Commonwealth v. Thomas

44 A.3d 12, 615 Pa. 477, 2012 WL 1434877, 2012 Pa. LEXIS 983
CourtSupreme Court of Pennsylvania
DecidedApril 26, 2012
Docket572 CAP
StatusPublished
Cited by34 cases

This text of 44 A.3d 12 (Commonwealth v. Thomas) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Thomas, 44 A.3d 12, 615 Pa. 477, 2012 WL 1434877, 2012 Pa. LEXIS 983 (Pa. 2012).

Opinions

OPINION

Justice EAKIN.

Leroy Thomas appeals from the order denying him relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

A jury convicted appellant of first degree murder and related offenses for the shooting death of Kenneth Rankine.1 At the penalty phase, the jury found one aggravating circumstance: appellant had been convicted of a previous murder. 42 Pa.C.S. § 9711(d)(ll). The jury found no mitigating circumstances2 and sentenced him to death. See 42 Pa.C.S. § 9711(c)(iv).

Appellant received new counsel and filed a direct appeal, claiming ineffective assistance of trial counsel and insufficient evidence to support his first degree murder conviction. This Court affirmed, finding appellant failed to establish ineffectiveness of counsel, and the Commonwealth presented suffi[484]*484cient evidence to establish beyond a reasonable doubt that appellant conspired with two unidentified men to kill the victim. Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456, 460-61, 470-71 (1998), cert. denied, Wayne v. Pennsylvania, 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 (1999).

Appellant filed a timely pro se PCRA petition, and later was appointed new counsel, who filed an amended petition. Prior to filing the petition, appellant’s witness, Steve McCarter, suffered a stroke which affected his ability to recall events surrounding the night of the murder. The PCRA court summarily dismissed the petition without an evidentiary hearing. On appeal, this Court vacated the PCRA court’s order and remanded the case for an evidentiary hearing. Commonwealth v. Thomas, 578 Pa. 455, 854 A.2d 411 (2004).

Prior to the hearing, trial counsel died March 6, 2006. The evidentiary hearing was held, and relief was denied.3 Appellant moved to recuse the PCRA court judge because a newspaper reported the judge considered running for District Attorney of Philadelphia and sought the incumbent District Attorney’s approval. After vacating its order and holding a hearing, the PCRA court denied appellant’s motion and reinstated its order denying PCRA relief. This appeal followed, in which appellant’s issues may be summarized as follows: (1) whether the PCRA court violated appellant’s due process rights by dismissing his original PCRA petition without an evidentiary hearing; (2) whether the PCRA court properly denied appellant’s layered ineffective assistance of counsel claim4 regarding trial counsel’s failure to investigate, develop, [485]*485and present evidence of appellant’s alibi witness, Hans Schneider; (3) whether the PCRA court properly denied appellant’s layered ineffective assistance of counsel claim regarding trial counsel relieving the prosecution of its burden to prove appellant had the specific intent to kill; (4) whether the PCRA court properly denied appellant’s layered ineffective assistance of counsel claim regarding trial counsel allowing the trial court to improperly admit preliminary hearing testimony of Commonwealth witness, Neville Bobby Hill; (5) whether the PCRA court properly denied appellant’s layered ineffective assistance of counsel claim regarding trial counsel’s failure to seek the pre-trial detention of Commonwealth witness, Neville Bobby Hill; (6) whether the PCRA court properly denied appellant’s layered ineffective assistance of counsel claim regarding trial counsel’s failure to investigate, develop, and present the eyewitness testimony of Deborah Brown and Steve McCarter; (7) whether the PCRA court properly denied appellant’s motion for reconsideration and recusal; and (8) whether the cumulative effect of these alleged errors entitles appellant to relief.

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination is supported by the evidence and free of legal error. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008). To be entitled to PCRA relief, appellant must prove by a preponderance of the evidence his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and failing to litigate the issue was not “the result of any rational!,] strategic or tactical decision by counsel.” Steele, at [486]*486796 (quoting Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 593 (2007)). An issue is previously litigated if “the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue.” Id. (quoting Washington, at 593-94 (citing 42 Pa.C.S. § 9544(a)(2))). A claim 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 post-conviction proceeding.” Id. (citing 42 Pa.C.S. § 9544(b)).

To preserve a layered ineffective assistance of counsel claim, appellant must

plead and prove that: (1) trial counsel was ineffective for a certain action or failure to act; and (2) direct appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness. As to each relevant layer of representation, appellant must meet all three prongs of the [Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) ] test for ineffectiveness. A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel.

Commonwealth v. Ly, 602 Pa. 268, 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244-45 (2008) (citations omitted)).

The “Pierce test”5 requires appellant to prove, with respect to appellate counsel: (1) the underlying claim of trial counsel’s ineffectiveness has arguable merit; (2) appellate counsel had no reasonable basis for failing to pursue the claim; and (3) but for appellate counsel’s ineffectiveness, a reasonable probability exists that the outcome of the appeal would have been different. See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022-23 (2003).

Previously Litigated Ineffectiveness Assistance of Counsel Claims

On direct appeal, appellant raised three claims of ineffective assistance of trial counsel. He alleged trial counsel [487]*487was ineffective for: failing to investigate, develop, and present evidence of appellant’s alibi witness, Hans Schneider; relieving the prosecution of its burden of proving appellant had the specific intent to kill; and allowing the trial court to improperly admit preliminary hearing testimony of Commonwealth witness Neville Bobby Hill. Wayne, at 462, 465, 470.

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Cite This Page — Counsel Stack

Bluebook (online)
44 A.3d 12, 615 Pa. 477, 2012 WL 1434877, 2012 Pa. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-thomas-pa-2012.