737 A.2d 214 (Pa. 1999), Commonwealth v. Fahy

Citation:737 A.2d 214, 558 Pa. 313
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Henry FAHY, Appellant.
Case Date:August 27, 1999
Court:Supreme Court of Pennsylvania

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737 A.2d 214 (Pa. 1999)

558 Pa. 313

COMMONWEALTH of Pennsylvania, Appellee,


Henry FAHY, Appellant.

Supreme Court of Pennsylvania

August 27, 1999.

Submitted April 15, 1999.

Reargument Denied Oct. 4, 1999.

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Robert Brett Dunham, Philadelphia, for Henry Fahy.

Catherine Marshall, Philadelphia, Robert A. Graci, Office of Atty. Gen., for Com.



CAPPY, Justice.

This is a direct appeal 1 from the order of the Philadelphia Court of Common Pleas which denied Appellant Henry Fahy's request for relief pursuant to the Post Conviction Relief Act ("PCRA"). 2 For the reasons that follow, we affirm the order of the PCRA court dismissing Appellant's fourth petition for collateral relief.

Sixteen years ago, in 1983, a jury convicted Appellant of murder in the first degree, rape, burglary, and possession of an instrument of crime. These convictions arose from the brutal murder and rape of 12-year old Nicoletta "Nicky" Caserta. The jury found that three aggravating circumstances outweighed two mitigating circumstances and sentenced Appellant to death. 3 This court affirmed Appellant's

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conviction and sentence on October 21, 1986. 4

Appellant filed a pro se petition for collateral review under the Post Conviction Hearing Act in 1986, but took no further action on the petition. The petition was dismissed the following year. Thereafter, in November 1991, the Governor of Pennsylvania signed a warrant for Appellant's execution, scheduled for the week of January 13, 1992. On January 7, 1992, counsel retained by Appellant filed a petition for stay of execution and appointment of counsel with this court. The petition asserted that trial counsel had been ineffective for failing to challenge the aggravated circumstance of torture. This court remanded the matter to the Court of Common Pleas for a hearing as to the torture issue. On September 14, 1992, a hearing was held and the PCRA court denied relief. On July 1, 1994, this court affirmed the denial of collateral relief. Commonwealth v. Fahy, 537 Pa. 533, 645 A.2d 199 (1994).

The Governor signed a second death warrant on May 19, 1995. On July 7, 1995, this court granted a stay to permit Appellant thirty days in which to file another petition for collateral relief. Appellant filed his third petition on August 4, 1995. In this petition, Appellant claimed, inter alia, that he suffered from mental illness and expert testimony should have been presented to prove an additional mitigating circumstance in the penalty phase of his trial. The PCRA court found, in part, that the jury had, in fact, found both relevant mitigating circumstances regarding mental disturbance and substantial impairment without the need of an expert opinion. The PCRA court denied Appellant's third petition on October 25, 1995. Appellant appealed to this court.

While his appeal was pending before our court, Appellant, on December 5, 1995, personally petitioned the PCRA court to allow him to waive all collateral proceedings and to withdraw all appeals so that his death sentence could be carried out. Appellant's counsel, on March 22, 1996, filed a motion for the PCRA court to determine Appellant's competency to waive his rights. On July 17, 1996, this court ordered a remand "for a colloquy to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and to waive all collateral proceedings."

Appellant came before the PCRA court for a waiver colloquy on August 2, 1996. At that time, Appellant stated that he desired an additional week to consider his decision. Appellant's request was granted and after a week, Appellant returned to the courtroom at which time he indicated that he desired to withdraw all his appeals. Appellant was colloquied regarding his understanding of the waiver of his rights. Appellant was specifically asked if he had an opportunity to speak to attorneys from the Center for Legal Education, Advocacy & Defense Assistance ("CLEADA") during his week of reflection. Appellant indicated that he had and even though he recently signed a document indicating that he desired CLEADA to represent him, he had changed his mind and did not want CLEADA representation. The PCRA court concluded that Appellant was competent to waive his right to collateral review and appellate proceedings. Appellant's counsel from CLEADA then filed an appeal to this court, alleging that Appellant did not want to waive his rights to collateral and appellate review.

On September 17, 1997, this court unanimously held that Appellant had knowingly renounced all collateral or appellate proceedings in the August 1996 colloquy. Commonwealth v. Fahy, 549 Pa. 159, 700 A.2d 1256 (1997). Nine days later, CLEADA,

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ostensibly on behalf of Appellant, filed an application for reargument that was subsequently denied.

On November 12, 1997, CLEADA filed in Appellant's name a fourth petition for collateral relief. By Memorandum Opinion dated December 29, 1997, the PCRA court dismissed Appellant's PCRA petition on two grounds: failing to set forth a prima facie case that a miscarriage of justice occurred and timeliness. A notice of appeal was filed on January 23, 1998. We now consider the denial of Appellant's most recent petition.

In his brief to this court, Appellant raises twenty-one issues. 5 Before addressing the numerous issues raised in the petition, however, we must, as a threshold matter, determine whether the petition should be dismissed as untimely.

On November 17, 1995, the General Assembly amended the PCRA to require, as a matter of jurisdiction, that all PCRA petitions must be filed within a certain

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period of time after judgment. Specifically, the amendments require that any PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final ...." 42 Pa.C.S. § 9545(b)(1). A judgment becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3).

In the case sub judice, Appellant's judgment of sentence became final on January 19, 1987, that is, upon the expiration of the 90-day period for seeking appellate review to the United States Supreme Court of this court's October 21, 1986 order affirming conviction and judgment of sentence. 6 Since the date of the final judgment was January 19, 1987 and this latest PCRA petition was filed some 11 years later on November 12, 1997, it was obviously beyond the PCRA's one-year time limitation.

However, this is not the end of our inquiry because the amendments contain certain exceptions regarding the filing of a petition that fails to satisfy section 9545(b)(1). First, where the judgment becomes final on or before the amendments' effective date, a petition will be deemed timely if the petitioner's first petition is filed within one year of the effective date of the amendments. 7 The effective date of the amendments was January 16, 1996. In the appeal before us, the date the judgment became final preceded the effective date of the amendments. However, as this is Appellant's fourth petition for collateral relief, Appellant does not qualify for this exception which only applies to a first PCRA petition. Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (1998). We note that even if it was Appellant's first petition, he would still not be entitled to relief because his petition was filed more than one year after the effective date of the amendments.

The amendments contain three other exceptions to the one-year limitation noted above. An otherwise untimely petition may nevertheless be considered if the petition alleges and the petitioner proves that:

(i) The failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) The facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) The right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time provided in this section has been held by that court to apply retroactively.

(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2).

As stated in the amendments, it is for the petitioner to allege in his petition and to prove that he falls within one of the exceptions found in § 9545(b)(1)(i)-(iii). Appellant attempts to invoke only the exception found in 42 Pa.C.S.A. § 9545(b)(1)(i) by offering that his failure to raise his claims previously was the result of interference by government officials. 8 According to Appellant, he was

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subject to "threats and harassment" by his guards and that this resulted in Appellant renouncing all appeals and collateral review.

First, the assertion that his guards influenced the validity of Appellant's waiver was previously litigated and rejected by this court. On appeal from the PCRA court's determination that Appellant's waiver was valid, Appellant specifically argued that his decision to waive appellate and collateral review was motivated by abuse and harassment by his guards, i.e., the conditions of his incarceration. This court nevertheless found Appellant's...

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