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COMMONWEALTH PENNSYLVANIA v. JAMES WESLEY MILLER (09/25/89)

SUPERIOR COURT OF PENNSYLVANIA


filed : September 25, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES WESLEY MILLER, APPELLANT

Appeal from the Order in the Court of Common Pleas of Dauphin County, Criminal Division, No. 40 O & T 1968.

COUNSEL

Sanford A. Krevsky, Harrisburg, for appellant.

Joseph A. Curcillo, III, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Tamilia, Popovich and Hester, JJ. Popovich, J., concurs in the result.

Author: Tamilia

[ 388 Pa. Super. Page 8]

On October 14, 1968, appellant shot and killed Mrs. Mattie Moore. He was found guilty of first degree murder*fn1 after a jury trial and sentenced to life imprisonment on January 2, 1970. Appellant has since filed five petitions under the Post Conviction Hearing Act (PCHA), the most recent filed on March 18, 1987.*fn2 On January 24, 1989, the Honorable Sebastian D. Natale denied appellant's latest petition without a hearing, and this appeal followed.

On appeal, appellant argues trial counsel was ineffective for failing to object to the introduction of damaging evidence and not seeking cautionary instructions from the trial court. Further, he argues all prior appellate counsel were ineffective in failing to preserve the ineffectiveness of trial counsel. In addition, appellant claims the prosecution introduced "perjured or obviously false testimony."

As to appellant's now familiar and previously litigated PCHA claim of ineffectiveness of counsel, the threshold

[ 388 Pa. Super. Page 9]

    issue remains whether this Court should even consider the merits of this appeal in light of the recent Supreme Court decision in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), wherein the Court stated, "We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Id., 519 Pa. at 513, 549 A.2d at 112.

Appellant's ineffectiveness claims have been raised in each of his PCHA petitions, albeit on different grounds. Our review of these issues is subject to the prior PCHA statute providing for finality of criminal matters:

ยง 9544. When an issue is finally litigated or waived

(a) Issues finally litigated. -- For the purpose of this subchapter, 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.

(2) The Superior Court 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 has ruled on the merits of the issue.

(b) Issues waived. -- For the purposes of this subchapter, 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 subchapter.

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

[ 388 Pa. Super. Page 101]

/24/89, pp. 2-3.) Moreover, we find no basis for appellant's unsubstantiated allegation of prosecution use of "perjured or obviously false" testimony. The asserted perjury was merely the minor inconsistencies found among witnesses in almost all cases. The trial court properly instructed the jury it could believe all, part or none of each witness' testimony.

Appellant has failed to make a prima facie showing a miscarriage of justice may have occurred and this fifth PCHA petition was dismissed correctly without a hearing. As recognized by this Court when we previously denied appellant relief on prior appeals, "where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed." Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Based upon our careful review of the record, we now assume appellant, in the almost 20 years since his conviction, has exhausted all possible avenues under the PCHA and no further PCRA petitions should be entertained by the trial court. Should an eighth counsel be assigned to review claims by appellant, it is inconceivable that a petition to withdraw would not be requested and then granted, pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), because any further collateral petitions for relief would be frivolous and should only be pursued pro se or with privately retained counsel. Id.*fn3

Order affirmed.

Disposition

Order affirmed. Popovich, J., concurs in the result.


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