SUBMITTED: September 5, 2012
Appeal from the Order entered on 10/27/11 in the Court of Common Pleas, Criminal Division of Jefferson County at Nos. CP-33-CR-0000026-2001 and CP-33-CR-0000524-2001
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, JJ.
MR. SAYLOR, JUSTICE
This is a capital post-conviction appeal.
In December 2000, Appellant conspired with others to perpetrate a robbery at the Gateway Lodge in Cooksburg, Jefferson County. In the course of this and other crimes, Appellant shot and killed the night watchman, Christopher Lauth.
Appellant was convicted of first-degree murder and other offenses and sentenced to death in 2002. After a lengthy post-sentence motions process, relief was denied, and Appellant's judgment of sentence was affirmed on direct appeal. See Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879 (2008). Appellant acted pro se to initiate litigation under the Post Conviction Relief Act, 42 Pa.C.S. §§9541-9546 (the "PCRA"), and, following several procedural turns, a counseled, amended petition was filed. After conducting a series of evidentiary hearings, the PCRA court denied relief.
The present appeal followed, in which Appellant advances eleven claims. In our review, we consider whether the post-conviction court's findings are supported by the record and are free from legal error. See, e.g., Commonwealth v. Lesko, 609 Pa. 128, 152, 15 A.3d 345, 358 (2011).
First, Appellant contends that he was denied due process and deprived of effective confrontation, because the Commonwealth failed to disclose alleged verbal understandings with prosecution witnesses who were co-perpetrators in the robbery and/or its planning. Centrally, Appellant relies on the United States Supreme Court's seminal decisions in Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97 (1963) (holding that due process is offended when the prosecution withholds favorable evidence from an accused that would tend to exculpate him or reduce the penalty imposed), Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 766 (1972) (extending the Brady rule to embrace certain impeaching evidence, including that which might demonstrate witness bias), and Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959) (explaining that a conviction obtained by the State through the knowing use of false evidence -- or upon the prosecution's failure to correct unsolicited evidence known to be false -- violates the Fourteenth Amendment).
Factually, however, the post-conviction court determined that, at all relevant times, the district attorney enforced a policy that plea agreements would be neither offered nor negotiated with witnesses charged with crimes until their cooperation was fully realized. See Commonwealth v. Rega, Nos. CP-33-CR-26-2001, et al., slip op. at 20 (C.P. Jefferson Oct. 27, 2011). This finding is supported by substantial evidence of record. See, e.g., N.T., Dec. 14, 2009, at 138 (reflecting testimony of a defense attorney that "it's [the district attorney's] established policy that he will not make a deal or offer a specific plea bargain until time to do so."), 145 (elaborating that the relevant time for plea offers, per the district attorney's policy, is after the witness's cooperation is completed). The court also inferred from the evidence presented that any suggestion of "possible verbal agreement[s]" derived from defense attorneys' and witnesses' own hopeful predictions, rather than from actual incentives offered by the district attorney. See Rega, Nos. CP-33-CR-26-2001, et al., slip op. at 21. We agree with the court that this inference is a reasonable one deriving from evidence concerning the district attorney's practices.
While Appellant references conflicting evidence and evidence from which contrary inferences might be gleaned, see, e.g., Brief for Appellant at 15, the relevant review at this stage is limited to an examination of the record to determine whether the material findings of the post-conviction court are supported by it. See, e.g., Lesko, 609 Pa. at 152, 15 A.3d at 358. Accordingly, we decline Appellant's invitation, in effect, to reweigh differing portions of the post-conviction evidence. As reflected above, the record plainly supports the PCRA court's finding of no agreements or incentives, other than maintaining the possibility for later negotiation based on the witnesses' cooperation.
Appellant also advances a second claim styled as a Brady violation, in that the prosecutor apparently did not advise Appellant's trial attorneys that one prosecution witness, Susan Jones, suffered from a health condition causing some degree of memory impairment. The post-conviction court, however, determined that such failure did not meet the materiality requirement requisite to relief on a Brady claim, see United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985), in that an exploration by the defense of the memory impairment concern at trial would not have created a reasonable probability of a different outcome. See Rega, Nos. CP-33-CR-26-2001, et al., slip op. at 25-26. The court explained, inter alia, that Jones was able to recall significant details at trial which were consistent with her previous statements to law enforcement authorities and that the Commonwealth presented a wealth of other incriminating evidence at trial -- including the testimony of three direct co-participants in the Gateway Lodge incursion. See id. at 26-27. Upon review, we find that the PCRA court's materiality determination is supported by the record and free from legal error.
Appellant next asserts that the prosecution was able to adduce damaging evidence secured from a search of his mother's home, because his trial counsel failed to raise meritorious objections.
Appellant explains that, while a prisoner in a state correctional institute awaiting trial, he spoke to his mother, Joan Rega, by telephone. Pursuant to prison protocols, the conversation was audiotaped, and the tapes were secured by law enforcement officials and gave rise to the challenged search warrant. The affidavit of probable cause prepared by an investigating trooper detailed efforts on the part of Appellant to enlist his mother in a jury-tampering scheme impacting his trial. Appellant relates that, based on this affidavit, a district magistrate issued a search warrant authorizing troopers to search Joan Rega's home for "Jefferson County Jury Questionnaires, Jury List and any or all papers, documents containing names of prospective jurors for [Appellant's] pending criminal case[.]" Search Warrant, June 7, 2002, at 1.
Appellant highlights that, upon execution of the search warrant, no jury-related documents were found; however, while reviewing materials in the mobile home, troopers observed other incriminating documents. As related in an ensuing, second affidavit of probable cause:
A handwritten letter on a legal sized yellow paper was found written by Robert Gene REGA. The contents of the letter indicate that Robert G. REGA requested that Joan REGA att[em]pt to find a person without a criminal record to provide him with an alibi for the night of December 21, 2000, the night of the LAUTH homicide. Robert REGA indicated he would pay the witness $500 for his testimony and the letter contains specific details as to what the witness would testify to.
Affidavit of Probable Cause II, June 7, 2002, at 1. This affidavit was employed as the basis to secure a second search warrant, which yielded incriminating evidence used against Appellant at trial to demonstrate his consciousness of guilt. See N.T., Jury Selection, June 19, 2002, at 172-86; N.T., June 20, 2002, at 190-93 & Exs. C-68-C-77.
Appellant recognizes that his trial counsel pursued suppression, see N.T., June 13, 2002, at 3-5; however, he criticizes the attorneys for failing to assert a violation of Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676 (1978) (holding that, where a defendant demonstrates that an affiant in a warrant affidavit made a false statement knowingly and intentionally, or with reckless disregard for the truth, the search warrant must be voided, unless the affidavit's remaining content is sufficient to establish probable cause). In this argument, Appellant explains that one of the tape-recorded conversations evidenced that Joan Rega had agreed to send the marked juror lists back to Appellant some seven days before the affidavit of probable cause was signed. It is Appellant's position that the omission of this information from the affidavit of probable cause "violated Franks, " and that evidence tainted by the violation should be suppressed. Brief for Appellant at 20.
The Commonwealth acknowledges that trial counsel did not invoke Franks in their suppression efforts. It observes, however, that counsel did advance the argument that nothing in the tape recorded conversations suggested that juror questionnaires would be found in the trailer. See N.T., Jury Selection, June 13, 2002, at 3-5. Moreover, the Commonwealth relies on the following rationale of this Court from Appellant's direct appeal, applied in passing upon a related issue:
Appellant had received the jury questionnaires, and the recorded phone conversations with his mother indicated that he had passed them on to her and that she had, in turn, distributed them to friends and family. As the trial court found in rejecting Appellant's contention that the search warrant was unconstitutionally broad, common sense dictated that in the process, Ms. Rega easily could have copied some of that information onto other papers and documents besides the official lists and questionnaires.
Rega, 593 Pa. at 686, 933 A.2d at 1012 (emphasis added).
Based on such reasoning, it is the Commonwealth's position that this Court "has already validated the trial court's common sense assertion that there was probable cause to believe that other papers and documents containing the names of jurors would be found in the home during the search." Brief for the Commonwealth at 44; accord Rega, Nos. CP-33-CR-26-2001, et al., slip op. at 4 ("Whether or not [the affiant trooper] should have understood the [taped conversation] to mean that the actual list [Appellant] sent to his mother would no longer be found at the trailer, . . . the information he had was sufficient to warrant a search for 'other papers and documents besides the official lists and questionnaires' onto which Joan [Rega] may have copied juror information.").
We agree with the Commonwealth and the PCRA court that the dispositive rationale on direct appeal sufficiently resolves the present Franks-based claim and that no relief is due ...