Com. v. Abdul-Salaam

• Citation: 570 Pa. 79,808 A.2d 558
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Seifullah ABDUL-SALAAM, Appellant.
• Decision Date: 31 December 2001
• Court: United States State Supreme Court of Pennsylvania

808 A.2d 558

570 Pa. 79

COMMONWEALTH of Pennsylvania, Appellee v. Seifullah ABDUL-SALAAM, Appellant.

Supreme Court of Pennsylvania.

Submitted August 2, 1999.

Decided December 31, 2001.

Reconsideration Denied September 20, 2002.

Robert Brett Dunham, Philadelphia, for Seifullah Abdul-Salaam, appellant.

Jamie Keating, for the Com., appellee.

Robert A. Graci, Harrisburg, for Office of Atty. Gen., appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN nd SAYLOR, JJ.

OPINION

Justice NIGRO.

Appellant Seifullah Abdul-Salaam appeals from the order of the Court of Common Pleas of Cumberland County denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. For the reasons outlined below, we affirm.

On March 15, 1995, a jury found Appellant guilty of first-degree murder, robbery and conspiracy in connection with the fatal shooting of Officer Willis Cole of the New Cumberland Police Department. Following a sentencing hearing, the jury determined that the four aggravating circumstances it found outweighed the one mitigating circumstance it found and accordingly, fixed Appellant's penalty at death.¹ On June 18, 1996, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). Appellant then filed a pro se PCRA petition on May 13, 1997. The Center for Legal Education, Advocacy and Defense Assistance (CLEADA) was appointed to represent Appellant and subsequently filed an amended PCRA petition on Appellant's behalf. Following a hearing, the PCRA court denied relief. Appellant then filed the instant appeal.²

Appellant raises ten issues in his brief to this Court, many of which contain several sub-issues. Most of Appellant's issues, however, have been waived for purposes of the PCRA.

To be eligible for relief under the PCRA, a petitioner must establish, as a threshold matter, that his allegations have not been waived. An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review [or] on appeal...." 42 Pa.C.S. § 9544(b). In addition, the relaxed waiver rule is not applicable to PCRA capital appeals. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998)

.

Appellant specifically contends that: the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); the Commonwealth violated his due process rights by consuming an entire blood sample for testing; the trial court erred by failing to provide instructions to the jury that it could consider evidence of Appellant's abusive background under 42 Pa.C.S. § 9711(e)(2) and (e)(3), which embody Pennsylvania's two mental health mitigating circumstances; the process by which this Court engages in proportionality review violates defendants', including Appellant's, due process rights; the trial court erred by allowing Appellant's juvenile adjudications to serve as a basis for the aggravating circumstance under 42 Pa.C.S. § 9711(d)(9), i.e. that the defendant has a significant history of felony convictions involving the use or threat of violence; the aggravating circumstance under 42 Pa.C.S. § 9711(d)(9) is unconstitutionally vague; and the jury improperly found the existence of the aggravating circumstance under 42 Pa.C.S. § 9711(d)(6). Appellant could have raised each of these claims in his direct appeal to this Court but failed to do so. Accordingly, these claims are waived and, therefore, beyond the power of this Court to review under the express terms of the PCRA. See 42 Pa.C.S. § 9543(a)(3).³ Appellant also argues that trial counsel rendered ineffective assistance of counsel at his penalty phase hearing. Because this claim is framed as one of ineffectiveness, and because it is adequately argued under the standard governing such a claim, this claim has not been waived for purposes of the PCRA and is therefore, reviewable.

To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without any reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994). If a reasonable basis exists for the particular course chosen by counsel, the inquiry ends and counsel's performance is deemed constitutionally effective. Commonwealth v. Derk, 553 Pa. 325, 719 A.2d 262, 266 (1998) (opinion in support of affirmance).

Appellant claims that counsel was ineffective for failing to locate evidence of his mental illness and his organic brain damage and present such evidence as mitigation at his penalty phase hearing. Even if this claim had arguable merit,⁴ we agree with the PCRA court that counsel had a reasonable basis for not presenting such evidence. At the PCRA hearing, counsel specifically stated his reasons for not presenting mental health mitigation evidence in this particular case, testifying that:

When you begin to defend a person's actions or excuse them by the use of mental health expert testimony, you hold yourself open to the risk that you are essentially relitigating the crime. I heard this today during your cross-examination of Dr. Armstrong [one of the mental health experts presented by Appellant]. You asked her if she could tell that there was a specific time on August 19th, 1994 [the date Appellant shot and killed Officer Cole], when the organic brain disorder manifested itself in compelling the defendant's actions, and she said she could not and no one could.

The risk of that is that it often provides the prosecutor with an opportunity to not just describe the defendant's acts in a factual context, but in almost a moral context. For example if a person—taking this case as an example, if a person was afflicted by organic brain disorder or some psychiatric disease or some mental health problem, I've heard asked repeatedly in other cases, isn't this inconsistent with the type of planning that goes into the perpetration of this crime? Isn't this inconsistent with the fact that the person, according to the evidence and testimony, had the wherewithal to try to escape?

Isn't this inconsistent with the fact that he returned to the scene of the crime for perhaps no other reason than to open fire? In a case like this, in this case in particular, the emotional impact of the testimony throughout the trial was such that I would have thought it unlikely that a jury would accept psychiatric mitigation as a factor, especially one that would outweigh the really very devastating emotional impact of the several days of testimony that they just heard.

N.T., 4/23/98, at 179-80. See also Commonwealth v. Pirela, 556 Pa. 32, 726 A.2d 1026, 1035 (1999)

(presentation of evidence of defendant's troubled childhood might be viewed as attempt to trivialize brutal murder). This testimony sufficiently supports the PCRA court's finding that counsel had a reasonable basis for not presenting the mitigating evidence Appellant now claims counsel should have offered.⁵

In sum, all but one of Appellant's claims have been waived and thus, cannot be reviewed by this Court. Appellant's remaining claim is without merit, as we find that the PCRA court properly determined that counsel did not render ineffective assistance at Appellant's penalty phase hearing. The order of the PCRA court denying post-conviction relief is therefore affirmed.⁶

Justices CASTILLE and SAYLOR file concurring opinions.

Justice CASTILLE, concurring.

I join the majority opinion with the sole exception of the first sentence in footnote 3. In that sentence, the majority states that a petitioner can "avoid" the PCRA's proscription on waived claims if he makes an "adequate and properly layered claim of ineffective assistance of counsel at his first opportunity to do so." The majority then rejects the ineffectiveness claim made here, which purports to apply to all of appellant's underlying waived claims of trial error, because it is undeveloped.

Although our cases have occasionally, and somewhat imprecisely, suggested that a claim of counsel ineffectiveness "avoids" or "excuses" waiver, in fact that is not the manner in which the PCRA operates and, to provide guidance to the bench and bar, I would be more precise in my analysis of the question. Waived claims, such as the claims of trial error which appellant here could have raised on direct appeal but did not, are waived without qualification under the PCRA. 42 Pa.C.S. § 9544(b); Commonwealth v. Pierce, 786 A.2d 203, 212 (Pa.2001). A claim of ineffective assistance of counsel, on the other hand, is a distinct claim of constitutional dimension, which is itself specifically deemed cognizable under the PCRA—provided, of course, that the ineffectiveness claim itself was not waived at an earlier stage of the proceedings. Id.

As a practical matter, claims of ineffective assistance of counsel are often "derivative" of claims of trial error which have been waived; i.e., trial counsel is alleged to have been ineffective for failing to raise a claim which is now perceived by subsequent counsel upon review of the record. See Commonwealth v. Williams, 782 A.2d 517,

525 & n. 5 (Pa.2001). That is, indeed, what appellant has alleged here as to his waived claims, albeit he does so in boilerplate fashion. Such a claim of ineffectiveness, if successful, could be said to "excuse" the waiver of the underlying claim in the limited sense that the event at trial will now be subject to some review, albeit through the guise of the standards governing claims of ineffective assistance...