Com. v. Gibson

• Decision Date: 24 July 2008
• Docket Number: No. 331 CAP.,331 CAP.
• Citation: 951 A.2d 1110
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ronald GIBSON, Appellant.
• Court: Pennsylvania Supreme Court

951 A.2d 1110

COMMONWEALTH of Pennsylvania, Appellee v. Ronald GIBSON, Appellant.

No. 331 CAP.

Supreme Court of Pennsylvania.

Submitted June 26, 2002.

Decided July 24, 2008.

James H. Moreno, Esq., Defender Association of Philadelphia, Philadelphia, for Ronald Gibson.

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

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

OPINION

Justice SAYLOR.¹

After remand in this capital post-conviction appeal, we address the appellant's allegations of trial court error, prosecutorial misconduct, and ineffective assistance of counsel.

On December 24, 1990, Appellant and two companions, Gregory Tancemore and David Green, drove to a Philadelphia bar known as Woody's Playhouse, where approximately thirty other patrons were present. Appellant entered a restroom at the rear of the establishment, where he confronted an off-duty bouncer, pointing a .45 caliber semi-automatic handgun at his stomach. A struggle ensued, and Tancemore fired his 9 millimeter semi-automatic handgun into the ceiling as an apparent warning. Appellant and Tancemore fired more shots while fleeing from the bar, resulting in fatal injuries to the victims, Vernae Nixon and off-duty police officer Frederick Dukes. Tancemore drove away with Green and picked up Appellant, who had been running in a different direction, a few blocks away.

Two days later, a barmaid and the off-duty bouncer identified Appellant from photographic arrays, and Appellant was arrested that afternoon.² Appellant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and gave a statement to detectives. At first, Appellant admitted that he had been present at the scene of the killings, but he denied firing any shots. Rather, he indicated that Tancemore carried both the 9 millimeter and .45 caliber handguns and had given him a .380 caliber pistol as the two entered the bar. He also stated that Tancemore told him to follow the bouncer, whom Tancemore believed was selling cocaine, to the restroom and detain him there at gunpoint. Appellant explained that the struggle began when the bouncer saw the handgun and continued until Tancemore began shooting from the front of the bar. Appellant indicated that, when he reached the front of the bar, Tancemore told him to "get the money" and that Tancemore had fired all of the shots.

During a break in the interview, however, the detectives questioning Appellant learned that a .45 caliber handgun had been seized from Green's apartment and that Green had given a statement, claiming that Appellant had hidden it there. When confronted with this information, Appellant admitted that the .45 caliber handgun was his, that he had brought the gun to the bar, and that he had concealed the gun within Green's apartment. Appellant also stated that, after reaching the front of the bar, he saw Officer Dukes draw his weapon, and that he fired three shots at the officer before fleeing the scene. Based upon these statements, witness interviews, and physical evidence, Appellant was charged with two counts of first-degree murder, see 18 Pa.C.S. § 2502(a), two counts of criminal conspiracy, see 18 Pa. C.S. § 903, and one count of robbery, see 18 Pa.C.S. § 3701.

Initially, Appellant was represented by appointed counsel, Thomas Ciccone, Esquire, who appeared at Appellant's preliminary hearing and arraignment. Apparently dissatisfied with this representation, however, Appellant retained Oscar Gaskins, Esquire, to represent him shortly before trial was scheduled to commence. The trial court initially directed Attorney Ciccone to be present and cooperate with Appellant's new attorney throughout the course of the proceedings. Subsequently, during suppression proceedings, the prosecutor expressed a concern regarding the eleventh-hour substitution of counsel and requested that the trial court conduct a brief colloquy with Appellant. Appellant indicated that he was satisfied with the representation of Attorney Gaskins, and that he was ready to proceed with the joint representation. See N.T. September 24, 1991, at 6.

Individual voir dire commenced immediately upon the denial of suppression. At the outset, the prosecutor expressed a concern that Attorney Ciccone was not present, in violation of the court's order. Attorney Gaskins stated as follows:

I don't have any problem with your order or with Mr. Ciccone. The problem is that the defendant is satisfied with my representation.

* * *

I don't see any necessity of continuing to march him up and ask him questions.

N.T., September 26, 1991, at 2-3. Thereafter, trial proceeded with Attorney Gaskins representing Appellant, but with Attorney Ciccone absent.

In its case in chief, the Commonwealth presented the testimony of several eyewitnesses, including the barmaid and off-duty bouncer, who described the events that occurred on the night of the murders and positively identified Appellant as a shooter. The bouncer also identified the weapon that Appellant had in his possession as a .45 caliber handgun. Several police officers and detectives testified concerning their roles in collecting evidence from the scene and the circumstances surrounding Appellant's apprehension and questioning. Further, a ballistics expert described his tests of the bullets and cartridge casings recovered from the scene of the killings, as well as the weapons involved, concluding with his opinion that a bullet recovered from the body of Officer Dukes was a .45 caliber bullet fired from the handgun recovered from Green's apartment. The medical examiner explained his findings from the post-mortem examinations of the victims. Finally, the Commonwealth introduced Appellant's statements implicating himself in the crimes.

The defense countered by contesting the identification of Appellant by the Commonwealth's witnesses and challenging Appellant's ownership of the murder weapon. The defense also presented testimony that Appellant's statements to the detectives had been coerced by physical force, with several witnesses stating that his appearance at his arraignment was consistent with his having been beaten. Appellant testified on his own behalf that he had been drinking with Tancemore and Green prior to the killings; he had no knowledge of a planned robbery; although he carried a .380 caliber handgun into the bar, he did not fire any weapon; Tancemore and Green did the shooting; and the .45 caliber pistol was Green's. Appellant also indicated that the detectives had physically assaulted him to obtain his incriminating statements. Finally, the defense presented several character witnesses who testified to Appellant's reputation for truthfulness.

The jury found Appellant guilty of all charges, and, in the penalty phase, the Commonwealth offered as aggravating circumstances that the killings occurred during the perpetration of a felony, see 42 Pa.C.S. § 9711(d)(6); the defendant knowingly created a grave risk of death to other persons in addition to the victims of the offense, see 42 Pa.C.S. § 9711(d)(7); and the defendant had been convicted of another murder committed either before or at the time of the offenses at issue, see 42 Pa.C.S. § 9711(d)(11). With regard to the murder of Officer Dukes, the Commonwealth additionally argued that the victim was a peace officer killed in the performance of his duties. See 42 Pa.C.S. § 9711(d)(1). In support, the Commonwealth presented no testimony, but, instead, relied upon the record of testimony adduced at the guilt phase, the file reflecting Appellant's convictions in the present matter, and a stipulation from defense counsel that Officer Dukes was in possession of his police identification, badge, and pistol when he was killed.

Appellant offered as mitigating circumstances his lack of a significant history of prior convictions, see 42 Pa.C.S. § 9711(e)(1), his age at the time of the offenses, see 42 Pa.C.S. § 9711(e)(4), and the catch-all mitigator, see 42 Pa.C.S. § 9711(e)(8). To support these factors, Appellant presented several character witnesses, consisting primarily of members of his family and his friends, who testified that: he was twenty-two years old at the time of the murders; he was a good student in high school and attended community college for a time; his father was absent throughout most of his childhood; he was a good father to his own child; he was amenable to discipline from his family members; and the murders were out of character for Appellant. The jury returned sentences of death, finding that the three aggravating circumstances unanimously found—that the killing occurring during a felony, the defendant created a grave risk of death to another person, and the defendant was convicted of another murder—outweighed the sole mitigating circumstance found by any juror—that Appellant had no significant criminal history.

After several delays, Attorney Gaskins was permitted to withdraw from his representation, the trial court appointed substitute counsel to represent Appellant, and post-trial motions were filed. Following several more delays, the trial court conducted a hearing on such motions and, in February 1995, it reimposed Appellant's death sentences, which were affirmed on direct appeal. See Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d 1152 (1997).

In November 1997, Appellant filed a timely pro se petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (the "PCRA"). New counsel was appointed and filed an amended petition, later supplemented with additional claims, raising numerous grounds for relief, which included allegations that: (1) counsel was ineffective for failing to investigate and present mitigation evidence related to Appellant's intoxication at the time of the murders, history of drug and alcohol abuse, and dysfunctional family life at the penalty phase; (2) the Commonwealth...