Commonwealth v. Hutchinson
Commonwealth v. Hutchinson
Dissenting Opinion
dissenting.
Respectfully, I have material differences with the majority reasoning and dissent in favor of an evidentiary hearing.
Initially, concerning the state of this Court’s “layering” jurisprudence in general, I have set down some of my own thoughts in Commonwealth v. Ly, 605 Pa. 261, 989 A.2d 2 (2010) (per curiam), which I incorporate here by reference. See id. at 262-65, 989 A.2d at 2-5 (Saylor, J., dissenting). The concerns raised in Ly are magnified, in the capital arena, due to the involvement of the former relaxed waiver doctrine and its potential impact on the decisions of trial and appellate lawyers in capital litigation throughout the period in which the
I remain convinced that these difficulties cannot be effectively mitigated until this Court addresses the due process concerns being raised regarding both the application of the Hubbard rule in light of time-and-resources constraints connected with direct appeals, see Ly, 605 Pa. at 262-65, 989 A.2d at 2-5 (Saylor, J., dissenting), and the retroactive abolition of relaxed waiver. See Commonwealth v. Steele, 599 Pa. 341, 429 n. 3, 961 A.2d 786, 839 n. 3 (2008) (Saylor, J., dissenting). Notably, the present case is yet another in which it is asserted that direct-appeal counsel understood that his duties did not encompass investigation and presentation of extra-record claims. See Declaration of James J. McHugh, Jr. (Feb. 17, 2006) (relating contents from an interview with Appellant’s direct-appeal counsel).
Second, the majority approves the admission of a detective’s opinion of a child witness’s “ability to distinguish truth from a lie” during an interview. Majority Opinion, at 319 n. 11, 25 A.3d at 299 n. 11. While I agree the detective could testify to his observations of the child’s demeanor, I fail to see how a law enforcement officer’s opinion as to her extrajudicial truth-telling ability would not bolster the Commonwealth’s position concerning such capability in the courtroom. Moreover, the admission of such an opinion seems to me to be in tension with the prevailing law limiting juror involvement in determining competency to testify, see id. at 289-91, as well as the decisions reserving the subject of witness veracity to the jury. See, e.g., Commonwealth v. Balodis, 560 Pa. 567, 576, 747 A.2d 341, 345 (2000) (explaining that this Court has “rejected] the need for expert testimony on the question of a witness’ veracity”).
Next, I have difficulty with the characterization of testimony that Appellant attempted to force himself upon the victim in the days prior to the killing, and that a protection-from-abuse order was secured against Appellant by another woman, as “fleeting.” Id. at 320-21, 25 A.3d at 299. While I realize this term was used in the direct appeal, Appellant’s brief at that stage did not mention the prosecutor’s forceful reference to these events in his closing argument. See id. at 334-35, 25 A.3d at 308-09 (quoting the relevant remarks of the district attorney). Moreover, although this extra-record claim was presented on direct appeal, Appellant has proffered that direct-appeal counsel nonetheless engaged in no extra-record investigation. See McHugh Dec. at 1-2. Thus, it would appear that direct-appeal counsel may be among a substantial number of appellate attorneys who did not appropriately represent their capital clients on direct appeal. See Ly, 605 Pa. at 263-65, 989 A.2d at 3-4 (Saylor, J., dissenting) (discussing the controversy surrounding the Hubbard rule that extra-record claims had to be raised on direct appeal on pain of waiver).
Next, in rejecting Appellant’s claim of ineffectiveness connected with the introduction of other-bad-acts evidence, the majority indicates that Appellant “implicitly calls into question trial counsel’s overarching strategy and theory of the case.” Majority Opinion, at 326, 25 A.3d at 303. In fact, Appellant’s brief explicitly questions counsel’s overarching strategy, along with the adequacy of the underlying guilt-phase investigation. For example, Appellant argues:
On its face, the guilt phase case against Appellant was substantial. It consisted of two eye-witnesses, that knew Appellant, who testified they clearly saw Appellant shoot the decedent. The Commonwealth also presented evidence of Appellant’s flight immediately after the shooting. The Commonwealth also presented extensive evidence of domestic discord between Appellant and the decedent — in the form of verbal and physical fights — starting at least a week before the shooting and continuing literally up to the moment before the fatal shots were fired. Clearly counsel should have at least considered the fact that the issue for*361 the jury in this case was not going to be who did it, but rather what was the state of mind of the shooter before he presented a weak alibi case.
Brief for Appellant at 72.
Despite such allegations, the extent of counsel’s guilt-phase investigation and preparation remains undeveloped, because the PCRA court refused to conduct an evidentiary hearing.
Next, I differ with the majority’s pronouncement that the other-bad-acts evidence was not inflammatory or extensive. See Majority Opinion, at 830-81, 25 A.3d at 306. In fact, the prosecutor highlighted the assertions in connection with a compelling argument advancing the Commonwealth’s theory that the motive for the killing centered on Appellant’s thwarted desire for domination. See id. at 334, 25 A.3d at 308-09 (quoting the relevant passage from the district attorney’s closing). I also have difficulty with the majority’s explanation that a limiting instruction might well have served only to reemphasize the evidence to the jurors, see id. at 330-31, 25 A.3d at 306, since, particularly after the prosecutor’s potent remarks, its seems unlikely they would have forgotten it. Moreover, the attribution of such a strategy to trial counsel (see id.), in the absence of an evidentiary record, seems, again, to be gleaning.
As to the claims of deficient stewardship for failing to investigate and present the alternate defense of diminished capacity, I agree with the majority that prevailing law is that such a defense cannot be presented in the alternative to an innocence-based one. See id. at 311-313.
Next, I differ with the majority to the degree it suggests some material difference between an unsworn declaration and an affidavit for purposes of determining the availability of an evidentiary hearing. See Majority Opinion, at 343 n. 19, 25
In summary, and in line with many of my previous expressions, I believe that the appropriate way for this Court to address the intractable difficulties which have arisen in the death-penalty arena is to consistently enforce the requirement of an evidentiary hearing where material facts are in issue; to require appropriately developed factual findings and legal conclusions of the PCRA courts; and to apply consistent and fair review criteria on appeal.
. Appellant discusses a due process concern associated with the relaxed waiver doctrine, which applied at the time of his direct appeal, see Brief for Appellant at 9-10, albeit this is not addressed by the majority.
. While the detective was not qualified as an expert, it seems reasonable to assume that a lay juror might believe that such a law enforcement officer would acquire special experience in evaluating truth telling.
. The prosecutor’s encouraging approach to the questioning of this child-witness is consistent with the manner in which many adults conduct discussions with young children. The difficulty is that, in the courtroom, there is the potential for a collateral bolstering effect.
. Only one other issue was pursued on direct appeal.
. I realize that a recent decision of the United States Supreme Court appears to suggest that extra-record gleaning is appropriate for purposes of federal habeas corpus review. See Cullen v. Pinholster, — U.S. -, -, 131 S.Ct. 1388, 1404-06, 179 L.Ed.2d 557 (2011). There are material differences, however, between state post-conviction and federal habeas review, see generally Commonwealth v. Beasley, 600 Pa. 458, 483-85, 967 A.2d 376, 391-92 (2009), and it is unclear whether (and/or to what degree) the Pinholster decision will bear relevance to this Court's disapproval of gleaning. At the very least, this Court's own approach — deriving from the compromise decision in McGill — was intended to provide more concrete footing for addressing trial strategies to mitigate differences among members of the Court for purposes of primary-level, state post-conviction review.
. The majority criticizes my opinion for reading the above "out of context,” since the particular expression is set out in connection with a different claim. Majority Opinion, at 326-27 n. 14, 25 A.3d at 303 n. 14. My response is as follows.
Over the past decade, this Court has imposed more and more mandates and strictures on capital petitioners seeking appellate post-conviction review. See, e.g., McGill, 574 Pa. at 587-90, 832 A.2d at 1022-23. Indeed, in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), the Court retroactively imposed a mandatory multi-part analytical overlay on derivative post-conviction claims in the death-penalty arena. See id. at 45, 720 A.2d at 700. After having increased the briefing burden multi-fold in such cases, for reasons which are beyond the scope of this opinion, the Court now appears to be in the process of decreasing the allowed length of the briefs. See, e.g., Commonwealth v. Roney, 587 CAP, per curiam Order (Pa. June 9, 2011); Commonwealth v. Spotz, 610 CAP, per curiam Order (Pa. June 11, 2011).
Particularly against this landscape, I fail to see how it does anyone any good to require these appellants to repeat every detail of every theme running through their briefs within evety subpart of the submissions. Moreover, the task of solidifying the arguments against a factual context would be far simpler on a developed evidentiary record, had a hearing been allowed, as I believe it should.
Finally, the Court appears willing to rely on the many constraints facing trial attorneys representing capital defendants when passing on challenges to their stewardship. I have difficulty appreciating why there is not some concomitant appreciation of various limitations impacting presentations by appellate counsel when we read their briefs.
. Although no definitive conclusions can be drawn, the Commonwealth’s unexplained stipulation to penalty-phase relief suggests the possibility of deficient stewardship at least in that phase of trial.
. Parenthetically, I have expressed a willingness to reconsider this prohibition upon appropriate arguments. See Commonwealth v. Spotz, 587 Pa. 1, 107-08, 896 A.2d 1191, 1254-55 (2006) (Saylor, J„ concurring and dissenting). Such arguments are not developed here, however.
. Early in my tenure on the Court, we attempted to set forth a roadmap for such decision-making in the 1999 decision of Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999), albeit differing majority views on this subject certainly have surfaced in the aftermath.
Opinion of the Court
OPINION
This is an appeal from the denial of guilt phase relief sought by Steven Hutchinson (“Appellant”) in a petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
On December 9, 1999, a jury convicted Appellant of first-degree murder and other crimes for shooting to death one of his girlfriends, Stephanie Epps, in front of her two young children. The children had testified at trial, unequivocally identifying Appellant as the individual who had shot their mother. Appellant had presented an alibi defense, attempted to undermine the credibility of the children’s testimony, and advanced the theory that the victim’s estranged husband was responsible for the murder. The jury returned a verdict of death, and on direct appeal, this Court affirmed both Appellant’s conviction and death sentence. Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002). Appellant then filed a PCRA petition, raising numerous guilt and penalty phase claims. After oral argument on February 21, 2006, and with the agreement of the Commonwealth, the PCRA court
To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, either of which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)© and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been waived “if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b). An issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2).
The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied “that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceed
Appellant’s first seven issues allege ineffective assistance of his trial counsel and appellate counsel. We begin our analysis of these issues with the presumption that counsel is effective; the burden of proving otherwise rests with the petitioner. Commonwealth v. Cox, 608 Pa. 223, 983 A.2d 666, 678 (2009). Accordingly, to prevail on his claims of ineffective assistance of counsel, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) Appellant suffered prejudice because of counsel’s action or inaction. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008) (citing, inter alia, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the second, i.e., the “reasonable basis” prong, we will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Cox, supra at 678 (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). To establish the third prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008).
Because Appellant’s direct appeal was decided in October 2002, approximately two months before this Court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Appellant was required to raise claims of trial counsel ineffectiveness at the time that he obtained new counsel. See
Appellant may properly raise claims of appellate counsel ineffectiveness under the PCRA, including claims of appellate counsel ineffectiveness grounded in a failure to raise trial counsel ineffectiveness on direct appeal. Cox, supra at 678-79; Dennis, supra at 954-55; Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595 (2007) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003)). However, such claims must be “layered,” ie., argument must be presented as to each prong of the Pierce test for each layer of allegedly defective representation. Dennis, supra at 954-55; Washington, supra at 595. To establish the first, ie., the “arguable merit” prong of a claim of appellate counsel ineffectiveness for failure to raise a claim of trial counsel ineffectiveness, a petitioner must prove that trial counsel was ineffective under the Pierce standard. Dennis, supra at 955; Washington, supra at 595. If a petitioner cannot prove that trial counsel was ineffective, then petitioner’s derivative claim of appellate counsel ineffectiveness must also fail, and the court need not consider the other two prongs of the Pierce test as
It is important to recognize that a claim of appellate counsel ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is distinct from a claim of appellate counsel ineffectiveness grounded in the manner in which appellate counsel litigated a claim of trial counsel ineffectiveness on appeal. See Tedford, supra at 16. In the former case, the claim of trial counsel ineffectiveness has been waived, and the appellant must show that appellate counsel was ineffective for failing to raise the claim; however, in the latter case, the claim of trial counsel ineffectiveness claims has been previously litigated, and the appellant must show that appellate counsel was ineffective in the manner in which he or she litigated the claim.
We turn now to Appellant’s claims of appellate counsel ineffectiveness.
1. Batson Claim of Racial Discrimination in Jury Selection
In Appellant’s first issue, he contends that trial and direct appeal counsel were ineffective for failing to raise the claim that the Commonwealth had used its peremptory strikes in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Appellant’s Brief at 13. To support this contention, Appellant proffers the following: (1) the prosecutor struck African-American venirepersons at approximately twice the rate of non-African-American venirepersons; and (2) a policy of racial discrimination in jury selection within the Philadelphia District Attorney’s Office was allegedly suggested by the existence of two particular training lectures, delivered by then-Assistant District Attorneys Jack McMahon and Bruce Sagel.
In Batson, supra at 89, 106 S.Ct. 1712, the United States Supreme Court held that “the Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race.” Accordingly, the United States Supreme Court permitted “an individual defendant to show that he was denied
First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712.
Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 602 (2008) (quoting Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1042 (2002)).
However, when, as here, defense counsel did not raise or preserve any claim of racial discrimination in jury selection with a contemporaneous Batson objection at trial, we have repeatedly held that the Batson framework does not apply. See, e.g., Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142 (2009);
In the instant case, Appellant contends that he has established a pattern of racial discrimination in jury selection based on the disparity in the percentages of African-American versus white venirepersons that the prosecutor struck by peremptory challenges. He alleges that Assistant District Attorney William Fisher, who prosecuted his case, struck 10 out of 16 African-American venirepersons (62.5%), but struck only 8 out of 25 non-African-American venirepersons (32.0%), yielding a jury composed of 3 African-Americans, 8 white persons, and 1 person of unknown race. See Appellant’s Brief at 14-15 & n. 7.
In denying Appellant’s claim, the PCRA court pointed out that 53 persons were eligible to be struck by either the Commonwealth or the defense; of this total, 20 were African-American and 33 were non-African-American. The Commonwealth used 18 of its available 20 peremptory strikes, 10 against African-Americans and 8 against non-African-Americans. The defense used 21 strikes, 8 against African-Americans and 13 against non-African-Americans. Of the 8 African-Americans struck by the defense, the Commonwealth had accepted 4 of them before they were struck by the defense. PCRA Court Opinion, dated 10/25/06, at 3. The PCRA court determined that the voir dire record as a whole refuted on its face Appellant’s claim of discrimination in jury selection. Id. We see no abuse of discretion with regard to the PCRA court’s determination, and repeat our conclusion in Ligons, supra at 1144: “While it is clear that the prosecutor peremptorily struck more African Americans than Caucasians, this fact, in and of itself, is insufficient to demonstrate purposeful discrimination when considering the totality of the circumstances.”
The additional allegations that Appellant proffers, even when taken together with the argument based on peremptory strikes discussed above, likewise do not demonstrate purposeful discrimination. Appellant contends that, in seven other
The only other evidence that Appellant proffers to support his Batson claim is the existence of the McMahon and Sagel training lectures. Appellant references specifically a videotape of the McMahon lecture and handwritten notes by then-A.D.A. Gavin Lentz from the Sagel lecture. On numerous occasions, we have condemned in the strongest possible terms the tactics and practices expounded in the McMahon lecture as violative of basic constitutional principles. See, e.g,, Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 722 (2008); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 731 n. 12 (2000). We do so again here. However, we have also made clear that the mere existence of the McMahon and Sagel lectures establishes neither a general policy in the District Attorney’s Office of racial discrimination in jury selection, nor the presence of racial discrimination in jury selection in an individual case when a prosecutor other than McMahon or Sagel represented the Commonwealth. See Ligons, supra at 1145-46 (rejecting the appellant’s Batson claim of a “culture of discrimination” based on the McMahon lecture videotape and Sagel lecture notes because there was no connection to the appellant’s individual case); Clark, 961 A.2d at 96 (rejecting a Batson claim that was based on the McMahon lecture videotape and Sagel lecture notes and emphasizing that “the evi
In Appellant’s case, the prosecutor was William Fisher, and Appellant has not alleged any connection between Mr. Fisher and either Mr. McMahon or Mr. Sagel or their lectures. Furthermore, the two lectures were delivered, respectively, twelve and nine years before Appellant’s trial.
In sum, we conclude that the denial of Appellant’s Batson claim by the PCRA court is supported by the record and is legally sound. Appellant’s proffered evidence does not establish actual, purposeful discrimination in jury selection. Appellant has cited no occurrence at trial, no words of the prosecutor or defense counsel or trial judge, and no action by the court that could lead to an inference of racial discrimination in jury selection. Because Appellant’s Batson claim is meritless, he is unable to prove a claim of trial counsel ineffectiveness for failing to raise a Batson objection at trial, and hence his derivative claim of appellate counsel ineffectiveness also must fail.
In Appellant’s second issue, he asserts that trial counsel and direct appeal counsel were ineffective for failing, respectively, to object to and to raise a claim regarding the presence of the jury during the colloquy to determine competency of the two juvenile witnesses. The witnesses in question were the victim’s minor children, Desiree, a nine-year old girl, and Philip, a twelve-year-old boy,
Although competency of a witness is generally presumed, Pennsylvania law requires that a child witness be examined for competency. See Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 39 (2003) (citing Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959) and Pa.R.E. 601).
In Washington, supra, the decision on which Appellant relies, defense counsel raised a challenge to the competency of the two complainants, who were eight and nine years old at the time of the appellant’s trial for sexual offenses against them. Defense counsel sought a competency hearing outside the presence of the jury, but the trial judge denied this motion; instead, the prosecutor and defense counsel conducted voir dire of the child witnesses before the jury. Id. at 644-45. The children were questioned about a variety of personal matters, including their ages, birthdays, siblings, schools, teachers, and Christmas presents; about discussions with the assistant district attorney regarding their testimony; and about the difference between telling the truth and telling a lie. Id. at 645. When, at the end of voir dire, defense counsel objected to the witnesses’ competency, the trial judge overruled the objection and specifically stated in the presence of the jury that the witnesses were competent. Id. No cautionary instruction was given to the jury regarding the significance or limitations of this ruling. Trial proceeded, and the appellant was convicted. On appeal before this Court, the appellant argued that permitting the jury to observe voir dire and to hear the trial court’s competency ruling left the impression that the trial court was endorsing the credibility of the witnesses. Id. In addition, the appellant argued that the witnesses’ repeated assertions that they were telling the truth unfairly bolstered their testimony. Id. at 645-46.
A majority of this Court accepted the Washington appellant’s arguments and accordingly granted him a new trial. In reaching this decision, the Court first reiterated the distinction between a competency determination, which is a legal issue for the court, and a credibility determination, which is a factual issue for the jury, and then concluded that the “invariable result of a jury’s presence during competency proceedings is that the truth determining process exclusively reserved for
In promulgating this rule, the Court recognized that some “foundational questioning” might be duplicated during the trial proceedings. Such duplication arises from the fact that evidence relevant to the foundational requirement of competency is also relevant, in many instances, to the weight and credibility accorded to a witness’s testimony. Washington, supra at 647 (citing State v. Harris, 1988 WL 38034 (Ohio App. 5 Dist. 1988)); see also id. at 648 (Castille, J., dissenting opinion) (arguing that voir dire of a child witness is more appropriately conducted in the presence of the jury because the jury, in order to assess credibility and weight to be accorded the testimony, must be able to determine whether the child understands the meaning of an oath to tell the truth).
Comi Officer: What is your name?
Desiree: Desiree.
Comi Officer: Desiree, what is your last name?
Desiree: Epps
Court Officer: Do you know what the deference [sic] between telling the truth and telling a lie is?
Desiree: Yes.
Comi Officer: If I asked you to swear on that Bible that you would tell the truth, the whole truth and so help you God, would you understand that?
Desiree: Yes.
Comi Officer: Would you say yes if I asked you that? Desiree: Yes.
Court Officer: Do you promise to tell the truth, the whole truth and nothing but the truth?
Desiree: Yes.
Comi Officer: Thank you. The judge and these gentlemen here will talk to you. Please keep your voice up.
Comi: Desiree, you will have to speak into that microphone. You will have to pretend that that red box in the back of that courtroom is where you are speaking to so everybody can hear you; all right?
Desiree: Yes.
Court: Because we need to hear what you have to say. Prosecutor: Desiree, hello.
Desiree: Hello.
Prosecutor: Do you know who I am?
*307 Desiree: Yes.
Prosecutor: Who are you [sic]?
Desiree: Mr. Fisher.
Prosecutor: Desiree, would you tell the jurors how old you are.
Desiree: Eight, I mean nine.
Prosecutor: When did you turn nine?
Desiree: September 14th.
Prosecutor: Desiree, you said that you know the difference between telling the truth and telling a lie; is that right? Desiree: Yes.
Prosecutor: What’s the difference between telling a lie and telling the truth; can you tell us?
Desiree: (no response).
Prosecutor: Let me ask you another question: If I told you this suit was red, would that be the truth or would it be a lie?
Desiree: Alie.
Prosecutor: If I said we were in your living room right now, would that be the truth or a lie?
Desiree: Alie.
Prosecutor: What grade are you in, Desiree?
Desiree: Fourth.
Prosecutor: How are you doing in school?
Desiree: Good.
Prosecutor: Some of us think C’s are good. Tell us what good is.
Desiree: I got all A’s and one B on my report card. Prosecutor: That’s actually very good. Did you get any awards or anything for doing that well?
Desiree: I got distinguished.
Prosecutor: You got distinguished?
Desiree: Yes.
Prosecutor: How many different kinds of awards could you get in school? Distinguished and what else?
*308 Desiree: Distinguished and meritorious and honorable mention.
Prosecutor: So distinguished is the middle or highest? Desiree: Highest.
Prosecutor: Then you’re doing very, very, very good; right? Desiree: Yes.
Prosecutor: And what school do you go to?
Desiree: Ivy Leaf Middle School.
Prosecutor: Ivy Leaf Middle School?
Desiree: Yes.
Prosecutor: How long have you gone there?
Desiree: I just started going there. I used to go to Ivy Leaf Elementary School.
Prosecutor: Now you graduated to middle school, right? Desiree: Yes.
Prosecutor: Is that the same school your brother [Philip] goes to?
Desiree: Yes.
Prosecutor: Now, do you remember the last day that you saw your mom?
Desiree: Yes.
Notes of Testimony (“N.T.”), 12/1/99, at 117-21.
The prosecutor then proceeded immediately to question Desiree concerning what she did and what she saw on the day of her mother’s murder. At no point before, during, or after voir dire did defense counsel object to the voir dire format or questioning, and the trial court made no comment as to the witness’s competency. After the prosecutor’s direct examination of Desiree, defense counsel extensively cross-examined her, beginning with a few general questions concerning the year her mother was shot, her grade in school at that time, and her school and after-school programs. N.T., 12/2/99, at 8-11.
The next witness was the victim’s twelve-year-old son, voir dire of whom consisted, in its entirety, of the following:
*309 Prosecutor: Philip, how old are you?
Philip: I am 12.
Prosecutor: What grade are you in?
Philip: Seventh.
Prosecutor: I am sorry?
Philip: Seventh.
Prosecutor: Seventh grade?
Philip: Yes.
Prosecutor: What school do you go to?
Philip: Ivy Leaf.
Prosecutor: How are you doing in school now?
Philip: Good.
Prosecutor: What does good mean?
Philip: A’s, B’s and C’s.
Prosecutor: In that order?
Philip: Excuse me?
Prosecutor: In that order, A’s, B’s and C’s?
Philip: Yes.
Prosecutor: Are you related to Desiree Epps?
Philip: Yes.
Prosecutor: How are you related?
Philip: I am her brother.
Prosecutor: Were you related to Stephanie Coleman Epps? Philip: Yes.
Prosecutor: How are you related to her?
Philip: I am her son.
Prosecutor: Did you know a person by the name of Mr. Steve?
Philip: Yes.
Prosecutor: How did you know him?
Philip: He was my mom’s boyfriend.
Prosecutor: Do you see him in the room today?
Philip: Yes.
Prosecutor: Would you please point him out for us?
*310 Philip: Right there.
Prosecutor: Indicating the defendant, your honor.
Prosecutor: Do you recall or do you remember when you first met him?
Philip: No, I don’t remember.
Prosecutor: When you last saw your mom, where were you living?
Philip: I was living in the Bromley House Apartments.
Prosecutor: With whom were you living, Philip?
Philip: With my mom and my sister.
Prosecutor: Did sometimes Mr. Steve stay there—
Philip: Yes.
Prosecutor: At your apartment with you?
Philip: Yes.
Prosecutor: Philip, do you know the difference between telling a lie and telling the truth?
Philip: Yes.
Prosecutor: Could you tell us what the difference is, please?
Philip: Okay. The truth is like the right thing to do — Well, it is like the right thing to happen, and a lie is the opposite of the truth.
Prosecutor: That is pretty good. That is stated pretty good. The truth is telling about the thing the way it happened and a lie is telling something else—
Philip: Yes.
Prosecutor: That didn’t happen, okay. Philip, do you recall the last day that you saw your mom?
Philip: It was in September. I think it was September 16, 1997.
N.T., 12/2/99, at 52-54.
The prosecutor then proceeded to ask Philip questions about his activities and his observations on the day of his mother’s murder; following this examination, Philip was extensively cross-examined by defense counsel. At no point did
Appellant argues that trial counsel was ineffective for not objecting to the presence of the jury during the above voir dire of the children, and that appellate counsel was ineffective for failing to raise this issue of trial counsel ineffectiveness. Appellant relies on Washington, supra, wherein, as discussed above, this Court promulgated a per se rule that a competency hearing for child witnesses must be held in the absence of the jury.
Although the trial court held no formal, separate competency hearing, it is obvious from the above-quoted voir dire that the children were questioned as to their understanding of the concept of truth versus a lie immediately prior to their testimony concerning the murder of their mother. The jury heard all of the questions directed to the children and their answers. Accordingly, we acknowledge, as did the PCRA court, that there is arguable merit to Appellant’s assertion that the trial court’s voir dire procedure violated the per se rule promulgated in Washington. See PCRA Court Opinion, dated 10/25/06, at 4. However, following careful review of the entire record, we conclude that Appellant did not and cannot establish that he suffered prejudice because of defense counsel’s failure to object, and thus Appellant cannot succeed in his ineffectiveness claim.
It is important to recognize that the trial court never issued an express or formal ruling that the children were competent to testify. In fact, the trial court never made any mention of the children’s competency. The children’s answers to questions about the distinction between truth and a lie flowed seamlessly into their testimony regarding their mother’s murder. Thus, contrary to Appellant’s contention, the trial court did not endorse or vouch for the credibility of any part of the children’s testimony.
In addition, the trial court expressly and repeatedly instructed the jury that it was the sole fact-finder and sole judge
While you are decide [sic] on the facts of this case, you will have to judge the credibility and the weight of the testimony on the other evidence. By credibility I mean, of course, its truthfulness and its accuracy. When you judge the credibility and weight of a witnesses’ [sic] testimony, you are deciding whether you will believe all, part or none of the testimony of the witness and how important that testimony is to the trial. Use your understanding of human nature and your own common sense. Please observe each witness as he or she testifies. Be alert for anything in that witnesses] testimony or behavior or for any other evidence that might help you to judge the truthfulness, accuracy and weight of that person’s testimony.
As I told you earlier, you are the sole judges of the facts and of the credibility and weight of the evidence. You must rely on your own recollection and evaluation of the evidence during your deliberations and not mine or counsel’s. You are not bound by any opinion that counsel or I might express during the trial about guilt or innocence, credibility or weight of evidence, facts proven by the evidence or the inferences to be drawn by the facts.
N.T., 12/1/99, at 93-94, 96.
Similarly, in the charge to the jury just prior to the start of its deliberations, the court stated as follows:
You will recall that I have told you that you are the sole determiners of the facts except where there are stipulations that have been reached by counsel.
Where there is a conflict in the testimony, you, the jury, have the duty of deciding which testimony to believe.... If you cannot reconcile the conflict in the testimony, it is up to*313 you to decide which testimony, if any, to believe and which to reject as untrue or inaccurate.
* * *
As judges of the facts, you are the sole judges of the credibility of the witnesses and their testimony. This means that you must judge the truthfulness and the accuracy of each witnesses] testimony and decide whether to believe all or part or none of that testimony. And you should consider the following factors as indicators as to whether or not testimony is believable:
Was the witness able to see, hear and know the things about which he or she testified; how well could the witness remember and describe the things they [sic] testified about; was the ability of the witness to see, hear, know, remember or describe these things [a]ffected by youth or old age or by a physical, mental or intellectual deficiency; did the witness testify in a convincing manner; how did they look, act, speak; did a witness have any interest in the outcome of the case; bias, prejudice or other motive that might [a]ffect their [sic] testimony; how well did the testimony of a particular witness compare with the other evidence in the case, including the testimony of other witnesses.
sit * *
While you are judging the credibility of each witness, you are likely to be judging the credibility of other witnesses or evidence. If there is a real irreconcilable conflict, it is up to you to decide which, if any, conflicting testimony or evidence to believe.
N.T., Jury Charge, 12/8/99, at 113-17 (emphasis added).
Thus, the court’s instructions to the jury, both before testimony began and at the close of all testimony, were absolutely clear: the jury — and the jury alone — was responsible for evaluating and deciding upon credibility of the witnesses. The court explicitly instructed the jury to consider whether the ability of a witness to see, hear, know, remember, or describe things was affected by, inter alia, youth. The jury is presumed to follow the court’s instructions. Common
We recognize the importance of the children’s testimony to the Commonwealth’s case against Appellant. They were the only eyewitnesses to the murder, and the defense attempted to undermine the credibility of their testimony as inconsistent with Appellant’s alibi. However, it must be noted that other evidence admitted at trial was consistent with the testimony of the children. Jennifer Pugh, the victim’s sister, testified that Philip called her immediately after the murder, very anxious and excited, and said that “Steve” had shot his mother. N.T., 12/7/99, at 12.
Furthermore, and very importantly, the children were unwavering in their testimony that Appellant shot their mother after she had entered their apartment building and was waiting for an elevator. The children knew Appellant as their mother’s boyfriend who had stayed at their residence on some occasions, and they identified him in court without hesitation. They also knew the type of car that Appellant drove. Their direct examination and cross-examination at trial were lengthy and detailed and revealed some minor inconsistencies. However, the essence of their testimony remained absolutely steadfast and unshakable — that Appellant, the man they knew
Defense Counsel: When your dad was with you with the police officers, there came a time when the police officers showed you a picture of Mr. Steve; is that correct?
Desiree: Yes.
Defense Counsel: They showed you one picture of Mr. Steve; right?
Desiree: Yes.
Defense Counsel: They didn’t show you pictures of anybody else; right?
Desiree: No.
Defense Counsel: After they showed you the picture, your dad said that is Mr. Steve and you said that is Mr. Steve; right?
Desiree: No. I just said it was him.
Defense Counsel: You just said it was him?
Desiree: Yes.
N.T., 12/2/99, Cross-examination of Desiree, at 17-18.
Prosecutor: Who shot your mom?
Desiree: Mr. Steve.
Prosecutor: Who was the man who caught the door, walked in the apartment building and shot your mom?
Defense Counsel: Objection; leading.
Court: Overruled.
Prosecutor: Who is the man?
Desiree: Mr. Steve.
Prosecutor: Have you seen him here today?
Desiree: Yes.
Prosecutor: Is this the guy?
*316 Desiree: Yes.
Id., Re-direct examination of Desiree, at 34-35.
Prosecutor: You talked to me before coming to court; right?
Desiree: Yes.
Prosecutor: You talked to your dad before coming to court, too; right?
Desiree: Yes.
Prosecutor: You talked to the police at sometime [sic]; right? The night that this happened, you talked to the police; is that correct?
Desiree: Yes.
Prosecutor: Now when you talked to the police the night that this happened, did you tell them the truth?
Desiree: Yes.
Prosecutor: You gave a statement to the police that night; right?
Desiree: Yes.
Prosecutor: You told the police that night in your statement that it was Mr. Steve who shot your mom, didn’t you?
Desiree: Yes.
Prosecutor: Did anybody tell you to say that?
Desiree: No.
Prosecutor: Why did you say it?
Desiree: Because it is the truth.
Prosecutor: When you talked to me about this case, what did I tell you was the most important thing?
Desiree: To tell the truth.
Id. at 44-45.
Defense Counsel: Do you remember anything that [the prosecutor] asked you from the time that you met [him]? Do you remember anything that [he] said to you or asked you?
Desiree: He said to always tell the truth.
Defense Counsel: Anything else?
*317 Desiree: I don’t remember.
Id., Re-cross examination of Desiree, at 47-48.
Prosecutor: Now you are in that door [to the apartment building] and where are you going?
Philip: To the elevator.
Prosecutor: Where was Mr. Steve then?
Philip: He was — he catch the door.
Prosecutor: He what?
Philip: He had caught the door, and then we had went into the apartment building. Then my mom had pressed the button. He shot her.
Prosecutor: What happened after he shot your mom, Philip?
Philip: He had ran out the door.
N.T., 12/2/99, Direct examination of Philip, at 59-60.
Prosecutor: Incidentally, the Mr. Steve who shot your mom that night, is he in the courtroom today?
Philip: Yes.
Prosecutor: Where is he, Philip?
Philip: Right there.
Court: Let the record indicate that Philip has identified [Appellant].
Id. at 66-67.
Prosecutor: Each one of those times when you were talked to by the police officers, when they first arrived on the scene before you talked to anyone, you said [Appellant] shot your momma; right?
Philip: Yes.
Prosecutor: When you talked to your aunt, who did you tell shot your mom?
Philip: Mr. Steve.
*318 Prosecutor: When you talked to the police down at the station an hour and a half after you saw your mom killed, who did you say shot your mom?
Philip: Mr. Steve.
Prosecutor: Then in April, 1998, when you went to that preliminary hearing, you told the people at the preliminary hearing, the judge and the lawyers — and, by the way, I wasn’t the lawyer then for the Commonwealth, was I? Philip: No.
Prosecutor: It was some lady; right?
Philip: Yes.
Prosecutor: You told them all through there [Appellant] shot your mom?
Philip: Yes.
Prosecutor: Then when all those lawyers asked all those questions to you in February of 1999, you told them at least ten times that [Appellant] shot your mom, didn’t you?
Philip: Yes.
Prosecutor: Did you ever tell anybody that [Appellant] didn’t shoot your mom?
Philip: No.
Prosecutor: Why?
Philip: Because he did.
Id., Re-direct examination of Philip, at 189-40.
The above excerpts present only some examples of the extensive testimony of the children, consistent in its essence despite lengthy and aggressive cross-examination, and corroborated by other evidence admitted at trial. Based on our review of the entire record, we cannot conclude that there is a reasonable probability that the outcome of Appellant’s trial would have been different but for trial counsel’s failure to object to the presence of the jury during the voir dire of the children, which consisted of brief questioning primarily regarding their schooling and their understanding of the distinction between truth and a lie. See Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008). Because Appellant has
3. Admission of Evidence of Prior “Bad Acts”
In Appellant’s third issue, he alleges that trial counsel was ineffective for failing to object to the admission of evidence of several prior “bad acts,” specifically, the following:
The issues underlying the ineffectiveness claims of sub-issues (a) and (b) have been previously litigated. On direct appeal, Appellant contended that the trial court had erred by allowing the victim’s sister to testify that the victim said Appellant had struck her, the same testimony that is challenged here in sub-issue (a). Trial counsel objected to this testimony at trial, and thus the issue was preserved for review. See N.T., 12/3/99, at 61, 67-68; Appellant’s Brief at 27-28 n. 13. Appellant raised the matter on direct appeal, but we declined to grant relief, holding that, even if the trial court had erred by admitting this testimony, any error was harmless given the “overwhelming evidence of Appellant’s guilt” presented by the Commonwealth. Hutchinson, 811 A.2d at 560-61. Appellant does not provide any argument or legal support for his current assertion that direct appeal counsel raised the matter ineffectively, and'accordingly this issue must fail.
Also on direct appeal, Appellant contended that trial counsel was ineffective for failing to object to the testimony of the victim’s sister that the victim had said Appellant had tried to force himself on her, and to the testimony of Officer Fischer that one of Appellant’s paramours had obtained a protection from abuse order against Appellant. Id. at 561; see sub-issues (a) and (b). We held that counsel was not ineffective for failing to object to this testimony, concluding that “both comments about which Appellant now complains were merely fleeting references made by [the] witnesses during cross-examination by defense counsel.” Hutchinson, supra at 562. As such, “an objection by defense counsel might have served only to highlight the otherwise passing comments in the minds of the jurors.” Id. We concluded further that
With regard to Appellant’s sub-issues (c) and (d), we first note that, of all the claims asserted by Appellant with regard to these sub-issues, the only one cognizable is ineffective assistance of appellate counsel grounded in trial counsel’s failure to object to the allegedly inadmissible testimony. Furthermore, we are guided by the following well-established principles with regard to the admissibility of evidence of prior crimes or bad acts:
*322 While it is true that evidence of prior crimes and bad acts is generally inadmissible if offered for the sole purpose of demonstrating the defendant’s bad character or criminal propensity, the same evidence may be admissible where relevant for another purpose. Examples of other such relevant purposes include showing the defendant’s motive in committing the crime on trial, the absence of mistake or accident, a common scheme or design, or to establish identity.... the evidence may also be admitted where the acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development. Of course, in addition to the relevance requirement, any ruling on the admissibility of evidence is subject to the probative value/prejudicial effect balancing that attends all evidentiary rulings.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008) (internal citations omitted); see also Pa.R.E. 404(b).
In sub-issue (c), Appellant asserts that the Commonwealth improperly elicited hearsay testimony from Officer Starling concerning Appellant’s threat to kill the children’s father and victim’s estranged husband, Mr. Epps. Appellant’s Brief at 27, 29. Appellant cites the Commonwealth’s direct examination of Officer Starling concerning his investigation of the murder, wherein the officer testified that, shortly after the murder, he and his partner were driving to the Germantown Avenue address to which Appellant’s Lexus was registered. However, while en route to that address, they changed directions and instead drove to Mr. Epp’s home “because another call came over the radio that the children’s father lived up in Mount Airy and that his person may be in danger.” N.T., 12/3/99, at 163-64. Officer Starling further testified that when he and his partner reached the street where Mr. Epps lived, they surveyed the area to determine if Appellant’s Lexus was there. Id. at 166-67. There was no other testimony suggesting the possibility of danger to Mr. Epps during direct examination.
However, during cross-examination, defense counsel repeatedly raised the matter in an attempt to suggest that the officers went to Mr. Epp’s home, not because they feared he
Defense Counsel: You were going to that location [the address to which Appellant’s Lexus was registered] to investigate; correct?
Officer Starling: Yes.
Defense Counsel: Then in the middle of going to that location, another flash information came over, okay, that the father of the children lived over at 8535 Williams Avenue; correct?
Officer Starling: Yes.
Defense Counsel: Now who made the decision, you, your brother officer or some other investigator, that changed you from going to Williams — I mean that changed you from going to the Germantown Avenue location to the Williams Street location? Why did you do that?
Officer Starling: Because we were in fear of the father’s safety.
Defense Counsel: You were in fear of the father’s safety? Officer Starling: Yes.
Defense Counsel: What made you in fear of the father’s safety at that point? What other information did you have?
Officer Starling: While on location, there was talk of threats against the father’s life.
Defense Counsel: ... where did you get that information about threats to the father’s life?
Officer Starling: I can’t recall who told me that, but it was just amongst people talking on location.
Defense Counsel: Were they police officers or were they civilian people?
Officer Starling: It could have been both.
Defense Counsel: Now it is correct to say that no portion of your statement references this additional information about threats to the father when you were there; correct?
*324 Officer Starling: Correct.
Defense Counsel: In any event, that was why it was on your own initiative, as a result of having that information, that you changed locations from going to Germantown Avenue to Williams Street; right?
Officer Starling: Pretty much, yes.
Defense Counsel: Well, what am I missing? What else is there? What else went into the determination? You determined it; right?
Officer Starling: I wasn’t driving, so it wasn’t me, solely.
Defense Counsel: You weren’t going there because the father might have been a suspect, were you?
Officer Starling: No.
Defense Counsel: Not at all; correct?
Officer Starling: I answered the question.
Defense Counsel: And I asked you a question. Not at all was he a suspect, in your mind?
Officer Starling: No.
Defense Counsel: Did you know that [ ] the husband of the woman who was shot had been estranged from her?
Officer Starling: No.
Defense Counsel: Did you receive that information?
Officer Starling: No.
Defense Counsel: Did you know that there was a bitter custody battle going on; did you hear any of that?
Officer Starling: No.
Defense Counsel: Did you hear anything about an equitable distribution or property division fight going on?
Officer Starling: No.
Defense Counsel: Nothing like that?
Officer Starling: No.
Defense Counsel: But, in any event, it is your testimony here today under oath that you went there because of fear, some fear or threats made to the father, but you don’t know*325 where that came from other than civilian or police witnesses?
Officer Starling: That’s correct.
Defense Counsel: Then it [the officer’s statement] says Melvin Epps said Steve, who is the boyfriend, has another car, a white 1990 300 ZX, with a spoiler in the back, PA BDS-3982, registered to a Jeanette McPherson of 6753 Germantown Avenue. Melvin Epps told you all that?
Officer Starling: He told Officer Speller that.
Defense Counsel: So he had all that information at hand; right? Correct?
Officer Starling: I assume so.
Defense Counsel: Well, you were there. It says in your statement [that] Melvin Epps said — and he had all that information about Mr. Hutchinson and gave that right there when he was all upset; right?
Officer Starling: Yes.
Defense Counsel: Then, also, Mr. Epps also told us that Steve had threatened him in the past; right?
Officer Starling: Yes.
Defense Counsel: And that he was going to kill him, right?
Officer Starling: Yes.
N.T., 12/6/99, at 12-16, 21.
With the line of questioning quoted above, defense counsel was clearly trying to support his theory of the case, which he had also set forth in his opening statement, as follows:
What I believe the evidence will show is that there was arrested judgment here. That there was a failure to investigate fully. Because as [the prosecutor] said up front in this case, that there was a breakup between Stephanie Epps and Melvin Epps.... There was and it was an acrimonious split.... there was a dispute over property. There were allegations of abuse by Ms. Epps against Mr. Epps____it’s*326 [Appellant’s] belief that Mr. Epps is behind the death of Stephanie Epps.
I believe [Mr. Epps] will say in a statement that [Appellant] threatened him and that he knew he was no good. Well, really what was going on, it was really the other way. The other way was that it was [Appellant] and members of Stephanie [Epps’s] family had gone to Melvin[ Epps’s] house to prevent some abuse in the early months prior to her death. And that it was [Appellant] who was there at times for Stephanie [Epps].
N.T., 12/1/99, Defense Counsel’s Opening Statement, at 111, 113.
As illustrated in the excerpts above, when considered in the appropriate context, Appellant’s assertion that defense counsel was ineffective for failing to object to testimony regarding threats to Mr. Epps is revealed to have absolutely no merit. The Commonwealth’s examination of Officer Starling concerning the investigative actions that police officers took shortly after responding to the scene of the murder elicited only very brief and general testimony regarding possible danger to Mr. Epps. Defense counsel — not the Commonwealth — elicited the acknowledgement from Officer Starling that Mr. Epps told police of Appellant’s threats to kill Mr. Epps. See quoted notes of testimony from 12/6/99, supra. During cross-examination of Officer Starling, defense counsel tried repeatedly to suggest that police officers went to Mr. Epps’s home immediately after the murder because he was a suspect. This line of questioning was entirely consistent with the narrative that defense counsel was attempting to develop at trial, i.e., that Appellant had intervened to protect the victim from Mr. Epps, her abusive, estranged husband, who ultimately was responsible for her murder. By suggesting now that counsel was ineffective for failing to object to Officer Starling’s testimony, Appellant implicitly calls into question trial counsel’s overarching strategy and theory of the case.
In sub-issue (d), Appellant asserts that trial counsel was ineffective for failing to object to the Commonwealth’s introduction of evidence that Appellant used several aliases, ie., Steven Marshall, Steven Boswell, and Fabian Hutchinson. Appellant’s Brief at 27, 29-30. Appellant further argues that the evidence of Appellant’s aliases “served no relevant purpose and was introduced solely to establish Appellant’s bad character.” Id. at 30. Contrary to Appellant’s assertions, the evidence of Appellant’s aliases served not just one but two highly relevant purposes at trial.
First, the Commonwealth presented evidence that the victim had sought a protection from abuse order against “Steven Marshall” shortly before her murder, and Appellant’s aliases were introduced to establish that the victim knew Appellant by this name. See N.T., 12/3/99, at 127-29. Specifically, all three aliases were written in the victim’s appointment book, which the Commonwealth introduced into evidence, and the victim’s sister testified that when the victim first met Appellant, she said his name was “Steven Boswell.” Id. at 130-31.
Second, evidence of Appellant’s aliases was relevant to the Commonwealth’s theory that Appellant had fled from Pennsylvania shortly after the murder. Shannon Husbands, another one of Appellant’s paramours, testified that, on September 16,
Officer Joseph Fischer, a Philadelphia police officer, testified that he had been assigned to locate Appellant, under the names Steven Hutchinson or Fabian Hutchinson. Id. at 182-83. Officer Fischer further testified that, on January 1, 1998, more than three months after the murder, Appellant was apprehended in Las Vegas, Nevada. Id. at 183-84. Finally, the officer testified that Appellant gave his name as Steven Fabian Hutchinson for purposes of the biographical information report prepared by the police following Appellant’s apprehension and transfer back to Philadelphia. Id. at 212-13.
Based on our review of the record, as summarized above, we conclude that there is no merit to Appellant’s contention that his trial counsel was ineffective for failing to object to evidence
Finally, Appellant contends that, even if the evidence of bad acts challenged in this issue was admitted for a discrete and limited purpose, trial counsel was ineffective for not requesting a limiting instruction to the jury as to its permissible use. This Court has held that when evidence of a defendant’s prior criminal conduct or bad acts is admitted, the defendant is entitled upon request to a jury instruction explaining the limited purpose of such evidence. Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 37 (2008) (citing Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841-42 (1989)).
In Billa, we granted the appellant a new trial after concluding that his counsel was ineffective for failing to request a limiting instruction. The appellant had been found guilty of the first-degree murder of a sixteen-year-old girl with whom
In the instant case, the relevant circumstances have little, if anything, in common with those of Billa, and we decline to hold that trial counsel was ineffective for failing to request a limiting instruction. The bad acts evidence of which Appellant complains was not inflammatory, not graphic, and
4. Prosecutorial Misconduct
Appellant’s fourth issue is another claim of ineffective assistance of trial and appellate counsel, based this time on underlying claims of prosecutorial misconduct. In part A of this issue, Appellant focuses on the prosecutor’s closing argument, which Appellant contends was inflammatory. In part B, Appellant focuses on evidence that was allegedly withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We consider parts A and B in turn, mindful that the only allegation within either part cognizable under the PCRA is ineffective assistance of appellate counsel for not raising a claim of trial counsel ineffectiveness grounded in failure to object to the prosecutor’s alleged misconduct. We consider here the underlying claims of prosecutorial mis
In accord with the long-standing principle that a “prosecutor must be free to present his or her arguments with logical force and vigor,” this Court has permitted vigorous prosecutorial advocacy “as long as there is a reasonable basis in the record for the [prosecutor’s] comments.” Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 516-17 (2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. Tedford, supra at 33. Furthermore, the prosecution must be permitted to respond to defense counsel’s arguments. Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson, supra at 517.
It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 112 (2004). However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then to ask the jury to find the accused guilty based on those facts. See id.
The standard by which the court considers allegations of improper prosecutorial comments is a stringent one:
Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.
Tedford, supra at 33 (citation omitted).
In his first claim of prosecutorial misconduct during closing argument, Appellant asserts that the prosecutor sought to shift the burden of proof to Appellant, commented on Appellant’s failure to testify, and suggested to the jury that Appellant had the burden to present corroborating evidence. Ap
Let’s talk about credibility, and the judge is going to tell you that every case turns on credibility.... Credibility is just another way of saying believability____Well, how do you determine whether or not you believe somebody just by looking at them? I mean, gee whiz, if you looked at Maureen Edwards [Appellant’s alibi witness], and you had no other evidence in this case, you would say, gee, what a nice lady from maybe Toronto. Gee, I’ve got no other evidence in this case. She is believable. You’ve got no other evidence. Now wipe your mind of everything. She is believable. So one test is what? How the person looks, their demeanor, how they look. But do you stop there, because if you believe a person by just how they looked, and sometimes how they behaved, you would be where? Maybe where [the victim] is. No. You look at other things. You look to see whether or not their testimony is corroborated, whether or not there is some other piece of evidence that says that, that corroborates their testimony, and I can’t go back to this too many times; the children say this guy shot their mom and he left in this doggone car. Well, who corroborates that? Eugene Green. [ ] What’s he got to lie about? Did Mel[vin] Epps make him make that up? Did I make him make it up because he told the police that night first thing. So it is corroborated? Is it consistent? Is it consistent internally, the statement that is given or the testimony, and is it consistent externally. Do they say the same thing later on? Have these kids said anything but one thing? This guy shot my mom. No. But we were talking about Ms. Maureen Edwards. So you look at the other things. Who else would know what kind of car [Appellant] drove other than Octavia Tucker[?]. He lived with her. Edwards says what, he drove a Ford____ I said is it a Taurus? She said no, Explorer.... What do people testify to, at least Octavia Tucker, who had seen him up to recently[?] Never had one. Had a Taurus back in '96. The only*334 two cars [Appellant] drove are the two cars that we showed you. So credibility is just more than how the person looks. It is the stuff surrounding them.
N.T., 12/8/99, Prosecutor’s Closing Argument, at 97-100 (emphasis added to the only portion of this paragraph that Appellant quotes in his brief; see Appellant’s Brief at 41).
Contrary to Appellant’s assertions, nothing in the prosecutor’s comments remotely implied that Appellant bore the burden of proving his innocence or was required to present evidence corroborating his alibi witness. The prosecutor emphasized to the jury — correctly—that the testimony in this case was incontrovertibly and irreconcilably inconsistent. The victim’s children testified that Appellant shot their mother, but Ms. Edwards testified that, at the time of the murder, Appellant was with her in another state. These stories were diametrically opposed, and the verdict depended on whom the jurors viewed as more credible. The prosecutor simply argued to the jury that other evidence presented in the case was relevant to this credibility determination, and he urged the jurors to consider all the evidence during their deliberations. Appellant’s assertion that the prosecutor’s arguments amounted to “a direct comment on Appellant’s failure to testify,” Appellant’s Brief at 41, finds no basis in the prosecutor’s actual words. The prosecutor’s comments were not improper.
In Appellant’s second and third claims of prosecutorial misconduct, he focuses on the following excerpt, close to the end of closing argument, in which the prosecutor developed the Commonwealth’s theory of the case that Appellant’s motive for murdering the victim was his inability to control her.
This is about control. Stephanie Epps ... wanted to take control of her life. Who controls things, though? Who controls things? Who controls it? ... How many people came in here and testified? Who controls it? Did Stephanie control it? She didn’t control her life. Who controlled people’s lives? Who had them buying cars to go with other women? Who lived with other women? Who controlled those women? Who brings the women in here to lie? Who has that control? Who wanted to break that control? This*335 is about Stephanie Epps wanting to free herself from psychological and physical abuse ... and she did get away from her husband. Maybe he did have an affair; that was the psychological abuse. She is away from him for a couple months and she hooks up with this guy, who kicks the crap out of her. How do we know that? How is that corroborated? Old bruises, new bruises, within 24 hours of her death. What does [the victim’s sister] tell us? She called her sister on that Tuesday, [who] said [ ] do you believe he wanted to try to have sex with me last night? This was on Tuesday, the day she was killed, the day she writes [“]take control[”]. It was no accident. I suggest to you this isn’t even out of anger. This is out of wanting to dominate a woman.... But this is about total control. You don’t do what I say, / am not going to beat you anymore, you are dead.
N.T., 12/8/99, Prosecutor’s Closing Argument, at 106-08 (emphasis added to portions emphasized by Appellant; see Appellant’s Brief at 40 and 42).
Appellant asserts that in the above-quoted excerpt the prosecutor expressed his opinion that Appellant had pressured his alibi witness to lie for him. We disagree. Using a series of rhetorical questions based on the evidence presented, the prosecutor raised a logical and reasonable inference that Appellant had succeeded in his efforts to control the lives of his other paramours, including his alibi witness. There was no impropriety in the prosecutor’s strategy or comments. See Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811, 829 (1994) (declining to conclude that the prosecutor engaged in misconduct when he commented that the appellant’s alibi defense had been fabricated because the comment was a fair inference based on evidence presented at trial and summarized by the prosecutor).
Finally, Appellant insists that this argument “was nothing more than a blatant attempt to inflame the jury and to ask the jury to draw the impermissible inference that Appellant had a propensity to kill.... because Appellant had beaten the decedent in the past, the jury should infer he killed her.” Appellant’s Brief at 40. Again, we disagree. The prosecutor briefly
Because none of Appellant’s assertions of prosecutorial misconduct during closing argument have the slightest merit, Appellant cannot satisfy the arguable merit prong of the Pierce test for ineffective assistance of trial counsel grounded in failure to object to the prosecutor’s comments. Because trial counsel was not ineffective, Appellant’s derivative claims of appellate counsel ineffectiveness also must fail.
In part B of issue four, Appellant contends that the prosecutor engaged in misconduct when he failed to provide certain evidence to the defense in violation of Brady v. Maryland, supra. The evidence in question is the following: (a) statements from the victim’s sister and brother-in-law; (b) a police radio tape of 911 calls placed shortly after the murder; and (c) handwritten notes from a detective at the crime scene and the second page of a crime scene log. See Appellant’s Brief at 46.
With regard to (a), statements from the victim’s sister and brother-in-law, we must point out that neither Appellant nor the record provides any indication that such statements ever existed. The day before the beginning of jury selection, the prosecutor advised defense counsel that he might call the victim’s sister and brother-in-law as witnesses. N.T., 11/23/99, at 61. The prosecutor explicitly stated that there were no statements from these witnesses. Id. at 61-62. Defense counsel then sought the prosecutor’s notes from his discussions with the witnesses, but the court denied this request, holding that the notes were attorney work product and hence not discoverable. Id. at 62. Appellant does not challenge the veracity of this record, nor does he challenge the trial court’s work product ruling, but he nonetheless alleges that the prosecutor acted in violation of Brady by failing to turn over
Turning to sub-issues (b) and (c), trial counsel strenuously objected to the prosecutor’s allegedly late proffer of the radio tape, the detective’s notes, and the second page of the crime scene log. N.T., 12/2/99, at 36-39; N.T., 12/8/99, at 3-8. However, none of these alleged Brady violations was raised on direct appeal. Within these sub-issues, the only claim cognizable under the PCRA is ineffective assistance of appellate counsel for failing to raise a Brady claim with regard to the above evidence on direct appeal. Accordingly, we consider these sub-issues pursuant to the Pierce test for ineffective assistance, first determining if there is any arguable merit to Appellant’s underlying claim of Brady violations.
Under Brady and the decisional law it has spawned, 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. See, e.g., Commonwealth v. Lesko, 15 A.3d 345, 370-71 (Pa. 2011). Thus, to establish a Brady violation, an accused must prove three elements:
the evidence [at issue] was favorable to the accused, either because it is exculpatory or because it impeaches; [2] the evidence was suppressed by the prosecution, either willfully or inadvertently; and [3] prejudice ensued.
Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005) (citation omitted).
The evidence allegedly withheld must have been “material evidence that deprived the defendant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). Favorable evidence is material, and constitutional error results from its suppression by the government “if there is a reasonable probability that, had the evidence been dis-. closed to the defense, the result of the proceeding would have been different.” Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 815 (2009) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). This Court
In determining whether a reasonable probability of a different outcome has been demonstrated, “the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A “reasonable probability” of a different result is shown when the government’s suppression of evidence “undermines confidence in the outcome of the trial.” Bagley, supra at 678, 105 S.Ct. 3375. The United States Supreme Court has made clear that Bagley’s materiality standard is not a sufficiency of the evidence test. Kyles, supra at 434, 115 S.Ct. 1555. A Brady violation is established “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, supra at 435, 115 S.Ct. 1555. Importantly, “the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.” Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1019 (2003) (emphasis added).
Finally, the burden rests with an appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999).
In the instant case, as outlined above, Appellant contends that the prosecutor withheld a police radio tape of 911 calls placed shortly after the murder, as well as a detective’s notes from the crime scene and the second page of a crime scene log. See Appellant’s Brief at 46. The 911 calls were made by the victim’s daughter after she saw her mother
Appellant’s next Brady allegations concern the handwritten notes from a detective at the crime scene and the second page of a crime scene log. The documents in question were provided to defense counsel after the Commonwealth rested. See N.T., 12/8/99, at 3. Appellant contends that the detective’s notes “identified two previously undisclosed witnesses to the shooting.” Appellant’s Brief at 46. However, this contention is not borne out by the record. The notes of testimony reveal that the “witnesses” identified in the detective’s notes saw the victim’s body when the elevator in which they were riding opened onto the floor where the shooting had just occurred; contrary to Appellant’s assertion, there is no indication that they actually witnessed the shooting. See N.T., 12/8/99, at 5.
Because none of Appellant’s underlying claims of prosecutorial misconduct has any merit, Appellant’s fourth issue does not entitle him to any relief.
5. Alternative Defenses of Diminished Capacity and Heat of Passion
In Appellant’s fifth issue, he alleges that trial counsel was ineffective for failing to investigate or to present several alternative defenses, specifically the defense of diminished capacity, due to mental defect or voluntary intoxication, and the defense of heat of passion; in addition, appellant alleges that appellate counsel was ineffective for failing to raise this claim of trial counsel ineffectiveness on direct appeal. The only claim in this issue cognizable under the PCRA is the derivative claim of appellate counsel ineffectiveness. Appellate counsel will not be held ineffective if trial counsel was not ineffective, and hence we begin by considering whether Appellant’s allegations as to trial counsel ineffectiveness have any merit.
A defense of diminished capacity, whether grounded in mental defect or voluntary intoxication, is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill. Commonwealth v. C. Williams, 602 Pa. 360, 980 A.2d 510, 527
A diminished capacity defense “does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent.” C. Williams, supra at 527 (citing Gibson, supra at 1131). For a defendant who proves a diminished capacity defense, first-degree murder is mitigated to third-degree murder. Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 299 (2005). To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 237 (2007); Spotz, supra at 1218. The mere fact of intoxication does not give rise to a diminished capacity defense. Spotz, supra; Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 653 (2008) (requiring that a defendant show that he was “overwhelmed to the point of losing his faculties and sensibilities” to prove a voluntary intoxication defense). Evidence that the defendant lacked the ability to control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1183 (2009). Furthermore, diagnosis with a personality disorder does not suffice to establish diminished capacity. Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 946 (2001).
Finally, we have held that the authority to concede criminal liability and to authorize the presentation of a diminished capacity defense rests solely with the accused. Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505, 506-07 (1983) (holding that even if diminished capacity was the only viable defense, trial counsel would be deemed ineffective for presenting this defense without the consent of the defendant).
In the instant case, Appellant did not concede any liability in the killing of the victim. Rather, Appellant relied on an innocence defense, presenting an alibi witness, attempting to undermine the credibility of the child witnesses, and attempting to inculpate the victim’s husband in her murder.
Nonetheless, Appellant further asserts that counsel was ineffective for failing to investigate diminished capacity defenses. To support this claim, Appellant has submitted an “Affidavit/Declaration” of his trial counsel, in which counsel asserts the following:
[Appellant] advised me he was not present at the time of the murder and provided me with the name of an alibi witness. Based on these representations I did not investigate a diminished capacity, voluntary intoxication or heat of passion defense.
Affidavit/Declaration of Stephen P. Patrizio, Esq., pursuant to 28 U.S.C. § 1746, and 18 Pa.C.S. § 4904, at ¶ 7.
Trial counsel prepared and presented the defense that Appellant sought based on his claim of non-involvement in the murder, his account of his whereabouts at the time of the murder, his naming of the alibi witness, and the testimony of the alibi witness. Appellant has offered absolutely no rationale as to why his counsel should not have accepted his claims of innocence and proffered the alibi witness, except to aver
We turn next to Appellant’s other claim in issue five, i.e., that counsel was ineffective for failing to raise a heat of passion defense. A heat of passion defense, like the diminished capacity defense, is a partial defense, focused on the element of intent. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1061 (2001); Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 432 n. 3 (1998). A defendant accused of murder may establish that he or she is guilty, not of murder, but rather of voluntary manslaughter, by proving that, at the
Appellant suggests no evidence that, at the time of the murder, he had been so provoked by the victim as to be compelled by passion beyond the control of his reason. The evidence cited by Appellant, ie., that Appellant and the victim had been arguing shortly before the murder, that there were serious problems in their relationship, that Appellant was jealous, and that Appellant’s prior or concurrent paramours had sought restraining orders against him, does not show that, at the time of the murder, Appellant was uncontrollably compelled by passion or that the victim had provoked him into such passion.
Furthermore, Appellant provides no evidence or argument that trial counsel’s strategy was unreasonable, except to aver
6. Time Limitation on Closing Argument
In Appellant’s sixth issue, he contends that the trial court improperly limited the time for trial counsel’s closing argument, and that trial counsel and appellate counsel were ineffective for failing, respectively, to object and to raise this claim. Appellant’s Brief at 62. Appellant alleges that the “trial court limited the guilt phase closing arguments to 20 to 30 minutes per side,” a limitation that Appellant contends was “completely unreasonable and violated [his] rights to due process and a fair trial.” Id. We must first note that the only claim cognizable under the PCRA in this issue is appellate counsel ineffectiveness for failing to raise on direct appeal a claim of trial counsel ineffectiveness for failing to object to the trial judge’s limitation on closing argument. Because Appellant’s derivative claim of appellate counsel ineffectiveness cannot succeed if trial counsel was not ineffective, we begin by considering Appellant’s allegations against trial counsel.
In Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178, 1185 (1996), this Court considered the issue of time limitation on closing argument and summarized the prevailing law on the matter as follows:
A defendant has a right to summation. The length of closing arguments is left to the discretion of the trial court. Unless there is such an unreasonable limitation of time that [it] effectively denies a defendant the right to summation[,] a criminal conviction should not be disturbed.
Id. (quotation marks and citations omitted).
The trial judge in Brovm had interrupted defense counsel’s closing argument to announce at a side-bar conference that
Turning to the instant case, we note first that the trial judge here made clear to counsel before the start of testimony that she generally limited the time for closing arguments to thirty minutes. See N.T., 11/30/99, at 201. Furthermore, it is abundantly clear from the court’s words that this was not an absolute rule, that it would not cut off an attorney who had something important to say, and that her general limitation was based on her experience as to a jury’s attention span. Specifically, the trial judge’s comment concerning closing argument, made to the prosecutor and defense counsel the day before testimony commenced, was the following:
Closings, I generally limit to about a half hour. So just think about that now in terms of your closings. I mean I have never stopped someone who had something important to say, but I tell you to hone in on what’s important because the jury doesn’t have an attention span that is longer than 15, 20 minutes. So I tell you now with the proviso if there is something you have to deal with, I very rarely have ever cut off an attorney, okay.
During defense counsel’s closing argument, after counsel had spoken for thirty minutes, the court did interrupt him as follows:
*348 Court: [Counsel], are you going to be wrapping up shortly?
Defense Counsel: That is a half hour already?
Court: Yes.
Defense Counsel: I will try to do it, your honor.
N.T., 12/8/99, at 88. Defense counsel continued his argument for a short time and then ended.
Based on these excerpts from the notes of testimony, we conclude that Appellant’s contention that the trial court limited the guilt phase closing arguments to 20 to 30 minutes per side does not truly reflect the trial judge’s position, actions, or words. Notably, the trial judge did not cut short defense counsel’s closing argument, but rather, after counsel had addressed the jury for thirty minutes, asked if counsel was going to be ending shortly. If counsel still had something important to say, there is no indication from the record that he could not have continued, relying on the court’s instructions issued before any testimony started. We fail to see on what basis trial counsel could or should have objected to the court’s actions.
Nonetheless, Appellant insists that defense counsel was unable to include a number of matters in his closing argument because of time limitations imposed by the trial judge, and that counsel was ineffective when he did not seek more time to include these matters. Appellant’s Brief at 64-66. We have considered each of these matters in light of the entire record, and conclude that there is no arguable merit to Appellant’s claims.
First, Appellant contends that defense counsel was unable to argue that the testimony of the victim’s children had been improperly influenced by Mr. Epps, their father, and by the prosecutor. Appellant’s contention disregards or ignores many of the arguments that defense counsel did make during closing argument. Specifically, defense counsel argued that the children truly believed that Appellant had killed their
Second, Appellant contends that defense counsel was unable to argue certain details about the Commonwealth’s alleged inadequate investigation and presentation of physical evidence. In particular, Appellant claims he had to omit argument
Third and finally, Appellant contends that defense counsel lacked the time to include in his closing argument the issue of specific intent. More specifically, Appellant relies on testimony of the medical examiner who found no stippling of the victim’s gun-shot wounds, indicating that she was not shot at close range.
Appellant’s argument is frivolous. Defense counsel’s closing argument reflected — appropriately—his theory of the case, as developed throughout trial, i.e., that Appellant could not have killed the victim because he was in another state, but the
In sum, our review of the record, as discussed above, reveals that there is no merit to Appellant’s contention that trial counsel was ineffective for failing to object to the trial court’s time limitation on closing argument. Because trial counsel was not ineffective, the derivative claim of appellate counsel ineffectiveness for not raising the issue of trial counsel ineffectiveness on direct appeal also is meritless. Appellant’s sixth claim fails.
7. Cumulative Errors
In Appellant’s seventh issue, he contends that cumulative errors denied him due process. In its entirety, this claim comprises three sentences, no citations to authority or to the record, no specifics, and no argument. It is impossible to determine exactly what Appellant is alleging, and thus the claim is unreviewable. “[W]here a claimant has failed to prove prejudice as the result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates how the particular cumulation requires a different analysis.” Commonwealth v. Wright, 599 Pa. 270, 961 A.2d
8. PCRA Court Recusal
In Appellant’s eighth issue, he claims that the PCRA court erred by denying his motion for recusal. The same judge presided at Appellant’s trial and over the post-conviction proceedings. Appellant alleges that the remarks of the court during a pre-trial suppression hearing indicated a bias in favor of the Commonwealth and a pre-judgment against Appellant, necessitating recusal from the post-conviction proceedings. Appellant’s Brief at 77-78.
A party that seeks recusal of a judge bears the burden “to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s ability to preside impartially.” Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998). This Court reviews a jurist’s denial of a motion to recuse for abuse of discretion. Id. In addition, we have concluded that, in general, it is preferable for the judge who presided at trial to preside over any post-conviction proceedings because his or her familiarity
Appellant based his motion to recuse on some statements made by the trial court during a pre-trial suppression hearing, following which the court denied Appellant’s motion to suppress the in-court identification of Appellant by Philip and Desiree, the juvenile witnesses. See N.T. Suppression Hearing, 11/24/99, at 47. Specifically, Appellant cites the following:
Court: The bottom line in my courtroom is if you’ve got the evidence to convict someone, I want the conviction to stick. Prosecutor: Me too, Judge.
Court: If you don’t, you don’t, but if you do have it, let’s do it in a way that there can’t be any PCRA’s down the lane----I say that because[,] not that I have any preconceived ideas about the case or about your client, but I just want to make sure that if we can eliminate an appellate issue, we do so.
N.T. Suppression Hearing, 11/24/99, at 5-6.
Appellant argues that these comments show that the trial court had pre-judged the case, and accordingly the court’s “clear motive was to create an aura of a superficial due process, while ensuring that [Appellant] was convicted.” Appellant’s Brief at 80. Appellant is mistaken — the quoted comments show nothing of the kind. The court stated that it had not pre-judged the Commonwealth’s evidence, and simply wanted to avoid any error that might lead to reversal on appeal if there was a conviction. No unfairness or desire to subvert due process was remotely implied by the court’s comments.
Appellant also claims bias in the trial court’s allegedly solicitous treatment of Philip, the victim’s twelve-year-old son. Appellant is again mistaken. Recognizing the young age of the child, the court was attempting to ensure that, if Philip was called as a witness at the suppression hearing, it was done in the “least traumatic” way the court could think of. N.T. Suppression Hearing, 11/24/99, at 5-6. When the prosecutor stated that he would prefer not to put the victim’s children on
Appellant’s assertion of error in the PCRA court’s denial of his motion to recuse is entirely lacking in merit and provides no basis for relief.
9. PCRA Evidentiary Hearing
In Appellant’s ninth issue, he contends that he was entitled to an evidentiary hearing regarding the “substantial claims under the United States Constitution and the Pennsylvania Constitution” raised in his petition. Appellant’s Brief at 83-84. Appellant cites Pennsylvania Rule of Criminal Procedure 908(A), which provides that a judge shall order a hearing when a petition for post-conviction relief raises material issues of fact. However, Appellant does not apply the rule to his case and he does not specify within this vague and general claim a single material fact that in his view was raised by his petition and warrants a hearing. Our review of each of Appellant’s claims, see text, supra, reveals that the PCRA court did not abuse its discretion in denying Appellant’s petition without a hearing. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 659-60 (2003) (holding that a PCRA court did not abuse its discretion in denying a petitioner’s claim without a hearing when the merits of the claim “could be adequately reviewed based upon the record and it [was]
10. Notice of Intent to Dismiss
In Appellant’s tenth and final issue, he contends that the PCRA court violated Pennsylvania Rule of Criminal Procedure 907 and 909 when the court did not provide notice that it was dismissing Appellant’s guilt phase claims without an evidentiary hearing.
Rule 907 provides in relevant part as follows:
Except as provided in Rule 909 for death penalty cases, (1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice.
Pa.R.Crim.P. 907(1).
Similarly, Rule 909 provides in relevant part as follows:
(B) Hearing; Disposition
(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 906(E)(1) or (E)(2), or if no answer is filed as permitted in Rule 906(E)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth’s answer, if any, and other matters of record relating to the defendant’s claim(s), and shall determine whether an evidentiary hearing is required.
(2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and*356 no legitimate purpose would be served by any further proceedings,
(a) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.
(b) The defendant may respond to the proposed dismissal within 20 days of the date of the notice.
Pa.R.Crim.P. 909(B).
We have previously made clear that the intent behind these rules is to ensure that an evidentiary hearing is held when a PCRA petition raises factual issues that must be resolved. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 473 (1995). “[N]otice of a court’s intention to dismiss is required only where the trial court, after review of the petition, any answer by the Commonwealth thereto, and any other matters of record, determines that a hearing is not necessary, that the petitioner is not entitled to post-conviction relief, and that no further proceedings are necessary.” Id. (emphasis in original). In Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 52 (1997), we concluded that no pre-dismissal notice was required pursuant to Rule 907(a) because the court had heard oral argument on the matter of whether an evidentiary hearing was required prior to determining that there were no factual matters to be resolved.
Based on our holdings in Banks and Lark, we conclude that the PCRA court did not violate Rules 907 or 909 by failing to provide Appellant with formal written notice of intent to dismiss his guilt-phase claims. A brief procedural history of Appellant’s case will suffice to explain this conclusion. Appellant filed a pro se PCRA petition on January 13, 2004. The PCRA court appointed counsel, who filed an amended PCRA petition on January 28, 2005. The Commonwealth filed a motion to dismiss on June 2, 2005, to which Appellant filed a reply on December 20, 2005. On February 21, 2006, the PCRA court held a hearing, at which time defense counsel correctly asserted that, under prevailing law,
In sum, after review of each of Appellant’s guilt phase issues, we conclude that none has any merit, and therefore we affirm the order of the PCRA court denying Appellant guilt phase relief.
. 42 Pa.C.S. §§ 9541-46.
. Appellant raises the following issues, which we have reordered for ease of disposition but reproduced verbatim:
1. Did the Commonwealth use its peremptory strikes in a discriminatory manner; and were trial and appellate counsel ineffective for failing to object and raise this claim in violation of the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution?
2. Was Appellant was denied his rights to due process under the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the juvenile witnesses were colloquies as to competency in the presence of the jury; and were trial and appellate counsel ineffective for failing to object and raise this claim?
3. Was Appellant denied his rights under the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution where the Commonwealth introduced evidence of other bad acts including Appellant’s propensity for violence and the court failed to give a cautionary instruction to the jury; and were trial and appellate counsel ineffective for failing to object and raise this claim?
4. Was Appellant denied a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution as a result of prosecutorial misconduct; and were trial and appellate counsel ineffective for failing to object and raise these claims?
5. Was Appellant denied his rights under the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution where trial counsel ineffectively failed to investigate, discuss with Appellant, or present, voluntary intoxication, diminished capacity and heat of passion defenses; was appellate counsel ineffective for failing to raise, brief and argue this issue on appeal?
6. Was Appellant denied his right to due process under the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the trial court improperly limited the closing argument of Appellant’s counsel; and were trial and appellate counsel ineffective for failing to object and raise this claim?
7. Is Appellant entitled to relief from his conviction because of the cumulative prejudicial effect of the errors denied him due process and all prior counsel were ineffective to the extent they failed to properly object, raise and litigate these claims at trial and on direct appeal?
8. Was Appellant denied his rights under the Sixth and Fourteenth United States Constitution and the corresponding provisions of the
*294 Pennsylvania Constitution when the PCRA court failed to recuse itself upon motion of Appellant?
9. Was Appellant entitled to an Evidentiary Hearing?
10. Did the trial court err in dismissing Appellant's claims of trial error without notice as required by Pa.R.Crim.P. 909(B)(2)?
Appellant's Brief at 3-4.
. Appellant’s contention that he was represented at trial and on direct appeal by the same attorney is not supported by the record. Appellant was represented at trial by Stephen P. Patrizio, Esq., who, on April 27, 2000, after filing a notice of appeal, was permitted by this Court to withdraw. On July 11, 2000, James S. Bruno, Esq., entered his appearance on behalf of Appellant before this Court.
. Justice Baer authored the lead opinion in Ligons, joined only by Justice Todd. Chief Justice Castille authored a concurring opinion, joined by Justices Eakin and McCaffery. Justice Saylor authored a concurring and dissenting opinion. However, with regard to the Bat-son issue, most if not all justices were in agreement and joined the lead opinion. See Ligons, supra at 1170 (Concurring Opinion, Castille, C.J.); id. at 1171 (Concurring and Dissenting Opinion, Saylor, J.). Chief Justice Castille concluded that the lead opinion was a majority expression with respect to the numerous points of joinder and thus was "properly referred to as a majority opinion.” Id. at 1159 n. 1 (Concurring Opinion, Castille, C.J.).
. Specifically, Appellant contends that, in seven other capital prosecutions between 1991 and 1997, Mr. Fisher struck via peremptory challenge 44 out of 92 African-American venirepersons (48%), but only 29 out of 105 non-African-American venirepersons (28%). Similarly, Appellant contends that the District Attorney’s Office as a whole "over this time period” struck via peremptory challenge 1,113 out of 2,250 African-American venirepersons (49%), but only 786 out of 3,149 non-African-American venirepersons (25%). See Appellant’s Brief at 15 & n. 8.
. The McMahon and Sagel lectures were delivered, respectively, in 1987 and 1990. Philadelphia Magazine brought both of the lectures to public attention in June 1997. See Marshall, 947 A.2d at 717-18. Appellant’s trial took place in 1999.
. The children were nine and twelve, respectively, at the time of trial, which took place approximately 26 months after their mother’s murder.
. Pa.R.E. 601(a) provides as follows:
General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules.
The Comment to Rule 601 expressly states that Pa.R.E. 601 "is intended to preserve existing Pennsylvania law.”
In Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959), this Court stated that, under the prevailing rule, competency was 'presumed when the witness was over 14 years of age; however, when the witness was under 14 years of age, "there must be judicial inquiry as to mental capacity, which must be more searching in proportion to chronological immaturity.”
. It is notable that different jurisdictions have promulgated very different rules as to how — or even if — a hearing to determine the competency of a child witness is to be conducted. Courts and commentators have recognized a "trend that has converted questions of competency into questions of credibility.” 3 Weinstein's Federal Evidence § 601.02[1] (quoted in State v. Hueglin, 130 N.M. 54, 16 P.3d 1113, 1117 (App. 2000)); see also Johnson v. United States, 364 A.2d 1198, 1202 n. 12 (D.C. 1976) (citing McCormick, Evidence § 62 (2d ed. 1972) ("The current trend is to regard the competency of a witness as a question of credibility for the jury and to admit the testimony for what it is worth.”)).
Wisconsin law exemplifies such a trend. Prior to 1974, under Wisconsin law, the competency of a child witness was a question to be determined by the court; however, when the Wisconsin Supreme Court adopted new rules of evidence, effective January 1, 1974, the law as to competency determination dramatically changed. See State v. Davis, 66 Wis.2d 636, 225 N.W.2d 505, 510 (1975) (stating that, pursuant to the
In the federal courts, "every person is competent to be a witness,” see Fed.R.Evid. 601, and "[a] child is presumed to be competent” to be a witness, see 18 U.S.C. § 3509(c)(2). The court may conduct a competency examination regarding a proffered child witness only if the court determines, on the record, that compelling reasons exist for such examination. 18 U.S.C. § 3509(c)(4). "A child’s age alone is not a compelling reason.” Id. If the court concludes that compelling reasons exist for a competency examination of a child witness, it must be conducted in the absence of the jury. 18 U.S.C. § 3509(c)(6). See also United States v. Allen J., 127 F.3d 1292 (10th Cir. 1997) (upholding the district court’s refusal to hold a competency examination for a twelve-year-old female victim of sexual abuse after the defendant challenged her competence to testify based on evidence that she suffered from developmental delays and mild mental retardation).
In many other jurisdictions, as in Pennsylvania, the competency of a child witness to testify in court remains a threshold question of law, resting within the sound discretion of the trial court. However, opinions have varied as to whether voir dire of the child witness should be conducted in the presence or absence of the jury. See Washington, 722 A.2d at 646 n. 4 and n. 5 (citing holdings from various jurisdictions on this issue). In the District of Columbia, voir dire of a child witness may be conducted in the presence or absence of the jury, at the discretion of the trial court. See O’Brien v. United States, 962 A.2d 282, 302 (D.C. 2008); Barnes v. United States, 600 A.2d 821, 823 (D.C. 1991); Smith v. United States, 414 A.2d 1189, 1198 (D.C. 1980); Brown v. United States, 388 A.2d 451, 458 (D.C. 1978). As the D.C. Court of Appeals stated in Brown, supra at 458, voir dire in the presence of the jury "assists the jurors in evaluating independently the child’s qualifications as a witness.” The Brown court held that the trial court did not commit reversible error in permitting a brief line of questioning in the presence of the jury as to the child witness’s understanding of the distinction between truth and lies, concluding that such questioning may have aided the jury in assessing the credibility of the child’s testimony and the weight to be accorded to it. Courts in Rhode Island and Missouri, on the other hand, have concluded that voir dire of a child witness should be conducted outside the presence of the jury. State v. Girouard, 561 A.2d 882, 885 (R.I. 1989); State v. Gantt, 644 S.W.2d 656, 658 (Mo.Ct.App. 1982).
. Ms. Pugh was initially called as a Commonwealth witness, but subsequently the defense also called her as a witness. This testimony was given during the Commonwealth’s cross-examination of Ms. Pugh.
. Appellant also briefly asserts that Detective Dougherty, who took the statement from Desiree concerning her mother’s murder, and the prosecutor "vouched” for the testimony of Desiree and Philip, respectively. Detective Dougherty testified that, on the night of the murder, although Desiree seemed somewhat stunned by what she had seen, she was nonetheless able to answer questions about telling the truth. The detective concluded that he was comfortable with Desiree’s understanding of the truth versus a lie. See Appellant’s Brief at 48, 54-55 (quoting N.T., 12/3/99 at 151). Contrary to Appellant's assertion, Detective Dougherty did not offer his opinion as to the credibility of Desiree’s testimony, but rather opined as to her demeanor and her ability to distinguish truth from a lie during his interview with her on the night of her mother’s murder.
Appellant also asserts that the prosecutor effectively declared that Philip’s testimony was truthful. The prosecutor asked Philip if he could distinguish between truth and a lie, and after the child responded, the prosecutor rephrased the child’s answer, stating "That is pretty good. That is stated pretty good. The truth is telling about the thing the way it happened and a lie is telling something else — ”. See Appellant’s Brief at 55 (quoting N.T., 12/2/99 at 54); see also text, supra (statement reproduced in context). Contrary to Appellant’s assertions, the prosecutor did not state his opinion that the children’s testimony was truthful. See id. at 48-49, 55. Rather, the prosecutor merely stated that Philip’s attempt to state the difference between the truth and a lie was "pretty good.”
We do not agree that these comments bolstered the children's testimony in the eyes of the jury. Furthermore, there is no reason to believe that these brief and passing comments resulted in prejudice to Appellant, such that the result of his trial would have been different had defense counsel objected. As we have explained in detail in the text, supra, despite lengthy and probing cross-examination, the children were unwavering in their testimony that Appellant shot their mother.
. We have reordered Appellant’s sub-issues for ease of disposition. See Appellant's Brief at 26-27.
. The dissent would reopen the questions of trial counsel ineffectiveness raised in sub-issues (a) and (b), even though we resolved those matters on the merits on direct appeal. See Saylor, J., dissenting opinion at 359-61, 25 A.3d at 325. Based on Appellant’s proffer that appellate counsel engaged in no extra-record investigation, the dissent appears to suggest the need for an evidentiary hearing as to whether trial counsel had a reasonable basis for not objecting to the testimony that he elicited during his cross-examination of the victim’s sister and Officer Fischer. We cannot agree.
As the dissent points out, in our resolution of this issue on direct appeal, we suggested that an objection by trial counsel may have served only to highlight the passing comments in the minds of the jurors. However, we further concluded that "in light of the overwhelming evidence of Appellant's guilt, Appellant has also failed to show a reasonable probability that the outcome of the trial would have been different had trial counsel objected to these two fleeting references.” Hutchinson, 811 A.2d at 562. We thus held that Appellant’s claim of trial counsel ineffectiveness "necessarily fails” due to an absence of a showing of prejudice. Id. Given our holding on direct appeal as to the lack of prejudice, we fail to see any rationale or need for an evidentiary hearing.
. The dissent maintains that "Appellant's brief explicitly questions counsel’s overarching strategy, along with the adequacy of the underly
. Indeed, Appellant proffered as evidence to the PCRA court several of his medical records from Princess Margaret Hospital in the Bahamas, from 1985-1992, which bore the name Fabian Hutchinson. See Reproduced Record, Exhibit 18.
. Officer Miles, who wrote the notes at issue was available to testify at trial, but the defense declined to call him. See N.T., 12/8/99, at 5, 9, 39-40.
. We note that defense counsel called as a witness at trial the officer who prepared the crime scene log and extensively examined him. See N.T., 12/8/99, at 9-30. Appellant does not assert that this examination was in any way inadequate or ineffective.
In addition, as the Commonwealth points out, it was not entirely clear from the evidence presented at trial how many shots had been fired at the scene. See Commonwealth’s Brief at 33. Desiree testified that more than one shot had been fired, although she did not remember how many; Philip testified that four or five shots had been fired. See N.T., 12/1/99, at 131, and N.T., 12/2/99, at 60, respectively.
. Spotz was the opinion of a divided Court, but a majority of justices joined that portion of the opinion addressing the defense of diminished capacity. See Spotz, 896 A.2d at 1250 and 1251 (concurring opinions, Cappy, C.J. and Castille, J., respectively).
. We recognize that, based on this Court's precedent, counsel's "Affidavit/Declaration” is not properly characterized as an affidavit because the declarant did not swear to its truth before an officer authorized to administer oaths. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 823 (2008) (citing 1 Pa.C.S. § 1991 for the definition of affidavit); Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 974 n. 27 (2008) ("[I]t appears that [an unsworn declaration] standing alone would be insufficient to establish the reasonable basis prong” of the test for ineffective assistance of counsel.”); Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1148 n. 7 (2005) (citing 1 Pa.C.S. § 1991); Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1188 n. 10 (2005); see also Brown, supra at 1169-70, (Castille, J., concurring) ("Unwitnessed and unsworn non-affidavits ... are of considerably less value than sworn affidavits.”).
However, Appellant has proffered this document as evidence, does not dispute any portion of its contents, and relies upon it for his argument. Appellant's Brief at 77.
. We must point out that Appellant’s assertion that his case is "strikingly similar” to that of Commonwealth v. Moore, 569 Pa. 508, 805 A.2d 1212 (2002) (Opinion Announcing the Judgment of the Court), is erroneous. See Appellant’s Brief at 75. In Moore, the appellant argued self-defense at his murder trial, but then asserted in his PCRA petition that trial counsel should have presented a diminished capacity defense. As we stated in Moore, "the theories of self-defense and diminished capacity are not mutually exclusive and could have been presented together.” Id. at 1218. In contrast, Appellant here presented an innocence defense, which was irreconcilably incompatible with a diminished capacity defense. Accordingly, Appellant’s attempt to rely on Moore is wholly unavailing.
. Defense counsel's closing argument took up 24 pages total of the notes of testimony, and the court interrupted him on page 22. See N.T., 12/8/99, at 66-90.
. The actual testimony as to the ballistics evidence was that three of the four bullets recovered could be definitively matched to a single weapon. One bullet could not be definitively matched to that same weapon, but the evidence could not rule out the possibility that all four bullets had come from the same weapon. N.T., 12/6/99, at i 1.
The matter of the five shell casings was discussed in the text, supra, under issue 4, alleged Brady violations.
. The meaning of "close range” in this context is derived from the medical examiner’s testimony: The lack of stippling around the victim's wounds indicated that she had been shot from a distance of at least two or three feet. N.T., 12/6/99, at 83-84.
. Rule 907 was, prior to April 1, 2001, numbered Rule 1507.
Reference
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- COMMONWEALTH of Pennsylvania, Appellee v. Steven HUTCHINSON, Appellant
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