Com. v. Small, No. 472 CAP.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtEakin
Citation980 A.2d 549
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. John Amos SMALL, Appellee.
Decision Date05 October 2009
Docket NumberNo. 472 CAP.,No. 484 CAP
980 A.2d 549
COMMONWEALTH of Pennsylvania, Appellant
v.
John Amos SMALL, Appellee.
No. 472 CAP.
No. 484 CAP
Supreme Court of Pennsylvania.
Submitted June 6, 2006.
Re-Submitted January 5, 2009.
Decided October 5, 2009.

[980 A.2d 555]

Matthew C. Lawry, Philadelphia, for Small, John Amos.

Clarence N. Patterson, Jr., York, Office of the District Attorney, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.

Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

[980 A.2d 556]

OPINION

Justice EAKIN.


A jury convicted John Small of attempted rape and first degree murder for killing Cheryl Smith in 1981. Small was tried jointly with co-defendant James Frey, who was also convicted of first degree murder and attempted rape. The facts underlying Small's conviction follow:

O]n the evening of August 5, 1981, a group of people, including the victim, attended a party in the Borough of Hanover. Even though many of the attendees at the party were underage, large quantities of alcohol and marijuana were consumed. At some point during the evening, a fight erupted and the police were called to the scene. Prior to the arrival of the responding police officers, a group of the partygoers left in two separate vehicles and drove to a local tavern. After consuming more alcohol at the tavern, the group drove to a wooded area outside of Hanover, known as "the Pines." Several members of the group departed. At one point, the victim left the remaining members of the group and went into the woods to relieve herself. She was followed by [Small] and co-defendant James Frey. Sometime thereafter, witnesses testified that they heard the victim scream. An eyewitness, Larry Tucker, later testified at trial that he had followed [Small] into the woods and then watched [Small] and the co-defendant grab the victim, throw her to the ground and say to her "you give it to everybody else." [Small] was seen shortly thereafter coming out of the woods with blood on his hands. Co-defendant Frey followed several minutes later and the remaining members of the group then left the Pines leaving the victim in the woods. The victim was never seen alive again and her body was found seven weeks later, in a spread eagle position, naked from the waist down with her shirt rolled around her neck, exposing her upper torso. Forensic evidence indicated that the cause of death was a head trauma.

No arrest was made for a number of years. Finally, police investigators learned that [Small] had been making incriminating statements implicating himself in the murder. Linda Rhinehart testified that she overheard [Small] at an arcade in Hanover state to some friends that: "I followed her into the woods `cause I was going to get some of that.... She won't be a tease anymore. It's amazing what a tire iron can do to hush someone making that much noise." Cerenna Hughes testified that [Small] told her that after the night at the Pines, Cheryl "run away" and "she gave in, she gave up." Harry H. Carper III testified that sometime during 1981, he visited [Small] at his home and [Small] stated "he might have killed" Cheryl Smith and that "he hit her over the top of her head." Lastly, Janice Small, [Small's] wife at the time of the murder, testified that one night in 1981 when Carper was visiting at their residence, she overheard [Small] say to Carper "I killed a girl.... [We] hit her over the head, dumped her ass in the woods and left her there." She also testified that on one occasion when she was reading a newspaper article about the murder, [Small] walked by and said, "that's the girl we killed."

Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 671-72 (1999) (footnotes omitted). At the penalty phase, the jury found two aggravating circumstances and two mitigating circumstances, and the aggravating circumstances outweighed the mitigating

[980 A.2d 557

circumstances.1 The jury imposed a death sentence for the murder conviction. This Court affirmed. Id., at 671. The United States Supreme Court denied certiorari. Small v. Pennsylvania, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42 (2000).

Small filed a timely Post Conviction Relief Act (PCRA) petition, which was amended shortly thereafter. The Commonwealth filed a motion to dismiss the petition, which the PCRA court granted on 372 of the 397 paragraphs in Small's petition. The court conducted a hearing concerning the remaining 25 claims, most of which alleged ineffective assistance of counsel. The PCRA court divided the remaining 25 claims into seven groups, addressing each separately. See PCRA Court Opinion, 12/16/04, at 7-8. The PCRA court found merit in three claims.

First, Small contended his trial attorneys, Robert O'Brien and Robert Evanick, were ineffective for failing to procure two trial witnesses. In 1995, State Police interviewed Darick Sofi and Robert Elzey regarding a conversation they had with Larry Tucker, the Commonwealth's main witness against Small. The interviews revealed Sofi, Elzey, and Tucker were driving in a wooded area in 1991 when Tucker told them they could not remain there long because "this is where I iced this chick." Id., at 11. At trial, Tucker denied making the statement. Small's attorneys failed to produce Sofi or Elzey to rebut Tucker's denial. The PCRA court found trial counsel were ineffective for failing to produce either witness. Id., at 19.

Second, the PCRA court found trial counsel were ineffective for failing to object to Janice Small's testimony under the confidential communications marital privilege. See 42 Pa.C.S. § 5914. Janice Small, then Small's wife, testified she was reading the newspaper, and Small walked into the room and said, "That's the girl we killed." PCRA Court Opinion, 12/16/04, at 25. The court noted only Small and Janice Small were in the room, and the confidential privilege applied. Id. The court relied on Commonwealth v. Spetzer, 572 Pa. 17, 813 A.2d 707 (2002) (plurality opinion), which held where the marriage is in a severe state of disharmony, the confidential communications privilege is inapplicable. Finding no evidence of marital disharmony, the court found Spetzer distinguishable, and found counsel were ineffective for failing to object to the confession on confidential communications grounds. PCRA Court Opinion, 12/16/04, at 26-27.

Lastly, the PCRA court found merit in Small's assertion of ineffectiveness resulting from a conflict of interest arising from Attorney Evanick's prior representation of one of co-defendant Frey's witnesses, Patrick Berlan. Id., at 31, 813 A.2d 707. At Small's trial, Berlan testified regarding a conversation he had with Tucker in 1993 about the Smith murder. Two years prior to trial, the York County Public Defender's Office represented Berlan. Attorney Evanick was York County's chief public defender. When the public defender's office represented Berlan, Berlan never

980 A.2d 558

mentioned the Smith murder, although he was trying to help police solve some crimes. Attorney Evanick wanted to use that information to impeach Berlan. However, as he informed the court, he had learned the information as part of the attorney-client relationship with Berlan. To avoid breaking the privilege, Attorney Evanick agreed with the Commonwealth to work out a stipulation that would inform the jury about that information without breaking the privilege. However, no such stipulation was reached, and Attorney Evanick did not cross-examine Berlan on this matter. Id., at 28-30, 813 A.2d 707.

Relying on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the PCRA court found the apparent conflict of interest actually affected the adequacy of Attorney Evanick's representation of Small. As such, the PCRA court found prejudice did not have to be demonstrated under Sullivan. PCRA Court Opinion, 12/16/04, at 30.

Ultimately, the PCRA court concluded these three claims were meritorious and warranted a new trial, stating, "An inadmissible admission of killing, the non-appearance of witnesses who could undermine the credibility of the prosecutor's chief witness, and a retreat from aggressive cross examination of a witness due to a perceived conflict, in combination, raise a reasonable probability that the outcome of Small's trial would have been different if not for these errors and omissions of counsel." Id., at 33.2

The Commonwealth appealed the PCRA court's order granting Small a new trial. We address those issues first. Small cross-appealed the PCRA court's order denying his remaining claims. We address those issues second.

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). We are bound by the PCRA court's credibility findings where those determinations are supported by the record. Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 99 (2004) (citation omitted).

I. Commonwealth's Appeal

In review of ineffective assistance of counsel claims, counsel is presumed effective. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 594 (2007). To overcome this presumption, Small must establish his underlying claims have arguable merit, counsel had no reasonable

980 A.2d 559

basis for their action or inaction, and he was prejudiced by counsel's ineffectiveness.3 Id. In order to show prejudice, he must show but for the act or omission in question, the proceeding's outcome would have been different. Id.

Although claims of trial counsel's ineffectiveness raised for the first time in a PCRA petition are no longer waived, Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), that holding does not apply here because Small's direct appeal concluded prior to Grant. See Washington, at 594-95. In pre-Grant cases, allegations relating to trial counsel's stewardship were waived if not raised by new counsel during post-trial or direct...

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61 practice notes
  • Commonwealth of Pa. v. Smith
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 29, 2011
    ...position that the courts may make some cold-record credibility determinations. See, e.g., Commonwealth v. Small, 602 Pa. 425, 484–85, 980 A.2d 549, 584–85 (2009) (Saylor, J., concurring). To my knowledge, however, no workable standard has been announced to guide the courts in the evenhanded......
  • Commonwealth v. Champney
    • United States
    • Pennsylvania Supreme Court
    • April 24, 2013
    ...that, but for the act or omission in question, the outcome of his trial would have been different. Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 559 (2009). Champney's statements to police on May 13, 1998, constituted a significant portion of the Commonwealth's case against him. Indeed,......
  • Commonwealth of Pa. v. Spotz
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 29, 2011
    ...conflicting interests [,] and the actual conflict adversely affected counsel's performance.” Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (2009) (citing Spotz V, 896 A.2d at 1232); see also Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (2009) (rejecting the view that counse......
  • Commonwealth of Pa. v. Martin
    • United States
    • United States State Supreme Court of Pennsylvania
    • August 17, 2010
    ...v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 657 n. 10 (2007) (internal citations omitted); see also Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 583 (2009) (Saylor, J., concurring) ("[T]his Court has clarified that the appellate review of ineffectiveness matters is ultimately de novo. See......
  • Request a trial to view additional results
61 cases
  • Commonwealth of Pa. v. Smith
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 29, 2011
    ...position that the courts may make some cold-record credibility determinations. See, e.g., Commonwealth v. Small, 602 Pa. 425, 484–85, 980 A.2d 549, 584–85 (2009) (Saylor, J., concurring). To my knowledge, however, no workable standard has been announced to guide the courts in the evenhanded......
  • Commonwealth v. Champney
    • United States
    • Pennsylvania Supreme Court
    • April 24, 2013
    ...that, but for the act or omission in question, the outcome of his trial would have been different. Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 559 (2009). Champney's statements to police on May 13, 1998, constituted a significant portion of the Commonwealth's case against him. Indeed,......
  • Commonwealth of Pa. v. Spotz
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 29, 2011
    ...conflicting interests [,] and the actual conflict adversely affected counsel's performance.” Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (2009) (citing Spotz V, 896 A.2d at 1232); see also Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (2009) (rejecting the view that counse......
  • Commonwealth of Pa. v. Martin
    • United States
    • United States State Supreme Court of Pennsylvania
    • August 17, 2010
    ...v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 657 n. 10 (2007) (internal citations omitted); see also Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 583 (2009) (Saylor, J., concurring) ("[T]his Court has clarified that the appellate review of ineffectiveness matters is ultimately de novo. See......
  • Request a trial to view additional results

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