Com. v. Morris

Decision Date30 October 1996
Citation546 Pa. 296,684 A.2d 1037
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kelvin MORRIS, Appellant.
CourtPennsylvania Supreme Court

Robert A. Graci, Harrisburg, for Office of the Attorney General.



NEWMAN, Justice.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County that denied Kelvin Morris' (Morris) Petition for Relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq. (PCRA). 1 We affirm the Order of the Court of Common Pleas (PCRA court).


The following issues are before this Court:

1. Did the PCRA court err when it denied an evidentiary hearing on allegations that the trial and/or appellate counsel was ineffective in the following respects?

a. "Life-Qualifying" and "Death-Qualifying" 2--For their failure to identify and

exclude prospective jurors whose beliefs would be incompatible with their role as capital jurors because of their probable inability to consider life imprisonment even if appropriate under the law;

b. for their inadequacy in not presenting an alibi defense;

c. because of their failure to call certain witnesses to testify; and

d. for their failure to investigate the existence and analysis of physical evidence; 3 and

2. Did the PCRA court err when it denied Morris' PCRA petition without notice and without a hearing despite the mandatory language of Pa. R.Crim.P. Rule 1507(a)?


In Commonwealth v. Morris, 522 Pa. 533, 537-38, 564 A.2d 1226, 1228 (1989), we summarized the facts of this case as follows:

This action [began] on August 9, 1980, when at approximately 3:00 a.m., the police were summoned to investigate an alarm at the Pep Boys Auto Parts Store at 48th and Girard Avenue in Philadelphia, Pennsylvania. Upon arrival an officer, Alexander Stephens, discovered that the front window to the store had been broken.

Subsequently the manager of the store, Bob McDonald, arrived and both went through the store to make sure everything was in order. Upon finding everything in order the police officer left and the manager then called the Franklin Glass Company to get the window boarded up for the night.

At approximately 4:30 a.m., a William Linaberry, an employee of the glass company, arrived at the store and began boarding up the broken window. Approximately 10 minutes later, while Mr. Linaberry and Mr. McDonald were outside the store discussing the broken window, an individual crossed the street from the ARCO service station and asked what had happened. This man was carrying a yellow bag and subsequently produced a hand gun and then stated to Mr. McDonald, "put the money in the bag." McDonald replied "what money" and with that, the man shot Mr. McDonald twice, killing him. The appellant was subsequently identified as the perpetrator of the robbery/murder and was arrested October 22, 1980, in Suffolk City, Virginia.

(Paragraph structure added). At trial, Mr. Linaberry identified Morris as the person who fired the gun and shot the decedent. Another witness, twelve-year-old Ronald Johnson (Johnson), 4 also identified Morris as the man who shot Mr. McDonald. The Commonwealth also presented the testimony of James Willie, who stated that Morris moved into his home in Suffolk City, Virginia, and Morris told him that he shot a man while robbing a Pep Boys store in Philadelphia. Also, Police Officer Thomas Newson testified that he arrested Morris in Suffolk City, Virginia, and that after he advised Morris of his rights, Morris admitted that he was wanted in Philadelphia for shooting a store clerk and he said he "did it to keep up with the crowd." Notes of Testimony, November 23, 1983, p. 93.

On November 30, 1983, a jury found Morris guilty of first degree murder 5 and robbery, 6 6 and fixed the penalty for the murder conviction at death. On direct appeal pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h)(1), we affirmed the judgment of sentence. On April 2, 1990, Morris filed a PCRA petition pro se. Court-appointed counsel filed an amended petition on October 18, 1993. After the Commonwealth filed an answer and motion to dismiss the amended petition, the PCRA court scheduled oral argument on March 31, 1994. At argument on the Commonwealth's motion, the parties rested on the pleadings and the PCRA court took the case under advisement to determine whether to grant Morris an evidentiary hearing or deny the petition without an evidentiary hearing. On January 18, 1995, the court issued an Opinion and Order denying Morris' PCRA petition without holding an evidentiary hearing. The court did not give Morris prior notice of its intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 1507(a). 7

Defense counsel then presented the PCRA court with a motion to vacate the dismissal in which he alleged that the court violated Rule 1507(a). On February 6, 1995, the PCRA court heard oral argument on Morris' motion to vacate the dismissal, and denied the motion by order dated February 7, 1996. 8


To be eligible for PCRA relief, Appellant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated errors or defects found in Section 9543(a)(2), 9 and his issues have not been previously litigated. An issue is deemed finally litigated for purposes of the PCRA 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." 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been finally litigated, Appellant must also establish that those allegations of error have not been waived and that, if waived, the conditions listed in Section 9543(a)(3)(ii) or (iii) must be satisfied. 10 42 Pa.C.S. § 9543(a)(3). An issue is deemed waived "if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, [or] on appeal...." 42 Pa.C.S. § 9544(b). Finally, Appellant must demonstrate that the failure to litigate the issue prior to, or during trial, or on direct appeal could not have resulted from any "rational strategic or tactical decision by counsel." 42 Pa.C.S. § 9543(a)(4). 11

Ineffective assistance of counsel provides a basis for relief under the PCRA only when it "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). To warrant relief, a defendant must prove that the underlying claim is of arguable merit, counsel had no reasonable basis for the act or omission in question, and but for counsel's act or omission, the outcome of the proceedings would have been different. Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994), citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

A court may dismiss a PCRA petition if there are no genuine issues concerning any material fact. Pa.R.Crim.P. 1507, 1508. 12 The purpose of Rules 1507 and 1508 is to assure that an evidentiary hearing be held on a post-conviction petition if there are factual issues to be resolved. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, cert. denied, --- U.S. ----, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995). However, when there are no disputed factual issues, an evidentiary hearing is not required under the rules. Id.

A. Voir Dire

Morris argues that trial counsel was ineffective during voir dire because he did not "life-qualify" the jury, which means that counsel, on voir dire, would have identified and excluded prospective jurors who would be unable to consider a sentence of life imprisonment if the jury returned a verdict of guilty of first degree murder. According to Morris, the sentence of death is invalid because trial counsel did not ask additional questions to be certain that there were no individuals on the jury who automatically opted for the death penalty without considering the trial court's instructions regarding mitigation.

Our Court first addressed the issue of "life-qualifying" juries in Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987), where we held that trial counsel is not ineffective per se if he or she did not identify and eliminate from the jury individuals who would not impose a sentence of life imprisonment in a proper case. We stated in Jermyn that in order to warrant relief based on a claim that trial counsel failed to specifically ask prospective jurors if they would automatically impose the death penalty if a defendant were convicted of first degree murder, an appellant must establish that trial counsel's failure to ask life-qualifying questions resulted in the impanelling of one or more jurors who would instinctively impose the death penalty.

We noted that the appellant in Jermyn raised this issue in the abstract, did not challenge counsel's overall performance during voir dire, and did not present the record of voir dire proceedings for our review. We held that the mere fact that counsel may not have posed the specific question concerning whether a prospective juror would elect a sentence of life imprisonment in an appropriate case does not justify the conclusion that counsel failed to assure that a fair and impartial jury was selected. We rejected similar claims in Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942, cert. denied, 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990), and Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991), based upon our reasoning in Jermyn.

In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the United States Supreme Court held that a trial court's refusal to allow counsel to inquire whether potential jurors would automatically impose the death penalty...

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