Commonwealth v. McCandless

778 A.2d 713, 2001 Pa. Super. 168, 2001 Pa. Super. LEXIS 650

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2001
• Status: Published

Opinions

BECK, J.

¶ 1 Pursuant to a retrial, the Commonwealth appeals the trial court’s pre-trial decision to exclude the preliminary hearing testimony of an unavailable Commonwealth witness. The new trial was awarded to appellee/defendant by the Third Circuit Court of Appeals upon ap-pellee/defendant’s petition to the federal court for habeas corpus relief. We conclude that the trial court erred in denying admission of the unavailable witness’s testimony. Thus, we vacate and remand.

¶ 2 Thomas McCandless was found guilty of first-degree murder in 1982. The evidence against him included the preliminary hearing testimony of John Barth, whom the trial court deemed unavailable at time of trial. On direct appeal from his judgment of sentence, McCandless claimed that the trial court erred in admitting Barth’s preliminary hearing testimony. The basis for the claim was twofold. First, McCandless claimed that the Commonwealth did not establish, as was required, that Barth was unavailable (claim # 1). Second, McCandless claimed that even if unavailability was established, he was not given an adequate opportunity to cross-examine Barth at the preliminary hearing, thus precluding admission of the testimony (claim # 2). Both errors, alleged McCandless, constituted a violation of his rights under the Sixth Amendment to the United States Constitution, specifically, the Confrontation Clause.

¶ 3 McCandless relied on the well-established rule that in order for an absent witness’s preliminary hearing testimony to be admissible at trial, 1) the witness must be unavailable despite the Commonwealth’s good faith effort to procure him for trial and 2) the defendant must have had a full and fair opportunity to cross-examine the witness at the preliminary hearing. See Commonwealth v. Bazemore, 581 Pa. 582, 614 A.2d 684, 685 (1992) (relying on Commonwealth v. Mangini, 493 Pa. 203, 425 A.2d 734 (1981)).

¶4 This court rejected McCandless’s claim and adopted the trial court’s assessment of the issue. In its opinion, the trial court found that the Commonwealth made a good faith effort to make Barth available for trial and, further, that McCandless had a full and fair opportunity to cross-examine Barth at the preliminary hearing. In making the latter finding, the court explicitly considered McCandless’s claim that he was “prevented from asking [Barth] questions about any agreements or deals he had made with the Commonwealth, any prior statements he had given to the authorities, and any prior convictions for crimes involving dishonesty.” Trial Court Opinion, 5/17/85, at 28. The trial court found, upon review of the record, that Barth’s statement, deal and criminal history were adequately explored on cross-examination.

¶5 Finding no success in this court, McCandless thereafter sought allocatur, but our supreme court denied his request. In September of 1992, Barth committed suicide while in a Philadelphia jail cell. In 1996, McCandless filed a habeas corpus petition in federal district court. Again he challenged the admission of Barth’s preliminary hearing testimony, once more asserting claims # 1 and # 2. The district court denied relief, but on appeal, the Third Circuit Court of Appeals ruled that McCandless was entitled to a new trial because it found merit in claim # 1, that Barth was not legally unavailable. McCandless v. Vaughn, 172 F.3d 255, 259 (3d Cir.1999). The federal appeals court held that the Commonwealth did not make a good faith effort to procure Barth’s presence at trial, thus the state court finding that Barth was unavailable was flawed. Id. Despite the fact that claim #2, the issue of “full and fair opportunity,” was also before the federal appeals panel, it declined to address it. Its rationale for doing so was based on procedural rules and reflected the limited nature of federal habeas relief.

¶ 6 McCandless, as a prisoner in state custody, was required to establish that he had exhausted his remedies at the state level in order to be entitled to review in the federal court system. 28 U.S.C. § 2254(b). A federal habeas petitioner satisfies the exhaustion requirement when he “fairly presents” his claim to the state’s highest court or, failing such a fair presentation, he “establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his ... default.” Id. at 259 (citations omitted).

¶ 7 The Third Circuit Court of Appeals held that McCandless clearly exhausted his state remedies with respect to claim # 1. Thus, he was entitled to federal ha-beas review of that claim and the federal appellate court, in fact, granted him relief on that basis. However, the federal court found that the exhaustion requirement was not established with respect to claim # 2. In analyzing the issue, it ultimately determined that resolution of claim #2 was unnecessary in any event:

Because we find a Confrontation Clause violation based upon the prosecution’s failure to establish Barth’s unavailability, we find it unnecessary to address McCandless’s additional claim that admission of Barth’s testimony violated the Confrontation Clause because he did not have an adequate opportunity to cross-examine Barth at the preliminary hearing. In his brief, McCandless conceded that he did not present this claim to the Pennsylvania Supreme Court and that it is procedurally defaulted. He attempted, however, to excuse this default on the ground that his counsel had been ineffective in failing to raise this claim in his allocatur petition to the Pennsylvania Supreme Court. Because the same counsel had included this argument in McCandless’s Superior Court brief, the District Court concluded that the failure to reassert it was a strategic decision and not ineffective assistance of counsel. In rebuttal at oral argument, McCandless alternatively argued that he had indeed “fairly presented” this claim because he had included it in his only state appeal as a matter of right to the Superior Court. McCandless requested this Court to consider whether “exhaustion” requires an applicant to present claims in state discretionary appeals. We are not free to do so. This Court’s precedents indicate that habeas petitioners must present their federal claims to the state’s highest court.

Id. at 264 n. 6.¹

¶ 8 Apparently, the federal appellate court declined to address claim # 2 based on some combination of procedural default and irrelevance, but its ruling was nonetheless clear: it “address[ed] only the issue of whether Barth was constitutionally unavailable.” Id. at 264 (emphasis supplied).

¶ 9 The fact that the federal appeals court declined to address claim # 2 is particularly puzzling in light of the fact that Barth had been dead for some four years prior to the filing of the habeas petition and for nearly seven years on the date the court issued its opinion. Of course, we have no way of knowing whether the federal court was aware of Barth’s death. In any event, the federal habeas relief granted to McCandless was a new trial and, ultimately, he appeared before the Philadelphia Court of Common Pleas for that purpose. The Commonwealth again sought to use Barth’s preliminary hearing testimony and McCandless once more sought to preclude it.

¶ 10 Naturally, Barth’s unavailability was not at issue as his death made him undeniably unavailable. Rather, McCandless’s motion in limine focused on claim #2, the full and fair opportunity issue. He asked the trial court to deny admission of Barth’s testimony on that basis. The trial court held a hearing on the motion and ultimately ruled that McCandless had not been given a full and fair opportunity to cross-examine Barth. The trial court found that preclusion was warranted because at the time of Barth’s cross-examination, McCandless did not have access to Barth’s statement to police nor did he have copies of Barth’s criminal history or the agreement Barth struck with the Commonwealth in exchange for his testimony.

¶ 11 The Commonwealth appealed from the order granting the motion in limine and the issue is now before us.

¶ 12 The Commonwealth argues that the trial court was without authority to consider claim # 2 as it had already been decided against McCandless by the first trial court and thereafter affirmed by this court on direct appeal. The Commonwealth’s position is based on the doctrine of the law of the case. We agree that the doctrine applies here.

¶ 13 “The [law of the case] doctrine refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in earlier phases of the matter.” Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995). Recently, in Hutchison v. Luddy, 763 A.2d 826 (Pa.Super.2000), we observed that:

This tenet of the law of the case doctrine has long been expressed with regard to remand situations .... [as] our Supreme Court stated:

A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal ... Under any other rule, litigation would never cease, and finality and respect for orderly process of law would be overcome by chaos and contempt.

Id. at 835 (citations omitted).

1114 In this case, the trial court reopened a question (claim # 2) that was already decided by another judge of the same court and affirmed by a higher court. The issue of full and fair opportunity was raised in the court of common pleas, reviewed by that court and decided against McCandless. Thereafter, this court expressly adopted the findings of the common pleas court on that precise issue and affirmed its decision. Although the Third Circuit later held that an error occurred in the state court proceedings and remanded the matter for a new trial, the federal appeals court explicitly declined to address the full and fair opportunity issue. As a result, the resolution of that issue was left undisturbed by the federal court and, upon remand, the trial court was without authority to revisit it. Hutchison, supra. The law of the case demands that this court’s prior ruling be sustained by the trial court on remand. Id.

If 15 The dissent would find that the grant of habeas relief somehow serves to reopen the state case with respect to other issues. The dissent states that once habe-as relief is ordered, “the status quo ante no longer obtains — the state courts had already denied relief on the grounds relied upon by the federal court.” Dissenting Opinion at 724.

¶ 16 The dissent’s position necessarily requires it to abandon the long-standing rule of the “law of the case.” But its rationale in doing so is not grounded in case law, statute or rule. Rather, the dissent simply determines, without citation, that a grant of habeas relief so profoundly affects the law of the case, “it does not govern.” Id. at 725. In reaching this conclusion, the dissent interprets the federal circuit court’s decision as “indirectly” and “implicitly” requiring such a result. See id. at 724 (“thus, by indirection, the full and fair cross examination issue is decided ... implicit in the remand order is the suggestion that ... conviction is not possible absent some new or different evidence against Appellee, or other remedial measure”) (emphasis supplied). We do not agree.

¶ 17 The dissent states that the first trial court’s resolution of claim # 2 cannot stand because it would “repeat a performance already determined to have been faulty.” Id. However, the federal appellate court expressly declined to decide whether the state court’s treatment of claim #2 was faulty. Instead, it found that claim # 2 was not properly before it and further, an assessment of the state court’s resolution of claim # 2 was unnecessary in light of the grant of relief on other grounds.

¶ 18 In essence, the dissent here concludes that where a federal court grants habeas relief on a discrete issue, the prior decisions of the state trial and appellate courts are rendered unreliable. Logically-extended, the dissent’s rationale would permit McCandless to relitigate other issues the federal court expressly declined to address, such as the admission of alleged hearsay and testimony regarding the “corroboration” condition of Barth’s agreement with the prosecution. Those issues, like claim # 2, were not addressed by the federal court.

¶ 19 The state trial court is no more authorized to reconsider claim # 2 than it would be to reconsider any other issue the federal court left untouched. A grant of habeas relief simply cannot invalidate every holding of the state court in a given case.

¶ 20 The Writ of Habeas Corpus is a distinct creature of federal constitutional law. It “permits petitioners to contest the validity of their detention in independent, civil proceedings in the federal forum” by “offer[ing] a vehicle for the federal relitigation of federal questions” despite the existence of a final judgment in state court. Larry W. Yaekle, Explaining Habeas Corpus, 60 N.Y.U.L.Rev. 991, 992-93 (1985). But the federal court’s power to engage in habeas corpus review is strictly limited in a myriad of ways primarily because “[rjeexamination of state convictions on federal habeas ‘frustrate^] ... “both the states” sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Interests of comity and finality are so significant in the context of federal habeas review that relief is summarily denied if the petitioner fails to comply with state procedural rules. Teague v. Lane, 489 U.S. 288, 308, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Countless commentators have written about the United States Supreme Court’s narrow interpretation of federal habeas law as well as Congress’s ever-broadening restrictions on its use and scope. See e.g., Louis M. Natali, New Bars in Pennsylvania Capital Post Conviction Law and their Implications for Federal Habeas Corpus Review, 73 Temple L.Rev. 69 (2000); Brian M. Hoffstadt, How Congress Might Design a Leaner, Meaner Writ of Habeas Corpus, 49 Duke L.J. 947 (2000); Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn.L.Rev. 147 (2000); Anne M. Voigts, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform and Claims of Ineffectiveness of Counsel, 99 Columbia L.Rev. 1103 (1999). Federal courts indeed approach state habeas cases in an extremely deferential manner.- See Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); O’Sullivan, supra; Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Teague, supra.

¶21 Because of the narrow limits imposed on federal habeas law by both the legislature and the courts, we find that a grant of federal habeas relief does not annul the doctrine of the law of the case. Instead, the law of the case survives the grant of habeas relief on any issue not addressed by the federal court.

¶ 22 As the dissent observes, however, even where the law of the case appears to apply, it may be avoided if exceptional circumstances exist. These circumstances include an intervening change in the facts, evidence or controlling law or the existence of a prior holding that is so clearly erroneous as to create a manifest injustice if followed. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1332 (1995). The dissent concludes that “recent case law ... representes] changes in controlling authority” and “illuminate[s] the injustice” that would be created if the law of the case were followed here, and relies on Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000) and Commonwealth v. Johnson, 758 A.2d 166 (Pa.Super.2000) for support.

¶23 In Johnson, a panel of this court considered the preliminary hearing testimony of a prosecution witness in order to determine whether it should be admitted at trial. Using the well-established standard of “full and fair opportunity,” the panel determined that admission at trial was barred because the appellant had been denied access to prior inconsistent statements by the witness that contained “vital impeachment evidence.” The court noted the distinction between statements with only “minor discrepancies” and those with inconsistencies that are “vital” to the accused’s case. Johnson, supra, at 170-71.

¶ 24 Johnson does not represent a change in controlling law. Rather, it reaffirms the rule that any time an accused can establish that he was denied a full and fair opportunity to cross-examine a witness at his preliminary hearing, the preliminary hearing testimony is inadmissible at trial, despite the unavailability of the witness. The standard set out in Johnson was applied in this case, first by the trial court and thereafter by a panel of this court. The conclusion of both courts was that McCandless indeed was afforded a full and fair opportunity to cross-examine Barth.

¶25 The holding in Johnson does not tend to prove that the prior ruling in this case was “clearly erroneous,” and would result in a “manifest injustice” if upheld. In its opinion that overturned the ruling of the first trial court, the instant trial court did not rely on any inconsistencies in Barth’s statement to support its conclusion that Barth’s testimony should be excluded. The court offered no analysis of the statement’s substance and relied solely on the fact that McCandless did not have an opportunity to cross-examine Barth on the statement. Although the court granted McCandless’s motion in limine, it did not explain why it found that McCandless’s lack of access to the statement was detrimental to him. Neither the trial court nor McCandless offer a basis for finding that “vital impeachment evidence,” such as the type proffered in Johnson, was withheld in this case.

¶ 26 Although the type of evidence that was present in Johnson does not exist in the record before us, what is present is the clear holding of the first trial court that the requirement of “full and fair opportunity” was satisfied. Also part of the record is this court’s affirmance of that holding.² In light of the above, we cannot find that “the prior holding was clearly erroneous such as to create a manifest injustice if followed.”

¶27 Nor are we persuaded that the Strong case commands a different result. In Strong, the Commonwealth failed to disclose and, in fact, denied the existence of, an agreement with its witness. Rather, the prosecution “assured [the] appellant that no deal had been made in exchange for [the witness’s] ... testimony” and the witness himself testified that he was not testifying “in exchange for favorable treatment by the Commonwealth.” Strong, supra, at 460, 761 A.2d at 1170. Over a decade later, the appellant learned that a deal in fact had been struck, although it had not been reduced to writing. Our supreme court, relying on the long established rule set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held that the appellant was entitled to know about the deal and the Commonwealth’s failure to reveal its communications with the witness constituted a due process violation.

¶ 28 Like Johnson, Strong does not represent a change in controlling law, only a reaffirmation of existing law. Nor does its holding prompt us to conclude that the prior holding in this case was clearly erroneous. In her opinion, the instant trial judge merely relied on McCandless’s lack of “a copy of the agreement” between Barth and the Commonwealth. She did not refer to the manner in which McCandless would have been aided by a copy of same and, more importantly, she did not address the fact that the deal between Barth and the Commonwealth was explored at the preliminary hearing. The record reveals that Barth admittéd he implicated McCandless and another man only after Barth himself was arrested for the murder and bound over for trial. Further, Barth conceded that he had not been brought to trial because he had an agreement with the district attorney. He described the agreement as follows:

Q: What do you understand the agreement to be regarding the homicide charges against you and your testimony today?

A: That the charges of murder be dropped against me.

Q: Is it your understanding that all you have to do is testify against Mr. Hartey and Mr. McCandless, and then the charges against you will be dropped? A: Yes.

Transcript, Preliminary Hearing, 4/1/82, at 34-35.

¶29 Barth’s candid explanation of his agreement with the Commonwealth makes this case far different from Strong. Here, McCandless’s attorney was successful in eliciting the very type of evidence he was entitled to elicit, i.e., Barth’s self-serving motive for testifying against McCandless. In light of Barth’s admissions, we do not see how McCandless was prejudiced by the fact that his attorney did not have a copy of that agreement.

¶30 The first trial court in this case explicitly found that Barth’s testimony at the preliminary hearing, wherein he revealed his agreement with the Commonwealth, satisfied the requirement of “full and fair opportunity.” This court thereafter affirmed that precise holding, based on its review and assessment of the record.

¶ 31 On the record before us, which includes the findings of fact and conclusions of law of the first trial court and the Memorandum Opinion of this court, we find a departure from the doctrine of the law of the case is inappropriate.³

¶ 32 We offer no opinion about whether the reasoning and analysis of the first trial court was superior or inferior to that of the second. We merely state that the second court was without authority to analyze the issue anew. We also offer no opinion on whether the federal appellate court would have found error in the state court’s resolution of the full and fair opportunity issue, had it determined that review thereof was appropriate. We merely observe that in declining to do so, the federal court’s decision had no impact on the ruling as it stands in the state court.

¶ 33 In summary, we find that the preliminary hearing testimony of Barth is admissible at trial. The two prongs for testing admissibility are present. First, there is no question that Barth, having died, is unavailable. Second, the conclusion that McCandless had a full and fair opportunity to cross-examine Barth at the preliminary hearing is the law of the case, undisturbed by the federal court’s grant of habeas corpus relief.

¶ 34 A federal grant of habeas relief is restricted to the issue upon which it is based. On all other issues, the law of the case applies and, barring any reason to depart from it, controls. Thus, the trial court was precluded, based on the doctrine of the law of the case, from revisiting the issue of “full and fair opportunity.” The order granting the motion in limine must be vacated and the matter remanded for the new trial awarded McCandless by the federal habeas court.

¶ 35 Order vacated; matter remanded for further proceedings. Jurisdiction relinquished.

¶ 36 MONTEMURO, J. files a Dissenting Opinion.

1 . After the Third Circuit granted relief to McCandless, the United States Supreme Court confirmed this requirement in O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). However, the O’Sullivan rule recently was interpreted as inapplicable where a state's highest court explicitly declares that exhaustion does not require a petitioner to present to the state high court a claim already decided against the petitioner by the intermediate appellate court. See Mattis v. Vaughn, 128 F.Supp.2d 249, (E.D.Pa.2001). Our supreme court made such a declaration last year. See In re: Exhaustion of State Remedies in Criminal and Post Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (per curiam) (May 9, 2000) (following adverse order from Superior Court, petition for allowance of appeal no longer required to exhaust state court remedies for purposes of federal habeas proceedings). The Mattis court, however, ruled that Pennsylvania Supreme Court Order 218 was not retroactive. Mattis, supra.

2 . We observe that this court, in its Memorandum affirming the decision of the trial court, made frequent citation to the transcripts of the proceedings below and the trial court opinion, indicating that the first trial court, as well as this court, reviewed and considered Barth’s direct and cross-examination at the preliminary hearing.

3 . In addition, we would not find that the Commonwealth’s conduct subsequent to the federal remand serves as a basis for the trial court to “revisit the admissibility of Barth’s testimony.” Dissenting Opinion at 8. The Commonwealth’s request for an extension of time in which to try McCandless was made in light of the trial court’s indication that it would consider the full and fair opportunity issue on its merits. McCandless has never alleged, nor does the dissent find, that the Commonwealth is precluded from retrying McCandless because this appeal has not been decided within the time frame set by the federal court. The issue, therefore, is irrelevant to the question before us, i.e., the application of the law of the case after remand from a federal grant of habeas relief.