Com. v. Dennis

• Decision Date: 20 June 2008
• Docket Number: No. 491 CAP.,491 CAP.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James DENNIS, Appellant.
• Court: Pennsylvania Supreme Court

950 A.2d 945

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

No. 491 CAP.

Supreme Court of Pennsylvania.

Submitted June 25, 2007.

Decided June 20, 2008.

Daniel Silverman, Esq., Silverman & Associates, P.C. for James Dennis; Ryan David Guilds, Amy McGinnis, Arnold & Porter, L.P., pro hac vice; Rebecca Gordon, Arnold & Porter, L.L.P., pro hac vice, for James Dennis.

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

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

OPINION

Justice TODD.

Appellant James Dennis was sentenced to death on October 19, 1992 for the first-degree murder of Chedell Williams in 1991. Appellant now appeals the September 15, 2005 order of the Court of Common Pleas of Philadelphia County dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46.

Following Appellant's conviction, we affirmed on direct appeal, rejecting numerous challenges, including several pertaining to the constitutional effectiveness of trial counsel. Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d 404 (1998) ("Dennis I"). Thereafter, at the behest of the Commonwealth, we reversed the PCRA court's order granting Appellant's Motion for Discovery pursuant to Pa. R.Crim.P. 902(E)(2), by which Appellant sought the Commonwealth's voir dire notes from trial to support his jury selection challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and remanded for completion of PCRA review. Commonwealth v. Dennis, 580 Pa. 95, 859 A.2d 1270 (2004) ("Dennis II"). As noted, the PCRA court denied relief, and this appeal followed.¹ For the reasons that follow, we affirm in part, vacate in part, and remand for further proceedings as directed.

I. BACKGROUND AND PROCEDURAL HISTORY

The facts credited by a jury and prompting Appellant's conviction for first-degree murder twice have been recited by this Court, see Dennis I, 715 A.2d at 407; Dennis II, 859 A.2d at 1272-73, and for present purposes we need review them only briefly. On the afternoon of October 22, 1991, Appellant and a companion approached 17-year-old Chedell Williams and Zahra Howard as they climbed the steps to the Fern Rock SEPTA station in Philadelphia. They blocked the girls' path, and Appellant demanded that Williams give him her earrings. The girls turned and fled, but Appellant gave chase, catching Williams in the street. He then ripped the earrings from her ears, drew a .32 caliber handgun, and shot her in the neck, killing her. Dennis I, 715 A.2d at 407.

Three witnesses had prolonged, unobstructed views of Appellant during and immediately after the shooting: Howard; Thomas Bertha, who was working on a nearby building; and James Cameron, a SEPTA cashier. All three identified Appellant from a photo array, at a line-up, and again at trial. In addition to the eyewitness testimony, the Commonwealth also presented evidence at trial that, on the night following the shooting, Appellant brandished a gun of the kind described by witnesses to the murder. Additionally, a witness testified to the seizure from Appellant's father's house of clothing fitting the description of the shooter's clothing offered by witnesses.² Appellant presented a defense of mistaken identity, claiming that he was on a bus to the Abbottsford Homes at the time of the murder. The jury returned convictions on charges of first-degree murder, robbery, criminal conspiracy, violating the Uniform Firearms Act, and possessing an instrument of crime.³

In the penalty phase of the proceedings, the Commonwealth sought the death penalty on the basis of two aggravating circumstances: killing while in the perpetration of another felony, 42 Pa.C.S.A. § 9711(d)(6); and knowingly creating a grave risk of death to another person in addition to the victim, id. § 9711(d)(7). Appellant presented evidence of three mitigating circumstances: no significant history of prior criminal convictions, id. § 9711(e)(1); Appellant's age of 21 at the time of the crime, id. § 9711(e)(4); and the "catch-all" mitigator, id. § 9711(e)(8). The jury found one aggravating circumstance, killing in the perpetration of a felony, and one mitigating circumstance, no significant history of prior criminal convictions, and concluded that the aggravating circumstance outweighed the mitigating circumstance. Accordingly, the trial court sentenced Appellant to death.

Following the trial court's denial of post-verdict motions, Appellant appealed to this Court, and we affirmed. Because Appellant's appeal occurred before this Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (deferring challenges to the constitutional effectiveness of counsel until collateral review), it was governed instead by our former rule, which required an appellant to raise challenges to the effectiveness of counsel at the earliest opportunity, i.e., the first stage of litigation when appellant was represented by an attorney different than the one whose effectiveness was to be challenged. See Commonwealth v. Romero, 938 A.2d 362, 369 n. 4 (Pa.2007); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977). Thus, on direct appeal in this case, we considered and rejected numerous challenges to the effectiveness of trial counsel.

In particular, Appellant alleged trial counsel ineffectiveness as follows: (1) counsel's failure to investigate trial witness Latanya Cason; (2) counsel's failure to impeach trial witness Charles Thompson regarding the severity of an outstanding criminal charge; (3) counsel's failure to establish the victim's height, which, at 5'10", exceeded Appellant's by 5 inches and, in Appellant's view, created a reasonable doubt as to the height of the shooter; (4) counsel's failure to call eyewitnesses David Leroy and Anthony Overstreet, who observed events surrounding the shooting, including the suspect as he fled, but failed to identify Appellant as the shooter; (5) counsel's failure to raise a claim of improper exclusion of jurors based upon race under Batson; (6) counsel's failure to object to three "bad character" witnesses who, in rebuttal to Appellant's nine "good character" witnesses, testified that Appellant's reputation in the community regarding honesty, peacefulness, and law-abidance was less than sterling; (7) counsel's failure to seek a mistrial upon the Commonwealth adducing testimony regarding Appellant's unemployment in the years preceding the murder; (8) counsel's failure to seek suppression of testimony regarding the clothing seized from Appellant's father's home, which allegedly matched that observed on the shooter by eyewitnesses, when the Commonwealth proved unable to produce the clothing itself; (9) counsel's failure to object to the trial court's instruction, per Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), indicating that the jury "should" receive witness testimony with caution, rather than indicating that they "must" do so; (10) counsel's alleged "bolstering" of the prosecutor's credibility during the defense's closing argument, in his acknowledgment of the prosecutor as "probably the top prosecutor" in his office, Dennis I, 715 A.2d at 411; and (11) counsel's failure to object to testimony by a court clerk who testified that Appellant had previously been convicted of possession of crack cocaine with intent to deliver, when, in fact, Appellant's prior conviction had been for simple possession. We rejected each of these issues in turn.

We also rejected direct challenges to the regularity of the trial itself. In particular, we rejected discrete challenges to the prosecutor's closing arguments during the guilt and penalty phases of Appellant's trial, acknowledging that the comments in question to some extent strayed from the evidence presented, but finding the comments non-prejudicial, especially in light of the trial court's curative instructions.

Appellant also sought a remand for consideration of after-discovered evidence. See Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541, 544-45 (1995) (reviewing the four-prong standard for granting a new trial based upon after-discovered evidence). This request was based on two items. First, Appellant argued that an affidavit secured from Shanaqua Ramsey, a friend of eyewitness Howard, demonstrated that Howard privately had expressed less certainty in her identification of Appellant than she had signaled to the investigating officers. We rejected this claim due to Appellant's failure to indicate why the conversation in question, which occurred nearly a year before Appellant's trial, could not have been discovered prior to trial, and because the evidence would, at most, serve only to impeach Howard's testimony. See id. at 545, 659 A.2d 541 (noting that after-discovered evidence may warrant a new trial, inter alia, only where it is not submitted solely for impeachment purposes). Second, Appellant directed this Court's attention to the January 24, 1996 recantation by Thompson of his testimony claiming that he saw Appellant with a gun. Noting the unreliability of recantation, especially where the witness claims to have committed perjury, and further observing that the substance of Thompson's alleged dissembling could have been elicited on cross-examination,⁴ we rejected this claim as well.

Finally, Appellant sought a remand for evidentiary hearings on his Batson claim; fulfillment of his discovery requests; and for resentencing in light of what he claimed was his disproportionate sentence in light of the sentences imposed in similar cases. We rejected all three claims as wholly lacking in merit and denied relief.

Thereafter, Appellant timely sought relief under the PCRA, submitting his pro se PCRA petition on November 25, 1998. Upon the appointment of counsel, Appellant submitted an amended, counseled petition on December 7, 1999 and a further amended...