Com. v. Thomas

• Citation: 783 A.2d 328
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Frederick THOMAS, Appellant.
• Decision Date: 06 September 2001
• Court: Superior Court of Pennsylvania

783 A.2d 328

COMMONWEALTH of Pennsylvania, Appellee v. Frederick THOMAS, Appellant.

Superior Court of Pennsylvania.

Submitted June 11, 2001.

Filed September 6, 2001.

George H. Newman, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist Atty., Philadelphia, for the Com., appellee.

Before: JOHNSON, MUSMANNO, and KELLY, JJ.

KELLY, J.:

¶ 1 Appellant, Frederick Thomas, asks us to determine whether the trial court erred when it denied his petition for post conviction collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We hold that the trial court properly denied Appellant's PCRA petition and affirm the court's order.

¶ 2 The relevant facts and procedural history of this case are as follows. On April 24, 1996, after a waiver trial, Appellant was convicted of aggravated assault,² simple assault,³ carrying firearms on public streets,⁴ and recklessly endangering another person.⁵ The trial court sentenced Appellant to a total term of seven and one-half to fifteen years' incarceration. Represented by new counsel on direct appeal, Appellant sought review of his judgment of sentence. On December 9, 1997, this Court affirmed Appellant's judgment of sentence. On September 28, 1998, Appellant filed a pro se PCRA petition for relief and the PCRA court appointed counsel. Appellant's PCRA attorney subsequently filed a "no merit" letter with the court, asserting that the issues set forth in Appellant's petition lacked merit and that no further issues could be raised in an amended, counseled petition. On November 9, 1999, the PCRA court dismissed Appellant's petition and granted Appellant's PCRA attorney leave to withdraw. With newly obtained pro bono counsel, Appellant brings this timely appeal.

¶ 3 On appeal, Appellant raises several issues for our consideration:

1. WAS APPELLANT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF POST CONVICTION

COUNSEL DURING POST-CONVICTION PROCEEDINGS?

2. IS APPELLANT ENTITLED TO A NEW TRIAL BECAUSE COUNSEL WAS INEFFECTIVE IN FAILING TO IMPEACH THE PROSECUTION'S SOLE EYE-WITNESS WITH THAT WITNESS' PENDING CRIMINAL CHARGES IN VIOLATION OF APPELLANT'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS AS WELL AS HIS RIGHTS UNDER ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION[?]

3. WAS APPELLANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO TESTIFY?

4. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION BECAUSE THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE TRIAL WHEN HE SHIFTED THE BURDEN OF PERSUASION BY COMMENTING ON THE ABSENCE OF A POTENTIAL WITNESS FOR THE DEFENSE, DEPRIVING APPELLANT OF HIS RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND THE CORRESPONDING PROVISIONS OF THE PENNSYLVANIA CONSTITUTION?

5. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION AND SENTENCE BECAUSE TRIAL COUNSEL LABORED UNDER A CONFLICT OF INTEREST IN VIOLATION OF APPELLANT'S STATE AND FEDERAL RIGHT TO COUNSEL ACTING IN HIS INTEREST?

6. DID THE DISTRICT ATTORNEY'S FAILURE TO TURN OVER THE TRIAL DISCOVERY TO APPELLANT OR UNDERSIGNED COUNSEL DENY APPELLANT HIS RIGHT TO MEANINGFUL POST-CONVICTION REVIEW AND EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL?

7. WERE ALL PRIOR COUNSEL INEFFECTIVE?

8. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION AND SENTENCE BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS?

(Appellant's Brief at 2).

¶ 4 Our scope of review when examining a PCRA court's denial of relief is limited to determining whether the court's findings are supported by the record and the order is otherwise free of legal error. Commonwealth v. Yager, 454 Pa.Super. 428, 685 A.2d 1000, 1003 (1996) (en banc), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997) (citations omitted); Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). This Court will not disturb the findings of the PCRA court unless they have no support in the record. Id.

¶ 5 In his first, second, third, and seventh issues, Appellant raises various claims of ineffective assistance of counsel. Our standard of review when faced with a claim of ineffective assistance of counsel is well settled.

First, counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. To prevail on a claim of ineffectiveness, appellant must show that his underlying contentions possess arguable merit. Finding no merit, our inquiry would cease because counsel will not be deemed ineffective for failing to pursue a baseless or meritless claim. If appellant's contention is found to be of arguable merit, he must also establish that the course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Finally, appellant must show how counsel's commission or omission prejudiced appellant.

Commonwealth v. Harrison, 444 Pa.Super. 103, 663 A.2d 238, 240 (1995), appeal denied, 544 Pa. 602, 674 A.2d 1067 (1996) (internal citations omitted). The PCRA does not impose a more onerous burden on an appellant alleging ineffective assistance of counsel than that required on direct appeal. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). Where it is clear that the prejudice prong has not been met, we may dispose of the claim on that basis alone, without determining the other two prongs. Commonwealth v. Wilson, 543 Pa. 429, 440, 672 A.2d 293, 298 (1996), certiorari denied, 519 U.S. 951, 117 S.Ct. 364, 136 L.Ed.2d 255 (1996); Commonwealth v. Paolello, 542 Pa. 47, 76, 665 A.2d 439, 454 (1995).

¶ 6 In his first issue, Appellant argues that his PCRA counsel was ineffective because he failed to review the record thoroughly, failed to investigate Appellant's claims, and conducted limited discussion with Appellant. Appellant contends that his PCRA counsel's ineffective assistance resulted in the denial of meaningful PCRA review of his meritorious issues. We disagree.

¶ 7 Counsel will not be found ineffective in a vacuum. Commonwealth v. Horton, 434 Pa.Super. 478, 644 A.2d 181 (1994). This Court will not consider claims of ineffectiveness without some showing of factual predicate upon which counsel's assistance may be evaluated. Commonwealth v. Coleman, 445 Pa.Super. 199, 664 A.2d 1381, 1386 (1995), appeal denied, 545 Pa. 675, 682 A.2d 306 (1996).

¶ 8 In the instant case, Appellant's argument is based only on bald assertions. In the absence of a factual predicate to support the allegation that his PCRA counsel rendered ineffective assistance, we conclude that Appellant's claim is without merit.⁶ See id.

¶ 9 In his second issue, Appellant argues that trial counsel was ineffective for failing to impeach the prosecution's sole eyewitness, who was also the victim, during cross-examination, with that witness' pending criminal charges. Appellant contends that this witness was biased because of the potential that he could later receive favorable prosecutorial treatment in his case as a result of the way he testified in Appellant's case. In addition, Appellant claims that all prior counsel were ineffective for failing to properly preserve and litigate this issue. Appellant concludes that he is entitled to a new trial. We disagree.

Where counsel has made a strategic decision after a thorough investigation of law and facts, it is virtually unchallengeable; strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. As noted, an evaluation of counsel's performance is highly deferential, and the reasonableness of counsel's decisions cannot be based upon the distorting effects of hindsight.

Commonwealth v. Basemore, 560 Pa. 258, 289, 744 A.2d 717, 735 (2000) (internal citation omitted). Indeed, cross-examination may be used to test a witness' story, to impeach credibility, or to establish the witness' motive for lying. Commonwealth v. Buksa, 440 Pa.Super. 305, 655 A.2d 576, 579 (1995), appeal denied, 544 Pa. 642, 664 A.2d 972 (1995). "Whenever a prosecution witness may be biased in favor of the prosecution due to outstanding charges against him in the same jurisdiction, that possible bias, in all fairness, must be made known to the jury." Id. at 580 (quoting Commonwealth v. Evans, 511 Pa. 214, 224-25, 512 A.2d 626, 631-32 (1986)). The witness may hope for favorable treatment if he testifies in a manner helpful to the prosecution even though the prosecution has not made any promises. Id. Thus,

[i]t is particularly important that, where the determination of a defendant's guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity be afforded to demonstrate through cross-examination that the witness is biased.

Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992).

¶ 10 In the instant case, Appellant has attached to his brief evidence of charges pending against the prosecution eyewitness. While these pending charges might appear to create a potential bias on the part of this witness, such a possibility is highly unlikely. As the trial testimony revealed, the eyewitness had identified Appellant as his assailant on April 30, 1994. (N.T. Trial, 4/24/96, at 57). However, according to the evidence attached to Appellant's brief, the witness was not subject to arrest until May 4, 1994. Thus, he would not have had any reason to curry favor with the prosecution at the time of the identification itself, because this witness was not arrested until after he identified Appellant as his assailant. The potential for bias on the part of this witness is unlikely where the thrust of his testimony focussed on an uninfluenced identification of Appellant as his shooter. Appellant, therefore, was not prejudiced by trial counsel's decision not to attempt to impeach this witness. See Harrison, supra. Accordingly, we conclude that Appellant's second issue is meritless and that appellate and PCRA counsel cannot be deemed ineffective for failing to pursue it.

¶ 11 In his third issue, Appellant asserts...