Commonwealth v. Derk

CONCURRING OPINION BY

BOWES, J.:

¶ 1 On September 20, 1993, Appellee, Steven C. Derk, was found guilty by a jury of first degree murder and related charges in connection with the beating death of two-year-old Clair Hoyles, III, who was the son of Appellee’s girlfriend, Tamie Gates. Gates was charged as a co-defendant in Clair’s death, and in exchange for her cooperation at Appellee’s trial, the Commonwealth agreed to allow her to plead guilty to conspiracy and involuntary manslaughter.7

¶ 2 Appellee moved in with Gates and Clair, who was Gates’s son with another man, in late May or early June 1992. They lived in a row of townhouses that were in close proximity to each other. There were independent witnesses, including neighbors and a friend, who heard Appellee berate and threaten to beat and even to kill the child. These witnesses also established that after Appellee moved in with Clair, Clair consistently began to display signs of physical abuse, including bruises and swelling. The child had never shown evidence of physical abuse before Appellee moved in with him.

¶ 3 Gates testified that she witnessed but failed to stop a beating that her son suffered at Appellee’s hands on August 6, 1992. At trial, she described this beating, which was confirmed by a graphic and disturbing autopsy report establishing that Clair displayed evidence of sustained and horrific physical abuse. Gates then failed to secure medical treatment for Clair, who died the following day. Appellee confessed to Gates’s mother that he killed the child. An independent witness, Giovani Trevor, who was Appellee’s neighbor, testified that about two to three weeks after the murder, he saw Appellee knocking on Gates’s door and overheard Appellee state, “[L]et me in or you’re next.” N.T., 9/17/93, at 262.

¶ 4 Appellee was sentenced to life imprisonment. On appeal, we affirmed the judgment of sentence and rejected numerous allegations of trial counsel’s ineffectiveness, including a claim that counsel should have asked for an instruction that Gates be considered a corrupt source as an accomplice to the crime. Commonwealth v. Derk, 454 Pa.Super. 678, 685 A.2d 207 (1996). On March 17, 1997, our Supreme Court granted limited review “to deter-mínete] whether to remand to the Court of Common Pleas of Snyder County for an evidentiary hearing to decide whether trial counsel were ineffective for failing to re*885quest a corrupt source jury instruction.” Commonwealth v. Derk, 547 Pa. 349, 690 A.2d 231 (1997). The Court subsequently issued a per curiam order wherein the evenly-divided Court affirmed. Commonwealth v. Derk, 553 Pa. 325, 719 A.2d 262 (1998). The Supreme Court concluded that since Appellee’s entire trial strategy was devoted to accusing Gates of committing the crime alone, it would have been inconsistent to ask for the corrupt source instruction thereby implying that Gates participated in the crime as an accomplice.

¶ 5 Appellee thereafter filed a timely PCRA petition. Counsel was appointed, and after a hearing on July 8, 2004, the PCRA court issued an order on June 2, 2005, granting Appellee a new trial. The court determined that trial counsel was ineffective for (1) neglecting to request a jury instruction that Appellee should not be considered guilty in light of Gates’s guilty plea to conspiracy; and (2) for not seeking a jury instruction that a prior statement made by Gates be considered as substantive evidence.8

¶ 6 The majority concludes that these issues should be considered previously litigated under the PCRA since Appellee challenged on direct appeal trial counsel’s failure to ask for a corrupt source jury instruction as to Gates’s testimony. I must respectfully disagree with my learned colleagues.

¶ 7 I certainly agree that a PCRA petitioner cannot obtain PCRA relief on the basis of an issue that has been previously litigated. Section 9544(a)(2) of the PCRA states in relevant part that “an issue has been previously litigated if ... the highest court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” In Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005), our Supreme Court observed that the term “issue” is not defined in the PCRA and proceeded to define it, thusly:

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 relitigation of the same legal ground under alternative theories or allegations.

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

¶8 In analyzing whether trial counsel was ineffective for failing to ask for a corrupt source accomplice instruction as to Gates’s testimony, the Supreme Court ruled that such an instruction was internally inconsistent with trial counsel’s strategy of placing sole blame for the baby’s death on Gates. Specifically, at trial, counsel argued that Appellee was completely innocent and that Gates alone killed Clair and was lying when she implicated Appellee. The Supreme Court ruled that “an accomplice instruction would have been inconsis*886tent with [Appellee’s] defense that he did not Ml the child, and it was a reasonable tactical consideration for trial counsel not to request an accomplice jury instruction.” Derk, supra at 333, 719 A.2d at 266 (emphasis added).

¶ 9 However, the present issue is whether counsel should have asked the jury to be instructed not to consider Gates’s guilty plea as evidence of Appellee’s guilt. This instruction is given when there is a concern that the jury may find the defendant “guilty by association” with a co-defendant who entered a guilty plea and then testifies against the defendant. See Commonwealth v. Geho, 223 Pa.Super. 525, 302 A.2d 463, 466 (1973). The “guilty by association” instruction is a completely different instruction impacting on a separate concern.

¶ 10 As noted, in this case, the trial strategy was to separate and avoid reference to Gates as an accomplice or co-conspirator. Her guilty plea to conspiracy implied that Appellee was a conspirator, and the instruction not to view it as implicating Appellee would have bolstered Ap-pellee’s defense by ensuring that the jury did not view Gates’s guilty plea to conspiracy as negating his argument that Gates acted alone. The present issue before us was not an issue decided by the Supreme Court, nor could it be considered a different theory supporting the same issue. The instruction asking that her guilty plea not be considered as evidence of Appellee’s guilt is essentially the polar opposite of the instruction that Gates’s testimony be viewed as emanating from an accomplice and, thus, a corrupt source since the former supports the defense strategy while the latter undermines it.

¶ 11 Similarly, I disagree with the majority’s conclusion regarding the previous litigation of counsel’s ineffectiveness for not asking for the instruction as to Gates’s prior statement. The evidentiary impact of the prior inconsistent statement and whether the jury should have been instructed on its evidentiary value was not a point presented on direct appeal. It is a discrete legal question that cannot be understood as an alternative theory of relief involving the same question as the corrupt source instruction.

¶ 12 While I disagree that these questions were previously litigated, I do agree with the majority that the PCRA court erred in granting a new trial. To establish entitlement to a new trial based on an allegation of ineffectiveness of trial counsel, a PCRA petitioner must establish:

“(1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). The failure to satisfy any prong of this test will cause the entire claim to fail. See Commonwealth v. Bridges, 584 Pa. 589, 886 A.2d 1127, 1131 (2005). Finally, “counsel is presumed to be effective and [the defendant] has the burden of proving otherwise.” Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super.2004).

Commonwealth v. Bath, 2006 PA Super 235, ¶ 7, 907 A.2d 619.

¶ 13 In the present case, Gates’s testimony was corroborated by other overwhelming evidence of Appellee’s guilt. Appellee made a statement admitting that he killed the child that was overheard by an independent witness. Independent witnesses established that Appellee started to beat the child soon after moving in with him, one witness actually saw an assault on the two-year-old, and other witnessed heard Appellee threatened to beat and *887even to kill the child. Appellee confessed to Gates’s mother. In my view, there is no reasonable probability that an instruction not to view Gates’s guilty plea as evidence of Appellee’s guilt would have changed the verdict at trial.

¶ 14 My conclusion is the same regarding the charge on the prior inconsistent statement. The jury was presented with evidence that Gates made a prior inconsistent statement suggesting that Appellee was innocent. Appellee maintained that trial counsel should have asked that the jury be informed this statement could be considered as substantive evidence. Meanwhile, there is no reason to believe that the jury would fail to consider this statement, along with the other evidence it received, as substantive evidence. Indeed, it is necessary to inform the jury of the converse: if a prior inconsistent statement is introduced but cannot be considered as substantive evidence, the jury must be instructed not to consider that statement as evidence. See generally Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992); Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In my view, it was unnecessary for the jury to be instructed to do something that it already does, i.e., consider all the evidence presented as substantive evidence.

¶ 15 For the above reasons, I would vacate the order of the PCRA court, and remand for consideration of the remaining issues raised by Appellee.

. Following Appellee's trial, Gates's plea agreement was rejected by the trial court, and she was convicted at a jury trial of third degree murder, aggravated assault, and endangering the welfare of children.

. In the statement, Gates implied that Appel-lee did not kill Clair.