Com. v. Porter

• Decision Date: 16 March 1999
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ernest PORTER, a/k/a Theodore Wilson, appellant.
• Court: Pennsylvania Supreme Court

728 A.2d 890

556 Pa. 301

COMMONWEALTH of Pennsylvania, Appellee, v. Ernest PORTER, a/k/a Theodore Wilson, appellant.

Supreme Court of Pennsylvania.

Submitted April 16, 1997.

Decided March 16, 1999.

Reargument Denied April 19, 1999.

Billy H. Nolas, Philadelphia, for E. Porter.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Commonwealth.

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

OPINION OF THE COURT

CAPPY, Justice.

This is an appeal from the dismissal of Ernest Porter's ("Appellant") petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. For the reasons that follow, we affirm.

Appellant was found guilty of first degree murder in the shooting death of Raymond Fiss. The jury found that there was one aggravating circumstance¹ and no mitigating circumstances, and therefore sentenced Appellant to death. This court affirmed the judgment of sentence on direct appeal. Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990).

On March 23, 1995, Appellant filed a PCRA petition. Ronald J. Sharper, Esquire, ("Attorney Sharper") was appointed to represent him. Subsequently, Attorney Sharper filed a "no merit" letter, pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988),² stating that none of the issues raised in Appellant's petition were of arguable merit. Furthermore, he concluded that his review of the matter revealed no additional issues which could be raised in a counseled, amended petition. A hearing was convened; subsequently, on May 25, 1995, the PCRA court dismissed Appellant's petition and permitted counsel to withdraw. Appellant, represented by new counsel, thereafter filed the instant appeal.

At the outset of our analysis, we note that where post-conviction relief has been denied in a death-penalty case, the matter is directly reviewable by this court. 42 Pa.C.S. § 9546(d). Even though we already have jurisdiction over this matter, Appellant also requests that we exercise jurisdiction over his appeal pursuant to our King's Bench powers. We recently rejected an identical claim in another capital case, Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997). In that matter we stated that such a request for invocation of our King's Bench powers is inappropriate and unnecessary. Our King's Bench powers ... are powers of extraordinary jurisdiction. In cases in which we elect to exercise our powers of the King's Bench, our action has the effect of transferring jurisdiction of a matter pending before an inferior court to the jurisdiction of this Court. Our grant is deemed the taking of an appeal as of right. See generally, Beharry v. Mascara, 92 Pa. Cmwlth. 484, 499 A.2d 1129 (1985)

. Because we have already recognized and accepted jurisdiction in this case, and have acted upon that jurisdiction, the assumption of extraordinary jurisdiction under our powers of the King's Bench is neither possible nor necessary.

Id. at 909. Thus, we see no basis on which to grant Appellant's request that we invoke our King's Bench powers.

Having resolved the question of our jurisdiction over this matter, we turn to Appellant's first substantive issue. Appellant claims that Attorney Sharper and the trial court failed to comply with the procedural requirements for allowing counsel to withdraw. Therefore, he claims, the order dismissing his PCRA petition should be reversed and the case remanded to the PCRA court for further proceedings.

This court in Turner set forth the requirements which govern the withdrawal of appointed counsel in a collateral proceeding. We stated that counsel must present a "no-merit" letter which details the nature and extent of his review. Turner, 544 A.2d at 928. That letter must also list each issue the petitioner wished to have raised, with counsel's explanation of why those issues were meritless. Finally, the reviewing court must conduct its own independent review and agree with counsel that the issues raised were meritless. Id.

Appellant's first contention is that Attorney Sharper violated the dictates of Turner. His first series of claims allege that Attorney Sharper misconstrued several of Appellant's PCRA petition issues in his "no merit" letter. His first example of such misrepresentation involves Attorney Sharper's synopsis of Appellant's claim that "the [trial] court's instruction to the jury at the penalty phase of [Appellant's] trial prevented the jury from properly exercising its discretion to determine if a life sentence would be an appropriate penalty .... and deprived me of full and fair consideration of of (sic) evidence in mitigation by all jurors...." Appellant's PCRA petition. Attorney Sharper summarized this issue as "the court's charge to the jury at the penalty phase prevented the jury from properly excercising (sic) its discretion to give a life sentence." Appellant objects to this as Attorney Sharper's abbreviated version of this issue refers simply to "the jury" and not "all jurors". We agree with the Commonwealth that there is no distinction between the phrase "the jury" and "all jurors," and that Appellant is engaging in a senseless semantical exercise.

Next, Appellant claims that Attorney Sharper misconstrued his claim concerning the testimony of the eyewitness to the crime. Attorney Sharper condensed Appellant's rambling, one hundred word-plus issue to read as follows: "That the only eyewitness who identified [Appellant] as the perpetrator of the crime gave false and perjured testimony." Appellant now claims that Attorney Sharper did not put in his synopsis that Appellant had also alleged that the prosecution knew that the testimony was perjured and hid this fact from Appellant. This issue merits no relief. Attorney Sharper concluded that this issue had no merit because "[t]here is no evidence to support this bare allegation...." As there was no evidence to support the contention that the witness had perjured herself, then, a fortiori, the prosecution did not knowingly suppress this nonexistent evidence.

Appellant next raises several claims alleging that Attorney Sharper failed to comply with his obligations under Turner due to his failure to conduct extra-record investigations. Appellant first alleges that Attorney Sharper ought to have conducted an extra-record investigation of his claims that an eyewitness perjured herself and that the thumbprint evidence found at the crime scene was fabricated. We reject Appellant's argument. Attorney Sharper found nothing in the record to support Appellant's position on either of these claims. In addition, Appellant never suggested any reason to suppose that the testimony was false or that the thumbprint was fabricated, and failed to identify what Attorney Sharper should have investigated. Thus, Attorney Sharper's decision not to pursue an extra-record investigation was reasonable.

Furthermore, Turner does not mandate that counsel launch into an extra-record investigation of every claim raised by a PCRA petitioner on collateral attack. We also decline to engraft such a requirement onto the Turner holding. Compelling counsel to undertake a potentially exhaustive investigation where counsel has concluded that there is no merit to the claim—and where there is not even the barest indication that such an investigation will prove fruitful— would not serve the ends of justice.

Appellant next claims that Attorney Sharper improperly failed to conduct extra-record investigations of his allegation that "other crimes" evidence was improperly admitted at his trial. This claim is baffling. Discernment of the merits of such a purely legal claim would owe nothing to extra-record investigation.

Appellant also contends that the mannerisms of Judge Sabo, the presiding judge at his trial, prejudiced him in front of the jury, and that Attorney Sharper should have conducted an extra-judicial investigation of this claim. Again, we cannot fault the decision not to engage in an extra-record investigation on this claim since there was no indication of any impropriety on the part of Judge Sabo.

Next, Appellant claims that Attorney Sharper should have conducted a broad extra-record investigation in the hopes that he would have uncovered additional issues which were of arguable merit. Again, we emphasize that there is nothing in Turner which would mandate that such an investigation be conducted by an attorney.

Finally, Appellant claims that Attorney Sharper "did not even review the record itself for issues other than those raised by [Appellant in the PCRA petition]." Appellant's brief at 18. We reject this claim as Attorney Sharper stated that he had concluded that not only were the issues raised in the PCRA petition without merit, but also "that there are no other issues of arguable merit which could be raised in a counseled Amended Petition." No-merit letter dated 5/15/1995.

Next, Appellant argues that the trial court failed to comply with the dictate that after receiving a Finley letter, the PCRA court must independently review the record to determine if the issues have no merit. Appellant claims that the PCRA court never stated that it had conducted its own review of the record. Appellant is simply incorrect as Judge Sabo declared in his opinion that he "had carefully reviewed the record" in this matter. PCRA court slip op. at 2.

Appellant's next claim is that the PCRA court erred in dismissing his PCRA petition as the court failed to comply with the dictates of Pa.R.Crim.P. 1507(a). Specifically, Appellant argues that the Rule 1507(a) was violated when the PCRA court dismissed his petition without giving Appellant ten days prior notice. Appellant's analysis of Rule 1507 misses the rudimentary point that the rule is, by its title, applicable only to dispositions of PCRA petitions which occur without a hearing. In this matter, a hearing was held. Furthermore, we note that Rule 1508, which is applicable to a matter where a hearing has...