Com. v. Cousin

• Decision Date: 28 December 2005
• Citation: 888 A.2d 710
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Khatib COUSIN, Appellant.
• Court: Pennsylvania Supreme Court

888 A.2d 710

COMMONWEALTH of Pennsylvania, Appellee v. Khatib COUSIN, Appellant.

Supreme Court of Pennsylvania.

Submitted August 8, 2005.

Decided December 28, 2005.

Joseph Raymond Viola, Philadelphia, PA, for Khatib Cousin.

Hugh J. Burns, Philadelphia, PA, for Com.

OPINION

Justice SAYLOR.

This is an appeal by allowance from the denial of post-conviction relief from a judgment of sentence for voluntary manslaughter and related offenses. The dispositive question is whether prejudice should be presumed in the evaluation of a defense attorney's stewardship in undertaking a strategy of conceding his client's guilt of voluntary manslaughter in order to gain credibility in the eyes of the fact-finder and avoid a conviction of a higher degree of criminal homicide.

The underlying facts are uncontested. On the evening of August 9, 1998, Appellant Khatib Cousin approached Pedro Torres on Jasper Street in Philadelphia to inquire as to an incident the prior night and the whereabouts of George Dascenzo. Torres directed Appellant to the home of Dascenzo's uncle, Charles Ertell. Some time after Appellant entered the home, he and Dascenzo left the house together, while Ertell followed. A verbal argument ensued and turned physical when Dascenzo swung at Appellant, but failed to hit him. Appellant struck back and Dascenzo fell to the ground. Appellant then repeatedly punched and kicked Dascenzo in the head, neck, and chest as he lay on the ground. Ertell and Torres intervened and pushed Appellant away. Appellant then walked away from the fight scene to the steps of a nearby house and retrieved a handgun from inside of a folded baseball cap. Loading the gun, he walked back to the scene and fired several shots in the direction of Dascenzo, Ertell, and Torres, killing Dascenzo and wounding Ertell. Appellant then waved the gun at the crowd on the street and stated, "Who wants it?," before leaving the area a few moments later. The police eventually found Appellant hiding under the porch of a nearby house, with the weapon a short distance away.

Appellant was charged with murder, aggravated assault, and related offenses. See 18 Pa.C.S. §§ 2502, 2702. After privately retaining Attorney Louis T. Savino, Jr., to represent him, Appellant pleaded not guilty to all charges and waived his right to a jury trial. Thereafter, he was tried before the Honorable Renee C. Hughes in Philadelphia common pleas court. During the May 1999 bench trial, Appellant did not testify in his defense; instead, he offered character witnesses, and the prosecution stipulated that those individuals would testify that Appellant had a reputation in the community as a peaceful and law-abiding citizen. During his closing argument, Attorney Savino conceded Petitioner's guilt as to criminal homicide, but argued that he was not guilty of murder. He stated, "Your Honor, if it please the Court, I won't stand here and tell you that [Appellant] after this trial should be acquitted of all charges. I don't suggest that that's an appropriate verdict given the circumstances of this case." N.T. May 27, 1999, at 105. Thereafter, counsel highlighted the evidence tending to show that the homicide occurred in the heat of the emotions stemming from the physical confrontation, and argued that malice was absent. Counsel closed his argument by stating, "I suggest that this is a case of voluntary manslaughter for the reasons that I have enunciated and it fits so clearly within that scope that I submit that that's an appropriate verdict." Id. at 146.

The following day, the trial court ruled from the bench, indicating that "[i]t has always been clear that there would be a verdict of guilty in this case. The question was guilty as to what." N.T. May 28, 1999 at 5. After summarizing the evidence, the court made a specific finding that Appellant did not act with malice and, therefore, that he was guilty of voluntary manslaughter rather than murder. Id. at 6. The court additionally convicted Appellant of aggravated assault, violation of the Uniform Firearms Act, see 18 Pa.C.S. § 6101, and possession of an instrument of crime, see 18 Pa.C.S. § 907, and imposed a sentence in the aggravated range for voluntary manslaughter of ten-to-twenty years' incarceration, as well as a consecutive sentence of five-to-ten years' incarceration for aggravated assault, for an aggregate prison term of fifteen-to-thirty years.¹

On direct appeal, appointed counsel raised issues relating to Appellant's sentence. She did not, however, assert any claim pertaining to Attorney Savino's decision to concede Appellant's guilt of voluntary manslaughter during the closing argument at trial. The Superior Court affirmed Appellant's judgment of sentence, and this Court denied allocatur. See Commonwealth v. Cousin, 570 Pa. 682, 808 A.2d 569 (2001).

Thereafter, represented by new counsel retained by his family, Appellant filed a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (the "PCRA"). In the petition, Appellant claimed that trial counsel's concession of guilt during closing arguments amounted to an open guilty plea to all charges without Appellant's consent and, as such, deprived Appellant of his constitutional rights to due process and effective assistance of counsel.² Appellant asserted, in this regard, that counsel's actions introduced a structural defect into the proceedings, and that such actions should therefore be deemed per se prejudicial. In order to overcome the waiver of this claim by virtue of his failure to raise it on direct appeal, Appellant layered his ineffectiveness claim via an assertion that his direct appellate counsel provided deficient stewardship due to such failure. See generally Commonwealth v. Grant, 572 Pa. 48, 59-60, 813 A.2d 726, 733 (2002) (discussing layering relative to the requirement of issue preservation).³

The PCRA court, per Judge Hughes, dismissed the petition without a hearing.⁴ In its Rule 1925(a) opinion, see Pa.R.A.P. 1925(a), the court acknowledged that Appellant relied heavily upon United States v. Holman, 314 F.3d 837 (7th Cir.2002), but indicated that such reliance was misplaced, as Holman involved a concession of guilt during the opening statement rather than in a closing argument. The PCRA court ultimately concluded that counsel's concession of guilt in his closing statement was qualitatively different from an open guilty plea or a concession at the beginning of trial, because counsel's closing argument did not entail a waiver of Appellant's procedural safeguards which remained in effect throughout the trial. On that basis, the PCRA court held that Appellant's underlying issue lacked arguable merit and, accordingly, that he was not entitled to relief on his ineffectiveness claim.

The Superior Court disposed of the appeal in a memorandum opinion dated May 24, 2004. Initially, the court expressed its discomfort with applying a prejudice requirement in this situation because it perceived counsel's actions to be "inconsistent with the mainstays of our criminal justice system," primarily, the defendant's presumption of innocence and the Commonwealth's burden to prove guilt beyond a reasonable doubt. As an intermediate appellate court, however, the Superior Court deemed itself without authority to "alter established rules of procedure adopted by the Pennsylvania Supreme Court" by instituting a per se ineffectiveness standard in this context. Superior Court Op. at 5-6. The court ultimately affirmed the denial of post-conviction relief on the basis that Appellant failed to demonstrate that counsel's actions resulted in actual prejudice. The court observed, in this regard, that it was undisputed that Appellant retrieved the gun, walked back to the scene of the fight, and intentionally shot the unarmed victims. Further, Appellant never proffered a self-defense argument at trial or challenged the sufficiency of the evidence for voluntary manslaughter or aggravated assault. See id. at 8-9.

Upon Appellant's petition, this Court granted allocatur to consider whether trial counsel's guilt-conceding strategy should be deemed per se prejudicial. In order to have the benefit of a full and complete record, in a per curiam order dated December 22, 2004, this Court also remanded the matter to the PCRA court for a limited hearing on whether counsel acted without Appellant's consent in conceding guilt on the charge of voluntary manslaughter. The PCRA court, again per Judge Hughes, held the required hearing on January 18, 2005. Trial counsel (Attorney Savino) testified at the hearing and admitted that he never specifically discussed his closing argument with Appellant, see N.T. Jan. 18, 2005, at 20, 23, although he maintained that he and Appellant both understood that there was no basis for a self-defense claim and, after hearing the Commonwealth's evidence at trial, that there was no possibility of acquittal. See id. at 32, 37. Appellant, for his part, testified that he had wanted to "beat this case on self defense." Id. at 65. However, he conceded that he never discussed that possibility with Attorney Savino; moreover, he was unable to identify any harm that might have befallen him had he not fired at the unarmed victims. See id. at 48, 59-72.

At the conclusion of the hearing, the PCRA court made factual findings, including that: Appellant was fully aware that there was no possibility he would be acquitted; he knew his "best strategic defense" was to seek a conviction of voluntary manslaughter; he was initially "elated" to have been found guilty of that offense; and he only became dissatisfied when a lengthy sentence was imposed. Id. at 74, 78-79. The court elaborated and concluded as follows:

[Appellant] may not have known the words Louis Savino would use but he absolutely knew that Louis Savino's strategy was to get voluntary manslaughter out of a case that when presented in the Commonwealth's favor looked like first degree murder. And Lou Savino did...