Com. v. Breakiron

• Decision Date: 09 April 1999
• Citation: 729 A.2d 1088,556 Pa. 519
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mark David BREAKIRON, Appellant.
• Court: Pennsylvania Supreme Court

556 Pa. 519

729 A.2d 1088

COMMONWEALTH of Pennsylvania, Appellee, v.Mark David BREAKIRON, Appellant.

Supreme Court of Pennsylvania.

Submitted July 20, 1998.

Decided April 9, 1999.

Phyllis A. Jin, Uniontown, Michael J. Savona, Brownsville, for M. Breakiron.

Robert A. Graci, Marianne E. Kreisher, Harrisburg, for Commonwealth.

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

OPINION

NEWMAN, Justice.

In this capital case, Mark David Breakiron("Breakiron") appeals from an order denying post-conviction relief.

I.FACTS

On March 24, 1987, Breakiron stabbed Saundra Marie Martin(Ms. Martin) at Shenanigan's Lounge, the bar at which she was working.He then took her purse and the bags that contained the bar's cash receipts for the day.He threw Ms. Martin's body in his pick up truck and hid it in the woods near his grandparents' house, where the police discovered the body the next day.At the time the body was discovered, it was nude except for a sock on her foot.The pathology reports indicated that Ms. Martin had been stabbed twenty times and her neck was slashed.She had defensive wounds on her hands and signs of blunt force trauma to her head.

At trial, Breakiron's sole defense to the crime was "diminished capacity."The only witness was Breakiron, who testified that because of his alcohol intoxication on the evening of the murder, he did not remember the incident, but that he recalled portions, "... like a TV screen inside [his] head and [he] saw someone laying there getting stabbed."(N.T.at 1256)In addition, Breakiron testified that he went to the bar where Ms. Martin was working and had a number of beers, after already drinking about fourteen beers, and shots of liquor.At about 12:30 a.m. all of the other patrons had left the bar except Breakiron.Ms. Martin came around the bar, and sat on a barstool near him.They talked for awhile and then Breakiron went to a pinball machine at the back of the bar.Ms. Martin came over to him and he tried to put his arm around her."The next thing"he recalls is "getting hit over the head with something heavy."(N.T.at 1253)He fell to the floor and remembers nothing else.When he regained consciousness, Ms. Martin was on the floor of the bar with a knife in her back.Breakiron proceeded to pull the knife out of her back, hurry out of the bar, and get in his truck.(N.T.at 1255)He tried to get out of there because "everything was wrong."Id.As he was driving, he felt that he was "part of it" and that "he had to correct it."Id.He returned to the lounge, went to the body, felt that it was cold, picked her up, carried her outside and put her in the bed of the truck.At that time, he took bags of money, which contained the receipts of the bar for the evening and he took Ms. Martin's purse.

Ellis Price, a prison mate of Breakiron's, testified that Breakiron told him that when Breakiron got to the bar, another man and woman were there, so he went into the bathroom to hide until they left.Breakiron asked for another drink, and the barmaid said it was closing time, and he had to leave.He then picked up an ashtray and started hitting Ms. Martin.When she would not "go to the floor,"he pulled out a knife.Then he dragged her to his truck and took her to his "Pap's" house where he"finished her off."

Following the presentation of evidence, a jury convicted Breakiron of first-degree murder and robbery.At a hearing on April 14, 1998, the jury sentenced Breakiron to death, finding two aggravating circumstances: that Ms. Martin was tortured, and that the murder was committed in the course of a robbery.No mitigating circumstances were found.We affirmed the judgment of sentence on March 14, 1990.Commonwealth v. Breakiron,524 Pa. 282, 571 A.2d 1035(1990),cert. denied,498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179(1990)(Breakiron I).¹Trial counsel represented Breakiron through the direct appeal and during a petition for certiorari to the United States Supreme Court.

On March 11, 1996, Breakiron filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA), alleging claims of ineffective assistance of counsel and trial court error and requesting appointment of counsel.The main thrust of the pro se petition was that trial counsel was ineffective in handling certain mental health issues.The Court of Common Pleas of Fayette County(PCRA court) appointed new counsel to represent Breakiron during the PCRA proceedings, and appointed the Attorney General's office to handle the prosecution because of a conflict within the District Attorney's office.PCRAcounsel filed an amended PCRA petition, on which the PCRA court held hearings on July 17 and 18, 1997 and September 17 and 19, 1997.The PCRA court denied relief, holding that Breakiron's claims were either waived, previously litigated or were without merit.This appeal followed.

II.ANALYSIS

In this appeal, Breakiron seeks review of the denial of relief, by the PCRA court, on a number of grounds.First, he argues that the PCRA court should have recused the Attorney General from prosecuting the PCRA issues because the Attorney General's office improperly enlisted the aid of the Fayette County District Attorney's office, which had previously been recused from prosecuting the PCRA petition.Additionally, Breakiron raises two issues regarding both his conviction for first degree murder and the imposition of the death penalty.We first address Breakiron's arguments that the PCRA court should have recused the Attorney General from involvement in this matter.We will then discuss the issues related to alleged error in the guilt and penalty phases of the trial.

A. RECUSAL OF THE ATTORNEY GENERAL

Because of an alleged conflict of the Attorney General's office, Breakiron requests that we remand this matter for a new PCRA hearing.We disagree that the Attorney General's office had any actual conflict in this matter.

During the PCRA proceedings, Breakiron requested that the PCRA court appoint special counsel from the Attorney General's office because in the interim from Breakiron's trial to the PCRA filing, both of Breakiron's trial and direct appeals counsel, Richard Bower and Jack Heneks of the Public Defender's office, became Assistant District Attorneys.Consequently, the Fayette County District Attorney's office had a conflict of interest in prosecuting the matter before the PCRA court.(The Fayette County District Attorney's office consisted of only five attorneys, including the two who had worked on Breakiron I.)The trial court granted the request to recuse the District Attorney.(Apparently, the District Attorney's office agreed that a conflict existed and requested that the Attorney General's office take over the matter.)Following this motion and Order of the PCRA court, Chief Deputy Attorney GeneralRobert Graci assumed the prosecution of the PCRA claims pursuant to 71 P.S. § 732-205.

A short while after the appointment of Attorney Graci, Breakiron filed a motion to recuse Attorney Graci and to appoint another special prosecutor.The basis for the motion was that Attorney Graci allegedly created a conflict of interest because he asked trial counsel Bower to review a file that was still in the Public Defender's office.In addition, Attorney Graci had also requested Attorney Bower to review PCRA filings before the pleadings were filed with the court.On January 23, 1997, the PCRA court held a hearing regarding Breakiron's motion for recusal of the Attorney General.On March 10, 1997, the PCRA court denied the motion, holding that it:

[found] no conflict to warrant recusal of the Attorney General.We must note initially that our decision should not be construed as our condonation or approval of the actions taken by Attorney Graci in soliciting Attorney Bower's assistance, or Attorney Bower's review of the file in the public defender's office...Our research has revealed no case on point.Nevertheless, we find that the effect is de minimis at this early stage of the proceedings. . . Any alleged conflict is not so severe as to warrant the drastic measures of recusing the Attorney General and appointing a special prosecutor.

We agree with the trial court that while the Attorney General's actions in this matter are not to be condoned, removal of the Attorney General was not an appropriate remedy, and the effect, if any, on the PCRA proceeding was de minimis.Breakiron did not meet his burden of showing that there was any actual impropriety in Attorney Graci's conduct.See, e.g., Commonwealth v. Harris,501 Pa. 178, 460 A.2d 747(1983)(in order to appoint special prosecutor in PCHA proceedings, the defendant must show an actual impropriety, which taints the proceedings).We deny Breakiron's request that we remand this matter for another PCRA hearing.²

B.INEFFECTIVE ASSISTANCE OF COUNSEL

Breakiron next raises a number of arguments attacking the effectiveness of his trial counsel, which were properly raised to the PCRA court because that was his first opportunity to bring such a challenge.Commonwealth v. Seachrist,478 Pa. 621, 623, 387 A.2d 661, 663(1978).These claims can be categorized as follows: (1) those that relate to counsel's trial preparation; (2) those that relate to jury selection; (3) those that relate to the court's jury instructions during the guilt phase of trial; (4) those that relate to the aggravating circumstance of torture; (5) those that relate to counsel's remarks during closing argument in the penalty phase; (6)counsel's presentation of mitigating circumstances, (7)counsel's presentation of Breakiron's alcohol abuse; and (8) trial counsel's handling of mental health issues in both the guilt and penalty phase of trial.We address each of these below.³

1.COUNSEL'S TRIAL PREPARATION

It is Breakiron's contention that counsel failed to interview and consult with him adequately, claiming that he and counsel met only two or three times...