Com. v. Rivers

• Citation: 786 A.2d 923,567 Pa. 239
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Delores RIVERS, Appellant.
• Decision Date: 20 December 2001
• Court: Pennsylvania Supreme Court

786 A.2d 923

567 Pa. 239

COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Delores RIVERS, Appellant.

Supreme Court of Pennsylvania.

Submitted February 4, 2000.

Decided December 20, 2001.

Daniel Silverman, Philadelphia, for Delores Rivers.

Catherine Marshall, for Commonwealth.

William G. Young, Philadelphia, Robert A. Graci,Harrisburg, for Office of Attorney General.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

This is a direct appeal from the denial of a PCRA petition in a death penalty case. Rivers was convicted of first degree murder on March 15, 1989. The next day, the jury determined that there were two aggravating circumstances and no mitigating circumstances and fixed the penalty at death. This court affirmed the judgment of sentence at Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994), and the United States Supreme Court denied certiorari on March 18, 1996. Rivers v. Pennsylvania, 516 U.S. 1175, 116 S.Ct. 1270, 134 L.Ed.2d 217 (1996). Rivers filed a PCRA petition on December 21, 1996 pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (effective January 16, 1996), and on September 9, 1998 the PCRA court dismissed the PCRA petition. This appeal followed.

To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

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

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws 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.

(iii) A plea of guilt unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.

(4) That the failure to litigate the issue prior to or during trial, during unitary review 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)(1)-(4). In her appeal, Rivers raises twenty-two issues. Nine of these issues concern allegations of error at the guilt phase; ten issues concern allegations of error at the penalty phase; one issue concerns the allegation that the PCRA court is biased; one issue concerns allegedly newly discovered evidence and the final claim is that the errors cumulatively require relief.

Fearing that she has not met the requirements of the PCRA to preserve her guilt phase claims, Rivers states:

The claims for relief discussed in this brief were all presented in the PCRA proceedings below. This is appellant's first and only PCRA proceeding. This Court has always reviewed, on their merits, the claims raised by capital PCRA petitioners who were in a posture similar to that here.

All of appellant's claims are eligible for relief under the PCRA. With respect to each claim, appellant asserted below and in this Court that her conviction and/or sentence resulted from ineffective assistance of counsel and violations of the Constitutions of this Commonwealth and of the United States that undermined the truth-determining process. Furthermore, to the extent that the concept of waiver can properly be applied to this capital case, any waiver is overcome by appellant's allegations that prior counsel was ineffective to the extent that he failed to properly preserve, raise and litigate the claims presented herein.

Brief at 13-14.

Rivers' reliance on this court's unwillingness to apply ordinary principles of waiver to this case because it is a capital case is misplaced. As we stated in Commonwealth v. Albrecht, "Henceforth, a PCRA petitioner's waiver will only be excused upon a demonstration of ineffectiveness of counsel in waiving the issue." 554 Pa. 31, 720 A.2d 693, 700 (1998). Also misplaced is Rivers' belief that because she has "asserted below and in this Court" the ineffectiveness of counsel, violations of the constitution, and that such violations undermined the truth determining process, her guilt phase claims are not waived.

A cursory reading of the PCRA reveals that PCRA petitioners, to be eligible for relief, must, inter alia, plead and prove their assertions by a preponderance of the evidence. Section 9543(a). Inherent in this pleading and proof requirement is that the petitioner must not only state what his issues are, but also he must demonstrate in his pleadings and briefs how the issues will be proved. Moreover, allegations of constitutional violation or of ineffectiveness of counsel must be discussed "in the circumstances of the case." Section 9543(a)(2)(i-ii). Additionally, the petitioner must establish by a preponderance of evidence that because of the alleged constitutional violation or ineffectiveness, "no reliable adjudication of guilt or innocence could have taken place." Section 9543(a)(2)(i-ii). Finally, petitioner must plead and prove that the issue has not been waived or finally litigated, § 9543(a)(3), and if the issue has not been litigated earlier, the petitioner must plead and prove that the failure to litigate "could not have been the result of any rational, strategic or tactical decision by counsel." Section 9543(a)(4).

Moreover, because each of Rivers' claims is couched in terms of ineffectiveness of counsel, she must also prove, by a preponderance of the evidence, the following:

(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her course of conduct; and (3) that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Commonwealth v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 (1996). Counsel is presumed to be effective and Appellant has the burden of proving otherwise. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993). Additionally, counsel cannot be considered ineffective for failing to raise a claim that is without merit. Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994)....

Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999).

Although all of Rivers' guilt phase claims are couched in the boilerplate language that there has been constitutional error and "to the extent that [counsel] failed to properly preserve, raise and litigate this claim, prior counsel was ineffective and such ineffective assistance of counsel undermines confidence in the outcome of the proceeding," for no guilt-phase claim does Rivers offer proof that in the circumstances of the case, no reliable adjudication of guilt or innocence could have taken place; and nowhere does she present the three-part ineffectiveness analysis set out above, and in no case does Rivers establish that her claims are not waived, § 9543(a)(3), or that the failure to litigate an issue earlier "could not have been the result of any rational, strategic or tactical decision by counsel," Section 9543(a)(4).¹ Discussion of the circumstances of the case in claims of ineffectiveness of counsel is a particularly important requirement of the PCRA. Circumstances include not only the totality of the evidence that was introduced at trial, but may include also facts concerning the prosecution of the case and the appellant's interactions with her lawyer. Nowhere does Rivers discuss her ineffectiveness claims in the circumstances of the evidence at trial.² This is crucial, for courts need to be told why, when considering the totality of the case, the petitioner believes the claims she is making establish that the trial court could not have reliably adjudicated her guilt or innocence.

Consider, for example, Rivers' claim that the trial court erred and counsel was ineffective in not preserving the issue that certain members of the venire were improperly disqualified. As stated above, in all PCRA claims of ineffectiveness of counsel or that the law or constitution was violated, the appellant is required to plead and prove by a preponderance of evidence that in the circumstances of her case, the court could not have reliably adjudicated guilt or innocence. The circumstances in each case include the totality of the evidence established at trial with respect to the appellant's guilt. The facts established at trial are that appellant was smoking cocaine on the night of the murder two blocks from the victim's house, ran out of money to buy cocaine, left the crack house and reappeared a short time later spattered with blood, in the possession of a large knife, her shirt stuffed with fifty dollar bills, claiming that she had stabbed and robbed someone and asking for persons present to testify that she had been there...