Com. v. Smith

• Decision Date: 22 November 1994
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Clifford SMITH, Appellant.
• Court: Pennsylvania Supreme Court

Page 863

650 A.2d 863

539 Pa. 128

COMMONWEALTH of Pennsylvania, Appellee, v. Clifford SMITH, Appellant.

Supreme Court of Pennsylvania.

Submitted April 5, 1993.

Decided Nov. 22, 1994.

[539 Pa. 131] John J. Fioravanti, Doylestown, for C. Smith.

Alan M. Rubenstein, Doylestown, for Com.

Robert A. Graci, Harrisburg, for Commonwealth/A.G.

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

OPINION

NIX, Chief Justice.

Appellant, Clifford Smith, appeals from the denial of his petition for relief filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 ("PCRA"), in which he alleged ineffective assistance of trial counsel as well as constitutionally-based defects in his trial and sentence. For the reasons that follow, we affirm the Court of Common Pleas' denial of Appellant's petition.

On November 23, 1983, in a trial by jury, Appellant was found guilty of robbery, ¹ possession of instruments of crime, ² criminal conspiracy, ³ and murder of the first degree. ⁴ A separate sentencing hearing was held, and the jury sentenced Appellant to death. Appellant's conviction and sentence were affirmed following a direct appeal to this Court. Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

Appellant subsequently filed a PCRA petition in the Court of Common Pleas, and his execution was stayed on October 18, 1991, pending the disposition of his petition. On May 20, 1992, the Court of Common Pleas issued an opinion and order denying Appellant's petition for relief and affirming the death sentence. Commonwealth v. Smith, No. 3120/1983 (C.P. Bucks County May 20, 1992). This appeal followed.

In order to prevail on a claim of ineffectiveness of counsel, Appellant must demonstrate: that the underlying claim has arguable merit; that the particular course chosen by counsel did not have some reasonable basis designed to effectuate Appellant's interests; and that he was prejudiced by counsel's action or inaction. Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987). In addition, trial counsel can never be found ineffective for failing to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Appellant first argues that trial counsel was ineffective for stipulating to an inaccurate prior criminal record at the penalty phase of his trial. Appellant submits that the discovery materials supplied to the defense erroneously indicated that he had two prior aggravated assault convictions which occurred in 1979 and 1982. He claims that the 1979 charge did not result in conviction, and therefore, trial counsel should not have stipulated that his record constituted a significant history of felony convictions for purposes of 42 Pa.C.S. § 9711(d)(9).

The trial court acknowledged that the prosecution had mistakenly included a 1979 aggravated assault conviction in Appellant's prior criminal history. Commonwealth v. Smith, No. 3120/1983, slip op. at 9. It also noted that the custodian of records for the Philadelphia County Court of Common Pleas testified that Appellant was convicted of robbery in 1978 and aggravated assault in 1982, both of which were felonies involving the threat or use of violence. Id. at 8. Thus, the court concluded that, despite the existence of an erroneous conviction for aggravated assault on his record, Appellant had a significant history of felony convictions involving the threat or use of violence. Id. Notwithstanding this conclusion, we find that Appellant's claim must fail because he has not met his burden of establishing prejudice.

At the penalty stage of Appellant's trial, the jury found two aggravating circumstances and no mitigating circumstances. ⁵ Pursuant to 42 Pa.C.S. § 9711(c)(1)(iv), when the jury finds at least one aggravating circumstance and no mitigating circumstances, it is required to return a sentence of death. Assuming arguendo that the aggravating circumstance under 42 Pa.C.S. § 9711(d)(9) is invalidated, there still remains one aggravating circumstance which is fully supported by the evidence. The existence of this aggravating circumstance, and the absence of any mitigating circumstance, requires that the death sentence be imposed pursuant to 42 Pa.C.S. § 9711(c)(1)(iv), irrespective of the validity of the other aggravating circumstance under 42 Pa.C.S. § 9711(d)(9). See Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987). (where jury found one aggravating circumstance and no mitigating circumstances, sentence of death was upheld even though another aggravating circumstance found by the jury was held invalid); Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984) (where jury found at least one proper aggravating circumstance and no mitigating circumstances, sentence of death was not only supported by the evidence, but required). Accordingly, we conclude that Appellant has failed to demonstrate that he was prejudiced by counsel's actions, and therefore, this claim of ineffectiveness must be rejected.

Appellant next asserts that trial counsel was ineffective for failing to present sufficient evidence of mitigation during the penalty phase. ⁶ He argues that additional testimony from members of his family would have presented mitigating evidence to the jury. Appellant also contends that trial counsel was ineffective for failing to call character witnesses to introduce evidence of his good character.

In response to charges that he failed to explore certain avenues of mitigation, trial counsel testified at the PCRA hearing that he believed exculpatory statements concerning specific instances of Appellant's conduct made by potential character witnesses may have revealed negative evidence relating to Appellant's reputation and prior criminal history. (N.T. 12/10/91, 141-42). In Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986),cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), we noted that "[a]lthough evidence of good character may not be rebutted by evidence of specific acts of misconduct, a character witness may be cross-examined regarding his knowledge of particular acts of misconduct by the defendant to test the accuracy of his testimony and the standard by which he measures reputation." Id. at 318, 513 A.2d at 382-83. We found that trial counsel in Peterkin had a reasonable basis for not pursuing potential character witnesses or presenting character evidence based upon his concern "that the potential harm from cross-examination of character witnesses outweighed the doubtful value of their testimony...." Id. at 319, 513 A.2d at 383. In the instant case, trial counsel expressed a similar concern about presenting certain character witnesses at the sentencing hearing based on the negative effect that might have resulted. We conclude that counsel's decision not to present additional character testimony was reasonable in view of the circumstances, and therefore, he can not be deemed ineffective.

Appellant next argues that trial counsel was ineffective for failing to explore the option of a guilty plea. In advancing this claim, Appellant submits that there have been no defendants in capital cases that have been sentenced to death after entering a guilty plea in the county in which he was tried. However, Appellant concedes, and the Commonwealth agrees, that he was never offered anything in exchange for a plea of guilty. Because there was no identifiable benefit from entering a guilty plea, it can not be said that Appellant is in a worse position than he otherwise would have been had he pled guilty. Moreover, Appellant's contention that a guilty plea might have resulted in a life sentence is pure speculation. Therefore, trial counsel's decision to proceed with a jury trial was a reasonable strategy, and we refuse to find him ineffective for pursuing such a course of action.

In his next allegation of ineffectiveness, Appellant claims that trial counsel should have asked prospective jurors during voir dire whether they would be prejudiced by the fact that he was black and the victims were white. Appellant cites Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990), but fails to explain how they are applicable to his claim of ineffectiveness. Furthermore, Appellant has not shown how he was prejudiced by this alleged deficiency. This Court will not consider abstract allegations of ineffectiveness; a specific factual predicate must be identified to demonstrate how a different course of action by trial counsel would have better served Appellant's interest. Commonwealth v. Forrest, 508 Pa. 382, 390, 498 A.2d 811, 815 (1985). Because Appellant has failed to meet his burden of demonstrating prejudice, this claim must be rejected.

Appellant next claims that the jury instructions used in his trial violated the standard in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In Mills, the United States Supreme Court declared a sentencing scheme invalid where the jury could have believed that it was precluded from considering any mitigating evidence unless all twelve jurors agreed on the existence of a particular mitigating circumstance. 486 U.S. at 384, 108 S.Ct. at 1870, 100 L.Ed.2d at 400. In the instant case, Appellant contends that the verdict slip was misleading in such a way that the jury might have believed that unanimity was required in finding mitigating as well as aggravating circumstances. Although the verdict slip used in the instant case is missing from the record, its language has been preserved in the trial transcript:

As you retire to deliberate, you will be given another form of verdict slip upon which to record your verdict and...