Commonwealth v. McCall , 567 Pa. 165 ( 2001 )

Justice NIGRO,

dissenting..

Appellant was charged with arson and related offenses resulting from a fire on February 7, 1992. Appellant was later charged with two counts of criminal homicide, arson, and related offenses stemming from a second fire on March 7, 1992. The cases were severed for trial upon Appellant’s motion, and the Commonwealth chose to prosecute the homicide/arson case first, which is the case before the Court here. At trial, the Commonwealth presented evidence of the alleged prior crime of arson to prove motive and intent in the instant case. On January 21, 1993, a jury convicted Appellant of two counts of second-degree murder and one count each of arson, intimidation of witnesses, recklessly endangering another person and failure to prevent a catastrophe. Subsequently, on March 23, 1998, a jury acquitted Appellant of all charges in the first arson case. In this appeal under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, Appellant claims that counsel on direct appeal was ineffective for failing to argue that the evidence of the first arson was improperly used as motive and intent in the instant case because he was subsequently acquitted of that arson.

The majority concludes that the Superior Court addressed Appellant’s claim on direct appeal and therefore, his claim is barred under the PCRA as previously litigated. Based on my reading of the record, however, I cannot agree with this conclusion. Furthermore, I believe that Appellant is entitled to a new Rial due to the ineffectiveness of counsel on direct appeal. Accordingly, 1 respectfully dissent.

The majority first holds that Appellant’s claim asserted here in his PCRA appeal has been previously litigated because it is substantially similar to the evidentiary claim he asserted on direct appeal. The crux of the evidentiary issue raised on direct appeal, however, was that the trial court erred in admitting evidence of a crime for which Appellant had been charged but not yet convicted, thereby allowing the Commonwealth to assert Appellant’s guilt in the first arson case without having to prove that charge beyond a reasonable doubt. The crux of the issue here, on the other hand, is the effect of the subsequent acquittal rather than the admission of evidence of a crime for which the charges were still pending. The distinction between the two claims is, in my view, most clearly highlighted by the simple fact that Appellant had merely been charged with, and not yet acquitted of, the first arson at the time the trial court made its evidentiary ruling. Thus, it would have been impossible for Appellant to argue the effect of the acquittal at that point, when such an event had not yet occurred. Given these circumstances, I believe it is unfair to conclude, as the majority does, that the “ultimate question” in the two proceedings is the same. See Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 n. 9 (2000)(“Because this claim does not rest solely upon the previously litigated evidence, we will reach the merits of appellant’s claim”).

Furthermore, I disagree with the majority’s conclusion that Appellant’s counsel on direct appeal raised the issue of Appellant’s subsequent acquittal in the first arson case and that the Superior Court addressed that issue in its memorandum opinion. The majority states that Appellant is simply attempting to circumvent the bar against previously litigated issues by alleging ineffectiveness of counsel, but my reading of the record compels me to reach a different conclusion.

On direct appeal to the Superior Court, Appellant’s counsel did not set forth a question presented involving Appellant’s acquittal and the effect of the acquittal. See Pa.R.A.P. 2116(a)(“ordinarily no point will be considered which is not set forth in the statement of questions involved”). More importantly, Appellant’s counsel conducted no research and presented absolutely no argument regarding the acquittal or whether the acquittal was grounds for a new trial.¹ See Pa.R.A.P 2119 & 2101; Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 n. 9 (1998)(this Court cannot evaluate claims that counsel has not briefed); Commonwealth v. Sneddon, 738 A.2d 1026, 1028-29 (Pa.Super.l999)(the argument portion of an appellate brief must include a full discussion of the particular point raised along with citation to pertinent authorities). Direct appeal counsel merely mentioned Appellant’s acquittal once, in the second to last line of the discussion section of the appellate brief. Amazingly, the majority concludes that this lone and passing reference to Appellant’s acquittal constitutes effective and sufficient appellate advocacy. In my view, however, this reference to Appellant’s acquittal in the first arson case falls far short of what is required by the law of this Commonwealth to properly raise an issue on appeal.

My conclusion that appellate counsel failed to raise Appellant’s acquittal of the first arson is supported by the fact that the Superior Court did not, at any point, mention Appellant’s acquittal in its opinion on direct appeal. Nevertheless, the majority proclaims that this Court “should assume that the Superior Court read Appellant’s brief and was therefore aivare of his acquittal of the first arson when it considered the propriety of the trial court’s evidentiary ruling on direct appeal.” Majority Opinion at 195, n. 6 (emphasis added).² Initially, I believe it is improper to assume that the Superior Court considered an issue that it did not raise, much less discuss, in its opinion.³ Moreover, in making this assumption, the majority necessarily admits that the Superior Court addressed only the trial court’s evidentiary ruling, and not the issue regarding Appellant’s subsequent acquittal. The PCRA clearly states that an issue has been previously litigated only if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S § 9544(a)(2). ■ In order to be previously litigated, an appellate court must have, at the very least, addressed the merits of a claim on direct appeal. See Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 252 (1998)(claim previously litigated where this Court specifically addressed the argument on direct appeal); Commonwealth v. Bond, 428 Pa.Super. 344, 630 A.2d 1281, 1282 (1993)(claims finally litigated where discussed thoroughly by Superior Court on direct appeal). Since the Superior Court on direct appeal did not even mention Appellant’s subsequent acquittal in the first arson case, I am perplexed by the majority’s conclusion that the Superior Court’s opinion constituted a ruling on the merits as to Appellant’s PCRA claim.⁴

Based on the reasoning set forth above, I cannot agree with the majority that Appellant’s claim was previously litigated under the PCRA. Given my belief that Appellant’s ineffectiveness claim is properly before the Court, the issue then becomes whether counsel’s failure to brief and argue Appellant’s acquittal of .the first arson on direct appeal entitles him to relief under the PCRA.⁵

Resolution of this issue is, in my view, controlled by this Court’s decision in Commonwealth v. Fisher, 527 Pa. 345, 591 A.2d 710 (1991). The jury in Fisher convicted the defendant (“Fisher”) of murder. Prior to the murder trial, Fisher had been convicted in federal court for conspiracy to violate the constitutional rights of a government informant scheduled to testify at a then-imminent drug trial. The informant had been murdered and his death was an integral issue regarding the motivation for the murder in Fisher’s state case. During voir dire in the state murder case, the prosecution asked whether a potential juror had read anything about Fisher’s earlier federal conviction. The individual responded affirmatively and was later selected to sit as a member of the jury.

Following his conviction in the state murder case, Fisher’s federal conviction was reversed and he was completely discharged from the federal case. On appeal from the murder conviction, this Court unanimously concluded that, given Fisher’s subsequent acquittal on the federal charges, the question asked by the prosecutor during voir dire was prejudicial. Id. at 711. The Court reasoned that although evidence regarding the federal conviction may have been relevant at the time the prosecutor questioned the juror, the subsequent acquittal caused the evidence to lose its pertinency and to become unduly prejudicial. Id. Explaining that the effect of the prosecutor’s inquiry on the jury was “inestimable,” the Court reversed Fisher’s murder conviction and ordered a new trial. Id.

The validity of Fisher was subsequently reaffirmed in Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995), where this Court drew a distinction between being discharged from a case and being granted a new trial. In Murphy, the Court held there was no error in admitting evidence of an alleged prior crime where the defendant was convicted but later granted a new trial by this Court on appeal. Id. at 932-33. The Court explained that the defendant had not been discharged on the prior crime because the case had been reversed and remanded for a new trial. Id. at 932. On remand, the defendant pled guilty, thereby admitting to the evidence regarding the prior crime that had been presented to the jury in the subsequent case. The Muiphy Court specifically distinguished this factual scenario from Fisher, where Fisher’s federal conviction was reversed and he was completely discharged from that case. Murphy, 657 A.2d at 932-33. In my view, the instant case likewise differs from Murphy.

Unlike the defendant in Murphy, Appellant was not granted a new trial on appeal from the first arson. Instead, Appellant was completely discharged from the first arson case when a jury found him not guilty of all charges. See United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)(the law attaches particular significance to an acquittal); Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997)(a defendant enters a trial cloaked in the presumption of innocence and when the fact-finder reaches a verdict of acquittal, there is no justification to undermine the verdict because the defendant has achieved the stx-ongest vindication possible under our criminal tx-adition, laws and procedures). Thus, I believe Appellant’s case is analogous to Fisher. Appellant’s acquittal in the first arson case similaxdy affected the relevancy and concomitant prejudice of the evidence concerning motive and intent in the instant case. In fact, Appellant’s case presents a stronger justification for a new trial than the0 factual scenario before the Coui"t in Fisher. In Fisher, the prosecutor x'elied upon a conviction that was subsequently reversed. Here, the prosecutor used evidence of an alleged bad act for which Appellant was later tried and acquitted The effect of the prior eximes evidence on the jury, without the jurors knowing of the subsequent acquittal, is, as it was in , Fisher, inestimable.⁶

Based on the facts of record and prior decisions of this Court, 1 believe that Appellant’s ineffectiveness claim has arguable merit, that Appellant’s counsel had no reasonable basis for failing to brief and argue Appellant’s subsequent acquittal of the prior arson, and that if counsel had properly briefed and argued this issue there is a reasonable probability that the outcome of the proceedings would have been different. See Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999)(setting forth the standard for evaluating a claim of ineffective assistance of counsel). Accordingly, I would grant Appellant a new trial.⁷

1 . At the PCRA hearing, Appellant's direct appeal counsel testified as follows:

Q. [PCRA counsel]: At the time of your appointment I think we have already established that [Appellant] had been found not guilty of the first arson, is that correct?

A. [direct appeal counsel] Yep.

Q. And you raised in your Superior Court brief the issue of the prior crimes evidence coming in in the murder arson case, is that correct?

A. Yes.

Q. And you raised it in the context of the order in which the cases had been charged, is that true?

A. Yes.

Q. And your arguments would be fair to say basically tracked [trial counsel's] arguments pretrial as to why this should not occur?

A. Yes, that's fair.

Q. Is that fair to say?

A. Yes.

Q. Did you research at that time the specific issue of — the significance of the prior crimes resulting in an acquittal?

A. My research was limited to the issue I have raised in my brief. N.T., PCRA Hearing, 6/26/98, at 24-25.

2 . Even assuming lhat the Superior Court was "aware” of Appellant’s acquittal in the first arson, that does not necessarily mean that the issue was properly raised by counsel or that the Superior Court considered the effect of Appellant’s acquittal in rendering its decision.

3 . I am troubled by the majority's use of leaping logic when it concludes that the Superior Court considered and rejected a claim based solely on the majority's assumption that the Superior Court considered Appellant's acquittal. Based on the majority's reasoning, an appellate court reviewing a PCRA petition may now assume that a lower court has addressed an issue not even raised by counsel, thereby transforming unraised claims into previously litigated claims. Taking the majority's reasoning to its logical conclusion, an appellate court may sua sponte consider any number of issues that it may be "aware” of, despite counsel's failure to properly raise the issues.

4 . Although it is undisputed that one of the purposes of the PCRA is to preclude defendants from relitigating the merits of issues long since decided on direct appeal, Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771, 775 (1995), unlike the majority, I do not believe that the previously litigated preclusion should be extended to include claims that this Court assumes have been addressed by the lower courts.

5 . Despite concluding that Appellant's claim was previously litigated, the majority nevertheless proceeds to address the undertying merits of the claim. It is beyond dispute that if a defendant's claim was previously litigated, he is not eligible for relief under the PCRA. 42 Pa.C.S. § 9544(a); Commonwealth v. Lewis, 560 Pa. 240, 743 A.2d 907, 909 (2000). Thus, it seems improper for the majority to address the merits of Appellant’s claim after concluding that the claim is not eligible for review by this Court.

6 . If the order of the two trials had been reversed and the Commonwealth introduced prior crimes evidence of the first arson, it is likely that Appellant would have been permitted to inform the jury of his acquittal in the arson case. See Dowling v. United States, 493 U.S. 342, 345-46, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)(courl gave limiting instruction as to prior crimes evidence and twice told jury of defendant’s prior acquittal). In my view, the majority unjustifiably rewards the Commonwealth for choosing to prosecute the murder/arson case before the first arson case. By prosecuting the murder/arson case first, the Commonwealth was able to argue that the first arson was motive for murder without having to prove Appellant's involvement in the first arson beyond a reasonable doubt. The majority's decision has the effect of allowing the Commonwealth to charge a defendant with a crime and introduce evidence of that crime in a trial for a second crime, without regard for the ultimate disposition of the charges in the first case.

7 . In addition to arguing that ho is entitled to a new trial, Appellant argues that on remand, evidence of the first arson should be completely excluded from a new trial, or that in the alternative, he should be allowed to present evidence of the acquittal to the jury. That issue is beyond the scope of the issue on which ihis Court granted allocatur and therefore, is not squarely before the Court at this junciure of Appellant's case. Moreover, I believe that the trial court would be better equipped to address this evidentiary issue in the first instance on remand.