Com. v. Wallace

Decision Date22 January 1999
Citation555 Pa. 397,724 A.2d 916
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. William WALLACE, Jr., Appellant.
CourtPennsylvania Supreme Court

Peter K. Darragh, Hickory, for W. Wallace, Jr. Michael J. Fagella, Washington, Robert A. Graci, Harrisburg, for the Com.

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

OPINION

NIGRO, Justice.

This is a direct appeal from the Order of the Court of Common Pleas of Washington County denying post-conviction relief in a capital case.1 For the reasons presented herein, we affirm.

On August 17, 1979, Henry Brown and Appellant William Wallace, Jr. robbed Carl's Cleaners in Cannonsburg, Pennsylvania. In the course of the robbery, Appellant shot and killed the store owner, Carl Luisi, Sr., and a fifteen-year-old employee, Tina Spalla. Appellant was arrested on August 20, 1979, and Brown was apprehended shortly thereafter.

Trial commenced on December 3, 1980, but a mistrial was declared when the jury proved unable to reach a unanimous verdict. On February 2, 1981, a second trial began. Appellant was subsequently convicted of robbery, criminal conspiracy, first-degree murder for the killing of Tina Spalla, and second-degree murder for the killing of Carl Luisi, Sr.. The jury returned a sentence of death for the first-degree murder conviction. On direct appeal, however, this Court reversed and remanded for a new trial. See Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983)

. Consequently, on October 21, 1985, Appellant's third jury trial commenced. At this trial, Henry Brown, Appellant's accomplice, who had not testified at the first two trials, testified against Appellant. Appellant was again convicted of first- and second-degree murder, robbery, and conspiracy. The jury again returned a sentence of death, which the court formally imposed on April 14, 1987.2 On appeal, this Court affirmed the judgments of sentence. See Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989).

On June 12, 1995, Appellant filed a pro se petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After the appointment of counsel and the filing of an initial amended petition, a second amended petition was filed on September 1, 1995. A hearing was held on November 6, 1995, after which the PCRA court denied relief. Pursuant to 42 Pa.C.S. § 9546(d), Appellant then appealed to this Court.

To be eligible for PCRA relief, Appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in [42 Pa.C.S.] section 9543(a)(2) and that his issues have not been previously litigated. An issue is deemed finally litigated for purposes of the PCRA if "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). If the allegations of error have not been finally litigated, Appellant must also demonstrate that those allegations of error have not been waived or that, if waived, either the conditions listed in section 9543(a)(3)(ii) or (iii) are met. 42 Pa.C.S. § 9543(a)(3). An issue is deemed waived "if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, [or] on appeal..." 42 Pa.C.S. § 9544(b). Finally, Appellant must demonstrate that the failure to litigate the issue prior to, or during trial, or on direct appeal could not have resulted from any reasonable tactical decision of counsel. 42 Pa.C.S. § 9543(a)(4).

Commonwealth v. Banks, 540 Pa. 143, 148-49, 656 A.2d 467, 469-70 (footnotes omitted), cert. denied, 516 U.S. 835, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995).3 Two of Appellant's claims have been previously litigated. First, Appellant argues that the trial court erred in allowing Henry Brown to testify because his testimony was improperly obtained by the prosecution in return for a second plea agreement and a reduced sentence offered after Brown was allowed to withdraw his original guilty plea. As Appellant concedes, see Appellant's Br. at 54, this claim was raised and disposed of by this Court on direct appeal. See Wallace, 522 Pa. at 312,

561 A.2d at 726 (admission of Brown's testimony was "harmless" because "every aspect of the bargain between Brown and the prosecution was presented to the jury in painstaking detail"). Accordingly, the claim is not reviewable under the PCRA. See 42 Pa.C.S. § 9543(a)(3).

Second, Appellant argues that the trial court erred in not permitting him to impeach the testimony of Anita Johnson and Henry Brown with a prior inconsistent statement by Ms. Johnson, Brown's girlfriend. Appellant is referring to a written statement given to State Troopers by Ms. Johnson wherein she stated that Brown had told her that he killed Tina Spalla. As above, this claim was disposed of by this Court on direct appeal. See Wallace, 522 Pa. at 310,

561 A.2d at 725 (finding the claim to constitute "harmless error at best"). It is therefore not reviewable under the PCRA.4

See 42 Pa.C.S. § 9543(a)(3).

Appellant also argues that the PCRA court erred in concluding that a number of the issues raised in his PCRA petition have been waived. He contends that this Court must review all of his issues on the merits, despite any waiver, in accordance with our relaxed waiver rule in capital cases. In Commonwealth v. Albrecht, however, this Court held that "while it has been our `practice' to decline to apply our ordinary waiver principles in capital cases, we will no longer do so in PCRA appeals." Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998) (citations omitted). This holding was based in part on the recognition that the very terms of the Post Conviction Relief Act exclude waived issues from the class of cognizable PCRA claims. Id.; see also 42 Pa.C.S. § 9543(a)(3) (to be eligible for relief under the PCRA, a petitioner must prove that the allegation of error has not been waived). Thus, under Albrecht, the relaxed waiver rule is no longer applicable in PCRA appeals and therefore, any claims that have been waived by Appellant are beyond the power of this Court to review under the terms of the PCRA.5

Appellant, however, also presents several claims of the ineffective assistance of trial counsel. Since the PCRA petition marked the first opportunity Petitioner had to challenge the effectiveness of his trial counsel, who also represented him on his direct appeal to this Court, these claims raised in Appellant's PCRA petition are not waived. See Commonwealth v. Morales, 549 Pa. 400, 409, 701 A.2d 516, 520 (1997)

(waiver will be excused under the PCRA if appellant makes proper claim of ineffective assistance of counsel); Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994) (in order to preserve ineffectiveness claims under PCRA, claims must be raised at earliest stage in proceedings at which allegedly ineffective counsel is no longer representing the claimant); Commonwealth v. Johnson, 516 Pa. 407, 412, 532 A.2d 796, 799 (1987) (orthodox method of avoiding waiver when seeking post-conviction relief has been to raise claim of ineffectiveness of trial counsel at first available opportunity, namely, at the moment when the defendant is represented by different counsel either on direct appeal or on collateral review). As such, these claims of trial counsel's ineffectiveness are reviewable under the PCRA.

To prevail on a claim alleging counsel's ineffectiveness, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness. See Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994)

; Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994). In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999); Douglas, 537 Pa. at 597,

645 A.2d at 230. Such a showing effectively demonstrates that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place," as required by Section 9543(a)(2)(ii) of the PCRA. Kimball, supra.6

Appellant's first cognizable claim of ineffectiveness involves the situs of jury selection for his third trial. Prior to Appellant's third trial, defense counsel moved for a change of venire due to concerns regarding pre-trial publicity. The motion was granted and, pursuant to Pennsylvania Rule of Criminal Procedure 312, the order was certified to this Court, which then designated Somerset County as the site of jury impanelment.

Appellant, an African-American, now argues that he was denied a fair trial because jury selection took place in Somerset County, which "virtually guaranteed the absence of black jurors." Appellant's Br. at 46. Appellant claims that trial counsel was ineffective for failing to request at the outset that the jury be drawn from a county with a substantial population of African-Americans.

This claim is meritless. A defendant has no right to a jury containing a certain number of members of his race. Defendants are "not entitled to the services of any particular juror but only as to twelve unprejudiced jurors." Commonwealth v. Albrecht, 510 Pa. 603, 618, 511 A.2d 764, 771 (1986) (quoting Commonwealth v. Fisher, 447 Pa. 405, 410, 290 A.2d 262, 265 (1972)), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). Given this, Appellant's ineffectiveness claim fails because his underlying claim is without merit. See Douglas, 537 Pa. at 597,

645 A.2d at 230.

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