Com. v. Kimball

Decision Date22 January 1999
Citation724 A.2d 326,555 Pa. 299
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Daniel KIMBALL, Appellee.
CourtPennsylvania Supreme Court

Anthony J. Rosini, Sunbury, John P. Muncer, Asst. Dist. Atty., for the Com.

Bruce A. Antkowiak, Greensburg, for Daniel Kimball.



NEWMAN, Justice.

The Commonwealth of Pennsylvania appeals from the Superior Court's Opinion and Order finding the trial counsel of Daniel Kimball (Kimball) ineffective. In reviewing the Superior Court's decision, we are called on to reexamine the plurality opinion in Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995). For the following reasons, we decline to follow the plurality opinion in Buehl, but nevertheless reverse the Order of the Superior Court.


In July of 1988, the police found Rosemary Kleinsmith (the Victim) dead in her apartment. Kimball was arrested and charged with her murder. In statements to police, Kimball admitted that he had caused the Victim's death, but denied that he had intended to kill her. Thus, at trial, the central issue was not the identity of the murderer but his degree of guilt. Elizabeth Beroes, Esquire (trial/defense counsel) of the Northumberland County Office of Special and Conflicts Counsel represented Kimball at trial.

The evidence showed that Kimball had been drinking heavily on the day of the crime. At midnight, he met the Victim, with whom he was friendly. They drank together in a bar until after 1:00 a.m., and then went to the Victim's apartment. Within twenty to thirty minutes, they began fighting. Kimball stated that he struck the Victim karate-style across the throat, which caused her to fall into a wall, resulting in her death.

In contrast, the Commonwealth's forensic pathologist opined that the Victim had died of manual strangulation. The Commonwealth also presented the testimony of Kimball's cell mate, James Adam Shortridge (Shortridge). According to Shortridge, Kimball admitted to killing the Victim by manual strangulation and wrapping a telephone wire around her neck to be certain she was dead. In exchange for his testimony, the Commonwealth promised Shortridge that he could serve his pending prison sentence in a county, instead of a state, facility. Although defense counsel was aware of the agreement the prosecution had with Shortridge, she did not cross-examine him concerning the deal he made with the Commonwealth. However, defense counsel did elicit from Shortridge that he had been convicted of several felonies, that Kimball told him that the Victim kicked him in the groin when they started arguing, and that Kimball had not planned to kill her.

To negate the element of specific intent to kill, trial counsel attempted to present an expert in support of a diminished capacity defense, but the trial court disallowed the expert's testimony. Nonetheless, defense counsel presented the testimony of Kimball's adoptive father, Reverend John Kimball (Reverend Kimball), who stated that Kimball manifested behavioral problems since his infancy, had problems in school and the Navy, had a drinking problem, and has a history of violent and angry behavior.

The jury convicted Kimball of first degree murder. The court sentenced him to life imprisonment. On direct appeal, the Superior Court affirmed the judgment of sentence, and this Court denied Kimball's Petition for Allowance of Appeal.

Kimball then filed a Petition for Relief pursuant to the Post Conviction Relief Act (PCRA)1, asserting, inter alia, that defense counsel's failure to cross-examine Shortridge, a key Commonwealth witness, concerning his deal with the prosecution and counsel's presentation of the damaging testimony of Reverend Kimball constituted ineffective assistance of counsel. The Court of Common Pleas of Northumberland County (PCRA court) held an evidentiary hearing at which Kimball testified on his own behalf and presented the testimony of his trial counsel. After the conclusion of the hearing, the PCRA court denied Kimball relief, reasoning that "[i]t was clear from the overwhelming evidence that there was really no viable defense this Defendant could raise." PCRA Ct. Op., at 6.

On appeal, a sharply divided Superior Court reversed, vacated and remanded for a new trial.2 At the outset, the Superior Court majority held that there is no substantive difference between the prejudice standard for ineffective assistance of counsel under the PCRA and that applicable on direct appeal. Accordingly, the court agreed with the concurring and dissenting opinions in Buehl that the language of Section 9543(a)(2)(ii)3 of the PCRA does not vary the standard set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), relating to ineffectiveness claims on direct appeal. Judge Tamilia agreed with the majority that there is no substantive distinction between the prejudice standard applicable on direct appeal and that of the PCRA, but dissented from the majority's holding that counsel was ineffective. Judge McEwen concurred in the result. Both Judge Hudock and Judge Popovich dissented on the basis that the PCRA renders more stringent the prejudice requirement, but disagreed about whether Kimball met that standard. In contrast to Judge Hudock, Judge Popovich concluded that Kimball failed to establish trial counsel's ineffectiveness.

In Buehl, Justice Montemuro, writing for a plurality of this Court, interpreted Section 9543(a)(2)(ii) as establishing a more stringent prejudice requirement for ineffectiveness claims raised on collateral attack than on direct appeal. According to the Buehl plurality, pursuant to the PCRA, it is insufficient for a petitioner to show that there was a reasonable probability that, but for counsel's error, the outcome of the proceedings may have been different. Instead, in a collateral appeal, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." Buehl, 540 Pa. at 503, 658 A.2d at 776 (citing 42 Pa.C.S. § 9543(a)(2)(ii)).4 Thus, in Buehl, the plurality opinion applied Section 9543(a)(2)(ii) to deny relief to an ineffectiveness claim that may have affected the outcome of the trial, but did not more likely than not render the verdict unreliable. Specifically, trial counsel in Buehl erred in failing to request a cautionary instruction regarding the prosecution's introduction of evidence of other crimes. Although the outcome of the Buehl trial may have been different had counsel requested a cautionary instruction, the Buehl plurality was unable to conclude that, due to the overwhelming evidence of the defendant's guilt, counsel's omission resulted in an unreliable verdict.

In concurring and dissenting opinions, former Chief Justice Nix, Justice Flaherty, now Chief Justice Flaherty, and Justice Cappy asserted that Section 9543(a)(2)(ii) does not create a more stringent standard than the Pierce standard applicable to direct appeals.5 We granted allowance of appeal to determine a petitioner's burden of proof in an ineffectiveness claim raised pursuant to the PCRA and, according to that standard, whether Kimball established his counsel's ineffectiveness. We hold that the PCRA does not impose a more stringent prejudice requirement than that applicable to direct appeals, and we decline to follow the plurality opinion in Buehl. While we hold that the PCRA does not create a more stringent standard for prevailing on an ineffectiveness claim, we nevertheless hold that Kimball failed to demonstrate that his trial counsel was ineffective for failing to cross-examine Shortridge concerning bias or for presenting the testimony of Reverend Kimball.

Ineffectiveness Under the PCRA

In order to understand the evolution of the standard for ineffective assistance of counsel, it is necessary to reexamine this Court's decision in Pierce and the effect that Pierce had on the then-existing standard for evaluating ineffective assistance of counsel claims. This Court in Pierce was presented with the question of whether Pennsylvania's standard for ineffective assistance of counsel claims, as set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), included the prejudice standard described by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The majority in Pierce cited the following language from Strickland:

Convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Pierce, 515 Pa. at 157-58, 527 A.2d at 975 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The Pierce court concluded that Pennsylvania had always required a demonstration of prejudice in order to succeed on an ineffectiveness claim, and that the Strickland test was consonant with Pennsylvania's prejudice standard in Maroney:

The obvious identical textual and policy considerations in Maroney and

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