Com. v. Pursell

Decision Date19 January 1999
Citation555 Pa. 233,724 A.2d 293
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Alan PURSELL, Appellant.
CourtPennsylvania Supreme Court

Alan Pursell, Pro se.

William R. Cunningham, Kenneth A. Zak, Erie, for the Com.; Robert A. Graci, for Office of the Atty. Gen.



NEWMAN, Justice.

Alan Pursell (Appellant) appeals an Order of the Court of Common Pleas of Erie County that denied his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq., which challenged his conviction and sentence of death for murder in the first degree.1 We affirm the order of the PCRA court.


In the Opinion announcing this Court's decision in Appellant's direct appeal, the facts of this case were summarized as follows:

On July 24, 1981, in a secluded wooded area of Lawrence Park Township, James Feeney found the victim's nude body, its face drenched with blood. A twenty-five-foot tree branch lay across the throat which was wrapped in shirt material. After viewing the corpse, the County Coroner estimated that the victim had been dead for twelve to fifteen hours, placing the time of death between midnight and three o'clock, a.m., on July 24, 1981. An autopsy revealed that prior to death, the victim had sustained fifteen blows to the head with a jagged, blunt object, and had suffered various bruises, a broken nose, internal hemorrhaging in the neck, swollen eyes, and a crushed windpipe. The crushed windpipe was determined to be the cause of death. After the victim's death, his body was subjected to burns on parts of the torso, and trauma to the chest and scrotum, part of which was crushed.
A blood-covered jagged rock was found near the body. The blood was similar to the victim's; the lacerations and punctures on the victim's head were caused by this rock. The nearest rocks were two hundred feet from the body and were similar to the rock used to strike the victim. A pair of glasses found near the body was identified as those made and sold to Appellant by his optometrist, Dr. Perry. On July 25, 1981, the day following the death, Appellant returned to Dr. Perry and ordered another, identical pair of glasses.
Blood found on Appellant's shoes was consistent with that of the victim's. Blood was also found on other items of clothing worn by Appellant on July 24, 1981. This blood could not be accurately examined because the clothes had been washed.
Appellant's mother testified that Appellant came home on July 23, 1981, at 10:30 p.m. She recalled that he was covered with blood and asked her to say that he had come home early. Mrs. Pursell also testified that she was extremely upset when she heard about the murder on the evening news (July 24, 1981) — so much so that she required medication to calm down — and that Appellant was aware of her reaction upon hearing of the victim's death.
Finally, on July 27, 1981, while listening to a newscast reporting developments in this case, Appellant turned to his girlfriend, with whom he was watching the seven o'clock newscast, and asked whether she thought a person could be traced through his glasses. No mention had been made in any report that glasses had been found at the scene.

Commonwealth v. Pursell, 508 Pa. 212, 218-220, 495 A.2d 183, 186-187 (1985). On July 28, 1981, police arrested the Appellant and a jury in the Erie County Court of Common Pleas later tried him with the Honorable Jess S. Jiuliante presiding. The jury returned a verdict of guilty of first-degree murder on January 26, 1982, and at the conclusion of the penalty phase of the trial, the jury sentenced the Appellant to death.

The trial court, sitting en banc, denied Appellant's post-trial motions and formally imposed the sentence of death. The record in this case reveals that while this case was pending before the trial court and court-appointed counsel represented the Appellant, pro se pleadings were also filed by Appellant, including the following:

December 7, 1981 Motion to Set Pre-verdict Bond

December 13, 1982 Motion for Court Ordered Contact Visit for Petitioner with His Wife and Two Children

December 13, 1982 Motion for Transcripts of Previous Proceedings
March 24, 1983 Declaration of Defendant in Support of Marsden Hearing

December 16, 1982 Motion for Court Ordered Legal Supplies (Stationery)

December 16, 1982 Motion for Co-Counsel Status of Defendant
December 16, 1982 Petition for Order Compelling Investigation of Perjury Prosecution Witnesses
December 16, 1982 Motion for Defendant to Proceed in Propria Persona
January 10, 1983 Motion to Disqualify All Assistant District Attorneys and to Have a District Attorney (or Assistant) from Outside of Erie County
March 8, 1983 Motion to File Amendments to Defendant's Motion for Arrest of Judgment and/or New Trial Filed by Counsel for Defendant
August 31, 1983 Petition for a Writ of Habeas Corpus
February 1, 1984 Application for Order Mandating Clerk of Courts and/or Court Stenographer to Furnish Court Records

and Transcribed Notes of Testimony In Forma Pauperis

On direct appeal, this Court affirmed the judgment of sentence on June 26, 1985. The Appellant then filed the following pro se petitions seeking post conviction relief:

September 15, 1986 Petition for Appointment of Counsel to Help Prepare a P.C.H.A.2 Petition

September 25, 1990 Application for Order Mandating Clerk of Courts, and/or Court Stenographer, and/or Attorney Dennis Williams, or Attorney Michelle Hawk, to Furnish Court Records and Transcribed Notes of Testimony In Forma Pauperis, of Defendant's Capital Trial for Utilization in Pending Federal Court Litigation
December 7, 1990 Application for the Appointment of Legal Counsel to Represent the Defendant Alan Pursell, in Post-Conviction Collateral Proceedings, Under 42 Pa.C.S. § 9541 et. seq., pursuant to Rule 1504(a), (c), (d) of the Pennsylvania Rules of Criminal Procedure, and, the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Pennsylvania Constitution, and, 42 Pa.C.S. § 250, In Forma Pauperis Pursuant to Rule 1504(e) of the Pennsylvania Rules of Criminal Procedure
May 29, 1991 Application for Extraordinary Relief to Assume Plenary Jurisdiction of Matters Pending Before the Court of Common Pleas

Judge Jiuliante appointed counsel to represent Appellant to prepare a post conviction relief petition on June 24, 1991. Court-appointed counsel filed an amended PCRA petition that raised three issues. After court-appointed counsel filed the Amended PCRA Petition, the Appellant requested new counsel. He also requested leave to supplement the counseled Amended PCRA Petition.3 The trial court denied both of those motions and later denied the Amended PCRA Petition on March 26, 1993. Judge Jiuliante did not file an Opinion, but the Order stated that the issues raised in the Amended PCRA Petition were previously litigated or waived.4

The Appellant then filed this pro se appeal. He raises the three issues addressed by the PCRA court and twenty-seven claims that court-appointed PCRA counsel declined to advance, and which the trial court refused to allow him to raise pro se while counsel represented him. On January 15, 1997, this Court directed the trial court to prepare a Statement of Reasons in Support of its Order dated March 26, 1993.

Because Judge Jiuliante is now a senior judge on the Commonwealth Court, this case was assigned to the Honorable Ernest J. DiSantis, Jr., who conducted a status conference. After that status conference, Robert B. Dunham, Esquire, an attorney for the Pennsylvania Capital Resource Center, presented the PCRA court with an unfiled motion on the Appellant's behalf requesting another status conference. Mr. Dunham did not file an entry of appearance, nor did he file his motion with the Court of Common Pleas. Nevertheless, the PCRA court held a second status conference via telephone on March 21, 1997 and permitted Mr. Dunham to represent the Appellant. The notes of testimony from that status conference are included in the record transmitted to this Court.

During that status conference, Mr. Dunham informed the court that Appellant had retained his organization. Notes of testimony, March 21, 1997, p. 6. He asked the court to conduct an evidentiary hearing and to permit him to file another amended PCRA petition. Id. at 5, 6. In the alternative, Mr. Dunham requested permission to file a brief for Appellant.5Id. at 8. The PCRA court denied those requests and issued an Opinion on April 25, 1997, which addressed the merits of the three issues raised in the amended PCRA petition filed by previous court-appointed counsel. Judge DiSantis concluded that Judge Jiuliante properly determined that Appellant was not entitled to relief based on the three issues raised in the amended PCRA Petition. Regarding the additional issues that Appellant has raised in this appeal, Judge DiSantis stated the following:

After this Court's review of the appellate record, it appears that appellant has raised additional claims, all or some of which were included in his pro se motion which was filed prior to his counseled amended PCRA petition. The amended petition included only those claims PCRA counsel deemed meritorious. This Court has not addressed those pro se claims not included in the amended petition because to do so would exceed the Supreme Court's mandate. Nevertheless, although I do not make it formally a part of my review, it would appear that those claims are also barred by the PCRA's waiver provision. However, I leave it to the Supreme Court to determine whether or not it wishes to address appellant's pro se claims as part of its review.

Opinion of the trial court, April 21, 1997, p. 9-10, n. 3.



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