Com. v. Beasley

Decision Date07 August 1996
Citation678 A.2d 773,544 Pa. 554
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Leslie C.X. BEASLEY, Appellant.
CourtPennsylvania Supreme Court

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Appellee.



FLAHERTY, Justice.

Appellant, Leslie C.X. Beasley, was convicted of murder of the first degree and possession of an instrument of crime. The conviction stemmed from the shooting death of police officer Ernest Davis at a restaurant in Philadelphia. The officer had gone to the restaurant in response to a radio dispatch alerting him that a man with a gun was present there. When the officer arrived at the restaurant, appellant shot and killed him.

After a penalty phase hearing, the jury returned a sentence of death, finding no mitigating factors and two aggravating factors: the victim was a peace officer who was killed in the performance of his duties; 1 and appellant had a significant history of felony convictions involving the use or threat of violence to other persons 2 as appellant concededly had been convicted of murder once before. 3 Post-verdict motions were heard and denied and appellant was formally sentenced to death and additionally sentenced to a consecutive term of two and one-half to five years for possession of an instrument of crime.

Following an evidentiary hearing, appellant's motion for a new trial on the grounds of ineffective assistance of trial counsel was denied. 4 This court affirmed. Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984).

Appellant then filed a pro se petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. ("PCHA") (repealed) and, following evidentiary hearings, the court denied his claims. On appeal, Superior Court set aside the death sentence and remanded the case for imposition of a life sentence. Commonwealth v. Beasley, 377 Pa.Super. 648, 541 A.2d 1148 (1988). 5 This court reversed and reinstated appellant's death sentence. Commonwealth v. Beasley, 524 Pa. 34, 568 A.2d 1235 (1990).

Appellant thereafter filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court granted appellant's motion to hold the federal habeas corpus petition in abeyance and to stay his execution pending exhaustion of state remedies. Appellant subsequently filed a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (1988) ("PCRA"). 6 Following a review of appellant's claims, the PCRA court denied appellant's petition without a hearing. This appeal followed. 7

The Commonwealth first argues that the post-conviction petition should be denied absent a demonstration by appellant that a miscarriage of justice has occurred. A second or subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). This standard is met only if petitioner can demonstrate either: (a) the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (b) he is innocent of the crimes charged. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099-1100 (1993). Appellant has not attempted to meet either leg of the Szuchon test in this appeal, his second request for collateral review. The PCRA court correctly concluded that appellant's petition could be dismissed on this ground alone. Nevertheless, since this is a capital case, this court will address appellant's claims.

The Commonwealth also argues that appellant is ineligible for relief under the PCRA as his claims were previously litigated or waived and, in any case, are meritless. Appellant is required by 42 Pa.C.S. § 9543 to demonstrate eligibility for relief under the PCRA. Section 9543(a) mandates that appellant's allegation of error has not been previously litigated and other conditions have been met. According to 42 Pa.C.S. § 9544(a), an issue has been previously litigated when: "... (2) 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, or (3) it has been raised and decided in a proceeding collaterally attacking the conviction and sentence."

Where claims allegedly have not been previously litigated, there must be adherence with the requirements of 42 Pa.C.S. § 9543(a)(3) which states:

That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9544(b) provides that an issue has been waived "if the petitioner could have raised it but failed to do so ... at the trial, ... [or] on appeal...." If appellant could have raised issues on direct appeal and did not, these issues must be deemed waived under § 9544 unless an anti-waiver rule in 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) applies. Since appellant has not claimed that any alleged error resulted in the conviction of an innocent individual, the focus of this inquiry is on 42 Pa.C.S. § 9543(a)(3)(iii). Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994).

Waiver is excused under the PCRA where: (1) ineffective assistance of counsel is demonstrated; and, (2) appellant had a constitutional right to counsel at the stage in the state proceedings where counsel's ineffectiveness resulted in the waiver. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The accused has a constitutional right to counsel on direct appeal but not in state collateral proceedings. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In appellant's case, ineffective assistance of counsel will excuse the waiver under 42 Pa.C.S. § 9543(a)(3)(iii) only with regard to claims of ineffectiveness of counsel at trial and on direct appeal and provided the standards announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), and its progeny are met.

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), and subsequent cases require a defendant to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel's performance was unreasonable; and (3) counsel's ineffectiveness prejudiced defendant. An appellant cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Commonwealth v. Peterkin, supra. Further, counsel cannot be considered ineffective for failing to assert a meritless claim. Id. And finally, where a PCHA court's credibility determination is supported by the record, it is binding on the reviewing court. Commonwealth v. Garrity, 509 Pa. 46, 56, 500 A.2d 1106, 1111 (1985).

In summary, appellant must first demonstrate the claim has not been previously litigated. If the claim has not been previously litigated, appellant must then demonstrate the claim has not been waived. If the claim has been waived, appellant must demonstrate the alleged error was the result of ineffective assistance of counsel during the trial, the penalty phase or on direct appeal. All except one of appellant's claims are framed in terms of ineffective assistance of counsel.

Appellant first argues that counsel was ineffective for failing to present purportedly available mitigation evidence of his mother and other witnesses during the penalty phase. When counsel follows the defendant's strategy at the penalty phase, he cannot be deemed ineffective for doing so. Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994). At the PCHA hearing, trial counsel testified that he advised appellant to testify and to obtain others to testify on his behalf. Counsel also testified that appellant failed to provide counsel with any names of possible mitigation witnesses and refused to permit any of his family members, except his mother, to be called as a witness. The PCHA court did not err in concluding appellant personally elected not to present mitigation evidence or in denying relief.

Even assuming appellant could prove that he did not dictate strategy at the penalty phase, he is still not entitled to relief. Failure to present mitigation evidence, without more, is not per se ineffective assistance of counsel. Commonwealth v. Yarris, 519 Pa. 571, 606, 549 A.2d 513, 531 (1988). Rather, appellant must show how the testimony of the uncalled witness would have been beneficial under the circumstances of his case. Commonwealth v. McNeil, 506 Pa. 607, 617, 487 A.2d 802, 807 (1985).

Appellant's current list contains eleven persons, nine of whom testified either in person or by stipulation during the 1986 PCHA proceedings. The PCHA court ruled that appellant failed to show he was prejudiced by the absence of these witnesses, most of whom had had sporadic contact with appellant at the time of trial or who could provide no mitigating evidence. 8

The record also reflects that counsel had a reasonable basis for not presenting additional witnesses at the penalty phase. The trial court had ruled, correctly at the time, that any mitigation witnesses could be cross-examined not only about appellant's prior homicide conviction in New Jersey but also about...

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