Com. v. Lark

Decision Date23 July 1997
Citation698 A.2d 43,548 Pa. 441
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Robert LARK, Appellant.
CourtPennsylvania Supreme Court

Thomas C. Zielinski, Peter G. Rossi, Philadelphia, for appellant.

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

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

OPINION OF THE COURT

FLAHERTY, Chief Justice.

This is an appeal from the denial of a PCRA petition in a death penalty case. On June 28, 1985, Lark was convicted of first degree murder, possession of an instrument of crime, terroristic threats, and kidnapping. On April 24, 1986, he was formally sentenced to death on the murder conviction and various terms of imprisonment on the other convictions. He appealed the conviction and the judgment of sentence to this court, and on May 17, 1988, we affirmed. On August 19, 1994, the Governor of Pennsylvania signed the warrant for Lark's execution, and Lark then petitioned for collateral review. On July 21, 1995 the Court of Common Pleas of Philadelphia-Criminal Division (the PCRA court) heard argument to determine "whether or not there is [an] evidentiary hearing necessary on the PCRA petition." N.T. 7/21/95, 2. After argument, the court took the case under advisement and ultimately dismissed the petition without hearing on September 12, 1995. Lark appeals the denial of the PCRA petition.

The facts underlying this case are that in late 1978, Lark robbed Tae Bong Cho while putting a gun to the head of the victim's infant child. He was apprehended shortly after the robbery and was charged with the crime. Approximately two months later, Lark murdered Mr. Cho in order to prevent him from testifying against Lark in the robbery trial. No witness was able to identify the killer, because he wore a ski mask. However, Lark bragged to a number of acquaintances that he had killed "the Korean."

Lark failed to appear for trial on the robbery charge and he was convicted in absentia. Thereafter, Lark repeatedly threatened the prosecutor in the robbery case and detectives investigating the Cho homicide. He was captured on January 9, 1980 after he took a mother and her two small children hostage. While he was barricaded inside the hostage's house, he told police: "I'll kill you all like that [expletive ].... I'll shoot you in the legs."

Following capture, Lark was charged with offenses related to the murder of Mr. Cho, terroristic threats against the prosecutor in the robbery case, and the kidnapping of the woman and her two children. The first trial ended in mistrial as the result of an inadvertent question asked by the trial court, and after a second trial in June, 1985, as stated above, Lark was convicted of murder of the first degree and the other offenses.

In the present collateral proceeding, Lark alleges nineteen separate matters as bases for relief from the conviction and sentence of death. Some of these matters are couched in terms of ineffectiveness of trial counsel; others in terms of error of the trial court.

We recently summarized the requirements for PCRA relief as follows:

To be eligible for PCRA relief, Appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in section 9543(a)(2) and that his issues have not been previously litigated. An issue is deemed finally litigated for purposes of the PCRA if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been finally litigated, Appellant must also demonstrate that those allegations of error have not been waived or that, if waived, either the conditions listed in section 9543(a)(3)(ii) or (iii) are met. 42 Pa.C.S. § 9543(a)(3). An issue is deemed waived "if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, [or] on appeal ..." 42 Pa.C.S. § 9544(b). Finally, Appellant must demonstrate that the failure to litigate the issue prior to, or during trial, or on direct appeal could not have resulted from any reasonable tactical decision of counsel. 42 Pa.C.S. § 9543(a)(4).

Commonwealth v. Banks, 540 Pa. 143, 148-49, 656 A.2d 467, 469-70 (1995) (footnotes omitted). 1

Three of Lark's claims, (numbers 7, 9 and 12) have been previously litigated. 2 Claim 7 is that the trial court erred in admitting the statement of Michael Johnson; claim 12 is that the Commonwealth improperly presented false evidence (the testimony of Michael Johnson); 3 and claim 9 is that prosecution was barred because of double jeopardy. The first two claims were adjudicated on direct appeal to this court; the third was adjudicated on direct appeal to the Superior Court. Since the claims have been previously litigated, they are not, therefore, eligible for review under the PCRA. See 42 Pa.C.S. § 9543(a)(3). Commonwealth v. Lark, 518 Pa. 290, 311-12, 543 A.2d 491, 501 (1988), Commonwealth v. Lark, 330 Pa.Super. 225, 479 A.2d 522 (1984).

Next, three claims are waived (numbers 6, 8, and 11). 4 Nonetheless, it has been this court's custom to address such claims in death penalty cases, Commonwealth v. Banks, 540 Pa. 143, 149 n. 7, 656 A.2d 467, 470 n. 7 (1995). Because all of these matters are raised again, however, in the context of ineffectiveness of counsel claims, we decline to address them here because they will be addressed below in the ineffectiveness context.

Next, Lark alleges ten instances of ineffectiveness of counsel. In Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994) we defined ineffectiveness of counsel as follows: the defendant must show (1) there is merit to the underlying claim; (2) counsel had no reasonable basis for his course of conduct; and (3) there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. 5

The first ineffectiveness claim is that counsel improperly failed to "death qualify and life qualify" the jury and unreasonably consented to the Commonwealth's challenge for cause of jurors who expressed concern about imposing the death sentence.

With respect to the failure to "life qualify" the jury (i.e., the ability of the jury to impose a life sentence in an appropriate case), as we have stated in Commonwealth v. Blount, 538 Pa. 156, 164-65, 647 A.2d 199, 204 (1994), although a court may not refuse to allow life-qualifying questions, there is no requirement that such questions be asked. Here, Lark argues that because there was no reasonable alternative to life qualifying the jury, Lark was "obviously prejudiced." Because life-qualifying questions are not required and because Lark offers no rationale for this claim except that they should have been asked, his argument is insufficient to demonstrate prejudice.

With respect to counsel's failure to death qualify jurors and object to the Commonwealth's challenge for cause jurors who expressed concern about imposing the death sentence, the applicable rule is that whenever a juror's views on capital punishment "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," he is properly excluded from the jury. Commonwealth v. Jasper, 531 Pa. 1, 8, 610 A.2d 949, 952 (1992) citing Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Lark raises objection to the exclusion of six jurors. We have carefully reviewed the record, and find no error either in the questions asked jurors about their willingness to impose the death penalty or in counsel's failure to object to the disqualification of jurors who expressed concern about imposing the death penalty. Of the jurors who Lark claims were wrongly excluded from the jury, one juror expressed a fixed opinion against the death penalty; another stated that making a death penalty decision would be too much of an emotional strain; another said she could not in conscience vote for the death penalty; another that he was nervous in even thinking about imposing the death penalty; another that it would be an emotional strain to consider imposing the death penalty; and another that he was opposed to the death penalty as a matter of principle. It was not error for defense counsel to fail to attempt to rehabilitate these jurors, for it is unlikely that they could have been rehabilitated; it is uncertain whether the court would have even permitted such an attempt, Commonwealth v. Jasper, 531 Pa. at 8-9, 610 A.2d at 953 (1992); and it is also unlikely that the court would have credited any claims of impartiality from these jurors even if rehabilitation had been attempted. There was no ineffectiveness of counsel in this regard. 6

Next, Lark claims that trial counsel was ineffective in failing to object to the admission of evidence which established that Lark carried his gun in the back waistband of his pants. N.T. 7/21/95, p. 17. As stated earlier, the admissibility of this evidence, testimony by one Michael Johnson, has been finally litigated and found to have been properly admitted. Commonwealth v. Lark, 518 Pa. at 311-12, 543 A.2d at 501. Since counsel will not be found ineffective for failing to object to the admission of admissible evidence, the claim is without merit.

Lark's next claim is that counsel was ineffective in failing to call witnesses to testify in Lark's behalf, even though these witnesses would have given exculpatory testimony.

In order to establish ineffectiveness in failing to call witnesses,

[t]he existence and availability of the witness must be shown, as well as counsel's actual awareness of, or duty to know of the witness; the witness' willingness and ability to cooperate and appear on the defendant's behalf; and the necessity for the proposed testimony in order to avoid...

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