Com. v. Jones

• Citation: 815 A.2d 598,572 Pa. 343
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gilbert JONES, Appellant.
• Decision Date: 31 December 2002
• Court: United States State Supreme Court of Pennsylvania

815 A.2d 598

572 Pa. 343

COMMONWEALTH of Pennsylvania, Appellee, v. Gilbert JONES, Appellant.

Supreme Court of Pennsylvania.

Submitted March 10, 2000.

Decided December 31, 2002.

Reconsideration Denied February 20, 2003.

Robert Brett Dunham, Philadelphia, James Moreno, for Gilbert L. Jones.

Catherine Marshall, Philadelphia, for Commonwealth of PA.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice CASTILLE.

This is an appeal from the denial of appellant's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541 et seq. For the reasons set forth below, we find that appellant is not entitled to relief and, accordingly, we affirm the order of the PCRA court.

On December 23, 1990, appellant met his former girlfriend, Edna Dorsey, in a South Philadelphia bar. When Ms. Dorsey rejected appellant's proposition that she resume seeing him, even though he intended to marry another woman, appellant drew a handgun and shot Ms. Dorsey in the neck, and then shot her three more times as she lay on the floor, killing her. Appellant left the bar and drove to his home at 6133 Walnut Street in West Philadelphia where he saw Earl Jones, who had been convicted of voluntary manslaughter in the stabbing death of appellant's son six years earlier, entering the house next door. Appellant retrieved a .30-.30 caliber rifle from his house, forced his way into the house next door, and chased Jones upstairs. Jones entered the front bedroom, where Jacqueline Jones, Alan Whitfield, and Felicia Hubert were watching television, and escaped through the window. Appellant entered the bedroom and killed Jacqueline Jones, Whitfield, and Hubert.¹

On August 18, 1992, a jury found appellant guilty of four counts of first degree murder, two counts of possessing an instrument of crime, and one count of burglary. Following a penalty hearing, the jury returned verdicts of death on three of the murder counts and a sentence of life imprisonment on the fourth. In addition, the trial court later sentenced appellant to concurrent terms of one to five years on each of the possession of an instrument of crime charges and ten to twenty years on the burglary charge. Appellant was represented at trial and on post-verdict motions by Edward Daly, Esquire.

Represented by new counsel, Mitchell Scott Strutin, Esquire, appellant appealed to this Court, raising nearly two dozen claims, most involving allegations that trial counsel had been ineffective. This Court reviewed the claims on the merits and affirmed the convictions and sentences on September 18, 1996. Commonwealth v. Jones, supra.

On January 17, 1997, appellant filed a pro se PCRA petition. John Cotter, Esquire, was appointed to represent appellant. Attorney Cotter filed an amended petition and supporting memorandum of law on September 9, 1997. On May 8, 1998, the PCRA court, per the Honorable C. Darnell Jones, II, dismissed the amended petition without a hearing, and Attorney Cotter filed an appeal to this Court.

After the notice of appeal was filed, James Moreno, Esquire, of the Capital Habeas Unit of the Federal Court Division of the Defender Association of Philadelphia, entered an appearance, and appointed counsel subsequently withdrew. Judge Jones filed an opinion on December 9, 1998, addressing the four issues which appellant had raised in his amended petition.

Attorney Moreno then filed a brief in this Court, listing sixteen claims for relief, and a separately-bound "Index." The Index includes a copy of Attorney Cotter's amended PCRA petition, as well as a 164-page document, styled as a "Second Amended Petition for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania Constitution and for Statutory Post Conviction Relief under the Post Conviction Relief Act." The Second Amended PCRA Petition is dated November 8, 1999, the same day that appellant filed his brief in this Court, but is captioned as being in "The Court of Common Pleas of Philadelphia County, Pennsylvania." There is neither representation nor record indication that appellant actually filed, or attempted to file, the Second Amended PCRA Petition in the court below.²

Appellant's brief in this Court raises essentially the same claims set forth in the non-record Second Amended PCRA Petition. The claims, as stated in the brief, are as follows:

1. Whether appellant is entitled to relief from his invalid conviction and sentence despite his failure to raise these claims in prior proceedings because he was denied his right to effective assistance of post-conviction counsel rendering the reliability of the PCRA proceedings invalid.

2. Whether trial counsel violated appellant's right to effective counsel by disclosing to the Commonwealth damaging information contained in a psychiatric evaluation that was privileged and confidential pursuant to the attorney-client privilege and not otherwise discoverable, resulting in the Commonwealth's presentation of appellant's expert as an adverse witness.

3. Whether appellant is entitled to a new trial because the Commonwealth materially interfered with his ability to present both a guilt-phase and sentencing phase defense through its subjugation of his attorney-client privilege and right to effective assistance of counsel.

4. Whether trial counsel's failure to investigate and present at sentencing readily available evidence of appellant's profound brain damage, delirium, schizoaffective disorder, alcohol and drug abuse, head injuries, behavioral changes and emotional trauma at the time of the offenses violated appellant's right to the effective assistance of counsel.

5. Whether appellant is entitled to relief from his conviction and sentence because trial counsel was ineffective at the guilt phase for failing to investigate, develop and present diminished capacity based on appellant's brain damage, delirium, dementia, mental illness and drug and alcohol abuse the day of the offenses.

6. Whether trial counsel deprived appellant of his right to the effective assistance of counsel by presenting an insanity defense that had no basis in fact or law.

7. Whether appellant is entitled to a new trial and sentencing because he was constructively denied counsel during both aspects of his capital trial by counsel's presentation of a baseless defense and his abject failure to investigate and present any mitigating evidence upon which the jury could predicate a life sentence.

8. Whether the Commonwealth's discriminatory exercise of peremptory challenges to exclude African-Americans from the jury in this case on the basis of race violated appellant's rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 9 and 26 of the Pennsylvania Constitution.

9. Whether appellant's death sentence violates the Pennsylvania capital sentencing statute, the Pennsylvania Constitution, the Sixth, Eighth and Fourteenth Amendments, International law, and United States treaty obligations because it was the impermissible product of racial discrimination.

10. Whether appellant's death sentence must be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be statutorily ineligible for parole.

11. Whether counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct at trial that denied appellant due process, and for failing to litigate these issues at all stages of his appellate and post-conviction proceedings.

12. Whether the trial court improperly instructed the jury on reasonable doubt at both the guilt and penalty phases of trial.

13. Whether the trial court failed to properly instruct the jury on the nature and use of aggravating and mitigating factors, in violation of the Eighth and Fourteenth Amendments.

14. Whether trial counsel rendered ineffective assistance of counsel by failing to adequately advise and discuss with appellant his right to choose between a bench trial or a jury trial.

15. Whether the trial court violated appellant's right to due process by failing to conduct a colloquy concerning his right to choose a jury trial and by ultimately subjugating that right.

16. Whether trial counsel's failure to adequately advise appellant on the Commonwealth's plea offer and his failure to recognize appellant's compromised mental state due to over-medication denied him his right to the effective assistance of counsel.

Initial Brief of Appellant, 2-3 (Statement of Questions Presented).³

In addition to the issues specifically argued in his brief, appellant attempts to expand issue number 9 by "incorporat[ing] by reference" the non-record Second Amended PCRA Petition. Initial Brief of Appellant, 63. We cannot consider the Second Amended PCRA Petition for several reasons. First, this document is not of record and, indeed, was not part of the litigation below. Second, this appeal involves the PCRA court's denial of appellant's counseled, first amended PCRA petition. As the Commonwealth notes, appellant "does not ... have the right to amend his PCRA petition after the lower court has already denied it." Brief for Appellee, 41-42 & n. 26. A serial or subsequent PCRA petition may not be entertained while such an appeal is pending. See Lark, 746 A.2d at 588 ("[W]hen an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review."). Third and finally, this Court has repeatedly held that all claims for appellate relief must be set out in the brief itself and may not merely be incorporated by reference. See Bond, ___ A.2d at ___, 2002 WL 1958492, at *15; Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1092 n. 3 (1993).

To be eligible for relief under the PCRA, an appellant must...