Commonwealth of Pa. v. Hutchinson

• Citation: 25 A.3d 277
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Steven HUTCHINSON, Appellant.
• Decision Date: 22 August 2011
• Court: United States State Supreme Court of Pennsylvania

25 A.3d 277

COMMONWEALTH of Pennsylvania, Appellee

v.Steven HUTCHINSON, Appellant.

Supreme Court of Pennsylvania.

Submitted June 26, 2008.Decided Aug. 22, 2011.

David Lee Zuckerman, Defender Association of Philadelphia, Philadelphia, for Steven Hutchinson.Hugh J. Burns, Jr., Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice McCAFFERY.

This is an appeal from the denial of guilt phase relief sought by Steven Hutchinson (“Appellant”) in a petition filed pursuant to the Post Conviction Relief Act (“PCRA”).¹ Concluding that the ruling of the PCRA court is supported by the record and free of legal error, we affirm.

On December 9, 1999, a jury convicted Appellant of first-degree murder and other crimes for shooting to death one of his girlfriends, Stephanie Epps, in front of her two young children. The children had testified at trial, unequivocally identifying Appellant as the individual who had shot their mother. Appellant had presented an alibi defense, attempted to undermine the credibility of the children's testimony, and advanced the theory that the victim's estranged husband was responsible for the murder. The jury returned a verdict of death, and on direct appeal, this Court affirmed both Appellant's conviction and death sentence. Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002). Appellant then filed a PCRA petition, raising numerous guilt and penalty phase claims. After oral argument on February 21, 2006, and with the agreement of the Commonwealth, the PCRA court entered an order on July 25, 2006, granting Appellant a new penalty phase hearing. Shortly thereafter, on August 9, 2006, the same court entered another order denying all of Appellant's guilt phase claims. Appellant has now appealed from the denial of his guilt phase claims, raising ten issues for our review. ²

Our standard of review requires us to determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court's credibility determinations are binding on this Court when they are supported by the record. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532, 539 (2009). However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007).

To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, either of which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been waived “if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b). 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.” 42 Pa.C.S. § 9544(a)(2).

The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied “that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).

Appellant's first seven issues allege ineffective assistance of his trial counsel and appellate counsel. We begin our analysis of these issues with the presumption that counsel is effective; the burden of proving otherwise rests with the petitioner. Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 678 (2009). Accordingly, to prevail on his claims of ineffective assistance of counsel, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) Appellant suffered prejudice because of counsel's action or inaction. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008) (citing, inter alia, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the second, i.e., the “reasonable basis” prong, we will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Cox, supra at 678 (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). To establish the third prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008).

Because Appellant's direct appeal was decided in October 2002, approximately two months before this Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Appellant was required to raise claims of trial counsel ineffectiveness at the time that he obtained new counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (requiring that a petitioner raise claims of trial counsel ineffectiveness at the time he or she obtained new counsel). Although this Court overruled Hubbard in Grant,Hubbard was the prevailing law when Appellant's direct appeal was decided. See Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80, 85 (2008). Therefore, because the record shows that new counsel was appointed to represent Appellant on direct appeal, Appellant was required to raise claims of trial counsel ineffectiveness at that time.³ Accordingly, pursuant to the PCRA's statutory mandates, any claims of trial counsel ineffectiveness not raised on direct appeal have been waived. See 42 Pa.C.S. § 9544(b); Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 13 (2008).

Appellant may properly raise claims of appellate counsel ineffectiveness under the PCRA, including claims of appellate counsel ineffectiveness grounded in a failure to raise trial counsel ineffectiveness on direct appeal. Cox, supra at 678–79; Dennis, supra at 954–55; Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595 (2007) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003)). However, such claims must be “layered,” i.e., argument must be presented as to each prong of the Pierce test for each layer of allegedly defective representation. Dennis, supra at 954–55; Washington, supra at 595. To establish the first, i.e., the “arguable merit” prong of a claim of appellate counsel ineffectiveness for failure to raise a claim of trial counsel ineffectiveness, a petitioner must prove that trial counsel was ineffective under the Pierce standard. Dennis, supra at 955; Washington, supra at 595. If a petitioner cannot prove that trial counsel was ineffective, then petitioner's derivative claim of appellate counsel ineffectiveness must also fail, and the court need not consider the other two prongs of the Pierce test as applied to appellate counsel ineffectiveness. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 224 (2007).

It is important to recognize that a claim of appellate counsel ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is distinct from a claim of appellate counsel ineffectiveness grounded in the manner in which appellate counsel litigated a claim of trial counsel ineffectiveness on appeal. See Tedford, supra at 16. In the former case, the claim of trial counsel ineffectiveness has been waived, and the appellant must show that appellate counsel was ineffective for failing to raise the claim; however, in the latter case, the claim of trial counsel ineffectiveness claims has been previously litigated, and the appellant must show that appellate counsel was ineffective in the manner in which he or she litigated the claim.

We turn now to Appellant's claims of appellate counsel ineffectiveness.

1. Batson Claim of Racial Discrimination in Jury Selection

In Appellant's first issue, he contends that trial and direct appeal counsel were ineffective for failing to raise the claim that the Commonwealth had used its peremptory strikes in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Appellant's Brief at 13. To support this contention, Appellant proffers the following: (1) the prosecutor struck African–American venirepersons at approximately twice the rate of non-African-American venirepersons; and (2) a policy of racial discrimination in jury selection within the Philadelphia District Attorney's Office was allegedly suggested by the existence of two particular training lectures, delivered by then-Assistant District Attorneys Jack McMahon and Bruce Sagel.

In Batson, supra at 89, 106 S.Ct. 1712, the United States Supreme Court held that “the Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race.” Accordingly, the United States Supreme Court permitted “an individual defendan...