Com. v. Judge

• Decision Date: 21 February 2007
• Citation: 916 A.2d 511
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roger JUDGE, Appellant.
• Court: Pennsylvania Supreme Court

916 A.2d 511

COMMONWEALTH of Pennsylvania, Appellee, v. Roger JUDGE, Appellant.

Supreme Court of Pennsylvania.

Submitted: October 5, 2006.

Decided: February 21, 2007.

Robert Brett Dunham, Esq., Defender Association of Philadelphia, Philadelphia, for Roger Judge.

Amy Zapp, Esq., Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Justice SAYLOR.

This is an appeal in a capital case from an order dismissing Appellant's petition for habeas corpus or post-conviction relief, arising out of an alleged violation by Canada of Appellant's rights under the International Covenant for Civil and Political Rights.

The background underlying Appellant's conviction for first-degree murder and subsequent death sentence has been previously discussed in this Court's opinion affirming the denial of Appellant's first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See Commonwealth v. Judge, 568 Pa. 377, 379-385, 797 A.2d 250, 252-255 (2002) ("Judge II"). In brief, Appellant was convicted of two counts of murder in the first degree and one count of possession of an instrument of a crime with regard to the shooting of Christopher Outterbridge and Tabatha Mitchell in Philadelphia on September 14, 1984. Following the penalty hearing, Appellant was sentenced to death for each of the murder convictions, as the aggravating circumstances were found to outweigh the sole mitigating circumstance. The aggravating circumstances found with regard to both victims were that Appellant knowingly created a grave risk of death to another person in addition to the victim, see 42 Pa.C.S. § 9711(d)(7), and that Appellant had a significant history of felony convictions involving the use or threat of violence, see 42 Pa.C.S. § 9711(d)(9). Concerning the murder of Mr. Outterbridge, the jury also found that Appellant had been convicted of another offense for which a sentence of life imprisonment or death was imposable. See 42 Pa.C.S. § 9711(d)(10). With regard to both murders, the sole mitigating circumstance noted by any juror was that Appellant was "under the influence of extreme mental or emotional disturbance." 42 Pa.C.S. § 9711(e)(2). Two days after he was formally sentenced, on June 14, 1987, Appellant escaped from custody. Appellant filed a pro se notice of appeal while a fugitive.

On June 15, 1988, Appellant was arrested by Canadian authorities in connection with a sequence of armed robberies, which occurred in Vancouver. The Canadian court convicted Appellant of two counts of robbery and sentenced him to two ten-year terms of imprisonment, to be served concurrently. The conviction was affirmed on appeal. See Regina v. Judge, No. CA009747, Court of Appeal for British Columbia, Mar. 1, 1991. Canada refused to extradite Appellant to Pennsylvania, pursuant to the extradition treaty between the United States and Canada, which provides that Canada will not extradite any person to face a sentence of death in the United States. See Judge II, 568 Pa. at 384, 797 A.2d at 255 (citing Treaty on Extradition, Dec. 3, 1971, U.S.-Can., 27 U.S.T. 983, T.I.A.S. No. 8237). Instead, Canada required Appellant to serve his complete sentence. See Judge v. Canada, U.N. GAOR, Hum. Rts. Comm., 78th Sess., at ¶ 2.4, U.N. Doc. CCPR/C/78/D/829/1998 (views published Aug. 5, 2003) (hereinafter "Judge III").¹

While Appellant was in Canadian custody, this Court issued an opinion affirming his convictions and sentence of death. See Commonwealth v. Judge, 530 Pa. 403, 609 A.2d 785 (1992) ("Judge I"). Due to his fugitive status, this Court limited its consideration of Appellant's claims to the statutorily mandated areas of review, see 42 Pa.C.S. § 9711(h), and review of the sufficiency of the evidence, and explained that a defendant who elects to escape from custody forfeits his right to appellate review, see Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984), but that, due to the severity and finality of the sentence of death, review of specified issues was required. See Judge I, 530 Pa. at 406, 408, 609 A.2d at 786, 787. Thus, this Court held that Appellant's convictions were supported by sufficient evidence; the sentences of death were not the product of passion, prejudice, or any other arbitrary factor; the aggravating circumstances were supported by the evidence; and the sentences of death were not excessive or disproportionate to the penalty imposed in similar cases. See Judge I, 530 Pa. at 406-15, 609 A.2d at 786-91.²

On August 9, 1998, Canada deported Appellant to New York, from where he was extradited to Pennsylvania.³ Appellant had filed a pro se petition under the PCRA on January 14, 1997, while still in Canada. Counsel was appointed and filed an amended petition on February 17, 1999, raising claims related to Appellant's convictions and sentences. The common pleas court dismissed Appellant's petition without a hearing. On appeal, this Court observed that Appellant's petition was timely, as it was filed within one year of the effective date of the amended PCRA, and that the statute's language did not require Appellant to be within the territorial jurisdiction of the Commonwealth when he filed his petition. See Judge II, 568 Pa. at 387-88, 797 A.2d at 257-58. This Court held, however, that Appellant was ineligible for relief because he forfeited the right to adjudication of his claims, which were or could have been raised on direct appeal, due to his fugitive status during direct appeal proceedings. See Judge II, 568 Pa. at 392, 797 A.2d at 260 (citing Commonwealth v. Kindler, 554 Pa. 513, 523, 722 A.2d 143, 148 (1998) ("[I]t would be anomalous to permit Appellant to prevail on this claim and then to subject the trial court to a remand order requiring it to rule on the merits of these same [issues] which were raised, or which could have been raised, at an earlier time and which could have been addressed had Appellant demonstrated some respect for the trial court and legal process.") (internal citation omitted)).⁴

Before this Court's decision on his first PCRA petition, Appellant filed a complaint with the United Nations Human Rights Committee (the "Committee"), claiming that, by deporting him to face a death sentence, Canada violated his rights under the International Covenant for Civil and Political Rights (the "ICCPR"). See International Covenant for Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force Mar. 23, 1976). The ICCPR is an international agreement that sets forth substantive and procedural rights to which all persons are entitled and establishes the Committee to monitor States-Parties' compliance with the treaty's provisions. While general reporting requirements are provided for within the ICCPR itself, it is the First Optional Protocol to the ICCPR that allows for suits by individuals who claim that their rights under the agreement have been violated. See Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 383. The United States ratified the ICCPR in 1992, see 138 CONG. REC. S4781 (daily ed. Apr. 2, 1992), but has not adopted the First Optional Protocol. Canada, however, is a signatory and thus may be subject to individual complaints before the Committee. See Office of the United Nations High Commissioner for Human Rights, Ratifications and Reservations, at http://www.ohchr.org/english/countries/ratification/5.htm (last updated Dec. 6, 2006).

With regard to capital punishment, Article 6 of the ICCPR provides:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence [sic] of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement [sic] rendered by a competent court.

* * *

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence [sic] of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

6 I.L.M. at 370. When signing the ICCPR, the United States noted its reservations with regard to Article 6, stating that "the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." See 138 CONG. REC. S4781, S4783.⁵ Additionally, the United States declared that the provisions of the ICCPR were not self-executing, see id. at S4784, and thus would require further Congressional action to be enforceable within the United States. See RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3) & (4), cmt. h (1987).

In his individual complaint against Canada, submitted to the Committee on August 7, 1998, Appellant asserted that his deportation to face a sentence of death, without assurances that the sentence would not be carried out, violated his right to life under Article 6, his right to be free from cruel and inhuman treatment or punishment under Article 7,⁶ and his right to an effective remedy under ...