Argued November 19, 2013
Appeal from the PCRA Order February 13, 2012. In the Court of Common Pleas of Allegheny County. Criminal Division at No(s): CP-02-CR-0005481-2002, CP-02-CR-0005955-2002, CP-02-CR-0005956-2002, Before: Manning, J.
Cheryl J. Sturm, Chadds Ford, for appellant.
Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, DONOHUE, ALLEN, LAZARUS, OTT, and WECHT, JJ. OPINION BY BOWES, J. DISSENTING OPINION BY BENDER, P.J.
Jared Henkel appeals from the order entered February 13, 2012, denying his first post-conviction relief petition filed pursuant to the Post-Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546. After careful review, we affirm.
Appellant was found guilty following a joint jury trial with Craig Elias and Jared Lischner of second-degree murder, two counts of kidnapping, and one count each of criminal conspiracy, robbery, aggravated assault, and simple assault. The convictions arose from Appellant's participation in the abductions and beatings of Anthony Brownlee and Andrew Jones. During the criminal episode, Jones was strangled and killed by Elias.
Elias, Appellant and the two victims were all involved in a joint drug dealing enterprise. In 2002, Appellant rented 220 Sycamore Street in the Mount Washington area of Pittsburgh. Appellant stored drugs and money at the address in two safes. Appellant, Elias and Jones had keys to the house. On March 22, 2002, Appellant discovered that the safes had been taken from the stash house. He then called Jones, who was with Brownlee, and told both men to come to Sycamore Street. Meanwhile, Appellant and Elias met Matthew Henkel, Appellant's brother.
Matthew Henkel brought duct tape, which he had been asked to obtain. Appellant, Elias, and Lischner took the tape and proceeded to Sycamore Street, where they met Brownlee and Jones. The five men discussed the missing safes and possible suspects. Elias asked Brownlee who had stolen the safes, and, when Brownlee responded that he did not know, Elias knocked him to the floor, began to beat him, and dragged him down the steps and into the kitchen. Jones was already in that room and was being held face down on the floor by Lischner.
Appellant and Lischner bound Jones' hands and feet with the duct tape while Elias did the same to Brownlee. The two victims were then taken upstairs and placed in different rooms, where they were questioned by all three defendants for several hours. Elias beat and threatened the two men and demanded that they disclose the location of the two safes. In addition, Elias choked Brownlee three times with a rope. Eventually, Brownlee was allowed to call a friend, who brought the three defendants $4,000 to secure Brownlee's and Jones' release. The friend left the money in the vehicle Jones and Brownlee had driven.
After receiving the cash, the three co-defendants still refused to let Brownlee and Jones leave. Appellant called his brother Matthew and asked him to borrow a pick-up truck and bring it, along with cement, to the Sycamore residence. Matthew obtained the truck but did not have money for the cement. He went to the Sycamore house with that vehicle and waited on the first floor with Appellant. While there, Matthew observed Elias and Lischner repeatedly traveling up and down the stairs. Appellant told Matthew that the three defendants believed that someone from inside the drug enterprise had stolen the safes. At one point, the three co-defendants conversed on the first floor. They all agreed that Jones was a dangerous person who would seek revenge for his torture if released but that Brownlee was not a threat to their safety. Appellant and Matthew then drove Brownlee to their residence in Mount Lebanon, Pennsylvania. Appellant did not return to the Sycamore residence.
Before Matthew left the Sycamore address with his brother and Brownlee, Elias told Matthew to obtain a fifty-pound weight from his father's house and return with it. Matthew complied. At Elias' command, Matthew went upstairs and helped Elias wrap Jones' body in garbage bags. Elias and Matthew loaded the body into the pick-up truck, and traveled to Steubenville, Ohio. On the way, the two men stopped at a home improvement store. Video surveillance showed that they separately purchased chains. During the drive to Ohio, Elias admitted to Matthew that he had killed Jones. Elias and Matthew disposed of Jones' body, which they weighed down with the chains and the weight, by throwing it over a bridge.
In exchange for immunity from prosecution, Matthew became a cooperating witness and showed police where he and Elias threw Jones' body from the bridge in Ohio. He testified at trial against Appellant, Elias, and Lischner. Counsel for the three co-defendants delved heavily into matters concerning Matthew's mental health and raised questions about his involvement in the kidnapping and murder, as well as his credibility. They also proffered that Matthew killed the victim because the victim had previously made fun of Matthew for being a homosexual. At trial, Appellant underwent a thorough colloquy regarding his right to testify and indicated that it was his decision not to take the stand.
The jury found Appellant guilty of the aforementioned crimes, but did acquit him of one count of aggravated assault and one count of simple assault. The court sentenced Appellant on January 22, 2004, to life imprisonment without parole on the murder count and a concurrent term of ten to twenty years imprisonment for criminal conspiracy to commit kidnapping/robbery. After the litigation of post-sentence motions, Appellant timely appealed. While the appeal was pending, Appellant filed a petition for remand under Pa.R.Crim.P. 720, alleging after-discovered evidence. Specifically, he attached a sworn affidavit from Matthew and his mother that she hypnotized Matthew to help him sleep, and in the process asked questions regarding the criminal episode. This Court denied the petition, but permitted Appellant to raise the issue on direct appeal.
Initially, this Court remanded the case for an evidentiary hearing as to Matthew's hypnotization. The panel retained jurisdiction and ultimately, in a published opinion, affirmed the judgment of sentence. Commonwealth v. Henkel, 2007 PA Super. 333, 938 A.2d 433 (Pa.Super. 2007). The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on August 25, 2008. Commonwealth v. Henkel, 598 Pa. 756, 955 A.2d 356 (Pa. 2008).
Appellant filed a timely counseled PCRA petition on April 17, 2009. Therein, he raised three trial counsel ineffectiveness claims. Subsequently, he filed an amended petition on April 20, 2010, bringing his total number of ineffectiveness claims to eleven. In addition, he joined in the petitions filed by his two co-defendants as to the common arguments they each raised in their respective PCRA petitions. Appellant also submitted a twenty-page brief in support of his petition, but did not forward in his own petition a claim that trial counsel was ineffective in neglecting to adequately prepare him to testify. However, Lischner did present this position. According to Lischner and his trial attorney, Elias was going to testify and therefore they did not otherwise prepare to take the stand. After Appellant's father testified that Matthew admitted to committing the killing, Elias did not testify.
The court initially dismissed nine of Appellant's claims via a Pa.R.Crim.P. 907 notice of dismissal. It conducted a hearing on two issues: whether trial counsel was ineffective for (1) neglecting to subpoena cell phone tower logs to impeach the prosecution's timeline; and (2) for not seeking a severance. At the time of the PCRA hearing, Appellant's trial counsel was deceased.
The PCRA court consolidated the evidentiary hearings for Appellant, Lischner, and Elias. Appellant did not testify at the hearing. In contrast, Lischner and his trial attorney did testify, as did Elias and his trial lawyer. The PCRA court granted Lischner relief on the grounds that trial counsel did not properly prepare him to testify in the event that Elias did not take the stand. Lischner thereafter pled guilty to third-degree murder. The court denied Appellant's and Elias' petitions on February 17, 2012.
Appellant retained current PCRA counsel, who entered her appearance on March 1, 2012. Although time remained before the PCRA court lost jurisdiction, current counsel did not attempt to raise any additional issues. Instead, Appellant timely appealed on that same date. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. After the PCRA court granted him an extension, Appellant complied. Therein, he raised for the first time, claims of PCRA counsel ineffectiveness.
This Court sua sponte granted en banc review in this matter to resolve a perceived conflict among authorities as to whether this Court may entertain claims of PCRA counsel ineffectiveness raised for the first time on appeal. The matter is now ready for this Court's review. Appellant raises the following issues for our consideration.
1. Whether PCRA counsel was ineffective for either overlooking the claim, or adopting the co-defendant's brief and then not presenting evidence supporting the claim that trial counsel was constitutionally ineffective for failing to consult with Appellant and entering into a joint defense agreement with co-defendants, Craig Elias and Jared Lischner, that backfired causing prejudice to Jared Henkel by leaving him unprepared to testify or present alternative strategy at trial?
2. Whether PCRA counsel was ineffective for failing to argue to the court that the jury should have been instructed that Matthew Henkel's confession to his father, Bruce Henkel,
could be used as substantive evidence under clearly established federal law?
3. Whether PCRA counsel was ineffective for failing to argue that the admission of evidence of prior bad acts denied [Appellant] due process of law as the evidence did not fit into the chain of logical inferences no link of which may be the inference that the Appellant had the propensity to commit the crime charged?
4. Whether trial counsel was ineffective for not seeking to obtain Matthew Henkel's medical records before trial?
5. Whether trial counsel was ineffective for failing to confront and cross-examine Matthew Henkel regarding the penalties he faced if convicted of conspiracy to commit murder?
6. Whether trial counsel was ineffective for failing to object to the prosecutor's closing argument which capitalized on evidence of the prior bad acts that should not have been admitted in the first place to argue that the other crimes showed a propensity for violence?
7. Whether errors of trial counsel and PCRA counsel must be aggregated and considered collectively for prejudice?
Appellant's brief at 2-3.
This Court examines PCRA appeals " in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 2012 PA Super. 199, 55 A.3d 1177, 1183 (Pa.Super. 2012). Our " review is limited to the findings of the PCRA court and the evidence of record[.]" Id. Additionally, " [w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record." Id. In this respect, we will not " disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. However, we afford no deference to its legal conclusions. Id. " [W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Id. Whether a claim of PCRA counsel ineffectiveness can be raised for the first time on appeal is a question of law.
Appellant's first three issues all involve claims pertaining to PCRA counsel's representation. Neither party has cited the Pennsylvania Supreme Court's modern treatment of this issue in numerous cases. Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n.14 (Pa. 2011); Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 497 n.17 (Pa. 2011); Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n.12 (Pa. 2010); Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (Pa. 2009); Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (Pa. 2009) (plurality); Commonwealth v. Potter, 619 Pa. 174, 58 A.3d 752 (Pa. 2012) ( per curium order). Nor have the parties addressed this Court's most comprehensive discussion of Pennsylvania Supreme Court precedent on this matter, Commonwealth v. Ford, 2012 PA Super. 98, 44 A.3d 1190 (Pa.Super. 2012) (collecting cases). Those decisions all clarify that claims of PCRA counsel's ineffectiveness may not be raised for the first time on appeal.
Appellant begins by highlighting that his co-defendant, Lischner achieved relief on the issue of trial counsel's deficient stewardship for failing to fully advise Lischner about whether to testify on his own behalf. Lischner's trial attorney testified at the PCRA hearing that he did not prepare Lischner to testify because he understood that Elias was going to testify. When Elias elected not to testify, trial counsel was not prepared to present Lischner's
testimony and Lischner did not take the stand. Appellant submits that his original PCRA counsel should have presented the identical claim since they were similarly situated.
According to Appellant, although his trial counsel was deceased, his initial PCRA attorney should have presented Appellant's testimony as well as the testimony of trial counsel's litigation assistant. Instead, his original PCRA lawyer cursorily included within Appellant's PCRA brief that he joined in the brief of his co-defendants as to their common arguments. Additionally, initial PCRA counsel did not present any evidence regarding trial counsel's alleged failure to advise Appellant about testifying. Appellant asserts that his first PCRA lawyer was ineffective in this respect.
Appellant contends that this claim is properly before us because he has a rule-based right to collateral review counsel. He contends that to construe the issue as either waived or time barred would render the rule-based right to effective assistance of counsel " an illusion because it would be a state right without a state remedy." Appellant's brief at 21. While recognizing that Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), might offer federal habeas review, he argues that not addressing the issue is a waste of judicial resources. See also Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Finally, in a petition for remand filed after the en banc briefing in this matter, Appellant argues that his first claim is reviewable pursuant to Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (Pa. 1999).
As to his second and third issues, Appellant's argument is sparse. He maintains that PCRA counsel was ineffective in not arguing that the trial court erred in refusing trial counsel's request that the jury be instructed to consider Matthew's alleged confession to his father as substantive evidence. This claim is untenable since the underlying issue was specifically litigated and rejected on direct appeal. Hence, the underlying claim of his derivative PCRA counsel ineffectiveness issue was found meritless. Appellant, relying largely on Pa.R.E.404(b), also ...