Submitted, August 13, 2014
Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, entered on October 18, 2005 at No. 9611-0316 1/2.
Trial Court Judge: Glenn B. Bronson, Judge.
For Rasheed Simpson, APPELLANT: Teri B. Himebaugh, Esq., Louis M. Natali Jr., Esq., Turner & McDonald, P.C.
For Commonwealth of Pennsylvania, APPELLEE: Hugh J. Burns, Jr., Esq., Anthony V. Pomeranz, Esq., Philadelphia District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General.
MADAME JUSTICE TODD.
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
MADAME TODD, JUSTICE
In this Opinion, our Court addresses three issues over which we retained jurisdiction following a remand to the Post Conviction Relief Act (" PCRA" ) court on March 26, 2013 for further proceedings, as warranted, and for the preparation of an opinion. Commonwealth v. Simpson, 620 Pa. 60, 66 A.3d 253 (Pa. 2013). The questions on remand involved two allegations of ineffective assistance of trial counsel. The PCRA court, after holding a hearing on February 21, 2014, rendered an opinion in which it resolved these issues against Appellant Rasheed Simpson, and, thus, denied him relief. With the remand proceedings now complete, we now may also consider the issue of whether Appellant is entitled to relief based on the cumulative prejudicial effect of all of the alleged errors he has set forth. For the reasons that follow, we hold that the PCRA court properly resolved the ineffectiveness claims before it, and we conclude that Appellant is not entitled to relief on his claim of cumulative prejudice. Thus, we affirm the order of the PCRA court and dismiss all of Appellant's claims.
By way of brief background, in December 1997, as a result of the 1993 kidnapping and execution-style murder of Andrew Haynes, Appellant was convicted of first-degree murder, criminal conspiracy, kidnapping, robbery, and possession of an instrument of crime. Thereafter, a jury sentenced Appellant to death. Our Court affirmed the judgment of sentence on direct appeal. Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264 (Pa. 2000). On September 17, 2001, Appellant filed a pro se petition pursuant to the PCRA. The PCRA court dismissed Appellant's claims without a hearing on October 18, 2005. On appeal to our Court, Appellant raised 15 issues. On March 26, 2013, we affirmed the PCRA court's order with the exception of two issues involving trial counsel's alleged ineffectiveness regarding a failure to cross-examine Commonwealth witness Rasheema Washington and to present potential defense witness Cameron Thompson. See Simpson, 66 A.3d at 284. We
remanded these two claims to the PCRA court for further proceedings.
In light of the retirement of the PCRA judge, upon remand, the matter was reassigned to the Honorable Glenn Bronson who, after Appellant was appointed new counsel and was granted a continuance, held an evidentiary hearing on February 21, 2014. In a thorough and well-written opinion, the PCRA court determined that Appellant was not entitled to relief. These issues, as well as the related question of cumulative prejudice, are now properly before our Court for final disposition.
As Appellant challenges the effectiveness of trial counsel, a brief summary of the legal framework governing PCRA petitions raising such claims is appropriate. As noted in our prior decision, Appellant was represented by the same counsel both at trial and on direct appeal, and, thus, did not have an opportunity to raise claims of trial counsel's ineffectiveness on direct appeal. Simpson, 66 A.3d at 260. In this context, the proper framework in which to consider Appellant's issues is the " performance and prejudice" analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Pursuant to guarantees found in the Sixth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution, a defendant is entitled to the right to effective counsel. This right is violated where counsel's performance " so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 799 (Pa. 2007) (internal quotation marks omitted). In Pennsylvania, courts apply a three-pronged test for analyzing whether trial counsel was ineffective, derived from our application in Pierce, 527 A.2d at 975, of the performance and prejudice test articulated by the United States Supreme Court in Strickland, 466 U.S. at 687. The Pierce test requires a PCRA petitioner to prove: (1) the underlying legal claim was of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) the petitioner was prejudiced -- that is, but for counsel's deficient stewardship, there is a reasonable likelihood the outcome of the proceedings would have been different. Pierce, 527 A.2d at 975. If a petitioner is unable to prove any of these prongs, his claim fails. Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 19-20 (Pa. 2007).
Importantly, counsel is presumed to be effective, and a petitioner must overcome that presumption to prove the three Strickland/Pierce factors. Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403, 411 (Pa. 2005). Related thereto, where, such as in the matter sub judice, trial counsel is deceased, and, thus, unavailable to testify, the petitioner's burden of establishing a claim of ineffective assistance of counsel is not lessened or reduced. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 820 (Pa. 2008). Additionally, and relevant to both issues before us, to obtain relief for counsel's failure to effectively impeach a witness, a petitioner must satisfy the three-pronged
test set forth in Pierce. Furthermore, regarding the failure to procure a witness's testimony, a petitioner must demonstrate: (1) the witness existed; (2) counsel was either aware of, or should have been aware of, the witness' existence; (3) the witness was willing and able to cooperate with the defense; and (4) the defendant was prejudiced by the absence of the witness' testimony. See Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 746 (Pa. 2004).
Finally, our Court has embraced a de novo standard of review in determining whether counsel's performance fell below constitutional mandates, but significantly, for purposes of this appeal, we have emphasized that the lower tribunal's factual findings and credibility determinations which are supported by the record will not be disturbed on appeal. Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311, 319 (Pa. 2014). With this framework in mind, we turn to the issues before us.
The first claim which we remanded to the PCRA court for supplemental review was whether trial counsel was ineffective for failing to impeach Rasheema Washington -- who was the only eyewitness who testified as to the events surrounding the kidnappers bringing the murder victim to her apartment, Appellant's presence with the victim that evening, and his presence during a telephone conversation with the victim's family -- with evidence of motive and bias against Appellant. In sum, Appellant contends that his trial counsel knew that Washington had been in a sexual relationship with Appellant, accused him of impregnating her and infecting her with a sexually transmitted disease, and that she claimed that she would get back at him someday; ...