ARGUED: April 14, 2010
RESUBMITTED: September 20, 2013
Appeal from the Judgment of Sentence entered on February 1, 2007, in the Court of Common Pleas, Criminal Division, of Blair County at No. CP-07-0002273-2005
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
MR. JUSTICE McCAFFERY
This is a direct appeal from the judgment of sentence of death on three counts of first-degree murder. We affirm the judgment of sentence.
In the very early morning hours of August 28, 2005, Appellant fatally shot three men outside of the United Veterans Association ("UVA"), a private social club in Altoona, Blair County, after he and two friends, Travis Shumaker and Shirley Shumaker, were denied admission. The victims were Alfred Mignogna, the owner of the club; Frederick Rickabaugh, the bouncer; and Stephen Heiss, a bystander/patron of the club. Shortly after the shootings, Appellant called 911 and told the operator that he thought he had hurt someone. Police found Appellant at the Shumaker residence and took him into custody approximately an hour after the shootings. Appellant was charged by information with three counts of criminal homicide; one count of aggravated assault, felony of the first degree; one count of aggravated assault, felony of the second degree; and one count each of recklessly endangering another person and illegal alien not to possess/use a firearm. At trial, which was held in Blair County before a jury chosen from citizens of Cumberland County, defense counsel acknowledged that Appellant had shot the three men, but he attempted to introduce a defense of diminished capacity due to alcohol- and marijuana-induced intoxication. On September 12, 2006, the jury found Appellant guilty of three counts of first-degree murder and one count each of aggravated assault and recklessly endangering another person. Following a penalty phase hearing, on September 14, 2006, the jury found three aggravating circumstances and three mitigating circumstances,  determined that the former outweighed the latter, and voted to impose the death penalty for each murder conviction. On February 1, 2007, the court sentenced Appellant to death. Appellant now appeals to this Court, pursuant to 42 Pa.C.S. § 9711(h)(1),  raising the following six issues for our review, which we reproduce verbatim:
[1.] Did the trial court err in denying -- over the course of the trial proceedings -- several motions to appoint new counsel for Mr. Padilla when his appointed counsel were plagued by debilitating conflicts of interest?
[2.] Did the trial court err in refusing for over a month to appoint counsel for an unpopular and indigent defendant charged with three counts of first-degree murder?
[3.] Did the trial court violate international law in interfering with Mexico's efforts to provide consular assistance to Mr. Padilla?
[4.] Did the trial court err in instructing the jury that there was no evidence of diminished capacity when a psychiatric expert testified that Mr. Padilla had consumed a great deal of alcohol, smoked marijuana, and lacked the capacity to form a specific intent to kill?
[5.] Did the trial court err in refusing to vacate the death sentence and impose a life sentence when there was no proof of two aggravating circumstances during the penalty phase and the predicate "felony" for a third aggravating circumstance was a misdemeanor?
[6.] Did the trial court err in denying post-trial motions filed on Mr. Padilla's behalf?
Appellant's Brief at 4 ("Statement of Questions Involved").
SUFFICIENCY OF THE EVIDENCE
Before addressing Appellant's claims, we must independently review the legal sufficiency of the evidence to support his first-degree murder convictions, as we do in all cases in which a sentence of death has been imposed. See, e.g., Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011). In a sufficiency review, we determine whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of first-degree murder beyond a reasonable doubt. Id.
The elements of first-degree murder are as follows: (i) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011).
First-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a) and (d). Specific intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part of the victim's body. Houser, supra at 1133-34; Briggs, supra at 306-07;
Commonwealth v. Wright, 961 A.2d 119, 130-31 (Pa. 2008). Recently, in Briggs, supra at 307, we concluded that the appellant's deliberate and repeated use of a firearm to shoot the victims in the chest and/or abdomen established his specific intent to kill.
As mentioned above, the only issue at trial was whether Appellant had the requisite malice and intent to kill, as the defense conceded that Appellant shot the victims. See Notes of Testimony ("N.T."), 9/6/06, at 31; Appellant's Brief at 19 ("There was no dispute at the guilt-phase trial that [Appellant] shot and killed three people."). The evidence that Appellant acted with malice and with specific intent to kill the victims was substantial. Harry Kamerow, M.D., a pathologist who performed autopsies on the three victims at the request of the Blair County Coroner's Office, testified as follows regarding his findings. Mr. Mignogna suffered three separate gunshot wounds: one to the left side of the chest, one to the left flank, and one to the right thigh; his death was caused by the gunshot wound to his chest, which ruptured the left and right ventricles of his heart. N.T., 9/6/06, at 109, 115, 133. Mr. Rickabaugh suffered four gunshot wounds: one to the left side of the chest, one to the left upper back, one to the right midback, and one a graze wound to the left side of the chest; his death was caused by the penetrating gunshot wound to the chest, which resulted in severe avulsion of the right lobe of the liver. Id. at 120, 124, 127-28, 130, 132-33. Mr. Heiss was killed by a single gunshot wound to the right side of the chest, which ruptured the right atrium of his heart. Id. at 105-07, 133. Similar to Briggs, supra, the manner in which Appellant killed the victims established his specific intent to kill.
Other testimony, by persons who were standing outside the UVA club when the murders took place, provided further evidence of the deliberate, intentional nature of the shootings. Mark Hott testified that, at the beginning of the confrontation, Mr. Shumaker argued with Mr. Mignogna and Mr. Rickabaugh after being denied entry to the club. N.T., 9/6/06, at 139-46. Then, Mr. Hott testified, Appellant walked away from the group to a car parked near the club, fumbled around in the passenger side of the car, walked back with something in his hand, approached Mr. Rickabaugh from the back, aimed, and fired three shots into Mr. Rickabaugh. Id. at 147-48, 156-57. Next, Mr. Hott testified, Appellant turned slightly to the left and fired more shots, hitting Mr. Mignogna, who was standing next to Mr. Hott. Id. at 149-50. At this point, Mr. Hott ran inside the club, but he continued to hear gunshots. Id. at 150. Mr. Hott estimated that Appellant was approximately six feet from Mr. Rickabaugh and twelve to fifteen feet from Mr. Mignogna when he shot the men. Id. at 157.
Michael Bryant, another club patron on the night of the murders, provided testimony consistent with that of Mr. Hott. Mr. Bryant testified that he saw a small altercation outside the UVA club between Mr. Mignogna and Mr. Shumaker, and he tried to separate the two arguing men. N.T., 9/7/06 at 24-29. Then, Mr. Bryant testified, Appellant came from the parking lot carrying a firearm, which he raised in front of him with both arms, pointed, and fired multiple times. Id. at 33-35, 45, 52. The gunfire prompted Mr. Bryant to run from the scene, around the back of the UVA club building, at which point he realized that Appellant was also running in that direction. Id. at 35-37. Mr. Bryant testified that although he was fearful that Appellant was coming after him, Appellant ran past him. Id. at 38-40. Mr. Bryant also testified that Appellant ran normally, was not unsteady, and did not stumble or stagger. Id. at 52-53.
Two other patrons at the UVA club on the night of the murders testified similarly. Matt Neumeyer and Tanya Kline were standing close to one or more of the victims when they saw Appellant point a gun at the victims and fire multiple times. Id. at 97-103, 128-34.
Ed Perino, who lives near the UVA club, was walking in the neighborhood when the murders took place. He testified that he heard gunshots; ran into Appellant coming from the area of the UVA club; recognized him as someone he had seen with some frequency in the neighborhood, especially at the Shumakers' residence; and asked him what was going on. Id. at 155-58. Mr. Perino testified that Appellant was running in a straight line, not stumbling, nor weaving back and forth, and did not appear to be drunk. Id. at 162-63, 166-67.
Three officers from the Altoona Police Department testified that they found Appellant in front of the Shumakers' residence within a short time after the murdersand took him into custody after they received a radio report that someone wanted to turn himself in because he thought he had hurt somebody. See testimony of Sergeant John Roefaro, N.T., 9/7/06, at 188-92, 200; testimony of Lt. Michael Lowery, id. at 226-27; testimony of Detective Scott Koehle, N.T., 9/8/06, at 177-78, 191. The officers testified that, during his apprehension, Appellant responded to commands without delay or confusion, and walked without difficulty or stumbling or loss of balance, even when asked to walk backward with raised arms. N.T., 9/7/06, at 193-96; 228-31; N.T., 9/8/06, at 179-82. Appellant understood the officers and was able to communicate with them without difficulty, in normal, clear speech. N.T., 9/7/06, at 193-94, 197-98; 231-32; N.T., 9/8/06, at 182. The officers, all of whom were experienced police officers, concluded that Appellant was not drunk or impaired in any way, but rather appeared very normal. N.T., 9/7/06, at 197-98; 232-33; N.T., 9/8/06, at 180-83.
Detective Koehle further testified that Appellant provided a statement as to his activities on the night of the murder, in which he indicated that he and Mr. Shumaker had gone out for the evening at around 10 p.m., stopping at a couple of strip clubs, with Appellant driving because he was not planning to drink. Although Appellant acknowledged having four or five beers during the evening, he also stated that he was not intoxicated. N.T., 9/8/06, at 188-93, 216, 224. Appellant asserted that, approximately a year before the murders, he had sought treatment for panic attacks, which presented with symptoms similar to a heart attack. He had prescription medication for these panic attacks, but had not taken any in approximately one month because he had not been back to the doctor to get a refill. Id. at 197-98, 218-20. Appellant claimed in his statement that the last thing he remembered before the murders was "last call" at a strip club around 1:30 a.m.; he claimed he had no recollection of the murders, but only of waking up on the porch of the Shumakers' residence. Id. at 199, 211.
Testimony as to how, where, and when police found the murder weapon was provided by Sergeant Roefaro and Lt. Lowery. Based on information received from Mr. Perino, see summary of Perino testimony, supra, Sergeant Roefaro searched the area where Mr. Perino had observed Appellant running subsequent to the murders. In a wooded area not far from a trail, the officer found a Sig Sauer P220 handgun and its magazine in a hollow log that had been stuffed with fresh green vegetation. N.T., 9/7/06, at 201-03, 210-13; see also id. at 234-36. Lt. Lowery testified that, adjacent to the trail, about seven or eight feet from the hollow log, he observed a piece of corrugated metal, under which he found a briefcase. Id. at 236-38. Examining the contents of the briefcase, Lt. Lowery inventoried the following: a Pennsylvania-issued driver's license in Appellant's name; a VISA credit card issued in Appellant's name; two business cards, under the names "Padilla Construction" or "S&P Construction" with the name Miguel Padilla; a hotel receipt with Appellant's signature dated sometime in July 2005; an insurance card in Appellant's name for four vehicles, one of which was the Jaguar found in front of the Shumakers' residence; and a SAM'S Club card with Appellant's name on it. Id. at 242-43.
Additional testimony regarding the handgun found in the hollow log established that it had been sold to Travis Shumaker on May 25, 2005, by a local merchant. N.T., 9/8/06, at 27. Appellant acknowledged in his statements to police that he knew Mr. Shumaker had a permit to carry a handgun and that he kept one under the front seat of his car at times. Id. at 198. Trooper Robert Hagins, a forensic firearm and tool mark examiner for the Pennsylvania State Police, testified that his analysis showed that the bullets found in the bodies of Mr. Mignogna and Mr. Rickabaugh were fired from the gun sold to Mr. Shumaker and found in the hollow log. Id. at 150-53. Finally, Dave Freehling, an expert in the analysis of gunshot residue, testified that he detected gunshot residue on swabs taken from Appellant's hands after his apprehension. Id. at 139-42.
This evidence is unquestionably sufficient to establish that Appellant shot Mr. Mignogna, Mr. Rickabaugh, and Mr. Heiss with malice and with specific intent to kill. Appellant shot Mr. Mignogna and Mr. Rickabaugh three and four times, respectively, hitting both of them in the chest and causing their deaths. Several witnesses observed Appellant point the murder weapon directly and from relatively close range at these victims prior to firing. Mr. Heiss was a by-stander, and does not appear to have been a specific target, but that offers Appellant no relief. See Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing the doctrine of transferred intent, 18 Pa.C.S. § 303(b)(1), pursuant to which "the intent to murder may be transferred where the person actually killed is not the intended victim"). Having concluded that the evidence was sufficient to convict Appellant of first-degree murder in the shooting deaths of all three victims, we turn to Appellant's specific claims.
1. TRIAL COURT APPOINTED "CONFLICTED" COUNSEL
In Appellant's first issue, he asserts that he was denied his Sixth Amendment right to counsel because the court appointed counsel who had a conflict of interest. Specifically, Appellant claims that his court-appointed guilt phase counsel, Donald Speice, Esq., had a conflict of interest because, in his role as public defender of Blair County, he had initially denied Appellant's application for appointed counsel., 
To establish that an actual conflict of interest burdens counsel, an appellant must show that "counsel actively represented conflicting interests[, ] and the actual conflict adversely affected counsel's performance." Commonwealth v. Small, 980 A.2d 549, 563 (Pa. 2009) (citing Commonwealth v. Spotz, 896 A.2d 1191, 1232 (Pa. 2006)); see also Commonwealth v. Williams, 980 A.2d 510, 522 (Pa. 2009) (citing Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 1243 (2002), for the definition of "actual conflict of interest" for Sixth Amendment purposes as a "conflict of interest that adversely affects counsel's performance").
Pursuant to the Public Defender Act,  statutory responsibility to provide legal counsel to criminal defendants who lack sufficient funds to obtain private counsel rests with the public defender's office. See Dauphin County Public Defender's Office v. Court of Common Pleas of Dauphin County, 849 A.2d 1145, 1149 (Pa. 2004) (citing 16 P.S. § 9960.6(a)). Furthermore, the initial responsibility for ascertaining whether an individual seeking representation has an ability to procure "sufficient funds to obtain legal counsel" also rests with the public defender's office. Id. (quoting 16 P.S. § 9960.6(b)).
Before applying these principles and rules to Appellant's claim here, i.e., that public defender and trial counsel Donald Speice was burdened with a conflict because he initially denied Appellant's request for appointed counsel, we first must consider the sequence of events following Appellant's arrest on August 28, 2005. Appellant's preliminary arraignment was held the day after his arrest, and within days thereafter, he made application for the appointment of counsel, which was received in the public defender's office on September 6, 2005. Notably, in his application for counsel, Appellant indicated that he was paying approximately $500 per month to support another person, but Appellant failed to provide any information as to his sources of income, leaving blank the entire second page of the application, which requires a listing of all of the applicant's sources of income and assets. See Appellant's Application for Counsel, stamped as received on 9/6/05, at 1-2. Mr. Speice, as public defender of Blair County, denied Appellant's application, citing the following reasons: "This office received information that Defendant has attempted to hire private counsel and has indicated he could obtain as much as $50, 000.00; Mexican Consulate has also made efforts to obtain counsel for him." Id. at 3.  On September 9, 2005, Appellant appealed the public defender's decision to the trial court, which affirmed on September 12, 2005.
On October 12, 2005, the Government of Mexico filed a motion requesting the appointment of counsel for Appellant, which motion was granted on October 14, 2005.
In a subsequent opinion, the trial court set forth its reasons for not appointing counsel for Appellant prior to that time. See Opinion and Order of the Trial Court, dated 5/18/06, at 2-3. The court explained that, prior to its receipt of Mexico's October 12, 2005 motion, the court's understanding was that the Mexican Consulate was exploring the possibility of representing Appellant. Although the trial court had been attempting to confirm Mexico's intentions, it was only upon receipt of the October 12, 2005 motion that the trial court realized that the Government of Mexico would not be representing Appellant. Id. In addition, the trial court stated that it was aware, at the time it declined to appoint counsel, that Appellant was being represented in an involuntary termination matter by private counsel, specifically Thomas Dickey, Esq. This fact lent support, in the trial judge's mind, to Appellant's financial capacity to obtain his own counsel. Given this situation, the trail court concluded that it was "prudent [ ] to await [Appellant's] and/or Mexico's decision and defer proceedings for a time to see how these issues would resolve." Id. at 5. However, upon receipt of Mexico's October 12, 2005 motion, the trial court directed the Blair County Office of the Public Defender to represent Appellant even though the court acknowledged some remaining question as to Appellant's financial capability. Id. at 3. Thus, 47 days after Appellant was arrested and detained, Mr. Speice, the public defender, assumed the responsibility for Appellant's representation.
Appellant now asserts that Mr. Speice was burdened with a conflict of interest because he "already had personally participated in the deprivation of [Appellant's] right to counsel" by initially refusing Appellant's request for appointed counsel. Appellant's Brief at 67. Furthermore, Appellant asserts that this alleged conflict prevented Mr. Speice from arguing before the court that Appellant's right to counsel had been violated by the delay of 47 days before the court appointed counsel on his behalf. Id. at 67-68. Appellant's assertions are meritless.
It is important to recognize that Mr. Speice, in his role as public defender, was fulfilling his statutory duty when he assessed Appellant's written request for counsel and denied it based on two reasonable factors. See text, supra. The trial court correctly analyzed the circumstances presented here as follows:
In reaching [his] decision [to deny Appellant's initial request for appointment of counsel], Attorney Speice performed a ministerial duty which he performs in every case - namely, determining based on information available whether an individual is entitled to free legal representation through his office. Once that determination is made by Mr. Speice, any individual who believes they are aggrieved by a particular determination has a right of appeal to a Judge of this Court. [Appellant] exercised that appeal [sic] on September 9, 2005, and the initial refusal of services by the Public Defender's office was affirmed by [the trial court] on September 12, 2005. All of this is totally consistent with appropriate procedure.
Of course, if the [c]ourt had overruled the decision, Mr. Speice would have undertaken representation of [Appellant] immediately. If his decision is affirmed, however, (as it was here) his office does nothing further since it does not represent [Appellant].
The one certainty in all of this is that Mr. Speice had no conflict with [Appellant]. Mr. Speice had "jurisdiction" of the question of his office's representation of [Appellant] only from September 5, 2005[, ] until his determination on September 6, 2005. After that, any delay and the consequences of that delay are attributable not to Mr. Speice but to the Court and (indirectly) the Government of Mexico.
Trial Court Opinion, dated 5/18/06, at 4-5.
The trial court properly concluded that Mr. Speice's denial of Appellant's request for appointed counsel created no conflict of interest. Appellant has proffered absolutely no evidence to show that Mr. Speice represented conflicting interests, or that his performance vis-à-vis Appellant was adversely affected merely because he had performed his statutory duty, and in so doing, had concluded that Appellant had the ability to secure private counsel. Furthermore, as we explain in Issue 2, infra, Appellant's claim that his constitutional right to counsel was violated by the 47-day delay in appointment of counsel has no merit. Taken generally, Appellant's contention that Mr. Speice was burdened by a conflict of interest would lead to an entirely untenable proposition, to wit, that the public defender would have a conflict with virtually any defendant whom the public defender initially considered ineligible for public-financed counsel, but who subsequently was found to qualify for same. This proposition is incompatible with the statute, which expressly places the responsibility for the representation of indigent defendants, as well as for the initial determination of eligibility for appointed counsel, with the public defender. See 16 P.S. § 9960.6(a) and (b); Dauphin County Public Defender's Office, supra at 1149. Thus, Appellant's assertion that Mr. Speice had a conflict of interest is supported neither by law nor with any facts, and he is entitled to no relief.
2. RIGHT TO COUNSEL
In a claim related to Issue 1, Appellant asserts that his convictions should be reversed because he was denied counsel for 47 days after his arrest, which denial allegedly violated Pennsylvania Rule of Criminal Procedure 122(A), and the right to counsel and due process under, respectively, the Sixth and Fourteenth Amendments to the United States Constitution. Appellant's Brief at 50-53, 60-62. Appellant argues that the delay in appointment of counsel prejudiced him because evidence as to his mental state and his degree of alcohol- and drug-induced intoxication at the time of the murder was irrevocably lost. Id. at 55-58. Appellant relies on the fact that, during the first 47 days after his arrest, "no mental health expert was appointed, no psychiatric evaluation was conducted, and no action was taken on [his] behalf to preserve the most direct evidence bearing on his mental state at the time of the shootings." Id. at 50. Therefore, Appellant argues, he "was not able to present sufficient evidence at trial to fully corroborate his account 'that he had consumed a great deal of alcohol and smoked marijuana [on the] night [of the murders].'" Id. (internal quotation marks quoting N.T., 9/11/06, at 41, the testimony of Dr. Steven Ragusea, who was reporting what Appellant told him). As a proposed remedy for the 47-day period in which he did not have appointed counsel, Appellant seeks dismissal of the first-degree murder charges, with leave for the Commonwealth to file third-degree murder charges and remand for a new trial. Id at 59. Appellant is entitled to no relief on this issue for the reasons we discuss below, considering first his claim of a Rule 122(A) violation.
Pursuant to Rule 122(A), counsel shall be appointed "in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel[, or] in all cases, by the court, on its own motion, when the interests of justice require it." Pa.R.Crim.P. 122(A) (emphasis added). "Ideally, counsel should be appointed to represent indigent defendants ... immediately after preliminary arraignment in all court cases." Comment to Rule 122.
Appellant's preliminary hearing was held on October 27, 2005, two weeks after the trial court appointed counsel. Thus, the record clearly shows that, in compliance with Rule 122(A), the court appointed counsel for Appellant prior to his preliminary hearing, and his assertion that the delay in appointment of counsel violated Rule 122 is meritless. Appellant also contends that the timing of his preliminary hearing violated Pa.R.Crim.P. 540(F)(1)(a), which requires a preliminary hearing to be held not more than ten days after the preliminary arraignment unless the time is extended for cause shown. The reason for the continuance of Appellant's preliminary hearing is not of record, but as Appellant notes, it was possibly because he was not represented by counsel. Appellant's Brief at 55 n.26. Given the legitimate reasons provided by the public defender and the trial court for not immediately appointing counsel for Appellant, as discussed in Issue 1, we decline to conclude that the trial court did not have cause to continue Appellant's preliminary hearing.
We turn next to Appellant's claim that his Sixth Amendment right to counsel was violated. The Sixth Amendment right to counsel is as follows:
In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.
U.S. Constitution, 6th Am.
"[T]he core purpose of the [Sixth Amendment] counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Cronic, 466 U.S. 648, 654 (1984); see also United States v. Gouveia, 467 U.S. 180, 190 (1984) (reiterating that "the [Sixth Amendment] right to counsel exists to protect the accused during trial-type confrontations with the prosecutor"). Accordingly, the United States Supreme Court has consistently held that the Sixth Amendment right to counsel does not attach until a prosecution is commenced, i.e., until "the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008) (citations omitted).
Once attachment of the Sixth Amendment right to counsel has occurred, "the accused at least is entitled to the presence of appointed counsel during any 'critical stage' of the post[-]attachment proceedings." Rothgery, supra at 212. The High Court has recognized that not just the trial, but also certain pretrial proceedings are critical stages, whereat "the accused is confronted, just as at trial, by the procedural system, or by his expert adversary, or by both, in a situation where the results of the confrontation might well settle the accused's fate and reduce the trial itself to a mere formality." Gouveia, supra at 189 (internal quotation marks and citations omitted); see also Rothgery, supra at 212 n.16 (defining "'critical stages' as proceedings between an individual and agents of the State (whether formal or informal, in court or out) that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary") (internal quotation marks and citations omitted). As to the timing of the appointment of counsel, the High Court has concluded that "counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself." Rothgery, supra at 212.
As a general rule, a conviction will not be vacated for a violation of the Sixth Amendment right to counsel in the absence of a showing that the reliability of the defendant's trial was undermined. Bell v. Cone, 535 U.S. 685, 695-98 (2002); Cronic, 466 U.S. at 658-59 & n.26; Commonwealth v. Johnson, 828 A.2d 1009, 1015 (Pa. 2003) (citing Chapman v. California, 386 U.S. 18, 22 (1967) for the general principle that constitutional errors do not require automatic reversal but rather may be subject to a harmless error analysis). However, the United States Supreme Court has identified several circumstances in which prejudice resulting from a violation of the Sixth Amendment right to counsel is presumed. Bell, supra at 695 (quoting Cronic, supra at 658, as having identified "three situations implicating the right to counsel that involved circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified"). One of these presumptively prejudicial circumstances arises when the accused has suffered a complete denial of counsel at a critical stage of trial. Cronic, supra at 659 & n.25 (providing citations to cases in which the High Court found constitutional error without a showing of prejudice because "counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding"); Johnson, supra at 1015 (granting the appellant a new trial after concluding that this Court was required to presume prejudice because the appellant was completely, albeit temporarily, denied counsel during a critical stage of his trial).
With respect to Appellant's Sixth Amendment claims in the instant case, he first asserts that "the ten days following a preliminary arraignment on first[-]degree murder charges should be recognized as a 'critical stage' of the proceedings, " and thus prejudice should be presumed if the accused is denied counsel during this time. Appellant's Brief at 64 (internal quotation marks added). To support this assertion, Appellant argues that an early psychiatric examination is necessary to document and preserve direct evidence of a defendant's mental state, including any influence of alcohol or drug ingestion, within a short time after the offense. Id at 62-63; see also id. at 56-57. Appellant cites a Declaration of Marc Bookman, Esq., then an assistant public defender in the Philadelphia Defender's Office, who writes that "[t]he first days after arrest are a critical time during which counsel is presented with the only opportunity to assess first-hand any lingering indicia of [the defendant's] decompensated mental state or intoxication which might support a diminished capacity defense" or a mitigating circumstance related to the defendant's mental status at the time of the offense. Declaration of Marc Bookman, dated 1/31/06, at 1-2 (Exhibit C in the Motion of the Government of Mexico Requesting the Appointment of Conflict-Free Counsel for Defendant Miguel Angel Padilla, filed 2/6/06).
We have absolutely no inclination to extend the legal definition of the term "critical stage" to encompass the entirety of the ten-day period following a preliminary arraignment on a first-degree murder charge, irrespective of particular circumstances or events that actually occur, judicially or otherwise, relative to the case during that time. As discussed supra, the United States Supreme Court has made clear as recently as 2008 that, for purposes of the Sixth Amendment, "critical stages" are defined as "proceedings between an individual and agents of the State (whether formal or informal, in court or out, ) that amount to trial-like confrontations... ." Rothgery, supra at 212 n.16 (internal quotations and citations omitted and emphasis added). To hold that an entire ten-day block of time is a "critical stage, " regardless of whether any actual "proceedings" or "trial-like confrontations" take place during that time, would extend the High Court's Sixth Amendment jurisprudence beyond reason or recognition. Such an extension would also, in essence, mandate appointment of counsel for any and all yet-unrepresented defendants immediately after preliminary arraignment, regardless of whether the accused had requested appointment of counsel and regardless of his or her financial capacity or intent to obtain private counsel. We will not impose such an unreasonable and unworkable requirement. Because we do not consider the entire ten-day period of time following preliminary arraignment a "critical stage" of criminal proceedings, Appellant is not entitled to a presumption of prejudice with respect to his Sixth Amendment claim.
Next, Appellant maintains that his right to due process under the Fourteenth Amendment was violated by the delay in the appointment of counsel. Appellant's Brief at 65. He contends that the fundamental fairness of the proceedings against him was undermined by the delay in the appointment of counsel because such delay negatively affected his ability to investigate a diminished capacity defense and a case for mitigation based on impaired capacity. Id. at 65, 55-56. More specifically, Appellant argues that, because appointment of counsel was delayed for 47 days, he did not undergo an immediate psychiatric examination, and thus evidence concerning the effect of alcohol and drugs on his mental state at the time of the murders was irrevocably lost. See id. at 57 ("[Appellant's] trial counsel was unable to present sufficient evidence at trial to fully corroborate [Appellant's] account" of his alcohol and marijuana use on the night of the murders); id. at 58 ("If [Appellant] would have been able to preserve evidence of his extensive alcohol and drug use, there would have been a reasonable possibility for the jury to return a guilty verdict of third-degree murder" instead of first-degree murder).
Appellant's assertions are entirely speculative, unsupported by any facts, and indeed contradicted by evidence of record; hence, his claim is meritless. Appellant fails to explain what additional evidence of his alcohol and drug use should have been presented, how it would have been preserved by an early psychiatric examination, or how it would have swayed the jury toward a finding of diminished or impaired capacity.Appellant also ignores the fact that evidence of his mental state, as influenced by alcohol and drugs, was presented at trial. Two acquaintances testified that Appellant drank heavily, was upset and stressed, and was "out of it" after the suicide of a friend, which occurred approximately a week before the murders. N.T., 9/11/06, at 105, 113-14. Shirley Shumaker, who was with Appellant on the night of the murders, testified that Appellant had drunk at least two beers at a strip club they had patronized prior to going to the UVA Club. Id. at 131. Dr. Ragusea, a psychologist who evaluated Appellant, also testified as to possible cumulative effects of Appellant's drug and alcohol use. See text, infra, Issue 4. It is pure speculation, unsupported by any evidence whatsoever, that an early psychiatric examination would somehow have supported an investigation, that somehow would have led to additional testimony, that somehow would have established not merely alcohol and/or drug use, but also diminished capacity. Appellant's assertions in this due process sub-claim are not grounded in any facts whatsoever, and he is entitled to no relief.
3. VIOLATION OF THE VIENNA CONVENTION
In Appellant's third issue, he contends that "the trial court [ ] entered orders that effectively deprived [him] of the benefits of consular assistance" from the Government of Mexico, in violation of the Vienna Convention on Consular Relations (Vienna Convention).,  Appellant's Brief at 74-75. Appellant asserts that the trial court's "numerous steps" depriving him of the benefits of consular assistance included the following.
[O]ver six months before trial, the trial court ordered the Prothonotary not to accept filings by Mexico on [Appellant's] behalf. (See D.E. 78, Padilla Decl., ¶ 7; D.E. 9, Order Ct., 3.) The trial court also refused to consider the merits of pro se motions prepared by [Appellant] with consular assistance, and refused to allow representatives of Mexico to address the tribunal on [Appellant's] behalf. (E.g., D.E. 46, N.T. 8/21/2006, 8-10; D.E. 49, N.T. 8/23/2007, 111-12 ("I don't give a damn about Mexico's motion.").)
Appellant's Brief at 79.
Before we can address these claims, we must set forth, from the record, the extensive history of motions filed by Appellant acting pro se and/or by the Government of Mexico acting on his behalf.
On October 12, 2005, the Government of Mexico filed its first motion on behalf of Appellant, asking the court to appoint counsel for Appellant. As we discussed under Issue 1, the trial court granted this motion on October 14, 2005, and appointed the Blair County Office of the Public Defender to represent Appellant. Importantly, Appellant continued to be represented by the public defender during the time that all of the subsequent motions at issue here, as discussed below, were filed.
On February 6, 2006, and February 10, 2006, the Government of Mexico filed two motions, respectively entitled "Motion of the Government of Mexico Requesting the Appointment of Conflict-Free Counsel, " and "Motion of the Government of Mexico Requesting a Change of Venue to Ensure that Defendant Miguel Angel Padilla Receives Due Process, a Fair Trial and a Reliable Sentencing Determination." The trial court addressed and denied both of these motions in its order of February 21, 2006. The court explained that counsel had been appointed for Appellant, and, therefore, motions would be considered only if they were filed by counsel of record. The court reminded the Government of Mexico that it had had fair opportunity to undertake representation of Appellant, but had chosen not to do so; indeed, the Government of Mexico had explicitly asked the court to appoint counsel for Appellant. The court noted that representatives of the Government of Mexico had already attended status conferences related to Appellant's case, and were welcome to continue to do so. However, the court directed the Government of Mexico to go through Appellant's counsel of record if it desired to have input into the case, assisting these counsel, "rather than interfering with them." Order of Court, dated 2/21/06, at 2. With regard specifically to the motion for change of venue, the trial court noted that this matter had already been discussed in status conferences and a similar motion was to be filed by Appellant's counsel of record. Id. at 3. Finally, the court directed the Prothonotary's Office "to refuse further filings of record from other than record counsel." Id.
Despite the trial court's order, the Government of Mexico filed another motion, on April 18, 2006, entitled "Motion of the Government of Mexico to Vindicate the Treaty Rights of the Government of Mexico and those of Defendant Miguel Angel Padilla, a Mexican National." In response, the trial court again reviewed all of the previous motions that had been filed by the Government of Mexico and the court's actions thereon. Opinion and Order of Trial Court, dated 5/18/06. The court reiterated its concern that "allowing unfettered discretion to Mexico to file motions when, how, and as to what issues [it] chose invited chaos and a legitimate question as to who was in charge of [Appellant's] case - counsel of record and this Court or the Government of Mexico." Id. at 5-6. The court further explained that its order of February 21, 2006, "was designed to enforce appropriate motions practice in Pennsylvania and empower appointed counsel to represent [Appellant]." Id. at 6. The court again noted that it had invited the Government of Mexico to attend status conferences and had informed the Government of Mexico of hearings of record. Id. However, the court strongly concluded that the "intervention" sought by the Government of Mexico was inappropriate and unjustified either under any international treaty or under the Pennsylvania Rules of Criminal Procedure. Id. at 7-8. On June 16, 2006, the Government of Mexico filed a notice of appeal of the trial court's May 18, 2006 order with this Court, alleging that the order violated Appellant's rights pursuant to the Vienna Convention on Consular Relations and the Bilateral Consular Convention. On August 17, 2006, we quashed the appeal as interlocutory. Commonwealth v. Padilla, 908 A.2d 265 (Pa. 2006).
Beginning during the time when the Government of Mexico's appeal of the trial court's May 18, 2006 order was pending, Appellant filed five pro se motions. The first was filed on August 9, 2006, and was entitled "Pro Se Motion of Defendant Miguel Angel Padilla Requesting a Stay of Trial Court Proceedings Pending Resolution of Appeal Filed by the Government of Mexico." The trial court denied this motion as "inappropriately filed since [Appellant] has counsel of record." Order of Court, filed 8/16/06, at 1. The trial court, however, also took "the opportunity of this Order, " to address the Government of Mexico's appeal and request for a stay of trial, which was then pending before this Court. Id. The trial court explained that all preparations had been made for Appellant's trial, which was scheduled to commence on August 21, 2006, and that all of the issues raised in the motion were matters for prospective appeal in the event that Appellant was convicted. As noted above, this Court quashed the appeal on August 17, 2006, rendering moot any request for a stay.
Appellant's second motion was filed on September 5, 2006, the first day of trial testimony, and was entitled "Pro Se Motion for Continuance of Trial Court Proceedings." In this motion, Appellant contended that counsel was unprepared and that a mitigation investigation had not been conducted, and he sought appointment of new, "conflict-free" counsel. The trial court denied this motion on the same day without comment.
Appellant's third motion was filed on November 27, 2006, just before he was scheduled to be sentenced, and it was entitled "Pro Se Motion of Defendant Miguel Angel Padilla to Withdraw Nolo Contendere Plea to the Charge of Unlawful Possession of a Firearm Under 18 Pa.C.S.A. § 6105." The firearm charge referred to in this motion was illegal alien not to possess or use a firearm, which charge arose from the events on the night of the murders. Appellant had entered a nolo contendere plea to the charge, but in this motion he sought to withdraw that plea, asserting that he was innocent of the charge, that he had not been advised of the consequences of entering a plea, and that he was denied his right to be advised by the Mexican consulate concerning the plea. Id. at 3. After entertaining argument as to whether sentencing should go forward, the trial court granted a continuance, and directed the Commonwealth to file a written response to Appellant's pro se motion to withdraw his plea. Order of Court, dated 11/29/06. On January 22, 2007, the trial court nolle prossed and dismissed the firearm charge against Appellant, as requested by the Blair County District Attorney's Office.
Appellant's fourth motion, filed on January 29, 2007, and entitled "Pro Se Motion and Brief of Defendant Padilla for Appointment of New Counsel due to Numerous
Debilitating Conflicts of Interest, " raised many of the same claims as in the previous motions, but in addition alleged "Betrayal and Deception on the Eve of Trial" related to the stipulation of a "False Aggravator." The stipulation at issue related to the charge, discussed above, of illegal alien not to possess or use a firearm. Appellant's fifth motion was filed on February 12, 2007, and was entitled "Pro Se Motion for a New Trial." It was followed on February 26, 2007, by a document entitled "Declaration of Miguel Angel Padilla in Support of Pro Se Motion for a New Trial, " in which Appellant made a number of unsupported assertions, mostly related to the alleged denial of his right to assistance from the Government of Mexico. On April 10, 2008, the trial court denied Appellant's "various" pro se motions "as inappropriately filed in light of the fact that [Appellant] had [c]ounsel of [r]ecord at the time of each filing." Order of Court, dated 4/10/08.
The above recitation of facts of record reveals that, despite the trial court's order of February 21, 2006, directing the prothonotary to accept for filing only those documents signed by Appellant's counsel of record, numerous motions were filed after this time by the Government of Mexico and by Appellant acting pro se. Pursuant to Pennsylvania Rule of Criminal Procedure 576(A)(4), when a defendant who is represented by counsel submits a motion or other document pro se, the clerk of courts shall accept it for filing, time stamp it, docket it, place it in the case file, and then forward a copy of the document to counsel for the defendant and for the Commonwealth. As a comment to the Rule indicates, the time-stamp and docketing requirement "only serves to provide a record of the filing, and does not trigger any deadline nor require any response." Cmt. to Rule 576(A)(4). Appellant does not claim that the clerk of courts did not comply with this rule, nor does he claim that the clerk of courts declined to file any document. Thus, while the trial court's order directing the prothonotary to accept for filing only those documents signed by Appellant's counsel of record was inconsistent with current practice, as set forth under the Rules of Criminal Procedure, Appellant provides no evidence -- and indeed does not even assert -- that the court's order was ever given effect.  Appellant is not entitled to relief merely on the basis of a trial court order that, although inconsistent with a current rule, led to no improper action or omission.
Consistent with Rule 576, decisional law from this Court has clarified Commonwealth policy regarding hybrid representation. No defendant has a right to hybrid representation, either at trial or on appeal. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993); Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (characterizing as a "legal nullity" a pro se Pa.R.A.P. 1925(b) statement filed by an appellant who was represented by counsel); Commonwealth v. Colson, 490 A.2d 811, 822 (Pa. 1985) (holding that there is no constitutional right for a represented defendant to act as co-counsel). Here, Appellant was represented by court-appointed counsel, as both he and the Government of Mexico had requested. Appellant had no right to hybrid representation and thus no right to demand that the trial court address his pro se motions on the merits.
Disregarding the clarity of these procedural rules, the essence of Appellant's claim here is that the rules do not apply to him because he is a foreign national whose consulate assisted in the preparation of his pro se motions. Specifically, Appellant contends that, by not considering the merits of his pro se motions prepared with assistance of the Mexican consulate, the trial court improperly denied him the benefits of consular assistance, in violation of Article 36 of the Vienna Convention. Appellant's Brief at 79. Appellant further contends that the trial court also violated Article 36 of the Vienna Convention by refusing to allow representatives of the Government of Mexico to address the tribunal on Appellant's behalf. Id. Appellant avers, in broad and general terms, that the trial court's alleged violations of Article 36 caused him prejudice, and he asks this Court to fashion a remedy, specifically, to vacate his convictions or death sentences, and to remand for, respectively, a new trial or a new penalty hearing. Id. at 77-85.
The claims that Appellant raises in this issue focus on his individual rights under the Vienna Convention. Addressing such claims involves interpretation of the treaty, a question of law, for which our standard of review is de novo and our scope is plenary. Commonwealth v. Crawley, 924 A.2d 612, 614 (Pa. 2007).
For reasons that we describe in detail in the paragraphs below, Appellant's claim is entirely untenable, and the fact that Appellant's pro se motions were prepared with the assistance of the Mexican consulate is not determinative. As interpreted by the United States Supreme Court, the Vienna Convention cannot be read to provide support for Appellant's assertion that Article 36 exempted him from the well-established procedural rules concerning the filing of pro se motions by represented appellants --regardless of who assisted him in the preparation of these motions. Furthermore, Appellant's assertions of prejudice are vague and speculative in the extreme, ungrounded in any factual evidence, and his demands for a remedy are in conflict with holdings from the United States Supreme Court.
As the United States Supreme Court has recently summarized, the preamble to the Vienna Convention provides that the treaty's purpose is to "contribute to the development of friendly relations among nations." Medellin v. Texas, 552 U.S. 491, 499 (2008) (citing 21 U.S.T. at 79). Article 36, the provision at issue here, was drafted to "facilitate the exercise of consular functions, " Medellin, supra (citing 21 U.S.T. at 100), and to that end, it "addresses communication between an individual and his consular officers when the individual is detained by authorities in a foreign country." Sanchez-Llamas v. Oregon, 548 U.S. 331, 337 (2006). Specifically, pursuant to Article 36, when a foreign national is detained, the authorities must notify the consular officers from the detainee's home country, must promptly forward any communication addressed to the consular post by the detainee, must allow consular officers to communicate with a detainee, and must inform the detainee of these rights. Sanchez-Llamas, supra at 338-39 (citing 21 U.S.T. at 100-01); Commonwealth v. Baumhammers, 960 A.2d 59, 97 (Pa. 2008). The High Court was careful to make clear the limits of the rights provided by Article 36:
Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention -- not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention.
Sanchez-Llamas, supra at 349 (emphases in original).
With regard to implementation, Article 36 provides that the rights set forth therein "shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." Art. 36(2), 21 U.S.T. at 101 (quoted in Sanchez-Llamas, supra at 339).
In Sanchez-Llamas, the Supreme Court consolidated and decided two cases that concerned the availability of judicial relief for violations of Article 36. In both cases, the petitioner-defendants were foreign nationals who were arrested for serious crimes, but not informed that they could request that the consulates of their home countries be notified of their detentions. In the first case, the petitioner sought to have his incriminating statements to police suppressed pursuant to the exclusionary rule, based on the failure of the authorities to comply with the notification requirement of Article 36. The High Court declined to apply the exclusionary rule to suppress the statements. The High Court recognized that the Vienna Convention does not prescribe specific remedies for violations of Article 36, but rather "expressly leaves the implementation of Article 36 to domestic law." Sanchez-Llamas, supra at 343. The Court then concluded as follows:
[W]here a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.
Id at 347; see also Commonwealth v. Judge, 916 A.2d 511, 526-27 (Pa. 2007) (in the context of a different treaty, quoting Sanchez-Llamas for this proposition and adding that "[t]his Court cannot enforce as laws those treaties ... which Congress has not chosen to incorporate into our domestic legal system").
Based largely on the Vienna Convention's failure to set forth a remedy, the High Court denied the petitioner's claim that his statements to police should be suppressed under the exclusionary rule because he had not been informed of his right under the treaty to notify his consulate. Sanchez-Llamas, supra at 343-50; see also Leal Garcia v. Texas, __ U.S.__, 131 S.Ct. 2866 (2011) (per curiam) (declining to issue a stay of execution that the appellant had sought based on proposed federal ...