Commonwealth of Pa. v. Smith

Decision Date29 March 2011
Citation17 A.3d 873
PartiesCOMMONWEALTH of Pennsylvania, Appelleev.James Melvin SMITH, Appellant.
CourtPennsylvania Supreme Court


Cristi A. Charpentier, Billy Horatio Nolas, Defender Association of Philadelphia, Michael Wiseman, Philadelphia, for James Melvin Smith.Hugh J. Burns, Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, PA Office of the Attorney General, Harrisburg, for the Commonwealth of Pennsylvania.CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.


Justice BAER.

James Melvin Smith (Appellant) appeals from an order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. For the reasons stated herein, we affirm the order of the PCRA court denying the petition for PCRA relief.

As we explained on direct appeal, Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988), on June 22, 1979, Appellant, Levi Rucker (Rucker), and Kimberleigh Green (Green) met at Green's residence to plan the murder of Davis Kelly (Kelly). Kelly was suspected by these conspirators of having killed Michael Green, Green's brother, several months earlier. Id. at 248. In accordance with their plan, on the evening of June 22, 1979, Green, who was underage, asked Kelly to buy her some beer at the corner bar. Kelly agreed and entered the bar to purchase the beer. As he exited the bar to return to Green, Rucker closed the door so the patrons inside could not see what was about to transpire. Appellant then emerged from an adjacent alley and shot Kelly from behind. As Kelly attempted to stand, Appellant shot him three more times from approximately three feet away. The incident was witnessed by Betty Harris (Harris), a bystander who was sitting nearby on her front porch.

Two days later, Appellant was arrested for illegally carrying a .32 caliber pistol. A ballistics examination established that the bullets that killed Kelly were fired from this gun. Appellant denied involvement in the shooting, and was not charged with murder at that time. He was ultimately acquitted of the gun possession charges. Several years later, Green confessed her role in the murder and implicated Appellant. Appellant was arrested for the murder of Kelly on May 3, 1983.

Harris, who witnessed the shooting, gave several statements to police shortly after the murder.1 She initially stated that she was unable to identify the shooter, and provided consistent statements to this effect on June 23, 1979, June 24, 1979, July 7, 1979, and December 11, 1979. Then, on October 21, 1982, Harris made a statement to police in which she identified Rucker as the shooter, explaining that she saw the shooter at the movies with a friend well after Kelly's murder, and the friend identified him as Rucker. Two weeks before Appellant's trial, Harris provided a final statement to police, identifying Appellant as the shooter.

At Appellant's jury trial, the Commonwealth introduced the testimony of Green and Rucker, who each pled guilty to third-degree murder and conspiracy in exchange for their testimony against Appellant. Additionally, the Commonwealth introduced the testimony of Harris, Appellant's sister, Barbara Smith, as well as various police, ballistics, and forensic witnesses. Harris, who had claimed an inability to identify the shooter when police were investigating the murder, and then identified Rucker, testified that she saw Appellant shoot Kelly. She further testified that she was initially unwilling to identify Appellant as the shooter because she was afraid of him, but, on the eve of trial, she overcame this fear and gave a statement identifying him. Trial counsel attempted to discredit Harris's testimony with her prior inconsistent statements, arguing that Green and Rucker were the sole perpetrators.

On February 6, 1985, Appellant was convicted of murder in the first degree, criminal conspiracy, and possession of an instrument of a crime. Following a penalty hearing, the jury found two aggravating circumstances and no mitigating circumstances, and returned a sentence of death. After post-sentence motions were denied, the trial court formally sentenced Appellant to death on May 6, 1986. The trial court further imposed additional concurrent terms of five to ten years of imprisonment for criminal conspiracy and two-and-one-half to five years of imprisonment for possessing an instrument of a crime.

Appellant was represented by trial counsel on direct appeal. While the direct appeal was pending before this Court, Appellant filed a pro se Motion for Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel,” which this Court treated as an application for appointment of new counsel to represent Appellant in further proceedings under the Post Conviction Hearing Act (PCHA). We affirmed the conviction and sentence and remanded Appellant's case to the court of common pleas for the appointment of new counsel for PCHA proceedings.

On remand, the court of common pleas appointed Attorney Jeremy Gelb (Gelb) on October 7, 1988, to represent Appellant during the PCHA proceedings. Over the next several years, Gelb continued those proceedings nineteen times and did not file any documents with the court. Accordingly, on September 30, 1991, the trial court dismissed the PCHA action without prejudice due to Gelb's lack of prosecution of the case.

On June 10, 1992, Appellant filed a pro se petition under the PCRA. On August 20, 1992, Attorney Richard Hoy (Hoy) was appointed to represent Appellant, and, on June 29, 1993, he filed an amended petition on Appellant's behalf raising two issues. On June 29, 1994, the PCRA court directed Hoy to file a statement setting forth the witnesses who would testify at an evidentiary hearing and the substance of their testimony. The court reentered this order following a defense motion for continuance. Following receipt of the witness list, the PCRA court scheduled an evidentiary hearing for March 1, 1995. On the day set for the hearing, Hoy neither appeared nor filed anything with the court. The Court continued the evidentiary hearing, and again directed Hoy to file a witness list.

On May 22, 1995, the Defender Association of Philadelphia replaced Hoy as Appellant's attorney. New counsel filed an amended PCRA petition on June 20, 1995, and another on August 28, 1998. The PCRA case was then transferred to a new PCRA court, which found every claim waived and dismissed all of Appellant's claims without a hearing. Appellant appealed the dismissal of his PCRA petition, resulting in this Court entering a per curiam order vacating the PCRA court's order and remanding “for an evidentiary hearing with respect to all disputed, material facts, and appropriate fact-finding.” Commonwealth v. Smith, 577 Pa. 251, 844 A.2d 549 (2004). On April 30, 2004, we denied Appellant's application for reargument and the Commonwealth's request to clarify our remand order.

On June 29, 2004, when the case was again before the PCRA court, Appellant amended his PCRA petition to raise a claim that his execution would violate the Eighth Amendment because he is mentally retarded. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On February 27, 2009, Appellant's case was transferred to yet another judge for PCRA proceedings. The new PCRA court reviewed all of Appellant's claims, and, on May 8, 2009, granted an evidentiary hearing on three claims: whether Atkins barred Appellant's execution; whether Appellant had been forcibly medicated at the time of trial; and whether trial counsel was ineffective during the penalty phase with regard to the presentation of mitigating evidence. The court determined that Appellant's remaining claims did not involve contested facts and therefore could be decided without a hearing.

On June 19, 2009, defense counsel and the Commonwealth stipulated that Appellant would be granted a new penalty phase hearing based on the ineffectiveness of trial counsel, and the PCRA court ratified this stipulation. Appellant subsequently withdrew the claim that he had been forcibly medicated at trial and the PCRA court held that the Atkins claim was not ripe because of the new penalty phase hearing. This disposed of the three claims on which the PCRA court had granted a hearing. Remaining after this order were Appellant's claims that the PCRA court did not believe warranted a hearing. In due course, the PCRA court dismissed all of these remaining guilt phase claims without an evidentiary hearing. Appellant has appealed from the dismissal of these guilt phase claims. Thus, despite the length of time since Appellant's trial, and despite Appellant's prior appeal to this Court from the denial of his PCRA petition in 2004, the present appeal is his first appeal during which he has been able to argue the merits of the trial court's denial of his prayer for collateral relief.

Appellant raises eleven issues and numerous sub-issues for our review. Initially, we have jurisdiction over Appellant's petition because we directly review the denial of post-conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d). In PCRA appeals, the scope of review is limited by the Act. 42 Pa.C.S. §§ 9541 et seq. Our standard of review is whether the findings of the PCRA court are supported by the record and are free of legal error. Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1170 n. 3 (2000).

This PCRA petition was initially filed prior to the effective date of the November 1995 amendments to the PCRA. Accordingly, the petition and appeal are governed by the previous version of the PCRA. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 383–84 (2005); Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 37 (2002). In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated defects found...

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