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COMMONWEALTH PENNSYLVANIA v. JAMES BERNARD ALEXANDER (07/08/81)

decided: July 8, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES BERNARD ALEXANDER, A/K/A BERNARD ALEXANDER



No. 190 January Term. 1979, Appeal from order of the Court of Common Pleas, for County of Philadelphia, July Term, 1953, Nos: 413, 414, 416, 418

COUNSEL

Arthur Henry James (Court-appointed), Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Garrold Tennis, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion. Flaherty, J., filed a concurring opinion in which Kauffman, J., joined. O'Brien, C. J., and Roberts, J., concurred in the result.

Author: Larsen

[ 495 Pa. Page 27]

OPINION

Almost twenty-seven years ago, on June 28, 1954, appellant James Alexander, pleaded guilty to murder generally and to three counts of aggravated assault and assault with intent to kill.*fn1 He was sentenced by the Honorable Joseph

[ 495 Pa. Page 28]

Sloan, Court of Common Pleas of Philadelphia County, to ten to twenty years for murder of the second degree and to three and one-half to seven years for each aggravated assault count. The sentences were to run consecutively, and totaled twenty and one-half to forty-one years. Appellant did not file a direct appeal from the judgments of sentence. However, he has filed no less than six petitions for relief under the Post-Conviction Hearing Act, Act of January 25, 1966, 19 P.S. §§ 1180-1 -- 1180-12.

In his first PCHA petition, filed January 23, 1966, appellant asserted the judgments of sentence were invalid because he was prosecuted and sentenced by a "religious establishment", in violation of the First and Fourteenth Amendments to the United States Constitution, because the prosecutor and the judge swore oaths of office which asserted a belief in God. This petition was denied without a hearing, and the denial was affirmed by this Court in Commonwealth v. Alexander, 426 Pa. 360, 231 A.2d 290 (1967).

The second PCHA petition was filed four weeks later on July 20, 1966. This petition asserted that perjured testimony had been introduced at the coroner's inquest; that an unsworn statement had been read into evidence at the guilty plea hearing; that the complainant did not testify at the hearing and the appellant could not, therefore, cross-examine him; that the court refused to hear a certain defense witness; that the court "commented that his attorneys did business for the guilty plea"; and that appellant was denied effective assistance of counsel. A third petition was filed November 16, 1966 alleging that the guilty plea was induced involuntarily and unknowingly and that appellant was denied his right to appeal from the guilty plea. The record is unclear as to the exact disposition of the second and third petitions. However, appellant's brief indicates that a Supreme

[ 495 Pa. Page 29]

Court memorandum of December 29, 1966 determined that the original (second) petition had been abandoned and that review of the third was premature. Brief for Appellant at 3.

July 24, 1968 witnessed the filing of appellant's fourth petition. The claims therein included: denial of right to appeal; the unlawful inducement of the guilty plea; the "perjured testimony" at the coroner's inquest; the "unsworn testimony" at the guilty plea; and the court's refusal to hear a certain witness for the defense. A full evidentiary hearing was held on December 18, 1968, following which the Honorable Joseph Sloan denied the petition. Again, appeal was brought to this Court and, again, we affirmed. Commonwealth v. Alexander, 435 Pa. 33, 255 A.2d 119 (1969).

Petition number five -- July 9, 1969. Appellant there asserted his sentence had been incorrectly computed. Another hearing was held, on March 18, 1970, and the relief requested -- a recomputed sentence -- was granted.

This brings our story almost up to date. Appellant filed a motion to withdraw guilty plea on October 12, 1978 (more than 24 years after it was entered) and a motion to vacate sentence on December 12, 1978. These motions were consolidated and treated as another PCHA petition -- his sixth to date! This petition alleged: appellant's "arrest was invalid as he was not arraigned until nine hours after his custody and was not given an opportunity to speak to his attorney during this time"; that he was denied an opportunity to present a witness; that he was denied an opportunity to cross-examine and confront the complainant; that he was denied effective assistance of counsel; that the guilty plea was invalid; that he was denied the opportunity to testify in mitigation of his sentence; that there was no voluntary or knowing waiver of his "constitutional rights"; and that the sentence was excessive and severe under the circumstances. The Honorable Edward Blake denied the petition without a hearing on the grounds that all of appellant's claims had either been finally litigated or waived. Mr. Alexander now appeals that denial to this Court, asserting the PCHA court

[ 495 Pa. Page 30]

(the latest one) has abused its discretion in denying the petition without hearing.

The starting point in any review or consideration of multiple PCHA petitions must be section 1180-5(b) of the PCHA which provides:

Any person desiring to obtain relief under this act shall set forth all of his then available grounds for such relief for any particular sentence he is currently serving in such petition and he shall be entitled to only one petition for each such crime. The failure to raise any such issue in such petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented. 19 P.S. § 1180-5(b). (emphasis added)

Thus, the PCHA explicitly contemplates a single post-conviction proceeding in no uncertain terms. As Mr. Justice Flaherty pointed out in his dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 249-250, 420 A.2d 431, 437 (1978), joined by Mr. Justice Kauffman, "a second ...


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