Com. v. Moore

• Decision Date: 28 August 2002
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Raymond MOORE, Appellant.
• Court: Pennsylvania Supreme Court

805 A.2d 1212

569 Pa. 508

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

Supreme Court of Pennsylvania.

Submitted May 15, 2000.

Decided August 28, 2002.

Thomas N. Farrell, Pittsburgh, for appellant, R. Moore.

Michael W. Streily, Pittsburgh, for appellee, Com. of PA.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NIGRO.

Appellant Raymond Moore appeals the order of the Superior Court reversing the PCRA court's order granting him a new trial based on his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. For the reasons that follow, we reverse.

The record establishes that on September 29, 1989, at approximately 10:30 p.m., Tirone Bivens and three of his friends arrived at the Apollo Lounge where Appellant was an employee. Mr. Bivens immediately walked to the kitchen area of the lounge to order some food. Mr. Bivens and Appellant began arguing over money that had been lying on the floor. Mr. Bivens picked up the money, threw it in Appellant's face and left the lounge. Thereafter, Appellant went into the kitchen, retrieved a knife and followed Mr. Bivens out of the lounge. Aware that there was a problem, Mr. Bivens' friends left the lounge in search of him. Mr. Bivens' friends found him about one-tenth of a mile from the lounge, in an alley, hunched over and in a daze. A fight broke out between Mr. Bivens' friends and other people present at the scene. At this time, Appellant arrived and fatally stabbed Mr. Bivens.

At trial, Appellant argued self-defense, but the jury nonetheless convicted him of first-degree murder. On December 1, 1989, Appellant was sentenced to life imprisonment. At trial, Robert Foreman, Esq. represented Appellant. Mr. Foreman, though associated with the Public Defender's Office of Allegheny County, was privately retained to represent Appellant. Mr. Foreman also represented Appellant during his post-trial motions. After these motions were denied, Appellant, through Mr. Foreman, petitioned to have counsel appointed for him in order to pursue his appeal since he was without sufficient funds to retain private appellate counsel. On December 6, 1989, the trial court appointed the Public Defender of Allegheny County to represent Appellant on his appeal to the Superior Court. On appeal, the Superior Court affirmed Appellant's judgment of sentence. Commonwealth v. Moore, 407 Pa.Super. 648, 584 A.2d 1049 (1990). Thereafter, a Petition for Allowance of Appeal was filed and subsequently denied by this Court on February 6, 1991. Commonwealth v. Moore, 527 Pa. 599, 589 A.2d 689 (1991).

On March 13, 1993, Appellant filed a pro se petition for post-conviction relief that was later amended by appointed counsel, Robert Barrett. During his representation of Appellant, Mr. Barrett was disbarred, and on October 14, 1994, the PCRA court appointed Stephen Begler to represent Appellant in his PCRA appeal. In an amended PCRA petition, Mr. Begler raised the issue of trial counsel's ineffectiveness for failing to raise a diminished capacity defense. After a hearing, the PCRA court found that Mr. Foreman had been ineffective for failing to raise a diminished capacity defense and granted Appellant a new trial. On appeal, the Superior Court reversed, holding that Appellant had waived his ineffective assistance of counsel claim by failing to raise it at his first opportunity to do so. Commonwealth v. Moore, 745 A.2d 43 (Pa.1999). Mr. Begler sought permission to withdraw as counsel and instant counsel was appointed to represent Appellant.

On appeal to this Court, the first issue Appellant presents is whether the Superior Court erred in reversing the PCRA court's grant of a new trial by ruling that appellate counsel, an assistant public defender, was required to raise the ineffective assistance of his associate, who was retained to represent Appellant in a private capacity.¹ We find that the Superior Court did not err. In order to establish a claim of ineffective assistance of counsel under the PCRA, an appellant must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, 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). Moreover, a claim of ineffective assistance of counsel must be raised "at the earliest stage in the proceedings at which allegedly ineffective counsel is no longer representing the defendant." Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686, 697 (1999) (citation omitted).

Generally, where subsequent appellate counsel is an associate of the allegedly ineffective counsel, subsequent counsel is not required to raise his associate's ineffectiveness. Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998). In Green, this Court stated: "As a general rule, a public defender may not argue the ineffectiveness of another member of the same public defender's office since appellate counsel, in essence, is deemed to have asserted a claim of his or her own ineffectiveness." Id. (citations omitted). This rule provides a means to ensure that appellate counsel will "provide the zealous advocacy to which an appellant is entitled." Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199, 200 (1978). Moreover, this rule applies equally in instances where the allegedly ineffective counsel was co-counsel or merely an associate in the same office. See Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11, 12 (1978)

(subsequent counsel not required to raise the ineffectiveness of allegedly ineffective counsel when they were all members of the same public defender's office); Commonwealth v. Fox, 383 A.2d at 200 (attorney need not allege ineffectiveness of co-counsel).

Nonetheless, our Court has held that where trial counsel was privately retained, but associated with a public defender's office, and where subsequent counsel is an attorney at the same public defender's office, a different result follows. This precise circumstance was before this Court in Commonwealth v. Green, where we stated:

The record reflects that appellant was represented at trial by privately-retained counsel, but has been represented on appeal by members of the same public defender's office. Thus, appellant's claim that trial counsel was ineffective is waived because it was not raised by appellate counsel at the Superior Court level.

Green, 709 A.2d at 384 (footnote omitted).²

The present case is distinguishable from the line of cases holding that an ineffective assistance of counsel claim is not waived when the allegedly ineffective counsel is an associate of subsequent counsel. Instead, this case presents the same circumstance this Court was presented with in Green. Here, although Mr. Foreman, Appellant's trial counsel, was associated with the Allegheny County Public Defender's Office, he was privately retained by Appellant. He was hired in a capacity separate and apart from his relationship to the Public Defender's Office. Appellant's subsequent appellate counsel were associates at the Allegheny County Public Defender's Office. Generally, had Mr. Foreman represented Appellant in his capacity as a public defender, subsequent appellate counsel would not have been required to raise Mr. Foreman's ineffectiveness because they would have been associates of the same office. See Glasco, 393 A.2d at 11

. However, since Mr. Foreman was privately retained, subsequent appellate counsel were required to raise his ineffectiveness at the earliest stage of the proceedings, notwithstanding the fact that Mr. Foreman may have been associated with subsequent counsel in other cases. See Green, 709 A.2d at 384. Accordingly, Appellant's ineffective assistance of counsel claim—as presented to the Superior Court—was waived because it should have been, but was not, raised by appellate counsel on appeal to the Superior Court.

Although Appellant failed to raise a cognizable claim to the Superior Court, in his brief to this Court, he raises essentially the same claim but in a properly layered format. Appellant asserts that "PCRA counsel gave ineffective assistance for failing to raise the ineffective assistance of appellate counsel for failing to raise the ineffective assistance of trial counsel for failing to raise a diminished capacity defense." App. Brief, at 5. This Court has previously held that we will review such a properly layered ineffectiveness claim, even if it is raised for the first time on appeal to this Court. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 303 n. 7 (1999).³ For the reasons set forth below, we agree with the PCRA court that Appellant's underlying ineffectiveness claim provides a basis for relief.

Applying the standard set forth above governing ineffectiveness claims under the PCRA, we must first determine whether the PCRA court properly determined that Appellant's underlying claim that trial counsel was ineffective for failing to raise a diminished capacity defense has merit. See Kimball, 724 A.2d at 333

. The diminished capacity defense is only available in limited circumstances. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 359 (1995). "In asserting a diminished capacity defense, a defendant is attempting to prove that he was incapable of forming the specific intent to kill; if the defendant is successful, first degree murder is mitigated to third degree." Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 433 (1998) (quoting Travaglia, 661 A.2d at 359 n. 10). To prove a claim of diminished capacity, expert psychiatric testimony "that addresses mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate specific intent is admissible." Legg, 711 A.2d at 433 (internal quotations and...