Com. v. Jacobs

• Decision Date: 26 March 1999
• Citation: 556 Pa. 138,727 A.2d 545
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Daniel JACOBS, Appellant.
• Court: Pennsylvania Supreme Court

556 Pa. 138

727 A.2d 545

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

Supreme Court of Pennsylvania.

Submitted May 11, 1998.

Decided March 26, 1999.

Reargument Denied May 27, 1999.

Robert Brett Dunham, Philadelphia, for D. Jacobs.

Thomas Kelley for Com.

Robert A. Graci, Harrisburg, for Office of Atty. Gen.

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

OPINION

ZAPPALA, Justice.

This is a direct appeal from the order of the Bucks County Common Pleas Court denying Appellant, Daniel Jacobs's petition under the Post Conviction Relief Act¹ (PCRA) in a capital case.² For the reasons that follow, we affirm.

Appellant was convicted of two counts of first degree murder for the deaths of Tammy Mock and Holly Jacobs, the girlfriend and daughter of Appellant, respectively. Following the penalty phase of his trial, Appellant was sentenced to death for the murder of Tammy Mock and life imprisonment for the murder of Holly Jacobs. This Court affirmed the judgment of sentence in Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786 (1994), which sets forth a more detailed recitation of the factual history.

On January 13, 1997, Appellant filed a pro se PCRA petition. Following the appointment of counsel, an amended petition was filed. The PCRA court conducted hearings at which Appellant was permitted to orally amend his PCRA petition to include additional issues. Following a hearing, the court denied Appellant's petition and this appeal followed.³

Appellant raises 15 issues in his appeal. Most of these issues were not raised in his original PCRA petition, counsel's amended petition, or the oral amendments made to his petition before the PCRA court. Because we no longer apply relaxed waiver in PCRA cases, Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), these issues are waived. However, because many of these claims have been raised in terms of PCRA counsel's ineffectiveness for failing to raise such issues, they fall within the purview of this court's examination. See Id. 554 Pa. at 60-61, 720 A.2d at 708 (the relief available to an appellant for a claim that PCRA counsel's judgment was exercised in a legally ineffective manner is an evaluation of the underlying claims prior counsel has foregone). We now turn to the issues raised by Appellant on appeal.⁴ Appellant asserts several claims regarding trial counsel's ineffectiveness that were brought before the PCRA court. With respect to claims of ineffective assistance of trial counsel, Appellant is required to establish that the 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. Commonwealth v. Collins, 546 Pa. 616, 619, 687 A.2d 1112, 1113 (1996); 42 Pa.C.S. § 9543(a)(2)(ii). The law in Pennsylvania presumes counsel to be effective. Commonwealth v. Cross, 535 Pa. 38, 634 A.2d 173 (1993); Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987).

First, Appellant maintains that trial counsel was ineffective in failing to ensure through voir dire that he would be tried by a fair and impartial jury specifically, where, as here, trial counsel failed to request a change of venue despite highly prejudicial pretrial publicity.⁵

The PCRA court rejected this assertion, noting that in the course of voir dire the jurors were specifically questioned about their knowledge of the case, their exposure to publicity about the case and whether they had formed any opinions about Appellant's guilt or innocence. Given this thorough questioning, the PCRA court concluded that counsel was not ineffective in failing to request a change of venue.

Our review of the matter reveals that the record supports the PCRA court's determination. Both the prosecutor and trial counsel asked the potential jurors whether they had heard or read anything about the case. N.T. September 14, 1992 at 10-11; 33. Some jurors stated that they had and they were further questioned about whether their ability to decide the case would be affected. Id. at 33-47. Again during individual voir dire, jurors were asked about their exposure to pre-trial publicity and challenges for cause were made. Each challenge was ruled on by the trial judge based on the jurors' individual responses.

It is the trial judge who must interpret the answers and demeanor of all potential jurors to evaluate their ability and willingness to render a fair verdict. Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989). There is no evidence in the record or allegation suggesting that the trial judge abused his discretion in this regard.

As any potential bias on the part of jurors relating to their exposure to pre-trial publicity was sufficiently dealt with during voir dire, there was no basis for the trial court to grant a change of venue. Accordingly, trial counsel cannot be deemed ineffective for failing to seek such relief. See Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991) (counsel cannot be ineffective for failing to assert a meritless claim).

Next, Appellant maintains that trial counsel was ineffective in failing to adequately investigate and present evidence supporting a diminished capacity defense. The PCRA court rejected this assertion as the record clearly revealed that trial counsel pursued such a defense on behalf of Appellant.

Specifically, trial counsel testified at the PCRA hearing regarding his efforts in this regard. He stated that initially when he suggested to Appellant that a psychiatric evaluation should be conducted, Appellant rejected the idea claiming his sanity. N.T. May 29, 1997 at 29-30. Trial counsel stated that he was able to convince Appellant to submit to a psychiatric evaluation and that he arranged for such evaluation to be performed. Following this examination, trial counsel was contacted by the examining psychiatrist and told that, in his opinion, Appellant was sane and knew what he was doing at the time of the alleged crimes. Counsel, therefore, told the psychiatrist not to issue a report and he was not called to testify at trial. Id. at 31.

Nevertheless, consistent with Appellant's trial testimony, trial counsel pursued a diminished capacity defense in regards to the killing of Tammy Mock. Appellant testified at trial that he was not responsible for Holly Jacobs's death. He stated that when he handed Holly Jacobs to Tammy Mock, who was in the bathtub, Mock drowned Holly. See Commonwealth v. Jacobs, 536 Pa. at 409, 639 A.2d at 790. Appellant testified that after this incident occurred, he "lost it" and killed Tammy Mock. Given this admission, trial counsel argued that Appellant was incapable of forming a specific intent to kill given his mental state at the time of the killing.

Based on the results of the psychiatric evaluation, and given Appellant's trial testimony, it is clear that trial counsel did investigate and pursue a diminished capacity defense on behalf of Appellant to the best of his ability. Accordingly, as trial counsel had a reasonable basis for proceeding as he did, he cannot be deemed ineffective.

Appellant next claims that trial counsel was ineffective in failing to discover and present evidence that Appellant's mother, Delois Jacobs, had a long history of alcoholism and was intoxicated at the time Appellant allegedly confessed to her.

Appellant's mother gave a statement to police prior to Appellant's trial wherein she stated that Appellant telephoned her shortly after the crimes were committed and admitted to her that he had killed both Tammy Mock and Holly Jacobs. Later, at the preliminary hearing, she gave substantially the same testimony. At trial, however, she testified that Appellant admitted killing Tammy Mock but that she was not sure what Appellant said regarding the baby, Holly Jacobs. She testified that she was upset at the time of the conversation and may not have accurately understood what Appellant said regarding the death of the baby.

Appellant argues that counsel should have cross-examined his mother regarding her alcoholism and the fact that she may have been drunk at the time of her conversation with Appellant. The PCRA court rejected this argument noting, first, that there was no evidence that Appellant's mother was intoxicated at the time of her telephone conversation with Appellant.⁶ Moreover, trial counsel testified that because the testimony Appellant's mother gave at trial was consistent with Appellant's own testimony, it was important, from Appellant's point of view, that her current recollection of the telephone conversation be viewed as accurate by the jury. Thus, he did not feel it would be wise to attempt to undermine her current recollection by cross-examining her regarding her alcoholism.⁷ N.T. May 29, 1997 at 40.

Thus, because trial counsel had a reasonable basis for proceeding as he did, he was not ineffective.

Next, Appellant contends that trial counsel was ineffective at the penalty phase for failing to request the court to instruct the jury that if Appellant were given a life sentence, it would mean life without the possibility of parole. The PCRA court concluded that trial counsel could not be deemed ineffective for failing to request a charge based upon Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), since Appellant's future dangerousness was not at issue. We agree.

A review of the record reveals that the Commonwealth did not raise Appellant's future dangerousness before the jury. Thus, trial counsel was not ineffective for failing to request a Simmons instruction.⁸ The remainder of the claims raised by Appellant were not asserted before the PCRA court. Accordingly, they are waived. Nevertheless, because a number of these claims allege PCRA counsel's ineffectiveness in failing to raise them, we will review...