Commonwealth v. McCall

786 A.2d 191, 567 Pa. 165, 2001 Pa. LEXIS 2679

• Court: Supreme Court of Pennsylvania
• Decided: December 19, 2001
• Docket: 39 WAP 2000
• Status: Published

Opinions

Justice NEWMAN.

We granted appeal in this matter to determine whether former counsel for Ricky Lynn McCall (Appellant) was ineffective for failing to brief and argue on direct appeal Appellant’s subsequent acquittal of a prior crime that was used as evidence of motive and intent during trial of the instant matter, thus entitling him to relief pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541 — 9546.

Facts and Procedural History

In February of 1992, Appellant was residing in Butler County in a home owned by Francis Blystone (Blystone), and Blystone’s child. Her boyfriend, Gary Risinger, also lived in the house. The house was insured for $80,000.00, which was more than the purchase price. Blystone was having serious financial difficulties and the utility company had shut off the natural gas service to the residence. The house was heated by a coal and wood-burning stove.

On February 7, 1992, fire destroyed the Blystone house, three days after a teacher indicated to Blystone that she would report to the county children’s agency that the house was unsuitable for children. The Pennsylvania State Police Fire Marshall’s Office investigated the fire and determined that it was arson. Appellant, Blystone, and Risinger were interviewed as part of the investigation. Each claimed that the fire was accidental. A polygraph examination was scheduled for all three¹ individuals regarding their knowledge of the crime.

Following the fire, they moved into another house in Butler County, where Blystone’s grandmother, Mary Boofer (Boofer), was living. On the night of March 7, 1992, Blystone and Risinger were staying in the upstairs bedroom. Blystone’s cousin, Judith Ealy (Ealy) and her boyfriend, David Pisor were also sleeping on the second floor. Boofer and her boyfriend, James Shever, were in a downstairs bedroom. Appellant was staying in the living room, where it was his job to tend the fireplace, which was the only source of heat in the entire house. At approximately 4:00 a.m., a fire destroyed the home, resulting in the death of Blystone and Ealy. The survivors, who were either naked or partially dressed when they escaped the fire, noticed that Appellant was fully dressed and was wearing his lace-up boots. ítisinger and Shever testified that Appellant usually removed his shirt and shoes when sleeping on the living room couch.

Michelle Goodman, who was Boofer’s granddaughter, lived next door to the house where the fire took place. She awoke at approximately 4:00 a.m. when she heard her dogs barking. She looked outside the window, and saw that the porch of the house next door was on fire. After asking her boyfriend to call 9-1-1 to report the fire, she saw Appellant walk across the yard at a normal pace. He knocked on her door and told her that everyone was out of the house. According to Appellant, he cleaned out the fireplace at 7:80 p.m. the evening of the fire and he placed the ashes in a bucket that he set on the porch to cool. At 2:30 a.m., he transferred the ashes to a paper bag, and placed the bag of ashes on the couch on the porch. He claimed that he saved the ashes because his mother wanted to use them for kitty litter. Appellant went to sleep' at 3:30 a.m. and was awakened by the fire at 4:00 a.m.

The Pennsylvania State Police Fire Marshall, assisted by the Allegheny County Fire Marshall, investigated the scene and determined that the cause of the fire was arson. They discovered evidence of liquid burn patterns on the front porch and unusual damage that could only be caused by use of a liquid accelerant. Areas of the living room tested positive for hydrocarbons, indicating that a petroleum based product had been used to accelerate the fire. According to the Allegheny County Fire Marshall, even if the fire had been started by the ashes on the couch, as Appellant claimed, it would have taken three to four hours of smoldering before the couch burst into flames.

The Commonwealth’s theory of the case was that Appellant started both fires and that he started the second fire in order to kill Blystone who, had she lived, would have implicated him in the first fire if she failed the lie detector test as she said she would.

The Commonwealth charged Appellant for both fires. After the Court of Common Pleas of Butler County (trial court) denied the Commonwealth’s motion to consolidate the two cases, the Commonwealth decided to prosecute the second fire first.

A jury convicted Appellant of two counts of second-degree murder¹ and one count each of arson², recklessly endangering another person³, failure to prevent a catastrophe ⁴ and intimidation of a witness.⁵ The trial court sentenced him to serve two consecutive terms of life imprisonment for the murder convictions, sixty-six to one hundred thirty-two month’s imprisonment for the arson conviction, and eight to sixteen months for the intimidation of witnesses’ conviction. No further penalty was imposed on the remaining convictions.

Following a subsequent trial for the first fire, Appellant was acquitted. He then appealed his conviction for offenses involving the second fire. On direct appeal, he argued that the trial court erred by admitting evidence of a separate arson charge because it allowed the Commonwealth to assert that he was an arsonist without establishing it beyond a reasonable doubt. He also claimed that the trial court improperly admitted evidence of the other arson because he was not convicted of that crime. The Superior Court affirmed the decision of the trial court. Appellant filed a petition for allowance of appeal, which this Court denied.

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. Court-appointed counsel later amended the petition. The PCRA court denied relief, and the Superior Court affirmed the decision.

Discussion

This Court granted allocatur limited to the question of whether counsel on direct appeal rendered ineffective assistance by failing to brief and argue Appellant’s subsequent acquittal of a prior crime used against him as evidence of motive and intent in the trial regarding the second fire.

The Commonwealth argues that because this issue has been finally litigated, it may not be raised in a PCRA petition. Section 9543 of the PCRA provides, in relevant part:

§ 9543. Eligibility for relief.

(a) General rule — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:

(3) That the allegation of error has not been previously litigated or waived.

Section 9544 provides in relevant part:

§ 9544. Previous litigation and waiver

(a) Previous litigation. — For purposes of this subchapter, an issue has been previously litigated if:

(2) 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.

It is well settled that one cannot avoid the restrictions on raising a previously litigated issue by claiming that counsel was ineffective in his or her method of advocating the issue. See Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 358 (1995). In his direct appeal, Appellant challenged the decision of the trial court to allow evidence of his involvement in the first arson as proof of his motive for committing the second arson. In the following passage, the Superior Court addressed Appellant’s argument on direct appeal:

Appellant initially argues the trial court erred in denying his repeated requests that the Commonwealth be directed not to make any reference to a separate arson charge which was then pending against appellant or matters which related thereto.

Appellant contends the separate arson charge pending against him was inadmissible because he had successfully severed the two trials by means of an omnibus pretrial motion. Furthermore, by using the preceding arson charge in the subsequent arson trial, appellant alleges the Commonwealth was able to assert appellant was an arsonist without proving each and every element beyond a reasonable doubt.

The omnibus hearing only served to deny consolidation of the cases, however, the court made no evidentiary ruling nor did appellant, in his motion, ask for a ruling on the evidence. Later, at trial, appellant presented a motion in limine to the trial judge, who properly ruled on the admissibility of the evidence.

This Court will not reverse the trial court’s determination regarding the admissibility of evidence of prior crimes absent an abuse of discretion. Commonwealth v. Camperson, 417 Pa.Super. 280, 612 A.2d 482 (1992). As a general rule, evidence of a separate crime is inadmissible. Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989). However, evidence showing prior criminality may be admitted if it is relevant for some other legitimate reason other than defendant’s propensity for committing crimes or to show bad character. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989). Specifically, evidence of other crimes may be admitted to prove motive, intent, absence of mistake or accident, a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other or to establish the identity of the person charged with the commission of the crime on .trial. Commonwealth v. Newman, 564 [528] Pa. 1308 [393], 598 A.2d 275 (1991).

Here, evidence of the first fire was admissible to establish appellant’s motive for setting the second fire as well as being the basis for the witness intimidation charge. Moreover, the evidence was relevant as both fires were started by use of a liquid accelerant.

Appellant further contends the prior arson charge should not have been admitted because he was not convicted of the crime. However, actual convictions are not necessary for evidence of prior crimes to be held admissible. See Commonwealth v. Marsh, 388 Pa.Super. 610, 622, 566 A.2d 296 (1989). This rule holds true even if the prior charges are dropped. Id. Accordingly, we find the trial court did not abuse its discretion in admitting the evidence of the prior arson charges.

Superior Court Memorandum Opinion, 00803 Pittsburgh 1993, pp. 2-4.

Appellant’s present claim is that counsel was ineffective for not arguing on appeal Appellant’s subsequent acquittal on the first arson charge⁶ as grounds for overturning the trial court’s decision to permit evidence of this arson as proof of Appellant’s motive for the second arson. The ultimate question with respect to Appellant’s present claim and his issue on direct appeal is the same: was the admission of evidence of Appellant’s involvement in the first arson proper? Appellant’s acquittal of the first arson charge after his conviction for the second arson where the trial court allowed the Commonwealth to introduce evidence of his participation in the first arson to prove his motive for committing the second arson does not -per se invalidate the decision of the trial court. Indeed, neither the Double Jeopardy nor the Due Process Clauses of the United States Constitution prohibit the introduction of otherwise admissible evidence of a defendant’s prior crime, even where the defendant has been acquitted of that crime. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).⁷ An acquittal on the first arson charge supports Appellant’s argument that the trial court improperly-ruled that the probative value of this evidence outweighed its prejudicial impact, but it is not dispositive of this point. It is merely one more aspect of the issue already raised by Appellant on direct appeal, i.e., whether the trial court properly admitted the evidence of Appellant’s involvement in the first arson. So long as counsel has raised the issue, we will not allow a PCRA petitioner to circumvent the bar against previously litigated issues by claiming ineffective assistance of counsel in his or her manner of arguing the issue. See, e.g., Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1183 (1999) (“a petitioner may not obtain relief on collateral review merely by alleging ineffective assistance of counsel and presenting claims that were previously litigated under new theories”). That is essentially what Appellant attempts in his present claim.

Moreover, even assuming that the PCRA’s bar against review of previously litigated issues does not apply, Appellant is not entitled to a new trial. At the time of Appellant’s trial on the second arson and murder charges, the charges against him from the first arson were still open. The Commonwealth offered evidence of Appellant’s involvement in the first arson to establish his motive for committing the second arson. It is well settled that evidence of a defendant’s prior criminal activity may be introduced to establish his or her motive for the crime for which he or she presently stands accused. See Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995). The focus of the trial court in ruling on the admissibility of evidence of Appellant’s involvement in the first arson is whether the probative value of that evidence outweighs its prejudicial impact. See Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). As demonstrated by Dowling, supra, Appellant’s subsequent acquittal of the first arson does not automatically require reversal of the determination by the trial court that the probative value of this evidence outweighed its potential prejudice. The ruling of the trial court was correct when made, and the Appellant’s subsequent acquittal of the first arson charges does not change the propriety of that ruling.

Conclusion

For these reasons, we affirm the Order of the Superior Court denying PCRA relief to Appellant.

Justice SAYLOR files a concurring opinion. Chief Justice FLAHERTY, and Justice NIGRO file dissenting opinions.

1 . 18 Pa.C.S § 2502(b).

2 . 18 Pa.C.S. § 3301(a)(1).

3 . 18 Pa.C.S. § 2705.

4 . 18 Pa.C.S. § 3303(2).

5 . 18 Pa.C.S. § 4952(a)(1).

6 . Appellant points to the issues framed by his appellate counsel in the Superior Court brief as proof that counsel failed to raise the issue of his subsequent acquittal of the first arson. The following testimony from Appellant’s direct appeal counsel demonstrates that counsel brought Appellant’s acquittal of the first arson to the Superior Court’s attention:

Q: Let me just ask you in your brief as to that issue, you state that the issue is did the trial court err in denying the Defendant’s repeated requests both prior to and during trial on the — with the — within charges that [sic] Commonwealth be directed not to make any reference to either a separate arson charge which was then pending against the Defendant or matters related thereto. That's the statement of the issues, correct?

A: Right.

Q: There is nothing within the statement of that issue that relates to the subsequent acquittal, is that right?,

A: That's true. It's in the body of the argument.

Q: Let me just show you a copy of your brief. Here's your argument relative to that issue. And could you just — could you just tell us where in this you specifically speak to the issue of the acquittal?

A: In the last paragraph, the last sentence, last couple sentences of the — .

Q: And that's on page 12 of your brief, right?

A: Yes.

Q: And in essence you just make the statement that in fact the Defendant was later acquitted of the first arson charge. So there is no question that the prejudice was real?

A: Uh-huh.

Notes of Testimony, PCRA hearing, 6/26/98, pp. 26-28.

We should assume that the Superidr Court read Appellant's brief and was therefore aware of his acquittal of the first arson when it considered the propriety of the trial court's evidentiary ruling on direct appeal. Consequently, as discussed further infra, the issue underlying Appellant's present claim of ineffective assistance of counsel has been previously litigated.

7 . In Dowling, the government introduced evidence of Dowling's involvement in an attempted robbery, of which Dowling had previously been acquitted, as proof of identity in the bank robbery for which he was on trial and to establish a connection between Dowling and a co-conspirator in the bank robbery. Dowling, 493 U.S. at 345, 110 S.Ct. 668. Dowling argued that due to his acquittal of the attempted robbery, collateral estoppel and double jeopardy principles should prohibit the government from introducing any evidence of Dowling’s involvement in the attempted robber as evidence of identity in the bank robbery trial. The Court rejected this argument: “we decline to extend ... .the collateral estoppel component of the Double Jeopardy Clause to exclude in all circumstances ... .relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” Id. at 348, 110 S.Ct. 668.

Appellant’s situation merits less concern than the position rejected by the Court in Dowling. At the time of Appellant's trial on the second arson and murder charges, the case against Appellant for the first arson was still pending. The trial court in Appellant’s case, therefore, was not faced with evidence of Appellant’s involvement in prior criminal activity for which he had already been acquitted, as happened in Dowling.