Com. v. Griffin

• Decision Date: 05 July 1994
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Rodney Lawrence GRIFFIN, Appellant.
• Court: Pennsylvania Supreme Court

Page 1167

644 A.2d 1167

537 Pa. 447

COMMONWEALTH of Pennsylvania, Appellee, v. Rodney Lawrence GRIFFIN, Appellant.

Supreme Court of Pennsylvania.

Submitted May 3, 1993.

Decided July 5, 1994.

Hugh A. Donaghue, Havertown, for appellant.

William H. Ryan, Jr., Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

On April 17, 1984, Appellant, Rodney Lawrence Griffin, was arrested and charged with the murder of Ellen Lewis, aggravated assault, criminal conspiracy, and various weapons offenses. The Court of Common Pleas of Delaware County granted Appellant's pre-trial motion for a change of venire, and a jury was empaneled in Montgomery County to serve as the trial jury in Delaware County. On October 10, 1984, the jury convicted Appellant of first degree murder and criminal conspiracy. The jury subsequently sentenced Appellant to death.

Appellant's trial counsel filed post-verdict motions which were denied en banc by the Court of Common Pleas of Delaware County. At the formal sentencing proceeding on August 5, 1985, Appellant attempted to file, nunc pro tunc, pro se supplemental post-verdict motions challenging effectiveness of counsel. The trial court treated these motions as a Post-Conviction Hearing Act (PCHA) petition, 42 Pa.C.S.A. §§ 9541-9551, explaining its decision to do so as follows:

Defendant has filed pro se supplemental post-verdict motions in which he contends that his trial counsel was ineffective. Although these motions were filed when defendant was represented by counsel, and well-beyond the ten-day period permitted by Pa.R.Crim.P. 1123, the court concluded that in the interests of justice, the motions would nonetheless be received and treated as a PCHA petition. We decided on this course of action in view of the fact that the defendant has been sentenced to death and because the allegations in the motions relate exclusively to the issue of defendant's trial counsel's ineffectiveness. If we dismissed defendant's motions because they were not timely filed, this would merely result in their being refiled as a PCHA petition. No useful purpose would be served in summarily dismissing defendant's pro se effort to obtain some form of post-verdict relief.

Trial Court Opinion, December 20, 1985 at 6. Although Appellant has stated, conclusorily and without further explanation that the trial court's decision was unfair, he has never contested the propriety of its action, even in the instant appeal.

Pursuant to the decision to hear Appellant's claims as a prayer for post conviction relief, the trial court held a formal PCHA hearing at which Appellant represented himself, with a member of the Delaware County Public Defender's office acting as stand-by counsel. By opinion and order of December 20, 1985, the Court of Common Pleas of Delaware County denied Appellant's PCHA petition. On direct appeal, we affirmed Appellant's convictions and sentence of death, Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), and a warrant was issued authorizing Appellant's execution.

On June 10, 1991, Appellant filed the instant petition for post-conviction relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq., and on June 11, 1991, Appellant's execution was stayed pending disposition of his PCRA petition. On March 11, 1992, the Court of Common Pleas of Delaware County issued an order and opinion dismissing Appellant's PCRA petition. Appellant appealed to the Superior Court, which transferred the appeal to the Supreme Court pursuant to Pa.R.A.P. 751.

On appeal, Appellant claims his trial counsel was ineffective in four areas. First, Appellant contends trial counsel was ineffective for failing to object to the use of peremptory strikes by the prosecutor. Second, Appellant asserts trial counsel was ineffective for not submitting particular voir dire questions regarding racial bias. Third, Appellant argues trial counsel was ineffective for not objecting to a jury instruction regarding a plea agreement between the Commonwealth and a Commonwealth witness. Fourth, Appellant contends trial counsel was ineffective for failing to object to portions of the prosecution's closing argument. Preliminarily, however, we must determine whether Appellant's claims have been preserved for our review.

I. PRESERVATION OF ISSUES

In addressing whether Appellant's claims have been preserved properly, two issues are raised. First, what is the standard of review and second, has Appellant waived his claims of ineffective counsel? The standard of review depends upon whether Appellant's PCRA petition is his first or second application for post-conviction relief. Resolution of this issue establishes the standard by which we assess the issue of waiver. A more lenient standard of review is applied to first PCRA petitions than is applied to second PCRA petitions.

A. STANDARD OF REVIEW

Our discussion begins with an analysis of the 1985 trial court's treatment of Appellant's pro se supplemental post-verdict motions as a PCHA petition. We note that the trial court had the authority to take such action pursuant to Pa.R.Crim.P. 2, which requires that the rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." In this case, had the trial court dismissed Appellant's post-verdict motion, Appellant could have simply refiled them as a PCHA petition. Furthermore, as we noted earlier, Appellant has never contested the action of the trial court, either in the direct or the instant appeal. ¹

The 1992 trial court decided to treat the instant PCRA petition as Appellant's first, not second, application for post-conviction relief, "because the precise nature of defendant's supplemental post-verdict motion leaves some question as to whether or not it can be categorized as an initial post-conviction petition for purposes of asserting trial counsel's ineffectiveness." Trial Court Opinion, March 11, 1992 at 7. Appellant, apparently relying on the 1992 trial court's conclusion, also treats this PCRA petition as his first, and does not raise it as an issue on appeal to this Court. Appellee, on the other hand, refers to the instant petition as Appellant's second application for post-conviction relief in its brief. However, Appellee does not address the appropriate standard of review, and instead jumps directly to the issue of waiver.

As a technical matter, the instant PCRA petition is Appellant's second application for post-conviction relief. The 1992 trial court erred by treating the instant petition as Appellant's first application. However, we believe it would be unfair to assess Appellant's petition as his second post-conviction relief attempt for several reasons. First, the 1992 trial court opinion and the briefs of the parties reveal their confusion regarding this issue. Second, Appellant has apparently relied upon the 1992 trial court's treatment of his petition, and has neither contested nor briefed the issue. These reasons, combined with the severity of Appellant's sentence, compel us to review Appellant's petition as if it were his first application for post-conviction relief.

B. WAIVER

In order to preserve claims of ineffectiveness of counsel under the PCRA, the claims must be raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Otherwise, any assertions of ineffectiveness are waived. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981). However, because we are treating Appellant's PCRA petition as his first application for post-conviction relief, ² if Appellant demonstrates "extraordinary circumstances," then a reviewing court will not find waiver. Id. at 398 n. 2, 426 A.2d at 608 n. 2. "The allegation that all counsel below and on prior appeals or P.C.H.A. petitions were ineffective constitutes 'extraordinary circumstances.' " Id. at 398 n. 2, 426 A.2d at 608 n. 2.

In this case, the particular claims of ineffectiveness of counsel raised by Appellant were not raised at the earliest possible stage specifically, in Appellant's pro se supplemental post-verdict motions. ³ However, Appellant attempts to avoid waiver of these claims by asserting the ineffectiveness of all prior counsel, which includes himself and stand-by counsel, with regard to the pro se supplemental post-verdict motions and related hearing. Therein lies the flaw in Appellant's claims on appeal.

The Superior Court has consistently held that claims of ineffective assistance of counsel are not cognizable during post-trial proceedings, including the PCHA, when the claimant has previously insisted on self-representation. Commonwealth v. Sims, 379 Pa.Super. 252, 549 A.2d 1280 (1988), alloc. den. 521 Pa. 630, 558 A.2d 532 (1989); Commonwealth v. Glessner, 337 Pa.Super. 140, 486 A.2d 521 (1985); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980). Having knowingly and voluntarily waived the right to counsel, an appellant is not permitted to "rely upon his own lack of legal expertise as a ground for a new trial." Commonwealth v. Celijewski, 324 Pa.Super. 185, 190, 471 A.2d 525, 528 (1984).

For example, in Commonwealth v. Sims, 379 Pa.Super. 252, 549 A.2d 1280 (1988), the defendant acted as his own counsel during trial, with stand-by counsel available for consultation. The defendant appealed from an order denying relief under the PCHA asserting, among other things, ineffective assistance of counsel. The Superior Court refused "to address appellant's assertion that stand-by counsel was ineffective. Appellant cannot shift the responsibility for his performance to stand-by counsel." Sims, 379 Pa.Super. at 257, 549 A.2d at 1282.

To date, we have not addressed the validity of the Superior...