Commonwealth of Pa. v. Ali

• Decision Date: 29 December 2010
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Imanuel Bassil ALI, a/k/a Emanuel Lester, Appellant.
• Court: Pennsylvania Supreme Court

10 A.3d 282

COMMONWEALTH of Pennsylvania, Appellee

v.Imanuel Bassil ALI, a/k/a Emanuel Lester, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 5, 2008.

Decided Dec. 29, 2010.

Imanuel Bassil Ali, pro se.

Hugh J. Burns Jr., Anthony V. Pomeranz, Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Chief Justice CASTILLE.

This is a pro se capital appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant's petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm.

On November 12, 1991, a jury sitting before the Honorable Ricardo C. Jackson convicted appellant of first-degree murder, aggravated assault, and possessing an instrument of crime. The convictions arose from the brutal killing of Sheila Manigault, whose beaten and scalded body was found on the morning of April 6, 1990 submerged in the bathtub of the West Philadelphia apartment that she shared with her three young children.¹ After finding two aggravating circumstances and no mitigating circumstances, the same jury returned a sentencing verdict of death on the murder charge. See 42 Pa.C.S. § 9711(c)(1)(iv) ("[T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance ... and no mitigating circumstance....").² On direct appeal, this Court unanimously affirmed appellant's convictions and judgment of sentence. Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997 (1998). This Court denied reargument on April 19, 1999.

Appellant filed a timely pro se PCRA petition on June 25, 1999, and an amended petition on September 15, 1999. On January 12, 2000, the PCRA court appointed Lee Mandell, Esq., as counsel for appellant, but appellant soon requested permission to proceed pro se. Appellant filed pro se supplemental PCRA petitions on June 20, 2000 and November 3, 2000. In early 2001, the PCRA court ordered a mental health evaluation, which was conducted on February 23, 2001. The evaluation resulted in a report that appellant had no mental health issues or substance abuse issues at the time, understood the "proper roles" and "major principles involved in a court of law," and was competent to assist in his own defense. Mental Health Evaluation Report of James G. Jones, M.D., 2/26/01, at 2 (unnumbered). The PCRA court also conducted an extensive colloquy with appellant on the record before granting his request to proceed pro se on March 23, 2001. The Court appointed Attorney Mandell as advisory counsel. Thereafter, appellant filed an additional pro se supplemental PCRA petition on September 19, 2001; the Commonwealth filed a motion to dismiss on April 19, 2002; and appellant filed yet another supplemental pro se petition on May 30, 2002. The court sent appellant a notice of intention to dismiss pursuant to Pa.R.Crim.P. 907 on August 14, 2002. However, on September 13, 2002, the PCRA court found appellant incompetent to proceed pro se, based upon its further review of his submissions, and noted that appellant and Attorney Mandell had irreconcilable differences. The court thus allowed Attorney Mandell to withdraw and Daniel A. Rendine, Esq., was appointed as counsel for appellant on September 20, 2002. In November 2002, however, the PCRA court again permitted appellant to represent himself and directed Attorney Rendine to serve as back-up counsel. The court then held an evidentiaryhearing on April 28, 2003 and, on June 27, 2003, denied PCRA relief and formally dismissed Attorney Rendine from the case.

After appellant appealed to this Court, attorneys from the Defender Association of Philadelphia, Federal Court Division, Capital Habeas Unit ("Federal Defender") entered appearances on behalf of appellant and filed a Pa.R.A.P. 1925(b) statement on appellant's behalf on April 12, 2004. Appellant then filed his own 1925(b) statement, which was dated April 12, 2004 and docketed on April 26, 2004. On May 16, 2006, appellant filed a pro se Petition to Remove Counsel and Proceed Pro Se. On June 6, 2006, the Federal Defender filed a Response, urging denial of appellant's petition. On June 15, 2006, this Court ordered the PCRA court to conduct a hearing on appellant's request to proceed pro se, pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). We did not relinquish jurisdiction.

At a hearing on March 30, 2007, the Commonwealth asserted that since appellant clearly had no desire to cooperate with the Federal Defender or undergo further competency evaluation by doctors, the Grazier hearing should proceed "with all due haste." N.T., 3/30/07, at 4. The Federal Defender responded that in its view, appellant was not competent to waive counsel and that it had a written report from a doctor who did not believe appellant was competent. The Federal Defender sought to have a competency proceeding held prior to the Grazier hearing. The PCRA court took note of the "stalemate" created when appellant's refusal to cooperate with the Federal Defender respecting his competency led the Federal Defender to conclude that appellant was incompetent. The court stated that the matter could not be delayed any further, denied the request for a pre- Grazier competency hearing, and scheduled the Grazier hearing for April 27, 2007. The Federal Defender's appeal of that interlocutory ruling was quashed by this Court in an August 24, 2007 order.

The Grazier hearing was held on April 27, 2007. The Federal Defender attempted to raise new substantive claims in addition to the Grazier question, but the PCRA court declined to consider claims other than the one remanded to it. Following the hearing, the PCRA court issued an order on the same date finding appellant competent to waive counsel and permitting him "to proceed pro se without standby counsel being appointed in accordance with [his] request at the Grazier hearing." The Federal Defender appealed that order and on July 25, 2007, the PCRA court issued an opinion on the Grazier issue. The PCRA court noted that its determination that appellant's waiver of counsel was knowing and voluntary was supported by the court-ordered mental health evaluation, the Grazier colloquy, and appellant's behavior at the Grazier hearing as well as at several previous hearings.³ The Federal Defender's unauthorized appeal from the grant of relief appellant himself had requested throughthe Grazier proceedings was ultimately quashed by order of this Court dated October 31, 2007.

The appeal has finally been briefed, ably enough by appellant, and is ready for disposition. Our general review of a PCRA court's decision is limited to examining whether the court's findings of fact are supported by the record and whether its legal conclusions are free of error. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 601 (2008).

DISCUSSION

All twelve of appellant's claims allege ineffective assistance of counsel. "It is settled that the test for counsel ineffectiveness is the same under both the Pennsylvania and Federal Constitutions: it is the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 460 (2004) (collecting cases). The contours of the inquiry are as follows:

To better focus the Strickland analysis, this Court has applied the performance part of the test by looking both to the arguable merit of the claim lodged against counsel as well as the objective reasonableness of the path taken, or not taken, by counsel. E.g., [ Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 855 n. 19 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2003) ]. Thus, the constitutional ineffectiveness standard requires the defendant to rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. (Michael) Pierce , 786 A.2d 203, 213 (Pa.2001); Commonwealth v. Kimball , 724 A.2d 326, 333 (Pa.1999). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. (Michael) Pierce, 786 A.2d at 221-23; see also Commonwealth v. Albrecht , 720 A.2d 693, 701 (Pa.1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.").

Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822, 829-30 (2005), cert. denied, 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005).⁴ Respecting prejudice, "[a] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

In addition, because appellant was represented by new counsel on direct appeal, and his appeal was pending on collateral review prior to this Court's decision inCommonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), those of appellant's ineffectiveness claims deriving from trial counsel's performance are cognizable only as "layered" claims. Id. at 739 n. 16. To secure relief as to these claims, appellant must plead and prove Strickland/ Pierce ineffectiveness as to each relevant layer of representation. See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1023 (2003).

A. Failure to raise prosecutorial misconduct claim on appeal

Appellant first claims that direct appeal counsel was...