Com. v. Cornitcher

Decision Date25 May 1972
Citation447 Pa. 539,291 A.2d 521
PartiesCOMMONWEALTH of Pennsylvania v. Herbert CORNITCHER, Appellant.
CourtPennsylvania Supreme Court
Vincent J. Ziccardi, Defender (Submitted), John W. Packel, Chief, Appeals Division, Philadelphia, for appellant

Arlen Specter, Dist. Atty. (Submitted), Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., Philadelphia, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Herbert Cornitcher was convicted, after trial by jury in 1963, of conspiracy, carrying a concealed deadly weapon, aggravated assault and battery, assault and battery with intent to ravish, indecent assault, and rape. He was sentenced to four to eight years on the rape indictment, and sentence was suspended on the remaining indictments.

On April 3, 1970, appellant filed a pro se petition for post conviction relief, 1 alleging that he had recently discovered that one of the jurors at his trial had been personally prejudiced against him. On May 29, 1970, after a hearing held solely to determine whether appellant had waived his right to assert his prejudiced-juror claim, 2 appellant's petition was dismissed. At the hearing appellant's counsel attempted to make certain amendments to appellant's pro se petition, but the hearing court denied his request. The Superior Court affirmed the dismissal of appellant's petition in a per curiam order, with Judges Hoffman, Spaulding, and Cercone dissenting. Commonwealth v. Cornitcher, 217 Pa.Super. 869, 272 A.2d 189 (1970). 3 Subsequently this Court granted allocatur.

Appellant argues before this Court that the hearing court improperly dismissed his petition on the grounds of waiver, and improperly refused defense counsel's request to file amendments to appellant's pro se petition. We agree with appellant. Accordingly, we reverse the order of the Superior Court and vacate the order of the hearing court. The record is remanded to the hearing court with direction to allow counsel's amendments to appellant's pro se petition and with direction to hold a hearing on the merits of appellant's prejudiced-juror claim.

I. The Rejected Amendments

At the start of appellant's May 29, 1970, PCHA hearing, appellant's counsel requested permission to make certain amendments to appellant's pro se petition. 4 This request was denied by the court. Appellant alleges that he would amend his petition to include, inter alia, a claim under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). 5 Section 7 of the Post Conviction Hearing Act 6 states:

'The court may grant leave to amend or withdraw the petition at any time. Amendment shall be freely allowed in order to achieve substantial justice. No petition may be dismissed for want of particularity unless the petitioner is first given an opportunity to clarify his petition.' (Emphasis added.)

Appellant, in light of Section 7's mandate that amendments be 'freely allowed,' contends that it was error for the hearing court to refuse to permit amendments proposed by counsel to his pro se petition. The Commonwealth apparently argues that Section 7 permits amendments to eliminate defects in particularity, but does not permit additional issues to be raised by amendment.

There is absolutely no support in the language of Section 7 for the Commonwealth's contention. In fact, Rule 1506 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, adopted to implement the Post Conviction Hearing Act, clearly indicates that additional issues may be raised by amendment. That rule states in relevant part:

'When the court grants a post conviction hearing, it shall . . . (h)old a hearing which may extend only to the Issues raised in the petition or amended petition. . . ..' (Emphasis added.)

Moreover, to ban amendments if they raise additional issues would completely undermine the major purpose of the Post Conviction Hearing Act--to discourage piecemeal litigation of post-conviction claims. A large majority of PCHA petitions are composed either by the prisoner or by a jail house lawyer. In many instances counsel is not appointed until after the court receives the petition. Frequently, after talking with the prisoner and reviewing the transcript of the trial, counsel realizes that there are additional meritorious issues to be raised. If amendments raising issues not included in prisoners' pro se petitions were prohibited, we would be unable to presume that petitioner knowingly and understandingly waived those issues. For as we stated in Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968): '(W)aiver may be Presumed only where the petitioner had counsel at the time the waiver allegedly occurred.' Id. at 455, 243 A.2d at 442. See Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).

Perhaps there may be some circumstances where a court may properly refuse amendments to PCHA petitions. But in the case at hand there was absolutely no apparent reason to do so. In fact, the hearing judge seemed to be operating under the mistaken impression that issues not raised in one petition could automatically be raised in a later petition. Consequently, we conclude that petitioner should have been permitted to amend his petition to include the additional issues.

II. The Prejudiced-Juror Claim

There are two conceivable theories upon which the hearing court might have based its determination that appellant waived his right to assert his prejudiced-juror claim. 7 First, the court might have concluded that appellant waived his right to assert his claim by failing to raise it at trial or in subsequent court proceedings. See Act of January 25, 1966, P.L. (1965) 1580, § 4(b)(1), 19 P.S. § 1180--4(b)(1). Second, the court might have concluded, as the Commonwealth argues on this appeal, that defense counsel's failure to ask questions on voir dire which may have brought to light the alleged prejudice of the juror prevents appellant from now raising the claim. See Commonwealth v. Aljoe, 420 Pa. 198, 205--207, 216 A.2d 50, 54--55 (1966). However, upon analysis, neither of these theories can support a finding that appellant waived his right to assert his prejudiced-juror claim.

The PCHA petition that is presently before us represents appellant's third attempt to secure post-conviction relief in our state courts. After a hearing on February 21, 1967, appellant's first PCHA petition was dismissed, and that dismissal was affirmed by the Superior Court on January 5, 1968. Appellant's second petition was dismissed without a hearing on December 17, 1969, and no appeal was taken from that dismissal. In neither of these petitions did appellant raise the prejudiced-juror claim which he now asserts.

However, at the hearing on the petition that is now before us, appellant testified that before his trial he had an altercation with a man who lived on Cedar Avenue in Philadelphia. After his trial, appellant was told by a fellow prisoner that this man whom appellant had fought had been a juror at appellant's trial. Appellant had not recognized the juror at the time of his trial since appellant had been intoxicated at the time of the fight.

Appellant thereupon contacted a Mr. Pepp of the Defender Association of Philadelphia. Mr. Pepp forwarded to appellant a list purporting to include the names of all of the jurors at appellant's trial. This list was offered into evidence at the hearing below. Since the name of the individual who lived on Cedar Avenue, and with whom appellant allegedly had the altercation, did not appear on this list, appellant did not raise the prejudiced-juror claim in his first or second PCHA petition.

However, appellant subsequently requed and obtained a second list of the jurors at his trial from the court clerk. This second list contained a name which had not appeared on the first list. Appellant alleged that the individual who was named in the second list but not in the first list was the man from Cedar Avenue with whom he had fought prior to his trial.

If appellant's testimony is believed, it is clear that he cannot now be regarded as having waived his prejudiced-juror claim on the ground that he '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 act . . ..' Act of January 25, 1966, P.L. 1965) 1580, § 4(b)(1), 19 P.S. § 1180--4(b)(1) (Supp.1970) (emphasis added). Since appellant was not aware of the alleged presence of the prejudiced juror at his trial until after he had filed his first and second PCHA petitions, he 'could not' have raised the issue previously. Since no reason appears on the record to disbelieve appellant's testimony, and since we have no indication that the hearing judge disbelieved appellant's testimony, we conclude that appellant cannot be regarded as having waived his claim under § 4(b)(1) of the Post Conviction Hearing Act.

However, the Commonwealth, relying on Commonwealth v. Aljoe, 420 Pa. 198, 205--207, 216 A.2d 50, 54--55 (1966), argues that appellant's counsel failed to ask questions on voir dire which may have brought to light the alleged prejudice of the juror, and that this failure bars appellant from raising his claim.

In Aljoe we did announce the rule that:

"It is the duty of the parties to ascertain, by proper examination at the time the jury is empaneled, the existence of any reasons for objection to the jurors. . . . (T)he failure to do so and to make objection at the proper time operates as a waiver . . .' . . ..'

420 Pa. at 206--207, 216 A.2d at 55.

However, we further noted in Aljoe:

". . . That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror . . .' . . ..'

420...

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2 cases
  • Commonwealth v. DeGeorge
    • United States
    • Pennsylvania Supreme Court
    • 18 Diciembre 1984
    ... ... A.2d 589 (1978); Commonwealth v. Hughes, 477 Pa ... 180, 383 A.2d 882 (1978); Commonwealth v. Stokes, supra; ... Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d ... 521 [506 Pa. 452] (1972); Commonwealth ... [485 A.2d 1093] ... v. Jones, 447 Pa. 228, 286 A.2d 892 (1971) ... ...
  • Com. v. DeGeorge
    • United States
    • Pennsylvania Supreme Court
    • 18 Diciembre 1984
    ... ... Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981); Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Stokes, supra; Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 [506 Pa. 452] (1972); Commonwealth ... Page 1093 ... v. Jones, 447 Pa. 228, 286 A.2d 892 (1971) ...         From this lemma this Court in Commonwealth v. Williams, supra, identified those factors of which a defendant should be apprised in order to make a ... ...

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