Commonwealth v. Keaton

• Citation: 45 A.3d 1050
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Alexander KEATON, Appellant. Commonwealth of Pennsylvania, Appellant v. Alexander Keaton, Appellee. Commonwealth of Pennsylvania, Appellee v. Alexander Keaton, Cross–Appellant.
• Decision Date: 30 May 2012
• Court: Pennsylvania Supreme Court

45 A.3d 1050

COMMONWEALTH of Pennsylvania, Appellee

v.Alexander KEATON, Appellant.

Commonwealth of Pennsylvania, Appellant

v.Alexander Keaton, Appellee.

Commonwealth of Pennsylvania, Appellee

v.Alexander Keaton, Cross–Appellant.

Supreme Court of Pennsylvania.

Submitted March 24, 2005.

Decided May 30, 2012.

Stuart Brian Lev, Stephen L. Marley, III, James Joseph McHugh, Jr., Philadelphia, for Alexander Keaton.

Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, William G. Young, Philadelphia, for Commonwealth of Pennsylvania.

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

OPINION

Justice EAKIN.

Alexander Keaton appeals from the denial of guilt phase relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546; the Commonwealth cross-appeals from the grant of a new penalty phase based on trial counsel's ineffectiveness for failing to present mitigating mental health evidence.¹ We affirm in part, reverse in part, and remand for further proceedings.

In December, 1992, Keaton was charged with rape and related offenses stemming from the November, 1992 sexual assault of Nadine S. One month later, the body of Keaton's ex-girlfriend, Sherrill Ann Hall, was found. Police questioned Keaton, who was in custody for the attack on Nadine S., about Hall's death. After waiving his rights, Keaton gave a written statement incriminating himself in the killing, and he was charged with murder. Later that day, police questioned Keaton about the June, 1992 rape of another woman, Michelle B. After waiving his rights, Keaton gave a written statement in which he admitted having oral sex with this victim, but denied assaulting her. He was charged with the rape of Michelle B. and related offenses.

The Commonwealth moved to consolidate the charges for all three victims. Over defense objection, the trial court granted the motion. Prior to trial, Keaton moved to suppress his statements; the motion was denied, and Keaton was tried before a jury and found guilty of first degree murder, rape, and related offenses. At the penalty phase, the Commonwealth sought to prove the following aggravating circumstances: the murder was committed in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); and the defendant had a significant history of felony convictions involving the use or threat of violence to the person, id., § 9711(d)(9). Keaton sought to establish the following mitigating circumstances: he was under the influence of extreme mental or emotional disturbance because of his drug addiction, id., § 9711(e)(2); his age (31) at the time of the crime, id., § 9711(e)(4); and any other evidence of mitigation concerning his character and record or the circumstances of the offense, id., § 9711(e)(8). The jury found no mitigating circumstances and one aggravating circumstance, that the murder occurred in perpetration of the felony of rape, id., § 9711(d)(6); ² accordingly, Keaton was sentenced to death. Id., § 9711(c)(1)(iv).

This Court affirmed on direct appeal, and the United States Supreme Court denied certiorari. Keaton v. Pennsylvania, 528 U.S. 1163, 120 S.Ct. 1180, 145 L.Ed.2d 1087 (2000). Keaton timely filed a pro se PCRA petition and received appointed counsel, who filed an amended petition alleging all prior counsels' ineffectiveness for not raising numerous guilt and penalty phase issues. The PCRA court held a hearing on the sole issue of trial counsel's ineffectiveness for failing to investigate and present mitigating evidence at the penalty phase.³ The PCRA court rejected Keaton's guilt phase claims, denying him a new trial; however, the court concluded trial counsel was ineffective for failing to develop and present mitigating evidence, and granted a new penalty hearing.

Keaton appealed from the denial of his guilt phase issues the Commonwealth appealed from the grant of a new penalty phase. The PCRA court's Rule 1925(a) opinion did not address several of the issues in detail, merely stating it found Keaton's claims of guilt phase error meritless and would not further discuss them; the only penalty phase issue the court addressed was trial counsel's ineffectiveness for not investigating and presenting mitigating evidence at the penalty phase. See PCRA Court Opinion, 9/11/03, at 12–22. Without conclusive findings regarding whether Keaton is mentally retarded, we could not address his Atkins claim; accordingly, we remanded for the PCRA court to consider the claim's merits and issue an opinion detailing its findings. See Per Curiam Order, 1/22/09; see also Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624, 632–33 (2005) (where both parties' experts' testimony was equivocal on issue of mental retardation, wavering between “borderline retarded” and “mentally retarded,” remand for evidentiary hearing was necessary). The PCRA court complied, issuing an opinion rejecting Keaton's claim of mental retardation and holding his Atkins claim was meritless. See PCRA Court Opinion, 11/13/09, at 1, 16–18. We may now address both parties' issues on appeal.

Our standard of review is well settled: “In addressing the grant or denial of post-conviction relief, an appellate court will consider whether the PCRA court's conclusions are supported by record evidence and are free of legal error.” Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294, 299 (2008) (citations omitted). To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the errors found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” Id., § 9543(a)(4). An issue is previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue....” Id., § 9544(a)(2). An issue is waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding.” Id., § 9544(b).

Keaton raises 13 ineffectiveness claims, an Atkins claim, and claims that the PCRA court erred in denying him discovery and a hearing. To be entitled to relief on an ineffectiveness claim, Keaton must prove the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).⁴ Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (1999). This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n. 23 (2000) (citing Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (1999) (ordinarily, post-conviction claim of ineffective assistance of counsel may be denied by showing petitioner's evidence fails to meet any one of three prongs for claim)).

An issue underlying one of Keaton's ineffectiveness claims was raised on direct appeal; specifically, we addressed his claim the prosecutor engaged in misconduct when she stated, during the guilt phase closing, that “animals don't treat each other the way this defendant treated these young women.” Keaton, at 540. However, Keaton now alleges his counsel's ineffectiveness in connection with this issue; therefore, his claim is distinct from that raised on direct appeal and has not been previously litigated. See Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 570, 573 (2005) (term “issue” as used in §§ 9543(a)(3) and 9544(a)(2) “refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief”; ineffectiveness claims must be treated as wholly independent of underlying claim of error).

Regarding waiver, at the time of Keaton's trial, direct appeal, and PCRA proceedings, he was required to raise claims based on trial counsel's performance at the first opportunity when he had new counsel. See42 Pa.C.S. § 9544(b); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).⁵ Regarding layered ineffectiveness claims, this Court has held the only viable portion of such claims is that regarding appellate counsel's failure to raise the underlying issues of trial counsel's ineffectiveness. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003) (holding argument must be presented on each prong regarding appellate counsel's ineffectiveness); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1021–22 (2003). “While in a number of instances, our review entails evaluation of the potential merits of waived underlying claims, such assessment is employed solely as a means of determining the viability of extant derivative claims [of appellate counsel's ineffectiveness].” Williams, at 300 (citing McGill, at 1024–25 (explaining layered claim of appellate counsel's ineffectiveness cannot be sustained where underlying claim of trial counsel's ineffectiveness lacks merit)). In his PCRA petition, which was filed before McGill, and appellate brief, which was filed after McGill, Keaton layered his ineffectiveness claims, thereby preserving the issue of appellate counsel's ineffectiveness. For the majority of his claims, he used boilerplate language and employed only cursory discussion of the ineffectiveness test's latter two prongs pertaining to appellate counsel.

Following McGill, there was uncertainty in...