Commonwealth v. Chmiel, No. 582 CAP

CourtPennsylvania Supreme Court
Writing for the CourtJUSTICE McCAFFERY
Docket NumberNo. 582 CAP
Decision Date09 November 2011


No. 582 CAP


SUBMITTED: April 14, 2010
DECIDED: November 9, 2011


Appeal from the Order of the Court of
Common Pleas of Lackawanna County, at
No. 83-CR-748, entered February 27,
2009, denying relief pursuant to the Post
Conviction Relief Act



In this capital appeal, David Chmiel ("Appellant") challenges the dismissal, following a hearing, of his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").1 After careful consideration of Appellant's arguments, we affirm the PCRA court's order dismissing his claims.

On September 6, 2002, following a three-week jury trial, Appellant was convicted of three counts of first-degree murder for the deaths of Angelina Lunario, James Lunario, and Victor Lunario. He was also convicted of two counts of robbery and one count of burglary. Following a penalty hearing, the jury sentenced Appellant to death. On December 29, 2005, this Court denied Appellant's direct appeal and affirmed the

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judgment of sentence. Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005) ("Chmiel III").2

The facts underlying this case, and the evidence presented at the 2002 guilt and penalty phase proceedings, are fully detailed in Chmiel III, supra. For ease of reference for the various issues raised herein, we selectively summarize the factual and procedural history as follows.

On the morning of September 21, 1983, the Lunarios, three elderly siblings, were found stabbed to death in their Throop, Pennsylvania home. The medical examiner estimated that they had died between 11:00 p.m. on September 20, 1983, and 2:00 a.m. on September 21, 1983. Evidence and statements by neighbors led the police to question or suspect Appellant and/or his brother, Martin Chmiel. Police found at the scene of the murders a sweater sleeve, which the police were able to determine had been cut from a sweater owned by Martin. The sweater sleeve was used as a mask in the burglary of the Lunario home. The police also learned that Martin was aware that the Lunarios had kept large quantities of cash hidden away in numerous locations throughout the house.

Following the murders, Appellant was observed in the community uncharacteristically displaying large quantities of cash. Appellant was known to be in need of money to pay lawyers who were defending him against criminal charges of rape, involuntary deviate sexual intercourse, indecent and aggravated assault, terroristic

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threats, and recklessly endangering another person. During a subsequent search of Appellant's house, the police discovered $2400 in $50 and $100 bills on top of a hutch.

When police questioned Martin, based on the discovery at the murder site of the sleeve cut from his sweater, he admitted that he and Appellant had planned to rob the Lunarios to acquire the money needed for Appellant's legal bills, but that Martin had backed out of the scheme. Martin informed the police that after news of the murders had become public, Appellant told him that he had committed the murders, providing details of the crime. Police determined that these details, as relayed to them by Martin, could only be known by the murderer, as none had been publicly released. However, Martin was able to show that at the time the Lunarios were murdered, he was participating with his brother-in-law, Thomas Buffton, in a "fire watch." Although Buffton had been a co-conspirator with Martin in previous unrelated criminal activity, Martin's arrival at the fire watch, if not his continued presence there, was vouched for by two other witnesses, including the Scranton Fire Chief.

In light of Martin's alibi, the police directed their attention to Appellant. Following Appellant's arrest, a Pennsylvania State Police forensic scientist conducted a microscopic analysis of six hairs retrieved from the sweater sleeve found at the murder scene. When the forensic scientist compared two of those hair strands microscopically with hair strands obtained from Appellant, both sets of hair strands contained identical features. The forensic scientist concluded that the two hair strands found on the sweater sleeve mask were microscopically similar to Appellant's hair, but not to Martin's or the Lunarios' hair. (Later, in 2000 or 2001, mitochondrial DNA testing

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revealed that Appellant fell within one of the mitochondrial DNA profiles retrieved from two of the hairs found on the sweater sleeve.)3

Appellant testified at his trial, denying any involvement with the murders and robbery of the Lunarios. He asserted that his prosecution for those crimes was the result of a conspiracy involving the police; his brother, Martin; Buffton; and others. In an alibi different from that he had asserted at an earlier trial, Appellant testified that he had been at the home of Patrick Battle from 11:00 p.m. on Tuesday, September 20, 1983, to 1:30 a.m. Wednesday morning on September 21, 1983, to watch the double-header baseball games between the Baltimore Orioles and the Detroit Tigers. Appellant further testified that after the baseball games, he drove to Martin's residence, arriving by 1:45 a.m.

However, Appellant's testimony was not consistent with other evidence produced at trial. Battle testified that the double-header had been on Wednesday night, almost twenty-four hours after the murders. Martin's wife, Mary, testified that Appellant had arrived at their home at 3:45 a.m. on September 21, 1983. Another witness, Daniel McGlynn, testified that at 4:00 a.m. he observed Appellant in a restaurant located one mile from the Lunarios' home. Moreover, Appellant's car was observed near the Lunarios' home at the time of the murders.

Following Appellant's conviction, the matter proceeded to the penalty phase where Appellant gave evidence regarding the following mitigating factors: (1) his lack of a significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); (2) his lack of

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capacity to appreciate his conduct or to conform his conduct to the requirements of law due to substantial impairment by alcohol, 42 Pa.C.S. § 9711(e)(3); and (3) his character and background and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). Appellant sought to prove the (e)(8) mitigating factors with evidence of his (a) family relationships; (b) abusive upbringing; (c) religious practice; (d) military service; (e) prison record; and (f) relationship with his daughter.

On September 10, 2002, the jury returned a death penalty verdict, finding two aggravating and two mitigating circumstances. The aggravating circumstances found by the jury were: (1) the commission of a murder in the perpetration of a robbery or burglary, 42 Pa.C.S. § 9711(d)(6); and (2) multiple murder convictions for the murders of the Lunarios, 42 Pa.C.S. § 9711(d)(11). The mitigating circumstances found by the jury were: (1) Appellant did not have a significant history of prior criminal convictions, including felony convictions involving the use or threat of violence to another person, 42 Pa.C.S. § 9711(e)(1); and (2) Appellant proved "other evidence of mitigation" caused by his family relationships and abusive upbringing, 42 Pa.C.S. § 9711(e)(8). The jury found that the aggravating circumstances outweighed the mitigating circumstances.

Following Appellant's conviction and sentence, his trial counsel, Paul A. Ackourey, Esq., and Gerard E. Grealish, Esq., withdrew their representation of Appellant. Robert M. Buttner, Esq., and James Elliott, Esq., were appointed as substitute counsel. Substitute counsel filed an amended post-sentence motion asserting forty alleged errors and eight claims of ineffectiveness of trial counsel. Following the denial of post-sentence motions, this Court affirmed Appellant's sentence on direct appeal in Chmiel III, disposing of numerous challenges to the guilt and penalty

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phase proceedings, including several claims of ineffective assistance of counsel.4 On October 2, 2006, the United States Supreme Court denied Appellant's subsequent petition for writ of certiorari. Chmiel v. Pennsylvania, 549 U.S. 848 (2006).

Appellant filed a timely pro se petition pursuant to the PCRA on March 21, 2007, and the court appointed the Defender Association of Philadelphia, Capital Habeas Unit, to represent him. On June 30, 2008, Appellant filed a counseled amended PCRA petition, and thereafter, pursuant to a partial grant of a motion to supplement, Appellant filed a supplement to his amended PCRA petition, raising two additional claims. The PCRA court conducted hearings on the claims over an extended period: August 8 and 11-13, 2008; December 15-16, 2008, and February 3, 2009. The PCRA court denied Appellant's request for PCRA relief in a detailed and extensive memorandum opinion and order filed on March 2, 2009. This appeal followed, wherein Appellant states twelve issues for review.5

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Under our standard of review for an appeal from the denial of PCRA relief, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Washington, 927 A.2d 586, 593 (Pa. 2007). The PCRA court's...

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