Appeal from the Judgment of Sentence Imposed on July 16, 1984, Entered at No. 0270, a, b, c 1983, in the Criminal Division of the Court of Common Pleas of Cambria County.
Gary L. Costlow, Michael L. Stibich, Johnstown, for appellant.
Gerard Long, Dist. Atty., Dennis M. McGlynn, Patrick T. Kiniry, Asst. Dist. Attys., Ebensburg, for appellee.
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Nix, C.j., files a concurring and dissenting Opinion. Zappala, J., files a dissenting opinion. Flaherty, J., did not participate in the consideration or decision of this case.
Lawrence Christy was found guilty by a jury of murder of the first degree for the killing of James Volk. A sentencing hearing was held as required by 42 Pa.C.S. § 9711*fn1 and the jury determined that Lawrence Christy be sentenced to death.
The case is now before us on automatic appeal pursuant to 42 Pa.C.S. § 9711(h)(1).*fn2
The facts of the case are as follows: According to Appellant's own testimony, in the early morning hours of June 16, 1980, he left a friend's house and decided that he was going to rob the Italian Men's Society Club in Gallitzan, Cambria County. He went there but found that he could not gain entry. He then went to the Oriental Ballroom and "jimmied" open a window with a knife and went inside. He was unaware that the Oriental Ballroom had a night watchman.
Once inside, he proceeded to go down the side of the ballroom towards the bar area when he heard footsteps coming from that direction. Appellant hid under a table until the sound of the footsteps became inaudible, indicating that the person had left the area. Appellant then came out from underneath the table and decided to leave the premises when he heard the footsteps again coming through the barroom. At that point, Appellant stated that he jumped up and put his hands in the air and said, "I give up." According to Appellant, the person then said, "You son of a bitch hippie," and shot at Appellant, striking him on the wrist and knocking him to the floor. That person was 69-year old James Volk, the security guard at the Oriental Ballroom. According to Appellant, Mr. Volk then placed the gun on the bar and started walking towards the end of the bar. Appellant then jumped up and grabbed the gun from the bar. Mr. Volk turned around and started to run toward Appellant.
Appellant testified as follows:
I picked up the gun. He came running at me. I said, please don't. Don't. And I shot once and didn't know if I hit him or not. He kept on coming like a racing bull. I shot him again and he fell down.
Appellant then took Mr. Volk's wallet and left.
Lawrence Christy confessed to the murder both in an interview with Pennsylvania State Trooper Cimbalista and again on the witness stand during trial.
The jury found Appellant guilty of murder of the first degree. At the sentencing hearing, the jury determined that Appellant be sentenced to death after finding two aggravating circumstances and no mitigating circumstances. The aggravating circumstances were that the victim was a prosecution witness to a murder or other felony committed by the defendant, and was killed for the purpose
of preventing his testimony against the defendant in any grand jury or criminal proceedings involving such offenses,*fn3 and the defendant committed a killing while in the perpetration of a felony.*fn4
Appellant's first argument on appeal is that he was denied effective assistance of counsel. Appellant's court-appointed trial counsel presented a defense that the first two shots fired by Appellant were in self-defense and that the last shot was fired as a result of the diminished capacity of Appellant. Appellant's new counsel for this appeal argues that this defense was unreasonable and that as a result of trial counsels' inexperience, they failed "to recognize that the only viable defense was psychiatric."
We disagree that trial counsel were ineffective. When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). There is a presumption in law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). The standard governing ineffectiveness claims was set forth by this Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were
more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel's decision had any reasonable basis.
Id., 427 Pa. at 604, 235 A.2d at 352-53. We also noted in Maroney that:
Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605, n. 8, 235 A.2d at 353, n. 8. See also, Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981). The Supreme Court of the United States has established the same standard pursuant to federal constitutional strictures in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh. den., 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment . . . . Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. Id., 466 U.S. at 691-92, 104 S.Ct. at 2067, 80 L.Ed.2d at 696.
Further, counsel will not be considered ineffective for failure to assert a meritless claim. Stoyko, supra, 504 Pa. at 472, 475 A.2d at 723.
With the Maroney standard in mind, we will address Appellant's itemized list of ineffectiveness.
Appellant argues on appeal that trial counsel were ineffective for failing to retain a "defense oriented" psychiatrist to testify at trial.
The record of this case reveals that Appellant's trial counsel did earnestly pursue the option of insanity as a possible defense. The matter was raised in an Omnibus Pre-trial Motion for Relief filed by Appellant's trial attorneys. The omnibus motion contained inter alia a notice of
insanity defense and a motion for a psychiatric examination. The court issued an order directing that Appellant be examined at Farview State Hospital. The court directed that the psychiatric evaluation determine the following:
the defendant's capacity to understand the nature and object of the proceedings against him;
the defendant's capacity to comprehend his own condition from such proceedings;
the defendant's capacity to understand the nature of the punishment which might be inflicted upon him;
the defendant's capacity to confer with counsel in reference to such proceedings;
the defendant's capacity to make a rational defense;
the probable effect of the trial on the defendant's physical and mental condition; and
whether the defendant, at the time of the commission of the act, was laboring under such defect of reason or from diseased mind as not to know the nature and quality of the acts he was doing or, if he did understand the nature and quality of his acts, that he did not know that what he was doing was wrong.
The examination of Appellant addressed itself to the questions posed by the court. Following the examination, the court issued subpoenas for the individuals who had conducted the examination, particularly Dr. Edward Olivier, and a summary of the evaluation was read into the record by the court as follows:
The patient is judged to have no functional mental illness and no significant mental disability. His characterologic and personality problems are severe and are considered to be totally resistant to modifications through any known form of treatment. He is considered to be entirely competent to stand trial and to cooperate with his attorney in the preparation of his defense. The patient is not considered to need further hospitalization and it is recommended that he be returned to the Cambria County Jail.
I could find no evidence whatsoever, either from the subject or from other sources, to suggest that he was not responsible under the M'Naghten Rules.
After the court stated that, in its opinion, the matter was settled, defense counsel requested the following:
MR. PARSEGHIAN: Your Honor, as to the matter of the insanity defense. I believe we are going to, in the interest of protecting our client's rights, have to call the examining physician and subject him to cross-examination and to determine whether or not, based on Mr. Christy's past history of involvement with illicit substances, he might have, at that point in time, been subject to a diminished capacity to understand what the nature and quality of his action was. I understand what the basis of the doctor's report is, but I would like to question him about it as to what sources he relied upon.
There was reference in there to reports from Hollidaysburg State Hospital and other facilities at which Mr. Christy was treated, but I believe the previous Farview record might not have been given due consideration and we would like to question the doctor as to exactly what was considered, what tests were performed, and what if any discussion was had with Mr. Christy pertaining to his use of drugs and other substances at the time of the offense in question. So we will have to pursue this defense, Your Honor.
The Court granted this request. However, Dr. Olivier was unable to appear for examination, and the court, on its own motion and with notice to the Commonwealth and defense counsel, ordered that the Appellant be examined by Dr. Hugh E. Chavern, a psychiatrist in Greensburg, Pennsylvania. The court directed that Dr. Chavern examine Appellant regarding the same questions posed to Dr. Olivier, including, again, the question of whether, at the time of the commission of the act, Appellant was laboring under such defect of reason, from disease of mind, as not to know the nature and quality of his acts, or if he did know what he was doing, did not know that it was wrong.
Copies of Dr. Chavern's report were given to both the Commonwealth and defense. A hearing was held in court in the form of a competency hearing with Dr. Chavern testifying and answering questions posed by the court, the prosecution, and both defense attorneys.
Dr. Chavern testified that, in his opinion, Appellant was not laboring under any defect of reason or disease of mind at the time he committed the crimes for which he was arrested. This opinion was based upon a reasonable degree of medical certainty.
Dr. Chavern also stated that, in his opinion, based on a reasonable degree of medical certainty, Appellant was competent to stand trial, able to deal with his attorney, understand the nature of the charges against him, and assist his counsel in making a rational defense. Defense counsel cross-examined Dr. Chavern extensively. Dr. Chavern testified at the competency hearing that he had testified for both the prosecution and defense in the past, and stated that he thought that, in the preponderance of instances, he had testified for the defense.
A hearing on the Motion for New Trial and In Arrest of Judgment was held on May 22, 1984, before the trial judge, the Honorable Eugene A. Creany. Testifying on the issue of ineffectiveness of counsel, defense attorney Parseghian stated that he had had contact with Dr. Chavern during the time he was a law clerk for the Honorable Caram J. Abood of the Cambria County Common Pleas bench. Attorney Parseghian had seen the doctor's work, seen him testify, and found him to be objective. In addition, he felt that Dr. Chavern, being from Greensburg, would be removed from the case.
For these reasons, defense counsel felt that he would give an objective opinion of the Appellant. Based on Dr. Chavern's report and testimony, as well as the report of Dr. Olivier, Appellant's trial attorneys decided not to pursue the insanity defense. We find no evidence of ineffectiveness in their decision.
In Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982), we held that failure to mount an insanity defense did not constitute ineffectiveness where counsel considered the issue carefully and rejected it.
A decision by counsel not to take a particular action does not constitute ineffectiveness if it is based upon a reasonable conclusion that there will be no benefit, and is not the result of sloth or ignorance of available alternatives. Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980). See also, Commonwealth v. Hubbard, 485 Pa. 353, 402 A.2d 999 (1979).
Furthermore, we have held that "a finding of ineffectiveness can never be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981); Commonwealth ex. rel, Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967). Appellant does not allege that there existed any alternatives which offered greater success than the one chosen.
Additionally, we have made an independent review of the entire record and conclude that there were no alternatives which offered a potential for success greater than that utilized.
Another argument by Appellant concerning the ineffective assistance of counsel claim is that trial counsel were ineffective for allowing evidence of Appellant's prior incarcerations to be heard by the jury. Appellant specifically complains of two instances. The first involved the cross-examination of Commonwealth witness Robert DeRose by Defense Attorney Rulis.
MR. RULIS: "How long have you known Larry? You stated for two years, I believe, is that correct?"
MR. DeROSE: "It's been a few years."
MR. RULIS: "Would you consider him a friend?"
MR. DeROSE: "An acquaintance."
MR. RULIS: "How were you an acquaintance of Larry Christy? How ...