Com. v. Christy

Decision Date05 April 1995
Citation656 A.2d 877,540 Pa. 192
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Lawrence Duane CHRISTY, Appellant.
CourtPennsylvania Supreme Court

John Unkovic, Marketa Sims, Pittsburgh, for Christy.

Fred Speaker, Camp Hill, for amicus.

Patrick T. Kiniry, Johnstown, Christian A. Fisanick, Barnesboro, Robert A. Graci, Chief Deputy Atty. Gen., for Com.


FLAHERTY, Justice.

Appellant, Lawrence Duane Christy, was convicted by a jury of murder of the first degree in 1983 1 and was subsequently sentenced to death. On direct appeal, this court affirmed the conviction and sentence. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987). The Governor signed an execution warrant in September, 1992 and, on November 9, 1992, the court of common pleas entered an order staying execution until further order.

Subsequently, pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, appellant filed, through his pro bono counsel, a PCRA petition alleging: (1) prosecutorial misconduct; (2) ineffective assistance of trial counsel; (3) a denial of due process; (4) a denial of a right to present evidence of his psychiatric history. The court of common pleas denied post-conviction relief and vacated the stay of execution. This appeal followed. We affirm.

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 that other conditions have been met. An issue has been previously litigated when "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...." 42 Pa.C.S. § 9544(a)(2).

When claims are deemed not previously litigated, appellant must comply with the other conditions of 42 Pa.C.S. § 9543. 42 Pa.C.S. § 9543(a)(3) 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 failed to raise it and if it could have been raised ... at the trial, [or] on appeal...." Because appellant could have raised all of his claims on direct appeal and did not, these issues must be deemed waived under § 9544 unless 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) applies, such as in the case of a showing of ineffective assistance of counsel.

Ineffective assistance of counsel will excuse the waiver under the PCRA as long as the 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, 3-4, 109 S.Ct. 2765, 2766-67, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). In appellant's case, ineffective assistance of counsel will excuse the waiver only as 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, 158-59, 527 A.2d 973, 975-76 (1987) mandates that when an appellant argues that he was deprived of effective assistance of counsel, appellant must demonstrate: (1) that the underlying claim is of arguable merit; (2) that counsel's performance was unreasonable; and (3) that counsel's ineffectiveness prejudiced defendant. Appellant's claim fails where a claim has arguable merit but appellant fails to demonstrate that the result of the case would have been different, i.e., that prejudice resulted. Commonwealth v. Edmiston, 535 Pa. 210, 239, 634 A.2d 1078, 1092-93 (1993). Also, post-conviction review of claims previously litigated on appeal cannot be obtained by alleging ineffective assistance of prior counsel and by presenting new theories of relief to support previously litigated claims. Commonwealth v. Wilson, 452 Pa. 376, 378-79, 305 A.2d 9, 10-11 (1973). Further, counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 224, 495 A.2d 183, 189 (1985).

Appellant first argues that he must be given a new trial or a new sentencing hearing because his conviction and death sentence violated his constitutional rights set out in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). 2 In Ake, the Court held that where a defendant has made a preliminary showing that his sanity at the time of the crime is likely to be a significant factor at trial and the defendant cannot otherwise afford a psychiatrist's assistance, a state must provide access to such assistance on the sanity issue in the preparation, trial and sentencing phases because the risk of an inaccurate resolution of sanity issues is extremely high. Id. at 74, 80 and 82, 105 S.Ct. at 1091, 1094-95 and 1096. 3 The Court reasoned that appellant had a compelling interest to a fair adjudication at the penalty phase and the state had an interest in assuring that its ultimate sanction is not erroneously imposed. Id. at 83, 105 S.Ct. at 1096.

This court has narrowly defined the scope of Ake. In Commonwealth v. Yarris, 519 Pa. 571, 606, 549 A.2d 513, 531 (1988), we held that indigent defendants are entitled to have cost-free access to psychiatric experts only in "very limited circumstances" where the defendant's sanity at the time of the offense was to be a significant factor at trial. In Pennsylvania, a diagnosis of personality disorder is irrelevant to an insanity defense. Commonwealth v. Weinstein, 499 Pa. 106, 113, 114, 451 A.2d 1344, 1347 (1982). Further, Pennsylvania's version of the diminished capacity defense applies only to evidence affecting "cognitive functions necessary to formulate a specific intent." Id., 499 Pa. 106, 114, 451 A.2d 1344, 1347 (1982). Appellant argues, in effect, that Ake applies whenever a defendant's psychiatric condition is a significant issue at trial. We disagree and continue to hold that Ake mandates state assistance only where sanity at the time of the offense is a significant issue at trial.

In appellant's case, appellant's sanity was not a significant issue at trial. Trial counsel decided not pursue an insanity defense and, instead, proceeded on theories of self-defense and diminished capacity. The record reflects that the trial court had ordered independent psychiatric evaluations of appellant by two psychiatrists, both of whom concluded that appellant was competent to stand trial and sane at the time of the offense. 4 This court found no ineffective assistance of counsel for the alleged failure to raise an insanity defense. Commonwealth v. Christy, 511 Pa. 490, 499-500, 515 A.2d 832, 837 (1986). Further, appellant presented no evidence at any hearing that he could avail himself of the insanity defense. Appellant's evidence at the PCRA hearing was that he suffers from a "personality disorder" and has an "anti-social personality." Such evidence would not have been admissible at trial on the issue of whether the evidence met the M'Naghten test for insanity. 18 Pa.C.S. § 315. See Commonwealth v. Weinstein, supra, and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Therefore, Ake does not apply because appellant's sanity was not a significant issue at trial. 5

Appellant then argues that under Ake, he had a due process right to psychiatric assistance at sentencing. A defendant is entitled to psychiatric assistance at the penalty phase of a trial where the prosecution has presented evidence of a defendant's "future dangerousness." Ake, 470 U.S. at 83-84, 105 S.Ct. at 1096. The Ake Court concluded that since the state had introduced psychiatric evidence of Ake's future dangerousness as an aggravating factor at sentencing, Ake was entitled to a defense expert to combat this evidence. Id.

Pennsylvania's death penalty statute expressly provides for two psychologically based mitigating factors: (1) defendant was under the influence of an extreme mental or emotional disturbance at the time of the offense; and, (2) the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. 42 Pa.C.S. §§ 9711(e)(2) and (e)(3). The sentencing jury in appellant's case was not presented with any expert evidence to support the application of either of these two factors. The record reflects: the prosecutor referred to the "future dangerousness" of appellant in his closing argument in the penalty phase of appellant's case; 6 the defense raised one psychiatric mitigating circumstance, i.e., "the defendant was under the influence of extreme mental or emotional disturbance" which counsel argued, without the benefit of psychiatric assistance, was a result of years of drug and alcohol abuse; and, appellant presented evidence at the PCRA hearing that defense psychiatric assistance could have helped appellant in presenting mitigating evidence.

The critical question is whether Ake applies to the sentencing phase of appellant's case. While appellant's "dan...

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