No. 437 CAP Appeal from the Order of the Court of Common Pleas of Philadelphia County entered on June 27, 2003 denying the Petition for Post-Conviction Relief at No. 9011-0300 1/1
The opinion of the court was delivered by: Mr. Chief Justice Castille
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
SUBMITTED: December 5, 2008
This is a pro se capital appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant's petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm.
On November 12, 1991, a jury sitting before the Honorable Ricardo C. Jackson convicted appellant of first-degree murder, aggravated assault, and possessing an instrument of crime. The convictions arose from the brutal killing of Sheila Manigault, whose beaten and scalded body was found on the morning of April 6, 1990 submerged in the bathtub of the West Philadelphia apartment that she shared with her three young children.*fn1 After finding two aggravating circumstances and no mitigating circumstances, the same jury returned a sentencing verdict of death on the murder charge. See 42 Pa.C.S. § 9711(c)(1)(iv) ("[T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . . . and no mitigating circumstance . . . .").*fn2 On direct appeal, this Court unanimously affirmed appellant's convictions and judgment of sentence. Commonwealth v. Lester, 722 A.2d 997 (Pa. 1998). This Court denied reargument on April 19, 1999.
Appellant filed a timely pro se PCRA petition on June 25, 1999, and an amended petition on September 15, 1999. On January 12, 2000, the PCRA court appointed Lee Mandell, Esq., as counsel for appellant, but appellant soon requested permission to proceed pro se. Appellant filed pro se supplemental PCRA petitions on June 20, 2000 and November 3, 2000. In early 2001, the PCRA court ordered a mental health evaluation, which was conducted on February 23, 2001. The evaluation resulted in a report that appellant had no mental health issues or substance abuse issues at the time, understood the "proper roles" and "major principles involved in a court of law," and was competent to assist in his own defense. Mental Health Evaluation Report of James G. Jones, M.D., 2/26/01, at 2 (unnumbered). The PCRA court also conducted an extensive colloquy with appellant on the record before granting his request to proceed pro se on March 23, 2001. The Court appointed Attorney Mandell as advisory counsel. Thereafter, appellant filed an additional pro se supplemental PCRA petition on September 19, 2001; the Commonwealth filed a motion to dismiss on April 19, 2002; and appellant filed yet another supplemental pro se petition on May 30, 2002. The court sent appellant a notice of intention to dismiss pursuant to Pa.R.Crim.P. 907 on August 14, 2002. However, on September 13, 2002, the PCRA court found appellant incompetent to proceed pro se, based upon its further review of his submissions, and noted that appellant and Attorney Mandell had irreconcilable differences. The court thus allowed Attorney Mandell to withdraw and Daniel A. Rendine, Esq., was appointed as counsel for appellant on September 20, 2002. In November 2002, however, the PCRA court again permitted appellant to represent himself and directed Attorney Rendine to serve as back-up counsel. The court then held an evidentiary hearing on April 28, 2003 and, on June 27, 2003, denied PCRA relief and formally dismissed Attorney Rendine from the case.
After appellant appealed to this Court, attorneys from the Defender Association of Philadelphia, Federal Court Division, Capital Habeas Unit ("Federal Defender") entered appearances on behalf of appellant and filed a Pa.R.A.P. 1925(b) statement on appellant's behalf on April 12, 2004. Appellant then filed his own 1925(b) statement, which was dated April 12, 2004 and docketed on April 26, 2004. On May 16, 2006, appellant filed a pro se Petition to Remove Counsel and Proceed Pro Se. On June 6, 2006, the Federal Defender filed a Response, urging denial of appellant's petition. On June 15, 2006, this Court ordered the PCRA court to conduct a hearing on appellant's request to proceed pro se, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). We did not relinquish jurisdiction.
At a hearing on March 30, 2007, the Commonwealth asserted that since appellant clearly had no desire to cooperate with the Federal Defender or undergo further competency evaluation by doctors, the Grazier hearing should proceed "with all due haste." N.T., 3/30/07, at 4. The Federal Defender responded that in its view, appellant was not competent to waive counsel and that it had a written report from a doctor who did not believe appellant was competent. The Federal Defender sought to have a competency proceeding held prior to the Grazier hearing. The PCRA court took note of the "stalemate" created when appellant's refusal to cooperate with the Federal Defender respecting his competency led the Federal Defender to conclude that appellant was incompetent. The court stated that the matter could not be delayed any further, denied the request for a pre-Grazier competency hearing, and scheduled the Grazier hearing for April 27, 2007. The Federal Defender's appeal of that interlocutory ruling was quashed by this Court in an August 24, 2007 order.
The Grazier hearing was held on April 27, 2007. The Federal Defender attempted to raise new substantive claims in addition to the Grazier question, but the PCRA court declined to consider claims other than the one remanded to it. Following the hearing, the PCRA court issued an order on the same date finding appellant competent to waive counsel and permitting him "to proceed pro se without standby counsel being appointed in accordance with [his] request at the Grazier hearing." The Federal Defender appealed that order and on July 25, 2007, the PCRA court issued an opinion on the Grazier issue. The PCRA court noted that its determination that appellant's waiver of counsel was knowing and voluntary was supported by the court-ordered mental health evaluation, the Grazier colloquy, and appellant's behavior at the Grazier hearing as well as at several previous hearings.*fn3 The Federal Defender's unauthorized appeal from the grant of relief appellant himself had requested through the Grazier proceedings was ultimately quashed by order of this Court dated October 31, 2007.
The appeal has finally been briefed, ably enough by appellant, and is ready for disposition. Our general review of a PCRA court's decision is limited to examining whether the court's findings of fact are supported by the record and whether its legal conclusions are free of error. Commonwealth v. Cook, 952 A.2d 594, 601 (Pa. 2008).
All twelve of appellant's claims allege ineffective assistance of counsel. "It is settled that the test for counsel ineffectiveness is the same under both the Pennsylvania and Federal Constitutions: it is the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984)." Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004) (collecting cases). The contours of the inquiry are as follows:
To better focus the Strickland analysis, this Court has applied the performance part of the test by looking both to the arguable merit of the claim lodged against counsel as well as the objective reasonableness of the path taken, or not taken, by counsel. E.g., [Commonwealth v. Bomar, 826 A.2d 831, 855 n.19 (Pa. 2003), cert. denied, 540 U.S. 1115, 124 S. Ct. 1053 (2003)]. Thus, the constitutional ineffectiveness standard requires the defendant to rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. (Michael) Pierce, 786 A.2d 203, 213 (Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. (Michael) Pierce, 786 A.2d at 221-23; see also Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.").
Commonwealth v. Spotz, 870 A.2d 822, 829-30 (Pa. 2005), cert. denied, 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005)).*fn4 Respecting prejudice, "[a] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (citing Strickland, 466 U.S. at 694).
In addition, because appellant was represented by new counsel on direct appeal, and his appeal was pending on collateral review prior to this Court's decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), those of appellant's ineffectiveness claims deriving from trial counsel's performance are cognizable only as "layered" claims. Id. at 739 n.16. To secure relief as to these claims, appellant must plead and prove Strickland/Pierce ineffectiveness as to each relevant layer of representation. See Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003).
A. Failure to raise prosecutorial misconduct claim on appeal
Appellant first claims that direct appeal counsel was ineffective for abandoning or undermining appellant's claim that the prosecutor committed "misconduct" during his opening statement and misled the jury when he asserted that the name appellant gave when he was arrested, Imanuel Ali, was an alias used for purposes of concealment. Appellant's birth name was Emanuel Lester but, he argues, "Ali" is now his legal surname, which he has been using since 1975, and had legally changed in 1983, eight years before the murder of Sheila Manigault. Appellant contends that the prosecutor knew or should have known that "Ali" was his new surname and that the prosecutor's description of it as an alias created an unfair and prejudicial impression of appellant's evasiveness and consciousness of guilt and thereby deprived him of a fair trial under the constitutional guarantees of equal protection and due process. Appellant adds that the Commonwealth failed to disclose to the defense that it would be introducing evidence of appellant's use of different names on various documents and that this non-disclosure prejudiced him by preventing him from rebutting the Commonwealth's misrepresentation of the evidence and addressing the eventual jury instruction on flight/evasion. Appellant contends that if the jury had been made aware that at the time of his arrest, the name he gave was his then-legal name (Imanuel Ali) and that he possessed documents identifying him by that name, there is a strong possibility that it would have concluded that he displayed no consciousness of guilt.
Appellant asserts that the foregoing claim was raised and preserved in his own pro se supplemental Rule 1925(b) statement as a distinct and independent claim of prosecutorial misconduct, but the claim was abandoned or undermined by direct appeal counsel's decision to present it as a matter of trial counsel ineffectiveness. Appellant argues that the claim as he presented it post-verdict was stronger than the derivative ineffectiveness claim raised by direct appeal counsel and stood a better chance of success on appeal.
In response, the Commonwealth argues that appellant has waived any claim sounding in prosecutorial misconduct because he did not object at trial to the prosecutor's reference to "Imanuel Ali" as an alias, much less did he assert a constitutional violation. The Commonwealth relatedly adds that appellant's claim that direct appeal counsel was ineffective for failing to assert this claim fails because appellant does not argue trial counsel's underlying ineffectiveness for failing to object and also because the claim was not included in appellant's present Rule 1925(b) statement in the present appeal. The Commonwealth also notes that appellant's claim is unsupported with case law or relevant legal argument. Finally, the Commonwealth posits that appellant's claim in this regard was previously litigated on direct appeal.
The PCRA court found that this claim was previously litigated on appellant's direct appeal, where this Court held:
Trial counsel testified at the hearing on post-verdict motions that he did not know that appellant had changed his name to the name which the prosecution considered to be an alias. Counsel's failure to object to the characterization of the name as an alias was clearly reasonable given that counsel had no knowledge of appellant's name change.
The failure to raise a contemporaneous objection to a prosecutor's comment at trial waives any claim of error arising from the comment. Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008) (citing Pa.R.A.P. 302(a), which states that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal"). An appellant may, however, pursue a derivative and collateral claim based upon counsel ineffectiveness for failing to raise that contemporaneous objection. See id. at 428.
We agree with the Commonwealth that appellant's underlying claim of "prosecutorial misconduct" was waived at trial, and thus, direct appeal counsel cannot be deemed ineffective for pursuing the claim as one sounding in trial counsel ineffectiveness, rather than as a claim of trial court or prosecutorial error. At trial, the prosecutor said the following during his opening statement:
You will hear of the efforts of the assigned detective, Detective Dougherty, to locate Mr. Lester, because Mr. Lester never, as I said, appeared in [the area of the murder] again. He was up on Broad Street, and when the police arrested him he had a different name, he had the name Emanuel [sic] Ali, further evidence of his efforts to conceal what he had done and how he was arrested.
N.T., 11/6/91, at 32. The transcript reveals no contemporaneous objection by defense counsel, which appellant does not dispute. Indeed, counsel's failure to object was the very basis for the derivative claim of trial counsel ineffectiveness that was specifically raised and rejected on direct appeal. Appellant's argument that he preserved the claim by raising it in his pro se Rule 1925(b) statement cannot undo the trial-level waiver: a Rule 1925(b) statement is not a substitute for the contemporaneous objection required at trial. Moreover, appellant was represented by counsel on appeal, so his pro se Rule 1925(b) statement was a legal nullity. See Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993) ("[T]here is no constitutional right to hybrid representation either at trial or on appeal. . . . [A defendant may not] confuse and overburden the court by his own pro se filings of briefs at the same time his counsel is filing briefs on his behalf.").
Accordingly, any primary claim of prosecutorial misconduct or, more precisely, any claim of trial court error in responding to a preserved, contemporaneous objection to alleged prosecutorial misconduct based upon the above-quoted passage was waived. See Commonwealth v. Tedford, 960 A.2d 1, 28-29 (Pa. 2008) ("Where, as here, no objection was raised, there is no claim of 'prosecutorial misconduct' as such available. There is, instead, a claim of ineffectiveness for failing to object, so as to permit the trial court to rule."). Furthermore, appellant specifically disavows any derivative claim of trial counsel ineffectiveness for failure to object, and for obvious reasons: that claim was previously litigated on direct appeal. Because appellant has not shown ineffectiveness on the part of direct appeal counsel for raising this issue as a cognizable claim of trial counsel ineffectiveness, rather than as an unavailable claim of trial court error, the present claim necessarily fails.
B. Failure to object to expert testimony
Appellant next claims that direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to testimony by the Commonwealth's criminal evidence expert, Caesar Mujica. Mr. Mujica testified regarding the "red substance" visible on a toy kitchen set at the crime scene, which was also visible in a crime scene photograph. Appellant argues that neither the red substance nor the toy kitchen set was referenced on the property receipt listing the evidence collected at the scene and sent to the laboratory to be analyzed; thus, the expert could not properly say that the substance was the victim's blood or even blood at all. Appellant contends that trial counsel should have objected to Mr. Mujica's opinion that the substance was blood, which permitted the prosecutor to refer to the blood-smeared toy kitchen set in what appellant alleges was a "misrepresented" characterization of the events surrounding the murder as an "urban horror story." That characterization, appellant argues, misled and inflamed the jury. Moreover, appellant labels these references as "fabrications" and deliberate misrepresentations in the Commonwealth's case against him.
The Commonwealth responds by arguing, inter alia, that trial counsel was not obliged to object simply because the Commonwealth had not tested every single bloody item from the crime scene. The Commonwealth asserts that Mr. Mujica's inference was supported by evidence that there was blood found throughout the victim's apartment, and that appellant has not shown that Mr. Mujica, as a matter of fact, was wrong. Furthermore, in the Commonwealth's estimation, the mere fact that "one of the many places in which blood was found [at the scene] was on a child's toy is a minor point; its exclusion would not have likely changed the trial result." Commonwealth's Brief at 17-18 n.14. Because there was nothing in either Mr. Mujica's statement or the prosecutor's comments that called for objection, the Commonwealth submits, trial counsel was not ineffective for failing to object, and direct appeal counsel cannot have been ineffective for not having pursued the matter on appeal.*fn5
The prosecution may not knowingly and deliberately misrepresent the evidence in order to gain a conviction. Miller v. Pate, 386 U.S. 1, 6-7 (1967). Nevertheless, a claim of purposeful prosecutorial misrepresentation will not stand if examination of the record fails to reveal any indication of deceptive tactics on the part of the prosecution. See Commonwealth v. Lobel, 523 A.2d 304, 308 (Pa. 1987). Minor discrepancies in the Commonwealth's case will not be considered false evidence. Commonwealth v. Williams, 301 A.2d 867, 869 (Pa. 1973); see also Commonwealth v. Harris, 817 A.2d 1033, 1051-52 (Pa. 2002).
Relevant to this claim, Mr. Mujica testified on direct examination as follows:
Q: Did you obtain, I think in the vernacular you gentlemen use, did you obtain physical evidence which was termed red substance?
Q: Can you tell the ladies and gentlemen of the jury in what particular areas, if you recall, a red substance, blood, was recovered or noted?
A: It was all over the apartment.
N.T., 11/6/91, at 78. Mr. Mujica then testified at length as to the various places throughout the apartment where he discovered a "red substance," including the following description of a photograph of the murder scene: "This is a close up view showing a red substance on the outside of a toy kitchen set near the west wall of the southeast bedroom." Id. at 90.
The crime scene investigators' apparent failure to reference either the toy kitchen set or the red substance visible on the toy set on the master list of the evidence collected does not render Mr. Mujica's testimony, to which there was no objection, untrue, incorrect, or unsupported by the evidence of record; much less does it prove fabrication on the part of the prosecution, as appellant intemperately suggests. Mr. Mujica, as well as other witnesses, testified to the undisputed fact that there was blood found throughout the victim's apartment in the aftermath of the murder.*fn6 The mere fact that the "red substance" on the toy set was not itself listed on the police evidence property receipt or tested at the laboratory does not mean that the photograph Mr. Mujica described was fabricated, nor does it make Mr. Mujica's testimony untrue, misleading, or a prosecutorial "fabrication" that obliged trial counsel to object.
Of course, counsel could have objected to any reference to the substance on the toy set on grounds that it had not specifically been tested, but to what ultimate purpose? The investigators' failure to sample and test the "red substance" from that particular item does not defeat the logical inference that the substance on the toy set was blood, since it is indisputable that blood was found throughout the apartment. By the same token, appellant has not demonstrated that the references caused Strickland prejudice. In light of the extensive and undisputed presence of blood throughout the victim's apartment, appellant has not shown a reasonable probability that the verdict would have been different if an objection had been made to the above testimony of Mr. Mujica and the prosecutor's mention of blood on the toy kitchen set. Accordingly, this layered Strickland claim fails.
C. Failure to object to in-court competency examination of child witness
Appellant next claims that direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to the trial court conducting the competency examination of the victim's daughter, N.M., in the presence of the jury.*fn7
Appellant argues that at the time of his trial, it was "accepted practice" to hold competency inquiries outside the presence of the jury, citing Commonwealth v. Repyneck, 124 A.2d 693, 696 (Pa. Super. 1956) ("[T]he jury was withdrawn from the court room and the court below heard testimony relative to the competency of the witness. This was proper and in accordance with accepted practice."). Appellant further argues that since competency to testify is a legal determination that is irrelevant to the jury's role as factfinder, conducting the competency inquiry in the jury's presence likely led the jury to confuse competency with credibility. In particular, appellant contends that, by declaring N.M. competent in the jury's presence after the conclusion of the examination, the trial court unfairly bolstered the child's credibility.
Appellant asserts that a claim based upon trial counsel's failure to object was raised in the nunc pro tunc post-sentencing motions filed by appellate counsel, but counsel then abandoned the claim on appeal. Appellant further relies upon Commonwealth v. Washington, 722 A.2d 643, 647 (Pa. 1998), where this Court established a per se rule requiring that child witness competency hearings be conducted outside the presence of the jury. Washington was handed down on the same day this Court's opinion was filed in appellant's direct appeal. In appellant's view, if direct appeal counsel had pursued this ineffectiveness claim, there is a reasonable probability that appellant could have benefited from the new per se rule in Washington, even though Washington involved a preserved claim, not a collateral Strickland attack.
Appellant argues in the alternative that trial counsel should have requested a special jury instruction distinguishing between competency and credibility and emphasizing the jury's role in the latter circumstance. Appellant adds that trial counsel's ineffectiveness in this regard should also have been pursued on appeal. Appellant speculates that without this specific instruction, the jury likely construed the trial court's ruling that N.M. was competent as approval of her credibility and veracity.
The Commonwealth responds, inter alia, that appellant's claim of trial counsel ineffectiveness fails because at the time of trial, there was no requirement that child witness competency hearings be conducted outside the presence of the jury. The Commonwealth adds that the court's general instructions to the jury as to witness credibility were sufficient and that appellant has not established what a specific instruction as to N.M.'s competency would or should have said, by which authority such an instruction was required, or how such an instruction would likely have resulted in a different overall verdict.
In rejecting this layered claim, the PCRA court noted that the law at the time of appellant's trial did not prohibit holding competency hearings in the jury's presence, and thus appellant's underlying claim was meritless. The PCRA court added that even assuming there was a legal basis upon which to object, appellant failed to prove that the outcome of the trial would have been different if counsel had acted otherwise, in light of the overwhelming evidence of appellant's guilt and the fact that N.M.'s testimony coincided with her prior implication of appellant, as well as the physical evidence and the autopsy results. The PCRA court also concluded that the trial court's competency finding did not bolster N.M.'s credibility, particularly because the trial court said nothing to influence the jury's consideration of her veracity. In the PCRA court's estimation, the competency examination was conducted in accordance with governing legal requirements: both counsel questioned N.M. concerning her duty to tell the truth and her answers to those questions showed that she "possessed the requisite degree of awareness and ability to recall past events and ability to recount them accurately to be declared competent." The PCRA court did not separately address appellant's claim that trial counsel was ineffective for failing to request a special instruction concerning the distinction between competence and credibility. PCRA Ct. Op. at 8-13.
Washington involved a direct appeal where the defendant specifically preserved an objection at trial to competency examinations of the two child witnesses being conducted in the presence of the jury; the witnesses were also the victims of the sexual assaults with which the defendant was charged. The Court majority noted first that competency is a legal issue to be decided by a judge, but expressed concern that, because assessing the truthfulness of a witness during trial is a function of the jury as factfinder, conducting competency proceedings in the jury's presence "invariably" could influence the jury's credibility determination. The majority expressed particular concern that the trial judge's in-court ruling on competency could be viewed as a judicial "endorsement" of the witness's credibility. In addition, the majority noted, questions relevant to a competency examination, i.e., respecting the witness's appreciation for the importance of telling the truth, might be "improper during trial before the jury because they would be irrelevant, call for hearsay, or violate evidentiary rules and statutes" and thus, "conducting the hearing in the presence of the jury also gives rise to the risk that the jury may hear inadmissible testimony." 722 A.2d at 646.
Following these preliminary observations, the Washington majority noted that the issue before it was "one of first impression" and surveyed the approach of other jurisdictions, which revealed "a division of authority." Id. at 646. The Washington majority further acknowledged support for the contrary view that "there are valid reasons to allow a jury to observe voir dire of a child witness." Id. at 647. The opinion quoted an unreported decision from the Ohio Court of Appeals that relied upon "commentators" who had addressed this issue and stated that:
There are occasions when no harm will result from the jury hearing foundational matters[, and] in such cases, convenience and time considerations are better served by not excusing the jury. Moreover, in many instances, the same evidence which is relevant to the foundation requirements is also relevant to weight and credibility. ...