Com. v. McCandless

• Decision Date: 06 June 2001
• Citation: 778 A.2d 713
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Thomas McCANDLESS, Appellee.
• Court: Pennsylvania Superior Court

778 A.2d 713

COMMONWEALTH of Pennsylvania, Appellant, v. Thomas McCANDLESS, Appellee.

Superior Court of Pennsylvania.

Argued January 9, 2001.

Filed June 6, 2001.

Reargument Denied August 8, 2001.

Michael Gehring, Assistant District Attorney, Philadelphia, for Com., appellant.

Michael C. Schwartz, Philadelphia, for appellee.

Before: STEVENS, MONTEMURO¹ and BECK, JJ.

BECK, J.

¶ 1 Pursuant to a retrial, the Commonwealth appeals the trial court's pre-trial decision to exclude the preliminary hearing testimony of an unavailable Commonwealth witness. The new trial was awarded to appellee/defendant by the Third Circuit Court of Appeals upon appellee/defendant's petition to the federal court for habeas corpus relief. We conclude that the trial court erred in denying admission of the unavailable witness's testimony. Thus, we vacate and remand.

¶ 2 Thomas McCandless was found guilty of first-degree murder in 1982. The evidence against him included the preliminary hearing testimony of John Barth, whom the trial court deemed unavailable at time of trial. On direct appeal from his judgment of sentence, McCandless claimed that the trial court erred in admitting Barth's preliminary hearing testimony. The basis for the claim was twofold. First, McCandless claimed that the Commonwealth did not establish, as was required, that Barth was unavailable (claim # 1). Second, McCandless claimed that even if unavailability was established, he was not given an adequate opportunity to cross-examine Barth at the preliminary hearing, thus precluding admission of the testimony (claim # 2). Both errors, alleged McCandless, constituted a violation of his rights under the Sixth Amendment to the United States Constitution, specifically, the Confrontation Clause.

¶ 3 McCandless relied on the well-established rule that in order for an absent witness's preliminary hearing testimony to be admissible at trial, 1) the witness must be unavailable despite the Commonwealth's good faith effort to procure him for trial and 2) the defendant must have had a full and fair opportunity to cross-examine the witness at the preliminary hearing. See Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684, 685 (1992)

(relying on Commonwealth v. Mangini, 493 Pa. 203, 425 A.2d 734 (1981)).

¶ 4 This court rejected McCandless's claim and adopted the trial court's assessment of the issue. In its opinion, the trial court found that the Commonwealth made a good faith effort to make Barth available for trial and, further, that McCandless had a full and fair opportunity to cross-examine Barth at the preliminary hearing. In making the latter finding, the court explicitly considered McCandless's claim that he was "prevented from asking [Barth] questions about any agreements or deals he had made with the Commonwealth, any prior statements he had given to the authorities, and any prior convictions for crimes involving dishonesty." Trial Court Opinion, 5/17/85, at 28. The trial court found, upon review of the record, that Barth's statement, deal and criminal history were adequately explored on cross-examination.

¶ 5 Finding no success in this court, McCandless thereafter sought allocatur, but our supreme court denied his request. In September of 1992, Barth committed suicide while in a Philadelphia jail cell. In 1996, McCandless filed a habeas corpus petition in federal district court. Again he challenged the admission of Barth's preliminary hearing testimony, once more asserting claims # 1 and # 2. The district court denied relief, but on appeal, the Third Circuit Court of Appeals ruled that McCandless was entitled to a new trial because it found merit in claim # 1, that Barth was not legally unavailable. McCandless v. Vaughn, 172 F.3d 255, 259 (3d Cir.1999). The federal appeals court held that the Commonwealth did not make a good faith effort to procure Barth's presence at trial, thus the state court finding that Barth was unavailable was flawed. Id. Despite the fact that claim # 2, the issue of "full and fair opportunity," was also before the federal appeals panel, it declined to address it. Its rationale for doing so was based on procedural rules and reflected the limited nature of federal habeas relief.

¶ 6 McCandless, as a prisoner in state custody, was required to establish that he had exhausted his remedies at the state level in order to be entitled to review in the federal court system. 28 U.S.C. § 2254(b). A federal habeas petitioner satisfies the exhaustion requirement when he "fairly presents" his claim to the state's highest court or, failing such a fair presentation, he "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse his ... default." Id. at 259 (citations omitted).

¶ 7 The Third Circuit Court of Appeals held that McCandless clearly exhausted his state remedies with respect to claim # 1. Thus, he was entitled to federal habeas review of that claim and the federal appellate court, in fact, granted him relief on that basis. However, the federal court found that the exhaustion requirement was not established with respect to claim # 2. In analyzing the issue, it ultimately determined that resolution of claim # 2 was unnecessary in any event:

Because we find a Confrontation Clause violation based upon the prosecution's failure to establish Barth's unavailability, we find it unnecessary to address McCandless's additional claim that admission of Barth's testimony violated the Confrontation Clause because he did not have an adequate opportunity to cross-examine Barth at the preliminary hearing. In his brief, McCandless conceded that he did not present this claim to the Pennsylvania Supreme Court and that it is procedurally defaulted. He attempted, however, to excuse this default on the ground that his counsel had been ineffective in failing to raise this claim in his allocatur petition to the Pennsylvania Supreme Court. Because the same counsel had included this argument in McCandless's Superior Court brief, the District Court concluded that the failure to reassert it was a strategic decision and not ineffective assistance of counsel. In rebuttal at oral argument, McCandless alternatively argued that he had indeed "fairly presented" this claim because he had included it in his only state appeal as a matter of right to the Superior Court. McCandless requested this Court to consider whether "exhaustion" requires an applicant to present claims in state discretionary appeals. We are not free to do so. This Court's precedents indicate that habeas petitioners must present their federal claims to the state's highest court.

Id. at 264 n. 6.²

¶ 8 Apparently, the federal appellate court declined to address claim # 2 based on some combination of procedural default and irrelevance, but its ruling was nonetheless clear: it "address[ed] only the issue of whether Barth was constitutionally unavailable." Id. at 264 (emphasis supplied).

¶ 9 The fact that the federal appeals court declined to address claim # 2 is particularly puzzling in light of the fact that Barth had been dead for some four years prior to the filing of the habeas petition and for nearly seven years on the date the court issued its opinion. Of course, we have no way of knowing whether the federal court was aware of Barth's death. In any event, the federal habeas relief granted to McCandless was a new trial and, ultimately, he appeared before the Philadelphia Court of Common Pleas for that purpose. The Commonwealth again sought to use Barth's preliminary hearing testimony and McCandless once more sought to preclude it.

¶ 10 Naturally, Barth's unavailability was not at issue as his death made him undeniably unavailable. Rather, McCandless's motion in limine focused on claim # 2, the full and fair opportunity issue. He asked the trial court to deny admission of Barth's testimony on that basis. The trial court held a hearing on the motion and ultimately ruled that McCandless had not been given a full and fair opportunity to cross-examine Barth. The trial court found that preclusion was warranted because at the time of Barth's cross-examination, McCandless did not have access to Barth's statement to police nor did he have copies of Barth's criminal history or the agreement Barth struck with the Commonwealth in exchange for his testimony.

¶ 11 The Commonwealth appealed from the order granting the motion in limine and the issue is now before us.

¶ 12 The Commonwealth argues that the trial court was without authority to consider claim # 2 as it had already been decided against McCandless by the first trial court and thereafter affirmed by this court on direct appeal. The Commonwealth's position is based on the doctrine of the law of the case. We agree that the doctrine applies here.

¶ 13 "The [law of the case] doctrine refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in earlier phases of the matter." Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995). Recently, in Hutchison v. Luddy, 763 A.2d 826 (Pa.Super.2000), we observed that:

This tenet of the law of the case doctrine has long been expressed with regard to remand situations .... [as] our Supreme Court stated:

A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal... Under any other rule, litigation would never cease, and finality and respect for orderly process of law would be overcome by chaos and contempt.

Id. at 835 (citations omitted).

¶ 14 In this case, the trial court reopened a question (claim # 2) that was already decided by another judge of the same court and affirmed by a higher court. The issue of full and fair opportunity was raised in the court of common pleas, reviewed by that court and decided against...