Com. v. Duffey

• Decision Date: 18 August 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Steven Lewis DUFFEY, Appellant.
• Court: Pennsylvania Supreme Court

855 A.2d 764

579 Pa. 186

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

Supreme Court of Pennsylvania.

Submitted May 28, 2002.

Decided August 18, 2004.

Reargument Denied October 4, 2004.

George S. Bobnak, Esq., Billy Horatio Nolas, Esq., Elizabeth W. Fox, Esq., Philadelphia, for Steven Lewis Duffey.

Kathleen M. Granahan, Esq., Amy Schwed, Amy Zapp, Esq., for the Commonwealth of Pennsylvania.

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

OPINION

Chief Justice CAPPY.

This is an appeal from the denial of post-conviction relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541-46 ("PCRA"). For the reasons set forth herein, we remand for further proceedings consistent with this opinion.

This matter has a convoluted procedural history. Following a jury trial in February 1985, Appellant was convicted of first degree murder¹ and robbery² for the death of Kathy Kurmchak.³ The jury returned the death sentence for the first degree murder conviction.⁴ Following the denial of Appellant's post-trial motions, the trial court imposed a sentence of death on August 4, 1986. John Cerra, Esquire and Paul Ackourey, Esquire (collectively, "trial counsel") represented Appellant through the post-trial motion stage. New counsel, Charles Witaconis, Esquire and Thomas Brown, Esquire, represented Appellant on direct appeal (collectively, "direct appeal counsel") (their appearance does not appear on the docket sheet, however). On October 14, 1988, this Court affirmed Appellant's judgment of sentence. Duffey, 548 A.2d at 1178.

On September 22, 1994, the Governor signed a death warrant scheduling Appellant's execution for the week of December 4, 1994. The Pennsylvania Capital Case Resource Center ("PCCRC") sent the trial court judge a letter dated November 15, 1994 that included the original and a courtesy copy of Appellant's "Pro Se Motion for Stay of Execution to Identify and Appoint Counsel and to Permit Counsel Time to Prepare a PCRA Petition". On November 18, 1994, the trial court denied the motion, concluding that it lacked jurisdiction. On November 20, 1994, Appellant filed a Motion for Reconsideration, which the trial court denied on November 22, 1994. On that same day, Appellant filed a "Renewed Motion for Stay of Execution to Permit Counsel Time to Prepare PCRA Petition" with a PCRA Petition attached ("Renewed Motion"). The Renewed Motion was an unsigned pleading; the front page indicated that Appellant filed it pro se. On November 28, 1994, Appellant commenced habeas corpus proceedings in federal court. On November 29, 1994, the trial court denied the Renewed Motion. While the trial court's order did not expressly dispose of the PCRA petition attached to the Renewed Motion, the trial court's opinion made it clear that the court found the attached PCRA petition to be "frivolous on its face and without merit".

PCCRC attorneys Yvonne R. Bradley, Esquire and David Wycoff, Esquire, "prepared" notices of appeal from the trial court's orders of November 18, 1994 (denying Appellant's Motion for a Stay of Execution) and November 29, 1994 (denying the Renewed Motion), although the appeals purported to be "for Steven Duffey, pro se". On December 5, 1994, this Court denied (1) Appellant's pro se Petition for Writ of Prohibition and Exercise of King's Bench Powers; (2) Emergency Motion for Stay of Execution; and (3) appeals from the orders of the trial court denying stays of execution. That same day, the federal court granted Appellant's request to proceed in forma pauperis and his request for appointment of federal habeas corpus counsel.⁵ On or about January 9, 1995, the record reflects that Richard Bernstein, Esquire entered his appearance for Appellant (although no such notation appears on the docket). On May 8, 1995, while the matter was still pending in federal court, Appellant, now with counsel's assistance, filed an Amended Petition for PCRA relief. After the federal litigation ended, the Commonwealth moved to strike the Amended Petition on the basis that the trial court had previously denied Appellant's PCRA petition on November 22, 1994. On December 2, 1996, the trial court granted the Motion to Strike. Appellant appealed that order to this Court, and we remanded the matter to the trial court for consideration of the merits of Appellant's Amended Petition for PCRA relief. Commonwealth v. Duffey, 551 Pa. 675, 713 A.2d 63 (1998).⁶

A hearing on the amended PCRA petition was scheduled for February 19, 1999. At that hearing, Appellant submitted a "Motion for Summary Grant of Relief Under the Post-Conviction Relief Act" in which he raised several issues.⁷ During the course of that hearing, and subsequently in an order and opinion dated September 20, 1999, the trial court denied all of the relief requested in that Motion and hearing. Due to the number of issues raised as well as the volume of testimony that Appellant sought to produce, the hearing was continued. Additional hearings on the Amended PCRA Petition were held on September 20-24, 1999 and December 13-17, 1999. Ultimately, the PCRA court denied the PCRA petition.

Appellant raises several claims of trial and appellate counsels' ineffectiveness. Appellant is presenting a "layered" claim of ineffective assistance of counsel. We recently set forth the standard for such layered ineffective assistance of counsel claims in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003).

Pursuant to McGill, when a court is faced with a layered claim of ineffective assistance of counsel, the only viable ineffectiveness claim is the one related to the petitioner's prior appellate counsel. See id. at 1022. To preserve a claim of ineffectiveness, the petitioner must plead in his PCRA petition that such appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Id. The petitioner must also present argument on each prong of the Pierce⁸ test as to appellate counsel's deficient representation. McGill, 832 A.2d at 1022.

In McGill, we then elaborated on how a petitioner must present his claim of ineffectiveness. Consistent with Pierce, a petitioner must prove the three prongs of appellate counsel's ineffectiveness, namely, that the claim has arguable merit, that appellate counsel lacked a reasonable basis for his or her chosen course, and that the petitioner was prejudiced thereby, i.e., that there is a reasonable probability that the outcome of the proceedings in which appellate counsel was the attorney of record would have been different. Id. at 1022-23. To demonstrate the first prong (arguable merit), the petitioner must set forth all three prongs of the Pierce test as to trial counsel's action or inaction. Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003). If the petitioner does not satisfy any one of the three prongs as to trial counsel's ineffectiveness, he will have failed to establish an ineffectiveness claim as to appellate counsel, since a claim of appellate counsel ineffectiveness is merely a derivative claim related to trial counsel's ineffectiveness. Id. But if the arguable merit prong of appellate counsel's ineffectiveness is established, i.e., the petitioner demonstrates trial counsel's ineffectiveness, the inquiry proceeds to the remaining two prongs of the Pierce test as to appellate counsel's ineffectiveness. Id.

As a threshold matter, then, we must determine whether Appellant has preserved his claims. In his amended PCRA petition, Appellant asserts that he did not receive effective assistance of trial counsel as to his several claims (Amended Petition at 108) and that his appellate counsel was ineffective insofar as they failed to raise each issue addressed in the amended PCRA petition. Amended Petition at 110. Thus, we conclude that Appellant has properly pled his claims. See Rush, 838 A.2d at 657 n. 5.

Additionally, as to the claims we address herein, in his brief to this court, Appellant presents argument as to trial counsel's and appellate counsel's deficient representation. Specifically, he addresses all three prongs of the Pierce test as to trial counsel and direct appeal counsel. Consequently, as Appellant has adhered to the pleading requirements, we will first consider the arguable merit prong of the appellate counsel claim. In other words, we will first address the claim related to trial counsel's conduct, since it is only if trial counsel was ineffective that the remaining prongs related to appellate counsel's conduct need to be addressed.⁹¹⁰

As a final matter, we note that to be eligible for PCRA relief, the petitioner must plead and prove that an issue has not been previously litigated. 42 Pa.C.S. § 9543(a)(3).

Initially, we will address Appellant's challenges to the inclusion and exclusion of certain venirepersons in the jury. Appellant first claims that trial counsel was ineffective by failing to move to strike juror Richard Fagerlin for cause and in failing to use a preemptory strike against this juror, and that appellate counsel was ineffective for failing to preserve this issue. Appellant asserts that Fagerlin was improperly included on the jury panel because he was predisposed to impose the death penalty.¹¹ Appellant contends that the seating of a juror who would vote for death in every murder case violates the Sixth and Fourteenth Amendments to the United States Constitution. See Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Appellant further asserts that the seating of such a juror violates the Eighth Amendment right to a reliable and individualized capital sentencing proceeding. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality) (indicating that imposition of a death sentence for all murders does not allow for individualized sentencing that considers mitigating factors). Appellant, as the party seeking exclusion of the juror, has the burden of establishing...