Com. v. Moore

• Citation: 860 A.2d 88,580 Pa. 279
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Tyrone MOORE, Appellee. Commonwealth of Pennsylvania, Appellee v. Tyrone Moore, Appellant.
• Decision Date: 21 October 2004
• Court: United States State Supreme Court of Pennsylvania

860 A.2d 88

580 Pa. 279

COMMONWEALTH of Pennsylvania, Appellant v. Tyrone MOORE, Appellee.

Commonwealth of Pennsylvania, Appellee v. Tyrone Moore, Appellant.

Supreme Court of Pennsylvania.

Submitted January 30, 2002.

Decided October 21, 2004.

Petition for Reargument Denied January 18, 2005.

David W. Lupas, Wilkes Barre, Scott Charles Gartley, Kingston, Frank P. Barletta, Hazleton, Amy Zapp, Harrisburg, James L. McMonagle, Wilkes Barre, for Com. of PA.

Billy Horatio Nolas, Philadelphia, Enid Wolfe Harris, Wilkes Barre, for Tyrone Moore

BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice EAKIN.

The Commonwealth appeals from the order vacating Tyrone Moore's death sentence and granting him a new penalty hearing under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Moore cross-appeals from the denial of his remaining claims for relief under the PCRA.

In 1983, a jury found Moore guilty of first degree murder, conspiracy, robbery, theft by unlawful taking, and recklessly endangering another person. At the penalty hearing, the jury found two aggravating circumstances,¹ no mitigating circumstances, and fixed the penalty for the murder at death. This Court affirmed on direct appeal. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995).

Moore filed a timely PCRA petition, in which his principal claim was appellate counsel's ineffectiveness for failing to present on direct appeal relevant facts showing trial counsel should have presented mitigating evidence during the penalty phase. He raised thirteen other issues as well.² The PCRA court held a hearing solely on the issue of appellate counsel's failure to proffer the mitigating evidence trial counsel should have presented at the penalty phase. The court concluded appellate counsel was ineffective for failing to present such evidence; it reversed the death sentence and remanded for a new penalty hearing. The court did not address Moore's remaining issues, which were deemed denied without a hearing. This appeal followed.

In reviewing an order granting or denying post conviction relief, we examine whether the PCRA court's determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999). To be entitled to relief under the PCRA, Moore must show, as to each claim, that "the allegation of error has not been previously litigated or waived," 42 Pa.C.S. § 9543(a)(3), and that "the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id., § 9543(a)(4). 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...." Id., § 9544(a)(2).

The record reveals issues 1, 2, 5, 7, 10, and 11, as well as portions of issues 6 and 9, have been previously litigated. "[P]ost-conviction review of claims previously litigated on appeal cannot be obtained by alleging ineffective assistance of prior counsel and by presenting new theories of relief to support previously litigated claims." Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121, 123 (1994); Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 2 (2001) (same); 42 Pa.C.S. § 9543(a)(3). Moore's arguments for these issues are nothing but retooled versions of his arguments on direct appeal; as such, they are previously litigated and he is not entitled relief.

Moore's remaining issues assert trial counsel's ineffectiveness during the guilt and penalty phases, as well as appellate counsel's ineffectiveness for failing to raise these issues on direct appeal. Any alleged error during the guilt and penalty phases has been waived because of trial counsel's failure to raise it; Moore may still obtain relief for trial counsel's ineffectiveness if he can show appellate counsel was ineffective for failing to pursue the claims. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003)

(citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003) (when court is faced with "layered" ineffectiveness claim, only viable ineffectiveness claim is that related to most recent counsel, appellate counsel)).

We set forth the standard for preserving "layered" ineffectiveness claims in McGill and Rush:

In order to preserve a claim of ineffectiveness, a petitioner must "plead, in his PCRA petition," that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Additionally, a petitioner must "present argument on, i.e. develop each prong of the [Commonwealth v.] Pierce [, 515 Pa. 153, 527 A.2d 973 (1987)] test" as to appellate counsel's deficient representation. "Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review; then, and only then, can the court proceed to determine whether the petitioner has proved his layered claim."

Rush, at 656 (citations and footnote omitted); see also McGill, at 1021-23.

The "Pierce test" requires Moore to prove, with respect to appellate counsel's performance, that: (1) the underlying claim of trial counsel's ineffectiveness has arguable merit;³ (2) appellate counsel had no reasonable basis for failing to pursue the claim; and (3) but for appellate counsel's ineffectiveness, the result on direct appeal would have differed. See McGill, at 1022-23. This "performance and prejudice" test was first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and was recognized in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), as the proper test under the Pennsylvania Constitution. Failure to address any prong of the test will defeat an ineffectiveness claim. Basemore, at 738 n. 23 (citing Rollins, at 441) (ordinarily, post conviction claim of ineffective assistance of counsel may be denied by showing petitioner's evidence fails to meet single one of three prongs for claim).

Moore has met the pleading requirement for his remaining issues, as he alleged the ineffectiveness of both trial and appellate counsel in his PCRA petition, as well as in his appellate brief. He also presents argument concerning his underlying claims of trial error and trial counsel's ineffectiveness, satisfying the first prong of Pierce with respect to appellate counsel. However, he fails to develop the remaining two prongs concerning appellate counsel's stewardship; thus, he has failed to preserve his claims of appellate counsel's ineffectiveness as required by McGill.

In cases where the appellant has established the arguable merit of his underlying claim of trial counsel's ineffectiveness, remand may be warranted for the opportunity to correct his deficient pleading of the remaining two prongs regarding appellate counsel's ineffectiveness. Rush, at 657. "Nevertheless, there is simply no need to remand a PCRA petition when the petitioner has not carried his Pierce burden in relation to the underlying claim of trial counsel's ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim, the petitioner's claim would not entitle him to relief." Id., at 657-58, 838 A.2d 651. Thus, we need not remand if Moore has not met his burden of proving the underlying trial counsel ineffectiveness.

Moore's first claim regarding the guilt phase is that the prosecutor improperly argued the jury could find specific intent to commit murder based on Moore's participation in the robbery, even if Moore had not been the shooter. In closing, the prosecutor stated:

[L]et's say [Moore] did everything that [co-conspirator] Ricardo Scott said he did, except fire the shot. Under those circumstances, ladies and gentlemen, if the Commonwealth has established beyond a reasonable doubt that he was there, that Tyrone Moore in fact participated in the robbery, that he was part of this plan, then I submit to you we have already found him guilty of the crimes charged beyond a reasonable doubt. It is not necessary for the Commonwealth to establish Mr. Moore as the shooter to find him guilty of murder. That is not the law.

N.T. Trial, 9/12/83, at 645.

Moore argues both trial and appellate counsel were ineffective for failing to challenge this error; however, there was nothing improper about the prosecutor's statement in the context in which it was made. Moore was charged generally with criminal homicide; he could have been found guilty of second or third degree murder, not just first degree murder. The prosecutor was merely explaining how the jury could find Moore guilty of second degree murder; he went on to argue that the evidence established Moore was the shooter, so the jury could find him guilty of first degree murder. See id., at 645-47. The trial court instructed the jury concerning all levels of criminal homicide and clearly stated that to convict Moore of first degree murder, they had to find he had killed the victim and that he had done so with specific intent. Id., at 661-67. Accordingly, trial counsel was not ineffective for failing to object to the prosecutor's statement. As this claim is meritless, Moore's claim of appellate counsel's ineffectiveness is necessarily defeated as well. McGill, at 1023. Therefore, we need not remand to review the remaining two prongs of Pierce with respect to appellate counsel. See Rush, at 657-58; McGill, at 1025.

In his second guilt phase issue, Moore alleges the Commonwealth failed to disclose exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he claims the Commonwealth coerced the false testimony of two witnesses, intimidated another witness into not testifying, paid witnesses for their testimony, and failed to...