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Commonwealth v. Ligons

May 27, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ANTOINE LIGONS, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ANTOINE LIGONS, APPELLEE



Appeal from the Order entered on June 23, 2005 in the Court of Common Pleas of Philadelphia County which Denied Request for a New Trial and Granted New Penalty Hearing at No. 9805-0086.

The opinion of the court was delivered by: Mr. Justice Baer

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

SUBMITTED: November 8, 2007

OPINION

This case involves cross-appeals from the order of the Court of Common Pleas of Philadelphia County, which denied Antoine Ligons' guilt phase claims under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, but granted a new penalty hearing on the grounds that trial counsel was ineffective for failing to investigate mitigating evidence. For the reasons that follow, we affirm the denial of a new trial and reverse the grant of a new penalty hearing.

While the facts underlying Appellant's*fn1 conviction of first degree murder are set forth in our opinion affirming his judgment of sentence on direct appeal, Commonwealth v. Ligons, 773 A.2d 1231 (Pa. 2001), a brief recitation thereof will facilitate an understanding of the issues raised herein.

On the evening of April 6, 1996, Appellant, then 19 years of age, was with his girlfriend, Irene Williams, on the porch of her home in West Philadelphia. Williams' home was located on the same street and within eyesight of Appellant's residence. Two brothers, Cecil and Edward Jackson, who lived next door to Williams, were also present at her home. At some point during the evening, Appellant left Williams' residence and returned to his own home. Shortly thereafter, he telephoned Williams and stated that he was going to do something and may not return. Williams then observed Edward Jackson carry an object wrapped in a jacket into Appellant's home. Moments later, Williams noticed Appellant leaving his residence, dressed entirely in black.

At nearly 10:45 p.m. that night, a caller telephoned Stavros Pizza to place an order to be delivered to an address located one block from Appellant's home.*fn2 Clarence Johnson, the deliveryman for Stavros Pizza, left at 11:30 p.m. with the completed order and $10.00 with which to make change. Mr. Johnson's wife, Sonja, accompanied him on the delivery. When Mr. Johnson arrived at the given address, he parked his vehicle in the middle of the street, where his wife waited in the car. As Mr. Johnson approached the porch of the residence, Appellant emerged from an adjacent alley. Appellant was wearing all black clothing and a black ski mask that had a large opening around the eyes. Appellant approached Mr. Johnson from behind and pushed him onto the porch. While holding a gun to his head, Appellant stated, "You know what this is." When Mrs. Johnson opened the car door in an effort to help her husband, Appellant threatened to kill Mr. Johnson. Frightened, Mrs. Johnson remained in the car, which was parked seven to ten feet from where Appellant stood. Appellant demanded money and then pushed Mr. Johnson off the porch and into the alley. Mr. Johnson handed over the little cash he had and Appellant taunted him, repeatedly asking him whether he wanted to live. After Johnson pleaded for his life, Appellant fatally shot him in the back of his head and fled down the alley.

Upon hearing gunshots, nearby residents called the police, who arrived within minutes. Mr. Johnson was immediately taken to the hospital, where he was pronounced dead. Mrs. Johnson described the perpetrator to police as an African American male with a light complexion, hazel eyes, five feet eight inches in height, and weighing 150-160 pounds. She indicated that the robber wore a black ski mask, black Timberland boots, and black clothing. The police recovered a 9 mm. casing and a bullet that was consistent with either a .38 caliber or 9 mm. firearm.

After the shooting, Appellant telephoned Williams and explained that he may have just killed someone who had pulled a gun on him. In the days that followed, Appellant warned Williams not to report the incident and threatened her by stating, "I took a life and don't you think that I won't kill again." Fearing that Appellant might act on his words, Williams and her mother left the Philadelphia area to stay with Williams' cousin, Keith Wright, in Salisbury, Maryland. Upon learning of Williams' departure, Appellant telephoned Wright, whom he had previously known, in an attempt to speak with Williams. Appellant admitted to Wright that he had killed a man, and said that his motive was to obtain money to impress Williams. Appellant acknowledged that a woman (Mrs. Johnson) witnessed the crime, but stated that he was not concerned because he had worn a mask during the incident.

Wright contacted the police, who traveled to Salisbury to interview him and Williams. Both Williams and Wright made statements to police in which they indicated that Appellant confessed to Johnson's murder. Williams additionally explained that a day or two before the murder, she overheard Edward Jackson mention that he had a gun and, on the night of the murder, saw Jackson carry an object wrapped in a jacket into Appellant's residence. Based upon this information, police obtained an arrest warrant for Appellant and search warrants for the residences of both Appellant and Edward Jackson. A search of Appellant's residence revealed a pair of black boots and a matchbook with the telephone number of Stavros Pizza written on the cover. Menus from Stavros Pizza were also recovered from the Jackson residence.

Appellant was subsequently arrested and charged with murder, robbery, and possession of an instrument of crime.*fn3 When questioned by police following his arrest, Appellant admitted that he robbed Johnson. He explained that he and his girlfriend had an argument, and that he thought that his girlfriend would stay with him if he gave her money. Appellant further stated that he needed money to pay his grandmother's medical bills. He asserted that, on the night of the murder, Cecil Jackson placed the pizza order and Edward Jackson supplied the gun. Appellant described the clothing that he wore during the commission of the crime, which was consistent with that reported by Mrs. Johnson. Appellant also claimed that he pointed his gun toward Mr. Johnson's head because Mr. Johnson threatened him with a gun. He stated that the next thing he knew, his gun discharged. Appellant denied taking any money.

Prior to trial, Appellant moved to suppress the statement he gave to police detectives on the grounds that the detectives fabricated the statement and beat him until he signed it, causing injuries which required medical treatment. The trial court denied suppression, crediting the testimony of the police detectives that Appellant had the alleged injuries when he arrived for questioning, and that no physical force had been used by the detectives in eliciting Appellant's confession.

During voir dire, Appellant, who is African American, did not raise any claims of racial discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79 (1986). At trial in 1999, the Commonwealth presented Appellant's statement and the testimony of Williams, Wright, Mrs. Johnson,*fn4 and police detectives involved in the investigation. On direct examination, Williams recanted portions of her previous statement relating to Appellant's confession of the murder and the Commonwealth introduced her prior statement through the detective who interviewed her. Additionally, the Commonwealth presented expert testimony, establishing that Mr. Johnson died from a single gunshot wound, with the gun being fired from six to twelve inches from his head. The defense did not present any witnesses. Instead, the defense attacked the identification evidence linking Appellant to the crime, arguing that someone other than he committed the murder. On March 22, 1999, the jury found Appellant guilty of first degree murder, robbery, and possession of an instrument of crime.

During the penalty hearing on March 23, 1999, the Commonwealth alleged one aggravating circumstance, that Appellant committed a killing while in the perpetration of a felony, robbery, pursuant to 42 Pa.C.S.§ 9711(d)(6) ("perpetration of a felony aggravator").

In support of this aggravator, the Commonwealth incorporated the record from the guilt phase of the trial and presented no additional evidence.

As mitigating circumstances, Appellant offered his lack of a significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1) ("lack of significant criminal history mitigator"), his age at the time of the crime, id. at 9711(e)(4) ("age mitigator"), and other evidence of mitigation, i.e, life history and extenuating circumstances concerning the character and record of the defendant and the circumstances of his offense. Id. at § 9711(e)(8) ("catch-all mitigator"). In support of these mitigating circumstances, as discussed in detail infra, Appellant first presented the testimony of Williams, his mother, and his grandmother. Williams testified that she had a child with Appellant; that Appellant was a good father; and that he had never been violent. Appellant's mother testified about Appellant's difficult childhood in a crime-ridden neighborhood; his car thefts, which led to his being adjudicated a delinquent; his later success when in a structured environment, and his difficulties arising from his mother's intimate relationship with Cecil Jackson.*fn5 Appellant's grandmother testified that Appellant's mother never loved him and that Appellant was a nice person who never mistreated anyone. She also stated that, prior to the murder, she was in danger of losing her home due to her failure to pay medical bills, presumably hoping to corroborate Appellant's justification for the crime and to engender some sympathy for him.

Appellant further presented the testimony of Dr.Tepper, a licensed psychologist, who had conducted psychological testing on Appellant and interviewed Williams, Appellant's mother, and grandmother. Based upon the psychological testing and interviews, as well as Dr. Tepper's examination of police records and several reports and evaluations examining Appellant's background, Dr. Tepper testified that: Appellant had a difficult childhood in a rough neighborhood due to the absence of his father and the indifference of his mother; that his mother on occasion physically abused him; that he was in the low range of intelligence; that he excelled in the structured environment of the Glenn Mills School*fn6 after having been adjudicated delinquent for auto theft; that he maintained a caring relationship with his girlfriend and grandmother; that at the time of the offense, he was hurt by his mother's intimate relationship and cohabitation with his childhood friend, Cecil Jackson; and that he was concerned about his grandmother's health and ability to pay her medical bills.

In the closing arguments at the penalty hearing, the prosecutor referred to the evidence presented at trial that Appellant killed Johnson during a robbery to support the perpetration of a felony aggravator. Discounting the age mitigator, the prosecutor argued that, at age nineteen, Appellant was not so young and immature that age should be a mitigating factor. To rebut the lack of a significant criminal history mitigator, the prosecutor emphasized Appellant's previous juvenile adjudications for auto theft. Further, the prosecutor attempted to rebut the catch-all mitigating factor by noting that Appellant did not suffer any organic brain damage, was of average intelligence, and knew that what he did was wrong. Finally, the prosecutor requested that the jury consider the impact of the murder upon the victim's family.

On March 24, 1999, the jury returned a verdict of death, finding the perpetration of a felony aggravator and no mitigating circumstances. Trial counsel continued to represent Appellant on his direct appeal, in which he challenged Mrs. Johnson's alleged photographic identification and portions of the prosecutor's closing argument during the penalty phase. On July 6, 2001, this Court affirmed Appellant's judgment of sentence of death.

Commonwealth v. Ligons, supra. The United States Supreme Court denied certiorari on October 7, 2002. Ligons v. Pennsylvania, 537 U.S. 827 (2002).

Appellant filed a timely pro se PCRA petition on January 13, 2003, challenging trial counsel's ineffectiveness for allegedly failing to investigate mitigation evidence.*fn7 New counsel ("PCRA counsel") was appointed and, on September 15, 2003, an amended PCRA petition was filed. Therein, Appellant contended that trial counsel was ineffective for: failing to investigate adequately potential mitigating factors in his background, including his medical history and educational records; failing to preserve issues regarding the weight and sufficiency of the evidence; failing to preserve various objections to the testimony of Irene Williams and Keith Wright; failing to request a cautionary instruction concerning the testimony of the police detectives; failing to properly cross-examine the police detectives; and failing to demonstrate to the jury that Appellant did not fit into boots that had been seized from his home by the police detectives. Letter briefs were filed in support of the amended PCRA petition on September 12, 2003 and November 6, 2003. On March 2, 2005, Appellant filed a supplement to the Amended PCRA petition in which he included reports of Kirk Heilbrun, Ph.D., relating to additional mitigation evidence that could have been presented on Appellant's behalf.

The supplemental PCRA filings specifically contended that trial counsel was ineffective for failing to investigate the following documents: (1) a March 24, 1999 court-ordered mental health evaluation, which indicated no mental illness, but noted that Appellant felt rejected by his mother, was forced to live with his grandmother, and maintained several jobs; (2) a pre-sentence investigation report indicating that Appellant was only functionally literate, was dismissed from school in the 9th grade, and attended church; (3) Appellant's prison medical records which indicated that Appellant had no major psychiatric syndrome or anti-social personality disorder, had self-reported previous drug abuse, was placed on an anti-depressant while incarcerated as a result of the instant offense, and handled incarceration well; (4) Appellant's school records indicating vacillating academic performance, Appellant's failure of fourth grade, and his mother's inability to attend parent/teacher conferences; (5) Appellant's juvenile file ("j-file"), which referenced that Appellant excelled in the structured setting of Glen Mills School, but was unable to adjust to probation after being released, as well as Appellant's history of juvenile offenses; and (6) documentation from Kirk Heilbrun, Ph.D., indicating that he could have testified in support of the age mitigator that Appellant was immature and lacked social skills and could have testified in support of the catchall mitigator regarding the specific details set forth in the aforementioned documents listed in items (1) through (5) above.

A PCRA evidentiary hearing was conducted on June 23, 2005, but no fact witnesses were presented by either party. Instead, the parties argued the merits of their positions regarding the issue of trial counsel's ineffectiveness for failing to investigate mitigation evidence.*fn8 In support of this claim, Appellant relied entirely upon the documentary evidence referenced above, as well as a July 27, 2003 letter written by trial counsel, which set forth his trial strategy.

At the conclusion of the hearing, the PCRA court denied the request for a new trial and granted a new penalty hearing on the ground that trial counsel was ineffective for failing to investigate relevant, mitigating evidence pursuant to the then-recent decision in Rompilla v. Beard, 545 U.S. 374 (2005) (finding trial counsel ineffective for failing to investigate the court file concerning the defendant's prior conviction after the prosecution gave notice that it would be presenting testimony from the prior trial in support of the significant history of felony convictions aggravator).

Appellant thereafter presented to the court a pro se motion for the appointment of new counsel, which was time-stamped as having been received on June 30, 2005, but was never formally accepted for filing. Therein, Appellant asserted that he wanted his current PCRA attorneys removed from the case because they did not visit him in prison or investigate his case. Appellant further maintained that he wanted to raise a "Hardcastle issue," which, as discussed infra, is a claim of racial discrimination in jury selection based on Hardcastle v. Horn, 368 F.3d 246 (3d Cir. 2004). On July 11, 2005, the parties appeared before the trial court and Appellant's counsel formally raised the Batson claim. On July 25, 2005, new counsel entered their appearance on behalf of Appellant and filed a timely notice of appeal.

In its August 4, 2005 opinion, the PCRA court addressed the guilt-phase issues included in Appellant's PCRA petition and denied relief on the merits. The court also addressed the "Hardcastle issue" and concluded that any claim of discrimination in jury selection was frivolous on its face because Appellant's jury consisted of 7 African Americans, 4 Caucasians, and 1 Latino. PCRA Court Opinion at 16. The court further explained that it had granted Appellant a new penalty hearing, holding that trial counsel was ineffective for failing to undertake a meaningful investigation of Appellant's background for purposes of presenting mitigation evidence in the penalty phase. Id. at 3.

As noted, both Appellant and the Commonwealth have appealed. This Court has jurisdiction over appeals from the grant or denial of post-conviction relief in a death penalty case pursuant to 42 Pa.C.S. § 9546(d). Our standard of review is whether the findings of the PCRA court are supported by the record and are free from legal error. Commonwealth v. Washington, 927 A.2d 586, 593 (Pa. 2007).

I. Cognizability of Claims

In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)(setting forth the eligibility requirements of the PCRA). Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. at § 9543(a)(3). An issue has been previously litigated if "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." Id. at § 9544(a)(2). A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." Id. at § 9544(b). Further, we no longer apply the relaxed waiver doctrine in capital PCRA appeals. Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).

Appellant raises several issues for review, many of which allege the ineffective assistance of counsel. It is well-established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, Appellant must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance. Commonwealth v. (Michael) Pierce, 786 A.2d 203, 213 (Pa. 2001). A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs. Id. at 221-222.*fn9

In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), this Court abrogated the rule that ineffectiveness claims based on trial counsel's performance must be raised at the first opportunity where appellant has new counsel, see Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977), and held that a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review." Grant, 813 A.2d at 738. That holding, however, does not apply here because Appellant's direct appeal concluded prior to our decision in Grant. Rainey, 928 A.2d at 225. Thus, we shall analyze Appellant's ineffectiveness claims under the pre-Grant framework. Id.

As Appellant was represented by the same counsel at trial and on direct appeal, the first opportunity for him to challenge trial counsel's performance was on collateral review. Thus, no "layering"*fn10 is necessary as to the claims of trial counsel ineffectiveness that were raised in Appellant's PCRA petition. See Commonwealth v. Hughes, 865 A.2d 761, 775 n.7 (Pa. 2004) (providing that when appellant was represented by the same counsel at trial and on direct appeal, the PCRA proceeding is the first opportunity to challenge the stewardship of prior counsel and the analysis of such issue does not involve a layered claim of ineffectiveness).

However, the majority of Appellant's issues further allege PCRA counsel ineffectiveness for failing to raise certain substantive claims before the PCRA court in the proceedings from which this appeal was taken.*fn11*fn12 Appellant is required to layer properly the claims of PCRA counsel ineffectiveness. In Commonwealth v. McGill, supra, this Court addressed the proper layering of a claim of ineffective assistance of counsel and held that a PCRA petitioner must present argument as to each layer of ineffectiveness, establishing all three prongs of the ineffectiveness standard for each attorney. Id. at 1022. Because this Court had not been entirely clear as to what was required of a PCRA petitioner seeking to plead and prove a layered claim of ineffectiveness before McGill, we stated that "a remand to the PCRA court may be appropriate for cases currently 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. A remand is unnecessary, however, where the post-conviction petitioner fails to "thoroughly plead and prove" the underlying allegation that trial counsel was ineffective. Commonwealth v. D'Amato, 856 A.2d 806, 812 (Pa. 2004).

We have held that a defendant in a capital case may challenge the stewardship of PCRA counsel on appeal to this Court because it is his only opportunity to do so. Commonwealth v. Hall, 872 A.2d 1177, 1182 (Pa. 2005); Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999); Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998). In Albrecht, we recognized that Pa.R.Crim.P. 904 embodies an enforceable right to effective PCRA counsel in a first PCRA petition and therefore we must permit claims challenging PCRA counsel's stewardship in an appeal to this Court. Albrecht, 720 A.2d at 699-700.

There has been some debate, however, regarding what level of development is necessary to entitle the petitioner to merits review of claims alleging the ineffectiveness of PCRA counsel. In Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002), we denied relief due to lack of development, holding that mere boilerplate assertions of PCRA counsel's ineffectiveness for failing to raise enumerated claims before the PCRA court were fatal to the claim. Id. at 41. Acknowledging our decision in Bond, we nevertheless declined to deny relief based upon a petitioner's failure to develop claims of PCRA counsel ineffectiveness in Hall, supra. Instead, this Court in Hall examined the merits of "those issues of [PCRA counsel] ineffectiveness that are properly framed to determine whether there is any arguable merit to the claims of trial counsel ineffectiveness." Id at 1183. This analysis was based on the fact that: (1) since Bond was decided, our Court in McGill acknowledged that the manner of properly layering a claim of ineffective assistance of counsel had been unclear and clarified the procedure for presenting layered claims; and, (2) the Commonwealth did not argue that the appellant's claims of PCRA counsel ineffectiveness were time-barred or should fail as undeveloped. Hall, 872 A.2d at 1183. We further noted that all of the appellant's claims of PCRA counsel's ineffectiveness would ultimately fail for lack of merit. Id.

We see no reason to deviate from Hall, as the Commonwealth's claims of waiver in the instant case relate to Appellant's failure to raise issues at trial, and do not suggest that claims of PCRA counsel ineffectiveness should fail because they are undeveloped or untimely. Further, Appellant's claims of PCRA counsel's ineffectiveness ultimately fail for lack of merit. Thus, consistent with Hall, we shall examine the merits of "those issues of ineffectiveness that are properly framed to determine whether there is any arguable merit to the claims of trial counsel ineffectiveness." Id. at 1183.

In his concurring opinion, Chief Justice Castille views a claim of PCRA trial counsel ineffectiveness as a new claim, which needs to be raised in a serial PCRA petition, and maintains that this Court lacks jurisdiction to address such "new" claims on appeal from the denial of PCRA relief. Consistently, he opines that, in addressing claims of PCRA counsel's ineffectiveness, we are applying a "no-waiver rule," which negates both judicial issue preservation principles as espoused in Pa.R.A.P. 302(a) (providing that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal."), and the one-year filing requirement of the PCRA. See 42 Pa.C.S. § 9543(b)(1) (providing that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final" unless the petitioner proves one of the exceptions to the time-bar, which are not at issue here).

While the concurring opinion's distinction is theoretically appealing, the practical application of such approach renders a PCRA petitioner's right to effective representation unenforceable and, therefore, meaningless. This consequence directly conflicts with controlling precedent of this Court that reaffirms that a PCRA petitioner has an enforceable right to effective assistance of counsel in a first PCRA petition. See Albrecht; Pursell; Hall; supra.

To illustrate the quandary that a capital PCRA petitioner faces when he receives deficient representation by PCRA trial counsel, we initially note that a petitioner can never abide by Pa.R.A.P. 302(a) when challenging PCRA trial counsel's performance because the first opportunity to raise such claim is in his appeal from the PCRA court's denial of relief. Stated differently, a petitioner cannot challenge PCRA counsel's effectiveness before the PCRA court because the alleged ineffectiveness is playing out as that proceeding occurs, and ineffectiveness cannot be identified until the proceeding has concluded. Similarly, absent invocation of one of the three statutory exceptions to the timeliness requirement set forth at 42 Pa.C.S. § 9545(b)(1)(i)-(iii), it would be virtually impossible for a petitioner to ever file a serial petition raising PCRA counsel's ineffectiveness in a timely manner as his first PCRA petition would not be disposed of before the one-year statutory filing period expires. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that when PCRA appeal is pending, subsequent PCRA petition cannot be filed until resolution of review of pending PCRA petition by highest state court in which review is sought, or at the expiration of time for seeking such review).

Thus, the only way to afford a capital PCRA petitioner an opportunity to enforce his right to effective PCRA trial counsel is to permit the filing of such claims on appeal from the denial of PCRA relief. Admittedly, this puts our Court in the position of reviewing claims that were not reviewed by the PCRA court. However, there is no viable alternative to ensure that the right to effective PCRA counsel can be enforced and a remedy granted in the appropriate case where the petitioner has satisfied the rigorous burden as announced in McGill, supra, of establishing a multiple-layered claim of ineffectiveness.

Purportedly recognizing the dire consequences arising from deeming all PCRA counsel ineffectiveness claims either waived or outside our jurisdictional reach, the concurring opinion poses alternatives a petitioner may pursue to enforce the right to effective PCRA counsel, other than in his appeal to this Court from the denial of PCRA relief, as occurred here. Concurring Opinion at 17. We find such suggestions laudable, but wholly inadequate. First, the concurring opinion suggests that the PCRA judge, who oftentimes is the same judge who presided over the petitioner's trial, "can direct counsel to amend or further develop claims, can conduct colloquies with the defendant, and can easily assess whether counsel is adequately discharging his duty." Id. This approach is unrealistic as the PCRA court has no way to identify or investigate collateral claims that do not appear on the face of the record (e.g., a claim challenging trial counsel's failure to present sufficient mitigating evidence that existed at the time of the penalty hearing). Further, the petitioner, himself, is unable to understand the intricacies of the law in a manner sufficient to convey foregone claims to the PCRA court. Thus, the only way to bring final resolution to these case and to meaningfully consider whether PCRA trial counsel was, in fact, effective, is to follow the procedure set forth herein.

The concurring opinion additionally states that this Court "is also in a position, although from a different perspective, to assess the sort of effort counsel has made, and to take corrective action where it appears counsel has not completely discharged his duties." Id. at 17-18. We fail to see how our Court would be equipped to identify, investigate, and sua sponte raise such collateral claims. This alternative is clearly more violative of the judicial issue preservation principles set forth in Pa.R.A.P. 302 than the approach followed herein, where we address the claims of PCRA counsel ineffectiveness actually raised by the petitioner, himself.

It should be noted that our decision herein to address claims of PCRA counsel ineffectiveness is not new law; but rather is based on well-established case law of this Court. As noted, in Albrecht, we held that Pa.R.Crim.P. 904 (formerly Rule 1504) makes the appointment of counsel in PCRA proceedings mandatory. We stated:

It is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel. Indeed the right to counsel is meaningless if effective assistance is not guaranteed.

Id., 720 A.2d at 699-700, citing Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989). Thus, our express holding was that a PCRA petitioner has an enforceable right to effective post-conviction counsel. 720 A.2d at 700. Accord Pursell, 724 A.2d at 302 (holding that our Court may review claims of ineffective assistance of PCRA counsel in a capital appeal from the denial of PCRA relief because it is the first opportunity to challenge the stewardship of PCRA counsel).

The concurring opinion suggests that these cases are no longer good law in that they represent the jurisprudence of this Court prior to our seminal decision in Grant, which abolished the rule that a defendant must raise claims of counsel's ineffectiveness at the first available opportunity when new counsel entered the case. This reasoning is flawed for two significant reasons. First, Grant did not involve a collateral appeal pursuant to the PCRA, and instead involved a direct appeal in which we abrogated the rule of law that previously required a defendant to raise a claim of ineffectiveness of counsel at the first opportunity, i.e., on direct appeal. Simply put, Grant could not have overruled law regarding a PCRA petitioner's enforceable right to counsel, when it did not address such issue. Thus, we decline to hold that Grant sub silentio overruled the holdings of Albrecht and Pursell, which established that there is an enforceable right to effective assistance of counsel in a first PCRA petition. Secondly, we respectfully point out that our decision in Hall was decided in 2005, years after Grant was decided. Our Court was keenly aware of Grant when we ruled in Hall that the petitioner could pursue his challenges to PCRA counsel's stewardship on appeal from the denial of PCRA relief. Thus, we are not only guided by Hall, but are bound by it.

The approach to examining claims of PCRA counsel ineffectiveness taken herein may not be ideal, but it is essential to preserve an enforceable right to effective PCRA counsel. Otherwise, we would be perpetrating little more than a myth that the right to effective PCRA counsel exists, when, in reality, such right would be illusory.

As Appellant's issues are each identified in varying levels of detail and development, we shall independently review each allegation to determine whether it is cognizable under the PCRA and whether it is properly framed to warrant merits review. We begin with the claims challenging Appellant's conviction of first degree murder.

II. Batson Claim

Appellant's first claim is that his conviction should be vacated because the prosecutor exercised her peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, supra. The Commonwealth properly notes that this claim is waived as it was not raised at trial. 42 Pa.C.S. § 9544(b). Further, it was not raised in Appellant's PCRA petition, but was presented to the PCRA court after the request for a new trial was denied and a new penalty hearing was granted.

This does not end our discussion, however, because Appellant has raised in his appellate brief filed in this Court the separate issue of PCRA counsel's ineffectiveness for failing to properly raise and litigate in the PCRA court the issue of trial counsel's ineffectiveness for failing to raise the Batson claim. As this issue is properly framed pursuant to Hall, we shall determine whether there is any arguable merit to the claim of trial counsel ineffectiveness, which necessitates an examination of the underlying Batson claim.*fn13

In Batson, the United States Supreme Court held that a prosecutor's challenge of potential jurors solely on account of their race violates the Equal Protection Clause. 476 U.S. at 89. Batson set forth a three-part test for examining a criminal defendant's claim that a prosecutor exercised peremptory challenges in a racially discriminatory manner. Commonwealth v. Harris, 817 A.2d 1033, 1042 (Pa. 2002); Batson, 476 U.S. at 97. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race. Id. Second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue. Id. Third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Id.

Generally, in order for a defendant to satisfy the first requirement of demonstrating a prima facie Batson claim, he must establish that he is a member of a cognizable racial group, that the prosecutor exercised peremptory challenges to remove from the venire members of his race,*fn14 and that other relevant circumstances combine to raise an inference that the prosecutor removed the jurors for racial reasons. Harris, 817 A.2d at 1042; Batson 476 U.S. at 96. Whether the defendant has carried this threshold burden of establishing a prima facie case should be determined in light of all the relevant circumstances. Id.

In cases like the one before us, however, where no Batson challenge was raised during the voir dire process, we have held that a post-conviction petitioner is not entitled to the benefit of Batson's burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination by a preponderance of the evidence. Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004.), citing McCrory v. Henderson, 82 F.3d 1243, 1251 (2nd Cir. 1996) ("Batson's burden-shifting formula makes sense when applied to an objection raised sufficiently promptly that the attorney exercising the challenges can reasonably be expected to remember the reasons for the challenges. On the other hand, it would be altogether unreasonable to shift the burden of explanation if the objection is so tardily made that the challenging attorney cannot be reasonably expected to remember."). Additionally, in cases involving an unpreserved claim of discrimination in jury selection, this Court has generally enforced a requirement of a full and complete record of the asserted violation. Uderra, 862 A.2d at 83, citing, Commonwealth v. Spence, 627 A.2d 1176, 1182-83 (Pa. 1993). We have held that, under such circumstances, the defendant must present a record identifying the race of the venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury selected. Id.*fn15 *fn16

As noted, Appellant did not raise a Batson claim at trial, on direct appeal, or in his PCRA petition. Thus, the only viable claim for review is that of PCRA counsel ineffectiveness for failing to challenge trial counsel's omission in this regard. Due to this procedural posture, no evidentiary hearing has been conducted, although Appellant currently requests that we remand the matter for such a proceeding. To determine PCRA counsel's effectiveness, our inquiry at this juncture concerns whether Appellant's proffer, if believed, would establish actual, purposeful discrimination, Uderra, 862 A.2d at 87, and whether an evidentiary hearing is required on such claim. Pa.R.Crim.P. 907 provides that a PCRA petition may be denied without a hearing when the court determines "that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings . . . ." Pa.R.Crim.P. 907(1).

Initially, we note that Appellant has complied with the Spence requirement by providing a full and complete record and has demonstrated that the prosecutor exercised 12 of her 20 available peremptory strikes against 9 African Americans, 2 Caucasians, and 1 Hispanic;*fn17 that all of the 11 venirepersons who were acceptable to the prosecution, but were struck by the defense were Caucasian; and that the final racial composition of the jury was 7 African Americans, 4 Caucasians, and 1 Hispanic, with the alternate jurors being 1 African American and 1 Caucasian.

In support of the Batson claim, Appellant makes several distinct arguments that require separate examination. He first asserts that he is an African American man and that the prosecutor engaged in a pattern of exercising her peremptory strikes primarily against African Americans. Relying on information garnered from the jury questionnaires, Appellant contends that 10 out of 12, or 83%, of the prosecutor's peremptory strikes were exercised against "people of color," when such individuals constituted only 51% of jury pool.

Appellant's calculations, however, are misleading. The record discloses that the prosecutor exercised 9 peremptory challenges against African Americans, but actually accepted 7 African Americans to serve on the jury panel, while having 9 of her 20 available peremptory challenges remaining. The prosecutor further accepted an African American as an alternate juror. While it is clear that the prosecutor peremptorily struck more African Americans than Caucasians, this fact, in and of itself, is insufficient to demonstrate purposeful discrimination when considering the totality of the circumstances. See Commonwealth v. Cook, 952 A.2d 594, 608 (Pa. 2008) (holding that the racial composition of the jury and the race of the victim and of the defendant serve as circumstantial evidence relevant to evaluation of a Batson claim); Spotz, 896 A.2d at 1212-14 (holding that prosecutor's acceptance of 8 female jurors, 4 of whom were impaneled and 4 of whom were peremptorily struck by defense, were relevant factors in determining that defendant failed to demonstrate a prima facie case of gender discrimination); and Commonwealth v. Jones, 668 A.2d 491, 518 (Pa. 1995) (holding that the presence of 6 females on the jury and 2 female alternates were relevant factors in determining that defendant failed to demonstrate a prima facie case of gender discrimination). Moreover, the record does not contain any questionable remarks made during jury selection that would indicate a motive to discriminate based on race, nor is this case racially sensitive as Appellant and the victim share the same race. See Spotz, 896 A.2d at 1213-1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to whether the prosecutor made any questionable remarks during jury selection).

We further find that Appellant's proffer of additional allegations, if believed, is insufficient to establish actual, purposeful discrimination. Appellant contends: (1) that the prosecutor improperly exercised a "for-cause" challenge against African American potential juror Shirley Morris; (2) that there were obvious reasons for the prosecutor's striking of Caucasian jurors, while African Americans Linda Lamar and Roxanne Tully were struck when they possessed characteristics that generally would be favorable to the Commonwealth; (3) that the same prosecutor who tried Appellant's case in 1999 engaged in discriminatory jury selection practices when she prosecuted Donald Hardcastle in 1982;*fn18 (4) that the prosecutor possessed personal notes in Hardcastle in 1982 and in Commonwealth v. Tilley, Dec. Term, 1985, Nos. 1078-82, which purportedly evidenced her consciousness of race during jury selection; (5) that Appellant's own statistical analysis of 23 unrelated homicide cases tried by his prosecutor indicates racially disparate exercise of peremptory challenges; and (6) that there was a "culture of discrimination" in the Philadelphia District Attorney's Office.*fn19

These claims are not persuasive. The prosecutor's "for-cause" challenge exercised against African American Shirley Morris has no relevance to the prosecutor's exercise of peremptory challenges, particularly because Ms. Morris was ultimately excused by agreement of both parties.*fn20 Further unavailing is Appellant's claim that two African Americans, Linda Lamar and Roxanne Tully, were peremptorily struck when they "possessed characteristics that normally would be favored by the Commonwealth." Appellant's Brief at 14. The characteristics upon which Appellant relies are Ms. Lamar's employment as a civilian secretary for the Philadelphia Authority Police Department and Ms. Tully's employment by the Internal Revenue Service. These facts do not suggest that Ms. Lamar or Ms. Tully would necessarily be favorable to the Commonwealth or that the prosecutor's peremptory strikes of such individuals were improperly based on race.

Additionally, the fact that Appellant's prosecutor was found to have violated Batson during the trial of Donald Hardcastle in 1982 is too tenuous to demonstrate that the prosecutor impermissibly struck jurors during Appellant's voir dire 17 years later, in 1999. In fact, the trial in Hardcastle occurred before Batson was even decided. Similarly irrelevant is the fact that Appellant's prosecutor may have kept notes in two unrelated cases in 1982 (Hardcastle) and in 1985 (Tilley), which evidenced her consciousness of race during jury selection. We also find little value in Appellant's personal statistical analysis of 23 ...


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