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Commonwealth of Pennsylvania v. Bortela Philistin

July 18, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
BORTELA PHILISTIN, APPELLANT



Appeal from the Order entered 04/02/07 in the Court of Common Pleas, Criminal Division of Philadelphia County denying the PCRA relief at No. CP-51-CR-: 0709691-1993

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

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

SUBMITTED: December 7, 2009

OPINION

Bortela Philistin appeals from the order denying collateral relief from his criminal convictions and death sentence, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

On June 16, 1993, appellant was transporting cocaine while riding in a hack cab, when Philadelphia Police Officers Robert Hayes and John Marynowitz stopped the cab. A scuffle ensued; appellant seized Officer Marynowitz's handgun and shot both officers. Officer Hayes died, and Officer Marynowitz was permanently disabled.*fn1

A jury convicted appellant of first degree murder and related offenses. In the penalty phase, the jury found the existence of two aggravating circumstances: the victim was a police officer killed in the performance of his duties, see 42 Pa.C.S. § 9711(d)(1); and the defendant knowingly created a grave risk of death to another. See id., § 9711(d)(7). The jury found no mitigating circumstances; thus, it returned a death sentence. See id., § 9711(c). New counsel (appellate counsel) was appointed for appellant's post-trial motions and direct appeal. This Court affirmed on direct appeal. Philistin, at 744.

Appellant filed a pro se PCRA petition; current counsel began representing appellant and filed an amended PCRA petition. The PCRA court held an evidentiary hearing and denied relief. Appellant appealed to this Court.

Appellant raises the following claims, which we have rephrased and reordered for ease of discussion: (1) whether the trial court improperly excluded potential jurors who expressed only generalized opposition to the death penalty; (2) whether trial counsel was ineffective for failing to investigate or develop self-defense, imperfect self-defense, or diminished capacity claims, or to request a proper voluntary manslaughter jury instruction; (3) trial counsel should have objected to victim impact evidence; (4) whether trial counsel was ineffective for failing to challenge evidence of appellant's drug dealing; (5) trial counsel should have proven appellant's confession was coerced; (6) whether appellant was improperly denied his rights to testify and represent himself; (7) whether trial counsel was ineffective for failing to object to statements regarding appellant's immigration status; (8) whether trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth's closing argument; (9) whether trial counsel was ineffective for failing to investigate and present mitigating evidence; (10) whether trial counsel was ineffective for failing to introduce evidence that appellant had no prior felony convictions; (11) whether trial counsel should have advised appellant of his right to testify at the penalty hearing; (12) the PCRA court erred in not compelling trial counsel to explain why he did not submit fee petitions for representing appellant; and (13) the presence of uniformed police during appellant's trial denied him a fair trial.

In reviewing a PCRA court's order, we examine whether the PCRA court's determination is supported by the evidence and free of legal error. Commonwealth v. Lesko, 15 A.3d 345, 358 (Pa. 2011). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and "the failure to litigate the issue prior to or during trial, . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id., § 9543(a)(4). An issue is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue .." Id., § 9544(a)(2). "An issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." Id., § 9544(b).

Appellant layers his ineffectiveness claims in an attempt to avoid waiver.*fn2 See Commonwealth v. Rush, 838 A.2d 651, 656 (Pa. 2003) (citing Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003)) (when court is faced with "layered" ineffectiveness claim, only viable claim is that related to most recent, appellate counsel). To preserve a "layered" ineffectiveness claim:

[A] petitioner must "plead, in his PCRA petition," that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Additionally, a petitioner must "present argument on, i.e. develop each prong of the [Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987)] test" as to appellate counsel's deficient representation.

Id. (emphasis in original) (citations and footnote omitted); see also McGill, at 1021-23. However, when confronted with a layered claim where the appellate brief insufficiently develops the claim of appellate counsel's ineffectiveness, we have concluded:

[T]he better practice is not to reject claims of appellate counsel's ineffectiveness on the grounds of inadequate development in the appellate brief if the deficiencies in the brief mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity to amend. Accordingly, McGill's remand procedure will remain an option in cases such as this one, and we will review the underlying claim concerning trial counsel's stewardship to determine whether remand for further development of the claim pertaining to appellate counsel is required.

Commonwealth v. Walker, 2011 Pa. LEXIS 2893, *15-*16 (Pa. November 30, 2011).

"[C]counsel is presumed effective, and [appellant] bears the burden of proving otherwise." Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008) (citing Commonwealth v. Hall, 701 A.2d 190, 200-01 (Pa. 1997)). The Pierce test requires appellant to prove, with respect to counsel's performance, that: "(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error." Lesko, at 373-74 (citing Pierce, at 975).*fn3 Failure to prove any prong of this test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006). Additionally, we only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option. Steele, at 797.

I. Jury Selection

Appellant argues the trial court improperly removed two potential jurors who expressed only generalized opposition to the death penalty, without determining if they could follow the law and impose the death penalty. Appellant asserts counsel was ineffective in failing to object to the removal of these potential jurors, and direct appellate counsel was ineffective in failing to raise this claim on direct appeal.

The Commonwealth contends these potential jurors indicated their unwillingness to impose the death penalty, and counsel cannot be ineffective for failing to rehabilitate a potential juror. The PCRA court concluded the trial court did not abuse its discretion in excluding these two potential jurors, because they clearly "established an irrevocable commitment to vote against the death penalty." PCRA Court Opinion, 12/1/08, at 25.

A potential juror in a capital case may not be excluded merely because of a general moral, personal, or religious reservation about the death penalty. Steele, at 803 (citing Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)). Nonetheless, "a trial court is within its discretion to exclude jurors who expressed reservations about imposing the death penalty, and . trial counsel has no constitutional obligation to attempt to change the jurors' views." Id., at 804.

The record supports the PCRA court's finding the trial court did not abuse its discretion in removing these two potential jurors, as both jurors indicated their unwillingness to impose the death penalty. See N.T. Jury Selection, 1/25/95, at 78 ("I'm very nervous, I would have some feelings against the death penalty. I don't know whether I could do that."); N.T. Jury Selection, 1/26/95, at 80 ("I'm Catholic and [the death penalty is] against the Ten Commandments."). Thus, trial counsel was not ineffective for not questioning them further about their ability to follow the law. Accordingly, trial counsel was not ineffective for failing to raise this meritless claim, and appellant's claim regarding appellate counsel likewise fails.

II. Guilt Phase Claims

A. Self-Defense, Imperfect Self-Defense, and Diminished Capacity Defenses

Trial counsel, arguing the officers provoked appellant into shooting them, presented a voluntary manslaughter defense at trial. Appellant now argues trial counsel failed to sufficiently research and present alternative guilt phase defenses. Appellant claims trial counsel should have presented the proffered mitigating evidence, detailed in Part III.A, infra, to support a diminished capacity defense. He contends trial counsel should have presented self-defense and imperfect self-defense defenses, by showing: appellant did not have a weapon; the officers pulled appellant out of the cab; there was a protracted, violent struggle; appellant shot the gun at the ground; and an officer struck appellant on the head. He claims trial counsel should have requested jury instructions on self-defense and imperfect self-defense. He further contends appellate counsel was ineffective in failing to raise these claims on direct appeal.

The Commonwealth responds that appellant's reliance on his mental health experts is inapposite, as the PCRA court found their testimony was not credible. The Commonwealth alleges appellant cannot show he suffered from diminished capacity, because no mental health experts opined he was unable to form a specific intent to kill. It argues the evidence undermined appellant's self-defense claim, as appellant said he removed Officer's Marynowitz's gun and shot him in the back of the head and back, then fatally shot Officer Hayes, who was lying on the ground with his gun in his holster.

The PCRA court found the evidence did not support a self-defense claim, as appellant provoked the confrontation with the officers, and denied ever aiming the gun at the officers. The court determined appellant's experts did not indicate he was unable to form a specific intent to kill. The court also reasoned, as trial counsel was never made aware of appellant's mental difficulties, counsel was not ineffective for not consulting a mental health expert.

"[T]he defense of self-defense necessarily requires that the appellant admit that the shooting was intentional in order to protect one's self." Commonwealth v. Harris, 665 A.2d 1172, 1175 (Pa. 1995) (citing Commonwealth v. Hobson, 398 A.2d 1364, 1368 (Pa. 1979)). Likewise, an imperfect self-defense claim "'is imperfect in only one respect - an unreasonable rather than a reasonable belief that deadly force was required to save the actor's life. All other principles of justification under 18 Pa.C.S. § 505 must [be satisfied to prove] unreasonable belief voluntary manslaughter.'" Commonwealth v. Bracey, 795 A.2d 935, 947 (Pa. 2001) (quoting Commonwealth v. Tilley, 595 A.2d 575, 582 (Pa. 1991)). Thus, to maintain a self-defense or imperfect self-defense claim, appellant must admit he intentionally shot the officers to protect himself. Here, appellant claims he "fired at the ground," Appellant's Brief, at 64, not at the officers. Thus, self-defense or imperfect self-defense defenses are inapplicable, and trial counsel was not ineffective in failing to present them.

As for diminished capacity, we have recently explained:

A defense of diminished capacity . is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill. . For a defendant who proves a diminished capacity defense, first-degree murder is mitigated to third-degree murder. To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. . Evidence that the defendant lacked the ability to control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Furthermore, diagnosis with a personality disorder does not suffice to establish diminished capacity.

Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (citations and footnote omitted). The PCRA court found neither of appellant's experts indicated he was unable to form a specific intent to kill. Appellant notes his experts opined his mental deficiency affected his conduct during the killing; however, the mere inability to control his actions is insufficient to support a diminished capacity defense. Accordingly, as appellant failed to show he lacked the ability to form a specific intent to kill, a diminished capacity defense was inapplicable, and trial counsel was not ineffective for failing to present such defense.

We now address appellant's claim regarding jury instructions. "When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, . so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Commonwealth v. Hawkins, 787 A.2d 292, 301 (Pa. 2001). As appellant was not entitled to defenses of self-defense, imperfect self-defense, or diminished capacity, trial counsel cannot be ineffective for not requesting these jury instructions.*fn4 Likewise, appellant's claims of appellate counsel's ineffectiveness fails.

B. Victim Impact Evidence

Appellant argues the Commonwealth improperly introduced victim impact evidence in the guilt phase. Appellant complains the Commonwealth introduced evidence regarding Officer Hayes' military decorations, and his widow testified about their 15-year marriage and how she and their children kissed him goodbye when he left home the night he died. The Commonwealth also introduced evidence concerning Officer Marynowitz's extensive rehabilitation. Appellant also contends the prosecutor made an emotional appeal in his closing argument, describing the officers as "heroes," "symbols," and "fathers." Appellant insists trial counsel should have objected, and appellate counsel should have raised this claim on direct appeal.*fn5

The Commonwealth contends this evidence was properly admitted to rebut appellant's claim at trial that the officers were rogue cops who provoked appellant into shooting them, and the widow's testimony was admissible life-in-being testimony. The Commonwealth asserts its closing argument was appropriate rhetorical flair, and as arguments are not evidence, it could not be improper victim impact evidence.

The PCRA court found the Commonwealth introduced the officer's commendations, military, police, and personnel records, and reputation for professionalism, to rebut appellant's evidence that the officers were rogue officers who provoked the shooting. The court noted trial counsel objected unsuccessfully to this evidence.

The PCRA court properly held this evidence was admissible at appellant's trial. Any evidence evoking sympathy for the victim is inadmissible at trial unless more probative than prejudical. Commonwealth v. Blystone, 549 A.2d 81, 90 (Pa. 1988).*fn6

Nonetheless, evidence of a victim's nature can be properly admitted to explain the victim's actions and support the Commonwealth's theory of the case. See id. (allowing evidence of victim's passive nature to explain why victim remained prone during attack). To rebut appellant's suggestion that the victims were rogue officers, the Commonwealth properly presented evidence of Officer Marynowitz's commendations, Officer Hayes' military and police career, personnel records, and both officers' reputation for professionalism.*fn7 Officer Hayes' widow testified as to the identification her husband's body, including the last time she saw him alive. This information was relevant to prove the victim was a life-in-being the morning of the shooting, and to establish she identified the victim's body. See Commonwealth v. Carson, 913 A.2d 220, 237 (Pa. 2006) (holding mother's testimony as to when she last saw victim alive and her identification of victim's body admissible).*fn8 Furthermore, the Commonwealth's closing argument was not victim impact evidence, as "the arguments of counsel are not evidence." Commonwealth v. Ligons, 773 A.2d 1231, 1238 (Pa. 2001). Accordingly, this claim is meritless, and prior counsel were not ineffective in failing to raise it.

C. Evidence of Drug Dealing

Police officers, responding to the victims' call for back-up, chased and arrested appellant. They then recovered a bag containing 48 grams of cocaine approximately 30 feet from where they arrested him. Appellant subsequently admitted he was delivering the cocaine when the murders occurred.

Appellant argues trial counsel should have challenged the Commonwealth's evidence that he was transporting cocaine, as the Commonwealth's drug evidence was crucial to the Commonwealth proving its weak murder case. He further alleges appellate counsel was ineffective in failing to pursue this claim.

The Commonwealth argues, as appellant confessed to being a drug courier, trial counsel reasonably chose to highlight the favorable portions of appellant's confession. The PCRA court found any contradictions in the evidence were minor and would not have resulted in a different outcome, as evidence of appellant's guilt was overwhelming. The court further concluded trial counsel reasonably highlighted the exculpatory portions of appellant's confession, instead of pursuing these minor contradictions.

We find the record supports the PCRA court's conclusion that trial counsel had a reasonable strategy of highlighting the exculpatory portions of appellant's confession. Trial counsel observed, once the motion to suppress the confession was denied, "the only thing then is to try to get as much out of it to help [appellant] as I possibly could." N.T. PCRA Hearing, 11/1/06, at 204. As appellant was found near the drugs, and confessed the drugs were his, he cannot prove trial counsel was unreasonable in failing to argue he never possessed these drugs. Therefore, this claim fails.

D. Appellant's Confession

Appellant argues trial counsel should have proven appellant's confession was coerced, by arguing appellant was naked during his interrogation, his injuries required medical attention, and there were inconsistencies in the confession.*fn9 The Commonwealth responds that appellant failed to produce any witnesses regarding the circumstances of his confession. The Commonwealth contends, given the overwhelming evidence of guilt, trial counsel reasonably decided not to argue the confession was coerced and instead focused on its exculpatory portions. The PCRA court noted the trial court denied trial counsel's motion to suppress the confession, as there was no evidence of coercion.

In deciding whether appellant's confessions were involuntary, we decide "'not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess.'" Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002) (quoting Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998)). While appellant can show his clothes were confiscated, he does not show he was not provided replacement clothes; thus, he cannot prove he was naked during the interrogation. Further, trivial inconsistencies between the confession and other evidence do not prove the confession was coerced. The record thus supports the PCRA court's finding that the confession was voluntary. Accordingly, trial counsel was not ineffective for failing to raise this meritless claim. Further, as trial counsel was not ineffective, appellant's claim of appellate counsel's ineffectiveness fails.

E. Appellant's Right to Testify

Before the opening of appellant's case-in-chief in the guilt phase, the trial court sought to colloquy appellant as to whether he wished to testify. Appellant stated, "I wish to testify if another counsel was [representing me]." N.T. Trial, 2/7/95, at 12. Trial counsel requested new counsel be appointed, but the trial court refused to do so. Appellant then waived his right to testify. See id., at 16-18. Appellant claims he wanted to testify, but not while represented by trial counsel, and the trial court erred in forcing him to decide between his right to counsel and his right to testify. Appellant further contends trial counsel was ineffective by not requesting a hearing on the nature of the conflict between appellant and himself. He argues appellate counsel should have raised trial court error and trial counsel's ineffectiveness on direct appeal.

The Commonwealth argues the trial court properly refused to appoint new counsel. The Commonwealth notes appellant requested new counsel over a dispute in litigation strategy, after the Commonwealth had completed its case-in-chief, and appointment of new counsel would have caused substantial delay. It insists there is no requirement counsel request a hearing merely because appellant voiced displeasure with counsel. It further contends, as appellant did not testify at the PCRA hearing, there is no evidence as to what testimony appellant would have given at trial.

The PCRA court found this claim was waived because appellant could have previously raised his allegations of trial court error. However, appellant presents a cognizable claim insofar as he insists appellate counsel was ineffective for not raising trial counsel's ineffectiveness on direct appeal. While the PCRA court erred in finding this ineffectiveness claim waived, we need not remand for further proceedings, because we can resolve this claim on the record before us. See McGill, at 1026 (finding remand to PCRA court unnecessary where remand would be futile).

Appellant insists the trial court inappropriately forced him to decide between testifying on his own behalf and proceeding without counsel. Appellant was given the chance to testify, but declined, and now complains he would have testified if represented by different counsel. As the right to counsel does not include the right to counsel of one's choice, Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998) (citing Commonwealth v. Johnson, 236 A.2d 805 (Pa. 1968)), appellant does not have the right to testify with appointed counsel of his choice. Otherwise, criminal defendants could obtain new counsel in the middle of trials merely by conditioning the exercise of their right to testify on the appointment of new counsel. The right to testify guarantees the right of defendants to testify in their own defense, not to have as many new lawyers as they want. Therefore, appellant's claim is meritless, and appellate counsel was not ineffective for failing to raise it on direct appeal.

We further determine trial counsel was not ineffective for not requesting a hearing on the conflict between himself and appellant. Trial counsel properly objected to the trial court's decision, and requested a mistrial and appointment of new counsel. The trial court explored appellant's discontent with trial counsel, and appellant fails to show what additional evidence would have been introduced at a hearing. Appellant fails to show trial counsel lacked a reasonable basis for not requesting a hearing; accordingly, his claim regarding appellate counsel also fails.

F. Appellant's Immigration Status

The Commonwealth introduced evidence appellant was an undocumented alien.*fn10 Appellant, noting the Commonwealth did not argue in its opening and closing arguments that his immigration status was his motive for shooting the officers, claims such evidence was not introduced to show motive, and was therefore irrelevant and prejudicial. He claims trial counsel should have objected to this evidence, and appellate counsel was ineffective in not raising this on direct appeal.

The Commonwealth argues evidence that appellant was an undocumented alien is relevant to his motive, as his desire to avoid deportation may have caused him to fight and shoot the police officers. The PCRA court determined any reference to appellant's immigration status was not prejudicial given the evidence against appellant, and this evidence was properly admitted as evidence of motive.

The record supports the PCRA court's finding that evidence of appellant's immigration status was properly admitted at trial. Evidence to prove motive is generally admissible. See Commonwealth v. Jermyn, 533 A.2d 74, 82 (Pa. 1987) (quoting Commonwealth v. Kravitz, 161 A.2d 861, 870 (Pa. 1960)) ("Evidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible."). Here, appellant's immigration status was relevant to show he had a motive to shoot the officers, lest he be deported. This evidence is admissible as evidence of motive, even if the Commonwealth emphasized other potential motives. ...


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