Appeal from the PCHA of July 16, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 4811-1194.
Susan F. Burt, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Rowley, Kelly and Cercone, JJ. Cercone, J., concurs in the result. Rowley, J., files a concurring statement.
[ 375 Pa. Super. Page 439]
Appellant, Charles Miller, appeals from the denial of his third Post Conviction Hearing Act petition after appointment of counsel but without an evidentiary hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
Appellant shot and killed Arthur James Ruth in 1948. He pled guilty to murder generally, was found guilty of first degree murder, and was sentenced to life imprisonment. No appeal was taken from judgment of sentence.
Eighteen years later in 1967, appellant filed a pro se PCHA petition making numerous general allegations of constitutional violations by checking boxes on a PCHA form. This petition was dismissed without prejudice to reapply, and the matter was referred to a volunteer defender.
In July 1969, appellant filed a second pro se PCHA petition making five general allegations of constitutional violations, and attaching a pro se brief in support of the petition. In November 1971, the petition was granted as to leave to file post-verdict motions nunc pro tunc but denied as to all other issues. However, the assigned judge died prior to filing findings of fact in support of the denial of the issues raised in the PCHA petition. As a result, appellant was permitted to file post-verdict motions nunc pro tunc and was given reconsideration of the other PCHA claims. Both the post-verdict motions nunc pro tunc and the PCHA petition were subsequently denied. The orders were consolidated for review by our Supreme Court and affirmed in Commonwealth v. Miller, 454 Pa. 67, 309 A.2d 705 (1973).
Twelve years later in 1985, appellant filed his third pro se PCHA petition accompanied by a pro se brief alleging that the evidence at the 1949 degree of guilt hearing was insufficient to sustain a finding of guilt of murder in the first degree. Counsel was appointed but no amended petition was filed and no evidentiary hearing was granted. The
[ 375 Pa. Super. Page 440]
petition was denied. Notice of appeal was filed and new counsel was appointed to represent appellant.
On appeal, appellant contends that: the issue of whether the evidence at the degree of guilt hearing was sufficient to sustain a verdict of murder in the first degree was not "finally litigated;" all prior counsel were ineffective for failing to raise and properly litigate that claim; and, the evidence was in fact insufficient to sustain the verdict. The Commonwealth responds alternatively that appellant's claim has been waived, was finally litigated against appellant previously, and is without merit. The trial court expressed no opinion as to whether appellant's claim had been waived or as to the merits of the claim, but did find that the claim had been finally litigated against appellant previously.
The Commonwealth argues that we should summarily affirm the order denying post-conviction relief based upon the fact that appellant waived the present claim by failing to raise it in prior PCHA petitions. Though the argument is well-founded, we decline to dispose of the present appeal on waiver grounds for the reasons which follow.
All claims for post-conviction relief must be raised in a petitioner's first PCHA petition:
Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of ...