Com. v. Smith, No. 436 CAP.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: William R. Toal, III, Amy Zapp, for Commonwealth of Pennsylvania
• Citation: 995 A.2d 1143
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Wayne SMITH, Appellant.
• Decision Date: 27 May 2010
• Docket Number: No. 436 CAP.

995 A.2d 1143

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

No. 436 CAP.

Supreme Court of Pennsylvania.

Submitted December 28, 2004.

Decided May 27, 2010.

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Stuart Brian Lev, Shawn Nolan, for Wayne Smith.

William R. Toal, III, Amy Zapp, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

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 the denial of

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guilt phase relief, and reverse the denial of penalty phase relief, remanding for a new penalty hearing

Appellant was charged with first degree murder and related offenses resulting from the strangling death of a young woman whose body was dumped in a creek.¹ At trial, the Commonwealth presented the transcribed, tape-recorded statement appellant gave police after waiving his Miranda² rights, in which appellant admitted killing the victim; he stated the victim agreed to have sex with him in exchange for drugs, and when he attempted to have sex with her, he became fearful she would accuse him of rape, so he strangled her and dumped the body in a nearby creek. Smith, at 1089.

Appellant claimed he was acting under a cocaine-induced psychosis at the time of the killing and was thus unable to form the specific intent for first degree murder. See id. Appellant admitted his guilt to third degree murder and urged the jury to find the evidence of psychosis reduced the degree of murder from first to third.³ Id. In support of his defense, appellant presented the testimony of Dr. Perry Berman, a licensed psychiatrist who testified regarding cocaine-induced psychotic disorder. Upon the Commonwealth's objection, the trial court precluded appellant from offering the testimony of another psychiatrist, Dr. George Woody, finding such testimony would be cumulative of Dr. Berman's. Id., at 1090. Dr. Woody was not present at the time of this ruling, having been detained in Philadelphia.

The Commonwealth rebutted Dr. Berman's testimony with that of Dr. Richard Cohn, a forensic toxicologist and pharmacologist. Dr. Cohn testified that although the level of cocaine in appellant's blood at the time of the murder was not ascertainable, if he had consumed the same amount as the victim, the amount found in the victim's blood was insufficient to induce psychosis. Id. He further opined appellant's ability to recall with clarity the events surrounding the victim's death was inconsistent with cocaine-induced psychosis, and appellant's specific intent was not negated by his cocaine ingestion. Id., at 1090-91.

Appellant again sought to introduce Dr. Woody's testimony, this time to rebut Dr. Cohn regarding the correlation between the dosage amount and cocaine-induced psychosis, and to opine regarding cocaine's effects on the body. Id., at 1091. Upon the Commonwealth's objection, the trial court again precluded such testimony as cumulative of Dr. Berman's. Id.

At the penalty phase, the Commonwealth sought to establish the aggravating circumstance in 42 Pa.C.S. § 9711(d)(12) (defendant has been convicted of voluntary manslaughter, as defined in 18 Pa.C.S. § 2503 or substantially equivalent crime in any other jurisdiction before or at time of offense at issue);⁴ defense counsel stipulated to the admission of the court file

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regarding appellant's prior manslaughter conviction in 1980

Defense counsel sought to prove the mitigating circumstances in 42 Pa.C.S. § 9711(e)(2) (defendant was under influence of extreme mental or emotional disturbance), id., § 9711(e)(3) (defendant's capacity to appreciate criminality of his conduct or to conform his conduct to requirements of law was substantially impaired), and id., § 9711(e)(8) (any other evidence of mitigation concerning defendant's character and record and circumstances of offense) — specifically, that appellant had an addiction problem, an abusive childhood, and he showed remorse for the crime. Counsel presented the testimony of appellant's mother and the case manager from a job training program appellant attended; the jury also heard Dr. Woody's videotaped testimony, the Commonwealth having withdrawn its previous objections.

The jury found the § 9711(d)(12) aggravator and § 9711(e)(2) and (e)(8) mitigators⁵ were established; it determined the aggravating circumstance outweighed the mitigating circumstances and sentenced appellant to death May 22, 1995.

Appellant filed a direct appeal; one of the issues he raised was that the trial court erred in refusing to permit him to present Dr. Woody's testimony during the guilt phase. We rejected this claim, along with all other issues raised, and affirmed the judgment of sentence. Smith, supra.

Appellant filed a PCRA petition before his direct appeal was final; the PCRA court dismissed it without prejudice. After certiorari was denied, see Smith v. Pennsylvania, 525 U.S. 847, 119 S.Ct. 118, 142 L.Ed.2d 95 (1998), appellant filed a pro se PCRA petition November 18, 1998.⁶ Counsel was appointed and filed an amended petition, raising claims of trial court error and ineffective assistance of trial counsel. Following a hearing, the PCRA court denied the petition. This appeal followed.

Our standard of review of the denial of PCRA relief is well settled: we examine whether the PCRA court's determination is supported by the evidence and is free of legal error. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, 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).

An issue underlying one of appellant's ineffectiveness claims was raised on direct appeal; specifically, we addressed the trial court's preclusion of Dr. Woody's testimony during the guilt phase. See Smith, at 1089-92. However, appellant now alleges counsel's ineffectiveness in connection with this issue; therefore, his issue is distinct

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from that raised on direct appeal and has 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, none of appellant's issues were raised at trial or on direct appeal; ordinarily, this would waive the underlying claims of trial error and trial counsel's ineffectiveness, as appellant is generally required to raise claims based on trial counsel's performance at the first opportunity when he has new counsel. See 42 Pa.C.S. § 9544(b); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).⁷ However, the public defender's office represented appellant both at trial and on direct appeal. "As a general rule, a public defender may not argue the ineffectiveness of another member of the same public defender's office since appellate counsel, in essence, is deemed to have asserted a claim of his or her own ineffectiveness." Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998) (quoting Commonwealth v. Ciptak, 542 Pa. 112, 665 A.2d 1161, 1161-62 (1995)); see also Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 39-40 n. 2 (2002) (same). Appellant raised his claims related to trial error and the public defender's trial stewardship at the first opportunity he was no longer represented by the public defender — in his PCRA petition, for which he received new appointed counsel. See Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 775 n. 7 (2004) (when appellant was represented by same counsel at trial and on direct appeal, PCRA proceeding is first opportunity to challenge prior counsel's stewardship, and analysis of such issue does not involve layered ineffectiveness claim). Therefore, he was not required to "layer" his claims by pleading and proving appellate counsel's ineffectiveness for failing to raise claims of trial counsel's ineffectiveness.⁸ 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)); see also Bond, at 53 n. 3 (Saylor, J., concurring) (where same attorney represented appellant at trial and on direct appeal, it is unnecessary to independently consider stewardship of direct appeal counsel regarding issue presentation and preservation).

To be entitled to relief on a claim of trial counsel's ineffectiveness, appellant must prove the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203,

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213 (2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the...