Com. v. Hart

• Decision Date: 08 November 1989
• Citation: 388 Pa.Super. 484,565 A.2d 1212
• Parties: COMMONWEALTH of Pennsylvania v. Andre HART, Appellant. 02807 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 1212

565 A.2d 1212

388 Pa.Super. 484

COMMONWEALTH of Pennsylvania v. Andre HART, Appellant.

02807 PHILA. 1988

Superior Court of Pennsylvania.

Submitted March 20, 1989.

Filed Nov. 8, 1989.

Norris E. Gelman, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before DEL SOLE, BECK and MONTGOMERY, JJ.

BECK, Judge:

This appeal involves the question of the validity of a progression charge in a homicide case; i.e., whether the trial court may instruct the jury not to consider whether the defendant is guilty of voluntary manslaughter until after it has considered whether the defendant is not guilty of murder. Appellant contends that his counsel was ineffective for failing to object to the progression charge. We find that the court's instruction was proper and that counsel provided effective representation.

I.

On August 11, 1975, Albert Dixon, an Exxon employee, was fatally wounded during an attempted robbery of an Exxon service station. The crime remained unsolved until 1984 when the police received information implicating Andre Hart and Barry Patterson. Hart was charged with murder, robbery, and criminal conspiracy and tried before a jury in the Philadelphia Court of Common Pleas. At trial, Patterson testified for the Commonwealth that he and Hart had conspired to rob Dixon. Patterson further testified that Hart had approached Dixon while armed with a gun, and that Hart had panicked and fired his weapon at Dixon. Defense counsel presented no evidence, but instead focused on impeaching Patterson's testimony.

At the close of the trial, the court instructed the jury on the law of homicide. ¹ The court directed the jury to consider the various forms of homicide in what the Commonwealth describes as a "logical progression sequence". This progression charge was as follows:

You also will take with you a verdict sheet. Now the verdict sheet is self-explanatory. It has "Verdict Sheet" up here. It has my name, the names of the attorneys and the Commonwealth versus Andre Hart. But you will notice here it's listed murder and besides [sic] murder is first degree, second degree and third degree. And below that is voluntary manslaughter and the charges of robbery and criminal conspiracy.

Now it's up to you to decide what order you want to proceed on. When you're in that jury room you decide things for yourself. However, if you find the Defendant guilty of murder of the first degree, it will not then be necessary to consider second degree, third degree or voluntary manslaughter.

If you find the Defendant guilty ... of first degree murder, the chairperson will then write under verdict guilty or not guilty. If you find him not guilty of all, either murder or manslaughter, you will then write not guilty under ... all of the homicide charges. If you find him guilty of first degree murder, it will not be necessary to consider any of the other charges.

If you find him not guilty of first degree but find him guilty of second degree, then the chairperson should write beside that charge guilty. It will not be necessary to consider third degree and manslaughter.

If you find him not guilty of first, second, and third degree, then you will consider voluntary manslaughter and put beside the verdict whatever the verdict is.

You will only consider voluntary manslaughter if you are satisfied the Commonwealth has not proven the Defendant guilty of any degrees of murder.

N.T. at 3.44-3.46 (emphasis added).

Trial counsel did not object to this instruction. After deliberating, the jury found Hart guilty of murder in the third degree. The jury also found Hart guilty of robbery and criminal conspiracy. Counsel successfully argued in post-trial motions that the robbery and criminal conspiracy charges were barred by the statute of limitations. On March 25, 1985, the court arrested judgment on the robbery and criminal conspiracy charges, and sentenced Hart for the murder charge to a term of ten to twenty years imprisonment.

Hart obtained new counsel and filed a timely notice of appeal from his judgment of sentence for murder. On appeal, counsel did not address the trial court's progression charge. Appellate counsel instead argued that trial counsel was ineffective for failing to request a point for charge on the distinction between accomplice liability for murder and liability as an accessory after the fact. A panel of this court affirmed Hart's judgment of sentence in an unpublished decision.

On May 29, 1987, Hart filed a pro se petition under the Post Conviction Hearing Act (PCHA). ² A third counsel was appointed to handle the PCHA action, and this counsel filed an amended petition on September 28, 1987. The amended petition specifically alleged that both trial counsel and counsel on direct appeal were ineffective for failing to argue that the trial court's progression charge was erroneous. On September 26, 1988, the PCHA court entered an order denying the amended petition without a hearing. Hart filed a timely appeal to this court of the order denying PCHA relief. After careful consideration, we affirm.

II.

Initially, we must consider whether the specific claim of ineffective assistance of counsel that appellant now advances was properly before the PCHA court. In order to be eligible for PCHA relief, a defendant must prove that the error which resulted in his conviction and sentence has not been either finally litigated or waived. 42 Pa.Cons.Stat.Ann. § 9543(4). A claim has been finally litigated when, inter alia, the Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals. 42 Pa.Cons.Stat.Ann. § 9544(a)(2). The PCHA court found that appellant's claim had been finally litigated on direct appeal from his judgment of sentence. We do not agree.

On direct appeal, Hart argued that counsel was ineffective for not requesting a charge clarifying the concept of accomplice liability. A Superior Court panel rejected this argument but without undertaking a general review of either counsel's representation or the trial court's instructions to the jury. Hart now challenges a different aspect of counsel's performance, i.e., counsel's failure to object to the trial court's progression charge. This allegation was never considered on direct appeal and thus cannot be deemed to be "finally litigated" so as to preclude PCHA review.

In dismissing appellant's PCHA petition, the PCHA court relied on the principle that a petitioner may not relitigate under a new legal theory an issue that was decided against her in a prior proceeding. See Commonwealth v. Curtin, 365 Pa.Super. 424, 529 A.2d 1130 (1987) (collecting cases). Under the PCHA court's analysis, whether counsel was in all respects an effective advocate is a single issue, and each challenge to an aspect of counsel's performance is a variation in theory. This approach treats the concept of "issue" too narrowly, and the concept of "theory" too broadly. As we noted in Commonwealth v. Sawyer, 355 Pa.Super. 115, 512 A.2d 1238 (1986), "A petitioner alleging ineffectiveness of counsel is not barred from seeking relief under the [Post Conviction Hearing] Act merely because he has previously unsuccessfully asserted an ineffectiveness claim, so long as the specific allegation of ineffectiveness has not previously been litigated." Id. at 121, 512 A.2d at 1241. See also Commonwealth v. Ramsey, 300 Pa.Super. 515, 517 n. 2, 446 A.2d 974, 975 n. 2 (1982). A claim that counsel was ineffective for failing to object to one portion of a jury charge is clearly distinct from a claim that counsel was ineffective for failing to request a point for charge on a different subject matter, and we find that each claim constitutes a separate issue. Accordingly, the matter before the PCHA court was not finally litigated.

We further find that appellant did not waive his present ineffectiveness claim. Appellant specifically argued with the assistance of his PCHA counsel that counsel on direct appeal was ineffective for not asserting that trial counsel was ineffective for not objecting to the progression charge. For many years, courts have declined to apply the waiver doctrine where a defendant has alleged the serial ineffectiveness of all prior counsel. See, e.g., Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985). We acknowledge that in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Pennsylvania Supreme Court departed from this practice in order to discourage the filing of repetitive PCHA petitions. Under Lawson, "a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate a miscarriage of justice may have occurred." Id. at 513, 549 A.2d at 112. Lawson, however, did not alter the law of waiver as applied to a defendant's initial PCHA petition. Since appellant has never filed a previous petition, he need not establish a "miscarriage of justice" in order to press his ineffectiveness claim.

We conclude that appellant's issue was neither finally litigated nor waived. We must therefore proceed to determine whether prior counsel were in fact ineffective for not challenging the progression charge.

III.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is whether the disputed action or omission of counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

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