Commonwealth v. Blakeney

• Decision Date: 29 December 2014
• Citation: 108 A.3d 739
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Herbert BLAKENEY, Appellant.

108 A.3d 739

COMMONWEALTH of Pennsylvania, Appellee

v.Herbert BLAKENEY, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 11, 2012.

Decided Dec. 29, 2014.

Helen A. Marino, Esq., Defender Association of Philadelphia, for Herbert Blakeney.

Joseph P. Cardinale Jr., Esq., Jason Eugene McMurry, Esq., Dauphin County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

OPINION

PER CURIAM.

In this capital case, Herbert Blakeney, a.k.a. Shabazz Muhammad, appeals from the order of the Court of Common Pleas of Dauphin County denying, without a hearing, his petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 –9546. For the reasons set forth below, we affirm.

We set forth the facts of this case in our opinion on direct appeal, which affirmed Appellant's sentence of death. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645 (2008). The following is a summary of the facts pertinent to the issues now raised. After a domestic dispute that resulted in Harrisburg police escorting Appellant from his wife's apartment during the afternoon of February 1, 2000, Appellant returned to the premises in the early morning hours of February 2, having spent much of his time in the interim drinking alcohol with friends. Because he had been repeatedly phoning and leaving confrontational messages during that time, Appellant's wife had left her apartment and another resident of the apartment, Duana Swanson, had alerted the Harrisburg police.

When Appellant returned to the apartment, he assaulted Ms. Swanson, stabbing her in the chest with a knife. The police arrived to find Ms. Swanson in a prone position on the floor with Appellant straddling her, holding the knife. The officers commanded Appellant to drop the weapon, but Appellant replied “shoot me” and waved the knife at them. Appellant then stood up and retreated down a hallway to a bedroom. There, he picked up his wife's fourteen-month-old son (by another man), held the knife to the baby's neck, and again told police to “shoot me.” Appellant refused police commands to drop the weapon and release the baby. He retreated further down the hallway to a stairwell, where he slit the baby's throat with the knife, killing him. Harrisburg Police Officer William Vernouski, who had followed Appellant to the stairwell, witnessed the killing. Officer Vernouski shot Appellant, and he was taken into custody. Appellant was charged with murder and attempted murder, among other crimes.

Appellant was initially held at Dauphin County Prison but, after several weeks, he was involuntarily committed to Mayview State Hospital (“MSH”) for psychiatricevaluation, treatment, and a determination of competency.¹ Upon Appellant's discharge, his psychiatrist reported that Appellant was competent to stand trial. Appellant's discharge report also contained diagnoses of adjustment disorder with depressed mood

in remission, alcohol dependency and personality disorder. His condition at the time of discharge was described as alert and cooperative, with no perceived signs of depression, suicidal ideation, thought disorders, or hallucinations.

The court appointed counsel to represent Appellant. Appellant told his attorneys that he wanted to present a defense of innocence and maintained, among other things, that Officer Vernouski had killed the child. Appellant maintained that the Commonwealth's case against him was the result of a police conspiracy and cover-up, and he asked counsel to defend the charges against him accordingly. When counsel advised Appellant that the facts did not support such a defense, Appellant told counsel that he wanted to represent himself. Counsel filed a motion to withdraw, advising the court that Appellant wished to represent himself. On January 29, 2001, during a hearing on the motion, the court conducted a lengthy and thorough colloquy with Appellant. The court then granted the motion, permitted Appellant to proceed pro se and appointed Appellant's former attorneys as standby counsel.

Prior to trial, Appellant filed a written pro se motion to have the charges against him dismissed on double jeopardy grounds.² Appellant asserted that, while he was incarcerated in the Dauphin County Prison before his commitment to MSH, he had undergone a trial by a jury of his peers which resulted in his acquittal. At the hearing on the motion, the prosecutor argued that the motion was frivolous. The court found that the motion was meritless. N.T., 6/27/02, at 25. The court issued a written order that same date, reflecting that the motion had been denied and that the double jeopardy claim had no merit.

On July 22, 2002, ten days before trial was scheduled to begin, Appellant filed a pro se petition in the Superior Court seeking permission to appeal the denial of the pre-trial double jeopardy motion. As of August 1, 2002, the first day of trial, the Superior Court had not ruled on the petition, and thus jury selection commenced. Appellant inquired of potential jurors whether they could conclude that the police had engaged in a conspiracy or in other misconduct if facts were presented to substantiate those claims. He asked potential jurors if they would be “willing to accept the possibility that a law enforcement officer may get on the stand and lie?” N.T. Jury Selection, at 69. Appellant probed potential jurors for any negative biases they might have had toward Muslims or pro se litigants. He exercised peremptory strikes and challenged a number of the potential jurors for cause.

During the jury selection process, Appellant asked the court whether a greater percentage, i.e. “at least ... three or four out of every ten,” of the pool of potential jurors could be representatives of the “black population.” The court answered that “this is all by draw, ... it is a random drawing. It is through the Pennsylvania License Bureau.” Id. at 138–39. After the Commonwealth had exercised four of its peremptory strikes, Appellant made an oral motion seeking, “in the interest of justice and diversity,” to seat the last two jurors peremptorily stricken by the Commonwealth. Id. at 367.³ The court denied the motion. Immediately thereafter, Appellant orally moved for the recusal of the trial judge, the Honorable John F. Cherry. The basis for the motion was that Appellant had instituted a civil lawsuit against Dauphin County Prison and the trial judge was a member of the prison board. The motion for recusal was denied.

On Monday, August 5, 2002, the trial court explained on the record, in Appellant's presence, that it was making inquiries to the Superior Court regarding when a disposition of Appellant's double jeopardy petition might be expected. On August 7, 2002, the trial court issued an additional order stating that Appellant's allegation of a double jeopardy violation was patently frivolous The Superior Court denied Appellant's petition for permission to appeal by per curiam order dated August 9, 2002.

At trial, Appellant sought to establish by his own testimony and his questioning of forensics experts, police officers on the scene, and officers responsible for maintaining a chain of custody for the evidence removed from the scene, that Officer Vernouski, not Appellant, had inflicted the fatal knife wounds

on the infant. To that end, Appellant presented the testimony of his own expert witness in forensics and crime-scene investigation, who described the blood patterns at the scene. The court had previously granted Appellant's pro se request for DNA testing, and at trial, the Commonwealth stipulated to the findings contained in the DNA report showing that genetic material from someone other than Appellant and the baby had been recovered in the stairwell in which the incident occurred. In addition, in an apparent effort to potentially establish diminished capacity, Appellant presented the testimony of several persons with whom he had been drinking in the hours before he had returned to the apartment. The jury returned a verdict of guilty on, among other offenses, first-degree murder.

Following the jury's guilty verdict, Appellant informed the court that he would not present any mitigation evidence during the penalty phase. The court explained to Appellant the potentially dire legal consequences of such a decision, and confirmed that Appellant had consulted with standby counsel in reaching the decision to forego the presentation of mitigation evidence. Standby counsel then reiterated a request “for funds on behalf of the Defendant to obtain a psychologist for the penalty phase,” a request that had previously been denied. N.T. Trial, 8/8/02, at 925.⁴ Standby counsel identified the proposed expert witness and related the witness's readiness and willingness to appear in court to testify on Appellant's behalf during the penalty phase. Appellant objected to standby counsel's assertion that Appellant had signed the petition requesting funds, stated his desire to “withdraw that motion,” and concluded his objection by stating “so let's move on.” Id. at 925–26. The request for funding was denied, Appellant presented no mitigation evidence, and following the penalty phase portion of the trial, the jury returned a sentence of death.

Appellant was represented by counsel on direct appeal. Among other things, Appellant alleged that the court had erred in granting his request to proceed pro se at trial and denying his request for psychological evaluation fees. Appellant also alleged that the trial court had erred in denying his motion for recusal. This Court affirmed the judgment of sentence, and in so doing, held that the trial court's colloquy with respect to Appellant's decision to represent himself had properly established that Appellant's waiver of the right to counsel had been knowing and voluntary. Blakeney, 946 A.2d at 655–56. We also determined that the trial court did not abuse its discretion in denying the ...