Commonwealth of Pa. v. Birdsong

• Decision Date: 26 May 2011
• Citation: 24 A.3d 319
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Ralph BIRDSONG, Appellant.Commonwealth of Pennsylvania, Appelleev.Ralph Birdsong, Appellant.Commonwealth of Pennsylvania, Appelleev.Ralph Birdsong, Appellant.
• Court: Pennsylvania Supreme Court

24 A.3d 319

COMMONWEALTH of Pennsylvania, Appellee

v.Ralph BIRDSONG, Appellant.Commonwealth of Pennsylvania, Appellee

v.Ralph Birdsong, Appellant.Commonwealth of Pennsylvania, Appellee

v.Ralph Birdsong, Appellant.

Supreme Court of Pennsylvania.

Submitted June 4, 2003.Decided May 26, 2011.

Ellen Berkowitz, Billy Horatio Nolas, David Warren Wycoff, Philadelphia, for Ralph Birdsong.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 EAKIN.

Ralph Birdsong appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. We affirm.

Appellant was charged with first degree murder and related offenses for fatally shooting two people, seriously wounding six others, and raping a teenage girl during a brutal incident on July 17, 1988.¹ Appellant waived his right to a jury at both the guilt and penalty phases and was tried jointly with his brother Anthony, who was his co-conspirator. The trial court convicted appellant of two counts of first degree murder, six counts of aggravated assault, and one count each of rape, involuntary deviate sexual intercourse, conspiracy, and possession of an instrument of crime. ²

At the penalty phase, the trial court found no mitigating circumstances ³ and two aggravating circumstances: 42 Pa.C.S. § 9711(d)(9) (defendant has significant history of felony convictions involving use or threat of violence to person) and 42 Pa.C.S. § 9711(d)(11) (defendant has been convicted of another murder committed in any jurisdiction either before or at time of offense at issue). Accordingly, the trial court imposed a death sentence for murder and a consecutive term of 52 1/2 to 105 years imprisonment for the other offenses.

Appellant received new counsel and filed a direct appeal. This Court concluded appellant's claims were meritless and affirmed. Birdsong, supra.

Appellant filed a timely pro se PCRA petition and received new counsel, who filed an amended petition October 17, 1996. In April, 1997, counsel filed another amended petition, and the Commonwealth moved to dismiss. In the interim, the trial judge died, and a new judge was appointed for the PCRA proceedings. Following evidentiary hearings between September, 1999 and January, 2000, the PCRA court issued a notice of intent to dismiss appellant's petition as meritless; the court dismissed the petition February 26, 2001.

Appellant filed this appeal; ⁴ on April 26, 2002, this Court remanded to the PCRA court for preparation of an opinion, tolling the briefing schedule but retaining jurisdiction. In August, 2002, appellant filed a motion requesting this Court to expand the scope of the remand to include a new claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally retarded criminals violates Eighth Amendment), which this Court granted. The briefing schedule resumed, and the case was submitted for decision June 4, 2003. When no PCRA court opinion had been filed as directed, this Court again remanded to the PCRA court on November 19, 2003, for preparation of an opinion, citing Commonwealth v. Brown, 574 Pa. 231, 830 A.2d 536, 537 (2003) (“In capital, post-conviction appeals, this Court has recently emphasized the necessity of ... an adequate written opinion of the PCRA court ... as ... necessary to provide the essential predicate for appellate review of the post-conviction proceedings by this Court.”).

The PCRA court filed an opinion March 25, 2004, in which it addressed all of appellant's issues except for the Atkins claim, and noted the parties agreed to further continuances until the General Assembly issued legislation regarding what objective facts should be used to determine the prevailing standards of competency and the degree of mental retardation which would prohibit imposition of the death penalty. PCRA Court Opinion, 3/25/04, at 8–9. The court adopted the American Association of Mental Retardation's (AAMR) ⁵ definition of mental retardation, as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.1992) (DSM–IV), but did not address the merits of appellant's Atkins claim, instead advising the parties to prepare any defense testimony on the issue of mental retardation. PCRA Court Opinion, 3/25/04, at 9.

On June 23, 2004, a hearing was held before the PCRA court; the Commonwealth argued appellant's Atkins claim was not properly before the PCRA court because this Court had retained jurisdiction. N.T. Status Hearing, 6/23/04, at 4–6. The PCRA court agreed, and dismissed the claim without prejudice. Id., at 6. Thus, there was no lower court ruling on the merits of appellant's Atkins claim.

This Court then decided Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005), adopting a definition of “mental retardation” and setting forth the procedure to follow when a defendant asserts an Atkins claim, as guidance from the legislature was not forthcoming. See id., at 629–31. As the PCRA court had never ruled on the merits of appellant's Atkins claim, we remanded to the PCRA court to make credibility determinations and findings of fact on the merits, in accordance with the guidelines in Miller.

By order dated December 12, 2008, the PCRA court noted, “[Appellant] withdraws his Atkins/ Miller claim (against advice of counsel). [Appellant] also withdraws all claims with regard to conflict of interests (with present counsel) and ineffectiveness (of present counsel) and wishes his appeals to proceed with current counsel on all other issues already presented.” PCRA Court Order, 12/12/08. Accordingly, appellant's remaining issues are now properly before us for review.

In reviewing an order granting or denying post-conviction relief, we examine whether the PCRA court's determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999). To be entitled to relief under the PCRA, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and “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.” Id., § 9543(a)(4). An issue is 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....” Id., § 9544(a)(2). An issue is waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding.” Id., § 9544(b).

Appellant claims ineffectiveness of trial and appellate counsel and trial court error; he also asserts he was denied full and fair collateral review at his PCRA hearing, and that the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecution's suppression of evidence favorable to accused violates due process where evidence is material to guilt or punishment, irrespective of prosecution's good or bad faith).

Brady Claim

Appellant argues the Commonwealth withheld material evidence favorable to the defense, in violation of Brady. He claims the Commonwealth failed to disclose: (1) Commonwealth witness Andre Kinard was offered immunity from unrelated criminal charges in exchange for his identification testimony against appellant; (2) the Commonwealth placed several key witnesses in a witness protection program, which provided them with free housing, stipends for living expenses, and relocation to another city; (3) electronic surveillance purportedly establishing members of one of appellant's rival drug factions planned to assassinate another drug dealer; and (4) the results of tests comparing appellant's blood and saliva samples with those recovered from the rape victim.

To establish a Brady violation, a defendant must show: the prosecution suppressed the evidence, either willfully or inadvertently; the evidence is favorable to the defense; and the evidence is material. See Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887 (2002). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id., at 887–88 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.” Id., at 887 (quoting United States v. Agurs, 427 U.S. 97, 109–10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

Appellant points to Andre Kinard's PCRA testimony that the Commonwealth threatened to charge him with drug and weapons offenses if he did not identify appellant at trial as the shooter, and that he could not identify the shooter. See N.T. PCRA Hearing, 1/7/00, at 6–8. Appellant does not say how this evidence would have affected the outcome of his trial; he appears to argue it would have impeached Kinard. Appellant overlooks the fact that recantation testimony is “exceedingly unreliable,” and “there is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 99 (1998) (quoting Commonwealth v. Anderson, 466 Pa. 339, 353 A.2d 384, 386 (1976)). Given Kinard's testimony that he perjured himself at trial, and the factors surrounding his recantation, ⁶ the record supports the...