Com. v. Fletcher, No. 545 CAP

• Citation: 986 A.2d 759
• Decision Date: 28 December 2009
• Docket Number: No. 545 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Anthony FLETCHER, Appellant.
• Court: Pennsylvania Supreme Court

986 A.2d 759

COMMONWEALTH of Pennsylvania, Appellee v. Anthony FLETCHER, Appellant.

No. 545 CAP

Supreme Court of Pennsylvania.

Submitted May 6, 2009.

Decided December 28, 2009.

Kathleen E. Martin, Robert Jeremy Levant, Philadelphia, Levant, Martin & Tauber, P.C., Ryan David Guilds, Amy Rohe, Judith Bernstein-Gaeta, Arnold & Porter, LLP, for Anthony Fletcher.

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

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

OPINION

Justice GREENSPAN.

This is a collateral capital appeal from an order dismissing Appellant Anthony Fletcher's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. We affirm.¹

Factual and Procedural History

Appellant's convictions arose out of the shooting death of Vaughn Christopher on March 2, 1992, at approximately 1:00 a.m., in the 2000 block of South 60th Street in Philadelphia.² Appellant shot Christopher because Christopher failed to pay for drugs Appellant had given him. The shooting was witnessed by several persons including Natalie Grant, Angelic Kirkman, and Ronald "Skeet" Williams. In summary, the witnesses testified that Appellant approached Christopher and asked him for the money Christopher owed him.³ Without giving Christopher an opportunity to respond, Appellant reached into his coat, pulled out a silver .380 caliber semi-automatic handgun, and then fired one shot at Christopher's feet. Christopher immediately began walking away from Appellant. When Christopher was about seven feet from Appellant, Appellant fired two more shots at him. One of the bullets hit Christopher in his thigh and the other hit him in his right flank. The bullet that struck Christopher in his flank caused damage to his right kidney, liver, and chest wall. Christopher stumbled away and collapsed against a parked car. He asked Williams to help him but Williams declined.

Christopher managed to rise to his feet and walk several steps but then fell to the ground and lapsed into unconsciousness. Police arrived soon thereafter and transported Christopher to a nearby hospital where he died a day and a half later.

Following the shooting, Appellant returned to his home and changed his clothes. He then returned to the scene of the shooting and remarked to Grant and Williams that, "You all better tell that boy he better not tell who shot him." Almost a week later Appellant approached Grant and warned her not to speak to the police. Afraid for her own safety and that of her family, Grant promised Appellant that she would not speak to the police about the shooting.

Police arrested Appellant on March 10, 1992, and charged him with, inter alia, murder, generally, and possessing an instrument of crime (PIC). Appellant then agreed to speak to police. After receiving Miranda⁴ warnings, Appellant told the police that he approached Christopher and punched him in the head because Christopher and another man had robbed him during a dice game. Appellant further remarked that Christopher pulled out a gun, which prompted him to grab for Christopher's weapon. Appellant stated that he was able to gain control of Christopher's weapon and fired it twice at Christopher's legs.

On January 29, 1993, a jury convicted Appellant of first-degree murder (18 Pa. C.S. § 2502(a)) and PIC (18 Pa.C.S. § 907). Following the recording of the verdict and a penalty hearing, the jury found that the aggravating circumstances outweighed the mitigating circumstances and fixed the penalty at death.⁵ See 42 Pa.C.S. § 9711(c)(iv) (the verdict must be a sentence of death if the jury unanimously finds one or more aggravating circumstances outweigh any mitigating circumstances).

Following the penalty hearing, trial counsel filed post-verdict motions pursuant to former Rule of Criminal Procedure 1123.⁶ Appellant thereafter requested new counsel and Willis W. Berry, Jr., Esquire, was appointed to represent Appellant.⁷ Appellant, who had filed numerous pro se motions seeking relief from his convictions, petitioned to have Mr. Berry removed as counsel and to proceed pro se. The trial court conducted an extensive colloquy and granted Appellant the right to represent himself. N.T. 4/4/95, 20-31; Commonwealth v. Fletcher, 586 Pa. 527, 896 A.2d 508, 512-13 (2006) (Fletcher II) (setting forth excerpts from the colloquy). Mr. Berry was then appointed to be standby counsel.

Mr. Berry and Appellant filed several supplemental post-verdict motions and the trial court held hearings at which Appellant represented himself and standby counsel acted in a supplemental capacity. The trial court eventually denied Appellant's motions. On February 21, 1996, Appellant, represented by new counsel, John Cotter, Esquire, was formally sentenced to death. Appellant, still represented by Mr. Cotter, filed a direct appeal in this Court. On March 24, 2000, this Court affirmed the judgment of sentence. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000) (Fletcher I).⁸ Appellant requested reargument but that request was denied on May 15, 2000. Appellant then filed a petition for a writ of certiorari in the United States Supreme Court which was also denied. Fletcher v. Pennsylvania, 531 U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000) (per curiam).

Appellant filed a timely pro se PCRA Petition. Almost one year later Appellant filed a 245-page Amended Petition raising twenty primary issues, each of which was comprised of several sub-issues. The matter was assigned to the Honorable John Milton Younge for disposition. Judge Younge dismissed most of Appellant's claims but granted Appellant an evidentiary hearing on the following five claims:

1. Trial counsel was ineffective when he failed to present compelling exculpatory testimony from Dr. Hydow Park, the pathologist who performed the decedent's autopsy and also failed to expose a critical error by the testifying pathologist, Dr. [Ian] Hood;

2. The police in this case lost or withheld critical physical evidence regarding the decedent's clothing, and trial counsel was ineffective for failing to investigate and raise this issue of deficient police work at trial;

3. Trial counsel was ineffective for failing to investigate, develop, and present significant mitigating evidence, including mental health evidence;

4. Trial counsel was ineffective for failing to object where the jury found that the aggravating circumstance of "grave risk of death" to a person other than the victim existed based upon improperly admitted evidence, unconstitutionally broad jury instructions and improper argument by the prosecution; and

5. Trial counsel was ineffective for failing to object to the trial court's instruction regarding the possibility of parole.

PCRA Court's Opinion, 6/9/04 at 2.

Following an evidentiary hearing, Judge Younge granted Appellant a new trial on Appellant's first claim above but denied relief on the remaining issues. Judge Younge also denied relief on the remainder of the claims set forth in Appellant's Amended Petition.⁹ The Commonwealth appealed to this Court and on April 21, 2006, this Court reversed Judge Younge's order granting a new trial.¹⁰ This Court held that Appellant had waived review of the claim on which the PCRA court granted relief because it had not been raised in any of the post-verdict motions filed prior to sentencing. Fletcher II, 896 A.2d at 521.¹¹ This Court also ruled that even if the claim had not been waived, no relief was due because Appellant failed to establish prejudice.¹² Fletcher II, 896 A.2d at 522-23. This Court remanded the matter so that the PCRA court could address any unresolved matters. Fletcher II, 896 A.2d at 523.

On remand, Judge Younge held, based on the decision in Fletcher II and his review of the record, that nineteen of Appellant's claims had either been waived or previously litigated. PCRA Court's Opinion, 1/29/08, 5-6.¹³ Judge Younge also determined that he had no legal authority to rule on Appellant's claim that this Court failed, on direct appeal, to conduct an appropriate proportionality review of the death sentence imposed on Appellant. PCRA Court's Opinion, 1/29/08, 6. The instant appeal followed.

Discussion

The PCRA provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences. 42 Pa.C.S. § 9542. "A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310, 320 (2007). One of these circumstances is ineffective assistance of counsel. 42 Pa.C.S § 9543(a)(2)(ii) (the PCRA provides relief to those individuals whose convictions or sentences "resulted from ... ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place"). To obtain relief under this provision, a defendant must plead and prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) counsel's actions resulted in prejudice to petitioner. Commonwealth v. Rodney Collins, 598 Pa. 397, 957 A.2d 237 (2008); Commonwealth v. Charles Pierce, 515 Pa. 153, 527 A.2d 973 (1987).¹⁴ "A chosen strategy will not be found to have lacked a reasonable basis unless it is proven `that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.'" Commonwealth v. Rasheed Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable...