Commonwealth of Pa. v. Lesko

• Decision Date: 24 February 2011
• Docket Number: 520 CAP.,Nos. 518 CAP,519 CAP,s. 518 CAP
• Citation: 15 A.3d 345
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.John C. LESKO, Appellant.Commonwealth of Pennsylvania, Appellantv.John C. Lesko, Appellee.Commonwealth of Pennsylvania, Appelleev.John C. Lesko, Appellant.
• Court: Pennsylvania Supreme Court

15 A.3d 345

COMMONWEALTH of Pennsylvania, Appellee

v.John C. LESKO, Appellant.Commonwealth of Pennsylvania, Appellant

v.John C. Lesko, Appellee.Commonwealth of Pennsylvania, Appellee

v.John C. Lesko, Appellant.

Nos. 518 CAP

519 CAP

520 CAP.

Supreme Court of Pennsylvania.

Submitted March 18, 2008.Decided Feb. 24, 2011.

Samuel J.B. Angeli, Robert Brett Dunham, Defender Association of Philadelphia, Philadelphia for John C. Lesko.Thomas R. Grace, John W. Peck II, Westmoreland County District Attorney's Office, Amy Zapp, for Commonwealth of Pennsylvania.BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Chief Justice CASTILLE.^*

In these consolidated capital post-conviction cross-appeals, the Commonwealth challenges the August 7, 2006 order of the Westmoreland County Court of Common Pleas awarding John C. Lesko a new trial and penalty hearing under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. In his protective cross-appeal, Lesko challenges the portions of the PCRA court's ruling which denied certain claims for relief. The appeals of the PCRA court's order are directly reviewable by this Court pursuant to 42 Pa.C.S. § 9546(d). For the reasons that follow, we reverse the order of the PCRA court granting Lesko a new trial and a new penalty hearing, and we dismiss the petition for PCRA relief.

The guilt phase of the trial established that Lesko participated in the murder of Apollo Police Officer Leonard Miller. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). Specifically, the facts demonstrate that in the early morning hours of January 3, 1980, Officer Miller was on duty when a silver-colored Lancia sports car containing three men—Lesko, Michael Travaglia, and Richard Rutherford—sped past his position at the Apollo Stop–and–Go convenience store several times. Officer Miller radioed for assistance, then pursued and stopped the sports car. When back-up officers arrived, they found Officer Miller lying on the highway, dead from two bullets from a .38 caliber handgun. His service revolver was drawn and all six rounds were fired. Police subsequently located the sports car, which had been abandoned. The windows were shattered and the car had bullet holes in it. It was determined that the car was registered to a William Nicholls of Pittsburgh, who had recently disappeared.

Prior to Officer Miller's murder, the Pennsylvania State Police had received information indicating that Travaglia may have been involved in a number of armed robberies and killings in Pittsburgh and surrounding counties. While conducting their investigation, the State Police found a vehicle owned by a homicide victim. The vehicle had been abandoned near a motel where Travaglia and Daniel Keith Montgomery had stayed.

Pittsburgh police located Montgomery and discovered a .38 caliber handgun on his person. Montgomery told the police that Travaglia had given him the weapon and that Travaglia and Lesko talked about killing a police officer. Montgomery then told the police that Lesko and Travaglia were staying in a room at the Edison Hotel in Pittsburgh. The police proceeded to the Edison Hotel where they arrested Lesko and Travaglia. After being given Miranda¹ warnings, Lesko and Travaglia were individually interrogated. Both gave statements implicating themselves in the killing of Officer Miller, as well as in the killings of William Nicholls, Peter Levato, and Marlene Sue Newcomer.

Following various delays caused by two changes of venue and a mistrial, a joint trial of Lesko and Travaglia commenced in the Westmoreland County Court of Common Pleas on January 21, 1981, before Judge Gilfert Mihalich and a jury which had been selected in Berks County. The jury convicted both men of first-degree murder and conspiracy for the killing of Officer Miller. Subsequently, the jury returned a sentence of death for each defendant. On their joint direct appeal, this Court affirmed the convictions and sentences. See Travaglia, supra. Thereafter this Court affirmed the denial of Lesko's petition for relief under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S.A. § 9541 et seq. (the predecessor to the PCRA). See Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (1985), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987).

Lesko filed a petition for a writ of habeas corpus in federal district court. Ultimately, on federal appeal in 1991, the U.S. Court of Appeals for the Third Circuit granted sentencing phase relief, concluding that the prosecutor made improper comments during the penalty phase of the trial that tainted the jury's sentencing decision. See Lesko v. Lehman, 925 F.2d 1527 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). Following a second sentencing proceeding before the Honorable Gary P. Caruso of the Westmoreland County Court of Common Pleas in 1995,² a jury found four aggravating factors and four mitigating factors.³ The jury concluded that the aggravating factors outweighed the mitigating factors and returned a sentence of death pursuant to 42 Pa.C.S. § 9711(c)(1)(iv).

On direct appeal from his new death sentence, Lesko raised a number of issues related to his resentencing proceeding and second imposition of the death penalty. This Court again affirmed Lesko's sentence of death, Commonwealth v. Lesko, 553 Pa. 233, 719 A.2d 217 (1998), and, on January 19, 1999, the U.S. Supreme Court denied Lesko's petition for a writ of certiorari, 525 U.S. 1108, 119 S.Ct. 878, 142 L.Ed.2d 778 (1999). On January 25, 1999, then-Governor Thomas R. Ridge signed a warrant scheduling Lesko's execution for March 18, 1999. On February 10, 1999, Lesko filed a pro se petition for relief under the PCRA, attempting to challenge both his conviction and sentence, and moving for a stay of execution. On February 24, 1999, the PCRA court entered an order granting a stay of execution and appointing Robert Brett Dunham, Esquire, to represent Lesko in filing an amended PCRA petition. Lesko had previously been represented at all times by Rabe F. Marsh, III, Esquire, who was appointed to represent Lesko shortly after his arrest in 1980. At various times during his representation of Lesko, Attorney Marsh was assisted by other attorneys. Attorney Marsh was granted permission to withdraw as counsel upon Attorney Dunham's entry of appearance. On May 24, 1999, Attorney Dunham filed an amended PCRA petition and a petition for habeas corpus relief on behalf of Lesko, which were followed by subsequent addendums and supplements. The PCRA proceedings were assigned to the Honorable Richard E. McCormick, Jr., of the Westmoreland County Court of Common Pleas.

On December 14, 15, and 16, 1999, the PCRA court held evidentiary hearings at which Lesko presented the testimony of Attorney Marsh, Attorney Marsh's co-counsel, Brian O'Leary, and Dr. Herbert E. Levit, a psychologist who had evaluated Lesko for the second penalty hearing. Additional evidentiary hearings were held on March 21 and 22, 2001, and on April 25 and 26, 2002. Following these evidentiary hearings, and at the direction of the PCRA court, the parties filed a number of post-hearing pleadings. On August 7, 2006, by opinion and order, the PCRA court held that Lesko, for a variety of reasons discussed in detail below, was entitled to a new trial and a third penalty hearing.

The Commonwealth appealed the PCRA court's order granting relief with regard to both the guilt and the penalty phase and Lesko filed a protective cross-appeal raising issues on which he did not obtain relief.

Our standard of review in an appeal from the grant or denial of PCRA relief requires us to determine whether the ruling of the PCRA court is supported by the record and is free from legal error. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 593 (2007).

I. JURISDICTION OVER GUILT STAGE CLAIMS

Before turning to the specific claims on which the PCRA court ruled, the Commonwealth raises a controlling preliminary question regarding whether the PCRA court erred in entertaining any of Lesko's claims related to his 1981 conviction (the “guilt phase claims”) because those claims are time-barred.

In his PCRA petition, Lesko asserted a number of claims of ineffective assistance of trial counsel related to the guilt phase of his 1981 trial. The PCRA court awarded Lesko a new guilt phase on its finding that trial counsel interfered with Lesko's right to testify at trial. The PCRA court also found that Lesko was entitled to a new trial based on his Brady⁴ claims and derivative trial counsel ineffectiveness claims related thereto, which will be discussed separately. Specifically, the PCRA court determined that the Commonwealth's failure to produce relevant impeachment evidence cumulatively prejudiced Lesko, and that Lesko's counsel was ineffective for failing to obtain certain impeachment evidence and impeach certain witnesses. The Commonwealth contends that the PCRA court erred in addressing these claims because they were untimely.⁵

According to the Commonwealth, under the time requirements of the PCRA, Lesko had to raise any claims relating to his original trial by January 16, 1997, the date on or before which a first PCRA petition would be deemed timely in a case, like the one sub judice, where the judgment of sentence became final before the effective date of the 1995 amendments to the PCRA. As Lesko first raised the claims in February 1999, the Commonwealth argues that the claims are time-barred and the PCRA court did not have jurisdiction to entertain them. The Commonwealth further asserts that Lesko failed to plead or prove any of the exceptions to the PCRA's time requirements, and that Lesko's efforts to couch his claims in terms of ineffectiveness of counsel cannot save his otherwise untimely petition.

Lesko, in contrast, maintains that his 1999 PCRA petition was,...