Com. v. Dennis

• Decision Date: 31 August 1998
• Citation: 552 Pa. 331,715 A.2d 404
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James DENNIS, Appellant.
• Court: Pennsylvania Supreme Court

Page 404

715 A.2d 404

552 Pa. 331

COMMONWEALTH of Pennsylvania, Appellee, v. James DENNIS, Appellant.

Supreme Court of Pennsylvania.

Argued Feb. 3, 1998.

Decided July 22, 1998.

Reargument Denied Aug. 31, 1998.

Michael C. Schwartz, Philadelphia, for J. Dennis.

Catherine Marshall, Anthony V. Poneranz, Philadelphia, Robert A. Graci, Harrisburg, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NEWMAN, Justice.

James Dennis (Appellant) appeals from the Judgment of the Court of Common Pleas of Philadelphia County (trial court) sentencing him to death on his conviction for first degree murder. We affirm.

FACTUAL AND PROCEDURAL HISTORY

At approximately 1:50 p.m. on October 22, 1991, seventeen-year-old Chedell Williams (Victim) and her friend Zahra Howard were climbing the steps to enter the Fern Rock SEPTA station at Tenth and Nedro Streets in Philadelphia when they were approached by Appellant and another man. The men blocked the girls' path and Appellant demanded that the Victim give him her earrings. The girls turned and ran. Appellant followed the Victim and grabbed her in the street. He ripped the earrings from the Victim's ears, drew a .32 caliber handgun, and shot her in the neck, killing her.

Three witnesses had protracted and unobstructed views of Appellant during and after the shooting: Zahra Howard observed the shooting from a nearby fruit vendor's stand; Thomas Bertha, a stone mason who was working on a nearby building, heard the gunshot and saw Appellant flee the scene; and James Cameron, a SEPTA cashier, observed the shooting from approximately eight feet away. Each of the three witnesses positively identified Appellant as the perpetrator from a photo array, at a lineup, and again at trial.

At Appellant's jury trial, the Commonwealth presented the testimony of the three eyewitnesses, as well as evidence that Appellant had a gun of the type used in the murder and clothing resembling that worn by the perpetrator. Appellant argued that the eyewitnesses had misidentified him, and claimed that he was on a bus to the Abbottsford Homes at the time of the murder. The jury returned verdicts of guilty on charges of first degree murder, ¹ robbery, ² criminal conspiracy, ³ violating the Uniform Firearms Act, ⁴ and possessing an instrument of crime. ⁵

At the penalty hearing, the Commonwealth sought the death penalty on the basis of two aggravating circumstances: that Appellant committed a killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); and that, in the commission of the offense, Appellant knowingly created a grave risk of death to another person in addition to the Victim, 42 Pa.C.S. § 9711(d)(7). Defense counsel raised three mitigating factors: that Appellant had no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); Appellant's age at the time of the crime (twenty-one), 42 Pa.C.S. § 9711(e)(4); and the general mitigating factor of Appellant's character and record, 42 Pa.C.S. § 9711(e)(8). The jury found one aggravating circumstance, killing while in the perpetration of a felony, and one mitigating circumstance, no significant history of prior criminal convictions, and that the aggravating circumstance outweighed the mitigating circumstance. Accordingly, the trial court sentenced Appellant to death.

Appellant filed Post-Verdict Motions, which the trial court denied, and then appealed to this Court.

DISCUSSION

In this appeal, Appellant challenges various aspects of both the guilt phase and penalty phase of his trial. We address the issues seriatim. ⁶

1. ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues that his trial counsel was ineffective in a number of respects. To prove ineffectiveness of counsel, Appellant must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable basis for the action or inaction; and (3) if not for counsel's ineffectiveness, the outcome of the trial would have been different. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). We apply this standard to Appellant's claims, as follows:

a. Failure to investigate witness Latanya Cason

At trial, Cason testified that she saw Appellant at the Abbottsford Homes, about four miles from the crime scene, at approximately 4:00 to 4:30 p.m., more than two hours after the 1:50 p.m. shooting. Cason's recollection of the time was based on her belief that she had left work and gone to cash a welfare check at approximately 2:00 p.m. During their investigation, however, the police came into possession of a Department of Public Welfare (DPW) receipt showing that Cason cashed her check at 1:03 p.m.

In light of this evidence, Appellant argues that trial counsel was ineffective for failing to investigate Cason, because an investigation would have revealed that she was mistaken about the time she saw Appellant at the Abbottsford Homes. Had trial counsel been effective, Appellant argues, Cason would have supported Appellant's alibi by testifying that she saw Appellant at approximately 2:30 p.m. Appellant also argues that the Commonwealth withheld the DPW receipt in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that trial counsel was ineffective for failing to discover the violation.

Appellant's claims fail for a number of reasons. First, even if trial counsel had investigated Cason and discovered that she saw Appellant at the Abbottsford Homes at 2:30 p.m., her testimony would not support Appellant's alibi, because the murder occurred at 1:50 p.m., forty minutes earlier than Cason's earliest estimate. Moreover, Cason's testimony would have been cumulative of the testimony of witness Willis Meredith, who testified that he saw Appellant at the Abbottsford Homes at approximately 2:15 to 2:30 p.m. See Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998) (counsel not ineffective for failing to present cumulative testimony); Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980) (same). Finally, it is clear that there clearly was no Brady violation. The DPW receipt was not exculpatory, because it had no bearing on Appellant's alibi, and there is no evidence that the Commonwealth withheld the receipt from the defense. Accordingly, Appellant's claims of ineffectiveness regarding Cason and the DPW receipt have no arguable merit.

b. Failure to impeach witness Charles Thompson

Thompson, who was in a singing group with Appellant, testified that, on the night of the murder, he saw Appellant with a gun that resembled the murder weapon. ⁷ On direct examination, Thompson admitted that he had an open criminal case for drug possession. Appellant argues that trial counsel was ineffective for failing to impeach Thompson with evidence that his open drug case was for possession with intent to deliver, a felony, not simple possession, a misdemeanor. Appellant also argues that the prosecutor violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by knowingly offering Thompson's false testimony, and that trial counsel was ineffective for failing to discover the violation.

Appellant's claims have no merit. Trial counsel adequately cross-examined Thompson on other matters and offered testimony of other members of the singing group that undermined Thompson's credibility. Consequently, counsel's showing that Thompson was charged with possession with intent to deliver instead of simple possession would have been of little or no benefit to Appellant. Even if the proposed impeachment had caused the jury to disbelieve Thompson's testimony in its entirety, considering the overwhelming evidence of Appellant's guilt, there is no indication that the outcome of the trial would have been different. As for the alleged Giglio violation, Appellant presents no evidence that the prosecutor knew that Thompson's open case was for possession with intent to deliver instead of simple possession. Consequently, Appellant fails to demonstrate ineffective assistance of counsel with respect to Thompson.

c. Failure to establish the Victim's height

At trial, the medical examiner testified that the bullet that killed the Victim entered her neck and traveled in a slightly downward path. Appellant argues that trial counsel was ineffective for failing to establish the Victim's height, five feet ten inches, relative to Appellant's height, five feet five inches, because such evidence would have cast doubt on Appellant's ability to shoot the Victim such that the bullet would travel in the manner described by the medical examiner. This argument is patently without merit. According to the eyewitnesses, prior to shooting the Victim, the killer ripped the earrings from her ears, thereby pulling her head and neck down. Ergo, the relative heights of the killer and the Victim were irrelevant.

d. Failure to call eyewitnesses who did not identify Appellant

Appellant argues that trial counsel was ineffective for failing to call eyewitnesses David LeRoy and Anthony Overstreet, both of whom observed the shooting but did not testify at trial. LeRoy told the police that he "caught a glimpse" of the killer's face, but could not identify him at a photo array. Overstreet identified Appellant from a photo array, but made a misidentification at a lineup. Although these two witnesses could not positively identify Appellant as the killer, Appellant does not show how their testimony would have discredited that of the three eyewitnesses who did positively identify him. Hence, this claim warrants no relief.

e. Failure to raise a Batson claim

In voir dire, the prosecutor exercised twenty peremptory challenges, dismissing thirteen African-American venirepersons, two Hispanic venirepersons, and five Caucasian venirepersons. Appellant argues that the prosecutor's use of peremptory challenges violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct....