Com. v. Washington

• Decision Date: 15 August 2005
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Vinson WASHINGTON, Appellant.
• Court: Pennsylvania Supreme Court

880 A.2d 536

583 Pa. 566

COMMONWEALTH of Pennsylvania, Appellee, v. Vinson WASHINGTON, Appellant.

Supreme Court of Pennsylvania.

Submitted January 7, 2003.

Decided August 15, 2005.

Christina Allison Swarns, Esq., Philadelphia, for Vinson Washington.

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

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Chief Justice CAPPY.

This is an appeal in a capital case from the order of the Court of Common Pleas of Philadelphia County denying Appellant, Vinson Washington's petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. (hereinafter the "PCRA"). For the reasons that follow, we remand this matter for an evidentiary hearing before the PCRA court.

The underlying facts relevant to Appellant's conviction in this case are set forth in this court's opinion on direct appeal at Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018, 1019-20 (1997). Briefly, the essential facts are that on the evening of December 11, 1993, Appellant and his co-defendant, Rasheed Miller, pulled their car in front of the vehicle driven by Zachary Jackson. Appellant ordered Jackson out of his car at gunpoint and demanded money. Jackson refused, and Appellant shot him in the legs and torso four times. Appellant then retrieved another gun from his car and when Jackson continued to refuse Appellant's demand for money, Appellant fatally shot Jackson one more time in the abdomen. Appellant and his co-defendant fled the scene. Appellant subsequently was arrested on unrelated charges whereupon he confessed to shooting Zachary Jackson.

On November 4, 1994, Appellant was convicted of murder in the first degree for the killing of Zachary Jackson. The jury found the existence of one aggravating circumstance, that the killing occurred during the perpetration of a felony (robbery), 42 Pa.C.S.A. § 9711(d)(6), and the existence of one mitigating circumstance, that Appellant had no significant history of prior criminal convictions, 42 Pa.C.S.A. § 9711(e)(1). After weighing the aggravating and mitigating circumstances found, the jury returned a penalty of death. On direct appeal, this court affirmed the judgment of sentence. Washington, supra.

Appellant filed a petition for relief under the PCRA in July of 1998. Counsel was appointed and an amended petition was filed in April of 1999. The PCRA petition was supplemented with various affidavits in September, October, and November of 1999. An evidentiary hearing was held on January 10, 2001. The PCRA court denied relief, and the present appeal was timely filed.

The Commonwealth asserts that many, if not all, of Appellant's PCRA claims are procedurally barred because Appellant has failed to demonstrate that his claims are cognizable under the PCRA. Specifically, the Commonwealth argues that Appellant did not properly plead which provisions of the PCRA his claims are being brought under nor did he allege that his claims had not been previously litigated. 42 Pa.C.S. § 9543(a)(2) & (3). As for the claims that were not previously litigated, the Commonwealth asserts those claims are waived and cannot be considered under the umbrella of relaxed waiver. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998)

. Furthermore, in that Appellant attempts to avoid waiver by raising all of his current claims as ineffectiveness of counsel, all that Appellant does in that regard is utter a boilerplate assertion that previous counsel were ineffective, which the Commonwealth argues is insufficient to warrant this court's review of the claims.

The Commonwealth's assertions, although well considered, do not convince this court that the inadequacies of the current PCRA filings warrant a conclusion that Appellant's claims are procedurally barred. Through his initial pro se petition, the counseled supplemental and amended petitions, and within the substantive arguments in the supporting briefs, Appellant has adequately pled and presented argument on all of his claims so that the issues currently raised are cognizable under the provisions of the PCRA. 42 Pa.C.S.A. § 9543(a)(2)-(4).

Appellant raises eleven claims of error, presenting argument on each claim through layered ineffectiveness. In Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), this court clarified the law on layered ineffectiveness claims brought under the PCRA and set forth in detail the framework for pleading and proving such claims. When an issue is presented via a layered claim of ineffectiveness, the only viable claim is that related to the most recent counsel, usually, as in this case, appellate counsel. Id. at 1022. In order to preserve a layered claim of ineffectiveness, a petitioner must plead in his PCRA petition that appellate counsel was ineffective for failing to raise the ineffectiveness of all prior counsel. Id. A petitioner must then present the claim of ineffectiveness of appellate counsel through the three-pronged test of Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).¹ Id. Because it is a nested claim, in order to establish the first prong of the Pierce test as to the performance of appellate counsel, a petitioner is required to demonstrate the ineffectiveness of trial counsel. In other words, a petitioner must establish all three prongs of the Pierce test as to trial counsel's ineffectiveness before the question of appellate counsel's ineffectiveness can be addressed. Id. at 1022-23.

We recognized in McGill that prior caselaw was less than clear on how a PCRA petitioner seeking relief on a layered claim of ineffectiveness is required to plead, present, and prove that claim, so that in cases in which the briefs were filed prior to McGill, a remand may be appropriate. Id. at 1024. However, since a layered claim of ineffectiveness is typically a nested claim, the focus of the analysis turns on the ineffectiveness of trial counsel. In those cases in which the PCRA petitioner has properly pled and presented argument pursuant to the three-pronged test of Pierce on the question of trial counsel ineffectiveness, but failed to raise allegations, which even if accepted as true do not establish entitlement to relief on that underlying claim, there is no reason to remand for development of the claim of appellate counsel ineffectiveness per McGill, because the petitioner will never be able to establish entitlement to PCRA relief. Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003).

In this case, Appellant has pled all of his claims of error through the layer of appellate counsel ineffectiveness merely by including a boilerplate assertion that prior counsel was ineffective for failing to present any of the current claims on direct appeal. Appellant's brief, however, does not fully meet the criteria set forth in McGill for properly pleading, presenting, and proving a claim of appellate counsel ineffectiveness. As Appellant does plead and present argument on each claim in accordance with the three-pronged test of Pierce as to trial counsel ineffectiveness, review of these claims is appropriate to determine if Appellant has proven trial counsel ineffectiveness, and if a remand is necessary to allow Appellant the opportunity to comply with McGill. With these standards in mind, we turn to a consideration of the substantive claims presented in the current PCRA appeal.

The first claim of error is that trial counsel violated his duty of loyalty to his client by laboring under a conflict of interest that caused him to sabotage his defense of Appellant, thus violating Appellant's right to the effective assistance of counsel. Appellant asserts that trial counsel hated Appellant. In support of this allegation, Appellant relies on a letter trial counsel wrote to a psychiatrist, Dr. John O'Brien, whom counsel had contacted to aid in Appellant's defense. The letter, which included an order directing Dr. O'Brien's admission into the prison to interview Appellant, contained the following information as to Appellant, and a handwritten post-script:

. . . I have attached a news clipping as to Mr. Washington's case which will give you a rough idea of his situation. . . .

. . . Mr. Vinson Washington . . . denies the murders despite the fact that police have what they believe to be a genuine confession from him as to each of his four homicides.[²] I should also note that the police tell me that Mr. Vinson Washington and his co-defendants had names for each one of those guns that they used in each homicide. For example, one was called Chuckie and another was named after a cartoon character. Another was called the Joker after the gun that the Joker pulled out to shoot down Batman in the movie Batman. Nice folks huh?

* * * *

I am not sure that either of these gentlemen[³] has such a pathology which would endear him to a jury to render a jury sympathetic to him in anyway. But at least we can give it a try.

P.S. I'm just hoping these two guys have some redeeming qualities — Washington especially. He may epitomize the banality of evil.

PCRA exhibit, D-4; see also, Appendix to initial Brief of Appellant, Item 30. (Emphasis supplied, footnotes added).

Appellant's argument is that, because trial counsel articulated a strong antipathy towards him, counsel's performance at trial was driven by his distaste, causing him to act in a manner contrary to Appellant's best interests. In support of the assertion that trial counsel's attitude about Appellant detrimentally influenced trial counsel's performance, Appellant argues that trial counsel was deficient in his obligation as an advocate by failing to properly investigate Appellant's life history and provide that information to the expert witnesses called on Appellant's behalf, and in failing to adequately prepare the testimony of the expert witnesses. Trial counsel also is found wanting in his advocacy for failing to object to improper remarks made by the...