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Commonwealth v. Tedford

November 19, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DONALD TEDFORD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Butler County, entered July 16, 2004 at CA241 of 1986, denying the petition for relief under the Post Conviction Relief Act.

The opinion of the court was delivered by: Mr. Chief Justice CASTILLE*fn1

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, GREENSPAN, JJ.

SUBMITTED: July 19, 2005

OPINION

Appellant Donald Tedford appeals from the order of the Court of Common Pleas of Butler County ("PCRA court") denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we hold that appellant is not entitled to relief and, accordingly, affirm the order of the PCRA court.

On February 6, 1987, a jury sitting before the Honorable Floyd A. Rauschenberger convicted appellant, who was represented by counsel, of first-degree murder*fn2 and rape.*fn3

The convictions arose from an incident occurring in Cranberry Township, Butler County, in which appellant, who was on work-release from the State Correctional Institution at Greensburg, lured the twenty-two-year-old victim, Jeanine Revak, to his place of employment, raped her, and then strangled her to death to prevent her from notifying the police of the rape. Following a penalty hearing at which appellant elected to present no mitigation evidence, the same jury found two aggravating circumstances and no mitigating circumstances, and accordingly returned a sentence of death. See 42 Pa.C.S. § 9711(c)(iv) (verdict must be sentence of death if jury unanimously finds at least one aggravating circumstance and no mitigating circumstance). The two aggravating circumstances found by the jury were: (1) appellant committed the killing while in the perpetration of a felony (rape), 42 Pa.C.S. § 9711(d)(6); and (2) appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). On March 20, 1987, the trial court formally imposed the death sentence for the first-degree murder conviction, and a consecutive term of imprisonment of 81/2 to 17 years for the rape conviction.

Subsequently, appellant was permitted to file post-verdict motions nunc pro tunc. The trial court then appointed new counsel to represent appellant, and amended post-verdict motions were filed. The motions raised multiple issues of trial court error and over 80 claims of trial counsel ineffectiveness, including trial counsel's alleged failure to investigate and call witnesses, recall certain prosecution witnesses, impeach prosecution witnesses, present scientific evidence, challenge the prosecution's forensic evidence, and present mitigating circumstances. On April 29, 1988, the trial court, after a hearing, denied appellant's post-trial motions.

On direct appeal, this Court unanimously affirmed appellant's convictions and sentences. Commonwealth v. Tedford, 567 A.2d 610 (Pa. 1989) ("Tedford I") (relating facts underlying appellant's convictions). In so holding, this Court considered various claims raised by appellant, including claims of trial counsel ineffectiveness.*fn4 Our disposition of the ineffectiveness claims was brief. After noting that appellant had presented both counseled and pro se claims of ineffectiveness below, the Court ruled as follows:

Essentially, the appellant, in his allegations of ineffective assistance of counsel, takes a "shotgun" approach and attempts to challenge every decision trial counsel made with respect to his failure to call or recall certain witnesses and the questioning of the witnesses who were called and did testify.

We have reviewed the entire record in this case, including the evidentiary hearing of February 1, 2 and 3, 1988 and appellant's pro se amended and corrected motions filed on February 19, 1988, and conclude that the claims of ineffectiveness of trial counsel raised by the appellant are meritless. We find no error in the lower court's order in dismissing all of appellant's ineffectiveness claims.

Id. at 626.*fn5 Appellant did not petition for a writ of certiorari in the U.S. Supreme Court.

On July 12, 1995, appellant filed a pro se PCRA petition and new counsel was appointed ("PCRA counsel"). On August 2, 1995, the PCRA court entered an order dismissing appellant's pro se PCRA petition without prejudice and directing appellant to file a new PCRA petition with counsel's assistance within 30 days. After being granted several time extensions, on January 15, 1997, appellant filed his new petition. On January 28, 2000, the PCRA court dismissed the PCRA petition, determining that it was untimely because it was appellant's second PCRA petition and had not been filed within one year of December 13, 1989, the date this Court issued Tedford I. On appeal, this Court reversed the PCRA court and remanded the case for consideration of the merits of the claims raised in appellant's January 15, 1997 PCRA petition. Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001) ("Tedford II"). This Court held that the 1997 PCRA petition merely amended appellant's pro se PCRA petition filed on July 12, 1995, and thus was not a second petition. Moreover, this Court held that the amended PCRA petition was timely under 42 Pa.C.S. § 9545(b)(1), having been filed within one year of the effective date of the 1995 amendments to the PCRA, i.e., by January 16, 1997. See Act of Nov. 17, 1995, P.L. 1118, No. 32.

Following this Court's remand, the PCRA court, per the Honorable Thomas J. Doerr, denied appellant's renewed request for discovery, but permitted the filing of another amended PCRA petition. Thereafter, on March 5, 2004, the PCRA court dismissed all but one of appellant's claims. The remaining claim alleged that appellant's appellate counsel, an attorney in the Butler County Public Defender's Office, possessed a conflict of interest at the time of his representation. On May 18, 2004, the PCRA court held an evidentiary hearing solely on the conflict of interest claim. Appellant requested that Judge Doerr recuse himself 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 to the conflict of interest claim. Judge Doerr denied appellant's request. On July 16, 2004, the PCRA court entered an order denying relief on the conflict of interest claim. This appeal followed.*fn6

At the outset, we note that because appellant filed his pro se petition prior to the PCRA's 1995 amendment and this Court has already held that PCRA counsel's 1997 PCRA petition merely amends appellant's pro se petition, this case is governed by the pre-amendment PCRA. See Commonwealth v. Boyd, 688 A.2d 1172, 1174 n.2 (Pa. 1997) ("Appellant filed his PCRA petition before the 1995 amendments to the Act became effective in January of 1996. Therefore, [the pre-amendment PCRA] applies to this case."). With the exception of Section 9453(a)(2)(v), which was deleted, the differences between the amended and pre-amendment PCRA do not affect the present appeal.*fn7 Under the pre-amendment PCRA, a petitioner may be eligible for relief if, by a preponderance of the evidence, he proves the following:

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.

42 Pa.C.S. § 9543(a)(2)-(4) (amended 1995).

Before turning to appellant's individual claims, some discussion of the framework for our review is helpful. Most of appellant's claims sound in ineffective assistance of counsel. To obtain relief on a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient and that such deficiencies prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Id. at 694; see also Commonwealth v. Mallory, 941 A.2d 686, 702-04 (Pa. 2007), petition for cert. filed, 77 U.S.L.W. 3058 (Jul. 18, 2008) (No. 08-94) ("result of the proceeding" is stage of proceeding at which error occurred). A properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell petitioner from counsel's act or omission. Commonwealth v. Carson, 913 A.2d 220, 233 (Pa. 2006), cert. denied, __ U.S. __, 128 S.Ct. 384 (2007) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (adopting U.S. Supreme Court's holding in Strickland)).

A claim that has been waived is not cognizable under the PCRA. The pre-amendment PCRA stated that "an issue is waived if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter." 42 Pa.C.S. § 9544(b) (amended 1995).*fn8

Because appellant was represented by new counsel on direct appeal at a time when counsel could (and did) raise claims of trial counsel ineffectiveness, any claim that appellant would now make sounding in trial court error or ineffective assistance of trial counsel is waived under the PCRA. See Pa.C.S. § 9543(a)(3) (amended 1995). Any such defaulted claim could be an aspect of a cognizable claim under the PCRA only to the extent it is posed and developed as a "layered" claim of ineffectiveness focusing on appellate counsel. In Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003), this Court set forth a framework for consideration of layered ineffectiveness claims, as follows:

[A] petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument . . . on the three prongs of the Pierce test as to each relevant layer of representation.

McGill, 832 A.2d at 1023. "[T]he inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel's purported ineffectiveness alone will be fatal to his layered ineffectiveness claim." Carson, 913 A.2d at 233. Conversely, with layered claims, establishing trial counsel's ineffective assistance will demonstrate that prior appellate counsel's failure to raise the former's ineffectiveness suggests a claim possessing arguable merit. Id. (citing Commonwealth v. Rush, 838 A.2d 651, 656 (Pa. 2003)). In such instances, the petitioner will be entitled to relief if he demonstrates that appellate counsel's actions lacked a reasonable basis and prejudiced the petitioner. Id.

In cases where layered claims are at issue, a PCRA petitioner who fails to properly layer his claims of ineffectiveness before the PCRA court should not have his petition dismissed on that ground without first being provided the opportunity to amend his pleading to address these substantive points. Id. (citing Commonwealth v. Washington, 880 A.2d 536, 540 (Pa. 2005); Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004); Rush, 838 A.2d at 651). When a petitioner has not been afforded the opportunity by the PCRA court to so amend his pleading, this Court may, but will not necessarily, remand the matter: "remand is not necessary where the petitioner 'has not carried his Pierce burden in relation to the underlying claim of trial counsel's ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim [with respect to appellate counsel], the petitioner's claim would not entitle him to relief.'" Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004) (quoting Rush, 838 A.2d at 657-58) (alteration in original). Because appellant in the present case had new counsel on direct appeal, all claims of counsel ineffectiveness relating to trial matters are layered claims, making it necessary for appellant to comply with McGill. To the extent this Opinion discusses underlying claims of alleged trial court error or trial counsel ineffectiveness, it does so purely for purposes of analyzing appellant's derivative and cognizable claims of layered ineffectiveness.

In addition to considerations of waiver and layering, the merits of a PCRA claim will not be reviewed if the claim was previously litigated. 42 Pa.C.S. § 9543(a)(3) (amended 1995). Under the pre-amendment version of the PCRA, an issue has been previously litigated if:

(1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal; (2) 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; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

42 Pa.C.S. § 9544(a)(1)-(3) (amended 1995); see also Carson, 913 A.2d at 234.*fn9 The word "issue" refers to the "discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief." Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005); see also Commonwealth v. Gwynn, 943 A.2d 940, 944 (Pa. 2008) (noting that, in Collins, we defined "issue" within meaning of Section 9543(a)(3)).

This Court had previously held that a PCRA petitioner cannot obtain post-conviction review of previously litigated claims by alleging ineffective assistance of prior counsel and presenting new theories of relief on the same facts. See Commonwealth v. Peterkin, 649 A.2d 121, 123 (Pa. 1994) (citing Commonwealth v. Wilson, 305 A.2d 9 (Pa. 1973)). Following this Court's decision in Collins, supra, however, a reviewing court must "consider and substantively analyze an ineffectiveness claim as a 'distinct legal ground' for PCRA review" because "while an ineffectiveness claim may fail for the same reasons that the underlying claim faltered on direct review, the Sixth Amendment basis for ineffectiveness claims technically creates a separate issue for review under the PCRA." Carson, 913 A.2d at 234 (discussing Collins, 888 A.2d at 573) (internal quotation marks omitted). When a PCRA court has disposed of a number of claims as previously litigated prior to our decision in Collins, and without touching on the separate Sixth Amendment merits of the claim, this Court may remand those claims for further analysis consistent with Collins. Carson, 913 A.2d at 234. Remand, however, is not required when the claims are obviously deficient for other reasons. See id.

Appellant raises multiple claims arising from the guilt and penalty phases of his trial, as well as one claim alleging conflict of interest maintained by appellate counsel, two alleging PCRA court error, and one summarily alleging that the cumulative effect of the previous claims warrants relief. In an effort to avoid waiver and the previous litigation bar, appellant makes a number of broad introductory declarations in his opening "umbrella claim." We will first dispose of these overarching procedural claims.

First, appellant asserts that this Court should grant relief on the merits because, under the pre-amendment PCRA, a petitioner is entitled to relief for any claim "which would require the granting of Federal habeas corpus relief to a State prisoner." See 42 Pa.C.S. § 9543(a)(2)(v) (repealed effective January 16, 1996). This provision was deleted when the PCRA was amended in 1995 for reasons which are not hard to imagine, as it is difficult, and oftentimes impossible, for this Court to predict which state-defaulted claims would later be deemed both reviewable and meritorious on federal habeas corpus review. Appellant's boilerplate umbrella argument identifies no controlling U.S. Supreme Court authority which would require federal habeas merits relief on any of his claims in particular. Under either the pre-amendment or the amended PCRA, appellant must still prove the cognizability and merit of his claims.

Second, appellant claims that none of his claims can be deemed waived because the pre-amendment PCRA had an exception to waiver that contained a similar ping-ponging reference to federal habeas review. Specifically, the pre-amendment PCRA provided an exception to waiver, as follows: "if the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief." See 42 Pa.C.S. § 9543(a)(3)(iii) (repealed effective January 16, 1996). Citing Jacobs v. Horn, 395 F.3d 92, 117-18 (3d Cir. 2005), appellant contends that federal habeas law in the Third Circuit does not recognize "procedural default" for Pennsylvania capital cases where any alleged waiver occurred prior to this Court's decision in Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), which abrogated relaxed waiver on PCRA review. The Commonwealth counters that Albrecht's abrogation of relaxed waiver applies to the present case because this Court has previously applied Albrecht to PCRA petitions pending when Albrecht was decided. Furthermore, according to the Commonwealth, the application of Albrecht's invalidation of relaxed waiver to pending PCRA appeal has survived constitutional challenge. The Commonwealth's point is well-taken. See Commonwealth v. Basemore, 744 A.2d 717, 726 (Pa. 2000); Commonwealth v. Pursell, 724 A.2d 293, 303 (Pa. 1999). We decline to ignore the PCRA and reinstate the discretionary relaxed waiver doctrine. The unpredictability inherent in Section 9543(a)(2)(v) is equally implicated with Section 9543(a)(3)(iii). The fact that a Third Circuit panel says that a salutary state procedural default, such as the PCRA's statutory waiver provision, will not be respected and the fact that the Circuit misconstrues the scope of the former relaxed waiver doctrine cannot control our interpretation and enforcement of the PCRA. Finally, this Court is bound by decisions of the U.S. Supreme Court, not the opinions of the inferior federal courts. The PCRA provision speaks in terms of absolutes ("does not constitute"); the holdings of inferior federal courts, in instances where the High Court has not spoken, are, by definition, tentative. Thus, we reject the notion that the PCRA waiver provision does not apply to appellant's claims because the Third Circuit allegedly believes that no capital claim is waivable.

Third, citing Commonwealth v. Miller, 746 A.2d 592, 602 n.9 (Pa. 2000) for the proposition that merits review is warranted when a claim does not rest solely on previously litigated evidence, appellant contends that, because he is presenting evidence that was not considered on direct appeal, none of his claims can be found to be "previously litigated" within the meaning of 42 Pa.C.S. § 9543(a)(3). Appellant also submits that this Court's doctrine precluding review of previously litigated claims conflicts with federal constitutional standards regarding effective assistance of counsel. Appellant, however, proffers little, if any, "new" evidence that would trigger Miller. Moreover, the intervening decision in Collins will guide our consideration of previous litigation issues.

Despite these broad introductory assertions, appellant consistently treats his averments of trial and appellate counsel ineffectiveness as reasons why the underlying claims should not be considered waived or previously litigated, rather than developing his ineffectiveness claims under Strickland. As stated above, under Collins we will distinguish a previously litigated underlying claim from a derivative ineffectiveness claim raised on collateral review. The manner of the dismissal of the previously litigated underlying claim, however, will often render the derivative ineffectiveness claim lacking in arguable merit. See, e.g., Commonwealth v. Dennis, 950 A.2d 945, 970-71 (Pa. 2008) (claim that trial counsel was ineffective for failing to object to prosecution testimony regarding clothing allegedly seized from home of defendant's father's had been previously litigated on direct appeal, and thus, defendant/PCRA petitioner could not satisfy arguable merit prong of Pierce with regard to appellate counsel's ineffectiveness).

In his over 20-claim brief, appellant reproves appellate counsel for his "shotgun approach" to his claims of trial counsel's ineffectiveness on direct appeal, and then ironically follows a similar approach to his layered claims here. Given the posture and disposition on direct appeal, the only substantive ineffectiveness claims we may reach are layered claims of ineffectiveness or stand-alone claims of appellate counsel ineffectiveness. But, despite submission of this matter post-McGill, appellant often argues his claims primarily as sounding in trial counsel ineffectiveness (claims which themselves have been either previously litigated or waived), with only a cursory sentence or two declaring that appellate counsel was ineffective as well.

Moreover, appellant has failed to show which of the trial counsel ineffectiveness claims "nested" within his present layered ineffectiveness claims were previously litigated on direct appeal and which were waived. Such a distinction is important because, if a trial counsel ineffectiveness claim was already litigated, appellant must show that appellate counsel was ineffective in the manner in which he litigated the claim; and if the claim was waived, on the other hand, appellant must demonstrate that appellate counsel was ineffective for failing to raise the claim on direct appeal. Throughout his Brief, however, appellant often only offers a boilerplate "appellate counsel failed to raise this issue" declaration.*fn10 Although appellant's failure to adequately present his claims could require remand, we ultimately determine that remand is unnecessary because appellant has not carried his Strickland/Pierce burden in relation to any of his claims. See Harris, supra. With the above overarching concerns in mind, we now turn to appellant's individual claims.

I. GUILT PHASE CLAIMS

A. Juror Knowledge of Prior Record

Appellant first claims that juror knowledge of his prior criminal record violated his due process rights and his right to an impartial jury. A brief discussion of the underlying facts and procedure is helpful. During voir dire, the court, trial counsel, and the prosecution learned of jury room discussions regarding the basic facts of the victim's murder and appellant's prior criminal record. First, many of the jurors stated that they had read newspaper accounts of the victim's murder shortly after it occurred. Second, a potential juror mentioned that, when he went out to lunch, he began to read a newsletter discussing the basic facts of the case and the trial schedule, but stopped upon recalling the court's instructions. See Tedford I, 567 A.2d at 620 n.3 (describing newsletter). Third, another juror informed the court that he saw the newsletter in or around the jury room, though he stated that no one who had been selected had read it. Fourth, another prospective juror mentioned that in the jury room prospective jurors were discussing the facts of the case which they learned from the trial court during individual voir dire. Fifth, other potential jurors informed the court that many of the prospective jurors had learned "that twelve years ago that [sic] he beat up a nurse." Notes of Testimony ("N.T."), 1/31/87, at 983 (voir dire of prospective juror Perko). Upon hearing this information, trial counsel immediately moved for a mistrial and to strike all the jurors who had been empaneled. Following a brief recess where trial counsel and the prosecutor questioned prospective juror Perko further and discussed the situation, both counsel reached an agreement, which the trial court accepted, whereby they would continue the voir dire process keeping these facts in mind and would allow trial counsel wide latitude in his examinations of potential juror taint. For its part, the trial court informed the parties that it was "not concerned with the impressions or the attitudes of the jurors unless they know something of his past record or they are not going to follow the court's instructions." Id. at 993-94. Trial counsel again moved for a mistrial, and also moved for a change of venue; both motions were denied.

Jury selection proceeded and all potential jurors were questioned extensively regarding their outside knowledge of the victim's murder, appellant's prior criminal record, and of any other jury room conversations. Toward the end of jury selection, trial counsel challenged the seating of a juror who had been present in the jury room on the day other potential jurors informed the court that discussions of appellant's prior assault had taken place. Trial counsel challenged the juror for cause and, acknowledging that the jury would then not be properly empaneled, renewed his motions for a mistrial and/or change of venue. Finding that the particular juror had been questioned and had not displayed any bias, the trial court denied trial counsel's motions and the jury was empaneled.

On direct appeal, appellate counsel claimed that the pre-trial publicity surrounding the case was so extensive and pervasive in the community that it was impossible to empanel a fair and impartial jury, and that the trial court erred in refusing to grant trial counsel's motions for a mistrial and/or change of venue for the above-described reasons. In Tedford I, this Court considered the above-recounted facts and determined that "[a]ll of the jurors selected and seated unequivocally stated that they were able to decide the case solely on the basis of the evidence presented[.]" 567 A.2d at 620. In dismissing the claim, the Court added that:

[o]ur review of the record indicates that the steps taken by Judge Rauschenberger in the instant case: (a) in summarily striking jurors who indicated they recently had read a prejudical account of the crime; (b) in granting appellant great leeway in questioning prospective jurors; and (c) in immediately sequestering the jurors who were selected, adequately served, under circumstances here, to insure the selection of a fair, impartial and untainted jury.

Id. at 621.

Now on PCRA review, appellant cites the above-described voir dire testimony, as well as what he calls "affidavits" of potential and seated jurors that were secured by new counsel for purposes of PCRA review, and claims that trial counsel was ineffective. Appellant argues that, although the parties agreed to excuse for cause any selected jurors who admitted to reading the newsletter or newspaper articles, trial counsel never requested that previously selected jurors be recalled and questioned regarding the articles that supposedly circulated in the jury room. Appellant contends that subsequent out-of-court questioning of potential jurors demonstrated that they had been exposed to prejudicial information about appellant's prior criminal record. Appellant acknowledges that trial counsel moved for a mistrial and that the trial court promised to remove any tainted juror, but he asserts that trial counsel was nevertheless ineffective for failing to ascertain and place on the record the full extent of the alleged jury taint by questioning every panel member about the distribution of newspapers and/or newsletters and about any speculation on appellant's prior criminal history. Appellant also claims that appellate counsel was ineffective for failing to investigate the full extent of the jury taint, call jurors to testify at post-verdict evidentiary hearings, and raise this issue, in this fashion, on direct appeal. Citing Miller, supra, which concluded that a claim was not previously litigated when it did not rest solely upon previously litigated evidence, appellant further alleges that this claim concerning trial counsel cannot be considered previously litigated because he proffers evidence -- the unsworn "affidavits" of actual jurors -- that was absent from the direct appeal claim.

The Commonwealth responds that this claim was previously litigated on direct appeal. The Commonwealth states that the evidence appellant currently proffers is not substantially different from the evidence submitted on direct appeal, where this Court concluded that the trial court had taken substantial and adequate steps to insure the selection of an impartial jury. The Commonwealth further states that, even if there were any error, given the overwhelming evidence of appellant's guilt, such error was harmless.

The PCRA court, which operated without the benefit of this Court's Collins decision, found that this claim had been previously litigated on direct appeal. The PCRA court noted that Miller did not involve evidence obtained following the conclusion of trial, such as the juror "affidavits" proffered here. Accordingly, the PCRA court dismissed this claim as previously litigated. The court also opined that, even if the claim were not previously litigated, appellant failed to a state a cognizable claim under the McGill and Pierce standards.

The PCRA court and the Commonwealth correctly note that the underlying tainted jury claim was previously litigated on direct appeal and is thus not cognizable as such under the PCRA. For the purpose of ineffectiveness review, we also agree with the Commonwealth that appellant's new "evidence" is not substantially different from the evidence cited on direct appeal.*fn11 More importantly, it appears that appellant mischaracterizes the declarations. In his Brief, appellant interweaves the declarant-jurors' knowledge of appellant's prior criminal record with references to the jury room discussions during voir dire. For example, appellant submits in his Brief:

Review of the voir dire reveals that, while the potential jurors were waiting to be questioned by the court and counsel, newspapers and newsletters were distributed in the jury room. The record also reveals that jurors discussed the case and the 1972 arrest and conviction more and more as jury selection began and progressed, and they speculated as to the nature of the prior offense, enhancing the prejudice to Mr. Tedford.

Three seated jurors -- Perry Ray, Shirley Pickerd and Ronald Stitt --have given affidavits [sic] stating that they were aware of information and misinformation about Mr. Tedford's previous arrest and conviction. The affidavits and the voir dire testimony make it clear that information about the 1972 offense circulated freely among the jury venire. The information contained in the affidavits was not disclosed at trial or sentencing and was prejudicial.

Appellant's Brief at 12 (citation and footnote omitted). Following this characterization, appellant concludes that "[a]s the affidavits clearly demonstrate, prohibited information reached the jurors who found [a]ppellant guilty and sentenced him to death." Id. at 17.

Review of the three declarations, however, demonstrates that the declarant-jurors appear to be referring to learning of appellant's prior record at the penalty phase when the Commonwealth presented evidence to prove the significant-history-of-felony-convictions aggravator, and not from any jury room discussions during voir dire. For example, declarant-juror Pickerd stated in her declaration: "I remember that second part of the trial when we were given information about Mr. Tedford's criminal history to take back to the jury room with us." Declaration of Shirley Pickerd, Amended PCRA Petition, Exhibit C, at 1 (unnumbered).*fn12 Thus, to the extent appellant claims that he has new facts regarding the previously litigated jury taint claim, facts which prove trial and appellate counsel to have been ineffective, the declarations he attached to his PCRA petition do not provide support. These subsequently-produced declarations do not prove counsel ineffective.

Properly framed, appellant's current claim is that appellate counsel was ineffective for failing to investigate and raise trial counsel's ineffective performance in the manner in which he preserved and developed the claim concerning alleged juror knowledge of appellant's prior convictions. Appellant fails to carry his Strickland/Pierce burden respecting the trial counsel ineffectiveness aspect of his claim. Appellant claims that trial counsel was ineffective for failing "to adequately place upon the record the full extent of this juror misconduct." Appellant's Brief at 18. As noted, appellant's declarations do not support his predicate accusation. More fundamentally, appellant's claim depends upon an assumption that appellate counsel had a constitutional duty to interview jurors to properly present the jury taint claim. Appellant cites no case to support this assumption and, contrary to appellant's assertion, there is no general recognized duty to interview jurors. In fact, the practice is condemned. See Commonwealth ex rel. Darcy v. Claudy, 79 A.2d 785, 786 (Pa. 1951) ("The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court[.]"). Moreover, review of the record and Tedford I readily demonstrates that previous counsel were diligent in addressing any potential juror impartiality. Therefore, appellant's layered claim of ineffective assistance of counsel lacks arguable merit. See Carson, 913 A.2d at 233.

Appellant has also failed to demonstrate that he suffered prejudice. "The purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions of the trial court." Commonwealth v. Chmiel, 889 A.2d 501, 519 (Pa. 2005) (internal quotation marks omitted); see also Commonwealth v. Smith, 540 A.2d 246, 256 (Pa. 1988) ("The purpose of the voir dire examination is not to provide a better basis upon which a defendant can exercise his peremptory challenges, but to determine whether any venireman has formed a fixed opinion as to the accused's guilt or innocence."). Even exposure to outside information does not ineluctably mean that a jury is unfair and partial. As this Court noted on direct appeal, in the present case, the trial court ensured the jury's impartiality and fairness by: (1) summarily striking jurors who indicated that they had recently read a prejudicial account of the crime or appellant's criminal history; (2) granting trial counsel a great degree of leeway in questioning prospective jurors; and (3) immediately sequestering the jurors who were selected to ensure that the selection was fair, impartial, and untainted. See Tedford I, 567 A.2d at 621. Appellant has failed to rebut the evidence that the jury was fair and impartial, and he has failed to demonstrate that he was prejudiced by alleged juror knowledge of his prior criminal record.

B. Transcript Alterations & Deletions

Appellant next claims that he was denied meaningful appellate review and effective assistance of appellate counsel because the trial transcript is inaccurate. In his Brief, appellant describes a number of transcript alterations and deletions which, he asserts, constituted a denial of meaningful appellate review. Appellant alleges that the audio recording of trial was edited and reveals substantial alterations to the testimony upon which this Court relied when finding the evidence sufficient to prove his guilt on direct review. Similarly, appellant asserts that he is entitled to an accurate and complete record as a fundamental prerequisite for the adjudication of his PCRA claims.

Appellant further contends that he was denied effective assistance of counsel on direct review because appellate counsel could not have provided effective assistance in the absence of a complete trial record. Appellant asserts that appellate counsel's failure to obtain the audiotapes of the trial proceedings demonstrates ineffectiveness because he failed to take basic investigatory steps to pursue an appeal. Appellant acknowledges that appellate counsel filed objections to the transcript, but he still argues that appellate counsel was nevertheless ineffective for failing to obtain the audiotapes and brief or argue the issue of alterations on direct appeal. Finally, appellant claims that the PCRA court erred in denying his request for expert funds for a thorough analysis of the audiotapes of the trial proceedings.

The Commonwealth responds that this claim is cognizable only as one sounding in the ineffective assistance of appellate counsel. The Commonwealth states that the first prong of Pierce could potentially be satisfied by appellate counsel's failure to address the alteration issue in his appeal brief. The Commonwealth notes, however, that the issue was addressed by appellate counsel in post-verdict motions and ruled upon by the trial court. The failure to renew the claim in the appellate brief, the Commonwealth submits, must have been because appellate counsel reasonably believed, following the trial court's ruling, that the claim lacked merit. The Commonwealth further asserts that, because the trial court reviewed the transcripts individually and denied most of appellant's proposed changes, no prejudice resulted from appellate counsel's decision not to pursue the issue on direct appeal.

The PCRA court concluded that the ineffectiveness claim lacked arguable merit because appellant's proposed alterations would not have affected the substance of the testimony presented. Additionally, the PCRA court found that appellant was not prejudiced by the alterations and that the judge, who heard the actual testimony, ordered appropriate changes to be made to the transcript.

A defendant has a right to a complete and accurate transcript of trial. See Griffin v. Illinois, 351 U.S. 12, 19 (1956) (due process and equal protection requires that indigent defendant be provided transcript); see also Mayer v. City of Chicago, 404 U.S. 189, 195 (1971) (state must provide full, verbatim record). Appellant's underlying claim that he was denied meaningful appellate review due to alleged alterations to the trial transcript is waived because it was not raised on direct review. Appellant's only cognizable claims based on the underlying transcript alteration claim are: (1) that appellate counsel was ineffective for failing to investigate the alleged transcript alterations and obtain audiotapes of the trial proceedings; and (2) that the PCRA court erred in denying appellant's request for expert funds.

First, we see no error in the PCRA court's rejection of appellant's claim sounding in the ineffective assistance of appellate counsel. Following trial, newly-appointed appellate counsel filed objections to the trial and evidentiary hearing transcripts. In March 1988, the trial court dismissed all but three of appellate counsel's objections. Thereafter, appellate counsel filed exceptions to the trial court's orders dismissing his objections to the transcripts. In its April 29, 1988 memorandum opinion and order responding to appellant's post-verdict motions, the trial court stated that it had gone through the record with each court reporter and made the necessary corrections. Thus, the court concluded, the record was now correct as to what had occurred at trial. In light of the extensive post-verdict consideration of this issue, appellant has not proven that appellate counsel's decision not to pursue this claim on direct appeal lacked a reasonable basis.*fn13

Additionally, the alterations appellant now alleges in his Brief -- assuming, for purposes of decision, that they exist -- are not of such moment as to prove appellate counsel ineffectiveness. Appellant's claim of alterations is premised upon comparing the written transcript with an audiotape. Most of the alleged alterations cited in appellant's brief constitute little more than the un-transcribable "ums" and "ers" and other linguistic stumblings of the witnesses at trial, while other allegations of transcript alterations are used by appellant to suggest deception and a scheme or design to the pattern of alterations. For instance, 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:*fn14

[McCormick]: The most, the way I remember it was I think Johnny Carson was on and there was a theme song, and that's eleven:thirty to twelve:thirty, and so I can't [can] tell you that when I hear [heard] the theme song that I would assume [it] eleven:thirty in my head, but I know [I] that I wa.(E) looked at a [the] watch or clock, you know probably many times throughout that time and was of cognizant at [of] the time. that's all.

[Commonwealth]: So you're saying eleven:thirty the theme song was on?

[McCormick]: That's the way I remember it. Okay?

[Commonwealth]: That's fine. That's what you said [say], eleven:thirty till [because] you heard the theme song of Johnny Carson --

[McCormick]: Right.

[Commonwealth]: -- when he [Donnie] came to the door --

[McCormick]: [Right.]

[Commonwealth]: -- he woke you up though, coming in?

[McCormick]: Well, he came [there], yeah.

[Commonwealth]: Was it his custom to, ah, Doctor, to make plans prior to the day [date] he would show up, and I realize you say he (E) you never knew when he was going to come over [coming in] or whatever . . . (fade) . . . (E) Had had you made plans with him at least by phone that week to get together [on] Friday?

[McCormick]: Yes, we had.

N.T., 2/5/87, 489-90; Appellant's Brief at 26.

Contrary to appellant's assertion, the difference between "hear" and "heard" or "said" and "say," or the deletion of an "ah" and the addition of an "of," does not support appellant's contention that the alleged alterations give a false impression that McCormick was unsure of the time when appellant arrived, and in such a way as to diminish his testimony. In fact, the alleged alteration from "can't" to "can" actually would make it seem as if McCormick were more certain of when appellant arrived at his home. Moreover, the jury's consideration of witness testimony was obviously unaffected by these alleged transcript alterations. Any instance of witness misspeaking or stumbling implicating witness credibility was weighed by the jury at trial. Even supposing that these transcription errors occurred, they are de minimis and would not have affected this Court's review of the sufficiency of the evidence to such an extent as to deny appellant meaningful appellate review, such that counsel could be deemed ineffective.

There are some other alleged alterations, however, which are more weighty. For example, appellant submits that Trooper Bernard Stanek's rebuttal testimony during the defense's case was altered as follows: "Well, the victim's car was I believe eight and about eight tenths of a mile from the scene of the Finishing Touch," appellant's place of employment and the scene of the rape and murder. See N.T., 2/4/87, at 437-38; Appellant's Brief at 29 (appellant's emphasis indicating text that was allegedly removed from the transcript). Appellant argues that such an alteration -- the difference between 0.8 miles and 8.8 miles -- could have affected this Court's sufficiency review because the alteration makes it appear that the prosecution's theory is consistent with the timeline and tends to rebut any claim that trial counsel was ineffective for failing to use the timeline to prove appellant's innocence. Such a claim, however, falters because prior to this alleged alteration, Trooper Edward Peters clearly stated that the victim's car was found "eight point eight tenths miles" and "twelve to seventeen minutes" from The Finishing Touch. N.T., 2/3/87, at 121. This testimony, presented during the Commonwealth's case-in-chief (as opposed to Trooper Stanek's rebuttal testimony), would have remained available to this Court on direct review. Therefore, appellant's 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 expert funds to examine audiotapes of trial proceedings to determine the accuracy of the transcript. Appellant essentially argues that the denial of expert funds violates Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (due process requires state to provide psychiatric assistance when defendant makes preliminary showing that sanity at time of offense is likely to be at issue), and that the trial court could not have properly found that his claim lacks arguable merit without knowing whether the claim was supported by expert findings. Ake is inapposite: Ake's requirement to provide state-paid expert assistance applies to psychiatric assistance at trial, not audiotape forensic experts on PCRA review to try to prove appellate counsel ineffectiveness. Moreover, no matter what appellant amasses now on collateral attack, he still falters in the face of the presumption that appellate counsel was effective. Appellate counsel had to proceed in the face of a finding by the trial judge that the transcript was accurate and complete, and appellant has cited no authority for the proposition that newly appointed appellate counsel are obliged to order audiotapes and compare them to the transcript in search of deviations.

For the foregoing reasons, appellant's ineffectiveness claims based on the alleged "alterations" to the transcript are without merit.

C. Trial Counsel Ineffectiveness

Appellant raises two claims deriving from alleged trial counsel ineffectiveness at the guilt phase, arguing that trial counsel was ineffective for failing to: (1) adequately investigate and develop certain issues; and (2) challenge the evidence supporting the rape convictions. Appellant presents these claims primarily as claims of trial counsel ineffectiveness, with only a cursory attempt to layer them. Having reviewed the record, we conclude that the trial counsel ineffectiveness claims have been waived or ...


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