Commonwealth v. Kravitz

Citation269 A.2d 912,441 Pa. 79
PartiesCOMMONWEALTH of Pennsylvania v. Ethel KRAVITZ, Appellant.
Decision Date20 October 1970
CourtUnited States State Supreme Court of Pennsylvania

F. Emmett Fitzpatrick, Jr. (submitted), Joseph Michael Smith, Philadelphia, F. Lee Bailey, Boston Mass., for appellant.

Milton O. Moss, Dist. Atty. (submitted), Parker H. Wilson, 1st Asst Dist. Atty., Richard A. Devlin, Stewart J. Greenleaf, Asst Dist. Attys., Norristown, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

Appellant Ethel Kravitz, was tried by a Judge and jury for the killing of her husband and, on December 12, 1958, was found guilty of murder in the second degree. Mrs. Kravitz, through her able attorneys, filed a motion in arrest of judgment and a motion for a new trial, assigning the customary reasons. Several months later, she filed twenty-one additional reasons to support her motion in arrest of judgment and forty-five additional reasons for a new trial. These post-trial motions were denied, and on appeal this Court affirmed, Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861, and the United States Supreme Court denied certiorari, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811. Appellant's subsequent claim to her husband's estate was denied by the Montgomery County Orphans' Court on the authority of the Slayer's Act, [1] 14 Fid.Rep. 393, and we affirmed. Kravitz Estate, 418 Pa. 319, 211 A.2d 443.

On August 25, 1965, Ethel Kravitz filed in the United States District Court for the Middle District of Pennsylvania a petition for a writ of habeas corpus, which was denied by that Court. The United States Court of Appeals for the Third Circuit affirmed that denial. In Re Kravitz, 3 Cir., 358 F.2d 734.

In 1968, appellant, now on parole after having been incarcerated for almost eight years, filed through her counsel a petition under the Post Conviction Hearing Act, [2] Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180--1 et seq., alleging as the only ground for relief that certain damaging inculpatory statements, which she had made to the police and had been admitted at her trial, were involuntary. Approximately two months after Ethel Kravitz had filed her above-mentioned P.C.H.A. petition, she filed (through her attorney) a supplement thereto, alleging two additional grounds for relief: (1) references by the District Attorney and by the trial Judge to appellant's alleged failure to take a blood test, and (2) denial of effective assistance of counsel.

The Commonwealth thereupon filed a motion for dismissal of appellant's P.C.H.A. petition, on the grounds that the contentions set forth therein had either been 'waived' or 'finally litigated' under Section 4 of the Post Conviction Hearing Act. After oral argument, the lower Court granted the Commonwealth's motion to dismiss, and from that adverse Order, appellant took this appeal.

We will discuss appellant's three contentions in the order in which they were presented.

The Post Conviction Hearing Act provides, in pertinent part:

'Section 3. Eligibility for relief

'To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 and must prove the following:

'(d) That the error resulting in his conviction and sentence has not been finally litigated or waived. 1966, Jan. 25, P.L. (1965) 1580, § 3, effective March 1, 1966.

'Section 4. When an issue is finally litigated or waived

'(a) For the purpose of this act, An issue is finally litigated [3] if

'(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling; or

'(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.

'(b) For the purposes of this act, An issue is waived if:

'(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

'(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

'(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure. 1966, Jan. 25, P.L. (1965) 1580, § 4, effective March 1, 1966.'

Appellant's first contention is that an evidentiary hearing is necessary in order to determine whether she knowingly and understandingly waived her right to object at her trial to the evidentiary use of certain allegedly involuntary statements.

In Commonwealth v. Johnson, 431 Pa. 522, pages 532--533, 246 A.2d 345, page 351, this Court pertinently said: '* * * a petition under the Post Conviction Hearing Act must not be dismissed without an evidentiary hearing if it alleges facts which, if true, would entitle petitioner to relief. Section 9 of the Post Conviction Hearing Act specifically requires a hearing under such circumstances, and this Court has held that section 9 merely codifies prior habeas corpus law. Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967). (Footnote omitted.)

'However, even though appellant did allege facts which if proven would have entitled him to relief, the court below could still have denied Johnson an evidentiary hearing if it found that the right to litigate the issues raised in the petition had been waived under section 4 of the Post Conviction Hearing Act. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967).' The same rule applies when an issue has been 'finally litigated' under that section. Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793.

The Pennsylvania doctrine of waiver is identical with that established for the Federal Courts by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. In order for a waiver to be effectuated, the prisoner's nonaction must be a deliberate and understanding bypass of the available State procedures. See, Commonwealth v. Stevens, 429 Pa. 593, 598, 240 A.2d 536. The Commonwealth argues that Mrs. Kravitz's direct appeal to this Court constituted an available State procedure, and that her failure to raise in that appeal the issue of the voluntariness of her inculpatory statements constituted a waiver of her present claim. We agree.

Mrs. Kravitz's petition alleges that the police inflicted on her various personal indignities and physical violence, accompanied by threats, and deprived her of food and drink, and that these caused and compelled or induced her aforesaid statements. She admits that she did not disclose this information to her trial counsel, allegedly because of the compulsion and duress exerted upon her by her brother-in-law, Morris Passon, an attorney. Passon was never counsel for Mrs. Kravitz; in fact, he testified against her at her murder trial. However, Mrs. Kravitz argues that Passon's influence over her rendered her previous failure to raise these issues unintentional and involuntary. She has waited ten years to make these allegations or assertions. Both the prosecutor and the trial Judge are now dead. Through these years she has utilized the services of several experienced attorneys in unsuccessfully challenging her conviction. Only now does she come forward with this new and factually unsupportable allegation.

Any testimony that appellant could or would seek to submit at this hearing would be limited to the above-mentioned averments in her prior appeal to this Court. Our examination of the record does not disclose any facts which could possibly overcome the presumption that her failure to raise this issue previously at her trial or on appeal to this Court was knowing and understanding. Moreover, the circumstances alleged fall far short of the exceptional and extraordinary circumstances which would justify and excuse her failure to raise this issue in the earlier proceedings. Cf. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530.

Mrs. Kravitz's second contention is that there has not been a 'final litigation' of her claim, to wit, that references by the District Attorney in his opening statement pertaining to her refusal to submit to a blood test--when no evidence thereof was subsequently introduced--was such harmful error as to entitle her to a new trial. This exact issue was previously raised before this Court in Mrs. Kravitz's direct appeal. In that case we pertinently said (page 221 of 400 Pa., page 872 of 161 A.2d): '(T)he trial Judge in his charge wisely and clearly explained to the jury that the District Attorney's opening remarks should be ignored, and this charge rendered harmless the District Attorney's remarks which were made in good faith. Cf. Com. v. Neill, 362 Pa. 507, 517, 67 A.2d 276.' Commonwealth v. Kravitz, 400 Pa., page 221, 161 A.2d 872, supra.

Mrs. Kravitz concedes, as she must, that this is the same issue she had previously raised before this Court on her direct appeal. However, she now contends: (1) that it was not 'finally litigated' within the meaning of the Post Conviction Hearing Act because of Section 1180--3(c)(12), which provides for relief on a showing of 'the abridgement in any * * * way of any right guaranteed by the constitution * * * of the United States, including a right that was not recognized as existing at the time of the trial If the constitution requires retrospective application of that right' (accord: Commonwealth v. Stevens, 429 Pa. pages 593, 599, 240 A.2d page 540, supra, which established the doctrine 'that failure to assert a now retroactively applicable constitutional infirmity not available to the prisoner as a...

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13 cases
  • United States ex rel. Johnson v. Cavell
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 3 Octubre 1972
    ...v. Cornitcher, 447 Pa. 539, 291 A.2d 521, 526 (1972); Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971); Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); Commonwealth v. Stevens, 429 Pa. 593, 240 A.2d 536 (1968). Pr......
  • Kravitz v. Commonwealth of Pennsylvania, s. 76-1390
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 23 Febrero 1977
    ...that her conviction was invalid because of the admission of inculpatory statements precluded further litigation. Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970). Petitioner then returned to the federal court, this time in the Eastern District of Pennsylvania, and filed two actions.......
  • In re Kravitz
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 5 Junio 1979
    ...timely challenge the admissibility of the statements that she now claims were the product of police coercion.3 See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). This holding, argues respondent, constitutes both an "adequate and independent" state procedural ground, and a fin......
  • In re Kravitz
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 12 Mayo 1980
    ...was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). Petitioner then sought an executive pardon, but this avenue also proved In September 1975, petitioner instituted an ac......
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