Commonwealth v. Showers

• Decision Date: 20 August 2001
• Citation: 782 A.2d 1010
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Judy Ann SHOWERS, Appellant.
• Court: Pennsylvania Superior Court

782 A.2d 1010

COMMONWEALTH of Pennsylvania, Appellee, v. Judy Ann SHOWERS, Appellant.

Superior Court of Pennsylvania.

Submitted February 5, 2001.

Filed August 20, 2001.

Reargument Denied October 25, 2001.

Caroline Roberto, Pittsburgh, for appellant.

John P. Muncer, Assistant District Attorney, Sunbury, for Com., appellee.

Before: CAVANAUGH, LALLY-GREEN and TAMILIA, JJ.

CAVANAUGH, J.

¶ 1 This appeal is from the denial of a first request for post-conviction relief from a life sentence for first degree murder. The central issue for determination is whether appellant showed by a preponderance of the evidence that counsel on direct appeal did not have a rational, strategic, or tactical basis for not pursuing the five issues now presented. We conclude that appellant has not borne her burden of proof, and therefore, we affirm the denial of post-conviction relief.

¶ 2 This court affirmed the judgment of sentence upon direct appeal in a published opinion on June 20, 1996. Com. v. Showers, 452 Pa.Super. 135, 681 A.2d 746 (1996). Appellant was represented by new counsel on that appeal, William C. Costopoulos, Esquire, who raised a total of eight issues of trial error and of the effectiveness of the representation of trial counsel, Michael Rudinski, Esquire. A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 27, 1996. 546 Pa. 665, 685 A.2d 544 (1996). The United States Supreme Court denied a petition for a writ of certiorari on May 12, 1997. 520 U.S. 1213, 117 S.Ct. 1698, 137 L.Ed.2d 824 (1997). On May 11, 1998, current counsel, Caroline M. Roberto, Esquire, filed a petition on behalf of appellant pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The allegations upon which relief was sought pertained to alleged ineffective representation both by trial counsel, Mr. Rudinski, and by appellate counsel, Mr. Costopoulos.

¶ 3 After the conduct of two evidentiary hearings and submission of briefs by the parties, the PCRA court denied relief in an order and opinion dated April 16, 1999. In an order and opinion filed January 7, 2000, the lower court again denied the PCRA motion. A notice of appeal from this order was filed on January 28, 2000. By order contained in a memorandum opinion dated June 12, 2001, this panel of the court remanded the case to the lower court for expansion of the record for an explanation of the entry of the two substantially identical orders. On remand, the lower court determined that the first order and opinion had not been served upon either defense counsel or upon the Commonwealth, and, therefore, vacated the order of April 16, 1999, by order dated June 27, 2001. Since the lower court retained inherent authority to correct court errors that would produce unfair results, Jackson v. Hendrick, 560 Pa. 468, 746 A.2d 574, 576-577 (2000), this appeal is now properly before us. ¶ 4 The salient facts underlying the conviction were recited in our opinion at 452 Pa.Super. 135,681 A.2d 746, 749. A jury convicted appellant of first degree murder of her husband. The cause of death was a lethal dose of liquid morphine. The defense was that Mr. Showers had committed suicide and was not the victim of foul play perpetrated by his wife. Among the Commonwealth's evidence was appellant's admission that she had forged a suicide note, and evidence that she knew of a current extramarital affair between her husband and a mutual friend, that she was alone with her husband in their home at the time he died, and that she benefitted financially upon his death.

¶ 5 The instant collateral appeal raises five challenges to the effectiveness of trial counsel and a challenge to the effectiveness of direct appeal counsel for not raising any of the five identified issues on direct appeal. (Appellant had a right to effective assistance of counsel on that direct appeal. Com. v. Balodis, 560 Pa. 567, 747 A.2d 341 (2000)). The statement of the two broad issues in appellant's brief is as follows:

I. Whether trial counsel provided ineffective assistance of counsel under the state and federal constitutions where he failed to:

A. investigate and pursue a forensic, medical-scientific defense and call an available forensic pathologist to establish that the prosecution's theory of homicide was impossible in light of forensic analysis of its own immutable physical evidence, which also proved the manner of death was suicide;

B. object to the Coroner's improper expert opinion that the manner of death was homicide, based upon his detailed recap of the police investigation and ongoing thought processes of investigator's;

C. object to the prosecution's pathologist's improper so-called "clinical history" of the case, another "recap" of the investigation;

D. object to yet another "recap" of the investigation by the final witness, a state trooper, whose recap and explanation of his thought processes was essentially a preview of closing argument, but, largely, not evidence; and

E. to move to suppress illegally obtained bank records and tax returns.

II. Whether new appellate counsel provided ineffective assistance of counsel under the state and federal constitutions where he failed to raise any of the foregoing instances of trial counsel's constitutionally inadequate representation, which appellate counsel correctly believed to be of arguable merit.

¶ 6 To be eligible for relief under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that an issue has not been previously litigated or waived, and that any failure to litigate an 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. 42 Pa.C.S.A. § 9543(a)(3), (4). Where there is an allegation of violation of the state and/or federal constitutions or an allegation of ineffective assistance of counsel, a petitioner must plead and prove by a preponderance of the evidence that, in the circumstances of the particular case, the error so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S.A. § 9543(a)(2)(i), (ii). Where a petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. Com. v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Counsel is presumed to be effective and petitioner has the burden of proving otherwise. Com. v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999). Counsel cannot be considered ineffective for failing to raise a claim that is without merit. Id.

¶ 7 Unless appellant proves by a preponderance of the evidence that Mr. Costopoulos was ineffective for not raising the five issues identified in this appeal, she is entitled to no relief. Specifically, under 42 Pa.C.S.A. § 9543(a)(4), it is appellant's burden to show that the decision of Mr. Costopoulos to raise only eight issues for review on direct appeal could not have been the result of any rational, strategic or tactical decision by him.

¶ 8 Where counsel is faulted for forgoing some of the issues which the client wished to raise, the relief available is an evaluation of the claims prior counsel has forgone for a determination of ineffectiveness. Com. v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998). Relief will be granted only if the petitioner shows 1) that counsel's conduct, by action or omission, was of questionable legal soundness; 2) that the conduct complained of had no reasonable basis designed to effectuate the client's interest; and 3) that counsel's conduct had an adverse effect on the outcome of the proceedings. Id. (quoting Com. v. Clark, 551 Pa. 258, 710 A.2d 31, 35 (1998)).

¶ 9 There is no requirement under the U.S. Constitution for appellate counsel to raise and to argue all colorable, nonfrivolous issues which a criminal defendant may seek to have reviewed on appeal. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In delivering the opinion of the Court, Chief Justice Burger stated the following:

Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years stated:

"One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one.... [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Jackson, Advocacy Before the United States Supreme Court, 25 Temple LQ 115, 119 (1951).

Justice Jackson's observation echoes the advice of countless advocates before him and since. An authoritative work on appellate practice observes:

"Most cases present only one, two, or three significant questions.... Usually, .... if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones." R. Stern, Appellate Practice in the United States 266 (1981).

There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review.... A brief that raises every colorable issue runs the risk of...