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HomeMy WebLinkAbout96-1183 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANTYANE ROBINSON 96-1183 CRIMINAL TERM IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., April 22, 2002:-- HISTORY On March 14, 1997, Antyane Robinson, while represented by court-appointed ceunsel,1 was convicted by a jury of murder in the first degree of Rashawn Bass,2 attempted criminal homicide of Tara Hedge,3 aggravated assault of Tara Hedge,4 committing a crime with a firearm,~ and concealing a firearm on his person without a 1 Counsel, one lawyer for the trial and another for the possible penalty phase, was appointed to represent defendant. On February 20, 1997, the court granted defendant's request to represent himself. His counsel, were then appointed as stand- by counsel. At trial, defendant made an opening address to the jury. During the examination of the second Commonwealth witness he requested that his stand-by counsel take over his trial. His counsel were ready to proceed. Defendant's request was granted. 2 18 Pa.C.S. § 2501, 2502. 3 18 Pa.C.S. § 901, 2501, 2502. 4 18 Pa.C.S. § 2702(a)(1). ~ 18 Pa.C.S. § 6103. 96-1183 CRIMINAL TERM license.6 The jury sentenced defendant to death for the murder of Rashawn Bass. On April 1, 1997, defendant was sentenced by the court to (1) death on the count of first degree murder; (2) not less than 6 years, 9 months or more than 20 years in a state correctional institution to run consecutive to the death sentence on the count of aggravated assault; and (3) the costs of prosecution on the counts of attempted criminal homicide, committing a crime with a firearm and carrying a firearm without being licensed. Defendant, through trial counsel, filed a direct appeal from the judgment of sentence to the Supreme Court of Pennsylvania.7 The judgment was affirmed on November 24, 1998.8 On February 7, 2000, the Governor of Pennsylvania signed a warrant of execution. On March 10, 2000, we entered an order staying the execution pending the finding of a petition for post-conviction relief. On October 16, 2000, defendant, with new appointed counsel, filed a petition seeking relief under the Post-Conviction Relief Act. 42 Pa.C.S. Section 9541 et seq. The petition was later supplemented with three amendments. Hearings were conducted on October 10, 18, November 29, and December 14, 2001. The issues were briefed and argued on March 8, 2002. 6 18 Pa.C.S. § 6106. 7 On April 2, 1997, collateral counsel was appointed for defendant pursuant to the Capital Unitary Review Act. 42 Pa.C.S. § 9570 et seq. Following an order by the Supreme Court of Pennsylvania on August 11, 1997, that permanently suspended most sections of that Act, the order appointing collateral counsel was vacated. 8 Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998). -2- 96-1183 CRIMINAL TERM THE EVIDENCE AT TRIAL Tara Hodge, of Carlisle, Cumberland County, Pennsylvania, while visiting in Maryland in 1993, met defendant through a friend. Although they never lived together, defendant and Tara developed an intimate relationship. Defendant lived in his parents' home in Fort Washington, Maryland. Generally, defendant treated Tara well. There was an incident around December, 1994, when defendant came to Carlisle and saw Tara in a restaurant with a male friend. Even though the friend was not a boyfriend of Tara, defendant confronted him and asked him "who the fuck are you." Defendant then asked Tara to leave with him, which she did. In February, 1995, Tara found out that defendant had another girlfriend, and she stopped seeing him. Tara did not see defendant again until March 30, 1996, when she reestablished an intimate relationship with him. She was with defendant in Carlisle for one night on both March 30 and April 30, four days between May 10 and May 13, and for the night of June 1/2, 1996. Tara was with defendant on approximately twenty occasions counting the entire time she knew him from the beginning of 1993 though June 2, 1996. On June 10, 1996, Tara wrote a letter to defendant: Hi how's life treating you? I would hope well. I'm pretty much the same. I'm not sure if you will like what you are about to read but it's things I must say. After your last visit I was upset for a few days. I've come to realize that you and I will never be. I could never have the type of relationship I want with you. I will not allow myself to feel I must answer to you for everything, someone speaking to me or a facial expression. I've had enough of feeling as if I'm being controled [sic]. I think you don't want me unless everything is your way and that will not be. Sex may have been -3- 96-1183 CRIMINAL TERM great but I need someone I can get along with outside of bed. I must allow myself to let you go. I'm ready to do so now. I must move on you and I have gotten nowhere. I will always care about you. You are special to me. I'll call once in awhile to see how you are. I hope you'll do the same. Tara met Rashawn Bass on May 26, 1996. On the evening of June 29/30, 1996, after Tara had finished working a 2:00 p.m. to 10:00 p.m. shift at a Wal-Mart, she and Rashawn were in her apartment in Carlisle. They had a pizza delivered. After eating the pizza, Rashawn took a shower. Shortly after midnight, defendant came to Tara's kitchen door. After she had written him the letter on June 10 breaking off their relationship, defendant paged her once, and she called and talked to him on the phone. Defendant was alone, and Tara let him into her apartment. They argued, and defendant wanted to know who was in the shower. Tara said that it was a friend. Defendant said they must have just had sex. Tara told defendant that was not true. They argued some more, and defendant raised his fist at Tara. She told him to leave. Defendant said "1 guess we will all be staying here then." Tara stood up, and defendant banged on the bathroom door. Defendant said "you mean to tell me I came all this way and you are not going to have him leave." Tara told defendant that if he was going to act like that or hit her, he should leave. Reaching under his sweats, defendant removed a concealed silver and black handgun which he pointed at Tara. She heard three shots. Defendant ran by her, and she fell to the floor and passed out. At approximately 1:00 a.m., Tara regained consciousness. She was laying in a pool of her own blood. She then went into the bathroom and saw that Rashawn was -4- 96-1183 CRIMINAL TERM dead inside the shower stall. No one else was in the apartment. Tara went to get help from a next door neighbor. Because of injuries resulting from a bullet that had creased her skull, she could not speak. She scratched on her neighbor's screen door. The neighbor called the police. A policeman arrived and saw that Tara had a head wound. She was drenched in blood and appeared hysterical. Unable to speak, she wrote a message on an envelope directing the officer to her apartment. An ambulance then took her to the hospital. The officer went into Tara's apartment and found the body of Rashawn Bass in the shower stall. After securing the apartment, the police officer went to the Carlisle Hospital where Tara identified defendant, Antyane Robinson, as the person who had shot her. Tara was then airlifted to the Hershey Medical Center. One bullet had entered the front side of her head and exited in the rear, but it did not perorate her skull. She survived, but as a result of bleeding in her skull and bruises to her brain, she had difficulty speaking, and weakness on her right side. She suffered halting speech and long-term headaches.9 Rashawn Bass was shot seven times. He died almost instantly from the multiple gunshot wounds. He was shot in (1) the ear, (2) the left side of the head, (3) the right upper chest, (4) the right lower chest, (5) the left lower chest, (6) the side of the left arm, and (7) the back of the right hand. Some shots were fired while Rashawn was 9 After having completed significant therapy, when she testified at a post-conviction hearing on October 18, 2001, she no longer had halting speech. -5- 96-1183 CRIMINAL TERM standing, as two empty shell casings were found underneath his slumped body. Some shots were fired after he fell down in the shower stall, as one shell casing was found on his shoulder and the angle of some of the shots was downward. Twelve empty 9 millimeter shell casings were found in the apartment. The bullets from the empty shell casings were all fired from the same 9 millimeter handgun that was manufactured by one of four possible companies, one of which was Lorcin. Some bullet fragments that were recovered inside the apartment were large enough to determine that they were fired from the same 9 millimeter handgun from which the empty shell casings had been fired. In Tara's apartment, the police found a notebook containing defendant's pager number. The police obtained an arrest warrant charging defendant with the criminal homicide of Rashawn Bass, the attempted criminal homicide of Tara Hodge, and related charges. The warrant was forwarded to Prince George's County, Maryland, where defendant lived. The next day, July 1st, Maryland police in Prince George's County paged defendant. Twenty minutes later, defendant called from a shopping center. The police did not answer the call, but went to the center. After seeing defendant in an arcade playing video games, the police arrested him at 4:00 p.m. Defendant told the police that his name was Joseph Smith. He was taken to the office of the homicide unit in Prince George's County. Detective David Fones and Corporal Hayes of the Carlisle Borough Police were notified of the arrest, and they arrived at 5:30 p.m. They identified themselves to defendant as police officers from the -6- 96-1183 CRIMINAL TERM Borough of Carlisle, Pennsylvania, and told him that they were investigating the incident in Carlisle that they wished to discuss with him. Defendant was advised of his Miranda rights, and he signed a written waiver.1° Defendant was asked when he had last been in Carlisle; he said at the end of May or the beginning of June. When asked who he knew in Carlisle, he said Tara Hadge and her family. He was asked what he had been doing on Saturday (June 29), and he said that he had spent that day in Maryland, Washington, D.C., and Virginia through the afternoon of Sunday, June 30. The police asked defendant if he had a handgun. Defendant said that he had owned a 9 millimeter handgun and a 380 handgun. He said that he had sold the 380, and that the 9 millimeter had been stolen by his niece's boyfriend before June. Defendant said that the police had recovered that weapon. At 6:00 p.m., Detective Fanes told defendant that he was charged with criminal homicide in Carlisle. He read a portion of the arrest warrant to him. Defendant asked if "Tara is okay." Detective Fanes said "yes," and that Tara had said that he had shot her. Defendant dropped his head and moved it from side to side. He denied any involvement in or knowledge of the shootings. The police conducted a search of defendant's bedroom in his parents' home in Fort Washington, Maryland. They found documents in a locked safe for a 9 millimeter Larcin handgun. They did not find the weapon. The police also discovered an opened 10 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2 694 (1966). -7- 96-1183 CRIMINAL TERM envelope, postmarked June 10, 1996, containing the letter that Tara Hodge sent to defendant. The police also searched the residence of a woman, whom defendant had been seeing. They found some of defendant's belongings, including 9 millimeter ammunition. THE PCHA CLAIMS Consistent with certain other provisions, the Post-Conviction Relief Act in Section 9543(a)(2) provides for relief when: [t]he conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (Emphasis added.) In his post-conviction petition, as amended, petitioner maintains that his trial/appellate counsel were ineffective. Petitioner avoids the waiver provisions of the PCHA by making an adequate and properly layered claim of ineffective assistant of trial/appellate counsel in this first available opportunity. Commonwealth v. Wallace, 724 A.2d 916 (Pa. 1999). To prevail on a claim of ineffectiveness of counsel under the Post-Conviction Relief Act, petitioner must demonstrate (1 that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudice by counsel's -8- 96-1183 CRIMINAL TERM ineffectiveness, i.e., there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299 (1999). If a reasonable basis exists for a particular course chosen by counsel, the inquiry ends and counsel's performance is deemed constitutionally effective. Commonwealth v. Abdul-$alaam, 786 A.2d 974 (Pa. 2001). Petitioner seeks relief from his convictions, and from the imposition of the death penalty. The provisions in the Post-Conviction Relief Act are applicable to both the trial and penalty-phase of a first degree murder case. Commonwealth v. Chester, 733 A.2d 1242 (1999). In the case sub judice, petitioner's claims for relief are in the following categories. (1) pretrial issues, (2) trial issues, (3) jury charge issues, (4) death penalty issues, and (5) a sentencing issue. We will review the issues seriatim. PRETRIAL ISSUES I. Petitioner alleges that he was denied his constitutional rights in Maryland when he was extradited to Pennsylvania. Maryland is a signature to the Uniform Extradition Act, Code 1957, Art. 41, §§ 2- 201 to 2-228, as is Pennsylvania. 42 Pa.C.S. Section 9121 et seq. Following petitioner's arrest in Maryland on July 1, 1996, he was extradited to Pennsylvania. Petitioner now maintains that he was denied various rights in the Maryland extradition proceeding. Any remedy petitioner may have had if there was a violation of his rights by the court in Maryland, would have been in Maryland. The Uniform Extradition Act -9- 96-1183 CRIMINAL TERM allows a detainee in the arresting state to test the legality of his arrest and transfer to another state. See Commonwealth v. Jacobs, 319 Pa. Super. 531 (1983). Once Pennsylvania received petitioner under a Maryland court order of extradition, petitioner may not challenge the extradition proceedings in this state. This is not a situation where a person was arrested in another state on a warrant issued in Pennsylvania, and returned to Pennsylvania without the benefit of legal process in the state where the arrest was made.11 II. Petitioner alleges that trial counsel was ineffective for not challenging his competency to stand trial, as he was not competent to stand trial. The Mental Health Procedures Act at 50 P.S. Section 7101, provides in Section 7402(a): Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Petitioner was returned from the state of Maryland and incarcerated in the Cumberland County Prison on July 12, 1996. He stopped eating properly on December 11, 1996. His behavior was consistent with a person who thought his food was being 11 Petitioner did challenge in this case, as he was allowed to, the admissibility of statements he made to Carlisle Police Officers who interviewed him in Maryland, and the admissibility of evidence seized in Maryland under a search warrant issued in that state. His omnibus pretrial motion to suppress evidence was denied by an order of -10- 96-1183 CRIMINAL TERM February 14, 1997, which was supported by a comprehensive opinion. -11- 96-1183 CRIMINAL TERM poisoned. A psychiatrist and psychologist at the prison filed a petition for the involuntary commitment of petitioner under Section 304 of the Mental Health Procedures Act.12 Petitioner arrived at the Norristown State Hospital on December 26, 1996. On January 3, 1997, this court entered an order under Section 402 of the Mental Health Procedures Act, directing the Norristown facility to conduct a further evaluation of petitioner to determine whether he was competent to stand trial. 13 On February 7, 1997, Dr. Murray Caplin, M.D., a board certified psychiatrist at Norristown State Hospital, reported a diagnosis of malingering with no indication of mental illness. Dr. Caplin was of the opinion that petitioner was competent to stand trial. Petitioner was discharged from the hospital on February 10, 1997, and returned to the Cumberland County Prison. Defense counsel relied on the findings at the Norristown State Hospital. Petitioner's trial started on March 10, 1997. At the post-conviction hearings, petitioner presented the testimony of Larry Rotenberg, M.D. and Stephen Raqusea, Ph.D. Dr. Rotenberg is a board certified psychiatrist from Reading, Pennsylvania. He was asked by petitioner's current post- conviction counsel to conduct an evaluation of petitioner. He and a psychologist went to SCI Greene in September, 2000, for that purpose. However, petitioner refused to be evaluated. Dr. Rotenberg has reviewed available data involving petitioner, including 12 Section 304, 50 P.S. 7304, is for a person who is severely mentally disabled and in need of treatment. 13 Section 402, 50 P.S. 7402, is to determine competency. -12- 96-1183 CRIMINAL TERM the records of the Norristown commitment in December, 1996. He offered an opinion, that although it is not possible to make a precise diagnosis without evaluation and testing; nevertheless, based on the data he has reviewed, his differential diagnosis of petitioner is that it is most likely that at the time of the killing of Rashawn Bass and the shooting of Tara Hodge on June 30, 1996, he was suffering from (1) paranoid schizophrenia, (2) a delusional disorder (paranoid type), and (3) psychosis (not otherwise specified). Dr. Rotenberg based his differential diagnosis on petitioner's greater genetic disposition to paranoid schizophrenia,~4 and what he considered was petitioner's paranoia in (i) how he relates to people, (ii) his not having eaten a regular diet for a period of time when he was in the Cumberland County Prison in 1996, (iii) his suspiciousness of and his non-cooperation with his attorneys, (iv) his inappropriate opening statement at trial at a time where he was representing himself, (v) his unwillingness to participate in a psychiatrist evaluation during his commitment at the Norristown State Hospital, notwithstanding that he did accept medical treatment, and (vi) his refusal to be evaluated at SCI Greene in September, 2000. Dr. Rotenberg is of the opinion that petitioner had a mental disorder that affected his judgment and distorted his reality and his ability to make appropriate decisions to the extent that he was not competent to stand trial in March, 1997. Dr. Rotenberg testified that while petitioner understood that he was on trial, it is not clear that he understood the ~4 Paranoid schizophrenia occurs in one percent of the population. However, where it has already occurred in a person's family, that rate increases to seven percent. -13- 96-1183 CRIMINAL TERM consequences of his trial, and he did not have the ability to cooperate with his attorneys in his own defense. He testified that the evaluation of petitioner that was done at Norristown State Hospital was "appallingly bad." He criticizes the staff at Norristown for not, in effect, "sitting on petitioner" until he would undergo a psychiatric evaluation. Stephen Raqusea, Ph.D., a board certified clinical psychologist from State College, Pennsylvania, testified that he had been retained by the Cumberland County Public Defender in 1997, to evaluate petitioner. He went to the Cumberland County Prison, with the public defender, to conduct the evaluation. He was with petitioner for only about ten to fifteen minutes. Petitioner was alert, haughty and seemed suspicious. He was respectful, but as soon as he found out who Dr. Raqusea was, he would not talk to him, or be evaluated. The public defender discussed the situation with petitioner, but he would not change his mind. Dr. Raqusea has recently examined the various data on petitioner. The data includes the report of the Norristown Hospital commitment, numerous letters written between Tara Hodge and petitioner, police reports, the trial transcript, and affidavits of family members. Based on the data, Dr. Raqusea offered an opinion that at the time of petitioner's trial in March, 1997, petitioner was not competent to stand trial because he was not capable of cooperating with his attorneys. He was most likely suffering from paranoid schizophrenia at the time of trial and at the time of the offenses. Dr. Raqusea was "appalled" by the Norristown State Hospital report. In his opinion, at best, notwithstanding his current -14- 96-1183 CRIMINAL TERM opinion, the most that should have been said about petitioner at that time was that no opinion could be made as to his competency because he refused to participate in a psychiatric evaluation. The Commonwealth presented the testimony of John O'Brien, M.D., a board certified psychiatrist from Philadelphia, Pennsylvania. Dr. O'Brien has extensive experience in conducting competency evaluations. He is familiar with the Norristown State Hospital, and its staff. He knew Dr. Murray Caplin who is now deceased. Dr. O'Brien reviewed the records of petitioner's commitment at the Norristown State Hospital, as well as other extensive records in this case. He was of the opinion that the determination by Dr. Caplin that petitioner was competent to stand trial was reasonable, and supported by the record. Petitioner started eating normally as soon as he arrived at the Norristown State Hospital. Dr. O'Brien believes that this is indicative that petitioner was not suffering from delusions that his food was tainted, rather his concerns were reality based on his safety at the Cumberland County Prison because friends of Tara Hodge were also incarcerated there when he was there. During the six weeks that petitioner was at the Norristown State Hospital, he would not participate in a psychiatric evaluation. Dr. O'Brien testified that trying to force petitioner to participate in a full-scale psychiatric evaluation was not realistic. Furthermore, when Dr. Raqusea went to the Cumberland County Prison in early 1997 to evaluate petitioner at the request of his trial counsel, petitioner would not cooperate. Even when Dr. Rotenberg and a psychologist retained through post-conviction counsel went to SCI Greene in -15- 96-1183 CRIMINAL TERM September, 2000, almost four years after petitioner was in the Norristown State Hospital, he still would not cooperate in a psychiatric evaluation. Petitioner has never been under the care of a mental health provider. While at the Norristown State Hospital, petitioner made friends with some patients. He participated in exercise programs and games. He cooperated with the routine on his ward. He displayed no bizarre behavior, or peculiar verbalizations. Nor did he display any indicia of psychotic delusions, auditory hallucinations or other psychiatrically treatable behaviors. Thus, he was not prescribed any psychotropic medications. There is no evidence that he has since then ever been prescribed any psychotropic medications. The observations of the staff at the Norristown State Hospital show that petitioner could interact with people when he wanted to. His being less than cooperative with his counsel does not mean that he could not cooperate. Petitioner's jealously of Tara Hodge was not consistent with mental illness. His history is not consistent with paranoid schizophrenia. Although his sister may have suffered from paranoid schizophrenia, family history is not significant if there are no symptoms of mental Ilness. Only if there are symptoms, then family history can help define the situation. Dr. O'Brien was of the opinion that there is no basis for arriving at a diagnosis that petitioner suffers from paranoid schizophrenia. Furthermore, some paranoid schizophrenics can be competent to stand trial in that they can understand the charges against them and cooperate with counsel. In Commonwealth v. Bracey, 787 A.2d 344 (Pa. 2001), the appellant was -16- 96-1183 CRIMINAL TERM convicted of murder in the first degree and sentenced to death. The judgment of sentence was affirmed by the Supreme Court of Pennsylvania. In a post-conviction proceeding, the appellant alleged that his trial counsel was ineffective for failing to adequately investigate and present evidence that he was organically brain damaged or mentally ill. In support of that claim, the appellant presented the testimony of two physicians who examined him five and six years after the killing, and essentially concluded that he had suffered from long-standing organic brain damage. The appellant's claim, however, was negated by a mental health evaluation conducted by a board certified psychiatrist less than one year after the killing, and before the trial. Trial counsel had two physicians evaluate the appellant to determine whether there was any psychiatric defenses available to him, and whether there was any mental health mitigation evidence that could be presented to a jury in a penalty phase. The physicians examined the appellant and informed trial counsel that they did not see any mitigating mental health evidence to be presented at trial. One of the physicians, testified at the post-conviction hearing that the appellant had been responsive and articulate during his evaluation and had not behaved in a manner that suggested that he had any psychiatric problems. The physician had not seen any evidence of organicity or any indication that the appellant had organic brain damage or a major mental illness during his evaluation. The Supreme Court of Pennsylvania concluded: We agree with the PCRA court that [trial counsel] reasonably relied on the opinion of Dr. Boxer, who no one disputes is a qualified psychiatric expert. Despite Appellant's suggestions to the contrary, counsel was not -17- 96-1183 CRIMINAL TERM required to disregard the findings of his expert and continue to consult experts, at the expense of limited judicial resources, until he found one willing to testify that Appellant was organically brain damaged or manifested some kind of major mental illness. As [trial counsel] stated at the PCRA hearing, "I'm not a psychiatrist, psychologist.., that's why I had Dr. Boxer evaluate [Appellant]." N.T. Clearly, [trial counsel] was entitled to rely on the observations and conclusions of Dr. Boxer, who informed [him] that his evaluation did not reveal any mental health mitigation evidence that he could testify to at Appellant's penalty phase hearing. In sum, we find no error in the PCRA court's determination that counsel was not ineffective for failing to pursue and present evidence related to Appellant's alleged mental illness and organic brain damage when previous mental health evaluations did not conclude that Appellant was brain damaged or mentally ill and when counsel consulted a recognized mental health expert and relied on his conclusion that his evaluation revealed no mitigating mental health evidence to which he could testify. Thus, this claim fails to offer Appellant any basis for relief. See Commonwealth v. Lewis, 560 Pa. 240, 743 A.2d 907, 909 (2000) (although defendant offered testimony of psychiatrist, who examined Appellant fifteen years after the murder, to support his claim that counsel was ineffective for failing to present evidence of defendant's mental illness at defendant's penalty hearing, defendant's claim was negated by mental health evaluation conducted less than one year after murder which concluded that defendant did not manifest any major mental illness). As in Bracey, we find in the case sub judice that trial counsel could reasonably rely on the findings of the evaluation at the Norristown State Hospital and the conclusions of its board certified psychiatrist that petitioner was competent to stand trial, that he was not mentally ill, and that his being non-cooperative in some aspects of his defense was a result of his malingering. Therefore, trial counsel was not ineffective in not seeking a competency hearing for which there would have been no evidence of -18- 96-1183 CRIMINAL TERM incompetency. When Dr. Raqusea was retained by defense counsel, petitioner refused to allow him to conduct a mental status evaluation. Dr. Raqusea knew that trial counsel discussed the situation with petitioner, and petitioner would not change his mind about cooperating in an evaluation. Yet he did not suggest "sitting on petitioner," or utilizing any other methods to determine if petitioner was mental ill. Now, in his stating that the most that should have been said about petitioner at the time of trial was that no opinion could be made as to his competency because he refused to participate in a psychiatric evaluation, something he did not tell trial counsel at the time, he is critical of the conclusions drawn by Dr. Caplin which was made after six weeks of observation of petitioner at the Norristown State Hospital. Furthermore, petitioner has now refused an evaluation by Dr. Rotenberg and a psychologist who went to see him at SCI Greene in September, 2000. Interestingly, the data Dr. Rotenberg reviewed in arriving at his differential diagnosis did not contain any information on how petitioner has adjusted to, conducted himself, and faired as a prisoner in state correctional institutions since April, 1997. Over four years of available data has simply been left out of the equation in arriving at his conclusions. Yet, similar data involving petitioner's conduct in the Cumberland County Prison during a short period of time in the latter part of 1996, some lack of cooperation with his attorneys, and his own conduct at trial, were significant factors supporting his opinion that it is not clear that petitioner understood the consequences of his trial, and he did not have the ability to cooperate with his -19- 96-1183 CRIMINAL TERM attorneys in his own defense. -20- 96-1183 CRIMINAL TERM After weighing the credibility of all of the testimony and evidence, we find as a fact that petitioner was not mentally ill, and was competent to stand trial. TRIAL ISSUES I. Petitioner alleges that his stand-by counsel was ineffective during the individual jury voir dire when he was representing himself. Prospective juror number 91, Freddie D. Manning, was questioned as follows: Q You currently live in Carlisle? A Yes, ldo. Q And do you know the Hodge family? A Yes, ldo. Q How would you describe your relationship with them, you're friends, acquaintances? A Yes, we are friends. Q How long have you know them? A For about 26 years. Q I notice, like when you are asked about the questions, then you know the victim Tara very well? A No. I know her mother and her grandmother, but I do know who Tara is. Q You indicated you talked among yourselves about this case, among your family when it happened? A When it first happened, yes. Q You never talked to the Hodges then about this? A Not really, except just saying, you know, how sorry I was that it happened. Q Do you think knowing the family as you do, again, do you think you could really set it all aside and just judge this case totally on what you know in the courtroom? A Yes. The defense exercised a peremptory challenge of Manning, which was its -21- 96-1183 CRIMINAL TERM eleventh.15 Citing Commonwealth v. Stuart, 449 Pa. 50 (1972), and Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), petitioner maintains that his stand-by counsel were ineffective for failing to advise him to inquire of the other members of the panel to see if they were tainted by Manning, or alternatively, to strike the entire panel which would have had contact with Manning. Petitioner cannot claim his own ineffectiveness of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed 2d 562 (1975); Commonwealth v. Celijewski, 324 Pa. Super 185 (1984). In Faretta, the Supreme Court of the United States stated that: [a] state may - even over the objection by the accused - appoint a 'stand-by counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary. (Emphasis added.) When petitioner exercised his constitutional right under Faretta v. California, supra, to represent himself, stand-by counsel was appointed pursuant to Pa.R. Crim. P. 318 (now 121(D)), which provides: When the defendant's waiver of counsel was accepted, stand-by counsel may be appointed for the defendant. Stand-by counsel shall attend the proceedings and shall be available to the defendant for consultation and advice. (Emphasis added.) Petitioner has not averred that he sought the advise of his available stand-by counsel with respect to the selection of the jury. Stand-by counsel had no obligation to 15 The first twelve jurors were selected with the defense utilizing fourteen peremptory challenges, and the Commonwealth seven, out of their allotment of twenty peremptory challenges each. Pa.R. Crim. P. 1126, now 634(A)(3). -22- 96-1183 CRIMINAL TERM inject themselves into the defense. There was no error that could warrant post- conviction relief. II. Petitioner alleges that the District Attorney committed prosecutorial misconduct when, during his opening address, he maligned petitioner's constitutional rights. During his opening address, the District Attorney stated: During this part, understand fully this man came in here presumed innocent. He has a lot of rights. That's our system of government. I'm sure every one of you thinks back to your elementary school days and took great pride in our system. We've come to this stage and when you put those rights out there, the thing that you're here to decide now is what happened on a particular day, and you have just as much of an obligation to be fair to the people of Pennsylvania and Cumberland County as you do to this man right there. When you hear the evidence, it's no longer a question of presumed innocent .... You'll say, sir, you got the benefit of every one of those rights, but you don't come up here into this county and shoot a boy and a hard working young lady .... I have to prove each and every element of these crimes and you'll hear long renditions of what these offenses are and the elements. It's not particularly important now because you are fact finders. Petitioner suggests that these selected comments extracted from the prosecutor's opening address were a misstatement of law as to his presumption of innocence. Petitioner was representing himself at the time, he did not object to the -23- 96-1183 CRIMINAL TERM prosecutor's comments, so any error was waived. Furthermore, petitioner's hyper- technical reading of the prosecutor's comments does not support his conclusion. The prosecutor's general comments do not warrant post-conviction relief. Additionally, the court clearly instructed the jury on petitioner's presumption of innocence, and the Commonwealth's burden of proof, when it made the following comments to the jury, first at the beginning of the trial: The Commonwealth has the burden of proof beyond a reasonable doubt .... You should keep an open mind. You should discuss this case with no one during the course of the trial. That even means among yourselves. The first time that you should discuss this case among yourselves, or may discuss this case among yourselves under Pennsylvania law is when you are deliberating. There is a good reason for that rule. At that point you will know all of the evidence. You will have heard the arguments in support of the evidence in this case, and you will have heard the charge on the law that I will give you. So that is the first time you know everything that you need to know under the law to render a fair and a just verdict in this case. That is the reason for the rule not to discuss the case with anyone nor among yourselves until you are in the jury room deliberating. Then in the charge to the jury: [m]erely because a person is charged with a crime is not evidence. An accused comes to court presumed to be innocent, or as we say, cloaked with a presumption of innocence. A defendant has no burden of proof. The burden of proof is on the Commonwealth to prove defendant's guilt beyond a reasonable doubt. Thus, in order to convict this defendant beyond a reasonable doubt of any crime, you must be satisfied that each and every element of that offense has been proven beyond a reasonable doubt and that this defendant is the person who committed to offense beyond a reasonable doubt. -24- 96-1183 CRIMINAL TERM If you have such a doubt, then it is your duty to find defendant not guilty. If you have no such doubt, then the presumption of innocence dissipates, and you would find defendant guilty. III. Petitioner alleges that it was error to admit certain opinions by the coroner (at pp. 48 and 49 of the trial transcript), during questioning by the District Attorney, that were beyond the scope of his qualifications. These questions were asked while petitioner was still representing himself. He has not averred that he sought the advice of his stand-by counsel with respect to any of the coroner's testimony. Stand-by counsel had no obligation to inject themselves into the defense. Furthermore, the alleged offending portions of the coroner's testimony relate to the cause of death of Rashawn Bass, the trajectory of various bullet wounds, and related matters. The testimony was cumulative to the testimony of Commonwealth witness Samuel D. Land, M.D., a forensic pathologist who conducted an autopsy on Rashawn Bass, and Corporal Ernst Baltimore, of the Pennsylvania State Police, a forensic firearm examiner.16 There was no error that would warrant post-conviction relief. IV. Petitioner alleges that trial counsel was ineffective for failing to object to comments by the District Attorney that improperly injected race into the case. Petitioner argues that the prosecutor projected a theme in his opening remarks 16 In his petition for post-conviction relief, petitioner alleges ineffectiveness of trial counsel in not presenting the testimony of a qualified forensic expert, and failing to elicit favorable testimony challenging the Commonwealth's assertion about the supposed downward projectory of the bullets and the circumstances under which a shell casing would land on the victim's arm. Petitioner presented no evidence at the post-conviction hearings in support of this allegation, and has not briefed the -25- 96-1183 CRIMINAL TERM that this was a case of "how a young man and a young woman paid the big city price, a perceived disrespect." Because petitioner, Tara Hodge, and Rashawn Bass were black, petitioner maintains that this theme was improperly injected into the trial for which failure of his trial/appellate counsel to object warrants post-conviction relief. Petitioner was representing himself during the prosecutor's opening remarks. Therefore, as previously set forth, petitioner cannot claim his own ineffectiveness of counsel, nor can he claim that his stand-by counsel were ineffective for failing to inject themselves into the defense. Furthermore, petitioner's claim is without merit. The prosecutor's theme was supported by the evidence although disrespect is hardly a perception limited to persons from a big city. The fact that petitioner and his two victims are black is without legal consequence. Furthermore, as set forth in Commonwealth v. Carter, 537 Pa. 233 (1994), the Supreme Court of Pennsylvania stated: It is well settled that a prosecutor's remarks fall within the ambit of fair comment if they are supported by evidence and contain inferences which are reasonably derived from that evidence. Commonwealth v. Hardcas#e, 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988). A new trial is not mandated every time a prosecutor makes an intemperate or improper remark. To constitute reversible error, the language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility towards the defendant, so that they could not weigh the evidence and render a true verdict. Id. V. Petitioner alleges that his trial counsel was ineffective for failure to object to allegation. It is waived. -26- 96-1183 CRIMINAL TERM testimony that the deceased, Rashawn Bass, was a Christian, and his father was a deacon of a church. Tara Hodge testified that she met Rashawn Bass in May, 1996, through an advertisement in a paper that identified him as "single, black, Christian male, 23, 5'11", mellow fellow, new to the burbs, in search of single, Christian female, loves church, movies, romantic dinners, fit and smells great." Bass was from New York, and she got to know him in the ensuing weeks after he moved to Harrisburg. She testified that his father was a deacon at a church and that Rashawn attended all the time. Admission of this very limited evidence on the background of the decedent and his family, and how he came to know Tara Hodge, which led to him being killed in her home by petitioner, was proper. Its admission would not warrant the grant of post-conviction relief. VI. Petitioner alleges that his trial counsel was ineffective because of an impermissible conflict of interest. Citing Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983), petitioner maintains that his differences with his counsel precluded them from taking the minimum steps necessary to investigate and present an adequate defense on his behalf. Petitioner cites counsel's argument during the penalty phase when she told the jury, "[I] can tell you that we have not communicated well, and I don't know this man. He has not let us in." She described petitioner as defiant, tormented, destructive, friendless, troubled, confused, and unable to communicate with anyone. Undoubtedly, petitioner was difficult to represent because he would not fully cooperate with counsel. He is not -27- 96-1183 CRIMINAL TERM cooperating with his post-conviction counsel by not undertaking a psychiatric or psychological examination. A defendant's lack of cooperation with his counsel, without a legitimate basis, does not create a conflict of interest whereby counsel is ineffective. Representing difficult clients comes with being a criminal defense lawyer, as do the inevitable claims of ineffectiveness of counsel. Overall, petitioner's two appointed attorneys conducted an adequate investigation and presented an appropriate defense within the constraints imposed upon them by petitioner. JURY CHARGE ISSUES I. Petitioner alleges that the trial court erred in instructing the jury that if they found the killing of Rashawn Bass was intentional, then they must also find malice. The court's charge on murder was as follows: Now, I will review with you the elements of all of these offenses. First degree murder. You may find defendant guilty of first degree murder if you are satisfied that the following elements have been proven beyond a reasonable doubt: One, that Rashawn Bass is dead. Two, that defendant killed him. By that I mean that his conduct was a direct cause of his death. In order to be a direct cause of a death, a person's conduct must be a direct and substantial factor in bringing about his death. Three, that the killing was with a specific intent to kill. Four, that the killing was with malice. A killing is with specific intent to kill if it is willful, deliberate, premeditated; that is, if it is committed by a person who has a fully formed intent to kill and who is conscious of his own intent. Although a defendant must premeditate in order to have a specific intent to kill, premeditation does not require planning or previous thought. It may but it does not have to. Premeditation can be very brief. All that is necessary is that there be time enough so that defendant has a fully formed intent to kill the victim and is conscious of that intention. A killing is with malice if it is done with a specific intent to kill. If you believe that the defendant intentionally used a deadly weapon on a -28- 96-1183 CRIMINAL TERM vital part of the body of Rashawn Bass, you may regard that as an item of circumstantial evidence from which you may infer that the defendant had a specific intent to kill which was malicious. If the defendant had a specific intent to kill, the killing was malicious. State of mind is to be determined from all of the evidence and the reasonable inferences that may be drawn therefrom as I have outlined for you in the basis of the general charge that I have already given to you. Third degree murder. In this case, any murder that is not first degree murder is third degree murder. You may find defendant guilty of third degree murder if you are satisfied that the following elements have been proven beyond a reasonable doubt: One, Rashawn Bass is dead. Two, that defendant killed him; in other words, caused his death, as I had previously explained. Three, that the killing was with malice. The specific element of first degree murder that is not present in third degree murder is a specific intent to kill. In the context of third degree murder, malice is one of the following states of mind: A wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty indicating an unjustified regard for the probability of death or great bodily harm and an extreme indifference to the value of human life. It may also include an intent to kill or an intent to inflict serious bodily harm. Although if you find a specific intent to kill, that would raise third degree murder to murder in the first degree. Malice may be either expressed by the defendant or inferred from his conduct or words in light of the attending circumstances. Malice may be inferred from the intentional use without legal excuse or justification of a deadly weapon on the vital part of the body of the person killed. Again, the difference between first degree murder and third degree murder is a specific intent to kill. If a person has a specific intent to kill, as I have defined it, that constitutes malice, and it is the specific intent to kill with malice that raises third degree murder to first degree murder. In contrast, a killing without a specific intent to kill which is still malicious, as I have defined the term malice, is third degree murder because the difference between third degree murder and first degree murder is the lack of a specific intent to kill. Again, a killing is with a specific intent to kill if it is willful, deliberate, or premeditated; that is, if it is committed by a person who has a fully formed intent to kill and who is conscious of his own intent. Although a defendant must premeditate in order to have a specific -29- 96-1183 CRIMINAL TERM intent to kill, premeditation does not require planning or previous thought. It may but it does not have to. Premeditation can be very brief. All that is necessary is that there be time enough so that defendant has a fully formed intent to kill the victim and is conscious of that intention. A killing is with malice if it is done with a specific intent to kill. A killing without the specific intent to kill with malice is third degree murder rather than first degree murder. Petitioner maintains in his petition that the charge: [o]n specific intent to kill and malice, and how these elements distinguish first-degree and third-degree murder, were confusing and incorrect. By equating malice with specific intent, the Court improperly instructed the jury that it need not find malice, an element of first-degree murder. But specific intent to kill and malice are two distinct concepts. In Commonwealth v. Carter, 537 Pa. 233 (1994), the Supreme Court of Pennsylvania stated: Under Pennsylvania law, first degree murder is an intentional killing. See 18 Pa.C.S.A. § 2502(a)(1). As defined by common law, first degree murder is accompanied by a specific intent to kill and deliberation or premeditation. The requirements of premeditation and deliberation are met whenever there is a conscious purpose to bring about death. (Footnote omitted.) (Citations omitted.) In Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001 ), the Supreme Court of Pennsylvania stated that: To prove first-degree murder, the Commonwealth must show that the accused acted with the specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was willful, deliberate, and premeditated. The specific intent to kill can be inferred from the use of a deadly weapon on a vital part of the body. (Citations omitted.) The charge on first degree murder was correct. A killing is first degree murder and is with malice if it is done with a specific intent to kill. A killing without a specific -30- 96-1183 CRIMINAL TERM intent to kill with malice is third degree murder rather than first degree murder. A similar charge in Commonwealth v. Sweger, 34 Cumberland L.J. 290 (1994), was affirmed by the Superior Court of Pennsylvania in a published opinion at 351 Pa. Super. 188 (1986). II. Petitioner alleges that the trial court committed reversible error in refusing to give the jury an instruction on voluntary manslaughter. In our opinion of November 13, 1997, in support of the judgment of sentence, we rejected this allegation, stating: Defendant came to Tara's home after midnight on June 30, uninvited and armed. Defendant, who had never lived with Tara, intentionally intruded upon her over a half month after she had civilly told him that their relationship was over. Defendant would not leave Tara's home when she told him to leave. Rashawn Bass was in Tara's home at her invitation. Bass did nothing whereby a jury could have concluded that he seriously provoked defendant into killing him unless we were to conclude that defendant owned Tara as a result of their sporadic relationship, and that Rashawn Bass, therefore, should not have been with her thereby seriously provoking defendant. Such a proposition is absurd. In Commonwealth v. Watson, 523 Pa. 51 (1989), the defendant was convicted of first degree murder and sentenced to death for killing Sheryl Harding. The facts set forth by the Supreme Court of Pennsylvania are: On June 15, 1982, Herbert Watson went to the residence of Sheryl Harding. Both had lived together for approximately five years until they separated two weeks before the above date. Shortly before Watson arrived, Roslyne Johnson, Harding's sister, and Maxilyn Vann, Johnson's boyfriend, responding to Harding's telephone call, drove to the house to get Harding and her two children. While they waited outside in Vann's car, Watson approached and fired three shots into the car, two of which struck Vann. Johnson, seeing Watson approach, locked Harding's front door. Watson, however, shot the lock off and proceeded upstairs. There, he grabbed Harding from the closet where she was hiding -31- 96-1183 CRIMINAL TERM with her two children, and shot her twice. After reloading his gun and leaving the room, he returned, shot Harding one more time, and then shot himself. (Emphasis added.) In rejecting defendant's argument that he was entitled to present to the jury a claim that his killing Sheryl Harding was in the heat of passion sufficient to reduce the degree of homicide to voluntary manslaughter, the Supreme Court stated: Although sudden intense passion may indeed negate the element of malice necessary to a finding of murder, such passion must be precipitated by serious provocation, and it must be so sudden as to preclude cool reflection. Notwithstanding appellate counsel's assertions that evidence of provocation was of record in this case in the form of anger, jealousy and rage in that Watson was aware that Harding had a new boyfriend at the time he went to her residence, we agree with the lower court that there is not even a scintilla of evidence to establish sufficient legal provocation by the victim to support a voluntary manslaughter claim. (Emphasis added.) In Commonwealth v. Walker, 540 Pa. 80 (1995), defendant was convicted of first degree murder and sentenced to death for the killing of Ricardo Thomas. The facts as set forth by the Supreme Court of Pennsylvania are: Appellant and Lisa Johnson lived together for a period of two years before she returned with their two sons to live with her parents, Gladys and Leon McKnight, in order to escape appellant's abuse. Thereafter, appellant repeatedly harassed Lisa by going over to the McKnight residence, after her parents had gone to work. According to the testimony of Lisa Johnson's sister, Tracey McKnight, appellant would come over to the McKnight residence almost every day and often threaten Lisa that if she did not get rid of her new boyfriend, he was going to kill her and her family. These acts eventually compelled Lisa to obtain a protection from abuse order. However, in spite of the order, appellant continued to harass and threaten her and her family. On one occasion, after Gladys McKnight told appellant that she would have to call the police if he did not leave the house, he told her to go ahead and that if she did, "1 will blow your fucking brains out." On April 22, 1993, the morning before the killing, appellant went to the McKnight residence and physically assaulted Lisa by striking her across the face after she refused to have sexual intercourse with him. Later in the day, appellant repeatedly called -32- 96-1183 CRIMINAL TERM the McKnight residence demanding to speak to Lisa and inquiring as to whether her new boyfriend, Denzell Brown was present. The deceased, Ricardo Thomas, who was the godfather of one of appellant's children, took one of these phone calls and ordered appellant to stop harassing Ms. Johnson. At approximately midnight, appellant once again telephoned Lisa and told her that he was coming over. He also threatened her by stating, "If I can't have you, ain't nobody going to have you." By the time Denzell Brown and his friend and co-worker, Harry Smith, left the residence (around 2:00 a.m.), appellant still had not arrived. Although as they were leaving the neighborhood, they noticed a gray car parked around the block which was later identified as appellant's vehicle. Due to the McKnight's obvious concerns, Ricardo Thomas offered to sleep on the downstairs couch in order to protect Lisa in the event that appellant followed through on his threats. Lisa slept on another sofa in the same room. Sometime between 3:00 a.m. and 3:30 a.m., appellant, who had been waiting in his car, broke through the front door, walked over to Ricardo Thomas, who was still sleeping on the couch, and shot him in the forehead and in the chest. Evidence was offered which indicated that the gun was fired from six to ten inches from the victim's head. Appellant then turned to Lisa who had awakened and said, "Lisa this is what you get for playing." Appellant then shot her two times in the head. Defendant subsequently gave the following statement to the police: I got to the house and pushed the door open. One guy was laying on the couch. We started wrestling on the couch and I grabbed my gun from out of my pants pocket and I started squeezing the trigger and the gun went off three times. Then I turned my head and I heard Lisa calling me all kind of bitches. She started asking me why I did that and she started saying that she hated me she hated me. Then I pointed the gun at her and I shot her two times. So then I drove off and sat in the car for a while. (Citation omitted). On this evidence the Supreme Court of Pennsylvania concluded that defendant "[s]imply fails to demonstrate that there was sufficient provocation to insight a reasonable person into a killing rage." As in Watson and Walker, there was no evidence in the case sub iudice to demonstrate that there was sufficient provocation to insight defendant into a killing rage. -33- 96-1183 CRIMINAL TERM Petitioner challenged our holding in his direct appeal to the Supreme Court of Pennsylvania. That Court affirmed the judgment of sentence, stating: A defendant is entitled to a voluntary manslaughter charge only when the evidence adduced at trial would support such a charge. Commonwealth v. Browdie, 543 Pa. 337, 349, 671 A.2d 668 (1996); Commonwealth v. Williams, 537 Pa. 1,640 A.2d 1251 (1994). In determining whether the evidence adduced at trial support such a charge we must view the evidence in the light most favorable to defendant. Voluntary manslaughter, 18 Pa.C.S. § 2503(a) is defined as follows: (a) General Rule - A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense provocation by: (1) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed. In Commonwealth v. Jones, 546 Pa. 161,683 A.2d 1181 (1996), this court held that a voluntary manslaughter charge is not proper where the person who was killed is not the person who provoked the defendant, absent evidence of negligence or accident. In his brief to this court, appellant's evidence of provocation relates to past incidents with Tara Hodge and appellant's interaction with Tara Hodge on the night of the murder. Accordingly, it appears that appellant is arguing that Tara Hodge was responsible for the provocation that warranted the voluntary manslaughter charge. However, Tara Hodge was not the individual killed. Moreover, appellant does not assert that he was endeavoring to kill Tara Hodge at the time he shot Rashawn Bass, or that he negligently or accidentally shot Bass. Appellant seems to imply that a voluntary manslaughter charge is warranted even where he was provoked by someone other than the person who was murdered. There is no legal support for such argument. Accordingly, appellant's claim lacks arguable merit. In the post-conviction hearings, petitioner introduced evidence, mainly through letters which was cumulative to the evidence that was admitted at trial, that he and Tara Hodge had an off-again on-again relationship from when they first started seeing each other in 1993. Petitioner was jealous of Tara, even holding against her a relationship -34- 96-1183 CRIMINAL TERM that she had with his friend, Anthony Lock, before he became involved with her. Over the years, Hedge wrote petitioner numerous letters indicating that she was considering breaking off their relationship, but she never followed through. Petitioner suggests that his trial/appellate counsel was ineffective in failing to introduce this evidence which he maintains would have shown a course of conduct sufficient to raise an issue of adequate provocation to warrant a charge of voluntary manslaughter. Petitioner cites Commonwealth v. Laich, 777 A.2d 1057 (Pa. 2001), in which a charge of voluntary manslaughter was given to the jury in a case in which defendant lived with a woman a week before killing her. The defendant went to the apartment of the woman, and heard what he believed to be her and a man engaging in sexual relations. He forced his way into the apartment, and fatally shot the woman, who was naked as she came down the stairs. He then proceeded up the stairs to a bedroom, where he fatally shot a man in the bedroom. The jury found defendant guilty of murder in the first degree, however, the Supreme Court of Pennsylvania reversed the conviction based on an evidentiary error in the admission, via double hearsay, of a prior statement of the defendant. In the case sub judice, the additional evidence admitted in the post-conviction hearings was cumulative to that which was admitted at trial regarding the on-again off- again relationship of Hedge and petitioner, and of petitioner's jealousy. It would not sufficiently add to the facts on which the Supreme Court has already concluded that the request to charge on voluntary manslaughter was properly denied. DEATH PENALTY ISSUES -35- 96-1183 CRIMINAL TERM I. One aggravating circumstances found by the jury was: The defendant committed the killing of Rashawn Bass while in the perpetration of the felony of carrying a firearm without being licensed, and the felonies of aggravated assault and attempted criminal homicide against Tara Hodge. (Emphasis added.) Petitioner argues that the legislature, in Section 9711 (d)(6) of the Judicial Code, intended to limit the felonies which could be used to establish aggravating circumstances for the death penalty to only those felonies set forth in Section 2502(d) of the Crimes Code. The Judicial Code at 42 Pa.C.S. Section 9711(d)(6) defines as an aggravating circumstance: "The defendant committed a killing while in the perpetration of a felony." Petitioner alleges that the phrase "in the perpetration of a felony," is limited by the Crimes Code at 18 Pa.C.S. § 2502(d), that defines "perpetration of a felony" as "[t]he act of the defendant in engaging in or being an accomplice to the commission of, or attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping." This contention was not raised by trial/appellate counsel, which petitioner claims were ineffective. In Commonwealth v. Walker, 656 A.2d 90 (Pa. 1995), the Supreme Court of Pennsylvania stated: [a]ppellant argues that the death penalty statute is unconstitutional because there is no definition as to what constitutes a felony. The statute in question states in relevant part: (d) Aggravating circumstances.--Aggravating circumstances shall be limited to the following: (6) The defendant committed a killing while in the perpetration of a felony. 42 Pa.C.S. § 9711(d)(6). This identical argument was rejected in -36- 96-1183 CRIMINAL TERM Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861 (1990), wherein this Court stated that "[a]s to the term 'felony' as used in the aggravating circumstance the defendant committed a killing while in the perpetration of a felony, it is clear that it is adequately defined by reference to our Crimes Code which specifically designates those crimes which are felonies, 18 Pa.C.S.A. § 101 etseq." Id., 525 Pa. at 532, 582 A.2d at 871. Hence, this claim is meritless. Appellant also argues that the death penalty statute is unconstitutional because the aggravating circumstance of a "killing committed while in the perpetration of a felony," is also the definition of a felony murder, which is punishable only by life imprisonment. Thus, appellant contends that the jury is provided with an "unbridled choice" of penalties because felony murder could also rise to the imposition of the death penalty as an aggravating circumstance. This convoluted argument, however, confuses the guilt and penalty phases of the Crimes Code and fails to take into account that if the jury finds a specific intent to kill, the crime is first degree murder, which may be punishable by death. Appellant also asserts that the trial court erred in permitting the jury to consider criminal trespass, a felony, as an aggravating circumstance. As discussed above, the jury may find as an aggravating circumstance that the killing was committed while in the perpetration of a "felony." Felonies are expressly defined in the Crimes Code. Appellant argues, however, that the legislature did not intend to include criminal trespass among those felonies that may be considered for purposes of determining aggravating circumstances. He fails to cite to any legislative history in support of his claim. Because 42 Pa.C.S. § 971 l(d) expressly permits the use of "felonies" as an aggravating circumstance, of which criminal trespass is one, we find no merit to appellant's claim. Thus, criminal trespass may be considered as an aggravating circumstance and appellant's final claim must fail. (Footnotes omitted.) Walker is precedent although petitioner, in support of his claim, has provided us with an analysis of the legislative history of Section 9711 (d)(6) of the Judicial Code. Notwithstanding, there is nothing ambiguous about the phrase "perpetration of a felony" as set forth in Section 9711(d)(6). In contrast, in Section 971 l(d), of the Judicial Code, -37- 96-1183 CRIMINAL TERM Section 5121 of the Crimes Code is referenced to define a fireman, police officer, or public servant. Also in Section 9711(d)(12), of the Judicial Code, Section 2503 of the Crimes Code is referenced to define "voluntary manslaughter." Also in Section 9711 (d)(13), (d)(14), and (d)(15), of the Judicial Code, Section 306(c) of the Crimes Code is referenced to define an "accomplice." Furthermore, in Section 9711(d)(18), of the Judicial Code, the legislature references 23 Pa.C.S. Ch. 61 to define "protection from abuse." If in Section 9711(d)(6) of the Judicial Code the legislature had intended to use Section 2502 of the Crimes Code to limit the definition of "in perpetration of a felony" as applicable to an aggravating circumstance, it would have done so in the same way as in those sections of the Judicial Code cited above. The fact that the legislature did not include any reference to the Crimes Code in Section 9711(d)(6) of the Judicial Code, is a clear indication that it intended the scope of felonies to support an aggravating circumstance for murder in the first degree to be broader than those felonies that it has provided support a conviction for murder in the second degree. The legislation that was enacted controls, not the history of the debate leading to the passage of that legislation. II. The second aggravating circumstance found by the jury was: In the commission of the criminal homicide, defendant knowingly created a grave risk of death to Tara Hodge in addition to Rashawn Bass who was the victim of the offense. (Emphasis added.) Petitioner maintains that it was error to submit this aggravating circumstance to the jury, and that trial/appellate counsel was ineffective for failing to object at trial and -38- 96-1183 CRIMINAL TERM raise the issue on the direct appeal. In Commonwealth v. Paolello, 665 A.2d 439 (Pa. 1995), the Supreme Court of Pennsylvania stated: Sufficient evidence to support the application of the aggravating circumstance of creating a grave risk of harm to persons other than the murder victim, has been found by this court in those instances where the other persons are "in close proximity" to the decedent "at the time" of the murder, and due to that proximity are in jeopardy of suffering real harm. [i]t is clear that sufficient evidence to support this particular aggravating circumstance arises only in those factual situations where a nexus exists connecting the "other persons" to the zone of danger created by the defendant's actions in killing the victim. The risk of harm to others must occur or be imminent at the time of the acts leading to the death of the victim, for this aggravating circumstance to be applicable to the penalty determination. Petitioner places considerable reliance on Commonwealth v. Stokes, 532 Pa. 242 (1992). The facts in Stokes were: Appellant's convictions resulted from his participation, along with Donald Jackson, in the robbery of Smokin' Joe's Korner on March 12, 1982. Smokin' Joe's is a restaurant and bar, where the appellant had been previously employed, located at 5100 City Line Avenue in the city of Philadelphia. At trial Mr. Jackson testified that he and appellant had donned blue jumpsuits and ski masks and equipped themselves with weapons in anticipation of the robbery. Jackson was armed with an automatic pistol and appellant carried at .38 caliber revolver. The two men entered the restaurant through the unlocked rear kitchen door with their guns drawn. They confronted two restaurant employees in the kitchen, Renard Mills and Pierre Blassingame. A third restaurant employee, Eugene Jefferson, entered the kitchen from another part of the building about the same time. Appellant locked the three employees into a walk-in refrigerator, then proceeded into the restaurant -39- 96-1183 CRIMINAL TERM office where he encountered Mary Figueroa, the restaurant manager and wife of one of the owners of Smokin' Joe's. Jackson joined appellant and Mrs. Figueroa in the office as appellant was forcing Mrs. Figueroa to open the safe. At that point Jackson noticed appellant's ski mask was pulled up off his face. Jackson told appellant to cover his face, to which appellant replied that he had already been recognized by Mrs. Figueroa. After Mrs. Figueroa opened the safe she was placed in the walk-in refrigerator with the other three employees. Mrs. Figueroa told the others that she had recognized "Trent." She then attempted to exert a calming influence upon the others in the refrigerator. With everyone in the refrigerator, Jackson and appellant proceeded with their looting of the restaurant. Unfortunately, while these activities were in progress, Peter Santangelo, a mailman, happened upon the scene. Jackson opened the kitchen door a fraction sufficient enough to accept delivery of the mail, and then closed the door. Appellant, afraid of being discovered, chased after the mailman, bringing him into the restaurant and ordering him, at gun point, to lie on the kitchen floor. With Mr. Santangelo on the floor, appellant placed his ear against the refrigerator door in an effort to overhear the conversation among the persons therein. Appellant then announced to Jackson that he had been identified and would have to "off" the witnesses. Whereupon, appellant opened the refrigerator and fired three shots, killing Eugene Jefferson and Mary Figueroa. Upon witnessing this even, Peter Santangelo ran from the kitchen. Appellant cornered Mr. Santangelo at the locked front door and fired three more shots, leaving Mr. Santangelo as his third fatality. Jackson, upon witnessing the murders, ran out the rear door and started the car. The vehicle was difficult to start, leaving sufficient time for appellant to join Jackson in the car. The two men then fled the scene. Appellant and Jackson went to the home of Jackson's friend, Eric Burley, where they divided the proceeds of the robbery and directed Burley to dispose of appellant's gun, the jumpsuits, and the ski masks worn during the commission of the crimes. In a plurality opinion, Justice Cappy concluded that "[t]here where no other persons in close proximity to Peter Santangelo, as appellant closed the refrigerator door before chasing Santangelo into another room where he was then shot and killed by appellant, thus the charge was completely inapplicable to the murder of Santangelo." -40- 96-1183 CRIMINAL TERM Unlike the facts in Stokes, when petitioner entered Tara Hodge's apartment, they argued, and petitioner wanted to know who was in the shower. When Tara said that it was a friend, petitioner said they must have just had sex. When Tara told petitioner that was not true, they argued some more, and Tara told him to leave. Petitioner then banged on the bathroom door, saying that "You mean to tell me I came all this way and you are not going to have him leave." When Tara told petitioner to leave, petitioner reached into his sweats and removed a handgun. He shot Tara, then went into the bathroom, and shot and killed Rashawn Bass. Tara Hedge was in close proximity to Rashawn Bass when she was shot and he was killed. Petitioner shot Hedge to get at Bass. It was Hedge's proximity to the killing of Bass that resulted in her being shot, thus a clear nexus existed connecting Hedge to the zone of danger created by petitioner's action in killing Bass. The risk of harm to Hedge being imminent at the time of petitioner's acts leading to the killing of Bass, the aggravating circumstance of creating a grave risk to Hedge at the time Bass was killed was properly submitted to the jury which found it to be an aggravating circumstance. III. During the District Attorney's closing argument in the penalty phase, he listed, as a way of illustration, all of the statutory mitigating factors that can be presented in a penalty phase. There was no objection by trial counsel. Petitioner now alleges that this was error sufficient to warrant post-conviction relief. We do not see how informing the jury of all of the statutory mitigating circumstances, in order to place the death penalty statute in perspective, constitutes -41- 96-1183 CRIMINAL TERM error requiring a new penalty phase trial. Defense counsel, in her closing address, did more than just list other statutory aggravating circumstances. She argued: You convicted him of the carrying of the weapon, and you convicted him of the perpetration of a felony, which was assaulting Tara Hodge. These are repackaging what you did yesterday. These are the weakest of aggravating circumstances in the Pennsylvania Code. Here are some real aggravating circumstances, killing a police officer, a contract killing, paying someone to kill someone, the victim was a hostage, torture, already serving life. That means that the person has already got a huge record or has probably killed before, murdered before, drugs, serious prior felony record where people were hurt or threatened of being hurt. It is significant that these are not aggravating circumstance in Antyane's case. The aggravating circumstances in Antyane's case are the same reasons that you convicted him yesterday. The District Attorney's comments regarding the statutory scheme of mitigating circumstances does not warrant post-conviction relief. IV. Petitioner alleges that his trial counsel was ineffective for failure to introduce mitigation evidence in the penalty phase of, (1) his increasingly paranoid behavior, paranoid schizophrenia, diminished capacity, emotional trauma, and (2) his family history of dysfunction, abuse, and tragedy. As to the first contention, trial counsel was aware that petitioner had no history of mental illness because, as we have previously concluded, they could rely on the evaluation of petitioner from the Norristown State Hospital that he was not mentally ill, and was malingering. Commonwealth v. Bracey, 787 A.2d 344 (Pa. 2001). As to the second contention, trial counsel hired Laurie James Monroe, a social worker/mitigation specialist. She testified at a post-conviction hearing that her pre-trial investigation into -42 - 96-1183 CRIMINAL TERM petitioner's background included interviews with his mother, father, brother, aunt and uncle, two cousins, two high school counselors, a family friend, and an officer under whom he served in the Army. She met with trial counsel and petitioner. She testified in the post-conviction proceedings that the family hid a lot of information from her, and was not as forthcoming as it could have been. She testified that petitioner was not cooperative with her, and he became hostile. Trial counsel presented to the jury petitioner's personal history, and family history, through the testimony of his mother, Juanita Robinson. Mrs. Robinson testified that she and her husband live in Fort Washington, Maryland. She testified that her oldest daughter, Eulana, is a diagnosed paranoid schizophrenic, and lives in a group home. She and her husband are raising Eulana's child, Prish Robinson, age 12. Her second daughter, Deondela, at age 27, was found dead in a hotel room in Atlantic City. She and petitioner were close and he was affected by her death. Mrs. Robinson has an older son Lorenzo. Petitioner, who was 27 at the time of trial, went through school, without problems, in Washington, D.C., where he graduated from Anacostia High School. He had some difficulties with his father during his youth. He went into the United States Army, and was honorably discharged. After discharge, he was in the Army Reserves for a period of time. Other than when he was in the Army, for most of his life he lived at home. He has two nieces to whom he was a "great uncle." Petitioner went to work for a manufacturer of floor mats after he came out of the Army. He also worked for the United States Postal Service. Mrs. Robinson testified that her husband -43- 96-1183 CRIMINAL TERM is a United States Postal Inspector, and has worked for the post office for 32 years. She testified that they were very lucky and fortunate to have a very nice home, and that "God has blessed us in that respect." Trial counsel also called Pearlie Mae Williams, of Washington, D.C., who is petitioner's paternal aunt. She testified that Deendela's death made petitioner very sad, and caused considerable grief for him and his family. The defense called Pamela Hedge, the mother of Tara Hedge. She testified that her impression of petitioner had been that he was a "nice boy." This history of petitioner that was developed in the investigation of Laurie James Monroe, was that petitioner was a generally good child and young adult, who went seriously astray only once, which was with respect to this case. That was the personal history, along with the family history of the unfortunate circumstances involving petitioner's two sisters, that the jury learned of in the penalty phase. Presenting that history was a strategy designed to effectuate petitioner's interest. Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001). In the post-conviction proceeding, petitioner presented testimony suggesting that his father, at times, abused his mother, and was unfaithful to her. The mitigation specialist testified, and was critical of trial counsel for not calling petitioner's father as a witness during the penalty phase. This information would have been marginally relevant, and would have served no useful purpose. Laurie James Monroe did not develop any significant relevant information about petitioner that was not adequately presented to the jury by the defense. Trial counsel presented petitioner's history in the -44- 96-1183 CRIMINAL TERM best light possible. Counsel was not ineffective in following that valid strategy. V. As set forth by the Supreme Court in its opinion in affirming the judgment of sentence: Appellant's sixth and final claim is that the trial court should have given a jury instruction that life sentence means life without the possibility of parole.~5 "[A] jury must be informed that life means life without the possibility of parole only when the prosecutor injects concerns of the defendant's future dangerousness into the case. Commonwealth v. May, 1998 WL. 149308, 2 (Pa. April 2, 1998). In May, this court rejected a claim that by raising the aggravating circumstance of a significant history of felony convictions, the Commonwealth "injected the issues of his future dangerousness into the sentencing." Id. Appellant contends that the Commonwealth spent "a good deal of time in both their case-in-chief and the penalty phase" implicating the future dangerousness of appellant by references to the fact that appellant was dangerous before the murder. In May, this court rejected a similar argument. Moreover, this court has embraced the notion that this type of instruction is necessary only where the future dangerousness of defendant is expressly implicated.~6 Thus, where the only references to the dangerousness of appellant relate to appellant's past dangerousness a Simmons instruction is not necessary. Accordingly, appellant's argument is without merit. 45 This type of instruction is commonly referred to as a Simmons instruction, arising out of the case Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994). 16 In addition to Commonwealth v. May, in Commonwealth v. Simmons this court noted that a "Simmons" instruction would not be necessary where the prosecutor implied in his closing statement that life imprisonment does not mean life imprisonment, since such a statement did not implicate defendant's future dangerousness. 541 Pa. 211,250 n. 15, 662 A.2d 621, n. 15 (1995). Petitioner now alleges that his trial/appellate counsel was ineffective for failing to claim on appeal another basis to reverse the death penalty based on a comment of the -45- 96-1183 CRIMINAL TERM prosecutor during the penalty phase which he maintains required a Simmons instruction. That statement was, "and then while he is killing Rashawn, another person just almost is killed. This is a serious thing that we have to stop." The entire statement the prosecutor made was: Now, you consider those aggravating circumstances. I submit to you your prior verdicts have proved them beyond a reasonable doubt. There are two of them that the circumstances are that he killed in perpetration of felonies carrying that gun illegally. Had he not done that, this would have never happened. And then while he is killing Rashawn another person gets almost killed. That's a serious thing that we have to stop, and then in that course of creating a grave risk of death to Tara. Those are two things. Petitioner cites Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), in which the Supreme Court of the United States stated that "evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support another inference or be described in other terms." The comments of the District Attorney relating to the two aggregating factors that he alleged were present did not constitute a Simmons statement suggesting to the jury that the death penalty should be imposed because petitioner would be a danger to others in the future. VI. In its opinion upholding the judgment of sentence, the Supreme Court of Pennsylvania concluded that the trial court, in four instances, erroneously admitted evidence. In each instance the Supreme Court held beyond a reasonable doubt that -46- 96-1183 CRIMINAL TERM the erroneously admitted evidence was harmless in that "it did not contribute to the verdict." Petitioner now alleges that his trial/appellate counsel was ineffective because the erroneously admitted evidence warrants the vacation of the death penalty, as his mother was cross-examined by the District Attorney in the penalty phase regarding some of that evidence. This issue has already been litigated. When the Supreme Court stated that it was convinced beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the verdict, and upheld the judgment of sentence of death, the issue has been decided adversely to petitioner. VII. Petitioner alleges that his trial counsel was ineffective for making some comments during the penalty phase that were not in his best interest. How to effectively argue a case to a jury is in the eye of the beholder. Defense counsel chose to address petitioner's faults head-on, not to gloss over them. Overall, she made strong arguments, and an impassioned plea, for the jury to spare the petitioner from the death penalty. She was not ineffective in this regard so as to warrant post-conviction relief. VIII. During his closing in the penalty phase of the trial, the District Attorney, referring to petitioner, stated: Of all the things that I think you would have maybe said was, you know, given the argument yesterday, yeah, I did it, I was wrong, you know, where is one sound of I'm sorry, one sound to say something about the memory of this man? None. Well, he tossed it away just like that picture. Petitioner alleges his trial/appellate counsel was ineffective for failing to object to -47- 96-1183 CRIMINAL TERM this comment because he did not testify in any phase of his trial. Petitioner, did however, make an opening statement to the jury while he was still representing himself. In that statement he said: And as [the prosecutor] said, everything I did was wrong, okay, but for you to judge me only on one side of the evidence, I never got a fair chance in life. This trial will never be fair until you give me true justice, and that is the understand the whole picture. (Emphasis added.) Petitioner went on to tell the jury numerous grievances he believed he had been subject to in his life, and which he maintained the jury should consider in his case. The comment by the prosecutor in his closing in the penalty phase was in reference to petitioner's opening address. Defense counsel recognized this when she countered the District Attorney's statement in her closing address, with: When he stood up there and said everything I've done is wrong, I don't know what he meant, but I think that he was finally coming to terms with what he had done. He's behind. He's behind. He's behind times emotionally. He should have long ago crashed and burned the way he did in front of you and the way he is in the courtroom. He should have long ago regretted what he did and realized what he did. It's just coming to him now. He's troubled and confused, very troubled and confused, to the point where he can't communicate with anyone. There was no error as alleged by petitioner that would warrant post-conviction relief. IX. Petitioner alleges that the proportionality review of his death sentence by the Supreme Court of Pennsylvania, and his direct appeal from the judgment of sentence, violated his constitutional rights. In its opinion in support of the judgment of sentence, the Supreme Court stated: -48- 96-1183 CRIMINAL TERM [a]fter reviewing the information compiled by our Administrative Office, the circumstances of the crime, and the character and record of appellant, in accordance with the requirements set forth in Commonwealth v. Frey, 475 A.2d 700 (Pa. 1984), cert. denied, 469 U.S. 963 (1984), we do not find the sentence imposed upon this appellant to be disproportionate to the sentence imposed 18 upon defendants in similar cases. ~8 Subsection (h)(3)(iii) of 42 Pa.C.S. § 9711 has been amended to delete the requirement for a proportionality review effective June 25, 1997. However, as the appellant herein was convicted and sentenced prior to the amendment, a proportionality review is mandated. Commonwealth v. Gribble, 703 A.2d 426 (Pa. 1997). This court has no jurisdiction to hear a challenge to the validity of the proportionality review of the Supreme Court of Pennsylvania. SENTENCING ISSUE I. Citing Commonwealth v. Anderson, (550 A.2d 20 (Pa. 1994), petitioner alleges that because his conviction of aggravated assault merged with his conviction for attempted criminal homicide, a separate sentence could not be legally imposed on the count of aggravated assault. Petitioner was convicted of an aggravated assault on Tara Hedge and of an attempted criminal homicide of Tara Hedge. On the aggravated assault, he was sentenced to pay the costs of prosecution, and undergo imprisonment in a state correctional institution for a term of not less than six years and nine months nor more than twenty years, consecutive to the sentence of death imposed for the criminal homicide of Rashawn Bass. On the charge of attempted criminal homicide, he was directed to pay the costs of prosecution. He received no separate sentence on that -49- 96-1183 CRIMINAL TERM charge. CONCLUSION We have found no error, cumulative, as suggested by petitioner, or otherwise, that would provide relief to petitioner under the Post-Conviction Relief Act which, in order to obtained relief, requires error that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. Section 9543(a)(2). Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2002, finding no error warranting relief under the Post-Conviction Hearing Act, IT IS ORDERED that the petition of Antyane Robinson for post-conviction relief, IS DISMISSED. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire Assistant District Attorney David Foster, Esquire For Petitioner :saa -50-