Com. v. Lambert

Citation797 A.2d 232,568 Pa. 346
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. James LAMBERT, Appellant.
Decision Date31 December 2001
CourtUnited States State Supreme Court of Pennsylvania

Daniel Silverman for appellant.

Catherine Marshall, Robert A. Graci, Philadelphia, for appellee.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice CASTILLE.

In this appeal from the denial of appellant's petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq., appellant alleges various claims of trial court error, prosecutorial misconduct, and ineffective assistance of counsel. 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.1

Appellant was convicted on April 25, 1984, of first degree murder, robbery, conspiracy, and related offenses in connection with the murder of two patrons during a robbery of a bar in Philadelphia.2 The jury found three aggravating circumstances, which it determined outweighed the single mitigating circumstance it found and, therefore, returned a sentence of death.3 This Court affirmed appellant's conviction and sentence on direct appeal. Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992). Appellant was represented by the same counsel at trial and on direct appeal.

Appellant filed a pro se PCRA petition on June 15, 1995. Several attorneys were appointed by the PCRA court and subsequently permitted to withdraw. Ultimately, appellant retained present counsel, who filed an amended petition on January 30, 1997. Supplemental petitions were filed on July 30, 1997 and October 23, 1997. On January 29, 1998, the PCRA court dismissed the petition without a hearing. This appeal followed.4 Because appellant's initial petition in this matter was filed before January 17, 1996, the effective date of numerous amendments to the PCRA, his petition is governed by the version of the PCRA in effect prior to that time. To be eligible for relief under that version of the PCRA, appellant must plead and prove by a preponderance of the evidence all of the following:

(1) That the person has been convicted of a crime under the laws of this Commonwealth and is
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(iv) The improper obstruction by Commonwealth officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.
(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.

42 Pa.C.S. § 9543(a).

At the outset, appellant raises several claims that were addressed by this Court on direct appeal; the claims therefore would appear to be previously litigated. Under the PCRA, a claim is previously litigated if, inter alia, the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2).

Appellant argues that, for various reasons, none of his claims should be deemed previously litigated. Thus, appellant contends that the trial court erred in: (1) prohibiting him from presenting evidence of other crimes committed by his co-conspirators (Argument II); and (2) allowing his co-defendant to present testimony of a witness which identified appellant as the shooter after ruling that the Commonwealth could not present the same evidence (Argument III). Appellant argues that these claims were not previously litigated on direct appeal because, there, he argued that these trial court errors were only examples of how he was prejudiced by a joint trial with co-defendant Bruce Reese, rather than as separate, stand-alone claims of trial court error. Appellant's distinction is immaterial for previous litigation purposes. The relevant point is that, on direct appeal, this Court addressed the propriety of those evidentiary rulings in our determination that the trial court did not err in denying appellant's motion for severance. Lambert, 603 A.2d at 574 (holding that, even in separate trial, other crimes evidence would not have been admissible and identification testimony would have been admissible). Moreover, that discussion was not mere dicta but was necessary to the ruling on the severance claim. We could not grant relief to appellant on his present claims without disavowing the previous ruling. Because the merits of these claims were decided by the Court on direct appeal, they have been previously litigated and are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 598 (2000).

Appellant attempts to revive three other previously litigated claims by arguing that appellate counsel was ineffective in the manner in which he raised and presented the claims on direct appeal. The three such claims litigated on direct appeal are appellant's claims that (1) the trial court erred in denying his motion for severance (Argument IX) (rejected at Lambert, 603 A.2d at 572-75); (2) there was racial bias in jury selection (Argument X) (rejected at id. at 577); and (3) the trial court erred in defining "preponderance of the evidence" as "less of a margin than by a reasonable doubt" (Argument XVIII) (rejected at id. at 576-77). Generally, a PCRA petitioner cannot obtain post-conviction review of claims that were previously litigated by alleging ineffectiveness of prior counsel and presenting new theories to support the previously litigated versions of the claims. See, e.g., Miller, 746 A.2d at 602 n. 9

; Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998); Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 476 (1998). Because appellant is merely attempting to re-litigate claims that were litigated on direct appeal, these claims are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3).

Ten of appellant's remaining claims concern issues that could have been raised on direct appeal but were not and they are, therefore, waived under the PCRA. 42 Pa.C.S. § 9544(b) (issue is waived if petitioner failed to raise it and it could have been raised before trial, at trial, on appeal, in habeas corpus proceeding, or in prior proceeding under PCRA); Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786 A.2d 203, 212-13 (2001)5 Six additional claims were not raised in appellant's PCRA petition and, accordingly, are waived for that distinct reason. Pa.R.A.P. 302(a) ("Issues not raised before the lower court are waived and cannot be raised for the first time on appeal."); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 725 (2000); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 704 (1998).6

Appellant recognizes that the claims identified in footnote five are waived under the PCRA. He addresses the waiver by appending boilerplate allegations of ineffective assistance of prior counsel for failing to raise or properly litigate these issues on post-verdict motions and/or direct appeal. In a related argument, appellant addresses the waiver of one of the claims identified in footnote six by appending an additional boilerplate allegation that present counsel, who also represented appellant in the PCRA proceeding below, was ineffective for failing to raise the issue. (Specifically, appellant alleges that present PCRA counsel was ineffective for failing to claim that appellant was denied his right to testify during the guilt phase (included as part of Argument XII)).

None of the claims in footnotes five and six are identified as ineffectiveness claims in appellant's statement of questions presented or even in his argument headings. In addition, appellant's allegations of ineffectiveness with respect to these waived claims invariably consist of no more than a one-sentence conclusory statement that counsel was ineffective for failing to raise the claim at trial, on direct appeal, or in the PCRA proceeding....

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