Grounds for Seeking Post Conviction Relief

3 Grounds for Seeking Post Conviction Relief 3.01 A Violation of the Constitution of Pennsylvania or the Constitution or Laws of the United States ( 9543(a)(2)(i)) [1] Introduction Although the Act requires a defendant seeking post conviction relief on grounds of constitutional error 1 to establish that the error so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place, 2 the Act has been applied where the claim does not directly implicate the adjudication of guilt or innocence. 3 Most allegations of violations of rights protected by the Pennsylvania Constitution and the Constitution and laws of the United States 4 are raised and decided in the context of a claim of ineffective assistance of counsel. 5 The claim will be linked to an ineffectiveness claim to avoid a finding that the constitutional claim was waived because it was not raised 1. Following the 1995 amendments, claims based upon a violation of state statutes are not cognizable under section 9543(a)(2)(i). The amendments to the section permit a defendant to raise a violation of federal law as a basis for PCRA relief. 2. 42 Pa.C.S. 9543(a)(2)(i) (1998). 3. Commonwealth v. Hackett, 956 A.2d 978 (Pa. 2008); Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007). 4. Commonwealth v. Quaranibal, 763 A.2d 941 (Pa.Super. 2000) (defendant failed to establish that denial of rights under Vienna Convention resulted in prejudice). 5. See, for example, Commonwealth v. Correa, 664 A.2d 607 (Pa.Super. 1995) (as prosecution s exaggerated rhetoric deprived defendant of fair trial, defense counsel was ineffective in failing to object to prosecution s statements); Commonwealth v. Kilgore, 719 A.2d 754 (Pa.Super. 1998) (counsel ineffective for failing to assert rights under Article I, Section 8 of Pennsylvania Constitution). 17

The Post Conviction Relief Act at trial or on appeal 6 unless the claim involves a non-waivable issue. 7 If the court concludes that the constitutional claim is meritless, the related ineffectiveness claim also fails under the first prong of the standard governing ineffective assistance of counsel claims. 8 Waiver is not an issue where the defendant asserts a constitutional right newly recognized by the United States Supreme Court to apply retroactively. 9 Prior to the repeal of section 9543(a)(2)(v) by the 1995 amendments to the Act, some claims of constitutional error were considered under that section, which provided post conviction relief for a violation of the United States Constitution which would require the granting of federal habeas corpus relief. 10 Claims considered cognizable under this provision of the Act included a claim that counsel was ineffective in advising the defendant to reject a plea offer, 11 a claim that a defendant s disproportionately heavy sentence in comparison to other similarly situated defendants violated equal protection of the laws guaranteed by the Fourteenth Amendment, 12 a Sixth Amendment speedy trial claim, 13 and a Fifth Amendment claim of improper references to defendant s post arrest silence. 14 Such claims must now be considered under section 9543(a)(2)(i), which requires the defendant to establish that the claimed constitutional 6. Commonwealth v. Christy, 656 A.2d 877, 881 (Pa. 1995) (ineffectiveness will excuse waiver at trial and on appeal because the defendant has constitutional right to counsel in such a proceeding). See also Commonwealth v. Eaddy, 614 A.2d 1203 (Pa.Super. 1992); Commonwealth v. Pitts, 580 A.2d 352 (Pa.Super. 1990). 7. An issue of double jeopardy involving the legality of the sentence imposed is nonwaivable. Commonwealth v. Staples, 471 A.2d 847, 850, n.5 (Pa.Super. 1984) ( because the illegality of sentence is not a waivable issue, we need not discuss the issue of prior PCHA counsel s ineffectiveness ). See also Commonwealth v. Quinlan, 639 A.2d 1235 (Pa.Super. 1994). 8. The three-prong standard governing claims of ineffective assistance of counsel is set forth in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). In Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995), the court considered a number of constitutional violations asserted as a basis for post conviction relief. In finding the claims lacked merit, the court also found that the related ineffective assistance of counsel claim failed, since counsel could not be considered ineffective for failing to assert a meritless claim. See also Commonwealth v. DeHart, 650 A.2d 38, 42 (Pa. 1994). 9. Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005) (Eighth Amendment prohibits execution of mentally retarded). 10. 42 Pa.C.S. 9543(a)(2)(v) (1998). 11. Commonwealth v. Boyd, 688 A.2d 1172 (Pa. 1997). In Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 131 (Pa. 2001), the court held that to the extent Boyd suggested that ineffectiveness claims that arise from the plea-bargaining process are not eligible for review under section 9543(a)(2)(ii), it is overruled. 12. Commonwealth v. Gaerttner, 649 A.2d 139 (Pa.Super. 1994). 13. Commonwealth v. Eaddy, 614 A.2d 1203 (Pa.Super. 1992). 14. Commonwealth v. Lassen, 659 A.2d 999 (Pa.Super. 1995). 18

Grounds for Seeking Post Conviction Relief 3.01 violation undermined the truth-determining process, or under section 9543(a)(2)(ii), as a claim of ineffective assistance of counsel. 15 In Commonwealth v. Chester, 16 the Supreme Court held that because the penalty phase hearing of a capital case involves the presentation of evidence and a determination of facts pursuant to the beyond a reasonable doubt standard, it is a truth-determining process within the meaning of sections 9543(a)(2)(i) and (a)(2)(ii) of the Post Conviction Relief Act. 17 Capital cases, the court concluded, simply present another facet to the common understanding of guilt or innocence. 18 [2] Facially cognizable constitutional claims [a] Failure to disclose exculpatory evidence The prosecution s failure to disclose exculpatory evidence in violation of Brady v. Maryland 19 may, in light of the circumstances of the case, undermine the truth-determining process entitling a defendant to post conviction relief. To establish a violation of Brady, a defendant must demonstrate that the prosecution willfully or inadvertently withheld exculpatory 20 or impeachment evidence. 21 In addition, the defendant must establish that the evidence was favorable to him or her and that the evidence was material. In determining materiality, a court must consider the cumulative or collective effect of the suppressed evidence. 22 Evidence is material under Brady if there exists a reasonable probability that had the evidence been disclosed, the result of the trial would have been different. 23 15. See Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001). 16. Commonwealth v. Chester, 733 A.2d 1242 (Pa. 1999). 17. See Commonwealth v. Hackett, 956 A.2d 978 (Pa. 2008), and Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007), for a discussion of scope of the PCRA and cases holding PCRA not applicable where claim does not directly implicate the adjudication of guilt or innocence. 18. 733 A.2d at 1249. See also Commonwealth v. Faulkner, 735 A.2d 67 (Pa. 1999). Where the PCRA court dismisses all guilt-related claims but grants a new sentencing hearing, appellate review of the PCRA court s decision denying guilt phase relief should precede the imposition of a new sentence by the trial court. Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001). 19. Brady v. Maryland, 373 U.S. 83 (1963). 20. Commonwealth v. Weiss, 986 A.2d 808, 814 15 (Pa. 2009). 21. United States v. Bagley, 473 U.S. 667, 677 (1985). 22. Kyles v. Whitley, 514 U.S. 419 (1995). See also Cone v. Bell, 556 U.S. 449 (2009). For a discussion of Kyles/Brady cumulation analysis, see Commonwealth v. Abdul-Salaam, 42 A.3d 983 (Pa. 2012). 23. Kyles v. Whitley, 514 U.S. 419, 433 34 (1995). See also Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999) ( to be entitled to a new trial for failure to disclose evidence affecting a witness credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence ). 19

The Post Conviction Relief Act In Commonwealth v. Galloway, 24 the prosecution failed to turn over to the defendant information concerning the fact that a prosecution witness s recollection was hypnotically refreshed prior to trial. Hypnosis evidence, the court concluded, constituted Brady information because it goes to the credibility of the witness and, under the circumstances of the case, the evidence was material 25 because there was the probability that had the jury been permitted to hear the testimony, the result of the proceeding would have been different. Because the truth-determining process had been undermined by the prosecution s failure to disclose the evidence, 26 the defendant was entitled to post conviction relief. In Commonwealth v. Strong, 27 the defendant requested and obtained in advance of his PCRA hearing all relevant documents contained in the prosecution s file. The district attorney made available several letters that revealed that the prosecution and co-defendant s counsel had discussed an agreement with the co-defendant prior to the defendant s trial. Notwithstanding the defendant s specific request prior to trial, the information was not made available to the defendant. In reversing the PCRA court, the Supreme Court found that the record established the existence of an understanding between the Commonwealth and the codefendant that he would be treated with leniency in exchange for his testimony against the defendant. The court concluded that an ironclad agreement between the co-defendant and prosecution was not necessary to establish a violation of Brady. In addition, the court concluded that the withheld evidence was material because the credibility of the co-defendant was decisive to the jury s finding as to the defendant s guilt. Where the withheld Brady evidence would not have affected the outcome of the trial in light of other evidence linking the defendant to the crime, the defendant was not entitled to relief, since the prosecution s failure to disclose the information did not undermine the truth-determining process. 28 24. Commonwealth v. Galloway, 640 A.2d 454 (Pa.Super. 1994). 25. The hypnotized witness was the only witness who testified that the defendant had been the triggerman in one of the shootings in question. 26. In Galloway, the court concluded that the defendant was not entitled to relief on grounds that hypnosis evidence was newly discovered evidence (section 9543(a)(2)(v)), since the evidence goes solely to the witness s credibility. For a discussion of newly discovered evidence as grounds for post conviction relief, see section 3.05 in this chapter. 27. Commonwealth v. Strong, 761 A.2d 1167 (Pa. 2000). 28. Commonwealth v. Buehl, 658 A.2d 771, 776 (Pa. 1995) (prosecution s case would not have been affected even if the two prosecution witnesses were totally discredited by withheld evidence concerning potential bias). See also Commonwealth v. Copenhefer, 719 A.2d 242, 259 (Pa. 1998); Commonwealth v. Haskins, 60 A.3d 538 (Pa.Super. 2012). 20

Grounds for Seeking Post Conviction Relief 3.01 There is no violation of Brady where the prosecution fails to turn over to the defense evidence that is readily obtainable by the defense 29 or evidence that is inadmissible. 30 [b] Other constitutional violations In addition to Brady violations, other facially cognizable due process claims 31 include a Batson violation, 32 the prosecution s failure to prove the elements of the crime charged beyond a reasonable doubt, 33 and prejudicial, improper remarks by prosecutors during closing argument. 34 A closing argument violates due process if its unavoidable effect is to prejudice the jury so that a true verdict cannot be rendered because the existence of bias and hostility makes it impossible to weigh the evidence in a neutral manner. 35 While the prosecution can present its case to the jury 29. Commonwealth v. Pursell, 724 A.2d 293, 305 (Pa. 1999); Commonwealth v. Miller, 746 A.2d 592, 600 (Pa. 2000). 30. Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005); Commonwealth v. Dennis, 950 A.2d 945, 968 (Pa. 2008). 31. A constitutional claim is considered waived under the Act if the claim could have been raised at trial, on appeal, or in a prior post conviction proceeding. See chapter 4, section 4.02. A claim of ineffectiveness of counsel at trial or on direct appeal excuses waiver. Consequently, as noted above, claims discussed in this section must be presented to the PCRA court in the context of a claim of ineffective assistance of counsel. See section 3.02[2][a] in this chapter. But see Commonwealth v. Basemore, 744 A.2d 717, 733 (Pa. 2000). 32. Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) (Batson claim within ambit of PCRA); Commonwealth v. Uderra, 862 A.2d 74, 87 (Pa. 2004) (where no contemporaneous Batson objection was raised at trial, a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence in addition to all other requirements essential to overcome the waiver of the underlying claim ). See also Commonwealth v. Collins, 957 A.2d 237, 259 (Pa. 2008); Commonwealth v. Daniels, 963 A.2d 409, 434 (Pa. 2009); Commonwealth v. Cook, 952 A.2d 594, 609 (Pa. 2008) (PCRA relief denied where prosecution offered specific explanations for peremptory challenges and explanations were both credible and race-neutral); Commonwealth v. Jones, 951 A.2d 294, 300 (Pa. 2008) (declining to overrule Commonwealth v. Uderra as in conflict with Holloway v. Horn, 355 F.3d 707, 728 29 (3d Cir. 2004)). 33. Commonwealth v. Hanes, 579 A.2d 920, 924 (Pa.Super. 1990); Commonwealth v. Perlman, 572 A.2d 2 (Pa.Super. 1990) (evidence sufficient to support conviction). 34. Commonwealth v. Lassen, 659 A.2d 999, 1011 (Pa.Super. 1995) (although claim cognizable, defendant not entitled to post conviction relief where prosecutor s remarks did not meet test set forth in Commonwealth v. Green, 581 A.2d 544, 561 (Pa. 1990), and Commonwealth v. Johnson, 533 A.2d 994, 997 (Pa. 1987)). See also Commonwealth v. Christy, 656 A.2d 877, 885 (Pa. 1995) (prosecutor s remarks not outside permissible boundaries of oratorical flair). 35. Commonwealth v. Travaglia, 661 A.2d 352, 365 (Pa. 1995); Commonwealth v. Baker, 614 A.2d 663, 671 (Pa. 1992); Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986). 21

The Post Conviction Relief Act with logical force and vigor, 36 due process is violated if the prosecution indulges in personal assertions of the defendant s guilt either by direct statement or indirectly by figure of speech. 37 The prosecution is given greater leeway in presenting argument during the penalty phase of a capital case because the presumption of innocence is no longer applicable. 38 A claim that the trial court deprived the defendant of due process when it denied him the opportunity to present evidence of a history of mental illness at a competency hearing presented a facially cognizable claim but post conviction relief was denied because any error was harmless and not prejudicial and, in light of other evidence in the case, did not undermine the truth-determining process. 39 A due process violation was not established where the record did not indicate the number of uniformed officers present at trial or any disturbance caused by their presence. 40 The Eighth Amendment prohibits the execution of defendants who are mentally retarded. A defendant seeking post conviction relief may establish by expert testimony mental retardation under the definitions of either the American Psychiatric Association or the American Association of Mental Retardation. 41 The court is not required to hold a hearing unless an adequate proffer has been made concerning mental retardation and the court determines an issue of material fact exists. 42 36. Commonwealth v. Cronin, 346 A.2d 59, 62 (Pa. 1975) (quoting commentary to the ABA Standards Relating to the Prosecution Function (App. Draft 1971)). 37. Id. at 62. 38. Commonwealth v. Travaglia, 661 A.2d at 365 (Pa. 1995). 39. Commonwealth v. Christy, 656 A.2d 877, 884 (Pa. 1995). 40. Commonwealth v. Gibson, 951 A.2d 1110, 1138 (Pa. 2008). 41. Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005) (setting forth proper procedure for resolution of an Atkins claim of mental retardation on collateral review); Commonwealth v. Crawley, 924 A.2d 612, 615 (Pa. 2007) (rejecting broader definition of mental retardation than standard set out in Miller); Commonwealth v. Gibson, 925 A.2d 167, 170 (Pa. 2007) (defendant must establish limited or subaverage intellectual functioning, significant adaptive limitations, and age of onset prior to eighteenth birthday); Commonwealth v. Miller, 951 A.2d 322 (Pa. 2008); Commonwealth v. Williams, 61 A.3d 979 (Pa. 2013) (affirming PCRA court s finding that defendant had satisfied by a preponderance of the evidence the three-prong test set out in Miller); Commonwealth v. DeJesus, 58 A.3d 62 (Pa. 2012) (approving use of factors in Ex Parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), that relate to the adaptive functioning prong of the Miller/Atkins test and finding PCRA court abused its discretion in denying consideration of the Commonwealth s new evidence relating to the intellectual and adaptive function element of Miller/Atkins). 42. Commonwealth v. Porter, 35 A.3d 4, 25 (Pa. 2012). 22

Grounds for Seeking Post Conviction Relief 3.01 A Fifth Amendment claim was found to satisfy section 9543(a)(2)(i) where the defendant, while incarcerated, was compelled under subpoena to give testimony without receiving warnings as to his rights to remain silent and to be represented by counsel. 43 A defendant was denied his Sixth Amendment right to counsel when he was faced with the choice of pleading guilty or going to trial with a lawyer who had not sought suppression of evidence and did not want to go to trial. 44 Where the defendant seeks to waive trial counsel, PCRA relief will be granted where the trial court does not conduct a comprehensive onthe-record waiver colloquy 45 or fails to inform the defendant in the waiver colloquy of the elements of the crime 46 or the permissible range of sentences for the crimes charged. 47 A request to proceed pro se may be denied where the defendant does not make a clear and unequivocal request for self-representation. 48 [3] Claims not implicating truth-determining process A defendant was not denied due process in conjunction with the proportionality review 49 required by 42 Pa.C.S. 9711(h)(3)(iii) (deleted). In Commonwealth v. Banks, 50 the court held that such review is not an adversarial part of the trial or sentencing procedure in death penalty cases and, as such, is not a critical stage of the criminal proceeding in which the rights of confrontation and cross-examination attach. The truth-determining process was not implicated by an allegation that the defendant was denied the opportunity to read and comment on his pre-sentence report, 51 or where sentencing was delayed following the defendant s guilty plea. 52 A general due process claim did not entitle the defendant to relief since there was no showing how the claimed constitutional 43. Commonwealth v. Nelson, 574 A.2d 1107 (Pa.Super. 1990). 44. Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa.Super. 2011). 45. Id.; Commonwealth v. Houtz, 856 A.2d 119, 124 (Pa.Super. 2004). 46. Commonwealth v. Blakeney, 946 A.2d 645, 655 (Pa. 2008); Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa.Super. 2011). 47. Commonwealth v. Owens, 750 A.2d 872 (Pa.Super. 2000). 48. Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005); Commonwealth v. Faulk, 21 A.3d 1196 (Pa.Super. 2011) (holding defendant had failed to clearly state his desire to proceed pro se and noting no right to hybrid representation). 49. Although the legislature deleted the requirement of proportionality review, the Pennsylvania Supreme Court continues to undertake a proportionality review of death sentences in cases where the sentence of death was imposed prior to June 25, 1997. See Commonwealth v. Gribble, 703 A.2d 426 (Pa. 1997). 50. Commonwealth v. Banks, 656 A.2d 467 (Pa. 1995). 51. Commonwealth v. Tanner, 600 A.2d 201, 205 (Pa.Super. 1991), app. denied, 608 A.2d 25 (Pa. 1992). 52. Commonwealth v. Leasa, 759 A.2d 941 (Pa.Super. 2000). 23

The Post Conviction Relief Act violation undermined the truth-determining process, 53 nor was the truthdetermining process implicated by a claim that the PCRA court delayed in deciding a petition for post conviction relief. 54 The Superior Court has held that if a claim does not implicate the truth-determining process, it must be determined whether the claim was cognizable on traditional habeas corpus review. Only where the claim does not implicate the truth determining process and is not of a type that was cognizable on traditional habeas corpus review will it not be cognizable under the PCRA. 55 A defendant was not denied his Sixth Amendment right to counsel when he was represented at trial by an attorney who was on inactive status for failure to pay the annual fee required by Pa.R.D.E. 219, 56 nor was a defendant denied his right to counsel at a critical stage when the jury, outside the presence of counsel, heard a playback of a portion of the trial testimony. 57 53. Commonwealth v. Laskaris, 595 A.2d 1229 (Pa.Super. 1991); see also Commonwealth v. Puksar, 951 A.2d 267, 293 (Pa. 2008) (PCRA does not recognize miscarriage of justice as a distinct, stand-alone constitutional claim). 54. Commonwealth v. Granberry, 644 A.2d 204 (Pa.Super. 1994). 55. Commonwealth v. Ginglardi, 758 A.2d 193, 197 (Pa.Super. 2000) (Rule 1100 claim not cognizable under traditional habeas corpus review). 56. Commonwealth v. Jones, 829 A.2d 345 (Pa.Super. 2003); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.Super. 2003). 57. Commonwealth v. Williams, 959 A.2d 1272 (Pa.Super. 2008) (also rejecting claim that defendant had a right to be present during playback of portion of trial testimony). 24