Com. v. Miller, K.

J-S82027-18
2019 PA Super 188COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH MILLER, :
:
Appellant : No. 338 EDA 2017
Appeal from the PCRA Order January 12, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0902382-1998
BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED JUNE 11, 2019
Kenneth Miller (Appellant) appeals from the January 12, 2017 order
granting in part and denying in part his first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review,
we affirm.
We provide the following background.
Charles Love, Esq. (Love), represented [Appellant’s] uncle,
Gregory Miller (Gregory) on various matters, and successfully
obtained money for Gregory as the result of a variety of civil
claims. … However, Love could not distribute the entire sum to
Gregory because of outstanding support orders and child support
arrearages.
On the morning of February 25, 1998, [Appellant] and Marcus
Lloyd (Lloyd) met Herbert Blakeney (Blakeney) at Blakeney’s
house, at which time the three traveled to Gregory’s home.
During the ensuing conversation, Gregory spoke to the others
about robbing Love at his office at 1006 Spruce Street in
Philadelphia, and mentioned that anyone present at the office
might have to be shot. According to the original plan, as devised
*Retired Senior Judge assigned to the Superior Court.
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by Gregory and as testified to by Blakeney, [Appellant] was to
be the shooter and Lloyd was to tie up the victims while
Blakeney acted as a lookout. Gregory gave [Appellant] a
handgun and told Blakeney to go to Love’s office, get a check for
[$10,000] from [Love], and give the check to Lloyd; Gregory
instructed Lloyd to take the check to the bank and cash it.
Gregory did not accompany [Appellant], Blakeney, and Lloyd to
Love’s office, but before they left for the office, Gregory told the
three that the victims would have to be killed and to “leave no
witnesses.”
En route, [Appellant], Blakeney, and Lloyd took turns carrying
the weapon, but Blakeney ended up with it when they reached
Love’s office. Brian Barry (Barry), a paralegal, opened the office
door, whereupon [Appellant], Blakeney, and Lloyd entered and
Blakeney brandished the gun. Blakeney then told Love to write
out a check for [$10,000] while Lloyd tied up Barry. Lloyd
departed to cash the check at the bank. Remaining at Love’s
office, [Appellant] and Blakeney passed the gun back-and-forth
to each other.
Lloyd was unable to cash the check because he had insufficient
identification, so he returned to Love’s office and said to Love,
“[y]ou know you is [sic] a dead mother f***er now.” [Appellant]
then handed the gun to Blakeney and exclaimed that Blakeney
“was a b**** ass n***er if [he didn’t] kill the mother f***ers.”
Blakeney then confronted the victims in the back storage room
of Love’s office and shot each of them in the head. Blakeney
took [$1,500] from Love’s person, and then [Appellant],
Blakeney, and Lloyd fled the scene. The three parted ways
temporarily. They later met at Blakeney’s house, agreed to split
the [$1,500] “proceeds” among the three of them, and further
agreed to tell Gregory that they did not obtain any money
because they could not cash the check.
At approximately 12:00 p.m. on that day, February 25, 1998,
one of Love’s clients flagged down a police officer at 10th and
Spruce Streets and informed the officer that her attorney was in
need of an ambulance. The officer entered the law office and saw
the bodies of Love and Barry lying face down on the floor of the
storage closet, with gunshot wounds to the back of their heads.
Love’s desk ledger contained an entry made that day indicating
that he had written a check for [$10,000]. The police officer
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noticed two .38 caliber shell casings on the floor. Both bullets
were later recovered from the victims by the medical examiner.
[Eventually, Appellant, Lloyd, Blakeney, and Gregory were
arrested in connection with this crime and charged with, inter
alia, murder.]
The trial court conducted a jury trial for [] three defendants,
[Appellant], Lloyd, and Gregory, … from September 16, 1999,
until September 29, 1999. Blakeney entered into a negotiated
plea agreement, at which time he pl[eaded] guilty to two counts
of murder in the first degree and received two concurrent life
sentences, in exchange for his testimony regarding the roles of
[Appellant], Lloyd, Gregory, and himself in the chain of events
leading to the deaths of Love and Barry.
Commonwealth v. Miller, 819 A.2d 504, 507-08 (Pa. 2002) (footnote and
citations to notes of testimony omitted).
At the conclusion of the trial, Appellant was convicted of two counts of
first-degree murder, and one count each of robbery and criminal conspiracy.
The trial court sentenced Appellant to death on each murder conviction after
the jury found the existence of two aggravating circumstances, which
outweighed the lone mitigating circumstance. On direct appeal, our
Supreme Court affirmed. Miller, 819 A.2d 504. On October 6, 2003, the
United States Supreme Court denied Appellant’s petition for a writ of
certiorari. Miller v. Pennsylvania, 540 U.S. 827 (2003).
On January 21, 2004, Appellant pro se timely filed the instant PCRA
petition. On October 29, 2008, through counsel, Appellant amended his
petition, raising eight claims of penalty-phase error and seven claims of
guilt-phase error.
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On May 13, 2014, the PCRA court granted Appellant penalty-phase
relief by vacating his death sentences and imposing a sentence of life
imprisonment without the possibility of parole (LWOP) on each murder
conviction. The Commonwealth conceded to the granting of this relief and
imposing of the amended sentence. See Commonwealth’s Supplemental
Motion to Dismiss, 4/17/2014, at 1.
On May 13-15, 2014, the PCRA court conducted an evidentiary hearing
on some of Appellant’s guilt-phase claims. The following individuals
testified: Daniel Martell, forensic psychologist; Thomas W. Moore, Jr.,
Esquire, Appellant’s trial counsel; Robert Durison, Director of the
Classification Movement and Registration Division of the Philadelphia Prison
System; and Joseph J. Mariano, Esquire, Appellant’s direct appeal counsel.
The PCRA court denied relief on Appellant’s guilt-phase claims on January
13, 2017.1
1 The docket indicates several continuances were granted throughout
Appellant’s PCRA proceedings. However, that does not excuse the nearly 13
years it took to resolve Appellant’s January 21, 2004 PCRA petition. Our
Supreme Court has made clear that “[t]he PCRA court [has] the ability and
responsibility to manage its docket and caseload and thus has an essential
role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citing Commonwealth v.
Porter, 35 A.3d 4, 24–25 (Pa. 2012) (“[T]he court, not counsel, controls the
scope, timing and pace of the proceedings below.”)). Additionally, “post-
conviction counsel must ‘act expeditiously so as to reduce unnecessary
delays and ensure the efficient administration of justice.’” Id. (citing
Commonwealth v. Sneed, 45 A.3d 1096, 1104 n.11 (Pa. 2012)).
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This timely-filed appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925. On appeal, Appellant raises seven issues for
our review. Appellant’s Brief at 1-2.
I.
Before reaching the merits of Appellant’s claims, we address whether
this Court or our Supreme Court has jurisdiction over this appeal. This Court
has “exclusive jurisdiction of all appeals from final orders of the courts of
common pleas … except such classes of appeals as are by any provision of
this chapter within the exclusive jurisdiction of the Supreme Court or the
Commonwealth Court.” 42 Pa.C.S. § 742. Our Supreme Court has exclusive
jurisdiction of appeals from final orders of the courts of common pleas in,
inter alia, automatic review of sentences as provided by 42 Pa.C.S.
§ 9546(d) (providing that in the PCRA context, “[a] final court order … in a
case in which the death penalty has been imposed shall be directly
appealable only to the Supreme Court”). 42 Pa.C.S. § 722(4).
In this case, while the death penalty had been imposed in the past, as
part of Appellant’s PCRA relief, the death penalty was vacated and replaced
with two LWOP sentences. Thus, our jurisdictional analysis turns on whether
a PCRA order granting penalty-phase relief and resentencing a defendant to
a non-death sentence, but denying guilt-phase relief, qualifies as a PCRA
case in which the death penalty has been imposed for purposes of
subsection 9546(d). If such an order falls within the scope of subsection
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9546(d), it must be appealed directly to our Supreme Court. However, if it
falls outside the scope of subsection 9546(d), this Court has jurisdiction to
entertain the appeal.
We begin with an analysis of subsection 9546(d), the relevant
jurisdictional provision. When this Court interprets a statute, we do so
mindful of the following principles.
[O]ur objective is to ascertain and effectuate the intention of the
General Assembly[,] and that [e]very statute shall be construed,
if possible, to give effect to all of its provisions. This Court may
not ignore the language of a statute, nor may we deem any
language to be superfluous. Governing presumptions include
that the General Assembly intended the entire statute at issue to
be effective and certain, and that the General Assembly did not
intend an absurd result.
Bayview Loan Servicing, LLC v. Lindsay, 185 A.3d 307, 312 (Pa. Super.
2018) (citations and quotation marks omitted). “In reading the plain
language, ‘[w]ords and phrases shall be construed according to rules of
grammar and according to their common and approved usage[.]’” Gross v.
Nova Chemicals Servs., Inc., 161 A.3d 257, 264 (Pa. Super. 2017)
(quoting 1 Pa.C.S. § 1903(a)).
Thus, we consider first the plain language of subsection 9546(d): “A
final court order under this subchapter in a case in which the death penalty
has been imposed shall be directly appealable only to the Supreme Court
pursuant to its rules.” 42 Pa.C.S. § 9546(d) (emphasis added).
Grammatically, the verb “has been” is used when a condition was imposed in
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the past and continues to be imposed in the present. Contrarily, in
Appellant’s case, the death penalty had been imposed in the past, but does
not continue to be imposed at the present time. Thus, the plain language of
subsection 9546(d) indicates that a death sentence must remain a potential
sentence at the time of the appeal in order for the Supreme Court to possess
exclusive jurisdiction over a PCRA appeal. The relevant case law supports
this conclusion.
In Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001), the PCRA
court had granted penalty-phase relief in the form of a new penalty hearing,
but denied guilt-phase relief. Our Supreme Court held that it had exclusive
jurisdiction over that appeal because the “legislature [does] not require that
the sentence of death actually be pending in order for th[e Supreme] Court
to have jurisdiction.” Id. at 648. Importantly, a death sentence remained a
possibility because Bryant still could have been sentenced to death following
his new penalty phase hearing. See Commonwealth v. Rompilla, 983
A.2d 1207, 1211 (Pa. 2009) (distinguishing Bryant because it was a PCRA
appeal where a new penalty-phase hearing was pending “and the prospect of
a sentence of death remained”).
That is not the case here. Appellant is not awaiting a new sentencing
hearing. Appellant has already been resentenced to LWOP. No party has
appealed this new sentence. As such, not only is a death sentence not
currently pending, it has been eliminated as a potential sentence. In other
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words, there simply is no current or potential death sentence applicable
here.
Moreover, in Rompilla, our Supreme Court clarified that although the
death penalty had been imposed in the past, once it is vacated and replaced
with a LWOP sentence, our Supreme Court no longer has exclusive
jurisdiction over such a case.
The statutory reference [in 42 Pa.C.S. § 9711(h)(1)] to a
“sentence of death,” which vests jurisdiction in th[e Supreme]
Court, plainly does not encompass cases in which the death
penalty was imposed at one time but subsequently was vacated
and a judgment of sentence of life imprisonment was imposed.
The sentence in this case is life imprisonment, not death. Our
capital appeal jurisdiction simply does not exist for a defendant
such as appellant who is actually unaggrieved by the murder
sentence below, and who seeks to litigate collateral complaints
when the life/death outcome could not have been better for him.
983 A.2d at 1211.
We are cognizant that Rompilla involved the interpretation of 42
Pa.C.S. § 9711(h), not subsection 9546(d). However, we find its sound
reasoning applicable here. Appellant is not facing a sentence of death.
Once he was resentenced to LWOP, his appeal was no longer within the
exclusive jurisdiction of our Supreme Court. See Rompilla, 983 A.2d at
1211 (“The sentence under review here is life imprisonment; jurisdiction
over the appeal lies in the Superior Court.”); see also Commonwealth v.
Kindler, 147 A.3d 890, 893 (Pa. 2016) (noting that subsection 9546(d)
empowers our Supreme Court with exclusive jurisdiction “of appeals from
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final orders entered in PCRA proceedings where the petitioner faces a
sentence of death”). This Court is more than qualified to handle this PCRA
appeal of two LWOP sentences in the first instance, and we find no
precedent compelling us to transfer this case to our Supreme Court.
Satisfied that we have jurisdiction over this appeal, we now proceed to
the merits of Appellant’s claims.
II.
On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted). “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).
Because some of Appellant’s claims allege that the PCRA court erred in
denying his petition without first holding an evidentiary hearing, we also
keep the following in mind.
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s discretion
to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other
evidence. It is the responsibility of the reviewing court on appeal
to examine each issue raised in the PCRA petition in light of the
record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of
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material fact in controversy and in denying relief without
conducting an evidentiary hearing.
Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations
omitted). “Thus, 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.”
Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). See also
Commonwealth v. Paddy, 15 A.3d 431, 467 (Pa. 2011).
A.
In Appellant’s first claim, he argues that the PCRA court erred in
dismissing his claim that the Commonwealth had committed a violation
pursuant to Brady v. Maryland, 373 U.S. 83 (1963),2 by failing to disclose
evidence calling into question the credibility of the key Commonwealth
witness and Appellant’s co-conspirator, Blakeney. Appellant’s Brief at 15.
We set forth the following with respect to a Brady claim:
Under Brady[] and subsequent decisional law, a prosecutor has
an obligation to disclose all exculpatory information material to
the guilt or punishment of an accused, including evidence of an
impeachment nature. To establish a Brady violation, an
appellant must prove three elements: (1) the evidence at issue
is favorable to the accused, either because it is exculpatory or
because it impeaches; (2) the evidence was suppressed by the
2 A Brady claim is cognizable under the PCRA. See Commonwealth v.
Simpson, 66 A.3d 253, 264 n.16 (Pa. 2013) (citation omitted).
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prosecution, either willfully or inadvertently; and (3) prejudice
ensued.
Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).
Specifically, Appellant alleges that the Commonwealth committed a
Brady violation by withholding evidence that Blakeney was mentally ill.
Appellant’s Brief at 15-16. According to Appellant, the Commonwealth
withheld Blakeney’s plea colloquy and various medical records that detailed
Blakeney’s mental illnesses. Amended PCRA Petition, 10/29/2008, at 124-
29. On appeal, Appellant claims that Blakeney’s credibility could have been
challenged had Attorney Moore been aware of Blakeney’s “psychotic
episodes, blackouts, command hallucinations, head injuries, lead poisoning,
rage attacks, manipulativeness, learning disabilities, and [use of]
psychotropic drugs[.]” Appellant’s Brief at 20.
We consider this claim mindful of the following.
When a witness suffers from a mental disability relevant to
his or her ability to accurately observe, recall or report events,
the jury must be informed of the disability in order to assist it in
properly assessing the weight and credibility of the witness’s
testimony. The evidence can be said to affect credibility when it
shows that the witness’s mental disorganization impaired his or
her capacity to observe an event at the time of its occurrence, to
maintain a clear recollection of it, or to communicate the
observation accurately and truthfully at trial.
Commonwealth v. Davido, 106 A.3d 611, 637 (Pa. 2014) (citations
omitted).
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Blakeney’s Plea Record
By way of background, Blakeney pleaded guilty in camera on July 16,
1998. At the conclusion of his plea, the plea court sealed Blakeney’s record.
Following Appellant’s jury trial, the trial court issued a separation order for
Blakeney to be kept separate from Lloyd, Appellant, and Gregory while
incarcerated. Separation Order, 10/26/1999. Blakeney’s plea record
remained sealed until the PCRA court ordered its production for inspection by
PCRA counsel and the Commonwealth pursuant to the instant PCRA
petition.3 Order, 11/29/2006.
On appeal, Appellant contends that Blakeney’s plea record was
material under Brady as mental health impeachment evidence of a vital
Commonwealth witness. Appellant’s Brief at 21. Additionally, Appellant
claims that the Commonwealth requested that Blakeney’s record be sealed
at the conclusion of his plea, and therefore the Commonwealth cannot now
3 Blakeney’s plea transcript is not included in the certified record. We note
that Appellant filed an appendix to his amended PCRA petition, and the index
to that appendix indicates that this transcript may have been included in the
record below. See Appendix and Certification of Witnesses to Amended
PCRA Petition and Writ of Habeas Corpus, 12/3/2009, at 2 (unnumbered).
As discussed in detail infra, if the transcript was included in the appendix in
the record below, it was not transmitted to this Court on appeal. However,
because the transcript’s absence does not hinder our review, we do not find
this claim waived. See Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.
Super. 2014) (citation omitted) (noting that an appellant’s failure to ensure
the inclusion of any necessary transcript in the certified record renders any
claim that cannot be resolved in the absence of that transcript waived).
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hide behind its sealing to claim that it did not have access to Blakeney’s plea
record. Id. at 21-22.
At Appellant’s PCRA hearing, Attorney Moore, Appellant’s trial counsel,
testified that the Commonwealth did not disclose Blakeney’s plea record to
him as part of discovery in Appellant’s trial. N.T., 5/14/2014, at 14-15.
However, the PCRA court dismissed Appellant’s Brady claim because he
failed to prove that the Commonwealth possessed Blakeney’s plea record,
and thus no Brady violation occurred. Trial Court Opinion, 1/18/2018, at
10.
Appellant’s claim assumes that evidence of Blakeney’s mental health
at the time of his plea would have constituted admissible impeachment
evidence at Appellant’s trial. However, “[o]nly mental health disabilities that
impair a witness’s ability to observe, recall, or report events, are relevant
and admissible to impeach a witness’s credibility.” Davido, 106 A.3d at 637
(citation omitted). The only condition cited by Appellant that could
potentially be used to impeach Blakeney’s ability to recall events would be
Blakeney’s purported blackouts. But upon closer inspection, Blakeney’s
statement about blackouts during his plea proceeding, as read by Martell,
the forensic psychologist, at the PCRA hearing, was that Blakeney suffered
blackouts when frustrated or after getting hit. N.T., 5/13/2014, at 47.
There is no indication that either triggering event occurred during the course
of this robbery and murder. Therefore, we find that Appellant has not
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established that such impeachable evidence existed, and thus the
Commonwealth had no obligation under Brady to seek the unsealing of
Blakeney’s plea record. Accordingly, the PCRA court did not err in denying
Appellant’s Brady claim regarding Blakeney’s plea record.
Blakeney’s Mental Health Records
Separately, Appellant claims that the Commonwealth failed to disclose
Blakeney’s mental health records. On appeal, Appellant contends that these
records were material under Brady as mental health impeachment evidence
of a vital Commonwealth witness. Appellant’s Brief at 21.
At Appellant’s PCRA hearing, Attorney Moore testified that the
Commonwealth did not disclose Blakeney’s mental health records to him as
part of discovery in Appellant’s trial. N.T., 5/14/2014, at 14-15. However,
the PCRA court dismissed Appellant’s Brady claim because he failed to prove
that the Commonwealth possessed the referenced medical records, and thus
no Brady violation occurred. Trial Court Opinion, 1/18/2018, at 10.
Again, Appellant has not established that there was anything
impeachable in Blakeney’s mental health records. See Davido, supra. In
one mental health record, as relayed by Martell at the PCRA hearing,
Blakeney had explosive rage reactions, which involved seeing red
beforehand and not remembering what occurred afterwards. N.T.,
5/13/2014, at 81-82. As with Blakeney’s plea statement, this statement
does not undermine Blakeney’s trial testimony of what occurred during the
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robbery and murder. There is no indication that a blackout would have
occurred during the robbery and murder, affecting his ability to perceive the
events and recall them at Appellant’s trial. Even if this evidence constituted
impeachment evidence, our review of the record supports the PCRA court’s
finding that the Commonwealth did not have the medical records in its
possession at the time of Appellant’s trial. Because the Commonwealth did
not possess the evidence, it could not suppress the evidence, willfully or
inadvertently. Accordingly, the PCRA court did not err in denying Appellant’s
Brady claim.
B.
Appellant next argues that the PCRA court erred in dismissing his
layered ineffective-assistance-of-counsel claim that Attorneys Moore and
Mariano were ineffective for “failing to request a more probing inquiry of the
coercion [of one juror into voting guilty, and another juror who improperly
consulted his minister for advice on the verdict and prayed with other
jurors,] and failing to raise and preserve these issues.” Appellant’s Brief at
24.
We use the following standard to evaluate ineffective assistance of
counsel claims.
It is well-established that counsel is presumed to
have provided effective representation unless the
PCRA petitioner pleads and proves all of the
following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction
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lacked any objectively reasonable basis designed to
effectuate his client’s interest; and (3) prejudice, to
the effect that there was a reasonable probability of
a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
By way of background, the jury began deliberating at 11:38 a.m. on
September 24, 1999. N.T., 9/24/1999, at 62. The jurors were dismissed for
the weekend, and scheduled to report back to continue deliberations at 9:00
a.m. on Monday, September 27, 1999. Id. at 70. That Monday, the trial
court notified the parties that Juror 11 privately reported to a court officer
that she felt pressured and wanted to change her vote. N.T., 9/27/1999, at
10. Upon inquiry, the court officer indicated that at approximately 8:30
a.m., Juror 11 approached him in the hallway, outside the presence of the
other jurors, and asked him whether she could change her vote on
something she did Friday. He told her that she could do so because nothing
was official yet. Id. at 12-13. Separately, the court received a written jury
question about conspiracy at 9:40 a.m. that day. Id. at 11-12.
Based on this, the Commonwealth believed that further deliberations
had resolved the problem, and asked that the court instruct the jury that the
verdict is not final until it is recorded in open court. Id. at 13. Appellant’s
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trial counsel found that remedy satisfactory and did not request any
additional relief. Id. at 13-14. After responding to the jury’s written
question about conspiracy, the court provided the following additional
instruction: “I also want to remind you that no determination or verdict is
final until the jury as a whole returns a unanimous verdict in open court and
it is recorded.” Id. at 16. Following a full day of deliberations, the jury was
again dismissed for the evening, to report on Tuesday, September 28, 1999.
Id. at 20. The jury reached a final verdict on Wednesday, September 29,
1999.
In his amended PCRA petition, Appellant cited to and quoted PCRA
witness certifications obtained at some point after the verdict from Juror 11
and Juror 9 in support of Appellant’s claim that Juror 11 was coerced into
voting guilty. Amended PCRA Petition, 10/29/2008, at 188-89.4
4 After a thorough review of the record, we have determined that the
Appendix and Certification of Witnesses for Appellant’s Amended PCRA
Petition does not contain these certifications. In fact, that document
comprises only four pages: a cover page, a partial index (listing items 42-
59), and two pages consisting of the affidavit/declaration of Kenneth Ruffin,
Appellant’s father. See Appendix and Certification of Witnesses to Amended
PCRA Petition and Writ of Habeas Corpus, 12/3/2009.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. This requirement is not a mere “technicality” nor is this a
question of whether we are empowered to complain sua sponte
of lacunae in the record. In the absence of an adequate certified
record, there is no support for an appellant’s arguments and,
thus, there is no basis on which relief could be granted.
(Footnote Continued Next Page)
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(Footnote Continued) _______________________
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(some citations omitted).
In the absence of specific indicators that a relevant document
exists but was inadvertently omitted from the certified record, it
is not incumbent upon this Court to expend time, effort and
manpower scouting around judicial chambers or the various
prothonotaries’ offices of the courts of common pleas for the
purpose of unearthing transcripts, exhibits, letters, writs or PCRA
petitions that well may have been presented to the trial court
but never were formally introduced and made part of
the certified record. If, however, a copy of a document has been
placed into the reproduced record, or if notes of testimony are
cited specifically by the parties or are listed in
the record inventory certified to this Court, then we have reason
to believe that such evidence exists. In this type of situation, we
might well make an informal inquiry to see if there was an error
in transmitting the certified record to this Court. We might also
formally remand the matter to the trial court to ascertain
whether notes of testimony or other documentation can be
located and transmitted. If a remand is necessary, it is
appropriate to direct the trial court to determine why the
necessary documentation was omitted from the certified record.
An appellant should not be denied appellate review if the failure
to transmit the entire record was caused by an ‘extraordinary
breakdown in the judicial process.’ However, if the appellant
caused a delay or other problems in transmitting
the certified record, then he or she is not entitled to relief and
the judgment of the court below should be affirmed.
Id. at 7–8 (citations omitted).
We undertook efforts to inquire with our prothonotary’s office to
determine whether there was an error in transmitting the certified record on
appeal, and learned that the clerk only received the four pages outlined
supra. We note, however, that both Appellant and the Commonwealth cited
and quoted the witness certifications in writings to the PCRA court and this
Court. Moreover, the record indicates that the certifications existed within
the appendix, but were not transmitted. Because there is no evidence that
(Footnote Continued Next Page)
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Juror 11’s certification is reproduced as follows.
The other jurors were really pressuring me.
They kept saying “let’s get it over with.” They made
me feel that I wasn’t allowed to have my own
opinion. I was the youngest one there. I held out as
long as I could, but they yelled at me and called me
names and made me feel like I was responsible for
them not being able to go home.
They kept saying, “we’re not having a hung jury.
We’re not having spent all this time here so that you
can screw it up for the rest of us.” They pressured
me like crazy. I think I spent half my time in the jury
room crying. I kept saying, “[Appellant’s] not guilty
and I’m not going to be responsible for what
happens to him.” Finally, I just caved under the
pressure. I felt awful.
Certification of Witnesses, [Juror 11].
Amended PCRA Petition, 10/29/2008, at 188-89. See also Motion to
Dismiss, 6/29/2010, at 125 n.54 (discussing and quoting portions of
certification with citation to appendix); Appellant’s Brief at 27 (quoting a
portion).
According to Appellant, Juror 9’s certification supports his allegation of
coercion of Juror 11.
I remember that there was a big argument in the
jury room. We could not agree on who was actually
guilty of the crime. There were opinions in all
(Footnote Continued) _______________________
Appellant caused the problem in transmitting the record, and because
Appellant seemingly quotes the certifications in their entirety in his amended
PCRA petition, in the interest of judicial economy, we will review Appellant’s
claim as if the quoted certifications were part of the certified record.
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directions and we were a hung jury for a long time.
The biggest hold out was this young black girl. We
argued against her and she finally caved in. I
remember that the jury deliberated forever. We
wanted to go home. We weren’t going home if we
didn’t agree with her or get her to agree with us.
They were going to sequester us.
I was probably a bully during the deliberation. I was
the voice of reality. My mom worked for the
Orphan’s Court and I have been to many trials in the
past. I also used to work for the probation office. I
am really familiar with criminals and the way people
act. So I had an advantage over the other jurors
because I understood how these young boys think
and where they were coming from.
Certification of Witnesses, [Juror 9].
Amended PCRA Petition, 10/29/2008, at 189. See also Motion to Dismiss,
6/29/2010, at 125 n.54 (discussing and quoting portions of certification with
citation to appendix); Appellant’s Brief at 28 (quoting a portion).
Separately, Appellant cited to and quoted another portion of Juror 9’s
PCRA witness certification in support of his claim that Appellant was denied a
fair trial because Juror 9 prayed with other jurors and sought guidance from
his minister during the deliberations.
I am a Christian and I had to pray over my decision.
I prayed with several others in the jury room. I also
had to talk to my pastor about this. I went to him
before I made my final decision. I was so confused.
I asked him, “can I convict a man to death and not
be guilty of murder myself.” We didn’t talk about
the specific crime, but I was concerned about doing
something un-Christian. He gave me the guidance
and the strength to make my decision. He said
“render unto Caesar that which is Caesar[’]s and
render unto God that which is God’s.”
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See Affidavit of [Juror 9].
Amended PCRA Petition, 10/29/2008, at 191. See also Motion to Dismiss,
6/29/2010, at 129-30 (discussing and quoting portions of certification
without citation to appendix).
In its order denying Appellant an evidentiary hearing on this claim, the
PCRA court found this issue was waived and meritless on its face. Order,
6/8/2012, at 2 (unnumbered).
Preliminarily, we note that Appellant’s direct appeal predated
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), where our Supreme
Court held that, as a general rule, claims of ineffective assistance of counsel
should not be raised until collateral review, overruling prior case law
permitting review of such claims in the first instance on direct appeal. As
such, Appellant was required to raise any ineffective assistance of trial
counsel claims in that appeal, including the instant claim that Attorney
Moore was ineffective for failing to investigate Juror 9 and Juror 11, or
preserve the issue regarding Juror 11’s communication to the trial court.
Though Appellant raised several claims of ineffective assistance of trial
counsel in his direct appeal, he did not raise this claim. See Miller, 819
A.2d at 516 n.12, 517-19. Therefore, the PCRA court did not err in finding
Appellant’s claim waived as to Attorney Moore. See 42 Pa.C.S. § 9544(b)
(“[A]n issue is waived if the petitioner could have raised it but failed to do so
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before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”).
However, even if not waived, we agree with the PCRA court that the
claim, as to both Attorneys Moore and Mariano, is meritless on its face.
It is a general rule of law that a juror may not impeach the
jury’s verdict after the jury has been discharged, though an
exception to this rule is made in situations where the jury was
exposed to an ex parte influence which possesses a reasonable
likelihood of prejudice. Although they may testify to the
existence of an outside influence, jurors are prohibited “from
testifying as to the effect which these extra-evidentiary
influences had upon the jurors in reaching a decision,” just as
jurors are prohibited from recounting the mental processes by
which they arrived at their verdict. Additionally, we reiterate,
this Court long ago noted that interviewing jurors after a verdict
and obtaining from them ex parte, unsworn statements in
answer to undisclosed questions and representations by the
interviewers is highly unethical and improper and was long ago
condemned by this [C]ourt.
Commonwealth v. Tedford, 960 A.2d 1, 39 (Pa. 2008) (citations and
quotation marks omitted).
Instantly, without determining whether the underlying claims have
merit, we find that both Attorney Moore and Attorney Mariano had an
objectively reasonable basis for not interviewing Jurors 9 and 11 after the
verdict. As to Juror 11’s alleged coercion, Attorney Moore was satisfied with
the Court’s instruction and handling of the matter. Based upon our review of
the record, we find Attorney Moore’s decision in that regard to have an
objectively reasonable basis. Therefore, Attorney Mariano will not be
deemed ineffective for failing to raise a meritless claim of trial counsel
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ineffectiveness in that regard. See Commonwealth v. Spotz, 896 A.2d
1191, 1211 (Pa. 2006) (finding that “counsel will not be deemed ineffective
for failing to raise a meritless claim”).
As to Juror 9, there is no evidence of record that Attorney Moore or
Attorney Mariano knew that Juror 9 was praying with other jurors or that he
consulted his minister for advice on whether serving as a juror in a death
penalty case was inconsistent with his Christian beliefs. Our Supreme Court
has made clear that attorneys “do not have a recognized duty to interview
jurors in the hopes of uncovering a collateral claim by which to undo the
verdict.” Tedford, 960 A.2d at 40. Accordingly, the PCRA court did not err
in finding Appellant’ claim of ineffective assistance of trial and appellate
counsel meritless.
C.
Appellant next argues that the PCRA court erred in dismissing his
layered ineffectiveness claim that Attorney Moore was ineffective for failing
to meet meaningfully with Appellant prior to trial, and Attorney Mariano was
ineffective for failing to raise this claim on direct appeal.5 Appellant’s Brief
at 32.
During Appellant’s evidentiary hearing, Attorney Moore testified
regarding his representation of Appellant. See generally N.T., 5/14/2014,
5 As noted supra, Appellant’s direct appeal predated Grant, 813 A.2d 726.
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at 5-96. Following the hearing, the PCRA court credited Attorney Moore’s
testimony that he prepared adequately for Appellant’s case, met with him
more than once, and did not fail to interview Appellant prior to trial. PCRA
Court Opinion, 1/18/2018, at 11. Upon review of the record, there is ample
support for the PCRA court’s factual findings. See N.T., 5/14/2014, at 45,
50-51, 63-65, 67-68. Because Appellant’s claim that trial counsel was
ineffective is without merit, appellate “counsel will not be deemed ineffective
for failing to raise a meritless claim.” Spotz, 896 A.2d at 1210 (citation
omitted). Accordingly, we conclude that the PCRA court did not err in
dismissing this claim.
D.
Appellant next argues that the PCRA court erred in dismissing his claim
that Attorney Moore was ineffective for failing to investigate and uncover the
mental health impeachment evidence referenced in Appellant’s first claim to
undermine the credibility of Blakeney. Appellant’s Brief at 37.
As discussed supra, Blakeney’s plea record was sealed throughout
Appellant’s trial, and Appellant has failed to establish that the record
contained any impeachable evidence. See Davido, supra. Additionally,
Attorney Moore testified that because Appellant and Blakeney were friends,
he believed that if Appellant had any useful impeachment evidence,
Appellant would have disclosed that. N.T., 5/14/2014, at 94-96. Attorney
Moore also testified that he would not have interviewed Blakeney because
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Blakeney was Appellant’s co-defendant and represented by counsel. Id. at
76-77. As such, the PCRA court’s findings are supported by the record, and
we conclude that the court did not err in dismissing this claim.
E.
Appellant next claims that the PCRA court erred in dismissing his claim
of prosecutorial misconduct when the Commonwealth vouched for the
credibility of Blakeney and the trial court did not give a curative instruction.
Appellant’s Brief at 40. However, as noted by Appellant, this precise claim
was previously litigated during Appellant’s direct appeal.6 Id. Accordingly,
6 On direct appeal, Appellant argued that the prosecutor improperly
bolstered Blakeney’s testimony during direct and redirect examination by
asking him whether his plea was conditioned on his truthful testimony in the
instant case, and that the trial court erred in failing to give a curative
instruction after sustaining defense counsel’s objection on redirect. Miller,
819 A.2d at 513-14. Our Supreme Court held that the prosecutor did not
assert his personal opinion as to Blakeney’s credibility, but was merely
articulating “the parameters of the plea agreement, that Blakeney would
provide ‘truthful’ testimony and a guilty plea, in exchange for life
imprisonment (as opposed to death).” Id. at 515-16. Additionally, the trial
court instructed the jury on how to receive accomplice testimony, including
that those caught in the commission of a crime may falsely accuse others,
and specifically that “the testimony of [] Blakeney should be looked upon
with disfavor as coming from [a] corrupt and polluted source[.]” Id. at 516
(quoting N.T., 9/24/1999, at 20). Our Supreme Court noted that the law
presumes juries will follow the instructions given, and concluded the
Commonwealth did not impermissibly bolster Blakeney’s testimony. Id.
Finally, Appellant also argued that Attorney Moore was ineffective for failing
to object to the Commonwealth’s questions. Because our Supreme Court
concluded that the underlying argument lacked merit, counsel would not be
deemed ineffective for failing to raise a meritless claim, and therefore the
Court did not address the ineffectiveness claim. Id. at 516 n.12.
(Footnote Continued Next Page)
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the PCRA court properly dismissed this claim. See 42 P.C.S. § 9543(a)(3)
(“To be eligible for relief…, the petitioner must plead and prove by a
preponderance of the evidence[, inter alia, t]hat the allegation of error has
not been previously litigated or waived.”).
F.
Appellant next claims that he is entitled to relief because of the
cumulative effect of the errors committed at his trial. Appellant’s Brief at
41. “Although cumulative prejudice from individual claims of ineffective
assistance may be properly assessed in the aggregate when the
individual claims have failed due to lack of prejudice, an appellant
who claims cumulative prejudice must still set forth some specific, reasoned,
and supported argument for the claim.” Commonwealth v. Watkins, 108
A.3d 692, 735 (Pa. 2014) (citation omitted). Appellant’s individual claims
(Footnote Continued) _______________________
Appellant attempts to resurrect this claim by citing the mental health
evidence referenced in his first claim because, in his opinion, it shows that
the prosecutor bolstered Blakeney’s testimony while aware that Blakeney
was severely mentally ill. “An issue is not previously litigated when it does
not rely solely upon previously litigated evidence.” Commonwealth v.
Chmiel, 173 A.3d 617, 627 (Pa. 2017) (citation omitted). However, as
noted supra, the PCRA court found that the Commonwealth did not have in
its possession the detailed mental health records, nor the plea hearing
transcript. The record supports this finding. Moreover, our Supreme Court
held in Appellant’s direct appeal that the Commonwealth did not comment
on the credibility of Blakeney, but rather merely articulated the parameters
of the plea agreement. Blakeney’s mental health does not affect those
terms. Thus, because Appellant has failed to establish a new fact upon
which he relies, he cannot resurrect this claim from the graveyard of
previous litigation.
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did not fail for lack of prejudice, and so the prejudice cannot be
accumulated. Moreover, given Appellant’s paltry argument and that his
claims of error are either meritless, waived, or previously litigated, we
conclude that such claims, even if accumulated together, do not warrant
relief.
G.
Finally, Appellant claims that he was denied a full and fair PCRA
hearing based on various, allegedly erroneous, court rulings. Appellant’s
Brief at 43-44. However, Appellant does not cite a single authority in
support of this claim.
Our rules of appellate procedure require an appellant to support
his or her argument with pertinent analysis, including citation to
and discussion of relevant authority and facts of record.
See Pa.R.A.P. 2119. This court will not become the counsel for
an appellant and develop arguments on an appellant’s behalf,
and waiver of an issue results when an appellant fails to
properly develop an issue or cite to legal authority to support his
contention in his appellate brief.
Commonwealth v. Cox, 72 A.3d 719, 721 n.3 (Pa. Super. 2013) (some
citations omitted). Accordingly, this claim is waived.
III.
Based on the foregoing, none of Appellant’s claims entitle him to relief
and, accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judge Lazarus joins in this opinion.
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Judge Olson files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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