Commonwealth v. Derk

opinion by

¶ 1 Appellant, the Commonwealth of Pennsylvania (“Commonwealth”), appeals from the order of the Court of Common *877Pleas of Snyder County granting the petition filed by Steven C. Derk (“Appellee”) pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court determined that Appellee had received ineffective assistance of counsel when counsel failed to request that the trial court charge the jury with two instructions regarding the testimony of Ta-mie Gates, the principal witness for the Commonwealth.1 Appellee was granted a new trial. After careful review of the certified record and applicable law, we conclude that the PCRA court erred when it granted Appellee relief under the PCRA. Accordingly, we vacate the order of the PCRA court and remand this matter for the court to consider those other issues raised by Appellee in his PCRA petition but not ruled upon below.

¶ 2 The relevant facts of this case were thoroughly set forth by our Supreme Court in a decision disposing of Appellee’s direct appeal, which we quote, in part, as follows:

A jury convicted [Appellee] of, among other charges, first degree murder for the brutal beating death of a two-year-old child, Clair Hoyles, III (‘little Clair’), the son of [Appellee’s] live-in girlfriend, Tamie Gates (Gates). [Appellee] received a life sentence for this murder. Initially, both [Appellee] and Gates were charged with criminal homicide in the death of little Clair. However, Gates entered a negotiated plea agreement, by which she was permitted to plead guilty to the lesser offense[s] of involuntary manslaughter [and conspiracy to commit involuntary manslaughter] in exchange for her cooperation at [Appellee’s] trial. At the trial of [Appellee], the Commonwealth’s most incriminating testimony of his guilt came from Gates. Gates testified to a course of violent conduct by [Appellee] toward little Clair, which escalated from July 1992 until little Clair’s death on August 7, 1992. In particular, she related that [Appellee] smashed a roll of tape into the child’s chest and, on the Monday before his death, smacked her son’s head against the end of a couch. She also testified as to [Appel-lee’s] abuse of her and ... his verbal threats[,] and statements that he was going to kill little Clair and ‘kick his ass.’ She further testified that at about 10:00 or 10:30 a.m. on August 6, 1992, the day before her son’s death, she and [Appel-lee] fought about a past due light bill. During the fighting, little Clair began to cry and [Appellee] swore at the child and sent him to his room. Gates followed little Clair and began to play with him in his room. [Appellee] came to the doorway and continued to argue with Gates. When she refused to take immediate action on the bill, [Appellee] kicked little Clair. He then grabbed the boy by the head and threw the child, stomach down, on the bed[,] ... flipped him over and punched him in the stomach with a closed fist. Gates said she heard a cracking sound following the punch, and screamed at [Appellee] not to hit the child in that manner. [Appellee] responded, T don’t care if I kill him or not, he’s not my son.’

According to Gates, little Clair became ill in the evening of August 6, at about 11:00 p.m. and began vomiting throughout the night, and that both she and [Appellee] were up with the child.... *878The child finally fell asleep about 8:30 a.m. on Friday, August 7, 1992 and Gates left little Clair on the couch and went to bed. At approximately 10:00 a.m. that same morning, Gates heard a thud and discovered the toddler lying with his head on the top of the stairs in the apartment... .Gates noticed that little Clair was cold to the touch....

[Appellee] called 911 and the emergency dispatch sent an ambulance to the apartment. Gates testified that her concern for little Clair had finally overtaken her fear of [Appellee] so that she demanded medical treatment for the child. Gates told the technician that little Clair had fallen down the steps. When the paramedic arrived at the scene and inquired about how long the child had been unresponsive, Gates replied that little Clair had banged his head against the wall. Little Clair was transported to the Sun-bury Hospital where he was pronounced dead.

At trial, the Commonwealth’s forensic pathologist testified that little Clair sustained three areas of fatal injury: to his head, neck, and abdomen, which were inflicted at varying times before the child’s death. His head injuries included linear skull fractures, epidural hemorrhaging, and brain herniation. The extent of the damage to the brain was consistent with the child having been dropped from a multistory building. The Commonwealth pathologist testified that brain herniation was probably the cause of death, and that the head injuries were inflicted twenty-four to forty-eight hours before death. He opined that blunt force trauma caused the head injuries.

The injury to little Clair’s abdomen included blunt force trauma with damage to an abdominal artery and internal organs so severe that blood was in his abdomen. The pathologist testified that these injuries occurred twenty minutes to three hours before death. The injuries to the boy’s neck area included evidence of manual strangulation, bleeding in the ‘Adam’s Apple’ region and in front of the spinal column, consistent with ‘shaking’ baby syndrome. The child’s neck ligaments were completely torn, presumably from repeated shaking. The injuries to the front of the neck occurred within days before death, and the injuries to the spinal column occurred within minutes to hours of death.

The pathologist recounted to the jury the child’s multiple signs of blunt force trauma, manual strangulation and ‘shaking baby syndrome,’ with more than 100 distinct bruises covering his complete body. The child had bruises on his entire face, around both of his eyes and on his forehead. He had bruises around his arms, chest, abdomen, both lower legs, his back, and buttocks. The size and shape of the bruises on his back and buttocks indicated repeated blows with a fist, hand, foot, or toes. There also was a large bruise over the right side of his head covering the ear, forehead, and eye. The right eye was swollen shut. The Commonwealth showed the jury pictures of these injuries.

In addition to the testimony of Gates and the pathologist, the Commonwealth presented the testimony of several neighbors and acquaintances, who testified that they overheard [Appellee] verbally abuse the child, threaten to ‘fucking kill him’ and to ‘smash little Clair against the wall.’ One neighbor, Karen Treas, testified that she saw [Appellee] grab little Clair under the arm and back of the head, and while holding him by the hair, forcibly place him on a step in the apartment. Ms. Treas also testified that on the night of the murder, she *879heard Gates say ‘knock it off, leave him alone, that's enough.’

The Commonwealth also presented testimony that a number of witnesses, including Tamie Gates’ mother, saw little Clair with bruises that never went away and that [Appellee] would make unbelievable excuses as to the nature of the bruises. Gates’ mother testified that she became so concerned as to the bruises on the child that she had made an appointment to take the boy to the doctor just days before his death. (This appointment never materialized because Gates prevented her mother from seeing the child on the scheduled date.)

At trial, defense counsel argued that Gates, and not [Appellee], had committed the murder, pointing primarily to the time frames that the pathologist attributed to the child’s injuries and the inconsistencies in Gates’ testimony of events. Nonetheless, the jury convicted [Appellee] of the murder. Following his conviction and sentence, [Appellee] appealed to the Superior Court, which affirmed the trial court. [The Pennsylvania Supreme Court] granted review on the sole issue of whether defense counsel was ineffective for failing to request that the court instruct the jury that Ms. Gates was a ‘corrupt’ source since she was an accomplice to the murder.

Commonwealth v. Derk, 553 Pa. 325, 326-30, 719 A.2d 262, 263-4 (1998) (footnotes and citation to the record omitted).

¶ 3 Following its review, an evenly-divided Supreme Court affirmed. The Court’s Opinion in Support of Affirmance concluded that a “corrupt source” or “accomplice” instruction regarding Gates’s testimony was not appropriate under the evidence presented at trial because (1) the Commonwealth did not present evidence suggesting that Gates had actively participated with Appellee in the crimes perpetrated against the victim, and (2) there was no evidence to suggest that Gates had solicited Appellee to commit the crimes. Further, as the Opinion noted, the strategy of the defense was to convince the jury that it was Gates alone and not Appellee who killed the victim, and thus a “corrupt source” or “accomplice” instruction would have been anomalous. Id. at 332-34, 719 A.2d at 266-67. Accordingly, the divided Court affirmed the conclusion reached by the trial court that Appellee’s counsel had not been ineffective for having failed to request a “corrupt source” or “accomplice” instruction from the trial judge.

¶4 On July 13, 1999, Appellee filed a timely PCRA petition. In 2003, the PCRA court appointed present PCRA counsel to represent Appellee. PCRA counsel filed an amended PCRA petition on behalf of Appellee, alleging that trial counsel was ineffective for failing to (1) call Appellee to testify at trial; (2) discuss character witnesses with Appellee and call such witnesses to testify; (3) object to and move to strike the testimony of Gates’s mother indicating or suggesting that Appellee had “confessed” to her that he had committed the crimes; (4) object to and move to strike the testimony of Gates’s mother regarding her “suspicions” of Appellee’s guilt; (5) request a lesser-included charge of involuntary manslaughter; (6) request an inconsistent statement charge regarding Gates’s testimony; (7) request a cautionary instruction advising the jury that it could not consider Gates’s guilty plea as substantive evidence against Appellee; (8) request a corrupt source charge; (9) object to certain allegedly improper remarks made by the prosecution during its closing argument; and (10) object to the prosecution’s alleged untimely disclosure of a witness and the admission of this witness’s testimony. (Appellee’s Amended Petition for Post-Conviction Collateral Relief, dat*880ed April 29, 2004, at 3-5). Appellee also alleged that his appellate counsel had been ineffective because he had failed to raise on direct appeal the aforesaid ten claims of trial counsel ineffectiveness. (Id. at 5).

¶ 5 At the PCRA hearing, the court heard testimony regarding trial counsel’s failure to request certain jury instructions as to Gates’s testimony. Specifically, trial counsel was questioned about his failure to request a cautionary instruction regarding Gates’s agreement with the Commonwealth to plead guilty to involuntary manslaughter and, especially, conspiracy to commit involuntary manslaughter. During the course of her testimony at Appellee’s trial, Gates testified that prior to the trial, she had entered a negotiated plea agreement with the Commonwealth, the terms of which provided that she would be permitted to enter pleas of guilty to the lesser charges of involuntary manslaughter and conspiracy to commit involuntary manslaughter in exchange for her testimony against Appellee. Gates was also cross-examined regarding this agreement. Trial counsel testified at the PCRA hearing that neither he nor his co-counsel had requested a charge cautioning the jury against considering Gates’s plea agreement as evidence of Appellee’s guilt. Trial counsel also testified that he did not have a basis for having failed to request this instruction. (Notes of Testimony (“N.T.”) PCRA Hearing, 7/8/04, at 45, 48; R.R. at 1013a, 1016a).

¶ 6 Trial counsel was also questioned about his failure to request an instruction regarding a pretrial statement made by Gates that was purportedly inconsistent with her trial testimony. This statement was made in a letter written by Gates to Appellee’s mother. Although the letter was not introduced into the record, Gates read from part of the letter during her testimony as follows: “[M]ake sure you tell [Ap-pellee] that don’t plan on ... lieing [sic] on saying he did this when he didn’t.” (N.T. Trial, 9/16/93, at 184-86; R.R. at 642a-44a). Trial counsel testified at the PCRA hearing that neither he nor his co-counsel had requested a charge instructing the jury to consider Gates’s purportedly “inconsistent statement” as evidence of Ap-pellee’s innocence. Trial counsel also testified that he did not have a basis for having failed to request this instruction. (N.T. PCRA Hearing, at 51-52; R.R. at 1019a-20a).

¶ 7 The PCRA court determined on the basis of the above-recited evidence, and on its analysis of the relevant law, that Appellee had proven that a new trial was mandated because trial counsel had failed to request cautionary instructions advising the jury that it (1) could not consider Gates’s guilty plea as substantive evidence of Appellee’s guilt, and (2) could consider a purportedly inconsistent statement made by Gates to be substantive evidence of Appellee’s innocence. The PCRA court determined that the evidence that Gates had agreed to plead guilty to conspiracy to commit involuntary manslaughter was highly prejudicial to Appellee’s defense, as the other evidence showed that Gates and Appellee were the only individuals in the company of the victim during the time when the fatal blows were likely delivered. Thus, the court concluded that a cautionary instruction regarding evidence of Gates’s plea agreement was mandated. The PCRA court also determined that Appellee was entitled to an instruction emphasizing that Gates’s purportedly inconsistent statement could serve as substantive evidence of Appellee’s innocence. The court therefore concluded that counsel’s failure to have asked for these jury instructions amounted to ineffective assistance. The PCRA court further concluded that because Gates’s testimony was critical to a successful prosecution of Ap-*881pellee, as Gates was the sole eyewitness to the events leading to the victim’s death, counsel’s failure to request these two specific jury instructions regarding Gates’s testimony had not been a harmless omission.2 For these reasons, the PCRA court granted Appellee’s PCRA petition and ordered a new trial.3

¶ 8 The Commonwealth filed a timely appeal in which it presents the following two questions for our review:

I. Whether the PCRA court erred in finding that trial counsel was ineffective in failing to request a ‘guilt by association’ jury instruction regarding co[-]defendant’s [sic] guilty plea.

II. Whether the PCRA court erred in finding counsel to be ineffective for failing to request a prior inconsistent statement jury instruction under Commonwealth v. Lively and that counsel’s omission constituted prejudice.

(Commonwealth’s Brief at 4).

¶ 9 In reviewing a PCRA court’s order granting post-conviction relief due to trial counsel’s ineffectiveness, we must determine whether the court’s ruling is supported by the record and free from legal error. The PCRA court’s factual determinations are entitled to deference, but its legal determinations are subject to our plenary review. Commonwealth v. Hawkins, 586 Pa. 366, 379-80, 894 A.2d 716, 724 (2006). Further, in order to establish ineffective assistance of counsel, a petitioner must demonstrate that (1) his or her underlying claims have arguable merit; (2) counsel had no reasonable basis for the action or inaction complained of; and (3) counsel’s action or inaction prejudiced the petitioner. Id. at 374 — 75, 894 A.2d at 721. Relief on a claim of ineffectiveness of counsel is warranted only where “trial counsel’s error or omission [has] so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. at 376, 894 A.2d at 722 (quotation and citations omitted).

¶ 10 Pertinent to our inquiry here is the requirement set forth at 42 Pa.C.S.A. § 9543(a)(3) that a PCRA petitioner may not allege errors that have been “previously litigated” or waived. For purposes of Section 9543(a)(3), “an issue has been previously litigated if ... the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S.A. § 9544(a)(2). Our review of the PCRA court’s order in the instant case thus must begin with an examination of whether the claims upon which the PCRA court granted relief were claims separate from those that had been previously litigated by Appellee. If they are not, then our inquiry ends and Appellee is not entitled to relief. 42 Pa.C.S.A. § 9543(a)(3).

¶ 11 On direct appeal, Appellee litigated the issue of trial counsel’s ineffectiveness based on counsel’s failure to request a *882cautionary jury instruction concerning Gates’s testimony. More specifically, Ap-pellee argued that trial counsel had provided ineffective assistance by failing to request a jury instruction regarding Gates’s testimony as coming from a “corrupt source.” This Court reviewed and disposed of that issue and an evenly-divided Supreme Court affirmed.4

¶ 12 Subsequently, Appellee obtained PCRA relief based on findings that trial counsel was ineffective for having failed to request cautionary jury instructions concerning Gates’s testimony. Thus, Appellee has sought and received collateral relief on what appears to be essentially the same general ground raised and rejected on direct appeal, namely, whether trial counsel was ineffective for having failed to request necessary jury instructions from the trial court. Therefore, the question before us is whether the claims for which Appellee received PCRA relief are “issues” separate and apart from the issue previously litigated on direct appeal, or whether the PCRA claims are simply different “theories” supporting the previously-litigated issue of whether trial counsel was ineffective for having failed to request necessary jury instructions from the trial court.

¶ 13 As our Supreme Court noted, “the relevant statutory inquiry is the term ‘issue.’ ” Commonwealth v. Collins, 585 Pa. 45, 55, 888 A.2d 564, 570 (2005). With regard to this inquiry, the Court instructed as follows:

There is nothing in [42 Pa.C.S.A. § 9544(a)(2)] defining ‘issue’. That term, as used in ‘pleading and practice,’ is understood to mean ‘a single, certain, and material point, deduced by the allegations and pleadings of the parties, which is affirmed on the one side and denied on the other.’ BLACK’S LAW DICTIONARY, 6th ed. 831. Thus, ‘issue’ refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief. See, e.g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (defining ‘grounds’ as ‘a sufficient legal basis for granting the relief sought by the applicant’). The theories or allegations in support of the ground are simply a subset of the issue presented. Stated another way, there can be many theories or allegations in support of a single issue, but ultimately, § 9544(a)(2) refers to the discrete legal ground raised and decided on direct review. Thus, at the most basic level, this section prevents the reliti-gation of the same legal ground under alternative theories or allegations. See, e.g., Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) (concluding that a new theory in support of the same claim of trial counsel ineffectiveness was unavailing since the claim was decided adversely to petitioner in his previous direct appeal); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) (‘A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced.’).

Id. at 55-56, 888 A.2d at 570 (footnote omitted; emphases supplied).

¶ 14 In Slavik, supra, our Supreme Court held that a challenge to the validity of a guilty plea constitutes a distinct legal “ground.” Thus, it held that an argument *883on direct appeal alleging that the plea was invalid because it was based on an involuntary confession, and an argument on collateral review that the plea was invalid because the defendant had, during the plea colloquy, asserted facts suggesting his innocence, were simply different “theories” in support of one distinct legal ground, namely, a challenge to the validity of a guilty plea. Id. at 427-32, 297 A.2d at 922-24. In Wilson, supra, our Supreme Court held that when, on direct appeal, the Court had “reviewed the record and ruled that the appellant had received competent assistance of counsel rendered by an experienced trial lawyer,” the appellant could not raise on collateral review a new theory of ineffectiveness of trial counsel. Id. at 378-79, 305 A.2d at 10-11.5

¶ 15 In the present case, Appellee alleged on direct appeal that trial counsel was ineffective for having failed to request a purportedly necessary jury instruction. The theory supporting this claim was that counsel had failed to request a charge regarding a “corrupt source.” In his present PCRA petition, Appellant has alleged several more theories of ineffectiveness of trial counsel for having failed to request certain jury instructions from the trial court. However, the allegation that trial counsel was ineffective for having failed to request a jury charge regarding, for example, an “inconsistent statement” made by an adverse witness, is nothing more than a theory supporting the discrete legal ground alleging that ineffective assistance of counsel had been rendered for failure to request a necessary jury charge. Thus, pursuant to Collins and its antecedents, the two claims for which Appellee received relief under the PCRA were simply alternative theories in support of one discrete legal ground. Because this discrete legal ground was previously litigated on direct appeal, the issue cannot be, and should not have been, revisited on collateral review, where, with respect to the issues now on appeal, no more than different theories challenging the effectiveness of either trial counsel or appellate counsel were offered as a basis for relief. Therefore, we determine that the PCRA court’s grant of a new trial was in error.6

*884¶ 16 For the reasons stated above, and after careful review, we hold that the PCRA court erred by granting Appellee a new trial. Accordingly, we vacate the PCRA court’s order, and remand this matter to consider those claims made by Ap-pellee on collateral review which were not ruled upon by the court below.

¶ 17 Order vacated. Case remanded. Jurisdiction relinquished.