ARGUED: May 10, 2011
SUBMITTED: November 4, 2013
Appeal from the Order entered on 09/30/2009 (granting new trial & vacating death sentence entered on 03/08/2007) in the CCP, Criminal Div of Lehigh Cty at No. CP-39-CR0003637-2003.
Appeal from the Order entered on 09/30/2009 in the C.C.P., Criminal Division of Lehigh County at No. CP-39-CR-0003637-2003
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
MR. JUSTICE STEVENS 
The Commonwealth appeals from the trial court's September 30, 2009 order granting Junius Burno a new trial based on his trial counsel's alleged ineffective representation in failing to object to remarks made by the prosecutor during her closing argument to the jury. Burno has filed a cross-appeal claiming the trial court erred in refusing to grant him relief on numerous remaining issues, which he raised in his post-sentence motions. We reverse the trial court's September 30, 2009 order granting Burno's motion for a new trial, remand for the resolution of any pending preserved claims related to trial court error raised in Burno's post-sentence motion, and dismiss Burno's claims of ineffective assistance of trial counsel without prejudice to his right to pursue those collateral claims under the PCRA.
The evidence at trial revealed the following facts: On April 13, 2003, Mary Meixell Moyer telephoned the police complaining she heard gunshots fired next door at 2628 South 4th Street in Allentown. Upon arriving at the scene, Allentown Police Officer Scott Derr discovered blood on the residence's front steps and on the back of a sign located on the porch. The front door of the residence was ajar, and the inside lights were on when Officer Derr entered the residence to perform a security check. Officer Derr discovered two homicide victims inside the residence and obvious signs that a struggle had taken place within the residence. One of the victims was found lying on his back in the doorway leading to the bedroom, while the other victim was found in the back of the bedroom curled up in a fetal position. Officer Derr secured the scene and waited for detectives from the Criminal Investigation Division to arrive.
Subsequently, the first victim, who was found in the bedroom doorway, was identified as Carlos Juarbe, the lessee of the residence, and the second victim was identified as his friend, Oscar Rosado. Detectives processed the scene and spoke to witnesses. Specifically, when questioned, Ms. Moyer informed the police that, immediately after hearing gunshots, she saw two men flee the area in a red or maroon compact car with its headlights turned off. The detectives found a trail of blood leading from Juarbe's apartment to the spot where Ms. Moyer saw the car drive away from the area. The detectives recovered various blood samples, shell casings from a nine-millimeter luger, both jacketed and unjacketed lead projectiles, and a sawed-off 12-gauge double barreled shotgun containing one live shell and one spent shell of bird shot.
The blood evidence, which the detectives recovered from the scene, led the police to Terrence Bethea, who the police arrested on September 12, 2003, and charged him with murder. Bethea voluntarily gave a statement to Detectives Simock and Miller, admitting that he and Junius Burno were inside of Juarbe's residence when the two victims were shot and killed. Bethea also admitted that one of the victims shot him, and he and Burno fled from the scene in Burno's car.
Later, on the same day, police interviewed Bethea's wife, who informed them that Burno and Bethea arrived together at her house during the early morning hours of April 13, 2003, and Bethea had a shotgun wound. Neither Burno nor Bethea would tell her how or why Bethea was shot. All three proceeded to a hospital in Philadelphia to seek medical treatment for Bethea, and while at the hospital, Bethea gave hospital personnel, and subsequently the police, a false name, false birth date, and false information about how he had been shot.
Thereafter, Detectives Simock and Miller contacted the Lansford Police Department, and based on information provided by that Department, the detectives determined that Burno owned a car, which matched Ms. Moyer's description of the vehicle that fled the scene of the double homicide. On the evening of September 12, 2003, Burno turned himself into the Allentown Police Department, and he was arrested. The next day, the Commonwealth filed a criminal complaint charging Burno with, inter alia, two counts of criminal homicide, and thereafter, the Commonwealth gave timely notice of its intention to seek the death penalty.
Subsequently, Burno gave several conflicting statements to the police. For instance, he initially gave the police a statement claiming he and Bethea were innocent bystanders who were visiting Juarbe when two armed intruders entered the residence, and Bethea was shot when he got caught in the crossfire between Juarbe and the intruders. However, on September 24, 2003, Burno gave the police a taped statement in which he admitted to some involvement with the crime. Burno explained during the taped statement that, some months prior to the killings, Bethea had informed him that he obtained two handguns when he burglarized his neighbors' apartment. One of the handguns was a nine-millimeter model, which Bethea gave to Burno. He also explained that, in April of 2003, when he took his ex-wife, Michele Wright, medicine for their daughter, he stole a .38 caliber handgun from underneath Ms. Wright's bed. Burno claimed he drove Bethea to Juarbe's residence on the night in question in order to trade the .38 caliber handgun for drugs and money, and he remained in the car at all times. Burno further claimed in his taped statement that he heard two gunshots and then saw Bethea emerge from Juarbe's residence with a leg wound. Burno asserted he disposed of the stolen guns after he transported Bethea to the hospital in Philadelphia.
On September 26, 2003, Burno gave a third statement to the police in which he confessed that he and Bethea went to Juarbe's residence to rob him of drugs and money. In this third statement, Burno admitted he entered Juarbe's residence, he struggled with Rosado, and he shot Rosado in the bedroom with the nine-millimeter handgun. This version was consistent with the trial testimony of David Rawlins, a jailhouse informant who testified pursuant to a plea deal that Burno had provided him with a detailed account of the murders. According to Rawlins' testimony at Burno's trial, Burno claimed that he came to Bethea's aid after Bethea was shot in the leg and he shot Rosado after Rosado dropped to his knees, pleading for his life. Moreover, while jailed in the Lehigh County Prison, Burno made several telephone calls, which were recorded, admitting to his ex-wife and an acquaintance, James Alford, that he was involved in the shootings.
Dr. Samuel Land, a forensic pathologist who performed an autopsy on Rosado, testified that Rosado died of a gunshot wound to the head. The bullet entered his left ear and then severed the jugular vein and carotid artery as it proceeded downward into the body. Based on the trajectory of the bullet, Dr. Land opined that the gunman was above Rosado at the time of the shooting. Another forensic pathologist, Dr. Sara Lee Funke, performed an autopsy of Juarbe, and she observed eleven gunshot wounds, three of which were fatal chest wounds. Dr. Funke recovered from Juarbe a total of five bullets, which were of two different types. She testified the first type was a leaded, non-jacketed projectile, which entered Juarbe from both contact and non-contact wounds, as indicated by the presence or absence of injury to the skin surrounding the point of entry. She concluded that the contact wounds and the positions and trajectories of their entries were consistent with a struggle between the victim and the assailant. She further testified that the second type of bullet recovered from Juarbe, the jacketed ammunition, did not enter through a contact wound. Finally, she noted that, in considering the trajectory of the bullets, with regard to at least one of Juarbe's wounds, the shooter was elevated higher than Juarbe.
A ballistics expert, Pennsylvania State Police Sergeant Eric Wolfgang, analyzed the ammunition recovered from the scene and concluded two guns were utilized during the shootings inside of Juarbe's residence. He testified the jacketed bullets came from a nine-millimeter handgun and the non-jacketed bullets were a .38 Special multi-ball type of ammunition, which was compatible with the gun Burno had stolen from his ex-wife.
Burno took the stand in his own defense and recounted the sequence of events contained in his second police statement, i.e., he claimed that he gave the stolen .38 caliber handgun to Bethea and remained in the car at all times. He claimed he did not know anyone had been killed inside of Juarbe's residence until the next day when he saw a news report about the shooting. Burno maintained he gave a statement falsely implicating himself in Rosado's murder because he was afraid of the death penalty, and his attorney warned him that Bethea would likely blame him for both murders. In rebuttal, the Commonwealth produced a fourth statement made by Burno that had been previously suppressed by the trial court on Sixth Amendment grounds. This fourth statement contradicted Burno's trial testimony and indicated that Burno had, in fact, shot both Juarbe and Rosado.
At trial, James Alford, the acquaintance to whom Burno had confessed in the recorded prison telephone call, denied any knowledge of Burno's involvement in the shootings. However, Alford admitted that, on April 13, 2003, the night of the murders, he received a telephone call from Burno asking if he could borrow Alford's vehicle, which was larger than Burno's vehicle, to take Bethea to the hospital. Alford described how they then exchanged vehicles. Alford acknowledged at trial that he subsequently gave a taped statement to police in which he indicated that, when the men exchanged vehicles on April 13, 2003, Burno admitted to his participation in the death of Juarbe and Rosado. However, at trial, Alford contended his statement to police was "fabricated."
The Commonwealth additionally introduced at trial testimony from Bethea's neighbor, Paul DeMaria, who indicated he had a nine-millimeter handgun, a stereo, and phone stolen from his home only days after informing Bethea that he would be out of town for a few days. Another neighbor, who lived with DeMaria, testified she later observed the stereo and phone in Bethea's residence.
On March 5, 2007, the jury found Burno guilty on two counts of first-degree murder, 18 Pa.C.S. § 2502(a). On March 6, 2007, the jury found one aggravating circumstance and the mitigation catchall, and determined that the aggravating circumstance outweighed the mitigating, thus sentencing Burno to death. See 42 Pa.C.S. §§ 9711(d)(11) (an aggravating factor for death sentence purposes exists where "[t]he defendant has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at issue."); (e)(8) (mitigating circumstances for death sentence purposes includes "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.").
On March 12, 2007, Burno's trial attorneys, Mark S. Refowich, Esquire, and Victor E. Scomillio, Esquire, filed a motion to withdraw their representation, citing differences of opinion between Burno and counsel that rendered it impossible for counsel to zealously represent Burno post-sentence. Simultaneously, Burno's trial attorneys filed on behalf of Burno a post-sentence motion, which presented allegations related to alleged trial court error, insufficiency of the evidence, weight of the evidence, and excessiveness of sentence. Further, in the post-sentence motion, Burno's trial attorneys requested the trial transcript be produced, permission to supplement the post-sentence motions upon receipt of the transcript, and a hearing.
By order entered on August 7, 2007, the trial court granted Burno's trial attorneys' motion to withdraw their representation and appointed new counsel, Daniel Silverman, Esquire, to represent him. Thereafter, Attorney Silverman filed unopposed motions for leave of court to file an amended post-sentence motion, which the trial court expressly granted, and on May 20, 2008, he filed an amended post-sentence motion presenting a litany of allegations of ineffective assistance of counsel during the guilt and penalty phases, as well as claims of alleged trial court error, insufficiency of the evidence supporting the guilty verdict, and weight of the evidence related to the guilty verdict.
From February 10, 2009, to February 12, 2009, the trial court held an evidentiary hearing. By order and opinion entered on September 30, 2009, the trial court, upon consideration of Burno's post-sentence motion, granted Burno's request for a new trial and vacated his judgment of sentence. Specifically, in its opinion, the trial court, as a threshold matter, indicated that Burno had presented numerous claims of ineffective assistance of trial counsel. With regard to the trial court's ability to address the ineffectiveness claims in light of the then current procedural posture of the case and existing law, the trial court explained the following:
Because [Burno] has raised claims of ineffective assistance of counsel, as a threshold matter, it must be acknowledged that such claims are normally withheld until collateral review proceedings. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). However, as recognized in Commonwealth v. Bomar, 826 A.2d 831, 853-54 (Pa. 2003), ineffective assistance claims are, in certain circumstances, cognizable within the chain of the direct challenge to the verdict. See also Com[monwealth] v. Chmiel, 889 A.2d 501, 613 (Pa. 2005) (explaining [Bomar] to hold that claims of counsel ineffectiveness reviewed in post-sentence proceedings were properly raised, preserved, and addressed in trial court). Here, with the matters fully briefed, argued, and addressed by successor defense counsel in post-sentence proceedings, the issue of effective assistance of counsel is ripe for determination of whether 'there is [arguable] merit to [Burno's] underlying claim, ' whether trial counsel had a 'reasonable basis for his course of conduct, ' and whether 'there is a reasonable probability that but for the act or omission in question, the outcome of the proceedings would have been different.'
Commonwealth v. Burno, No. CP-39-CR0003637-2003, slip op. at 10 (C.P. Lehigh County, Sept. 30, 2009).
After noting the three-prong test to be applied in determining whether trial counsel was ineffective as set forth in Strickland, and adopted by Pierce,  the trial court turned to an examination of Burno's claim that trial counsel was ineffective in failing to object to the prosecutor's summation. Specifically, the trial court examined whether trial counsel was ineffective in failing to object to the following excerpts from the prosecutor's closing argument, in which the prosecutor (1) made reference to Burno's other crimes and bad acts to refute Burno was a "good family man, " and (2) argued, as a matter of fact, that Burno cowardly shot Juarbe while he was down on the ground:
Now, Burno's statements. He is in jail, arrested, and he is afraid. He talks on these tapes about the chess game[, ] about gambling. He is afraid Terrance [Bethea] is going to talk.
So what does he do? He jumps. He talks first, and on September 24th of 2003, he gives that statement, the same one he told you about here in the courtroom.
It's unreasonable, ladies and gentlemen, but he is sticking with it, because what else are you going to do once you confess? Recant, go back, take it back.
He wants you, while he is sitting up there on the stand, and throughout his statement, to believe the best of him, to believe that he is a good family man. It's a lie.
Was he a good family man when his daughter was having her tonsils out, and he went to Michele Wright's apartment; ransacked it; read her journal, stole her journal?
Was he a good family man when he and Terrance Bethea went into the DeMaria's apartment, and burglarized it and stole guns? Is he a good family man the night of these murders when he and Terrance went out doing coke, and drinking, and out all night with their guns, like tough guys?
Is he a good family man that is willing to go down for a double homicide that he didn't commit? That's unreasonabale. Unreasonable that you would be willing to do that for a man that you had just gotten back into contact with a few months before the murders. The same man, by the way, that you were willing to X out of your life over some parking tickets, Bethea.
Now are you going to do all of this to help him out, and stand by him, and go down for a double murder that you ...