Com. v. Natividad

• Decision Date: 27 December 2007
• Docket Number: No. 497 CAP.,497 CAP.
• Citation: 938 A.2d 310
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant.
• Court: Pennsylvania Supreme Court

938 A.2d 310

COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant.

No. 497 CAP.

Supreme Court of Pennsylvania.

Submitted September 5, 2007.

Decided December 27, 2007.

Jules Epstein, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for Ricardo Natividad, appellant.

Amy Zapp, Harrisburg, Hugh J. Burns, Philadelphia Dist. Attorney's Office, for the Com. of PA, appellee.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice FITZGERALD.

In this capital case, Ricardo Natividad (Appellant) appeals from the order of the Philadelphia County Court of Common Pleas (PCRA Court), which denied his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

At 2:00 a.m. on November 9, 1996, Michael Havens was preparing to unlock his car, a dark blue Lincoln, when two men, one of whom Mr. Havens later identified as Appellant, approached him. Appellant faced Mr. Havens while pointing a stainless steel revolver at him, as his cohort approached him from behind. Mr. Havens surrendered his wallet and keys to Appellant, who then ordered Mr. Havens into the car and threatened to kill him when Mr. Havens initially hesitated. Mr. Havens sat in the backseat, and Appellant sat in the front seat, facing and pointing his gun at Mr. Havens while Appellant's cohort drove. Appellant repeatedly demanded cash from Mr. Havens, and when he found the cash Mr. Havens had on hand unsatisfactory, he threatened to shoot Mr. Havens unless he withdrew more cash from an automatic teller machine. Mr. Havens, however, convinced Appellant that he had no available cash in his bank account, so Appellant and his cohort abandoned him on the side of a road and drove off.

At 7:00 p.m. that same evening, Appellant picked up his friend, Byron Price, in a blue Lincoln, which Mr. Price had never seen Appellant drive before. Appellant pulled the car into a nearby gas station and instructed Mr. Price to wait in the passenger seat. Mr. Price testified to hearing a gunshot, then seeing Appellant run back to the car with a chrome revolver in his hand. Mr. Price observed a man, later identified as Robert Campbell, lying on the ground next to a gas pump, at which point Appellant sped away from the gas station. When Mr. Price asked Appellant why he shot the man, Appellant replied, "He drew on me." Commonwealth v. Natividad, 565 Pa. 348, 773 A.2d 167, 172 (2001) (Natividad I) (Opinion Announcing Judgment of Court), cert. denied, 535 U.S. 1099, 122 S.Ct. 2300, 152 L.Ed.2d 1056 (2002). The Johnsons, who lived across the street from the gas station, further testified that they saw the victim raise his hands in the air and fall backward right when they heard gunshots. The Johnsons indicated that they saw the shooter run into the driver's side of a dark Lincoln while wearing a lumberjack-style jacket, although they were unable to identify Appellant specifically as the shooter.

On November 11, 1996, police recovered the charred remains of a dark blue Lincoln. They found a lumberjack-style jacket in the car, and Mr. Havens identified the car as his. He also identified the jacket as his, claiming that he had left it in his car at the time of the robbery.

Several of Appellant's acquaintances indicated that he took credit for the gas-station murder the day after the incident. In December 1996, Keith Smith gave a .357 revolver to his attorney, who immediately surrendered it to homicide detectives. Carl Harris testified that he saw Appellant approach Mr. Smith several weeks after the murder and take Mr. Smith to a private area. When Appellant left, Mr. Harris noticed Mr. Smith carrying a chrome .357-Magnum gun. Police arrested Appellant in March 1997, and Mr. Havens identified him from a photographic array. Mr. Havens also identified the .357 gun as similar to the one used to rob him of his vehicle. Tests revealed that the fatal wound to Mr. Campbell at the gas station was consistent with injuries caused by a .357 Magnum.

Appellant was tried in separate indictments for the robbery of Mr. Havens and the murder of Mr. Campbell. These indictments were consolidated for trial. On November 10, 1997, a jury convicted Appellant of first-degree murder, 18 Pa.C.S. § 2502(a), carrying a firearm on a public street, 18 Pa.C.S. § 6108, two counts of possession of an instrument of crime, 18 Pa.C.S. § 907, two counts of robbery, 18 Pa.C.S. § 3701, one count of robbery of a motor vehicle, 18 Pa.C.S. § 3702, kidnapping, 18 Pa.C.S. § 2901, and criminal conspiracy, 18 Pa.C.S. § 903. At the penalty phase of trial, the jury rendered a verdict of death after finding that the two aggravating circumstances, killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9), outweighed the sole mitigating factor, Appellant's life history, 42 Pa. C.S. § 9711(e)(8). After denying post-verdict motions, the trial court imposed a sentence of death for the first-degree murder conviction, and numerous additional sentences on the other charges to run concurrent to the sentence of death.

Trial counsel continued to represent Appellant throughout the duration of his direct appeal. On automatic direct appeal, pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h)(1), this Court affirmed in an Opinion Announcing the Judgment of the Court. Natividad I, at 181. Writing for the Court, then-Justice, now Chief Justice Cappy found the evidence sufficient to support the first-degree murder conviction, and rejected Appellant's guilt-phase claims that the trial court should have suppressed Mr. Havens's photographic identification of Appellant, the trial court should not have permitted Mr. Smith's attorney to testify, and the evidence was insufficient to support a robbery conviction for the gas station incident. Regarding Appellant's penalty-phase claims, Mr. Justice Cappy concluded that Pennsylvania Sentencing Code subsections 9711(a)(2) and (c)(2), which permit victim-impact statements, are constitutional pursuant to the then-recent holding in Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001) (plurality). The opinion also found that the Commonwealth gave Appellant sufficient notice of its intent to present victim-impact testimony, the trial court's penalty-phase instructions regarding aggravating factors, mitigating factors, and victim-impact evidence were proper, and the evidence was sufficient to support the aggravating factors. Mr. Justice Zappala, joined by Mr. Justice Flaherty, dissented because he found the presentation of victim-impact evidence unconstitutional. Mr. Justice Nigro filed a separate, dissenting opinion, concluding also that the presentation of victim-impact evidence was unconstitutional, but also finding that the Commonwealth failed to give adequate notice of its intent to introduce victim-impact testimony. Mr. Justice Saylor concurred in the result.

The United States Supreme Court denied Appellant's petition for writ of certiorari on May 28, 2002. Appellant filed a pro se PCRA petition on November 25, 2002. The PCRA court appointed current counsel, who subsequently filed an amended petition.¹ The PCRA court denied Appellant's guilt-phase claims, but granted an evidentiary hearing on his allegations of ineffective assistance of penalty-phase counsel.² After two days of hearings, the PCRA court denied Appellant's PCRA petition. This timely appeal followed.

We have jurisdiction over Appellant's petition pursuant to PCRA Section 9546(d), which mandates direct review by this Court of post-conviction appeals in death penalty cases. See 42 Pa.C.S. § 9546(d). We review the denial of PCRA relief for a determination of whether the PCRA court's findings are supported by the record and free of legal error. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001). A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. § 9543(a)(2).

Instantly, all of Appellant's eight primary claims allege ineffective assistance of trial counsel. See 42 Pa.C.S. § 9543(a)(2)(ii) (providing that petitioner is eligible for relief if he proves by preponderance of evidence that conviction or sentence was result of ineffective assistance of counsel). Normally, PCRA petitioners are required to "layer" their claims of ineffective assistance of trial counsel. See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1024 (2003). This Court decided his direct appeal approximately a year-and-a-half before filing Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002); therefore, the pre-Grant framework applies, in which the PCRA petitioner may challenge the assistance only of counsel who immediately preceded current counsel. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 594-95 (2007) (assessing whether ineffectiveness claims were waived under pre-Grant framework when direct appeal concluded before Grant was filed); Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003) (limiting court's ineffectiveness review to only that related to most recent counsel). In this case, trial counsel continued to represent Appellant on direct appeal. Therefore, we will proceed to review his claims. See Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 523 (2001) (noting difference between PCRA allegations of ineffectiveness when one case involved different trial and appellate counsel, and other case involved trial counsel continuing representation on direct appeal).³

It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's...