Com. v. Bracey

Decision Date31 December 2001
Citation795 A.2d 935,568 Pa. 264
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Edward BRACEY, Appellant.
CourtPennsylvania Supreme Court

Billy Nolas, Philadelphia, for appellant, Edward Bracey.

Catherine Marshall, Philadelphia, for appellee, Com.

Robert A. Graci, Harrisburg, for appellee, Office of Atty. Gen.



Justice NIGRO.

Appellant Edward Bracey appeals from the order of the Court of Common Pleas denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541, et seq. We affirm.

On February 4, 1991, Philadelphia Police Officer Daniel Boyle attempted to stop a stolen vehicle being driven by Appellant. Appellant refused to stop the vehicle and eventually crashed into a building. Appellant immediately jumped out of the vehicle and onto the hood and roof of Officer Boyle's cruiser while brandishing a 9 mm automatic handgun. He then jumped off the cruiser, pointed his gun at Officer Boyle and instructed the officer not to touch his weapon. When Officer Boyle tried to reverse his car to remove it from the area, Appellant fired no less than eight shots into the cruiser and fled the scene. Officer Boyle died two days later. Physical evidence and several witnesses linked Appellant to the crime and one witness identified Appellant as the shooter.

On February 6, 1991, police responded to a call that a man had entered a residence and set himself on fire. Police entered the residence and found Appellant. Appellant was arrested and taken to the hospital, where he was eventually interviewed after physicians advised police that Appellant was well enough to do so. During the interview, Appellant confessed to shooting Officer Boyle. The police then recovered the murder weapon, which Appellant had disposed of in a sewer.

On March 3, 1992, a jury found Appellant guilty of murder in the first-degree, possessing an instrument of crime, theft by receiving stolen property and criminal trespass. Following a penalty hearing, the jury found two aggravating circumstances1 and no mitigating circumstances and accordingly, fixed Appellant's penalty at death. Appellant filed post-trial motions, which were denied. Appellant's trial counsel then withdrew from representation, and Appellant was appointed new counsel for purposes of his direct appeal. On July 21, 1995, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062 (1995). Appellant filed a pro se PCRA petition on May 10, 1996. The Center for Legal Education, Advocacy and Defense Assistance (CLEADA) was appointed to represent Appellant and subsequently filed an amended PCRA petition on Appellant's behalf. In response, the Commonwealth filed a motion to dismiss the petition based upon the existing record. Following a hearing, the PCRA court found that all but one of Appellant's claims could be decided on the existing record. Therefore, the PCRA court granted Appellant's request for an evidentiary hearing on the sole issue of whether counsel rendered ineffective assistance during the penalty phase of Appellant's trial and denied Appellant's request for an evidentiary hearing on all remaining grounds. Following a seven-day evidentiary hearing, the PCRA court denied relief. Appellant then filed the instant appeal.

Appellant raises numerous issues in his voluminous brief to this Court. The Commonwealth argues, however, that several of Appellant's claims have either been waived or previously litigated. We agree.

To be eligible for relief under the PCRA, a petitioner must establish that his allegations have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue is deemed finally litigated for purposes of the PCRA if 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). If the allegations of error have not been previously litigated, a petitioner must also demonstrate that those allegations have not been waived. An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, [or] on appeal...." 42 Pa.C.S. § 9544(b).

Here, Appellant claims that the Commonwealth improperly introduced victim-impact evidence during the penalty phase of his trial; that the Commonwealth improperly relied on two burglary convictions to establish the aggravating circumstance under 42 Pa.C.S. § 9711(d)(9), i.e. that the defendant has a significant history of felony convictions involving the use or threat of violence; and that his confession was involuntary and therefore, inadmissible. These claims were all disposed of on Appellant's direct appeal to this Court, see Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1068-75 (1995), and have therefore been previously litigated for purposes of the PCRA.2 Accordingly, these claims are not reviewable under the PCRA. See 42 Pa.C.S. § 9543(a)(3).3

Appellant also raises several claims of trial court and constitutional error and claims of prosecutorial misconduct that have been waived. Specifically, Appellant contends that the overwhelming presence of uniformed police officers at his trial subverted the fundamental fairness of his trial; that the trial court erred in failing to advise the jury regarding the meaning of a life sentence under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); that the aggravating circumstance listed in 42 Pa.C.S. § 9711(d)(9) is unconstitutionally vague; that the prosecutor committed misconduct by suggesting that Appellant had an alias; that the prosecutor unconstitutionally used his peremptory strikes in a discriminatory manner under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); that the alleged error under Batson violated international law; and that the trial court erred in failing to adequately instruct the jury on the nature of aggravating and mitigating factors. Appellant could have raised each of these claims in his direct appeal to this Court but failed to do so. Accordingly, these claims are waived under the PCRA and therefore, can offer Appellant no basis for relief.4

In his reply brief to this Court, Appellant argues that the Court must review all of his issues on the merits, despite any waiver, in accordance with our relaxed waiver rule in capital cases.5 In Commonwealth v. Albrecht, however, this Court held that "while it has been our `practice' to decline to apply our ordinary waiver principles in capital cases, we will no longer do so in PCRA appeals." Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998) (citations omitted). This holding was based in part on the recognition that the very terms of the PCRA exclude waived issues from the class of cognizable PCRA claims. Id.; 42 Pa.C.S. § 9543(a)(3) (to be eligible for relief under PCRA, a petitioner must prove that the allegation of error has not been waived). Thus, under Albrecht, the relaxed waiver rule is no longer applicable to PCRA appeals and therefore, any claims that have been waived by Appellant are beyond the power of this Court to review under the terms of the PCRA.

Appellant asserts, however, that retroactively applying the rule in Albrecht to his case, which involves a PCRA petition filed before the decision in Albrecht was issued in November of 1998, would unconstitutionally permit a "new rule of law" to bar review of his claims. We disagree. As we stated in Commonwealth v. Pursell:

[W]e recently held that we would no longer apply the "relaxed waiver" rule applicable to direct appellate review of capital cases in appeals from post-conviction proceedings in capital cases. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Instead, we now require strict adherence to the statutory language of the PCRA, and will afford post-conviction review only where a petitioner shows that the statutory exceptions to waiver in the PCRA apply [found in the pre-1995 version of the PCRA], or where a petitioner properly raises claims of counsel's ineffectiveness. Because this represents a clarification of our existing standard for reviewing appeals from the denial of post-conviction petitions in capital cases, we apply the Albrecht standard to all similar cases currently under review by this Court.

Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999) (emphasis added). See also Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 897 (1999) (Albrecht clarified standard that relaxed waiver rule will not apply to collateral attacks). Thus, because Albrecht merely clarified this Court's practice of relaxing our waiver rules in death penalty cases, Appellant suffers no constitutional violations by having Albrecht applied to his case. See Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 725-26 (2000) (applying Albrecht to PCRA appeal, where defendant filed PCRA petition in 1995, did not constitute unconstitutional retroactive application of new rule of law because Albrecht merely represented clarification of existing standard for reviewing PCRA appeals). Moreover, we note that this Court has consistently refused to invoke the relaxed waiver rule under Albrecht in PCRA capital appeals similar to the instant one. See, e.g., Commonwealth v. Pursell, 724 A.2d at 306 (applying Albrecht to 1982 conviction, where PCRA petition was filed in 1991); Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 354 (1999) (applying Albrecht to 1988 conviction, where PCRA petition was filed in 1993); Commonwealth v. Wallace, 555 Pa. 397, 724 A.2d 916, 920-21 (1999) (applying Albrecht to 1985 conviction, where PCRA petition was filed in 1995). Accordingly, we find no merit to Appellant's argument that Albrecht cannot constitutionally be applied to his case.

Appellant also raises several claims of...

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