Com. v. Brown

Citation872 A.2d 1139,582 Pa. 461
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. John Wesley BROWN, Appellant.
Decision Date29 April 2005
CourtUnited States State Supreme Court of Pennsylvania

872 A.2d 1139
582 Pa. 461

COMMONWEALTH of Pennsylvania, Appellee,
John Wesley BROWN, Appellant

Supreme Court of Pennsylvania.

Submitted February 11, 2002.

Decided April 29, 2005.

Concurring Opinion Filed July 6, 2005.

872 A.2d 1142
J. Michael Farrell, Esq., Philadelphia, for John Wesley Brown

Hugh J. Burns, Esq., Regina Marie Oberholzer, Esq., Amy Zapp, Esq., Philadelphia, for Commonwealth of Pennsylvania.



Chief Justice CAPPY.

Appellant, John Wesley Brown, appeals from the Order of the Court of Common Pleas of Philadelphia County, denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow,

872 A.2d 1143
we affirm the order of the PCRA court

The underlying facts of the case, as set forth by this Court on direct appeal, are as follows:

On June 10, 1990, appellant and his father, Wesley Brown, who was then seventy-seven years old, were together in their home in Philadelphia. A quarrel between the two occurred over appellant's use of his father's car for "hacking," that is, an unlicensed taxi service. Appellant shot his father four times with a .38 caliber pistol and left him to bleed to death in their home. A neighbor who heard the shots called the victim's granddaughter; she in turn called her grandfather. Appellant answered the phone and told his niece that her grandfather was outdoors. Appellant placed a .38 caliber revolver next to his father's body and took $400 from his father's wallet, then drove off in his father's car. He disposed of the murder weapon by throwing it out the car window in Maryland en route to Georgia.
Two days later appellant was stopped at a road check in Georgia; a computer check of appellant's driver's license disclosed that the license was expired, that the car was stolen, and that appellant was wanted in Pennsylvania for murder. Appellant admitted shooting his father, but claimed it was done in self-defense after his father pointed a .357 magnum pistol at him.
Following appellant's trial, the jury found him guilty of murder of the first degree, robbery, and possessing an instrument of crime. Following the penalty phase of the trial, the jury found that an aggravating circumstance existed, to-wit, that appellant had been convicted of a prior voluntary manslaughter; the jury also found three mitigating circumstances, namely, that appellant had no significant history of prior criminal convictions, that he acted under extreme mental or emotional disturbance, and that he had some other evidence of mitigation. In balancing the statutory factors, the jury concluded that the aggravating circumstance outweighed the mitigating circumstances, and unanimously reached a verdict of death.

Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1180 (1994) (footnotes omitted).

Following his conviction, Appellant obtained new counsel and filed a direct appeal to this Court, raising numerous issues of trial court error as well as claims of counsel ineffectiveness. Our Court affirmed the judgment of sentence on October 6, 1994. Id. On January 15, 1997, Appellant filed a pro se PCRA petition. Current counsel was appointed to represent Appellant, and an amended petition was filed on April 2, 1998. Thereafter, Appellant filed supplemental pleadings, which he captioned as either replies to the Commonwealth's motions to dismiss or supplemental amended petitions. These pleadings were filed on August 26, 1998, October 9, 1998, April 1, 1998, and June 16, 1999. The Commonwealth responded to each pleading by filing motions to dismiss. On February 2, 1999, May 17, 1999 and December 22, 1999, the trial court conducted hearings for the sole purpose of determining whether an evidentiary hearing was warranted. After Appellant and the Commonwealth argued their legal positions, the trial court took the matter under advisement. On April 12, 2000, the trial court orally granted the Commonwealth's motion to dismiss the PCRA petition, and on April 13, 2000, the court filed its order and opinion in support thereof.

In this appeal from the PCRA court's dismissal of his petition, Appellant raises twenty-three issues, and numerous sub-issues, for our review. Initially, we note that this Court has jurisdiction over Appellant's

872 A.2d 1144
petition because we directly review the denial of post conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d). In cases where the judgment of sentence was final prior to the 1995 enactment of the timeliness requirement, a first PCRA petition is considered timely if filed within one year of the effective date of the enactment or January 16, 1997. Section 3(1) Act 1995 (Spec.Sess. No. 1), Nov. 17, P.L. 1118, No. 32. Because the instant petition is Appellant's first PCRA petition and it was filed on January 15, 1997, it is considered timely filed

Prior to addressing the merits of Appellant's issues, we must first entertain the Commonwealth's contention that Appellant's claims are not cognizable under the PCRA. The Commonwealth argues that Appellant erroneously raises allegations of error as if he were presenting the claims on direct appeal and ignores his burden of proof under the PCRA. It further argues that Appellant's boilerplate assertions of all prior counsel's ineffectiveness, without providing the required legal analysis for demonstrating each layer of counsel's supposed ineffectiveness, is insufficient to avoid waiver of the underlying claims. Upon careful consideration of the manner in which Appellant's claims have been presented, and in light of the strict requirements of the PCRA and this Court's case law interpreting such requirements, we agree with the Commonwealth that several of Appellant's claims are not reviewable. Each issue, however, must be examined independently to determine whether review of the merits is required.

In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated defects found in 42 Pa.C.S. § 9543(a)(2), and that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A claim is previously litigated under 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). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b). We further note that, pursuant to Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), 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.

With these principles in mind, we turn to Appellant's allegations of error. For purposes of our review, we do not examine these issues in the order raised by Appellant in his brief. Rather, we begin with those issues that we find to be "previously litigated" under the PCRA because they were reviewed by this Court on direct appeal. We agree with the PCRA court that Appellant's challenge to the evidence supporting the aggravating circumstance of a prior conviction of voluntary manslaughter, set forth at 42 Pa.C.S. § 9711(d)(12) (Argument I), was raised on direct appeal and was rejected by this Court. To be precise, Appellant challenged the aggravator on direct appeal by arguing that the prosecutor elicited testimony from a detective establishing that Appellant had been "charged" in a prior homicide. Appellant argued that evidence of a charge was not evidence of a "conviction." Our Court rejected this claim as frivolous, finding that the detective testified that Appellant had been charged with voluntary manslaughter and that he pled guilty to such charge. Commonwealth v. Brown, 538 Pa. 410 648 A.2d at 1185. Appellant also argued on direct appeal that the prosecutor erred in the manner in

872 A.2d 1145
which she presented the evidence of the aggravating circumstance, i.e., by eliciting from the detective a long recitation of the facts of the prior manslaughter case. Our Court likewise rejected this claim on the merits. Id. at 1186. Such claim, raised again in the instant appeal as one challenging the detective's testimony as hearsay, is not reviewable. Appellant cannot obtain post conviction review of claims previously litigated on appeal by presenting new theories of relief to support the previously litigated claims. Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 229 (2003).

In his current appeal, Appellant additionally argues that the sole aggravating circumstance found is legally inapplicable to his case. To satisfy section 9711(d)(12), the Commonwealth must demonstrate that "[t]he defendant has been convicted of voluntary manslaughter, as defined in 18 Pa. C.S. § 2503 (relating to voluntary manslaughter), or a substantially equivalent crime in any other jurisdiction, committed either before or at the time of the offense at issue." 42 Pa.C.S. 9711(d)(12). Appellant maintains that because he was convicted of voluntary manslaughter prior to 1967, when 18 Pa.C.S. § 2503 was codified, the aggravator does not apply. As this is yet another challenge to the sole aggravator, which was upheld on direct appeal, this claim arguably has been previously litigated. To the extent that this specific issue was not previously litigated on direct appeal, the issue is waived due to Appellant's failure to raise it on direct appeal. 42 Pa.C.S. § 9544(b).

The next claim that was previously litigated on direct appeal alleges that Appellant is entitled to relief because he was forced to wear shackles during his trial and because there was a large police presence in the...

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