Com. v. Pirela

• Decision Date: 16 February 1999
• Citation: 556 Pa. 32,726 A.2d 1026
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Simon PIRELA a/k/a Salvador Morales, Appellant.
• Court: Pennsylvania Supreme Court

556 Pa. 32

726 A.2d 1026

COMMONWEALTH of Pennsylvania, Appellee, v. Simon PIRELA a/k/a Salvador Morales, Appellant.

Supreme Court of Pennsylvania.

Submitted September 9, 1996.

Decided February 16, 1999.

Reargument Denied April 1, 1999.

Andrew L. Fish, Philadelphia, for S. Pirela.

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

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

OPINION OF THE COURT

FLAHERTY, Chief Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying the motion of appellant for post-conviction relief. In the underlying case, the court, sitting without a jury, convicted appellant of murder of the first degree and criminal conspiracy. After a sentencing hearing, the court found one aggravating circumstance, appellant's previous murder conviction for which he had received a sentence of life imprisonment, and one mitigating circumstance, appellant's age.¹ The court also found that the aggravating circumstance outweighed the mitigating circumstance and sentenced appellant to death. The court then denied appellant's post-trial motions and formally sentenced appellant to death.² This court affirmed the conviction and sentence on direct appeal. Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986).

Appellant filed a pro se habeas corpus petition in 1990 in federal court. The federal court judge entered a stay of execution, appointed counsel and suspended the petition pending exhaustion of state court claims. Two years thereafter, appellant filed a motion in the Court of Common Pleas of Philadelphia County seeking post-conviction relief. His petition was consolidated for hearing and argument with a petition filed in his other first degree murder death penalty case. Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). Following hearings regarding discovery before Judge Papalini and a reassignment of the case to Judge Stout, appellant's requests were denied without an evidentiary hearing. This appeal followed.

The convictions resulted from circumstances involving a killing for vengeance. These circumstances were stated in Pirela, 510 Pa. at 46-48, 507 A.2d at 24-25 (1986) as follows:

At approximately 1:00 a.m. on May 5, 1981, Pablo Ortiz, the victim in this case, was visited at his home by Carlos Tirado and Miquel Pirela, the brother of appellant. The three young men left the home of Ortiz and "shot" heroin. When Pirela became ill, Ortiz and Tirado delivered Pirela to his home. Pirela's wife testified that when she awoke on the morning of May 5, her husband was dead. Although all three men had used heroin from the same source and the same appliances, only Miquel Pirela died. The cause of Pirela's death was determined to be a drug overdose, achieved through non-homicidal means.

Later on the day of May 5, Simon Pirela, the appellant, visited Ortiz's home and announced his intention to kill Pablo. Appellant said that Pablo had killed appellant's brother and either Pablo or Carlos Tirado "had to go." Gilberto Giraud Romero, who was also charged in connection with the murder of Pablo Ortiz, testified for the Commonwealth against appellant and his two co-defendants. Romero testified that on May 6, the day after Miquel Pirela's death, at about 1:00 p.m., he went to his sister's home. There both appellant and his brother, Heriberto Pirela, announced their intentions to kill Pablo Ortiz. Approximately 20 minutes later Ortiz joined the men. Both Pirela brothers inflicted a brutal beating upon Ortiz who was struck by fists and by a tire which was mounted on a rim. Ortiz was then pushed into the basement of the house where the beating continued. Eventually, Heriberto Pirela instructed Carlos Tirado to inject Ortiz with battery acid, or face death himself. While appellant and Pedro Torres held Ortiz's hands, the injection was accomplished. Ortiz became unconscious.

Ortiz's unconscious body was loaded into an automobile belonging to Heriberto Pirela, and Romero was instructed to drive. Appellant warned Carlos Tirado that if Pablo Ortiz did not die, appellant would kill Tirado. While Romero drove the automobile, Tirado strangled Ortiz with a pair of socks. Romero was warned by appellant that if he "ratted" on appellant, appellant would kill him. The families of Romero and Tirado were also threatened. Much of Romero's testimony was corroborated by Carlos Tirado who testified on his own behalf.

Appellant admitted hitting Pablo Ortiz in the course of questioning Ortiz as to the cause of Miquel Pirela's death. However, appellant testified that the murder of Pablo Ortiz was the handiwork of Carlos Tirado, and that appellant neither participated in nor directed the homicide. The fact finder specifically found appellant's testimony incredible. Ortiz's dead body was deposited on a bridle path in Fairmount Park where it was discovered by a jogger. The immediate cause of Ortiz's death was determined to be strangulation. The beating was deemed to be a contributory cause in that it may have left Ortiz defenseless when the ligature was applied.³

Appellant must demonstrate eligibility for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9543. The following deals with the PCRA as it existed in early 1995, the time frame of appellant's PCRA filings and the lower court's decision.⁴ Sections 9543(a)(2) and (3) required, in relevant part, the following:

(a) General rule. — To be eligible for relief under this sub-chapter, a person must plead and prove by a preponderance of the evidence all of the following:

....

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

. . . .

(3) 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. §§ 9543(a)(2) and (3) (1988).

The first inquiry here is whether an allegation of error has been previously litigated. The term "previously litigated," under former 42 Pa.C.S. § 9544(a)(2), means that: "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." See, Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997)

; Commonwealth v. Crawley, 541 Pa. 408, 413, 663 A.2d 676, 678 (1995),

cert. denied, 517 U.S. 1212, 116 S.Ct. 1832, 134 L.Ed.2d 936 (1996); Commonwealth v. Beasley, 544 Pa. 554, 563-64, 678 A.2d 773, 777 (1996).

The next inquiry is whether the allegation of error has been waived.⁵ An issue has been waived where the petitioner fails to raise it when it could have been raised at trial or on appeal, 42 Pa.C.S. § 9544(b), and an anti-waiver rule does not apply, 42 Pa.C.S. §§ 9543(a)(3)(ii) or (iii). See, Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994)

; Beasley, supra. Waiver is excused under 42 Pa.C.S. §§ 9543(a)(3)(ii) or (iii) where the alleged error in the main case resulted in the conviction or affirmance of sentence of an innocent individual or from ineffective assistance of counsel at a point in the proceedings where defendant had a constitutional right to counsel, i.e., through direct appeal, provided the standards announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), and its progeny are met. Beasley, 544 Pa. at 565,

678 A.2d at 778.⁶

Pierce, supra, and subsequent cases require a defendant to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel's performance was unreasonable; and (3) counsel's ineffectiveness prejudiced defendant. An appellant cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Peterkin, supra.

Further, counsel cannot be considered ineffective for failing to assert a meritless claim and is presumed to have been effective. Id.; Crawley, 541 Pa. at 414,

663 A.2d at 679. Also, appellant bears the burden of proving all three prongs of the Pierce standard. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992).

In summary, appellant must demonstrate a number of things. First, he must demonstrate that the claim has not been previously litigated and has not been waived. If the claim has been waived, appellant must demonstrate the waiver was the result of ineffective assistance of counsel at some point through the direct appeal.⁷ If such demonstration is met, then appellant must demonstrate that the alleged violation of the state or federal constitution, or ineffective assistance of counsel, "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place."⁸

Appellant first claims that his waivers of his right to a trial by jury at both the guilt and penalty phases were not voluntary, knowing and intelligent. Appellant argues the trial court assured him he would not be subject to the death penalty if he went non-jury, that he relied on this assurance to his detriment when he waived his...