Justia.com Opinion Summary: In 1999, a jury convicted Appellant Steven Hutchinson of first-degree murder and other crimes for the shooting death of one of his girlfriends. Appellant unsuccessfully filed a petition for post-conviction relief raising numerous guilt and penalty phase claims. On appeal to the Supreme Court, Appellant appealed the denial of his guilt phase claims, raising ten issues for the Court’s review. Taking each in turn, the Supreme Court found sufficient evidence in the trial court and PCRA court records to support his conviction. Accordingly, the Court affirmed his conviction.
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[J-128-2008]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
COMMONWEALTH OF PENNSYLVANIA, :
:
Appellee
:
:
:
v.
:
:
:
STEVEN HUTCHINSON,
:
:
Appellant
:
No. 517 CAP
Appeal from the Order entered on August
9, 2006, in the Court of Common Pleas of
Philadelphia County at No. CP-51-CR0408581-1998
SUBMITTED: June 26, 2008
OPINION
MR. JUSTICE McCAFFERY
DECIDED: August 22, 2011
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”).1
Concluding that the ruling of the PCRA court is supported by the record and free of legal
error, we affirm.
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
1
42 Pa.C.S. §§ 9541-46.
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, 811 A.2d 556 (Pa. 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 entered
an order on July 25, 2006, granting Appellant a new penalty phase hearing. Shortly
thereafter, on August 9, 2006, the same court entered another order denying all of
Appellant’s guilt phase claims. Appellant has now appealed from the denial of his guilt
phase claims, raising ten issues for our review.2
2
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 colloquied 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
(continued…)
[J-128-2008] - 2
Our standard of review requires us to determine whether the ruling of the PCRA
court is supported by the record and is free of legal error. Commonwealth v. Marshall, 947
(…continued)
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 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.
[J-128-2008] - 3
A.2d 714, 719 (Pa. 2008). The PCRA court’s credibility determinations are binding on this
Court when they are supported by the record. Commonwealth v. Johnson, 966 A.2d 523,
532, 539 (Pa. 2009). However, this Court applies a de novo standard of review to the
PCRA court’s legal conclusions. Commonwealth v. Rios, 920 A.2d 790, 810 (Pa. 2007).
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)(i) 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 proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a
PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to
relief, or that the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa. 2004).
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
[J-128-2008] - 4
counsel is effective; the burden of proving otherwise rests with the petitioner.
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 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, 961 A.2d 786,
796 (Pa. 2008) (citing, inter alia, Commonwealth v. Pierce, 527 A.2d 973 (Pa. 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, 899 A.2d 1060, 1064
(Pa. 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, 950 A.2d 945, 954 (Pa. 2008).
Because Appellant’s direct appeal was decided in October 2002, approximately two
months before this Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),
Appellant was required to raise claims of trial counsel ineffectiveness at the time that he
obtained new counsel.
See Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977)
(requiring that a petitioner raise claims of trial counsel ineffectiveness at the time he or she
obtained new counsel). Although this Court overruled Hubbard in Grant, Hubbard was the
prevailing law when Appellant’s direct appeal was decided. See Commonwealth v. Clark,
961 A.2d 80, 85 (Pa. 2008). Therefore, because the record shows that new counsel was
appointed to represent Appellant on direct appeal, Appellant was required to raise claims of
[J-128-2008] - 5
trial counsel ineffectiveness at that time.3 Accordingly, pursuant to the PCRA’s statutory
mandates, any claims of trial counsel ineffectiveness not raised on direct appeal have been
waived. See 42 Pa.C.S. § 9544(b); Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008).
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 95455; Commonwealth v. Washington, 927 A.2d 586, 595 (Pa. 2007) (citing Commonwealth v.
McGill, 832 A.2d 1014, 1022 (Pa. 2003)). However, such claims must be “layered,” i.e.,
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, i.e., 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 applied to appellate counsel
ineffectiveness. Commonwealth v. Rainey, 928 A.2d 215, 224 (Pa. 2007).
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
3
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.
[J-128-2008] - 6
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 (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, 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 equal protection by the prosecutor’s improper
exercise of peremptory challenges in a racially discriminatory manner in his individual
case.” Commonwealth v. Daniels, 963 A.2d 409, 434 (Pa. 2009). We have previously
explained the framework for analyzing a Batson claim as follows:
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
[J-128-2008] - 7
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, 952 A.2d 594, 602 (Pa. 2008) (quoting Commonwealth v. Harris,
817 A.2d 1033, 1042 (Pa. 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, 971 A.2d 1125, 1142 (Pa. 2009);4 Daniels, supra at 434 (citing Commonwealth
v. Uderra, 862 A.2d 74, 87 (Pa. 2004)). Rather, when a claim of racial discrimination in jury
selection has not been preserved, a post-conviction petitioner “bears the burden in the first
instance and throughout of establishing actual, purposeful discrimination by a
preponderance of the evidence.” Ligons, supra at 1142.
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 AfricanAmerican 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 nonAfrican-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.
4
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
Batson 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.).
[J-128-2008] - 8
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-AfricanAmericans. The defense used 21 strikes, 8 against African-Americans and 13 against nonAfrican-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 capital cases tried
before juries between 1991 and 1997, Mr. Fisher likewise struck a higher percentage of
African-American venirepersons than non-African-Americans. Appellant proffers similar
statistics for the District Attorney’s Office as a whole.5 We have previously held that such
statistical analyses, taken individually or collectively, do not satisfy a petitioner’s burden to
5
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.
[J-128-2008] - 9
establish actual, purposeful discrimination in his or her own case. Ligons, supra at 1145.
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, 947 A.2d 714, 722 (Pa.
2008); Commonwealth v. Basemore, 744 A.2d 717, 731 n.12 (Pa. 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 evidence offered in a Batson claim must be
grounded in the particular facts of the appellant’s case”); Marshall, supra at 722 & n.7
(rejecting the appellant’s Batson claim based on the McMahon lecture videotape and Sagel
lecture notes because neither McMahon nor Sagel was involved in the appellant’s
prosecution); Commonwealth v. Bond, 819 A.2d 33, 48-49 (Pa. 2002) (rejecting a Batson
claim because Mr. McMahon had not prosecuted the case, and the appellant offered only
speculation that the McMahon training lecture had, in any way, affected the assistant
district attorney who did try his case years later); Commonwealth v. Lark, 746 A.2d 585,
589 (Pa. 2000) (rejecting the suggestion that Mr. McMahon’s statements in the training
[J-128-2008] - 10
lecture governed the conduct of a different prosecutor merely based on the fact that both
attorneys worked in the Philadelphia District Attorney’s Office).
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.6
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.
2. Colloquy of Juvenile Witnesses in the Presence of the Jury
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,7 both of whom had witnessed the murder of their
mother. Appellant contends that the presence of the jury during the colloquy of these
6
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.
7
The children were nine and twelve, respectively, at the time of trial, which took place
approximately 26 months after their mother’s murder.
[J-128-2008] - 11
witnesses constituted per se error under the rule promulgated by this Court in
Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998).
Although competency of a witness is generally presumed, Pennsylvania law requires
that a child witness be examined for competency. See Commonwealth v. Delbridge, 855
A.2d 27, 39 (Pa. 2003) (citing Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959) and Pa.R.E.
601).8 As we have recently reiterated, “this Court historically has required that witnesses
under the age of fourteen be subject to judicial inquiry into their testimonial capacity.”
Commonwealth v. Ali, 10 A.3d 282, 300 n.11 (Pa. 2010). “A competency hearing of a
minor witness is directed to the mental capacity of that witness to perceive the nature of the
events about which he or she is called to testify, to understand questions about that subject
matter, to communicate about the subject at issue, to recall information, to distinguish fact
from fantasy, and to tell the truth.” Delbridge, supra at 45. In Pennsylvania, competency is
a threshold legal issue, to be decided by the trial court. Commonwealth v. Dowling, 883
A.2d 570, 576 (Pa. 2005).
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
8
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, 156 A.2d 307, 310 (Pa. 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.”
[J-128-2008] - 12
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 the jury is influenced by the inquiry into
competency.” Id. at 646. Thus, even with a cautionary instruction, which was not given in
Washington, when the competency proceedings take place in the presence of the jury, they
“inevitably permeate[ ] into the veracity determination assigned exclusively to the jury.” Id.
at 647. Moreover, the Court expressed concern that a trial judge’s ruling of competence
would be interpreted by the jury as a judicial endorsement of the witness’s credibility. Id. at
[J-128-2008] - 13
646. Based on these considerations, the Court set forth a per se rule requiring that the jury
not be present during a competency hearing for a child witness. Id. at 647.
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).9
9
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, 16 P.3d 1113, 1117 (N.M. Ct. 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,
225 N.W.2d 505, 510 (Wis. 1975) (stating that, pursuant to the new Wisconsin rule of
evidence set forth at Wis. Stat. § 906.01, “every witness is competent to testify (with certain
noted exceptions) and [ ] all former competency issues now are issues of credibility to be
dealt with by the trier of fact”); State v. Hanson, 439 N.W.2d 133, 136 (Wis. 1989) (holding
that a trial judge erred as a matter of law in striking a child’s testimony on the basis of
competency because, under Wis. Stat. § 906.01, “competency is no longer a test for the
admission of a witness’ testimony [and the] only question is credibility which will be
resolved when the case is submitted on the merits”); State v. Dwyer, 422 N.W.2d 121, 126
(Wis. Ct. App. 1988) (explaining that the intention of new Section 906.01 “is to remove from
judicial determination the question of competency and to submit the testimony to the jury so
(continued…)
[J-128-2008] - 14
In the instant case, there is no indication from the record that defense counsel
challenged the competency of the juvenile witnesses at any time prior to, during, or after
(…continued)
that it may assess its weight and credibility”); State v. Daniels, 343 N.W.2d 411, 414-15
(Wis. Ct. App. 1983) (discussing the import of new Wis. Stat. § 906.01 in the context of a
child witness).
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).
[J-128-2008] - 15
trial. There was no separate, formal competency hearing; rather, a brief voir dire of the
juvenile witnesses was conducted at trial, in the presence of the jury, immediately prior to
the witnesses’ direct examination as to events on the day of their mother’s murder. In its
entirety, voir dire of Desiree, the victim’s nine-year-old daughter, was as follows:
Court Officer: What is your name?
Desiree: Desiree.
Court 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.
Court 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.
Court 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.
Court Officer: Thank you. The judge and these gentlemen
here will talk to you. Please keep your voice up.
Court: 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?
[J-128-2008] - 16
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: A lie.
Prosecutor: If I said we were in your living room right now,
would that be the truth or a lie?
Desiree: A lie.
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.
[J-128-2008] - 17
Prosecutor: How many different kinds of awards could you get
in school? Distinguished and what else?
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
[J-128-2008] - 18
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:
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.
[J-128-2008] - 19
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?
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.
[J-128-2008] - 20
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 the trial court comment on
or even mention Philip’s competency to be a witness.
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.
[J-128-2008] - 21
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 of credibility. In its initial remarks to the jury, the trial court
stated the following:
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 witness’[s] 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.
[J-128-2008] - 22
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 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
witness’[s] 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.
*
*
*
*
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
[J-128-2008] - 23
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. Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006).
Appellant has provided not the slightest evidence that the jury did not do so in this case.
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 12.10 Ms. Pugh then dialed 911 to report what her nephew
had told her, and the 911 tape was played for the jury. N.T., 12/2/99, at 50-51; N.T.,
12/3/99, at 122-24. Detective James Dougherty, who interviewed Desiree after the murder,
testified that she named “Mr. Steve” as the man who shot her mother and identified
Appellant from a photograph as “Mr. Steve.” N.T., 12/3/99, at 151-53. Officer Etienne
Starling, who brought Melvin Epps, the children’s father and the victim’s estranged
husband, to the crime scene shortly after the murder, testified that the children ran to him
10
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 crossexamination of Ms. Pugh.
[J-128-2008] - 24
and hugged him, and that Philip stated that “Mr. Steve” had shot his mother. Id. at 169,
172-73, 177-78.
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 as “Mr. Steve,” shot their mother. The
following few excerpts of testimony illustrate the essence, and the consistency, of the
children’s testimony.
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.
[J-128-2008] - 25
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?
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.
[J-128-2008] - 26
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?
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.
[J-128-2008] - 27
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.
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.
[J-128-2008] - 28
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 139-40.
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, 950 A.2d 945, 954 (Pa. 2008). Because Appellant has not
established prejudice, his claim of trial counsel ineffectiveness fails, and accordingly his
derivative claim of appellate counsel ineffectiveness has no merit. Appellant is entitled to
no relief on his second issue.11
11
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.
(continued…)
[J-128-2008] - 29
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:12
(a) testimony of the victim’s sister that Appellant had assaulted the victim on a prior
occasion and also had attempted to force himself on her sexually, N.T., 12/3/99, at 68, 118;
(b) testimony of Officer Joseph Fischer that one of Appellant’s former paramours had
previously obtained a protection from abuse order against him, N.T., 12/6/99, at 198; (c)
testimony of Officer Starling that Appellant had threatened to kill the victim’s estranged
husband, Melvin Epps, id. at 13-14, 21; (d) testimony from the victim’s sister and from two
of Appellant’s paramours that Appellant had used various aliases, N.T., 12/3/99, at 129-31;
N.T., 12/6/99, at 135, 177-80.
(…continued)
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.
12
We have reordered Appellant’s sub-issues for ease of disposition. See Appellant’s Brief
at 26-27.
[J-128-2008] - 30
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 Appellant had failed to make any showing that he was prejudiced
by the failure of defense counsel to object to the challenged testimony. Id. Thus, these
sub-issues of trial counsel ineffectiveness have been previously litigated. Appellant’s
present general assertion that appellate counsel raised trial counsel’s ineffectiveness as to
these sub-issues “ineffectively,” see Appellant’s Brief at 36, is not developed in any
meaningful way and thus is not reviewable. Appellant declines to state -- much less
[J-128-2008] - 31
develop -- any specific aspects of appellate counsel’s performance that he finds
problematic. Mere failure to prevail on a claim on direct appeal does not establish that
appellate counsel was ineffective. Appellant is entitled to no relief on these sub-issues.13
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 wellestablished principles with regard to the admissibility of evidence of prior crimes or bad
acts:
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
13
The dissent would reopen the questions of trial counsel ineffectiveness raised in subissues (a) and (b), even though we resolved those matters on the merits on direct appeal.
See Saylor, J., dissenting opinion at 4-5. 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.
[J-128-2008] - 32
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, 956 A.2d 406, 419 (Pa. 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
was in danger, but because he was a suspect in the murder of his estranged wife.
Relevant portions of Officer Starling’s testimony in response to questioning by defense
counsel are as follows:
[J-128-2008] - 33
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?
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
[J-128-2008] - 34
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 where
that came from other than civilian or police witnesses?
Officer Starling: That’s correct.
[J-128-2008] - 35
*
*
*
*
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 [Appellant’s] belief that
Mr. Epps is behind the death of Stephanie Epps.
[J-128-2008] - 36
*
*
*
*
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.14 We will not conclude that counsel was
14
The dissent maintains that “Appellant’s brief explicitly questions counsel’s overarching
strategy, along with the adequacy of the underlying guilt-phase investigation.” Saylor, J.,
(continued…)
[J-128-2008] - 37
ineffective merely because the jury did not find his narrative convincing or his strategy
credible. Because trial counsel was not ineffective for failing to object to the testimony that
he had elicited concerning Appellant’s threats to Mr. Epps, Appellant’s derivative claim of
appellate counsel ineffectiveness for failing to raise the claim of trial counsel ineffectiveness
must also fail.
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,
i.e., Steven Marshall, Steven Boswell, and Fabian Hutchinson. Appellant’s Brief at 27, 2930. 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.
(…continued)
dissenting opinion at 6 (citing Appellant’s Brief at 72). However, the dissent’s citation to
Appellant’s brief here is entirely out of context. The portion of Appellant’s brief cited by the
dissent addresses a different issue, specifically Issue 5, infra, in which Appellant alleges
that counsel was ineffective for failing to investigate and present voluntary intoxication,
diminished capacity, and heat of passion defenses. We discuss these allegations of
ineffectiveness in the context in which they were made, i.e., under Issue 5.
[J-128-2008] - 38
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, 1997, the day of the
murder, she purchased a cell phone contract with Appellant, who used the name Steven
Marshall for the transaction. N.T., 12/6/99, at 134-36, 147-48. Ms. Husbands, who knew
Appellant by the names of Steven Boswick and Steven Marshall, as well as Steven
Hutchinson, further testified that Appellant remained in possession of the newly purchased
cell phone, despite her attempts to retrieve it from him. Id. at 135-38, 141, 149, 151-53.
The Commonwealth then offered into evidence cell phone bills, which revealed that calls
had been made on the cell phone from the Philadelphia area on September 16, 1997; then
from the Richmond, Virginia, area on September 17 through 18, 1997; and then from the
Miami, Florida, area, with the last call having been made on September 23, 1997. Id. at
158-63. Another of Appellant’s paramours, Octavia Tucker, testified that she allowed police
to put a trap and trace on her telephone, and that she had received phone calls from
Appellant at times and from places that were consistent with the cell phone records
discussed above. Id. at 173-76; see also id. at 185-86. Ms. Tucker further testified that
she knew Appellant by the names Steven Marshall and Fabian Hutchinson, as well as
Steven Hutchinson. Id. at 176-77. The testimony of Ms. Husbands and Ms. Tucker was
highly relevant because it supported the Commonwealth’s theory that Appellant fled from
the Philadelphia area shortly after the murder.
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
[J-128-2008] - 39
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 of Appellant’s aliases. Preliminarily, we note that Appellant’s mere usage of
alternative names with his various paramours does not implicate him in criminal conduct.
Nor does Appellant’s intermittent usage of his middle name constitute a bad act.15 Most
importantly, and contrary to Appellant’s assertions, his usage of aliases was highly relevant
to the trial proceedings for two reasons. First, the victim had used one of Appellant’s
aliases in seeking a protection from abuse order shortly before her murder. Second,
Appellant’s usage of an alias tied him to the purchase of a cell phone, the records of which
suggested his flight from Philadelphia to Florida shortly after the murder. Appellant fails to
suggest any reasonable grounds on which defense counsel could have or should have
objected to the introduction of evidence of Appellant’s aliases. We conclude that there is
no arguable merit to Appellant’s assertions of error with regard to Appellant’s aliases, and
thus trial counsel was not ineffective for failing to object. Because trial counsel was not
ineffective, Appellant’s derivative claim of appellate counsel ineffectiveness for failing to
raise the claim of trial counsel ineffectiveness must also fail.
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
15
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.
[J-128-2008] - 40
such evidence.
Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008) (citing
Commonwealth v. Billa, 555 A.2d 835, 841-42 (Pa. 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 he had been attempting to
establish a relationship. Billa, supra at 837. The trial court had admitted, over defense
counsel’s vigorous objection, testimony concerning a violent sexual assault on a different
victim that had been committed by the appellant approximately two months before the
murder. Id. at 838-39. The two attacks bore numerous similarities, including the fact that
both victims were young Hispanic females. Id. at 841. Although we noted that the
testimony of the sexual assault victim was vivid, graphic, highly prejudicial, and potentially
emotional, we held that it was properly admitted because of its relevance to proving the
appellant’s motive and intent and the absence of accident. Id. Nonetheless, we also held
that trial counsel was ineffective for failing to request an appropriate limiting instruction. Id.
at 842. We recognized that the highly inflammatory testimony of the prior sexual assault
victim “created the substantial danger that the jury could be swayed in its deliberations …
by this evidence showing [the] appellant’s criminal character and his propensity to sexually
assault young Hispanic females.” Id. at 841. In addition, we recognized that the evidence
in question was not merely a fleeting or vague reference to the appellant’s criminal record,
but rather was extensive as well as inflammatory, comprising a substantial component of
the Commonwealth’s case and garnering an emphasis in closing argument. Id. at 843.
Accordingly, “[a]n appropriate limiting instruction … would not have increased the jury’s
awareness of the prior sexual assault, but it well might have placed its limited legal
significance in proper perspective.” Id. at 843. We concluded that the Billa appellant’s
counsel was constitutionally ineffective for failing to request an appropriate limiting
[J-128-2008] - 41
instruction as to the permissible use of evidence of the prior sexual assault, and we
therefore awarded the appellant a new trial. Id. at 843.
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 not extensive. Some of the evidence was elicited as a
single sentence in passing during cross-examination of the witnesses by defense counsel.
In closing argument, the Commonwealth did make reference to Appellant’s abuse of the
victim, but did not mention the other bad acts. See N.T., Commonwealth Closing
Argument, 12/8/99, at 107. Under these circumstances, an instruction as to the bad acts
evidence may very well have served only to re-emphasize the evidence to the jury. More
importantly, Appellant has not established prejudice, i.e., he has failed to demonstrate that
there is a reasonable probability that the outcome of his trial would have been different but
for the lack of a limiting instruction. We have previously noted the “overwhelming evidence”
of Appellant’s guilt. Hutchinson, 811 A.2d at 562. In light of this overwhelming evidence,
which includes eyewitness testimony of the victim’s two children, both of whom knew
Appellant, Appellant has failed to suggest how he could have been prejudiced by counsel’s
failure to request a limiting instruction such that there is a reasonable probability that the
outcome of his trial would have been different. There is no merit to Appellant’s claim of trial
counsel ineffectiveness with regard to a limiting instruction, and therefore, the derivative
claim of appellate counsel ineffectiveness also fails.
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
[J-128-2008] - 42
allegedly withheld in violation of Brady v. Maryland, 316 U.S.83 (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 misconduct to determine if they satisfy
the arguable merit prong of the Pierce test for ineffective assistance of trial counsel.
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, 864 A.2d 460, 516-17 (Pa. 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, 860 A.2d 102, 112
(Pa. 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.
[J-128-2008] - 43
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. Appellant’s Brief at 40-41. Appellant’s allegations are
frivolous. Placed in proper context, the excerpt of the prosecutor’s closing argument that
Appellant challenges is the following:
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
[J-128-2008] - 44
testify to, at least Octavia Tucker, who had seen him up to
recently[?] Never had one. Had a Taurus back in ’96. The
only 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
[J-128-2008] - 45
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 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, I 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, 645 A.2d 811, 829 (Pa.
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).
[J-128-2008] - 46
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 summarized the evidence regarding Appellant’s controlling and abusive relationship
with the victim, and her desire to regain control of her life. From this evidence, the
prosecutor drew a logical and reasonable inference as to Appellant’s motive in killing the
victim. The prosecutor did not suggest to the jury any groundless or improper inferences
from the evidence, and Appellant’s assertions to the contrary have no merit.
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
[J-128-2008] - 47
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 statements that apparently did not exist. See Appellant’s Brief at 46. We need
not address this claim any further.
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:
[1] 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, 884 A.2d 848, 854 (Pa. 2005) (citation omitted).
[J-128-2008] - 48
The evidence allegedly withheld must have been “material evidence that deprived
the defendant of a fair trial.” Commonwealth v. Johnson, 815 A.2d 563, 573 (Pa. 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 disclosed to
the defense, the result of the proceeding would have been different.” Commonwealth v.
Weiss, 986 A.2d 808, 815 (Pa. 2009) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). This Court in Weiss discussed further how the materiality standard in essence
defines the prejudice element of a Brady violation, as follows:
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. Whitely, 514 U.S. 419,
434 (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. 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. 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. 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, 832 A.2d 1014, 1019 (Pa. 2003) (emphasis added).
Weiss, supra at 815.
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, 728
A.2d 890, 898 (Pa. 1999).
[J-128-2008] - 49
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 murdered and by the victim’s sister after the children called her to tell her of the
murder. Appellant fails to provide argument as to how the 911 tape satisfies the elements
of a Brady violation. Specifically, Appellant fails to discuss how the 911 tape would have
been favorable to him, either as exculpatory or impeachment evidence; in fact Appellant
acknowledges that the 911 tape “bolster[s] the testimony of the juvenile eyewitnesses.” Id.
at 46-47. Furthermore, Appellant fails to suggest how he was prejudiced by his failure to
receive the 911 tape in discovery. There is no arguable merit to Appellant’s assertion of a
Brady violation with regard to the 911 tape, and hence appellate counsel was not
ineffective for failing to raise this issue on direct appeal.
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 5.16 With
regard to the second page of the crime scene log, Appellant points out that it “indicated that
16
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.
[J-128-2008] - 50
five shell casings had been recovered at the scene, not four as the Commonwealth’s
evidence had indicated.” Appellant’s Brief at 46. For none of this evidence does Appellant
make any argument as to how or why it was favorable to him, how it could have been
exculpatory, or how it could have been used to impeach any witness. Furthermore,
Appellant makes no argument that the evidence was material and that he was prejudiced.17
Following close review of the record, we conclude that there is no arguable merit to
Appellant’s assertion of a Brady violation with regard to any of this evidence, and hence
appellate counsel was not ineffective for failing to raise the matters on direct appeal.
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
17
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.
[J-128-2008] - 51
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, 980 A.2d 510, 527 (Pa. 2009);
Commonwealth v. Gibson, 951 A.2d 1110, 1131 (Pa. 2008); Commonwealth v.Spotz, 896
A.2d 1191, 1218 (Pa. 2006) (“Absent an admission from [the defendant] that he had shot
and killed [the victim], trial counsel could not have presented a diminished capacity
defense.”)18 If a defendant does not admit that he killed the victim, but rather advances an
innocence defense, then evidence on diminished capacity is inadmissible. Commonwealth
v. Laird, 988 A.2d 618, 632 (Pa. 2010).
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, 866 A.2d 292, 299 (Pa. 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, 928 A.2d 215, 237 (Pa. 2007); Spotz,
supra at 1218. The mere fact of intoxication does not give rise to a diminished capacity
defense. Spotz, supra; Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 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
18
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).
[J-128-2008] - 52
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, 962 A.2d 1170, 1183 (Pa. 2009). Furthermore, diagnosis
with a personality disorder does not suffice to establish diminished capacity.
Commonwealth v. Bracey, 795 A.2d 935, 946 (Pa. 2001).
In numerous prior cases before this Court, defendants who had maintained their
innocence during trial have subsequently raised post-conviction claims of ineffective
assistance of trial counsel for failure to present and/or to investigate a defense of
diminished capacity.
We have consistently declined to hold that trial counsel was
ineffective for failing to advance a defense that directly and irreconcilably conflicted with the
accused’s claims of innocence. Rainey, supra at 237 (declining to conclude that defense
counsel was ineffective for failing to present a diminished capacity defense when the
appellant was unwilling to admit that the shot the victim); Spotz, supra at 1217-19 (declining
to conclude that trial counsel was ineffective for failing to present a diminished capacity
defense based on mental defect or voluntary intoxication because it would have required
the appellant to concede liability, which was inconsistent with his averments of innocence
and his recapitulation of events to trial counsel); Commonwealth v. R. Williams, 846 A.2d
105, 112 (Pa. 2004) (“[E]ven if counsel had thoroughly investigated [the appellant’s] past,
the presentation of a diminished capacity defense would have directly contradicted [the
appellant’s] assertions that someone else had committed the crime, and thus would not
have been an available defense.”). We have recently stated that “whether addressing a
claim of counsel’s failure to investigate or failure to present [a diminished capacity defense],
this Court has employed the same analysis.” Gibson, supra at 1132.
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, 457 A.2d 505, 506-07 (Pa. 1983) (holding that even if
[J-128-2008] - 53
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. Under these circumstances, where Appellant did not admit killing
the victim, but rather maintained his innocence, a diminished capacity defense was not
available to him, pursuant to this Court’s decisional law discussed supra, and trial counsel
will not be held ineffective for failing to present an unavailable defense.
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 ¶ 7.19
19
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, 961 A.2d
786, 823 (Pa. 2008) (citing 1 Pa.C.S. § 1991 for the definition of affidavit); Commonwealth
v. Dennis, 950 A.2d 945, 974 n.27 (Pa. 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, 872 A.2d 1139, 1148 n.7
(Pa. 2005) (citing 1 Pa.C.S. § 1991); Commonwealth v. Hall, 872 A.2d 1177, 1188 n.10
(Pa. 2005); see also Brown, supra at 1169-70, (Castille, J., concurring) (“Unwitnessed and
unsworn non-affidavits … are of considerably less value than sworn affidavits.”).
(continued…)
[J-128-2008] - 54
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 that the
alibi case was “weak.” Appellant’s Brief at 72. As we have made expressly clear, the
authority to concede liability, which is an absolute prerequisite for a diminished capacity
defense, rests solely and strictly with the accused. Weaver, supra at 506. Importantly,
even at this stage in the proceedings, Appellant has not conceded any liability for the
victim’s murder. Appellant cannot succeed in his claim of trial counsel ineffectiveness for
failing to investigate and pursue a diminished capacity defense when Appellant has not
acknowledged an absolute prerequisite for that defense, i.e., that he killed the victim.
Regardless of trial counsel’s investigative efforts, counsel had no authority to present a
diminished capacity defense in the face of Appellant’s assertions that he was completely
innocent of the murder, assertions that remain unabated even now. See R. Williams, supra
at 112. Therefore, we conclude that Appellant has failed to establish that trial counsel was
ineffective for failing to present or to investigate a diminished capacity defense. Because
trial counsel was not ineffective, Appellant’s derivative claims of appellate counsel
ineffectiveness must also fail.20
(…continued)
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.
20
We must point out that Appellant’s assertion that his case is “strikingly similar” to that of
Commonwealth v. Moore, 805 A.2d 1212 (Pa. 2002) (Opinion Announcing the Judgment of
the Court), is erroneous. See Appellant’s Brief at 75. In Moore, the appellant argued selfdefense 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
(continued…)
[J-128-2008] - 55
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, 777 A.2d 1057, 1061 (Pa. 2001); Commonwealth v. Legg, 711
A.2d 430, 432 n. 3 (Pa. 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
time of the killing, he or she was acting under a sudden and intense passion resulting from
serious provocation by the victim. Commonwealth v. Miller, 987 A.2d 638, 649 (Pa. 2009);
Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa. 1999) (citing 18 Pa.C.S. 2503(a));
Commonwealth v. McCusker, 292 A.2d 286, 288 & n.4 (Pa. 1972).
Emotions
encompassed by the term “passion” include “anger, rage, sudden resentment or terror
which renders the mind incapable of reason.”
Miller, supra at 650.
Whether the
provocation by the victim was sufficient to support a heat of passion defense is determined
by an objective test: whether a reasonable man who was confronted with the provoking
events would become “impassioned to the extent that his mind was incapable of cool
reflection.” Id. (quoting Commonwealth v. Thornton, 431 A.2d 248, 252 (Pa. 1981)). “To
reduce an intentional blow, stroke, or wounding resulting in death to voluntary
manslaughter, there must be sufficient cause of provocation and a state of rage or passion
without time to cool, placing the [defendant] beyond the control of his reason, and suddenly
impelling him to the deed. If any of these be wanting--if there be provocation without
passion, or passion without a sufficient cause of provocation, or there be time to cool, and
(…continued)
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.
[J-128-2008] - 56
reason has resumed its sway, the killing will be murder.”
Id. at 651 (quoting
Commonwealth v. Barnosky, 258 A.2d 512, 515 (Pa. 1969)).
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, i.e., 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 that his alibi defense was “weak.” Appellant’s
Brief at 72. We cannot conclude that trial counsel was ineffective in seeking Appellant’s
acquittal with an alibi defense, based on the testimony of an alibi witness named by
Appellant, as opposed to advancing a heat of passion partial defense strategy, for which
there was no evidence. Because trial counsel was not ineffective, any derivative claim of
appellate counsel ineffectiveness must likewise fail. Appellant’s fifth issue does not entitle
him to any relief.
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
[J-128-2008] - 57
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, 676 A.2d 1178, 1185 (Pa. 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 Brown had interrupted defense counsel’s closing argument to
announce at a side-bar conference that the court was limiting argument to forty-five
minutes per side, and accordingly defense counsel only had fifteen minutes remaining for
her closing argument. On direct appeal, the Brown appellant challenged the trial court’s
action, arguing that the time limitation prevented his counsel from presenting an argument
that would enable the jury to concentrate on the issues. Id. Although we disapproved of
the trial court’s imposition of time limits after the closing arguments had begun, we declined
to grant the appellant relief because our “review of defense counsel’s argument indicate[d]
that ample time was allowed to summarize the issues before the jury.” Id.
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
[J-128-2008] - 58
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.
Id.
During defense counsel’s closing argument, after counsel had spoken for thirty
minutes, the court did interrupt him as follows:
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.21
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
21
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.
[J-128-2008] - 59
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 mother and thus were
not really lying; that the children knew all the answers to the prosecutor’s questions, but
could not answer most of defense counsel’s questions; that there were many
inconsistencies in the children’s testimony; that, for a very short time after the murder, Mr.
Epps was a suspect in the victim’s murder, and Mr. Epps gained the most from the victim’s
death because of the ongoing divorce and custody actions; that “somebody else” may have
influenced one of Philip’s statements, made in the context of comments centered around
his father; that Desiree’s testimony may have been “tainted”; and that there was a
“program” as to Philip’s testimony. See N.T., 12/8/99, at 75-76, 80, 83, 85-87. The clear
implication from defense counsel’s comments was that the prosecutor had improperly
coached the children prior to their testimony, and that Mr. Epps had a strong interest in
deflecting blame for the victim’s death from himself to Appellant and did so by influencing
his children’s testimony. Defense counsel’s theory that Mr. Epps had influenced the
children’s identification of Appellant as the man who shot their mother was weakened by
testimony of the victim’s sister. She testified that the children called her immediately after
[J-128-2008] - 60
the murder and told her that Appellant had shot their mother; a 911 tape, played for the
jury, was consistent with the aunt’s testimony. See N.T., 12/2/99, at 50-51; N.T., 12/3/99,
at 122-24. The children’s call took place prior to the reuniting of the children with Mr. Epps.
Defense counsel sought during his closing argument to cast doubt on the significance of
the aunt’s testimony, as it was incompatible with his theory as to the genesis of the
children’s testimony.
See N.T., 12/8/99, at 76-77.
Given all of defense counsel’s
statements and arguments summarized above, there is absolutely no merit to Appellant’s
contention that counsel needed yet more time to make yet more argument concerning the
influence of Mr. Epps and the prosecutor on the children.
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 concerning the
following: a partial footprint from the crime scene; testimony that five shell casings were
found at the crime scene; and testimony that only three of the four bullets recovered from
the crime scene were conclusively determined to have been fired from the same firearm. 22
In closing argument, defense counsel repeatedly stated that the instant case had been
marked by a “rush to judgment” and “failure to investigate” on the part of the
Commonwealth. N.T., 12/8/99, at 70, 71, 77, 81, 86, 88. Counsel mentioned the five shell
casings twice and mentioned the ballistics evidence of the bullets once, as alleged
examples of the failure to investigate. See N.T., 12/8/99, at 82-83. Appellant does not
22
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 11.
The matter of the five shell casings was discussed in the text, supra, under issue 4, alleged
Brady violations.
[J-128-2008] - 61
suggest what more points needed to be argued, but were not because of time limitations,
with regard to the shell casings, the ballistics evidence, or the partial footprint. There is no
merit to Appellant’s allegations that counsel needed more time.
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.23 N.T., 12/6/99, at 83-84. Appellant insists
that counsel had inadequate time to develop the significance of this finding for the issue of
specific intent of the shooter. See Appellant’s Brief at 66.
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 victim’s estranged
husband, who had ample motive for the murder, sought to place the blame on Appellant.
Consistent with this theory, defense counsel proffered an alibi witness; strongly challenged
the credibility of the testimony of the victim’s children and sister; and questioned the
investigation of the police officers at the scene, including their motivation for going to Mr.
Epp’s home after the murder. All of this evidence was summarized in defense counsel’s
closing argument. Counsel’s individual arguments and his overall strategy would have
been undermined and the jury confused had counsel appended to his closing an aside that
the shooter must not have acted with intent to kill, because the shots were not fired at close
range. There is no merit to Appellant’s allegation that time limitations prevented trial
counsel from arguing the significance of the medical examiner’s testimony as to the issue of
23
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.
[J-128-2008] - 62
specific intent. Certainly, counsel did not argue specific intent--but the reasons for not
doing so had nothing to do with time limitations.
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, 961 A.2d 119, 158 (Pa. 2008); see also
Commonwealth v. Small, 980 A.2d 549, 579 (Pa. 2009) (concluding that a broad and vague
claim of the prejudicial effect of cumulative errors did not entitle the appellant to relief).
Although cumulative prejudice from individual claims may be properly assessed in the
aggregate when the individual claims have failed due to lack of prejudice, nothing in our
precedent relieves an appellant who claims cumulative prejudice from setting forth a
specific, reasoned, and legally and factually supported argument for the claim.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citing Commonwealth v. Perry,
644 A.2d 705, 709 (Pa. 1994) for the principle that a new trial may be awarded due to
cumulative prejudice accrued through multiple instances of trial counsel’s ineffective
representation); Commonwealth v. Sattazahn, 952 A.2d 640, 671 (Pa. 2008). A bald
[J-128-2008] - 63
averment of cumulative prejudice does not constitute a claim. Appellant’s seventh issue
entitles him to no relief.
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 postconviction 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, 720 A.2d 79, 89 (Pa. 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 with the
case will likely assist the proper administration of justice. Id. at 90.
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
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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 the stand at the suppression hearing, the court assured
him that he was free to call whichever witness he wanted to establish that the children had
an independent basis for their identification of Appellant. Id. at 4. When defense counsel
indicated that he might call Philip as a witness, the court merely suggested to the
prosecutor that he might want to prepare the child for such a possibility. Id. at 5. The court
also stated that it would allow the child’s grandmother to sit with him in the jury box “so he
can be comfortable” while he testified. Id. at 6. Contrary to Appellant’s assertions, nothing
in the court’s words or actions suggested bias against Appellant or pre-judgment of his
guilt. The court’s recognition that a twelve-year-old child is not an adult and the court’s
desire to spare him unnecessary trauma during his testimony do not imply bias or prejudice
against Appellant.
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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, 838 A.2d 651, 659-60 (Pa. 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] unclear what
purpose an evidentiary hearing would have served”). Appellant’s non-specific assertions of
PCRA court error for failure to hold a hearing do not entitle him to relief.
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
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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 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, 656 A.2d 467, 473 (Pa. 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
[J-128-2008] - 67
no further proceedings are necessary.” Id. (emphasis in original). In Commonwealth v.
Lark, 698 A.2d 43, 52 (Pa.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.24
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, an evidentiary
PCRA hearing is required when there is an outstanding issue of material fact. N.T.,
2/21/06, PCRA Hearing, at 3. Defense counsel then argued that a hearing was required for
many of Appellant’s guilt phase as well as penalty phase claims. After hearing the
arguments of defense counsel and then the Commonwealth, the court made clear its
conclusion that there was no need for an evidentiary hearing as to the guilt phase claims.
Id. at 46-47. However, the court did grant an evidentiary hearing as to Appellant’s claims of
ineffective assistance of counsel during the penalty phase. Id. at 46-47. Appellant had
ample notice and ample opportunity to set forth the material facts that, in his view,
remained at issue and accordingly justified an evidentiary hearing. Accordingly, we hold
that there was no violation of Rules 907(1) or 909(B), and Appellant is entitled to no relief
on his tenth and final issue.
24
Rule 907 was, prior to April 1, 2001, numbered Rule 1507.
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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.
Mr. Chief Justice Castille, Mr. Justice Eakin, Mr. Justice Baer, and Madame Justice Orie
Melvin join the opinion.
Madame Justice Todd concurs in the result.
Mr. Justice Saylor files a dissenting opinion.
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