Commonwealth v. Montalvo, N., Aplt

[J-59-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 678 CAP
:
Appellee : Appeal from the order of the Court of
: Common Pleas of York County, Criminal
: Division, dated January 29, 2013 at No.
v. : CP-67-CR-0000753-1999
:
: SUBMITTED: June 10, 2014
NOEL MATOS MONTALVO, :
:
Appellant :
OPINION
MADAME JUSTICE TODD DECIDED: April 27, 2015
This is a capital appeal from the order of the Court of Common Pleas of York
County denying Appellant Noel Matos Montalvo’s petition for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. For the reasons that
follow, we are constrained to vacate the order and remand this matter to the PCRA
court for further proceedings, as discussed below.
I. Factual and procedural background
Appellant is the brother of Milton Montalvo (“Milton”). In 1995, Milton and his
common law wife, Miriam Ascencio (“Miriam”), moved from Puerto Rico to York County,
Pennsylvania. The couple frequently fought, and, around March 1998, Milton moved
out of the couple’s apartment. On the evening of April 18, 1998, Miriam was seen at a
local bar with a friend, Nelson Lugo a/k/a Manuel Santana (“Nelson”). At some point
during the evening, Miriam and Nelson left the bar and walked to Miriam’s apartment.
Later that evening, Vincent Rice, Miriam’s next-door neighbor, was awakened sometime
after 11:30 p.m.1 by the sound of breaking glass on the common porch he shared with
Miriam. Rice reported hearing Milton shout “open the door,” after which he heard
additional noises coming from the apartment. The following day, April 19, 1998, Rice
looked through the window of Miriam’s apartment and observed a man lying on the
floor; at this point, he summoned the police.
When the police arrived at the scene, they observed that one pane of a four-pane
window in the door to Miriam’s apartment was broken; the broken pane was the closest
to the door lock. Upon entering the apartment, the officers discovered Nelson’s body in
the kitchen and Miriam’s body in the bedroom. Nelson had defensive wounds on his
hands, his fingers were nearly severed, and he had a lipstick inserted in his mouth.
Nelson’s autopsy revealed that he died from a stab wound to the chest. Miriam had a
broken nose, stab wounds to her eyes, and her head was nearly severed from her body.
She was naked from the waist down, and her underwear was around her face. She was
lying with her head on a pillow, and a high-heeled shoe was found under her buttocks.
Miriam’s autopsy revealed that she died from sharp force and blunt force injuries to her
head and neck.
According to the trial testimony of Chris Ann Arrotti, a chemist employed with the
Pennsylvania State Police, forensic testing was conducted on more than 70 items
collected from the crime scene; approximately 17 of those items contained traces of
human blood. Of the items that contained traces of human blood, two of the items
contained traces of blood which did not belong to either victim: a white cloth bag found
on a sofa bed near Miriam’s body, and a kitchen window blind. The blood on both of
1
The various witnesses at Appellant’s trial provided different, and often inconsistent,
estimations of the hour at which these events occurred.
[J-59-2014] - 2
those items was determined to belong to Milton Montalvo. Milton Montalvo’s blood also
was found on glass that remained in the broken window pane, and a hair collected from
Nelson’s hand was determined to belong to Milton Montalvo. There was no blood, hair,
or fiber evidence that linked Appellant to the scene of the murders.
An arrest warrant was issued for Milton, and, in 1999, he was captured in Florida,
and extradited to York County to stand trial for the murders of Miriam and Nelson.
Ultimately, he was convicted of two counts of first-degree murder and one count of
burglary, and, on February 14, 2000, he was sentenced to death. Approximately two
months before Milton was arrested, Detective Roland Comacho, purportedly based on a
statement given to him by Esther Soto, sought and obtained an arrest warrant for
Appellant, charging him as a possible accomplice or participant in the murders.
Appellant remained a fugitive until 2002, at which time he was discovered living under
an assumed name, with an altered appearance, in Hudson County, New Jersey.
Appellant was extradited to York County to stand trial, at which he was represented pro
hac vice by Francis Cutruzzula, Esquire.2 Frank Arcuri, Esquire served as local
counsel.
In his opening statement at Appellant’s trial, the prosecutor suggested that
Appellant wanted to kill Miriam because he “was angry with Miriam because the ties
with Milton had broken down,” and because Miriam knew that Appellant “was living in
this country under an alias having escaped from parole for automobile theft in Puerto
2
Attorney Cutruzzula testified at Appellant’s PCRA hearing that he met Appellant in the
“bull pen” of the Hudson County Court House, following Appellant’s arrest. When there
was no public defender available to handle Appellant’s extradition matter, the presiding
criminal judge asked Attorney Cutruzzula to “stand in” and Attorney Cutruzzula met with
Appellant in the jury room to discuss his extradition rights. Appellant agreed to waive
extradition, and Attorney Cutruzzula ultimately was retained to represent Appellant in
his homicide trial in Pennsylvania. N.T. PCRA Hearing, 7/11/11, at 5-6.
[J-59-2014] - 3
Rico.” N.T. Trial, 3/13/03, at 421. The Commonwealth further posited that the victims’
different injuries demonstrated that two different weapons were used − a knife and
some other blunt object − and, therefore, that there must have been two assailants.
In addition to the above-described testimony of Vincent Rice, Miriam’s next-door
neighbor, the Commonwealth presented at trial the testimony of Miriam’s downstairs
neighbor, Fedelio Morrell. Morrell testified that, on the night of the murders, sometime
between 2:00 and 2:30 a.m., he saw Milton at Miriam’s door, and heard him tell her to
open the door. Morrell also heard Milton shout that he had seen someone go into
Miriam’s apartment. Morrell recounted that, approximately 20 minutes later, he heard a
woman’s voice say “call the police, call the police,” id. at 603, and then he fell asleep.
Morrell testified that, 20 minutes after he fell asleep, he heard “noise on the floor and on
the walls and something being dragged.” Id.
The Commonwealth also presented Nici Negron, who operated a towing
business, as a witness. Negron testified that Milton called him at around midnight on
April 18, 1998, and when he arrived approximately one-half hour later at the location
Milton specified, he observed Milton, “a pregnant [woman], and Milton’s brother” inside
or nearby Milton’s Dodge van. Id. at 505-06.
Patricia Ascensio, Miriam’s niece, was also called as a witness by the
Commonwealth. Patricia testified that she and her boyfriend, Angel Santos (“Angel”),
went to Appellant’s apartment at approximately 9:00 p.m. on the evening of the murders
so that Appellant’s wife, who was known as “Ketty” or “Kathy,” could do Patricia’s hair.
Patricia stated that she saw Milton at the apartment at approximately 9:30 p.m., but that
Milton left at around 10:00 p.m. N.T. Trial, 3/13/03, at 483. Patricia testified that she
and Angel left the apartment at approximately 11:00 p.m., and the only individuals
present when they left were Appellant, Ketty, and Appellant’s son. Id.
[J-59-2014] - 4
As the Commonwealth was unable to locate Angel Santos at the time of trial, the
parties agreed to allow Angel’s statements to Detective Lisa Daniels to be introduced
through Detective Daniels’ testimony. According to the police report prepared by
Detective Daniels, Angel reported that he and Patricia were at Appellant’s apartment
with Appellant and Appellant’s wife at approximately 12:30 a.m. on the morning of April
19, 1998; that Milton arrived sometime later and appeared “upset,” “agitated,” “hyped,”
and “sweating profusely”; that Milton asked Appellant, and then Angel, for $20; that
Milton left the apartment between approximately 1:15 and 1:30 a.m. on the morning of
April 19; and that he and Patricia left the apartment at approximately 2:00 a.m. that
same morning. City of York Police Dep’t Supplement to Complaint Report, 4/19/98;
N.T. Trial, 3/13/03, at 580-81.3
The only evidence presented by the Commonwealth to connect Appellant to the
murders was the testimony of Esther Soto (“Esther”). Esther testified that, on the
afternoon of April 18, 1998, Milton visited the grocery store she operated with her
husband at the time, Miguel Soto (“Miguel”). Esther testified that Milton used the store’s
telephone to call Miriam about unemployment checks she had received in the mail, that
an argument ensued, and that she heard Milton shouting at Miriam over the telephone.
As Milton was shouting at Miriam, Appellant entered the store and approached Milton.
According to Esther, after Milton ended his telephone call, she heard him tell Appellant
3
Appellant claims that Angel confirmed the truth of the statements he made to police
during his April 19, 1998 interview, but, contrary to representations contained in a police
report prepared by Detective Comacho on February 1, 1999 in which Detective
Comacho described an interview with Angel and Patricia on that date, denied ever
speaking with police about the murders after his initial April 19, 1998 interview. In
support of this claim, Appellant submitted an affidavit from Alejandro Villasenor, a
paralegal with the Federal Public Defender which represented Appellant during his
federal habeas corpus proceedings, describing conversations he had with Angel.
[J-59-2014] - 5
that he wanted to kill Miriam. Appellant told Milton to “leave it to him,” and stated that
he would kill Miriam himself. N.T. Trial, 3/14/03, at 619.
Esther recounted that, later that evening, after she and Miguel were asleep,
Milton and Appellant arrived at their house. Esther stated that she remained in bed
while Miguel opened the door, and then she overheard Milton and Appellant describe to
Miguel how they murdered Miriam and Nelson. Esther also testified that she recalled
hearing Appellant tell her husband that he killed Miriam by cutting her throat, stabbing
her in the eyes, and kicking her as she lay on the floor. According to Esther, Milton and
Appellant wanted to stay at her house, but she and Miguel told them they could not
stay; Miguel then gave them some money, and Milton and Appellant stated they were
going to Florida. Id. at 623.
Esther claimed that, a day or so after the murders, she saw in the newspaper a
telephone number for individuals who had information regarding the murders, and that,
approximately two weeks after the murders, she called the police. Thereafter, Esther
gave a recorded statement to Detective Comacho, telling him that she had overheard
Milton tell Miguel that he killed Nelson, and that she overheard Appellant tell Miguel that
he killed Miriam. Id. at 626-28.
On cross-examination, defense counsel questioned Esther regarding her
testimony that she called the police two weeks after the murders, when, in fact, she did
not give a statement to Detective Comacho until December 12, 1998, nearly eight
months later. Although Esther initially indicated that she did not remember, id. at 660,
she then admitted that she only contacted police at that time because she was “trying to
get [her] van back” after it was taken into custody by Detective Comacho. Id. at 661.4
4
Specifically, at Appellant’s trial, Detective Comacho testified that police had entered
information regarding Milton Montalvo’s Dodge van into the National Crime Index
Computer (“NCIC”) system, but erroneously entered the license plate of Miguel Soto’s
(continuedL)
[J-59-2014] - 6
Additionally, after Esther admitted on direct examination that, when testifying at
Milton’s trial, she repeatedly stated that she did not remember any statements made by
Appellant, defense counsel asked Esther whether, in light of her changed testimony at
Appellant’s trial, she was admitting to lying during her testimony at Milton’s trial. Id. at
638. Esther repeatedly stated that she “doesn’t lie,” and she maintained that she did
not believe that claiming she didn’t remember something was the same as lying. Id. at
638-39. Defense counsel also confronted Esther with, inter alia, the fact that, at Milton’s
preliminary hearing on May 20, 1999, Esther testified that Milton, not Appellant, told her
and her husband on the morning of April 19, 1998 that Milton killed Miriam. Id. at 647.
Esther responded: “I get nervous that day. I was so nervous all the time I’m nervous.
I’m not the same person, okay.” Id. at 649.
When asked by defense counsel if she lied when she testified at Milton’s trial that
Detective Comacho had “forced” her to change her testimony at Appellant’s trial; that
Detective Comacho “forced her to give the statement” that she gave; that the detective
told her that if she didn’t “say what he said[,] my business would be closed and I would
(Lcontinued)
van, a Ford Aerostar. N.T. Trial, 3/18/04, at 199. As a result, when Miguel attempted to
obtain the required registration for his van, there was a “pop up NCIC hit” for the
homicide involving Milton. Id. at 199. Miguel was instructed by PennDot personnel to
go to the Lancaster City Police Department, where he was met by Detective Comacho
and another officer. Detective Comacho interviewed Miguel, and, upon “figuring out that
he had some sort of connection to Milton,” asked Miguel “what information . . . he had
about the homicide.” Id. at 200. According to Detective Comacho, Miguel stated that
his wife, Esther, “also had information around,” and the detective told Miguel he needed
to speak with Esther. Id. At that point, Detective Comacho drove to Miguel’s store,
where he took possession of Miguel’s van and placed it in the city garage. Detective
Comacho reiterated to Miguel at that time that he “needed to talk to Esther.” Id. at 201.
Several days later, Esther went in for an interview with Detective Comacho.
[J-59-2014] - 7
go to jail and I won’t see my kids,” id. at 639-40, Esther responded, “[f]or me that is not
lying.” Id. at 640. When asked if she saw Detective Camacho in the courtroom at
Appellant’s trial, Esther identified him, and when asked “is that the detective that forced
you to give this statement back in December of 1998?,” she replied: “[y]es.” Id. at 666.
Esther’s testimony also conflicted with the testimony given by her husband
Miguel Soto, a defense witness. Miguel testified that, in the early morning hours of April
19, 1998, his wife woke him up because someone was knocking at the door. N.T. Trial,
3/18/03, at 245. Miguel answered the door to Milton and Appellant. Id. When asked
what, if anything, Milton said to him when he opened the door, Miguel replied, “Milton
told me -- I don’t want to say this -- that he had killed his wife.” Id. Miguel testified that
Milton did not explain how he killed his wife, but simply stated that “he had problems
with the police because he had killed his wife,” and that “he had to leave and he wanted
to know if he could leave his brother -- and that’s when I found out [Appellant] was his
brother -- could stay at my house.” Id. Miguel testified that Esther was upstairs when
Milton made this statement. Id. at 246. After approximately 25 minutes, Miguel told
them he did not want any problems and that Esther did not want them staying in the
house, so they left. Id. at 247. When asked on cross-examination why he did not go to
the police, Miguel explained that he intended to go to the police, but Esther convinced
him not to do so because it would cause problems. Id. at 248-49. Miguel testified that
he told Detective Comacho that Milton admitted to killing his wife when Miguel was
interviewed by the detective nine months later, in November 1998, when he had
problems obtaining the registration for his vehicle. Id. at 263.
In March 2003, more than three years after Milton was convicted of two counts of
first-degree murder for the deaths of Miriam and Nelson, a jury convicted Appellant of
first-degree murder for the death of Miriam, second-degree murder for the death of
[J-59-2014] - 8
Nelson, conspiracy to commit murder, and burglary. At the penalty phase of trial, the
jury found two aggravating circumstances − that Appellant killed Miriam during the
perpetration of a felony, 42 Pa.C.S.A. § 9711(d)(6), and Appellant had been convicted
of another murder committed either before, or at the time of, the offenses at issue, 42
Pa.C.S.A. § 9711(d)(11).5 The jury also found two mitigating factors − that Appellant
had no significant history of prior criminal convictions, 42 Pa.C.S.A. § 9711(e)(1), and
Appellant was a good worker, attended church, and was a good son to his mother, 42
Pa.C.S.A. § 9711(e)(8) (the “catch-all” mitigator). Ultimately, the jury determined the
aggravating circumstances outweighed the mitigating circumstances, and
recommended a sentence of death.
On April 14, 2003, the trial court imposed a sentence of death in connection with
Miriam’s murder, a sentence of life imprisonment for Nelson’s murder, and concurrent
terms of 10 to 20 years incarceration each for burglary and conspiracy to commit
murder. Appellant filed a direct appeal to this Court, during which he was represented
by Gerald Anthony Lord, Esquire.6 On appeal, Appellant raised a variety of claims,
including claims alleging ineffectiveness of trial counsel. On September 24, 2008, this
Court affirmed Appellant’s judgment of sentence, holding, inter alia, that Appellant’s
ineffectiveness claims must be deferred to post-conviction proceedings pursuant to
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Commonwealth v. (Noel) Montalvo,
956 A.2d 926 (Pa. 2008).
5
In this regard, Appellant’s conviction for the murder of Nelson was used as an
aggravating factor for sentencing in Appellant’s conviction for the murder of Miriam.
6
On March 22, 2004, prior to sentencing, Mary R. Ennis, Esquire, entered her
appearance as counsel for Appellant, and Attorney Ennis filed an Amended Concise
Statement of Matters Complained of on Appeal on Appellant’s behalf. Thereafter,
Attorney Ennis was granted leave to withdraw as counsel, and, on May 17, 2007,
Attorney Lord was appointed to represent Appellant.
[J-59-2014] - 9
On July 27, 2009, Appellant filed a timely pro se PCRA petition. On November 5,
2009, Attorney Lord was granted leave to withdraw and Jeffrey Marshall, Esquire, was
appointed to represent Appellant. Attorney Marshall filed an amended PCRA petition on
Appellant’s behalf on February 1, 2010. Then, on April 29, 2011, Attorney Marshall filed
a supplement to the amended PCRA petition. Between March and September 2011,
the PCRA court, by Judge Sheryl Ann Dorney, conducted four days of hearings,7 and,
on January 29, 2013, by opinion and order, Judge Dorney dismissed Appellant’s
amended PCRA petition. On February 27, 2013, Appellant filed a notice of appeal to
this Court, and subsequently filed a statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On May 16, 2013, Judge Dorney issued an opinion
disposing of Appellant’s 15-plus claims raised on appeal, in many instances simply
referring to her January 29, 2013 opinion and order.
On August 23, 2013, Appellant filed a motion to amend and supplement his Rule
1925(b) statement. As Judge Dorney had retired effective August 1, 2013, the matter
was assigned to Judge Michael E. Bortner, who, on November 27, 2013, granted
Appellant’s motion to amend his 1925(b) statement. On December 2, 2013, Appellant
filed an “Amended and Supplemental Statement of Matters Complained of Under
[Pa.R.A.P. 1925(b)]”. On December 3, 2013, Judge Bortner filed a single-page order
denying Appellant PCRA relief, and stating, “[t]his Court defers to the reasoning and
decision entered by the Honorable Judge Dorney of the York County Court of Common
7
Witnesses who testified at the PCRA hearings included, inter alia, Attorney
Cutruzzula; Angel Santos; R. Robert Tressel, a crime-scene forensic expert; Detective
Comacho; Detective Dennis Williams, who conducted several witness interviews;
Detective Daniels, Attorney Ennis; Allen Fuentes, an interpreter who assisted with
Detective Williams’ interview of Negron; and Attorney Lord.
[J-59-2014] - 10
Pleas on January 29, 2013.” Order, 12/3/13. The matter is now before this Court,
wherein Appellant raises the following claims:
1. The court’s failure to provide Petitioner with the resources
necessary to develop and present evidence supporting his
claims involving the denial of his constitutional rights violated
Petitioner’s Sixth, Eighth and Fourteenth Amendment rights
and his rights under Article I, Sections 1, 6, 9, 13, 14, 25,
and 26 of the Pennsylvania Constitution.
2. The Court erred in denying relief where counsel’s abject
failure to investigate or prepare in any manner for
Petitioner’s penalty hearing violated Petitioner’s Sixth, Eighth
and Fourteenth Amendment rights and his rights under
Article I, Sections 1, 9, 13 and 26 of the Pennsylvania
Constitution.
3. The court erred in denying relief where, as a result of
court error, prosecutorial misconduct and ineffective
assistance of counsel, the sentencing jury was misinformed
that its sentencing verdict would be a recommendation but
that ultimate responsibility for Petitioner’s death sentence
rested elsewhere, in violation of 42 Pa. C.S. § 9711; Article I,
Sections 9 and 13; and the Sixth, Eighth, and Fourteenth
Amendment rights. Appellate counsel was ineffective for
failing to raise these claims.
4. The court erred in denying relief where, as a result of
prosecutorial misconduct, ineffective assistance of counsel,
and court error, irrelevant non-statutory aggravation was
presented and considered by the jury in reaching its
sentencing determination in violation of Petitioner’s Sixth,
Eighth and Fourteenth Amendment rights and his rights
under Article I, Sections 1, 6, 9 13, 14, 25 and 26 of the
Pennsylvania Constitution.
5. The court erred in denying relief where the penalty phase
jury instructions violated the Sixth, Eighth and Fourteenth
Amendments and Article I, Sections 1, 6, 9, 13, 14, 25 and
26 of the Pennsylvania Constitution.
[J-59-2014] - 11
6. The court erred in denying relief where the jury was not
instructed, in violation of the Sixth, Eighth, and Fourteenth
Amendments that, under Pennsylvania Law, a sentence of
life imprisonment means life without possibility of parole.
7. The court erred in denying relief where, as a result of
ineffective assistance of counsel, prosecutorial misconduct
and court error, the jury did not hear evidence of Petitioner’s
innocence and Petitioner was convicted and sentenced to
death despite his innocence in violation of Petitioner’s Sixth,
Eighth and Fourteenth Amendment rights and his rights
under Article I, Sections 1, 6, 9, 13, 14, 25 and 26 of the
Pennsylvania Constitution.
8. The court erred in denying relief where the prosecution’s
election to pursue inconsistent theories of prosecution by
first claiming that Petitioner’s co-defendant was the actual
murderer during the co-defendant’s trial and then arguing
that Petitioner was the murderer in Petitioner’s subsequent
trial violated Petitioners Sixth, Eighth and Fourteenth
Amendment rights and his rights under Article I, Sections 1,
6, 9, 14, 25, 26 of the Pennsylvania Constitution.
9. The court erred in denying relief where the selection of a
death qualified jury where Petitioner is innocent of death and
Milton Montalvo’s jury verdict precluded the Commonwealth
from seeking death, violated Petitioner’s Sixth, Eighth and
Fourteenth Amendment rights and his rights under Article I,
Sections 1, 9, 13, 14, 25 and 26 of the Pennsylvania
Constitution.
10. The court erred in denying relief where, as a result of
court error and ineffective assistance of counsel, Petitioner
was denied a fair and impartial jury in violation of his rights
under the Sixth, Eighth and Fourteenth Amendments and his
rights under Article I, Sections 1, 6, 9 and 13 of the
Pennsylvania Constitution.
11. The court erred in denying relief where Petitioner was
denied a fair and impartial jury in violation of his Sixth,
Eighth, and Fourteenth Amendment rights and his rights
under Article I, Sections 1, 9, 26 and 28 of the Pennsylvania
[J-59-2014] - 12
Constitution because the York County jury selection
procedure systematically excluded minorities.
12. The court erred in denying relief where numerous
instances of prosecutorial misconduct, individually and
collectively, deprived petitioner of his Sixth, Eighth, and
Fourteenth Amendment rights and his rights under Article I,
Sections 1, 6, 9, 13, 14, 25 and 26 of the Pennsylvania
Constitution.
13. The court erred in denying relief where the guilty phase
instructions violated Petitioner’s Sixth, Eighth and Fourteenth
Amendment rights. Trial and appellate counsels’ failures to
litigate these errors constituted ineffective assistance of
counsel.
14. The court erred in denying relief where, as a result of
court error, prosecutorial misconduct and ineffective
assistance of counsel, the jury was exposed to
constitutionally prohibitive identification testimony in violation
of Petitioner’s Sixth, Eighth and Fourteenth Amendment
rights and Article I, Sections 1, 6, 9, 13, 14, 25 and 26 of the
Pennsylvania Constitution.
15. The court erred in denying relief where the admission of
detective Comacho’s summary of Petitioner’s purported
statement to the police after his illegal arrest violated
Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights
and his rights under Article I, Sections 1, 9, 13, 14, 25, and
26 of the Pennsylvania Constitution.
16. The Court erred in denying relief because the
cumulative effect of the errors require grant of relief.
Appellant’s Brief at 4-6.8
8
Although Appellant identifies nineteen issues in his Statement of Questions, he
indicates that three of those issues were abandoned or duplicative of other claims.
Thus, we have not listed those issues herein, and only the remaining sixteen issues are
set forth.
[J-59-2014] - 13
II. Analysis
In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination is “supported by the record and free of legal error.” Commonwealth v.
Rainey, 928 A.2d 215, 223 (Pa. 2007). To be entitled to PCRA relief, an appellant must
establish, by a preponderance of the evidence, that his conviction or sentence resulted
from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); his claims
have not been previously litigated or waived, id. § 9543(a)(3); and the failure to litigate
the issue prior to or during trial or on direct appeal could not have been the result of any
rational, strategic, or tactical decision by counsel. Id. § 9543(a)(4). An issue is
previously litigated if “the highest appellate court in which [the appellant] could have had
review as a matter of right has ruled on the merits of the issue.” Id. § 9544(a)(2). An
issue is waived if appellant “could have raised it but failed to do so before trial, at trial, .
. . on appeal or in a prior state postconviction proceeding.” Id. § 9544(b).
In order to obtain relief on a claim of ineffectiveness of counsel, a PCRA
petitioner must satisfy the performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). In Pennsylvania, we have applied the Strickland test
by requiring that a petitioner establish that (1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by
whether there is a reasonable probability that the result of the proceeding would have
been different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). In other
words, prejudice is assessed in terms of whether the petitioner has shown that the
demonstrated ineffectiveness sufficiently undermines confidence in the verdict.
Commonwealth v. Fletcher, 896 A.2d 508, 516 n.10 (Pa. 2006). Counsel is presumed
to have rendered effective assistance, and, if a claim fails under any required element of
[J-59-2014] - 14
the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali,
10 A.3d 282, 291 (Pa. 2010).
Of critical relevance to the present appeal, this Court repeatedly has explained
that, in order to enable appellate review, PCRA courts are required to provide a “legally
robust discussion, complete with clear findings of fact where required.” Commonwealth
v. Dennis, 950 A.2d 945, 957 (Pa. 2008) (“A generic statement that the record proves
[PCRA] claims collectively non-meritorious tells us too little to support review.”); see
also Commonwealth v. Weiss, 986 A.2d 808, 816 n.4 (Pa. 2009) (“a fact-finding court
should support its determinations with sufficient explanations of the facts and law,
including specific citations to the record for all evidence on which it relies, and to the
legal authority on which it relies, to facilitate appellate review”); Commonwealth v.
Daniels, 963 A.2d 409, 435 (Pa. 2009) (holding that, where PCRA court failed to explain
the basis for its conclusion that claims were meritless, we could not conduct meaningful
appellate review).
Where a PCRA court fails to support its holding with sufficient explanations of the
facts and law, or fails to provide an adequate opinion addressing all of the claims raised
in a PCRA petition, including factual and credibility disputes, a remand is appropriate.
See Weiss, 986 A.2d at 816 (remanding the matter to the PCRA court to address the
“salient inquiry” of whether appellant received a fair trial, which will “necessarily entail a
review of all the evidence presented at trial”); Daniels, supra (remanding matter to
PCRA court for opinion addressing all of PCRA petitioner’s claims); Commonwealth v.
Peoples, 961 A.2d 109, 110 (Pa. 2008) (per curiam) (remanding to the PCRA court with
directions “to resolve areas of material factual controversy and credibility disputes via
numbered factual findings and to provide properly framed legal conclusions grounded in
the criteria governing claims of deficient attorney stewardship”). In addition, such a
[J-59-2014] - 15
remand may necessitate further proceedings below. See e.g. Peoples, supra;
Commonwealth v. Beasley, 967 A.2d 376, 391 (Pa. 2009) (upon remand to allow the
PCRA court to address issues relating to the appellant’s claims of ineffectiveness,
PCRA court may “take all action necessary to conform the record to the [layering
requirements of Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)], including the
admission of supplemental evidence.”); Commonwealth v. Roy Williams, 732 A.2d
1167, 1181 (Pa. 1999) (because PCRA court failed to make an independent credibility
determination regarding proposed testimony, and because the PCRA court as factfinder
is in a superior position to make such determinations, PCRA court was directed, on
remand, to conduct a hearing, and render its own, independent findings of fact and
conclusions of law regarding the credibility of the proposed testimony, as well as its
impact on the truth-determining process).
Unfortunately, the PCRA court’s opinion in the instant case is deficient. In its
January 29, 2013 Opinion and Order, issued after four days of hearings on Appellant’s
PCRA petition, the PCRA court inexplicably quoted nearly verbatim, and sequentially
addressed, the issues set forth in Appellant’s Pa.R.A.P. 1925(b) statements filed on
direct appeal. See Statement of Issues Pursuant to Pa.R.A.P. 1925(b), 12/18/03;
Amended Concise Statement of Matters Complained of on Appeal, 8/12/05. This
discussion comprised the first 54 pages of the PCRA court’s 55-page opinion.
Moreover, the PCRA court did not discuss Appellant’s PCRA petition, or the
appropriate standard for relief, until the last two pages of its opinion. The PCRA court’s
discussion in that regard reads, in its entirety:
In the Motion before the Court, the Defendant
primarily alleges ineffective assistance of all attorneys who
represented him prior to his current counsel. In addition, the
Defendant alleges prosecutorial misconduct, court error,
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illegal arrest and various constitutional violations as a result
thereof, and multiple constitutional violations.
In order to receive relief under the Post-Conviction
Collateral Relief Act, a Defendant must prove 1) that he has
been convicted of a crime, 2) that he is currently serving a
sentence, awaiting execution of a death sentence, or is
serving a sentence that must expire before he may begin
serving the sentence in question, 3) the conviction resulted
from an enumerated constitutional or statutory violation, 4)
the allegation(s) has/have not been previously litigated or
waived, and 5) the failure to litigate the issue(s) previously
was not the result of a rational, strategic or tactical decision
by counsel.
When alleging ineffective assistance of counsel, a
Defendant bears the burden of proof. Counsel is presumed
to be effective and the burden is on the Defendant to prove
otherwise. He must demonstrate that 1) the underlying
substantive claim(s) has/have arguable merit, 2) that there
was no reasonable basis for counsel’s action or failure to
act, and 3) the Defendant suffered prejudice because of
counsel’s ineffectiveness.
After considering the testimony from trial, the
testimony and exhibits from the hearings on the Defendant’s
present petition(s), arguments and briefs of counsel, we find
that the Defendant has failed to prove that he is entitled to
relief under the Post Conviction Collateral Relief Act.
PCRA Court Opinion, 1/29/13, at 54-55.
Furthermore, in response to Appellant’s initial Pa.R.A.P. 1925(b) statement,
Judge Dorney issued a 7-page opinion which largely referred back to her January 19,
2013 opinion. Further complicating matters, following Judge Dorney’s retirement and
the filing of Appellant’s amended supplemental Pa.R.A.P. 1925(b) statement, Judge
Bortner addressed the supplemental issues in a single-page order in which he merely
deferred to the prior opinions of Judge Dorney, which, as observed above, were
insufficient.
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As a result of the PCRA court’s failures, this Court has no findings of fact, no
determinations of credibility, and no legal conclusions regarding Appellant’s PCRA
claims; in short, we have no basis upon which to conduct meaningful appellate review.
In that there were more than 10 expert, lay, and other witnesses who testified at the
PCRA hearings, including those noted above, see supra note 7, the lack of any
credibility determinations by the PCRA court is particularly problematic in the instant
case. Thus, we are constrained to remand this matter to the PCRA court. We
recognize that, as Judge Dorney is no longer on the bench, the matter must be
assigned to another judge. Further, we acknowledge that the judge to whom the matter
is assigned will not have the benefit of having presided over Appellant’s PCRA
hearings. Thus, for those claims the assigned judge is unable to resolve on the existing
record, the judge is authorized to conduct additional hearings, and admit evidence, as
necessary. Peoples, supra; Beasley, supra; Williams, supra.
The order of the PCRA court is vacated, and the matter is remanded for further
proceedings consistent with this opinion.
Jurisdiction relinquished.
Mr. Chief Justice Saylor, Messrs. Justice Eakin, Baer and Stevens join the
opinion.
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