Com. v. Jones, No. 350 CAP

• Citation: 583 Pa. 130,876 A.2d 380
• Decision Date: 21 June 2005
• Docket Number: No. 360 CAP., No. 350 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James JONES, Appellant.
• Court: United States State Supreme Court of Pennsylvania

876 A.2d 380

583 Pa. 130

COMMONWEALTH of Pennsylvania, Appellee, v. James JONES, Appellant.

Nos. CAP.

Supreme Court of Pennsylvania.

Submitted January 6, 2004.

Decided June 21, 2005.

Michael Coard, Esq., Robert Brett Dunham, Esq., Philadelphia, for James Jones.

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

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

OPINION

Chief Justice CAPPY.

James Jones, Appellant, appeals from an order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons stated herein, we affirm in part and vacate and remand in part.

On June 15, 1981, a jury convicted Appellant of two counts of first degree murder,¹ two counts of arson endangering persons,² and one count of arson endangering property.³ According to the facts of record, the convictions arose from an incident in which Appellant bound, gagged, and burned to death Karen and Diane Williams in the basement of a house in Philadelphia.⁴ Following his conviction, a jury sentenced Appellant to death upon the finding of three aggravating circumstances that outweighed the finding of one mitigating circumstance.⁵

On direct appeal, this court affirmed Appellant's conviction and death sentence. Commonwealth v. Jones, 539 Pa. 222, 651 A.2d 1101 (1994). On October 2, 1995, the United States Supreme Court denied certiorari. Jones v. Pennsylvania, 516 U.S. 835, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995).

Appellant next filed a pro se PCRA petition on October 6, 1995, and counsel was appointed. The Center for Legal Education, Advocacy and Defense Assistance subsequently entered a notice of appearance on Appellant's behalf and filed amended and supplemental petitions. Following an evidentiary hearing, the PCRA court vacated Appellant's death sentence and granted a new penalty phase hearing because the jury found an uncharged aggravating circumstance, 42 Pa.C.S. § 9711(d)(7), and because trial counsel failed to investigate and develop mitigating evidence. All other relief was denied. It is from this order that Appellant now appeals.⁶

In this appeal from the PCRA court's order, Appellant raises seven issues and numerous sub-issues for our review. Initially, we note that this court has jurisdiction over Appellant's petition because we directly review the denial of post conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d). Additionally, this court has jurisdiction to review the denial of Appellant's guilt phase claims even though the PCRA court vacated Appellant's sentence of death. See Commonwealth v. Bryant, 566 Pa. 307, 780 A.2d 646, 648 (2001)

(indicating that review of the PCRA court's decision denying guilt phase relief should precede the imposition of a new sentence by the trial court).

The instant petition is Appellant's first PCRA petition and was filed on October 6, 1995, which was prior to the effective date of the November 1995 amendments to the PCRA. Accordingly, the petition is governed by the previous version of the PCRA. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 37 (2002).

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 are free from legal error. Commonwealth v. AbuJamal, 574 Pa. 724, 833 A.2d 719 (2003) (citing Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001)). In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated defects found in 42 Pa.C.S. § 9543(a)(2) and that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A claim is previously litigated under the PCRA if the highest appellate court in which the petitioner would have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). Further, pursuant to Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), the relaxed waiver rule is no longer applicable to PCRA appeals, and therefore, any claims that have been waived by Appellant are beyond the power of this court to review. Additionally, rather than address Appellant's issues in the order that they were presented for review, we are addressing them in the order that they arose.

Turning to the guilt phase issues, Appellant claims that the Commonwealth exercised its peremptory strikes in a racially and sexually discriminatory manner. Appellant asserts that the PCRA court erred in dismissing this claim without addressing it in its opinion. We agree. See Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 728 (2000)

.

In Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999), we held that when the trial court merely adopted the Commonwealth's brief in support of an issue which required factual or credibility determinations, a remand was warranted. Specifically, we were concerned that such issues could not be resolved by an appellate court on the record before it. Id. at 1181, 1189-90. This case presents a similar situation since, in its opinion, the PCRA court only addressed the claim related to gender discrimination and failed to address Appellant's claim related to racial discrimination. Furthermore, the PCRA court did not conduct an evidentiary hearing on this claim.⁷

Without a full and complete investigation into the record surrounding the alleged violation, it is difficult to conduct meaningful appellate review of the matter. Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1026 (2003). As such, we vacate the portion of the PCRA court's order dismissing Appellant's claim of racial discrimination and remand for the PCRA court to address this issue, including consideration of Appellant's request for an evidentiary hearing on this claim. See Commonwealth v. Uderra, 862 A.2d 74, 87 (Pa.2004)

(setting forth standard for claim of racial discrimination in jury selection that was not preserved at trial).

We next turn to Appellant's layered claim of ineffective assistance of counsel for failure to raise a claim of trial court error. In McGill, 832 A.2d at 1020-26, this court clarified the procedure to be followed in preserving and proving a PCRA claim challenging the effectiveness of all prior counsel in addition to immediate appellate counsel. McGill explicitly stated that "in order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief, he must plead, present, and prove" the ineffectiveness of direct appellate counsel, which necessarily related back to the actions of trial counsel. Id. (emphasis in original). Thus, as with all claims of ineffectiveness, the petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient performance. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). The arguable merit prong of appellate counsel ineffectiveness is grounded in the underlying claim of trial counsel ineffectiveness. In order for the claim related to appellate counsel's conduct to have arguable merit, a petitioner must prove the underlying claim of trial counsel ineffectiveness.

To advance the arguable merit of the underlying claim in appellate briefing, the petitioner must develop all three prongs of the Pierce test as to the ineffectiveness of trial counsel. Id. at 1022. If a petitioner fails to develop any of the three Pierce prongs regarding the underlying issue of trial counsel ineffectiveness, he or she will have failed to advance the arguable merit prong of the claim of appellate counsel's ineffectiveness. Id.; Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003). Likewise, if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim of trial counsel ineffectiveness, he or she will have failed to establish the arguable merit prong related to the claim of appellate counsel's ineffectiveness.

According to McGill, a remand may be necessary to allow the petitioner an opportunity to correct any errors with regard to the pleading and presentation of his or her claim of appellate counsel ineffectiveness. Such a remand is warranted when the petitioner has developed and presented sufficient allegations related to the underlying issue of trial counsel ineffectiveness. Id. A remand of this type may include further review of the claim of trial counsel's ineffectiveness, when a petitioner has raised sufficient allegations related to that claim, but the PCRA court did not adequately review the claim.

Appellant claims that the trial court provided an improper reasonable doubt instruction. Appellant also alleges that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to the language of the jury charge. Accordingly, Appellant has sufficiently pled this claim for our review. McGill, supra.

However, we cannot review this claim for a different reason. The claim Appellant forwards to this court is fundamentally different from the claim raised to the PCRA court. In that court, Appellant raised this claim only as an issue of trial court error.⁸ Thus, Appellant did not give the PCRA court the opportunity to entertain this ineffectiveness claim in the first instance. Therefore, the ineffectiveness claim he presently raises is waived. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Appellant attempts to avoid a...