Com. v. Fisher

• Decision Date: 24 November 1999
• Citation: 559 Pa. 558,741 A.2d 1234
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert FISHER, Appellant.
• Court: Pennsylvania Supreme Court

559 Pa. 558

741 A.2d 1234

COMMONWEALTH of Pennsylvania, Appellee, v. Robert FISHER, Appellant.

Supreme Court of Pennsylvania.

Submitted September 3, 1998.

Decided November 24, 1999.

Reargument Denied February 7, 2000.

Joseph J. Hylan, for Robert Fisher.

Mary McNeil Killinger, Norristown, Robert A. Graci, Harrisburg, for Com.

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

OPINION

CAPPY, Justice.

This case appears before the court on direct appeal from a second penalty proceeding. Appellant asserts five claims of trial court error and two claims of ineffective assistance of counsel. For the reasons set forth herein, we affirm the sentence of death. To facilitate a better understanding of Appellant's claims, we will briefly summarize the procedural history of this case. In 1988, Appellant was convicted of first degree murder and sentenced to death for killing his girlfriend, Linda Rowden, in retaliation for her having given information she provided to police regarding the murder of Nigel Anderson.¹ Appellant was also convicted in federal court for violating the civil rights of Nigel Anderson, but that conviction was later vacated. United States v. Fisher, 1990 WL 27350 (E.D.Pa.1990).² Due to references to the Anderson conviction during Appellant's trial for the Rowden murder, Appellant's conviction for the Rowden murder was vacated and the matter remanded for a new trial. Commonwealth v. Fisher, 527 Pa. 345, 591 A.2d 710 (1991) ("Fisher I"). Upon retrial, Appellant was again convicted of first degree murder and sentenced to death in May 1992. On appeal, we affirmed the conviction, but vacated the death sentence and remanded the case for a new penalty hearing because of the improper admission of victim impact evidence during the penalty phase. Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996) (Cappy, J., concurring) ("Fisher II"). Following a second penalty hearing in 1997, the jury rendered a sentence of death on June 25, 1997, and the trial court imposed the death sentence on July 23, 1997. Appellant then filed a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. ("PCRA"), alleging ineffective assistance of counsel. The trial court appointed new counsel, who filed a Post-Sentence Motion and an amended PCRA petition. Following an evidentiary hearing, the trial court denied the post-trial motion and dismissed the PCRA petition. This appeal followed.

Before addressing the merits of Appellant's claims, we must first clarify a procedural issue. The jury rendered a verdict of death on June 25, 1997, and the death sentence was formally imposed in an order dated July 23, 1997. Appellant's penalty phase counsel filed post-sentence motions on July 31, 1997.³

Concurrent with its July 23, 1997 order imposing the death penalty, the trial court filed an order appointing "the Public Defender to represent [Appellant] for purposes of collateral review pursuant to the Capital Unitary Review Act at 42 Pa.C.S.A. 9571, et seq." (CURA). This order also directed counsel to "review the trial and conviction of the Defendant which occurred in August 1991 [Fisher II]" and "assert any alleged PCRA claims in this regard in petition form and submit same to the Court." However, by Order dated August 11, 1997, we permanently suspended the Capital Unitary Review Act.

On September 25, 1997, Appellant, pro se, filed a pleading which purported to be a "PCRA" petition and a "Direct appeal for penalty phase". On September 30, 1997, the trial court, having been informed that Appellant had discharged trial counsel, appointed the Public Defender's office "to represent the Defendant in the prosecution of his direct appeal as well as all PCRA claims". On November 17, 1997, Appellant's new counsel filed an "Amended Motion for Post-Conviction Collateral Relief" which raised three claims of ineffectiveness of counsel in Fisher II and five claims of ineffectiveness of counsel in Fisher III.⁴ After a hearing, on January 30, 1998, the trial court denied the claims raised in the post-trial motion and dismissed the amended PCRA petition.

The trial court issued an opinion on March 11, 1998 regarding the denial of Appellant's claims. Despite its July 23, 1997 order directing Appellant to file collateral relief claims pursuant to the now-suspended CURA, the trial court determined that Appellant's ineffectiveness claims of penalty phase counsel were incorrectly raised in a PCRA petition. Indeed, the trial court did not even mention that it had ordered that a PCRA petition be filed pursuant to CURA. The trial court inexplicably reasoned that pursuant to 42 Pa.C.S. § 9543(a)(2)(ii), a petitioner is entitled to post-conviction collateral relief only if the ineffective assistance of counsel undermines the truth-determining process relative to Appellant's guilt, and here, at the penalty phase, Appellant's guilt was not at issue. Consequently, the trial court deemed the PCRA petition to be a procedural miscue, and addressed the claims of ineffectiveness against counsel in Fisher III as if they had been raised in the post-sentence motion. The trial court did not address the claims of ineffectiveness of counsel in Fisher II in its March 1998 opinion. For the sake of judicial economy, we shall treat the claims of ineffectiveness of penalty counsel in Fisher III as if they were raised on direct appeal. We have automatic jurisdiction to review the trial court's judgment of a death sentence pursuant to 42 Pa.C.S. § 9711(h)(1).

In his first assignment of error, Appellant contends that the trial court erred in permitting the Commonwealth to proceed on aggravating factor 42 Pa.C.S. § 9711(d)(15) (relating to the killing of a nongovernment informant or a person who otherwise provided any investigative, law enforcement or police agency with information concerning criminal activity).⁵ Appellant argues that use of this factor constituted a violation of the ex post facto clauses of the United States⁶ and Pennsylvania⁷ Constitutions. Further, Appellant claims that this provision was not promulgated until December 22, 1989, nine years after the murder at issue occurred, and the General Assembly did not express the intent to apply this law retroactively.

Our interpretation of the state constitutional prohibition against ex post facto laws has been consistent with the United States Supreme Court's interpretation of the federal prohibition, and therefore the analysis of Appellant's federal ex post facto claim encompasses his state claim. Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1317 n. 7 (1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1389, 128 L.Ed.2d 63 (1994).

In 1798, the United States Supreme Court defined an ex post facto law as:

1st Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798).

More recently, the United States Supreme Court stated that in order for a law to violate the ex post facto clause, "a law must be retrospective — that is "it must apply to events occurring before its enactment' — and it `must disadvantage the offender affected by it' [citation omitted] by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (citing Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990)

). However, the Court has also determined that the Constitution does not prohibit every retrospective law that alters a party's situation to his disadvantage. Young, 637 A.2d at 1317 (citing Collins, 497 U.S. 37, 50,

110 S.Ct. 2715, 2723,

111 L.Ed.2d 30, 43-44 (1990)).

Appellant argues that the application of section (d)(15) during the 1997 penalty phase hearing aggravated the crime; increased the punishment from life imprisonment to death; and disadvantaged him by making him liable to a penalty to which he was not liable prior to the enactment of the legislation. We cannot agree.

We previously addressed the retroactive application of an aggravating factor in Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992),cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). In Zook, the appellant was convicted of first degree murder and sentenced to death pursuant to § 9711(d)(11)⁸, an aggravating factor which was passed after the commission of the murder. Like the Appellant in the instant case, the appellant in Zook argued that the General Assembly did not intend the amendment to apply retroactively, and that the prohibition against ex post facto laws would preclude the Commonwealth from proceeding under this factor. We rejected this claim, stating: "[a]lthough the multiple murder aggravating factor was enacted after the murders were committed in this case, this fact is of no moment since this factor is similar in substance to an existing factor found at Section 9711(d)(10)."⁹615 A.2d at 21. We further found that "[w]hile the language is different, both factors encompass first degree murder and therefore there is little difference in substance or effect to the instant case. The Commonwealth could have presented its evidence on the second murder under either aggravating factor." Id.

The instant case presents a similar situation. The newly enacted provision at issue here, § 9711(d)(15), is similar in substance to § 9711(d)(5), an aggravating factor which was in effect at the time the offense was...