Com. v. Cox

• Decision Date: 19 November 2009
• Docket Number: No. 504 CAP,504 CAP
• Citation: 983 A.2d 666
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jermont COX, Appellant.
• Court: Pennsylvania Supreme Court

983 A.2d 666

COMMONWEALTH of Pennsylvania, Appellee v. Jermont COX, Appellant.

No. 504 CAP

Supreme Court of Pennsylvania.

Submitted July 21, 2008.

Decided November 19, 2009.

Stuart Brian Lev, Esq., Defender Association of Philadelphia, Philadelphia, Victor J. Abreu, Jr., Esq., Federal Public Defender's Office, Middle District of PA, for Jermont Cox.

Hugh J. Burns, Esq., Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, Esq., Harrisburg, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Justice GREENSPAN.

This is a collateral capital appeal from an order dismissing Appellant Jermont Cox's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

The relevant facts are as follows:¹ Tim Walker (Walker), the head of a Philadelphia drug trafficking organization, ordered his lieutenant, Larry Lee (Lee), to slay Roosevelt Watson (Watson) and Terence Stewart (Stewart) in retaliation for stealing Walker's property and interfering with Walker's drug enterprise. Lee enlisted the Appellant to aid him in this task.

On August 18, 1992, Watson's body was found on a Philadelphia street with multiple gunshot wounds. On November 8, 1992, police found Stewart shot in the front seat of a car. Tia Seidle (Seidle) was the front seat passenger of that car at the time of the shooting and was standing outside when the police arrived. Stewart was later pronounced dead.

On January 14, 1993, police questioned and arrested Appellant with respect to the murder of one Lawrence Davis (Davis) after he admitted his role in the murder.² At the end of the interview, Appellant told the police that he had information on the Stewart murder and asked if he could expect favorable treatment if he cooperated. The detective who interviewed appellant told him that he could promise no favorable treatment, but would make Appellant's information and cooperation known to the District Attorney. After waiving Miranda³ rights, Appellant gave police a statement admitting his involvement in the murder of Stewart. Appellant explained that on November 8, 1992, Lee recruited appellant to be the driver in the pursuit and subsequent killing of Stewart. After the murder, Lee paid Appellant $500 for his assistance. Based on that confession, Appellant was arrested for the murder of Stewart.

On April 28, 1993, with the trial date of the Davis murder approaching, Appellant contacted Detective Robert Snell, the detective who had interviewed him with respect to the Davis and Stewart murders, and stated that he wanted to speak to the detective. The following day, Appellant was transported from prison to the headquarters of the Homicide Division of the Philadelphia Police Department for further questioning. Appellant was given and waived his Miranda rights, stating, "I want to cooperate and try to help myself." N.T. 4/10/95, 32-33, 55-62. Appellant then told police that in August of 1992, he was at a bar with Lee when Walker contacted Lee and gave him information on Watson's whereabouts. Lee asked Appellant to drive him to that location. On the way there, Lee explained to Appellant that he planned to kill Watson. When Watson was spotted, Lee got out of the car and shot him. Three days later Walker paid the Appellant $500 for the killing. At the conclusion of the interview, Appellant was arrested and charged with the murder of Watson.

Besides Appellant's confessions, ballistics evidence established that the gun that was used in the Watson murder was also used in the Davis murder. Stewart was shot with a different weapon.

On November 15, 1993, Appellant entered into a "Memorandum of Understanding" with the Philadelphia District Attorney's Office pursuant to which Appellant would plead guilty to the first-degree murders of Watson and Stewart and would cooperate in the prosecutions of Walker and Lee. In exchange, Appellant would receive concurrent life sentences. Later that day Appellant entered his guilty pleas before the Honorable Robert A. Latrone. However, on January 24, 1994, before providing the promised assistance, Appellant filed a pro se motion to withdraw the guilty pleas. Judge Latrone granted the Appellant's motion and new counsel was appointed to represent him with respect to the charges filed in the Watson and Stewart cases, which had been consolidated for trial. Appellant moved to suppress his statement on the Stewart murder and his statements on the Watson murder. On April 5, 1995, the Honorable John J. Poserina, Jr., denied appellant's motion to suppress. Judge Poserina further ruled that evidence that Appellant shot Davis with the same gun used in the Watson killing was admissible.

Appellant's trial commenced one day later. At its conclusion, Appellant was convicted of two counts of first-degree murder, criminal conspiracy, and possession of an instrument of crime. On April 12, 1995, the jury sentenced Appellant to life imprisonment for the murder of Watson and to death for the killing of Stewart. The jury found that aggravating circumstances in the Stewart murder outweighed the mitigating circumstances. Aggravating circumstances found by the jury were receiving payment to commit murder,⁴ creating a grave risk of death to another person⁵ and being convicted of another murder.⁶ Mitigating circumstances found by the jury were acting under extreme duress,⁷ and other evidence of mitigation based on his upbringing.⁸

Represented by new counsel, Appellant appealed his convictions.⁹ The Superior Court affirmed the life sentence for the first-degree murder of Watson. Commonwealth v. Cox, 453 Pa.Super. 679, 683 A.2d 309 (Pa.Super.1996), allocatur denied, 547 Pa. 724, 689 A.2d 231 (Pa.1997) and this Court affirmed the death sentence for the murder of Stewart. Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923 (1999).¹⁰ On June 11, 2001, the United States Supreme Court denied Appellant's petition for a writ of certiorari. Cox v. Pennsylvania, 533 U.S. 904, 121 S.Ct. 2246, 150 L.Ed.2d 233 (2001).

On February 6, 2001, Appellant filed a pro se PCRA petition. On June 10, 2002, present counsel entered their appearance on Appellant's behalf and filed an amended petition seeking, among other things, reversal of his conviction and death sentence and his conviction for the Stewart killing. The petition set forth a number of claims of ineffective assistance of trial and appellate counsel with respect to both the guilt and penalty phases of the prosecution. The matter was assigned to Judge Poserina, who on July 29, 2005, denied the claims pertaining to the guilt phase of Appellant's trial without a hearing. Judge Poserina granted a hearing with respect to the issues raised by Appellant that arose out of the penalty phase. On July 29, 2005, having sent appellant a notice of intent to dismiss, Judge Poserina formally denied Appellant relief on all of his claims. On August 23, 2005, Appellant filed the instant appeal.

Having carefully reviewed the briefs of counsel and the applicable law, we affirm the order of the PCRA court denying Appellant post-conviction collateral relief on his claims relating to the guilt and penalty phases of the proceedings below.

ISSUES

On appeal, appellant raises the following issues:

1. [APPELLANT'S] CONSTITUTIONAL RIGHTS TO COUNSEL WERE VIOLATED WHEN HE WAS INTERROGATED BY THE POLICE WITHOUT COUNSEL AFTER HIS RIGHT TO COUNSEL HAD ATTACHED AND ALL PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE AND LITIGATE THIS ISSUE.

2. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL JURY AND TO DUE PROCESS WHERE THE TRIAL COURT, DURING JURY SELECTION, ERRONEOUSLY DENIED A DEFENSE CHALLENGE FOR CAUSE WHICH PLACED AN INHERENTLY BIASED JUROR ON THE JURY AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.

3. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL CAPITAL JURY WHERE THE TRIAL COURT ERRONEOUSLY DISMISSED A QUALIFIED JUROR SOLELY BECAUSE OF HIS VIEWS ON THE DEATH PENALTY AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM ON DIRECT APPEAL.

4. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS BY THE ADMISSION OF EVIDENCE OF HIS INVOLVEMENT IN THE DAVIS HOMICIDE; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM ON DIRECT APPEAL.

5. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO OBJECT TO IMPROPER, HIGHLY PREJUDICIAL PROSECUTORIAL ARGUMENT AND/OR FAILED TO REQUEST AN APPROPRIATE CURATIVE INSTRUCTION; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY RAISE AND LITIGATE THIS CLAIM ON DIRECT APPEAL.

6. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE COURT FAILED TO PROVIDE AND DEFENSE COUNSEL FAILED [TO] REQUEST AN APPROPRIATE CAUTIONARY INSTRUCTION IN RESPONSE TO REPEATED REFERENCES REGARDING [APPELLANT'S] ALLEGED INVOLVEMENT IN DRUG TRAFFICKING; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY RAISE AND LITIGATE THIS CLAIM ON DIRECT APPEAL.

7. [APPELLANT] IS ENTITLED TO A NEW TRIAL BECAUSE THE PROSECUTION PRESENTED INCONSISTENT THEORIES OF GUILT. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM ON DIRECT APPEAL.

8. [APPELLANT] IS ENTITLED TO A NEW TRIAL BECAUSE HIS CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS FORCED TO APPEAR BEFORE SOME JURORS IN PRISON GARB AND ALL PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT AND LITIGATE THIS CLAIM.

9. [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO CONDUCT AN INDEPENDENT INVESTIGATION OF THE BALLISTICS EVIDENCE, AND WHERE APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL; THE PCRA COURT ERRED BY REFUSING PETITIONER'S REQUEST FOR ACCESS TO THE BALLISTICS EVIDENCE SO THAT HIS EXPERT COULD CONDUCT AN...