable to decide whether the prosecutor‘s failure to disclose Jackson‘s conviction ultimately violated Brady here, as Appellant failed to include this issue in his PCRA petition and it is therefore not properly before the Court.