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Commonwealth v. Clark

December 17, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RONALD CLARK, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 4115-19, dated March 17, 2003.

The opinion of the court was delivered by: Madame Justice Greenspan

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

SUBMITTED: July 11, 2008

OPINION

This is a collateral capital appeal from an order dismissing in part Appellant Ronald Clark's petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. The PCRA court found Appellant's guilt phase claims without merit.*fn1 For the reasons that follow, we affirm.

On October 7, 1993, Appellant shot and killed Aineis Sunn Life ("the victim") following an argument in a Philadelphia delicatessen. Eyewitnesses to the shooting testified that Appellant and the victim exchanged angry words while in line at the deli. Appellant left the deli, walked to a nearby playground, and retrieved from co-defendant Kevin Dwight a shotgun that was concealed inside an umbrella. Appellant immediately returned to the deli, walked directly to the victim, and shot him in the head, stating, "What you got to say now, m___________?"

Appellant was charged with murder, possession of an instrument of crime, and conspiracy. His first trial in July 1994 ended in a mistrial when the jury failed to return a verdict. A second jury trial took place in December 1994 before the Honorable Paul Ribner. Among the Commonwealth's key witnesses were three people who were at the scene of the shooting that night. Kevin Pettiway, a friend of the victim who accompanied him to the deli, observed the exchange between Appellant and the victim and identified Appellant as the shooter. Sherry Taggart, who was sweeping the deli parking lot, also identified Appellant as the shooter. Taggart observed Appellant enter the deli with an umbrella and watched through the glass door as Appellant shot the victim in the head. Nigel Bell, a friend of the victim, witnessed the exchange of the concealed shotgun from Dwight to Appellant at the playground. Bell then heard the shotgun blast and saw Appellant run out of the deli and down the street.

Appellant presented his two roommates as alibi witnesses, both of whom testified that Appellant was at home celebrating a job offer on the night of the murder. The jury found Appellant guilty of all charges and on December 6, 1994, returned a sentence of death.*fn2

Following the appointment of new counsel, this Court affirmed Appellant's judgment of sentence on April 2, 1998. Commonwealth v. Clark, 710 A.2d 31 (Pa. 1998). The United States Supreme Court denied Appellant's petition for certiorari. Clark v. Pennsylvania, 526 U.S. 1070 (1999).

On May 17, 1999, Appellant filed a pro se PCRA petition. On November 24, 1999, newly appointed counsel (Appellant's third attorney in this case) filed an amended petition on Appellant's behalf, seeking reversal of his death sentence and his conviction. The petition set forth a number of claims of ineffective assistance of trial counsel, but did not assert ineffectiveness on the part of appellate counsel. On October 25, 2000, the PCRA court, the Honorable Carolyn Engel Temin, dismissed some of Appellant's claims without a hearing, but granted an evidentiary hearing on others. The evidentiary hearing took place over a period of seven days in June and July 2002, during which time Appellant presented a number of witnesses, including trial counsel.

At the conclusion of the hearing, and after the submission of post-hearing briefs, the PCRA court granted Appellant a new penalty hearing, but denied his request for a new trial. The order was briefly vacated pending negotiations, but was reinstated on September 5, 2003, after the negotiations failed. Judge Temin issued an opinion in support of the order on August 25, 2006.

Represented by new counsel, Appellant filed the instant appeal, challenging the denial of relief on his guilt-phase claims. He raises the following eight issues on appeal:

1. Was trial counsel ineffective for failing to investigate and present evidence to impeach the credibility of the three Commonwealth witnesses who purported to identify Mr. Clark; and was appellate counsel ineffective for failing to raise these meritorious issues on direct appeal?

2. Did the Commonwealth violate its obligations under Brady v. Maryland by failing to disclose evidence that could have been used to impeach the Commonwealth's key witness?

3. Did the trial court err in giving a flight instruction as to Mr. Clark; was trial counsel ineffective in failing to pursue a curative instruction; and was appellate counsel ineffective for failing to raise this meritorious issue on appeal?

4. Was trial counsel ineffective for failing to present adequate evidence to support Mr. Clark's alibi defense; and was appellate counsel ineffective for failing to raise this meritorious issue on direct appeal?

5. Was trial counsel ineffective for failing to present the "Stop 'n Go" videotapes from the night of the shooting; and was appellate counsel ineffective for failing to raise this meritorious issue on direct appeal?

6. Did the trial court improperly instructed [sic] the jury on the meaning of reasonable doubt, and were trial and appellate counsel ineffective for failing to raise this issue?

7. Was trial counsel ineffective for failing to renew his motion to suppress upon learning of the police misconduct during the photo arrays; and was appellate counsel ineffective for failing to raise this meritorious issue on direct appeal?

8. Did the prosecutor exercise peremptory challenges in a racially discriminatory manner, and were trial and appellate counsel ineffective for failing to raise this issue?

Appellant's Brief at 2.*fn3

Our standard of review in an appeal from the denial of PCRA relief is "whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Gwynn, 943 A.2d 940, 944 (Pa. 2008) (citing Commonwealth v. Abu- Jamal, 833 A.2d 719, 723 (Pa. 2003)). The PCRA petitioner bears the burden of demonstrating that the issues he is pursuing have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). There is no requirement that the PCRA court hold a hearing on every issue a petitioner raises. Commonwealth v. Collins, 888 A.2d 564, 579 (Pa. 2005). The rules mandate a hearing only on "genuine issues of material fact." Pa.R.Crim.P. 909(B).

I. Preservation and Presentation of Claims on Appeal

In his recitation of issues, Appellant casts all but one of his claims in terms of ineffective assistance of counsel.*fn4 However, in the body of his brief, he makes an ineffectiveness argument for all eight claims. Our longstanding test for ineffective assistance of counsel derives from the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (adopting the federal standard in Pennsylvania). Under Pierce, a petitioner must prove that: (1) the underlying legal claim is of arguable merit; (2) counsel had no reasonable strategic basis for proceeding as he did; and (3) there is a reasonable likelihood that, but for the challenged act of counsel, the outcome of the proceedings would have been different. Id. at 975. See also Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). The failure to satisfy any one of the three prongs is fatal to a petitioner's claim. Commonwealth v. Williams, 936 A.2d 12, 19-20 (Pa. 2007).

In Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), this Court held that challenges to counsel's effectiveness should be deferred until collateral review. However, Grant was filed after Appellant's direct appeal, making the pre-Grant rule of Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), applicable here. Hubbard requires a petitioner to raise challenges to the effectiveness of counsel at the first stage of litigation in which the petitioner was represented by counsel other than the one whose effectiveness was to be challenged. Id. at 695 n. 6. Thus, in cases like this one, in which ineffectiveness claims should have been, but were not, raised at the first possible opportunity, a petitioner is required to "layer" his claims. Commonwealth v. McGill, 832 A.2d 1014, 1021-22 (Pa. 2003). To layer a claim properly, a petitioner must plead and prove each element of the ineffectiveness test with respect to every counsel whose representation he challenges. Id. The method of compliance with the layering rule is clear:

[In] order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove the ineffectiveness of [appellate counsel], which as we have seen, necessarily reaches back to the actions of [trial counsel]. To preserve (plead and present) a claim that [appellate counsel] was ineffective . the petitioner must: (1) plead, in his PCRA petition, that [appellate counsel] was ineffective for failing to allege that [trial counsel] was ineffective . and (2) present argument on, i.e., develop, each prong of the Pierce test as to [appellate counsel's] representation, in his briefs or other court memoranda. Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review; then, and only then, can the court proceed to determine whether the petitioner has proved his layered claim.

Id. at 1022 (emphasis in original) (citations omitted).

Recognizing that this Court's prior decisions failed to achieve consensus on the proper procedure for layering ineffectiveness claims, we concluded in McGill that it would be unduly harsh to enforce the layering rule strictly in cases where PCRA disposition or appeal therefrom was pending. Thus, we held that a remand to the PCRA court may be appropriate in order to allow an amendment in cases "pending in the appellate courts where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review." Id. at 1024. We have been clear, however, that a remand is not warranted in all cases in which the McGill presentation requirements are lacking. Where a PCRA appellant has failed to satisfy the Pierce test with respect to trial counsel's stewardship, there is no basis for remanding the matter to afford the appellant the opportunity to correct his pleadings in connection with appellate counsel's representation. See Dennis, supra at 956 (McGill "does not save [an a]ppellant from the obligation properly to layer his claims before this Court, or from a failure to plead ...


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