Com. v. McGill

Decision Date29 September 2003
Citation832 A.2d 1014,574 Pa. 574
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Bernard McGILL, Appellant.
CourtPennsylvania Supreme Court

Scott Frederick Griffith, Ramy I. Djerrassi, Philadelphia, for Bernard McGill, Appellant.

Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, for the Com. of PA, Appellee.




Bernard McGill (McGill) appeals from an Order of the Court of Common Pleas of Philadelphia County (PCRA court) denying his Petition for Post-Conviction Relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth herein, we affirm in part, and vacate and remand in part, the Order of the PCRA court.


On February 10, 1990, Susan Phillips (Phillips) and Karen Forte (Forte) were at the home of Phillips for Bible study. McGill had been a boarder at Phillips' home until the previous week, at which time Phillips asked McGill to move out of her house. McGill arrived at the residence and knocked on the door. Phillips opened the door and McGill informed her that he had returned to get his clothes. Phillips acknowledged the request, closed the door, and proceeded upstairs to retrieve McGill's belongings.

While Phillips and Forte were in the process of bringing McGill's clothes downstairs, they noticed that McGill had entered the house uninvited. Forte attempted to give McGill a bag of clothes, but McGill punched her in the face, causing her to fall to the ground. A violent struggle ensued between Forte and McGill, during which McGill brandished a knife, punched, kicked, and stabbed Forte. McGill then grabbed Forte by the hair and dragged her into the kitchen. Phillips screamed and begged McGill to stop and leave. McGill told Phillips to "[S]hut up [before] I put this knife in your back...." (Notes of Testimony (N.T.) 7/21/92, page 65).

McGill then proceeded to bind the wrists of Forte with cord and pulled down her pantyhose. Forte pleaded with McGill not to rape her; McGill responded by punching and kicking her in the head until she lost consciousness. At some point thereafter, while Forte was still unconscious, McGill severely beat Phillips, who was seventy-two years old at the time. In addition to punching Phillips, McGill repeatedly struck her in the head with a metal file. He struck Phillips with such force that the handle of the file broke off.

When Forte regained consciousness, McGill returned to the room where she was tied up; he accused her of faking. He repeatedly choked, punched, and kicked Forte, complaining that she would not die. McGill then struck Forte over the head with a glass ketchup bottle, causing the bottle to break. Forte pretended to be unconscious in the hope that McGill would believe that she had died. McGill then left the scene. Forte remained still for several minutes in order to ensure that McGill was in fact gone. She then went to the house of a neighbor to call the police. Both victims were taken to a local hospital. Phillips died as a result of her injuries within an hour of reaching the hospital. Original Record, Trial Memorandum, page 1. Forte spent three days in intensive care and another three days in general recovery. While in the hospital, she identified McGill as her assailant from a photographic array.

The police arrested McGill and the Commonwealth charged him with numerous crimes stemming from the above-recounted episode. While in police custody, McGill confessed to the crime, stating that he went to Phillips' house with the intention of stealing money to purchase drugs. He admitted that he punched and struck Phillips in the head with a metal file. He further acknowledged that, after beating the two women, he stole two hundred dollars from the purse of Phillips and spent all the monies on cocaine.

On July 28, 1992, following a jury trial, the jury convicted him of first-degree murder,1 aggravated assault,2 recklessly endangering another person,3 and possession of an instrument of crime.4 During the penalty phase hearing, which occurred the following day, McGill jumped out of a window in the courtroom and was seriously injured. The trial court declared a mistrial because the entire jury had witnessed the auto-defenestration.

On January 23, 1993, after McGill had recovered from his injuries, the trial court empanelled a new penalty phase jury. At the conclusion of the penalty phase hearing, the jury found one aggravating circumstance, that McGill killed Phillips while in the perpetration of a felony,5 and no mitigating circumstances. Accordingly, pursuant to 42 Pa.C.S. § 9711(c)(1)(iv), the trial court set the sentence at death. On March 23, 1993, the court permitted Gerald Ingram, Esquire (trial counsel), to withdraw and appointed new counsel, Jeremy Ibrahim, Esquire (appellate counsel). McGill filed post-verdict motions, alleging, inter alia, ineffective assistance of trial counsel. After an evidentiary hearing, the trial court denied the post-verdict motions and imposed the death sentence. The trial court also sentenced McGill to a consecutive term of ten to twenty years for the aggravated assault and a concurrent term of five to ten years for possession of an instrument of crime. On direct appeal, we affirmed the conviction and the Judgment of Sentence. Commonwealth v. McGill, 545 Pa. 180, 680 A.2d 1131 (1996),cert. denied, 519 U.S. 1152, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997).

On November 5, 1996, McGill filed a pro se PCRA Petition, whereupon the PCRA court appointed Scott Griffith, Esquire, and Ramy Djerassi, Esquire (collectively, PCRA counsel), to represent McGill. On March 24, 1997, the Governor of Pennsylvania issued a warrant of execution for McGill for the week of April 13, 1997. On March 27, 1997, the PCRA court ordered that the execution be stayed pending resolution of the PCRA claims of McGill. PCRA counsel filed an amended Petition on behalf of McGill on September 8, 1997. The Commonwealth subsequently filed a Motion to Dismiss, which the PCRA court decided to grant on January 9, 1998.

On January 16, 1998, the PCRA court sent to McGill notice of its intention to dismiss the PCRA Petition, stating that the issues McGill raised in his Petition were without merit. On February 5, 1998, McGill filed supplemental affidavits and exhibits in support of the claims raised in his Petition. By Order dated March 18, 1998, the PCRA court dismissed McGill's PCRA Petition without a hearing. On March 26, 1998, McGill filed a Notice of Appeal in this Court. Unfortunately, the PCRA court judge, the Honorable Eugene H. Clark, Jr. (Judge Clark), passed away before he had the opportunity to write his opinion ancillary to dismissing the PCRA Petition. We remanded the matter to the PCRA court for the drafting of an opinion in support of the Order denying the PCRA Petition. On July 30, 2001, the PCRA court, by the Honorable Judge Benjamin Lerner (Judge Lerner), filed an Opinion in support of Judge Clark's denial of PCRA relief.


On October 15, 2001, McGill filed an amended brief with this Court. McGill raises the following four issues in his brief:6

1. Are constitutional violations during the penalty phase cognizable under the PCRA as amended in 1995?

2. Was the PCRA court correct to deny relief when prosecutors failed to disclose material discovery affecting the reliability of a statement by a jailhouse informant whose claims influenced trial counsel's decision to withhold any and all evidence of McGill's psychosis from the penalty phase jury?

3. Did trial counsel violate the Sixth Amendment by failing to give the court-appointed psychologist available medical records for review on guilt phase issues of diminished capacity and insanity?

4. Did trial counsel violate the Sixth Amendment when he failed to investigate psychiatric records and seek available expert opinions, and instead relied on his own mistaken lay assumptions to deny a penalty jury overwhelming evidence that McGill has chronic psychosis?

McGill first contends that claims of ineffective assistance of counsel in connection with alleged sentencing phase errors are cognizable pursuant to the PCRA and that he is entitled to relief due to these sentencing errors. Four years ago, in Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999), we held definitively that alleged errors of counsel in the penalty phase of a capital trial are cognizable in post-conviction proceedings. 42 Pa.C.S. § 9543(a)(2)(ii) limits ineffectiveness claims that may be raised pursuant to the PCRA to those that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." In Chester, we held that the penalty phase is both a "truth-determining process" and an "adjudication of guilt or innocence." Chester, 733 A.2d at 1249. However, McGill fails to explain how resolution of this issue entitles him to any relief. In its Opinion, the PCRA court did not dismiss the penalty phase claims as not cognizable; instead, the court discussed the procedural bars of previous litigation and waiver, as well as the merits of the claims. While McGill makes a valid and accurate argument in this regard, nonetheless, it does not afford him a basis for relief.

McGill next alleges a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he asserts that the Commonwealth impermissibly failed to disclose to him that Hassan Bilal (Bilal), one of McGill's former cellmates, was a regular jailhouse informant who pled guilty to third-degree murder and received a sentence of time-served in exchange for his cooperation against McGill and others. The Commonwealth disclosed to trial counsel a statement made by Bilal on August 15, 1991. In that statement, Bilal related to detectives a jailhouse conversation he had with McGill, during...

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