Submitted April 29, 2013
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Appeal from the Order entered on March 28, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, at No. CP-23-CR-0005045-1997. Hazel, Frank T., Senior Judge, Trial Court Judge.
For Arthur Bomar, Appellant: Jennifer L. Chiccarino, Esq., Federal Community Defender Office, Eastern District of PA; Leor Veleanu, Esq., Defender Association of Philadelphia.
For Commonwealth of Pennsylvania, Appellee: William R. Toal III, Esq., Delaware County District Attorney's Office; Amy Zapp., Esq., PA Office of Attorney General.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ. Messrs. Justice Saylor, Eakin, Baer and Stevens join the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Saylor files a concurring opinion.
MADAME TODD, JUSTICE
In this capital case, Appellant Arthur Bomar appeals the order of the Court of Common Pleas of Delaware County denying his petition for relief under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S.A. § § 9541-9546. For the reasons that follow, we affirm the order of the PCRA court.
The facts underlying Appellant's conviction and death sentence have been set forth at length by this Court in Appellant's direct capital appeal.
Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003) (" Bomar I" ). A brief recitation of the facts is necessary, however, to provide context
for Appellant's collateral challenge to his conviction and sentence in the instant appeal.
The evidence adduced at trial, and summarized in Bomar I, established that, on the night of June 19, 1996, 22-year-old Aimee Willard (" the victim" ) was socializing with several of her friends at a bar located on Lancaster Avenue in Wayne, Pennsylvania. The victim left the bar alone at approximately 1:25 a.m. the following morning, and her blue Honda Civic was discovered shortly thereafter on the southbound off-ramp of the Springfield-Lima exit of Interstate 476 in Delaware County at approximately 2:00 a.m. No one was found inside the vehicle, but the driver's side door was open, the engine was running, and the interior lights and headlights were still on. A pool of blood was discovered in front of the vehicle, along with a tire iron, the victim's sneakers, and a pair of womens' underwear lined with a sanitary pad containing pubic hairs matching those of the victim.
Later that day, the victim's naked body was found face down in a vacant lot at 16th Street and Indiana Avenue in Philadelphia, with two plastic bags covering her head and a tree branch forced into her vagina. The victim sustained multiple blunt force injuries to her head, brain, and face, as well as various other contusions, fractures, and defensive wounds throughout her body. An intact, degenerate sperm was also recovered from the victim's vaginal cavity, and tire impressions were obtained from the scene.
The victim's murder remained unsolved for nearly a year, until June 5, 1997, when Appellant was arrested on an outstanding warrant for a parole violation from a prior second-degree murder conviction in Las Vegas, Nevada. Following his arrest, investigators questioned Appellant regarding the victim's murder, and he stated, inter alia, that he had been at the same bar as the victim on the night of her murder; that he drove a 1993 Ford Escort until March 1997 (the tires of which were later determined to match tire impressions taken from the murder scene); and that he routinely traveled on Interstate 476.
On July 10, 1997, Appellant's then-girlfriend, Mary Rumer, reported to state police that Appellant confessed to her that he murdered the victim, stating that Appellant told her that he watched the victim leave the bar and get into her car, and followed her in his car, until he stopped her on Interstate 476, flashing a fake police badge. Rumer recounted that Appellant told her that, after he approached the vehicle, he knocked the victim unconscious, placed her in his car, and drove her to an abandoned building, where he removed the victim's clothes and hit her in the head with a hard object, killing her. Appellant also admitted to Rumer that he raped the victim, and he later showed Rumer the location on Interstate 476 where the victim's car had been abandoned, as well as the vacant lot where the victim's body was found.
Forensic evidence taken from Appellant's vehicle and the crime scene corroborated Rumer's story and further linked Appellant to the murder. Specifically, blood was recovered from the right front door panel of Appellant's Ford Escort, which matched the victim's DNA; the oil pan from the vehicle matched the pattern of a contusion on the right side of the victim's body; and, as noted, the tires on Appellant's vehicle were consistent with the tire patterns taken from the murder scene. DNA testing also established that Appellant's DNA profile matched the sperm recovered from the victim's vagina.
Additionally, while police were investigating Appellant's involvement in the murder, David O'Donald, Appellant's ex-brother in law, who was incarcerated in federal prison for unrelated offenses, offered to assist police with their investigation. Police transferred O'Donald to the Montgomery County Correctional Facility, where Appellant was held, for two weeks in July 1997, and placed him on Appellant's cellblock to serve as a listening post. On July 17, Appellant made several incriminating statements to O'Donald, including, inter alia, " we did whatever we wanted with her, she did whatever we told, and when we were done, I almost took her head off, and we crammed a tree branch up her cunt." Id. at 842. Quincy Jamal Williams, another inmate incarcerated with Appellant in Montgomery County, also reported to police that Appellant confessed to murdering the victim.
Appellant was subsequently charged with first-degree murder, rape, aggravated assault, kidnapping, and abuse of a corpse. The case proceeded to a jury trial before the Honorable Frank T. Hazel of the Court of Common Pleas of Delaware County, and, on October 1, 1998, Appellant was convicted of the aforementioned offenses. At the conclusion of the penalty hearing, the jury found three aggravating circumstances -- the killing was committed in the perpetration of a felony, Appellant had a significant history of felony convictions involving the use or threat of violence to the person, and Appellant had been convicted of another murder committed before or at the time of the offense at issue. The jury also found one mitigating circumstance -- the " catchall" mitigator concerning Appellant's character and record. After concluding the aggravating circumstances outweighed the mitigating circumstance, the jury returned a sentence of death. The trial court imposed the death sentence on December 4, 1998, and, after deeming Appellant a high-risk dangerous offender pursuant to 42 Pa.C.S.A. § 9714(a)(1), sentenced Appellant to consecutive terms of 10 to 20 years incarceration on both the rape and kidnapping convictions, as well as a consecutive term of one to two years on the abuse of a corpse conviction.
Following sentencing, a somewhat complicated procedural history ensued. Specifically, trial counsel withdrew from the case, and Steven C. Leach, Esquire, entered his appearance. Thereafter, on January 13, 1999, Appellant filed post-sentence motions raising, inter alia, four
claims of ineffective assistance of trial counsel. The trial court held hearings on the post-sentence motions on March 4, 1999 and April 20, 1999, and ultimately denied post-sentence relief, concluding in a written opinion that the claims lacked merit. Appellant subsequently appealed his judgment of sentence. On May 30, 2003, this Court affirmed Appellant's judgment of sentence of death, vacated Appellant's judgment of sentence for his remaining offenses, and remanded for resentencing in light of our decision in Commonwealth v. Butler, 563 Pa. 324, 760 A.2d 384 (Pa. 2000) (holding 42 Pa.C.S.A. § 9714(a)(1) violated procedural due process rights by placing the burden on the defendant to rebut the presumption that he is a high risk dangerous offender). Bomar I, 826 A.2d at 862.
Appellant then filed a timely pro se PCRA petition on January 20, 2004, which he styled as " Defendant's Motion to Support For Preserved Newly Discovered Evidence Through A PCRA Petition." On April 1, 2004, Appellant was resentenced on his remaining non-capital convictions to an aggregate term of 252 to 504 months incarceration. Appellant appealed that judgment of sentence to the Superior Court. On December 22, 2004, while Appellant's appeal from resentencing was pending, counsel from the Federal Community Defender Office (" FCDO" ) for the Eastern District of Pennsylvania Capital Habeas Unit filed on Appellant's behalf a " Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution Statutory Post-Conviction Relief Under the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.," which was deemed to be an amended PCRA petition. The PCRA proceedings were stayed pending the conclusion of Appellant's direct appeal. On May 25, 2005, the Superior Court affirmed Appellant's judgment of sentence on the remaining offenses, and this Court denied allocatur. Michael Wiseman, Esquire, entered his appearance on February 3, 2006, and the stay of PCRA proceedings was lifted on February 23, 2006. Judge Hazel presided over the PCRA proceedings as well.
Nine months later, on November 21, 2006, Appellant's counsel filed a motion seeking an order declaring Appellant incompetent to proceed. Following a hearing on the matter and briefing by both parties, the PCRA court found Appellant competent and denied the motion on November 16, 2007. Thereafter, the Commonwealth filed a response to Appellant's PCRA petition on March 31, 2008, and evidentiary hearings on Appellant's petition took place on July 17, 2007, May 28, 2008, November 5-7, 2008, January 15-16, 2009, April 28-29, 2009, September 24, 2009, October 20-21, 2009, February 1-3, 2010, July 28, 2010, November 29, 2011, January 20, 2011, and November 29, 2011. The PCRA court ultimately denied Appellant's petition on March 28, 2012. Appellant filed a notice of appeal on April 23, 2012, and, on September 4, 2012, the PCRA court filed an extensive 213 page opinion addressing, and rejecting as meritless, each of the 22 claims in Appellant's
PCRA petition. Of those claims, he raises nine before us, which we now address seriatim.
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). To qualify for relief under the PCRA, an appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); that his claims have not been previously litigated or waived; and that the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel. Id. § 9543(a)(3), (a)(4). An issue is previously litigated if " the highest appellate court in which [the 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 the appellant " could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." Id. § 9544(b).
Further, as several of Appellant's claims concern the ineffectiveness of counsel, we will briefly summarize the legal framework governing such claims under the PCRA. To obtain relief on a claim of ineffectiveness of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied the Strickland test by requiring that a petitioner establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa. 2001). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (Pa. 2010).
Notably, at the time Appellant filed his post-sentence motions and direct appeal, he was subject to our rule articulated in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (Pa. 1977), which required new counsel, upon pain of waiver, to raise claims of ineffectiveness at the earliest opportunity. Appellant's direct appeal was not decided, however, until after we issued our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), wherein we abrogated the Hubbard rule and required that all ineffectiveness claims be deferred until post-conviction proceedings in order to provide an appellant with a more complete record and more time to discover and fully develop his or her claims. Grant, 813 A.2d at 737-38. Nevertheless, in Appellant's direct appeal, we found that such concerns were not implicated because Appellant's counsel properly raised and preserved his ineffectiveness claims in trial court, the trial court held hearings on Appellant's ineffectiveness
claims, and the trial court issued an opinion addressing those claims. Bomar I, 826 A.2d at 853-54. Accordingly, because of the unique circumstances of Appellant's case and the fact that an extensive record already had been created to assist with our review, we created a limited exception to the general rule of deferral in Grant -- subsequently deemed the " Bomar exception"  -- and entertained Appellant's ineffectiveness claims on direct appeal, rather than deferring them until collateral review. Id. at 855.
Because Appellant had the opportunity to raise his ineffectiveness claims on direct appeal, Appellant has waived any new ineffectiveness claims that he did not raise at that time. See 42 Pa.C.S.A. § 9544(b) ( " an issue 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 postconviction proceeding" ). Thus, Appellant may secure relief on claims of trial counsel ineffectiveness only if he can demonstrate not only that trial counsel was ineffective, but also that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. In so doing, Appellant must plead, present argument on, and prove the Strickland/Pierce elements of ineffectiveness as to each relevant layer of representation. Ali, 10 A.3d at 292; Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (Pa. 2003).
A. Favorable Treatment Impeachment Evidence
In his first issue on appeal, Appellant raises prosecutorial misconduct and Brady claims, asserting the Commonwealth offered O'Donald and Williams " secret deals" in exchange for their testimony regarding incriminating statements that they overheard Appellant make while on his cell block; that O'Donald and Williams testified falsely at trial that no deals existed; and that the Commonwealth violated Brady and Napue by failing to disclose evidence regarding these deals to trial counsel and failing to correct the witnesses' allegedly false testimony during trial. Appellant additionally contends that, in evaluating his claims, the PCRA court misapplied the materiality standard for relief under Brady and Napue.
To prove a Brady violation, Appellant must demonstrate that: (1) the prosecution concealed evidence; (2) which evidence was either exculpatory or impeachment evidence favorable to him and; (3) he was prejudiced by the concealment. Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (Pa. 2002); Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In order to prove prejudice, Appellant must show a " reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (Pa. 2001). Stated differently, the undisclosed evidence must be " material to guilt or punishment." Paddy, 800 A.2d at 305. Further, " [i]mpeachment ...