Com. v. Morales

• Decision Date: 13 November 1997
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Salvador MORALES, a/k/a Simon Pirela, Appellant.
• Court: Pennsylvania Supreme Court

Page 516

701 A.2d 516

549 Pa. 400

COMMONWEALTH of Pennsylvania, Appellee, v. Salvador MORALES, a/k/a Simon Pirela, Appellant.

Supreme Court of Pennsylvania.

Submitted Nov. 8, 1995.

Decided Sept. 17, 1997.

Reargument Denied Nov. 13, 1997.

[549 Pa. 405] James D. Crawford, Joseph T. Lukens and Jeffrey W. Soderberg, Philadelphia, for S. Morales.

Catherine Marshall, Philadelphia and Robert A. Graci, Harrisburg, for the Com.

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

OPINION

FLAHERTY, Chief Justice. ¹

This is a direct appeal from the order of the Court of Common Pleas of Philadelphia In May, 1983, appellant, Salvador Morales, and his co-defendant, Heriberto Pirela, a/k/a Carlos Tirado, ³ were jointly tried before a jury for the death of Jorge Figueroa. On May 18, 1983, the jury convicted both men of first degree murder, criminal conspiracy and possession of an instrument of crime. ⁴ Following a separate penalty proceeding, the jury sentenced appellant to death. ⁵ On direct appeal, this Court affirmed the convictions and judgment of sentence. Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985).

                County denying appellant's second petition for post-conviction relief in appellant's homicide case where he received the death penalty. 2  For the reasons expressed herein, we remand for a new sentencing hearing
                

In 1987, appellant filed a petition under the Post-Conviction Hearing Act ("PCHA") alleging that his trial counsel was ineffective for failing to present mitigating evidence at his penalty hearing and for failing to raise that issue on direct appeal. The PCHA court denied this petition. The Superior Court affirmed the denial in a memorandum opinion ⁶ and this Court denied allocatur. ⁷

On August 3, 1990, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Because state claims were raised therein, the federal district court placed this petition, along with another habeas corpus petition filed by appellant, in civil suspense pending appellant's return to the state courts so that he could exhaust all of his claims in state court.

On November 15, 1994, petitioner filed his second petition for post-conviction relief, this time under the Post Conviction Relief Act ("PCRA"). ⁸ On December 8, 1994, the PCRA court denied this second petition for collateral relief without conducting an evidentiary hearing because it believed that a decision could be rendered based on the existing record. ⁹ This appeal followed. ¹⁰

This Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Travaglia, 541 Pa. 108, 117 n. 4, 661 A.2d 352, 356 n. 4 (1995). In order to be eligible for relief under the PCRA, an appellant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S. § 9543(a)(2) ¹¹ and that the issues he raises have not been previously litigated. Id. 661 A.2d at 356. An issue will be deemed previously litigated when "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." 42 Pa.C.S. § 9544(a)(2). At the outset, we note that the first two claims raised by appellant which are discussed infra have been previously litigated. Thus, appellant will not be entitled to post-conviction relief on those two claims.

With respect to all of appellant's claims which have not been previously litigated, appellant also must normally demonstrate that the claims have not been waived. 42 Pa.C.S. § 9543(a)(3). ¹² However, waiver will be excused under the PCRA if appellant can meet the conditions of 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) or by making a showing of ineffective assistance of counsel. Commonwealth v. Christy, 540 Pa. 192, 201-202, 656 A.2d 877, 881, cert. denied, --- U.S. ----, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). Here, appellant could have raised all of his non-previously litigated claims on either direct appeal or in his first PCHA petition. Appellant, however, avoided waiving these claims in this PCRA petition by asserting that all of his prior counsel were ineffective for failing to previously raise them. ¹³

In reviewing appellant's claims which have not been previously litigated, we must be mindful that this is his second collateral attack on his convictions and judgment of sentence. Thus, appellant's request for relief "will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988). An appellant makes such a prima facie showing only if he demonstrates that either the proceedings

which resulted in his [549 Pa. 410] conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged. Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993). It is with the above standards in mind that we will examine appellant's claims.

PREVIOUSLY LITIGATED CLAIMS

1. FAILURE OF TRIAL COURT TO GRANT CONTINUANCE

Appellant contends that he is entitled to a new sentencing hearing because the trial court erred in denying his motion to continue his penalty hearing so that he could obtain the assistance of the court appointed psychiatrist, Dr. Grosso, in preparing, evaluating and presenting his case. In appellant's direct appeal from his judgment of the sentence of death, this Court held that appellant's request for a continuance was properly denied since appellant failed to present on appeal reasons why Dr. Grosso's testimony would have been beneficial. Morales, 508 Pa. at 72, 494 A.2d at 378. Thus, this claim warrants no further review since it has been previously litigated. See Christy, supra, 540 Pa. at 202, 656 A.2d at 881 (post-conviction relief of claims previously litigated on appeal not available by alleging new theories of relief). Moreover, even if this claim was not previously litigated, it would still fail since appellant merely speculates that Dr. Grosso would have testified favorably on his behalf. Appellant offers no evidence or affidavit detailing the basis for such speculation. Absent such proof, appellant has failed to show that he suffered a miscarriage of justice. See Commonwealth v. Birdsong, 538 Pa. 587, 602-03, 650 A.2d 26, 34 (1994) (no error in denying continuance at penalty hearing since appellant failed to present any evidence as to nature of psychiatrist's testimony). Accordingly, no post-conviction relief is warranted.

Appellant also asserts that a continuance should have been granted since he was not competent to waive his right to present mitigating evidence, and that in any event, his waiver was not knowing, intelligent and voluntary. This Court has already reviewed the substance of this claim and held that the denial of appellant's continuance request was proper since appellant made a "knowing, intelligent and voluntary waiver, on the record, of his right to present any evidence at the sentencing hearing, generally, and of the psychiatrist's testimony/evidence, specifically." Morales, 508 Pa. at 72, 494 A.2d at 378. ¹⁴ Thus, this claim was previously litigated. Accordingly, no post-conviction relief is warranted.

2. FAILURE TO OBJECT TO JURY INSTRUCTIONS

Appellant also claims that trial counsel was ineffective for failing to object to jury instructions given by the trial court during the penalty phase of the trial. Appellant concedes, as he must, that the issues surrounding the propriety of the trial court's jury instructions were previously litigated when this Court held, on appellant's direct appeal from his judgment of sentence of death, that the jury instructions given at the penalty phase of trial were proper. See Morales, 508 Pa. at 70-71, 494 A.2d at 377-378. Accordingly, no relief is warranted. See Commonwealth v. Christy, 540 Pa. at 202, 656 A.2d at 881 (1995) (post-conviction relief of claims

previously litigated [549 Pa. 412] on appeal not available by alleging ineffective assistance of counsel).

INEFFECTIVE ASSISTANCE OF COUNSEL

As previously discussed herein, appellant avoided having all of his other claims from being deemed as waived by asserting that all of his prior counsel provided ineffective assistance in failing to raise those claims. We will examine each of appellant's non-previously litigated claims ad seriatim.

1. DISCLOSURE VIOLATIONS

(a) Brady Violation--Psychiatric Report

Appellant contends that he is entitled to a new sentencing hearing because all of his previous counsel provided ineffective assistance by failing to raise a Brady ¹⁵ claim concerning the Commonwealth's failure to turn over to appellant a copy of a psychiatric report regarding him prepared by another psychiatrist in an unrelated criminal matter even though the Commonwealth had the report approximately one month before the trial in the instant matter. Appellant argues that this report would have entitled him to the continuance he sought of his sentencing hearing since it would have enabled him to demonstrate to the trial court the type of evidence he believes that Dr. Grosso would have offered. ¹⁶

Under Brady, the prosecution must turn over evidence within its possession that is exculpatory to either the guilt or the punishment of the defendant. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Christy, 540 Pa. at 213, n. 17, 656 A.2d at 887, n. 17. Only evidence which shows that appellant: was under extreme mental or emotional disturbance at the time of the offense, 42 Pa.C.S. § 9711(e)(2); or was substantially impaired from appreciating the criminality of his conduct, 42 Pa.C.S. § 9711(e)(3); or, which...