Com. v. Lawson

Decision Date29 December 1988
Citation549 A.2d 107,519 Pa. 504
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Bobby Joe LAWSON, Appellee.
CourtPennsylvania Supreme Court

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellant.

Erika P. Kreisman, Pittsburgh, for appellee.



NIX, Chief Justice.

Before the Court for resolution is the Commonwealth's appeal from an order of the Superior Court, 362 Pa.Super. 625, 520 A.2d 65, affirming the hearing court's determination that, as a result of trial and appellate counsels' ineffectiveness, appellee's 1974 conviction for murder of the first degree must be vacated, the sentence of life imprisonment set aside, the appellee discharged from custody and further prosecution for this offense prohibited. This Court granted the Commonwealth's request for further review, and the parties chose to submit the matter on briefs without argument.

This appeal provides another opportunity for this Court to address the vexing problem of repetitive petitions that has arisen under our former Post Conviction Hearing Act (P.C.H.A.), 42 Pa.C.S. § 9541 et seq.,1 and its impact upon the finality of judgments of sentence in criminal cases. For the reasons that follow, we are constrained to conclude that the relief granted below was in error and that the petition should have been summarily dismissed.

The record reflects that appellee was arrested on November 28, 1973. At that time Rule 1100 required that the trial commence within 270 days from the date on which the complaint was filed.2 Thus, the 270th day from the date on which the complaint was filed was August 25, 1974. Appellee and a co-defendant, O'Neal Weathers El, were charged with killing one Kelvin Parker, in the latter's home as a result of a dispute relating to drugs. The two defendants were listed to be tried together. Appellee was represented by privately engaged counsel. A pro se, joint motion to sever was filed by the defendants, which was granted by Judge (now Justice) Flaherty. The trial of the co-defendant Weathers El concluded on June 3, 1974, and resulted in a conviction of murder in the first degree. The judgment of sentence in that case was affirmed per curiam by this Court on April 7, 1976. Commonwealth v. O'Neal Weathers El, 467 Pa. 13, 354 A.2d 250 (1976). A copy of a memorandum dated June 6, 1974, from the office of the District Attorney indicated defense counsel requested a postponement for appellee. The authenticity of that memorandum was verified by the Assistant who ultimately tried the case against appellee. Additionally the record contains an application for postponement dated September 4, 1974, and consented to by appellee's privately retained counsel. Trial in the case commenced on September 10, sixteen (16) days after the run date. The record reflects that during this period the responsibility of listing cases was handled by the office of the District Attorney3 and that through an administrative error Lawson's case was not tried immediately after the trial of the co-defendant.

A recitation of the lengthy and convoluted procedural history leading to this point in the proceedings is necessary to properly frame the issues presently before us for resolution. After trial without a jury, appellee was convicted of first degree murder on September 10, 1974. Trial counsel filed boilerplate motions for a new trial which were denied.4 No direct appeal was taken. In September of 1976, appellee, with new counsel, first sought post-conviction relief alleging ineffectiveness of trial counsel. The trial court, after consideration of that motion, granted the request and gave leave to appellee to file post-trial motions nunc pro tunc.5 On December 15, 1977, the court heard argument on the motions and dismissed the complaints.6 Appeal was taken to this Court and dismissed by a Special Transfer Docket Panel on October 17, 1979.7 Commonwealth v. Lawson, 274 Pa.Super. 641, 423 A.2d 1311 (1979). A petition for allowance of appeal to this Court was denied. A petition for writ of certiorari to the United States Supreme Court was also denied. Lawson v. Pennsylvania, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980). In February of 1981 appellee filed pro se his second application for post-conviction relief, alleging the ineffectiveness of trial and appellate counsel for failure to raise the alleged violation of Rule 1100. This petition was denied without a hearing. Following this denial, in May of 1981, petitioner filed another pro se application for post-conviction relief which was also denied. In March of 1982 appellee, with the assistance of counsel, filed yet another post-conviction petition, once again alleging trial and appellate counsel's ineffectiveness for failing to raise a Rule 1100 objection.

This appeal evidences the problems that can arise if we permit post-conviction relief to destroy any concept of finality in our decisional process in the area of criminal law. Although the Commonwealth in this very important case did not focus upon this serious concern,8 we are satisfied that its importance to the integrity of our system of jurisprudence requires our attention, albeit gratuitously.

To attempt to resolve the claim for relief requested in this repetitive post-conviction petition by examining the legitimacy of the asserted Rule 1100 violation or to engage in an assessment as to whether the failure to raise that claim constitutes ineffectiveness of counsel, as did the P.C.H.A. court and the Superior Court in this case, ignores the waiver provisions under the former P.C.H.A., 42 Pa.C.S. §§ 9543(4), 9544(b), and renders the "finally litigated" concept illusory whenever an assertion of ineffectiveness of counsel is raised. In this Court we have strictly adhered to the rule that an appellate court should consider on appeal only those issues that have been properly raised by the parties. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978). We have condemned the sua sponte raising of issues by an appellate tribunal. Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985). In this instance the Commonwealth challenges the finding of ineffectiveness on the theory of our decision in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), suggesting that the record does not show prejudice.9 Following our traditional rules, if we reach the argument as framed, we would be compelled to ignore the underlying issue raised in this appeal. The concern in this matter is the problem of repetitive petitions for collateral relief in criminal cases, not the legitimacy of the claim of the ineffectiveness of trial and appellate counsel.

Properly stated, the threshold issue is whether a proper reading of the waiver and "finally litigated" provisions of the former P.C.H.A. required that the instant petition should have been summarily dismissed without a hearing. Under the unique circumstances presented by this appeal, we deem it appropriate to depart from our long-standing rules relating to when an issue is properly before an appellate tribunal and sua sponte address this threshold issue.

The problems posed by repetitive post-conviction petitions are not new to this Court. In a number of decisions we have attempted to satisfactorily resolve this vexing problem. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980). As Mr. Justice Flaherty expressed in a dissenting opinion in Commonwealth v. Watlington, supra, at 252, 420 A.2d at 437, "a second post-conviction appeal should be the exception, not, as is presently the case, the rule." (Emphasis in original.) The General Assembly in passing the P.C.H.A. expressed the clearest possible intention not to create a vehicle for continuing assaults upon a judgment of sentence. See 42 Pa.C.S. § 9544 (repealed).10 The P.C.H.A. provided for denying further review when an issue is either finally litigated, 42 Pa.C.S. § 9544(a) (repealed), or the issue has been waived, 42 Pa.C.S. § 9544(b) (repealed). In addition, the section also created a rebuttable presumption that a failure to appeal a ruling or to raise an issue was a "knowing and understanding failure." 42 Pa.C.S. § 9544(c) (repealed). This legislative intent to obtain finality in criminal matters is also reflected in the former § 9545(c) which provides:

(c) All available grounds to be set forth.--Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

42 Pa.C.S. § 9545(c) (repealed).

The alleged violation of Rule 1100 could have been raised in the first P.C.H.A. petition filed. It could have been raised in the post-trial motions that were subsequently filed. Regrettably, overly generous judicial decisions have in fact permitted the magic words "ineffective assistance of prior counsel", regardless of the number of prior counsel, to be equated with the concept of "extraordinary circumstances" set forth under § 9544(b)(2), thereby effectively denuding the presumption provided for under subsection (c) of the same section of any significant vitality.

In Commonwealth v. Alexander, supra, this Court attempted to come to grips with this problem. Mr. Justice...

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    • April 20, 1990 be the same position taken by legislature in its recent enactment (PCRA) cited above. Additionally, in Commonwealth v. Bobby Joe Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Supreme Court recently closed the door to multiple post conviction relief appeals indicating impatience with a hy......
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