Com. v. Ford

• Citation: 809 A.2d 325,570 Pa. 378
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kenneth FORD, Appellant.
• Decision Date: 25 October 2002
• Court: United States State Supreme Court of Pennsylvania

809 A.2d 325

570 Pa. 378

COMMONWEALTH of Pennsylvania, Appellee v. Kenneth FORD, Appellant.

Supreme Court of Pennsylvania.

Submitted August 17, 2000.

Decided October 25, 2002.

James Milton Anderson, Billy Horatio Nolas, Philadelphia, for appellant Kenneth Ford.

Catherine Marshall, Philadelphia, for appellee, Com. of PA.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NIGRO.

Appellant Kenneth Ford appeals from the order of the Philadelphia County Court of Common Pleas denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq. We agree with Appellant that he is entitled to a new penalty phase hearing and therefore, we reverse.

On July 31, 1989, Celeste Sharpe and Renee Mitchell were found stabbed to death in the rear room of a candy store owned by Ms. Sharpe. Ms. Sharpe's bra had been ripped off and her skirt was pulled up above her waist. Ms. Mitchell was also found naked from the waist down, with her underwear ripped from her body. In the store, the cash register drawer was open and loose change was strewn on the floor. While the police were investigating the scene of the crime, Appellant approached the police, identified himself as Kenneth Jones, and stated that he knew who killed the two victims. Initially, he told an officer that he was in Ms. Sharpe's store and witnessed the murders. Shortly thereafter, he changed his story and told the officer that he watched the murders from across the street. Appellant then requested that a detective accompany him down an isolated street where the two talked. At this time, Appellant appeared to become agitated about the deaths of the two victims and the detective attempted to calm him down by patting him near the waist. When the detective put his hand on Appellant, he felt a hard object. He reached under Appellant's clothing and removed a ten-inch Bowie knife from his waistband. Appellant pulled up his sweater to wipe his forehead and revealed a blood stain on his T-shirt. The detective then asked Appellant to go to the police station to further explain to the police what he saw. Appellant acquiesced and stated that he would do anything to help catch the people who killed the two women. At the police station, Appellant was handcuffed to a chair and interviewed by another detective. This detective saw blood on the zipper area of Appellant's pants and on his sweater. He asked Appellant to remove his clothing. When Appellant took off his two bloodstained shirts, he revealed a cut on his chest. Appellant also removed his pants and swim trunks, both of which had blood stains on them. After Appellant was given his Miranda warnings, he claimed to have been playing "craps" during the murders and that he had won a large amount of money doing so. He also claimed that he had received the chest abrasion during a fight with two men and that an unidentified man had given him the Bowie knife. Appellant's fingerprints, his knife and a victim's blood type subsequently linked Appellant to the killings. Appellant was arrested and charged with murder and related offenses.

Following a jury trial, Appellant was found guilty of two counts of murder of the first degree, two counts of burglary, and one count each of robbery and possession of an instrument of crime. After a sentencing hearing, the jury found two aggravating circumstances¹ and no mitigating circumstances and accordingly, sentenced Appellant to death. On March 9, 1992, the trial court formally imposed the sentence of death on each of the two murder convictions.² On April 3, 1992, Appellant filed a direct appeal to this Court and new counsel was appointed to represent Appellant on his appeal. On November 22, 1994, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994)

.

Appellant filed a pro se PCRA petition on July 23, 1996. New counsel was appointed to represent Appellant and on April 7, 1997, an Amended Petition alleging the availability of after-discovered exculpatory evidence and ineffective assistance of appellate counsel was filed. On July 9, 1997, the Commonwealth filed a motion to dismiss Appellant's Amended Petition. The following day, Appellant, represented by Mr. Lee and Billy Nolas of the Center for Legal Education, Advocacy and Defense Assistance (CLEADA), filed a Supplemental Petition and on September 8, 1997, filed a Supplemental Petition for Habeas Corpus Relief and for Statutory Post-Conviction Relief Under the Post-Conviction Relief Act. Following an evidentiary hearing, the PCRA court denied Appellant any relief. Appellant then filed the instant appeal.

Appellant raises numerous issues in his brief to this Court. The Commonwealth argues, however, that many of Appellant's claims have either been waived or previously litigated. We agree.

To be eligible for relief under the PCRA, a petitioner must establish that his allegations have not been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). An issue is deemed finally litigated for purposes of the PCRA if the "highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been previously litigated, a petitioner must also demonstrate that those allegations have not been waived. An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

Here, Appellant claims that the prosecutor engaged in misconduct by: stating during closing arguments that if the walls and the floor could talk, they would tell the jury that Appellant committed the crime; withholding Commonwealth witness Dennis Sims Africa's identity until the day before he testified; and attempting to amend the aggravating circumstances during trial. He also claims that District Attorney Lynne Abraham's prosecution of his PCRA case, when she had been the trial judge who presided over his trial, violated his due process rights and that there was insufficient evidence to support his burglary convictions. These claims were all raised and disposed of on Appellant's direct appeal to this Court, see Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433, 436-442 (1994),

and have therefore been previously litigated for purposes of the PCRA.³ Accordingly, these claims are not reviewable. See 42 Pa.C.S. § 9543(a)(3).

Appellant also raises a number of claims of trial court and constitutional error and claims of prosecutorial misconduct that have been waived. Specifically, Appellant contends that the prosecutor engaged in misconduct by: soliciting highly prejudicial comments from Commonwealth witness Daisy Fisher; attempting to deceive the jury as to whether Commonwealth witness Paulette Riddick had an arrangement with the prosecution; improperly alluding to Appellant's criminal record by soliciting testimony that brought out the fact that Appellant's fingerprints were already on file with the police prior to his arrest for the murders; improperly vouching for the credibility of one of the detectives who worked on the case; telling the jury that there was additional evidence that the Commonwealth had not brought forth; and knowingly presenting perjured testimony to the jury. He also claims that the perjury of Commonwealth witness Dennis Sims Africa constitutes after-discovered evidence that entitles him to relief; that his right to confront witnesses was violated by the trial court's restrictions on cross-examination; that his conviction and death sentence were the products of racial discrimination; that the trial court's instructions on mitigating evidence were unconstitutional; that his rights were violated by Mr. Justice Castille's failure to recuse himself from hearing Appellant's direct appeal to this Court; that the trial court erred in failing to advise the jury regarding the meaning of a life sentence under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); that the trial court's instructions on impeachment and the specific intent necessary for first-degree murder were misleading; that the trial court erred in allowing various witnesses to speculate about a sexual assault when the forensic evidence did not support such speculation; that his due process rights were violated when the Commonwealth was allowed to have unqualified experts testify concerning sexual assault; that the trial court erred in permitting the medical examiner's testimony that the victims were defending against a sexual assault when there was no scientific basis for this testimony; that the trial court erred when it death qualified every member of the jury, but failed to life qualify them; that the execution of an innocent man would violate the constitution; and that the trial court's burglary instruction was flawed and thus constituted an unconstitutional ex post facto broadening of the burglary statute. Appellant could have raised each of these claims of trial error in his direct appeal to this Court but failed to do so. Accordingly, these claims are waived under the PCRA and therefore, can offer Appellant no basis for relief.⁴ Appellant does, however, raise two claims of ineffective assistance of counsel at his penalty phase that are properly developed in accordance with the standard governing such claims. Consequently, these claims are reviewable.⁵

Appellant essentially argues that trial counsel was ineffective for failing to investigate and present sufficient evidence of mitigation, including evidence of Appellant's history of abuse and his mental illness and dysfunction, at the penalty phase pursuant to 42 Pa.C.S. § 9711(e),⁶ and that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in...