Com. v. Alexander

• Citation: 432 A.2d 182,495 Pa. 26
• Parties: COMMONWEALTH of Pennsylvania, v. James Bernard ALEXANDER, a/k/a Bernard Alexander.
• Decision Date: 08 July 1981
• Court: Pennsylvania Supreme Court

Page 182

432 A.2d 182

495 Pa. 26

COMMONWEALTH of Pennsylvania, v. James Bernard ALEXANDER, a/k/a Bernard Alexander.

Supreme Court of Pennsylvania.

Submitted Jan. 19, 1981.

Decided July 8, 1981.

[495 Pa. 27] Arthur Henry James (Court-appointed), Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Garrold Tennis, Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION

LARSEN, Justice.

Almost twenty-seven years ago, on June 28, 1954, appellant James Alexander, pleaded guilty to murder generally and to three counts of aggravated assault and assault with intent to kill. ¹ He was sentenced by the Honorable Joseph Sloan, Court of Common Pleas of Philadelphia County, to ten to twenty years for murder of the second degree and to three and one-half to seven years for each aggravated assault count. The sentences were to run consecutively, and totalled twenty and one-half to forty-one years. Appellant did not file a direct appeal from the judgments of sentence. However, he has filed no less than six petitions for relief under the Post-Conviction Hearing Act, Act of January 25, 1966, 19 P.S. §§ 1180-1 1180-12.

In his first PCHA petition, filed January 23, 1966, appellant asserted the judgments of sentence were invalid because he was prosecuted and sentenced by a "religious establishment", in violation of the First and Fourteenth Amendments to the United States Constitution, because the prosecutor and the judge swore oaths of office which asserted a belief in God. This petition was denied without a hearing, and the denial was affirmed by this Court in Commonwealth v. Alexander, 426 Pa. 360, 231 A.2d 290 (1967).

The second PCHA petition was filed four weeks later on July 20, 1966. This petition asserted that perjured testimony had been introduced at the coroner's inquest; that an unsworn statement had been read into evidence at the guilty plea hearing; that the complainant did not testify at the hearing and the appellant could not, therefore, cross-examine him; that the court refused to hear a certain defense witness; that the court "commented that his attorneys did business for the guilty plea"; and that appellant was denied effective assistance of counsel. A third petition was filed November 16, 1966 alleging that the guilty plea was induced involuntarily and unknowingly and that appellant was denied his right to appeal from the guilty plea. The record is unclear as to the exact disposition of the second and third petitions. However, appellant's brief indicates that a Supreme Court memorandum of December 29, 1966 determined that the original (second) petition had been abandoned and that review of the third was premature. Brief for Appellant at 3.

July 24, 1968 witnessed the filing of appellant's fourth petition. The claims therein included: denial of right to appeal; the unlawful inducement of the guilty plea; the "perjured testimony" at the coroner's inquest; the "unsworn testimony" at the guilty plea; and the court's refusal to hear a certain witness for the defense. A full evidentiary hearing was held on December 18, 1968, following which the Honorable Joseph Sloan denied the petition. Again, appeal was brought to this Court and, again, we affirmed. Commonwealth v. Alexander, 435 Pa. 33, 255 A.2d 119 (1969).

Petition number five July 9, 1969. Appellant there asserted his sentence had been incorrectly computed. Another hearing was held, on March 18, 1970, and the relief requested a recomputed sentence was granted.

This brings our story almost up to date. Appellant filed a motion to withdraw guilty plea on October 12, 1978 (more than 24 years after it was entered) and a motion to vacate sentence on December 12, 1978. These motions were consolidated and treated as another PCHA petition his sixth to date! This petition alleged: appellant's "arrest was invalid as he was not arraigned until nine hours after his custody and was not given an opportunity to speak to his attorney during this time"; that he was denied an opportunity to present a witness; that he was denied an opportunity to cross-examine and confront the complainant; that he was denied effective assistance of counsel; that the guilty plea was invalid; that he was denied the opportunity to testify in mitigation of his sentence; that there was no voluntary or knowing waiver of his "constitutional rights"; and that the sentence was excessive and severe under the circumstances. The Honorable Edward Blake denied the petition without a hearing on the grounds that all of appellant's claims had either been finally litigated or waived. Mr. Alexander now appeals that denial to this Court, asserting the PCHA court (the latest one) has abused its discretion in denying the petition without hearing.

The starting point in any review or consideration of multiple PCHA petitions must be section 1180-5(b) of the PCHA which provides:

Any person desiring to obtain relief under this act shall set forth all of his then available grounds for such relief for any particular sentence he is currently serving in such petition and he shall be entitled to only one petition for each such crime. The failure to raise any such issue in such petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented. 19 P.S. § 1180-5(b). (emphasis added)

Thus, the PCHA explicitly contemplates a single post-conviction proceeding in no uncertain terms. As Mr. Justice Flaherty pointed out in his dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431, 437 (1978), joined by Mr. Justice Kauffman, "a second post-conviction appeal should be the exception, not, as is presently the case, the rule."

Furthermore, section 1180-9 provides the PCHA court may deny a hearing on a petition if the petitioner's claim is "patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held...." Clearly then, the PCHA contemplates that a second (or greater number of) petition(s) is the exception and the decision whether to dismiss such petitions without a hearing lies in the sound discretion of the PCHA court whose determination in this regard will be affirmed absent abuse. See Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978) (right to hearing not absolute) and Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977).

In this appeal, Mr. Alexander argues that the PCHA court (the latest one) did abuse its discretion in denying a hearing on and dismissing his sixth petition the court holding all issues had been either finally litigated or waived. We emphatically disagree with Mr. Alexander's argument.

A. Issues Deemed Finally Litigated

Section 1180-3 provides that, to be eligible for relief under the PCHA, a person must prove that his conviction resulted from one or more of 13 reasons enumerated in subsection (c). ² Subsection (d) further requires petitioner to prove that "the error resulting in his conviction and sentence has not been finally litigated or waived." Section 1180-4 sets forth the definition of "finally litigated":

(a) For the purposes of this act, an issue is finally litigated if:

(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling; or

(2) The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling; or

(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.

This Court has previously dealt with some of Mr. Alexander's prior petitions which raised several of the exact same issues now dragged before us for yet another go-round. These finally litigated issues are the denial of the opportunity to cross-examine and to confront his accuser (these issues, raised in the second petition, were deemed abandoned by this Court, according to appellant's brief) and the validity of the guilty plea (raised and denied in the fourth proceeding and affirmed by this Court on direct appeal). It is incredibly impudent of Mr. Alexander to come before this Court at this time to assert these same stale allegations of error. Of course, the PCHA court did not abuse its discretion in denying a hearing on these issues.

B. Issues Deemed Waived

The remaining issues were deemed waived by the lower court. Section 1180-4 provides:

(b) For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

Certainly the remaining issues of Mr. Alexander's sixth petition have long been waived by his failure to raise them in the preceding five petitions. However, appellant seeks to circumvent the effect of such waiver by bemoaning the effectiveness of counsel at his first, fourth and fifth PCHA proceedings and equating such alleged ineffectiveness with "extraordinary circumstances" within the meaning of section 1180-4(b)(2). Before we determine whether appellant has alleged such "extraordinary circumstances", it is necessary to explore the role that ineffective assistance of counsel allegations have played in prior similar determinations.

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