920 A.2d 790 (Pa. 2007), Commonwealth v. Rios

Citation:920 A.2d 790
Opinion Judge:OPINION Chief Justice CAPPY.
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Miguel RIOS, Appellant.
Attorney:Christina Allison Swarns, Esq., Angelica Matos, Esq., Philadelphia, for Miguel Rios., Amy Zapp, Esq. Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.
Case Date:April 18, 2007
Court:Supreme Court of Pennsylvania

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920 A.2d 790 (Pa. 2007)

COMMONWEALTH of Pennsylvania, Appellee,


Miguel RIOS, Appellant.

Supreme Court of Pennsylvania

April 18, 2007.

SUBMITTED April 11, 2003.

Appeal from the April 25, 2002 Opinion and March 31, 2001 Order of the Philadelphia County Court of Common Pleas denying relief and dismissing Appellant's Petition under the Post-Conviction Relief Act.

Appeal from the Order entered on 3/21/01 in the Court of Common Pleas, Philadelphia County, Criminal Division, at 3174-3185 October Term 1992

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Christina Allison Swarns, Esq., Angelica Matos, Esq., Philadelphia, for Miguel Rios.

Amy Zapp, Esq. Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.




Appellant Miguel Rios appeals from the Order of the Court of Common Pleas of Philadelphia County (PCRA court) denying and dismissing his Petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons explained at length herein, we hold that the PCRA court properly denied Appellant collateral relief, and therefore affirm.

On August 27, 1992 Appellant rang the doorbell of a residence where Jose Ortiz lived with his girlfriend, Carmen Colon, their two-year old son, and Carmen's sister, Irma Colon. When Irma Colon answered the door, she found Appellant dressed in a Philadelphia Gas Works uniform and representing that he was there to check the gas meter. After being let into the house, Appellant took hold of Irma Colon's neck and demanded that she give him the key to admit an accomplice into the house. Appellant and his accomplice proceeded to the bedroom in which Mr. Ortiz, Carmen Colon and their son were sleeping. He threatened to kill Irma Colon unless Ortiz let him into the bedroom. Appellant then demanded money, jewelry, and drugs. Appellant forced Ortiz and Irma Colon to the floor, threatening to kill them if he did not find what he was seeking. The accomplice proceeded to ransack the house. Appellant beat Irma Colon in the head with his gun until she lost consciousness. Carmen Colon watched as Appellant and his accomplice beat Ortiz and bound his hands and feet. Her eyes were closed when she heard a gunshot. When she opened them, she saw Ortiz laying on the floor with a gunshot wound to the head.

Thereafter, both Irma and Carmen Colon were able to identify Appellant from a police photo array. After a warrant was issued, Appellant was apprehended while

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hiding in the closet of a home in Lancaster and arrested.

On June 17, 1993 a jury convicted Appellant of first-degree murder, robbery, unlawful restraint, aggravated assault, burglary, criminal conspiracy, and possession of an instrument of a crime. At the penalty phase, the jury found three aggravating circumstances: the murder occurred in the perpetration of a felony (burglary); defendant knowingly created a grave risk of death to another; and defendant had a significant history of violent crime felony convictions. 42 Pa.C.S. §9711(d)(6), (7), (9). The jury found two mitigating circumstances: defendant was under the influence of extreme mental or emotional disturbance at the time of the crime; and the defendant's circumstances fit within the catch-all mitigating circumstance. 42 Pa.C.S. §9711(e)(2), (8). As the mitigating circumstances were out weighed by the aggravating circumstances, the jury sentenced Appellant to death for the murder of Jose Ortiz. After post-trial motions, the trial court formally imposed the death sentence. Appellant was appointed new counsel for purposes of direct appeal.

On appeal, this Court affirmed the judgments of sentence. See Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025 (Pa. 1996). Appellant filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on May 19, 1997.

On June 27, 1997 Appellant filed a pro se petition for relief under the PCRA. Appellant filed an amendment to this petition with the assistance of counsel on December 19, 1997 and a supplement on August 3, 1998. The Commonwealth filed a motion to dismiss the Petition. The PCRA court denied the motion in part and dismissed in part. The court granted an evidentiary hearing limited to the issue of trial counsel's effectiveness at the penalty phase. After conducting several such hearings, the PCRA court denied the PCRA petition in toto. This appeal followed.

On appeal from the denial of PCRA relief, our standard of review is whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (Pa. 2001). In order to qualify for PCRA relief, the appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the following statutorily enumerated factors:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

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(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. §9543(a)(2).

Appellant must further demonstrate that the issues raised in his petition have not been previously litigated or waived, and that "the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel." 42 Pa.C.S. §9543(a)(3), (4). An issue has been litigated pursuant to the PCRA if the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue. Commonwealth v. Crawley, 541 Pa. 408, 663 A.2d 676, 678 (Pa. 1995). Further, a claim under the PCRA will be waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding." 42 Pa.C.S. §9544(b).

In this appeal, Appellant has raised many allegations of ineffective assistance of counsel throughout the guilt and penalty phases of his trial. In Pennsylvania, we begin with the presumption that counsel is effective. Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (1999). In order to overcome this presumption, an appellant must establish three elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his action; and (3) the petitioner was prejudiced by the ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987). In determining whether counsel's actions were reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis. Rollins, 738 A.2d at 441. Further, in order to establish prejudice, it must be demonstrated that "but for the act or omission in question, the outcome of the proceedings would have been different." Id. If a defendant fails to set forth evidence sufficient to meet any of the three elements, his ineffectiveness claim will be denied. Pierce, 786 A.2d at 221-22. Further, we have held that "[i]f it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met." Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998). Finally, in a PCRA proceeding, a defendant must establish that the ineffectiveness of counsel was the sort which "in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Pierce, 785 A.2d at 221-22; Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999).

Under Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (Pa. 2003), the only claim of ineffectiveness that Appellant can assert in PCRA proceedings is that of appellate counsel's ineffectiveness for failing to claim on direct appeal that trial counsel was ineffective.1 McGill, 832 A.2d at 1021. The failure to allege appellate

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counsel ineffectiveness will waive the underlying ineffectiveness claim against trial counsel. Appellant must, then, plead, present, and prove the ineffectiveness of appellate counsel pursuant to the general Pierce test of ineffectiveness; i.e. that the underlying claim of appellate counsel ineffectiveness has...

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