Appeal from the Judgment of Sentence February 7, 2007 In the Court of Common Pleas of Philadelphia County Criminal No. February Term, 1984; os. 2893, 2894,2895 & 2896.
The opinion of the court was delivered by: Kelly, J.
BEFORE: FORD ELLIOTT, PJ, PANELLA and KELLY, JJ.
¶ 1 Appellant, Florencio Rolan, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas after a jury convicted him, for the second time, of first-degree murder and possession of an instrument of crime (PIC). We affirm.
¶ 2 On the evening of Friday, May 13, 1983, the victim, Paulino Santiago, and Robert*fn1 Aponte were selling marijuana near 17th and Wallace Streets in Philadelphia. Paulino's brother, Francisco, and Appellant were nearby, among a crowd estimated at thirty to fifty people. Around 8:30 P.M. a driver pulled up to buy a "nickel bag," five dollars worth of marijuana. Aponte and Paulino Santiago argued over who should get the money for the sale. Appellant sided with Aponte, his cousin. The argument continued for about fifteen minutes until Appellant departed for the house of a friend across the street. Francisco Santiago went to an abandoned house, at 1629 Wallace Street, a few doors from the corner, to relieve himself. His brother followed.
¶ 3 It is undisputed that a few minutes later, inside the abandoned house, Appellant killed Paulino Santiago with a single shot to the chest from a .22 caliber rifle, then fled out a back alley and left the neighborhood. Police found the rifle in the alley about a block away from the abandoned house. The next day Appellant fled to New York City, and was not apprehended until the following November, when he returned to Pennsylvania after waiving extradition.
¶ 4 Francisco Santiago, initially uncooperative with the police, testified at the preliminary hearing and at trial that Appellant had killed his brother after entering the abandoned building and demanding money. He further testified that he tried to grab the rifle away from Appellant, who "clicked" it at him before fleeing. At trial, after an on-the-record colloquy, in which his request to address the jury directly was repeatedly refused by the trial court, Appellant stated that he did not wish to testify. In May of 1984, a jury acquitted Appellant of robbery, but convicted him of first degree murder and PIC. The jury fixed his penalty at death,*fn2 and our Supreme Court affirmed the conviction. Commonwealth v. Rolan, 549 A.2d 553 (Pa. 1988).
¶ 5 Appellant's appointed counsel, Melvin B. Goldstein, Esq., died on counsel filed a petition under the Post Conviction Relief Act.*fn3 Testifying at the PCRA hearing in 1996, Appellant raised a claim of self-defense. He alleged that he followed Francisco Santiago into the abandoned house, and Paulino Santiago entered after he was already inside, charging at him with a kitchen knife.*fn4 He asserted that he came in unarmed, but fired in self-defense after he noticed a loaded rifle lying on the floor.
¶ 6 He further alleged that prior counsel had failed to investigate two witnesses for the trial who would have supported his self-defense claim, and merely forwarded the names Appellant gave him, Aponte and Daniel Vargas,*fn5 to the Commonwealth for investigation to determine if they were available to testify as alibi witnesses. He also claimed he had wanted to testify at trial, but prior counsel had prevented him from doing so.
¶ 7 Daniel Vargas also testified at the PCRA hearing. In 1984, contacted by a Commonwealth homicide investigator, Vargas had refused to cooperate. His signature appears on an interview document asking if he would be an "alibi" witness, indicating that he was not willing to give a statement. In 1996 Vargas, while serving a term in Graterford prison, signed a notarized affidavit prepared by Appellant's current counsel. (See Affidavit of Daniel Vargas, 2/16/96, Commonwealth's Exhibit C-30). In the affidavit he stated that he saw the three men enter the building together, (id. at ¶ 5), Appellant first, followed by Paulino Santiago, who "was chasing" Appellant into the house with a kitchen knife, shouting, "I'm going to kill you, Motherfucker." Vargas averred that "some time after" he heard a shot.
¶ 8 On direct examination at the PCRA hearing Vargas placed himself at the steps of the abandoned house, trying to prevent Paulino Santiago from entering. (N.T. Trial, 1/22/07, at 41). He also claimed he had helped Francisco Santiago carry Paulino's body out of the abandoned house to the street. On cross-examination, he first testified he was about a half a block away from the abandoned house, then a car length away, then claimed he was running towards the house when he heard the shot. (Id. at 100).
¶ 9 Challenged on cross-examination, Vargas repeatedly tried to explain away omissions and discrepancies between his testimony and his affidavit by claiming that while he was in Graterford prison he only had five minutes to talk on the telephone with counsel. Pressed further, he accused the Commonwealth's attorney of trying to confuse him. He claimed that he signed the investigator's statement because he thought the request was to testify against Appellant, despite the plain language of the request on the form. He later denied signing the statement. He conceded on re-direct examination that apart from the encounter with the homicide investigator, he had not come forward earlier because he knew both families and "did not want to get involved." (Id. at 108). He did not explain his change of heart.
¶ 10 The PCRA court rejected Appellant's claim of ineffective assistance of counsel during the guilt phase of his trial as waived, summarily discussing the claims on the merits, but granted him a new sentencing hearing, concluding he received ineffective assistance of counsel during the penalty phase. A panel of this Court affirmed the grant of a new hearing on sentencing. Commonwealth v. Rolan, (No. 4581 Philadelphia 1997, Pa. Super. filed June 9, 1999). However, it disagreed that the claims of ineffective assistance at the guilt phase had been waived. Rather, the panel concluded on review that Appellant's claims of ineffective assistance at the guilt phase of the trial were without merit. Id. at 5-10. Specifically, it concluded that in view of Vargas' admitted motive for refusing to become involved, the assertion that trial counsel was ineffective for failing to call him as a witness was without arguable merit. Id. at 7.
¶ 11 Similarly, as to Robert Aponte, by then also deceased, the Rolan Court concluded that an unsworn statement Aponte signed and gave to a Commonwealth homicide investigator in which he claimed that he met Appellant on the street, and asked him "[W]as [he] alright, he didn't stab you or anything?" was not relevant to Appellant's ineffectiveness claim. Because Aponte did not claim to have witnessed the crime, or to have seen the victim with any sort of weapon, the Court opined that "the excerpt merely establishes that Aponte was aware that [Appellant] had engaged in an altercation and was not immune to the potential danger posed by life on the street." Id. at 8. Therefore, the Court concluded, the assertion of ineffectiveness for failing to call Aponte as a trial witness "must fail." Id.
¶ 12 The Court also decided that despite Santiago's incomplete recitation of his agreement with the Commonwealth, "in view of other evidence highly probative of [Appellant's] guilt, we cannot conclude that the Commonwealth's failure to expose the full extent of Santiago's 'deal' as a source of potential bias 'so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.' " Id. at 13 (citation omitted).
¶ 13 Finally, the Court also concluded that counsel was not ineffective for preventing Appellant from testifying. It found that despite Appellant's claim that he "consistently sought to testify at trial," the PCRA court properly decided that Appellant knowingly and voluntarily declined to testify at the trial in 1984 after consultation with counsel and a colloquy with the trial court. As previously noted, an on the record colloquy confirmed that Appellant insisted he be allowed to address the jury directly, and declined to testify after it became clear the trial court would not permit him to do so. Id. at 10.
¶ 14 After a new penalty hearing on April 25, 2003, the jury deadlocked and Appellant was sentenced to life imprisonment. Appellant had also petitioned for a writ of habeas corpus in federal court. In 2004, after a hearing, the United States District Court for the Eastern District of Pennsylvania granted the writ with a stay to permit retrial,*fn6 based on Appellant's claim that he was denied effective assistance of counsel during the guilt phase. Rolan v. Vaughn, 2004 WL 2297407 (E.D. Pa. 2004) (unpublished decision). It concluded that Appellant's trial counsel was ineffective for failing to investigate the two witnesses, Aponte and Vargas, to support a claim of self-defense, disregarding the analysis and findings of the Superior Court. The Third Circuit affirmed, albeit "[w]hile [ ] marvel[ing] at [Appellant's] serendipitous rifle[ ]." Rolan v. Vaughn, 445 F.3d 671, 683 (C.A.3 2006):
"We believe that Rolan's conviction was only 'weakly supported by the record' and that the testimony of Vargas (and Aponte) is 'sufficient to undermine confidence in the outcome.' Therefore, it is manifest that the Superior Court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the PCRA trial court proceeding."
¶ 15 Appellant was re-tried before a jury and on January 24, 2007 again convicted of murder of the first degree and PIC. At re-trial, the 1984 preliminary hearing and trial testimony of the victim's brother, Francisco, who had died in 1998, was read into the record. Also at the second trial, the 1996 PCRA hearing testimony of Vargas, who had died in April of 2006, was read into the record as part of the defense case. Further, despite his PCRA hearing claim of having been prevented from testifying in 1984, Appellant chose again to exercise his constitutional right against self-incrimination. (See N.T. Trial, 1/22/07 at 112).
¶ 16 On February 7, 2007, the court sentenced Appellant to life imprisonment on the count of first degree murder, and a concurrent one to two years on the PIC count, with credit for time served. This timely appeal followed. Appellant filed a timely Rule 1925(b) statement of matters complained of on appeal.
¶ 17 Appellant raises six questions, which we summarize here.*fn7 First, he challenges the admission into evidence of the prior testimony of the victim's deceased brother, Francisco Santiago, claiming he was deprived of his constitutional rights to confront the witness and due process by defense counsel's "constitutionally ineffective" cross-examination. His second, third and fourth claims allege prosecutorial misconduct during closing argument for commenting on the absence of a defense witness, Vargas, from the prior trial, commenting on his failure to assert a claim of self-defense at the first trial, and for comments about the evidence. Fifth, he asserts the admission of a 911 tape from an unidentified caller again deprived him of the right of confrontation. Finally, he claims the admission of evidence that he attempted to take money from the victim violated his constitutional right to protection against double jeopardy, because he had been acquitted of robbery at the first trial.
¶ 18 Appellant's first claim, and the over-arching theme of his appeal, is that he has yet to receive a "fair trial" (Appellant's Reply Brief at 1), because he was "shackled" by the testimony of the deceased witness, Francisco Santiago, read into the record from the first trial. Specifically, he alleges that ineffective cross-examination by his late trial counsel failed to undermine Francisco's testimony, particularly by not challenging him with a competing theory of self-defense. The error of the trial court in admitting this evidence, he argues, "carried over" the defects of the first trial into the re-trial, depriving him of his constitutional rights to due process and to confront the witnesses against him by "tainted testimony." (Id. at 11). We disagree.
¶ 19 Initially, we note that in permitting the testimony of Francisco Santiago, the trial court was following the pre-trial ruling of the Honorable Carolyn Engel Temin, thus observing the coordinate jurisdiction rule, an aspect of the well-settled doctrine of the law of the case. ...