Commonwealth v. Moore , 569 Pa. 508 ( 2002 )

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NIGRO.

Appellant Raymond Moore appeals the order of the Superi- or Court reversing the PCRA court’s order granting him a new trial based on his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq. For the reasons that follow, we reverse.

The record establishes that on September 29, 1989, at approximately 10:30 p.m., Tirone Bivens and three of his friends arrived at the Apollo Lounge where Appellant was an employee. Mr. Bivens immediately walked to the kitchen area of the lounge to order some food. Mr. Bivens and Appellant began arguing over money that had been lying on the floor. Mr. Bivens picked up the money, threw it in Appellant’s face and left the lounge. Thereafter, Appellant went into the kitchen, retrieved a knife and followed Mr. Bivens out of the lounge. Aware that there was a problem, Mr. Bivens’ friends left the lounge in search of him. Mr. Bivens’ friends found him about one-tenth of a mile from the lounge, in an alley, hunched over and in a daze. A fight broke out between Mr. Bivens’ friends and other people present at the scene. At this time, Appellant arrived and fatally stabbed Mr. Bivens.

At trial, Appellant argued self-defense, but the jury nonetheless convicted him of first-degree murder. On December 1, 1989, Appellant was sentenced to life imprisonment. At trial, Robert Foreman, Esq. represented Appellant. Mr. Foreman, though associated with the Public Defender’s Office of Allegheny County, was privately retained to represent Appellant. Mr. Foreman also represented Appellant during his post-trial motions. After these motions were denied, Appellant, through Mr. Foreman, petitioned to have counsel appointed for him in order to pursue his appeal since he was without sufficient funds to retain private appellate counsel. On December 6, 1989, the trial court appointed the Public Defender of Allegheny County to represent Appellant on his appeal to the Superior Court. On appeal, the Superior Court affirmed Appellant’s judgment of sentence. Commonwealth v. Moore, 407 Pa.Super. 648, 584 A.2d 1049 (1990). Thereafter, a Petition for Allowance of Appeal was filed and subsequently denied by this Court on February 6, 1991. Commonwealth v. Moore, 527 Pa. 599, 589 A.2d 689 (1991).

On March 13, 1993, Appellant filed a pro se petition for post-conviction relief that was later amended by appointed counsel, Robert Barrett. During his representation of Appellant, Mr. Barrett was disbarred, and on October 14, 1994, the PCRA court appointed Stephen Begler to represent Appellant in his PCRA appeal. In an amended PCRA petition, Mr. Begler raised the issue of trial counsel’s ineffectiveness for failing to raise a diminished capacity defense. After a hearing, the PCRA court found that Mr. Foreman had been ineffective for failing to raise a diminished capacity defense and granted Appellant a new trial. On appeal, the Superior Court reversed, holding that Appellant had waived his ineffective assistance of counsel claim by failing to raise it at his first opportunity to do so. Commonwealth v. Moore, 745 A.2d 43 (Pa.1999). Mr. Begler sought permission to withdraw as counsel and instant counsel was appointed to represent Appellant.

On appeal to this Court, the first issue Appellant presents is whether the Superior Court erred in reversing the PCRA court’s grant of a new trial by ruling that appellate counsel, an assistant public defender, was required to raise the ineffective assistance of his associate, who was retained to represent Appellant in a private capacity.¹ We find that the Superior Court did not err.

In order to establish a claim of ineffective assistance of counsel under the PCRA, an appellant must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Moreover, a claim of ineffective assistance of counsel must be raised “at the earliest stage in the proceedings at which allegedly ineffective counsel is no longer representing the defendant.” Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686, 697 (1999) (citation omitted).

Generally, where subsequent appellate counsel is an associate of the allegedly ineffective counsel, subsequent eounsel is not required to raise his associate’s ineffectiveness. Commonwealth v. Green, 551 Pa. 88, 709 A.2d 882, 384 (1998). In Green, this Court stated: “As a general rule, a public defender may not argue the ineffectiveness of another member of the same public.defender’s office since appellate counsel, in essence, is deemed to have asserted a claim of his or her own ineffectiveness.” Id. (citations omitted). This rule provides a means to ensure that appellate counsel will “provide the zealous advocacy to which an appellant is entitled.” Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199, 200 (1978). Moreover, this rule applies equally in instances where the allegedly ineffective counsel was co-counsel or merely an associate in the same office. See Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11, 12 (1978) (subsequent counsel not required to raise the ineffectiveness of allegedly ineffective counsel when they were all members of the same public defender’s office); Commonwealth v. Fox, 383 A.2d at 200 (attorney need not allege ineffectiveness of co-counsel).

Nonetheless, our Court has held that where trial counsel was privately retained, but associated with a public defender’s office, and where subsequent counsel is an attorney at the same public defender’s office, a different result follows. This precise circumstance was before this Court in Commonwealth v. Green, where we stated:

The record reflects that appellant was represented at trial by privately-retained counsel, but has been represented on appeal by members of the same public defender’s office. Thus, appellant’s claim that trial counsel was ineffective is waived because it was not raised by appellate counsel at the Superior Court level.

Green, 709 A.2d at 384 (footnote omitted).²

The present case is distinguishable from the line of cases holding that an ineffective assistance of counsel claim is not waived when the allegedly ineffective counsel is an associate of subsequent counsel. Instead, this case presents the same circumstance this Court was presented with in Green. Here, although Mr. Foreman, Appellant’s trial counsel, was associated with the Allegheny County Public Defender’s Office, he was privately retained by Appellant. He was hired in a capacity separate and apart from his relationship to the Public Defender’s Office. Appellant’s subsequent appellate counsel were associates at the Allegheny County Public Defender’s Office. Generally, had Mr. Foreman represented Appellant in his capacity as a public defender, subsequent appellate counsel would not have been required to raise Mr. Foreman’s ineffectiveness because they would have been associates of the same office. See Glasco, 393 A.2d at 11. However, since Mr. Foreman was privately retained, subsequent appellate counsel were required to raise his ineffectiveness at the earliest stage of the proceedings, notwithstanding the fact that Mr. Foreman may have been associated with subsequent counsel in other cases. See Green, 709 A.2d at 384. Accordingly, Appellant’s ineffective assistance of counsel claim — as presented to the Superior Court — was waived because it should have been, but was not, raised by appellate counsel on appeal to the Superior Court.

Although Appellant failed to raise a cognizable claim to the Superior Court, in his brief to this Court, he raises essentially the same claim but in a properly layered format. Appellant asserts that “PCRA counsel gave ineffective assistance for failing to raise the ineffective assistance of appellate counsel for failing to raise the ineffective assistance of trial counsel for failing to raise a diminished capacity defense.” App. Brief, at 5. This Court has previously held that we will review such a properly layered ineffectiveness claim, even if it is raised for the first time on appeal to this Court. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 303 n. 7 (1999).³ For the reasons set forth below, we agree with the PCRA court that Appellant’s underlying ineffectiveness claim provides a basis for relief.

Applying the standard set forth above governing ineffectiveness claims under the PCRA, we must first determine whether the PCRA court properly determined that Appellant’s underlying claim that trial counsel was ineffective for failing to raise a diminished capacity defense has merit. See Kimball, 724 A.2d at 333. The diminished capacity defense is only available in limited circumstances. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 359 (1995). “In asserting a diminished capacity defense, a defendant is attempting to prove that he was incapable of forming the specific intent to kill; if the defendant is successful, first degree murder is mitigated to third degree.” Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 433 (1998) (quoting Travaglia, 661 A.2d at 359 n. 10). To prove a claim of diminished capacity, expert psychiatric testimony “that addresses mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate specific intent is admissible.” Legg, 711 A.2d at 433 (internal quotations and citations omitted).

The record from the PCRA evidentiary hearing establishes that at the time of trial, Mr. Foreman, Appellant’s trial counsel, did not investigate, pursue or present any type of psychological defense for Appellant. N.T., 3/19/98, at 23. Moreover, Dr. Herbert Levit, an expert in forensic psychology, testified at the evidentiary hearing that:

[I]n my opinion, [Appellant] was suffering from a major depression recurrent plus poly-substance abuse at that time. When you take into account his childhood, the fact that he had been consistently victimized, the fact that at that point he had just gotten out of a psychiatric hospital, after having been himself accosted and beaten and attacked three times within a reasonably short period of time, when he had this money taken from him, this was, from his point of view, kind of the last straw of being a victim. And he wanted that money back, and that’s all he could think about. I don’t think at that point when he was very angrily pursuing the victim that he was really capable of intent. I think his capacity was significantly diminished to formulate any intent. And I think that at that point and even at the point of his trial there was a question in my mind of his competence. ... [Appellant’s] ability to formulate an intent to commit a premeditated murder was significantly impaired, and with the history that he had, with his mental illness, which was still actually present at that time, that his capacity, in general was diminished. As I had said, I don’t think there was, from my perspective, the ability to commit a first degree murder.

N.T., 3/19/98, at 8-9 (emphasis added).

As the PCRA court noted, Dr. Levit’s testimony was the type of evidence, which, if believed, would have reduced Appellant’s degree of mental culpability, thereby decreasing the degree of Appellant’s crime. Accordingly, we agree with the PCRA court that Appellant’s claim has arguable merit.

Next, Appellant must establish that Mr. Foreman had no reasonable strategic basis for not presenting a diminished capacity defense. Essentially, Appellant must show that Mr. Foreman knew, or should have known, of Appellant’s psychiatric history. Legg, 711 A.2d at 433. Mr. Foreman testified at the evidentiary hearing that he knew that Appellant was the child of an incestuous rape and that he had several items of violent trauma in his immediate past before the incident, including having part of his ear bitten off and being stabbed. Had Mr. Foreman inquired or investigated the facts and circumstances of Appellant’s situation, which included an attempted suicide and subsequent institutionalization, counsel could have used such information to present a diminished capacity defense. While Mr. Foreman presented a defense of self-defense, the theories of self-defense and diminished capacity are not mutually exclusive and could have been presented together. Thus, we find that the PCRA court did not err in finding that Mr. Foreman should have inquired of Appellant’s psychological makeup, and for this reason, we agree with the PCRA court that he had no reasonable basis for not presenting a diminished capacity defense.

Finally, Appellant must establish that there is a reasonable probability that the outcome of the proceedings would have been different, Regarding this element, the PCRA court stated:

Here, the diminished capacity defense quite possibly could have led the jury to believe that [Appellant] could not have formed the requisite intent to be found guilty of first-degree murder. Dr. Levit had given testimony on this exact point, declaring that: ‘As I had said, I don’t think he was fully competent at the time the crime was committed, so I don’t think there was, from my perspective, the ability to commit a first degree murder.’ Depriving the jury of this type of testimony clearly is prejudicial to [Appellant].

PCRA Ct. Op., 7/21/98, at 5-6. We agree with the findings of the PCRA court and thus believe that the PCRA court properly determined that Mr. Foreman was ineffective for failing to present a diminished capacity defense. Furthermore, we find that appellate counsel and PCRA counsel were also ineffective for failing to raise this claim at the earliest stage of the proceedings.⁴ Accordingly, we reinstate the order of the PCRA court granting Appellant a new trial and remand for further proceedings consistent with this opinion.

Justice SAYLOR files a concurring opinion. Justice CASTILLE files a concurring and dissenting opinion in which Justice NEWMAN and Justice EAKIN joins. Justice NEWMAN files a concurring and dissenting opinion. Justice CAPPY concurs in the result.

1 . Initially we note that this Court’s review of the denial or grant of post-conviction relief is limited to an examination of whether the PCRA court’s determination is supported by evidence of record and free from legal error. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 728 n. 10 (2000). Furthermore, since the issue presented to this Court on review involves a question of law, our scope of review is plenary. Commonwealth v. Lussi, 562 Pa. 621, 757 A.2d 361, 362 n. 2 (2000).

2 . This Court noted that there were two reasons that supported this outcome. First, there was no evidence of record that trial counsel was ever affiliated with the public defender’s office. This circumstance, however, does not apply to the present case. The second reason, and the one applicable to the present case, was that "trial counsel indicated that he was representing appellant in his capacity as a privately retained attorney, rather than as a public defender.” Green, 709 A.2d at 384 n. 5.

3 . In Commonwealth v. Pursell, this Court stated:

The provisions in the PCRA regarding waiver of issues, coupled with the requirement of proper preservation of issues for appellate review on direct appeals, force a petitioner to frame his claims as "layered” ineffectiveness claims, because there has usually been waiver by previous counsel's failure to raise or preserve the underlying issue the petitioner wants the PCRA court to address.

Pursell, 724 A.2d at 302. We further stated that "a properly layered claim challenging PCRA counsel’s ineffectiveness would not be waived, and can be reviewed on appeal from the denial of the PCRA petition.” Id. at 303 n. 7.

Despite Mr. Justice Castille's assertions to the contrary in his concurring and dissenting opinion, Pursell clearly controls the instant case. Justice Castille insinuates that allowing appellants to present claims of PCRA counsel's ineffectiveness on appeal to this Court subverts the PCRA’s timeliness requirements by permitting the Court to consider “new claims” that were never presented in a timely PCRA petition. Neither the statutory language of the PCRA nor Pursell, - however, support such an argument. The PCRA timeliness provisions simply do not speak in terms of claims, instead providing only that a petitioner must file a PCRA petition within one year of a judgment becoming final, as Appellant clearly did here. At the same time, Pursell did not in any way treat the appellant’s claims of PCRA counsel’s ineffectiveness as new claims that should have been presented in a separate PCRA petition but rather, consistent with this Court’s precedent, treated such claims of ineffectiveness as ones being presented at the first available opportunity to do so. Although Justice Castille correctly notes that Pursell was not decided under the 1995 amendments, which added the timeliness requirements to the PCRA, we fail to see how these amendments serve to alter Pursell’s clear holding that this Court may properly review claims of PCRA counsel's ineffectiveness when it is an appellant's first, and quite possibly only, opportunity to do so. In fact, were this Court to adopt Justice Castille’s logic, then it would seem that in situations where a pro se PCRA petitioner filed a petition on the 364th day of his judgment becoming final, and counsel was subsequently appointed and raised "new” claims in the amended PCRA, those claims would, according to Justice Castille's reasoning, run afoul of the PCRA’s time-bar.

4 . In his concurring and dissenting opinion, Justice Castille argues that Appellant’s claim regarding the ineffectiveness of appellate and PCRA counsel is waived and quotes language from this Court’s decisions in Commonwealth v. Bracey, 787 A.2d 344, 350 n. 4 (Pa.2001) and Commonwealth v. Abdul-Salaam, 786 A.2d 974, 977 n. 3 (Pa.2001), in support of this argument. Of course, the waiver language cited by Justice Castille dealt with claims that were presented in a significantly different fashion than the one at issue here. In Bracey and Abdul-Salaam, the specific issues found waived by the Court were ones that the respective appellant had presented as claims of straight trial court error or prosecutorial misconduct — as if still on direct appeal — and were not framed as claims of counsel’s ineffectiveness. Rather, at the end of these particular claims, Bracey and Abdul Salaam merely tacked on a bald statement that all prior counsel were ineffective for failing to raise and/or properly litigate the underlying claim, without ever attempting to apply or discuss the tripartite standard governing ineffectiveness claims. It was in this context that the Court concluded that "such an undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief.” Bracey, 787 A.2d at 350 n. 4; Abdul-Salaam, 786 A.2d at 977 n. 3. The Court in Bracey, however, did address the merits of claims presented in the same manner as the issue considered by the Court today. Like the claims reviewed by the Court in Bracey, the claim at issue here is not presented as if Appellant is still on direct appeal, i.e. asking this Court to consider a clearly waived claim of straight trial court error. . Rather, the claim is not only presented and discussed as one of counsel’s ineffectiveness, with the three prongs of the ineffectiveness standard applied to the claim as it relates to trial counsel, but is properly-layered, taking into account that previous counsel could have raised the issue of trial counsel’s ineffectiveness but failed to do so. This Court has previously found, indeed in Bracey itself, that such a claim is sufficiently developed so as to warrant review. See, e.g., Bracey, 787 A.2d at 351-357 (reviewing numerous claims where appellant's discussion section addresses each prong of the ineffectiveness standard as it relates to trial counsel and at least includes a properly-layered assertion that all prior appellate counsel were ineffective for failing to raise trial counsel's ineffectiveness). The circumstances in Abdul-Salaam, of course, were different than those in either Bracey or the instant matter as Abdul-Salaam's trial counsel was also his counsel for purposes of direct appeal, thereby removing any need to layer any ineffectiveness claims presented. Unlike the waived claims discussed above, which Abdul-Salaam presented as straight claims of error, this Court did address the merits of Abdul-Salaam's claim that was framed as one of ineffectiveness and which addressed each prong of the ineffectiveness standard as it related to trial counsel. See 786 A.2d at 977-979. Clearly, then, the Court in Bracey and Abdul-Salaam considered the merits of issues framed in the same manner as the issue considered here and therefore, despite Justice Castille’s assertions to the contrary, neither Bracey nor Abdul-Salaam received disparate treatment from this Court and would have no basis to argue otherwise.