Com. v. Burkhardt

• Decision Date: 22 September 2003
• Citation: 833 A.2d 233
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. George BURKHARDT, Appellant.
• Court: Pennsylvania Superior Court

833 A.2d 233

COMMONWEALTH of Pennsylvania, Appellee, v. George BURKHARDT, Appellant.

Superior Court of Pennsylvania.

Submitted June 23, 2003.

Filed September 22, 2003.

Burton A. Rose, Philadelphia, for appellant.

Susan E. Moyer, Asst. Dist. Atty., Lancaster, for Com., appellee.

BEFORE: DEL SOLE, P.J., and JOHNSON, HUDOCK, MUSMANNO, LALLY-GREEN, KLEIN, BENDER, BOWES and GRACI, JJ.

OPINION BY JOHNSON, J.:

¶ 1 On this appeal, we are asked to determine whether the Commonwealth's failure to disclose a material witness's subjective expectation of leniency in exchange for that witness's testimony results in the denial of due process warranting a new trial. We conclude that the supposed understanding of the witness, if established, would be relevant to that witness's credibility and therefore material. Nevertheless, on the facts presented here, we conclude, had the expectation of leniency been presented to the jury, that it would not have raised a reasonable probability that the result of the trial would have been different. Accordingly, we determine that a new trial is not warranted, and we affirm the denial of post-conviction collateral relief.

¶ 2 On January 12, 1990, a jury convicted George W. Burkhardt of two counts of second degree murder. The Honorable Michael A. Georgelis sentenced Burkhardt to two concurrent life sentences. Burkhardt filed post-verdict motions which were denied. Following direct appeal, this Court affirmed and our Supreme Court granted, then dismissed, Burkhardt's petition for allowance of appeal. See Commonwealth v. Burkhardt, 421 Pa.Super. 646, 613 A.2d 26 (1992) (unpublished Memorandum), appeal granted, 534 Pa. 635, 626 A.2d 1155 (1993), dismissed as improvidently granted, 535 Pa. 547, 636 A.2d 1117 (1994).

¶ 3 Burkhardt filed his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, on June 20, 1994. The court appointed counsel, a hearing was held, and the court denied relief. Burkhardt appealed and we affirmed. On November 7, 1997, our Supreme Court denied allowance of appeal. See Commonwealth v. Burkhardt, 695 A.2d 434 (Pa.Super.1997) (unpublished Memorandum), appeal denied, 550 Pa. 676, 704 A.2d 634 (1997).

¶ 4 Following an unsuccessful pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, which was rejected by the federal district court, the Court of Appeals for the Third Circuit, and the United States Supreme Court, Burkhardt filed his second PCRA petition on December 3, 1999. The Commonwealth filed its answer after which the trial court stayed proceedings pending final disposition of Burkhardt's federal appeal. Following a hearing on March 29, 2001, and the filing of briefs by both parties, Judge Georgelis denied relief, prompting this present appeal.

¶ 5 In filing his petition on December 3, 1999, Burkhardt invoked an exception contained in the PCRA permitting a filing beyond the standard one-year limitation following the date the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). He averred in his petition that the facts upon which his claim is predicated were unknown to him and could not have been ascertained with due diligence prior to November 12, 1999, the date upon which Robert Paul O'Neill, a material witness at Burkhardt's trial, signed an affidavit relating the facts surrounding his testimony at that trial. Such an allegation of after-discovered evidence brings a PCRA petition within the permissible time limitations found in 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2). The distinguished trial judge found the petition to be timely filed, inasmuch as it was filed within sixty days of the date O'Neill executed his affidavit. We accept Judge Georgelis's finding and proceed to our review of the denial of PCRA relief.

¶ 6 Burkhardt presents the following question for our review:

Was the Appellant deprived of due process of law by the failure to reveal at trial the full extent of the arrangement between key prosecution witness Robert O'Neill and the prosecutor in exchange for trial testimony against this Appellant?

Brief for Appellant at 3.

¶ 7 We begin with our standard of review. "We review an order granting or denying PCRA relief to determine whether the PCRA court's decision is supported by evidence of record and whether its decision is free from legal error." Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa.2003); see also Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super.2003) (en banc)

(same). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Wilson, 824 A.2d at 333. A second or any 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. Carpenter, 555 Pa. 434, 725 A.2d 154, 160 (1999) (quoting Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988)). "A petitioner makes a prima facie showing if he `demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged.'" Id. (quoting Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520-21 (1997)); see also Commonwealth v. Palmer, 814 A.2d 700, 709 (Pa.Super.2002) (same). Finally, we remain always cognizant that the formal purpose of the Superior Court is to maintain and effectuate the decisional law of our Supreme Court as faithfully as possible. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985); accord Commonwealth v. Shaffer, 696 A.2d 179, 183 (Pa.Super.1997) (citing Commonwealth v. Fiore, 445 Pa.Super. 401, 665 A.2d 1185, 1193 (1995),

reversed on other grounds, 557 Pa. 453, 734 A.2d 840 (1999)).

¶ 8 It is with these stringent standards in mind that we now turn to Burkhardt's allegations. Burkhardt argues that both his federal and state constitutional rights to due process were violated by the failure to reveal to him at the time of trial that the crucial Commonwealth witness had obtained an arrangement through his attorney that, in exchange for testimony against Burkhardt, he would be given "consideration" by the District Attorney (D.A.) in determining the charges to which the witness would be permitted to plead guilty. Brief for Appellant at 7. A brief statement of the facts surrounding Burkhardt's arrest and prosecution are helpful in placing this contention in context.

¶ 9 In our unpublished Memorandum filed May 12, 1992, at No. 2402 Philadelphia 1991, this Court set forth the following:

On September 17, 1979, Horace Swarr and his sister, Mary Swarr, were found bound and gagged in their home. Mary Swarr was dead and Horace Swarr died the next day at the hospital. No arrests were made for nearly a decade until January 14, 1989 when Robert Paul O'Neill ("O'Neill") was arrested in Maryland by the Maryland State Police. Although O'Neill originally denied any involvement in the Swarrs' deaths, he eventually gave a statement to the police implicating John Askew ("Askew"), Dale Healy ("Healy"), and George W. Burkhardt ("Burkhardt"), the defendant in this case. On January 27, 1989[,] Burkhardt was charged with two counts of criminal homicide and one count of criminal conspiracy to commit robbery.

Commonwealth v. Burkhardt, No. 2402 Philadelphia 1991, slip Memorandum at 1, 421 Pa.Super. 646, 613 A.2d 26.

¶ 10 The importance of O'Neill's testimony to the prosecution's case against Burkhardt cannot be overemphasized. It was only after police were able to connect O'Neill to the crime, and O'Neill was finally arrested on January 14, 1989, that any progress was made tying Burkhardt, Askew and Healy to the two homicides. Notes of Testimony, 1/5/90, at 20-22. O'Neill's credibility was placed in question by Burkhardt's trial defense counsel, Michael A. George, in his opening statement to the jury, when he stated:

If you don't believe Robert O'Neill, then you might as well come on back out. Robert O'Neill is going to be the keystone of this case.

The prosecution, I believe, is going to rest their entire case on the accusations of one man about a crime that occurred in 1979. The same man who, the evidence is going to show, knowingly came to this city in 1979 and bound and tied up two old people and then left them there.

Id. at 45.

¶ 11 At Burkhardt's trial, the direct examination of O'Neill took place on Friday afternoon, January 5, 1990, conducted by John A. Kenneff, Lancaster County Assistant District Attorney. During direct examination, no question arose regarding any understanding or agreement between O'Neill and the Commonwealth. Id. at 76-121. In anticipation of lengthy cross-examination, Judge Georgelis adjourned the case at 4:35 p.m., with proceedings to resume on Monday morning, July 8, 1990. Id. at 121-124. On Monday morning, Attorney George's cross examination and re-cross examination lasted from shortly after 9:00 a.m. until 10:42 a.m., with only brief redirect examination by Attorney Kenneff in between. Id. at 126-190, 203-213. Attorney George conducted vigorous cross-examination touching upon the period before the crime when O'Neill first came in contact with the other three actors, the specific details concerning the planning of the robbery and the steps taken within the victims' home, events immediately following the commission of the crime, and contacts between O'Neill, his cohorts, the police and various defense counsel. However, the only testimony presented to the jury during trial touching upon the issue of any potential agreement between O'Neill and the Commonwealth was as follows:

By Mr. George:

Q Mr. O'Neill, you have a plea agreement now, don't you?

A No, I don't.

Q No agreement at all with the Commonwealth?

A What do you mean by an agreement?

Q Do you have any agreement with the Commonwealth

...