Com. v. Carbone

• Citation: 707 A.2d 1145
• Parties: COMMONWEALTH of Pennsylvania v. Patricia Ann CARBONE, Appellant.
• Decision Date: 18 March 1998
• Court: Superior Court of Pennsylvania

Page 1145

707 A.2d 1145

COMMONWEALTH of Pennsylvania v. Patricia Ann CARBONE, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 29, 1997.

Filed Jan. 12, 1998.

Reargument Denied March 18, 1998.

Kevin J. Rozich, Johnstown, for appellant.

Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for the Com., appellee.

Before McEWEN, President Judge, CIRILLO, President Judge Emeritus, and OLSZEWSKI, J.

CIRILLO, President Judge Emeritus:

Appellant Patricia Ann Carbone appeals from the order of the Court of Common Pleas of Somerset County denying her request for relief under the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. § 9541, et seq. We reverse and remand for a new trial.

Patricia Carbone, age thirty-one, was charged with first-degree murder, third-degree murder, and voluntary manslaughter. She admitted stabbing the decedent, Jerome Lint, but claimed self-defense. ¹ Carbone was tried before a jury and convicted of first-degree murder. She was sentenced to life imprisonment. On appeal, this court, sitting en banc, found the evidence insufficient to sustain a conviction for first-degree murder. Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988) (en banc ). This court determined that the Commonwealth had failed to disprove Carbone's claim of self-defense beyond a reasonable doubt, see 18 Pa.C.S.A. § 505, and, therefore, the evidence did not establish that the killing was inspired by malice. We remanded for a new trial on the charge of voluntary manslaughter. Commonwealth v. Carbone, 375 Pa.Super. at 277-79, 544 A.2d at 470. ²

The Supreme Court of Pennsylvania granted the Commonwealth's petition for appeal, reversed this court's decision and remanded for disposition of the issues raised but not addressed in Carbone's direct appeal. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990). Following review on remand, this court affirmed the judgment of sentence. Commonwealth v. Carbone, 408 Pa.Super. 644, 588 A.2d 558 (1990).

On May 21, 1996, Carbone filed a petition for post-conviction relief. See 42 Pa.C.S.A. § 9541, et seq. ³ In her petition Carbone alleged that trial counsel was ineffective for (1) failing to call any character witnesses on her behalf and (2) failing to call Kathy Potter as a defense witness. The PCRA court denied relief. Carbone petitioned for reconsideration of the decision on her second claim of ineffectiveness of counsel, that counsel was ineffective for failing to present Kathy Potter as a rebuttal witness. The PCRA court denied reconsideration and concluded that the issue was waived under 42 Pa.C.S.A. § 9544(b) because current counsel failed to raise it on direct appeal. This appeal followed. Carbone raises three issues for our review:

1. Whether the trial court erred in determining that petitioner waived her claims of ineffectiveness of trial counsel?

2. Whether the petitioner's constitutional right to due process was violated by the trial court's denial of her PCRA petition when the trial court determined the petitioner previously waived her claim to ineffectiveness of counsel?

3. Whether the amendments to the PCRA extinguished the "extraordinary circumstance" exception to the waiver doctrine?

Each of these claims questions the waiver doctrine of the Post Conviction Relief Act. We, therefore, address these issues simultaneously.

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court's findings were supported by the record and whether the court's order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994). The PCRA court's findings and credibility determinations are binding on review only if supported by the record. See id.; Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996). See also Commonwealth v. K.M., 452 Pa.Super. 7, 11-12, 680 A.2d 1168, 1171 (1996).

The purpose of the PCRA ⁴ is to prevent a "fundamentally unfair conviction," Commonwealth v. Weinder, 395 Pa.Super. 608, 626-27, 577 A.2d 1364, 1374 (1990), and provide an action where persons convicted of crimes they did not commit or individuals who have been serving illegal sentences may obtain collateral relief. 42 Pa.C.S.A. § 9542. In order to be eligible for relief, a petitioner must establish at least one of the factors under section 9543(a)(2) ⁵ and that the claim of error has not been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). Section 9544(b) of the PCRA states: "For purposes of this subchapter, an issue is waived if a petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior postconviction proceeding." 42 Pa.C.S.A. § 9544(b).

Petitioner argued to the PCRA court that her claim was not subject to the waiver doctrine because her current counsel (who represented her on direct appeal) was completely unaware of the existence of the proposed defense witness, Kathy Potter. In response, the Commonwealth argued that petitioner sought to equate Kathy Potter's testimony with "after-discovered evidence." The PCRA court agreed with the Commonwealth's characterization, analyzed petitioner's claim under the after-discovered evidence test, ⁶ and concluded that because Kathy Potter was interviewed by defense counsel and was available for trial, petitioner failed to meet the "unavailable at trial" requirement of the after-discovered evidence test. See Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978); Commonwealth v. Cooney, 444 Pa. 416, 417, 282 A.2d 29, 30 (1971); Commonwealth v. Galloway, 433 Pa.Super. 222, 640 A.2d 454 (1994); Commonwealth v. Bonaccurso, 425 Pa.Super. 479, 625 A.2d 1197 (1993).

On reconsideration, petitioner urged the PCRA court to reexamine her argument that current counsel/direct appeal counsel had no knowledge of Kathy Potter until after petitioner's original appeal rights had been exhausted, making it impossible for current counsel to raise the issue on direct appeal. The PCRA court dismissed this argument, this time on the basis of waiver. See 42 Pa.C.S.A. § 9544(b). The court stated that in light of the November 17, 1995 amendments to the PCRA, which eliminated the "extraordinary circumstances" language, there are "no longer any ... loopholes for Petitioner to squeeze through." On appeal, the Commonwealth continues this argument, suggesting that the 1988 amendments to the waiver provision of the PCRA, 42 Pa.C.S.A. § 9544, ⁷ preclude relief in this case. We find the argument unconvincing.

Prior the 1988 amendments, section 9544(b) stated:

(b) Issues waived.--For the purposes of this subchapter, 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 or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.

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

The 1988 amendments deleted the language in section 9544(b)(2); the amended version provided: "(b) Issues waived. - For purposes of this subchapter, an issue is waived if the petitioner failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter." ⁸

Courts of this Commonwealth have interpreted the "extraordinary circumstances" necessary to overcome waiver as ineffectiveness of counsel. See, e.g., Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982) (ineffective assistance of counsel is an extraordinary circumstance that justifies failure to raise an issue); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978) (issue of ineffective assistance of counsel was considered as a separate basis for relief as well as extraordinary circumstance justifying failure to raise the issue prior to trial); Commonwealth v. Garrison, 303 Pa.Super. 555, 450 A.2d 65 (1982) (extraordinary circumstance of prior counsel's ineffectiveness precluded summary dismissal); Commonwealth v. Bable, 248 Pa.Super. 496, 375 A.2d 350 (1977) (ineffective assistance of counsel constitutes extraordinary circumstances entitling one to post-conviction relief); Commonwealth v. Felder, 246 Pa.Super. 324, 370 A.2d 1214 (1976) (ineffectiveness of counsel constitutes extraordinary circumstances justifying failure to appeal); Commonwealth v. Adams, 236 Pa.Super. 82, 344 A.2d 905 (1975) (ineffective assistance of counsel constitutes an extraordinary circumstance justifying postconviction petitioner's failure to raise issue previously). Cf. Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995) (extraordinary circumstance of capital case excused waiver). Ineffectiveness of counsel, however, remained a separate basis for relief under the PCRA as amended in 1988, see 42 Pa.C.S.A. § 9543(a)(2)(ii), ⁹ and as amended in 1995, see 42 Pa.C.S.A. § 9543(a)(2)(ii). ¹⁰ We interpret the removal of the "extraordinary circumstances" language not so much as the closing of a "loophole," but rather as the extraction of excess language. Although the 1988 amendments retained ineffectiveness of counsel as a separate basis for relief under the PCRA, the amendments added the limitation that the ineffectiveness must have undermined "the truth-determining process." The 1995 amendments retained this restriction. See 42 Pa.C.S.A. § 9543(a)(2)(ii). The more stringent requirement for obtaining collateral relief based on ineffectiveness of counsel may have had the effect of closing some loopholes, as the PCRA court observed; however, the purpose of the amendments was not to preclude ineffectiveness claims altogether or to preclude relief where the waiver was caused by counsel's ineffectiveness. See Commonwealth v. Christy, 540 Pa. 192, 201-02, ...