Com. v. Stokes

• Decision Date: 30 December 2003
• Citation: 576 Pa. 299,839 A.2d 226
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ralph Trent STOKES, Appellant.
• Court: Pennsylvania Supreme Court

839 A.2d 226

576 Pa. 299

COMMONWEALTH of Pennsylvania, Appellee v. Ralph Trent STOKES, Appellant.

Supreme Court of Pennsylvania.

Submitted December 23, 2002.

Decided December 30, 2003.

Bernard L. Siegel, Philadelphia, for Ralph Trent Stokes, Appellant.

Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, for the Com. of PA, Appellee.

BEFORE: CAPPY, C.J., AND CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN AND LAMB, JJ.

OPINION

JUSTICE EAKIN.

Ralph Trent Stokes appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.¹

Appellant alleges trial court error, and ineffectiveness of trial and appellate counsel. Specifically, appellant asserts PCRA relief was improperly denied where:² (1) the trial court's jury instructions violated Mills v. Maryland;³ (2) all prior counsel were ineffective for not obtaining the notes of testimony of voir dire to determine whether the prosecutor engaged in racial discrimination during jury selection; (3) trial counsel was ineffective for not properly impeaching Commonwealth witness Donald Jackson; (4) trial counsel was ineffective for not objecting to numerous comments by the prosecutor during the guilt and penalty phase summations; (5) trial counsel was ineffective for not adequately preparing for sentencing; (6) the trial court erred in failing to instruct the jury during the penalty phase that life in prison in Pennsylvania means life without parole; and (7) the death sentence was based on an invalid aggravator.

Appellant's first, third, fifth, and seventh issues have been previously litigated. See 42 Pa.C.S. § 9543(a)(3) (to be entitled to post conviction relief, appellant must establish issues were not previously litigated). An issue has been 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). On direct appeal, this Court concluded the verdict slip did not contain language which would mislead the jury. Stokes, at 715. Further, the jury instructions complied with the penalty statute and our decision in Commonwealth v. Frey, 520 Pa. 338, 554 A.2d 27 (1989) (jury instructions and verdict slip which closely followed language in sentencing statute and did not state or infer requirement that any given mitigating circumstance must be unanimously recognized before it can be weighed against aggravating circumstances in reaching verdict does not violate Mills). Stokes, at 715. Accordingly, this Court held the verdict slip did not run afoul of Mills. Id. Appellant's passing mention of counsel's ineffectiveness will not revive this issue. See Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 2 (2001)

(appellant cannot obtain post conviction review of claims previously litigated on appeal by alleging ineffectiveness of prior counsel and presenting new theories of relief to support previously litigated claims).

Additionally, on direct review, this Court concluded trial counsel was not ineffective for failing to impeach Donald Jackson with his entire criminal history. Stokes, at 711. Counsel was prohibited from questioning the witness concerning non crimen falsi convictions; thus, he was not ineffective for failing to pursue this line of questioning.

In a related issue, appellant challenged trial counsel's stewardship by claiming he did not adequately prepare for sentencing and did not present certain mitigating evidence. Specifically, appellant contended trial counsel was ineffective for failing to argue mitigating circumstance (e)(1), "the defendant has no significant history of prior criminal convictions." 42 Pa.C.S. § 9711(e)(1). This Court determined this issue meritless in light of appellant's prior juvenile adjudication, noting:

[J]uvenile adjudications are admissible as "convictions" for consideration by the jury in a death penalty proceeding, under aggravating circumstance (d)(9): "the defendant has a significant history of felony convictions involving the use or threat of violence to the person." Thus, trial counsel's failure to pursue this deceptive offer of a mitigating circumstance was not prejudicial to appellant.

Stokes, at 714 (footnote omitted). Appellant's claim trial counsel failed to present a relevant summation was also determined to be meritless on direct appeal. This Court concluded this to be a component of trial strategy, citing Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596, 598 (Pa.1973) (decision to give summation, or what type of summation, is matter of trial strategy). Id.

On direct appeal, appellant also asserted he was entitled to a new trial because of the circumstances surrounding the jury's finding aggravating circumstance (d)(7) (grave risk of death to others). See 42 Pa.C.S. § 9711(d)(7). Although this Court determined the trial court erred in its instruction regarding this aggravating circumstance, this Court concluded the error did not invalidate the sentence because the jury found another aggravating circumstance⁴ and no mitigating circumstances. Stokes, at 714.

Turning to appellant's remaining issues, he asserts he was deprived of his right to a meaningful review because no record of the voir dire proceedings exists. Appellant asserts the incomplete record precludes him from developing the claim that the prosecutor engaged in racial discrimination during jury selection. See Appellant's Brief, at 21-32.

It is the appellant's responsibility to secure a complete record for review, see Pa.R.A.P.1911(a), and appellant asserts counsel was ineffective for failing to ensure there was a complete record. However, Pa.R.A.P.1923 provides:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

Id. The procedure set forth in Rule 1923 was not followed; because appellant had the opportunity to create a record from his recollection and chose not to do so, he cannot now complain of prejudice. See Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081, 1083 n. 1 (1978)

. Absent prejudice, appellant's ineffectiveness claim fails. Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1083 (2001).

Appellant asserts he is entitled to relief due to pervasive prosecutorial misconduct during the guilt phase summation. Further, he asserts trial counsel was ineffective for not objecting and appellate counsel was ineffective for failing to raise this claim on appeal.⁵ "Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761, 768 (2002) (OAJC). Further, when considering appellant's claims of prosecutorial misconduct, it must be noted a prosecutor's comments do not constitute evidence. Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711, 729 (1998). Here, the trial court instructed the jury of this fact several times. N.T., 7/7/83, at 1.21-22, 1.32; 7/21/83, at 12.4-6; 7/22/83, at 13.27-29. A jury is presumed to follow the court's instructions. Baez, at 722.

Appellant asserts trial counsel was ineffective for failing to object and request a curative instruction regarding the following remarks during closing at the guilt phase:

And, I will mention some biblical quotes, and it's really an unfair advantage to even go into the mentioning of biblical quotes. It is written: "inasmuch [sic] as you do this to the least of my brothers, you do it to me." Now, who are the least of these three? Could it have been Mrs. Figueroa ...

Or, is it Eugene Jefferson, the dishwasher...

Or, it is Peter Santangelo ...

Did Peter Santangelo die just because he was there, just because he was there? Who are the least of these?

* * *

You will have to look at the testimony of the convicted thief and convicted robber, an admitted participant in this case, and you will have to ask yourselves this question; Do I dare believe him?

* * *

Let's go back to that time on Calvary and remember what was on the right and what was on the left. There you had a thief on the right of him and a thief on the left of him.

* * *

But, does it amount to a reasonable doubt? And, that's a doubt based on reason, a doubt coming of the evidence.

I would submit to you, ladies and gentlemen, that there is no doubt. And, those among you, maybe going again on a biblical phrase, "Except that I see the prints of the nails and thrust my hand in the wound inside, I will not believe."

Do we have to pass these among you? Do you have to smell [sic] the gunpowder within the freezer? Do you have to experience the fear of Renard Mills, or do you have to stand up and do what you know is right?

* * *

Let him walk out of here, because if you could find as rational members of this community that what you see exhibited before you was not an intentional, willful, premeditated, planned killing of three people, maybe we go back and let me declare or you be declared Thomases, doubting Thomases all, for we have done everything we could do, and we being the police.

* * *

For those who are inclined for biblical quotes, we will talk about Old Testament, Daniel, "Ralph Trent Stokes, thou weighed in the balance, and you are found wanting, wanting for what you did."

N.T., 7/21/83, at 12.66-67, 12.76-77, 12.77-78, 12.80, 12.83-84 ...