Com. v. Bond

• Decision Date: 23 August 2002
• Citation: 572 Pa. 588,819 A.2d 33
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jesse BOND, Appellant.
• Court: Pennsylvania Supreme Court

819 A.2d 33

572 Pa. 588

COMMONWEALTH of Pennsylvania, Appellee, v. Jesse BOND, Appellant.

Supreme Court of Pennsylvania.

Submitted July 15, 1999.

Decided August 23, 2002.

Reargument Denied October 17, 2002.

Robert Brett Dunham, Michael Wiseman, Philadelphia, for Jesse Bond.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Commonwealth of PA.

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

OPINION OF THE COURT

Justice CASTILLE.

This is an appeal from the denial of appellant's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541 et seq. For the reasons set forth herein, we affirm the order of the PCRA court.

In February of 1993, a jury found appellant guilty of first degree murder, robbery, possessing an instrument of crime and conspiracy, and sentenced him to death. On direct appeal, this Court summarized the underlying facts as follows:

At approximately 6:39 p.m., on the evening of October 31, 1991 appellant and his codefendant, Aaron Wheeler, entered the Stop and Go Deli at 2200 North Broad Street in Philadelphia. While the codefendant acted as a look-out, appellant pointed a gun at a store employee, Yang-Jin Kim, and ordered him to open the cash register and give appellant the money. Mr. Kim called to the store manager, Jai Ho Lee, who was behind the counter. Mr. Kim went to the register and hit the "no-sale" button in order to open the drawer. Mr. Lee closed the drawer and locked the register and then threw the key on the floor. [Appellant], who was standing about four feet in front of Mr. Lee when Mr. Lee threw the key on the floor, responded by shooting Mr. Lee in the upper left side of his chest. The bullet entered the left lung and perforated the aorta, the main blood vessel to the heart, and then exited the body. Mr. Lee was pronounced dead fifteen minutes later having bled to death as a result of the gunshot. Appellant and his codefendant fled from the store after the shot was fired.

Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 310 (1995) (footnote omitted). Appellant was represented at trial by appointed counsel, James S. Bruno, Esquire, and co-counsel, Dean Owens, Esquire, of the Defender Association of Philadelphia. On direct appeal to this Court, Attorney Bruno represented appellant. On January 12, 1995, this Court affirmed appellant's conviction and sentence of death. Id.

On June 6, 1995, appellant filed the instant PCRA petition. The PCRA court, per the Honorable David N. Savitt, appointed new counsel, Ramy Djerassi, Esquire, to represent appellant, and new counsel then filed an amended petition and supplemental petitions. The court held an extensive evidentiary hearing over the course of several days where appellant was represented by both Attorney Djerassi and present PCRA appeal lead counsel, Michael Wiseman, Esquire, who at the time of the hearings was apparently affiliated with the Defender Association of Philadelphia and is now affiliated with the Capital Habeas Corpus Unit of that organization. Judge Savitt ultimately denied PCRA relief on December 10, 1997, and appellant appealed to this Court.

After the notice of appeal was filed, Attorney Djerassi motioned to withdraw from the case, noting, inter alia, that Robert Brett Dunham, Esquire, of the Center for Legal Education, Advocacy and Defense Assistance (CLEADA), had entered an appearance. Attorney Dunham, like Attorney Wiseman, is now employed by the Capital Habeas Unit of the Defender Association. This Court granted the motion to withdraw representation and CLEADA, per Attorney Dunham, filed the Initial Brief of Appellant. Thereafter, the Commonwealth, responding to a pro se filing by appellant, filed a petition in this Court seeking a remand for a colloquy to determine whether appellant desired to proceed pro se. On August 27, 1999, this Court remanded the matter for a limited hearing to determine: (1) whether appellant wished to terminate his appeal; (2) whether he wished to proceed pro se or to be represented by current counsel; and (3) whether he wished to proceed on the basis of the brief filed by counsel. After the hearing, Judge Savitt found that appellant did not wish to terminate his appeal, that he wanted to be represented by Attorney Wiseman, and that he wanted to proceed on the basis of the brief previously filed. Attorney Wiseman has since filed a reply brief on appellant's behalf. Accordingly, the matter is ripe for review.

Because appellant's initial petition in this matter was filed before January 17, 1996, the effective date of the November 1995 amendments to the PCRA, his petition is governed by the previous version of the PCRA. To be eligible for relief under that version of the PCRA, appellant must plead and prove by a preponderance of the evidence:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is:

(i) currently serving a sentence of imprisonment, probation or parole for the crime (ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

(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 would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(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.

42 Pa.C.S. § 9543(a)(1)-(4).

Many of appellant's claims are procedurally barred, i.e., they are previously litigated or waived under the PCRA, or they are waived for another reason, such as a failure to raise the claim in the PCRA court below. For purposes of clarity, this Court will not address appellant's claims seriatim, but instead will address those claims that are procedurally barred under Pennsylvania law first.

Appellant raises two claims, the substances of which were addressed by this Court on direct appeal. A claim is previously litigated under the PCRA if, inter alia, the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). In light of the PCRA's previous litigation bar, this Court will not address appellant's claim that the admission of his statement violated his state and federal constitutional rights to counsel (Argument VI) because we previously held on direct appeal that his statement was voluntarily obtained. See Commonwealth v. Bond, 652 A.2d at 311-12. Nor will we address his claim that the prosecutor's guilt phase closing argument was improper (first part of Argument IX¹), since this Court also rejected claims involving the prosecutor's guilt phase summation on direct appeal. Id. at 315-16. Appellant attempts to bring these claims challenging his statement and the prosecutor's closing before this Court a second time by recasting his theory of error and by tacking on a boilerplate allegation of ineffectiveness of all prior counsel. But, it is well-settled that a PCRA petitioner cannot obtain review of claims that were previously litigated by presenting new theories of relief, including allegations of ineffectiveness, to relitigate previously litigated claims. Commonwealth v. Bracey, 795 A.2d 935, 939 & n. 2 (Pa.2001); Commonwealth v. McCall, 567 Pa. 165, 786 A.2d 191, 195-96 (2001); Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998).

In a footnote, appellant acknowledges the settled law involving previous litigation, but argues that this Court should ignore that law because it violates state and federal constitutional rights to equal protection and is fundamentally unfair. Initial Brief of Appellant, 74 n. 24. Appellant cites no cases in support of this assertion and, indeed, fails to develop this argument in any meaningful fashion. The unconstitutionality of the PCRA provision respecting previous litigation and our settled interpretation of it, is not self-evident. Accordingly, we must reject appellant's bald assertion that the provision should not be enforced.

Even if this Court were to assume that these two...