Com. v. Marshall

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
Citation812 A.2d 539,571 Pa. 289
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Jerome MARSHALL, Appellant.
Decision Date18 December 2002

James S. Bruno, Philadelphia, for Jerome Marshall.

Catherine Marshall, Philadelphia, for Commonwealth.

Robert A. Graci, Harrisburg, for Office of Attorney General.



Justice NIGRO.

In this capital case, Appellant Jerome Marshall appeals from the order of the Court of Common Pleas of Philadelphia County (PCRA Court) dismissing his petition brought pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., without a hearing. For the reasons that follow, we affirm.

On August 29, 1984, Appellant was convicted by a jury of the first-degree murders of Sharon Saunders (a/k/a Sharon Ballard), Myndi McKoy and Karima Saunders. Following a penalty hearing, the jury returned verdicts of death against Appellant in connection with the murders of Myndi McKoy and Karima Saunders and a verdict of life imprisonment in connection with the murder of Sharon Saunders. On direct appeal, this Court affirmed the judgments of sentence imposed for the murders of Myndi McKoy and Sharon Saunders. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). However, the Court vacated the sentence of death imposed for the murder of Karima Saunders and remanded the matter to the Court of Common Pleas for a new penalty hearing. Id. at 575, 568 A.2d at 599. On remand, a jury was impaneled for the sole purpose of fixing Appellant's sentence for the first-degree murder of Karima Saunders. Following a penalty hearing, the jury returned a verdict of death, and Appellant filed a direct appeal to this Court. Upon review, this Court affirmed the sentence of death. Commonwealth v. Marshall, 537 Pa. 336, 643 A.2d 1070 (1994).

On November 16, 1996, Appellant filed a pro se petition pursuant to the PCRA.1 Counsel was subsequently appointed to represent Appellant and an amended PCRA petition was filed on Appellant's behalf on August 1, 1997. On October 24, 1997, Appellant filed a supplemental petition raising additional claims for PCRA relief. The Commonwealth filed responses on January 12, 1998. On February 4, 1998, the PCRA court sent Appellant notice of its intention to dismiss his petition without a hearing. Appellant filed a response to the notice of intention to dismiss on February 23, 1998, and the Commonwealth replied to Appellant's response on March 10, 1998. The PCRA court thereafter dismissed Appellant's PCRA petition by order dated March 13, 1998. Appellant's instant appeal followed.

On appeal to this Court, Appellant raises more than twenty claims for relief. The relaxed waiver rule which this Court applies to direct appeals in death penalty cases does not apply to subsequent capital appeals brought pursuant to the PCRA. Commonwealth v. Albrecht, 554 Pa. 31, 44, 720 A.2d 693, 700 (1998). Thus, in order to establish his eligibility for relief under the PCRA, Appellant must prove by a preponderance of the evidence that his allegations of error have not been waived. 42 Pa.C.S. § 9543(a)(3). An issue raised in a PCRA petition is deemed waived if the petitioner could have raised the issue but failed to do so before trial, at trial, on direct appeal or in a prior state postconviction proceeding. 42 Pa.C.S. § 9544(b).

Here, Appellant raises numerous claims of error that he failed to raise in his direct appeals to this Court. Specifically, Appellant contends that: (1) The Commonwealth used its Peremptory strikes to discriminate against women, African-Americans and persons of Jewish ancestry; (2) The trial court improperly excluded prospective jurors in violation of Appellant's rights to an impartial jury and fair trial; (3) The prosecutor committed misconduct by introducing improper evidence at the guilt phase and making improper closing arguments in violation of Appellant's right to a fair trial; (4) Appellant's rights were violated at the guilt phase of his trial and both penalty phase proceedings when the trial court gave a reasonable doubt instruction to the jury; (5) Appellant's rights were violated by the trial court's erroneous lessening of the burden of proof on the element of corpus delicti; (6) The trial court's instructions after the jury reported a deadlock impermissibly suggested the verdict favored by the court and coerced the jury to return a death verdict with respect to the counts on which they were deadlocked; (7) Appellant is entitled to relief from his death sentence because the penalty phase jury instructions and verdict sheet unconstitutionally indicated that the jury had to unanimously find any mitigating circumstance before it could give effect to that circumstance in its sentencing decision; (8) Appellant was sentenced to death on the basis of an aggravating factor—the witness elimination aggravating factor—that violated due process and the ex post facto clause and failed to channel the sentencer's discretion; (9) Appellant is entitled to relief from his death sentences because of the prosecutor's improper closing argument at the initial penalty phase hearing; (10) The trial court deprived Appellant of a fair and reliable capital sentencing proceeding when it instructed the jury at both penalty trials that it could not consider sympathy in reaching its verdict; (11) Appellant's death sentence must be vacated because the sentencing jury was never instructed that, if sentenced to life, Appellant would be statutorily ineligible for parole; (12) Appellant's death sentence must be vacated because one of the jurors failed to inform the court during voir dire that she had been the victim of crimes of violence and had close relatives who were convicted of murder; (13) The admission of extensive and inflammatory evidence regarding the murders of the two women at the penalty phase retrial, and the prosecutor's repeated references to the details of those murders, deprived Appellant of a fair sentencing proceeding; (14) Appellant is entitled to relief from his death sentence because of the prosecutor's improper closing argument at the penalty phase retrial; (15) The trial court's conduct towards the jury at the second penalty hearing amounted to a directed verdict in favor of the Commonwealth and constituted impermissible comment on Appellant's decision not to testify. Appellant could have raised the foregoing claims in his direct appeals to this Court but failed to do so. Accordingly, they are waived for purposes of the PCRA.2

Petitioner must also prove that his claims have not been previously litigated. See 42 Pa. C.S § 9543(a)(3) (PCRA petitioner must plead and prove that his allegations of error have not been previously litigated in order to be eligible for relief). Appellant claims in his brief to this Court that the PCRA court erred by refusing to conduct an evidentiary hearing regarding his claim that his trial counsel was ineffective for failing to investigate and present evidence that Appellant's mental impairments, in conjunction with the conduct of the police, rendered his confession involuntary. On direct appeal to this Court, Appellant argued that the trial court erred in denying his motion to suppress his confession, because the police psychologically coerced him into making the confession by showing him photos of his victims. Commonwealth v. Marshall, 523 Pa. 556, 565-66, 568 A.2d 590, 595 (1989). Appellant's instant ineffectiveness claim constitutes a veiled attempt to relitigate the same suppression issue that he previously raised on his direct appeal to this Court. Thus, the claim has been previously litigated for purposes of the PCRA, and Appellant is not entitled to relief. See, 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(a)(2) (an issue is previously litigated 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); see also Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 n. 9 (2000)

(noting that generally, an appellant cannot obtain post-conviction review of a claim that was previously litigated on direct appeal by alleging ineffectiveness of counsel and presenting new theories of relief in support of the previously litigated claim) (citations omitted).

In his first claim for relief on appeal to this Court which is not waived or previously litigated, Appellant claims that the PCRA court erred in denying his PCRA petition without holding an evidentiary hearing regarding his claims that his attorneys rendered him ineffective assistance in connection with the penalty phase of his trial in 1984 and his 1990 penalty phase rehearing.3 We disagree.

Initially, counsel is presumed to have rendered effective assistance, and the burden is on the defendant to prove otherwise. Commonwealth v. Baez, 554 Pa. 66, 110-12, 720 A.2d 711, 733 (1998). In order to establish a claim of ineffective assistance of counsel under the PCRA, a defendant must plead and prove the following: (1) that the underlying issue is of arguable merit; (2) that counsel had no reasonable basis designed to effectuate his client's interests for the act or omission in question; and (3) prejudice; i.e., but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). A court may dismiss a PCRA petition without holding a hearing if there are no genuine issues concerning any material fact. Pa.R.Crim.P. 907(1).

In the instant case, Appellant originally told his trial counsel that he did not wish to present any evidence in mitigation at his 1984 penalty phase hearing. However, Appellant changed his mind at the hearing and took the stand to testify in his own defense. Appellant testified that the farthest he got in school was the tenth grade, that his ...

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