Com. v. Wharton

• Decision Date: 25 November 2002
• Citation: 811 A.2d 978,571 Pa. 85
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert WHARTON, Appellant.
• Court: Pennsylvania Supreme Court

811 A.2d 978

571 Pa. 85

COMMONWEALTH of Pennsylvania, Appellee v. Robert WHARTON, Appellant.

Supreme Court of Pennsylvania.

Submitted March 2, 1999.

Decided November 25, 2002.

Robert Brett Dunham, Philadelphia, for appellant, Robert Wharton.

Catherine Marshall, Philadelphia, for appellee, the Com. of PA.

Robert A. Graci, Harrisburg, for Office of Atty. Gen.

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

OPINION OF THE COURT

Justice CASTILLE.

Appellant appeals the trial court's denial of relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. For the reasons set forth herein, we affirm the order of the PCRA court.

This Court summarized the basic facts underlying appellant's conviction in a previous appeal, as follows:

On January 30, 1984, Appellant and Eric Mason gained entrance to the Hart residence at knife point. Appellant forced Mr. Hart to write him a check for work over which Appellant and Hart had disputed. After tying up Mr. and Mrs. Hart, Appellant and Mason took Mrs. Hart upstairs. They covered her eyes, nose and mouth with duct tape, tied her hands and feet with neckties, strangled her using a necktie, and held her head under water in the bathtub until she stopped breathing. Mr. Hart was taken to the basement where he was forced to lie down with his face in a pan of water while either Appellant or Mason held his foot on Hart's back and pulled on a[n] electrical cord around Hart's neck causing his death. Appellant and Mason also abandoned the Hart[s'] infant daughter in a bedroom after turning off the heat in the house.

Commonwealth v. Wharton, 542 Pa. 83, 665 A.2d 458, 459-60 (1995), cert. denied, 517 U.S. 1247, 116 S.Ct. 2504, 135 L.Ed.2d 195 (1996) (Wharton II).¹

In July of 1985, following a jury trial, appellant was found guilty of two counts of first-degree murder, one count of robbery, and multiple counts of criminal conspiracy and burglary. The jury returned a sentence of death for each of the murders, and the court sentenced appellant to separate consecutive terms of imprisonment on the non-capital offenses. On direct appeal, this Court affirmed appellant's convictions but vacated the sentences of death and remanded for a new sentencing hearing. The Court did so because the trial court's penalty phase jury instruction pertaining to one of the three aggravating circumstances unanimously found by the jury— specifically, that the offense was committed by means of torture—was found to be "prejudicially deficient." Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710, 723 (1992) (Wharton I). Following a second penalty hearing conducted in November and December of 1992, a jury again sentenced appellant to death and, on further appeal, this Court affirmed that sentence in 1995. Wharton II, 542 Pa. 83, 665 A.2d 458. Appellant was represented at trial and on both previous direct appeals by William T. Cannon, Esquire.

On June 28, 1996, appellant initiated the instant PCRA proceeding by filing a petition pro se. Present counsel, who were then associated with the Center for Legal Education, Advocacy, and Defense Assistance (CLEADA), and who are now associated with the Capital Habeas Unit, Federal Court Division of the Defender Association of Philadelphia, entered an appearance and filed an amended petition on January 20, 1997.² The Commonwealth filed an answer and moved that the petition be dismissed without a hearing. The PCRA court, per the Honorable Gary S. Glazer, notified appellant that his PCRA petition would be denied/dismissed in ten days without a hearing based upon the PCRA court's determination that the issues raised were without merit and/or waived. Appellant filed a response to the notice of denial/dismissal. Three days later, on June 23, 1997, the PCRA court issued an order denying PCRA relief, stating that the issues raised were "without merit and/or waived." Appellant filed for reargument, which the PCRA court denied.

Appellant appealed to this Court. On September 8, 1997, the PCRA court filed its opinion, which set forth the procedural history of the case, but then "adopt[ed] the reasoning of the Commonwealth in denying post conviction relief." Opinion, September 8, 1997, at 2. On November 5, 1999, this Court remanded to the PCRA court to file an opinion addressing all of the relevant issues. The PCRA court has since complied with that order.³ We then granted the parties leave to file supplemental briefs in light of that opinion.

Shortly after filing his Initial Brief in this matter, appellant also filed a Motion to Remand to the PCRA court to supplement his previous PCRA petition with alleged "newly discovered evidence of the impact of racial discrimination" on his trial and sentencing. The alleged newly discovered evidence consisted of a statistical study of Philadelphia death penalty cases conducted by Professors David Baldus and George Woodworth and a 1987 videotape in which a Philadelphia assistant district attorney, Jack McMahon, described his views on jury selection. See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589-90 (2000)

(describing Baldus study); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 729-30 (2000) (describing McMahon videotape). The Motion to Remand was denied by order of this Court entered on May 18, 1999.

Since the petition in this case was filed after January 17, 1996, it is governed by the 1995 amendments to the PCRA. To be eligible for relief under the legislation, a petitioner must prove by a preponderance of the evidence, inter alia, that the conviction or sentence he is collaterally attacking resulted from one of seven specifically enumerated circumstances. 42 Pa.C.S. § 9543(a)(2).⁴ In addition, the PCRA petitioner must prove that the issues he raises have not been previously litigated or waived. Id. § 9543(a)(3).

Appellant raises twenty separate claims, many of which are procedurally barred, i.e., they are previously litigated or waived under the PCRA, or they are waived for failure to raise them in the PCRA court below. For purposes of clarity, this Court will not address appellant's claims seriatim, but instead will address those claims that are procedurally barred under Pennsylvania law first.

Three of appellant's claims and a portion of a fourth were fully addressed by this Court, the highest court in which appellant was entitled to review as a matter of right, on direct appeal. 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). Accordingly, we cannot address the following three claims: (1) that the trial court violated appellant's Pennsylvania and federal constitutional rights by refusing to sever his trial from that of his co-defendants (Argument VII), because we held on direct appeal that appellant was not prejudiced by the trial court's refusal to sever his trial, Wharton I, 607 A.2d at 717-19; (2) that the trial court violated appellant's Pennsylvania and federal constitutional rights by admitting the redacted confession of his co-defendant against that co-defendant at their joint trial (Argument VIII), because we held on direct appeal that appellant was not prejudiced by the admission of the redacted confession in light of the overwhelming evidence implicating appellant as the murderer, id.;⁵ and (3) that the application to appellant's appeal of the amendments to 42 Pa.C.S. § 9711(h), which permit the Court to order a resentencing hearing upon a finding that a death sentence should be vacated, where the amendments occurred during the pendency of the appeal, constitutes an unconstitutional bill of attainder (Argument XVIII), because appellant is merely recasting his theory after we rejected his direct appeal contention that application of the amended section was an unconstitutional ex post facto law. Wharton II, 665 A.2d at 460.

In response to the Commonwealth's argument that these three claims were previously litigated, appellant admits that they were litigated on direct appeal, but asserts that he nevertheless is entitled to renew them because he has altered his theory of challenge. Specifically, appellant has added allegations that appellate counsel ineffectively litigated the claims because he did not invoke the cases or precise points that present counsel identifies (Reply Brief at 10).⁶ This attempt to overcome the statutory previous litigation bar is unavailing for it is well-settled that a PCRA petitioner cannot obtain additional review of previously litigated claims by presenting new theories of relief including allegations of ineffectiveness. See Commonwealth v. Bond, ___ Pa. ___, ___ A.2d ___, ___, 2002 WL 1958492 at *3 (Aug. 23, 2002); Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 & n. 2 (2001); Commonwealth v. McCall, 567 Pa. 165, 786 A.2d 191, 195-96 (2001); Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1988). Notably, appellant's argument on reply ignores this settled procedural authority.

In addition, we will not address the portion of Argument XII, concerning alleged admission of victim impact evidence, which pertains to testimony regarding the physical condition of the victims' seven-month-old daughter or photographs of the victims taken before the murders. This is so because we held in appellant's initial direct appeal that the testimony concerning the infant's condition was properly admitted, Wharton I, 607 A.2d at 719-20, and, on direct appeal of appellant's resentencing hearing, we held that appellant was not prejudiced by the admission of a photograph of the victims taken before they were brutally murdered. Wharton II, 665 A.2d at 463.⁷

Appellant raises the following nine additional issues sounding in alleged trial court error or prosecutorial misconduct which could have been raised on direct appeal, but were not:

(1) Appellant was denied due

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