Appeal from the Order of the Court of Common Pleas of Philadelphia County, at No. CP-51-CR-0606741-1984 dated October 21, 2009
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant Willie Sneed's petition seeking relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm the order of the PCRA court.
On October 13, 1980, Appellant fatally shot Calvin Hawkins ("Hawkins") after discovering that Hawkins and two accomplices sold him aspirin instead of cocaine.*fn1 A jury convicted Appellant of first-degree murder and possession of an instrument of crime on March 14, 1985.*fn2 During the penalty phase, the jury found two aggravating circumstances and no mitigating circumstances,*fn3 resulting in the imposition of a sentence of death.*fn4 We affirmed on direct appeal, Commonwealth v. Sneed, 526 A.2d 749 (Pa. 1987), and Appellant did not seek review before the United States Supreme Court.
On January 16, 1997, Appellant filed a timely pro se PCRA petition.*fn5 For unknown reasons, Appellant was not appointed counsel, and the PCRA petition was never reviewed. On July 12, 1999, then-Governor Thomas Ridge issued a warrant scheduling Appellant's execution for September 14, 1999. Newly appointed counsel filed an emergency motion for a stay of execution on July 22, 1999. The PCRA court granted the motion and ordered counsel to file an amended PCRA petition.
On April 12, 2000, Appellant filed an amended PCRA petition raising twenty-five claims of error. The Commonwealth filed a motion to dismiss, and the PCRA court granted an evidentiary hearing on two issues: (1) whether the prosecutor at the 1985 trial violated Batson v. Kentucky, 476 U.S. 79 (1986), by using peremptory strikes in a racially discriminatory manner;*fn6 and (2) whether trial counsel was ineffective for failing to develop and present mitigating evidence at the penalty hearing. Notably, the PCRA court did not rule on Appellant's other claims of error.*fn7
On January 4, 2002, following several days of evidentiary hearings, the PCRA court found merit to Appellant's claims. Accordingly, the court granted Appellant a new trial based on the Batson claim and a new penalty hearing based on the ineffectiveness claim. The Commonwealth appealed, challenging both grants of relief.*fn8
This Court reversed in part and affirmed in part. Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006). Batson was decided while Appellant's direct appeal was pending and we noted that Appellant was entitled to Batson's retroactive benefit only if he anticipated, raised, and preserved a Batson claim at trial and on direct appeal. Since he did not, we held that any "Batson qua Batson claim," such as that which the PCRA court erroneously deemed both cognizable and meritorious on collateral attack, was waived under the PCRA, and Appellant could proceed only via a claim of ineffective assistance of counsel claim. We explained that counsel could not be faulted "for failing to raise a Batson objection at trial because Batson did not yet exist." We reasoned, however, that even if counsel could be faulted for failing to anticipate the Batson rule, there were "practical hurdles that would have derailed such an endeavor." Sneed, 899 A.2d at 1075-76. We concluded:
[The] trial record contained no Batson objection, no argument, no finding of a prima facie case, no statement of reasons for strikes in the face of a finding of a prima facie case, and no assessment of the credibility of those reasons. The PCRA court's finding of ineffectiveness failed to accord any deference to the presumption of effectiveness, or the fact that Batson was a new rule. Because the award of a new trial is unsustainable under Batson, .. we vacate the order below granting a new trial.
Id. at 1077 (emphasis in original).
This Court affirmed the PCRA court's grant of a new penalty hearing based on counsel's failure to present mitigation evidence, explaining that trial counsel had an obligation to conduct a reasonable investigation into Appellant's background. Such an investigation would have revealed that Appellant experienced an abusive and dysfunctional childhood from which he continued to suffer mental health effects. We stated: "[I]f the jury had heard testimony and argument regarding the mitigation evidence presented by [Appellant] at the PCRA hearing, there is a reasonable probability that at least one juror would have struck a different balance and voted not to impose the death penalty." Id. at 1084. Since Appellant was denied the effective assistance of counsel during the penalty phase, we affirmed the grant of a new penalty hearing.
Prior to the scheduling of the new penalty hearing, Appellant requested that the PCRA court address his allegations of guilt phase error that were raised in the amended petition but never reviewed. On November 16, 2006, the PCRA court held a hearing at which Appellant argued that while the court reviewed two of his claims, it did not rule on the other allegations of guilt phase error and was required to do so prior to the penalty hearing. See Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001). The Commonwealth countered that in granting a hearing limited to the Batson and penalty phase ineffectiveness claims, the court rejected as meritless all other allegations of error. The PCRA court scheduled a hearing for December 28, 2006, to determine the status of the remaining PCRA claims. On that date, the PCRA court orally denied the remaining guilt phase claims without holding an evidentiary hearing.*fn9
Appellant appealed, and the PCRA court issued an opinion on March 14, 2007. Appellant then sought review before this Court. On December 13, 2007, we quashed the appeal because the order was not "entered on the docket."*fn10 Order, 12/13/07, at 1. Neither party took any further action until October 9, 2009, when Appellant requested that the PCRA court resolve the matter.*fn11 The PCRA court entered an order dismissing the remaining claims on October 21, 2009. Appellant subsequently filed the instant appeal.
Before turning to the substance of Appellant's claims, we address the procedural posture of this case. In his amended PCRA petition, Appellant raised twenty-five claims of error. The PCRA court conducted a hearing on two of these claims. As noted in our 2006 decision, the PCRA court did not pass on the other claims raised. Sneed, 899 A.2d at 1071. Indeed, the parties agree that the PCRA court never issued an order dismissing or denying the remaining claims. N.T., 11/16/06, at 5, 13-14. Since these remaining allegations of error were never resolved, review by the PCRA court at the present stage was appropriate.*fn12 See Commonwealth v. Williams, 732 A.2d 1167, 1192-93 (Pa. 1999) (Castille, J., concurring) (emphasizing importance of meaningful opinion "which addresses all the relevant issues and which states the court's reasons for denying relief"); Commonwealth v. Fletcher, 896 A.2d 508, 523 (Pa. 2006) (remanding to PCRA court to address any unresolved claims necessary for final disposition and to prepare written opinion).
Likewise, we ascertain no error in the PCRA court's decision to address the outstanding guilt phase claims prior to conducting a new penalty hearing. In Bryant, supra, this Court held that review of a PCRA court's decision denying guilt phase relief should precede the imposition of a new sentence: "Re-sentencing the defendant before engaging in appellate review of the denial of PCRA relief . . . results in piecemeal litigation, delay in the determination of guilt phase issues, and potential misuse of judicial resources if the new sentence is rendered moot by subsequent disposition of guilt phase issues." 780 A.2d at 648; see also Commonwealth v. Collins, 888 A.2d 564, 568 (Pa. 2005). Thus, the PCRA court followed an appropriate course of action by resolving the outstanding guilt phase claims prior to conducting the new penalty hearing.
We now turn to the substance of Appellant's PCRA challenges. "On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Abu-- Jamal, 833 A.2d 719, 723 (Pa. 2003), cert. denied, 641 U.S. 1048 (2004) (citing Commonwealth v. Breakiron, 781 A.2d 94, 97 n.4 (Pa. 2001)). We must determine whether the PCRA court's denial of relief by dismissing Appellant's remaining guilt phase claims without an evidentiary hearing was proper.
In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in 42 Pa.C.S. § 9543(a)(2)*fn13 and that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A claim is previously litigated under the PCRA if the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b).
Under Pennsylvania Rule of Criminal Procedure 909, the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).
Appellant raises claims of ineffective assistance of counsel under both the Pennsylvania Constitution and the United States Constitution. The test for ineffectiveness is the same under both charters. Strickland v. Washington, 466 U.S. 668 (1984).*fn14 To prevail on a claim that counsel was constitutionally ineffective, the defendant must overcome the presumption that counsel was effective by showing that:
(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). "[B]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to prove that counsel was ineffective." Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011). Moreover, a failure to meet any of the prongs bars relief. Pierce, 786 A.2d at 221--22.
Appellant was represented by the same counsel at trial and on direct appeal; thus, the PCRA proceeding was Appellant's first opportunity to challenge the stewardship of prior counsel. Consequently, Appellant's ineffectiveness claims are not waived.*fn15 Commonwealth v. Hughes, 865 A.2d 761, 775 (Pa. 2004). We address each of his allegations seriatim.
I. "Abdication" of the Defense
Appellant first asserts that counsel was ineffective because he "abdicated" the defense. Appellant raises three distinct claims under this rubric. Appellant initially contends that counsel was ineffective because he "failed to give an opening statement, which would have laid the foundation for an attack on the witnesses' credibility." Brief of Appellant at 9. Appellant presents no further argument or analysis in support of his bald assertion. As the Commonwealth and the PCRA court articulated, existing decisional law, which Appellant inexplicably fails to acknowledge, makes clear that the decision concerning such statements falls within the realm of trial strategy. This Court has recognized that counsel cannot be deemed ineffective per se for failing to make an opening statement. Commonwealth v. Johnson, 966 A.2d 523, 531-32 (Pa. 2009) ("[W]e will not presume that the PCRA court was unaware of the prevailing law, which holds that trial counsel 'cannot be deemed ineffective per se for failing to make an opening statement.' Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1066 (2002)."). Appellant's undeveloped claim relative to counsel is insufficient to prove an entitlement to relief. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
In his second claim, Appellant argues that counsel's performance was deficient because counsel failed to "adequately" cross-examine three of the Commonwealth's witnesses: Zeb Liverman, Charles Russell, and Robert Henderson. Although the PCRA court did not address this allegation in its opinion, a remand is unwarranted because it is apparent from the record that the claim lacks merit. See Commonwealth v. Smith, 17 A.3d 873, 888 (Pa. 2011). "Where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). "A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Id. A claim of ineffectiveness generally cannot succeed "through comparing, in hindsight, the trial strategy employed with alternatives not pursued." Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002).
It must also be kept in mind that, as the Commonwealth avers, even though Appellant's hindsight claims involve trial strategy, Appellant herein failed even to make an allegation as to what counsel would state in response to the accusations. Commonwealth Brief at 17-19. Instead, Appellant presents mere conclusory allegations or requests a remand for a hearing. PCRA hearings are not discovery expeditions; rather, they are conducted when necessary to offer the petitioner an opportunity to prove that which he already has asserted, and only when his proffer establishes a colorable claim about which there remains a material issue of fact. See Commonwealth v. Edmiston, 851 A.2d 883, 887 n.3 (Pa. 2004). It is not enough to take a cold record, state that "counsel could have done this instead, or in addition," and then declare an entitlement to relief or discovery and further delay. On the proffers made, Appellant has not proven that counsel was ineffective or that he is entitled to a hearing.
With respect to Zeb Liverman ("Liverman"), Appellant argues that counsel failed to use available evidence to undermine his credibility. In particular, Appellant claims that counsel failed to elicit evidence pertaining to Liverman's history of drug use and criminal behavior. This assertion is belied by the record. Defense counsel aggressively cross-examined Liverman about his lengthy criminal history, including twenty prior arrests, six convictions, and several parole violations. N.T., 3/11/85, at 139-42. Defense counsel also elicited testimony regarding Liverman's activities as a drug dealer and his drug use on the night in question, including the large quantity of cocaine he consumed. Id. at 142-50, 159. Thus, there is no merit to the contention that defense counsel failed to inquire into Liverman's drug use or criminal history.
Appellant further avers that counsel was ineffective for failing to cross-examine Liverman about a statement he gave to the police. Appellant cites the following excerpt: "I could have been [at the garage at 17th and Kater] but I don't remember[,] I was doing heavy drugs at the time, I was doing heroin, cocaine, meth, anything I could get my hands on, so I don't really remember." Exhibit D, Certified Record ("C.R.") at D-25. Appellant conveniently omits that immediately after claiming he remembered nothing about the murder, Liverman stated, "Wait a minute let me tell you the truth about this."
Id. Liverman then proceeded to recount the events surrounding the shooting and also told police about the murder of Anthony D'Amore, another of Appellant's victims, discussed infra. If counsel had questioned Liverman about the initial comment, the Commonwealth could have rehabilitated him with the remainder of his statement. Consequently, we will not find counsel ineffective for failing to introduce this statement, as counsel's strategy had a reasonable basis designed to effectuate Appellant's interests.
As previously noted, defense counsel forcefully cross-examined Liverman, portraying him as a habitual criminal who was high on drugs at the time of the murder. The mere fact that current counsel might have utilized an alternative strategy does not render the approach of trial counsel ineffective. Accordingly, the ...