Com. v. Duffey

• Decision Date: 28 December 2005
• Citation: 889 A.2d 56
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Steven DUFFEY, Appellant.
• Court: Pennsylvania Supreme Court

889 A.2d 56

COMMONWEALTH of Pennsylvania, Appellee v. Steven DUFFEY, Appellant.

Supreme Court of Pennsylvania.

Submitted May 28, 2002.

Decided December 28, 2005.

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George S. Bobnak, Billy Horatio Nolas, Philadelphia, for Steven Lewis Duffey, appellant.

Amy A. Schwed, Kathleen M. Granahan; Amy Zapp, Harrisburg, Andrew John Jarbola, Scranton, for the Com. of PA.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Chief Justice CAPPY.

The instant case arose as an appeal from the denial of post-conviction relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541-46 ("PCRA"). We issued an opinion in this matter on August 18, 2004, affirming the guilt phase of Appellant's trial. Commonwealth v. Duffey, 579 Pa. 186, 855 A.2d 764 (2004) ("Duffey II").¹ We only reviewed one of Appellant's penalty phase issues and granted a limited remand for the PCRA court to conduct an evidentiary hearing on that issue. That hearing is now complete, and this court must review Appellant's penalty phase claims. For the reasons stated herein, we conclude that Appellant is not entitled to relief on his PCRA petition.

In Duffey II, this court was presented with a layered claim of ineffectiveness related to the testimony of the Commonwealth's rebuttal witness, Dr. John Hume.² After reviewing the relevant law, we believed that Dr. Hume's testimony unconstitutionally commented on Appellant's right to remain silent in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Duffey II, 855 A.2d at 774-75. "Relying on that expert testimony, the prosecutor then impermissibly referred to Appellant's silence and suggested damaging inferences from that silence." Id. at 775. Thus, the court concluded that Appellant's claim that trial counsel was ineffective for failing to object to Dr. Hume's comments and the prosecutor's closing arguments had arguable merit. Id. Likewise, we held that Appellant was prejudiced by the impermissible reference to his silence and the prosecutor's comment on his silence during his closing arguments. Id. We did not, however, deem defense counsel ineffective at that juncture, since we were unable to assess the reasonableness of trial counsel's actions. Accordingly, we remanded this matter for an evidentiary hearing. We also ordered that the hearing should encompass testimony related to appellate counsels' conduct, giving Appellant the opportunity to prove his "layered" claim of appellate counsel ineffectiveness.

The PCRA court held an evidentiary hearing on November 18, 2004 and issued findings from the bench. These findings subsequently were memorialized in an opinion dated December 15, 2004. The PCRA court found that trial counsel's strategy in failing to object to the unconstitutional comments was reasonable. The court, however, then concluded that appellate counsel was ineffective. The PCRA court's findings are now before this court, and it is now our responsibility to review those findings.

As a general proposition, an appellate court reviews the PCRA court's findings to see if they are supported by the record and free from legal error. Commonwealth v. Reyes, 582 Pa. 317, 870 A.2d 888, 893 n. 2 (2005). The court's scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. See, e.g., Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802, 2005 WL 711621 (2005).

Following Duffey II, the initial question with regard to this claim is related to the strategy of trial counsel. Counsel is presumed to have been effective. Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002). "Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Id. A claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued. Id.

During the evidentiary hearing before the PCRA court, trial counsel gave a multitude of reasons for failing to object to Dr. Hume's testimony. Trial counsel's first line of reasoning in support of his failure to object to Dr. Hume's testimony was that he did not want to undermine either his credibility or line of communication with the jury by raising objections which would not be fruitful. N.T., 11/18/2004, at 81-82. Counsel pointed out that he repeatedly challenged the admissibility of Dr. Hume's testimony both before trial and before the penalty phase, and the trial court overruled each of these objections. Id. at 48-50, 52-53, 54. Additionally, counsel argued that he raised numerous objections to Dr. Hume's testimony, which were similarly overruled. Id. at 60. Therefore, according to counsel, he did not want to object to Dr. Hume's testimony and was afraid of undermining his credibility in front of the jury. Id. at 81-82. In response, PCRA counsel challenged trial counsel's testimony by asking him whether a specific constitutional objection would have been better than a general objection to Dr. Hume's testimony. Id. at 57. PCRA counsel also pointed out that after Dr. Hume's testimony regarding Appellant's silence, trial counsel raised additional specific objections to Dr. Hume's testimony. Id. at 87-91, 93-95. PCRA counsel therefore attempted to weaken trial counsel's testimony by demonstrating that trial counsel did not have a good reason not to object to Dr. Hume's testimony. The PCRA court, however, credited trial counsel's testimony that he did not object to Dr. Hume's testimony so as not to undermine his credibility with the jury and to maintain his line of communication with the jury.³ Accordingly, as to this point, the PCRA court concluded that "it is the opinion of the court that a strategy where counsel attempts to maintain credibility with a jury in a death penalty case ... has `some reasonable basis designed to effectuate his client's interest.'" PCRA court opinion at 5.

Trial counsel's second line of reasoning in support of his failure to object to Dr. Hume's testimony was that he believed he could use Dr. Hume's testimony regarding Appellant's silence to his advantage. See N.T., 11/18/2004, at 38-39, 41-43, 60. Specifically, he testified that he was going to offer that Appellant had a limited mental capacity. Id. at 66, 71-72. Trial counsel believed Dr. Hume's testimony regarding Appellant's silence was consistent with his argument that Appellant had limited mental capabilities, since he intended to show that Dr. Hume's testimony demonstrated that Appellant was not capable of answering the questions. Id. at 66-68, 72-73. PCRA counsel then challenged trial counsel's testimony by pointing out that he did not, in fact, pursue this line of cross-examination with Dr. Hume. Id. at 84-85. In response, trial counsel testified that "[Dr. Hume] was a very matter of fact positive witness. After having felt him out for a little while, I did not think I was going to get much out of him at all, okay." Id. at 69; see also id. at 85-6. The PCRA court credited trial counsel's testimony, finding that trial counsel "limited his cross-examination of Dr. Hume because he was a trained medical doctor and a lawyer. He believed that Dr. Hume would have been able to turn his answers to his questioning in such a way that it would result in a net positive for the prosecution." PCRA court opinion at 5. Again, the PCRA court credited counsel's testimony, making a legal determination that counsel had a reasonable basis for the strategy he pursued regarding Dr. Hume's testimony.

Lastly, PCRA counsel questioned trial counsel about his failure to object to the prosecutor's closing argument. PCRA counsel also pointed out that trial counsel raised numerous objections during closing arguments, but none to the reference to Dr. Hume's testimony. N.T., 11/18/2004, at 98-99. Counsel responded, "When I say I was concerned about my credibility with Hume, I didn't want to give the impression of hiding anything. There was nothing to hide. In the closing argument that you just referenced, my recollection is tenor or emotional aspects of it or such that I probably felt it wise to object to just get a break or to tone it down a little bit." Id. at 100. Once again, the PCRA court credited trial counsel's reasoning that trial counsel "wished to draw the jury's attention away from Dr. Hume's testimony to that of his own witnesses." PCRA court opinion at 5.

Based on our review of the record of the PCRA court's hearing, we conclude that the factual findings of the PCRA court are supported by the record and agree with the PCRA court's legal determination that counsel's strategy had some reasonable basis designed to effectuate his client's interest. Miller, supra. We reiterate that a claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued. Id. Accordingly, we conclude that the PCRA court did not err in finding that counsel was effective, and we affirm the PCRA court's finding in this regard.

Having affirmed the determination by the PCRA court that trial counsel was effective, we will turn to the second part of this claim — the layered ineffectiveness claim. As noted previously, the PCRA court analyzed appellate counsels' conduct independently and found that the record demonstrated that the appellate counsel who prepared the brief was ineffective since he only analyzed issues related to the guilt phase of trial and did not prepare any arguments related to the penalty phase of the trial. Similarly, the appellate counsel who argued the case on appeal did not separately review the issues. Accordingly, the PCRA court concluded that Appellant presented...