Com. v. Rainey

Citation656 A.2d 1326,540 Pa. 220
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Michael RAINEY, Appellant.
Decision Date24 March 1995
CourtUnited States State Supreme Court of Pennsylvania

Robert A. Graci, for Atty. General's Office.

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

OPINION

MONTEMURO, Justice.

On December 27, 1991, a jury found appellant, Michael Rainey, guilty of murder of the first degree 1, robbery 2, and related offenses. Three days later the jury imposed a sentence of death following a sentencing hearing held pursuant to 42 Pa.C.S. § 9711. After denying appellant's post-verdict motions, the trial court formally imposed a sentence of death as well as a consecutive sentence of ten to twenty years imprisonment for appellant's robbery conviction. This direct appeal automatically followed. 42 Pa.C.S. § 9711(h)(1).

Appellant's convictions stem from the murder of seventy-four year old Carroll Fleming, which occurred on December 7, 1991. On that date, appellant and two accomplices, co-defendant George Williams, age 20, and Alvin "Eyeball" Morgan, age 14, concocted a scheme to rob Fleming who lived with his son Francis two blocks away at 5522 Sprague Street in Philadelphia. Appellant armed himself with a sawed-off 20-gauge pump action shotgun, and stated that he would "shoot [Fleming] if he had to." Appellant and his coconspirators then proceeded to Fleming's home.

While en route, the three men encountered a friend, Kevin Lewis. Williams convinced Lewis that he was en route to collect a debt, and Lewis offered him his gun, an inoperative .25 automatic, which Lewis said could be used "as a threat."

Upon arrival at the victim's home, Morgan acted as a lookout while appellant and Williams proceeded onto the porch of the Fleming residence. Appellant loaded his shotgun with a yellow shell containing a single slug, and knocked on the door. Receiving no immediate answer, appellant kicked the door, damaging it. The elderly Mr. Fleming appeared, came onto the porch confronting the intruders, and turned toward Williams. Williams, cursing, pointed his handgun at Fleming and repeatedly pulled the trigger, but the gun merely made a clicking sound. Appellant, who had retreated off the porch, then stepped out of the shadows, placed the muzzle of his shotgun against Fleming's back and fired.

All three conspirators were subsequently arrested and charged with the murder of Carroll Fleming. Appellant and Williams were tried together by a jury before the Honorable John J. Poserina on charges of murder, criminal conspiracy, robbery, possession of an instrument of crime, and carrying firearms on public streets. The evidence introduced by the Commonwealth during these proceedings included the eyewitness testimony of Kevin Lewis and Alvin Morgan, who had already pleaded guilty under a plea agreement. 3 In addition, the Commonwealth introduced Williams' redacted confession. As previously noted, appellant was found guilty of murder in the first degree and related offenses, and the case proceeded to the penalty phase.

During the penalty phase, the Commonwealth used the evidence introduced at trial to establish the existence of one aggravating circumstance, namely, that the murder had been committed during the perpetration of another felony. 4 The Commonwealth also stipulated that appellant was 18 years old at the time of the murder, and had no significant history of prior criminal convictions. The jury found that the aggravating circumstance introduced by the Commonwealth outweighed these mitigating factors, and imposed a sentence of death.

Following the sentencing hearing, appellant's trial counsel filed post-trial motions and was permitted to withdraw. Appellant's present counsel then filed supplemental post-trial motions alleging, inter alia, trial counsel's ineffectiveness. A hearing on these allegations was held on September 28, 1993, at which the testimony of appellant's trial counsel was presented. On December 1, 1993, the trial court denied appellant's post-trial motions and formally imposed a sentence of death as well as a consecutive term of imprisonment of ten to twenty years for appellant's robbery conviction. Appellant brings the present appeal, raising six allegations of ineffective assistance of counsel, and two additional claims of error which he asserts entitle him to a new trial. Having reviewed these claims, we affirm.

In bringing this appeal, appellant does not challenge the sufficiency of the evidence to sustain his convictions. Nevertheless, we are required to review the record and test the sufficiency of the evidence for murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452. It is well established that the test for determining the sufficiency of the evidence is "whether, viewing all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner, the trier of fact could have found that the defendant's guilt is established beyond a reasonable doubt." Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985); Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). A criminal homicide constitutes murder in the first degree when it is committed by an intentional killing. 18 Pa.C.S. § 2502(a). At trial, the Commonwealth introduced eyewitness testimony relating the aforementioned events. This testimony, when viewed in a light most favorable to the Commonwealth, was clearly sufficient to sustain appellant's conviction for first degree murder. Thus, we turn to the issues raised by appellant.

Ineffectiveness of Counsel

Appellant raises six allegations of ineffective assistance of counsel which he argues entitle him to a new trial. The three-prong test under which these allegations are to be reviewed is well settled and was recently articulated by this Court in Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994). First, a defendant must show his claim to be of arguable merit. In the event this threshold requirement is satisfied, the defendant must next establish that defense counsel had no reasonable basis for undertaking or failing to undertake the act or omission in question. Finally, the defendant must show that there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. In other words, that the defendant must have suffered actual prejudice from the act or omission. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant first claims that counsel was ineffective for failing to argue in his summation for an acquittal based upon character evidence presented at trial, and for failing to request a jury instruction concerning character testimony. At trial, appellant's sister, Angelique, and two neighbors; Patricia and Rufus Weary were presented as character witnesses.

This contention, however, ignores the fact that during the September 28, 1993, hearing on post-trial motions, appellant's trial counsel testified that he had not focused on character evidence in his summation, and had not requested a jury instruction concerning character testimony because throughout the trial, he had conceded appellant's involvement in the Fleming homicide and instead argued that the facts of the case established no more than murder in the second degree. In light of this strategy, trial counsel concluded that it would have been unproductive to ask the jury to consider the good character of an individual who had admitted participating in an attempted robbery which resulted in the death of the victim. This testimony clearly establishes that trial counsel possessed a reasonable basis for his actions. Thus, appellant's claim fails the second prong of the test articulated in Douglas, supra, 537 Pa. 588, 645 A.2d 226.

Further in light of the weakness of the character testimony presented by appellant, we are unable to conclude that appellant was in any way prejudiced by his counsel's failure to focus on it. At the hearing on post-trial motions, appellant's trial counsel testified that the character witnesses had been called at his client's insistence and against his advice. Trial counsel further stated that his fears had proved to be well-founded since the half-hearted testimony provided by these witnesses could at best be characterized as weak, and had not made a particularly positive impression on the jury. (Notes of Testimony, 9/28/93 at 10). Angelique Rainey merely testified that appellant had a good reputation as a result of his work "around the house" (Notes of Testimony (N.T. 12/26/91 at 56). Patricia and Rufus Weary, meanwhile, did not even appear in court until after appellant and his co-defendant had rested, and the co-defendant's counsel had finished his closing argument. Appellant was then permitted to reopen his case and call these witnesses. Patricia Weary characterized appellant's reputation in the community as "well good" and offered no further elaboration. Rufus Weary, in turn, stated that appellant's reputation had been, "for the years we was hanging together, good."

In light of the overwhelming evidence introduced by the Commonwealth, the outcome of appellant's trial would not have been different if trial counsel had mentioned this feeble character evidence. Thus, appellant's claim does not provide a basis for relief because it fails not only the second, but also the third prong of the test for ineffective assistance of counsel.

Appellant's second and third allegations of ineffective assistance contend that trial counsel was...

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