Com. v. Rush

• Decision Date: 18 December 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Larry RUSH, Appellant.
• Court: Pennsylvania Supreme Court

838 A.2d 651

576 Pa. 3

COMMONWEALTH of Pennsylvania, Appellee v. Larry RUSH, Appellant.

Supreme Court of Pennsylvania.

Submitted April 13, 2000.

Decided December 18, 2003.

David Scott Rudenstein, Philadelphia, for L. Rush, appellant.

Hugh J. Burns, Philadelphia, for the Com. of PA, appellee.

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Chief Justice CAPPY.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant, Larry Rush's, petition seeking relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (hereinafter the "PCRA"). For the reasons that follow, we reverse the order of the PCRA court and remand for an evidentiary hearing.

In June of 1988, a jury convicted Appellant of first-degree murder, robbery, burglary, and possessing an instrument of crime related to the death of Veranica Hands.¹ Following the penalty phase, the jury found two aggravating circumstances—that Appellant committed the killing in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and that Appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9)— and no mitigating circumstances and sentenced Appellant to death. 42 Pa.C.S. § 9711(c)(1)(iv). New counsel represented Appellant in his post-verdict motions and on direct appeal. On appeal, this court affirmed the judgment of sentence. Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994).

On January 14, 1997, Appellant filed a pro se petition under the PCRA. The court appointed David Rudenstein to represent Appellant on his collateral claims.² New counsel filed an amended petition for post conviction review. On March 11, 1998, the PCRA court sent notice to Appellant of its intent to dismiss his petition without a hearing. On May 11, 1998, the PCRA court granted the Commonwealth's motion to dismiss the petition without a hearing. Thereafter, on August 21, 1998, the court issued an opinion pursuant to Pa.R.A.P. 1925(a) regarding its dismissal of Appellant's petition. See, e.g., Commonwealth v. Roy Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999)(matter will be remanded to the PCRA court for further proceedings where PCRA court has adopted the Commonwealth's brief in its opinion pursuant to Pa.R.A.P.1925(a)). This appeal followed.

In the appeal to this court, Appellant raises seven issues for this court's review.³ Preliminarily, we note that this court has jurisdiction over Appellant's petition as we directly review the denial of post-conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d). Further, Appellant timely filed the instant petition as it was his first petition and was filed within one year of the effective date of the PCRA. Section 3(1) Act 1995 (Spec. Sess. No. 1), Nov. 17, P.L. 1118, No. 32.

The Commonwealth asserts that Appellant's claims are waived due to Appellant's failure to identify which provision of the PCRA supports his claims. 42 Pa. C.S. § 9543(a)(2). The Commonwealth also argues that the claims are waived since Appellant failed to "plead and prove" that the claims have not been previously litigated. 42 Pa.C.S. § 9543(a)(3). We acknowledge that this court has denied relief based upon a petitioner's failure to comply with the technical pleading requirements of the PCRA. Commonwealth v. Gorby, 567 Pa. 370, 787 A.2d 367, (2001); Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923 (2001) Nevertheless, in this case, we decline to deny relief on this basis. We emphasize that an appellant must do his utmost to comply with the pleading requirements of the PCRA. Nevertheless, in this instance, although Appellant does not cite a specific section of the PCRA, in his PCRA petition Appellant alleged that he was "victimized by ineffective assistance of trial and appellate counsel, which, in the circumstances of the particular case, so undermined the truth-determining process...", indicating that he is asserting that his conviction resulted from the ineffective assistance of counsel pursuant to 42 Pa. C.S. § 9543(a)(2)(ii). Further, our examination of the direct appeal in this matter reveals that the claims Appellant raises herein have not been previously litigated. 42 Pa.C.S. § 9543(a)(3). Accordingly, we decline to find these pleading failures fatal to further review of the instant appeal.

In this case, PCRA counsel is Appellant's fourth counsel. Appellant is presenting a "layered" claim of ineffective assistance of counsel as demonstrated by his pleading in the PCRA petition repeated above, wherein he refers to both trial counsel and appellate counsel ineffectiveness. This court recently set forth the governing standard for "layered" ineffective assistance of counsel claims in Commonwealth v. McGill, 832 A.2d 1014, 2003 WL 22227989 (Pa.2003).

McGill was the culmination of many years of refining PCRA review. First, in Commonwealth v. Albrecht we eliminated relaxed waiver in capital cases for purposes of collateral review. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Second, in Commonwealth v. Marrero, we held that a petitioner has the burden to properly plead ineffectiveness claims in order to be entitled to review under the PCRA. Marrero, 561 Pa. 100, 748 A.2d 202 (2000). Third, in Commonwealth v. (Craig) Williams, 566 Pa.553, 782 A.2d 517 (2001), we warned practitioners that we would strictly apply the substantive requirements of collateral review and would require a petitioner to prove his ineffectiveness claims related to each layer of representation. Id. at 525-26.

In McGill, Madame Justice Newman cogently synthesized this case law and explained that when a court is faced with a "layered" claim of ineffective assistance of counsel, the only viable ineffectiveness claim is that related to the most recent counsel, appellate counsel. See McGill at 1022. In order to preserve a claim of ineffectiveness, a petitioner must "plead, in his PCRA petition," that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Id. Additionally, a petitioner must "present argument on, i.e. develop each prong of the Pierce⁴ test" as to appellate counsel's deficient representation. Id. "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.

The opinion in McGill then elaborated on how a petitioner must present his claim of layered ineffectiveness. We explained that consistent with Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001) a petitioner must prove the three prongs of appellate counsel's ineffectiveness. Id. at 1022-23. The first prong of the ineffectiveness analysis as to appellate counsel's conduct—arguable merit—is best understood as a "nested" argument. In essence, to demonstrate that a layered claim of appellate counsel's ineffectiveness has arguable merit, the petitioner is required to set forth all three prongs of the Pierce test as to trial counsel's action or inaction. Id. If the petitioner does not satisfy any of the three prongs as to trial counsel's ineffectiveness, he will have failed to establish an ineffectiveness claim, since a claim of appellate counsel ineffectiveness is merely a derivative claim related to trial counsel's ineffectiveness. Id. If, however, the arguable merit prong of appellate counsel's ineffectiveness is established, i.e., the petitioner has established trial counsel's ineffectiveness, the inquiry proceeds to the remaining two prongs of the Pierce test as it relates to appellate counsel's ineffectiveness. Id. at 1023-24. Thus, as a threshold matter, we must determine whether Appellant preserved his claims.

As discussed above, this court requires that a petitioner properly plead and present his claim in order to preserve the claim and be entitled to review of the claim. McGill, supra. In his PCRA petition, Appellant raised the guilt phase and penalty phase claims as both trial and appellate counsel ineffectiveness.⁵ Thus, he has pleaded his claims properly. McGill supra. Curiously, however, in his brief to this court, with regard to the guilt phase claim, he presents no argument as to appellate counsel ineffectiveness; in fact, he fails to mention appellate counsel. With regard to the penalty phase claims, he merely appends a "boilerplate" assertion regarding appellate counsel ineffectiveness and does not develop his argument regarding appellate counsel ineffectiveness pursuant to Pierce. Thus, Appellant has not presented argument on his claims as required by McGill.

Our inquiry does not end at this point, since in McGill we recognized that due to confusion surrounding the presentation of "layered" claims of ineffectiveness, "a remand to the PCRA court may be appropriate for cases currently pending in the appellate courts where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review." Id. at 1024. We believe that omissions, such as the ones presented in this case, are specifically the type of presentation defect that the remand provision in McGill was created to address.

A remand, however, is not automatically appropriate. The decision in McGill also made clear that in the majority of cases, the appellate counsel claim is merely a derivative claim, which is based on the ineffectiveness of trial counsel.⁶ The court emphasized that none of the pleading and presentation requirements with regard to appellate counsel relieved a petitioner of pleading, presenting and proving the claim of ineffectiveness of trial counsel. Id. at 1024-25. These requirements have existed since Pierce and it is settled law that a petitioner must plead and present argument regarding trial counsel's conduct. Specifically, petitioner must assert that the claim is of...