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Commonwealth v. Brown4/29/2005
g failed to establish trial counsel's ineffectiveness for each issue raised on appeal, Appellant cannot satisfy the arguable merit prong of the Pierce test regarding the ineffectiveness of appellate counsel. In light of this determination, a remand is not warranted here.
Pursuant to McGill and Rush, the first claim of appellate counsel ineffectiveness involves the issue of whether trial counsel was ineffective for failing to procure the decedent's (Appellant's father's) criminal history (Argument II). Appellant also argues that appellate counsel was ineffective for not challenging trial counsel's failure to raise a Brady violation when the Commonwealth failed to disclose the decedent's criminal history to defense counsel.
In examining these claims of appellate counsel ineffectiveness, we must determine whether Appellant satisfied the three prongs of Pierce as to trial counsel's performance. We find that he did not. It is undisputed that the Commonwealth provided the defense with the decedent's criminal record dating back to 1973, which included a 1973 conviction for violating the Uniform Firearms Act, and two convictions in 1973 and 1974 for driving under the influence of alcohol.
Appellant argues, however, that the Commonwealth failed to disclose the decedent's 1930 Ohio conviction for robbery, his 1946 conviction for carrying a concealed deadly weapon, his 1953 conviction for a violation of the Uniform Firearms Act, and several drunk driving convictions from the 1950's and 1960's. Appellant contends that these convictions would have supported his claim of self-defense. In support of this allegation, Appellant relies upon a declaration of trial counsel, wherein counsel states that, had he been provided a complete criminal history of the victim, he would have investigated the background of the prior offenses and would have presented this material to the jury in support of his theory of self-defense and also as mitigation evidence in the penalty phase. Declaration of Daniel Greene, Appendix of Exhibits to Initial Brief of Appellant, Exhibit 5.
The Commonwealth persuasively argues that it has no obligation to provide a defendant with his victim's criminal history, particularly where, as here, that record is equally accessible to the defense and the victim is the defendant's father. See Commonwealth v. Spotz, 756 A.2d 1139, 1154 (Pa. 2000) (stating that there is no Brady violation where the prosecutor failed to turn over evidence readily obtainable by, and known to, defendant). Moreover, because the convictions are alleged to be relevant only to the self-defense claim, Appellant himself would have had to have knowledge of them. If he did not, then the previous convictions would have no bearing on his self-defense claim. As there was no Brady violation, there was no basis for trial counsel to raise such issue. Accordingly, Appellant has failed to satisfy the arguable merit prong of the Pierce test as to trial counsel's ineffectiveness and, therefore, the claim of appellate counsel ineffectiveness fails.
The related claim of appellate counsel ineffectiveness for not challenging trial counsel's failure to discover the decedent's criminal history on his own likewise fails. The remoteness in time of the convictions and the fact that the jury was made aware of the victim's 1973 violation of the Uniform Firearms Act, dispel any claim of prejudice. Having failed to satisfy the Pierce test as to trial counsel's performance, his claim of appellate counsel ineffectiveness is unsupportable.
The next claim of appellate counsel ineffectiveness encompasses the issue of whether trial counsel was ineffective for failing to investigate, develop, and present evid
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