Commonwealth v. Laird

• Decision Date: 20 July 2015
• Docket Number: No. 683 CAP,683 CAP
• Citation: 119 A.3d 972
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard Roland LAIRD, Appellant.
• Court: Pennsylvania Supreme Court

119 A.3d 972

COMMONWEALTH of Pennsylvania, Appellee
v.
Richard Roland LAIRD, Appellant.

No. 683 CAP

Supreme Court of Pennsylvania.

Submitted Nov. 7, 2014.
Decided July 20, 2015.

119 A.3d 975

Elizabeth Hadayia, Esq., Federal Community Defender Office, Capitol Habeas Unit, for Richard Roland Laird.

Jill Marie Graziano, Esq., Michelle Ann Henry, Esq., Doylestown, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

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

OPINION

Chief Justice SAYLOR.

This capital post-conviction appeal relates to Appellant's killing of Anthony Milano in 1987. The underlying facts are described in Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991), and Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618 (2010).

Briefly, on the night of December 14, 1987, Milano drove to the Edgely Inn in Bristol Township, a bar where Appellant

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and his friend Frank Chester were drinking. Milano, Chester, and Appellant conversed and drank alcohol until the early morning hours of December 15. Witnesses testified that, during this time, Appellant seemed coherent, was able to walk without swaying or stumbling, and was not slurring his speech. At some point, Appellant and Chester began taunting Milano because they thought he might be homosexual. In spite of the taunting, Milano agreed to give Appellant and Chester a ride home. Traveling in Milano's car, they eventually proceeded to a wooded area, stopped along the side of the road, and exited the vehicle. Chester struck Milano, causing him to fall to the ground. Appellant pinned Milano down and killed him by slashing his throat repeatedly with a box-cutter. Appellant and Chester ran to the home of a friend, Rich Griscavage. On arriving at Griscavage's residence, Chester said they had gotten into a fight and “the dude is dead.” Appellant told Chester to “shut up.” Griscavage gave Appellant a ride home on his motorcycle. He testified that Appellant had no trouble keeping his balance or leaning into turns.

Later that day (December 15, 1987), Appellant's girlfriend observed Appellant place his blood-covered keychain and clothing into a plastic bag, which he discarded in a dumpster in a nearby town. She testified that Appellant disposed of the box cutter by throwing it into a creek, and, additionally, asked her if she could “be an alibi.” That evening, Milano's car was found engulfed in flames, and the fire marshal testified that, in his opinion, the fire was deliberately set. Milano's body was found near the car.

The Commonwealth introduced a recording and transcript of a phone call between Chester and Appellant that occurred five days after the killing, the interception of which was approved by Chester. During the call, Appellant: suggested that Chester leave town; indicated his intention to “hide until this blows over;” recommended ways of passing a polygraph test; commented on the district attorney's inability to prove a case without evidence; and expressed a belief that criminal homicide is subject to a seven-year statute of limitations. See Laird, 605 Pa. at 150–52, 988 A.2d at 625–26 ; Chester, 526 Pa. at 586–89, 587 A.2d at 1371–72.

Appellant and Chester were tried together in May 1988. Each testified and admitted he was present at the crime scene, but blamed the other for the killing. Both defendants were convicted of first-degree murder, kidnapping, aggravated assault, and related offenses. Both were sentenced to death. This Court affirmed the judgments of sentence. See Chester, 526 Pa. at 615, 587 A.2d at 1385.

Appellant filed a timely petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 –9546 (“PCRA”), which was denied. See Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999). The federal district court granted in part Appellant's subsequent petition for habeas relief, vacating his first-degree murder conviction and death sentence. See Laird v. Horn, 159 F.Supp.2d 58 (E.D.Pa.2001), aff'd, 414 F.3d 419 (3d Cir.2005). With Appellant's conviction for, inter alia, kidnapping still in place, the Commonwealth retried him on the first-degree murder charge in February 2007.

At his retrial, Appellant was represented by attorneys John Kerrigan and Keith Williams, with the former having a leading role in the guilt phase and the latter primarily responsible for the penalty phase. For his guilt-phase strategy, Appellant stipulated that he participated in murdering Milano, but not that he acted with specific intent. Thus, the only question for

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the jury was whether Appellant acted with a specific intent to kill so as to make him guilty of first-degree murder. As to this issue, Appellant advanced a diminished-capacity defense, which negates specific intent so as to mitigate first-degree murder to third-degree murder.See Commonwealth v. Hutchinson, 611 Pa. 280, 341, 25 A.3d 277, 312 (2011). To support the defense, Appellant presented the testimony of multiple experts who indicated that Appellant had a high blood-alcohol content (“BAC”) at the time of the killing and that this, together with brain damage resulting from head injuries sustained during Appellant's life, impeded Appellant from forming the requisite intent to kill. The experts also developed that, given the amount of alcohol Appellant ingested prior to the killing, he may have been acting in an “alcoholic blackout,” where he could function normally but later have no recall of the time period in question. Two of the experts related that Appellant told them shortly before the retrial that he had no memory of the killing. See Laird, 605 Pa. at 148, 988 A.2d at 624.

The defense was unsuccessful, however, as the jury convicted Appellant of first-degree murder. In the penalty phase, Appellant again received the death penalty when the jury determined that the only aggravating factor it found—the circumstance pertaining to a killing committed while in the perpetration of a felony (here, kidnapping), see 42 Pa.C.S. § 9711(d)(6) —outweighed the mitigating circumstances found by one or more jurors pursuant to the “catchall” mitigator, see id. § 9711(e)(8) (relating to “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense”).¹ This Court affirmed the judgment of sentence on direct appeal. See Laird, 605 Pa. at 186, 988 A.2d at 648.

Appellant filed a counseled, amended PCRA petition, raising thirteen claims. The PCRA court, per Judge Boylan (who also presided over Appellant's retrial), dismissed two claims without a hearing.² The court thereafter conducted an evidentiary hearing on the remaining claims on May 23, May 24, and June 19, 2012, at which a number of witnesses testified, including Attorneys Kerrigan and Williams. The PCRA court denied relief by two orders dated August 7, 2013.³ After Appellant filed a notice of appeal, the court issued an opinion pursuant to Rule 1925(a), Pa.R.A.P., addressing each of the allegations of error reflected in the notice of appeal and concluding that it had properly denied the petition. See Commonwealth v. Laird, No 1988–746, slip op. 2014 WL 8734830 (C.P. Bucks April 10, 2014) (“PCRA Ct. Op. II”).

To be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one of the circumstances enumerated in Section 9543(a)(2) of the PCRA, 42 Pa.C.S. § 9543(a)(2), and

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that the allegation of error has not been previously litigated or waived. See Commonwealth v. Baumhammers, 625 Pa. 354, 364–65, 92 A.3d 708, 714 (2014) (citing Commonwealth v. Sneed, 616 Pa. 1, 16–17 & n. 13, 45 A.3d 1096, 1105 & n. 13 (2012) ). Because all the claims Appellant presently raises relate to an alleged deprivation of the Sixth Amendment right to competent counsel, see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970), he may only prevail if he pleads and proves that his conviction or sentence resulted from ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have occurred. See 42 Pa.C.S. § 9543(a)(2)(ii) ; Commonwealth v. King, 618 Pa. 405, 415, 57 A.3d 607, 613 (2012).

Pennsylvania's test for ineffectiveness is the same as the two-part performance-and-prejudice standard set forth by the United States Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), albeit this Court has divided the performance element into two sub-parts dealing with arguable merit and reasonable strategy. See Commonwealth v. Washington, 592 Pa. 698, 713 n. 8, 927 A.2d 586, 594 n. 8 (2007). Therefore, to succeed on an ineffectiveness claim, a petitioner must demonstrate that: the underlying claim is of arguable merit; counsel had no reasonable basis for the act or omission in question; and he suffered prejudice as a result, i.e., there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See Commonwealth v. Harris, 578 Pa. 377, 387, 852...