Com. v. DeHart

• Decision Date: 22 November 1994
• Citation: 650 A.2d 38,539 Pa. 5
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert Perry DeHART, Appellant.
• Court: Pennsylvania Supreme Court

Page 38

650 A.2d 38

539 Pa. 5

COMMONWEALTH of Pennsylvania, Appellee, v. Robert Perry DeHART, Appellant.

Supreme Court of Pennsylvania.

Submitted Aug. 31, 1993.

Decided Nov. 22, 1994.

[539 Pa. 13] Terry W. Despoy, Altoona, for appellant.

Robert B. Stewart, III, Dist. Atty., Edson S. Crafts, III, Asst. Dist. Atty., Lawrence L. Newton, Kerry L. Erisman, Sp. Asst. Dist. Attys., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

Appellant, Robert Perry DeHart, was found guilty by a jury on November 17, 1983, of escape, ¹ robbery, ² burglary, ³ and murder in the first degree. ⁴ The jury fixed the penalty for the murder conviction at death. An automatic direct appeal to this Court followed pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h)(1), whereupon the verdict and judgment of sentence were affirmed. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987).

Appellant subsequently filed a petition in the Court of Common Pleas under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 ("PCRA"), in which he alleged violations of his state and federal constitutional rights as well as ineffectiveness of trial counsel. In a brief in support of his PCRA petition, Appellant raised fifty-one separate allegations of error related to defects in his trial and trial counsel's competence. On December 28, 1990, a PCRA hearing was held in the Court of Common Pleas in order to address the issues raised in Appellant's petition. The court issued an opinion and order on February 13, 1992, which denied Appellant's request for relief and concluded that the arguments raised by Appellant were meritless and that the alleged errors were either nonexistent or harmless. Commonwealth v. DeHart, No. 83-98 C.A.; 83-144 C.A., slip op. at 20 (C.P. Huntingdon County Feb. 13, 1992). This appeal followed. ⁵

In his appeal before this Court, Appellant presents thirty-two issues relating to alleged violations of his constitutional rights and the ineffectiveness of trial counsel. For the reasons that follow, we must vacate Appellant's death sentence and remand for a new sentencing hearing.

In order to prevail on a claim of ineffectiveness of counsel, Appellant must demonstrate that the underlying claim is of arguable merit; that there was no reasonable basis for counsel's action or inaction; and that this action or inaction so affected the trial that the verdict is inherently unreliable. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993). Counsel is presumed to have been effective, and therefore, the burden of establishing counsel's ineffectiveness rests upon the defendant. Commonwealth v. McNeil, 506 Pa. 607, 615, 487 A.2d 802, 806 (1985). Further, counsel will never be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992). Guided by these standards, we will now address Appellant's arguments seriatim.

Appellant first argues that trial counsel was ineffective for failing to inform him of his right to testify on his own behalf. An examination of the transcript of the PCRA hearing reveals that Appellant's claim is meritless:

By Mr. Despoy (counsel for Appellant):

Q. Were you ever advised that you had a Constitutional right to take the witness stand?

....

A. ... I believe I was. By the Court at one time or another. Tom [trial counsel] may have mentioned it. Not on a detailed basis but basically that I had a Constitutional right to testify, yes.

(N.T. 12/28/90, 14). In addition, Appellant testified that trial counsel expressed concern over Appellant's ability to withstand cross-examination by the district attorney. (N.T. 12/28/90, 15). Finally, trial counsel testified that he and Appellant had discussed whether Appellant would testify and that Appellant's decision was to leave it up to trial counsel. (N.T. 12/28/90, 54-55). Based upon our review of the PCRA transcript, it is clear that Appellant was apprised of his right to testify and that trial counsel discussed the strategic choices arising therefrom. Accordingly, we find that Appellant's argument is meritless, and therefore, his claim of ineffectiveness must fail.

Appellant next alleges that trial counsel was ineffective for failing to properly investigate the criminal background of Commonwealth witness David Parks. Specifically, Appellant complains that trial counsel did not cross-examine Mr. Parks regarding the use of aliases to show prior false statements. While Appellant may be correct in his assertion that counsel did not address this particular aspect of Parks' background, he has failed to demonstrate how he was prejudiced by this omission. This Court has repeatedly held that abstract allegations of ineffectiveness will not be considered. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992); Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989); Commonwealth v. Griffin, 511 Pa. 553, 571, 515 A.2d 865, 874 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Alexander, 495 Pa. 26, 38, 432 A.2d 182, 187 (1981); Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Thus, a petitioner must allege actual prejudice and be able to identify a specific factual predicate that demonstrates how a different course of action by prior counsel would have better served his interest. Commonwealth v. Forrest, 508 Pa. 382, 390, 498 A.2d 811, 815 (1985); Commonwealth v. Alexander, 495 Pa. 26, 38, 432 A.2d 182, 187 (1981).

Notwithstanding Appellant's failure to allege prejudice, our review of the trial transcript reveals that trial counsel conducted a thorough and extensive cross-examination of Mr. Parks. This included exploration of Parks' criminal history and the agreement entered into between Parks and the Commonwealth (N.T. 11/16/83-11/18/83, 431-61). Thus, we reject this claim of ineffectiveness.

Appellant next claims that trial counsel was ineffective for failing to call a witness to counter the testimony of David Parks. This allegation consists of nothing more than a reference to the PCRA transcript in which Appellant testified that he and trial counsel discussed the possibility of contacting an individual named Charles Beasley in order to rebut the testimony of David Parks and trial counsel's inability to recall that discussion. (N.T. 12/28/90, 25-26; 65). Inasmuch as Appellant has not set forth a legal argument that trial counsel was ineffective, we decline to undertake this task for him.

Appellant next argues that counsel was ineffective for failing to object to the final jury panel because it did not contain a fair cross-section of the community. This issue was raised on direct appeal to this Court and determined to be without merit. Commonwealth v. DeHart, 512 Pa. 235, 249-50, 516 A.2d 656, 663-64 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). Accordingly, we will not consider this claim because it was previously litigated and may not be relitigated in a PCRA petition. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993); Commonwealth v. Carpenter, 533 Pa. 40, 46, 617 A.2d 1263, 1266 (1992); 42 Pa.C.S. § 9543(a)(3).

Appellant next complains that trial counsel was ineffective for failing to have his points for charge prepared on the last day of trial. However, at the PCRA hearing below, trial counsel testified that he had submitted his points for charge either immediately before trial or on the day after jury selection began. (N.T. 12/28/90, 70). Moreover, the court indicated that the points for charge were treated as timely filed and given due consideration at the time they were submitted. (N.T. 12/28/90, 70). Thus, this claim of ineffectiveness is meritless.

Appellant next avers that trial counsel was ineffective for failing to request a hearing regarding the interference ⁶ that Appellant was subjected to by the staff at the State Correctional Institution in Huntingdon ("SCIH"). He claims that this problem caused a tremendous amount of distraction to the point where he and his attorney were unable to prepare for trial. The record indicates that a hearing was held on September 13, 1983, concerning this matter, and as a result, the trial court rectified the problem by contacting the superintendent of SCIH. (N.T. 12/28/90, 18-19). The trial court indicated that the problem was alleviated eight weeks prior to jury selection and that this was a sufficient amount of time for Appellant to assist in the preparation of his defense. Commonwealth v. DeHart, No. 83-98 CA; 83-144 CA, slip op. at 4. In the instant appeal, Appellant has not presented any basis for concluding that eight weeks was an inadequate amount of preparation time. Thus, Appellant's claim of ineffectiveness is without merit.

Appellant next alleges that trial counsel was ineffective for failing to attempt to refute the Commonwealth's contentions that the homicide was committed in furtherance of the escape or that it was part of the same criminal episode. The underlying substantive issue to this claim was raised on direct appeal to this Court where it was determined that "[t]he escape and subsequent crimes were part of the same transaction." Commonwealth v. DeHart, 512 Pa. at 245, 516 A.2d at 661. This issue has been previously litigated and determined to be without merit. Accordingly, it will not be considered by this Court in the context of a claim of ineffectiveness. 42 Pa.C.S. § 9543(a)(3).

Appellant next contends that trial counsel was ineffective when he failed to present a defense to the escape charge at trial and when he admitted Appellant was guilty of escape in his closing argument. This claim is completely without merit. Appellant was incarcerated at SCIH where he worked as a milker in...