Commonwealth v. Wholaver

• Decision Date: 11 January 2018
• Docket Number: No. 717 CAP,717 CAP
• Citation: 177 A.3d 136
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ernest WHOLAVER Jr., Appellant
• Court: Pennsylvania Supreme Court

177 A.3d 136

COMMONWEALTH of Pennsylvania, Appellee

v.Ernest WHOLAVER Jr., Appellant

No. 717 CAP

Supreme Court of Pennsylvania.

Submitted: March 3, 2017

Decided: January 11, 2018

Francis T. Chardo III, Esq., Dauphin County District Attorney's Office, Jennifer Gettle, Esq., Amy Zapp, Esq., PA Office of Attorney General, for Appellee.

Hunter Stuart Labovitz, Esq., Maura McNally, Esq., Tracy L. Ulstad, Esq., for Appellant.

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

OPINION

JUSTICE BAER

This is a direct appeal from an order dismissing a petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 – 9546. Appellant Ernest Wholaver, Jr. ("Appellant"), who is sentenced to death, presents the Court with a multitude of issues, none of which afford him relief.¹ We, therefore, affirm the order dismissing Appellant's petition.

I. Factual and Procedural Backgrounds

A. Introduction

In July of 2002, the Commonwealth charged Appellant with several sexual offenses for alleged conduct involving his two daughters, Victoria and Elizabeth. At the time that the charges were filed, Elizabeth was a minor, and Victoria was the mother of a nine-month old baby named Madison. Madison's father is Francisco Ramos ("Ramos").

After the criminal charges were filed, Jean Wholaver ("Jean"), Elizabeth's mother and Appellant's wife, obtained a Protection From Abuse ("PFA") order against Appellant on Elizabeth's behalf. Among other things, the PFA order evicted Appellant from the family residence located in Middletown, Pennsylvania. As a result of this order, Appellant moved to Cambria County to live with his mother, father, and younger brother, Scott Wholaver ("Scott").

Thereafter, a preliminary hearing was held on Appellant's sexual offenses. Jean, Victoria, and Elizabeth testified against Appellant at that hearing. The charges were held for court, and trial on those charges was scheduled to commence in January of 2003.

Shortly after midnight on December 24, 2002, Appellant and Scott drove from their home in Cambria County to Jean's residence in Middletown. Scott waited in the vehicle while Appellant forcibly entered the home, where he shot and killed Jean, Victoria, and Elizabeth. Nine-month old Madison was relatively unharmed, but remained unattended until the bodies were discovered nearly 28 hours later.

Police arrested Appellant and charged him with, inter alia , three counts of first-degree murder. The Commonwealth subsequently issued notice that it intended to pursue the death penalty. While in prison awaiting trial, Appellant attempted to hire a man to kill Ramos (Madison's father) and frame him for the murders. The trial court consolidated the sexual offenses, murders, and the criminal solicitation related to Appellant's attempt to have Ramos killed.

The jury acquitted Appellant of the sexual offenses. However, the jury convicted Appellant of first-degree murder as to all three victims and of the crimes of killing prosecution witnesses (Jean, Victoria, and Elizabeth, witnesses to the sexual crimes pending trial when they were killed), conspiracy, reckless endangerment, and criminal solicitation (to have Ramos killed). The evidence presented in the guilt phase of trial was incorporated into the penalty phase.

During the penalty phase, the Commonwealth pursued four aggravating circumstances: (1) the defendant committed a killing while in the perpetration of a felony; (2) during the commission of the offense, the defendant knowingly created a grave risk of death to another person (baby Madison) in addition to the victim of the offense; (3) the defendant has been convicted of another murder committed in any jurisdiction, either before or at the time of the offense at issue; and (4) at the time of the killing, the defendant was subject to a PFA order.² 42 Pa.C.S. §§ 9711(d)(6), (7), (11), and (18), respectively. Appellant, on the other hand, sought to prove the no-significant-history-of-prior-criminal-convictions mitigating circumstance, as well as the catch-all mitigator. 42 Pa.C.S. §§ 9711(e)(1) and (8), respectively. The jury found all of the aggravators, and at least some of the jurors accepted Appellant's mitigating circumstances. After weighing the aggravating and mitigating circumstances, the jury returned verdicts of death as to each of the murder victims. Appellant appealed his judgment of sentence.

B. Direct Appeal

This Court affirmed the judgment of sentence. Commonwealth v. Wholaver , 588 Pa. 218, 903 A.2d 1178 (2006). In so doing, we concluded that the Commonwealth presented sufficient evidence to support Appellant's first-degree murder convictions and the aggravating circumstances found by the jury. Id. at 1182–83. Moreover, consistent with 42 Pa.C.S. § 9711(h), we determined that the sentences of death were not the product of passion, prejudice, or any other arbitrary factor. Id. at 1185. While Appellant raised a number of other issues, the Court found those issues were waived due to Appellant's failure to file timely a court-ordered Pa.R.A.P. 1925(b) statement. Id. at 1183–85.

Appellant subsequently filed a PCRA petition wherein he sought reinstatement of his right to a direct appeal due to trial counsel's failure to file timely a Pa.R.A.P. 1925(b) statement. The PCRA court granted the petition, and Appellant again appealed to this Court, raising fifteen issues, none of which warranted relief. Commonwealth v. Wholaver , 605 Pa. 325, 989 A.2d 883 (2010). Accordingly, the Court again affirmed Appellant's judgment of sentence. Appellant petitioned the United States Supreme Court for a writ of certiorari, which was denied on October 4, 2010. Wholaver v. Pennsylvania , 562 U.S. 933, 131 S.Ct. 332, 178 L.Ed.2d 216 (2010).

C. Current PCRA Petition

On September 2, 2011, Appellant, acting pro se , filed a PCRA petition. On September 8, 2011, the PCRA court issued an order dismissing the petition and granting Appellant leave to have his counsel of record file an amended PCRA petition. The order noted that courts cannot entertain pro se motions when a PCRA petitioner is represented by counsel. PCRA Court Order, 9/8/2011 (citing, inter alia , Commonwealth v. Pursell , 555 Pa. 233, 724 A.2d 293 (1999) ). Subsequently, Appellant, through counsel, filed an amended PCRA petition, which spans 247 pages and includes no fewer than 24 issues.

On April 27, 2012, Appellant filed a supplemental and amended PCRA petition. On January 8, 2013, the PCRA court issued an order and a supporting memorandum wherein the court gave notice that it intended to dismiss all but four of Appellant's issues without holding an evidentiary hearing. See Pa.R.Crim.P. 909(B)(2)(a) (explaining that a judge shall issue notice to the parties of its intent to dismiss a PCRA petition if the judge is satisfied that there are no genuine issues of material fact, that the petitioner is not entitled to collateral relief, and that no legitimate purpose would be served by any further proceedings). Appellant timely filed his objections to the court's notice. On January 28, 2013, the PCRA court dismissed the claims that it identified in its notice to dismiss.³

An evidentiary hearing was held on September 6, 2013. The only witness to testify at that hearing was Appellant's trial counsel. Shortly thereafter, Appellant filed a motion in which he sought an opportunity to present evidence at another hearing. Following the Commonwealth's answer to this motion, the PCRA court issued an order and a supporting memorandum on March 31, 2014, providing its notice of intent to dismiss two of Appellant's four remaining claims and granting Appellant an additional hearing to address Brady⁴ claims and related claims of ineffective assistance of counsel. As to Appellant's only other unresolved issue, which involves underlying claims of juror misconduct, the court directed the Dauphin County Court Administration to release to counsel questionnaires completed by two members of Appellant's jury. The court directed that the questionnaires be kept under protective seal.

On May 7, 2014, the PCRA court formally dismissed the two claims identified in its March 31, 2014, notice to dismiss. Appellant then asked the PCRA court to grant his request for additional discovery related to his Brady claims. On August 28, 2014, the court granted in part and denied in part this discovery request. This order required the Commonwealth to provide to Appellant a number of documents and materials related to witnesses that the Commonwealth presented at Appellant's trial. The court denied Appellant's request for similar documents related to individuals who did not testify at trial.

On September 4^th and 5^th of 2014, the PCRA court held its final hearing on Appellant's PCRA petition. Over the course of those two days, in connection with his substantive Brady claims, Appellant presented the testimony of Robert Marley, Steven Stephens, Wilson Talavera, and James Meddings, all of whom spent time in prison with Appellant after his arrest and were Commonwealth witnesses at Appellant's trial. Appellant also presented testimony from two members of his jury and from Ronald Diller ("Agent Diller"), who, as a narcotics agent for the Pennsylvania Attorney General, had utilized Robert Marley as a confidential informant. The Commonwealth presented testimony from only one witness, Francis Chardo, Esquire ("Attorney Chardo"). Attorney Chardo is the Assistant District Attorney of Dauphin County who prosecuted Appellant.

On January 6, 2015, Appellant filed a motion for discovery, which the court denied. Appellant subsequently filed a motion for leave to amend his PCRA petition to conform to the evidence presented at the evidentiary hearings. The court granted this motion, noting that the facts and allegations as set forth in the motion were incorporated into Appellant's previously filed PCRA petition and supplements thereto. On September 22, 2015, the PCRA court issued an order and a supporting memorandum denying Appellant...