Com. v. Howard

• Decision Date: 01 October 1998
• Citation: 553 Pa. 266,719 A.2d 233
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Melvin K. HOWARD, Appellant.
• Court: Pennsylvania Supreme Court

553 Pa. 266

719 A.2d 233

COMMONWEALTH of Pennsylvania, Appellee, v. Melvin K. HOWARD, Appellant.

Supreme Court of Pennsylvania.

Submitted July 1, 1998.

Decided October 1, 1998.

David Rudenstein, Philadelphia, for M. Howard.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Com.

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

OPINION

SAYLOR, Justice.

In this capital case, Appellant, Melvin Howard, appeals from an order denying post-conviction relief in the form of a new penalty phase hearing.

On September 27, 1987, during an altercation involving several men, Howard killed Clarence Woodlock by stabbing him with a knife sixteen times, first in the back, then in the chest using both hands. Howard left the scene of the killing, stating that he was going home, and he subsequently fled to his mother's residence in Georgia, where he was ultimately apprehended. Trial was conducted in September, 1989, and the jury returned verdicts of guilty on the charges of first degree murder, 18 Pa.C.S. § 2502(a), and possessing instruments of crime, 18 Pa.C.S. § 907.

In the penalty phase hearing that followed, the Commonwealth sought to establish the aggravating circumstance of a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). In this regard, the parties stipulated to Howard's 1977 and 1978 New Jersey convictions for "atrocious assault and battery," N.J.S. § 2A:90-1 (repealed), resulting from separate incidents in which Howard stabbed a man in the heart and shot another man with a revolver (both wounds being non-fatal), and to a 1980 Pennsylvania conviction for robbery. In an attempt to establish a mitigating circumstance involving Howard's character, 42 Pa.C.S. § 9711(e)(8), the defense presented testimony from one witness, Jerrold Caughlan, a chaplain assigned to the Philadelphia prison system, with whom Howard had become acquainted while incarcerated. Following deliberations, the jury determined that there was one aggravating circumstance and no mitigating circumstances and, accordingly, returned a sentence of death. See 42 Pa.C.S. § 9711(c)(1)(iv).

Subsequently, the trial court permitted trial counsel to withdraw. Post-verdict counsel was appointed (who also represented Howard on direct appeal), and Howard filed post-sentence motions raising several claims of trial error and ineffective assistance of trial counsel. The trial court conducted a hearing, at which time Howard presented testimony from his mother, his sister and trial counsel. The trial court subsequently denied the post-sentence motions, and this Court affirmed the judgment of sentence on direct appeal. See Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300 (1994)

.

On May 11, 1995, Howard filed a pro se petition under the Post Conviction Relief Act, 42 Pa.C.S. § § 9541-9546 (the "PCRA").¹ The PCRA court appointed counsel, who filed an amended petition on Howard's behalf, as well as a petition seeking the appointment of an expert to conduct a psychological examination. The PCRA court granted such request, and Dr. Allan M. Tepper, a forensic psychologist and attorney, evaluated Howard and prepared a report. Howard then filed a supplemental PCRA petition, which included a request for appointment of a private investigator to collect evidence of potential mitigating circumstances. After entertaining oral argument, the PCRA court denied all outstanding petitions. In this appeal, Howard raises six issues. In his first three claims, Howard asserts that trial counsel was ineffective in the penalty phase: for having failed to present a "mitigation expert"; for having failed to argue mitigation arising from the circumstances of the offense; and for informing the jury that Howard's family was present but would not be called to testify.² In addition, Howard alleges that appellate counsel was ineffective for having failed to properly argue that he was prejudiced by trial counsel's failure to timely request an instruction to the jury that no adverse inference could be drawn from Howard's failure to testify. Finally, Howard claims that the PCRA court erred in failing to grant his request for the appointment of a private investigator and in dismissing his various PCRA petitions without a hearing.

This Court's review of the denial of post-conviction relief is limited to an examination of whether the PCRA court's determination is supported by the evidence of record and whether it is free from legal error. Commonwealth v. Morales, 549 Pa. 400, 408, 701 A.2d 516, 520 (1997) (citing Commonwealth v. Travaglia, 541 Pa. 108, 117 n. 4, 661 A.2d 352, 356 n. 4 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996)). With respect to Howard's claims of ineffective assistance of trial counsel, he is required to establish that each claim has arguable merit; that trial counsel had no reasonable basis for proceeding as he did; and that the alleged ineffectiveness of counsel so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. § 9543(a)(2)(ii); see generally Commonwealth v. Collins, 546 Pa. 616, 619, 687 A.2d 1112, 1113 (1996)

.

Howard first alleges that trial counsel was ineffective for failing to present a mitigation expert at the penalty phase hearing. In connection with this contention, Howard makes a broader suggestion that trial counsel was inadequately prepared in the penalty phase.

Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests. See Commonwealth v. Williams, 537 Pa. 1, 28, 640 A.2d 1251, 1265 (1994)

(citing Commonwealth v. Savage, 529 Pa. 108, 112, 602 A.2d 309, 311 (1992)). Trial counsel will not be deemed ineffective for failing to assert a claim that would not have been beneficial, or for failing to interview or present witnesses whose testimony would not have been helpful. See Williams, 537 Pa. at 29,

640 A.2d at 1265; see also Commonwealth v. McNeil, 506 Pa. 607, 619, 487 A.2d 802, 808 (1985). Nor can a claim of ineffective assistance generally succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. See Commonwealth v. Chester, 526 Pa. 578, 612, 587 A.2d 1367, 1384 (1991),

cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991); see also Commonwealth v. Washington, 549 Pa. 12, 32, 700 A.2d 400, 410 (1997),

cert. denied, ___ U.S. ___, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998). A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. See Commonwealth v. Brown, 544 Pa. 406, 425, 676 A.2d 1178, 1186 (citing Commonwealth v. Pirela, 510 Pa. 43, 59, 507 A.2d 23, 31 (1986)),

cert. denied, ___ U.S. ___, 117 S.Ct. 614 (1996).

In this case, the defense strategy in the penalty phase was to attempt to establish the mitigating circumstance at Section 9711(e)(8) by emphasizing positive aspects of Howard's character through Chaplain Caughlan. The chaplain testified that Howard's conduct in prison was "mature," and that he appeared to be a "steady, stable individual who had a very deep faith." Chaplain Caughlan further stated:

I think in my experience with [Howard], he has been positive. He's helped a lot of young men. I didn't know him before prison. I have no idea of what his past was like.

Holmesburg prison is a place where there's a lot of tension, a lot of noise. There's a lot of — there are people kind of pushing all the time. And it's difficult for people to kind of keep their balance. And I think Melvin not only keeps his own, but he helps other people keep theirs. I don't know, maybe God wants him in prison for that.

Chaplain Caughlan also expressed his belief that Howard would continue to have a positive influence on others in the prison system.³

Howard asserts that such testimony was inadequate and points to Dr. Tepper's report as indicative of the type of evidence that he contends should have been offered. In his report, Dr. Tepper briefly summarized his interview with Howard. The report reflects Howard's description of his own background, including: his upbringing in an intact family in a small town in Georgia; his residence with his mother until approximately age twenty-five; his ultimate residence in Philadelphia in the 1980's; an intermittent work history involving manual labor jobs and the care of properties for one of his sisters; and the death of his father from medical complications associated with alcoholism. Such description did not include any suggestion of physical or emotional abuse or other unusual hardship. Dr. Tepper stated that Howard indicated no relevant history of psychological or psychiatric dysfunction or treatment; Howard did, however, state that he regularly used marijuana from his late teens through the time of his arrest for Woodlock's killing. Dr. Tepper concluded as follows:

Thus, although limited information currently is available regarding this past drug use, it can be stated that at the time of the incident in question, Mr. Howard was exhibiting behavioral patterns often associated with drug dependency. Presently, Mr. Howard is functioning within the Low Average range of intelligence. He displays no signs or symptoms associated with a major mental illness. In addition, he reports no past symptoms suggestive of a past illness of psychotic proportions. Mr. Howard reports leaving school during ninth grade, and does exhibit more limited verbal, problem-solving abilities. In this way, Mr. Howard is less adept at thinking about, analyzing, and working through internal feeling states. When frustrated, he may act or react in a

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