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Commonwealth of Pennsylvania v. Mark Newton Spotz

June 26, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK NEWTON SPOTZ, APPELLANT



Appeal from the Order entered on March 25, 2010, in the Court of Common Pleas, Criminal Division of York County at No. CP-67-CR-0001673-1995

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

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: August 29, 2011

OPINION

Mark Newton Spotz ("Appellant") has appealed from the denial of his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"),*fn1 following his conviction in York County for first-degree murder and the imposition of a sentence of death. Concluding that there is no merit to any of the numerous issues that Appellant has raised on appeal, we affirm the order of the PCRA court.

To begin, we set forth the relevant facts of the case, summarized primarily from this Court's opinion on direct appeal. See Commonwealth v. Spotz, 756 A.2d 1139, 1147-48 (Pa. 2000) ("Spotz II"). At 6:20 a.m. on February 2, 1995, in York County, Appellant approached Penny Gunnet's vehicle on the pretense of asking her for directions. He forced her into the passenger seat of her car at gunpoint and then drove to an isolated area. Christina Noland, Appellant's then-girlfriend, followed him, driving a car they had stolen the previous day in Schuylkill County. While both cars were stopped on an isolated road, Noland heard three gunshots. Appellant then sped off in Ms. Gunnet's car, with Noland in unsuccessful pursuit in the other stolen car. Ms. Gunnet's body was found later that morning under the wheels of her abandoned car. Hours after the murder, Appellant tried to sell some of Ms. Gunnet's jewelry, and he later gave her rings to his ex-wife, Michelle Rhinehart.

Police apprehended Appellant in a motel room in Carlisle, Blair County, the day after Ms. Gunnet's murder. When Appellant opened the door to the room and surrendered, he discarded a silver nine-millimeter semiautomatic pistol that was subsequently identified as the weapon that had fired at least two of the three nine-millimeter bullets recovered from Ms. Gunnet's car. In the motel room, police found Appellant's bloodstained jeans, a knife, nine-millimeter "full metal jacket" ammunition, five credit cards issued in Ms. Gunnet's name, and one credit card issued in her husband's name.

The abduction and murder of Ms. Gunnet was part of a three-day crime spree, during which Appellant committed four homicides in four counties. Two days before Ms. Gunnet's murder, on January 31, 1995, Appellant shot and killed his brother, Dustin Spotz, in Clearfield County and then fled with Ms. Noland. The next day, in need of money and a vehicle, Appellant abducted June Ohlinger at gunpoint in Schuylkill County, drove her car to a remote area, and then shot her in the head. After a brief trip to Rehoboth Beach, Delaware, where Appellant and Ms. Noland attempted to alter their appearances, they drove to York County in search of another vehicle to steal. This was the point at which they came upon Ms. Gunnet. Following the abduction and murder of Ms. Gunnet, Ms. Noland went to Altoona in Blair County, where she surrendered to police, and Appellant went to Cumberland County, where he abducted and murdered his fourth victim, Betty Amstutz, and stole her car and her money.

Appellant was tried separately for each homicide. He was ultimately convicted of voluntary manslaughter in the death of Dustin Spotz in Clearfield County, and of first-degree murder in the deaths of Ms. Ohlinger, Ms. Gunnet, and Ms. Amstutz, in, respectively, Schuylkill, York, and Cumberland Counties. During the guilt phase of his trials in York and Cumberland Counties, Appellant proceeded pro se. Although the Superior Court overturned Appellant's voluntary manslaughter conviction and granted him a new trial, this Court reversed and reinstated the conviction. Commonwealth v. Spotz, 870 A.2d 822 (Pa. 2005) ("Spotz IV"). On direct appeal, this Court affirmed each of Appellant's three first-degree murder convictions and sentences of death. See Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998) (Schuylkill County) ("Spotz I"); Spotz II, 756 A.2d at 1139 (York County); Commonwealth v. Spotz, 759 A.2d 1280 (Pa. 2000) (Cumberland County) ("Spotz III"). In addition, we subsequently affirmed the orders of the PCRA courts denying Appellant collateral relief from his Schuylkill County and Cumberland County first-degree murder convictions. See, respectively, Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006) ("Spotz V") and Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) ("Spotz VI"). Here, Appellant seeks review of the order of the PCRA court denying his petition for collateral relief from his York County first-degree murder conviction.

Appellant filed a pro se PCRA petition challenging his York County conviction as well as a request for appointment of counsel in April 2001.*fn2 On August 20, 2001, the Defender Association of Philadelphia filed a PCRA petition on Appellant's behalf. See Amended Petition for Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and for Statutory Post-Conviction Relief under the PCRA, filed 8/20/01. Subsequently, the Defender Association filed two supplements, on May 20, 2002, and May 31, 2007, respectively. With all of these filings, Appellant raised 34 issues before the PCRA court. PCRA Court Opinion, dated March 25, 2010, at 4. The court held a PCRA hearing from September 17 through September 19, 2007.*fn3 After Appellant's competency was placed into question, the PCRA court continued the hearing, pending completion of competency evaluations. The PCRA court subsequently determined that Appellant was competent, and then resumed the PCRA hearing from June 9 through June 13, 2008. Appellant appeared via videoconference. Id. at 5. The PCRA court filed an opinion and order on March 25, 2010, denying all of Appellant's claims.

Appellant filed a timely notice of appeal to this Court, raising 11 issues for review,*fn4 most of which include several sub-issues, for an approximate total of 37 claims.

Before addressing the issues raised, we set forth our standard of review, the relevant statutory requirements under the PCRA, and the relevant legal principles controlling claims of ineffective assistance of counsel. See Spotz VI, 18 A.3d at 259-60.

Under the applicable standard of review, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011). The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions. Id.

To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a constitutional violation or ineffectiveness of counsel, either of which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been 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). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2); see Hutchinson, supra at 284-85; Spotz VI, supra at 259.

With respect to claims of ineffective assistance of counsel, we begin with the presumption that counsel is effective.*fn5 Hutchinson, supra at 285. To prevail on an ineffectiveness claim, a petitioner must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's action or inaction. Id. (citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). With regard to the second, i.e., the "reasonable basis" prong, we will conclude that counsel's chosen strategy lacked a reasonable basis only if the petitioner proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Id. (quoting Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006)). To establish the third, i.e., the prejudice prong, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Id.

Issue 1: Waiver of Counsel

In Issue 1, Appellant claims that his guilt-phase waiver of counsel was constitutionally invalid because of four alleged circumstances: (a) counsel's conflict of interest; (b) counsel's failure to investigate or prepare a guilt-phase defense; (c) Appellant's mental incapacity; and (d) the trial court's improper restrictions on standby counsel. Just prior to trial, Appellant indicated to the court that he wanted to proceed pro se because of alleged conflicts with his counsel, assistant public defenders Bruce Blocher and Suzanne Smith. After an extensive colloquy, the trial court granted Appellant's request to represent himself, and appointed Mr. Blocher and Ms. Smith as standby counsel. Notes of Testimony ("N.T.") Trial, 4/8/96, at 12, and 4/12/96, at 32-36.

Appellant does not challenge the colloquy; rather, he asserts that his "purported waiver [of the right to counsel] was an incompetent and invalid by-product" of the factors listed above. Appellant's Brief at 18.

The PCRA court denied relief, citing the trial court's two thorough and proper colloquies; crediting defense counsel's PCRA testimony that Appellant understood what was happening at trial and the nature of his offense; and recognizing that this Court had concluded on direct appeal that the trial court did not abuse its discretion in denying Appellant's pretrial request for appointment of new counsel. PCRA Court Opinion, dated 3/25/10, at 8-11 (citing Spotz II, 756 A.2d at 1150). We address the four circumstances identified by Appellant in turn, recognizing that each constitutes a separate sub-issue.

With regard to sub-issue (a), Appellant alleges that defense counsel had three conflicts of interest, rendering Appellant's waiver of counsel involuntary. The first alleged conflict was Mr. Blocher's representation of another defendant, whose interests conflicted with Appellant's interests. The potential conflict was addressed in a pretrial hearing held on June 30, 1995. At that time, Mr. Blocher informed the trial court that two individuals, Russell Bloss and Tyrone Lowe, who were imprisoned with Appellant, had made statements to officials from Cumberland County to the effect that they had heard Appellant admit his involvement in the Schuylkill, York, and Clearfield County homicides. N.T. Pre-trial Hearing, 6/30/95, at 2. Mr. Blocher was representing Mr. Bloss at the time he made the statements, although Mr. Blocher was not present when Mr. Bloss spoke with the officials. Mr. Lowe was represented by another attorney in the public defender's office. At the June 30, 1995 hearing, the prosecutor stated that he did not intend to call Bloss or Lowe as witnesses at Appellant's trial. Id. at 2-3. Appellant stated that he did not have a problem with Mr. Blocher's representation so long as the public defenders were not "prejudiced" against him. Id. at 3. Mr. Blocher stated on the record that he had no prejudice toward Appellant because he had no idea of the circumstances precipitating the Bloss/Lowe statements or their validity. Id. at 3-4. The trial court issued an order permitting Mr. Blocher to remain as Appellant's counsel and finding no conflict of interest so long as the Bloss/Lowe information was not used by the Commonwealth. Neither Mr. Bloss nor Mr. Lowe was called as a witness at Appellant's trial.

The entire matter was raised at the PCRA hearing. During Appellant's direct examination, he confirmed that, at the time of the June 30, 1995 hearing, he was not concerned about the Bloss/Lowe statements, was satisfied with the resolution of the issue, and had no further conversations with counsel concerning this issue. N.T. PCRA Hearing, 6/13/2008, at 790-97. Nonetheless, on cross-examination, Appellant asserted that the Bloss/Lowe statements "prejudiced" his counsel against him. Id. at 884. Appellant has not provided the slightest explanation, rationale, or argument as to how or why his view of counsel's response to the statements and attitude toward him changed between the time of the June 30, 1995 pretrial hearing and the time of his trial in April of 1996, creating "one of the big issues" of which he complains. Id.

Appellant fails to acknowledge the standard for establishment of a conflict of interest, to wit, that "counsel actively represented conflicting interests, and the actual conflict adversely affected counsel's performance." Spotz VI, 18 A.3d at 268 (citation omitted). Appellant proffers only speculation on top of speculation, which cannot come close to meeting this standard. Appellant provides absolutely no indication, much less evidence, that the Bloss/Lowe statements were ever raised again or used in any way by anyone, either in the multiple prosecutions against Appellant or in bargaining for favorable treatment of Mr. Bloss or Mr. Lowe. We have no idea when Mr. Blocher's representation of Mr. Bloss started and when it ceased. Appellant cites no evidence whatsoever that his counsel's performance was in any way affected by the Bloss/Lowe statements. Appellant merely asserts that, because of the alleged conflict, "counsel did not investigate whether the prosecution had been enlisting prisoners to obtain information about [Appellant], evidence which would have undermined the credibility of Christina Noland and Charles Carothers [and would have] reveal[ed] the extent to which the Commonwealth was willing to go to encourage witnesses to fabricate events and reward versions 'favorable' to its theories." Appellant's Brief at 19. Appellant's allegation is nothing short of wild speculation, unsupported by any facts of record whatsoever. Thus, Appellant has failed to make any showing that his counsel had a conflict of interest with regard to the Bloss/Lowe statements.

Appellant's second and third allegations of conflicts with his counsel relate to Mr. Blocher's pretrial notifications to the trial court of Appellant's threats to Ms. Noland and to defense counsel on, respectively, March 14, 1996, and April 3, 1996. Based on this information, the trial court arranged for additional security measures in the courtroom. On direct appeal, Appellant raised a very similar issue, claiming that the trial court abused its discretion in denying his request to appoint new counsel and new standby counsel, based on the same threats and the same alleged conflicts of interest that Appellant asserts here. See Spotz II, 756 A.2d at 1149-50. In concluding on direct appeal that the trial court had acted properly in addressing the threats, we recognized that the court had thoroughly evaluated the "potential conflict" and had been assured by Appellant's counsel that they were able to advocate zealously on his behalf. Id. at 1150. We then held as follows:

[T]he "conflict" here resulted from [A]ppellant's own conduct, and the security measures that his purported conduct required. Even if new counsel were appointed, the security concern . would remain. In response to [A]ppellant's threats and attempts to manipulate, the court took appropriate measures to ensure the safety of counsel and [A]ppellant's right to effective, conflict-free representation. There was no abuse of discretion by the trial court in refusing to appoint new counsel or new standby counsel for [A]ppellant.

Id. at 1150.

Despite our holding on direct appeal, Appellant asserted at the PCRA hearing and maintains here that the same alleged "conflict" due to the same threats rendered his waiver of counsel involuntary. See N.T. PCRA Hearing, 6/13/2008, at 809-49; Appellant's Brief at 19-20. As we held on direct appeal, any conflict resulted from Appellant's own conduct, and the trial court responded appropriately to ensure both a safe environment in and around the courtroom, as well as Appellant's right to counsel. Appellant's argument that his waiver of counsel was involuntary because of a conflict with counsel -- a "conflict" that Appellant created -- is circular, self-defeating, and meritless.

Therefore, because none of Appellant's claims as to alleged conflicts with his counsel has any merit, his assertion that his waiver of counsel was involuntary due to conflicts with counsel must fail.

With regard to sub-issue (b), Appellant alleges that his counsel failed to prepare any defense at all, specifically a diminished capacity defense, which "forced" Appellant to proceed pro se. Appellant neither presents evidence nor develops an argument to support this contention; he merely directs us to Issue 4. See Appellant's Brief at 20-21. Accordingly, we have addressed this claim, and determined it to be meritless, under Issue 4

With regard to sub-issue (c), Appellant asserts that his waiver of counsel was involuntary because he was suffering from a variety of mental disorders, including chronic, severe, post-traumatic stress disorder; borderline personality disorder; polysubstance abuse, in remission; and obsessive-compulsive disorder, which were exacerbated by "the extreme stress of a gauntlet of capital trials." Appellant's Brief at 21. Relying primarily on the PCRA testimony of his two mental health experts, Appellant asserts that he lacked the mental capacity to waive his right to counsel.*fn6

We have recently explained the competency standard for waiving the right to counsel as follows.

[T]he competency standard for waiving the right to counsel is precisely the same as the competency standard for standing trial, and is not a higher standard. We have formulated this standard as follows: whether the defendant has the ability to consult with counsel with a reasonable degree of understanding and whether the defendant has a rational understanding of the nature of the proceedings. The focus is properly on the defendant's mental capacity, i.e., whether he or she has the ability to understand the proceedings. If a court finds a defendant incapable of waiving the right to counsel, then the court must also conclude that the defendant is incapable of standing trial. Finally, it is important to recognize that a defendant is presumed to be competent to stand trial, and the burden is on the appellant to prove that he was incompetent.

Spotz VI, 18 A.3d at 266 (internal citations, quotation marks, and footnote omitted) (emphasis in original).

In denying relief on this sub-issue, the PCRA court applied the proper legal standard, cited the lengthy colloquies conducted by the trial court, and particularly credited the testimony of Appellant's counsel. PCRA Court Opinion at 8-10. We conclude that the PCRA court's ruling is supported by the record and is free of legal error, as we discuss in detail below, starting with a summary of the relevant testimony presented at Appellant's PCRA hearing.

Assistant public defender Smith testified that "[t]here did not appear to be a competency issue" with respect to Appellant at the time of trial, as he understood why he was in court, what he was doing, what was going on in court, and the nature of the murder with which he was charged. N.T. PCRA Hearing, 6/9/08, at 298-300. Ms. Smith's testimony was reinforced by that of Appellant himself, who testified that, at the time of trial, he understood the colloquy, he knew where he was, and he knew what was going on around him. Id., 6/13/08, at 876-77.

Stephen Ragusea, Ph.D., a clinical psychologist who interviewed Appellant a few months prior to trial, testified on Appellant's behalf both at the penalty phase of trial and at the PCRA hearing. At the penalty phase, Dr. Ragusea testified that he had been retained by defense counsel to do "a general psychological evaluation [of Appellant] to determine, first of all, whether or not he was competent to stand trial; . whether or not there was any evidence that he was insane at the time the crime was committed; and . whether or not there were any possible conditions that might relate to mitigating circumstances." N.T. Penalty Phase, 4/24/96, at 326. Regarding the competency issue, Dr. Ragusea concluded as follows during his penalty phase testimony:

[Appellant] was clearly competent to stand trial. There are criteria that we use to evaluate that, and he was clearly competent to stand trial.

Id. at 349.

However, at the PCRA hearing, Dr. Ragusea testified that, if he had known that Appellant was reporting flashbacks to prison mental health professionals just before the trial, he would have suggested a competency evaluation and would have performed such an evaluation if the court had asked him to do so. N.T. PCRA Hearing, 6/12/08, at 645. Neither he nor anyone else suggested how such a competency evaluation would have differed from the evaluation for competency that Dr. Ragusea conducted prior to trial and discussed during his penalty phase testimony. Furthermore, Dr. Ragusea did not testify at any time that Appellant was unable either to understand the trial proceedings or to consult with his counsel regarding his defense.

Also at the PCRA hearing, Appellant presented the testimony of two psychiatrists, Robert Fox, Jr., M.D., and Neil Blumberg, M.D., both of whom were retained by PCRA counsel, and both of whom interviewed and evaluated Appellant, and reviewed his records, years after trial. Dr. Fox, who evaluated Appellant in 2000 and 2007 (respectively four and eleven years after Appellant's trial), testified that Appellant suffered from multiple severe psychiatric disorders. N.T. PCRA Hearing, 6/9/08, at 35-40. In Dr. Fox's view, because of Appellant's mental illness, he might easily change his behavior "on a moment[']s notice" from working with his counsel in a reasonable way to turning against them and wanting to fire them. Id. at 146. Dr. Fox opined that Appellant "was driven to make the decision to go pro se by his personality and the way he was feeling[,] and it was triggered by some actual events." Id. at 150. A bit later in his testimony, Dr. Fox opined that Appellant's decision to represent himself was "a product of his mental illness[,] the full totality of it." Id. at 152.

Dr. Blumberg, who interviewed Appellant several times in 2006, testified extensively as to Appellant's mental illnesses, opining that Appellant suffered from three different psychiatric conditions; had severely impaired self-esteem; viewed the world in a threatening way; had a hypervigilance deeply ingrained in his personality structure; demonstrated emotional lability and instability and was easily excited or upset; was prone to depression, anger, and quickly shifting emotions; tended to be moody and irritable; overresponded to stressful events; and had longstanding difficulties with impulse control. N.T. PCRA Hearing, 9/18/07, at 315, 409-12. Notably, Dr. Blumberg was not questioned about Appellant's competency to stand trial or waive counsel.*fn7

Importantly, not a single witness opined that Appellant did not have the ability to understand the nature of the proceedings against him, to consult with counsel, or to participate in his own defense. Appellant bears the burden of proving that he was not competent to stand trial or to waive the right to counsel, the standard for which is one and the same. See Spotz VI, supra, at 266; Commonwealth v. Brown, 872 A.2d 1139, 1156 (Pa. 2005). Appellant has not come close to satisfying this standard, and thus we conclude that there is no merit to Appellant's claim that he was not competent to waive counsel.

With regard to sub-issue (d), Appellant asserts that "the [trial] court placed such severe limitations on what [standby] counsel could do that it rendered the appointment of standby counsel meaningless." Appellant's Brief at 24. In particular, Appellant cites the trial court's preclusion of counsel from taking notes, from instigating communications with Appellant, or from offering any arguments on his behalf. Id. Appellant asserts that these restrictions "prevented Appellant from adequately presenting proper and viable defenses, legal arguments, and objections;" however, Appellant fails to cite a single specific defense, argument, or objection that he did not proffer or make due to the trial court's limitations on standby counsel. Id.

Prior to Appellant's final decision to proceed pro se, the trial court clearly delineated standby counsel's role, specifically informing Appellant that standby counsel is not the same as counsel; that if Appellant chose to represent himself, he, not his counsel, would be trying the case; that any mistakes he made during his self-representation could not be raised subsequently, as ineffectiveness of counsel was not a legal option on appeal in such circumstances; and that standby counsel cannot "sit there and go over the stuff with you as if they are really counsel but you are asking the questions." N.T. Trial, 4/12/96, at 25-30. The trial court's exhaustive instructions concerning standby counsel's role also included the following excerpts:

Court: [Standby counsel] will advise you [Appellant] as to any legal matters that come up. That's it. They are not trying the case, you [Appellant] are.

Id. at 32.

Court: Just so that we understand and you understand, I've given some thought with regard to assistance by [standby] counsel. They can only advise you as to legal matters. Since they are familiar with the exhibits and so forth, they may help you. If you ask for an exhibit, they will give you the exhibit, but that's it, they won't discuss it with you. They won't read through it or tell you to look on [sic] the exhibit. They won't be able to sit and take notes. You'll have to do that on your own.

Id. at 36; see also id. at 39 (giving in essence the same instructions in shorter form).

This matter of the trial court's limitations on the role of standby counsel was addressed at the PCRA hearing. Mr. Blocher and Ms. Smith both testified that, as standby counsel, their role was limited to answering Appellant's legal questions, and they were not permitted to take notes concerning the trial testimony. N.T. PCRA Hearing, 9/17/07, at 91-92; id., 6/9/08, at 213-17. They were also not permitted to volunteer instructions to Appellant as to what to do next or to volunteer a suggestion that an objection might be warranted. Id., 9/17/07, at 92; id., 6/9/08, at 215-16. Ms. Smith further testified that the court's restriction on note-taking limited her ability to recall guilt-phase testimony and its potential relevance to evidence of mitigation during the penalty phase; however, she did not specify any particular instance in which her inability to recall the testimony affected her performance during the penalty phase or at any other time. Id., 6/9/08, at 217.

The PCRA court concluded that there was no merit to Appellant's claim that the trial court improperly limited standby counsel's role. PCRA Court Opinion at 11. Noting that Appellant cited no supporting legal authority for his assertions of trial court error, the PCRA court relied on Pennsylvania Rule of Criminal Procedure 121(D) to conclude that the trial court had properly instructed standby counsel. Furthermore, the PCRA court determined that standby counsel offered assistance when Appellant asked, provided him with documents, and discussed trial strategy, all of which were in accord with the proper role of standby counsel. Id. (citing N.T. PCRA Hearing, 6/9/07, at 292-94 (cross-examination of Ms. Smith)).

As the Commonwealth correctly points out, Appellant has waived this sub-issue of trial court error. Our review of the record reveals no instance -- and Appellant fails to indicate any instance -- where any objection was made to the trial court's delineation of standby counsel's role. Nor was this issue raised on direct appeal. As the claim of trial court error has been waived, the only cognizable claim in this matter is a claim of ineffective assistance of counsel for failing to object to the trial court's limitations on standby counsel's role. After thorough review, we conclude that there is no arguable merit to Appellant's ineffectiveness claim, because the trial court acted within its discretion in restricting standby counsel's role, and counsel is not ineffective for failing to raise a meritless objection.

In Faretta v. California, 422 U.S. 806, 834 n.46 (1975), the United States Supreme Court determined that a state "may . appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of [his or her] self-representation is necessary." This Commonwealth's Rules of Criminal Procedure provide for the appointment of standby counsel as follows:

(D) Standby Counsel. When the defendant's waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.

Pa.R.Crim.P. 121(D).

Although neither the United States Supreme Court nor our Rules of Criminal Procedure mandate the appointment of standby counsel, a comment to Rule 121 suggests the advisability of appointing standby counsel to attend the proceedings and be available to the defendant for consultation and advice when the defendant has waived his right to counsel for a trial, especially in long or complicated cases. See also Commonwealth v. Szuchon, 484 A.2d 1365, 1376-77 (Pa. 1984), abrogated on other grounds, Commonwealth v. Lucarelli, 971 A.2d 1173, 1179 (Pa. 2009), (noting that it is "strongly advisable, especially in a potential death penalty case, that the trial judge appoint 'standby' counsel").

Most relevant here, the appointment of standby counsel does not imply or authorize some sort of hybrid representation. See Commonwealth v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (agreeing with the Superior Court that "there is no right of self-representation together with counseled representation ('hybrid representation') . although standby counsel may be appointed to give the defendant legal advice."). When a defendant elects to proceed at trial pro se, the defendant -- and not standby counsel -- is in fact counsel of record and is responsible for trying the case. This understanding of the limited role of standby counsel is essential to satisfy the United States Supreme Court's directive that a defendant's choice to proceed pro se "must be honored out of 'that respect for the individual which is the lifeblood of the law'" even when the defendant acts to his or her own detriment. Faretta, supra at 834. This understanding also underlies our prior holding that a defendant who chooses to represent himself cannot obtain relief by raising a claim of ineffectiveness of counsel or standby counsel. Spotz VI, supra at 270 (citing Commonwealth v. Fletcher, 986 A.2d 759, 774 (Pa. 2009)).

The trial court's directives as to the role of standby counsel in the instant case reflected a proper understanding of these principles. Consistently with the PCRA court, we conclude that the trial court did not err or abuse its discretion in setting forth its restrictions on standby counsel's role. Accordingly, there is no arguable merit to Appellant's claim of ineffective assistance of counsel for failing to object to those restrictions, and he is entitled to no relief.

In sum, with regard to Issue 1, Appellant's multi-pronged challenge to his waiver of the right to counsel, we conclude that there is no merit to any of Appellant's allegations or arguments. After careful review, we affirm the rulings of the PCRA court because they are supported by the record and are free of legal error.

Issue 2: Disclosure of Impeachment Evidence against Ms. Noland

In Issue 2, Appellant asserts that his due process rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated when the Commonwealth failed to disclose the terms of an alleged agreement reached with Ms. Noland whereby, in exchange for her trial testimony against Appellant, the charges against her would be reduced and she would receive lenient sentences.*fn8 Appellant's Brief at 26 (citing Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 153-55 (1972)). The Commonwealth disputes the existence of such an agreement, and the PCRA court concluded that Appellant had proffered no evidence to establish its existence. PCRA Court Opinion at 11-13.*fn9

Under Brady v. Maryland, 373 U.S. 83 (1963), and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. See, e.g., Commonwealth v. Strong, 761 A.2d 1167, 1171 & n.5 (Pa. 2000). To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005). We stress that the burden rests with the appellant to "prove, by reference to the record, that evidence was withheld or suppressed by the prosecution." Commonwealth v. Porter, 728 A.2d 890, 898 (Pa. 1999). The evidence at issue must have been "material evidence that deprived the defendant of a fair trial." Commonwealth v. Johnson, 815 A.2d 563, 573 (Pa. 2002). "Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995))

Brady evidence encompasses information as to any potential understanding between the prosecution and a witness because such information is relevant to the witness's credibility and may be used for impeachment. Spotz V, supra at 1214; Strong, supra at 1171-72. "Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case [even when] that evidence is merely a promise or an understanding between the prosecution and the witness." Id. (quoting Strong, supra at 1175). Thus, to qualify as Brady evidence, an agreement between the prosecution and a witness need not be a formal, signed document, but may be simply a promise or an understanding that the prosecution will extend leniency and favorable treatment in exchange for a witness's testimony. Strong, supra at 1175.

For Appellant to obtain collateral relief on this Brady claim, he must prove by a preponderance of the evidence that an agreement between the Commonwealth and Ms. Noland existed and that the failure to disclose the agreement so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Strong, supra at 1171; 42 Pa.C.S. § 9543(a)(2)(i).

To resolve the specific claim that Appellant raises here, we must first set forth the relevant facts in detail. In February 1995, Ms. Noland was charged by the York County District Attorney with first-degree murder, second-degree murder, kidnapping, robbery of motor vehicle, unlawful restraint, theft by unlawful taking, receiving stolen property, and criminal conspiracy.*fn10 The Commonwealth filed notice to consolidate Ms. Noland's trial and Appellant's trial. However, Ms. Noland became a Commonwealth witness and testified against Appellant. Just prior to Ms. Noland's testimony at Appellant's trial, the following comments were made to the jury.

Court: Before the next witness [Noland] is called, ladies and gentlemen, I'll advise you that I've been advised by the Commonwealth that this witness, they [sic] will not be seeking either first degree or second degree murder. They will not be seeking a jury to convict her of either first or second degree murder.

Prosecutor: I think the record should reflect otherwise there is no agreement as to sentence as to the other offenses if she is convicted. But as to second and first degree murder, there is an agreement that the Commonwealth will not pursue those two charges.

N.T. Trial, 4/13/96, at 208 (emphasis added).

Immediately after these comments, Ms. Noland testified extensively as to her three-day crime spree with Appellant, directly implicating him as the one who shot and killed Ms. Gunnet. During cross-examination, Appellant repeatedly asked Ms. Noland if she was testifying in order to get "some kind of deal" with the Commonwealth, but she consistently denied any deal. Id. at 313-19. The essence of Appellant's defense was an attempt to place blame for the murder on Ms. Noland. Id. at 393. In his closing argument, Appellant returned to the matter of a "deal" between Ms. Noland and the Commonwealth with the following comments:

You heard testimony which was a stipulation from the District Attorney's Office themselves that Christine Noland was never subjected to face the death penalties. That she was charged with criminal homicide which included first-,second-, and third-degree murder.*fn11

The [D]istrict [A]attorney told you that they have dropped first-degree murder. They have dropped second-degree murder. The very most she can get is third-degree murder. Christine Noland doesn't have to worry about facing the death penalty or face spending the rest of her life in prison with no parole. She knows she is going to go home someday.*fn12

The defense position is that the evidence shows Christine Noland's testimony isn't the truth. She testified so that she would not do life in exchange for gifts and favoritism from the [D]istrict [A]attorney. Despite the minor things, sneakers, necklaces, and going out to eat, the major deal was no death penalty, no life, no first-degree, no second-degree murder.

The testimony -- her testimony is given so she can stay alive.

The defense's position is that it's not hard to believe Christine Noland is putting this all on me so she can say this a [sic] -- so she can stay alive or not do life in prison.

N.T. Trial, 4/22/96, at 1926, 1928-29 (footnotes added).

Appellant was found guilty of first-degree murder in York County on April 22, 1996. On June 20, 1996, Ms. Noland pled guilty to kidnapping, robbery, and conspiracy to commit murder. Sentencing was set for August 12, 1996, but prior to sentencing, she sought to withdraw her guilty plea. The trial court granted her motion on April 28, 1997, and the Superior Court affirmed.*fn13 Commonwealth v. Noland, 718 A.2d 346 (Pa.Super. 1998) (Table).

The Commonwealth then restarted its efforts to bring Ms. Noland to trial, including on capital murder charges. See Commonwealth's Petition to File Notice of Aggravating Circumstances, dated 12/11/98 (Defendant's PCRA Exhibit 41). In this petition, the Commonwealth explained that it had not previously filed a notice of aggravating circumstances against Ms. Noland because of an agreement with her. The Commonwealth set forth the terms of this agreement as follows: "That in consideration of [Ms. Noland's] commitment to cooperate and testify against her co-defendant [Appellant], the Commonwealth did not seek the death penalty [against her] and agreed to accept pleas of guilty to lesser charges." Id. at ¶ 7.

From the facts of record summarized above, we conclude the following. (1) There was an agreement between the Commonwealth and Ms. Noland. (2) Pursuant to that agreement, the Commonwealth agreed not to prosecute Ms. Noland for first- or second-degree murder; and Ms. Noland agreed to testify against Appellant and plead guilty to lesser charges. (3) The prosecutor explicitly advised the jury of the Commonwealth's agreement not to pursue first- or second-degree murder charges. (4) The prosecutor also advised the jury that there was no agreement as to Ms. Noland's sentence for the other offenses with which she was charged. (5) Emphasizing the Commonwealth's agreement not to pursue first- or second-degree murder charges against Ms. Noland, Appellant strenuously argued that her testimony was given solely so that she could stay alive, not be subject to the death penalty, and not spend the rest of her life in prison.

In his brief to this Court, Appellant now asserts the following concerning the agreement between Ms. Noland and the Commonwealth: "The jury was never told that Noland had agreed to plead to lesser charges in exchange for her testimony. The clear implication left with the jury was that the prosecution had determined that these higher degrees of murder were not sustainable against Noland." Appellant's Brief at 26 (emphasis in original). With these assertions, Appellant misconstrues the record in at least two ways.

First, Appellant simply ignores the prosecutor's clear statement to the jury that there was an agreement with Ms. Noland as to first- and second-degree murder charges: See N.T. Trial, 4/13/96, at 208 ("But as to second and first degree murder, there is an agreement that the Commonwealth will not pursue those two charges.") (emphasis added). The record thus completely belies Appellant's assertion that the jury was not clearly informed of the existence of an agreement between the Commonwealth and Ms. Noland. Appellant's claim that the prosecutor implied to the jury that murder charges were not sustainable against Ms. Noland is completely refuted by the prosecutor's statement of record.

Second, Appellant's focus on Ms. Noland's subsequent guilty pleas to lesser charges is misplaced, and his additional claim that the Commonwealth had agreed to seek lenient sentences for these lesser charges is completely unsupported by any evidence whatsoever. The only benefit accruing to Ms. Noland from her agreement with the Commonwealth was freedom from prosecution for first- or second-degree murder. In return, she agreed to testify against Appellant and to enter guilty pleas to lesser charges. The agreement between the Commonwealth and Ms. Noland encompassed the lesser charges only insofar as she agreed to plead guilty to them rather than be subject to trial. There is no evidence whatsoever that the Commonwealth ever agreed to forego prosecution of Ms. Noland for the lesser charges or had promised her a lenient sentence.*fn14 Following Ms. Noland's trial testimony against Appellant, her guilty plea to lesser charges, and the court's grant of her request to withdraw those guilty pleas, the Commonwealth restarted its efforts to bring her to trial, including on capital murder charges. Appellant's convoluted and unsupported argument focusing on the significance of the lesser charges and the sentence for those charges is meritless.

Thus, in sum, we conclude as follows. There was an agreement between the Commonwealth and Ms. Noland, and the relevant terms of this agreement were announced in court in the presence of the jury. Furthermore, Appellant used the terms of the agreement in an attempt to impeach Ms. Noland. There is absolutely no merit to Appellant's claim of a Brady violation with regard to the agreement between the Commonwealth and Ms. Noland.

Issue 3: Disclosure of Impeachment Evidence against Carlos/Charles Carothers

In Issue 3, Appellant raises a second Brady claim, this one concerning an alleged agreement between the Commonwealth and another witness for the prosecution, Carlos/Charles Carothers.*fn15 The factual background to this claim is as follows. Mr. Carothers testified at Appellant's trial that he and Appellant met in Carlisle, in Cumberland County, early in the morning of February 3, 1995, the day after Ms. Gunnet was murdered. At that time, Mr. Carothers testified, Appellant stated that he "had shot his brother and killed these other ladies," and "threw one lady off a bridge, and the other lady he ran over with her car and she got stuck under it." N.T. Trial, 4/16/96, at 1031. In addition, Carothers testified about a gun, ammunition, credit cards, rings, clothing, and cash in Appellant's possession, and about a wound on Appellant's leg. Id. at 1031-36, 1039-40.

The prosecutor questioned Mr. Carothers about any possible plea deal as follows:

Prosecutor: Am I correct, Mr. Carothers, that you are currently incarcerated in Cumberland County Prison for a charge of possession of drugs with intent to deliver? Carothers: Delivery charge.

Prosecutor: Delivery of drugs?

Carothers: Yes.

Prosecutor: Are you testifying today pursuant to the terms of any kind of plea agreement that you have with the County of York or the County of Cumberland?

Carothers: No.

Prosecutor: Nobody has offered to give you any kind of deal in return for your testimony?

Carothers: No.

Id. at 1038-39.

Appellant claims that the above testimony was false, and that Mr. Carothers had made a "deal" with the Commonwealth to avoid prosecution for two other murders, to wit, the murder of Betty Amstutz in Cumberland County, for which Appellant was ultimately convicted; and the unrelated murder of one Samuel "Doc" Thompson, for which another individual had been convicted two years before Appellant's arrest.*fn16, *fn17

Appellant's Brief at 30-31. To support these assertions, Appellant relies on Mr. Carothers's testimony at Appellant's PCRA hearing, during which Carothers recalled that when a detective investigating Appellant's case made reference at one point to the Thompson murder, it made him "feel nervous." N.T. PCRA Hearing, 6/11/08, at 483-84.

However, Mr. Carothers also testified that he "wasn't really concerned about [the Thompson murder case, which] was over and done with" and for which he already had "a deal in place." Id. at 485. Mr. Carothers also testified that the prosecutor in Appellant's case told him that if he was "truthful," then he would have "nothing to worry about." Id. at 486. PCRA counsel pursued this line of questioning as follows:

PCRA Counsel: Well, I am saying as long as you cooperate and tell us what you know, we won't bring any charges, is that how you understood?

Carothers: I am not sure if the word was cooperation, but just to be ...


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