Appeal from the Order entered on March 25, 2003 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 8810-3175 1/4 - 3189. Appeal from the Order entered on March 25, 2003 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 8810-3175 2/4 & 8810-3190-3206. Appeal from the Order entered on March 25, 2003 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 8810-3175 2/4 & 3190-3205 October Term 1988.
The opinion of the court was delivered by: Mr. Chief Justice CASTILLE*fn1
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED October 24, 2006
The Commonwealth appeals from the order of the Philadelphia County Court of Common Pleas granting appellees Henry Daniels and Kevin Pelzer relief on their petitions under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. By order dated March 25, 2003, the PCRA court granted both appellees relief on two claims, ordered a new trial, and denied the remaining claims. Appellees, acting as Cross-Appellants, have filed cross-appeals renewing the issues that the PCRA court dismissed. For the reasons set forth below, we vacate the order of the PCRA court and remand for further proceedings consistent with this Opinion.
On November 10, 1989, following a joint trial, a jury convicted appellees of first-degree murder, criminal conspiracy, kidnapping, robbery, and two counts of burglary. At trial, appellee Daniels was represented by Charles Houston, Esq., a South Carolina lawyer who was granted pro hac vice status. The trial court appointed John Drost, Esq., a Pennsylvania attorney, as back-up counsel. Appellee Pelzer was represented by Donald Padova, Esq.
The guilt phase of the trial established that appellees participated in a plan to kidnap and hold for ransom sixteen-year old Alexander Porter. Appellees kidnapped the victim, bound and gagged him, and placed him in the trunk of his car. Appellees then drove the victim's car to his mother's house and burglarized the dwelling. They also used the victim's key to burglarize his father's house. They left the victim in the trunk until nightfall when they set out to dispose of his body. At this point, the victim had been in the trunk for twenty-four hours. According to appellees' police statements and Daniels' trial testimony, when appellees went to dump the victim's body, they were unable to determine whether he was dead. Appellee Pelzer shot him four times in the back of the neck, removing all doubt.*fn2*fn3
Following a penalty phase hearing, the jury found four aggravating circumstances and two mitigating circumstances with regard to both appellees. The four aggravating circumstances found were: (1) the victim was a prosecution witness to a murder or other felony; (2) the victim was being held for ransom or reward; (3) the offense was committed by means of torture; and (4) the defendant committed a killing while in perpetration of a felony.*fn4 The mitigating circumstances were that appellees had no significant history of prior criminal convictions and the "catchall" mitigator.*fn5 After weighing the aggravating and mitigating circumstances, the jury fixed the penalty at death for each appellee and the trial court imposed the sentences on November 14, 1989. See 42 Pa.C.S. § 9711(c)(1)(iv). In addition to the sentences of death, on April 23, 1990, the trial judge sentenced each appellee to an aggregate, consecutive term of twenty-five to fifty years in prison for the remaining crimes.
Appellees were represented by new counsel on direct appeal and this Court affirmed the judgments of sentence by an equally divided Court in separate opinions.*fn6 The Court agreed that the jury's first-degree murder verdict should be sustained, but disagreed as to whether a new penalty phase was required, because three Justices did not believe that the evidence was sufficient to support the finding that the offense was committed by means of torture under 42 Pa.C.S. § 9711(d)(8). Additionally, two Justices did not agree that the evidence was sufficient to support the finding that the Commonwealth established the aggravating circumstance of killing a prosecution witness to prevent his testimony, 42 Pa.C.S. § 9711(d)(5). See Commonwealth v. Daniels, 612 A.2d 395 (Pa. 1992); Commonwealth v. Pelzer, 612 A.2d 407 (Pa. 1992). This Court then granted appellee Daniels' Petition for Reargument and affirmed the judgment of sentence in a Majority opinion. Commonwealth v. Daniels, 644 A.2d 1175 (Pa. 1994).*fn7 Appellees did not petition for a writ of certiorari in the United States Supreme Court.
On January 10, 1997, appellee Pelzer filed a timely pro se PCRA petition. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fenati, 748 A.2d 205 (Pa. 2000) (exception exists to PCRA's one-year time requirement for those petitioners whose judgments had become final before 1995 amendments to the PCRA, who were filing their first PCRA petition, so long as petition was filed within one year of effective date of amendments). Appellee Daniels followed suit and filed a timely pro se PCRA petition on January 16, 1997. New counsel entered their appearances and filed amended petitions, which were followed by many supplemental petitions. The PCRA petitions were assigned to the Honorable James A. Lineberger.*fn8
On February 2, 2000, the PCRA court held a hearing at which it reviewed the twenty-one claims submitted by appellees. The court granted an evidentiary hearing as to seven of the claims and granted the Commonwealth's Motion to Dismiss the remaining claims. The seven issues that were the subject of the evidentiary hearing were: (1) trial counsels' ineffectiveness for failing to object to the trial court's instruction on accomplice liability,(2) trial counsels' ineffectiveness for failing to adequately investigate and present evidence on the cause of death, (3) a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), (4) trial counsels' failure to present mitigating evidence, (5) allegations related to appellate counsels' conduct, (6) a general request regarding the application of relaxed waiver, and (7) appellee Daniels' challenge to the aggravating circumstance, 42 Pa.C.S. § 9711(d)(6) under Commonwealth v. Lassiter, 722 A.2d 657 (Pa. 1998) (plurality). See N.T., 2/2/2000, at 80-89.
After holding hearings on the PCRA claims in December of 2001, May of 2002, and January of 2003, the PCRA court granted relief in the form of a new trial at a brief hearing on January 29, 2003. In granting relief, Judge Lineberger explained that he was persuaded by two of appellees' claims alleging trial counsels' ineffectiveness: first, for failing to object to the trial court's instruction on accomplice liability, and second, for failing to present evidence related to the cause of death.
Subsequently, on February 28, 2003, the Commonwealth submitted a Rule to Show Cause seeking clarification of the January 29th order to ensure that it was a final, appealable order. The Commonwealth's concern was that Judge Lineberger's order did not encompass all of the claims raised by the PCRA petitions. On that day, however, Judge Lineberger was unavailable, and therefore, the appropriate supervising Judge of the Criminal Division, the Honorable D. Webster Keogh, considered the Commonwealth's request. Judge Keogh granted the Rule, as follows:
AND NOW, this 28th day of February 2003, on consideration of the Commonwealth's proposed Order clarifying the order of the Court, the above defendant is directed to show cause why the Court should not issue an Order clarifying the ruling on defendants' PCRA petition claims.
This show cause hearing is listed for the 5th day of March, 2003, in Courtroom 701, at 9:30 a.m. Pending consideration of the Commonwealth's proposed order, the Court's Order of January 29, 2003, is hereby vacated.
As provided for by Judge Keogh's order, Judge Lineberger held a hearing on March 5, 2003. Following the March 5th hearing, Judge Lineberger granted the Commonwealth's requested clarification, and on March 25, 2003, he entered an order which again granted appellees relief on their joint claims of trial counsel ineffectiveness, but denied the remaining claims.
The Commonwealth filed a Notice of Appeal with this Court on April 24, 2003, challenging the PCRA court's order to the extent it granted relief. Appellees filed protective cross-appeals shortly thereafter to preserve their other claims. The PCRA court then issued an opinion in support of its order on June 29, 2004.
Meanwhile, appellees filed a Motion to Quash the Appeal by the Commonwealth, arguing that it was untimely. This Court issued an order dated December 8, 2003, deferring the quashal request and directing the parties to brief the issue of whether the Commonwealth's appeal should be quashed as untimely and whether the trial court had the authority under 42 Pa.C.S. § 5505 to issue a rule to show cause to modify or rescind an order within thirty days after its entry.
Before turning to the merits of the PCRA claims, we will address the procedural question that we directed the parties to brief. Appellees argue that the notice of appeal was untimely because the Commonwealth had to appeal within thirty days of the PCRA court's order dated January 29, 2003, but did not. According to appellees, the January 29th order was a final order because it granted relief in the form of a new trial. Additionally, appellees aver that the time for taking the appeal was not extended because the Commonwealth's February 28th request to Judge Keogh regarding the Rule to Show Cause was ex parte. Appellees argue that ex parte proceedings are prohibited by the rules of ethics, judicial conduct, and case law. Moreover, appellees submit, the order was a nullity because it did not comply with the requirements of 42 Pa.C.S. § 5505, which expressly requires notice to the parties. Appellees also assert that Judge Keogh's order impermissibly expanded the Commonwealth's time for taking an appeal when the law clearly provides that the time for taking an appeal may not be extended as a matter of grace or indulgence. Appellees intimate that the Commonwealth's conduct in waiting until the final day of the appeal period somehow was underhanded and in bad faith. Appellees conclude that Judge Keogh's February 28th order was a nullity, and therefore the Commonwealth had to appeal within thirty days of the January 29th order. The Commonwealth did not do so, and thus, appellees argue that the appeal filed on April 24, 2003 was untimely.
The Commonwealth responds that the January 29th order was not a final order because it did not dispose of all pending claims and, in any event, the interlocutory order was properly vacated on February 28, 2003. The Commonwealth further notes that Section 5505 of the Judicial Code gives the trial court the authority to modify or rescind an order within 30 days after its entry provided no appeal has been taken. In this case, the Commonwealth was merely seeking a ruling as to why the January 29th order should not be modified within 30 days. The Commonwealth argues that Section 5505, which gives the court the power to modify or rescind an order, must include the lesser power to issue a rule to show cause why such modification or rescission is improper. Thus, in the Commonwealth's view, Judge Keogh's order vacating the earlier order extinguished any deadline related to the January 29th order.
Although the parties expend advocacy wrestling over whether the January 29th order was "final," we believe that the salient threshold inquiry centers on the validity of the February 28th order vacating the January 29th order. This is so because the question whether the January 29th order was "final" for purposes of appeal becomes irrelevant if the order was properly vacated by Judge Keogh on February 28th.*fn9 Thus, our analysis will begin with that question.
The answer to the question can be found in 42 Pa.C.S. § 5505. Generally, the interpretation of a statute is a question of law and our scope of review is plenary. Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758, 761 n.4 (Pa. 2005). It is well-settled that the plain language of the statute is the best indicator of the Legislature's intent. 1 Pa.C.S. § 1921. A court should resort to other considerations, such as the General Assembly's purpose in enacting a statute, only when the words of a statute are ambiguous. 1 Pa.C.S. § 1921(c).
Section 5505 provides for the modification of orders and states,
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed. 42 Pa.C.S. § 5505. The plain language of Section 5505 allows the trial court 30 days to modify or rescind a prior order when no appeal has been taken.
In this case, there was no appeal pending at the time the Commonwealth filed the Rule to Show Cause. Judge Keogh vacated the January 29th order for the limited purpose of allowing for a determination of whether the earlier order needed to be clarified. This action fell within the ambit of Section 5505. Therefore, Judge Keogh, as a member of the Court of Common Pleas of Philadelphia County, and as Supervising Judge of the Criminal Division, plainly had authority to vacate the January 29th order under Section 5505 in the absence of Judge Lineberger.
Appellees' specific complaint, however, also encompasses whether Judge Keogh could step into the process in lieu of Judge Lineberger and whether Judge Keogh's show cause order was a nullity because appellees were not given prior notice and the February 28th proceedings were, in appellees' view, ex parte.
The facts establish that on the day in question, February 28th, Judge Lineberger was unavailable because he remained at his home in reliance on a winter storm weather report that later turned out to be erroneous. Faced with the absence of Judge Lineberger, the Commonwealth sought an order from the proper administrative judicial officer in Philadelphia, the Supervising Judge of the Trial Division -- Criminal, Judge Keogh. The Commonwealth's conduct was not indicative of forum shopping, but rather was necessitated simply by Judge Lineberger's unexpected absence. Administrative judges in multi-judge counties routinely enter such orders -- which amount to status orders -- in circumstances where the assigned judge is unavailable. Furthermore, it is worth noting that at the March 5th hearing, Judge Lineberger specifically found that the Commonwealth's February 28th request was made in "good faith." Id. at 10. Thus, there is simply no support for appellees' argument that Judge Keogh lacked authority to issue the February 28th order or that the Commonwealth was acting underhandedly when, in the absence of the assigned judge, it applied to the supervising judge for the Rule to Show Cause.
Likewise, the fact that appellees were not given prior notice of the filing did not render Judge Keogh's order a nullity. Section 5505 states only that the action should be taken "upon notice" to the parties. The statute does not state that notice must be given prior to the proceedings or the order is rendered a nullity. See, e.g., In re Upset Price Tax Sale, 615 A.2d 870, 872 (Pa. Cmwlth. 1992); Commonwealth v. Allen, 575 A.2d 131, 133 (Pa. Super. 1990). And, while there are some circumstances when prior notice may be necessary,*fn10 the limited procedural circumstances for which Section 5505 was being invoked in this case did not demand prior notice. Again, appellees overlook the modest effect of Judge Keogh's February 28th order. The order did not modify or alter the January 29th order, but it merely maintained the status quo until Judge Lineberger was available to decide whether the earlier order was in need of clarification or modification. Since appellees were present and heard at the March 5th hearing, and it was only after that hearing that Judge Lineberger concluded that the January 29th order indeed was in need of clarification, the notice requirement was satisfied. See, e.g., Commonwealth v. Fanelli, 436 A.2d 1024, 1026 n.4 (Pa. Super. 1981).
Additionally, if we were to agree with appellee that the absence of prior notice under the present circumstances renders the order a nullity, we would ignore the reality that requests for a rule to show cause are commonly made "ex parte" precisely because the order granting the rule has the limited effect of directing the party to appear for a hearing at some later date in order to be heard as to why a certain action should not be taken. See Commonwealth ex rel. Zimmerman v. Auto Mart, Inc., 910 A.2d 171, 176 (Pa. Cmwlth. 2006); In re Tax Claim Bureau of Lehigh County Sale No. 49-28, 702 A.2d 1105, 1107 (Pa. Cmwlth. 1997). This is precisely what occurred in this case. Accordingly, Judge Keogh acted within his authority on February 28th when he granted the Rule and vacated the prior order for the limited purpose of maintaining the status quo until Judge Lineberger could hear the parties' arguments. Furthermore, it was not until after hearing the parties on March 5th that Judge Lineberger concluded that the Commonwealth's argument that the January 29th order needed clarification was correct and issued a new, substantive order on March 25, 2003.*fn11 For these reasons, the March 25th order was the final appealable order and the Commonwealth's appeal, filed on April 24, 2003, was timely.
We now turn to the substance of the PCRA challenges. In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in 42 Pa.C.S. § 9543(a)(2) and that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A claim is previously litigated under the PCRA if the highest appellate court in which the petitioner would have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). This case involves "layered" ineffectiveness claims, as both appellees were represented by new lawyers on direct appeal. The Commonwealth challenges appellees' claims on waiver grounds because they could have been raised on direct appeal, or, alternatively, because they are not properly layered.
It is well-settled that a petitioner can obtain relief on an ineffective assistance of counsel claim only if he demonstrates that counsel's performance was deficient and that the deficiencies prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Pennsylvania, we have applied the Strickland test by looking to three elements. Thus, in order to succeed on a claim of ineffectiveness, the petitioner must establish that the claim is of arguable merit, no reasonable trial strategy existed for counsel's action or inaction, and the outcome of the proceedings would have been different but for counsel's failures. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness. Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 2006).
In Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003), this Court clarified the procedure to be followed in forwarding a PCRA claim challenging the effectiveness of all prior counsel, including prior direct appeal counsel, i.e., a "layered" claim of ineffectiveness. PCRA layering is necessary when the petitioner was represented by new counsel on direct appeal because claims bottomed upon trial counsel ineffectiveness -- in particular, record-based claims -- could have been raised on direct appeal.*fn12 In such circumstances, any claim that a petitioner would forward sounding in trial counsel ineffectiveness would be waived under 42 Pa.C.S. § 9544(b). McGill explicitly stated that "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 direct appeal counsel, which necessarily related back to the actions of prior counsel. McGill, 832 ...