Commonwealth v. Freeman

Citation827 A.2d 385,573 Pa. 532
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Robert FREEMAN, Appellant.
Decision Date30 May 2003
CourtUnited States State Supreme Court of Pennsylvania

Robert Brett Dunham, George Henry Newman, Philadelphia, for Appellant, Robert Freeman.

Catherine Marshall, Philadelphia, Amy Zapp, Harrisburg, for the Com. of PA.




On June 18, 1998, a jury sitting in the Court of Common Pleas of Philadelphia County convicted appellant of two counts of first-degree murder,1 and possession of an instrument of crime.2 At the penalty hearing, the jury found one aggravating circumstance—that appellant had been convicted of another murder at the time of the current offense3—and no mitigating circumstances; accordingly, the jury imposed a sentence of death.4 Trial counsel subsequently withdrew from the matter and present counsel entered the case. This direct appeal followed.

Before turning to consideration of the substantive claims raised by appellant and the substantive issues this Court independently undertakes to review in direct capital appeals, we note this Court's recent decision in Commonwealth v. Grant, 813 A.2d 726 (Pa.2002). Grant overruled the procedural rule announced in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which required new counsel to raise claims of previous counsel's ineffectiveness at the first opportunity, even if that first opportunity is on direct appeal and the claims of ineffectiveness were not raised in the trial court. The new general rule announced in Grant is that a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review." 813 A.2d at 738. The Court in Grant applied the new rule to the parties in that case, dismissing Grant's claims of ineffective assistance of trial counsel without prejudice to his ability to raise the claims on collateral review. Grant further held that its new rule applies retroactively to "any other cases on direct appeal where the issue of ineffectiveness was properly raised and preserved." Id.

Grant affects the appeal sub judice in two ways. First, it affects the case directly because appellant is represented by new counsel on appeal and appellant raises numerous claims sounding in the ineffective assistance of trial counsel which were not raised below. Second, Grant affects this case indirectly because there are a number of additional claims raised in this appeal which, though they do not sound in the alleged ineffective assistance of trial counsel, nevertheless were not raised below. These waived claims of trial court error are reviewable here, if at all, only under this Court's direct capital appeal relaxed waiver doctrine. For reasons explicated below, we believe that many of the same considerations powering our decision in Grant require a similar reevaluation of the viability of the capital case relaxed waiver doctrine. Although we will still employ the doctrine to reach many of appellant's waived claims in this case, we abrogate and reshape that doctrine prospectively, so as to better ensure the fair and efficient administration of criminal justice in Pennsylvania.

I. Ineffective Assistance of Trial Counsel

Appellant raises eight primary claims of ineffective assistance of trial counsel involving both the guilt and penalty phases of trial.5 None of these claims were raised below. Consistently with Grant, we dismiss the claims without prejudice to appellant's right to pursue these claims, and any other available claims, via a petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

II. Relaxed Waiver

Appellant also raises nine claims of trial court error.6 Many of these claims are waived because appellant failed to raise them in the trial court. Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). See also Commonwealth v. Robinson, 543 Pa. 190, 670 A.2d 616, 620 (1995)

(collecting cases). However, since this is a direct appeal in a capital case, consistently with this Court's long-standing precedent, we have the discretion to reach claims of trial court error which, though waived, are resolvable from the record. Grant was a non-capital case arising on this Court's allocatur docket, involving claims of trial counsel ineffectiveness raised for the first time on appeal; accordingly, Grant did not address this Court's capital appeal relaxed waiver doctrine. Nevertheless, many of the same difficulties that prompted this Court to reexamine and ultimately overrule the Hubbard doctrine in Grant are no less present when this Court considers belated claims of error at trial, raised for the first time on appeal under the capital case relaxed waiver doctrine. Grant held that new claims of trial counsel ineffectiveness are generally better suited for review on collateral attack. We think a similar general rule should govern consideration of claims of trial court error in capital cases that were not raised before the trial court.

Grant noted that, as reflected in Appellate Rule 302(a), appellate courts generally will not entertain claims raised for the first time on appeal. We explained that:

[S]uch a prohibition is preferred because the absence of a trial court opinion can pose a "substantial impediment to meaningful and effective appellate review." See, e.g., Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998)

. Further, appellate courts normally do not consider matters outside the record or matters that involve a consideration of facts not in evidence. Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1036 n. 11 (1996). Most importantly, appellate courts do not act as fact finders, since to do so "would require an assessment of the credibility of the testimony and that is clearly not our function." See, e.g., Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189, 198 (1994); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865, 869 (1986).

Grant, 813 A.2d at 733-34. The Grant Court further noted, however, that in the area of ineffectiveness claims, and under Hubbard, appellate courts are routinely called upon to perform each of these disfavored tasks:

In ruling on an ineffectiveness claim, it is rare that a trial court opinion exists which will aid the appellate court in examining the claim. Appellate courts are frequently called upon to consider matters outside the record. Moreover, appellate courts often engage in some fact finding by being required to speculate as to the trial strategy of trial counsel in order to rule upon these claims.

Id. These difficulties "prompt[ed] us to revisit the continued validity of Hubbard." Id. In that consideration, we noted that the general preference in the overwhelming majority of jurisdictions was to defer review of counsel ineffectiveness claims until collateral review. Id. We also noted the difficult task facing appellate counsel, in the wake of Hubbard, in attempting to uncover and develop extra-record claims of counsel ineffectiveness in the truncated time frame available on direct appeal review, a task further complicated by the fact that counsel's duty in this regard is not entirely clear, at least as a constitutional matter. Id. at 736 (discussing Woods v. State, 701 N.E.2d 1208 (Ind. 1998), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). Ultimately, this Court concluded that "the same concerns that animated our general approach to appellate review should apply with equal vigor in the ineffectiveness arena." Id. at 737, 87 S.Ct. 1396. Accordingly, we overruled Hubbard and adopted a new general rule which more closely conformed to Rule 302(a) and this Court's general appellate practice.

Some of the same difficulties which led to Grant's overruling of Hubbard also arise when this Court employs relaxed waiver in capital cases to address issues of trial error not raised below.7 This Court often is required to decide such issues without the benefit of a trial court opinion or other indication of the trial judge's view. We observed in Grant that "the trial court is in the best position to review claims related to trial counsel's error in the first instance as that is the court that observed first hand counsel's allegedly deficient performance." 813 A.2d at 737. This is no less true for claims of alleged trial court error—and particularly where discretionary decisions, such as the admission or exclusion of evidence, which often depend upon trial context, are involved. See Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 456 (1998)

("Clearly, the trial court is in the best position to correct trial errors because it hears the objectionable matter and can promptly assess its effect on the jury in the framework of the entire trial."). Under relaxed waiver, the trial judge is eliminated from the process no less than under the Hubbard rule.

At the same time this Court, of necessity, is frequently obliged to consider matters outside of the record when reaching a claim under relaxed waiver. When a claim has not been raised in the trial court there is often a scant or insufficient record for appellate review. "Where parties below were not aware that a particular issue was being raised, it was quite likely that testimony germane to that issue would be overlooked or believed to be unnecessary and consequently not presented." Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48, 52 (1975). The record will be devoid of relevant, contemporaneous arguments from the trial attorneys, who were in the best position to advocate the merits of the matter when it arose—particularly with respect to the harmfulness or curability of an objectionable event, a matter which appears in a very different light before a verdict has been returned. After-the-fact reconstructions, non-record sources, and...

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