Com. v. Travaglia

Decision Date21 August 1995
Citation541 Pa. 108,661 A.2d 352
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Michael J. TRAVAGLIA, Appellant.
CourtPennsylvania Supreme Court

Jerry S. McDevitt, Jeffrey T. Barbour, Pittsburgh, for M.J. Travaglia.

John J. Driscoll, Greensburg, John Peck, Arnold, for Com.

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



CAPPY, Justice. 1

This is a direct appeal from the final orders of the Court of Common Pleas of Westmoreland County denying Appellant's motion for disqualification of the Honorable Gilfert Mihalich and denying Appellant's second petition for post-conviction relief. 2 For the reasons discussed below, we affirm the Orders of the trial court.

Appellant and his codefendant, John C. Lesko, were tried jointly for the murder of Apollo Police Officer Leonard Miller at a trial presided over by Judge Mihalich. The jury convicted both defendants of first degree murder and conspiracy to commit criminal homicide; both defendants were sentenced to death. This Court affirmed Appellant's conviction and judgment of sentence. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984) ("Travaglia I ").

In 1985, Appellant filed a petition under the Post Conviction Hearing Act ("PCHA"). Relief was denied, and the Superior Court affirmed. Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (1986). This Court denied allocatur. Commonwealth v. Travaglia, 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, Travaglia v. Pennsylvania, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989) ("Travaglia II ").

On June 8, 1990, Governor Robert P. Casey signed a warrant for Appellant's execution. A stay was granted by the Honorable Alan M. Bloch of the United States District Court for the Western District of Pennsylvania on September 6, 1990, to allow Appellant to investigate and seek habeas corpus relief.

In May 1991, Appellant filed his second post conviction appeal, this time under the Post Conviction Relief Act ("PCRA"). 3 Appellant also filed a motion for disqualification of Judge Mihalich. The motion for disqualification as well as the petition for post-conviction relief were denied. This appeal followed. 4

To be eligible for post-conviction relief, an appellant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the errors or defects listed in § 9543(a)(2) 5, and that the issues he raises have not been previously litigated. An issue has been previously litigated if the highest appellate court in which an appellant could have had review has ruled on the merits of the issue, or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544. If the allegations of error have not been finally litigated, the PCRA also requires that an appellant demonstrate that these allegations of error have not been waived or that, if waived, the conditions in either § 9543(a)(3)(ii) or (iii) have been met. 6

Appellant raises several claims of constitutional error, including a plethora of ineffective assistance of counsel claims. To establish an ineffective assistance of counsel claim, appellant must first demonstrate that the underlying claim is of arguable merit; then, that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate Appellant's interest; and, finally, that but for the act or omission in question, the outcome of the proceedings would have been different. Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant bears the burden of proving all three prongs of this standard. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992). If it is clear that Appellant has not met the prejudice prong of the ineffectiveness standard, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984).

Before we address Appellant's claims, we note that this is Appellant's second collateral attack. We have held that a "second or subsequent petition for post-conviction relief will not be entertained 'unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.' " Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1099 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988).) This standard is met if Appellant can "demonstrate either: (a) that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (b) that he is innocent of the crimes charged." Szuchon, 534 Pa. at 487, 633 A.2d at 1100. Since Appellant does not assert that he is innocent, relief will be granted only if he can establish that the proceedings below "were so unfair that a miscarriage of justice occurred which no civilized society can tolerate." It is with awareness of this standard that we proceed to consider Appellant's claims.

Appellant alleges that there were errors at the guilt and sentencing phases of his trial, and that these errors (individually and cumulatively) made his trial "fundamentally unfair," such that he was denied due process in violation of the Fourteenth Amendment of the United States Constitution. See Lisenba v. People of the State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 289-90, 86 L.Ed. 166 (1941). Appellant also raises numerous claims of ineffectiveness of counsel, many of which are linked with his due process claims.

I. Alleged Errors in the Guilt Phase of Travaglia I
A. Issues Related to Evidence of the Nicholls Homicide

At the guilt phase of trial, Ricky Rutherford, a prosecution witness, testified as to criminal acts of Appellant and Lesko which were not included in the crimes charged at bar. These criminal acts centered on the abduction and eventual murder of William Nicholls, events which occurred a few days before Officer Miller was killed. 7 On direct appeal, we found that this evidence was properly admitted to show that the motive and intent of Appellant and Lesko to kill Officer Miller was to avoid detection of the Nicholls murder. Travaglia I, 502 Pa. at 492-494, 467 A.2d at 296-298. Appellant now raises several issues related to the admission of evidence of the Nicholls murder.

First, Appellant alleges that the Commonwealth misled him into believing that it would not introduce evidence concerning the Nicholls murder. Appellant alleges he was thus deprived of effective voir dire because he did not ask potential jurors whether they would be prejudiced by this information; Appellant also alleges that because he was misled, he was unfairly surprised by Rutherford's testimony. These issues are meritless.

To support his contention that the Commonwealth misled him, Appellant focuses on comments made by Lesko's attorney and the district attorney at a pre-trial conference held on May 30, 1980. Appellant directs our attention to that portion of the record where Lesko's attorney stated that he had spoken "with the district attorney, shallowly, but it's apparently the position of the district attorney that each homicide [the Nicholls and Miller homicides] is to be the subject of a separate trial. There is no connection between--no legal connection between the various homicides." (Trans., May 30, 1980, at p. 28). The district attorney attempted to reply, but was interrupted by Appellant's counsel. The prosecutor then said:

MR. GEARY (district attorney): Well, unfortunately, the murder of Mr. Nicholls is not being tried with this case. However, a police officer was shot in the line of duty, and we think the fact that the defendants were in a stolen car and were carrying identification papers from the individual who owned the car (Mr. Nicholls) is relevant to the issue of motive and intent.

Trans., May 30, 1980, p. 29. The trial court then interjected, stating that it would not address the issue of admissibility of this evidence at that time.

We do not agree that this interchange establishes, as Appellant contends, that the Commonwealth misled Appellant into believing that it did not intend to introduce evidence of the Nicholls murder. Rather, the Commonwealth plainly stated that it considered such evidence relevant to prove motive and intent. Furthermore, a review of the record makes it clear that the prosecutor did not attempt to mislead Appellant. Appellant's claims that he was denied effective voir dire and was unfairly surprised because the prosecutor misled him are thus meritless.

Appellant also raises related ineffective assistance of counsel claims. He alleges that his trial counsel, Dante Bertrani, was ineffective in failing to pursue on appeal these issues related to the Commonwealth misleading him. Since we have determined that the underlying issues are meritless, Appellant's related ineffective assistance of counsel claims also fail. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 224, 495 A.2d 183, 189 (1985).

Appellant next argues that Rutherford's statement at trial that Lesko's and Appellant's actions in killing Nicholls seemed to him "like something they did all the time" (N.T., Vol. I, at p. 367) was prejudicial error. On direct appeal, this Court considered this statement and concluded that if it were error, it was harmless in view of the record and the trial court's immediate cautionary instructions. Travaglia I, 502 Pa. at 494, 467 A.2d at 298.

Appellant now tries to bootstrap this argument by...

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