Submitted February 11, 2011
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Appeal from the Order entered on 12/01/2008 in the Court of Common Pleas, Criminal Division of Allegheny County at Nos. CP-02-CR-0008705-1994, CP-02-CR-0009095-1994 & CP-02-CR-0009201-1994.
MR. JUSTICE EAKIN. 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, Mr. Justice Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Saylor files a dissenting opinion.
MR. EAKIN, JUSTICE
Leroy Fears appeals from the order denying him collateral relief from his criminal convictions and death sentence, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § § 9541-46. We affirm.
Appellant pled guilty to first degree murder, corruption of minors, abuse of a corpse, and two counts of involuntary deviate sexual intercourse (IDSI) relating to the sexual assault and death of a 12-year-old victim. Pursuant to a court-ordered pre-sentence investigation, Christine Martone, M.D. interviewed appellant and diagnosed
him with pedophilia. At the penalty phase, appellant waived a jury. Dr. Martone testified on appellant's behalf that during the incident, appellant was overtaken with a sexual urge, acted upon that urge, and when the victim threatened to report what appellant had done, appellant panicked and ultimately killed the victim. Dr. Martone opined appellant's sexual impulse and subsequent panic impaired his judgment. She also stated appellant's alcohol consumption may have further impacted his judgment and impulse control. See N.T. Sentencing, 2/2/95, at 114-16. Appellant offered evidence indicating he had no disciplinary issues during his incarceration. Appellant also introduced his pre-sentence report and a letter from his former roommate, a Japanese exchange student who had known him for years. Obtaining this letter required trial counsel to contact the United States Consulate and have the letter notarized by a consulate officer. Id., at 145-46.
The trial court found one aggravating circumstance: the killing was committed in perpetration of a felony, specifically IDSI. 42 Pa.C.S. § 9711(d)(6). The court also determined appellant had proven the catch-all mitigating circumstance of evidence concerning his character, record, and circumstances of the offense. Id., § 9711(e)(8). The court held the aggravator outweighed the mitigator, and imposed a death sentence for the murder and terms of incarceration for some of the related offenses. Though trial counsel failed to file a direct appeal on appellant's behalf, appellate rights were reinstated, new counsel was appointed, and an evidentiary hearing was held on appellant's claims of trial counsel's ineffectiveness.
On direct appeal, appellant raised numerous ineffectiveness claims. Fears, at 59-60. Notwithstanding the general rule established in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), holding defendants " should wait to raise claims of ineffective assistance of trial counsel until collateral review[,]" id., at 738, this Court found review of several of the ineffectiveness claims was appropriate since trial counsel had testified at an evidentiary hearing, and the trial court had addressed these allegations in its opinion. Fears, at 59 (citing Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003)). This Court reviewed those claims that were fully litigated below, and dismissed without prejudice those not ripe for review.
Fears, at 59 & n.7, 69, 71. We ultimately affirmed on direct appeal. Id., at 74.
Appellant's current counsel filed a motion for stay of execution and other related filings in the United States District Court for the Western District of Pennsylvania. Appellant, through a fellow inmate, then filed a motion for stay of execution in the trial court. Appellant filed a pro se PCRA petition, and current counsel thereafter filed an amended PCRA petition. The PCRA court dismissed appellant's amended PCRA petition; however, the PCRA court did not file the required notice of intent to dismiss pursuant to Pa.R.Crim.P. 909(B)(2)(a), and we remanded this matter to the PCRA court. Commonwealth v. Fears, 596 Pa. 579, 947 A.2d 710 (Pa.
(per curiam). The PCRA court then issued an opinion and notice of intent to dismiss the PCRA petition; the court subsequently denied relief without an evidentiary hearing. Appellant appealed to this Court.
Appellant raises the following claims, which have been summarized and reordered for ease of discussion: (1) whether appellate counsel was ineffective for failing to litigate a diminished capacity defense; (2) whether appellant was able to make knowing, voluntary, and intelligent waivers; (3) whether appellant validly pled guilty to IDSI; (4) whether appellate counsel was ineffective for failing to litigate trial counsel's investigation and presentation of mitigating evidence; (5) whether the Eighth Amendment prohibits the execution of the chronically mentally ill; (6) whether appellant validly waived a penalty phase jury;  (7) whether the prosecutor committed misconduct in his penalty phase closing argument; (8) whether appellate counsel ineffectively litigated a challenge to the constitutionality of the aggravating circumstance; (9) whether appellate counsel was ineffective in litigating a challenge to victim impact evidence; (10) whether this Court improperly created a new rule on direct appeal; (11) whether we violated appellant's due process rights by not performing proportionality review on direct appeal; (12) whether the PCRA court erred in denying an evidentiary hearing; and (13) whether the cumulative effect of any errors found entitles appellant to relief.
In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination " is supported by the record and free of legal error." Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007) (citations omitted). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have " not been previously litigated or waived[,]" and " the failure to litigate the issue prior to or during trial, K or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id., § 9543(a)(3)-(4). An issue is previously litigated if " the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]" Id., § 9544(a)(2). An issue is waived if appellant
" could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state post[-]conviction proceeding." Id., § 9544(b).
" [C]ounsel is presumed effective, and [appellant] bears the burden of proving otherwise." Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (Pa. 2008) (citing Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 200-01 (Pa. 1997)). To prevail on an ineffectiveness claim, appellant must establish:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 373-74 (Pa. 2011) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987)). Failure to prove any prong of this test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000) (citation omitted). " [I]f a claim fails under any necessary element of the Strickland test, the court may proceed to that element first." Lesko, at 374 (citations omitted). When an appellant fails to meaningfully discuss each of the three ineffectiveness prongs, " he is not entitled to relief, and we are constrained to find such claims waived for lack of development." Steele, at 797; see also Commonwealth v. Walter, 600 Pa. 392, 966 A.2d 560, 566 (Pa. 2009) (citation omitted). Further, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 603 (Pa. 2007) (citations omitted).
I. Guilty Plea
A. Diminished Capacity Defense
Appellant, based on his proffer of mental infirmity, developed further in his mitigation claim, see infra Part II.A, argues he suffered from a diminished capacity which prevented him from forming the specific intent to kill. Furthermore, he claims his use of alcohol on the day of the murder negated any specific intent to kill. Finally, he contends trial counsel was ineffective for failing to investigate and present a diminished capacity defense. Appellant admits appellate counsel raised this issue on direct appeal, but he argues appellate counsel should have presented expert testimony to support a diminished
capacity defense. Further, appellant contends appellate counsel failed to develop Dr. Martone's opinion as to his inability to form the specific intent to kill.
The Commonwealth argues this claim was previously litigated on direct appeal. As to the merits, it alleges appellant cannot prove he suffered from diminished capacity, as his panic was a result of the victim stating he was going to tell his parents, not any mental disorder. The Commonwealth notes appellant denied he was intoxicated. The Commonwealth contends trial counsel had a reasonable basis for not raising a diminished capacity defense, because of appellant's guilty plea to first degree murder, and Dr. Martone had indicated appellant did not suffer from any mental illness. The Commonwealth also suggests appellate counsel was not ineffective for using an expert other than Dr. Martone.
While the PCRA court found appellant's diminished capacity claims were not previously litigated, it found these claims waived because appellant's ineffectiveness claim was merely boilerplate. When confronted with a defective PCRA petition, the court " shall order amendment of the petition, indicate the nature of the defects, and specify the time within which an amended petition shall be filed." Pa.R.Crim.P. 905(B). Although the PCRA court did not order amendment of the petition, the PCRA court did offer an alternative basis for rejecting this claim -- the diminished capacity defense was not available because appellant did not contest his degree of guilt. We need not remand for the filing of a curative petition if such remand would be futile. See McGill, at 1026 (finding remand to PCRA court not necessary where remand would be futile). As we ultimately find appellant's claim is meritless, remand would be futile, and is therefore unnecessary.
Appellant argues his claims are not previously litigated because they do not solely rely on " 'previously litigated evidence.'" Appellant's Brief, at 10 (quoting Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 n.9 (Pa. 2000)). The Commonwealth responds that previously litigated claims cannot be relitigated, even under different theories or allegations. Appellee's Brief, at 17 (quoting Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 570 (Pa. 2005)).
Although the PCRA court did not find this argument previously litigated -- and we do not disagree -- appellant cannot show appellate counsel acted unreasonably. Contrary to appellant's assertions, appellate counsel's performance, as evinced in appellant's direct appeal briefs and evidentiary hearing transcripts, was more than adequate. Counsel's briefs asserted trial counsel should have forced appellant to submit to psychiatric evaluation prior to the entry of his guilty plea to first degree murder. Appellate counsel supported her assertions by questioning trial counsel as to why he did not explore expert evaluation before advising appellant on a plea, especially due to the underlying mental " red flags" raised when the circumstances suggested appellant had engaged in sexual acts with a corpse. Appellate counsel developed expert testimony as to diminished capacity at the evidentiary hearing on trial counsel's ineffectiveness, as Ralph E. Tarter, Ph.D. opined appellant " was functioning under extreme diminished capacity." N.T. PCRA Hearing, 6/27-28/00, at 225. Further, as Dr. Martone had opined appellant only suffered from pedophilia, see Report
of Christine Martone, M.D., 12/15/94, at 3-4, it was not unreasonable for appellate counsel to seek out another expert. Appellate counsel's claims, which were presented and ultimately rejected on direct appeal, developed sufficient and adequate claims of trial counsel's ineffectiveness for failing to explore a diminished capacity defense. Merely because appellate counsel could have presented more or different experts does not prove she acted unreasonably. As appellant has failed to prove appellate counsel lacked a reasonable basis ...