Com. v. Abu-Jamal

Decision Date29 October 1998
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Mumia ABU-JAMAL, a/k/a Wesley Cook, Appellant.
CourtPennsylvania Supreme Court

Leonard I. Weinglass, David Rudovsky, Philadelphia, Daniel R. Williams, New York City, Stephen W. Hawkins, Philadelphia, Rachel H. Wolkenstein, for M. Abu-Jamal.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This is a direct appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant's petition for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA) 42 Pa.C.S § 9541 et seq. For the reasons that follow, we affirm the orders of the court below; all three of which deny Appellant post-conviction relief.

In the underlying trial, a jury found Appellant guilty of first degree murder in the December 9, 1981 shooting death of Philadelphia police officer Daniel Faulkner. Appellant was also found guilty of possession of an instrument of crime. At the conclusion of the penalty phase hearing, the jury found one aggravating circumstance, the killing of a police officer acting in the line of duty,1 and one mitigating circumstance, no significant history of criminal convictions.2 Finding that the aggravating circumstance outweighed the mitigating circumstance, the jury returned a verdict of death. Post-trial motions were ultimately denied whereupon a consecutive sentence of two and one-half to five years was imposed on the weapons offense. On direct appeal, this court affirmed the judgments of sentence. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989).

Appellant filed a petition for certiorari in May 1990 in the Supreme Court of the United States, which was denied. Appellant's original and second requests for rehearing were also denied by the Court.

On June 1, 1995, a writ of execution was signed by the Governor, setting execution for August 17, 1995. A petition for stay of execution, a petition for discovery, a petition for post-conviction relief and a petition for recusal of the Honorable Albert F. Sabo, the judge assigned to hear the PCRA petition, were then filed by Appellant.3 The PCRA court ultimately denied Appellant's request for recusal and an emergency appeal therefrom was denied by this court.

By order entered July 14, 1995, the PCRA court dismissed Appellant's motion for discovery, but granted his request for an evidentiary hearing. Then, on August 7, 1995, the PCRA court granted the request for stay of execution.

The evidentiary hearing on this matter began on July 26, 1995 and ended on August 15, 1995. On September 15, 1995, the PCRA court filed an extensive opinion detailing its findings of fact and conclusions of law and an accompanying order denying post-conviction relief. A direct appeal to this court followed.

During the pendency of that appeal, Appellant filed a petition with this court seeking a remand for the express purpose of taking additional testimony from one Veronica Jones whom the defense alleged was a "newly available witness."4 According to Appellant's petition, Ms. Jones would provide important "new" evidence that days before she took the stand as a defense eyewitness at the 1982 trial of Appellant, Philadelphia police contacted her while she was incarcerated on felony armed robbery charges and threatened and coerced her to change her testimony. It was further alleged that Ms. Jones would testify that she, indeed, succumbed to this police intimidation and accordingly altered her testimony at trial by repudiating her true eyewitness account that she saw two men flee the scene immediately after the shooting. This court ultimately entered an order remanding the matter to the PCRA court to conduct an evidentiary hearing regarding this claim. After holding a hearing thereon, the PCRA court disagreed with Appellant's contention; specifically, the court concluded that the testimony of Ms. Jones did not constitute "after-discovered evidence." Alternatively, the court ruled that even assuming such testimony were to be incorporated into the record, her testimony was of such an incredible nature that it would provide no relief to Appellant. Subsequently, Appellant filed two additional applications for remand with this court. In those applications Appellant sought a variety of relief, including, first, a remand for the express purpose of eliciting the testimony of one Pamela Jenkins who would allegedly provide further support for Appellant's claim of police intimidation and/or coercion of witnesses and whose testimony would allegedly demonstrate that the prosecution had withheld pertinent information from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant also asserted a request for additional discovery, including specifically, discovery of both the prosecution and police files in their entirety, and a request that the matter be reassigned to a different judge on remand. Finally, Appellant sought a remand to supplement his Batson5 claim based upon a videotape released after his trial which allegedly demonstrates the Philadelphia District Attorney Office's policy of systematically striking African-American venirepersons in violation of Batson.6

By order dated May 30, 1997, this court granted Appellant's request for a second remand for the limited purpose of taking additional testimony with respect to Pamela Jenkins, but denied his request for a new post-conviction judge as well as his requests to supplement his Batson claim with the videotape and to take discovery regarding that claim. After hearing, the PCRA court issued an opinion and order concluding that this additional testimony did not warrant post-conviction relief. This appeal followed.7

The circumstances surrounding the killing were stated by this court in our opinion on direct appeal as follows:

The evidence presented at trial established that at approximately 3:55 a.m. on December 9, 1981, Officer Faulkner made a routine car stop on Locust Street between Twelfth and Thirteenth Streets in Center City Philadelphia. The car was driven by the appellant's brother, William Cook. After making the stop, Officer Faulkner called for assistance on his police radio, requesting a police wagon to transport a prisoner. While Faulkner was trying to handcuff Cook, the appellant ran from across the street and shot the officer once in the back. Faulkner was able to fire one shot, which wounded the appellant, but after Faulkner had fallen to the ground the appellant shot him four more times at close range; once through the center of the face. The appellant was found slumped against the curb in front of Cook's car and taken into custody by police officers who arrived on the scene within thirty to forty-five seconds. The officers had been in the area and were turning onto Locust Street from Twelfth Street in response to Faulkner's radio request. They were flagged down by a cab driver who had witnessed the shooting while stopped at the intersection of Thirteenth and Locust. Two other pedestrians also witnessed the incident and identified the appellant as the perpetrator, both at the scene and during the trial.

Abu-Jamal, 521 Pa. at 193-194, 555 A.2d at 848.

To be eligible for collateral relief, Appellant must satisfy the dictates of the PCRA, which, at the time of the filing of Appellant's PCRA petition, provided in relevant part as follows.8 Sections 9543(a)(2), (3) and (4) required that Appellant plead and prove by a preponderance of the evidence:

(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(iv) The improper obstruction by Commonwealth officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.
(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.

Thus, the first inquiry is whether the allegation of error has been previously litigated. Relevant to Appellant's petition, section 9544(2) provides that an issue is deemed "previously litigated" where "the highest appellate court in which the...

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