Com. v. Gwynn

• Decision Date: 20 March 2008
• Docket Number: No. 398 CAP.,398 CAP.
• Citation: 943 A.2d 940
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Daniel GWYNN, Appellant.
• Court: Pennsylvania Supreme Court

943 A.2d 940

COMMONWEALTH of Pennsylvania, Appellee v. Daniel GWYNN, Appellant.

No. 398 CAP.

Supreme Court of Pennsylvania.

Submitted March 29, 2005.

Decided March 20, 2008.

Scott Frederick Griffith, Esq., for Daniel Gwynn.

Hugh J. Burns, Esq., Amy Zapp, Esq., Allyson Green, for Commonwealth of Pennsylvania.

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

OPINION

Justice EAKIN.

A jury convicted appellant of first degree murder and related charges in the killing of Marsha Smith. Appellant entered Smith's apartment building and attempted to rape her, but Smith's neighbors intervened and forced appellant from the building. He returned to the building later and set it on fire, killing Smith. The other five inhabitants survived. The jury set the penalty at death November 6, 1995. This Court affirmed the conviction and sentence November 23, 1998. See Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143 (1998). The United States Supreme Court denied appellant's petition for writ of certiorari.

Appellant filed a timely pro se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.; counsel was appointed and an amended PCRA petition was filed. The Commonwealth filed a motion to dismiss the amended petition, asserting appellant's issues were previously litigated. Pursuant to Pa.R.Crim.P 907,¹ the PCRA court notified all parties of its intention to dismiss the petition. The court subsequently dismissed the petition without an evidentiary hearing, concluding each of the 16 issues raised therein were either previously litigated or meritless. See PCRA Court Opinion, 2/10/03, at 2 (citing 42 Pa.C.S. §§ 9543(a)(3),² 9544(a)(2)³ (previously litigated claims not reviewable under PCRA)). Appellant filed a timely notice of appeal from the PCRA court's dismissal.

"On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719, 723 (2003) (citing Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). With this standard in mind, we must determine whether the PCRA court properly dismissed appellant's petition without an evidentiary hearing.

In dismissing appellant's claims, the PCRA court relied on Commonwealth v. Pirela, 556 Pa. 32, 726 A.2d 1026 (1999), which held a PCRA petitioner cannot obtain collateral review of claims that were raised and litigated on direct appeal by simply re-labeling them as ineffectiveness claims and presenting revised theories of relief in a PCRA petition. See PCRA Court Opinion, 2/10/03, at 2-3 (citing Pirela, at 1032). Since the PCRA court's decision in this case was filed, however, this Court decided Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005), which addressed the PCRA's preclusion of previously litigated "issues." We concluded the term "issue" as used in §§ 9543(a)(3) and 9544(a)(2)⁴ "refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief." Collins, at 570. Therefore, the relevant inquiry when determining whether a PCRA petitioner is properly asserting a new and distinct issue, rather than simply re-labeling and reasserting a previously litigated one, is whether the ineffectiveness claim constitutes a "discrete legal ground or merely an alternative theory in support of the same underlying issue that was raised on direct appeal." Id. In examining the nature of an ineffectiveness claim, we concluded:

[I]neffectiveness claims are distinct' [sic] from those claims that are raised on direct appeal. The former claims challenge the adequacy of representation rather than the conviction of the defendant. Accordingly, we are persuaded by Appellant's position that a Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under § 9544(a)(2). Ultimately, the claim may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal, but a Sixth Amendment claim raises a distinct issue for purposes of the PCRA and must be treated as such.

Id., at 573. Therefore, courts must treat ineffectiveness claims raised under the PCRA as wholly independent of the underlying claim of error, and must review them under the three-prong ineffectiveness standard announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Collins, at 573. Under Pierce, a PCRA petitioner advancing an ineffectiveness claim must prove: (1) the claim has arguable merit; (2) counsel lacked any reasonable basis for his action or omission; and (3) petitioner was prejudiced by counsel's conduct. Pierce, at 976-77.

Collins was filed after the PCRA court's ruling here; therefore, the court did not commit reversible error in dismissing appellant's issues as previously litigated. We will address appellant's ineffectiveness claims under Pierce to the extent review is possible from the record, and "will remand this matter to the PCRA court for further consideration only if we find that the claims that were considered `previously litigated' by the PCRA court are in need of further elucidation and cannot be evaluated by this [C]ourt." Collins, at 574.

Appellant asserts trial counsel rendered ineffective assistance by failing to investigate and present expert medical testimony establishing his borderline personality disorder and his crack-cocaine addiction and intoxication at the time of the offense. He asserts such evidence would have bolstered his defense of voluntary intoxication and would have established diminished capacity since these factors precluded him from forming the specific intent to kill. See Brief of Appellant, at 7, 22, 25. In addition, appellant asserts appellate counsel was ineffective for failing to investigate and present such evidence, and for failing to raise trial counsel's ineffectiveness in this regard on appeal. See id., at 21, 24, 27.

On direct appeal, appellant asserted trial counsel was ineffective for failing to present expert medical testimony of his crack-cocaine intoxication at the time of the murder as relevant to his diminished capacity defense. We determined this claim failed since appellant failed to articulate "what evidence was available and identify a witness who was willing to offer such [testimony]." Gwynn, at 151 (citing Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 477 (1998); Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994) (when defendant claims expert testimony should have been introduced at trial he must articulate what evidence was available and identify witness willing to offer such [testimony])). Because we addressed the discrete issue of trial counsel's ineffectiveness with regard to expert testimony on the defense of diminished capacity, it is barred as previously litigated.⁵ In addition, appellant's claim that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in this regard on direct appeal is meritless since it was, in fact, raised.

With regard to appellant's claim that trial counsel was ineffective for failing to present evidence of voluntary intoxication, we conclude this claim is meritless. The record establishes trial counsel elicited testimony on cross-examination establishing appellant's frequent cocaine use and addiction. N.T. Trial, 10/31/95, at 71-72, 150-56. Furthermore, counsel introduced appellant's statement to police taken the day of the murder; counsel highlighted appellant's statements that he "smoke[d] crack a lot" and "[got] high every day," and was "real high" on the morning of the fire. N.T. Trial, 11/1/95, at 19-22. Appellant's claim that trial counsel was ineffective for failing to present evidence of voluntary intoxication lacks arguable merit and therefore, it does not satisfy Pierce. For the same reasons, we reject as meritless appellant's claim that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in this regard on appeal.

Appellant next argues counsel rendered ineffective assistance by failing to challenge the constitutionality of his warrantless detention and subsequent confession. We addressed the underlying claim of error on direct appeal and found it lacked merit since "the record reflects appellant's statement occurred following a lawful arrest, and was given consensually following Miranda warnings and in the absence of any flagrant misconduct." Gwynn, at 150.⁶ Appellant fails to establish this claim has arguable merit.

Appellant argues counsel was ineffective for failing to present evidence that his psychiatric state, due to severe crack-cocaine withdrawal symptoms, prevented him from making a voluntary waiver of his Miranda⁷ rights. On direct appeal, appellant argued because he was high on crack-cocaine at the time of his waiver, it was not voluntary. We stated:

In determining the voluntariness of a confession and the waiver of Miranda rights, a court must consider and evaluate the totality of the circumstances attending the confession and the waiver of the rights. A reviewing court is to examine the following in determining the independence of a confession: 1) the voluntariness of the confession, including whether Miranda warnings were given; 2) the temporal proximity of arrest and confession; 3) the presence of intervening circumstances; and 4) the purpose and flagrancy of the official misconduct.... Here, the record reflects that appellant's statement occurred following a lawful arrest, and was given consensually following Miranda warnings and in the absence of any flagrant misconduct.... Appellant's claim is meritless.

Gwynn, at 150 (citations omitted). Despite appellant's previous argument that his intoxication precluded him from making a voluntary Miranda waiver, he now asserts counsel was ineffective for failing to present evidence that his withdrawal symptoms made a voluntary waiver...