IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
December 28, 2009
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
ANTHONY FLETCHER, APPELLANT
Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0360011-1992, dated April 26, 2007.
The opinion of the court was delivered by: Madame Justice Greenspan
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED: May 6, 2009
This is a collateral capital appeal from an order dismissing Appellant Anthony Fletcher's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.*fn1
Factual and Procedural History
Appellant's convictions arose out of the shooting death of Vaughn Christopher on March 2, 1992, at approximately 1:00 a.m., in the 2000 block of South 60th Street in Philadelphia.*fn2 Appellant shot Christopher because Christopher failed to pay for drugs Appellant had given him. The shooting was witnessed by several persons including Natalie Grant, Angelic Kirkman, and Ronald "Skeet" Williams. In summary, the witnesses testified that Appellant approached Christopher and asked him for the money Christopher owed him.*fn3 Without giving Christopher an opportunity to respond, Appellant reached into his coat, pulled out a silver.380 caliber semi-automatic handgun, and then fired one shot at Christopher's feet. Christopher immediately began walking away from Appellant. When Christopher was about seven feet from Appellant, Appellant fired two more shots at him. One of the bullets hit Christopher in his thigh and the other hit him in his right flank. The bullet that struck Christopher in his flank caused damage to his right kidney, liver, and chest wall. Christopher stumbled away and collapsed against a parked car. He asked Williams to help him but Williams declined.
Christopher managed to rise to his feet and walk several steps but then fell to the ground and lapsed into unconsciousness. Police arrived soon thereafter and transported Christopher to a nearby hospital where he died a day and a half later.
Following the shooting, Appellant returned to his home and changed his clothes. He then returned to the scene of the shooting and remarked to Grant and Williams that, "You all better tell that boy he better not tell who shot him." Almost a week later Appellant approached Grant and warned her not to speak to the police. Afraid for her own safety and that of her family, Grant promised Appellant that she would not speak to the police about the shooting.
Police arrested Appellant on March 10, 1992, and charged him with, inter alia, murder, generally, and possessing an instrument of crime (PIC). Appellant then agreed to speak to police. After receiving Miranda*fn4 warnings, Appellant told the police that he approached Christopher and punched him in the head because Christopher and another man had robbed him during a dice game. Appellant further remarked that Christopher pulled out a gun, which prompted him to grab for Christopher's weapon. Appellant stated that he was able to gain control of Christopher's weapon and fired it twice at Christopher's legs.
On January 29, 1993, a jury convicted Appellant of first-degree murder (18 Pa.C.S. § 2502(a)) and PIC (18 Pa.C.S. § 907). Following the recording of the verdict and a penalty hearing, the jury found that the aggravating circumstances outweighed the mitigating circumstances and fixed the penalty at death.*fn5 See 42 Pa.C.S. § 9711(c)(iv) (the verdict must be a sentence of death if the jury unanimously finds one or more aggravating circumstances outweigh any mitigating circumstances).
Following the penalty hearing, trial counsel filed post-verdict motions pursuant to former Rule of Criminal Procedure 1123.*fn6 Appellant thereafter requested new counsel and Willis W. Berry, Jr., Esquire, was appointed to represent Appellant.*fn7 Appellant, who had filed numerous pro se motions seeking relief from his convictions, petitioned to have Mr. Berry removed as counsel and to proceed pro se. The trial court conducted an extensive colloquy and granted Appellant the right to represent himself. N.T. 4/4/95, 20-31; Commonwealth v. Fletcher, 896 A.2d 508, 512-13 (Pa. 2006) (Fletcher II) (setting forth excerpts from the colloquy). Mr. Berry was then appointed to be standby counsel.
Mr. Berry and Appellant filed several supplemental post-verdict motions and the trial court held hearings at which Appellant represented himself and standby counsel acted in a supplemental capacity. The trial court eventually denied Appellant's motions. On February 21, 1996, Appellant, represented by new counsel, John Cotter, Esquire, was formally sentenced to death. Appellant, still represented by Mr. Cotter, filed a direct appeal in this Court. On March 24, 2000, this Court affirmed the judgment of sentence. Commonwealth v. Fletcher, 750 A.2d 261 (Pa. 1999) (Fletcher I).*fn8 Appellant requested reargument but that request was denied on May 15, 2000. Appellant then filed a petition for a writ of certiorari in the United States Supreme Court which was also denied. Fletcher v. Pennsylvania, 531 U.S. 1035 (2000) (per curiam).
Appellant filed a timely pro se PCRA Petition. Almost one year later Appellant filed a 245-page Amended Petition raising twenty primary issues, each of which was comprised of several sub-issues. The matter was assigned to the Honorable John Milton Younge for disposition. Judge Younge dismissed most of Appellant's claims but granted Appellant an evidentiary hearing on the following five claims:
1. Trial counsel was ineffective when he failed to present compelling exculpatory testimony from Dr. Hydow Park, the pathologist who performed the decedent's autopsy and also failed to expose a critical error by the testifying pathologist, Dr. [Ian] Hood;
2. The police in this case lost or withheld critical physical evidence regarding the decedent's clothing, and trial counsel was ineffective for failing to investigate and raise this issue of deficient police work at trial;
3. Trial counsel was ineffective for failing to investigate, develop, and present significant mitigating evidence, including mental health evidence;
4. Trial counsel was ineffective for failing to object where the jury found that the aggravating circumstance of "grave risk of death" to a person other than the victim existed based upon improperly admitted evidence, unconstitutionally broad jury instructions and improper argument by the prosecution; and
5. Trial counsel was ineffective for failing to object to the trial court's instruction regarding the possibility of parole. PCRA Court's Opinion, 6/9/04 at 2.
Following an evidentiary hearing, Judge Younge granted Appellant a new trial on Appellant's first claim above but denied relief on the remaining issues. Judge Younge also denied relief on the remainder of the claims set forth in Appellant's Amended Petition.*fn9 The Commonwealth appealed to this Court and on April 21, 2006, this Court reversed Judge Younge's order granting a new trial.*fn10 This Court held that Appellant had waived review of the claim on which the PCRA court granted relief because it had not been raised in any of the post-verdict motions filed prior to sentencing. Fletcher II, 896 A.2d at 521.*fn11 This Court also ruled that even if the claim had not been waived, no relief was due because Appellant failed to establish prejudice.*fn12 Fletcher II, 896 A.2d at 522-523. This Court remanded the matter so that the PCRA court could address any unresolved matters. Fletcher II, 896 A.2d at 523.
On remand, Judge Younge held, based on the decision in Fletcher II and his review of the record, that nineteen of Appellant's claims had either been waived or previously litigated. PCRA Court's Opinion, 1/29/08, 5-6.*fn13 Judge Younge also determined that he had no legal authority to rule on Appellant's claim that this Court failed, on direct appeal, to conduct an appropriate proportionality review of the death sentence imposed on Appellant. PCRA Court's Opinion, 1/29/08, 6. The instant appeal followed.
The PCRA provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences. 42 Pa.C.S. § 9542. "A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa. 2007). One of these circumstances is ineffective assistance of counsel. 42 Pa.C.S § 9542(a)(2)(ii) (the PCRA provides relief to those individuals whose convictions or sentences "resulted from. 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"). To obtain relief under this provision, a defendant must plead and prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) counsel's actions resulted in prejudice to petitioner. Commonwealth v. Rodney Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Charles Pierce, 527 A.2d 973 (Pa. 1987).*fn14 "A chosen strategy will not be found to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.'" Commonwealth v. Rasheed Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Commonwealth v. Michael Pierce, 786 A.2d 203, 213 (Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694 (1984). Counsel is presumed to have been effective and the burden of rebutting that presumption rests with the petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000).
A defendant is not entitled to PCRA relief on claims that have been previously litigated or waived.*fn15 42 Pa.C.S. § 9544. Here, Appellant's direct appeal was filed before this Court issued its opinion in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that review of claims alleging ineffective assistance of counsel should generally be deferred until the post-conviction stage of proceedings. Appellant was represented by new counsel on direct appeal and was thus required to raise claims of trial counsel ineffectiveness under the pre-Grant framework. Therefore, on this collateral attack, Appellant is limited to claims of ineffective assistance of appellate counsel; claims respecting trial counsel are relevant only insofar as they prove a claim of appellate counsel ineffectiveness. Respecting such "layered" claims, Appellant must prove Strickland/Pierce ineffectiveness as to both trial and appeal counsel, in order to prove the cognizable claim of appellate counsel ineffectiveness.*fn16
The concept of "layering" ineffectiveness claims and the requirements that must be met to obtain relief on a "layered" claim of ineffectiveness were recently discussed by this Court in Commonwealth v. Daniels, 963 A.2d 409 (Pa. 2009):
In Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (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. 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 A.2d at 1022 (emphasis in original). To "prove" that a layered claim of appellate counsel's ineffectiveness has arguable merit, the petitioner must develop and prove all three prongs of the Pierce test as to the ineffectiveness of trial counsel. Id.
Daniels, 963 A.2d at 419-20 (footnote omitted) (emphasis in original). In other words, in order to be eligible for relief on his claims of ineffectiveness, Appellant must establish that:
1) trial counsel was ineffective using the three-part test set forth above; and 2) all subsequent counsel were ineffective under the identical test for failing to argue that all prior counsel had been ineffective for not raising the claim at issue. Rodney Collins, 957 A.2d at 244; McGill, 832 A.2d at 1023.
Because Appellant was granted the right to proceed pro se during the post-verdict phase of the proceedings, he cannot successfully "layer" any claims alleging trial counsel's ineffectiveness that he did not raise in a post-verdict motion because review of such "layered" claims necessarily requires an assessment of whether Appellant himself was ineffective for not including the claims in a post-verdict motion. The law prohibits a defendant who chooses to represent himself from alleging his own ineffectiveness. Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Fletcher II, 896 A2d at 518; Commonwealth v. Bryant, 855 A.2d 726, 736-37 (Pa. 2004). The fact that standby counsel was appointed to assist Appellant does not alter this conclusion. Fletcher II, 896 A.2d at 518. Thus, Appellant cannot succeed on any claim raised herein alleging either trial error or predicated on the ineffective assistance of trial counsel that Appellant, acting pro se, did not preserve in a post-verdict motion. Appellant's inability to raise his own ineffectiveness precludes him from presenting a properly layered ineffectiveness claim, except insofar as he preserved a claim of trial counsel ineffectiveness on post-verdict motions, only to have appellate counsel default it on appeal.
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 level of deference accorded to the post-conviction court may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined." Commonwealth v. Kenneth Williams, 950 A.2d 294, 299 (Pa. 2008). We review the following issues.
I. WHETHER THIS COURT SHOULD ABROGATE THE RULE PROHIBITING A DEFENDANT WHO DECIDES TO ACT AS HIS OWN ATTORNEY FROM ALLEGING HIS OWN INEFFECTIVENESS AND THAT OF STANDBY COUNSEL
Appellant first argues that the PCRA court erred in relying on Fletcher II to hold that several of his claims had been waived or previously litigated because Appellant represented himself during the post-verdict stage of the proceedings and failed to preserve many of the issues he now presents for review by not including them in a post-verdict motion. This issue is relevant to the resolution of some of Appellant's claims because, in order to prove that appellate counsel was ineffective for failing to raise a defaulted trial level claim, Appellant must establish that either he himself was ineffective or that standby counsel was ineffective for not properly preserving several of the issues he now raises on appeal. The law is clear that a defendant cannot allege his own ineffectiveness or that of standby counsel. See Faretta, 422 U.S. at 834 n.46; Bryant, supra. Thus, any claim not raised in a post-verdict motion cannot serve as the basis for relief because relief is dependent on Appellant's establishing his own ineffectiveness for not raising the claim, which the law precludes him from doing.
Appellant claims that the PCRA court erred in finding waiver because it "mechanically applied this Court's holding that Mr. Fletcher had waived all ineffectiveness claims by briefly representing himself during a post-verdict hearing--a holding that erred on the law and misconstrued the facts." Appellant's Brief, 8. In the absence of new or additional evidence, or any legal support, Appellant essentially requests that we revisit this Court's holding in Fletcher II. We decline this invitation and conclude that Appellant is not entitled to relief on any claim that was not raised in a post-verdict motion and thus cannot be properly "layered" as required.
In the alternative, Appellant offers a host of additional reasons why the rule should not apply to his case. Appellant asserts that he did not actually represent himself during post-verdict motions and when he attempted to do so the trial court rebuffed him. Appellant contends that the record supports his position by showing that standby counsel acted during the post-verdict stage as if he were Appellant's counsel and that the trial court violated his constitutionally guaranteed right to represent himself by limiting him in his attempt to present various claims and arguments pro se. Appellant's Brief, 8-12.*fn17
Appellant also argues that he could not have relinquished any ineffectiveness claims because at the time he waived his right to counsel, the "relaxed waiver" doctrine applied and this Court excused the failure to adequately preserve claims for appellate review in capital cases.*fn18 Appellant's Brief, 11 n.3. Appellant further claims that under "relaxed waiver" it would have been reasonable for him to believe that his own ineffectiveness would be excused on appeal. Appellant's Brief, 11 n.3.
Appellant further argues that he was incompetent to waive his right to counsel and that even if he was competent, the waiver colloquy was defective. Appellant bases his claim of incompetence on "known mental difficulties and incomprehension of the law," and on the failure of the trial court to advise him of the elements of the crimes with which he was charged and their possible sentences. Appellant's Brief, 12.
Appellant's claim that the waiver colloquy was inadequate is premised on an assertion that the trial court failed to: 1) ascertain during the colloquy whether Appellant was sufficiently competent to understand the rights he was waiving by representing himself; 2) advise him of the elements of the crimes and possible sentences with which he was charged; and 3) discover why he decided to represent himself. Appellant's Brief, 13-15.
Next, Appellant contends that the rule prohibiting a defendant who voluntarily has decided to forego his right to counsel from later alleging his own ineffectiveness is violative of due process because: (1) it effectively punishes the defendant for exercising a right guaranteed him by the Sixth Amendment; (2) it is likely to lead to an unjust result; and (3) when combined with Pennsylvania's layering doctrine, it cuts off potentially meritorious claims of counsel's ineffectiveness. Appellant's Brief, 15. Appellant explains that it is simply unfair and unjust to prohibit a defendant from raising ineffectiveness claims because of a decision to forego counsel, a constitutionally guaranteed right, where there exist numerous claims of ineffectiveness having presumptive merit.
Finally, Appellant contends that the rule proscribing a defendant from alleging that standby counsel was ineffective deprives a defendant of due process at least with respect to those duties assigned to standby counsel. Appellant's Brief, 17. Appellant also claims that the application of the rule is especially harsh when, as here, standby counsel acts as Appellant's attorney and not as standby counsel.
The Commonwealth argues that we should summarily reject the many arguments Appellant presents in support of his request that we revisit the decision that Appellant waived claims he failed to raise while acting pro se. The Commonwealth first argues that, under the law in effect when Appellant was convicted, any claim not raised in a post-verdict motion was waived. See Commonwealth v. Green, 709 A.2d 382, 383 n.4 (Pa. 1998) (indicating that defendants convicted prior to January 1, 1994 waived for purposes of appellate review any issue not included in a post-verdict motion).*fn19 In addition, the Commonwealth argues that a defendant who has opted to represent himself and has waived claims of ineffectiveness by failing to timely raise them cannot surmount that waiver by presenting "layered" claims of ineffectiveness. See Commonwealth v. Tilley, 780 A.2d 649, 653 n.9 (Pa. 2001); Bryant, 855 A.2d at 736-37, 740. Commonwealth's Brief, 12.
The Commonwealth also asserts that the "law of the case" doctrine precludes Appellant's requested relief.*fn20 According to the Commonwealth, since the issue of whether Appellant waived all claims of trial counsel's ineffectiveness not presented in a post-verdict motion was decided against Appellant by this Court in a previous appeal, we may not now alter or amend that ruling. Commonwealth's Brief, 12-13.
The Commonwealth further argues that even if the "law of the case" doctrine does not apply, Appellant is not entitled to relief in any event. The Commonwealth submits that the record of the waiver colloquy and the transcripts of the hearings on Appellant's post-verdict motions belie Appellant's assertion that he did not represent himself during those proceedings. Fletcher II, 896 A.2d at 521. The Commonwealth asks us to categorically reject Appellant's argument that his waiver was invalid because of his purported belief that the "relaxed waiver" doctrine excused his own ineffectiveness. The Commonwealth states that the record shows Appellant acknowledged he understood his failure to present a claim would result in waiver. Commonwealth's Brief, 15. Finally, the Commonwealth contends that Appellant's assertion that the trial court interfered with his right to represent himself entitles Appellant to no relief because Appellant failed to raise this issue either on direct appeal or in his PCRA petition. Commonwealth's Brief, 15.
With respect to Appellant's claim that he was incompetent and could not proffer a valid waiver of his right to counsel, the Commonwealth points out that Appellant has failed to present any evidence to support this assertion. In addition, the Commonwealth argues that the record demonstrates Appellant was not suffering from any mental defect rendering him incapable of proffering a valid waiver of counsel. It further argues that Appellant waived the claim because he refused to undergo a second mental health evaluation.*fn21
Commonwealth's Brief, 18-19. The Commonwealth further contends that the waiver colloquy was sufficiently complete because it was obvious to the trial court that Appellant was competent, and the court had no legal obligation to explain to Appellant the elements of the crimes or their sentences at the post-verdict stage of the proceedings or to inquire of Appellant why he wished to proceed pro se.*fn22
The Commonwealth requests that we reject Appellant's two due process claims because Appellant did not provide legal authority or provide the standards applicable to their review. Commonwealth's Brief, 22, 23-24. In addition, the Commonwealth contends that Appellant's assertion that a pro se defendant should be permitted to raise his own ineffectiveness is "contrary to controlling authority." Commonwealth's Brief, 22 (citing Faretta, 422 U.S. at 834 n.46 (holding that a defendant who represents himself cannot thereafter complain that he was the victim of ineffective counsel)). The claim that a defendant should be permitted to challenge the effectiveness of standby counsel is meritless, according to the Commonwealth, because this Court relied on controlling authority in Fletcher II to hold that Appellant was not entitled to relief and because Appellant provided non-controlling legal support for this claim. Commonwealth's Brief, 24.
Finally, the Commonwealth has provided the following summary of reasons why we should reject this claim:
As both this Court and the PCRA court correctly concluded, any claim defendant did not present in post-verdict motions is waived and cannot be reviewed under the guise of "layered ineffectiveness." Defendant--who bears the burden of pleading in his petition and proving that his claims are not waived, 42 Pa.C.S. § 9543 (a)(3), and of identifying where each issue he presents has been preserved, Pa.R.A.P. 2117(c), 2119(e)--has nonetheless failed to identify any of his instant claims as having been preserved in those motions. Accordingly, each of his claims should be deemed waived.
Commonwealth's Brief, 24-25.
Upon careful review of the briefs and arguments submitted by the parties, we hold that Appellant's argument that we should not adhere to our prior holding in Fletcher II is baseless. In Fletcher II this Court explicitly determined that Appellant acted as his own attorney during the post-verdict motions stage of the proceedings and that standby counsel's limited participation and the trial court's actions did not infringe or limit Appellant's ability to represent himself and present his claims. 896 A.2d at 522-23. Since this precise claim was raised previously, the "law of the case" doctrine clearly applies. We decline the invitation to revisit the issue of whether Appellant did, in fact, represent himself at post-verdict motions. See Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995).*fn23 While there are exceptions to the "law of the case" doctrine, Appellant has satisfied none; he has not presented any new facts, alleged any change in the law, or established that the decision reached in Fletcher II was erroneous such that these exceptions would apply. Starr, 664 A.2d at 1332.
Next, Appellant's assertions that he was incompetent to effectuate a valid waiver of counsel and that the waiver colloquy was deficient are not reviewable because Appellant has not preserved them by presenting them in a PCRA petition. See Pa.R.A.P. 302(a); Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) ("Claims not raised in the PCRA court are waived and cannot be raised for the first time on appeal to this Court.").*fn24
Appellant's due process claims involving the inability to raise his own ineffectiveness or that of standby counsel do not entitle him to relief because the law is clear that a defendant who chooses to represent himself has no recourse if he or standby counsel has been ineffective. In Fletcher II, this Court held "[Appellant's] pro se actions precluded future claims of ineffective assistance of trial counsel." Fletcher II, 896 A2d at 522. See also Faretta, 422 U.S. at 834 n.46; Bryant, 855 A.2d at 736-37, 741; Commonwealth v. Appel, 689 A.2d 891, 904 (Pa. 1997). Our holding in Fletcher II was based on the United States Supreme Court's prior conclusion in Faretta where the Court explained that permitting pro se representation was a constitutional necessity because forcing experienced and competent legal representation on an unwilling defendant could be realized only "imperfectly." "The right to defend is personal" since it is the defendant that must bear the personal consequences of his representation. "And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'" Faretta, 422 U.S. at 834. Thus, the Court explained, purely as a practical matter, in exercising one's right to self-representation, he or she relinquishes many of the benefits associated with the right to counsel, including the future right to allege ineffectiveness of counsel.*fn25 Also, were it otherwise, a pro se defendant could guarantee himself a new trial by intentionally being ineffective. Bryant, 855 A.2d at 736-37 (finding compelling trial court's observation that allowing a pro se defendant to raise his own ineffectiveness would make a mockery of the judicial system).
Appellant's request that we should apply the "relaxed waiver" doctrine and overlook his ineffectiveness during the post-verdict motions stage of the proceedings is equally unavailing. He argues the doctrine was in effect when he was tried and when he litigated his post-verdict motions, and he thus had a reasonable basis to assume that his own ineffectiveness would not be an impediment to review of any issue he failed to raise or preserve through his own ineffectiveness. We have categorically rejected this argument on numerous occasions and again do so here. See Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).
We hold that Appellant cannot obtain relief on any issue he failed to raise in a post-verdict motion while acting pro se. We now undertake a review of Appellant's remaining claims keeping in mind that Appellant is not entitled to relief on any claim that has not been properly preserved or has been previously litigated. See 42 Pa.C.S. § 9544(a).
II. WHETHER APPELLATE COUNSEL*fn26 WERE INEFFECTIVE IN NOT RAISING TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT MATERIAL EVIDENCE DURING THE GUILT PHASE OF THE TRIAL; INCLUDING EVIDENCE UNDERMINING MOTIVE EVIDENCE AND EVIDENCE THAT THE VICTIM WAS KNOWN TO CARRY A GUN
Appellant argues that appellate counsel were ineffective because they did not raise trial counsel's ineffectiveness in failing to introduce certain evidence and investigate adequately several of the Commonwealth's witnesses. Specifically, Appellant claims that trial counsel failed to present evidence that would have "eviscerated" the Commonwealth's theory of the motive for the killing, i.e. the victim mishandled a package of drugs for Appellant. Specifically, Appellant claims that trial counsel should have procured and introduced evidence demonstrating that the victim did not sell drugs and was known to carry a gun. Appellant further asserts that trial counsel was ineffective for not introducing character evidence of Appellant's reputation for non-violence, and evidence demonstrating that the police failed to collect all relevant evidence and conducted an inadequate and shoddy investigation. Relatedly, Appellant contends that appellate counsel were ineffective for not raising and preserving these claims regarding the ineffectiveness of trial counsel. Appellant's Brief, 17-27.
Appellant is not entitled to relief on his claims that trial counsel was ineffective for failing to discover and present evidence that the victim did not sell drugs, and was known to carry a gun, because they were not raised in a post-verdict motion.*fn27 Because Appellant is precluded from raising his own ineffectiveness and that of standby counsel, he cannot satisfy the requirement that he prove that all prior counsel were ineffective, as he must do in order to obtain relief on these claims. See Faretta, supra; Bryant, supra.*fn28
Appellant next claims that trial counsel was ineffective for not presenting evidence of good character and a reputation for being peaceful and non-violent. See Appellant's Memorandum of Law in Support of Petition for Post-Conviction Relief, 9/8/06, at 57-60. Such testimony, Appellant contends, would have bolstered his assertion that he did not instigate the encounter with the victim and that the shooting occurred while Appellant was attempting to defend himself. Appellant's Brief, 23.
Although Appellant raised this claim in a post-verdict motion, the claim was not raised in Appellant's PCRA petition. The first time the issue appears is in a Memorandum of Law in Support of Petition for Post-Conviction Relief filed on September 8, 2006, after this Court issued its decision in Fletcher II and remanded the matter to the PCRA court for the preparation of an opinion addressing Appellant's claims and making, where necessary, credibility determinations. See Fletcher II, 896 A.2d at 522-23 (ordering remand for the preparation of an opinion). Since this claim was not set forth in Appellant's PCRA petition and the order remanding the case did not extend permission to Appellant to file additional claims, this claim has been waived. See Commonwealth v. Rainey, 928 A.2d 215, 226 n.9 (Pa. 2007) (holding that PCRA claim raised for the first time following a remand the PCRA court for preparation of an opinion was waived).*fn29
Appellant lastly contends that previous counsel were ineffective for failing to raise and preserve issues pertaining to the investigation of the scene of the shooting conducted by the police and the failure of the police to secure the victim's clothing after he was taken to a hospital. With respect to the victim's clothing, Appellant argues that trial counsel was ineffective because the police had a duty to collect the victim's clothes as they may have had gun powder residue on them, the presence of which would have corroborated Appellant's claim that the victim was shot at close range during a struggle. He also asserts that trial counsel should have sought to have the trial court sanction the Commonwealth for not obtaining the victim's clothing and, at a minimum, request that the trial court give the jury an instruction on missing evidence or one advising it that it could infer that the missing clothing had gun powder residue on it. Appellant also faults counsel for not arguing that the police were negligent for waiting twenty-four hours after the shooting to secure and examine the scene of the shooting, and that the Commonwealth engaged in prosecutorial misconduct and suborned perjury by eliciting testimony implying that the scene of the shooting was examined by police within hours after the shooting. Appellant's Brief, 24-27.
The Commonwealth argues that since the police had no duty to secure the victim's clothing, trial counsel was not ineffective for not raising as an issue the failure of the police to obtain the clothing. In addition, the Commonwealth points out that following the shooting, the victim was taken to a nearby hospital and into an operating room, where his clothing was removed from his body. Hospital records, according to the Commonwealth, do not indicate what happened to the victim's clothing thereafter. The Commonwealth also notes that the victim lingered for some time following the operation and that after he died, the police attempted to secure the victim's clothing but were unable to do so. Commonwealth's Brief, 32-33. The Commonwealth further contends that since the claim of negligence could not be proved and counsel was aware that the police did not secure the clothing and used that fact to cast doubt on the Commonwealth's case by arguing that the Commonwealth could not disprove that the shooting occurred at close range, counsel was not ineffective for failing to raise a claim of negligence with respect to the missing clothing.
Finally, the Commonwealth claims that since Appellant failed to provide case law to support his assertion that trial counsel was ineffective for not requesting sanctions or jury instructions, no relief is due on that aspect of his claim. Commonwealth's Brief, 32-33, 35.
Regarding Appellant's assertion that the police conducted a shoddy investigation by failing to examine the scene of the shooting for twenty-four hours, the Commonwealth responds that police originally believed that the shooting occurred where the victim was first discovered by police. It was only later that police learned that the victim had been shot somewhere else and that upon being so informed, police immediately secured the area where the shooting occurred and examined it for evidence. Commonwealth's Brief, 33-34. The Commonwealth also notes that Appellant has failed to identify anything police would have found at the scene had it been immediately secured and examined.
Appellant failed to preserve at the post-verdict motion stage his claims that trial counsel was ineffective for failing to assert that 1) police were negligent in not securing the victim's clothing; 2) police conducted a "shoddy" investigation of the scene; and 3) sanctions or jury instructions with respect to these issues were warranted. Appellant cannot succeed on his current, "layered" ineffectiveness claims of appellate counsel ineffectiveness because the underlying claims respecting trial counsel, which are necessary to prove appellate counsel ineffective, were defaulted. See Fletcher II.*fn30
Appellant did preserve a claim on post-verdict motions regarding the manner in which police conducted their investigations. Specifically, Appellant alleged that trial counsel was ineffective for not adequately investigating the "background and circumstances surrounding the investigation." The gist of the claim was that the police intentionally falsified their testimony with respect to their investigation of the scene of the shooting and that the Commonwealth presented perjured testimony regarding the police investigation of the scene, not that police acted negligently. See Additional Supplemental Post-Verdict Motion, filed 10/1/95,12. To the extent that Appellant is repeating his preserved underlying claim as the basis for his current and cognizable derivative claim of appellate counsel ineffectiveness, we will address it on its merits. See Additional Supplemental Post-Verdict Motion, filed 10/1/95, 12-15.
According to Appellant, evidence that the police lied and the Commonwealth suborned perjury with respect to the police investigation of the scene is found in certain questions posed to Detective Morton, and his responses thereto, which concerned when the detective was assigned to the case and when he examined the scene of the shooting. N.T. 1/19/93, 108-123. In posing these questions, the prosecutor prefaced them with the date of March 2, 1992, the date of the shooting, instead of the correct date of March 3, 1992, the date the detective actually examined the scene.*fn31 It is Appellant's view that this misstatement was intentional and was intended to mislead the jury with respect to where and how the shooting occurred. Appellant argues that trial counsel was ineffective for failing to conduct an investigation or raise an issue with respect to the noted discrepancy.
The trial court concluded that this claim was without merit. Trial Court's Opinion, 5/13/97, 80-81. The record demonstrates that the discrepancy was clearly unintentional and, more importantly, that Appellant was not prejudiced thereby since the jury was well aware of when the shooting occurred, the Commonwealth did not attempt to mislead the jury with respect to this point, and Appellant has failed to establish that had the right date been used, the outcome of the proceedings would have been different. Since trial counsel was not ineffective, direct appeal counsel was not ineffective for not raising this claim on direct appeal. Commonwealth v. Christopher Williams, 936 A.2d 12, 29 (Pa. 2006) (holding that if trial counsel was not ineffective with respect to claim underlying allegation of ineffectiveness, then appellate counsel cannot be deemed ineffective for failing to raise claim of trial counsel's ineffectiveness). Accordingly, Appellant is denied relief with respect to this claim.
III. WHETHER APPELLATE COUNSEL WERE INEFFECTIVE IN NOT RAISING TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PROPERLY CROSS-EXAMINE COMMONWEALTH WITNESS NATALIE GRANT AND FOR NOT INTRODUCING EVIDENCE IMPEACHING HER CREDIBILITY
Appellant contends that appellate counsel's advocacy was defective because they failed to preserve for appellate review trial counsel's ineffectiveness in cross-examining eyewitness Natalie Grant. Appellant submits that trial counsel should have cross-examined Ms. Grant about her drug use and impeached her with prior inconsistent testimony and statements. Appellant's Brief, 27-31.*fn32 Appellant is not entitled to relief on this claim because he failed to raise the underlying claim respecting trial counsel during the post-verdict stage of the proceedings and the law precludes him from alleging his own ineffectiveness to overcome his waiver. Appellate counsel cannot be faulted for failing to raise a claim that Appellant rendered unavailable by failing to preserve it at the trial level. Accordingly, Appellant is denied relief with respect to this claim.
IV. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PREVENT THE INTRODUCTION OF INADMISSIBLE EVIDENCE AT TRIAL INCLUDING THE IMPROPER ADMISSION OF MOTIVE EVIDENCE, "BAD ACT" EVIDENCE, AND THE AUTOPSY REPORT, AND WHETHER APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT ARGUING ON APPEAL THAT THE TRIAL COURT ERRED IN INTRODUCING, OVER OBJECTION, DR. PARK'S AUTOPSY REPORT
Appellant presents four separate sub-issues in this claim which we will address in the order in which they are set forth in his brief.
A. Were Prior Counsel ineffective for failing to prevent or appeal the improper admission of drug-related motive evidence at trial?
Appellant first argues that trial counsel was ineffective for not objecting when Commonwealth witness Ronald "Skeet" Williams testified that the victim told him that Appellant shot him because he had "f-ed up a package of dope" belonging to Appellant. N.T. 1/20/93, 44. Trial counsel's error was magnified, Appellant asserts, because other evidence predicated on the victim's hearsay statement regarding the reason for the shooting was introduced and the prosecutor made broad use of this testimony in his closing speech. See N.T. 1/27/93, 57-58.
Appellant acknowledges that this ineffectiveness claim was previously litigated on direct appeal but argues that we should reconsider it because this Court's treatment of the "state of mind" exception following our decision in Fletcher I has been inconsistent.*fn33
Appellant's Brief, 34. Appellant cites to Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001), wherein this Court held that the victim's state of mind was irrelevant and that the introduction of such evidence required a new trial. Appellant's Brief, 31-35.
The Commonwealth asserts that this sub-claim is unreviewable because it was previously litigated in Fletcher I, 750 A.2d at 275-76, 276 n.20, and Appellant has failed to present legal support for his contention that this Court should ignore the statutory bar set forth in 42 Pa.C.S. § 9544(a)(2). The Commonwealth adds that prevailing case law prohibits us from revisiting the issue. Commonwealth's Brief, 41-42 (citing Albrecht, 720 A.2d at 703).
Although this Court has placed limits on the scope of the "state of mind" exception since Fletcher I was decided, and held that a victim's state of mind cannot be introduced as substantive evidence that a defendant acted in conformity therewith, nevertheless no relief is due here. See Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007); Commonwealth v. Stallworth, 781 A.2d 110, 118 (Pa. 2001). Appellant attempts to end-run the previous litigation bar by his assertion that the law surrounding the state of mind exception has changed since his direct appeal. The PCRA does not recognize this type of claim. See 42 Pa.C.S. § 9543(a)(2)(i) (requiring an assertion of "[a] violation of the Constitution of this Commonwealth or the Constitution or laws 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"). Moreover, Appellant does not separately raise a claim related to appellate counsel ineffectiveness. Accordingly, we deny relief on this claim.
B. Should evidence of a criminal record, alleged threats against a witness, and other "bad acts" have been stricken from the record at trial?
Appellant next contends that trial counsel was ineffective because he failed to object to the introduction of evidence and to arguments of the prosecutor indicating that Appellant engaged in criminal activity, committed bad acts, and threatened a Commonwealth witness.*fn34 Although Appellant's brief makes reference to matters in the record he claims were prejudicial and should have been objected to, Appellant's argument is rambling, disjointed, and contradictory. Appellant also fails to discuss separately the nature and merits of the allegations raised, including whether these claims relate to evidence introduced at trial or arguments proffered by the prosecutor. Finally, Appellant fails to provide the law applicable to these different types of claims.*fn35 Instead, as the Commonwealth asserts, Appellant merely sets forth a laundry list of "undeveloped bullet points" implying that all references to bad acts committed by a defendant are per se inadmissible and that prior counsel was ineffective for not preserving claims arising out of the introduction of that evidence.*fn36 Commonwealth's Brief, at 44. Moreover, Appellant has failed to indicate whether any of these claims were preserved in a post-verdict motion, thus leaving the onus on this Court to determine whether these ineffectiveness claims were preserved for review. By failing to provide a coherent discussion of these claims, Appellant has waived them. See Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding that failure to provide adequate discussion of issues raised and citation to supporting authority results in waiver of the issues); Steele, 961 A.2d at 798 n.12 (holding that argument comprised of one sentence was inadequate to preserve issue for review); Commonwealth v. Puksar, 951 A.2d 267, 293-94 (Pa. 2008) (holding lack of development of argument was fatal to claim).
Appellant's claim that trial counsel was ineffective for not objecting to the evidentiary references to drugs and drug dealing has no merit. This evidence was introduced to establish a motive for the shooting of the victim. According to the evidence, the victim was shot by Appellant because he mishandled a drug package for Appellant. When evidence of drug involvement is relevant to prove motive, rather than criminal propensity, the introduction of such evidence is not improper. See Commonwealth v. Malloy, 856 A.2d 767, 777 (Pa. 2004); Commonwealth v. Donald Hall, 565 A.2d 144, 149 (Pa. 1989). Because the evidence was relevant and admissible, and appellant has not shown that its prejudicial effect outweighed its probative value as a matter of law, trial counsel was not ineffective for failing to object to its admission and the prosecutor's arguments related thereto. Given that trial counsel was not ineffective, appellate counsel was not ineffective for failing to allege the ineffectiveness of trial counsel. Christopher Williams, 936 A.2d at 29.
Next, regarding Appellant's claim that trial counsel was ineffective for failing to object to a reference to a "mug shot," the record shows that Commonwealth witness Ronald Brooks testified that he identified a photograph depicting Appellant contained in a photo array. N.T. 1/20/93, 62-64.*fn37 Appellant is entitled to no relief on this claim because it was not raised in a post-verdict motion; appellate counsel therefore cannot have been ineffective.
C. Did Appellate counsel provide ineffective assistance in failing to raise the issue of the trial court's error in admitting the autopsy report without testimony from Dr. Park?
Appellant next submits that appellate counsel was ineffective because he failed to raise alleged trial court error in permitting the Commonwealth to introduce, over trial counsel's objection, a copy of the autopsy report prepared by Dr. Park because Dr. Park was not available to testify when the report was introduced in evidence.*fn38 Appellant's Brief, 37-39. According to Appellant, appellate counsel should have argued on appeal that the trial court erred by overruling trial counsel's objection to the introduction of the report because Dr. Park could have been called as a witness in the early stages of the trial as he did not leave the jurisdiction until several days of trial had taken place. Thus, Appellant submits that the Commonwealth's assertion that Dr. Park was unavailable to testify was false. Appellant also asserts that the report was inadmissible because it contained Dr. Park's opinions and Appellant did not have an opportunity to confront Dr. Park at trial. Appellant's Brief, 37-39 (citing Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974) (holding that it was a violation of law to admit into evidence an autopsy report for the truth of the opinions stated therein)).
This claim cannot serve as the basis for relief because the autopsy report was admitted into evidence by way of a stipulation; trial counsel never objected to its admission; and the trial court did not overrule an objection as Appellant contends. N.T. 1/26/93, 9-19.*fn39 As the report was introduced by stipulation, appellate counsel clearly cannot be held to have been ineffective for failing to argue that the trial court erred by overruling trial counsel's objection. Trial counsel never proffered any objection to the admission of Dr. Park's autopsy report.*fn40
D. Did Appellate counsel provide ineffective assistance of counsel in failing to raise trial counsel's error in agreeing to a stipulation that Dr. Park would testify that the manner of death was homicide?
Appellant asserts that appellate counsel rendered ineffective assistance by failing to allege that trial counsel had been ineffective for stipulating to that part of Dr. Park's autopsy report wherein the doctor opined that the manner of death was homicide. Appellant claims that by stipulating to the admission of Dr. Park's entire autopsy report, trial counsel undermined Appellant's claim that the killing was committed in self-defense as it "left the jury with the unmistakable impression that Dr. Park believed the death was [an] intentional and unlawful killing." Appellant's Brief, 39-40. Appellant further implies that had trial counsel not stipulated that the manner of death was homicide, the jury may have concluded that he killed the victim in self-defense. Appellant's Brief, 39.
Appellant did not raise this specific claim in a post-verdict motion. Therefore he is not entitled to relief on his claim that direct appeal counsel was ineffective for not alleging on appeal that trial counsel was ineffective for stipulating to the introduction of Dr. Park's report. In his Additional Supplemental Post-Verdict Motion, Appellant asserted that the attorney who represented him at his preliminary hearing was ineffective for stipulating to that part of Dr. Park's report listing the manner of death as homicide. See Additional Supplemental Post-Verdict Motions, filed 10/1/95, 3-5. He did not accuse trial counsel of being ineffective in this part of his supplemental post-verdict motion.
Later, in that same document, Appellant titled a claim as follows:
Trial counsel was ineffective for agreeing with the prosecutor to stipulation hearsay evidence concerning the manner and cause of death of the victim (Vaughn Christopher), and in doing so, allowed the prosecutor to knowingly and egregiously introduce falsified evidence to convey to the jury a false and illusive picture.
Additional Supplemental Post-Verdict Motions, filed 10/1/95, 53. Appellant then proceeded to argue that trial counsel was ineffective, not for stipulating that the manner of death was homicide, but because trial counsel permitted the Commonwealth to introduce a report that was "the product of manufactured falsification deliberately constructed to substantially undermine the [Appellant's] defense." Additional Supplemental Post-Verdict Motions, filed 10/1/95, 54.
To support this allegation, Appellant's supplemental post-verdict motion noted that the report listed the incorrect date for the autopsy and contained other misstatements as to the condition of the victim's body when it was received at the City morgue. Additional Supplemental Post-Verdict Motions, filed 10/1/95, 54-55. He submitted that these "falsifications" were intentional and that the prosecution knowingly permitted them to be presented to the jury in violation of the rules governing the conduct of a prosecutor and prohibiting the introduction evidence known to be false. Additional Supplemental Post-Verdict Motions, filed 10/1/95, 55-60. According to Appellant, had trial counsel reviewed the victim's hospital reports, he would have realized that the prosecutor was attempting to introduce a report containing material falsehoods and would not have stipulated to it.
Since Appellant did not present the underlying claim he now raises here in a post-verdict motion he cannot obtain relief on his derivative claim of appellate counsel ineffectiveness. Nevertheless, even if it is assumed that Appellant preserved a claim regarding trial counsel's ineffectiveness in stipulating to a report containing alleged falsifications and the opinions of Dr. Park regarding the manner of death, the underlying claim is without merit.
Appellant cannot show that trial counsel was ineffective for stipulating to the admission of Dr. Park's report, including that part of the report containing his opinions as to the cause and manner of death, because Appellant cannot establish that he was prejudiced by the introduction of the report. The law permits experts to render opinions based on factual findings made by another expert. See Commonwealth v. Vandivner, 962 A.2d 1170, 1178-79 (Pa. 2009) (holding that pathologist may offer opinions premised, in part, on information received from another coroner); see also Commonwealth v. Chambers, 599 A.2d 630, 639-40 (Pa. 1991); Commonwealth v. James Smith, 391 A.2d 1009, 1012 (Pa. 1978). Thus, even in the absence of trial counsel's stipulation, the Commonwealth would have been permitted to have another medical examiner review the factual findings of Dr. Park and render an opinion as to the cause and manner of death. Trial counsel's stipulation did not prevent the Commonwealth from introducing opinion testimony as to the cause and manner of the victim's death.
Moreover, Appellant is apparently confused about the meaning of the word "homicide." In medical terms, a "homicide" is any killing of a human being committed intentionally except for a suicide. Commonwealth v. Jacobs, 639 A.2d 786, 789 (Pa. 1994); see also Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004). The Crimes Code expands this definition and states that "[a] person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another human being." 18 Pa.C.S. § 2501(a). Thus, the fact that trial counsel stipulated that the manner of death was homicide has no bearing on whether or not the killing was committed in self-defense. In point of fact, by asserting that he acted in self-defense, Appellant conceded that the killing was committed intentionally, i.e. a homicide, albeit one excused by the circumstances existing at the time it was committed. See 40 C.J.S. Homicide, § 1 ("'Homicide' is a comprehensive word that means any killing of a human being, and it does not necessarily import a crime, but includes also those cases in which the law justifies or excuses the taking of human life.") (citations omitted).*fn41
Consequently, Appellant's inability to establish either arguable merit or prejudice due to trial counsel's stipulation to the admission of Dr. Park's report would have rendered this claim meritless even if Appellant had preserved it.
Next, Appellant's falsification claim is equally meritless because it is clear that any factual mistake contained in Dr. Park's report was inadvertent and unintentional. These factual discrepancies were de minimis and did not affect the outcome of the case.
Finally, Appellant's assertion that, if trial counsel had cross-examined Dr. Park he would have elicited testimony supporting his claim of self-defense, amounts to mere speculation. Other than presenting a "laundry list" of testimony Appellant speculates trial counsel might have elicited from Dr. Park, Appellant has failed to establish that had trial counsel not stipulated to the report, he would have succeeded in eliciting this testimony or that the outcome of the case would have been different had it been elicited.*fn42
Consequently, even if Appellant had preserved this issue, he would not have succeeded in obtaining relief as it is clear that direct appeal counsel was not ineffective for failing to argue that trial counsel was ineffective for stipulating to Dr. Park's report.
V. WHETHER THE GUILT PHASE JURY INSTRUCTIONS ON PROVOCATION, DUTY TO RETREAT, AND THE USE OF A DEADLY WEAPON INFERENCE WERE DEFECTIVE; WHETHER PRIOR COUNSEL WERE INEFFECTIVE IN FAILING TO OBJECT AND REQUEST PROPER INSTRUCTIONS AND FAILING TO RAISE THIS ISSUE ON APPEAL; WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING THAT THE JURY BE CHARGED ON SIMPLE ASSAULT, "PASSION AND PROVOCATION" VOLUNTARY MANSLAUGHTER, AND INVOLUNTARY MANSLAUGHTER; WHETHER APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING TRIAL COUNSEL'S INEFFECTIVENESS
Appellant challenges the effectiveness of standby and appellate counsel for not asserting trial counsel was ineffective for not objecting to several of the trial court's jury instructions. Appellant asserts that trial counsel should have objected to jury instructions defining provocation and duty to retreat in relation to self-defense, those setting forth the grounds upon which the jury could find Appellant guilty of "heat of passion" voluntary manslaughter, and the charge advising the jury of the permissible inference arising out of the use of a deadly weapon on a vital part of another person. Appellant further contends that standby and direct appeal counsel should have argued that trial counsel was ineffective for not requesting that the jury be instructed on simple assault and involuntary manslaughter. Appellant's Brief, 40-47.
Appellant cannot meet his burden of establishing that all prior counsel were ineffective regarding the claims of trial court error with respect to the jury instructions on provocation, duty to retreat, and "heat of passion" voluntary manslaughter or on his claim that trial counsel was ineffective for failing to request a charge on simple assault. These claims were not preserved in a post-verdict motion. As noted above, Appellant cannot succeed on any derivative appellate counsel ineffectiveness claim requiring proof that either he himself or standby counsel was ineffective.
Appellant, however, did preserve claims that appellate counsel was ineffective for failing to allege trial counsel's ineffectiveness regarding: 1) not requesting an involuntary manslaughter charge; and 2) not objecting to the trial court's instructions on the permissible inference arising out of the use of a deadly weapon on a vital part of a person's body. These claims were raised in a post-verdict motion. Thus, we will review whether direct appeal counsel was ineffective for failing to raise them on appeal.
Appellant asserts that trial counsel was ineffective for not requesting a jury charge on involuntary manslaughter because the jury may have determined that the shooting occurred recklessly as a result of the alleged struggle for the gun between Appellant and the victim. Appellant's Brief, 45. Appellant relies on Commonwealth v. Terrell, 393 A.2d 1117 (Pa. 1978) (Opinion Announcing the Judgment of the Court), wherein the defendant was granted a new trial due to the failure to instruct the jury on involuntary manslaughter. Appellant maintains that the facts of Terrell are similar to the facts herein and require the same result.*fn43
The Commonwealth argues that this claim lacks arguable merit because the facts of the instant matter demonstrate that the victim was killed intentionally and not as the result of a reckless or grossly negligent act. The Commonwealth also points out that the plurality decision in Terrell has been called into question by this Court.*fn44 The Commonwealth further argues that trial counsel had a reasonable basis for not requesting an instruction on involuntary manslaughter, namely that the giving of such an instruction would have undermined Appellant's chance for an outright acquittal. Finally, the Commonwealth contends that Appellant cannot demonstrate prejudice because the jury convicted him of first-degree murder and thereby concluded that Appellant acted with the specific intent to kill. Thus, according to the Commonwealth, there "is no reasonable likelihood that, had an instruction on involuntary manslaughter been provided -- i.e., a reckless or negligent killing -- [the jury] would have convicted him of that crime instead." Commonwealth's Brief, 67.
We hold that Appellant is not entitled to relief on this claim. Involuntary manslaughter is defined as a killing that occurs when, "as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, [an individual] causes the death of another person." 18 Pa.C.S. § 2504(a). An instruction on involuntary manslaughter is not required unless it has been made an issue in the case and the facts would support such a verdict. Commonwealth v. White, 415 A.2d 399, 402 (Pa. 1980).
Instantly, the record established that Appellant killed the victim intentionally; there was evidence that Appellant walked up to the victim, slapped him, and then shot him in cold blood as he attempted to walk away from Appellant. Although Appellant told police that the victim had introduced the gun into the affray, Appellant stated that after seeing the gun he "rushed in and we struggled. I got my hand on the gun and I fired it two times toward his leg." N.T. 1/25/93, 77. According to Appellant's own version of the incident, he shot the victim intentionally. Thus, it is clear that the offense of involuntary manslaughter had not been made an issue in the case and the evidence would not have reasonably supported such a verdict. Consequently, trial counsel was not ineffective for failing to request an instruction on involuntary manslaughter. And, as trial counsel was not ineffective, direct appeal counsel cannot be deemed ineffective for failing to raise this issue on direct appeal. See Commonwealth v. Dennis, 950 A.2d 945, 978 (Pa. 2008) (holding that where trial counsel has not been ineffective, appellate counsel cannot have been ineffective).
Appellant's assertion that trial counsel should have objected to the trial court's instruction on the permissive inference arising out of the use of a deadly weapon on a vital part of a human body rests on a claim that the charge given by the trial court on this point created an impermissible mandatory presumption. Appellant argues that this presumption relieved the Commonwealth of its burden to prove intent by instructing the jury that it must find that Appellant acted with an intent to kill if it found he used a deadly weapon to cause injury to a vital part of the victim's body. Appellant also argues that the charge was defective because the trial court did not instruct the jury that the inference applied only if it found that Appellant intended to cause injury to the victim's liver, which was the primary cause of death. Appellant's Brief, 45-47.
The Commonwealth contends that these claims lack merit because the charge excerpt Appellant objects to, even when read in isolation, did not instruct the jury that it was required to find intent to kill upon finding that Appellant used a deadly weapon on a vital part of the victim's body. In addition, the Commonwealth argues Appellant's complaint focuses on a single excerpt and that when the trial court's charge is viewed in its entirety it is clear that the instruction did not create a mandatory presumption. Finally, the Commonwealth contends that Appellant's assertion that the trial court's charge was defective and that trial counsel should have objected because the charge did not advise the jury that it could apply the inference only if it found that Appellant intended to shoot the victim in the liver lacks merit. According to the Commonwealth, Appellant's claim fails because this Court has ruled that the inference regarding intent to kill applies to the use of a deadly weapon on a vital part of another's body and does not require proof that the actor intentionally aimed a weapon at a vital part of the body. Commonwealth's Brief, 67-69.
When reviewing a challenge to jury instructions, the reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. Daniels, 963 A.2d at 430. See also Commonwealth v. Wright, 961 A.2d 119, 145 (Pa. 2009); Commonwealth v. Carson, 913 A.2d 220, 255 (Pa. 2006), cert. denied, __ U.S __, 128 S.Ct. 384 (2007). "The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990). A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury. Wright, 961 A.2d at 145.
This Court discussed permissible inferences in Carson, supra:
A permissive inference is an evidentiary tool that permits a fact-finder to proceed on inferential reasoning, such that a fact-finder may infer an elemental fact from proof of a basic fact. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 389 (2000). When a permissive inference leaves the fact-finder free to accept or reject the inference, a permissive inference does not affect the burden of proof and it only affects the beyond a reasonable doubt standard when, under the facts of the case, there is no way the fact-finder could arrive at the conclusion permitted by the inference. County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979); see also Commonwealth v. [Reginald] Hall, 574 Pa. 233, 830 A.2d 537, 547-48 (2003). We have opined that a "[s]pecific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim's body." Commonwealth v. Damon Jones, 530 Pa. 591, 610 A.2d 931, 938 (1992).
Carson, 913 A.2d at 260.
Appellant claims that the following excerpt from the trial court's instruction constituted a mandatory inference because it required the jury to find Appellant acted with intent to kill if it found he used a deadly weapon on a vital organ of the victim:
There is case law in Pennsylvania which states that an inference of the intent to kill which arises from the killer's use of a deadly weapon to cause injury to a vital part of the deceased, in and of itself, is sufficient to support a first degree murder conviction in the absence of other contradicting facts and circumstances in evidence in a specific case.
N.T. 1/29/93, 97.
No ineffectiveness occurred here because the claim is without arguable merit. The excerpt above was preceded by explicit instructions that the inference arising out of the use of a deadly weapon on a vital part of the body was permissive and could be rejected by the jury. N.T. 1/29/93, 95-97. In fact, the trial court instructed the jury as follows on the use of a deadly weapon inference:
There is evidence in this case that the deceased died of two gunshot wounds that pierced the kidney and the liver. As to that, the law holds that where anyone, without sufficient cause or provocation, unlawfully kills another by using a deadly weapon upon a vital part of the victim's body with the manifest intention to so use it, an inference may be drawn, once again, as was the inference of malice, that could arise by the use of deadly weapon on the vital part of a body. This is a permissible evidentiary inference and you don't have to draw it. It may be drawn in the absence of qualifying circumstances. By common knowledge, such use of a deadly weapon is likely to cause death. Thus, an intent to kill may be inferred by reason of the killer's use of a deadly weapon on a vital part of the body of the victim. You will recall the definition of a deadly weapon and what constitutes a vital part of the human body.
Note well, you are not to infer this intent to kill if the facts and circumstances indicate a contrary intent. In short, you are not bound by this inference of the intent to kill arising from the killer's use of a deadly weapon upon a vital part of the body, but you may or may not apply it under the facts and circumstances as you find them and as you see fit in your intelligence and mutual and collective wisdoms. Further, the nature of the weapon used may be quite material in ascertaining whether there was or was not an intent to kill, but that intent must still, in every case, be collected from all of the attending circumstances no matter what may have been the instrument of death.
In conclusion, this inference of the intent to kill arising from the killer's use of a deadly weapon to a vital part of the victim's body is a permissible matter of evidence for your consideration. As factfinders, you need not accept it and you may reject this inference where the surrounding facts and circumstances negate the existence of such an inference or you may ignore it if such negating facts or circumstances are not presented in a specific case.
N.T. 1/29/93, 95-97 (emphasis added). Thus, when viewed in its entirety, it is clear that the trial court's instruction on this issue was proper. Trial counsel was not ineffective for failing to object to this part of the trial court's charge and therefore appellate counsel was not ineffective for failing to raise trial counsel's ineffectiveness on this issue. Dennis, supra.
We also reject Appellant's claim that trial counsel should have objected to the lack of an instruction advising the jury that in order to apply the permissive inference arising out of the use of a deadly weapon on a vital part of another's body, the jury had to find that Appellant intended to shoot the victim in his liver. This Court has stated that the "critical inquiry is the use of a deadly weapon on a vital part of the body. not the intentional aiming of the weapon at a vital part of the body." Commonwealth v. Washington, 927 A.2d 586, 607 (Pa. 2007) (emphasis in original). Thus, the trial court here had no obligation to instruct the jury that it could not apply the inference without first finding that Appellant intended to shoot the victim in his liver or any other vital part of his body and trial counsel was not ineffective for failing to object on this point. Consequently, we also hold that appellate counsel was not ineffective for not arguing trial counsel's ineffectiveness and deny relief on this claim.
VI. WAS APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO ADEQUATELY RAISE THE ISSUE OF WHETHER THE PROSECUTOR ENGAGED IN PROSECUTORIAL MISCONDUCT?
Appellant contends that appellate counsel was ineffective for not raising on appeal a claim that the prosecutor engaged in prosecutorial misconduct during the trial. First, Appellant asserts that the prosecutor misled the trial court when he advised the court that the medical examiner Dr. Park was not available to testify because he was out of the country and would not return for two weeks. N.T. 1/26/93, 3-4.*fn45 According to Appellant, to the extent that the remark implied that Dr. Park was completely unavailable to testify at Appellant's trial, it was misleading because Dr. Park did not depart the United States until several days after trial began and conceivably could have testified before he left.
Appellant's Brief, 48-49. Appellant claims he was prejudiced by the misrepresentation because Dr. Hood, who testified in Dr. Park's stead, "destroyed [Appellant's] defense and left the jury with a biased and factually incorrect understanding of the forensic evidence." Appellant's Brief, 49.
Appellant also argues that appellate counsel was ineffective for not arguing on appeal that several comments made by the prosecutor during his closing speech to the jury disparaged trial counsel, misstated the law, and were beyond the evidence, and thus deprived Appellant of a fair trial. Appellant's Brief, 49-52.
Appellant's claim that appellate counsel was ineffective for not arguing on appeal that the prosecutor misled the trial court by stating that Dr. Park was out of the country and not available to testify entitles him to no relief because the claim was not raised in his PCRA petition. Thus, pursuant to Pa.R.A.P. 302(a), Appellant is not entitled to review of this claim because it was raised for the first time in this appeal.
Appellant's assertion that direct appeal counsel was ineffective for failing to raise on appeal that the prosecutor committed prosecutorial misconduct in his closing speech to the jury during the guilt-phase of the trial involves three separate subclaims. First, Appellant alleges that direct appeal counsel should have complained that the prosecutor deprived Appellant of a fair trial by making comments that disparaged and demeaned Appellant's trial counsel personally and his defense strategy.*fn46 Appellant's Brief, 50-51. Second, Appellant contends that the prosecutor misstated the law regarding the parties' respective burdens of proof. According to Appellant, the prosecutor placed the burden of proof upon Appellant by arguing that in order to accept Appellant's defense, the jury had to believe everything the defense presented at trial.*fn47 Appellant's Brief, 51.
Third, Appellant alleges that direct appeal counsel should have raised issues asserting that the prosecutor presented arguments "that went well beyond the evidence presented, encouraging the jury to consider inflammatory and irrelevant matters." Id. at 52. Specifically, he complains that direct appeal counsel should have claimed that the prosecutor's extensive remarks on Appellant's drug "use" and the effect illicit drugs have on society turned the trial "into a plebiscite on drugs and drug dealers and their destructive effect on society." Id.*fn48 Appellant also argues that the prosecutor implied that Appellant was associated with the Junior Black Mafia (JBM), a notorious drug gang, in the absence of evidence Appellant had an association with the JBM or that the JBM had any connection to the case. Appellant further asserts that the prosecutor engaged in rank speculation when he argued that Ronald Williams denied having given police a statement inculpating Appellant because he disliked the prosecution and hoped to curry favor with fellow inmates. Finally, Appellant asserts that the prosecutor misstated the evidence by contending that Ms. Grant "was scared to death" to testify and by making reference to a witness who did not testify. Id.*fn49
The Commonwealth submits that these claims do not entitle Appellant to relief for various reasons. First, the Commonwealth contends that the claims were not preserved and were waived. Even if not waived, the Commonwealth argues that these claims have either been litigated previously or are meritless and thus direct appeal counsel was not ineffective for failing to raise them on direct appeal. Commonwealth's Brief, 69-70. Specifically, with respect to Appellant's claim that the prosecutor deprived him of a fair trial by disparaging trial counsel and his defense strategy, the Commonwealth asserts that no relief is due because appellate counsel raised this claim on direct appeal and it was denied. See Fletcher I, 750 A.2d at 272-73. Thus, the Commonwealth argues that this claim is not cognizable because it was litigated previously and cannot be litigated anew in accordance with 42 Pa.C.S. §§ 9543(a)(3) and 9544(a). Commonwealth's Brief, 71.
The Commonwealth also contends that direct appeal counsel was not ineffective for failing to assert on appeal that the prosecutor misstated the law or shifted the burden of proof in his comments on the defense presented by Appellant because the remarks merely "discussed the relevant evidence of guilt, properly responded to defense attacks on the Commonwealth's evidence, and were well within the scope of acceptable oratorical flair." Id. at 72. The Commonwealth further argues that even if the remarks could be inferred to have shifted the burden of proof to Appellant, the trial court instructed the jury that Appellant was presumed innocent and that the burden of proof rested solely on the Commonwealth. Id.
The Commonwealth next argues that direct appeal counsel was not ineffective for not complaining on appeal about the prosecutor's references to drugs in general and his assertion that Appellant "used" drugs because such comments were relevant to motive and were made in response to closing comments made by trial counsel, who argued to the jury that the Commonwealth's witnesses were unworthy of belief because they were drug addicts. Id. at 72-73. In addition, the Commonwealth notes that direct appeal counsel unsuccessfully argued on appeal that the prosecutor prejudiced Appellant by arguing that the evidence that Appellant was a drug dealer was overwhelming and that the Commonwealth's witnesses were not "throw away people" because they used drugs. See Fletcher I, 750 A.2d at 273.
The Commonwealth further asserts that there is no merit to Appellant's claim that direct appeal counsel should have challenged the propriety of the prosecutor's reference to the JBM because the record shows that the reference was fleeting, did not associate Appellant with the JBM, and was intended to explain why Robert "Skeet" Williams may have disavowed his statement to police while testifying. Commonwealth's Brief, 73. The Commonwealth also argues that direct appeal counsel was not ineffective for failing to argue on appeal that the prosecutor's argument that Ms. Grant was scared to testify was improper because there was testimony presented at trial that she was afraid and scared to testify. Id. In addition, the Commonwealth contends that direct appeal counsel did not provide ineffective assistance of counsel by not raising a claim asserting that the prosecutor impermissibly referred to witnesses who did not testify; the witnesses did testify during the trial. Id.
Finally, the Commonwealth asserts that even if the prosecutor did step outside the record, the remarks were not so unduly prejudicial as to deprive Appellant of a fair trial and that they constituted fair inferences from the evidence. Moreover, the Commonwealth submits that any prejudice was cured by instructions the trial court gave to the jury advising that counsels' arguments were not evidence and that its own recollection of the evidence controlled. Id. at 74.
Appellant is not entitled to relief on these claims for myriad reasons. First, direct appeal counsel cannot be deemed ineffective with respect to comments he did indeed challenge on direct appeal, specifically: the comments denigrating trial counsel personally; those criticizing trial counsel's defense strategy; and those commenting on Appellant's personal involvement with drugs and those about drugs in general. Appellant's allegations of ineffectiveness are facially meritless in light of the fact that direct appeal counsel raised these claims on direct appeal and in the absence of any argument regarding appellate counsel's performance related to his advocacy of these raised claims. Fletcher I, 750 A.2d at 273.
Next, Appellant is entitled to no relief on those comments concerning: the JBM; Ronald Williams's reasons for not cooperating with the Commonwealth; the purported improper shifting of the burden of proof; the fact that Ms. Grant was scared to testify; and a witness who allegedly did not testify, because these claims were not raised and preserved in a post-verdict motion either directly or in the context of an ineffectiveness claim. Appellate counsel cannot be deemed ineffective for failing to raise claims that were defaulted below. We therefore deny Appellant relief with respect to this claim.
VII. WAS APPELLATE COUNSEL INEFFECTIVE IN FAILING TO RAISE TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT SIGNIFICANT MITIGATING EVIDENCE DURING APPELLANT'S PENALTY HEARING INCLUDING HIS BACKGROUND, EARLY CHILDHOOD, EDUCATIONAL AND DEVELOPMENTAL PROBLEMS, MILITARY RECORD, GOOD CHARACTER AND REPUTATION, TRAUMATIC EXPERIENCES, AND BOXING-INDUCED BRAIN DAMAGE?*fn50
Appellant accuses appellate counsel of providing ineffective assistance for failing to argue on direct appeal a claim that trial counsel was ineffective for failing to conduct a complete investigation of Appellant's background in order to gather mitigating evidence for the penalty hearing. Appellant complains that trial counsel did not obtain any witnesses other than those suggested by Appellant or delve into Appellant's troubled childhood history, his educational background, the status of his mental health, or other areas relevant to mitigation. In addition, Appellant claims that trial counsel was ineffective for not introducing evidence that he had a good reputation for being peaceful and non-violent. Appellant's Brief, 53-69. Appellant's appellate counsel ineffectiveness claim fails. He failed to assert the underlying claim respecting trial counsel in a post-verdict motion and thus cannot establish that appellate counsel was ineffective. We therefore deny relief.
VIII. WERE APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF TRIAL COUNSEL'S FAILURE TO REQUEST A CONTINUANCE BEFORE THE PENALTY PHASE OF TRIAL?
Appellant contends that appellate counsel were ineffective because they did not preserve for appellate review a claim that trial counsel was ineffective for failing to request that the penalty hearing be postponed. Appellant asserts that he was distraught and rendered incapable of communicating effectively and intelligently with trial counsel as a result of the guilty verdict. In addition, he claims that trial counsel should have requested a continuance because he was unprepared to represent Appellant during the penalty hearing. Appellant's Brief, 70-72. Appellant is not entitled to relief on this claim because he did not raise the underlying claim concerning trial counsel in a post-verdict motion.
IX. WAS APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE ISSUES OF THE TRIAL COURT'S ERROR IN PERMITTING THE DRUG INVOLVEMENT AGGRAVATING CIRCUMSTANCE TO GO TO THE JURY, AND OF TRIAL COUNSEL'S FAILURE TO OBJECT?
Appellant states that direct appeal counsel was ineffective in failing to argue that the Commonwealth did not present sufficient competent evidence to sustain the "drug" aggravator set forth in 42 Pa.C.S. § 9711(d)(14). Appellant also faults direct appeal counsel for failing to raise trial counsel's ineffectiveness for not objecting to the presentation of this aggravator to the jury. Appellant's claims rest on the assertion that the "state of mind" evidence that Appellant shot the victim because the victim "f-ed" up a drug package constituted inadmissible hearsay and even if such evidence was properly admitted, such evidence was insufficient, standing alone, to prove this aggravator beyond a reasonable doubt. Appellant's Brief, 72-76.
The Commonwealth asserts this issue is without merit because this Court already has ruled that the evidence was sufficient to establish this aggravator beyond a reasonable doubt. See Fletcher I, 750 A.2d at 281. The Commonwealth further submits that the evidence was admissible and sufficient to establish this aggravator. Commonwealth's Brief, 84-86.
Although Appellant incorporated his attacks on the sufficiency of the evidence to support this aggravator as a claim of ineffective assistance of direct appeal counsel, Appellant is not entitled to relief on this claim of appellate counsel ineffectiveness because he failed to raise the underlying claim concerning trial counsel in a post-verdict motion.*fn51
X. WERE APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE TRIAL COUNSEL'S DEFICIENT PERFORMANCE IN NOT OBJECTING TO THE "GRAVE RISK" AGGRAVATOR, NOT OBJECTING TO ARGUMENTS PRESENTED BY THE PROSECUTOR WITH RESPECT TO THIS AGGRAVATOR, AND NOT OBJECTING TO AN ERRONEOUS JURY INSTRUCTION?
Appellant raises three separate claims alleging that appellate counsel were ineffective because they did not assert that trial counsel was ineffective in several respects regarding the "grave risk" aggravator set forth in 42 Pa.C.S. § 9711(d)(7). Appellant first asserts that standby and appellate counsel were ineffective for not raising trial counsel's ineffectiveness in failing to object to the Commonwealth's presentation of expert testimony related to the firing characteristics of the weapon and ammunition used by Appellant to kill the victim, specifically, testimony indicating that bullets fired from the murder weapon typically can travel six-tenths of a mile. N.T. 2/1/93, 20-23. Appellant contends that this testimony was prejudicial and irrelevant and trial counsel should have objected. He also claims testimony related to the firing characteristics of a murder weapon should have been precluded because it permits a fact-finder to find this aggravator in every case where a shooting occurs in an urban setting. Appellant's Brief, 76-78.
Second, Appellant contends that appellate counsel were ineffective for failing to argue that trial counsel failed to object to the trial court's instructions on this aggravator because the instructions did not contain language limiting Section 9711(d)(7)'s application to persons in close proximity to the site of the murder, and this omission rendered the trial court's instructions overbroad and vague. Appellant's Brief, 78-79.
Third, Appellant states that appellate counsel provided deficient representation by failing to assert that trial counsel was ineffective for not objecting to closing comments made by the prosecutor in the penalty phase that "essentially told the jury that the risk of harm inherent in shooting a gun in an urban setting is sufficient for establishing the (d)(7) aggravator." Appellant's Brief, 80.
The Commonwealth submits that these claims of appellate counsel ineffectiveness are waived because Appellant failed to raise the underlying claims of trial counsel ineffectiveness in a post-verdict motion. Upon review of the record, we agree that the underlying claims were not raised in a post-verdict motion and thus Appellant is not entitled to relief on his derivative claims.
XI. SHOULD APPELLANT'S DEATH SENTENCE BE OVERTURNED BECAUSE APPELLATE COUNSEL FAILED TO RAISE AN ISSUE ALLEGING THAT THE TRIAL COURT ERRED BY SUGGESTING TO THE JURY THAT A LIFE SENTENCE CARRIED A POSSIBILITY OF PAROLE AND BECAUSE THE COURT FAILED TO INSTRUCT THE JURY ON THE MEANING OF A SENTENCE OF LIFE IMPRISONMENT?
Citing the plurality decision in Simmons v. South Carolina, 512 U.S. 154 (1994), Appellant claims he is entitled to a new penalty hearing because standby and appellate counsel failed to raise an issue alleging that trial counsel was ineffective for not objecting when the trial court failed to define what a life sentence means in Pennsylvania, and when the trial court inaccurately responded to a question posed by the jury asking what the term "life sentence" means. In Simmons, a plurality of the United States Supreme Court ruled that a trial court must advise a jury that a defendant is not entitled to parole if a prosecutor places the future dangerousness of the defendant in issue and the defendant requests such an instruction. See also Commonwealth v. Baumhammers, 960 A.2d 59, 90 (Pa. 2008). According to Appellant the trial court deprived him of due process of law by failing to include in its instructions a declaration that a life sentence in Pennsylvania carries no possibility of parole.*fn52 Appellant also claims that trial counsel should have objected when the trial court told the jury that it should not be concerned with the meaning of "life sentence."*fn53 Appellant's claims are premised on a contention that the trial court was required to tell the jury that a life sentence is defined as one without possibility of parole. Appellant's Brief, 81-86.
The Commonwealth first claims that no relief is due Appellant because the issues he presents herein were waived; they were not raised on direct appeal. The Commonwealth further asserts that Appellant's claims have no merit because trial courts were not required in 1993 to define life imprisonment and were specifically prohibited from advising a jury about the possibility of parole. Therefore, in the Commonwealth's view, direct appeal counsel was not ineffective for not raising these claims. Commonwealth's Brief, 89-92.*fn54
Because the claims allege ineffective assistance of appellate counsel for not raising the issues on direct appeal, we must review the claims pursuant to the ineffectiveness standard. See Commonwealth v. Ronald Collins, 888 A.2d 564, 573 (Pa. 2005) (holding that a Sixth Amendment claim alleging ineffective assistance of counsel raises a stand-alone claim entitled to independent review).
Appellant is entitled to no relief because this Court has clearly ruled that an appellant may not maintain a claim of ineffectiveness "for failing to request an instruction under Simmons where counsel's actions were predicated on well-established Pennsylvania law prohibiting the grant of such requests or for failing to predict that the law would change..." Commonwealth v. Rios, 920 A.2d 790, 819-20 (Pa. 2007) (indicating that long-standing precedent prohibited capital juries from hearing about Pennsylvania's life without parole statute).*fn55 Because trial counsel cannot be deemed ineffective for failing to predict a change in the law, it is clear that trial counsel was not ineffective for failing to request a Simmons instruction. See Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004) (counsel cannot be held to be ineffective for failing to predict changes in the law). Appellant, therefore, cannot meet the arguable merit prong of the ineffectiveness test with respect to appellate counsel and thus relief on this claim is denied.
XII. WERE THE PENALTY PHASE JURY INSTRUCTIONS ERRONEOUS AND UNCONSTITUTIONAL BECAUSE THEY ADVISED THE JURY THAT IT HAD TO EXPLAIN WHY IT REJECTED DEATH UPON IMPOSING A LIFE SENTENCE, IMPLIED THAT MITIGATING CIRCUMSTANCES HAD TO BE FOUND UNANIMOUSLY, AND INCORRECTLY DEFINED WHAT AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE, AND WERE BOTH TRIAL AND APPELLATE COUNSEL INEFFECTIVE IN FAILING TO RAISE THE ISSUE?
Appellant submits that appellate counsel were ineffective because they failed to raise claims alleging that trial counsel was ineffective for not objecting to three instructions given the jury by the trial court during the penalty hearing. Appellant states that the trial court erred because its instructions improperly: 1) implied that the sentence of death was the right verdict by directing the jury that if it imposed a life sentence it had to explain why it rejected the death penalty, N.T. 2/3/93, 47;*fn56 2) implied that the jury was required to find mitigating circumstances unanimously, in violation of Mills v. Maryland, 486 U.S. 367 (1988);*fn57 and 3) told the jury that aggravating circumstances are "things that make a first degree murder case either more terrible or less terrible in nature." Appellant's Brief, 86-89.*fn58
Appellant is not entitled to relief on any of these ineffectiveness claims respecting appellate counsel. The underlying claims respecting trial counsel were not raised in a post-verdict motion and therefore Appellant cannot meet his burden of proving that all counsel were ineffective. Although a review of Appellant's Supplemental Post-Vedict Motions shows that Appellant appeared to have raised a Mills issue, Appellant did not raise the issue presented here. Instead, quoting from jury instructions the trial court gave during the guilt phase of the trial directing the jury that its verdict had to be unanimous, Appellant asserted that these guilt-phase instructions may have confused the jury during the penalty phase and caused it to believe that to find a mitigating factor its decision had to be unanimous, in violation of Mills. See Additional Supplemental Post-Verdict Motion, filed 10/1/95, 20-21. Consequently, Appellant did not preserve the underlying claims he raises here in a post-verdict motion and therefore, he is not entitled to relief on this "layered" claim of appellate counsel ineffectiveness.
To the extent that it could be asserted that Appellant preserved a Mills issue, a careful review of the trial court's penalty-phase jury instructions demonstrates that the claim lacks merit, and direct appeal counsel was not ineffective for failing to raise it on appeal.
Claims predicated on alleged errors involving jury instructions are governed by the following standards:
The trial court possessed broad discretion in phrasing its instructions to the jury and was permitted to choose its own wording so long as the law was clearly, adequately and accurately presented to the jury for consideration. Furthermore, a trial court need not accept counsel's wording for an instruction, as long as the instruction given correctly reflects the law. It is axiomatic that, in reviewing a challenged jury instruction, an appellate court must consider the charge in its entirety, not merely isolated fragments, to ascertain whether the instruction fairly conveys the legal principles at issue. Instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations.
Rainey, 928 A.2d at 242, 243 (internal citations omitted). In assessing whether a jury instruction violates Mills, the reviewing court must ascertain whether there is a reasonable likelihood that the jury understood the instructions as precluding consideration of the mitigating evidence introduced by a capital defendant. Boyde v. California, 494 U.S. 370, 385 (1990).
In charging the jury with respect to aggravating and mitigating circumstances, the trial court herein stated:
When voting on the general findings, you are to regard a particular aggravating circumstance as present only if all of you agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors may believe. Simply stated, each of you is free to regard a mitigating circumstance as present regardless of what other jurors believe about the circumstance or circumstances. As a matter of law, a death penalty jury cannot be required to make unanimous findings regarding each specific mitigating circumstance. Under the law, each juror must ultimately find each mitigating circumstance for himself and act accordingly. In accordance, each of you can individually consider any and all evidence relevant to mitigation, even though all twelve of you have not agreed to the existence of a particular mitigating circumstance. This different treatment of aggravating circumstances as opposed to mitigating circumstances is one of the law's safeguards against unjust or unfair death sentences.
N.T. 2/3/93, 40-41. Despite the fact that in this charge the trial court carefully and meticulously instructed the jury that mitigating circumstances did not have to be found unanimously and that each juror could find them individually, Appellant complains that certain other instructions, which Appellant failed to identify in his brief, somehow caused the jury to "likely understand the trial court's instructions to require a unanimous finding of a mitigating circumstance before it could be given effect." Appellant's Brief, 87.
Viewing the trial court's instructions as a whole, Appellant would not have succeeded on his Mills claim had it been preserved for review; the trial court's instructions adequately defined the law for the jury with respect to aggravating and mitigating circumstances and did not convey to the jury that it could not consider Appellant's mitigating evidence. See Commonwealth v. Cross, 726 A.2d 333, 336-38 (Pa. 1999) (holding that instructions similar to the instant ones did not violate Mills). Accordingly, relief is denied with respect to Appellant's claims of appellate counsel ineffectiveness stemming from the propriety of the trial court's penalty phase jury instructions.
XIII. DID THE PROSECUTOR'S PENALTY PHASE ARGUMENT VIOLATE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION, THE EIGHTH AMENDMENT, AND THE FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, AND WERE BOTH TRIAL AND APPELLATE COUNSEL INEFFECTIVE?
Appellant contends that appellate counsel was ineffective for not raising the ineffectiveness of trial and standby counsel-- trial counsel for not objecting to comments the prosecutor made during the penalty hearing and standby counsel for not raising an issue accusing trial counsel of being ineffective for not objecting to the comments.*fn59 The comments were objectionable, Appellant contends, because they allegedly concerned the defense's plea for mercy and remarked on Appellant's failure to provide reasons why he shot the victim when he testified during the penalty hearing. The remarks were unfair and deprived Appellant of due process, in Appellant's view, because Appellant had been precluded from discussing the facts of the case and his innocence by the trial court, see N.T. 2/1/93, 6-9, and because the comments improperly advised the jury that it was inappropriate to show Appellant mercy. Appellant's Brief, 89-91.
The Commonwealth asks us to reject Appellant's claim that the comments were prejudicial on the ground that the propriety of the remarks was previously litigated on direct appeal. In the alternative the Commonwealth asserts that the claims lack arguable merit because the challenged remarks were not improper. Commonwealth's Brief, 94-97.
We cannot agree with the Commonwealth's assertion that Appellant is not entitled to review of this claim because it was previously litigated. The precise issue Appellant raises here concerns the ineffectiveness of direct appeal counsel for failing to raise a claim that trial counsel was ineffective for not objecting to the comment on grounds that the prosecutor committed prosecutorial misconduct, a claim that was preserved in post-verdict motions. Whether or not appellate counsel was ineffective is a discrete claim requiring independent review. See Ronald Collins, 888 A.2d at 573. Accordingly, review of this layered ineffectiveness claim follows.
First, the ineffectiveness claim fails because the prosecutor's remarks did not abase Appellant for not proclaiming his innocence or discussing the facts of the case but rather for not demonstrating remorse for the killing. This was entirely proper because a prosecutor is free to comment on the testimony presented by a defendant. See Commonwealth v. Clark, 710 A.2d 31, 38-39 (Pa. 1998). Thus, trial counsel was not ineffective for failing to object to the comment for this reason. As trial counsel was not ineffective, Appellant cannot establish the arguable merit prong of the ineffectiveness test with respect to appellate counsel.
Appellant's complaint that the remarks improperly advised the jury that it could not show mercy also lacks merit because a prosecutor may argue that mercy is not a valid ground upon which to base a sentencing verdict. See Commonwealth v. Hughes, 865 A.2d 761, 804-805 (Pa. 2004) (holding that prosecutor may argue that jury should balance mercy for defendant against mercy defendant showed victim); Commonwealth v. Freeman, 827 A.2d 385, 415-416 (Pa. 2003) (same); Commonwealth v. Bardo, 709 A.2d 871, 875-76 (Pa. 1998) (holding that the prosecutor was permitted to argue that the jury should not base its verdict on mercy); Commonwealth v. Washington, 700 A.2d 400, 415-416 (Pa. 1997) (holding that it was not improper for prosecutor to argue that jury should show defendant same mercy he showed victim). Accordingly, we hold that Appellant is not entitled to relief here because the prosecutor's comments were not objectionable and thus trial counsel cannot be held to have been ineffective for failing to object to the remarks at trial. Because trial counsel was not ineffective for failing to object, direct appeal counsel was not ineffective for failing to raise trial counsel's ineffectiveness on direct appeal.
XIV. DID THE TRIAL COURT ERRONEOUSLY PERMIT HEARSAY EVIDENCE ABOUT MR. FLETCHER'S PRIOR CONVICTION AND WERE STANDBY AND APPELLATE COUNSEL INEFFECTIVE IN FAILING TO RAISE THE ISSUE?
Appellant complains that appellate counsel were ineffective for not asserting that trial counsel was ineffective for not objecting on hearsay grounds to the introduction of the contents of an arrest warrant affidavit issued for Appellant regarding a charge of robbery lodged against him prior to the murder herein. After Appellant testified during the penalty hearing, the Commonwealth introduced evidence that Appellant had entered a guilty plea to a robbery charge for purposes of undermining Appellant's credibility with this crimen falsi crime. N.T. 2/2/93, 146-148. None of the details of the robbery were presented to the jury. However, in cross-examining the witness through whom the existence of the conviction was introduced, trial counsel implied by his questioning that Appellant had entered a guilty plea to a charge he did not actually commit. N.T. 2/2/93, 148-152. In rebuttal, the Commonwealth was granted permission, over objection, to have its witness read into the record the contents of the affidavit. The trial court overruled the objection after finding that trial counsel had "opened the door" to the admission of the contents of the affidavit through his cross-examination of the witness. N.T. 2/2/93, 152-156. Appellant now submits that the affidavit contained two inadmissible double-hearsay statements made by the complainant in the robbery and trial counsel should have objected to its admission into evidence on this ground. Instead, trial counsel proffered a general objection and then a motion for a mistrial.*fn60 Appellant's Brief, 91.
The Commonwealth asks us to reject this claim because Appellant failed to provide legal support for it. The Commonwealth also argues that this claim was raised and rejected in Fletcher I and thus is unreviewable because it was previously litigated. Commonwealth's Brief, 97-98.
In Fletcher I, Appellant argued on direct appeal that the trial court erred by permitting the Commonwealth's witness to read the affidavit into evidence because the affidavit contained inflammatory material and inadmissible hearsay. See Appellant's Brief and Record on Direct Appeal, 70. This Court held that Appellant's claim was meritless because the Commonwealth was properly granted the right to rebut the inference of innocence generated by trial counsel's questions of the Commonwealth's witness. Fletcher I, 750 A.2d at 278. In addition, this Court noted that the trial court gave the jury extensive instructions concerning the prior robbery conviction which included the admonition that the jury could only use that evidence to assess Appellant's credibility. Id. Given that direct appeal counsel did raise the issue Appellant now presents on direct appeal and in the absence of any separate challenge to appellate counsel's performance related thereto, it is clear that he was not ineffective and that Appellant's claim fails.
XV. THE DEATH SENTENCE SHOULD BE VACATED BECAUSE THIS COURT FAILED TO PROVIDE MEANINGFUL PROPORTIONALITY REVIEW.
Appellant claims that this Court in Fletcher I did not provide a meaningful or correct proportionality review to which he was entitled pursuant to now-repealed 42 Pa.C.S. § 9511(h)(3)(iii).*fn61 Appellant's complaint rests upon an assertion that a proper proportionality review could not have occurred on account of errors and omissions in a database administered by the Administrative Office of the Pennsylvania Courts (AOPC).*fn62 Appellant also claims that he was deprived of due process of law because he never received the materials stored by the AOPC and he was not provided an opportunity to be heard with respect to proportionality review. Appellant's Brief, 93. Finally, Appellant complains that direct appeal counsel was ineffective for not obtaining from the AOPC the materials utilized by this Court in conducting its proportionality review. Appellant's Brief, 93.
The Commonwealth asks that we hold the claim meritless because it has been previously litigated. The Commonwealth also submits that Appellant is not entitled to relief because he waived his claims by failing to raise them in his PCRA petition. Finally, the Commonwealth notes that this Court has previously rejected claims identical to the one Appellant raises here. Commonwealth's Brief, 98.
We agree that Appellant waived the issues he now presents because he did not raise them in his PCRA petition.*fn63 In his PCRA petition, Appellant claimed that the proportionality review this Court conducted on direct appeal was flawed because the Court allegedly did not consider cases in which life sentences were imposed. PCRA Petition, 239-240. Appellant did not raise a claim challenging the accuracy of the data compiled by the AOPC, a due process claim, or an ineffectiveness claim. Thus we hold that Appellant waived the claims he now presents on appeal. Pa.R.A.P. 302(a) (providing that issues not presented in the lower court are waived and cannot be presented for the first time on appeal).
The order of the PCRA court denying relief is affirmed. Jurisdiction is relinquished.*fn64
Mr. Chief Justice Castille, Messrs. Justice Eakin and Baer, Madame Justice Todd, and Mr. Justice McCaffery join the opinion.
Mr. Justice Saylor concurs in the result.