Com. v. Tedford

• Citation: 960 A.2d 1
• Decision Date: 19 November 2008
• Docket Number: No. 456 CAP,456 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Donald TEDFORD, Appellant.
• Court: Pennsylvania Supreme Court

960 A.2d 1

COMMONWEALTH of Pennsylvania, Appellee v. Donald TEDFORD, Appellant.

No. 456 CAP

Supreme Court of Pennsylvania.

Submitted July 19, 2005.

Decided November 19, 2008.

Matthew C. Lawry, Defender Ass'n of Pennsylvania, for Donald Tedford, appellant.

William Ross Stoycos, Office of Attorney General, Amy Zapp, Harrisburg, Jonelle Harter Eshbach, York, for the Com. of PA, appellee.

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

OPINION

Chief Justice CASTILLE.^*

Appellant Donald Tedford appeals from the order of the Court of Common Pleas of Butler County ("PCRA court") denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we hold that appellant is not entitled to relief and, accordingly, affirm the order of the PCRA court.

On February 6, 1987, a jury sitting before the Honorable Floyd A. Rauschenberger convicted appellant, who was represented by counsel, of first-degree murder¹ and rape.² The convictions arose from an incident occurring in Cranberry Township, Butler County, in which appellant, who was on work-release from the State Correctional Institution at Greensburg, lured the twenty-two-year-old victim, Jeanine Revak, to his place of employment, raped her, and then strangled her to death to prevent her from notifying the police of the rape. Following a penalty hearing at which appellant elected to present no mitigation evidence, the same jury found two aggravating circumstances and no mitigating circumstances, and accordingly returned a sentence of death. See 42 Pa. C.S. § 9711(c)(iv) (verdict must be sentence of death if jury unanimously finds at least one aggravating circumstance and no mitigating circumstance). The two aggravating circumstances found by the jury were: (1) appellant committed the killing while in the perpetration of a felony (rape), 42 Pa.C.S. § 9711(d)(6); and (2) 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). On March 20, 1987, the trial court formally imposed the death sentence for the first-degree murder conviction, and a consecutive term of imprisonment of 8½ to 17 years for the rape conviction.

Subsequently, appellant was permitted to file post-verdict motions nunc pro tunc. The trial court then appointed new counsel to represent appellant, and amended post-verdict motions were filed. The motions raised multiple issues of trial court error and over 80 claims of trial counsel ineffectiveness, including trial counsel's alleged failure to investigate and call witnesses, recall certain prosecution witnesses, impeach prosecution witnesses, present scientific evidence, challenge the prosecution's forensic evidence, and present mitigating circumstances. On April 29, 1988, the trial court, after a hearing, denied appellant's post-trial motions.

On direct appeal, this Court unanimously affirmed appellant's convictions and sentences. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989) ("Tedford I") (relating facts underlying appellant's convictions). In so holding, this Court considered various claims raised by appellant, including claims of trial counsel ineffectiveness.³ Our disposition of the ineffectiveness claims was brief. After noting that appellant had presented both counseled and pro se claims of ineffectiveness below, the Court ruled as follows:

Essentially, the appellant, in his allegations of ineffective assistance of counsel, takes a "shotgun" approach and attempts to challenge every decision trial counsel made with respect to his failure to call or recall certain witnesses and the questioning of the witnesses who were called and did testify.

We have reviewed the entire record in this case, including the evidentiary hearing of February 1, 2 and 3, 1988 and appellant's pro se amended and corrected motions filed on February 19, 1988, and conclude that the claims of ineffectiveness of trial counsel raised by the appellant are meritless. We find no error in the lower court's order in dismissing all of appellant's ineffectiveness claims.

Id. at 626.⁴ Appellant did not petition for a writ of certiorari in the U.S. Supreme Court.

On July 12, 1995, appellant filed a pro se PCRA petition and new counsel was appointed ("PCRA counsel"). On August 2, 1995, the PCRA court entered an order dismissing appellant's pro se PCRA petition without prejudice and directing appellant to file a new PCRA petition with counsel's assistance within 30 days. After being granted several time extensions, on January 15, 1997, appellant filed his new petition. On January 28, 2000, the PCRA court dismissed the PCRA petition, determining that it was untimely because it was appellant's second PCRA petition and had not been filed within one year of December 13, 1989, the date this Court issued Tedford I. On appeal, this Court reversed the PCRA court and remanded the case for consideration of the merits of the claims raised in appellant's January 15, 1997 PCRA petition. Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167 (2001) ("Tedford II"). This Court held that the 1997 PCRA petition merely amended appellant's pro se PCRA petition filed on July 12, 1995, and thus was not a second petition. Moreover, this Court held that the amended PCRA petition was timely under 42 Pa.C.S. § 9545(b)(1), having been filed within one year of the effective date of the 1995 amendments to the PCRA, i.e., by January 16, 1997. See Act of Nov. 17, 1995, P.L. 1118, No. 32.

Following this Court's remand, the PCRA court, per the Honorable Thomas J. Doerr, denied appellant's renewed request for discovery, but permitted the filing of another amended PCRA petition. Thereafter, on March 5, 2004, the PCRA court dismissed all but one of appellant's claims. The remaining claim alleged that appellant's appellate counsel, an attorney in the Butler County Public Defender's Office, possessed a conflict of interest at the time of his representation. On May 18, 2004, the PCRA court held an evidentiary hearing solely on the conflict of interest claim. Appellant requested that Judge Doerr recuse himself from the case on the basis that he was a member of the Butler County Public Defender's Office at the time of appellant's trial and the time relevant to the conflict of interest claim. Judge Doerr denied appellant's request. On July 16, 2004, the PCRA court entered an order denying relief on the conflict of interest claim. This appeal followed.⁵

At the outset, we note that because appellant filed his pro se petition prior to the PCRA's 1995 amendment and this Court has already held that PCRA counsel's 1997 PCRA petition merely amends appellant's pro se petition, this case is governed by the pre-amendment PCRA. See Commonwealth v. Boyd, 547 Pa. 111, 688 A.2d 1172, 1174 n. 2 (1997) ("Appellant filed his PCRA petition before the 1995 amendments to the Act became effective in January of 1996. Therefore, [the pre-amendment PCRA] applies to this case."). With the exception of Section 9453(a)(2)(v), which was deleted, the differences between the amended and pre-amendment PCRA do not affect the present appeal.⁶ Under the pre-amendment PCRA, a petitioner may be eligible for relief if, by a preponderance of the evidence, he proves the following:

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

* * * *

(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.

42 Pa.C.S. § 9543(a)(2)-(4) (amended 1995).

Before turning to appellant's individual claims, some discussion of the framework for our review is helpful. Most of appellant's claims sound in ineffective assistance of counsel. To obtain relief on a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient and that such deficiencies prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052; see also Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 702-04 (2008), petition...