Com. v. Harris

• Decision Date: 23 June 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Johnny Ray HARRIS, Appellant.
• Court: Pennsylvania Supreme Court

852 A.2d 1168

578 Pa. 377

COMMONWEALTH of Pennsylvania, Appellee, v. Johnny Ray HARRIS, Appellant.

Supreme Court of Pennsylvania.

Submitted October 7, 2003.

Decided June 23, 2004.

Jules Epstein, Esq., for Johnny Ray Harris.

Hugh J. Burns, Esq., Amy Zapp, Esq., Philadelphia, for the Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice NIGRO.

Appellant Johnny Ray Harris appeals from that part of the order of the Court of Common Pleas of Philadelphia County denying his claims related to the guilt phase of his trial in his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we affirm.

On August 3, 1992, at approximately 10:00 p.m., Appellant and Ahmeen Mustafa arrived at R's Variety Store in Philadelphia. The owner of the store, Owen Edwards, and two of his employees, Ronald Caison and Steven Parrish, were preparing to leave work when Appellant and Mustafa entered the store. Without warning, Appellant shot Edwards with a .357 caliber revolver, and Edwards collapsed. Appellant then fired five more shots at Edwards, killing him. After Appellant spit on Edwards, he and Mustafa went through Edwards' front pockets to retrieve cash. The men fled, and Caison, who had managed to escape from the line of fire, called 911.

Following a jury trial, Appellant was found guilty of first-degree murder, robbery, criminal conspiracy, two counts of recklessly endangering another person, and possessing an instrument of crime.¹ At the penalty hearing, the jury determined that the one aggravating factor it found, that Appellant committed the killing in the perpetration of a felony,² outweighed the one mitigating factor it also found, that Appellant had no significant history of criminal convictions.³ Accordingly, the jury returned a verdict of death.^{4 5} After denying post-sentence motions, the trial court formally imposed the death sentence against Appellant.

Appellant obtained new counsel and filed a direct appeal to this Court, which affirmed Appellant's judgment of sentence on November 20, 1997. Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441 (1997),cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998). On December 11, 1998, Appellant filed a pro se PCRA petition, alleging ineffective assistance of counsel during both the guilt and penalty phases of his trial. After counsel was appointed, Appellant filed an amended petition on October 21, 1999, and supplements to the amended petition on November 23, 1999 and March 10, 2000.

On October 25, 2000, the PCRA court entered an order granting an evidentiary hearing on Appellant's claims that counsel had been ineffective during the penalty phase, but denying relief on the guilt-phase claims.⁶ This timely appeal followed.⁷

In his brief to this Court, Appellant first contests a ruling made by the trial court precluding Appellant's counsel from questioning Caison about information contained in certain reports regarding his alleged history of mental illness.⁸ Apparently, Appellant's counsel used certain criminal and mental health records in Appellant's and Mustafa's first and second trials in an effort to impeach Caison with respect to his ability to accurately perceive, recall, and communicate the events of the night of the murder. See N.T., 11/30/93, at 64. The Commonwealth, in order to prevent Appellant's counsel from using these records during the instant trial, presented a motion in limine requesting the court to preclude Appellant's counsel from cross-examining Caison with information contained in those records. See id. at 57-58, 63-67. The court granted the Commonwealth's motion, seemingly on the grounds that such information was irrelevant and/or hearsay. Id. at 63.

Appellant now argues to this Court that the trial court's ruling deprived him of his Sixth Amendment right to confront Caison as an adverse witness. However, given that this claim is one of straight trial court error, and that Appellant failed to raise this issue on direct appeal, it has been waived.⁹¹⁰See 42 Pa.C.S. § 9544(b) ("an issue is 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"); Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999) (finding that post-conviction relief is not available to the extent that the appellant asserted general claims of trial error that were not preserved at trial and raised on direct appeal).

Inside this waived claim regarding the trial court's ruling, Appellant also apparently attempts to advance a claim of trial counsel's ineffectiveness as it relates to the ruling. Appellant then proceeds to raise additional claims that trial counsel was ineffective for: (1) committing further errors relating to the testimony of Ronald Caison; (2) failing to object to the prosecution's use of inadmissible "habit" evidence; and (3) entering into an erroneous stipulation before the jury. Appellant also asserts at the end of his brief that direct appellate counsel was ineffective for failing to raise the above claims.

In Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003), this Court explained how we had recently clarified the requirements for preserving a PCRA claim challenging the effectiveness of counsel in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, (2003):

[We explained in McGill that] [w]hen a court is faced with a "layered" claim of ineffective assistance of counsel, the only viable ineffectiveness claim is that related to the most recent counsel, appellate counsel. See McGill at 1022. In order to preserve a claim of ineffectiveness, a petitioner must "plead, in his PCRA petition," that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Id. Additionally, a petitioner must "present argument on, i.e. develop each prong of the [ineffectiveness] test" as to appellate counsel's deficient representation. Id. "Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review...." Id. The opinion in McGill then elaborated on how a petitioner must present his claim of layered ineffectiveness. We explained that consistent with Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001) a petitioner must prove the three prongs of appellate counsel's ineffectiveness. [McGill] at 1022-23. The first prong of the ineffectiveness analysis as to appellate counsel's conduct— arguable merit—is best understood as a "nested" argument. In essence, to demonstrate that a layered claim of appellate counsel's ineffectiveness has arguable merit, the petitioner is required to set forth all three prongs of the Pierce test as to trial counsel's action or inaction. Id. If the petitioner does not satisfy any of the three prongs as to trial counsel's ineffectiveness, he will have failed to establish an ineffectiveness claim, since a claim of appellate counsel ineffectiveness is merely a derivative claim related to trial counsel's ineffectiveness. Id. If, however, the arguable merit prong of appellate counsel's ineffectiveness is established, i.e., the petitioner has established trial counsel's ineffectiveness, the inquiry proceeds to the remaining two prongs of the Pierce test as it relates to appellate counsel's ineffectiveness. Id. at 1023-24.

Rush, 838 A.2d at 656 (emphasis in original).

Thus, pursuant to McGill, we must determine as a threshold matter whether Appellant has preserved his claims. First, Appellant has sufficiently pled his ineffectiveness claims given that he has, as noted above, asserted that appellate counsel was ineffective for failing to raise his claims regarding trial counsel's ineffectiveness. See id. As for Appellant's presentation of his argument as it relates to appellate counsel, Appellant has at least made reference in his PCRA petition to all three prongs of the Pierce test as it relates to his appellate counsel. PCRA Pet., at 20-21. However, Appellant's brief to this Court fails to develop any meaningful argument on the third prong of the Pierce test, i.e., how appellate counsel's representation prejudiced Appellant. While such pleading deficiencies may be cured with a remand, see McGill, 832 A.2d at 1024

("a remand to the PCRA court may be appropriate for cases currently pending in the appellate courts where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review"), we have made clear that such a remand is not necessary where the petitioner "has not carried his Pierce burden in relation to the underlying claim of trial counsel's ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim [with respect to appellate counsel], the petitioner's claim would not entitle him to relief." Rush, 838 A.2d at 657-58. Given our determination that Appellant has failed to meet his burden of establishing that trial counsel was ineffective, as discussed below, no remand is warranted here.

The law presumes that counsel has rendered effective assistance. Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341, 343 (2000). Therefore, to succeed on a claim that counsel was ineffective, an appellant must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for the act or omission in question; and (3) he suffered prejudice as a result of counsel's deficient performance; i.e., there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Trial counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Smith, 539 Pa. 128, 650 A.2d 863, 866 (1994). In addition, where an appellant...