Com. v. Abu-Jamal

Decision Date08 October 2003
Citation833 A.2d 719,574 Pa. 724
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Mumia ABU-JAMAL, a/k/a Wesley Cook, Appellant.
CourtPennsylvania Supreme Court

J. Michael Farrell, Marlene Kamish, pro hac vice, Nicholas Brown, pro hac vice, Eliot Grossman, pro hac vice, for Mumia Abu-Jamal.

Michael Coard, Philadelphia, for amicus curiae Rocky Mountain Human Rights Law Group, International Longshore and Warehouse Union, et al.

Hugh J. Burns, Amy Zapp, for Commonwealth of Pennsylvania.



Justice EAKIN.

Mumia Abu-Jamal appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.1

The PCRA court aptly set forth the procedural history of the case:

On December 9, 1981, Philadelphia Police Officer Daniel Faulkner was shot and killed while on duty in Center City Philadelphia. [Appellant] Wesley Cook a/k/a Mumia Abu Jamal was arrested at the scene, taken to the hospital, then taken to Police Headquarters where he was charged and held for trial in the murder of Officer Faulkner.
Anthony Jackson, Esq., was appointed to represent [appellant] at trial. [Appellant] was also permitted to represent himself at various stages of the proceedings with Jackson acting as backup counsel.
On July 2, 1982[,] following a jury trial, the Honorable Albert F. Sabo presiding, [appellant] was convicted of murder in the first degree and related offenses. On July 3, 1983, following the penalty phase of the trial, the same jury sentenced [appellant] to death.
A direct appeal was timely field. Marilyn Gelb, Esq. was appointed as appellate counsel. [This Court] affirmed [appellant's] judgment of sentence. The United States Supreme Court denied certiorari and two petitions for rehearing. The direct appeal process concluded on June 10, 1991.
On July 5, 1995, Leonard Weinglass, Esq., and Daniel R. Williams, Esq., who had been retained by [appellant], filed a [PCRA] petition on his behalf in the Court of Common Pleas. In 1995, there were no time limitations for filing of PCRA petitions. As is the usual procedure, the trial judge, the Honorable Albert F. Sabo, presided over hearings on that first petition, during which [appellant] was permitted to present evidence. Following these proceedings, post conviction relief was denied. Pending appeal to [this Court], [appellant] filed three separate requests for remand to the trial court. These applications encompassed requests for opportunities to present further testimony, requests for discovery, requests to submit a videotape allegedly relevant to Batson issues, and requests to reassign the case to another judge. Twice, remand was granted for the purpose of including additional testimony in the record. Other requests were denied, and both the trial court and [this Court] declined PCRA relief. The Supreme Court of the United States denied certiorari on October 4, 1999.
On October 15, 1999, [appellant] filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. He also requested that Leonard Weinglass, Esq., and Daniel R. Williams, Esq., be removed from the case. On April 6, 2000,2 these attorneys were allowed to withdraw from federal court proceedings. New counsel ... entered their appearances. On May 4, 2001, they filed a motion in federal court requesting an order authorizing the deposition of Arnold Beverly, who in 1999 confessed to Officer Faulkner's murder. On July 19, 2001, the Honorable William H. Yohn, Jr., U.S.D.J., issued a memorandum and order denying the motion. Meanwhile, on July 3, 2001, [appellant] filed this, his second PCRA petition, in the Philadelphia Court of Common Pleas. The petition was accompanied by a motion to admit [appellant's] attorneys... pro hoc vice, requests for 286 items of discovery and a request for depositions of ten persons. [Appellant] also filed a motion in federal court requesting that federal habeas proceedings be held in abeyance pending the resolution of the PCRA petition.3
Following a reply by the Commonwealth, a status hearing was held before the [PCRA court] and counsel were directed to provide the [c]ourt with briefs on two specific issues:
1.) whether the [c]ourt had jurisdiction to entertain the PCRA petition; and

2.) whether a hearing was necessary for any purpose.

PCRA Court Opinion, 11/21/01, 1-5 (citations and footnotes omitted). After considering the briefs on these issues, the PCRA court concluded it lacked jurisdiction to entertain appellant's petition4 because it was untimely. Accordingly, the court issued notice of its intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 909, and denied relief. This appeal followed.

On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001). Before addressing the merits of appellant's claims, we must determine the propriety of the PCRA court's dismissal of appellant's petition as untimely. See id., at 97. The PCRA's timeliness requirements are jurisdictional in nature and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (1998).5 Furthermore, merely filing a petition in a capital case or couching claims in ineffectiveness terms does not save an untimely petition. Breakiron, at 97 (citing Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374, 376 (1999)).

The PCRA requires 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) (emphasis added). A judgment becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and [this Court], or at the expiration of time for seeking the review." Id., § 9545(b)(3). In cases where the judgment of sentence was final prior to the 1995 enactment of the timeliness requirement, a first petition is considered timely if filed within one year of the effective date of the enactment. See Act of November 17, 1995, P.L. 1118, No. 32 (Spec.Sess. No. 1), § 3(1); Peterkin, at 641. However, there is no grace period for filing subsequent PCRA petitions. Id.; see also Commonwealth v. Crawley, 559 Pa. 9, 739 A.2d 108, 109 (1999).

Appellant's judgment of sentence became final June 10, 1991. He did not file his second PCRA petition until July 3, 2001, clearly beyond the one-year time limit. Therefore, appellant's PCRA petition is untimely, unless he can prove one of the exceptions in the Act: (i) the failure to raise the claim previously was the result of unconstitutional interference by government officials; (ii) the discovery of new evidence that could not have been previously ascertained with due diligence; or (iii) the recognition of a new constitutional right that has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition alleging one of these exceptions must be filed within 60 days of the date the claim could have been presented. Id., § 9545(b)(2).

Appellant first asserts the governmental interference exception; he cites prior PCRA counsels' alleged failure to investigate or present certain claims, most significantly, the claim that a supposed "hit man," Arnold Beverly, confessed in 1999 to being the killer. Appellant concedes § 9545(b)(4) specifically excludes defense counsel from the definition of "government officials," Appellant's Brief, at 38, but claims because counsels' actions in effect served the Commonwealth, and not appellant, they were "acting" as agents for the government and their actions should be attributed to the Commonwealth. Id., at 38-39, 739 A.2d 108.

The PCRA court noted, "In any case where defense counsel has made an error or has chosen a strategy that is unsuccessful, the Commonwealth is arguably the beneficiary. Under [appellant's'] reading of the [PCRA], defense counsel could be treated as agents of the Commonwealth in any case where a [defendant] is not acquitted." PCRA Court Opinion, 11/21/01, at 11. Such a contorted notion cannot be accepted. The Commonwealth, having the obligation to seek justice, is not a "beneficiary" of poor defense lawyering, certainly not to the extent that defense counsel can be deemed agents of anyone but the defendant.

Appellant's claim is, in reality, a thinly veiled ineffectiveness claim, and this Court has rejected such attempts to circumvent the timeliness requirement by asserting prior counsel's ineffectiveness for failure to raise an issue. "Claims relating to ineffectiveness of counsel for failing to raise certain issues do not qualify due to the specific provision in 42 Pa.C.S. § 9545(b)(4) that the term `government officials' does not include defense counsel." Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 916 (2000); see also Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 587 (1999) ("[T]he drafters of the 1995 amendments specifically excluded `defense counsel' from such officials. 42 Pa.C.S. § 9545(b)(4). Therefore, Section 9545(b)(1)(i) does not operate to save appellant's claims of ineffective assistance of counsel from the bar of untimeliness."). Appellant has failed to meet the governmental interference exception.

Alternatively, appellant asserts the facts upon which his claims were predicated were unknown to him and could not have been discovered by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii). Under this exception, appellant had 60 days in which to file his PCRA petition after discovering new and important...

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