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Commonwealth v. Rivera

Supreme Court of Pennsylvania

December 29, 2014


Submitted May 14, 2014

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Appeal from the Order entered on 08/05/2013 in the Court of Common Pleas, Criminal Division of Berks County at No. CP-06-CR-0004453-2006. Trial Court Judge: Stephen B. Lieberman, Judge.

For Cletus C. Rivera, APPELLANT: Stuart Brian Lev, Esq., Federal Community Defender Office for the Eastern District of PA; Peter Konrad Williams, Esq., Defender Association of Philadelphia.

For Commonwealth of Pennsylvania, APPELLEE: Christopher Joseph Schmidt, Esq.; Amy Zapp, Esq., PA Office of Attorney General.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr. Justice. Stevens join the opinion. Mr. Justice Saylor files a dissenting opinion.


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In 2008, a jury convicted Appellant Cletus C. Rivera of the first degree murder of Police Officer Scott Wertz. Appellant was thereafter sentenced to death, and this Court affirmed his judgment of sentence. Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211 (Pa. 2009). Appellant subsequently filed a timely petition for collateral relief pursuant to the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546. After affording Appellant notice of its intent to dismiss his PCRA petition without conducting an evidentiary hearing, the Court of Common Pleas of Berks County (" PCRA court" ) dismissed Appellant's petition, holding there were no genuine issues of material fact and no meritorious issues. Appellant has now filed in this Court a direct appeal from the PCRA court's order denying him collateral relief. For the reasons that follow, we affirm.

I. Background

Although the facts underlying Appellant's conviction are set forth more fully in the opinion deciding his direct appeal, Rivera, supra, we reiterate those facts relevant to the claims raised herein. The evidence presented at trial established that in the early morning hours of August 6, 2006, Scott Wertz and Malcom Eddinger were working as plainclothes police officers for the Reading Police Department when they noticed a large crowd forming in a parking lot adjacent to the street. The officers received a radio broadcast a few moments later, indicating there was an altercation at that location. The officers then heard what they believed to be a firecracker or small caliber gunshot. While they initially remained in their unmarked vehicle waiting for uniformed officers to arrive, the officers exited after they heard three or four gunshots fired from a large caliber gun.

Believing the shooter was a man in a blue polo shirt, later identified as Appellant, Officer Wertz began to follow him. Officer Eddinger joined the pursuit. At one point, Officer Wertz stood face-to-face with Appellant for a few seconds, leading Officer Eddinger to believe that the two men exchanged words. Appellant continued

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to run, and Officer Wertz gave chase. Notably, he never drew his weapon. Officer Eddinger followed behind them in the middle of the street. He did not hear Officer Wertz direct Appellant to stop or identify himself as a police officer, but did see Appellant look over his left shoulder. Immediately thereafter, Officer Eddinger heard two gunshots, and observed two muzzle flashes. Both Appellant and Officer Wertz fell to the ground. Officer Eddinger, who was approximately twenty feet away when Appellant fired the shots at Officer Wertz, apprehended Appellant who was lying on the street where he had fallen, and found a gun underneath him. The location where the shooting occurred was approximately forty yards away from the large crowd who had previously gathered. Four spent shells fired from Appellant's gun were recovered from the crime scene.

Officer Wertz was pronounced dead shortly thereafter. His gun was found strapped inside his holster, which was attached to his belt, and his badge was found in his police vehicle. An asp baton used in law enforcement was also found in close proximity to where Officer Wertz's body lay. An autopsy identified the cause of death as two gunshot wounds, one penetrating the left side of Officer Wertz's chest, and the other striking him in the area below the pelvic diaphragm. Chemical testing revealed that the shot to the chest had been fired from approximately four feet away, while the other shot had been fired when the muzzle of the weapon was either touching or was within three inches of Officer Wertz's clothing. The Commonwealth's theory was that this forensic evidence demonstrated that Appellant first shot Officer Wertz in the chest, which caused him to fall toward Appellant, who then fired a second time.

At trial, Appellant was represented by Attorneys Jay Nigrini and Richard Reynolds.[1] The Commonwealth's primary witness was Officer Eddinger, who testified regarding the parking lot surveillance, the subsequent chase of Appellant, the shooting of Officer Wertz, and Appellant's apprehension. The Commonwealth also presented the testimony of jailhouse informant, Jason Ott, who provided prison officials with a written statement that Appellant confessed to him in prison that he shot a police officer and would " get away with it" because there were fifty or sixty people at the scene. Although not included in his written statement to police, Ott further testified at trial that Appellant told him someone shouted that cops were coming; thereby suggesting that Appellant may have known that the man chasing him was a police officer.

Prior to Ott's testimony, Appellant had executed a written waiver of conflict of interest and engaged in an oral colloquy, acknowledging that Appellant's trial counsel, Attorney Nigrini, had previously represented Ott in criminal proceedings. Due to the purported conflict of interest, Appellant's co-counsel, Attorney Reynolds, cross-examined Ott at trial, bringing to light that he was imprisoned due to a parole violation involving false reports to police. Attorney Reynolds also elicited testimony suggesting that Ott's parole violation case had been continued several times due to Appellant's upcoming trial, although ...

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