Appeal from the PCHA Order of March 1, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 871, 872 December Term, 1971.
Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
Johnson, Hoffman and Cercone, JJ.
[ 348 Pa. Super. Page 259]
This is an appeal from the lower court's order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-51. Appellant contends that (1) the lower court erred in dismissing his petition under the doctrines of waiver and laches; (2) use of a waiver or laches doctrine to bar consideration of his PCHA claims would unconstitutionally limit his right to redress by habeas corpus; and (3) his trial counsel was ineffective in failing (a) to request an "imperfect self-defense" voluntary manslaughter jury instruction, and to object to the court's omission thereof in its charge, and (b) to object to the prosecutor's attempt to undermine the credibility of the "star" defense witness. For the following reasons, we find that, while the lower court erred in finding that waiver and laches barred appellant's PCHA claims from consideration, the lower court correctly found no basis upon which to afford appellant relief. Accordingly, we affirm the order of the court below.
[ 348 Pa. Super. Page 260]
On September 1, 1971, appellant was arrested and charged with murder and aggravated robbery in connection with the killing of Robert Morgan. Following a March 7-14, 1973 jury trial, appellant was found guilty of first degree murder and aggravated robbery. He was sentenced to concurrent terms of life imprisonment for the murder charge and eight-to-twenty years for the robbery charge. Our Supreme Court reversed both convictions and granted appellant a new trial. Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977). On March 13, 1978, a second jury found appellant guilty of the same crimes, and again appellant received concurrent terms of life imprisonment for first degree murder and eight-to-twenty years for aggravated robbery. Our Supreme Court affirmed the judgment of sentence. Commonwealth v. Taylor, 489 Pa. 519, 414 A.2d 1012 (1980). On July 6, 1983, appellant, through present counsel, filed a PCHA petition (his first). A hearing to determine whether appellant's petition should be dismissed due to untimeliness was held on November 28, 1984. On March 1, 1985, the PCHA court denied appellant all relief, and this appeal followed.
Appellant first contends that the lower court erred in dismissing his petition on the bases of waiver and laches. We agree. The Post Conviction Hearing Act provides that, "[s]ubject to the provisions of [§ 9545(c)], [any person who desires to obtain relief under the Act] may file a petition at any time." 42 Pa.C.S.A. § 9545(a) (emphasis added). Section 9545(c), in turn, requires a petitioner to set forth "all . . . then available grounds for . . . relief" because, otherwise, "[t]he failure to raise any issue in the 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." (Emphasis added). Thus, a reading of the plain language of the Act, see 1 Pa.C.S.A. § 1921(b), compels the conclusion that a defendant's first PCHA petition can be filed at any time following conviction.
[ 348 Pa. Super. Page 261]
Our Supreme Court's decision in Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976), supports this result. There, the Commonwealth contended that laches precluded the defendant from challenging the validity of his conviction because he waited fourteen years before seeking relief. The Court held that laches "has no place in the criminal law. If [the defendant] can establish that his prior conviction resulted from perjured testimony, he is entitled to have that conviction overturned." Id., 468 Pa. at 542, 364 A.2d at 326. Doria's petition, like appellant's here, was his first. Furthermore, we note that appellant filed his petition just over three years after our Supreme Court affirmed his convictions.
The lower court, however, relied upon Commonwealth v. Kale, 312 Pa. Superior Ct. 69, 458 A.2d 239 (1983), allocatur denied, in holding that waiver precluded it from considering appellant's PCHA claims because the petition was untimely filed. Kale is distinguishable. There, the petitioner appealed from a lower court order denying four of his five PCHA petitions, in each of which he sought to withdraw a separate guilty plea. Kale had not appealed from the four judgments of sentence entered after each plea. This Court held that, because "[h]e . . . failed completely to explain the delays, which var[ied] from 7 years, 6 months to 2 years, 10 months, in filing requests to withdraw these pleas of guilty," a consideration of the merits of the claims asserted in his PCHA petitions was barred. Id., 312 Pa. Superior Ct. at 72, 458 A.2d at 241. Thus, Kale does not stand for the proposition that unexplained delay in filing a PCHA petition bars consideration of the claims raised therein, but rather holds that, when attempting to withdraw a guilty plea either after sentencing or collaterally, a defendant must explain any delays in filing ...