Com. v. Ragan

• Citation: 743 A.2d 390,560 Pa. 106
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Derrick RAGAN, Appellant.
• Decision Date: 22 December 1999
• Court: United States State Supreme Court of Pennsylvania

743 A.2d 390

560 Pa. 106

COMMONWEALTH of Pennsylvania, Appellee, v. Derrick RAGAN, Appellant.

Supreme Court of Pennsylvania.

Submitted July 2, 1999.

Decided December 22, 1999.

Reargument Denied February 3, 2000.

Fortunato N. Perri, Jr., Philadelphia, for Derrick Regan.

Catherine Marshall, Philadelphia, for Com Robert A. Graci, Harrisburg, for Office of Atty. Gen.

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

OPINION

NEWMAN, Justice.

Derrick Ragan (Appellant) appeals¹ from the Order of the Court of Common Pleas of Philadelphia County (PCRA Court), which denied his request for relief pursuant to the Post Conviction Relief Act² (PCRA). A jury convicted Appellant for murder of the first degree,³ possessing instruments of crime,⁴ and recklessly endangering another person,⁵ and a trial court entered a Judgement of Sentence imposing the death penalty. For the following reasons, we affirm the Order of the PCRA Court.

I. FACTS AND PROCEDURAL HISTORY

The Opinion that provided the decision of this Court in Appellant's direct appeal, Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994), summarized the facts of the case as follows:

This case arises from an incident which claimed the life of the victim, Darren Brown, on June 26, 1990. At approximately 4:00 p.m. on that date the victim's brother, Wendell Brown, became involved in an altercation over who should use a basketball court with one William Wingate, a friend of appellant's, at the Tustin playground in West Philadelphia. The fight, however, was broken up and Wendell left the playground. Wendell later returned to the playground where he encountered appellant, whom he had seen earlier with Wingate. Wendell told appellant to tell Wingate that a basketball game was not worth fighting over. Appellant said, "you're right" and claimed he would convey the message.

Believing his feud with Wingate was now over, Wendell returned to the playground later that evening with Marcus Watson and several other friends. While Wendell Brown was standing in the playground, Wingate and another man approached him from behind and began bludgeoning Mr. Brown with a baseball bat. The two men then retreated up a flight of nearby steps when Darren Brown came to his brother's aid. Wendell urged Darren that he was all right but Darren responded, "No f__k that, no one f__ks with my brother." He then pointed a finger at the top of the steps and said, "Let's go get them."

The two brothers started up the steps in pursuit of Wendell's assailants, with Darren in the lead. As the two passed appellant who was standing on the steps, Wendell turned and noticed appellant drawing a pistol from his waistband. Wendell punched appellant in the face, shouted for Darren to run, and then fled up the steps. Darren, however, froze and was shot in the chest. He fled a short distance then collapsed. Appellant fired three or four shots at Wendell, who escaped unharmed, and then pursued his already wounded victim. Standing over his victim, he pumped shot after shot into Darren Brown's prostrate body. Appellant then waved his weapon at the crowd and asked, "Does anybody else want some of this?"

Philadelphia Police Officer Rufus Harley and his partner arrived at the scene shortly after the shooting and found a crowd of approximately two hundred people scrambling for the exits of the playground. Upon entering, they found the body of Darren Brown lying face down in a pool of blood. He had been shot thirteen times.5

5The ballistics evidence introduced at trail [sic], as well as several witnesses, suggested that there was at least one additional gunman, who was never identified.

After the shooting, appellant fled to the home of his girlfriend, Tameka Brown. At 5:30 a.m. the next morning, he called his friend Kerry Pleasant and arranged for Pleasant to pick him up at Tameka Brown's residence at 6:00 a.m. The two then drove to North Philadelphia where Pleasant dropped off appellant.

Ragan, 645 A.2d at 816-17.

On July 12, 1990, the police arrested Appellant and charged him with the murder of Darren Brown. The Commonwealth tried Appellant before a jury in the Philadelphia County Court of Common Pleas (trial court). The jury returned a verdict of guilty of first-degree murder, possessing an instrument of a crime, and recklessly endangering another person. The trial court conducted a penalty hearing, as required by the Sentencing Code,⁶ and the jury found one aggravating circumstance,⁷ Appellant had previously been convicted of murder of the first degree,⁸ 42 Pa.C.S. § 9711(d)(10), and two mitigating circumstances, the age of Appellant at the time of the crime, 42 Pa.C.S. § 9711(e)(4), and his family environment under the "other evidence" mitigating circumstance, 42 Pa.C.S. § 9711(e)(8). On October 2, 1991, finding that the aggravating circumstance outweighed the mitigating circumstances, the jury sentenced Appellant to death. After denying Appellant's post-trial motions at a hearing, the trial court entered a Judgment of Sentence imposing the death penalty against Appellant. On direct appeal, this Court affirmed the Judgment of Sentence of the trial court on July 29, 1994. Ragan, 645 A.2d 811.

Appellant filed the instant PCRA petition for relief, his first, with the PCRA Court on December 23, 1996.⁹ The PCRA Court dismissed Appellant's petition without a hearing by Order, dated May 18, 1998. Appellant now appeals the dismissal to this Court.

II. DISCUSSION

A. PCRA

A petitioner seeking relief pursuant to the PCRA is eligible only if he establishes, by a preponderance of the evidence, that (1) his conviction resulted from one or more of the enumerated errors or defects provided in Section 9543(a)(2) of the PCRA; (2) he has not waived or previously litigated the issues he raises; and (3) the failure to litigate the issue prior to or during trial, or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(2), (3), (4); Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 160 (1999). A petitioner has waived an issue if the petitioner could have raised the issue but failed to do so before trial, at trial, on appeal, or in a prior state postconviction proceeding. 42 Pa.C.S. § 9544(b); Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 46 (1997). A petitioner has previously litigated an issue if 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, or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544(a)(2), (3); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 698 (1998).

B. ISSUES

Appellant frames each of his eight issues as claims of ineffectiveness of trial counsel, which is one of the possible grounds for obtaining post-conviction relief.¹⁰ 42 Pa.C.S. § 9543(a)(2)(ii). Seven of the eight issues concern alleged ineffectiveness for failing to object to a variety of jury instructions by the court. The remaining issue attacks the effectiveness of Appellant's trial counsel for failing to object to the alleged improper questions posed by the prosecutor to Appellant. To prove a claim of ineffectiveness of counsel, a petitioner must prove beyond a preponderance of the evidence the following: (1) the underlying claim is of arguable merit; (2) counsel's performance had no reasonable basis; and (3) counsel's ineffectiveness prejudiced defendant. Commonwealth v. Gopenhefer, 553 Pa. 285, 719 A.2d 242, 250 (1998), cert. denied, ___ U.S. ___, 120 S.Ct. 86, 145 L.Ed.2d 73 (1999). Furthermore, a petitioner cannot obtain postconviction relief by alleging ineffectiveness of prior counsel but presenting previously litigated claims shrouded under novel theories to support the claim of ineffectiveness. Commonwealth v. Pirela, 556 Pa. 32, 726 A.2d 1026, 1032 (1999).

1. Lack of Jury Instruction on Voluntary Manslaughter

Appellant first claims that his trial counsel ignored his request to seek a jury charge on voluntary manslaughter and failed to object when the trial court did not include such an instruction. Specifically, Appellant argues that he was entitled to a jury instruction on "heat of passion" voluntary manslaughter.¹¹ The trial court instructed the jury on the elements of first-degree and third-degree murder but not voluntary manslaughter. According to Appellant, at the time of his trial, federal law required Pennsylvania courts to provide, upon request, an instruction on voluntary manslaughter in all murder indictments, even in the absence of evidence to prove the elements of voluntary manslaughter. In support of this proposition, Appellant cites United States ex rel. Matthews v. Johnson, 503 F.2d 339, 346 (3d Cir.1974) (en banc), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975).¹² In response to Appellant's assertion of controlling federal law, we first note that, in interpreting federal case law, this Court is not bound by decisions of federal courts inferior to the United States Supreme Court, even though we may look to them for guidance. Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 359 n. 12 (1999); Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 39 (1998). Second, the issue before us rests squarely on a review of state law. Pennsylvania common law has evolved considerably since the Third Circuit announced Matthews.¹³ By the time the Third Circuit had published Matthews, we had already changed our substantive law to require an instruction on voluntary manslaughter whenever murder was at issue, even in the absence of evidence of passion or provocation.¹⁴Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, 148, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). Since 1983, applying the 1972 Crimes Code,¹⁵ we have repeatedly held that a voluntary manslaughter instruction is warranted only where the offense is at issue and...