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

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 ...


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