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Commonwealth v. Brown4/29/2005
-three issues, and numerous sub-issues, for our review. Initially, we note that this Court has jurisdiction over Appellant's petition because we directly review the denial of post conviction relief in death penalty cases pursuant to 42 Pa.C.S. § 9546(d). In cases where the judgment of sentence was final prior to the 1995 enactment of the timeliness requirement, a first PCRA petition is considered timely if filed within one year of the effective date of the enactment or January 16, 1997. Section 3(1) Act 1995 (Spec. Sess. No. 1), Nov. 17, P.L. 1118, No. 32. Because the instant petition is Appellant's first PCRA petition and it was filed on January 15, 1997, it is considered timely filed.
Prior to addressing the merits of Appellant's issues, we must first entertain the Commonwealth's contention that Appellant's claims are not cognizable under the PCRA. The Commonwealth argues that Appellant erroneously raises allegations of error as if he were presenting the claims on direct appeal and ignores his burden of proof under the PCRA. It further argues that Appellant's boilerplate assertions of all prior counsel's ineffectiveness, without providing the required legal analysis for demonstrating each layer of counsel's supposed ineffectiveness, is insufficient to avoid waiver of the underlying claims. Upon careful consideration of the manner in which Appellant's claims have been presented, and in light of the strict requirements of the PCRA and this Court's case law interpreting such requirements, we agree with the Commonwealth that several of Appellant's claims are not reviewable. Each issue, however, must be examined independently to determine whether review of the merits is required.
In order to be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated defects found in 42 Pa.C.S. § 9543(a)(2), and that the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A claim is previously litigated under 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). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). We further note that, pursuant to Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the relaxed waiver rule is no longer applicable to 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.
With these principles in mind, we turn to Appellant's allegations of error. For purposes of our review, we do not examine these issues in the order raised by Appellant in his brief. Rather, we begin with those issues that we find to be "previously litigated" under the PCRA because they were reviewed by this Court on direct appeal. We agree with the PCRA court that Appellant's challenge to the evidence supporting the aggravating circumstance of a prior conviction of voluntary manslaughter, set forth at 42 Pa.C.S. § 9711(d)(12) (Argument I), was raised on direct appeal and was rejected by this Court. To be precise, Appellant challenged the aggravator on direct appeal by arguing that the prosecutor elicited testimony from a detective establishing that Appellant had been "charged" in a prior homicide. Appellant argued that evidence of a charge was not evidence of a "conviction." Our Court rejected this claim as frivolous, finding that the detective testified that Appellant had been charged with voluntary manslaughter and that
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