Com. v. Priovolos
| Decision Date | 23 July 1998 |
| Citation | 715 A.2d 420,552 Pa. 364 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Ernest PRIOVOLOS, Appellee. |
| Court | Pennsylvania Supreme Court |
Thomas J. Short, Oreland, for Ernest Priovolos.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
We allowed appeal in this case to determine whether the Superior Court erred in remanding the matter for a new hearing pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, on the basis that PCRA counsel who represented Appellee at the initial hearing was ineffective.
On January 19, 1990, a jury convicted Appellee Ernest H. Priovolos ("Priovolos") of third degree murder and related offenses in connection with the death of Cheryl Succa. 1 Priovolos' trial counsel withdrew and new counsel filed post-verdict motions, alleging, inter alia, ineffective assistance of trial counsel. Following argument, the trial court denied the motions and sentenced Priovolos to an aggregate term of 12 to 27 years imprisonment. Post-verdict counsel filed an appeal and subsequently withdrew. Appellate counsel was appointed, and Priovolos again raised ineffectiveness of trial counsel as a basis for relief on direct appeal. The Superior Court affirmed the judgment of sentence.
Priovolos subsequently filed a pro se PCRA petition, and PCRA counsel was appointed to represent him. PCRA counsel filed a supplemental petition, which included allegations of ineffectiveness on the part of trial counsel for failing to call certain witnesses. These particular claims of ineffectiveness had not previously been raised, either in the post-verdict proceedings or on direct appeal. Following a hearing, the PCRA court denied Priovolos' petition by order dated July 11, 1994. After a timely notice of appeal was filed, PCRA counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), and was granted leave to withdraw by the Superior Court. New counsel was appointed to represent Priovolos on appeal from the PCRA court's denial of collateral relief.
Priovolos' primary contention on appeal was that hearing counsel was ineffective for failing to present the testimony of certain witnesses, including post-verdict counsel and several of the persons Priovolos maintains should have been called at trial. The Superior Court agreed and remanded the case for a new PCRA hearing. Following denial of its request for reargument, the Commonwealth petitioned for permission to appeal, which was granted.
The Commonwealth contends that the Superior Court erred in concluding that PCRA counsel was ineffective and in remanding for a new PCRA hearing on the ineffectiveness of trial counsel. It argues that, since Priovolos has no constitutional right to counsel on collateral review, he is therefore not entitled to relief on his ineffectiveness claim.
It is generally true that a petitioner has no federal constitutional right to counsel in a state collateral proceeding. Commonwealth v. Travaglia, 541 Pa. 108, 139, 661 A.2d 352, 367 (1995)(citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). Moreover, in accordance with decisions of the United States Supreme Court, it follows that an asserted deprivation of effective assistance of counsel on state collateral review does not generally state a claim for relief under the United States Constitution. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991). 2 This Court, however, has not decided whether a right to effective assistance of post-conviction counsel would accrue under the Pennsylvania Constitution. See Travaglia, 541 Pa. at 139, 661 A.2d at 367; see also Commonwealth v. Jermyn, 551 Pa. 96, ---- n. 22, 709 A.2d 849, 857 n. 22 (1998).
Even if Priovolos' assertion of a right to effective counsel lacks a constitutional dimension, the right to counsel at issue is accorded by Pennsylvania Rule of Criminal Procedure 1504(a) to an indigent petitioner who, like Priovolos, is proceeding on his first PCRA petition. This Court has recognized both that appointed counsel must discharge the responsibilities under the rule and that a remedy may be fashioned where counsel fails to do so. See, e.g., Commonwealth v. Sangricco, 490 Pa. 126, 133, 415 A.2d 65, 68-69 (1980). Therefore, to determine whether the decision to remand was appropriate, we look to the merits of Priovolos' request for a new PCRA hearing.
In order to make a claim of ineffectiveness for failure to interview or present a witness, a petitioner must demonstrate: (1) the existence and availability of the witness; (2) counsel's awareness of, or duty to know of, the witness; (3) the willingness and ability of the witness to cooperate and appear on behalf of the defendant; and (4) the necessity of the proposed testimony in order to avoid prejudice. Commonwealth v. Morales, 549 Pa. 400, 419-20, 701 A.2d 516, 526 (1997) (citing Commonwealth v. Stanley, 534 Pa. 297, 300, 632 A.2d 871, 872 (1993)). Furthermore, to merit entitlement to an evidentiary hearing on a claim of ineffectiveness, a defendant must "set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that ... counsel may have, in fact, been ineffective." Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). 3
For example, in Travaglia, 541 Pa. at 140-41, 661 A.2d at 368, in considering a claim of ineffectiveness of counsel for failure to call witnesses at a PCHA hearing, this Court concluded that, without a showing that the result of the hearing would have been different had the witnesses been called, the petitioner could not meet the requirement of establishing prejudice. Accordingly, the petitioner was not entitled to a further hearing. See Travaglia, 541 Pa. at 141, 661 A.2d at 368.
In this case, Priovolos alleges that the following witnesses should have been called at the PCRA hearing: Eugene Sweeney; James Daniels; James Tucker; Marty Schmidt; Suzanne Synnestvedt; Holt Wilkerson; Eugene Green, Esquire; and unidentified character witnesses, apparently to support alibi testimony given at trial by Priovolos' relatives. Priovolos alleges that Sweeney, Schmidt and Synnestvedt have information (apparently acquired through varying levels of hearsay) that Ms. Succa was not in Priovolos' company, but was in the company of...
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