Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County, at No. 1509-1510 C.D. 1972.
Clyde E. Hill, in propria persona.
Katherene Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
Wickersham, Del Sole and Popovich, JJ. Wickersham, J., did not participate in the consideration of nor decision in this appeal.
[ 354 Pa. Super. Page 34]
This is an appeal from the order of the court below which dismissed without a hearing the Post Conviction Hearing Act petition which had been filed by appellant, Clyde Hill. We affirm.
The complicated procedural history of this case reveals the following:
On October 18, 1973, appellant was convicted of two (2) counts of murder of second degree by a jury under the old Crimes Code.*fn1 Appellant received consecutive terms of life imprisonment. No post-verdict motions were filed. A direct appeal to the Supreme Court followed, and the judgments of sentence were affirmed. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). (Hill I).
On May 9, 1977, appellant filed a pro se PCHA petition and appellant was granted the opportunity to file post-verdict motions nunc pro tunc. These motions were denied by the court en banc and appellant launched another direct appeal to the Supreme Court. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980). The Supreme Court transferred the matter to a special Superior Court panel which affirmed the judgment of sentence. Commonwealth v. Hill, 273 Pa. Super. 118, 416 A.2d 1117 (1979). Appellant's petition for allowance of appeal was granted, and our Supreme Court affirmed the judgment of sentence by an equally divided Court. Commonwealth v. Hill, 492 Pa. 100,
[ 354 Pa. Super. Page 35422]
A.2d 491 (1980) (Opinion in Support of Reversal by Roberts, J., joined by O'Brien and Flaherty, JJ.) (Hill II).
In March of 1982, appellant instituted habeas corpus proceedings in the federal district court, which denied appellant relief. Hill v. Zimmerman, 542 F.Supp. 700 (M.D.Pa.1982). On appeal, the United States Court of Appeals for the Third Circuit vacated the order of the federal district court in order that appellant might pursue his claim in the state court system. Hill v. Zimmerman, 709 F.2d 232 (3rd Cir.1983), cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983).
On June 22, 1983, appellant filed a petition for reconsideration nunc pro tunc with our Supreme Court in order to have counsel appointed or for further post conviction relief. On August 22, 1983, our Supreme Court granted appellant's petition for the appointment of counsel and referred the matter "to the Court of Common Pleas of Dauphin County for the Appointment of Counsel and expedited PCHA proceedings." "ORDER OF COURT" Record # 19. Counsel was appointed, and a supplemental PCHA petition was filed and denied without a hearing.
Appellant then filed another pro se petition with the Supreme Court for writ of habeas corpus or for supervisory certification of appeal which was transferred to our Court for disposition. On November 1, 1984, we directed that the appeal should be considered as if timely filed. This Court dismissed the appeal on March 26, 1985, due to a failure to file briefs. On July 22, 1985, we granted appellant's petition for reconsideration and directed the appellant to petition for the appointment of counsel or to file a brief pro se. Counsel was appointed, and, as a result, the matter is ripe for reconsideration.
Appellant raises the following issues: (1) whether trial counsel was ineffective for failing to object to the trial court's instruction that appellant had the burden of proving insanity and for failing to object to the court's instruction on malice; (2) whether appellant was deprived of his right to due process because the trial court instructed the jury
[ 354 Pa. Super. Page 36]
that appellant had the burden to prove the elements of the murder charge; (3) whether trial counsel was ineffective for failing to object to the psychiatrist's comment which was elicited by the prosecution regarding the possibility that appellant could commit a crime again; (4) whether trial counsel was ineffective for soliciting testimony regarding the non crimen falsi prior convictions of the appellant; and (5) whether prior PCHA counsel was ineffective for failing to allege due process violations which were inherent in the trial court's instruction to the jury regarding the presumption of malice.
Under the applicable Post Conviction Hearing Act*fn2 which was in effect at the time of appellant's petition, the following was provided:
§ 1180-3. Eligibility for relief
To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 (§ 1180-5) and must prove the following:
(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.
§ 1180-4. When an issue is finally litigated or waived
(a) For the purpose of this act, an issue is finally litigated 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
(2) The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.
[ 354 Pa. Super. Page 37]
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
Additionally, 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.
In this case, the issues were not addressed at the Supreme Court level in Hill II because that Court found that trial counsel's failure to object timely to the insanity charge rendered the issue waived. However, the merits of the insanity issue were addressed at the Superior Court level. In appellant's previous appeal to this Court, we stated:
During the trial of appellant, Clyde Eugene Hill, in 1973, the jury was charged, without objection by the defense, that appellant had the burden of proving the defense of insanity by a preponderance of the evidence. Subsequent to appellant's conviction the Supreme Court of Pennsylvania held that it is error to place such a burden on a defendant. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). Appellant in this appeal from the judgment of sentence contends, as he did in nunc pro tunc post-verdict motions, that his judgment of sentence should be reversed and a new trial granted because the burden of proving insanity was placed upon him.
The issue before us is whether appellant is entitled to have the law of Demmitt, supra, applied to his case. This specific issue was before the Supreme Court of Pennsylvania in Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977). Six justices of the ...