Commonwealth v. Rivera
| Decision Date | 28 December 2018 |
| Docket Number | No. 730 CAP,730 CAP |
| Citation | 199 A.3d 365 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. William RIVERA, Appellant |
| Court | Pennsylvania Supreme Court |
William Rivera appeals from the order of the Court of Common Pleas of Philadelphia County denying his petition for relief from his death sentence, filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 – 9546, following an evidentiary hearing limited to one issue — whether penalty phase counsel was ineffective for failing to present mental health and life history mitigation evidence. For the reasons set forth below, we affirm.
We summarized the facts leading to appellant's conviction in our opinion on direct appeal affirming appellant's sentence of death. Commonwealth v. Rivera , 565 Pa. 289, 773 A.2d 131 (2001) ( Rivera I ). Relevant to the current appeal is the following background.
Appellant and his co-defendants, Robert Ortiz-Bonilla and Luis Centeno, were charged with homicide, robbery, criminal conspiracy, and related crimes in connection with the September 25, 1995, carjacking and murder of Tae Hung Kang (victim). Prior to trial, appellant's counsel filed and litigated a motion to suppress appellant's statement to detectives in which he admitted shooting the victim. The basis of the motion was detectives were aware appellant had retained counsel in another criminal case, but questioned him without informing that attorney. Although appellant was not colloquied regarding whether he wished to testify at the suppression hearing, Attorney Thomas McGill (guilt phase counsel) informed the court he had urged appellant to testify, but appellant refused. N.T. 1/23/98 at 3-4, 57-58. Based on this refusal, guilt phase counsel requested and was granted an immediate psychiatric evaluation to determine whether appellant was competent to stand trial. After the evaluation, Dr. Robert Stanton opined appellant was competent, N.T. 1/30/98 at 3, and after colloquy of appellant, the court determined appellant was competent to proceed. N.T. 1/23/98 at 10-13. The suppression motion was ultimately denied.
A panel of potential jurors was selected using a list of Philadelphia citizens who were either registered to vote or licensed to drive. During jury selection, the trial court questioned potential jurors regarding their views on the death penalty and whether those views would prevent them from imposing the death penalty, if appropriate. The trial court dismissed a number of jurors for cause without individual questioning based on their affirmative response to the question "[i]s there anyone here who would be unable for any reason, to impose a death sentence?" N.T. 1/26/98 at 23-28; N.T. 1/27/98 at 12-26, 145-49; N.T. 1/28/98 at 23-28. The trial court also dismissed for cause two potential jurors, Sandra Taylor and Cynthia Alexander, who were individually questioned and stated they would be uncomfortable imposing a death sentence. N.T. 1/26/98 at 44-46 (Taylor), 165-67 (Alexander). The prosecutor used 18 of 21 allotted peremptory challenges: eight to strike Caucasians; eight to strike African-Americans; one to strike a Hispanic person; and one to strike a person who identified her race as other. PCRA Court Op. at 38-39. The final jury included six African Americans, five Caucasians, and one juror who identified her race as other. Id. at 39.
Dr. Gregory McDonald, who performed the autopsy of the victim, was unavailable to testify at trial so Dr. Ian Hood, who was not present during the autopsy, testified as to Dr. McDonald's findings. Dr. Hood testified the victim had four gunshot wounds : one to the right hand from close range; one to the upper left chest near the collarbone; one to the upper left chest near the nipple; and another to the upper chest.
N.T. 1/30/98 at 78-80. Dr. Hood further testified the bullets went "almost straight backwards, a little rightwards, and a little upwards," and the victim's chin and lower lip displayed some soot and gunpowder stippling. Id. at 80-81. Furthermore, there were differing accounts from witnesses and appellant's own statement regarding whether appellant shot the victim while he was still inside the vehicle or during a struggle which occurred outside the vehicle.
During closing arguments for the guilt phase, the prosecutor argued Lisa Woods, a Commonwealth witness who was unable to recall the incident during her trial testimony, had blocked the "horrific events" out of her mind, and that Eric Williams, a Commonwealth witness who had identified appellant as the shooter in the past, but identified co-defendant Centeno as the shooter at trial, was better able to identify the shooter closer to the incident. N.T. 2/2/98 at 73. The prosecutor also relied on Dr. Hood's statement the bullets went rightwards to argue appellant shot the victim while he was still seated in the vehicle. Id. at 75-76. The prosecutor further stated a person who brings a loaded gun to a robbery is prepared to kill by any means necessary. Id. at 81-83. The jury ultimately convicted appellant of first-degree murder.1
At the penalty phase proceeding, the guilt phase testimony was incorporated at the request of the prosecutor. Attorney Norman Scott (penalty phase counsel) stipulated to appellant's juvenile record which included a robbery committed using a screwdriver as a weapon. Dr. William F. Russell, a forensic psychologist, testified on appellant's behalf. Using information supplied by penalty phase counsel, Dr. Russell testified appellant's "traumatic, uncontrolled, unstructured life" along with his low IQ, and the trauma of witnessing his mother's murder, all led to his inability to cooperate with counsel and control his aggressive actions. N.T. 2/5/98 at 34-37, 40, 47. During closing arguments, the prosecutor, referencing appellant's past crimes, remarked appellant's level of violence escalated as he got older. N.T. 2/5/98 at 57. The jury unanimously found the aggravating factor of the killing being committed during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), outweighed the catch-all mitigating circumstance, 42 Pa.C.S. § 9711(e)(8), and sentenced appellant to death.2
On appellant's direct appeal, which preceded Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726 (2002), he was represented by new counsel, and this Court afforded appellant unitary review of claims of trial court error as well as claims of guilt phase counsel's ineffectiveness during the guilt and penalty phases.3 Ultimately, we affirmed the judgment of sentence, holding the evidence at trial was sufficient to uphold appellant's first-degree murder conviction, Rivera I , 773 A.2d at 135-37, and appellant's petition for writ of certiorari to the United States Supreme Court was denied. Rivera v. Pennsylvania , 535 U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002).
Appellant filed a timely pro se PCRA petition in 2002, which was assigned to the trial judge, Judge Gary Glazer. A counseled amended PCRA petition was subsequently filed and the PCRA court entered a notice of dismissal pursuant to Pa.R.Crim.P. 909 on May 14, 2004. The court then dismissed the petition on June 3, 2004, which was the twentieth day after the notice of dismissal but still within the time period under Rule 909 during which appellant could file a response to the proposed dismissal. Appellant challenged the dismissal and, based on the PCRA court's failure to give appellant the full twenty days to respond to its notice of dismissal, this Court vacated the dismissal and remanded the case to the PCRA court for further proceedings. Commonwealth v. Rivera , 619 Pa. 464, 65 A.3d 290 (2013) ( Rivera II ). The PCRA court then granted a three-day evidentiary hearing limited to the issue of whether penalty phase counsel was ineffective for failing to develop and present mental health and life history mitigation evidence.
During the evidentiary hearing, appellant presented the testimony of both guilt phase counsel and penalty phase counsel. Guilt phase counsel testified he had no recollection of penalty phase counsel's work on appellant's specific case, but in his experience, it was penalty phase counsel who would normally collect all records pertaining to a defendant's childhood, including educational records and Department of Human Services (DHS) records. N.T. 11/16/15 at 95-101. Penalty phase counsel testified he had no recollection of whether he interviewed the man who murdered appellant's mother and did not remember if he provided Dr. Russell with DHS and educational records in this case, but it would have been his usual practice to do so. Id. at 25-26. Both guilt phase counsel and penalty phase counsel testified appellant was uncooperative during their preparation for trial and the penalty phase. Id. at 27, 47-48 (penalty phase counsel), 115-126 (guilt phase counsel). Edwin Dejesus (mother's murderer) also testified, stating appellant (who was then five years old), observed his mother's dead body just after he shot her. Id. at 139.
In addition, appellant presented the expert testimony of Dr. Russell and neuropsychologist Dr. Carol Armstrong. Dr. Russell testified he did not have enough information regarding appellant's background at the time of the penalty phase hearing and, only after receiving extensive materials prior to the PCRA hearing, was able to diagnose appellant with attachment disorder, post-traumatic stress disorder, and a severe learning disability. Id. at 15-42. Given this new information, Dr. Russell testified appellant was under extreme emotional disturbance at the time of the murder and was unable to conform his conduct to the requirements of the law. Id. at 44-45. On cross-examination, however, Dr. Russell stated the paperwork previously provided by penalty phase counsel contained much of the same information provided by PCRA counsel. Id. at 80-84.
Dr. Armstrong testified, based on her tests and examinations of appellant, he suffered from extreme mental and...
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