Com. v. Whitney

• Decision Date: 07 May 1998
• Citation: 550 Pa. 618,708 A.2d 471
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Raymond WHITNEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 471

708 A.2d 471

550 Pa. 618

COMMONWEALTH of Pennsylvania, Appellee, v. Raymond WHITNEY, Appellant.

Supreme Court of Pennsylvania.

Submitted July 12, 1996.

Decided Feb. 26, 1998.

Reargument Denied May 7, 1998.

[550 Pa. 624] Mitchell Scott Strutin, Philadelphia, for R. Whitney.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for the Commonwealth.

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

OPINION OF THE COURT

FLAHERTY, Chief Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying the motion of appellant, Raymond Whitney, for post-conviction relief following his conviction of, among other things, first degree murder and the imposition of the death sentence.

The circumstances surrounding the criminal episode were stated in Commonwealth v Whitney, 511 Pa. 232, 236-37, 512 A.2d 1152, 1154-55 (1986) as follows:

[S]hortly before 4:00 A.M. on October 10, 1981, a man gained access to the second floor apartment of Juliana Minor through a window. The man, identified later that night by Ms. Minor as appellant, came into her bedroom where she lay in bed. Armed with a knife, he threatened to kill her if she wasn't quiet. He asked if she recognized him; she responded that she didn't. He then announced that he was in the "wrong" apartment. Nonetheless, he stole items from her jewelry box, cut her telephone wire, and soon thereafter left through a window onto a ledge.

Moments later appellant entered the apartment of Jehad Taha and Mahin Murtaza, husband and wife, just two doors away from Ms. Minor's apartment on the same floor. Realizing that someone was in the apartment, Mr. Taha got out of bed and went to the living room to investigate. Mrs. Murtaza heard someone hit her husband and she attempted to contact the police on the bedroom phone. Before she was able to get through she saw her husband at the bedroom door, blood running from his chest and face, with appellant standing behind him holding a knife to his neck. As Mrs. Murtaza hung up the phone appellant threw Mr. Taha to the bed and approached Mrs. Murtaza, holding his knife to her chest. Appellant demanded money and jewelry. She gave him jewelry from a candle case; appellant forcibly removed what jewelry the victims were wearing. He then announced his desire to rape Mrs. Murtaza and tore off her brassiere. Before carrying these intentions further he repeated his demand for money, and was told by Mrs. Murtaza that their money was in the living room in her purse. Appellant ordered Mr. Taha up from the bed and pushed him toward the living room. Still bleeding Mr. Taha headed for the bathroom, at which point appellant attacked and stabbed him again. Appellant forced Mr. Taha into the living room where Mrs. Murtaza emptied the small amount of change in her purse onto the floor. Appellant expressed his disappointment. In a relaxed and "very cool" manner he opened the refrigerator, took out a glass container and drank some water. Then he advanced on Mrs. Murtaza, hugged her, touched her breast and reiterated his intent to have intercourse with her. He struck her and threw her to the floor next to her husband. Mr. Taha protested, but was struck in the face and ordered to put his neck down. Appellant then stabbed him again and repeatedly stated that he was going to kill Mr. Taha and then would rape her. At this point appellant opened his pants and drew out his penis. Mr. Taha arose and began to scuffle with appellant; Mrs. Murtaza ran out of the apartment and onto the street where she saw two police officers, Sergeant Wagner and Officer Miller. She directed them to the apartment where the police officers observed appellant crouched over Mr. Taha pulling a knife out of Taha's chest. Appellant was immediately arrested. Mr. Taha died subsequently as a result of twenty-eight stab wounds to his body.

Appellant was convicted by a jury of two counts of burglary, two counts of robbery, two counts of possession of an instrument of crime, terroristic threats, indecent assault, attempted rape, and murder in the first degree. Whitney, 511 Pa. at 235, 512 A.2d at 1153-54. Following a sentencing hearing, the jury rendered a verdict of death finding that the aggravating circumstances ¹ outweighed the mitigating ones. ² Id. at 248-50, 512 A.2d at 1161. Post-verdict motions were denied and appellant was formally sentenced to death. Id. at 235, 512 A.2d at 1154. On direct appeal, this court affirmed both the conviction and the sentence. Id. at 251, 512 A.2d at 1162 (1986).

Appellant filed a pro se petition in 1990 seeking post-conviction relief. The PCRA court stayed appellant's warrant of execution pending disposition of the petition and appointed counsel. Following an evidentiary hearing, post-conviction relief was denied. This appeal followed.

Appellant must demonstrate eligibility for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9543. The following deals with the PCRA as it existed in early 1995, the time frame of appellant's PCRA filings and the lower court's decision. ³ Sections 9543(a)(2) and (3) required, in relevant part, the following:

(a) General rule.--To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:

...

(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.

...

(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.

42 Pa.C.S. §§ 9543(a)(2) and (3) (1988).

The first inquiry here is whether an allegation of error has been previously litigated. The term "previously litigated" means that the highest appellate court wherein the petitioner could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544. See, Commonwealth v. Szuchon, 548 Pa. 37, 41-43, 693 A.2d 959, 961 (1997), cert. denied 517 U.S. 1212, 118 S.Ct. 224, 139 L.Ed.2d 157 (1997); Commonwealth v. Crawley, 541 Pa. 408, 413, 663 A.2d 676, 678 (1995), cert. denied, 517 U.S. 1212, 116 S.Ct. 1832, 134 L.Ed.2d 936 (1996); Commonwealth v. Beasley, 544 Pa. 554, 563-64, 678 A.2d 773, 777 (1996), cert. denied --- U.S. ----, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997).

The next inquiry is whether the allegation of error has been waived. An issue has been waived where the petitioner fails to raise it when it could have been raised at trial or on appeal, 42 Pa.C.S. § 9544(b), and an anti-waiver rule does not apply, 42 Pa.C.S. §§ 9543(a)(3)(ii) or (iii). See Commonwealth v. Peterkin, 538 Pa. 455, 463, 649 A.2d 121, 125 (1994), cert. denied 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995); Beasley, 544 Pa. at 564, 678 A.2d at 777, cert. denied --- U.S. ----, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997). Waiver is excused under 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) where the alleged error in the main case resulted in the conviction or affirmance of sentence of an innocent individual or from ineffective assistance of counsel at a point in the proceedings where defendant had a constitutional right to counsel, i.e., through direct appeal, provided the standards announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and its progeny are met. Beasley, 544 Pa. at 565, 678 A.2d at 778. ⁴

Pierce and subsequent cases require a defendant to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel's performance was unreasonable; and (3) counsel's ineffectiveness prejudiced defendant. An appellant cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Peterkin, 538 Pa. at 460-61, 649 A.2d at 123. Further, counsel cannot be considered ineffective for failing to assert a meritless claim and is presumed to have been effective. Id; Crawley, 541 Pa. at 414, 663 A.2d at 679. Also, appellant bears the burden of proving all three prongs of the Pierce standard. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992).

Finally, assuming the above is met, defendant is then required by 42 Pa.C.S. § 9543(a)(2) to demonstrate eligibility for relief under the PCRA. An alleged violation of the state or federal constitution or ineffective assistance of counsel is not cognizable under the PCRA unless the violation "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i) and (ii). Commonwealth v. Buehl, 540 Pa. 493, 505, 658 A.2d 771, 777 (1995); Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995); Peterkin, 538 Pa. at 460-61, 649 A.2d at 123.

In summary, appellant must demonstrate a number of things. First, he must demonstrate that the claim has not been previously litigated and has not been waived. If the claim has been waived, appellant must demonstrate the waiver...