Commonwealth v. Philistin

• Decision Date: 18 July 2012
• Citation: 53 A.3d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Bortela PHILISTIN, Appellant.
• Court: Pennsylvania Supreme Court

53 A.3d 1

COMMONWEALTH of Pennsylvania, Appellee

v.Bortela PHILISTIN, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 4, 2009.

Decided July 18, 2012.

R. Nicholas Gimbel, McCarter & English, L.L.P., Robert Jeremy Levant, Levant, Martin & Tauber, P.C., James Joseph McHugh, Jr., Defender Association of Philadelphia, Mark D. Villanueva, McCarter & English, L.L.P., Philadelphia, for Bortela Philistin.

Hugh J. Burns, Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, PA Office of Attorney General, Harrisburg, for Commonwealth of Pennsylvania.

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

OPINION

Justice EAKIN.

Bortela Philistin appeals from the order denying collateral relief from his criminal convictions and death sentence, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–46. We affirm.

On June 16, 1993, appellant was transporting cocaine while riding in a hack cab, when Philadelphia Police Officers Robert Hayes and John Marynowitz stopped the cab. A scuffle ensued; appellant seized Officer Marynowitz's handgun and shot both officers. Officer Hayes died, and Officer Marynowitz was permanently disabled.¹

A jury convicted appellant of first degree murder and related offenses. In the penalty phase, the jury found the existence of two aggravating circumstances: the victim was a police officer killed in the performance of his duties, see42 Pa.C.S. § 9711(d)(1); and the defendant knowingly created a grave risk of death to another. See id., § 9711(d)(7). The jury found no mitigating circumstances; thus, it returned a death sentence. See id., § 9711(c). New counsel (appellate counsel) was appointed for appellant's post-trial motions and direct appeal. This Court affirmed on direct appeal. Philistin, at 744.

Appellant filed a pro se PCRA petition; current counsel began representing appellant and filed an amended PCRA petition. The PCRA court held an evidentiary hearing and denied relief. Appellant appealed to this Court.

Appellant raises the following claims, which we have rephrased and reordered for ease of discussion: (1) whether the trial court improperly excluded potential jurors who expressed only generalized opposition to the death penalty; (2) whether trial counsel was ineffective for failing to investigate or develop self-defense, imperfect self-defense, or diminished capacity claims, or to request a proper voluntary manslaughter jury instruction; (3) trial counsel should have objected to victim impact evidence; (4) whether trial counsel was ineffective for failing to challenge evidence of appellant's drug dealing; (5) trial counsel should have proven appellant's confession was coerced; (6) whether appellant was improperly denied his rights to testify and represent himself; (7) whether trial counsel was ineffective for failing to object to statements regarding appellant's immigration status; (8) whether trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth's closing argument; (9) whether trial counsel was ineffective for failing to investigate and present mitigating evidence; (10) whether trial counsel was ineffective for failing to introduce evidence that appellant had no prior felony convictions; (11) whether trial counsel should have advised appellant of his right to testify at the penalty hearing; (12) the PCRA court erred in not compelling trial counsel to explain why he did not submit fee petitions for representing appellant; and (13) the presence of uniformed police during appellant's trial denied him a fair trial.

In reviewing a PCRA court's order, we examine whether the PCRA court's determination is supported by the evidence and free of legal error. Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 358 (2011). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects 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, ... 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).

Appellant layers his ineffectiveness claims in an attempt to avoid waiver.²See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003)) (when court is faced with “layered” ineffectiveness claim, only viable claim is that related to most recent, appellate counsel). To preserve a “layered” ineffectiveness claim:

[A] petitioner must “ plead, in his PCRA petition,” that appellate counsel was ineffective for failing to raise all prior counsel's ineffectiveness. Additionally, a petitioner must “ present argument on, i.e. develop each prong of the [ Commonwealth v.] Pierce [515 Pa. 153, 527 A.2d 973 (1987) ] test” as to appellate counsel's deficient representation.

Id. (emphasis in original) (citations and footnote omitted); see also McGill, at 1021–23. However, when confronted with a layered claim where the appellate brief insufficiently develops the claim of appellate counsel's ineffectiveness, we have concluded:

[T]he better practice is not to reject claims of appellate counsel's ineffectiveness on the grounds of inadequate development in the appellate brief if the deficiencies in the brief mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity to amend. Accordingly, McGill's remand procedure will remain an option in cases such as this one, and we will review the underlying claim concerning trial counsel's stewardship to determine whether remand for further development of the claim pertaining to appellate counsel is required.

Commonwealth v. Walker, ––– Pa. ––––, 36 A.3d 1 (2011).

“[C]ounsel is presumed effective, and [appellant] bears the burden of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008) (citing Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 200–01 (1997)). The Pierce test requires appellant to prove, with respect to counsel's performance, that: “(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.” Lesko, at 373–74 (citing Pierce, at 975).³ Failure to prove any prong of this test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006). Additionally, we only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option. Steele, at 797.

I. Jury Selection

Appellant argues the trial court improperly removed two potential jurors who expressed only generalized opposition to the death penalty, without determining if they could follow the law and impose the death penalty. Appellant asserts counsel was ineffective in failing to object to the removal of these potential jurors, and direct appellate counsel was ineffective in failing to raise this claim on direct appeal.

The Commonwealth contends these potential jurors indicated their unwillingness to impose the death penalty, and counsel cannot be ineffective for failing to rehabilitate a potential juror. The PCRA court concluded the trial court did not abuse its discretion in excluding these two potential jurors, because they clearly “established an irrevocable commitment to vote against the death penalty.” PCRA Court Opinion, 12/1/08, at 25.

A potential juror in a capital case may not be excluded merely because of a general moral, personal, or religious reservation about the death penalty. Steele, at 803 (citing Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). Nonetheless, “a trial court is within its discretion to exclude jurors who expressed reservations about imposing the death penalty, and ... trial counsel has no constitutional obligation to attempt to change the jurors' views.” Id., at 804.

The record supports the PCRA court's finding the trial court did not abuse its discretion in removing these two potential jurors, as both jurors indicated their unwillingness to impose the death penalty. See N.T. Jury Selection, 1/25/95, at 78 (“I'm very nervous, I would have some feelings against the death penalty. I don't know whether I could do that.”); N.T. Jury Selection, 1/26/95, at 80 (“I'm Catholic and [the death penalty is] against the Ten Commandments.”). Thus, trial counsel was not ineffective for not questioning them further about their ability to follow the law. Accordingly, trial counsel was not ineffective for failing to raise this meritless claim, and appellant's claim regarding appellate counsel likewise fails.

II. Guilt Phase Claims

A. Self–Defense, Imperfect Self–Defense, and Diminished Capacity Defenses

Trial counsel, arguing the officers provoked appellant into shooting them, presented a voluntary manslaughter defense at trial. Appellant now argues trial counsel failed to sufficiently research and present alternative guilt phase defenses. Appellant claims trial counsel should have presented the proffered...