Commonwealth v. Solano, s. 686 CAP

• Decision Date: 21 December 2015
• Docket Number: 687 CAP,Nos. 686 CAP,s. 686 CAP
• Citation: 129 A.3d 1156
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Raymond SOLANO, Appellee. Commonwealth of Pennsylvania, Appellee v. Raymond Solano, Appellant.
• Court: Pennsylvania Supreme Court

129 A.3d 1156

COMMONWEALTH of Pennsylvania, Appellant

v.Raymond SOLANO, Appellee.

Commonwealth of Pennsylvania, Appellee

v.Raymond Solano, Appellant.

Nos. 686 CAP

687 CAP

Supreme Court of Pennsylvania.

Submitted May 29, 2014.

Decided Dec. 21, 2015.

James H. Moreno, Esq., Federal Community Defender Office, Eastern District of PA, for Raymond Solano.

Heather F. Gallagher, Esq., Lehigh County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, James Bernard Martin, Esq., for Commonwealth of Pennsylvania.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice EAKIN.

The Commonwealth appeals from the order granting Raymond Solano relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 –9546, in the form of a new penalty phase, based on trial counsel's ineffectiveness for failing to present sufficient mitigating evidence. Solano cross-appeals from the portion of the same order denying him guilt-phase relief.¹ We affirm.

In 2003, a jury convicted Solano of first-degree murder for the shooting death of victim, who was playing basketball in a crowded park. After shooting victim repeatedly, Solano fled, but then turned around and shot toward the crowded park where victim lay; several casings were recovered from adjacent streets, and one bullet entered a nearby home. Based on this evidence, the jury found the grave-risk aggravating circumstance, 42 Pa.C.S. § 9711(d)(7) (in commission of offense, defendant knowingly created grave risk of death to another person in addition to victim), was established. The jury found the catch-all mitigating circumstance, id., § 9711(e)(8) (any other evidence of mitigation concerning defendant's character, record, and circumstances of offense), was established, based on evidence of Solano's childhood environment and lack of nurturing. The jury determined the aggravator outweighed the mitigator, and sentenced Solano to death. See id., § 9711(c)(1)(iv). This Court affirmed on direct appeal, and the United States Supreme Court denied certiorari. Solano v. Pennsylvania, 550 U.S. 938, 127 S.Ct. 2247, 167 L.Ed.2d 1096 (2007).

Solano timely filed a pro se PCRA petition and received appointed counsel, who filed an amended petition raising claims of ineffective assistance of counsel,² prosecutorial misconduct, and trial court error. Following a hearing, the PCRA court denied Solano's guilt-phase claims but awarded him a new penalty phase, holding trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence of the cognitive and psychological impact of Solano's traumatic and abusive childhood. See PCRA Court Opinion, 12/30/11, at 35–43. The Commonwealth appealed from the grant of a new penalty phase, and Solano cross-appealed from the denial of his guilt-phase claims.

Our standard of review and the prerequisites for PCRA relief are well settled:

"In addressing the grant or denial of post-conviction relief, an appellate court will consider whether the PCRA court's conclusions are supported by record evidence and are free of legal error."

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294, 299 (Pa.2008) (citations omitted). To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the errors 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, during unitary review 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).

Commonwealth v. Keaton, 615 Pa. 675, 45 A.3d 1050, 1060 (2012). We will first address Solano's issues, as most of them pertain to the guilt phase; if relief is due on any guilt-phase claim, we would not reach the Commonwealth's penalty-phase claim.

Solano's Issues

Solano raises 11 issues, none of which have been previously litigated or waived. Five of these claims focus on trial counsel's alleged ineffectiveness in conducting the guilt-phase investigation,³ failing to impeach certain witnesses or object to prejudicial testimony, and failing to challenge last-minute presentation of eyewitness testimony; another claim alleges trial counsel's ineffectiveness in connection with the application of the (d)(7) aggravator. Solano also claims trial counsel, who was from the public defender's office, labored under a conflict of interest because the same office simultaneously represented two of the alternative murder suspects on unrelated matters. In two issues, Solano alleges misconduct by the Commonwealth, and in another, he argues the PCRA court erred in dismissing his claim of newly discovered evidence. Finally, Solano alleges the cumulative effect of the errors in his case entitle him to a new trial. See Solano's Brief, at 1–2. Upon review of the record, we find support for the PCRA court's conclusions, which are free of legal error.

I. Guilt–Phase Claims

Most of Solano's guilt-phase claims pertain to counsel's alleged ineffectiveness.

To be entitled to relief on an ineffectiveness claim, [Solano] must prove the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa.2001) ; see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa.1987).⁴ Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (Pa.1999). This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n. 23 (Pa.2000) (citing Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (Pa.1999) (ordinarily, post-conviction claim of ineffective assistance of counsel may be denied by showing petitioner's evidence fails to meet any one of three prongs for claim)).

Keaton, at 1060–61 (footnote in original; renumbered).

A. Counsel's failure to investigate/present evidence supporting defense theory of case

Solano claims guilt-phase counsel was ineffective for failing to conduct a thorough investigation of evidence supporting the defense's theory that the shooting was gang related, committed by one of victim's rival-gang members, Alexis Concepcion. Solano contends information contained in police reports and a newspaper article, of which counsel was aware, would have alerted counsel to the fact that the shooting was in retaliation for the robbery of Concepcion by victim's gang, and that Concepcion was charged in another shooting occurring two years earlier. Solano notes police recovered from victim's car a blue hooded sweatshirt bearing victim's nickname and the acronym for a local gang. He argues this information should have been used to impeach Detective Wayne Simock's testimony that the shooting was not gang related. Solano further contends counsel should have impeached the detective with the affidavit of probable cause for Solano's arrest, in which the detective stated there was reason to believe victim was in a gang. Solano also notes the newspaper article contained information about two potential witnesses, George Williams and Patrick Price, whose testimony would have linked Concepcion and one of his fellow gang members, Catalino Morales, to the murder; Solano argues this evidence would have cast further doubt on the Commonwealth's case, particularly on its contention the shooting was not gang related.

Solano also claims counsel should have used the ballistics expert he retained to analyze whether the same person fired both guns used in the shooting.⁵ It was the Commonwealth's position that the same shooter fired both weapons; however, an expert Solano presented at the PCRA hearing testified the guns were not fired by the same person, given the witnesses' accounts of where the shooter ran, where he was last seen firing shots, and where the different shell casings were found. Solano argues such testimony would have diminished the credibility of the Commonwealth's case.⁶ While acknowledging the resources available to counsel were limited, Solano argues counsel did not fully utilize his investigator and primarily relied on the Commonwealth to provide him with information about the case.

The Commonwealth argues Solano's assertions that counsel was lax in his preparation of this case are belied by the record; Solano's case was counsel's primary focus, and he met with his client weekly, used two investigators, and interviewed witnesses. Despite counsel's reminders of the importance of providing information to assist in trial preparation, Solano frequently failed to give counsel complete details, and the limited information he disclosed often proved untrue. In light of the sketchy information Solano provided, the Commonwealth asserts counsel made a tactical decision to argue the shooting was gang related and Solano was not a gang member, was not present, and thus had no motive or opportunity to commit the crime.

Regarding whether counsel should have presented evidence linking Concepcion to the shooting, the Commonwealth notes that to the extent Solano claims counsel should have called the witnesses whose statements in the police reports indicated Concepcion was angry with victim,...