Com. v. Peterkin

• Decision Date: 15 December 1994
• Citation: 649 A.2d 121,538 Pa. 455
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Otis PETERKIN, Appellant.
• Court: Pennsylvania Supreme Court

Page 121

649 A.2d 121

538 Pa. 455

COMMONWEALTH of Pennsylvania, Appellee, v. Otis PETERKIN, Appellant.

Supreme Court of Pennsylvania.

Submitted Oct. 27, 1993.

Decided Oct. 12, 1994.

Reargument Denied Dec. 15, 1994.

[538 Pa. 459] Bruce A. Franzel, Philadelphia, for appellant.

Catherine Marshall, Alan Sacks, Philadelphia, for Commonwealth.

Robert A. Graci, Harrisburg, for Attorney General.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

Appellant, Otis Peterkin, was convicted by a jury of two counts of murder of the first degree, robbery, and possession of an instrument of a crime for the shooting deaths of two persons committed in the course of a robbery of a service station, appellant's former place of employment. A sentencing hearing followed in which a jury returned a sentence of death for both murder charges. Appellant was subsequently sentenced to death, ten to twenty years imprisonment for the robbery conviction, and two and one-half to five years imprisonment for the possession conviction. On direct appeal, this court affirmed the convictions and sentence. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987).

Subsequently, on September 7, 1989, pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9551, appellant filed a pro se PCRA petition alleging prosecutorial misconduct, ineffective assistance of trial counsel for failure to call alleged character witnesses at trial and sentencing, and ineffective assistance of appellate counsel for failure to properly pursue these claims. New counsel was again appointed to represent appellant on his PCRA petition. PCRA counsel concluded that all of the issues either lacked merit or had been finally litigated. Consequently, PCRA counsel filed a no-merit letter with the court requesting permission to withdraw. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). The trial court granted permission and the petition was denied without a hearing.

Appellant appealed pro se to the Superior Court from the denial of his PCRA petition and that appeal was subsequently transferred to this court pursuant to 42 Pa.C.S. § 9546(d). Following a remand to the Court of Common Pleas of Philadelphia County for a determination of appellant's eligibility for appointment of counsel, present counsel was appointed. This court then denied requests for a remand. For the reasons set forth below, we affirm.

Since appellant's claims are all grounded in claims of ineffective assistance of counsel, the controlling law is first addressed. When an appellant argues that he was deprived of effective assistance of counsel, he must demonstrate, according to Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and its progeny: 1) that the underlying claim is of arguable merit; 2) that counsel's performance was unreasonable; and 3) that counsel's ineffectiveness prejudiced defendant. Also, post-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. Wilson, 452 Pa. 376, 305 A.2d 9 (1973). Further, counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

Appellant is required by 42 Pa.C.S. § 9543 to demonstrate eligibility for relief under the PCRA. Section 9543(a) mandates that appellant's allegation of error has not been previously litigated and that other conditions have been met. According to 42 Pa.C.S. § 9544(a)(2), an issue has been 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...." Thus, appellant must first demonstrate that the claim has not been previously litigated.

Appellant first contends ¹ that he was denied effective assistance of counsel because his trial counsel presented no character witnesses at his trial. This court considered this issue in appellant's direct appeal, after full appellate briefing and three evidentiary hearings at which one character witness and trial counsel himself appeared. Reference was made to trial counsel's explanation at an evidentiary hearing that he "did not delve into character testimony during trial or at the sentencing hearing because the prosecution had damaging evidence of petitioner's bad character which he did not want revealed to the jury." ² Peterkin, 511 Pa. at 318, 513 A.2d at 382. This court concluded that there was a reasonable basis for not pursuing potential character witnesses or presenting character evidence in either instance in light of counsel's concern that the potential harm from cross-examination of character witnesses outweighed the doubtful value of their testimony. Peterkin, 511 Pa. at 318-19, 513 A.2d. at 382-83. This issue was previously litigated and is not subject to further review. ³

Appellant then contends that trial counsel was ineffective for failing, at the sentencing hearing, to present mitigating evidence and to thoroughly argue against imposition of a death sentence. He claims, as he did on direct appeal, that trial counsel failed to offer important and available evidence in mitigation of sentence. This court ruled against appellant on this issue on direct appeal:

We have previously discussed counsel's reasons for not presenting such character evidence--his concern that he would be opening the door for damaging cross-examination relating to appellant's character. Since none of this proposed evidence in any way mitigated the heinous nature of the crime, it would have been of dubious value, and when that value is weighed against the potential for damaging cross-examination, counsel cannot be deemed ineffective for failing to ... prepare witnesses whom he has decided, on a rational basis, not to call to testify.

Peterkin, 511 Pa. at 321, 323, 513 A.2d at 384, 385. This claim has been previously litigated.

Appellant's other arguments are grounded in claims that allegedly have not been previously litigated. Appellant contends that none of the claims should be deemed waived because the failure to raise the issues was due to ineffective assistance of trial and appellate counsel. 42 Pa.C.S. § 9543(a)(3) states:

That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9544(b) provides that an issue has been waived "if the petitioner failed to raise it and if it could have been raised ... at the trial, [or] on appeal...." Because appellant could have raised his remaining issues on direct appeal and did not, these issues must be deemed waived under § 9544 unless an anti-waiver rule under 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) applies. Since appellant has not claimed that any alleged error resulted in the conviction of an innocent individual, the focus of this inquiry is on 42 Pa.C.S. § 9543(a)(3)(iii).

Ineffective assistance of counsel will excuse the waiver under the PCRA as long as the appellant had a constitutional right to counsel at the stage in the state proceedings where counsel's ineffectiveness resulted in the waiver. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The accused has a constitutional right to counsel on direct appeal but not in state collateral proceedings. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In appellant's case, ineffective assistance of counsel will excuse the waiver under 42 Pa.C.S. § 9543(a)(3)(iii) only with regard to claims of ineffectiveness of counsel at trial and on direct appeal, and provided the standards announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and its progeny are met.

Appellant's first argument is that counsel was ineffective for failing to object to alleged improper and prejudicial remarks made by the prosecutor during his closing argument to the jury. A prosecutor is permitted to exercise latitude in presenting a case to the jury. Commonwealth v. D'Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987). Further, the prosecutor is permitted to employ a certain "oratorical flair." Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984); Commonwealth v. Basemore 525 Pa. 512, 582 A.2d 861 (1990), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992). A prosecutor, within the latitude properly afforded, may ask that the jury show the same mercy to the accused as the accused showed his victims. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987); see also Travaglia, 502 Pa. at 501, 467 A.2d at 301; Basemore, 525 Pa. at 530, 582 A.2d at 870.

Appellant claims that the summation to the jury was done in a manner "to inflame the passions of the jury and divert them from their obligation to carefully and deliberately consider the evidence and the law." Appellant cites the following:

We ask you, ladies and gentlemen, to return a verdict of guilty of murder in the first degree and don't take too long. Take as long as it took for him to pull the trigger the first time causing all that pain or take as much time as took him to pull the trigger the second time.... Don't take too long. I want you to go out, consider the...