Com. v. Romero

• Decision Date: 28 December 2007
• Docket Number: No. 315 CAP.,315 CAP.
• Citation: 938 A.2d 362
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Edwin Rios ROMERO, Appellant.
• Court: Pennsylvania Supreme Court

938 A.2d 362

COMMONWEALTH of Pennsylvania, Appellee v. Edwin Rios ROMERO, Appellant.

No. 315 CAP.

Supreme Court of Pennsylvania.

Submitted August 1, 2001.

Decided December 28, 2007.

[938 A.2d 367]

Alexandra B. Fensterer, Norman, OK, Christina Allison Swarns, New York, NY, for Edwin Rios Romero.

Theodore Rafael Racines, Allentown, Robert A. Graci, Harrisburg, for Com., appellee.

BEFORE CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN, FITZGERALD, JJ.

[938 A.2d 368]

OPINION

Justice EAKIN.

Appellant appeals from the order denying him relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

Appellant was convicted of the first degree murder of David Bolasky, who was lured to Miguel Moreno's apartment in Allentown under the pretense Moreno intended to pay him rent money. Bolasky was attacked and killed inside the apartment by appellant, George Lopez, and Jorge Barbosa. Moreno was not present during the killing, but implicated himself, Lopez, Barbosa, and appellant when he confessed to the police.

Barbosa confessed to Captain Anthony Bucarey and implicated appellant, Lopez, and Moreno. Barbosa stated he struck Bolasky on the head with a pistol, and he, appellant, and Lopez took turns tightening a towel around Bolasky's neck until he was dead. Bolasky's body was hog-tied, wrapped in bed sheets, carried out of the apartment building, and loaded into Bolasky's van. Appellant, Lopez, and Barbosa drove to a desolate area, dumped the body, and abandoned the van. Bolasky's hog-tied body was subsequently found wrapped in bed sheets along a secluded road. Barbosa pled guilty and received a life sentence.

Appellant and Lopez were tried jointly. During the guilt phase, Barbosa testified about the involvement of Lopez and Moreno in the killing, but refused to answer questions regarding appellant's involvement. Despite being held in contempt of court, Barbosa refused to answer questions regarding his prior statements as they related to appellant. The trial court permitted Captain Bucarey to read Barbosa's transcribed statement from the tape-recorded police interview which explicitly implicated appellant in the murder.¹ Moreno also testified, implicating appellant in the crime. Appellant's cellmate, Daniel Lopez, testified appellant admitted to him the facts of his involvement in the robbery and murder.

The jury found appellant guilty of first degree murder and returned a verdict of death after finding four aggravating circumstances and no mitigating circumstances.² On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014 (1999). The United States Supreme Court denied certiorari. Romero v. Pennsylvania, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 293 (1999). On October 25, 1999, appellant filed a pro se PCRA petition and received appointed counsel who filed an amended petition. Following a hearing, the PCRA court denied appellant's petition. Appellant now appeals, raising 25 issues for our review.³

In reviewing an order granting or denying post conviction relief, we examine whether the PCRA court's determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999). To be entitled to relief under the PCRA, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and "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." Id., § 9543(a)(4). An issue is previously litigated 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...." Id., § 9544(a)(2).

Several of the issues underlying appellant's ineffectiveness claims were addressed on direct appeal; specifically, we addressed the admission of Barbosa's prior police statement and noted there was sufficient evidence to support the aggravating circumstances. Romero, at 1016-19, 1021 n. 8. However, appellant now alleges counsel's ineffectiveness in connection with these issues; therefore, his issues are distinct from those raised on direct appeal and have not been previously litigated. See Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 570, 573 (2005) (term "issue" as used in §§ 9543(a)(3) and 9544(a)(2) "refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief ...."; ineffectiveness claims are distinct from claims raised on direct appeal, and must be treated as wholly independent of underlying claim of error).

Regarding waiver, we note none of appellant's issues were raised at trial or on direct appeal;⁴ thus, the underlying claims of trial error were waived. 42 Pa.C.S. § 9544(b). However, appellant may still obtain relief if he can show appellate counsel was ineffective for failing to pursue the claims of trial counsel's ineffectiveness. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003) (when court is faced with "layered" ineffectiveness claim, only viable ineffectiveness claim is that related to most recent counsel, appellate counsel)).

To preserve a "layered" ineffectiveness claim,

a petitioner must "plead, in his PCRA petition," that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Additionally, a petitioner must "present argument on, i.e. develop each prong of the [Commonwealth v.] Pierce [, 515 Pa. 153, 527 A.2d 973 (Pa.1987)] test" as to appellate counsel's deficient representation. "Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review; then, and only then, can the court proceed to determine whether the petitioner has proved his layered claim."

Id., at 656 (citations and footnote omitted) (emphasis in original); see also McGill, at 1021-23.

The "Pierce test" requires appellant to prove, with respect to appellate counsel's performance, that: (1) the underlying claim of trial counsel's ineffectiveness has arguable merit;⁵ (2) appellate counsel had no reasonable basis for failing to pursue the claim; and (3) but for appellate counsel's ineffectiveness, the result on direct appeal would have differed. See McGill, at 1022-23. This "performance and prejudice" test was first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and was recognized in Pierce as the proper test under the Pennsylvania Constitution. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n. 23 (2000) (citing Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (1999) (ordinarily, post conviction claim of ineffective assistance of counsel may be denied by showing petitioner's evidence fails to meet any one of three prongs for claim)).

Appellant has met the pleading requirement. In his PCRA petition, he properly pled appellate counsel's ineffectiveness for not raising trial counsel's ineffectiveness for failing to challenge the alleged errors at trial. See Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9, 12 (1994) (ineffectiveness claim must be raised at earliest stage at which counsel whose stewardship is being challenged no longer represents appellant). In his brief, appellant discusses trial counsel's ineffectiveness and includes a sentence concerning appellate counsel's ineffectiveness in connection with each issue; he attempts to overcome waiver with a catch-all, boilerplate assertion of all prior counsel's ineffectiveness for failing to litigate these issues. See Appellant's Brief, at 3, 99-100. He also presents argument concerning his underlying claims of trial error and trial counsel's ineffectiveness, satisfying the first prong of Pierce with respect to appellate counsel. However, he fails to develop the remaining two prongs concerning appellate counsel's stewardship; thus, he has failed to preserve his claims of appellate counsel's ineffectiveness as required by McGill.

In cases where the appellant has established the arguable merit of his underlying claim of trial counsel's ineffectiveness, thus establishing the first prong of Pierce with respect to appellate counsel, remand may be warranted for the opportunity to develop the remaining two prongs regarding appellate counsel's ineffectiveness. Rush, at 657. "Nevertheless, there is simply no need to remand a PCRA petition when the petitioner has not carried his Pierce burden in relation to the underlying claim of trial counsel's ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim, the petitioner's claim would not entitle him to relief." Id., at 657-58. Thus, we need not remand if appellant has not met his burden of proving the underlying claim of trial counsel's ineffectiveness.

As discussed below, appellant has not demonstrated his entitlement to relief on any of these underlying claims. Since all of appellant's underlying claims of trial counsel's ineffectiveness fail, his claims of appellate counsel's ineffectiveness are necessarily defeated as well. McGill, at 1023. Therefore, we need not remand in order for him to develop the remaining two prongs of Pierce with respect to appellate counsel. See Rush, at 657-58; McGill, at 1026. We now turn to address appellant's claims.

Whether appellant's conviction must be reversed because the trial was not commenced within the time constraints of the interstate agreement on detainers.

Appellant argues the charges against him should have been dismissed...