Commonwealth v. Hannibal, S., Aplt.

[J-92-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 705 CAP
:
Appellee : Appeal from the Order dated January 9,
: 2015 in the Court of Common Pleas,
: Philadelphia County, Criminal Division
v. : at No. CP-51-CR-0428351-1993.
:
:
SHELDON HANNIBAL, :
:
Appellant : SUBMITTED: January 20, 2016
OPINION
Justice Dougherty delivers the Opinion of the Court, except with respect to
Part VI. Justices Baer and Mundy join the opinion in full. Justices Todd
and Wecht join the opinion, except with respect to the reasoning contained
in Part VI, and Justice Todd files a concurring opinion in which Justice
Wecht joins. Chief Justice Saylor files a dissenting opinion, joined by
Justice Donohue.
JUSTICE DOUGHERTY DECIDED: November 22, 2016
Sheldon Hannibal appeals from the order of the Court of Common Pleas of
Philadelphia County denying his petition for relief from his death sentence, filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§9541–9546, following an
evidentiary hearing limited to one issue. For the reasons set forth below, we affirm.
We summarized the underlying facts in our opinion on direct appeal affirming
appellant's sentence of death. Commonwealth v. Hannibal, 753 A.2d 1265 (Pa. 2000).
The facts pertinent to the current appeal are that on October 25, 1992, appellant and
codefendant, Larry Gregory, following an argument with the victim, Peter LaCourt, about
the authenticity of a gold chain, took the chain and pistol-whipped LaCourt. LaCourt
attempted to flee but stopped when appellant threatened to shoot him. LaCourt
dropped to his knees, put his hands behind his head and appellant shot him six times,
killing him. Fifteen-year-old Tanesha Robinson witnessed the robbery and beating,
heard the gunshots as she fled the scene, and later gave a statement to police
implicating appellant and codefendant. She also testified at their preliminary hearings.
On August 4, 1993, however, she and two of her female friends were murdered
execution-style (via close-range gunshots to the head) in an apartment located in the
same housing development where LaCourt was murdered.
Appellant and codefendant were charged with the murder of LaCourt and were
tried together. At trial, two witnesses testified concerning a plot to murder Robinson to
prevent her from testifying at trial. Terrence Richardson testified he was present when
codefendant and his brother gave two other men a .357 revolver and paid them $2,000
to kill Robinson, directing them to “be fast about it” and “don’t leave [any] witnesses.”
N.T. 3/3/94 at 73. James Buigi testified he shared a prison cell with appellant in the fall
of 1993 and appellant confided to him he shot and killed LaCourt during a robbery.
Appellant additionally confided to Buigi he told “his friends” he needed Robinson “out of
the way” because she was “the only witness that can hurt me in the trial.” N.T. 2/28/94
at 122. Appellant told Buigi “my boys are loyal to me. They took care of that for me.” Id.
Appellant explained to Buigi his boys “found [Robinson] and shot her,” and they killed
the other females in the apartment because “they [were] not going to leave two
witnesses behind[.]” Id. at 123.
Appellant testified at trial he did not know LaCourt or remember where he was on
the night LaCourt was murdered; he did not have an altercation with LaCourt; he did not
[J-92-2015] - 2
take a chain from him; he did not own a gun or shoot LaCourt; he never shared a cell
with Buigi and never discussed anything with him. Appellant also presented three
character witnesses who testified to his reputation as a peaceful, law-abiding citizen.
The witnesses were cross-examined regarding their knowledge of appellant’s criminal
record.
The jury convicted appellant and codefendant of first-degree murder. At the
ensuing joint penalty phase proceedings, the guilt phase evidence was incorporated.
Appellant testified and also presented the testimony of his aunt and his girlfriend who
described him as patient, hard-working and a good father to his children. The jury found
one statutory aggravating circumstance, 42 Pa.C.S. §9711(d)(6) (killing committed
during perpetration of felony), and no statutory mitigating circumstances, rejecting
appellant’s assertion of the applicability of the age and catch-all mitigators, 42 Pa.C.S.
§9711(e)(4), (e)(8), and thus, the jury sentenced appellant to death.1
On appellant’s direct appeal, which preceded Commonwealth v. Grant, 813 A.2d
726 (Pa. 2002), appellant was represented by new counsel, and this Court afforded
appellant unitary review of claims of trial court error as well as claims of trial counsel’s
ineffectiveness during the guilt and penalty phases.2 Ultimately, we affirmed the
1
The jury convicted codefendant of first-degree murder as well; he was sentenced to
life imprisonment and the Superior Court affirmed the judgment of sentence. There are
no issues in this appeal regarding codefendant.
2
Before Grant, this Court required new counsel to raise claims of previous counsel's
ineffectiveness at the first opportunity after new counsel entered the case, which was
often on direct appeal. See Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977). This
rule was subsequently abrogated in Grant, which held claims of ineffective assistance of
counsel generally should be deferred until collateral review. Grant, 813 A.2d at 738
(overruling Hubbard). Thus, in direct appeals decided prior to Grant, such as this, new
counsel on appeal was obligated to raise claims of trial counsel’s ineffectiveness or risk
having them later be deemed waived on PCRA review.
[J-92-2015] - 3
judgment of sentence. Relevant to the issues on this appeal, we rejected appellant’s
substantive claim of the denial of a fair trial based on the introduction of evidence linking
him to the murder of Tanesha Robinson, finding her murder was part of the history of
the case and was admissible to show appellant’s consciousness of guilt. For the same
reason, we rejected his derivative claim of trial counsel’s ineffectiveness for failing to
object to the evidence about Robinson’s murder. We additionally rejected appellant’s
claim of counsel’s ineffectiveness for failing to subpoena prison records, which allegedly
would have shown Buigi and appellant had not been cellmates, because we determined
appellant failed to show such records existed. We also determined the trial court did not
err in its instruction to the jury regarding the element of specific intent to kill as it related
to first-degree murder and accomplice liability. Hannibal, 753 A.2d at 1269-71. Finally,
we dismissed appellant’s claim of trial counsel’s ineffectiveness for failing to “obtain
psychiatric assistance at the penalty phase” because appellant failed to indicate “what a
psychiatric witness would have stated if one had been called.” Id. at 1272 n.11.
Appellant filed a timely pro se PCRA petition in 2001, which was assigned to
former Judge Willis Berry, Jr. for disposition as the trial judge, the Honorable Eugene H.
Clarke, Jr. (now deceased), had retired. Unfortunately, considerable delay ensued. An
amended petition was filed by counsel in 2005, the Commonwealth filed a motion to
dismiss in 2010, and a number of additional pleadings were filed by both sides. In all,
Judge Berry oversaw appellant’s PCRA litigation for about eleven years, but retired from
the bench without scheduling a hearing or issuing a decision. In 2012, the matter was
reassigned to the Honorable Glenn B. Bronson who reviewed the amended petition,
which contained sixteen issues, the motion to dismiss and the supplemental pleadings.
The court determined the claims were without merit and issued notice of its intent to
dismiss the petition without a hearing, to which appellant filed a response and the
[J-92-2015] - 4
Commonwealth filed an answer. The parties then agreed to an evidentiary hearing on
the layered issue of trial counsel’s alleged ineffectiveness for failing to present penalty
phase mitigation evidence regarding appellant’s cognitive functioning, and appellate
counsel’s failure to properly litigate the claim on appeal.
On July 18, 2014, Shawn Nolan, Esquire, Chief of the Capital Habeas Corpus
Unit of the Federal Community Defender Office, entered his appearance for appellant
and a three-day hearing was conducted shortly thereafter, on July 28, 29, and 31.
Appellant presented neuropsychologists Dr. Carol Armstrong and Dr. Barry Crown, both
of whom offered expert testimony, based on their tests and examinations of appellant,
that he suffered from organic brain damage, most likely originating in his early
developmental period, resulting in cognitive dysfunction and disability. Moreover, both
experts testified they reviewed school, work and forensic records existing at the time of
appellant’s trial which, in their opinions, raised red flags indicating a neuropsychological
exam should have been performed. Among other things, the records revealed
appellant, who lived in Trinidad until his early teenage years, was illiterate upon entering
his first year of schooling in the United States (ninth-grade in Philadelphia), and read at
only the third-grade level two years later.
In response, the Commonwealth presented neuropsychologist Dr. Thomas
Swirsky-Sacchetti, who offered expert testimony that his testing and examination
revealed appellant was of low-average intelligence but had no brain damage of any
kind. Dr. Swirsky-Sacchetti criticized the opinions of appellant’s experts based upon
their methodologies and test interpretations, and specifically criticized their opinions that
appellant’s inability to read at an appropriate age level was indicative of brain damage
or anything other than his low-average intelligence combined with a lack of education.
[J-92-2015] - 5
Trial counsel, Thomas Q. Ciccone, Esquire, was deceased when the hearing was
conducted, and direct appeal counsel, David M. McGlaughlin, also did not testify.3 The
PCRA court determined appellant’s forensic, school and Job Corps work records were
readily available to trial counsel who should have been reasonably alerted by the
reports to pursue neuropsychological testing.4 However, the court concluded appellant
failed to show prejudice. As will be discussed in more detail below, the PCRA court
credited Dr. Swirsky-Sachetti’s testimony opining appellant had no brain damage and
did not deem credible the contrary testimony of Drs. Armstrong and Crown. The court
dismissed the petition. Appellant appealed to this Court raising fourteen principal
claims. The PCRA court prepared a Pa.R.A.P. 1925(a) opinion addressing the claims.
The issues raised in appellant’s brief to this Court correspond with the claims he raised
in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal.5
3
Attorney Ciccone died in 2006. Attorney McGlaughlin apparently was not subpoenaed
to appear at the PCRA hearing and there is no affidavit in the record reflecting what his
testimony would have been had he been called as a witness respecting direct appeal
strategy.
4
Appellant dropped out of school in the tenth grade to attend a Job Corps program in
West Virginia where he learned bricklaying. He had good reports regarding his work
skills, but it was noted he read only at a third-grade level. A mental health evaluation
conducted in January 1994 listed an Axis II assessment of Personality Disorder with
paranoid and anti-social features.
5
Appellant’s issues on appeal are ordered as follows: (1) the PCRA court erred in
denying the petition without granting an evidentiary hearing on all claims; (2) the
Commonwealth suppressed material impeachment evidence showing appellant and
Buigi were not cellmates and counsel were derivatively ineffective; (3) the
Commonwealth failed to disclose material impeachment evidence regarding Buigi’s
juvenile record for crimen falsi and use of aliases, and counsel were derivatively
ineffective; (4) Buigi was an agent for law enforcement and interrogated appellant in the
absence of counsel, violating appellant’s rights, and counsel were derivatively
ineffective; (5) the trial court erroneously instructed the jury it could find appellant guilty
of first-degree murder if it found he or codefendant possessed the specific intent to kill,
and appellate counsel was ineffective for failing to properly litigate this issue; (6) trial
counsel was ineffective for opening the door to admission of appellant’s prior criminal
(continued…)
[J-92-2015] - 6
I. Review Standards
We review a ruling by the PCRA court to determine whether it is supported by the
record and is free of legal error. Commonwealth v. Blakeney, 108 A.3d 739, 748-49
(Pa. 2014), citing Commonwealth v. Spotz, 47 A.3d 63, 75 (Pa. 2012). Our standard of
review of a PCRA court’s legal conclusions is de novo. Id. at 749.
To be entitled to PCRA relief, appellant must establish, by a preponderance of
the evidence, his conviction or sentence resulted from one or more of the enumerated
errors in 42 Pa.C.S. §9543(a)(2). These errors include a constitutional violation or
ineffectiveness of counsel, which “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” Id. Additionally,
appellant must show his claims have not been previously litigated or waived, 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.” 42 Pa.C.S.
(…continued)
record and for failing to object to the use of that record during the penalty phase; (7) the
Commonwealth introduced evidence of appellant’s alleged involvement in Robinson’s
murder; counsel were ineffective for failing to litigate this issue; the Commonwealth
failed to disclose material exculpatory evidence showing appellant had not been
involved in that homicide; and counsel were derivatively ineffective; (8) trial counsel was
ineffective for failing to investigate, develop and present mitigating evidence of
appellant’s background, brain damage and mental health impairments at the penalty
phase, and appellate counsel was derivatively ineffective; (9) the sole aggravating
circumstance is invalid under Pennsylvania law and the United States Constitution; (10)
the trial court erroneously failed to instruct the jury that life imprisonment is without
possibility of parole, and counsel were derivatively ineffective; (11) appellant’s rights to
a fair sentencing proceeding and individualized consideration of aggravation and
mitigation were violated by the joint proceeding with codefendant, and counsel were
derivatively ineffective; (12) Pennsylvania violated the Vienna Convention of Consular
Relations by failing to inform the Republic of Trinidad and Tobago of appellant’s case,
and by failing to inform appellant of his right to contact the Trinidadian embassy, and
counsel were derivatively ineffective; (13) trial and appellate counsel were ineffective to
the extent they failed to raise the above issues; and (14) cumulative prejudice.
[J-92-2015] - 7
§9543(a)(3), (a)(4). An issue is previously litigated if “the highest appellate court in
which [appellant] could have had review as a matter of right has ruled on the merits of
the issue.” 42 Pa.C.S. §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.” 42 Pa.C.S. §9544(b).
Most of appellant’s issues are cognizable only as ineffective assistance of
counsel claims. In analyzing such claims, we begin with the presumption counsel is
effective. Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). To prevail on an
ineffectiveness claim, appellant must satisfy, by a preponderance of the evidence, the
performance and prejudice standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). In Pennsylvania, we have applied Strickland by looking to three elements an
appellant must establish: (1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3) appellant 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. See
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).6
Given the timing of appellant’s direct appeal and the fact new counsel litigated
claims of trial counsel’s ineffectiveness on that appeal, his present claims sounding in
trial counsel’s ineffectiveness may implicate PCRA waiver, albeit the claims are
6
Appellant, who is represented by federal counsel, makes clear he is raising federal
Sixth Amendment claims under Strickland, obviously with an eye toward federal habeas
corpus review if relief is denied here. This Court has made clear the Pennsylvania
standard for ineffectiveness is the same as Strickland, albeit we divide the performance
element into two sub-components. See, e.g., Commonwealth v. Laird, 119 A.3d 972,
978 (Pa. 2015).
[J-92-2015] - 8
cognizable as claims of appellate counsel’s ineffectiveness, to the extent appellant has
“layered” the claims to account for both levels of prior representation. Respecting such
layered claims, appellant must demonstrate not only that trial counsel was ineffective
under the Strickland test, but that appellate counsel also was ineffective. See
Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003). See also Commonwealth v.
Ali, 10 A.3d 282, 292 (Pa. 2010). To the extent appellant faults direct appeal counsel
for the manner in which he briefed preserved claims or claims of trial level
ineffectiveness, those claims are not “layered,” but focus directly on appellate counsel’s
performance under Strickland and its relevant progeny.
A court is not required to analyze the elements of an ineffectiveness claim in any
particular order of priority; if a claim fails under any necessary element of the Strickland
test, the court may proceed to that element first. Robinson, 82 A.3d at 1005, citing
Strickland, supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). In
addition, for purposes of efficiency, we may begin by assessing the merits of a defaulted
underlying claim because, if we deem the claim meritless, neither trial nor appellate
counsel could be found ineffective.
II. Failure to conduct evidentiary hearing on all claims
Although appellant sets forth this claim in his questions presented as a stand-
alone issue, he includes no stand-alone discussion of the issue, but instead weaves the
issue into the arguments presented for a number of his underlying claims. Accordingly,
we will address the propriety of the court’s dismissal of claims without a hearing as
necessary when they arise in the context of the discrete claims presented. We
preliminarily note the PCRA court has discretion to dismiss a petition without a hearing
when the court is satisfied “‘there are no genuine issues concerning any material fact,
[J-92-2015] - 9
the defendant is not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings.’” Commonwealth v. Roney, 79 A.3d
595, 604 (Pa. 2013), quoting Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011),
quoting Pa.R.Crim.P. 909(B)(2). “To obtain reversal of a PCRA court's decision to
dismiss a petition without a hearing, an appellant must show that he raised a genuine
issue of fact which, if resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.” Roney, 79 A.3d at 604–05,
quoting Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa. 2004).
III. Claims regarding testimony of James Buigi
A. Brady7 Claims (and ineffectiveness overlay)
-1-
Appellant disputes the veracity of Buigi’s testimony claiming he and appellant
were cellmates housed together in Cell 50 at the Philadelphia Industrial Correctional
Center (PICC). At trial, appellant testified and claimed they were not cellmates at PICC;
on cross-examination, appellant testified he was housed in Cell 50 during the relevant
period, but his cellmate was someone named June. In rebuttal, the Commonwealth
presented two prison guards who testified appellant and Buigi had been cellmates.
Appellant now claims PICC housing records attached to his amended PCRA
petition show he was in Cell 19 while Buigi was housed in Cell 50; he also asserts the
Commonwealth’s failure to disclose these records was a Brady violation. Appellant
insists the records were material, exculpatory “and/or” impeachment evidence,
Appellant’s Brief at 30, and he maintains the Commonwealth deliberately failed to
7
Brady v. Maryland, 373 U.S. 83 (1963).
[J-92-2015] - 10
disclose the records at trial and on direct appeal.8 Appellant argues that had the prison
records been disclosed to the jury, the veracity of Buigi’s testimony would have been
undermined. He further asserts it is “reasonably likely” the guilt and penalty phases of
the trial would have had different outcomes because Buigi’s testimony was the only
evidence tying appellant to the murder of LaCourt and involvement in the plot to murder
Robinson. Id. at 31. Appellant argues, “Given the Commonwealth’s reliance on Mr.
Buigi, had Mr. Buigi’s testimony been impeached, it is reasonably likely that one juror
would have had a reasonable doubt of [a]ppellant’s guilt or would have voted for life at
[the] penalty [phase].” Id. In the alternative, appellant alleges trial and appellate
counsel were ineffective for failing to investigate the records and subpoena them.
Appellant also maintains, at a minimum, he is entitled to a hearing on the claim.
Initially, contrary to appellant’s assertion, the record shows Buigi’s testimony was
not the only evidence tying appellant to the killing of LaCourt. At trial, Barbara Halley,
who was with LaCourt when he was accosted by appellant and codefendant, identified
appellant as the person who took Lacourt’s gold chain, refused to return it, and began
beating LaCourt. Halley further testified she ran to a security station in the building to
report a robbery and then heard gunshots. When she, the security guard, and police
officers returned to the scene, appellant was gone and LaCourt was dead.
Moreover, Tanesha Robinson’s preliminary hearing testimony was read into the
record at appellant’s trial. Robinson had testified appellant had a gun, robbed LaCourt,
beat LaCourt with the gun and threatened to shoot him if he fled. Robinson saw
8
Appellant alleges the Assistant District Attorney (ADA) assigned the case on direct
appeal corresponded with a Philadelphia Prisons official asking whether appellant and
Buigi had ever shared a cell and received a reply the two had been housed on the same
cellblock but not in the same cell. Copies of the correspondence are attached to the
PCRA petition. Appellant alleges this correspondence was deliberately withheld.
[J-92-2015] - 11
LaCourt kneel and place his hands on his head. She also testified codefendant was
armed and present at the scene, and she heard gunshots as she fled. She ran to her
cousin’s apartment, looked out the window, and saw appellant and codefendant put
something in the trunk of a car before driving off.
In response, addressing the alleged failure to disclose the PICC prison housing
records at trial, the Commonwealth asserts the claim is waived to the extent it was not
presented on direct appeal and is previously litigated to the extent it was presented on
direct appeal. Moreover, the Commonwealth asserts the claim is meritless because
appellant proffered no evidence the Commonwealth possessed the records; the records
were equally available to the defense; the records were not exculpatory; and there was
no reasonable probability of a different outcome at trial had the records been
introduced.
With respect to the alleged failure to disclose the correspondence between the
ADA and the prison official on direct appeal, the Commonwealth asserts the letter from
the ADA merely requesting the information was in no way exculpatory. The
Commonwealth further stresses the reply received from the prison official addressed a
period of time before appellant and Buigi were housed in PICC. Thus, the information
provided showed the men were housed in the same cellblock but in different cells at
Holmesburg Prison from August 31, 1993 to October 14, 1993, and says nothing about
their circumstances during the relevant time period at PICC.9 With regard to the claims
of ineffectiveness based on the prison records, the Commonwealth asserts they do not
satisfy the arguable merit prong of the ineffectiveness analysis.
9
Subsequently, on May 14, 2013, a Philadelphia Prisons official prepared an affidavit
stating his review of the records, which were incomplete, indicated appellant was never
housed in Cell 50 while at PICC.
[J-92-2015] - 12
The PCRA court determined appellant could have raised his Brady-based
theories on direct appeal but did not; thus, they are waived. The court further explained,
on direct appeal, appellant raised a claim of trial counsel’s ineffectiveness for “failing to
subpoena prison records that would have shown that Buigi and [appellant] were never
actually cellmates …[but t]hat claim was rejected by the Supreme Court on the ground
that [appellant] failed to prove the records exist.” PCRA Court Op. at 8. The court
further reasoned, if the records existed and showed appellant was not in Cell 50, the
records would have contradicted appellant’s testimony at trial indicating he had been in
Cell 50, but shared the cell with someone other than Buigi. Ultimately, the court
reasoned the records were not material under Brady because, had they been
introduced, they would not have affected the outcome of trial.
To succeed on a Brady claim, the defendant must show: (1) evidence was
suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching,
was favorable to the defendant; and (3) prejudice resulted. A Brady violation exists only
where the suppressed evidence is material to guilt or punishment, i.e., where there is a
reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different. Commonwealth v. Daniels, 104 A.3d 267, 284
(Pa. 2014), citing Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa. 2008). Importantly,
Brady claims may be subject to waiver. See Roney, 79 A.3d at 609-12 (several Brady
claims deemed waived on PCRA appeal for failure to raise them at trial or on direct
appeal), citing Commonwealth v. Chmiel, 30 A.3d 1111, 1129-30 (Pa. 2011).
Here, the claim regarding the housing records from PICC raised on direct appeal
sounded in trial counsel’s ineffectiveness for failing to subpoena the records from prison
authorities, a claim rejected as unsubstantiated by this Court. Appellant raised no
Brady claim at trial or on direct appeal, even though it is apparent appellate counsel, at
[J-92-2015] - 13
least, had identified the underlying issue. Accordingly, the iteration of the present claim
sounding in Brady is waived.
Furthermore, and relatedly, appellant’s delineation of the Brady claim
undermines its viability — if the records were available by serving a subpoena on the
prison records custodian, as appellant asserts, then the records obviously were
accessible to the defense and were not suppressed by the Commonwealth. See
Commonwealth v. Carson, 913 A.2d 220, 245 (Pa. 2006) (“No Brady violation can occur
where the evidence is available to the defense through non-governmental sources, or,
with reasonable diligence, the defendant could have discovered the evidence.”).10
Turning to appellant’s ineffectiveness theory, on direct appeal, this Court
dismissed appellant’s claim of trial counsel’s ineffectiveness for failing to subpoena the
records. Accordingly, the present assertion of trial counsel’s ineffectiveness for failing
to procure the records is barred by the PCRA’s prior litigation provision.
Appellant’s stand-alone claim of appellate counsel’s ineffectiveness also fails.
Appellant claims direct appeal counsel was ineffective for failing to show the records
existed, i.e., by failing to obtain the records via subpoena. Had counsel done so,
appellant claims, he could have shown trial counsel was ineffective for failing to obtain
and use the records to impeach Buigi’s testimony. However, as the Commonwealth
points out, the records in question are inaccurate on their face, containing several
obvious errors. For example, the print-out for movement in Cell 50 during the relevant
period appears to indicate four prisoners simultaneously occupied a single bunk of a
two-bed cell for several weeks. Moreover, appellant’s trial testimony indicating he was
10
Notably, the trial in this case predated the decision in Kyles v. Whitley, 514 U.S. 419
(1995), which extended the Brady duty to disclose information in the possession of
police agencies; this further undermines appellant’s Brady claim. See Commonwealth
v. Burke, 781 A.2d 1136 (Pa. 2001).
[J-92-2015] - 14
in Cell 50, when the records indicate he was not, and the contrary testimony of the
guards who indicated he shared the cell with Buigi during the relevant time, significantly
undermine the assertion the records could have been effective and difference-making
tools to impeach Buigi’s testimony. Appellant, in short, fails to show the claim of
appellate counsel’s ineffectiveness based on a failure to obtain the records has
arguable merit under the Strickland/Pierce test, and there is no issue of material fact
warranting an evidentiary hearing on the question.
-2-
Appellant next alleges the Commonwealth failed to “disclose material exculpatory
information” regarding Buigi’s allegedly extensive and substantial record for crimen falsi
juvenile adjudications and adult criminal convictions, and that Buigi used a number of
aliases, including Tim Burgess and Brian Gilmore, as reflected not only in Buigi’s
juvenile record, but in his adult criminal record, and in the prison housing records
discussed above. Appellant’s Brief at 34, 35. Specifically, appellant argues confidence
in the verdict is undermined because had the Commonwealth disclosed Buigi’s record
for crimen falsi and his use of aliases, trial counsel could have effectively impeached
him, raising doubts about his veracity and making it “reasonably likely” the jury would
have viewed his testimony with suspicion and returned a different verdict. Id. at 35.
Alternatively, appellant alleges derivative ineffectiveness of trial and appellate counsel
for failing to discover these records.
The Commonwealth maintains appellant failed to raise this claim of error in his
concise statement of matters complained of on appeal. Our review of the certified
record confirms appellant made no specific reference to Buigi’s adult use of aliases or to
[J-92-2015] - 15
his adult criminal record in his Rule 1925(b) statement.11 Accordingly, we will confine
our review only to the claims resting on Buigi’s juvenile adjudications and juvenile use of
aliases. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are waived.”);
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues not raised in a
Pa.R.A.P. 1925(b) statement will be deemed waived.”), quoting Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998). See also Commonwealth v. Mason, 130 A.3d 601, 635-
36 (Pa. 2015) (“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”) (citing Pa.R.A.P. 302(a)).
With respect to Buigi’s juvenile record, the PCRA court noted that, prior to July
12, 1995, “juvenile adjudications were inadmissible for impeachment purposes.” PCRA
Court Op. at 11, citing Commonwealth v. McKeever, 689 A.2d 272, 274 (Pa.Super.
1997), citing Commonwealth v. Katchmer, 309 A.2d 591, 594 (Pa. 1973). Because the
juvenile adjudications were inadmissible at the time of trial, the court determined the
underlying claim of the Commonwealth’s alleged failure to disclose them lacked merit,
and counsel could not be faulted for failing to raise a meritless claim. We note, although
the General Assembly subsequently amended 42 Pa.C.S. §6354(b)(4) to permit juvenile
adjudications to be used for impeachment purposes, counsel cannot be deemed
ineffective for failing to predict changes in the law. See Commonwealth v. Fletcher, 986
A.2d 759, 801 (Pa. 2009), citing Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa.
2004).
11
The issue in appellant’s concise statement apparently corresponding to the present
claim on appeal alleges “Mr. Hannibal was denied due process and the effective
assistance of counsel because the Commonwealth failed to disclose material
impeachment evidence regarding the juvenile record of James Buigi, and counsel failed
to investigate, obtain, and present such evidence.” Appellant’s Pa.R.A.P. 1925(b)
Statement at ¶(B)(2).
[J-92-2015] - 16
Nevertheless, appellant claims the PCRA court erroneously overlooked
Commonwealth v. Slaughter, 394 A.2d 453, 458-59 (Pa. 1978), which recognized the
propriety of the limited use of a witness’s probationary status as a juvenile delinquent to
probe the witness’s possible bias on cross-examination. Id., citing Davis v. Alaska, 415
U.S. 308 (1974) (right of confrontation requires defendant in state criminal case be
permitted to cross-examine witness to probe possible bias deriving from witness's
probationary status as juvenile delinquent, notwithstanding testimony would conflict with
state’s asserted interest in preserving confidentiality of juvenile delinquency
proceedings). Appellant’s reliance on Slaughter is misplaced as the decision in fact
reiterates the former general rule prohibiting the use of juvenile adjudications for crimen
falsi offenses to impeach a witness’s credibility, but recognizes the High Court’s
exception, applicable to the states, permitting cross-examination regarding a witness’s
probationary status as a juvenile delinquent to show potential bias, presumably the
witness’s hope for favorable treatment by the state in exchange for his or her testimony.
Accordingly, appellant’s derivative claims of ineffectiveness based on the failure to
attempt to impeach Buigi with his juvenile record for crimen falsi adjudications and the
use of aliases, to impeach his credibility, must fail. See Gribble, 863 A.2d at 464.
B. Sixth Amendment right to counsel during prison
interrogation (ineffectiveness overlay)
Appellant claims his right to counsel during government interrogation was
violated when Buigi allegedly agreed to act as an informant before he then deliberately
initiated the prison conversation in which appellant incriminated himself. Appellant
claims trial counsel was ineffective for not challenging the admissibility of Buigi’s
testimony on that basis, and appellate counsel was ineffective for failing to raise the
ineffectiveness claim on appeal. Specifically, appellant claims although Buigi testified
[J-92-2015] - 17
that he did not initiate contact with police until after appellant incriminated himself,
prison records show Buigi met with police a month before the incriminating conversation
“for the purpose of being interviewed in regards to a homicide.” Appellant’s Brief at 39.
Appellant additionally claims Buigi was not merely a passive listener, but elicited
appellant’s confessions by urging “if you want me to help you with your case, you got to
tell me a little bit more about it.” Id. at 40, quoting N.T. 2/28/94 at 112. Appellant
alleges Buigi “then relayed the information [appellant disclosed] to Detective Rheinhold
and the prosecution in exchange for leniency in his open cases.” Id. at 42.
The Commonwealth responds the issue is waived because appellant did not
adequately develop the claim Buigi was a government agent in any meaningful fashion
before the PCRA court or cite relevant authority to support the claim. Alternatively, the
Commonwealth asserts the claim is meritless as the record shows Buigi was not acting
as a government informant or agent at the time of the conversation and did not initiate
the conversation to elicit incriminating information. Instead, the Commonwealth
maintains the record shows appellant sought Buigi’s opinion regarding appellant’s
chances for a good outcome at trial. Thus, the Commonwealth asserts appellant failed
to show merit in his ineffectiveness claim based on the alleged Sixth Amendment
violation.
The PCRA court determined the underlying claim of a violation of the right to
counsel was not raised below and thus is waived. The court also determined the
averment Buigi was a government agent was conclusory and unsupported by the record
and thus dismissed the ineffectiveness claims based on lack of arguable merit.
Moreover, the court determined the claim raised no material fact warranting an
evidentiary hearing.
[J-92-2015] - 18
The Sixth Amendment right to the assistance of counsel attaches at the initiation
of formal judicial proceedings against an individual by way of formal charge, preliminary
hearing, indictment, information, or arraignment. Commonwealth v. Briggs, 12 A.3d
291, 324 (Pa. 2011). Any statement made by the individual thereafter which is
“deliberately elicited” by police, without the individual making a valid waiver of the right
to counsel, is deemed a contravention of this right. Id. A statement may be
“deliberately elicited” by police through use of an informant. Commonwealth v.
Hawkins, 701 A.2d 492, 505 (Pa. 1997). “Information secured by an informant acting as
an agent of the government must be suppressed where the informant acts under
instructions as an informant for the government, where he presents himself as no more
than a fellow inmate rather than a governmental agent, and where the suspect is in
custody and under indictment at the time of the questioning by the informant because
such questioning outside the presence of the accused’s counsel violates the accused’s
Sixth Amendment right to counsel.” Id., citing Commonwealth v. Berkheimer, 460 A.2d
233, 234 (Pa. 1983).
In order to prove such a violation, the defendant must demonstrate the police and
the informant took some action, beyond mere listening, designed deliberately to elicit
incriminating remarks. Hawkins, 701 A.2d at 505, citing Kuhlmann v. Wilson, 477 U.S.
436, 459 (1986). Additionally, the defendant must show the informant was acting as a
government agent. Individual acts do not become governmental action merely because
they are later relied upon and used by the government in furtherance of governmental
objectives. Id., citing Commonwealth v. Corley, 491 A.2d 829, 832 (Pa. 1985).
The record supports the PCRA court’s denial of this claim. Buigi testified at trial
he initially learned of Peter LaCourt’s killing in October 1992 from LaCourt’s brother
Harry Calindez (Harry). Buigi and Harry had been working together in the prison
[J-92-2015] - 19
kitchen at SCI-Camp Hill when Harry was called away by the chaplain. When Harry
returned, he informed Buigi his brother had been murdered. Buigi testified he had
known Peter LaCourt as Pete Calindez since junior high school, but had not seen him
since 1987. Buigi further testified he was transferred to PICC in late October 1993, and
had been interviewed by Detective Rheinhold as a potential witness in an unrelated
murder investigation approximately a month before the transfer.
According to Buigi, following the transfer, he became cellmates with appellant
who, after four days, began asking Buigi for his advice and opinions. Appellant
subsequently confided he had killed Peter LaCourt and plotted to have Tanesha
Robinson murdered. Buigi testified when he realized appellant’s reference to Peter
LaCourt was to Buigi’s friend Pete Calindez, he called Detective Rheinhold to tell him he
had information about the killing. The day after he made the call, Detective Rheinhold
transported Buigi to Police Administration and took his statement.
Buigi also testified he was not expecting any leniency in his open felony matters
in exchange for his testimony in this case. After Buigi finished testifying, the prosecutor
informed the court that, although “the Commonwealth has absolutely no deals or
agreements with respect to any of Mr. Buigi’s open cases, I want the court to know, and
I want it to be a matter of record that in the event Mr. Buigi is convicted on any of his
open cases and I am subpoenaed to testify at his sentencing proceeding, that I will
testify that he cooperated in this matter.” N.T. 3/2/94 at 5. The court then granted the
defense request to recall Buigi on cross-examination, where he testified if he was
convicted on an open case, “[the prosecutor] would tell the judge I cooperated in this
case.” N.T. 3/3/94 at 37. He denied he was promised or expected sentencing leniency
in that event, and the import of the prosecutor’s involvement would be to show Buigi
“t[old] the truth of what I knew about the case.” Id.
[J-92-2015] - 20
In light of this record, the PCRA court did not err in determining appellant’s claim
Buigi was a government agent was unsupported and conclusory. The fact Buigi met
with Detective Rheinhold before he was housed with appellant at PICC was
uncontested, but the uncontradicted evidence showed the subject of that meeting was
Buigi’s knowledge respecting an unrelated homicide. There was no evidence the
government enlisted or directed Buigi to initiate contact with appellant and elicit details
about the murder of LaCourt and the plot to murder Robinson.
In the absence of direct evidence, appellant posits the record evidence raised a
“reasonable inference” Buigi acted as a Commonwealth agent because he allegedly
initiated questions designed to elicit incriminating information from appellant and relayed
that information to the prosecution in exchange for leniency in his open cases.
Appellant’s Brief at 42. However, this is more than an inference: it is speculation
premised on rejecting the actual trial evidence that appellant approached Buigi seeking
his advice and opinions and later confided he committed the murder and was involved
in killing an eyewitness. It was only after Buigi realized the murder victim was an
acquaintance that he contacted police; and, although he obviously may have hoped his
cooperation might result in consideration in his own cases, there was no promise of
leniency in exchange for his testimony. Moreover, whatever promises or expectations
arose after Buigi came forward do not operate retroactively to make him an interrogating
agent of the police. In short, the unsupported inference appellant poses does not make
this a factual situation implicating Sixth Amendment guarantees. See Maine v. Moulton,
474 U.S. 159, 176 (1984) (Sixth Amendment not violated whenever government by
happenstance obtains incriminating statements from accused after right to counsel has
attached; violation occurs when government obtains incriminating statements by
[J-92-2015] - 21
knowingly circumventing accused’s right to have counsel present in a confrontation
between accused and state agent).
Appellant’s claim of a Sixth Amendment violation is waived for failure to raise it at
trial or on direct appeal, as is his claim of trial counsel’s ineffectiveness. Appellant’s
derivative claim of appellate counsel’s ineffectiveness fails as the underlying claim of
trial counsel’s ineffectiveness lacks arguable merit. The claim also raises no issue of
material fact warranting an evidentiary hearing.
IV. Jury instruction regarding specific intent to kill
Appellant claims the trial court erroneously instructed the jury it could find him
guilty of first-degree murder if the Commonwealth showed appellant, his accomplice or
codefendant shot the victim with the specific intent to kill. Appellant claims the
instruction was erroneous because it permitted the jury to find him guilty even if it
determined only appellant’s codefendant had the specific intent to kill. Appellant
acknowledges trial counsel challenged the instruction during trial and appellate counsel
raised the issue on direct appeal. Appellant further acknowledges this Court engaged
and rejected the claim on direct appeal, determining the jury charge, as a whole,
conformed to Commonwealth v. Huffman, 638 A.2d 961 (Pa. 1994), governing
instructions on accomplice liability in first-degree murder prosecutions.
Appellant now claims appellate counsel was ineffective in litigating the issue
because “he only argued that the court’s instructions violated Huffman and failed to
argue the instructions violated appellant’s due process rights by impermissibly relieving
the Commonwealth of its burden of proof.” Appellant’s Brief at 45. Appellant presents
no targeted argument or legal analysis to support this gloss on the previously litigated
theory other than a fleeting one-sentence assertion that “instructions that lessen the
[J-92-2015] - 22
Commonwealth’s burden of proof violate due process. See Osborne v. Ohio, 495 U.S.
103, 122-25 (1990); Francis v. Franklin, 471 U.S. 307, [321] n.7 (1985).” Id. at 44.
The Commonwealth responds that on direct appeal this Court held, “[t]he
instruction was not in error and the court consistently and in understandable language
referred to the need to consider whether each individual in the case possessed the
specific intent to kill.” Appellee’s Brief at 57, citing Hannibal, 753 A.2d at 1271
(emphasis added). Thus, the Commonwealth posits appellate counsel challenged the
instruction in part on the basis it reduced the Commonwealth’s burden of proof, and the
present issue therefore “requires no extended response.” Id. at 55. Similarly, the
PCRA court determined “all prior counsel litigated the issue, and the issue was resolved
on the merits against [appellant] by Pennsylvania’s highest appellate court. No relief is
due.” PCRA Court Op. at 13.
Appellant has not explained how an undeveloped due process overlay, other
than perhaps more specifically seeking to federalize the very same claim already posed,
would have led to a different result on the merits on direct appeal. Nor does appellant
explain why our decisional law in this area, including our resolution on direct appeal,
includes no due process element, or is not derived from due process precepts. In light
of this presentation, the PCRA court did not err in finding the underlying issue regarding
the propriety of the instruction previously litigated and meritless. See 42 Pa.C.S.
§9544(a)(2). The claim of trial counsel’s ineffectiveness for failing to challenge the
instruction has been previously litigated as well; and the claim appellate counsel failed
to “properly” litigate the issue is unsupported by meaningful argument; thus, no relief is
due.
V. Opening the door to criminal record through character witnesses
[J-92-2015] - 23
A. Guilt phase
Appellant alleges trial counsel failed to review the discovery provided by the
Commonwealth regarding appellant’s criminal history, and was thus unprepared when
the Commonwealth cross-examined appellant’s character witnesses regarding his
criminal history during the guilt phase. Specifically, after each character witness
testified to appellant’s reputation as a peaceful, law-abiding citizen, the prosecutor
posed questions on cross-examination regarding the witness’s knowledge of appellant’s
prior criminal record for disorderly conduct, drug offenses, theft, burglary, conspiracy
and contempt of court. Trial counsel objected and a side-bar was conducted during
which counsel stated, “My client informs me that he has one conviction. I don’t know
anything about this record. That was not furnished to me. And I discussed it with my
client.” N.T. 3/8/94 at 8. Counsel further stated the “drug case is not crimen falsi.” Id.
Appellant now claims counsel never met with him regarding his criminal history,
did not review the discovery, which included a form listing all charges brought against
him in the period from 1990 through 1992, and apparently did not realize non-crimen
falsi offenses can be used to impeach reputation testimony. Appellant argues trial
counsel was ineffective on these bases and appellate counsel was ineffective for failing
to raise this meritorious, record-based claim of trial counsel’s ineffectiveness on appeal.
The Commonwealth responds counsel discussed appellant’s criminal history with
him before trial and appellant does not show counsel acted unreasonably in presenting
the character witnesses because his decision was based on appellant’s false
representation regarding the nature and extent of his criminal history. Further, appellant
opened the door to the admissibility of much of his criminal history because he testified
in his own defense, and thus, the Commonwealth could, if it chose, proffer any of
appellant’s crimen falsi convictions for impeachment purposes. Moreover, the
[J-92-2015] - 24
Commonwealth asserts, the trial court unambiguously instructed the jury it was not to
consider appellant’s prior convictions in deciding his guilt, except to the extent those
convictions affected the weight to afford the reputation evidence he presented.
The PCRA court determined the claim of trial counsel’s ineffectiveness could
have been raised on direct appeal, but was not, and thus it was waived. The court
further determined that underlying claim was meritless. Because appellant chose to
testify on his own behalf, any of his crimen falsi convictions over the prior ten years
would have been admissible in the Commonwealth’s rebuttal case regardless of
whether appellant presented character witnesses. See 42 Pa.C.S. §5918; Pa.R.E.
609(a), (b). Thus, the court reasoned, counsel was required to weigh the benefit of the
character evidence against only the non-crimen falsi offenses of disorderly conduct,
contempt and drug offenses. The court concluded “it is inconceivable the incremental
revelation of these additional offenses would have caused a reasonable juror to change
his or her opinion regarding [appellant’s] culpability.” PCRA Court Op. at 14.
Since the underlying claim of trial counsel’s ineffectiveness is record-based, it
could have been raised on appeal, and that iteration of the present claim is waived. In
addition, in assessing trial counsel’s conduct for the derivative claim of appellate
counsel’s ineffectiveness, we initially note the discovery provided in this case included a
sheet of charges which did not indicate the formal dispositions on those charges. At the
time of appellant’s trial, character witnesses could not be cross-examined about a
defendant's prior arrests which did not result in convictions. See Commonwealth v.
Keaton, 45 A.3d 1050, 1073 (Pa. 2012), citing Commonwealth v. Scott, 436 A.2d 607
(Pa. 1981). Thus, contrary to appellant’s claim, review of the discovery material would
not necessarily have been a dispositive factor in trial counsel’s decision whether or not
to proffer the witnesses, and counsel may have deemed that reason enough to accept
[J-92-2015] - 25
appellant’s averment he only had one prior conviction. See Strickland, 466 U.S. at 691
(“The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions.”). When the facts supporting
a strategy or defense are known to counsel primarily based on his client’s
representations, “the need for further investigation may be considerably diminished or
eliminated altogether.” Id.
On the other hand, it is a relatively simple matter to investigate further and
determine the precise circumstances of appellant’s prior record. Here, counsel is
deceased and little, if anything, could be accomplished by remand for an evidentiary
hearing to determine what appellant told him. For present purposes, it is enough that
the record provides some support for counsel on appeal to have included this in his
claims of trial counsel’s ineffectiveness. Notably, as to this iteration of his claim,
appellant simply declares appellate counsel “could have no reasonable basis for not
including this claim” on appeal, Appellant’s Brief at 50, and no proffer was made below
respecting appellate counsel’s strategic decisions in preparing the appeal.
In any event, even assuming counsel had no strategic reason not to include this
claim in addition to, or instead of, other claims pursued, we are aligned with the PCRA
court’s conclusion no Strickland/Pierce prejudice resulted from trial counsel’s lapse and
that in turn suggests the issue was not worth pursuing. As appellate counsel no doubt
realized, the law recognizes juries are presumed to follow instructions. See
Commonwealth v. Hoover, 107 A.3d 723, 731-32 (Pa. 2014) (jury specifically instructed
prior conviction was not evidence of guilt and jury was required to consider evidence for
limited purpose of judging credibility and weight of witness’s testimony; juries are
presumed to follow instructions). The trial court instructed the jury as follows:
Now, you will recall that as to [appellant] the District Attorney was
permitted to cross-examine [the witnesses] for one purpose only, and that
[J-92-2015] - 26
was for the purpose of providing evidence which might help you judge
whether [appellant’s] character witnesses are really familiar with his
reputation and whether in their testimony they gave you an accurate
description of his reputation. You will recall those questions dealt with
some offenses that [appellant] has been convicted of, and that’s part of my
recollection. It’s your recollection that controls.
The evidence brought out by the District Attorney’s cross-examination
must not be considered by you in deciding whether [appellant] is guilty or
not guilty in any way other than for the one purpose that I have just stated.
In particular, I caution you that you must not consider the evidence as
proof that [appellant] is a person of bad character or has committed the
crimes charged or any other offense.
N.T. 3/9/94 at 132. In our view, the PCRA court did not err in determining that appellant
failed to prove trial level prejudice; consequently, appellant’s derivative claim of
appellate counsel’s ineffectiveness must fail as counsel cannot be deemed ineffective
for failing to raise a meritless claim. See Commonwealth v. Treiber, 121 A.3d 435, 445
(Pa. 2015).
B. Penalty phase
The guilt phase evidence was incorporated into the penalty phase at trial and
appellant testified in his own defense at the penalty hearing. Among other things, he
testified his criminal record for burglary and drug offenses occurred when he was young
and impressionable, and he pleaded guilty to those offenses and received probationary
sentences. He testified he was a bricklayer and continued to maintain his innocence,
telling the jury, “y’all convicted two innocent young men.” N.T. 3/11/94 at 56. Appellant
also presented two witnesses at the penalty hearing who testified he was hard-working,
a good father and did not have a drug problem; the prosecutor cross-examined
appellant’s witnesses regarding their knowledge of his criminal history and drug use.
Appellant alleges trial counsel was ineffective for failing to object to incorporation
of the guilt phase evidence, as the other-crimes evidence amounted to the admission of
[J-92-2015] - 27
a non-statutory aggravating circumstance. Appellant asserts the introduction of
evidence of his general criminal history and drug use prejudiced him because the
Commonwealth could not directly seek the 42 Pa.C.S. §9711(d)(9) aggravating
circumstance as appellant did not have an extensive history of violent felonies.
Appellant argues the evidence against him “was not overwhelming” and “[t]hus, it was
critical for the jury to find [a]ppellant credible when he testified on his own behalf at guilt
and penalty.” Appellant’s Brief at 49. The introduction of his criminal history prejudiced
him, he asserts, as it impeached his credibility and “made it easy for the jury to believe
[appellant] fired the shots instead of [codefendant], who did not have an extensive
criminal history.” Id. Appellant additionally claims appellate counsel was ineffective for
failing to raise these record-based issues on direct appeal. Appellant cites no
Pennsylvania decisional precedent to support his claim the evidence amounted to the
admission of a non-statutory aggravating circumstance.
The Commonwealth responds the trial court’s sentencing instructions made clear
to the jury the only applicable aggravating circumstance was a killing committed during
the perpetration of a felony (here, robbery). The PCRA court determined it was proper
for the prosecutor to impeach appellant regarding his criminal history and drug use as
those areas were probed on direct examination. The court also determined it was
proper for the prosecutor to impeach appellant’s mitigation witnesses about his drug use
because both testified he had no drug problem. The court further held “there was no
improper attempt to use [appellant’s] record as a non-statutory aggravator,” and thus,
“any objection made on that ground would have been meritless.” PCRA Court Op. at
15.
We discern no error in the PCRA court’s resolution. The trial court instructed the
jurors there was only one applicable aggravating circumstance for them to consider:
[J-92-2015] - 28
whether “[appellant] committed a killing while in the perpetration of a felony. …[T]he
felony referred to is the robbery.” N.T. 3/11/94 at 89. The court also instructed the jury
regarding the parties’ relative burdens of proof and the need for juror unanimity to
impose a death sentence. There was no claim on direct appeal (or now) alleging the
court’s charge to the jury in this respect was erroneous.
A claim of trial counsel’s ineffectiveness in failing to object to the incorporation of
the guilt phase evidence into the penalty phase could have been raised on direct
appeal, but was not, and is thus waived under the PCRA. Moreover, even absent the
default, given the court’s proper instructions, which made clear only one aggravating
circumstance was at issue, and appellant’s failure to support his present claim by
citation to any relevant cases, the claim of trial counsel’s ineffectiveness has not been
substantiated.
Furthermore, appellant’s claim he was prejudiced in both phases of the trial
because his criminal history impeached his credibility in a close case is undermined by
the substantial evidence of his guilt, and the court’s instruction to the jury the evidence
was not to be used to determine guilt or innocence or to determine the penalty. Thus,
appellant’s derivative claim of appellate counsel’s ineffectiveness fails.
VI. Evidence connecting appellant to the plot to murder Tanesha Robinson
(and ineffectiveness overlay)12
Trial counsel’s motion for a mistrial, made when the prosecutor referenced the
triple-killing in his opening statement at trial, was denied by the court. The court also
12
Although this claim is presented as issue 6 in appellant’s “Statement of Questions
Involved,” the argument in support of the claim is the first argument presented in
appellant’s brief.
[J-92-2015] - 29
overruled counsel’s hearsay objection to Buigi’s testimony stating appellant admitted he
had a role in the triple-killing.
On direct appeal, appellant claimed admission of the evidence of the triple-killing
rendered his trial fundamentally unfair and counsel was ineffective for failing to make
objections on grounds of undue prejudice and insufficient proof. In support thereof,
appellant argued the prejudicial impact of the evidence outweighed its probative value,
and maintained Buigi’s testimony was incredible and should have been excluded. On
direct appeal, appellant conceded counsel made a motion for mistrial and posed a
number of objections respecting the evidence, but argued counsel was ineffective for
failing to make “appropriate objections.” Brief for Appellant on Direct Appeal at 29,
Hannibal, 753 A.2d 1265 (Pa. 2000), available at 1997 WL 33544659. Appellant did not
present an analysis of counsel’s performance by specific reference to the
Strickland/Pierce prongs on direct appeal, but baldly asserted it was incumbent on trial
counsel to renew his motion for a mistrial, and counsel had no possible strategic basis
for failing to press every available objection to the challenged evidence; appellant
further claimed counsel’s lack of reasonable basis for his actions or inactions was
obvious, as was the prejudice flowing therefrom. Id. at 28-29. In a footnote, this Court
rejected the claims because appellant failed to set forth or meaningfully discuss the
three-pronged ineffectiveness standard, and because the challenged evidence was
relevant and admissible to show the history of the case and to prove consciousness of
guilt in any event.13
13
This Court specifically stated:
(continued…)
[J-92-2015] - 30
Appellant now claims admission of the evidence concerning his involvement in
Robinson’s murder denied him his rights to due process and a fair trial, and prior
counsel were ineffective to the extent they failed to litigate the issue. Appellant’s Brief
at 13, 16-23, 24-26. Appellant alleges the evidence, which was primarily based on
Buigi’s testimony, should have been excluded because Buigi was an unreliable witness,
and counsel should have objected to the evidence on that basis. The PCRA court
determined the guilt phase claims challenging the admissibility of evidence regarding
the Robinson murder and counsel’s alleged ineffectiveness for failing to object to that
evidence are not cognizable under the PCRA because they were previously litigated
and resolved against appellant on the merits by this Court on direct appeal. We agree
the claim is subject to the statutory prior litigation bar. Appellant has failed to articulate
any material difference between the instant claim of a due process violation resulting in
an unfair trial and the substantive claim raised and rejected on direct appeal. On direct
(…continued)
Hannibal claims his trial was unfair because evidence of the murder
of Tanesha Robinson, a witness, was admitted into evidence and that trial
counsel was ineffective for failing to object to the introduction of evidence
that Hannibal was linked to the murder of Tanesha Robinson.
This claim [also] fails for a number of reasons. First the trial court
did not err in admitting this evidence since it is part of the history of the
case. Second the claim of ineffectiveness fails because Hannibal again
fails to set out the three pronged test for ineffectiveness of counsel. Third,
there was no basis to object to the evidence because it was admissible to
show Hannibal’s consciousness of guilt. Commonwealth v. Goldblum,
[447 A.2d 234 (Pa. 1982)] (evidence that appellant agreed to pay
undercover operative to kill witness is admissible to show consciousness
of guilt). Therefore, the trial court did not err in admitting this evidence,
and defense counsel was not ineffective for failing to object to the
admission of this evidence.
Hannibal, 753 A.2d at 1272, n.11.
[J-92-2015] - 31
appeal, this Court dismissed appellant’s substantive claim of unfairness resulting from
alleged trial court error in its evidentiary rulings, and his derivative ineffectiveness claim
for failure to challenge the admissibility of the challenged evidence on particular
grounds, including Buigi’s alleged lack of veracity. The gravamen of appellant’s claim
then and now is, in part, the same — Buigi was such an unreliable witness his testimony
linking appellant to the triple-killing should have been precluded and counsel was
ineffective for failing to raise that claim. Thus, we dismiss the present iteration of the
claim as previously litigated. See 42 Pa.C.S. §9544(a)(2). 14
Appellant further claims counsel were ineffective during the penalty phase for
failing to challenge the evidence of Robinson’s murder on grounds it violated the Eighth
Amendment, denying him a reliable sentencing determination. Appellant’s Brief at 20-
23. Specifically, appellant claims the sentencing determination was not reliable
because the jury was free to consider his involvement in Robinson’s murder, which the
14
In her concurring opinion, Justice Todd disagrees the issue has been previously
litigated, because although the claim was raised on direct appeal, this Court
misapprehended the issue to such an extent there was no merits ruling. In our view,
this Court’s brief discussion of the issue on direct appeal was, nevertheless, a merits
disposition and holding. The Court properly stated the substantive issue was whether
appellant received a fair trial. Although the Court did not set forth appellant’s arguments
in detail, it nevertheless clearly identified and implicitly rejected the substantive claim of
an unfair trial based on the court’s allegedly erroneous evidentiary rulings with respect
to the triple-killing, and it explicitly rejected appellant’s arguments with respect to
counsel’s ineffectiveness because they were not supported by the necessary legal
analysis. Hannibal, 753 A.2d at 1272, n.11. This Court’s analysis of the issue on direct
appeal, while perhaps less than extensive, was nevertheless certain in its dispositive
effect, and we reject appellant’s current iteration of the claim as previously litigated. In
his dissenting opinion, Chief Justice Saylor states he would remand for a new trial
because, in his considered judgment, trial counsel was ineffective for failing to secure
from the trial court a determination the probative value of the evidence of the triple
killing was outweighed by its prejudicial impact. Dissenting Slip Op. at 5. Notably,
appellant has not raised that issue in this appeal.
[J-92-2015] - 32
prosecutor commented upon in summation, as a non-statutory aggravating
circumstance. To further support his claim, appellant challenges what he says was the
trial court’s confusing penalty phase instruction regarding the jury’s consideration of the
evidence of Robinson’s murder. The court instructed the jury:
In considering the evidence that was presented at the earlier trial, you will
recall that the concern of the three young ladies was limited in your
consideration to an effort to show consciousness of guilt. These
defendants are not on trial for anything that happened to those three
young ladies. Your decision as to sentence must be based on the
evidence that was presented concerning the death of Mr. LaCourt.
N.T. 3/11/94 at 92-93.
The Commonwealth and the PCRA court posit appellant’s claim based on the
penalty phase instruction is waived as it could have been challenged at trial and raised
on direct appeal. As for appellant’s derivative claims of counsel ineffectiveness,
appellant’s reading of the jury charge as inviting consideration of an extra-statutory
aggravator is unpersuasive. We see nothing so obviously confusing about the
instruction regarding the jury’s consideration of the evidence of the triple killing that
counsel were required to discern an Eighth Amendment objection. The court properly
instructed the jury it could consider the evidence only for the limited purpose of showing
appellant’s consciousness of guilt. See Commonwealth v. Hairston, 84 A.3d 657, 664
(Pa. 2014) (defendant not charged with arson but evidence he intentionally set fire to
house after murdering people inside admissible to show consciousness of guilt).
In further support of his claims, appellant asserts Terrence Richardson later
recanted his testimony he was with individuals who received money to murder Robinson
in order to silence her. Appellant also argues Frederick Daughtry (codefendant
Gregory’s coconspirator in the murder of Robinson, who pleaded guilty to murder in
1997) provided an affidavit in 2000 stating her murder had not been motivated by a
[J-92-2015] - 33
desire to prevent her testimony. In a later affidavit, Daughtry averred appellant had
nothing to do with Robinson’s murder. Appellant now alleges he was denied due
process because Daughtry’s initial affidavit was allegedly withheld by the prosecution at
the time of his direct appeal, violating the Commonwealth’s continuing Brady obligation.
Appellant asserts, at the least, he is entitled to a hearing on this issue.
The Commonwealth responds that, to the extent appellant claims evidence
discovered after his trial raises doubts about the strength of the trial evidence, the claim
is waived because appellant did not present any argument to the PCRA court to satisfy
the demanding standards governing a claim of newly discovered evidence (discussed
below). The PCRA court noted the claims regarding Daughtry’s affidavit and
Richardson’s recantation were not raised in the PCRA court and cannot be raised for
the first time on appeal from the denial of PCRA relief. Moreover, even had the claims
been properly raised, the court found them meritless: Daughtry stated in his affidavit he
would refuse to testify if called as a witness in any further proceedings and, although
Richardson recanted his testimony in a post-trial hearing in codefendant’s case, the
judge in that case, who also presided over this trial (Judge Clarke) found the recantation
to be incredible. See PCRA Court Op. at 18. The PCRA court concluded the new
evidence was not of a nature or character to warrant relief and dismissed the related
claims without a hearing.
Our review of the record shows claims regarding Daughtry’s affidavit and
Richardson’s recantation in fact were raised in the amended petition filed in 2005. See
Appellant’s Amended PCRA Petition, 9/7/05 at 27-28. The PCRA provides relief for a
petitioner who demonstrates his conviction or sentence resulted from “[t]he
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.”
[J-92-2015] - 34
42 Pa.C.S. §9543(a)(2)(vi). To establish a newly discovered evidence claim under the
PCRA, it must be shown the evidence: (1) was discovered after trial and could not have
been obtained at or prior to trial through reasonable diligence; (2) is not cumulative; (3)
is not being used solely to impeach credibility; and (4) would likely compel a different
verdict. Commonwealth v. Washington, 927 A.2d 586, 595-96 (Pa. 2007). Newly
discovered evidence must be producible and admissible to entitle a petitioner to relief.
Commonwealth v. Castro, 93 A.3d 818, 825 (Pa. 2014).
Daughtry executed two affidavits; the first dated February 8, 2000, the second
dated September 2, 2005. In the first, he averred he lied at codefendant Gregory’s
separate trial for the murders of the three females. He stated that, in exchange for his
perjured testimony implicating his codefendants, he “received 15 to 30 years for a
charge of third degree murder” for his involvement as a “look out man” in the crime.
Daughtry Affidavit, 2/8/00. He further asserted the murder of Tanesha Robinson “was
not in retaliation for witnessing another murder[.]” Id. Notably, however, he also
averred he did “not wish to give further testimony[,]” and if called as a witness, he “will
invoke [his] Fifth Amendment right to not testify.” Id. In his second affidavit, Daughtry
averred “Sheldon Hannibal had nothing to do with … the killings of Tanesha Robinson,
LaToya Cook and Jeanie Robinson[,]” and the murders “had nothing to do with anybody
being a witness in another case or anything like that. It was just a burglary that went
really wrong.” Daughtry Affidavit, 9/2/05.
With respect to Richardson, the record contains no documentation to support the
allegation he recanted his testimony against appellant in a post-trial hearing related to
codefendant’s separate charges for the murder of the three females, other than the
PCRA court’s acknowledgement the recantation took place. Thus, Richardson
apparently recanted his trial testimony in codefendant’s separate trial, not in a
[J-92-2015] - 35
proceeding pertaining directly to appellant, and Richardson’s recantation is not
contained in the certified record on appeal. Similarly, Daughtry’s first affidavit does not
mention appellant at all, and it is clear it was presented in proceedings pertaining to
appellant’s codefendant.
Significantly, both Richardson’s and Daughtry’s statements, upon which
appellant now relies to support his claims he did not receive a fair trial, sentencing
proceeding or appeal, involve admissions of lying under oath in court proceedings. It is
well-settled recantation evidence is notoriously unreliable, and where it involves an
admission of perjury, it is the least reliable source of proof. Commonwealth v. Henry,
706 A.2d 313, 321 (Pa. 1997). See also Commonwealth v. Clark, 961 A.2d 80, 87 n.6
(Pa. 2008) (noting inherent unreliability of recantation evidence and reasonableness of
strategic decision by counsel to forego its presentation). Notably, appellant has not
cited to, or presented argument regarding, the requirements to establish PCRA relief on
a claim of newly discovered evidence, including that the new evidence would be
admissible (as opposed, for example, to Daughtry’s declaration he would assert a
privilege not to testify). Nor has he explained how the new evidence here was such that
it would likely compel a different verdict if presented. Appellant’s suggestion of a Brady
violation is also unsupported by pertinent argument or authority and lacks any
substantiated showing the recantations were suppressed, were exculpatory and their
non-disclosure resulted in prejudice.
For these reasons, we determine the PCRA court did not err in denying, without
an evidentiary hearing, the underlying claims of a constitutional violation and the
derivative claims of counsel’s ineffectiveness.
VII. Mitigating mental health evidence (and ineffectiveness overlay)
[J-92-2015] - 36
Appellant claims trial counsel was ineffective for failing to investigate and present
significant mental health mitigating evidence at the penalty proceeding. He also alleges
appellate counsel was ineffective for failing to investigate and discover such evidence to
“properly raise the issue of trial counsel’s ineffectiveness” in this regard on appeal.
Appellant’s Brief at 52. Appellant’s underlying claim, in essence, is premised on the
belief he has borderline intelligence and suffers from organic brain damage; he says if
those facts had been presented to the jury during the penalty phase, “at least one juror
would have voted for life.” Id. at 59.
As noted, the PCRA court conducted a hearing on this claim at which three
expert witnesses in neuropsychology testified, Dr. Armstrong and Dr. Crown for
appellant, and Dr. Swirsky-Sacchetti for the Commonwealth. All three experts agreed
the records existing at the time of appellant’s trial reasonably showed further
neuropsychological testing was indicated, and the PCRA court consequently
determined there was arguable merit in the underlying claim of trial counsel’s
ineffectiveness for failing to further investigate appellant’s mental health as a potential
mitigating factor.
At the hearing, the focus was whether appellant suffered from a cognitive
disability that might be seen as mitigating under the “catch-all” category of mitigating
circumstances. See 42 Pa.C.S. §9711(e)(8) (“any other evidence of mitigation
concerning the character and record of the defendant and the circumstances of his
offense”). No expert witness opined appellant had a substantially impaired capacity to
appreciate the criminality of his conduct or conform his conduct to requirements of the
law, or was under extreme mental or emotional disturbance at the time he committed
the crime, so as to implicate specific mental health mitigators. See 42 Pa.C.S.
§9711(e)(2), (e)(3). The experts’ opinions differed sharply as to whether appellant
[J-92-2015] - 37
suffered from any cognitive disability, calling for the court to make a factual
determination.
Dr. Armstrong evaluated appellant on January 14, 2008, conducting a battery of
tests to determine whether he suffered from neuropsychological impairments. The tests
were broadly categorized into seven domains of mental functioning: motor functioning,
processing speed, attention, verbal memory, language, visuospatial processing and
memory, and intellectual processes and executive functions. She testified to her
opinion appellant had “impairments in all of the domains[,]” some of which were
“severe,” which “raised the possibility [appellant] had intellectual disability.” N.T.
7/28/14 at 87, 90. She did not conduct a full-scale IQ test, but was aware Drs. Crown
and Swirsky-Sacchetti had conducted IQ tests; appellant received a full-scale IQ of 79
on the test administered by Dr. Crown and a full-scale IQ of 74 on the test administered
by Dr. Swirsky-Sacchetti. Dr. Armstrong testified “intellectual disability … which we
used to call mental retardation, but no longer do[,] … is now defined as an IQ around 70
or 75.” Id. at 91.
Dr. Armstrong further suggested appellant may suffer from brain damage:
Q. [By appellant’s attorney]: Okay. And so your overall conclusions from
all these testings, the tests you did, do you make an actual diagnosis of
brain damage?
A. Well, in a sense, yes. I make maybe not a medical diagnosis, but I’m
making the diagnosis that he has enough signs of brain dysfunction that
it’s real, that there is a disturbance of the brain[.]
Id. at 106-07.
On cross-examination, Dr. Armstrong clarified she “inferred” the existence of a
“brain injury,” which she characterized as “poor development of the brain,” the cause of
which was unknown, but could be due to “a genetic code” or “something he acquired,
[J-92-2015] - 38
something in the environment, we don’t know.” Id. at 239. She further opined
appellant’s organic brain impairments were long-standing because he could not read as
a child and into his teenage years, and the failure to learn to read at an early age can
cause permanent detrimental effects on the brain. Dr. Armstrong also opined appellant
suffers from an unspecified “learning difficulty.” Id. at 136.
She further testified she has consulted on sixty capital cases, all for the defense,
is familiar with the “statute on mitigations scheme in Pennsylvania[,]” and she believed
appellant’s unspecified learning disability “would be a very important potential mitigator.”
Id. at 136-37. Specifically, Dr. Armstrong opined the mitigating aspects of appellant’s
mental condition under the catch-all section (e)(8) were as follows:
So having neuropsychological impairments that are severe and significant
and low intellectual ability combined together to affect a person in
everyday life, because there are many situations that they don’t
understand the full aspects of and don’t remember - and that’s important -
affects how much they can learn from their experiences, that it affects their
ability to understand a consequence of something that they do. They can’t
reason kind of beyond their experience at the time and it will cause them
to make incorrect judgments. They’ll also not understand how to interact
with authority figures sometimes and because they won’t understand kind
of the consequences of answering, you know. They just want to please
and will just want to give an answer that’s either most automatic for them
or that they think might be expected. They have a high risk of being
misinterpreted by others because they’re not understanding and so they’re
giving answers that may not fit in and they may not be remembering things
that you thought that they remembered. And they can be difficult to work
with by counsel, certainly, but other people will have difficulty
understanding them as well. And so they’re often misrepresented in that
sense, in that sense of not being able to represent themselves clearly.
They can be taken advantage of easily by others because of their
psychological impairments, and they generally need a very well structured
environment and a lot of, you know, well-meaning adult guidance in order
to be able to find a stable lifestyle and to live as independently as
possible.
[J-92-2015] - 39
Id. at 137-39.
Dr. Crown testified he tested appellant’s IQ in March 2009. After noting “[mental]
retardation technically begins at below 70,” he testified appellant’s IQ score of 79 placed
him at the eighth percentile of intelligence, meaning 92% of persons have a greater IQ
score. N.T. 7/29/14 at 19. He also testified IQ remains relatively stable throughout life,
and appellant’s IQ at the time of the crime would have been roughly the same, absent
some intervening injury, of which there was no evidence.15 He testified there is a 95%
probability appellant’s IQ lies somewhere between 74 and 79, and, in sum opined “this
is a gentleman who has a low IQ and it would be classified as borderline. It’s not going
to move below that 70 marker.” Id. at 26.
Dr. Crown testified he has been retained as a consultant in a number of capital
cases in which intellectual disability was at issue, is familiar with the Atkins and Hall
cases, and appellant does not have an “intellectual disability” in terms of diagnosis and
definition. See Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment to United
States Constitution prohibits imposition of the death penalty upon “mentally retarded
criminals”); see also Hall v. Florida, __ U.S. __, 134 S. Ct. 1986 (2014) (phrase “mentally
retarded” no longer widely used professionally; “intellectual disability” is preferred
phrase to describe same constellation of symptoms). He noted he did not conduct any
neuropsychological testing of appellant, but reviewed the tests and summaries
conducted by the other expert witnesses in this case. He opined those results
demonstrated appellant suffers from a “neuropsychological impairment that’s likely to
have had its origins in the developmental period.” N.T. 7/29/14 at 35. He testified the
neuropsychological impairment was not the result of a traumatic head injury, but was
15
Dr. Crown interviewed appellant in January 2013 to determine whether there had
been an intervening illness or trauma, and found none.
[J-92-2015] - 40
likely in the nature of organic brain damage of unknown etiology “related to metabolic
changes, possible problems in neonatal development, possible fetal development
problems, possible problems with nutrition or food absorption particularly during the first
three years of life, possible earaches, possible high fevers during that period, and I’m
talking about up to the time that we begin to use language. So it would be pre[-
]language.” Id. at 39. There were no records or tests showing any of the possible
causal circumstances actually existed in appellant’s neo-natal and early developmental
years, and the testing included no imaging studies of appellant’s brain such as CT
scans or MRIs.
Dr. Crown explained that a neuropsychological examination is a measure of the
functional capacities to perform various tasks, as opposed to an IQ test which relates to
cognition, i.e., the ability to process knowledge and information. He testified that neo-
natal and early organic brain injury, unrelated to traumatic head injury, present early in
life and can result in a person having functional strengths and weaknesses. Here, the
testing showed appellant demonstrated problems with “reading going back to his days
entering the schools in Philadelphia and in the Job Corps. He’s reading at the third
grade level. But he is relatively good in contrast with mathematical manipulations,
operating at the seventh grade level[.]” Id. at 40. He opined that appellant’s illiteracy as
an adolescent raises red flags indicating the need for neuropsychological testing to
answer the question “why can’t this person read?” Id. at 45. Ultimately, Dr. Crown
opined that appellant’s combination of low IQ affecting cognitive abilities, and his
organic brain damage affecting functional abilities, were mitigating circumstances.16
16
Specifically, Dr. Crown testified the cognitive deficits of persons with a “low IQ” were
mitigating as follows:
(continued…)
[J-92-2015] - 41
On cross-examination, Dr. Crown testified he read appellant’s Job Corps report
from the U.S. Department of Labor indicating appellant completed the brick masonry
program, received above average evaluations and completed job assignments with little
supervision. He also testified appellant told him he reads the Bible, and Dr. Crown
admitted, “his reading has significantly improved, yes.” Id. at 130.
In rebuttal, Dr. Swirsky-Sacchetti testified he performed a neuropsychological
examination (which included a full-scale IQ test) of appellant and reviewed the raw data
and results of Dr. Armstrong’s neuropsychological examination and Dr. Crown’s test of
appellant’s IQ. Asked to give his professional opinion of Dr. Armstrong’s conclusion
appellant suffered from an organic brain injury, he disagreed with that conclusion,
(…continued)
They tend to be more concrete. They tend not to be able to make critical
analyses. They have difficulties with what I refer to as language-based
critical thinking, those if-then consequential statements that you make to
yourself. And you have more difficulty in making meaning out of the
experience of your environment. You have greater difficulties in, by the
very nature of intelligence, thinking rationally and also in dealing
purposefully with situations. And that’s the nature of intelligence. That’s
Wechsler’s definition of intelligence. So those are the underlying
characteristics.
N.T. 7/29/14 at 104. With respect to mitigating aspects of organic brain damage, Dr.
Crown testified:
They … include things like concentration, attention, memory, self-
assessment, the ability to read facial expressions, the ability to modulate
the tone of your voice to someone else’s voice, the ability to see things in
temporal space, the ability to act and associate seeing something with
words to explain it and vice-versa, shifts between the right and left
hemispheres of the brain, and the ability to modulate and control
impulsivity.
Id. at 107.
[J-92-2015] - 42
testifying there is “nothing to support it both in terms of history and in terms of the test
data.” N.T. 7/31/14 at 25. He also disagreed with Dr. Armstrong’s conclusion the failure
to learn to read at an early age has permanent effects on the brain. He agreed
preliminary research indicates non-exposure to reading at an early age can result in
structural changes in the brain, specifically in an area known as the angular gyrus.
However, “in the very articles Dr. Armstrong quoted, she failed to say that those
physical or structural changes in the brain can be reversed[.]” Id. at 26. Thus, he
“disagree[d] with her use of the word permanent” because the research upon which she
relied to reach that conclusion does not support it. Id. at 27.
Dr. Swirsky-Sacchetti also criticized Dr. Armstrong’s failure to conduct a full-scale
IQ test at the time she conducted her neuropsychological examination of appellant “as a
very dangerous shortcut in a case like this” because the examiner “runs the risk of over-
interpreting the weak findings.” Id. at 27, 28. This risk is because cognitive functionality
is related to IQ: in someone with a superior IQ, an examiner would expect to see
superior results in areas such as memory, problem solving, motor speed and language,
while the expected results in those categories would be diminished in someone with a
lower IQ. Dr. Swirsky-Sacchetti testified the full scale IQ test is “very important to
measure any kind of organic brain dysfunction.” Id. at 29.
Dr. Swirsky-Sacchetti further criticized Dr. Armstrong’s administration of a
number of the individual components of the neuropsychological test she conducted. For
example, he criticized the way she administered the Wisconsin Card Sorting Test, which
is designed to measure abstract reasoning and mental flexibility using a deck of 128
cards from which the subject is instructed to deduce patterns or categorical similarities.
The test is one in which the examiner would expect better results the longer the test
[J-92-2015] - 43
goes on. Dr. Swirsky-Sacchetti criticized Dr. Armstrong for using only 64 cards to
conduct the test:
This is another area where I thought Dr. Armstrong was seriously cutting
corners because this is a very complicated test of executive functioning.
It’s been demonstrated that people who are of lower average intelligence
often have difficulty with this test without any brain damage. Normal
community-residing adults with lower IQs can fail this test. And what she
does is she cuts it in half.
Id. at 46.
Dr. Swirsky-Sacchetti added that Dr. Crown made several scoring errors when
computing appellant’s IQ at 79, which when corrected, would adjust appellant’s IQ to
80. He further testified a subject’s best performance is most reflective of true IQ absent
wide variations in results. He testified the change in score from 79 to 80 is “not a big
difference” but is notable because it changes appellant’s category of intellectual
functioning from the borderline range to low average intelligence range. Id. at 50. In
sum, Dr. Swirsky-Sacchetti testified he disagreed with Dr. Crown’s opinion appellant
had borderline intelligence and brain damage.
Dr. Swirsky-Sacchetti instead opined appellant has no brain damage. He noted
appellant may have some level of dyslexia characterized by trouble with reading, but
that condition was unrelated to problems with overall intelligence or brain damage. He
further explained there was no indication any alleged malformation of the angular gyrus,
the area of the brain associated with reading and writing, occurred in appellant’s early
developmental years. Moreover, he testified appellant’s lowest scores in the IQ test he
administered were in areas that tested fund of information, knowledge base and
vocabulary, all of which correspond very highly with a person’s level of education.
Thus, in his view, the results were not surprising given appellant’s lack of education.
[J-92-2015] - 44
Faced with these opposing expert views, the PCRA court credited Dr. Swirsky-
Sacchetti’s testimony, noting it was persuasive and supported by the record, while the
testimony of Dr. Armstrong and Dr. Crown was not credible. The court determined that
had the evidence at the PCRA hearing been presented to the jury during the penalty
phase, along with the other mitigation evidence actually offered, “it is not reasonably
probable that at least one juror would have found the ([e])(8) catch-all mitigator” applied.
PCRA Court Op. at 26. The court further opined, “[a]ssuming arguendo, that one or
more jurors would have found the (e)(8) mitigator, …it is not reasonably probable that at
least one juror would have assigned weight to that mitigator equal to, or greater than,
the aggravator found by the sentencing jury.” Id. Thus, the court determined appellant
“was not prejudiced by trial counsel’s failure to investigate and elicit additional testimony
regarding [appellant’s] mental health impairments.” Id. The court therefore dismissed
the ineffectiveness claim, concluding no relief was due.
We see no error in the PCRA court’s determination. Preliminarily, we note,
despite Dr. Armstrong’s opinion that appellant may be “intellectually disabled,” no claim
is made that appellant’s sentence of death violates constitutional proscriptions against
execution of the intellectually disabled as set forth in Atkins, Hall, and Commonwealth v.
Miller, 888 A.2d 624 (Pa. 2005). Nor did appellant attempt to establish, through his
expert witnesses at the PCRA hearing, he suffers from intellectual disability as those
conditions are diagnosed under the standards set forth in the Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 1992) (DSM-IV) or the American Association of
Mental Retardation (AAMR), now the American Association on Intellectual and
Developmental Difficulties (AAIDD). See Commonwealth v. VanDivner, 130 A.3d 676,
681 (Pa. 2015) (PCRA petitioner may establish his or her mental retardation under
either classification system). Instead, he questions whether the jury would have
[J-92-2015] - 45
returned a different penalty verdict if it had heard testimony along the lines of what was
produced at the PCRA proceeding.
With respect to appellant’s alleged organic brain damage, there was no medical
history or other documentation to show any of the possible causal circumstances
testified to by Drs. Armstrong and Crown actually existed in appellant’s neo-natal and
early developmental years; moreover, there were no imaging studies of appellant’s
brain. There was no evidence appellant had ever complained of or been treated for any
brain injury. He had never been diagnosed with brain damage prior to the results of the
instant neuropsychological testing. All experts agreed it did not appear appellant ever
suffered any traumatic external blow to the head resulting in brain damage. Moreover,
the history included reports showing appellant followed work instructions and completed
brick-laying projects or assignments satisfactorily. In short, the evidence of a long-
standing significant organic brain injury, or any other brain injury, was not substantial.
Importantly, Dr. Swirsky-Sacchetti criticized the conclusions of appellant’s experts and
opined appellant had no brain damage, an opinion the PCRA court ultimately credited.
To the extent resolution of this issue depends upon the quality of the competing
evidence, this Court is bound by a PCRA court’s credibility determinations when there is
record support for them. See Commonwealth v. Williams, 846 A.2d 105, 112 (Pa.
2004). In Williams, on appeal from the denial of PCRA relief in a capital case, we
determined the appellant’s claim of trial counsel’s ineffectiveness for failing to present
significant mental health mitigation evidence had arguable merit and counsel had no
reasonable basis for failing to investigate and present the evidence. Nevertheless, we
dismissed the claim on the basis appellant could not establish prejudice, noting “[i]t is
evident from the [PCRA] court’s opinion that it made credibility determinations as to the
[J-92-2015] - 46
testimony of the mental health experts, and resolved the issue against [a]ppellant.” Id.
at 113.
The situation here is similar to Williams in that the PCRA court made credibility
determinations regarding the testimony of the expert witnesses, which are supported by
the record (particularly insofar as the Commonwealth’s expert explained his reasons for
disagreeing with appellant’s experts). Moreover, the existence of a mitigating mental
health condition (organic brain damage) was somewhat speculative here; even its
expert proponents admitted its existence was inferential.
Of course, we recognize appellant would have presented his mental health
expert evidence to a jury, notwithstanding its strength or issues of credibility, leaving the
question for the jury. Nevertheless, in the collateral attack scenario, where a Strickland
assessment of prejudice is at issue, the PCRA court’s credibility findings are
consequential, as Williams recognized. For purposes of assessing Strickland prejudice
here, the question is whether appellant has shown a reasonable probability, had the
mitigation evidence adduced at the PCRA hearing also been presented at the penalty
phase, the outcome of the proceedings would have been different because at least one
juror would have found the catch-all mitigating circumstance and would have proceeded
to conclude it outweighed, or was as weighty as, the aggravating circumstance, so as to
convince a juror to find the overall quality of the case in mitigation warranted a sentence
of life in prison. See Daniels, 104 A.3d at 303-04. The PCRA court, which heard the
new case in mitigation, and had the trial record before it, answered this question in the
negative based in part on an assessment of the credibility and strength of appellant’s
new evidence. The court’s assessment of prejudice is supported by the record.
Accordingly, while the record shows that trial counsel’s performance in failing to
investigate and present mental health evidence was deficient, appellant’s layered claims
[J-92-2015] - 47
of counsel’s ineffectiveness were properly dismissed by the PCRA court on
Strickland/Pierce analysis grounds, in that it is not reasonably probable the outcome of
the penalty proceeding would have been different had the contradictory expert evidence
been presented to the jury.
VIII. Aggravating circumstance
Appellant asserts the Commonwealth did not prove the single aggravating
circumstance — 42 Pa.C.S. §9711(d)(6) (killing committed during perpetration of felony)
— beyond a reasonable doubt because it did not present sufficient evidence to show he
was the shooter. Appellant argues the Commonwealth proceeded on a theory of
accomplice liability and the trial evidence “left open the real possibility that [a]ppellant
was at most an accomplice rather than the actual killer, and consequently, that the
(d)(6) aggravating circumstance was invalid.” Appellant cites Commonwealth v.
Lassiter, 722 A.2d 657, 662 (Pa. 1998) (Opinion Announcing Judgment of Court
(OAJC), for the proposition that, “Section 9711(d)(6) may not be applied to an
accomplice.” Appellant’s Brief at 63.17 Appellant claims trial counsel was ineffective for
17
Although the lead opinion in Lassiter was a plurality, with a fourth Justice concurring
in the result, the three-Justice dissenting opinion by then-Justice, now-Chief Justice
Saylor, agreed a prosecution for murder based on accomplice liability cannot support
the (d)(6) aggravating circumstance. Lassiter, 722 A.2d at 664 (Saylor, J., concurring,
joined by Flaherty, C.J., and Zappala, J.). The issue presented itself in Lassiter in a
non-capital guise: Lassiter waived her right to a jury trial in exchange for the
Commonwealth’s promise not to seek the death penalty; she was convicted of second-
degree murder and her life sentence was affirmed on direct appeal; and she later
claimed on PCRA review that trial counsel was ineffective because the
Commonwealth’s promise not to pursue the death penalty was illusory consideration
given the strong argument that the aggravator did not apply to accomplices. The
Lassiter Court agreed on the scope of the aggravator, with the division on the Court
centering on the question of prejudice.
[J-92-2015] - 48
failing to challenge application of the aggravating circumstance on this basis and
appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness.
The Commonwealth responds Lassiter was decided four years after appellant’s
trial and this Court has held counsel cannot be deemed ineffective for failing to
anticipate Lassiter’s holding. Appellee’s Brief at 68-69 (citing cases). Moreover, the
Commonwealth maintains Lassiter “would have been inapplicable in any event because
[appellant] was tried and sentenced as the principal killer, not as an accomplice.” Id. at
68. The PCRA court echoes the Commonwealth’s response and adds that, on direct
appeal, this Court determined the evidence was sufficient to prove appellant killed the
victim.
Lassiter makes clear the pertinent aggravating circumstance applies only to
principals, not accomplices. The Commonwealth is correct that this Court has
repeatedly held counsel cannot be deemed ineffective for not anticipating Lassiter.
See, e.g., Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009); Spotz, 896 A.2d at
1238 (same). Moreover, the evidence at trial, including appellant’s statements to Buigi
admitting he shot and killed LaCourt during a robbery, was sufficient to support
application of this aggravating circumstance, and so prior counsel cannot be faulted for
failing to challenge it on this theory. There was no error in the PCRA court’s dismissal
of appellant’s layered claim of counsel’s ineffectiveness.
IX. Joint penalty proceedings
Appellant claims he was denied an individualized sentencing determination
because his penalty phase proceeding was joined with that of his codefendant, and the
joint proceeding “injected irrelevant, non-statutory aggravation into the case in violation
of [a]ppellant’s rights to due process and a fair sentencing proceeding.” Appellant’s
[J-92-2015] - 49
Brief at 68. Appellant correctly notes codefendant presented evidence of four mitigating
circumstances while appellant presented only two.18 Appellant argues this difference
allowed the jury to compare and decide the penalty based on which defendant
presented more mitigation evidence. He then claims this circumstance helped to lessen
the impact of appellant’s presentation because codefendant had no criminal record,
while appellant had numerous arrests and convictions; codefendant was seventeen-
years-old at the time of the murder while appellant was twenty-years-old; codefendant’s
evidence at trial, if believed, tended to show his participation in the killing was relatively
minor; and codefendant presented a greater number of character witnesses.
Appellant also argues “the penalty phase defenses” of appellant and codefendant
“were irreconcilable and antagonistic” based on codefendant’s claimed applicability of
the (e)(7) mitigating circumstance that his participation was relatively minor. Id. at 69.
Appellant posits, “The jury was implicitly told that [appellant’s] role [in the murder] was
major. This constituted non-statutory aggravation.” Id. Appellant then speculates the
jury simply “ranked” appellant and codefendant rather than making individualized
determinations as to penalty. Id. at 71. Appellant claims trial counsel was ineffective for
failing to develop this line of argument and to seek severance of the penalty
proceedings; he then states appellate counsel likewise should have developed the
theory and alleged trial counsel was ineffective on this ground.
The Commonwealth responds the layered claim does not warrant PCRA relief
because appellant did not develop legal argument to support the claim; did not proffer
evidence to overcome the presumption of reasonable performance; the joinder of
18
Codefendant presented evidence of the following statutory mitigating circumstances
under Section 9711: (e)(1) (no significant history of prior criminal convictions); (e)(4)
(age at the time of the crime); (e)(7) (participation in homicidal act was relatively minor);
and (e)(8) (catch-all).
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proceedings was statutorily required and constitutionally permissible; and appellant was
not prejudiced by the joint hearing. The PCRA court noted “Pennsylvania’s death
penalty statute requires that the same jury which rendered the verdict as to guilt is to
determine the penalty.” PCRA Court Op. at 32, citing 42 Pa.C.S. §9711(a)(1). The
court further noted this Court has held a defendant’s constitutional right to individualized
sentencing does not require separate penalty hearings. Id., citing Commonwealth v.
Bond, 985 A.2d 810, 824 (Pa. 2009). The court consequently determined the layered
ineffectiveness claim lacked arguable merit.
Again we discern no reversible error. First, the statutory provision cited by the
trial court provides, “After a verdict of murder of the first degree is recorded and before
the jury is discharged, the court shall conduct a separate sentencing hearing in which
the jury shall determine whether the defendant shall be sentenced to death or life
imprisonment.” 42 Pa.C.S. §9711(a)(1) (emphasis added). Neither appellant nor
codefendant sought severance as to the guilt phase portion of the trial, and the jury
convicted them both of first-degree murder. Thus, before the jury was discharged, it
was obligated under the statute to determine the penalty for both defendants. The
same jury would necessarily be required to hear the mitigating evidence for both,
regardless of whether the penalty proceedings were conducted separately or as one.
Of course, counsel could have sought severance of the entire trial, posing the
current argument in support. But there are recognized countervailing reasons why
related cases, and related defendants, are tried together. Such decisions on severance
are generally within the discretion of the trial court. See Commonwealth v. Travers, 768
A.2d 845, 846 (Pa. 2001); Commonwealth v. Lopez, 739 A.2d 485, 501 (Pa. 1999).
Notably, appellant does not account for these cases. Given this reality, it is difficult to
fault trial counsel for not formulating the argument present counsel has now mustered.
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Moreover, this Court has recently reiterated there is no constitutional right to a
separate sentencing hearing, so long as each defendant receives an individualized
sentence and the jury is free to consider the mitigation evidence. Daniels, 104 A.3d at
317.19 Additionally, in holding there is no constitutional right to individualized sentencing
proceedings, this Court has rejected virtually the same claims forwarded here. See
Commonwealth v. Simpson, 66 A.3d 253, 275 n.27 (Pa. 2013) (rejecting claim of
prejudice in joint penalty proceeding where evidence allegedly cast codefendant in more
sympathetic light given codefendant’s pursuit of greater number of mitigating
circumstances). Here, despite appellant’s assertions and speculations to the contrary,
the jury was free to consider the relevant mitigating evidence for each defendant and to
make individualized penalty determinations for both based on the merits. Moreover,
juries are presumed to follow a court’s instructions. Commonwealth v. Poplawski, 130
A.3d 697, 717 (Pa. 2015). In relevant part, the trial court instructed this jury as follows:
I need not tell you again that although these defendants are being tried at
the same time, they are here on the penalty phase the same as they were
in the guilt or innocence phase, and that is separately. You are to
consider the evidence against each one separately and apply the law to
each one separately.
N.T. 3/11/94 at 88. Accordingly, the PCRA court did not err in dismissing this layered
claim of counsel’s ineffectiveness.
X. Simmons claim
19
Appellant does not suggest the United States Supreme Court has ever recognized a
due process right to separate sentencing proceedings for capital codefendants. It would
be unusual to devise such a new constitutional rule through the guise of finding counsel
ineffective.
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During the penalty phase, defense counsel argued to the jury “life imprisonment
is [an] onerous punishment in and of itself,” N.T. 3/13/94 at 77, but counsel did not ask
the court to instruct the jury that life imprisonment in Pennsylvania means a life term
without possibility of parole. Appellant claims trial counsel was ineffective for failing to
seek such an instruction, and appellate counsel was ineffective for failing to raise a
claim of trial counsel’s ineffectiveness, because the prosecutor, during closing
argument, put appellant’s future dangerousness at issue.
The Commonwealth and the PCRA court respond the seminal case in this
domain, Simmons v. South Carolina, 512 U.S. 154, 161-62 (1994) (plurality), which held
defendants are entitled, in appropriate circumstances, to an instruction explaining life
imprisonment means life without parole, was not decided until after appellant’s trial.
Moreover, under Pennsylvania law at the time of appellant’s trial, a jury was expressly
prohibited from being informed that life meant life without parole. See Commonwealth
v. Travaglia, 792 A.2d 1261, 1265 (Pa. 2002) (explaining prior to United States
Supreme Court’s decision in Simmons, the law in Pennsylvania expressly prohibited
juries from being informed life meant life without parole), citing Commonwealth v.
Thompson, 739 A.2d 1023, 1032 (Pa. 1999).
Nevertheless, appellant argues Simmons had been argued before the High Court
by the time of his trial, a decision was pending in the case, and he claims “reasonably
competent counsel should have requested the instruction, in an abundance of caution,
to protect his client’s interests[.]” Appellant’s Brief at 75. We disagree that counsel can
be so faulted. Indeed, this Court has repeatedly held trial counsel cannot be deemed
ineffective for failing to anticipate Simmons would change the law in this
Commonwealth. Thompson, 739 A.2d at 1032 (collecting cases) (rejecting argument
counsel should have anticipated Simmons decision based on High Court’s grant of
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certiorari in that case prior to start of Thompson’s trial). Accordingly, the PCRA court
did not err in denying relief on this layered ineffectiveness claim.
XI. Vienna Convention
Appellant is a citizen of Trinidad and Tobago, and argues pursuant to Article 36
of the Vienna Convention on Consular Relations (Vienna Convention),20 the United
States and the Commonwealth of Pennsylvania were required to inform him he had an
absolute right to contact the Trinidadian embassy regarding his arrest, detention,
conviction and condemnation. Appellant’s Brief at 75-76. He claims, had he been
properly informed, “the consulate could have provided substantial assistance” to
“ensur[e] that he received a fair trial and avoided the death penalty.” Id. at 76. He
speculates “consular officials would have provided [him] with legal and financial
assistance for investigation and mitigation development and presentation of relevant
mitigating evidence about his background in Trinidad.” Id. at 76-77. Appellant then
claims prior counsel were ineffective for failing to raise this claim. He makes no
developed presentation as to why his layered ineffectiveness claim has arguable merit,
but asserts counsel could have had no reasonable basis for failing to assert his rights
under the Vienna Convention and he maintains he was prejudiced.
The Commonwealth responds the underlying claim lacks merit because the
Vienna Convention, and federal case law interpreting it, does not confer individually
enforceable rights or provide a judicial remedy for its violation. See Vienna Convention
20
The Vienna Convention, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No 6820, was
ratified by the United States upon the advice and consent of the Senate in 1969. See
Medellin v. Texas, 552 U.S. 491, 499 (2008).
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(Preamble) (purpose of Vienna Convention “is not to benefit individuals” but “to
contribute to the development of friendly relations among nations”); Cardenas v. Dretke,
405 F.3d 244, 253 (5th Cir. 2005) (“Vienna Convention does not confer individually
enforceable rights”); United States v. Ademaj, 170 F.3d 58, 67 (1st Cir. 1999) (Vienna
Convention itself prescribes no judicial remedy or other recourse for its violation). Cf.
Sanchez-Llamas v. Oregon, 548 U.S. 331, 337 (2006) (High Court declined to decide
whether Vienna Convention grants enforceable rights to individuals).
The PCRA court determined because appellant could have raised the underlying
claim at trial or on direct appeal, but did not, it is waived, as is his claim of trial counsel’s
ineffectiveness. The court concluded the claim of appellate counsel’s ineffectiveness
was not properly layered, and is meritless in any event.
In Sanchez-Llamas, the United States Supreme Court consolidated and decided
two cases concerning the availability of judicial relief for violations of the Vienna
Convention. Both defendants were foreign nationals who were arrested for serious
crimes, but were not informed they could request the consulates of their home countries
be notified of their detentions. The High Court began by noting Article 36 of the Vienna
Convention “addresses communication between an individual and his consular officers
when the individual is detained by authorities in a foreign country.” Id. While declining
to decide whether Article 36 conferred enforceable individual rights, the High Court
stated “Article 36 does not guarantee defendants any assistance at all. The provision
secures only a right of foreign nationals to have their consulate informed of their arrest
or detention — not to have their consulate intervene[.]” Id. at 349 (emphasis in original).
In the first Sanchez-Llamas case, among other things, the High Court determined
Act 36 did not require suppression of evidence because the defendant had not been
informed of the right to notify his consulate. Id. at 350. In the second case, a state
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court had dismissed the defendant’s Article 36 claim because he failed to raise the
claim at trial or on direct appeal and thus he was barred, pursuant to state procedural
rules, from raising it on collateral review. Id. The High Court held claims under Article
36 can be subject to state procedural default rules. Id. at 358-60.
In Commonwealth v. Padilla, 80 A.3d 1238 (Pa. 2013), this Court applied the
holdings of Llamas-Sanchez in a direct capital appeal. We declined the appellant’s
invitation there to “fashion an appropriate remedy” for alleged violations of Act 36,
determined there was no support for his expansive interpretation of the Vienna
Convention, and dismissed his claims of trial court error, in part because “his view is
supported neither by the text of the treaty nor the United States Supreme Court.”
Padilla, 80 A.3d at 1262, citing Llamas-Sanchez, 548 U.S. at 349.
In light of the actual terms of the Convention, and this case law, counsel can
hardly be faulted in the early 1990s for failing to forward the claim appellant has devised
here. There remains no factual or legal support for this layered claim of counsel’s
ineffectiveness.
XII. Overarching Ineffective Assistance
In his amended PCRA petition, appellant included the following claim for relief:
To the extent that trial/appellate counsel failed to raise and reasonably
litigate the issues described throughout this Petition, counsel was
ineffective in violation of the Sixth and Fourteenth Amendments, and the
corresponding provisions of the Pennsylvania Constitution. Petitioner has
layered each of his ineffectiveness claims, where appropriate, to include
both trial and appellate counsel. Petitioner requests a hearing with
respect to each claim and asserts that he can prove each issue has
arguable merit, that counsel had no reasonable basis for his actions or
inactions and that Petitioner was prejudiced by counsel’s deficient
performance.
Appellant’s Amended PCRA Petition at 56.
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The PCRA court denied this claim (and all others except the claim regarding
mental health mitigating evidence) without a hearing. In appellant’s Rule 1925(b)
statement of matters complained of on appeal, he set forth the following claim of error:
“[t]rial and appellate counsel were ineffective for failing to raise the issues presented in
the PCRA petition at trial, and in post-trial motions and for failing to litigate these issues
on direct appeal to the Pennsylvania Supreme Court.” Concise Statement of Matters
Complained of on Appeal at 3. In its responsive Rule 1925(a) opinion, the court noted
appellant “fails to specify the claims to which he is referring and whether they are in any
manner different from the other claims asserted in his Statement of Errors.” PCRA
Court Op. at 33. The court concluded the claim was too vague to permit a response
and deemed it waived. Id.
Appellant now argues he “was not obliged to describe in detail his claims of
ineffectiveness in a 1925(b) statement[,]” citing the Rule itself for the proposition the
statement must be concise. Appellant’s Brief at 78. Aside from alleging the concise
nature of his statement “cannot be held against [him]” appellant again provides no
clarification regarding the substance of his claim, and significantly, he does not identify
or articulate any focused claim of error or ineffectiveness apart from the “concise”
claims already raised. Accordingly, to the extent appellant's claim fails to contain
developed argument or citation to supporting authorities and the record, it is waived.
See Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014). In any event, the specific
claims of error and ineffectiveness raised in appellant’s appeal have been addressed
above and rejected.
XIII. Cumulative Prejudice
Finally, appellant contends, even if this Court finds he is not entitled to relief on
any particular claim, he is nevertheless entitled to relief because the cumulative effect of
[J-92-2015] - 57
those errors denied him a fair trial, fair sentencing proceeding, and the heightened
procedural safeguards in capital cases. He notes the PCRA court rejected one of his
guilt phase claims and one of his penalty phase claims on the ground he failed to show
resulting prejudice.
While this Court has emphasized that “no number of failed claims may
collectively warrant relief i[f] they fail to do so individually,” Commonwealth v.
Sepulveda, 55 A.3d 1108, 1150 (Pa. 2012), quoting Commonwealth v. Rainey, 928
A.2d 215, 245 (Pa. 2007), we have also recognized that “if multiple instances of
deficient performance are found, the assessment of prejudice properly may be premised
upon cumulation.” Sepulveda, 55 A.3d at 1150, quoting Commonwealth v. Johnson,
966 A.2d 523, 532 (Pa. 2009). To the extent we have adverted to prejudice principles in
disposing of appellant's cognizable claims of trial or appellate counsel’s ineffectiveness,
we are satisfied that, even if cumulated, appellant is entitled to no relief.
Conclusion
For the foregoing reasons, we hold the PCRA court properly dismissed
appellant's petition for PCRA relief following a hearing limited to one issue. Accordingly,
we affirm the order denying relief.
Justices Baer and Mundy join the opinion in full. Justices Todd and Wecht
join the opinion, except with respect to the reasoning contained in Part VI.
Justice Todd files a concurring opinion in which Justice Wecht joins.
Chief Justice Saylor files a dissenting opinion in which Justice Donohue
joins.
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