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Commonwealth v. Brown4/29/2005
he pled guilty to such charge. Commonwealth v. Brown, 638 A.2d at 1185. Appellant also argued on direct appeal that the prosecutor erred in the manner in which she presented the evidence of the aggravating circumstance, i.e., by eliciting from the detective a long recitation of the facts of the prior manslaughter case. Our Court likewise rejected this claim on the merits. Id. at 1186. Such claim, raised again in the instant appeal as one challenging the detective's testimony as hearsay, is not reviewable. Appellant cannot obtain post conviction review of claims previously litigated on appeal by presenting new theories of relief to support the previously litigated claims. Commonwealth v. Stokes, 839 A.2d 226, 229 (Pa. 2003).
In his current appeal, Appellant additionally argues that the sole aggravating circumstance found is legally inapplicable to his case. To satisfy section 9711(d)(12), the Commonwealth must demonstrate that " he defendant has been convicted of voluntary manslaughter, as defined in 18 Pa.C.S. § 2503 (relating to voluntary manslaughter), or a substantially equivalent crime in any other jurisdiction, committed either before or at the time of the offense at issue." 42 Pa.C.S. 9711(d)(12). Appellant maintains that because he was convicted of voluntary manslaughter prior to 1967, when 18 Pa.C.S. § 2503 was codified, the aggravator does not apply. As this is yet another challenge to the sole aggravator, which was upheld on direct appeal, this claim arguably has been previously litigated. To the extent that this specific issue was not previously litigated on direct appeal, the issue is waived due to Appellant's failure to raise it on direct appeal. 42 Pa.C.S. § 9544(b).
The next claim that was previously litigated on direct appeal alleges that Appellant is entitled to relief because he was forced to wear shackles during his trial and because there was a large police presence in the courtroom (Argument VII). On direct appeal, we held that the trial court did not abuse its discretion in permitting Appellant to be shackled in the courtroom because Appellant offered no evidence that any juror saw the shackles or was influenced by the observation. 648 A.2d at 1189. The latter part of Appellant's claim, that he is entitled to relief as a result of the large police presence in the courtroom, was not raised on direct appeal, and is therefore waived. 42 Pa.C.S. § 9544(b).
We also find waived several other issues that Appellant failed to raise on direct appeal. Appellant's claims that the trial court gave an improper self-defense charge to the jury (Argument XII) and that his conviction and death sentence were the result of racial discrimination (Argument XVI) were never raised on direct appeal to this Court and are therefore not reviewable. Also waived are the following claims relating to jury selection: that prospective jurors were improperly dismissed for cause and were not life-qualified (Argument XIII), that the trial court improperly restricted Appellant's right to voir dire prospective jurors (Argument XIV), and that the prosecution exercised racially discriminatory peremptory challenges (Argument XV). Additionally, we find waived the claims that the trial court erred in its reasonable doubt instructions (Argument XVII), and that the trial court failed to provide a "life without parole" instruction (Argument XVIII). These issues were available to Appellant on direct appeal when he was represented by new counsel. As he failed to raise them on appeal from the judgment of sentence, they are waived. 42 Pa.C.S. § 9544(b).
Additionally, we find waived Appellant's claim that Justice Castille's participation in Appellant's direct appeal deprived him of his right to an im
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