Commonwealth v. Parrish

• Decision Date: 28 April 2022
• Docket Number: 791 CAP
• Citation: 273 A.3d 989
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael John PARRISH, Appellant
• Court: Pennsylvania Supreme Court

273 A.3d 989

COMMONWEALTH of Pennsylvania, Appellee

v.Michael John PARRISH, Appellant

No. 791 CAP

Supreme Court of Pennsylvania.

Submitted: September 14, 2021

Decided: April 28, 2022

Robert Charles Patterson, Esq., Easton, PA, for Appellant Michael John Parrish.

Elmer D. Christine Jr., Esq., East Stroudsburg, PA, Richard Paul White, Esq., Monroe County District Attorney's Office, Ronald Eisenberg, Esq., Pennsylvania Office of Attorney General, Philadelphia, PA, for Appellee Commonwealth of Pennsylvania.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

JUSTICE DONOHUE

In this capital appeal, Appellant Michael John Parrish challenges the order of the Court of Common Pleas of Monroe County dismissing his petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). On appeal to this Court, Parrish raises numerous claims of error, including a layered ineffectiveness claim in connection with the failure of trial counsel to file a notice of appeal after his conviction and death sentence.¹ The first layer of this claim is his contention that trial counsel were ineffective for not consulting with him regarding his appellate rights before failing to file a notice of appeal, and in so doing, violated a constitutional duty established in Roe v . Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).² In this regard, Parrish asserts that if trial counsel had consulted with him, he would have instructed that a notice of appeal be filed on his behalf. The second layer of this claim is Parrish's assertion that his initial PCRA counsel's stewardship of the failure to consult claim before the PCRA court was deficient, in that initial PCRA counsel failed to present any evidence or legal argument to substantiate the failure to consult claim. In his brief filed with this Court, Parrish identifies the evidence and legal theory that his initial PCRA counsel should have presented to the PCRA court. Parrish raised the second layer of this claim for the first time before this Court in this appeal, and we conclude that he was permitted to do so without a finding of waiver based upon our recent decision in Commonwealth v. Bradley , ––– Pa. ––––, 261 A.3d 381 (2021). Accordingly, for the reasons set forth herein, we remand for the introduction of evidence and legal argument so that the PCRA court may issue a decision on the merits of Parrish's layered failure to consult claim.

This Court summarized the facts of record regarding the murder of Petitioner's girlfriend, Victoria Adams ("Victoria"), and their nineteen month-old-son, Sidney Parrish ("Sidney"), in Commonwealth v. Parrish , 657 Pa. 172, 224 A.3d 682 (2020).

[Parrish], Victoria, and Sidney lived in a Monroe County apartment, and, on the day of the murders, [Parrish] remained at the apartment with Sidney while Victoria spent the day with family and friends. As the day proceeded into evening, [Parrish] became worried that Victoria would not return home in time to give Sidney certain medications he required, a task [Parrish] did not know how to perform. [Parrish] was additionally concerned that Victoria might be pursuing a romantic relationship with someone else. That night, [Parrish] made a series of increasingly frequent and agitated calls to Victoria's mobile phone, which she initially answered, but later ignored. Later in the evening, Victoria and her companions went to a bar, where Victoria disclosed to them that [Parrish] was abusive and that she wished to end their relationship. Victoria asked three of her companions — her brother, Keith Adams, her cousin, James Ahern, and a friend, Christopher Ramos — to accompany her to the apartment, so that she could retrieve Sidney and her personal belongings, and end the relationship.

The three men agreed, and the group drove to the apartment. Victoria went inside while her brother Keith, Ahern, and Ramos waited in the car. Initially, [Parrish] emerged from the apartment brandishing a handgun and threatening Ahern with it, but, after Ahern lied that he, too, was armed, [Parrish] retreated inside. Shortly thereafter, gun flashes and gunshots emanated from the apartment. The three men attempted to enter the apartment to assist Victoria, but, as they approached the apartment, [Parrish] retrieved a shotgun and began firing at them, prompting them to flee and contact emergency services. Ultimately, [Parrish] vacated the apartment, and, approximately 30 to 40 minutes later, the men returned to the apartment, performed a cursory search, and found nothing amiss.

Nearly an hour later, Pennsylvania State Police arrived and entered the apartment, and, during a search of the premises, discovered Victoria's and Sidney's bodies in a back bedroom. Each had been shot multiple times. [Parrish] became the object of a multi-state manhunt, and he left Pennsylvania. He was later arrested in New Hampshire, where he was subjected to a search that yielded a .357 Glock semi-automatic handgun, which forensic tests revealed to have been consistent with the firearm that fired the 13 spent cartridge casings recovered from the crime scene. While being questioned by police, [Parrish] waived his Miranda^{[3 ]} rights and confessed to killing Victoria and Sidney, indicating that the events of the evening provoked him into such a rage that he fired a warning shot at the ceiling to get Victoria's attention. However, he recalled that he was so angry that he then "lost it" and shot Victoria while she was holding Sidney, inadvertently striking him, which caused [Parrish] to become even more furious such that he began to "spray" bullets at Victoria and Sidney, firing alternating series of shots at both until he ran out of ammunition.

Id . at 684-85 (citing Commonwealth v. Parrish , 621 Pa. 210, 77 A.3d 557, 560 (2013) (automatic review opinion)).

Prosecutors charged Parrish with two counts of first-degree murder, 18 Pa.C.S. § 2502(a). Parrish was represented by two attorneys with the Monroe County Public Defender's Office, the chief public defender of Monroe County Public Defender's Office, attorney Wieslaw Niemoczynski, Esq. for the guilt phase and James Gregor, Esq. for the penalty phase. Parrish , 77 A.3d at 560.

On August 18, 2009, the Commonwealth filed notice of intent to seek the death penalty. Although Parrish initially entered a guilty plea, before trial he withdrew his guilty plea and asserted his innocence. Motion to Withdraw Guilty Plea, 9/26/2011, at 1-2; Order, 9/26/2011. The case proceeded to a jury trial. The Commonwealth presented evidence consistent with this Court's summary of events set forth above, including forensic evidence showing that the victims were repeatedly shot at close range in vital organs of their bodies. Trial Court Opinion, 10/10/2012, at 16. Parrish did not dispute that he killed the victims, but at the guilt phase Attorney Niemoczynski presented a defense that Parrish did not act with a specific intent to kill because he "blacked out." Id . The jury convicted him on both counts of first-degree murder. Attorney Gregor represented Parrish at the penalty phase. The jury found two aggravating circumstances⁴ and multiple mitigating circumstances.⁵ The jury determined that the aggravating circumstances outweighed the mitigating circumstances and recommended the imposition of the death penalty.

At the hearing before the trial court for the imposition of sentence, Attorney Niemoczynski first called Parrish, who made a statement regarding his religious beliefs. N.T., 5/12/2012, at 4. Attorney Niemoczynski then told the court that he was presenting a letter written by Parrish having "to do with some procedure." Id . at 5. The letter, which was admitted into the record but not read aloud or discussed, stated that, "in the event that an appeal is filed on my behalf concerning my sentence without my written and verbal consent, I would like it to be known that the appeal should be considered unauthorized and I ask that it be made null and void. I do not give anyone authorization to file any appeals or motions on my behalf." N.T., 5/15/2012, at 12 (admitting defense Exhibit 1, Parrish letter to Judge Worthington, 5/15/2012, at 1). Parrish did not testify with respect to the letter, and counsel did not question him regarding his intention in writing it. Based upon the jury's recommendation, the trial court imposed a sentence of death. Sentencing Order, 5/15/2012, at 1.

Following imposition of sentence, the trial court advised Parrish of his appeal rights, explaining that, "because this is a death sentence, it is subject to automatic review by the Pennsylvania Supreme Court" and that "[p]ursuant to Title 42, Section 9711, [the Pennsylvania Supreme Court] must review the record of the death penalty case and the death sentence." N.T., 5/15/2012, at 10-11. The trial court then advised Parrish that he also had the right to file post-sentence motions within ten days and to appeal the denial of post-sentence motions directly to the Pennsylvania Supreme Court within thirty days from the date of the denial of post-sentence motions. Id . The trial court indicated that Parrish's appointed counsel – Attorneys Niemoczynski and Gregor – would remain his counsel for purposes of appeal. Id .

Matters involving the imposition of the death penalty have a two-track appeal process. On the first track, a sentence of death is subject to automatic review by this Court. 42 Pa.C.S. § 9711(h)(1) ; Commonwealth v. Towles , 630 Pa. 183, 106 A.3d 591, 597 (2014). Pursuant to section 9711(h)(1),

(h) Review of death sentence.--

* * *

(3) The Supreme Court shall affirm the sentence of death unless it determines that:

(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; or

(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d).

42 Pa.C.S. § 9711(h)(3)(i)-(ii). Pennsylvania Rule of Appellate Procedure 1941(a) sets forth the...