Com. v. Uderra

Citation580 Pa. 492,862 A.2d 74
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Jose UDERRA, Appellant.
Decision Date21 October 2004
CourtPennsylvania Supreme Court

862 A.2d 74
580 Pa. 492

COMMONWEALTH of Pennsylvania, Appellee,
Jose UDERRA, Appellant

Supreme Court of Pennsylvania.

Submitted September 16, 2003.

Decided October 21, 2004.

Reargument Denied January 21, 2004.

862 A.2d 78
Alexandra B. Fensterer, Esq., Christina Allison Swarns, Esq., Philadelphia, for Jose Uderra

Hugh J. Burns, Esq., Amy Zapp, Esq., Philadelphia, Commonwealth of Pennsylvania.



Justice SAYLOR.

Appellant, Jose Uderra, seeks relief from his conviction and sentence in this capital, post-conviction appeal.

In October of 1991, Appellant robbed, beat, shot, and killed Michael Sharpe in a Philadelphia street following a dispute concerning a sale of illicit drugs. In 1993, he was tried jointly with a coconspirator, Juan Perez, and convicted, inter alia, of first-degree murder. In the course of a penalty proceeding, the jury found one aggravating circumstance, that the killing was committed while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and no mitigating circumstances, and, accordingly, sentenced Appellant to death. See 42 Pa.C.S. § 9711(c)(iv). Substitute counsel was appointed for the post-trial proceedings and appeal. Post-trial motions were denied, this Court affirmed the conviction and sentence, see Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998), and the United States Supreme Court denied certiorari, see Uderra v. Pennsylvania, 526 U.S. 1070, 119 S.Ct. 1465, 143 L.Ed.2d 550 (1999).

Appellant subsequently filed a pro se petition for relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, which was amended then supplemented by appointed counsel. In these submissions, Appellant set forth claims deriving from: asserted violations of his constitutional rights arising from his trial counsel's failure to life qualify prospective jurors and to rehabilitate those who expressed opposition to the death penalty; alleged discriminatory use of peremptory challenges by the district attorney; the trial court's failure to conduct a competency hearing; claimed violations of Appellant's Confrontation Clause rights via admission into evidence at the joint trial of his non-testifying co-defendant's incriminatory confession; allegedly erroneous admission into evidence of physical evidence seized from Appellant's person in violation of Fourth Amendment protections; trial counsel's purported failure to investigate, develop, and present guilt phase defenses concerning Appellant's intoxication and mental health deficits at the time of his offenses; the Commonwealth's asserted presentation of misleading evidence, which conflicted with the statement of a witness who was not called to testify at trial; the trial court's reasonable doubt charge; a claimed failure on the part of trial counsel to investigate, develop, and present substantial mitigating evidence at the penalty phase of trial; closing argumentation by the district attorney at the penalty phase; the trial court's jury instructions concerning the nature and use of aggravating and mitigating factors in penalty deliberations; the proportionality review performed by this Court; and assertedly misleading information concerning the character of a life sentence in Pennsylvania. Appellant also asserted an entitlement to discovery and an evidentiary hearing regarding witness participation in the Philadelphia District Attorney's Office witness security program.

862 A.2d 79
Furthermore, he charged that all of his prior counsel were ineffective for failing to litigate the claims that he raised in the post-conviction proceedings; he was entitled to relief from his conviction and sentence because of the cumulative effect of the alleged errors; and he was entitled to an evidentiary hearing. Appellant also submitted a series of affidavits, reports, records, and other documents as an evidentiary proffer

The PCRA court denied the petition without an evidentiary hearing, holding that Appellant's pleadings failed to raise any issue of material fact that, if proven, would entitle him to relief. See Pa.R.Crim.P. 909(B)(2). Appellant filed a timely notice of appeal to this Court and has submitted a brief encompassing each of the issues raised in the PCRA court.

As a threshold matter, most claims arising out of a trial (including claims of trial court error and ineffective assistance of trial counsel) are waived if not raised and preserved at the time of trial and/or in the direct appeal. See 42 Pa.C.S. §§ 9543(a)(3), 9544(b). Accordingly, the bulk of Appellant's claims are presently cognizable only as derivative claims via overlayering allegations of ineffective assistance on the part of trial and/or direct appeal counsel.1 See generally Commonwealth v. McGill, 574 Pa. 574, 584-91, 832 A.2d 1014, 1020-25 (2003). Although in a number of instances our review, below, entails evaluation of the potential merit of underlying claims that are waived, such assessment is employed solely as a means of determining the viability of extant derivative claims and/or Appellant's entitlement to an evidentiary hearing with respect to the derivative claims. See id. at 591-92, 832 A.2d at 1024-25 (explaining that a layered claim cannot be sustained where the underlying claim is unmeritorious).

With this background, we review Appellant's claims in the order in which they are raised in his brief.

A. Life Qualification and Rehabilitation from Death Disqualification

Appellant first argues that his Sixth, Eighth, and Fourteen Amendment rights were violated, because the trial court death qualified prospective jurors (or asked questions to ensure that each could impose a sentence of death), but did not similarly life qualify them to thus assure that each was capable of imposing a life sentence in appropriate circumstances. Relatedly, Appellant claims that counsel's stewardship was deficient in his failure to determine, by means of individual voir dire, whether the prospective jurors could fairly consider the possibility of a life sentence. Appellant acknowledges this Court's decisions holding that counsel will not be deemed ineffective for failing to life qualify a jury, see, e.g., Commonwealth v. Bond, 572 Pa. 588, 616-17, 819 A.2d 33, 50 (2002); Commonwealth v. Rollins, 558 Pa. 532, 543-44, 738 A.2d 435, 441 (1999); Commonwealth v. Copenhefer, 553 Pa. 285, 301-02, 719 A.2d 242, 250 (1998), but distinguishes them on the basis that the jurors empaneled in those cases indicated that they could decide the matters fairly in accordance with the law. See, e.g., Rollins, 558 Pa. at 543-44, 738 A.2d at 441. According to Appellant, it is clear from the record that at least one juror was empaneled in his trial proceedings who would vote for death in every first-degree murder case. See N.T. May 24, 1993, at 99 (reflecting the response of the venireperson ultimately seated as Juror 3 to death qualification questioning by the district attorney,

862 A.2d 80
to the effect that she would impose a death sentence "[i]f I thought they did it"). Furthermore, Appellant complains that his trial counsel should have attempted to rehabilitate prospective jurors who expressed opposition to the death penalty. In particular, Appellant observes that venireperson 14 from panel 3 was stricken for cause without any questioning by, or objection from, defense counsel after the juror indicated that she had difficulty with the death penalty but could follow the law. See N.T. May 25, 1993, at 70-71. Appellant posits that the exclusion of this potential juror occurred under circumstances identical to those addressed by the Third Circuit in Szuchon v. Lehman, 273 F.3d 299, 328-31 (3d Cir.2001), in which federal habeas corpus relief was afforded

As Appellant indicates, this Court applies the prevailing view that, although a capital defendant is entitled upon his request to inquire whether a prospective juror would automatically impose the death penalty, see Morgan v. Illinois, 504 U.S. 719, 736, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992), defense counsel is not constitutionally required to ask such questions. See Bond, 572 Pa. at 616-17, 819 A.2d at 50; Rollins, 558 Pa. at 543-44, 738 A.2d at 441; Copenhefer, 553 Pa. at 301-02, 719 A.2d at 250; accord, e.g., Stanford v. Parker, 266 F.3d 442, 454-55 (6th Cir.2001); People v. Childress, 191 Ill.2d 168, 246 Ill.Dec. 352, 730 N.E.2d 32, 36 (2000). As noted, Appellant attempts to distinguish this line of decisions, by indicating that one juror who sat in judgment of him and his co-conspirator stated during voir dire that she could impose the death penalty "[i]f I thought they did it," thus revealing an inherent bias. As the Commonwealth observes, however, Appellant fails to develop the context of this reference. Indeed, in the relevant line of questioning, the district attorney repeatedly couched his questions in terms of the venireperson's ability to impose the death penalty in the event that she believed that it was warranted under the relevant facts and law.2 Since Appellant offered nothing reasonably to suggest that any juror was inclined in all circumstances to sentence capital defendants to death, we find no error in the PCRA court's summary rejection of this claim.

Appellant's second line of argumentation, which concerns his trial counsel's

862 A.2d 81
failure to attempt to rehabilitate a venireperson who expressed her personal objection to exaction of the death penalty, derives from the following exchange:
[DISTRICT ATTORNEY]: As you have heard His Honor mention in his preliminary instructions, should you be part of this Jury and should the Jury return a verdict of guilty of murder in the first degree, we would then proceed to a second proceeding at which time the Jury considers the death penalty and the proper penalty. His Honor would instruct you on the law in Pennsylvania and you might hear additional evidence. If based upon the law and the

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