Commonwealth v. Albrecht

Decision Date23 November 1998
CourtPennsylvania Supreme Court
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Alfred K. ALBRECHT, Sr., Appellant.

Billy H. Nolas, Philadelphia, for Albrecht.

Diane Gibbons, Doylestown, Robert A. Graci, Harrisburg, for Com.



CAPPY, Justice.

This is a direct appeal from the final order of the Court of Common Pleas of Bucks County denying Appellant's petition under the Post Conviction Relief Act (PCRA).1 For the reasons discussed below, we affirm the order of the PCRA court.

Appellant was convicted by a jury of first degree murder, two counts of second degree murder, and arson for the killing of his wife, his mother and his daughter by setting their home on fire on the morning of May 1, 1979. The penalty was fixed at death.2 On direct appeal, this court affirmed the judgment of sentence. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (Pa.1986).

On December 28, 1990, Appellant filed a pro se petition under the PCRA. The Bucks County Public Defender was appointed to assist Appellant in filing an amended petition. On April 18, 1991, Governor Robert Casey signed a warrant of execution. The PCRA court entered a stay of execution on May 13, 1991.

The public defender withdrew when claims of the ineffectiveness of that office as appellate counsel were indicated. Attorney David L. Shenkle was then appointed and, on July 13, 1991, filed an amended petition raising seventy-two claims of error. Mr. Shenkle also requested an evidentiary hearing limited to his motion requesting public funds to hire experts to explore the application of new fire investigation techniques to the evidence admitted at Appellant's trial. A hearing was held on the motion on May 10, 1992, and it was denied by the PCRA court. Counsel filed a Petition for Extraordinary Review of that ruling in this court, which we denied on June 4, 1992.

Mr. Shenkle subsequently accepted employment with the Commonwealth of Pennsylvania, forcing his withdrawal from this case. Attorney Ronald H. Elgart was appointed to replace him on January 26, 1994 and filed a brief that explicitly waived all but three issues raised in Appellant's amended PCRA petition. Dissatisfied with Elgart's treatment of his case, Appellant wrote to the court and filed a pro se motion seeking the appointment of new counsel. This request was denied on January 12, 1996, and Appellant's PCRA petition was denied on January 24, 1996. Attorneys Billy H. Nolas and Robert Brett Dunham of the Center for Legal Education, Advocacy and Defense Assistance succeeded Mr. Elgart as Appellant's counsel and this appeal followed.3

To be eligible for post-conviction relief, an appellant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the errors or defects listed in 42 Pa.C.S. § 9543(a)(2), and that the issues he raises have not been previously litigated. An issue has been previously litigated if the highest appellate court in which an appellant could have had review as a matter of right has ruled on the merits of the issue, or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544. If the allegations of error have not been finally litigated, the PCRA also requires that an appellant demonstrate that these allegations of error have not been waived or that, if waived, the conditions in either 42 Pa.C.S. § 9543(a)(3)(ii) or (iii)(amended 1995) have been met.4

Because of Mr. Elgart's decision to brief only three issues in the trial court, we do not have the benefit of the trial court's resolution of any of the other issues raised in this appeal. Further, we are faced with a threshold issue, in light of Mr. Elgart's explicit waiver of the remaining issues, as to whether the claims not entertained in the trial court are now beyond the power of this court to review under the terms of the PCRA.

Appellant seeks a remand to the trial court for an opportunity to litigate this PCRA petition anew on the grounds of the ineffectiveness of Attorney Elgart in waiving, against Appellant's wishes, the majority of claims raised in Appellant's amended petition.5 The District Attorney argues that, under the PCRA, no claim for relief can be raised based upon the ineffectiveness of post-conviction counsel because there is no right to counsel in post-conviction proceedings under the Sixth Amendment to the United States Constitution. Appellant concedes the absence of such a right under the United States Constitution, but argues that the procedural right to appointment of counsel in a first PCRA petition requires that appointed counsel's representation be competent and effective in order that the appointment as of right be a meaningful one.6

The facts of this case raise serious concerns about Attorney Elgart's compliance with the obligations of his appointment by the PCRA court, and the suggestion that this court is without power to evaluate his performance gives us great hesitation. Here, David Shenkle, Appellant's first court-appointed counsel, evidently found some basis in the record to raise dozens of claims of error, yet his successor discarded all but three. Of those three claims, one was thoroughly litigated by his predecessor and had already been decided by the PCRA court. A second was patently frivolous, and the third raised an argument that this court has consistently rejected, and which was already decided in Appellant's direct appeal. Still more troubling is the abbreviated and perfunctory manner in which Mr. Elgart briefed these issues and his cursory explanation of the decision to relieve the court of the burden of deciding the remaining issues raised by Mr. Shenkle.

The denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel. Commonwealth v. Duffey, 551 Pa. 675, 713 A.2d 63 (1998). While the appointment of counsel in PCRA proceedings has been made mandatory by our rules of criminal procedure, Pa.R.Crim.P. 1503-04, appointed counsel possesses the prerogative of declining to litigate a meritless petition. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa.1988). Nevertheless, counsel's decision in this regard is subject to exacting judicial review. Id. at 928-29.7 Though we agree with the District Attorney's argument regarding the scope of the Sixth Amendment, see Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 881 (Pa.1995), we have never found our power to review, and if necessary, remedy the deficiencies of counsel at the post-conviction stage circumscribed by the parameters of the Sixth Amendment. See Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (Pa.1989). As was so cogently stated in Albert, supra:

It is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel. Indeed the right to counsel is meaningless if effective assistance is not guaranteed.

561 A.2d at 738 (citation omitted). Therefore, we find that Rule 1504 requires an enforceable right to effective post-conviction counsel.

Appellant also urges this court to reach all the issues raised in this appeal, regardless of waiver, pursuant to the relaxed waiver doctrine. While it has been our "practice" to decline to apply ordinary waiver principles in capital cases, e.g., Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037, 1042 n. 11 (Pa.1996), we will no longer do so in PCRA appeals.

Relaxed waiver, as an operating principle, was created to prevent this court from being instrumental in an unconstitutional execution. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (Pa.1978); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (Pa.1982). Due to the unique severity and finality of the death penalty, this court has relaxed its waiver rules as to any claim raised on direct appeal for which the record permits review. The relaxation of waiver principles on direct appeal has been justified, in part, on grounds of judicial economy because it reduces the number and necessity of post-conviction relief petitions. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 275 (Pa.1974)(Pomeroy, J., dissenting). The ever-widening application of the doctrine has, in effect, virtually eliminated any semblance of finality in capital cases, and frustrated the efficient use of the resources of this court.

Waiver must necessarily be recognized at some point in the criminal process in order that finality be eventually achieved. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (Pa.1974). The post-conviction appellate stage is an appropriate time to enforce the rules of waiver. Indeed, application of the doctrine of relaxed waiver in a PCRA proceeding runs afoul of the very terms of the Post-Conviction Relief Act, which excludes waived issues from the class of cognizable PCRA claims. 42 Pa.C.S. § 9543(a)(3). Upon reaching this stage of the criminal process, one who has not exercised the constitutional right to self representation has had the benefit of counsel at trial, on direct appeal, and in prosecuting the PCRA petition. Nevertheless, this court, in recognition of the fallibility of counsel and the daunting task of defending a person on trial for his life, has already considered any issues which trial counsel failed to present which were raised by counsel on direct appeal. Any meritorious claims which escape counsel's recognition on direct appeal can then be raised on grounds of counsel's ineffectiveness. We find these safeguards adequate to ensure the fairness of verdicts in capital cases, and that the negligible benefits of relaxed waiver at the PCRA appellate stage are more than outweighed by the need for finality and efficient use of the resources of this court. Henceforth, a PCRA petitioner's waiver will only be excused upon a...

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