Submitted June 20, 2012.
As Amended November 26, 2013.
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Appeal from the Order entered on May 28, 2010, in the Court of Common Pleas, Criminal Division of Philadelphia County, at No. CP-51-CR-0410911-1994. Carolyn Engel Temin, Senior Judge.
For Commonwealth of Pennsylvania, Appellant: Hugh J. Burns Jr., Esq.; Amy Zapp, Esq., PA Office of Attorney General.
For Joseph A. Elliott, Appellee: Stuart Brian Lev, Esq., Defender Association of Philadelphia; Aren Kevork Adjoian, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania; Cristi A. Charpentier, Esq.
MR. JUSTICE BAER. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Mr. Justice Stevens did not participate in the consideration or decision of this case. Mr. Chief Justice Castille, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Saylor files a concurring opinion. Mr. Justice Eakin files a concurring opinion.
[622 Pa. 245] MR. BAER,
In 1994, Joseph Elliott was convicted of the first degree murder of Kimberly Griffith, and sentenced to death. Following the denial of relief on direct appeal, Elliott filed a petition for collateral relief pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § § 9541-9546. Without holding an evidentiary hearing, the Court of Common Pleas of Philadelphia County (" the PCRA court" ) granted Elliott a new trial on the following grounds: (1) that trial counsel was ineffective for failing to prepare for trial or interview Elliott in person prior to trial; and (2) that trial counsel was ineffective for failing to object to the medical examiner's testimony regarding the estimated time of the victim's death. The PCRA court denied Elliott [622 Pa. 246] relief on his remaining claims. The Commonwealth has filed an appeal from the PCRA court's grant of a new trial, and Elliott has filed a cross-appeal from the denial of relief on his other issues. For the reasons set forth herein, we reverse the grant of a new trial, and affirm the denial of relief on Elliott's remaining claims.
The facts underlying Elliott's conviction are set forth in this Court's opinion affirming his judgment of sentence on direct appeal. Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243 (Pa. 1997). To facilitate an understanding of the issues raised, we reiterate those facts necessary to disposition of the matter before us. On May 7, 1992, Elliott, who is African-American, and Frank Nardone socialized with Kimberly Griffith (" the victim" ), who is Caucasian, at an after-hours nightclub in Philadelphia. At around 4:00 a.m., the victim left the club with Elliott and Nardone, and proceeded to Nardone's house. While there, Elliott and the victim ingested cocaine, and Nardone, who was intoxicated, passed out. Nardone awoke that afternoon at 1:30 p.m., and discovered the victim's battered dead body lying on the couch, having been raped, beaten and strangled by an electrical cord.
Nardone notified the police, who questioned Elliott later that day. Elliott explained that he had consensual sex with the victim in the early hours of the morning, and had left Nardone's home while the victim was alive. During the interview, police observed and photographed several scratch marks on Elliott's arms and body and a discolored bruise in the pattern of a straight line on the back of his right hand, which suggested that an item may have
been wrapped tightly around it. Elliott indicated that the victim made one of the scratch marks during sexual intercourse, and did not explain the others. It was not until more than a year later, after [622 Pa. 247] Elliott was suspected of committing sexual assaults on other young white women, that he was arrested in connection with the instant murder.
Elliott's trial commenced in October of 1994, with the Honorable Paul Ribner presiding and Benjamin Paul, Esquire (" trial counsel" ), representing Elliott. Prior to voir dire, Elliott informed the court that he questioned trial counsel's ability to represent him because counsel did not communicate with him or otherwise discuss the case with him until earlier that day in the holding cell. Notes of Testimony (" N.T." ), dated Oct. 18, 1994, at 34-35. When the court then asked trial counsel whether he had spoken to Elliott about the capital murder case, counsel responded:
I represent the Defendant in four other cases, one which I tried already. I did talk to the Defendant about this case in the cell room. It's true that I never visited him in prison. Judge Temin has knowledge of that. I was fully satisfied in my mind that there was nothing else to be discussed with the Defendant with respect to the defense. I did investigate the case thoroughly. I do have the Defendant's statement, which I reviewed thoroughly. He has reviewed it thoroughly. If there is anything he can add, he can tell me. I mean, just to go to the prison to hold his hand and discuss the case may not be proper.
Id. at 37-38. The court thereafter advised trial counsel to consult with Elliott concerning the case, denied Elliott's request for the appointment of new counsel, id. at 51, and proceeded with voir dire.
At trial, to demonstrate the events leading up to the murder and the discovery of the victim's body, the Commonwealth presented the preliminary hearing testimony of Nardone, who had died after the preliminary hearing, but before Elliott's trial. Further, the Commonwealth presented the testimony of the medical examiner who had performed an autopsy on the victim's body. The medical examiner testified that the victim had been beaten and ultimately strangled by an electrical cord; that the victim had injuries to her vagina and anus, indicative of forced sexual penetration; and that the victim [622 Pa. 248] had survived for thirty to sixty minutes after the attack. Additionally, the medical examiner opined that analysis of the sperm recovered from the victim's vagina demonstrated that Elliott could have been the source, but that Nardone could not have been the source of the sperm.
Over trial counsel's repeated objections, the Commonwealth also presented evidence of Elliott's prior bad acts to demonstrate a common scheme, plan or design. Specifically, the Commonwealth presented the testimony of Lynn Cardinal, Barbara Gogos, and Iris Berson, all Caucasian women in their twenties, who testified that they had been physically and/or sexually assaulted by Elliott in separate, unrelated incidents occurring within several months of the instant murder. At the time of the trial in this case, Elliott had been convicted of indecent assault in the Cardinal matter; had been charged with assaulting Berson, but trial had not yet occurred; and had not yet been criminally charged with assaulting Gogos. Approximately one month before this trial commenced, trial counsel had represented Elliott at the Cardinal assault trial, during which evidence of Elliott's assaults on Gogos and Berson had been admitted over trial counsel's objection. Commonwealth v. Elliott, 700 A.2d at 1249 (citing N.T., Oct. 24, 1994, at 20-22).
Notwithstanding that trial counsel indisputably had knowledge of Elliott's previous assaults on Cardinal, Gogos and Berson as a result of his prior representation of Elliott, as explained infra, counsel repeatedly asserted during the instant murder trial that he was unprepared to respond to the Commonwealth's presentation of this prior bad acts evidence because the Commonwealth failed to provide sufficient notice of its intent to present the same. Trial counsel requested a 30-60 day continuance, which the trial court denied.
Notwithstanding trial counsel's self-proclaimed lack of preparedness to respond to the prior bad acts evidence, he vigorously cross-examined the three women, scrutinizing their prior statements, and called a medical expert to rebut Berson's testimony. As discussed infra, the trial court expressed frustration with both the Commonwealth's and trial counsel's [622 Pa. 249] pre-trial handling of the evidence relating to Elliott's prior bad acts.
In defense, Elliott testified at trial on his own behalf, reiterating that he had consensual sex with the victim after Nardone had fallen asleep, and that he " guessed" that he left Nardone's home at approximately 10:00 a.m., while the victim was still alive. Significantly, the Commonwealth called the medical examiner to testify on rebuttal that, based on her investigator's notes regarding lividity of the body, she estimated the time of death between 5:00 a.m. and 9:00 a.m. On cross-examination, the medical examiner conceded that the victim could have died as late as 10:00 a.m. Elliott testified on redirect that he was unsure when he had left Nardone's residence on the morning of the murder.
Following the jury trial, on October 28, 1994, Elliott was convicted of first degree murder, rape, and involuntary deviate sexual intercourse. At the conclusion of the penalty hearing, the jury returned a verdict of death, finding two aggravating circumstances, that the killing was committed during the perpetration of a felony and by means of torture, 42 Pa.C.S. § § 9711(d)(6), (8), and no mitigating circumstances. Trial counsel withdrew, new counsel was appointed, and filed post-trial motions, which were denied.
Elliott thereafter filed a direct appeal with this Court. Therein, Elliott challenged, inter alia, the sufficiency of the evidence; the admission of evidence of his prior bad acts; the admission of Nardone's preliminary hearing testimony; and the admission of photos of the victim taken at the crime scene. Appellant also challenged the admission of the medical examiner's opinion on the approximate time of death based on the [622 Pa. 250] results of a lividity test performed by someone other than the medical examiner. Finally, Appellant raised claims of prosecutorial misconduct and challenged the sufficiency of the evidence supporting the two aggravating factors. This Court rejected each of these claims, and affirmed Elliott's judgment of sentence. Commonwealth v. Elliott, supra. The United States Supreme Court denied certiorari on June 26, 1998. Elliott v. Pennsylvania, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998) .
On July 28, 1998, Elliott filed a petition for collateral relief pursuant to the PCRA. Counsel was appointed and filed an amended petition on June 4, 1999 (" 1999 amended petition" ). Therein, Elliott raised 39 issues, including that trial counsel was ineffective for failing to investigate the evidence of prior bad acts admitted against Elliott. Within his argument on that claim, Elliott noted trial counsel's unpreparedness in this regard and his failure to meet with Elliott prior to trial. Elliott's 1999 Amended Petition at 3. Relevant herein, Elliott also alleged that trial counsel was ineffective for failing to impeach the medical examiner's testimony at trial, claiming that the testimony as to the time of death was not supported by the available medical evidence. Id. at 28, 38-39. Additionally, Elliott requested an evidentiary hearing to allow for a full and fair resolution of his claims. Id. at 152-54.
The Commonwealth filed a motion to dismiss on September 6, 2000, which the PCRA court, per the Honorable John J. Poserina, granted in part and denied in part. The case was [622 Pa. 251] thereafter continued several times, but no evidentiary hearing was ever conducted. The PCRA proceedings were delayed due to Elliott's claim of mental retardation in 2003, and a subsequent claim alleging lack of competency, which was resolved in 2008, after experts agreed that Elliott was competent. On March 23, 2009, more than ten years after Elliott filed his initial PCRA petition, Elliott filed an amendment to his PCRA petition (" 2009 Amended Petition" ), which essentially reiterated his previous claims of layered ineffectiveness, and withdrew several claims.
After Judge Poserina retired from the bench, the case was transferred to the Honorable Carolyn Temin on February 26, 2010. At that time, the Commonwealth agreed not to oppose Elliott's request for a new penalty hearing, and Elliott withdrew his claim of mental retardation. The parties proceeded to litigate only Elliott's guilt phase issues. The PCRA court heard argument on April 23, 2010, to determine whether an evidentiary hearing was required. At that proceeding, the PCRA court became aware that Elliott's trial
counsel had died. Rather than issuing a definitive ruling as to whether an evidentiary hearing was required, the PCRA court permitted the parties to file supplemental briefing, and both the Commonwealth and Elliott did so.
In his 2010 Supplemental Brief, Elliot contended that he was entitled to relief on the independent ground that " counsel completely failed to communicate with his client in preparation for trial." Elliott's 2010 Supplemental Brief at 6-9. In [622 Pa. 252] support thereof, Elliott cited for the first time this Court's decision in Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245, 250 (Pa. 2003), which, as discussed in detail infra, was decided several years after Elliott's trial and held that trial counsel in a capital case was ineffective when he failed to meet his client in person prior to trial. Elliott also reiterated his claim that trial counsel was ineffective for failing to challenge the medical examiner's testimony estimating the time of the victim's death. Elliott's 2010 Supplemental Brief at 14-16. Finally, Elliott again requested an evidentiary hearing.
On May 28, 2010, based on the filings of the parties and without conducting an evidentiary hearing, the PCRA court entered an order granting Elliott a new trial on: (1) the independent claim raised in Elliot's 2010 Supplemental Brief that trial counsel was ineffective for failing to prepare for trial and for failing to meet with him personally prior to trial; and (2) counsel's failure to challenge the medical examiner's testimony estimating the time of the victim's death.
The court filed an opinion pursuant to Pa.R.A.P. 1925(a) on October 13, 2010. Finding that the issue was raised generally in Elliott's Amended 1999 PCRA Petition and developed in greater detail in his 2010 Supplemental Brief, PCRA Court Opinion, Oct. 13, 2010, at 6 n.2, the PCRA court found arguable merit to the claim that counsel was ineffective for failing to prepare for trial and meet Elliott personally prior to trial. The court relied on this Court's decision in Brooks, and cited the trial court's comments regarding counsel's lack of preparedness in connection with the Commonwealth's presentation of prior bad acts evidence. See PCRA Court Opinion, Oct. 13, 2010, at 6 n.3 (citing the following two comments by the trial court judge: (1) " In the event of a conviction here, the defendant might have a good argument about the preparation of this case . . . That would be up to any counsel who raises the arguments on post-conviction," N.T., Oct. 25, 1994, at 29; and (2) " I am not satisfied with the way this case was prepared.'" Id., at 31). Based on Brooks, the court found that absent a meeting between counsel and a defendant prior to trial, there is little chance a defendant will develop a fundamental [622 Pa. 253] base for communication with his attorney to allow for the sharing of information, and the attorney will be unable to assess the client's demeanor, credibility, and overall impression on a jury.
The PCRA court further held that trial counsel lacked a reasonable basis for his actions as " it is not possible to provide a reasonable justification for defending a case without thorough preparation." PCRA Court Opinion, Oct. 13, 2010, at 7 (quoting Brooks, 839 A.2d at 248). Regarding the prejudice prong of the ineffectiveness standard, the PCRA court did not suggest what information a more thorough pre-trial interview would have revealed that would have altered trial counsel's performance or affected the outcome of Elliott's trial. Rather, the PCRA court concluded that Elliott was prejudiced by trial counsel's failure to interview him prior to trial because " in order to prepare a defense to a charge of murder in the first
degree, it is essential that at the very least, counsel meet with his client in person to, inter alia, gather information from the client, evaluate the client's demeanor, and try to establish a working relationship." Id. (quoting Brooks, at 250). In so holding, the PCRA court rejected the Commonwealth's contention that trial counsel and Elliott were already familiar as counsel had previously represented Elliott in other criminal cases. The court opined that such contact was legally insufficient as Elliott and his counsel did not discuss the capital case during the prior representations.
Second, the PCRA court held that Elliott was also entitled to a new trial based on trial counsel's failure to object to the medical examiner's estimation of the victim's death as occurring between 5:00 a.m. and 9:00 a.m. The PCRA court explained that this testimony was inconsistent with the autopsy form completed by the medical examiner, which stated " unknown" in response to an inquiry as to the time of death. Thus, the PCRA court concluded that it was error for the medical examiner to testify to a time of death that was not mentioned in her report and that was speculative because it was based on her investigator's notes, which she did not possess while testifying. The court found it difficult to imagine [622 Pa. 254] any reasonable basis for not objecting to inadmissible evidence placing Elliott at scene of the crime during the time the murder allegedly occurred. The PCRA court additionally held that Elliott was prejudiced by trial counsel's failure to object because the case against him was purely circumstantial. It opined that if the jury believed Elliott's testimony that he left at 10:00 a.m., the medical examiner's testimony that the death occurred between 5:00 a.m. and 9:00 a.m. could have been a " crucial element in the jury's decision-making." Id. at 11.
As developed infra, the PCRA court denied relief on Elliott's remaining claims, including his contention that trial counsel was ineffective for failing adequately to investigate evidence of Elliott's prior bad acts that were admitted at trial to demonstrate a common scheme, plan or design. It held that trial counsel was aware of the prior bad acts because he represented Elliott in the trials involving Iris Berson and Lynn Carlson, and received the statement of Barbara Gogos a week before she testified at Elliott's murder trial. The court found that " [b]ased on the fact that defense counsel represented Elliott in two of the prior bad act witnesses' trial, he had all of their statements, he thoroughly cross-examined each witness, and he called a separate witness to rebut Berson's testimony, trial counsel thoroughly investigated Elliott's prior bad acts." Id. at 12. Thus, notwithstanding the trial court's aforementioned comments regarding counsel's purported lack of preparedness in connection with the Commonwealth's presentation of evidence of Elliott's prior bad acts, the PCRA court concluded that trial counsel was not ineffective in this regard.
The Commonwealth has appealed the PCRA court's rulings granting Elliott a new trial, and Elliott has appealed the court's denial of relief on the remaining issues. We shall address the Commonwealth's appeal first because if we would affirm the PCRA court's award of relief, further review of Elliott's claims would be unnecessary. We begin with an examination of the relevant law applicable to ineffectiveness claims raised on collateral review.
[622 Pa. 255] To be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances set forth at 42 Pa.C.S. § 9543(a)(2) (including the ineffective
assistance of counsel). Additionally, the petitioner must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3). An issue has been previously litigated if " the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). A PCRA claim 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).
It is well-settled that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Accordingly, to prove trial counsel ineffective, the petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. Id. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.
Regarding the reasonable basis prong of the ineffectiveness test, we will conclude that counsel's chosen strategy lacked a reasonable basis only if the petitioner proves that the alternative strategy not selected offered a potential for success substantially greater than the course actually pursued. Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To establish the prejudice prong, the petitioner must demonstrate that there is a reasonable probability that the outcome [622 Pa. 256] of the proceedings would have been different but for counsel's ineffectiveness. Id.
To prevail on a claim of appellate counsel ineffectiveness for failure to raise an allegation of trial counsel ineffectiveness on direct appeal, a PCRA petitioner must present a " layered" claim by presenting argument as to each of the three prongs of the Pierce test for each layer of allegedly ineffective representation. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 443 (Pa. 2011). To demonstrate the arguable merit prong of a derivative claim of appellate counsel ineffectiveness, the petitioner must prove that trial counsel was ineffective under the three-prong Pierce standard.
Paddy, 15 A.3d at 443. If the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, petitioner's derivative claim of appellate counsel ineffectiveness fails. Id.
In reviewing the lower court's grant of PCRA relief, this Court examines whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (Pa. 2010). Our scope of review is limited to the findings of the PCRA court and the evidence of record, ...