Com. v. Cross
| Decision Date | 08 February 1994 |
| Citation | 535 Pa. 38,634 A.2d 173 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Charles Eugene CROSS, Appellant. |
| Court | Pennsylvania Supreme Court |
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.
This is the appeal of Charles E. Cross, appellant, from a final order of the Court of Common Pleas of Beaver County denying relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. Because this is a case in which the death penalty has been imposed, jurisdiction over this appeal is conferred on this Court by 42 Pa.C.S. § 9546(d) (1988).
Appellant was convicted by a jury on March 1, 1982, for the murders of Denise Lucic and her two children, Danielle, age 7 and John, Jr., age 3. The jury found appellant guilty of three counts of first degree murder, and following a sentencing hearing, determined that aggravating circumstances outweighed any mitigating circumstances. The jury fixed the penalty at death and a direct appeal was taken to this Court. Following our mandatory review of such appeals, we affirmed the conviction and judgment of the sentence of death, Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985). Appellant was scheduled to be executed on October 2, 1990.
On September 27, 1990 a stay of execution was granted, pending proceedings under the Post Conviction Relief Act (PCRA). The final petition under that act was filed on February 3, 1992. Two separate hearings were held, and on June 2, 1992, the request for post conviction relief was denied. This appeal ensued.
On appeal, appellant claims that the two lawyers representing him were ineffective in five areas. First, he contends that his attorneys were ineffective because of their failure to develop and present a defense based on insanity or diminished capacity. Second, he asserts that counsel were ineffective for failing to fully explore appellant's family background and mental history during the sentencing phase of the trial, and as a result failed to present evidence of mitigating circumstances. Third, appellant asserts that counsel were ineffective for failure to request a jury instruction correcting a misstatement made by appellant in the sentencing phase of the trial.
In addition to these alleged constitutional deficiencies in appellant's representation, appellant's fourth claim charges his lawyers with ineffectiveness for failing to adequately preserve, for appellate review, counsels' objection to the trial court's charge to the jury. Finally, appellant contends that his attorneys were ineffective because they failed to object to the verdict slip submitted to the jury.
For the first time in this appeal, appellant also asserts that if this Court determines that the death penalty hearing was defective, then a sentence of life imprisonment should be entered. In essence, appellant contends that 42 Pa.C.S.A. § 9711(h)(2), as amended, should not apply to him. This section provides that upon a showing that the death penalty hearing was defective, the Supreme Court shall remand for a new sentencing hearing.
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. Once that is established, he must then show that his lawyer's action or inaction lacked any reasonable basis for advancing his client's interests. In addition, appellant must demonstrate that the commission or omission of counsel so undermined the trial that the verdict is unreliable. Commonwealth v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (1992).
The presumption is that counsel is effective. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987), citing Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). The burden of proving ineffectiveness of counsel is on the party alleging it, and that burden does not shift. Commonwealth v. Jones, 324 Pa.Super. 359, 471 A.2d 879 (1984).
We review appellant's claims of ineffective assistance of counsel guided by these standards. After considering each claim individually, we conclude that appellant's claims are without basis, and therefore affirm the order of the trial court denying PCRA relief.
Appellant first argues that his lawyers were constitutionally deficient because they did not introduce evidence of appellant's insanity or diminished capacity during the guilt phase of appellant's murder trial. Throughout both the guilt phase and the sentencing phase of the trial, appellant maintained his innocence. To have introduced evidence of appellant's insanity or diminished capacity would have directly conflicted with appellant's position of innocence. To plead the defense of insanity suggests that the defendant committed the act, but was not legally culpable. Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981). Here, appellant maintained that he had not committed the murders. Therefore, it would have been improper for his attorneys to introduce any evidence of insanity.
In Mizell this Court determined that trial counsel had acted properly in not advancing an insanity defense when the lucid defendant had insisted upon his innocence, and had refused to submit to a psychological examination. Mizell, 493 Pa. at 164, 425 A.2d at 426. It is now argued that counsel erred by yielding to appellant's decision to plead innocence rather than insanity or diminished capacity. He claims that he was not sufficiently rational to make that type of decision regarding his defense. Moreover, he asserts that his lawyers were aware of his psychological deficiencies, and should have defied his instruction and pursued an insanity defense. These contentions are without merit.
First, Rule 1.2 of the Pennsylvania Rules of Professional Conduct provides in part:
(a) A Lawyer shall abide by a client's decisions concerning the objectives of representation, ... and shall consult with the client as to the means by which they are to be pursued ... In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
The Comment to Rule 1.2 provides in part:
The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations.
Both the Rule and the Comment make clear that the client is to decide the goal of counsel's representation. Moreover, the Rule does not furnish counsel with the right to override what the client considers to be in his best interest. This is particularly true where it has been determined that the client is competent to stand trial.
To be competent for trial a defendant must be capable of understanding the nature and objective of proceedings against him, and be able to cooperate with his legal representative in presentation of his defense. Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982). A determination of competency to stand trial would support a determination that appellant was equipped with the same "lucidity" required under Mizell. Hence, appellant was mentally capable of making decisions about his defense, and counsel properly complied with his wishes regarding the goals of his representation.
As a subordinate argument, appellant claims that his attorneys were ineffective because they failed to further investigate appellant's family background and mental competency. Appellant presents this claim in two contexts. First, he asserts that his attorneys failed to investigate fully appellant's mental competency. Then, he asserts that they failed to properly develop, through testimony in the sentencing phase of the trial, appellant's troubled childhood. These claims are also without merit.
Counsel commissioned Dr. Eberle, a noted forensic psychologist, to examine and evaluate appellant. The psychological report equipped counsel with the information necessary to present a constitutionally effective defense. Dr. Eberle evaluated appellant's current mental status and psychodynamic profile. In addition, he assisted in making the determination that appellant was competent to stand trial. Dr. Eberle also evaluated appellant to determine if there were any possible consistencies between appellant's personality profile/type and criminal tendencies or capacity for prevarication.
Exploration into appellant's criminal responsibility would have been pointless since the defense of insanity or diminished capacity was not going to be used. In fact, it was impossible, according to Dr. Eberle, to make that determination while appellant maintained his innocence. Therefore, the investigation taken by counsel was constitutionally sufficient.
Appellant next contends that his attorneys were ineffective for failing to investigate and fully present the appellant's family background and mental history during the sentencing phase of the trial. Appellant asserts that they failed to fully develop his family background by not interviewing appellant's brother and sisters. Moreover, appellant argues that trial counsel should have called appellant's sister, Rose Luchan, to testify as to the traumatic nature of appellant's childhood during the penalty phase of the trial.
We must determine whether counsel's performance in evaluating the mitigating evidence available to him and in deciding not to pursue further mitigating evidence undermines confidence in the adversarial process of this case. Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). In this determination, we must be highly deferential to the decisions of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (198...
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