Commonwealth v. Rivers ( 2001 )

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

This is a direct appeal from the denial of a PCRA petition in a death penalty case. Rivers was convicted of first degree murder on March 15, 1989. The next day, the jury determined that there were two aggravating circumstances and no mitigating circumstances and fixed the penalty at death. This court affirmed the judgment of sentence at Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994), and the United States Supreme Court denied certiorari on March 18, 1996. Rivers v. Pennsylvania, 516 U.S. 1175, 116 S.Ct. 1270, 134 L.Ed.2d 217 (1996). Rivers filed a PCRA petition on December 21, 1996 pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (effective January 16, 1996), and on September 9, 1998 the PCRA court dismissed the PCRA petition. This appeal followed.

To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(iii) A plea of guilt unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.

(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.

42 Pa.C.S. § 9543(a)(l)-(4). In her appeal, Rivers raises twenty-two issues. Nine of these issues concern allegations of error at the guilt phase; ten issues concern allegations of error at the penalty phase; one issue concerns the allegation that the PCRA court is biased; one issue concerns allegedly newly discovered evidence and the final claim is that the errors cumulatively require relief.

Fearing that she has not met the requirements of the PCRA to presérve her guilt phase claims, Rivers states:

The claims for relief discussed in this brief were all presented in the PCRA proceedings below. This is appellant’s first and only PCRA proceeding. This Court has always reviewed, on their merits, the claims raised by capital PCRA petitioners who were in a posture similar to that here.

All of appellant’s claims are eligible for relief under the PCRA. With respect to each claim, appellant asserted below and in this Court that her conviction and/or sentence resulted from ineffective assistance of counsel and violations of the Constitutions of this Commonwealth and of the United States that undermined the truth-determining process. Furthermore, to the extent that the concept of waiver can properly be applied to this capital case, any waiver is overcome by appellant’s allegations that prior counsel was ineffective to the extent that he failed to properly preserve, raise and litigate the claims presented herein.

Brief at 13-14.

Rivers’ reliance on this court’s unwillingness to apply ordinary principles of waiver to this case because it is a capital case is misplaced. As we stated in Commonwealth v. Albrecht, “Henceforth, a PCRA petitioner’s waiver will only be excused upon a demonstration of ineffectiveness of counsel in waiving the issue.” 554 Pa. 31, 720 A.2d 693, 700 (1998).

Also misplaced is Rivers’ belief that because she has “asserted below and in this Court” the ineffectiveness of counsel, violations of the constitution, and that such violations undermined the truth determining process, her guilt phase claims are not waived.

A cursory reading of the PCRA reveals that PCRA petitioners, to be eligible for relief, must, inter alia, plead and prove their assertions by a preponderance of the evidence. Section 9543(a). Inherent in this pleading and proof requirement is that the petitioner must not only state what his issues are, but also he must demonstrate in his pleadings and briefs how the issues will be proved. Moreover, allegations of constitutional violation or of ineffectiveness of counsel must be discussed “in the circumstances of the case.” Section 9543(a)(2)(i-ii). Additionally, the petitioner must establish by a preponderance of evidence that because of the alleged constitutional violation or ineffectiveness, “no reliable adjudication of guilt or innocence could have taken place.” Section 9543(a)(2)(i-ii). Finally, petitioner must plead and prove that the issue has not been waived or finally litigated, § 9543(a)(3), and if the issue has not been litigated earlier, the petitioner must plead and prove that the failure to litigate “could not have been the result of any rational, strategic or tactical decision by counsel.” Section 9543(a)(4).

Moreover, because each of Rivers’ claims is couched in terms of ineffectiveness of counsel, she must also prove, by a preponderance of the evidence, the following:

(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her course of conduct; and (3) that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Commonwealth v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 (1996). Counsel is presumed to be effective and Appellant has the burden of proving otherwise. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993). Additionally, counsel cannot be considered ineffective for failing to raise a claim that is without merit. Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994)....

Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999).

Although all of Rivers’ guilt phase claims are couched in the boilerplate language that there has been constitutional error and “to the extent that [counsel] failed to properly preserve, raise and litigate this claim, pi-ior counsel was ineffective and such ineffective assistance of counsel undermines confidence in the outcome of the proceeding,” for no guilt-phase claim does Rivers offer proof that in the circumstances of the case, no reliable adjudication of guilt or innocence could have taken place; and nowhere does she present the three-part ineffectiveness analysis set out above, and in no case does Rivers establish that her claims are not waived, § 9543(a)(8), or that the failure to litigate an issue earlier “could not have been the result of any rational, strategic or tactical decision by counsel,” Section 9543(a)(4).¹

Discussion of the circumstances of the case in claims of ineffectiveness of counsel is a particularly important requirement of the PCRA. Circumstances include not only the totality of the evidence that was introduced at trial, but may include also facts concerning the prosecution of the case and the appellant’s interactions with her lawyer. Nowhere does Rivers discuss her ineffectiveness claims in the circumstances of the evidence at trial.² This is crucial, for courts need to be told why, when considering the totality of the case, the petitioner believes the claims she is making establish that the trial court could not' have reliably adjudicated her guilt or innocence.

Consider, for example, Rivers’ claim that the trial court erred and counsel was ineffective in not preserving the issue that certain members of the venire were improperly disqualified. As stated above, in all PCRA claims of ineffectiveness of counsel or that the law or constitution was violated, the appellant is required to plead and prove by a preponderance of evidence that in the circumstances of her case, the court could not have reliably adjudicated guilt or innocence. The circumstances in each case include the totality of the evidence established at trial with respect to the appellant’s guilt. The facts established at trial are that appellant was smoking cocaine on the night of the murder two blocks from the victim’s house, ran out of money to buy cocaine, left the crack house and reappeared a short time later spattered with blood, in the possession of a large knife, her shirt stuffed with fifty dollar bills, claiming that she had stabbed and robbed someone and asking for persons present to testify that she had been there all day and night, when the victim, an invalid in the care of appellant, had been stabbed ánd robbed during this period of time and no other persons were stabbed and robbed in this part of the city during this period of time. In light of these facts, can it fairly be said that any error in disqualifying members of the venire rendered the trial court unable to reliably adjudicate guilt or innocence? That is what the PCRA appellant must plead and prove by a preponderance of evidence. Accord, Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1047 (1999)(failure to prove that counsel’s errors “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” is fatal to a PCRA claim of ineffectiveness of counsel).

PCRA claims are not merely direct appeal claims that are made at a later stage of the proceedings, cloaked in a boilerplate assertion of counsel’s ineffectiveness. In essence, they are extraordinary assertions that the system broke down. To establish claims of constitutional error or ineffectiveness of counsel, the petitioner must plead and prove by a preponderance of evidence that the system failed lor an ineffectiveness or constitutional error claim, that in the circumstances of his case, including the facts established at trial, guilt or innocence could not have been adjudicated reliably), that his claim has not been previously litigated or waived, and where a claim was not raised at an earlier stage of the proceedings, that counsel could not have had a rational strategic or tactical reason for failing to litigate these claims earlier.

Rivers has failed to meet these requirements to be eligible for relief under the Post-Conviction Hearing Act with respect to any of her guilt-phase claims, and her petition, therefore, was properly dismissed with respect to these claims.³

Remaining are Rivers’ penalty phase claims, her claim of after-discovered evidence, her claim that the PCRA court was biased, and her claim of cumulative error.

As we explained in Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999), penalty-phase issues are cognizable under the PCRA. 733 A.2d at 1249.⁴ Further, we held that the phrase “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” is applicable at the penalty phase as well as the guilt phase of capital cases. Chester at 1249. In Chester, as in the present case, all of the penalty phase claims were raised in an ineffectiveness context, and as we stated earlier, to obtain relief on a claim for ineffective assistance of counsel, appellant must establish not only that the requirements of § 9543(a)(2)(h) have been met, but also, as in any ineffectiveness claim, whether on direct or collateral appeal, appellant must also establish:

(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her course of conduct; and (3) that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Commonwealth v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 (1996). Counsel is presumed to be effective and appellant has the burden of proving otherwise. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993). Additionally, counsel cannot be considered ineffective for failing to raise a claim that is without merit. Commonwealth v. Peterkin, 538 Pa. 455, 469, 649 A.2d 121 (1994)....

Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999).

As an illustration of what is required to establish an ineffectiveness of counsel claim at the penalty phase, consider Rivers’ first and strongest penalty phase claim, that counsel was ineffective in failing to investigate and present to the jury appellant’s history of sexual and physical abuse, her mental disturbances and the effects of her long-term drug abuse, as well as the effects of her ingesting drugs on the night of the murder. At the time of the penalty phase hearing, defense counsel had information that Rivers suffered from paranoid and explosive traits as well as chronic drug and alcohol abuse, that she was prone to overreact when challenged or threatened and that she should be considered potentially assaultive and dangerous. This diagnosis came from the pre-sentence mental health evaluation by a court psychologist, who concluded that Rivers had a mixed personality disorder but that she did not suffer from major mental illness.

Rivers devotes thirteen pages of her brief to the details of Rivers’ history of drug and alcohol abuse, her abuse as a child, and her mental condition, and although this treatment of the issue adequately sets out the circumstances of the ease for purposes of our review of this claim, as is required by § 9543(a)(2)(ii), nowhere does she even suggest that “counsel had no reasonable basis for his or her course of conduct,” Commonwealth v. Holloway, supra, nor could she, for counsel had good reason for not emphasizing these aspects of Rivers’ character. He called five witnesses who described Rivers as a caring and hard-working person who held down two jobs and worked her way through school to become a nursing assistant. Thus, defense counsel chose to emphasize the positive aspects of Rivers’ background and character rather than the negative — that she was a drug addict who was unpredictable and assaultive — and this was a reasonable strategy designed to effect his client’s interests. See, Commonwealth v. Laird, 555 Pa. 629, 726 A.2d, 346, 357 (1999)(Counsel was not ineffective lor failing to present mitigating evidence at the penalty phase concerning petitioner’s mental state and abusive childhood when he presented instead evidence that petitioner was a devoted and loving family man. “Counsel will not be deemed ineffective for pursuing a particular strategy, as long as the course chosen was reasonable.”)' The claim, therefore, was properly dismissed for failure to demonstrate in her pleadings and brief how she would prove by a preponderance of evidence that counsel “had no reasonable basis for his or her course of conduct.” Holloway, supra.⁵

In an attempt to escape a determination that she is not eligible for PCRA relief, Rivers states at the end of each of her penalty phase claims:

These errors violated the Pennsylvania and United States Constitutions, and were not harmless beyond a reasonable doubt. To the extent that he failed to properly preserve, raise and litigate this claim, prior counsel was ineffective and such ineffective assistance of counsel undermines confidence in the outcome of the proceeding.

Rivers’ brief at 66. Merely stating that there is something wrong with what counsel did, that his action violated the constitution and that it was not harmless error, does not meet the requirements of an ineffectiveness claim. Instead, the petitioner must state and demonstrate how she will prove by a preponderance of evidence “that counsel had no reasonable basis for his or her course of conduct.” Holloway, supra. In other words, it is not enough to say that there was something wrong with what counsel did; the petitioner must also demonstrate that there was no reasonable basis for counsel’s act.

Nowhere in the penalty phase of this case does Rivers demonstrate how she will prove that counsel could have had no reasonable basis for what he did, and she is not eligible for PCRA relief, therefore, on this claim or on any of her remaining penalty phase claims.

In sum, we hold that the ineffectiveness of counsel and constitutional error claims are dismissed either because they do not discuss the claims in the circumstances of the case, § 9543(a)(2)(i-ii), or because they do not demonstrate that counsel can have had no reasonable basis for his action. Further, all claims in the case are dismissed for the additional reasons that petitioner nowhere demonstrates that the claims she is making have not been waived or finally litigated, § 9543(a)(3),⁶ and also that she does not plead and demonstrate how she will prove that counsel can have had no rational strategic or tactical reason for failing to raise present claims earlier. Section 9543(a)(4).⁷

Twenty years ago, in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980), this court struggled with the problem of endless post-conviction claims brought pursuant to the Post-Conviction Hearing Act, the predecessor to the current PCRA. We were concerned with whether a petitioner could file endless post-conviction petitions simply by alleging that every lawyer before present counsel was ineffective in failing to raise the present claims. The fear was that in cutting off petitions for post-conviction relief, injustice might be done. My view was that in not cutting off post-conviction proceedings at some point, an injustice would be done, and that at the post-conviction stage, our real concern is not technical error, but whether the petitioner is innocent:

On subsequent PCHA petitions, our interest is to prevent the incarceration of innocent persons, not, as at earlier stages, to prevent law enforcement agencies from abusing their authority. Stone v. Powell, 428 U.S. 465, 484-496, 96 S.Ct. 3037, 3047-3053, 49 L.Ed.2d 1067 (1976), reh. denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1977). It may be that a person convicted of a crime has had several lawyers and that the performance of these lawyers was in some respect imperfect. But a criminal defendant is not entitled to a perfect trial and it seems likely that if the accused were to be represent by fifty lawyers, some aspect of the performance of each could be decried as “ineffective.” Both the accused and society are entitled to a final determination, an end to the proceedings that will be opened only in the case of a colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person.

Id. at 251-52, 420 A.2d at 437 (Flaherty, J., dissenting, emphasis in original).

Our analysis here must be somewhat different from Wat-lington in that the PCRA limits the number of post-conviction appeals which may be filed, and so the endless filing of petitions is not part of this case, but the analysis is similar to Watlmgton in that we are dealing with a post-conviction proceeding, where our concern is primarily to prevent the incarceration of innocent persons. That is why the requirements of discussing ineffectiveness claims in the context of the circumstances of the case, demonstrating that the claim is not finally litigated or waived, and demonstrating that counsel can have had no rational strategic or tactical reason for failing to raise the claim at an earlier stage of the proceedings are so important. These requirements are devices to ensure that the claims being made are the claims of an innocent person. If counsel may have been ineffective in some particular, but the facts of the case independent of the alleged ineffectiveness establish guilt beyond a reasonable doubt, the ineffectiveness cannot have affected the truth determining process so that no reliable adjudication of guilt or innocence could be made. And that is what the petitioner must demonstrate in order to be eligible for relief under the PCRA. If the claim has been finally litigated, petitioner has received the review he is entitled to. If the claim is waived, petitioner may still be eligible for review, but only if he complies with the pleading and proof requirements of ineffectiveness claims. And once again, pleading and proof requirements for ineffectiveness claims will involve, at least, a statement of the facts established at trial by independent evidence, and that, in turn, implicates the petitioner’s innocence. Finally, if the claim was not raised earlier, petitioner is entitled to a review of that claim only if he establishes that there can have been no rational tactical or strategic reason for not raising it earlier. If those extraordinary facts are established, we will review the claim because of a concern that petitioner may actually be innocent.

It has taken twenty years, but we have come full circle. We will no longer address the merits of claims which do not comply with the requirements of the PCRA.⁸

Affirmed.

Justice ZAPPALA files a concurring opinion. Justice CASTILLE files a concurring opinion. Justice NIGRO concurs in the result. Justice SAYLOR files a dissenting opinion joined by Justice CAPPY.

1 . Rivers’ guilt-phase claims are that (1) the trial court erred in failing the life-qualify the jury (2) the trial court improperly death qualified the jury; (3) the Commonwealth exercised peremptory challenges that were racially discriminatory; (4) trial counsel was ineffective in failing to request cautionary instructions concerning evidence of the appellant's other crimes and bad acts; (5) the trial court erred in preventing the defense from impeaching a Commonwealth witness; (6) the court erred in instructing the jury concerning prior convictions of Commonwealth witnesses; (7) trial counsel was inefiective in failing to request cautionary instructions with respect to inflammatory photographs of the deceased; (8) the irial court erred in lading to record the guilt and penalty phase charge conferences; (9) trial counsel was ineffective in failing to present the defense that the victim was killed by multiple perpetrators under circumstances which cast doubt on appellant’s participation.

2 . Evidence introduced at trial, in part, is that Rivers was employed as the nurse caretaker of the victim, a 74-year-old amputee who kept several thousand dollars in cash in her home. On the night of the murder, Rivers was smoking cocaine at the house of a friend located approximately two blocks from the victim's house. That evening Rivers rarr out of money to buy cocaine and left the home of her friend about 7:30 or 8:00 p.m. A neighbor was with the victim until 9:00 p.rtr. Rivers returned to the crack house about 10:30 or 11:00 p.m. that evening with a large number of fifty dollar bills stuffed in her shirt. Rivers offered to pay two of the people present to say that she had been at the crack house all day and night. Rivers also told a wonran at the crack house that the money came from beating and stabbing someone, and she asked this woman to dispose of a knife for her. A witness at the crack house testified that she saw blood stains on Rivers' white pants and yellow jacket and that Rivers became hysterical about the blood and asked for help wiping it off.. The Commonwealth established that for the geographic area near the crack house and the victim, there were no reported beatings or stabbings on the night of the murder from 4:00 p.m. through midnight of the next day. Additionally, when Rivers’ employer asked her whether she knew anything about the victim's death, Rivers replied "I didn't do anything to that lady,” and when asked whether she knew anything about the victim, Rivers replied "It's none of your business” and left the office.

In sum, as we found on direct review, the Commonwealth established that Rivers had access to the victim’s home; was in the vicinity on the night of the murder; was seen shortly after the murder in possession of a large amount of money, blood stained and boasting of having stabbed and robbed someone; and acted in a manner consistent with guilt after the homicide.

3 . We have discussed the guilt phase at length only with respect to Rivers' ineffectiveness of counsel claim because ineffectiveness of counsel claims are so commonly raised in PCRA petitions. All of Rivers’ guilt phase claims are dismissed as well pursuant to § 9543(a)(3) and (4), failure to plead and prove that the claims are not finally litigated or waived and failure to plead and prove that counsel’s failure to litigate the claim earlier cannot have been the result of any rational strategic or tactical decision. Her boilerplate assertion that any waiver is overcome by ineffectiveness of counsel in not raising the claim earlier is insufficient, for the pleading and proof of every ineffectiveness claim is deficient.

4 . In Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999) this court held that certain penalty phase issues which are not waived or otherwise forfeited are cognizable under the PCRA. In Chester we stated:

Accordingly, we hold that claims alleging a violation of the constitution of this Commonwealth or the United States, or alleging ineffective assistance of counsel, which affected the reliable adjudication of the penalty in a capital case are cognizable under the PCRA in a first PCRA petition.

733 A.2d at 1250.

5 . Mr. Justice Saylor, in dissent, would hold that Rivers is entitled to an additional post conviction hearing because defense counsel was ineffective in failing to present evidence of the defendant’s past mental illness, drug and alcohol abuse, and unfortunate childhood. In effect, he would create what amounts to a per se rule that whenever the defendant is able to present evidence of mental disturbance and an unfortunate life, counsel will be ineffective if he fails to introduce this evidence in support of the claim that the defendant was unable to conform her conduct to the law because of extreme mental or' emotional disturbance. 42 Pa.C.S. § 9711(e)(2),(3). Because so many intangibles'are involved, our law has always been that we will not second-guess trial counsel's trial tactics, so long as there is a reasonable basis for what trial counsel did or did not do. While Mr. Justice Saylor cites two federal cases and one state case in which psychiatric evidence is treated as exceptionally important, the federal courts and Illinois notwithstanding, it is not a scientific certainty that persons who may have suffered mental illness are incapable of conforming their conduct to the law. In fact, it is equally plausible that there are many people with personal histories equivalent to Rivers' who spend their entire lives in conformity with the law. It may be that upon hearing evidence of Rivers’ appalling background, jurors might decide that she is incapable of rehabilitation, and deserving of the harshest punishment available. On the other hand, jurors might also feel that a person who has made efforts to help herself is deserving of another chance. In any event, the lynchpin of Mr. Justice Saylor's view, that the history of mental disturbance, on this record, is, in and of itself, a passport to a mitigated penalty, is by no means a certainty, and we are in no position to substitute our judgment for that of trial counsel as to what is most likely to promote his client’s best interest.

6 . A boilerplate assertion that no claim is waived because counsel was ineffective in failing to raise all of the claims now made is insufficient where petitioner fails to demonstrate how, for each claim, she will prove counsel's ineffectiveness.

7 . Rivers claims also that she is entitled to a new PCRA hearing because the PCRA judge was biased and because cumulative error entitles her to relief. Finally, she claims that racial bias “infected” this proceeding and that this evidence was not available at trial. She does not claim, as she is required 1o do pursuant to § 9543(a)(2)(vi), that this new evidence would have changed the outcome had it been available at the time of trial and she does not present argument in support of her claim. That Rivers has previously filed a motion with this court for remand based on this claim does not change the pleading and proof requirements of the PCRA. Thus, the racial bias claim is dismissed for failure to meet the requirements of § 9543(a)(2)(vi), and all three claims are dismissed for failure to establish lack of waiver or final litigation and failure to establish that there can have been no rational strategic or tactical reason for failure to raise the issues at an earlier time.

8 . There is no conflict between our holding in this case and our holding in Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202, 2000 Pa. Lexis 401 (decided 2-22-2000). This case concerns what is required to get relief under the PCRA; Matrero concerns what pleading is required in order for us to consider whether relief is due.