Com. v. Buehl

• Decision Date: 05 July 1995
• Citation: Com. v. Buehl, 658 A.2d 771, 540 Pa. 493 (Pa. 1995)
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roger BUEHL, Appellant.
• Court: Pennsylvania Supreme Court

Page 771

658 A.2d 771

540 Pa. 493

COMMONWEALTH of Pennsylvania, Appellee, v. Roger BUEHL, Appellant.

Supreme Court of Pennsylvania.

Submitted Oct. 17, 1994.

Decided May 16, 1995.

Reargument Denied July 5, 1995.

Samuel C. Stretton, for Buehl.

Roger Buehl, pro se.

Mary Ann Killinger, Robert A. Graci, Chief Deputy Atty. Gen., for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MONTEMURO, Justice.

This is a direct appeal from an order of the Court of Common Pleas of Montgomery County denying Appellant's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., following the imposition of a sentence of death. ¹ After reviewing the issues raised by Appellant we affirm.

On July 16, 1982, the bodies of Courtland and Alexandra Gross and their housekeeper, Catherine VanderVeur, were found in the Gross's home. All three had been shot to death. The bullets and shell casings found at the scene matched those from two previous armed robberies, one of which Appellant admitted committing. ² Appellant was charged with three counts of first degree murder, burglary, robbery, assault, reckless endangerment, weapons charges, and related offenses.

On January 18, 1983, Appellant was found guilty of murder in the first degree for the killings of Mr. and Mrs. Gross and Ms. VanderVeur. A separate sentencing hearing was held pursuant to 42 Pa.C.S. § 9711(a)(1), following which the jury imposed three consecutive sentences of death. ³

Appellant filed a direct appeal from this judgment of sentence, and we affirmed in Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Reargument was denied on May 13, 1988. Appellant then filed a Petition for Certiorari with the Supreme Court of the United States, which was denied on October 3, 1988.

No further action was taken on this matter until January 16, 1990, when petitioner filed a pro se petition for post conviction relief. Counsel was appointed to assist Appellant in his post-conviction claims and an amended PCRA petition was filed on November 11, 1991. Following a series of hearings on the petition, Appellant's PCRA hearing counsel was replaced by present counsel. On December 31, 1992, present counsel filed a supplemental brief in support of post-conviction relief. Argument was held on March 19, 1993, and relief was denied. Appellant now brings this appeal contending that he is entitled to relief on the grounds of prosecutorial misconduct, after-discovered evidence, and ineffective assistance of counsel.

We begin our analysis by noting that the purpose of the PCRA is not to provide a defendant with a means of relitigating the merits of issues long since decided on direct appeal. The strict eligibility requirements of the Act are set forth in Section 9543 which states:

§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:

(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution 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.

. . . . .

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

. . . . .

(3) 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.

(4) 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).

Dwyer's Testimony

Appellant's first two claims concern the prosecution's failure to reveal evidence regarding Commonwealth witness Joseph Dwyer. ⁴ At trial, Dwyer testified that on July 7, 1982, he had stolen a red Buick Skylark from the vicinity of Ninth and Pine Streets in Philadelphia. Dwyer then sold the car to Francis Kelly, who in turn testified that he had loaned the Skylark and the Walther PPK handgun used in the Gross murders to Appellant on July 10, 1982. Corroborating Kelly's testimony, Dwyer also stated that he had seen the Skylark and the murder weapon in Appellant's possession on July 10, 1982. Dwyer further stated that when he saw Appellant on July 10, 1982, Appellant asked him to assist him in two robberies; one on Pine Street and the other in Montgomery County.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective the good or bad faith on the part of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-97. Appellant first contends that the prosecution committed a Brady violation when it failed to reveal a statement made by Dwyer during a confrontation with Kelly on the final day of jury selection in which Dwyer claimed to have seen Kelly in possession of the murder weapon several weeks after the murders. Prior to trial, Appellant had made a general discovery request for all statements made by Dwyer.

This claim, however, fails because the statement is simply not exculpatory and, thus, lacks materiality. We have previously held that when a general, as opposed to specific, request for exculpatory evidence is made, the evidence is material "if the omitted evidence creates a reasonable doubt that did not otherwise exist." Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994) (citing Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1994)).

Under the present facts, Dwyer's statement fails to meet this standard. Even if Appellant had established that the murder weapon had come into Kelly's possession three to four weeks after the murders, the Commonwealth presented overwhelming evidence that the murder weapon had been in Appellant's hands at the time of the killings. At trial, Appellant admitted that he had used the murder weapon in the robbery of the Good Scents Shop just two days prior to the killings. On the afternoon of the killings, the murder weapon was again employed in a robbery at the home of Richard Kirkpatrick. Later that evening, Appellant sold jewelry which was identified as having been taken from the Kirkpatrick home. On the afternoon of the killings, Appellant with a gun in his waistband arrived at the office of Commonwealth witness Joseph LaMotte and stated that he had just killed three people. In the days following the killings, Appellant told witness Anthony Miller that he had killed people with a PPK. In addition, Appellant threatened to "blow Miller away" with the same gun. In light of this evidence, Dwyer's statement was not material because it would not have created a reasonable doubt as to Appellant's guilt. Thus, the prosecution's failure to reveal the statement does not constitute a violation of due process, and does not provide a basis for relief.

Appellant next argues that the prosecution violated Brady by improperly withholding evidence concerning the potential bias of witnesses Dwyer and Kelly. The source of this alleged bias was pending criminal charges against Dwyer and Kelly, and the preferential treatment Dwyer allegedly received while incarcerated. This claim does not satisfy the strict requirements of the PCRA. Thus, it fails to provide a basis for relief.

Under 42 Pa.C.S. § 9543(a)(2)(i), a violation of a defendant's constitutional rights provides a basis for PCRA relief only where the violation "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i). In the instant case, Dwyer and Kelly testified that prior to the murders at the Gross estate, the gun used to commit them was already in Appellant's hands. This fact, however, had been established by the Commonwealth through evidence indicating that the bullets and shell casings found at the Gross estate matched the bullets and shell casings from the gun used in the robbery of the Good Scents Shop two days before the murders. Consequently, the prosecution's case would not have been affected even if Dwyer and Kelly were totally discredited. As a result, the prosecution's failure to reveal information that may have established the bias of these witnesses cannot be said to have "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place". Id. This claim, therefore, fails.

In his third allegation of error, Appellant contends that he is entitled to a new trial on the basis of...