Com. v. Cheeks

• Decision Date: 15 March 1968
• Citation: 429 Pa. 89,239 A.2d 793
• Parties: COMMONWEALTH of Pennsylvania v. Bernard CHEEKS, Appellant.
• Court: Pennsylvania Supreme Court

Page 793

239 A.2d 793

429 Pa. 89

COMMONWEALTH of Pennsylvania v. Bernard CHEEKS, Appellant.

Supreme Court of Pennsylvania.

March 15, 1968.

Edward K. Nichols, Jr., Philadelphia, for appellant

Arlen Specter, Dist. Atty., Alan J. Davis, Benjamin H. Levintow, Asst. Dist. Attys., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

In 1964 appellant, charged with the felony-murder of one Joe Howell, pleaded not guilty and faced a trial before judge and jury which resulted in a first degree murder conviction with a life sentence. Cheeks then appealed to this Court alleging (1) that inadmissible hearsay evidence had been used against him; (2) that his confession was inadmissible under Escobedo; (3) that the same confession, if not tainted solely by Escobedo, was at least involuntary under Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); and (4) that the Commonwealth had failed to prove that appellant's act was the cause of death. Cheeks' appeal was argued before this Court on January 13, 1966. On September 27, 1966 this Court, in an opinion written by Mr. Justice Eagen, affirmed the conviction. Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966).

Appellant then filed a petition for reargument in which he alleged, for the first time, that the use at trial of three confessions of appellant's three accomplices, each implicating Cheeks, violated appellant's sixth amendment right of confrontation made applicable to the states by Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Although these cases were decided April 5, 1965, more than nine months before oral argument, appellant's reargument petition urged that he should not be barred from raising the Pointer claim in a second oral argument because the actual trial of the case predated both Pointer and Douglas and furthermore because Cheeks' initial appeal had been perfected and the briefs printed also prior to Pointer and Douglas. No reason was offered, however, for counsel's failure to raise the sixth amendment claim for the first time At oral argument, or for his failure to request leave to file a supplemental brief at that time. The petition for reargument was denied by this Court, per curiam, on November 7, 1966.

Cheeks next sought federal habeas corpus relief. He was rebuffed there also. In an opinion written by Judge John Lord, Jr., the federal district court denied Cheeks' petition without a hearing, on the ground that he had not yet exhausted his available state remedies. See United States ex rel. Cheeks v. Prasse, 261 F.Supp. 760 (E.D.Pa.1966). It was held that Cheeks' Pointer claim had not been finally litigated by virtue of the denied reargument petition, the federal court believing that such a disposition was not equivalent to a decision on the merits. Having been thus invited by the federal court to seek state collateral relief, Cheeks filed a petition under the Post Conviction Hearing Act which was in turn denied without an evidentiary hearing by Judge Reed of Philadelphia County Court of Oyer and Terminer. In a brief opinion Judge Reed concluded (1) that the Pointer claim had been finally litigated when reargument was denied; (2) that, in any event, by failing to raise the Pointer claim at his First oral argument before the Supreme Court, Cheeks had waived the right to test this claim collaterally; and (3) that, even on the merits, the alleged Pointer violation could not be established. It is from this adjudication that Cheeks has taken the present appeal.

Before reaching the merits of appellant's Pointer claim, it is first necessary to decide whether Cheeks had, in fact, lost the right to raise the claim in a Post Conviction Hearing Act proceeding because of some prior conduct by either himself or counsel. Section 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180--4 (Supp.1966) ¹ establishes two grounds upon which collateral relief may be denied without reaching the merits of petitioner's claim. Thus, Cheeks will be considered ineligible for relief if his Pointer claim has been either finally litigated or if the right to raise that claim has been waived.

Judges Reed and Lord have already reached contrary conclusions on the issue of whether appellant's Pointer claim has been finally litigated, their disagreement turning on the proper significance to be accorded the denial of a petition for reargument. Since we believe that such a disposition does not meet the test set out in section 4 for final litigation of a matter, we hold that Cheeks' Pointer claim has not been finally litigated. In order to hold that an issue has been finally litigated because of action taken by the Supreme Court, section 4 requires a showing that '(t)he Supreme Court of the Commonwealth of Pennsylvania has ruled On the merits of the issue.' (Emphasis supplied.) We agree with Judge Lord that the per curiam denial of reargument cannot amount to a disposition 'on the merits' of a claim pressed for the first time in the reargument petition itself.

Supreme Court Rule 71 states, inter alia, that the petition for reargument 'must specify particularly the point supposed to have been overlooked or misapprehended by the Court.' Certainly, it cannot be said that our Court 'misapprehended' the Pointer claim, since it was never in fact raised. Furthermore, we believe that a proper interpretation of the term 'overlooked' in the rule would require a showing that our Court failed to consider some finding of fact or proposition of law relevant to the disposition of an issue Actually raised by the parties. ² It does not mean that reargument may be granted simply because one of the Parties 'overlooked' a relevant issue. Thus, in the present case, sinnce Cheeks' petition failed to show either that the Court misapprehended or overlooked any point raised in his appeal, the petition was properly denied without ever reaching the merits of the Pointer claim therein asserted. Section 4 clearly requires a disposition on the merits before any issue can be deemed finally litigated in the Supreme Court. Therefore, appellant does not here trip over that hurdle in the Post Conviction Hearing Act.

The problems posed in the present case by section 4's Waiver provision, however, are more difficult to resolve. The overall import of a section 4 waiver is that a petitioner may not raise an issue in a Post Conviction Hearing Act proceeding if he has had any previous opportunity to raise the issue, but failed to do so, provided however that this failure was knowing and understanding and that there are no extraordinary circumstances attendant upon the failure to raise. Tracing the route of Cheeks' journey through our Commonwealth's courts, we can see two points at which the Pointer claim could have been raised, but was not. These two points are Cheeks' initial trial, and his direct appeal to our Court. As to the first, his trial, there can be no waiver. Admittedly no Pointer objection was voiced by counsel when the Commonwealth introduced the confessions of appellant's accomplices; but this failure to object is easily explained by the simple fact that Cheeks' trial took place in May of 1964, almost a full year before Pointer and Douglas were decided. It would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing that there existed a right to be waived. The Supreme Court of the United States has already expressed this view in O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966), a case followed by this Court in Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968).

But what of counsel's failure to raise the Pointer claim during oral argument before this Court? O'Connor cannot control here because the appeal was not heard until nine months after Pointer and Douglas became law. This, we believe, is more than enough time for counsel to have become familiar with such a significant development in constitutional law. Nevertheless, there may still exist a justifiable reason for counsel's silence during argument on the Pointer issue. Cheeks' attorney may have believed that any attempt to raise the Pointer issue on appeal would have been rebuffed by our Court under the well established doctrine that matters not raised at trial cannot be raised for the first time on appeal. This would be especially true during appeals that were argued before counsel or this Court had the benefit of O'Connor, a case not decided until November, 1966, almost a year after the Cheeks' appeal was argued. Nor, at the time of Cheeks' appeal, had this Court decided Commonwealth v. Jefferson, 423 Pa. 541, 546, 226 A.2d 765, 768 (1967), wherein it was strongly implied that the prior nonavailability of newly established rights would excuse apparent waivers. The only significant flaw in this argument, however, is the fact that appellant's counsel Did seek reargument on Pointer grounds, rather than relying solely upon a collateral proceeding to vindicate his client's rights. Thus, without more, we might be forced to hold that Cheeks' Pointer claim has been waived. But, fortunately for appellant, there Is more.

Even were we to assume that counsel had no legitimate reason for his failure to raise the Pointer issue on appeal, this course of conduct, a course unguided by any tactical considerations, should not be imputed to the defendant himself. Implicit in our decision in Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967) is the notion that counsel's actions can never bind his client when these actions are unmotivated by Any reasonable, tactical choice. Moreover,...