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COMMONWEALTH PENNSYLVANIA v. BERNARD TENNER (07/18/88)

SUPERIOR COURT OF PENNSYLVANIA


submitted: July 18, 1988.

COMMONWEALTH OF PENNSYLVANIA,
v.
BERNARD TENNER, APPELLANT

Appeal from the PCHA March 9, 1988, in the Court of Common Pleas of Philadelphia County, Criminal, No. 79-05, No. 748-754.

COUNSEL

Marlene Cooperman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Olszewski and Montemuro, JJ.

Author: Olszewski

[ 377 Pa. Super. Page 542]

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act ("PCHA") which alleged that trial counsel was ineffective for failing to demonstrate at a Rule 1100 hearing, via documentary evidence, that the Commonwealth had failed to exercise due diligence. We affirm the denial of the petition.

On January 7, 1978, appellant and an accomplice forced entry into the home of Mildred Clark and bound and gagged her, threatened to kill her, stabbed her five times, and fled with her cash and jewelry. As a result, law enforcement officials in Philadelphia filed a criminal complaint against appellant charging him with burglary, robbery, simple assault, aggravated assault, possessing instruments of crime, recklessly endangering another person, unlawful restraint, and criminal conspiracy. When appellant could not be

[ 377 Pa. Super. Page 543]

    located near his home, the arresting officer supplied photographs and other information to the anti-crime teams and had appellant's photograph shown at all uniform roll calls throughout the city. In April 1978, appellant's father's girlfriend informed police that appellant was residing in Florida. A copy of the warrant and appellant's physical description were forwarded to the Miami Police Department, after which a wanted bulletin was published.

On August 25, 1978, Philadelphia police received a computer message indicating that appellant had been arrested for armed robbery in Florida. On September 15, the Miami Police Department informed Philadelphia authorities that appellant had been arraigned as a fugitive from Pennsylvania and had refused to sign a waiver of extradition. Rule 1100 hearing at 37. Soon thereafter, Philadelphia authorities began extradition procedures by requesting a governor's warrant for appellant. After appellant was sentenced on the Florida charges, Pennsylvania authorities sent a detainer and appellant was delivered to Pennsylvania on April 4, 1979.

After a Rule 1100 hearing on May 22, 1979, the trial court held that Philadelphia police and the district attorney's office acted with due diligence in securing appellant's return to the Commonwealth. In so finding, the trial court specifically held emphasized:

There has been received and the Court has admitted into evidence Defense Exhibit D-1, which purports to be a Waiver 6-E of extradition, such being, however a photocopy. Said document speaks for itself; but, among others, there appears thereon the date of August 30, 1978. The Court hereby finds, as a matter of fact, that [Miami police] did inform [Philadelphia police], whether it be right or wrong or incorrectly or otherwise, nevertheless, did inform [Philadelphia police] that [appellant] . . . refused to waive extradition. The Court would hereby find support in that conclusion by the ensuing activities by [Philadelphia authorities] which would belie

[ 377 Pa. Super. Page 544]

    any contrary information, namely, contrary being that defendant had waived extradition.

Rule 1100 hearing at 66 [emphasis supplied]. On July 19, 1979, appellant's case was tried without a jury and appellant was found guilty and subsequently sentenced.

On November 16, 1979, appellant filed a notice of appeal to this Court. The sole issue raised by appellant on appeal was whether the Commonwealth failed to show that it exercised due diligence in its efforts to locate appellant. We affirmed appellant's judgment of sentence on September 18, 1981, 295 Pa. Super. 608, 437 A.2d 1029, declaring:

The testimony at the Rule 1100 (c) hearing revealed that the police made continued efforts to locate Appellant from January 7, 1978, until April 14, 1978. The lower court held that these efforts constituted due diligence, and we agree. As the court stated in Commonwealth v. Hinton, "The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done." 269 Pa. Super.Ct. 43, 50, 409 A.2d 54, 58 (1979). It is not the function of the courts to dictate that, unless the police follow certain procedures, they are not exercising due diligence. Commonwealth v. Mitchell, [472 Pa. 553, 566, 372 A.2d 826, 832 (1977)].

Memorandum at 5.

On September 11, 1985, appellant filed a pro se petition for relief under PCHA. Counsel was appointed and filed an amended petition on appellant's behalf. Following an evidentiary hearing on April 29, 1987, appellant's petition was denied. This appeal followed.

Appellant asserts that he was "denied effective assistance of counsel at his Rule 1100 hearing due to counsel's failure to demonstrate via documentary evidence that the Commonwealth had failed to exercise due diligence to bring the case to trial." Appellant's brief at 5. The Commonwealth urges that because appellant has already raised the issue of whether the Commonwealth proved due

[ 377 Pa. Super. Page 545]

    diligence sufficient to entitle it to the Rule 1100 extension on direct appeal, his petition is unreviewable as finally litigated pursuant to 42 Pa.C.S.A. ยง 9544(a)(2).*fn1 We agree.

Our case law is clear that one may not relitigate a finally litigated ground for relief every time a new legal theory

[ 377 Pa. Super. Page 546]

    is advanced. Commonwealth v. Edrington, 317 Pa. Super. 545, 464 A.2d 456 (1983) . . . .

In Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980), the supreme court held that an allegation of ineffective assistance of counsel, for failing to object to deliberation by the jury on bills of indictment on which the defendant contended he had not been properly arraigned, would not be considered. The court had examined the arraignment procedure in the defendant's prior direct appeal and concluded that no impropriety existed. Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). The court stated, "Since this issue was fully considered by this Court on direct appeal, it has been finally litigated and is not open to collateral attack." Commonwealth v. Jones, supra, 488 Pa. 270, 272, 412 A.2d 503, 504 (citations omitted). The advancement of a new or different theory as a basis for relitigating an issue that has already been decided will not justify relitigation. Id.

In Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981), the supreme court held that Senk's allegation that his trial counsel was ineffective for failing to challenge Senk's illegal arrest could not be relitigated, as the issue of Senk's arrest had been considered by a prior PCHA court and the Pennsylvania Supreme Court, as well. The court stated, "Appellant now is attempting to have this issue relitigated under the guise of ineffective assistance of counsel. An issue may not be relitigated merely because a new or different theory is posited as a basis for reexamining an issue that has already been decided." Id., 496 Pa. at 634-35, 437 A.2d at 1220 (citation omitted).

Commonwealth v. Curtin, 365 Pa. Super. 424, 429, 529 A.2d 1130, 1133 (1987).

In the instant case, the trial court considered appellant's claim that the Commonwealth had failed to exercise due diligence in securing appellant's return to the Commonwealth. That precise issue was rejected by our Court in appellant's direct appeal. Appellant now asserts that trial

[ 377 Pa. Super. Page 547]

    counsel was ineffective for failing to demonstrate via documentary evidence that the Commonwealth failed to exercise due diligence. A petitioner is not entitled to relitigate a claim "every time he offers a new theory or argument which he had not previously advanced." Id., quoting Commonwealth v. Slavik, 449 Pa. 424, 431-32, 297 A.2d 920, 924 (1972). We conclude, based on the foregoing, that the issue of due diligence may not be relitigated under the guise of ineffective assistance of counsel. Id., citing Commonwealth v. Mileshosky, 350 Pa. Super. 127, 504 A.2d 278 (1986); Commonwealth v. Thomas, 335 Pa. Super. 323, 484 A.2d 155 (1984), rev'd on other grounds, 512 Pa. 171, 516 A.2d 328 (1986).*fn2

The order of the PCHA court is affirmed.


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