Com. v. Fisher

• Decision Date: 31 December 2002
• Citation: 572 Pa. 105,813 A.2d 761
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert FISHER, Appellant.
• Court: Pennsylvania Supreme Court

813 A.2d 761

572 Pa. 105

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

Supreme Court of Pennsylvania.

Submitted July 8, 2002.

Decided December 31, 2002.

Carl M. Knapp, for Robert Fisher, appellant.

Patricia Eileen Coonahan, Norristown, for the Com. of Pa., appellee.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Chief Justice ZAPPALA.

The present appeal challenges the denial of relief pursuant to Appellant's PCRA¹ petition.

In 1980, Appellant, Robert Fisher, murdered his girlfriend, Linda Rowden, because she gave statements to the police implicating Fisher in the drug-related killing of Nigel Anderson. Appellant shot Rowden in public, in front of eyewitnesses, then drove to the apartment of a friend and told her he had shot Rowden because she was cooperating with the police in their investigation of Anderson's murder. Appellant fled to New York where he was apprehended seven years later, extradited to Pennsylvania, tried for Rowden's murder, convicted of first-degree murder, and sentenced to death in 1988. On direct appeal, this Court vacated the conviction and remanded the matter for a new trial, due to improper evidence introduced in the first trial. Commonwealth v. Fisher, 527 Pa. 345, 591 A.2d 710 (1991) (Fisher I).

Appellant was retried in 1991, again convicted of first-degree murder, and again sentenced to death. On direct appeal, this Court affirmed the conviction, but held that Appellant was entitled to a new sentencing hearing because of improper admission of victim impact evidence. Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996) (Fisher II).

Following a third sentencing hearing, Appellant was again sentenced to death. On appeal, this Court affirmed the death sentence. Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999) (Fisher III).

Appellant then filed a petition for post-conviction collateral relief. Counsel was appointed and filed an amended petition. Following a hearing, the PCRA court denied relief. This is the appeal from the denial of PCRA relief.²

Appellant asserts that all prior counsel were ineffective. In order to demonstrate entitlement to relief for a claim of ineffectiveness of counsel, Appellant would have to demonstrate: (1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her conduct; and (3) that Appellant was prejudiced by counsel's performance, i.e., that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 319 (2001). Moreover, the PCRA requires that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). These standards govern our review of the issues raised by Appellant.

Appellant raises fourteen issues. They are:

1. "Whether the learned trial judge erred by denying Fisher's amended petition for post conviction relief?"

2. "Whether Appellant was denied a full and fair opportunity to develop and litigate his claims that prior counsel was ineffective, and was denied his state and federal constitutional rights to due process, where the trial court denied Appellant funds for investigation and mental health experts necessary to demonstrate counsel's ineffectiveness?"

3. "Whether the learned trial judge erred by not explaining to the jury that mitigating circumstances need not be connected to the crime itself and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

4. "Whether Fisher was denied his state and federal constitutional rights to present all mitigation evidence to the jury when the trial judge precluded Fisher from testifying that he did not commit the crime and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

5. "Whether Fisher was denied his state and federal constitutional rights to confrontation and due process during both the guilt and penalty phase, when the trial judge permitted hearsay allegations from the deceased regarding alleged assaults on the deceased by Fisher and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

6. "Whether Fisher was denied his state and federal constitutional rights to due process by the prosecutor's numerous improper comments made during the closing arguments of the guilt phase and penalty phase?"

7. "Whether Fisher was denied his state and federal constitutional rights to due process and effective assistance of counsel where counsel failed to object or seek remedial actions following the prosecutor's numerous improper comments made during his closing arguments and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

8. "Whether Fisher was denied his state and federal constitutional rights to due process by the trial judge's erroneous instructions on `reasonable doubt' and whether all prior counsel were ineffective for failing to raise and litigate this claim at all prior stages of these proceedings?"

9. "Whether Fisher was denied his state and federal constitutional rights to effective assistance of counsel where his attorney failed to object or otherwise challenge the court's failure to give an appropriate cautionary instruction on identification testimony and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

10. "Whether Fisher was denied his state and federal constitutional rights to effective assistance of counsel where his attorney failed to investigate, develop, present and argue mitigating circumstances and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

11. "Whether Fisher was denied his state and federal constitutional rights to due process by the trial court's failure to instruct the jury on the defense of intoxication and counsel's failure to request such an instruction or object to its omission denied Fisher effective assistance of counsel and whether appellate counsel was ineffective for failing to raise and litigate this claim on direct appeal?"

12. "Whether Fisher was denied his state and federal constitutional rights to due process and a fair trial when the court failed to dismiss jurors who were exposed to outside information regarding his case and whether all prior counsel were ineffective for failing to raise and litigate this claim at all prior stages of these proceedings?"

13. "Whether Fisher was entitled to post conviction relief from his conviction and sentence because of the cumulative effect of the errors contained in this petition and litigated in prior proceedings?"

14. "Whether all prior counsel were ineffective for failing to raise the issues presented in Fisher's amended petition for post conviction relief at all prior stages of this case?"

We will consider these issues seriatim.

First, Appellant claims the PCRA court erred by denying his petition for post-conviction relief. As Appellant recognizes, this is the ultimate issue of this appeal, and depends on our resolution of the remaining thirteen issues.

Next, Appellant claims he was denied a full and fair opportunity to develop and litigate his claims that prior counsel was ineffective, and was denied his state and federal constitutional rights to due process, where the trial court denied him funds for investigation and mental health experts necessary to demonstrate counsel's ineffectiveness. He relies in part on Ake v. Oklahoma, 470 U.S. 68, 70, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (stating that when a capital defendant's mental health is at issue, "the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense.").

Appellant's reliance on Ake is misplaced. The Court in Ake held that indigent defendants are entitled to cost-free access to psychiatric experts only in very limited circumstances where the defendant's sanity at the time of the offense was a significant factor at trial. In Ake, there was a defense of insanity, not, as Appellant is arguing, questions of mitigation relevant to a sentencing determination. In fact, Appellant is not even arguing he should have received public funds to engage a neuropsychological expert to aid his defense during the penalty phase of trial—he claims it was error to deny public funds to engage a neuropsychological expert to aid him in a collateral proceeding to establish a claim of ineffective assistance of counsel.

This Court recently held that "a capital defendant is entitled to state-paid psychiatric assistance only where the assistance is needed to rebut the prosecutor's argument of future dangerousness, not to prove mitigating circumstances." Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 600 (2000)³ (citing Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 883 (1995)). The Miller Court went on to say: "Here, future dangerousness was not an issue; therefore, appellant was not entitled to psychiatric assistance to prove the mental health mitigating circumstances. Nevertheless, appellant was provided with psychiatric assistance, and two mental health experts testified on his behalf during the penalty phase of his trial." Miller, 746 A.2d at 600. As in Miller, Appellant was provided with state-paid psychiatric assistance though future dangerousness was not an issue. See Fisher III, 741 A.2d at 1245. Unlike Miller, the psychiatrists selected by Appellant concluded that his capacity was not diminished on the day of the murder, and thus their reports were not helpful to his defense. Appellant was then provided funds to engage a third psychiatrist, who concluded that Appellant did not suffer from post traumatic stress syndrome or...