Direct appeal from the Order of the Court of Common Pleas of Philadelphia County, dated December 8, 1994, denying appellant's second petition for post-conviction relief from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County at Nos. 1292-1295, October Term 1982.
JUDGES BELOW: Hon. Albert F. Sabo (C.P.).
Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Chief Justice Flaherty. *fn1 Mr. Justice Castille files a Concurring and Dissenting opinion in which Madame Justice Newman joins.
The opinion of the court was delivered by: Flaherty
MR. CHIEF JUSTICE FLAHERTY *fn1
DECIDED: September 17, 1997
This is a direct appeal from the order of the Court of Common Pleas of Philadelphia County denying appellant's second petition for post-conviction relief in appellant's homicide case where he received the death penalty. *fn2 For the reasons expressed herein, we remand for a new sentencing hearing.
In May, 1983, appellant, Salvador Morales, and his co-defendant, Heriberto Pirela, a/k/a Carlos Tirado, *fn3 were jointly tried before a jury for the death of Jorge Figueroa. On May 18, 1983, the jury convicted both men of first degree murder, criminal conspiracy and possession of an instrument of crime. *fn4 Following a separate penalty proceeding, the jury sentenced appellant to death. *fn5 On direct appeal, this Court affirmed the convictions and judgment of sentence. Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985).
In 1987, appellant filed a petition under the Post-Conviction Hearing Act ("PCHA") alleging that his trial counsel was ineffective for failing to present mitigating evidence at his penalty hearing and for failing to raise that issue on direct appeal. The PCHA court denied this petition. The Superior Court affirmed the denial in a memorandum opinion *fn6 and this Court denied allocatur. *fn7
On August 3, 1990, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Because state claims were raised therein, the federal district court placed this petition, along with another habeas corpus petition filed by appellant, in civil suspense pending appellant's return to the state courts so that he could exhaust all of his claims in state court.
On November 15, 1994, petitioner filed his second petition for post-conviction relief, this time under the Post Conviction Relief Act ("PCRA"). *fn8 On December 8, 1994, the PCRA court denied this second petition for collateral relief without conducting an evidentiary hearing because it believed that a decision could be rendered based on the existing record. *fn9 This appeal followed. *fn10
This Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Travaglia, 541 Pa. 108, 117 n.4, 661 A.2d 352, 356 n.4 (1995). In order to be eligible for relief under the PCRA, an appellant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa. C.S. § 9543(a)(2) *fn11 and that the issues he raises have not been previously litigated. Id. 661 A.2d at 356. An issue will be deemed previously litigated when "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa. C.S. § 9544(a)(2). At the outset, we note that the first two claims raised by appellant which are discussed (infra) have been previously litigated. Thus, appellant will not be entitled to post-conviction relief on those two claims.
With respect to all of appellant's claims which have not been previously litigated, appellant also must normally demonstrate that the claims have not been waived. 42 Pa. C.S. § 9543(a)(3). *fn12 However, waiver will be excused under the PCRA if appellant can meet the conditions of 42 Pa. C.S. § 9543(a)(3)(ii) or (iii) or by making a showing of ineffective assistance of counsel. Commonwealth v. Christy, 540 Pa. 192, 201-202, 656 A.2d 877, 881, cert. denied, 133 L. Ed. 2d 130, 116 S. Ct. 194 (U.S. 1995). Here, appellant could have raised all of his non-previously litigated claims on either direct appeal or in his first PCHA petition. Appellant, however, avoided waiving these claims in this PCRA petition by asserting that all of his prior counsel were ineffective for failing to previously raise them. *fn13
In reviewing appellant's claims which have not been previously litigated, we must be mindful that this is his second collateral attack on his convictions and judgment of sentence. Thus, appellant's request for relief "will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of Justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988). An appellant makes such a prima facie showing only if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of Justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged. Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993). It is with the above standards in mind that we will examine appellant's claims.
PREVIOUSLY LITIGATED CLAIMS
1. FAILURE OF TRIAL COURT TO GRANT CONTINUANCE
Appellant contends that he is entitled to a new sentencing hearing because the trial court erred in denying his motion to continue his penalty hearing so that he could obtain the assistance of the court appointed psychiatrist, Dr. Grosso, in preparing, evaluating and presenting his case. In appellant's direct appeal from his judgment of the sentence of death, this Court held that appellant's request for a continuance was properly denied since appellant failed to present on appeal reasons why Dr. Grosso's testimony would have been beneficial. Morales, 508 Pa. at 72, 494 A.2d at 378. Thus, this claim warrants no further review since it has been previously litigated. See Christy, (supra) , 540 Pa. at 202, 656 A.2d at 881 (post-conviction relief of claims previously litigated on appeal not available by alleging new theories of relief). Moreover, even if this claim was not previously litigated, it would still fail since appellant merely speculates that Dr. Grosso would have testified favorably on his behalf. Appellant offers no evidence or affidavit detailing the basis for such speculation. Absent such proof, appellant has failed to show that he suffered a miscarriage of Justice. See Commonwealth v. Birdsong, 538 Pa. 587, 602-03, 650 A.2d 26, 34 (1994) (no error in denying continuance at penalty hearing since appellant failed to present any evidence as to nature of psychiatrist's testimony). Accordingly, no post-conviction relief is warranted.
Appellant also asserts that a continuance should have been granted since he was not competent to waive his right to present mitigating evidence, and that in any event, his waiver was not knowing, intelligent and voluntary. This Court has already reviewed the substance of this claim and held that the denial of appellant's continuance request was proper since appellant made a "knowing, intelligent and voluntary waiver, on the record, of his right to present any evidence at the sentencing hearing, generally, and of the psychiatrist's testimony/evidence, specifically." Morales, 508 Pa. at 72, 494 A.2d at 378. *fn14 Thus, this claim was previously litigated. Accordingly, no post-conviction relief is warranted.
2. FAILURE TO OBJECT TO JURY INSTRUCTIONS
Appellant also claims that trial counsel was ineffective for failing to object to jury instructions given by the trial court during the penalty phase of the trial. Appellant concedes, as he must, that the issues surrounding the propriety of the trial court's jury instructions were previously litigated when this Court held, on appellant's direct appeal from his judgment of sentence of death, that the jury instructions given at the penalty phase of trial were proper. See Morales, 508 Pa. at 70-71, 494 A.2d at 377-378. Accordingly, no relief is warranted. See Commonwealth v. Christy, 540 Pa. at 202, 656 A.2d at 881 (1995) (post-conviction relief of claims previously litigated on appeal not available by alleging ineffective assistance of counsel).
INEFFECTIVE ASSISTANCE OF COUNSEL
As previously discussed herein, appellant avoided having all of his other claims from being deemed as waived by asserting that all of his prior counsel provided ineffective assistance in failing to raise those claims. We will examine each of appellant's non-previously litigated claims ad seriatim.
(a) Brady Violation - Psychiatric Report
Appellant contends that he is entitled to a new sentencing hearing because all of his previous counsel provided ineffective assistance by failing to raise a Brady *fn15 claim concerning the Commonwealth's failure to turn over to appellant a copy of a psychiatric report regarding him prepared by another psychiatrist in an unrelated criminal matter even though the Commonwealth had the report approximately one month before the trial in the instant matter. Appellant argues that this report would have entitled him to the continuance he sought of his sentencing hearing since it would have enabled him to demonstrate to the trial court the type of evidence he believes that Dr. Grosso would have offered. *fn16
Under Brady, the prosecution must turn over evidence within its possession that is exculpatory to either the guilt or the punishment of the defendant. Brady, 373 U.S. at 87; Christy, 540 Pa. at 213, n.17, 656 A.2d at 887, n.17. Only evidence which shows that appellant: was under extreme mental or emotional disturbance at the time of the offense, 42 Pa. C.S. § 9711(e)(2); or was substantially impaired from appreciating the criminality of his conduct, 42 Pa. C. S. § 9711(e)(3); or, which reflected on his character and record, 42 Pa. C.S. § 9711(e)(8), would qualify as evidence under Brady which could mitigate appellant's sentence of death. Here, the evidence allegedly not disclosed by the Commonwealth would have only served to prejudice appellant rather than aid him in mitigating his sentence. *fn17 Under these circumstances, we find that no Brady violation occurred that would require a new sentencing hearing. See Christy, (supra) . (No Brady violation for failing to disclose psychiatric testimony that did not demonstrate exculpatory evidence with respect to defendant's guilt and sentencing). Accordingly, appellant's previous counsel cannot be ineffective for raising a meritless claim. See Travaglia, (supra) , 541 Pa. at 140, 661 A.2d at 368 (counsel cannot be deemed ineffective if underlying claim devoid of merit). *fn18
(b) Brady Violation - Colon Plea Agreement
Appellant next claims he is entitled to a new trial because all of his prior counsel provided ineffective assistance by failing to raise a Brady claim concerning the Commonwealth's alleged failure to fully disclose the nature of the agreement it reached with Eddie Colon, one of the witnesses at the guilt phase of appellant's trial. Appellant argues that he believes that the agreement also included a provision by which the Commonwealth agreed not to prosecute Colon in connection with this murder. Thus, appellant contends that the failure to fully disclose the Colon agreement violated Brady since it deprived him of crucial impeachment evidence.
In order to be entitled to a new trial for failure to disclose evidence affecting a witness' credibility, appellant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence. Commonwealth v. Moose, 529 Pa. 218, 232, 602 A.2d 1265, 1272 (1992). Moreover, since this is appellant's second collateral petition, he must also demonstrate that this nondisclosure resulted in a miscarriage of Justice. See Lawson, (supra) . Here, the evidence shows that Colon denied on direct examination that his agreement with the Commonwealth included this alleged provision and that the Commonwealth has consistently represented that, besides not entering into such an agreement, it also has no material in its files pertaining to such an agreement. See Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 822 (1985), cert. denied 476 U.S. 1140, 90 L. Ed. 2d 692, 106 S. Ct. 2245 (1986) (Commonwealth does not violate disclosure requirements of Brady by failing to disclose evidence that it does not have and of which it is not aware). Under these circumstances, we decline to find that a Brady violation occurred since appellant offers nothing besides his mere conjecture that such an arrangement existed. *fn19 Such speculation does not support a claim of ineffective assistance that resulted in appellant suffering a miscarriage of Justice.
2. SENTENCING ERROR - AGGRAVATING CIRCUMSTANCES
Appellant next claims that his sentence of death should be vacated and a life sentence should be imposed because all of his prior counsel provided ineffective assistance by failing to raise claims that there was insufficient evidence to support the aggravating circumstance that he had a significant history of felony convictions involving the use or threat of violence. 42 Pa. C.S. § 9711(d)(9). The Commonwealth does not dispute that insufficient evidence existed to support this aggravating circumstance since appellant only had one conviction involving the use or threat of violence at the time of his sentencing hearing. Nevertheless, appellant's claim is devoid of merit because as long as there exists one aggravating circumstance and no ...