Commonwealth v. D'Amato, [J-171-2002] (PA 9/2/2004)
| Decision Date | 02 September 2004 |
| Docket Number | [J-171-2002] |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee, v. JOSEPH D'AMATO, Appellant. |
| Court | Pennsylvania Supreme Court |
Appeal from the Order of the Court of Common Pleas of Philadelphia County entered on 2/14/01 dismissing PCRA petition at Nos. 1994-1997 December Term 1981.
.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County dismissing a capital, post-conviction petition. For the reasons that follow, we affirm in part, and remand for limited further proceedings.
The facts and procedural history underlying the judgment of sentence in this matter are detailed in this Court's disposition on direct appeal. See Commonwealth v. D'Amato, 514 Pa. 471, 476-80, 526 A.2d 300, 302-04 (1987). Briefly, on the evening of March 19, 1981, the victim, Anthony Patrone, approached Joseph D'Amato ("Appellant") in a restaurant in Philadelphia, and the two began to discuss a plan to defraud an insurance company by reporting as stolen an automobile belonging to Appellant's girlfriend, Bernadette McFarland. The scheme involved "cutting up" the car and selling its parts, and also collecting the insurance money. Appellant, Patrone, and Ms. McFarland left the restaurant and drove to a nearby parking lot to discuss the idea further. At some point, however, Appellant became suspicious that Patrone intended to betray Appellant and have him arrested. Thus, Appellant ordered Patrone out of the car, pulled out a gun, and shot him twice at close range in the face and chest, killing him. Witnesses observed a car matching the description of Ms. McFarland's vehicle exit the parking lot and drive away with two individuals inside and its lights off (although it was after 10:00 p.m.). Appellant disposed of the murder weapon by throwing it into a river; it was never found.
After the shooting, Appellant and his girlfriend abandoned the vehicle and fled Philadelphia. Appellant ultimately became a suspect in the Patrone homicide, as well as in the shooting deaths of two other individuals, John Amato and Anthony Bonaventura. Philadelphia police obtained an arrest warrant for Appellant and, later, a federal fugitive flight warrant. Appellant and Ms. McFarland remained at large for approximately nine months. In December of 1981, FBI agents apprehended them near Youngstown, Ohio. Appellant waived extradition and was returned to Philadelphia. After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), Appellant agreed to speak with the police without an attorney present, and provided separate written confessions to all three homicides. Appellant subsequently filed pre-trial motions to suppress the confessions, as well as evidence obtained through police searches. All of the statements and evidence from the three matters were consolidated for a suppression hearing. At the conclusion of the hearing, the court denied Appellant's suppression requests.
Appellant was tried separately for the three homicides. He was ultimately found guilty of first-degree murder as to Mr. Amato, and sentenced to life imprisonment. Appellant was thereafter convicted of first-degree murder as to Mr. Patrone, the victim herein. In the penalty phase, the jury found one aggravating circumstance — that Appellant had been convicted of another offense for which a sentence of life imprisonment was imposable, see 42 Pa.C.S. §9711(d)(10) — and no mitigating circumstances. Accordingly, the jury set the penalty at death. See 42 Pa.C.S. §9711(c)(1)(iv).1 Appellant retained new counsel to file post-sentence motions. After these were denied, Appellant again hired new counsel to represent him on direct appeal to this Court, which affirmed the judgment of sentence on May 22, 1987. See D'Amato, 514 Pa. at 501, 526 A.2d at 315.
In March of 1989, Appellant filed a pro se petition for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S. §§9541-9546 (the "PCRA"). Counsel was appointed, and a series of amended petitions ensued, culminating in a third amended petition filed in August of 1996, seeking relief as to all three murder convictions,2 and requesting unspecified discovery materials alleged to be in the possession of the district attorney which would purportedly demonstrate the "motive and opportunity of others to commit the murders." The three cases were consolidated for post-conviction purposes by order of the common pleas court. Thereafter, the Commonwealth provided discovery materials, and, in July of 1998, Appellant filed papers styled as a motion seeking a new trial based upon newly discovered evidence, a petition for habeas corpus relief, and a petition for relief under the PCRA supplemental to the third amended petition. The Commonwealth moved for dismissal of the petition; in response, Appellant submitted twenty exhibits, which included an affidavit of Robert L. Mason, a statement of William Boyle, and an affidavit of trial counsel, Robert Mozenter, Esq. Argument was heard on the motion to dismiss in May of 2000, and the PCRA court subsequently noted its intent to dismiss the petitions. This notice consisted of a one-page form with a box checked indicating that the issues raised "are not genuine issues concerning any material fact(s), have been previously litigated and/or have been waived."3 The court thereafter dismissed Appellant's petition by order dated February 14, 2001, without holding an evidentiary hearing. A written opinion in support of dismissal was issued on June 29, 2001. In the opinion, the court found many of the issues waived, and resolved others on the merits. This appeal followed with respect to the capital case.4
Appellant presently argues that he has never had the benefit of an evidentiary hearing with respect to any of his post-conviction claims, which include assertions of ineffective assistance of counsel, after-discovered evidence, and deprivation of counsel at a critical stage in the penalty phase of his trial. Relevant to the present case, we note that, to be eligible for relief, Appellant must plead and prove, by a preponderance of the evidence, that the challenged conviction or sentence resulted from: ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place; or the unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced. See 42 Pa.C.S. §9543(a)(2)(ii), (vi). Additionally, Appellant must show that the asserted error has not been previously litigated or waived. See 42 Pa.C.S. §9543(a)(3).
Appellant initially advances several allegations of ineffective assistance of counsel relating to events at both the guilt and penalty phases of trial. In framing his argument, Appellant presents lengthy quotations from his various amended PCRA petitions. These quotations include statements of the alleged instances of ineffectiveness, together with a conclusory assertion that post-trial and direct appellate counsel were ineffective for failing to raise them. See Brief of Appellant at 17, 21-22.
All of the allegations relating to trial counsel's stewardship are waived, as they were not raised during post-trial or direct appellate proceedings. See 42 Pa.C.S. §9544(b). Although this Court recently held that claims of trial counsel's ineffectiveness raised for the first time on collateral review will, in general, no longer be deemed waived, see Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002), that holding does not apply here because Appellant's direct appeal was concluded prior to Grant. See id. at 68-69, 813 A.2d at 739. Under the pre-Grant framework, a post-conviction petitioner cannot invoke substantive merits review of a waived claim of ineffective assistance of trial counsel by simply appending a conclusory assertion that all intervening counsel were ineffective for failing to raise it. See Commonwealth v. Bond, 572 Pa. 588, 601, 819 A.2d 33, 40 (2002); Commonwealth v. Jones, 571 Pa. 112, 127, 811 A.2d 994, 1003 (2002). Rather, to succeed on an allegation of appellate counsel's ineffectiveness — the only claim over which the PCRA court retains cognizance, see Commonwealth v. Rush, 576 Pa. 3, 11, 838 A.2d 651, 656 (2003) — a post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard as set forth in Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001). These elements are: (1) the underlying claim has arguable merit; (2) counsel's act or omission lacked a reasonable basis; and (3) counsel's deficiency caused him prejudice.5 See Commonwealth v. McGill, 574 Pa. 574, 584-85, 832 A.2d 1014, 1020 (2003) (citing Pierce, 567 Pa. at 203, 786 A.2d at 213). Because Appellant has not presented such argumentation, his claims, as stated, are insufficient to trigger merits review.
Still, in McGill, this Court recognized that it has not been entirely clear in the past as to what is required of a PCRA petitioner seeking to plead and prove a layered claim of ineffectiveness, and, accordingly, indicated a general preference to remand to the PCRA court for further development in circumstances such as are presented here. See id. at 590-91, 832 A.2d at 1024. McGill also clarified, however, that such a remand is unnecessary where the post-conviction petitioner fails to "thoroughly plead and prove" the underlying allegation that trial counsel was ineffective.6 The reason is that a necessary condition of success, even on a properly-layered ineffectiveness claim, is the presentation of an underlying issue with arguable...
To continue reading
Request your trial