Appeal from the opinion and order of the Superior Court, dated March 28, 2011, at No. 2661 EDA 2010, affirming the order of the Court of Common Pleas of Philadelphia County, Criminal Section, at CP-51-CR-07000102-1990 and CP-51- CR-0700018-25-1990 19 A.3d 541 (Pa. Super. 2011)
The opinion of the court was delivered by: Mr. Chief Justice Castille
The Commonwealth appeals from the opinion and order of the Superior Court, affirming the order of the Court of Common Pleas of Philadelphia County granting appellee relief from his murder conviction pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. The courts below held that appellee's trial counsel was ineffective for failing to challenge the jury instructions at appellee's 1993 trial for first-degree murder and related charges. In the view of the Superior Court panel, the jury charge violated this Court's subsequent decision in Commonwealth v. Huffman, 638 A.2d 961 (Pa. 1994), counsel was obliged to object, and appellee, who was not the shooter of the victim, was prejudiced by counsel's failure because the charge raised the prospect that he could be convicted of first-degree murder without the jury finding that he had a specific intent to kill. The Commonwealth asserts, among other arguments, that in deeming counsel ineffective, the lower courts failed to account for this Court's more recent case law that has "effectively overruled Huffman."
Upon review, it is apparent that the panel failed to appreciate basic distinctions between this case and the Huffman case, distinctions made clearer by subsequent decisional law the panel failed to consider. Whether deemed to be of continuing vitality or not, Huffman, the only authority cited to support the underlying finding that the jury charge here was deficient, does not support the conclusion of the lower courts. Furthermore, we find that the alternative ground for awarding a new trial cited by the PCRA court, and renewed by appellee here in defense of the judgment below, likewise does not support the new trial awarded. Accordingly, we reverse the order of the Superior Court and remand to the PCRA court for the entry of an order denying appellee PCRA relief.*fn1
Appellee conspired with four individuals, Michael Mayo, Kecia Ray, Kevin Wyatt, and Paul Johnson, to rob a jewelry store in Philadelphia at gunpoint. The store was selected because a salesperson, Ms. Ju Yang Lee, had made what the conspirators believed to be an insultingly low offer for a gold chain that Mayo and Johnson earlier had sought to pawn. Appellee Bennett supplied the loaded gun, but did not enter the store, remaining in the getaway car with Wyatt. Mayo and Johnson were caught on videotape entering and robbing the store. During the robbery, Mayo shot Ms. Lee with appellee's gun, killing her.
The shooter Mayo and Ray pleaded guilty to murder, while appellee, Wyatt, and Johnson -- all non-shooters -- were jointly tried for murder and related crimes before the Honorable Juanita Kidd Stout. Ray testified for the Commonwealth, providing evidence of the conspiracy and testifying that appellee directly abetted the conspiracy by supplying the loaded gun. After the parties rested, Judge Stout instructed the jury on first, second and third-degree murder, as well as voluntary manslaughter. The court also charged the jury on conspiracy and accomplice liability. Relevant to the instant appeal, the court introduced the murder instructions with the following statement:
Each defendant comes before you charged with murder and voluntary manslaughter.
Now, on this bill, you may find each defendant guilty of murder in the first degree, guilty of murder in the second degree, guilty of murder in the third degree, or guilty of voluntary manslaughter, or not guilty.
N.T., 3/9/92, at 864. The court's first-degree murder instruction then explained that first-degree murder required a finding of an intentional killing, further explicating what "the defendant's" state of mind must be:
A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. As used in this statute, intentional killing means among other things a willful, deliberate and premeditated killing.
A killing is willful and deliberate if the defendant consciously decided to kill the victim and it is premeditated if the defendant possessed a fully-formed intent to kill at the time when he acted and though there need not have been any appreciable amount of time between the time when the defendant first conceived the idea of killing and the time when he acted.
The trial court then instructed the jury on conspiracy, noting that the charges alleged that the criminal objective of this conspiracy embraced, inter alia, both murder and robbery:
Now, the defendants come before you charged with criminal conspiracy, the criminal objective of which was murder, robbery, possession of an instrument of crime and violation of the Uniform Firearms Act and the overt act is they did shoot the victim.
Now the definition of criminal conspiracy is as follows:
A person is guilty of conspiracy with another person or person to commit a crime, if, with the intent of promoting or facilitating its commission, he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or agrees to aid such other person or persons in the planning or commission of such crime.
To be guilty of conspiracy and the crimes that are the products thereof, it is not necessary for a person to join the conspiracy at its inception. Collusive behavior of the participant is sufficient to establish the necessary elements of shared criminal intent and agreement.
Where two or more join in the commission of an unjustified assault which results fatally, all are guilty regardless of which one inflicts the mortal wounds. When two or more combine to commit a felony or to make an assault, and in carrying out the common purpose another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for the homicide as the one who directly causes it.
Co-conspirators are not relieved of liability because he [sic] is not present at the execution of the crime.
Where the existence of a conspiracy is established the law imposes upon the conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators, if such acts are done in pursuance of the common design or purpose of the conspiracy.
Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator and conspirators, and extend even to a homicide which is the consequence of the natural and probable execution of the conspiracy even though such homicide is not specifically contemplated by the parties. Id. at 859, 861-62.
The court then proceeded to charge the jury on accomplice liability, explaining how that theory was distinct from conspiracy liability, as follows:
Now, one may be legally accountable for conduct of another not only if he is a co-conspirator, but also if he is an accomplice who aids and abets the commission of a crime.
Conspiracy is not synonymous with aiding and abetting. Conspiracy requires an agreement to commit a crime, plus an overt act. Aiding and abetting requires participation in the act constituting the offense.
The Criminal Code provides in relevant part that a person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the offense.
It also says that a person is an accomplice of another person in the commission of an offense if, with the intent of promoting or facilitating the commission of the offense, he aids or agrees or attempts to aid such person in planning and committing it.
To aid and abet in the commission of a crime one must possess a shared intent to commit it. One is an aider and abettor in the commission of a crime if he has joined in its commission, if he was an active partner in the intent which was the crime's basic element.
The degree of concert or collusion between parties to an illegal transaction means the act of one is the act of all. If on the other hand one is only a terrified onlooker, neither his presence at the homicide nor his failure to report it will make him an accomplice an aider and abettor or co-conspirator.
During deliberations, the jury asked for clarification of the conspiracy and first-degree murder charges. The trial court read the relevant instructions again. N.T., 3/10/92, at 888-96. Ultimately, the jury convicted appellee of conspiracy, possessing instruments of crime ("PIC"), robbery (two counts), and first-degree murder. On June 1, 1993, the trial court sentenced appellee to a mandatory term of life in prison on the first-degree murder conviction, a consecutive term of ten to twenty years for the first robbery conviction, a concurrent term of ten to twenty years for the second robbery conviction, and a concurrent term of two and one-half to five years for PIC.
The ensuing procedural history of this matter is complicated and is detailed more fully in this Court's decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). Briefly, appellee did not file a notice of appeal from his judgment of sentence. In 1995, he filed a pro se PCRA petition and counsel was appointed. Counsel filed an amended PCRA petition, which was dismissed without a hearing. Appellee filed a pro se notice of appeal and the court appointed the same attorney who had represented appellee at trial to represent him for purposes of his PCRA appeal. Counsel failed to file a brief and the Superior Court dismissed the appeal.
Thereafter, appellee filed a second pro se PCRA petition, requesting reinstatement of his initial PCRA appeal rights nunc pro tunc due to counsel's abandonment of that appeal. The PCRA court granted relief and reinstated appellee's PCRA appeal rights. Appellee filed a notice of appeal and new counsel was appointed and filed a brief. In a published decision, the Superior Court, sitting en banc, quashed the appeal on jurisdictional time-bar grounds, see 42 Pa.C.S. § 9545(b), based on this Court's decisional law culminating in Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003). See Commonwealth v. Bennett, 842 A.2d 953, 954 (Pa. Super. 2004) (en banc). Notwithstanding the jurisdictional holding, the en banc majority went on in dicta to state that "there was no question that [appellee] was entitled to a new trial" because "the accomplice liability charge given at his murder trial was erroneous and his co-defendant at trial was granted a new trial on that basis." The majority further opined that the issue it deemed meritorious had not previously been addressed due to what the majority called the "serial ineffectiveness" of appellee's "various counsel." Id. The majority then noted that, in co-defendant Kevin Wyatt's PCRA appeal, a prior Superior Court panel had found, in an unpublished opinion, that the accomplice liability charge at the joint trial "was defective," that Wyatt's trial counsel was ineffective for failing to object to it, and that a new trial was required. Id. at 956, citing Commonwealth v. Wyatt, No. 2050 EDA 1999 (Pa. Super. filed July 16, 2001) (unpublished memorandum opinion), appeal denied, No. 521 EAL 2001 (Commonwealth's appeal) and No. 68 EAL 2002 (Wyatt's appeal). The majority concluded its discursion into the merits by stating that, "[g]iven that they were tried jointly, there is no question that [appellee] is entitled to relief on the same basis," but the court could not grant a new trial because the petition was time-barred under the PCRA. Bennett, 842 A.2d at 956.*fn2
Upon petition by appellee, this Court granted allowance of appeal to consider the jurisdictional question of whether the Superior Court erred in quashing appellee's appeal on time-bar grounds. Ultimately, a closely-divided Court vacated the quashal and held that appellee was entitled to reinstatement of his initial PCRA appeal rights if he could prove the factual predicate to surmount the time-bar. Our vacatur ordered an evidentiary ...