Com. v. Carpenter

• Decision Date: 19 November 1992
• Citation: 617 A.2d 1263,533 Pa. 40
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James H. CARPENTER, Appellant.
• Court: Pennsylvania Supreme Court

Page 1263

617 A.2d 1263

533 Pa. 40

COMMONWEALTH of Pennsylvania, Appellee, v. James H. CARPENTER, Appellant.

Supreme Court of Pennsylvania.

Argued May 5, 1992.

Decided Nov. 19, 1992.

[533 Pa. 43] Steven G. Zorbaugh, York, for appellant.

H. Stanley Rebert, Dist. Atty., John W. Thompson, Jr., York, Gerald A. Lord, Dep. Prosecutor, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice. ^*

This is the appeal of James H. Carpenter (Appellant) from the Order of the Court of Common Pleas of York County denying Appellant relief under the Post Conviction Relief Act (PCRA). ¹ Jurisdiction over this direct appeal exists pursuant to 42 Pa.C.S. § 9546(d) which provides that a final court order under the PCRA "in which the death penalty has been imposed shall be directly appealable only to the Supreme Court pursuant to its rules."

Appellant was convicted by a jury on January 20, 1984, of the stabbing death of Jimmy Lee Taylor. The jury found Appellant guilty of murder of the first degree and following a sentencing hearing, determined that an aggravating circumstance existed (namely, that Appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9)) which outweighed any mitigating circumstances. The jury fixed the penalty at death and a direct appeal followed to this Court. Following our mandatory review of such matters, we affirmed the conviction and judgment of the sentence of death, Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986), and remanded the matter to the Court of Common of York County for the appointment of new counsel so that counsel could argue various ineffective assistance of counsel claims that Appellant had raised in a pro se petition filed with this Court.

The Honorable James E. Buckingham, a Senior Judge of the Court of Common Pleas of York County, appointed new counsel and held a hearing on the thirteen allegations of trial counsel ineffectiveness. All of these allegations were determined to be meritless and relief under the PCRA was denied, prompting this direct appeal.

Appellant renews twelve of his allegations of trial counsel ineffectiveness, which can be grouped into various categories. Three issues concern counsel's failure to object to certain testimony elicited from witnesses or venirepersons; two issues concern counsel's failure to object to the prosecutor's comments; four issues challenge counsel's failure to object to the jury charge at the guilt phase or penalty phase; one issue concerns counsel's failure to argue mitigating factors to the jury; one issue challenges counsel's actions at the penalty phase in response to a question from the jury; and the last issue deals generally with the sufficiency of counsel's actions in preparing Appellant for trial.

It is axiomatic that in order for Appellant to establish a claim of ineffective assistance of counsel, he must first demonstrate that the underlying claim is of arguable merit; that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate his interest; and that the commission or omission so undermined the trial that the verdict is unreliable. It is with these principles in mind that we review Appellant's various allegations of trial counsel ineffectiveness.

ISSUES CONCERNING THE FAILURE TO OBJECT TO TESTIMONY BY

WITNESSES AND VENIREPERSONS

The first claim that falls in this category of error revolves around counsel's failure to object to a witness's disclosure of his occupation as a parole officer. Appellant argues that this reference permitted the jury to infer that Appellant had a prior criminal record, which was prejudicial per se to his cause. This same issue was raised in the direct appeal to us, where we reviewed the record and the context in which the statement was made and thereafter concluded that "little, if any, prejudice accrued to appellant by this witness passing reference to his occupation as a parole officer." Commonwealth v. Carpenter, 511 Pa. at 437, 515 A.2d at 534-535. Our conclusion that the disclosure was not prejudicial necessarily precludes a determination now that counsel was ineffective for failing to object because Appellant cannot relitigate our finding that the omission was not prejudicial to him and without such a finding he cannot establish counsel's ineffectiveness.

Next, Appellant claims that trial counsel was ineffective when he did not object to the prosecutor asking Helen Emmil whether she had a criminal record. Appellant's defense was based on the theory that Ms. Emmil committed the murder and, on cross-examination, trial counsel attempted to show that Ms. Emmil had a violent disposition by asking her whether: (1) she ever told the Appellant that if he fooled around with another woman or brought her into her house, she would kill her, and (2) whether she ever kept a knife because of her fear of the victim.

This line of questioning prompted the prosecutor to ask the witness on re-direct examination whether she had a prior criminal record in an attempt to demonstrate that she had no prior history of violence. Such a line of questioning falls within the recognized rule that re-direct examination is limited to answering only such matters as were drawn out in the immediately preceding examination. Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982). Moreover, when a party raises an issue on cross-examination, it will be no abuse of discretion for the court to permit re-direct on that issue in order to dispel any unfair inferences. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981); Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977). Since the defense raised a question concerning the witness's violent nature, the prosecution had a right to dispel any unfair inferences arising from this issue by allowing the witness to answer the charge by showing that she did not have a criminal record. There would have been no merit in objecting to this line of questioning and counsel cannot be found to be ineffective for not pursuing such a tactic.

Appellant also argues that trial counsel was ineffective in failing to question four prospective jurors concerning their attitude on the death penalty. Appellant claims that these four jurors were only asked whether they objected to the death penalty, not whether they could follow the law regarding the imposition of such a penalty, and Appellant raises the possibility that these four prospective jurors might have been so prone to impose the death penalty that an unfair and biased jury was impaneled. Aside from the speculative nature of such a claim, Appellant has misread the record and the law concerning the purpose of voir dire questioning.

We have made clear, that the purpose of voir dire questioning is to empanel a fair and impartial jury which will apply the law in accordance with the instructions of the trial court. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). Contrary to Appellant's allegation, the PCRA court found that in addition to being asked the general question of whether they objected to the death penalty, each of these prospective jurors indicated on the record that they were willing to follow the court's instructions and impose a penalty of death in the appropriate case. These veniremen satisfied the purpose of voir dire questioning and qualified themselves as fair and impartial jurors. Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988). Under such circumstances, trial counsel's tactical decision not to ask further questions was not a dereliction of duty but must be viewed as having a reasonable basis and, therefore, Appellant's ineffective assistance of counsel claim must fail.

FAILURE TO OBJECT TO COMMENTS MADE BY THE PROSECUTOR

Appellant points to the following two instances where he believes that trial counsel was derelict in his duties: (1) for not objecting when the prosecutor referred to the results of a lie detector test given to Ms. Emmil; and (2) when the prosecutor indicated during his closing argument that an agreement existed between the prosecutor and trial counsel that whoever killed the victim was guilty of murder of the first degree.

Concerning the first allegation, the PCRA court indicated that Appellant first brought up the question of Ms. Emmil taking a lie detector test when he testified that Ms. Emmil told him that the police were going to give her such a test and he told her not to worry since lie detector tests were not accurate. N.T., Volume III, p. 80. Under such circumstances, it would not be error to permit cross-examination on this subject since this covered a subject testified to on direct examination. Commonwealth v. Snoke, 525 Pa. 295, 580 A.2d 295 (1990); Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (1990). The right of cross-examination has always extended to matters testified to on direct examination and, if Appellant has a complaint that the jury heard that Ms. Emmil took and passed a lie detector test, it cannot be with trial counsel for he has only himself to blame for his revelation of this fact to the jury.

As to the other alleged instance of ineffectiveness, Appellant claims that trial counsel should have objected when the prosecutor told the jury that he and trial counsel agreed that whoever killed the victim was guilty of murder of the first degree. The actual statement made by the prosecutor was "... between Mr. Flinchbaugh and myself, there is not much to debate. Whoever killed Jimmie Lee Taylor is guilty of murder in the first degree." N.T. Volume IV, p. 20. Appellant argues that this statement can be read to indicate that the prosecutor was telling the jury that trial counsel was conceding that the stabbing was a first degree murder. It appears that trial counsel approached the bench at the conclusion of the closing and objected at sidebar to the statement...