Com. v. May

898 A.2d 559

COMMONWEALTH of Pennsylvania, Appellee, v. Freeman MAY, Appellant.

Supreme Court of Pennsylvania.

Submitted May 25, 2004.

Decided May 25, 2006.

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Stuart Brian Lev, Esq., Philadelphia, for Freeman May.

Amy Zapp, Esq., Deirdre Ann Eshelman, Jonelle Harter Eshbach, Esq., Harrisburg, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, and BALDWIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NEWMAN.

Freeman May (May) appeals from an Order of the Court of Common Pleas of Lebanon County (PCRA court) denying his Petition for Post-Conviction Relief pursuant to the Post-Conviction Relief Act¹ (PCRA). For the reasons set forth herein, we affirm in part and reverse in part the decision of the PCRA court. Because we conclude that the trial court erred during the 1995 re-sentencing hearing, we vacate the Judgment of Sentence and remand the matter for a new penalty phase.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history herein recapitulated are taken in large part from our Opinions in this case on direct appeal, Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335 (1995) (May I), and Commonwealth v. May, 551 Pa. 286, 710 A.2d 44 (1998) (May II), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 676 (1999). In 1988, in a remote wooded location in Lebanon County, a man discovered human skeletal remains buried under logs, brush, and leaves. Dr. Neil A. Hoffman (Dr. Hoffman), a forensic pathologist, determined that the remains were those of Kathy Lynn Fair (Fair), whose sister had reported her missing on September 4, 1982, when Fair did not show up for an outing. Dr. Hoffman concluded that the cause of death was multiple stab wounds inflicted by a short, single-edged weapon, most likely a knife.

The police arrested May in 1990, and the Commonwealth charged him with the murder of Fair. At trial, Detective Michael F. Wahmann (Detective Wahmann) testified that, at the time the remains of Fair were discovered, he remembered an incident that occurred in December of 1982. In that series of events, two girls, G.S. and S.S., who had accepted rides from May, were stabbed with a short, folding single-edged knife and left for dead not far from the place where Fair's remains were ultimately discovered; both G.S. and S.S. survived the attack. In addition, one of the young women had been raped. The Commonwealth had charged May with two counts each of attempted murder,² aggravated assault,³ and reckless endangerment of another person,⁴ and one count of rape.⁵ A jury convicted May of all crimes charged in connection with the December 1982 assaults.

Stanley May (Stanley), May's brother, testified that May came to his house on December 17, 1982, and confessed to him that he had stabbed a girl and buried her in the brush several months prior, and had done it again the night before. Stanley also stated that May always carried a folding buck knife, which is a short, sturdy, single-edged knife. Denise DeHaven (DeHaven) May's wife, stated at trial that when she visited him in jail in connection with the 1982 rape and assaults, May told her that he had hurt another girl and buried her under leaves and bushes in the woods. Subsequently, May wrote letters to DeHaven reiterating the same story. Thomas W. Fryberger (Fryberger), an acquaintance of May, testified that May had taken him and two girls up to a wooded location; Fryberger later took a state police trooper to that location, which is where Fair's remains were eventually found. Charles W. Neidig (Neidig), an inmate at the prison where May was incarcerated, testified that he had a conversation with May in the prison yard when May returned from a hearing held in connection with the rape and assault convictions. May indicated to Neidig that the hearing did not go very well because the police were going to be able to "put a body on him" and that he "did it."

Following trial, a jury convicted May of first-degree murder⁶ in connection with the stabbing death of Fair. After a separate penalty hearing, the jury found the existence of one aggravating circumstance, that the killing was committed while May was perpetrating a felony,⁷ namely rape, and one mitigating circumstance, that he had no significant history of prior criminal convictions.⁸ The jury determined that the aggravating circumstance it found unanimously outweighed the mitigating circumstance and, consequently, the trial court sentenced May to death. On direct appeal, this Court affirmed the conviction, but reversed the sentence, concluding that the jury could not properly consider whether May committed murder while in the perpetration of a rape because the court never instructed the jury on the elements of rape. May I, 656 A.2d at 1344-45. Accordingly, we remanded the matter for a new penalty phase. Mr. Justice Castille filed a dissenting opinion, in which he opined that, despite the jury's statement that the predicate felony was rape, the predicate felony was in fact attempted rape, a crime on which the court did charge the jury.

The trial court conducted the second penalty hearing on December 4, 1995, at which time the new jury found one aggravating circumstance, a significant history of felony convictions involving the use or threat of violence to the person,⁹ and no mitigating circumstances. The trial court imposed a sentence of death pursuant to 42 Pa.C.S. § 9711(c)(1)(iv), which requires a death sentence if the jury finds at least one aggravating circumstance and no mitigating circumstances. On September 19, 1996, the trial court denied post-trial motions, prompting a direct appeal to this Court. We affirmed the Judgment of Sentence, concluding, inter alia, that May was not entitled to an instruction that life means life without the possibility of parole because May's future dangerousness was not at issue. See May II, 710 A.2d at 46-47 (citing Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)). Then-Chief Justice Zappala and Mr. Justice Nigro filed concurring opinions, both reiterating their views that the jury should be provided with a "life means life" instruction in every death penalty case. See Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 43-44 (1998) (Zappala, C.J.E., concurring; Nigro, J., concurring).

On February 18, 1999, Petitioner initiated PCRA proceedings by filing a pro se form Petition and motions for stay of execution and appointment of counsel. Pro bono counsel subsequently filed an amended PCRA Petition, raising more than a dozen substantive issues. By Order dated April 12, 2001, the PCRA court denied relief on all of May's issues, except for his contention that trial counsel were ineffective for failing to investigate, develop, and present mitigating evidence of May's allegedly traumatic childhood, on which the court granted an evidentiary hearing. Initial Brief of Appellant, Appendix 2 at 1-3. Following the evidentiary hearing, by Order dated March 26, 2003, the PCRA court denied relief on the sole remaining issue and dismissed the PCRA Petition. May has appealed the denial of PCRA relief to this Court.

DISCUSSION

May raises numerous contentions, some stemming from his 1991 trial and direct appeal therefrom, and others arising from the 1995 re-sentencing. For clarity of discussion, we have renumbered, reordered, and regrouped the arguments, dealing first with the 1991 guilt phase and then with the 1995 penalty phase. Because we ultimately grant May relief in the form of a new penalty phase, many of his allegations of error from that proceeding are rendered moot and, therefore, unreviewable.

Issue 1 — Testimony of Detective Hogan and Barbara Turner

May first contends that his appellate counsel¹⁰ were ineffective for failing to appeal the decision of the trial court to disallow his attempt to present the Investigative Report of Lancaster County Police Detective Charles Hogan (Detective Hogan). To demonstrate ineffective assistance of counsel, one must show that (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) 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) (using the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel will not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649 (2001).

Following Fair's disappearance in 1982, the Lancaster County Police assigned Detective Hogan to investigate the missing persons report. For more than two years, Detective Hogan compiled a report containing several statements from persons who claimed that they had seen Fair after December 19, 1982, the date on which May was arrested and incarcerated for the rape and attempted murder of G.S. and S.S. See, e.g., Initial Brief of Appellant, Appendix 4 at 14 (report of interview with David James Cunningham (Cunningham), who stated that he had known Fair for eight or nine years and had observed her driving by him in September or October of 1983); id. at 17 (report of interview with Samuel Witherspoon (Witherspoon), who stated that he knew Fair and that she attended a party at his house in November of 1983).

During the 1991 guilt phase, trial counsel sought to introduce the Investigative Report in an attempt to demonstrate that Fair was still alive after May had been sent to jail, rendering it impossible for May to have killed her. The trial court permitted Detective Hogan to testify about the preparation of the report, but refused to allow testimony regarding the contents of the report, concluding that the individual statements contained therein were inadmissible...