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04/25/97 COMMONWEALTH PENNSYLVANIA v. JOSEPH THOMAS

SUPREME COURT OF PENNSYLVANIA


April 25, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSEPH THOMAS SZUCHON, APPELLANT

Appeal from Order of the Court of Common Pleas of Erie County entered January 19, 1996, at No. 815 A 1981, denying Appellant's third petition for post-conviction relief pursuant to the Post-Conviction Relief Act, 42 Pa. C.S. § 9541 et seq. JUDGES BELOW: Hon. Shad Connelly.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

Decided: April 25, 1997

In this capital case, Appellant Joseph Thomas Szuchon ("Appellant") has taken this appeal from the Order of the Court of Common Pleas of Erie County denying his third counseled petition for collateral relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541 to 9546.

We extensively set forth the facts of this case in Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1985). For purposes of this third PCRA appeal, the relevant facts are as follows. On October 23, 1981, following a jury trial in the Court of Common Pleas of Erie County, Appellant was convicted of first-degree murder, three counts of kidnapping, two counts of terroristic threats, and two counts of recklessly endangering another person. Each of the convictions arose from Appellant's involvement in the murder of Judy Lynn Snider on

April 14, 1981. Following the penalty phase of Appellant's trial, the jury sentenced him to death on the first-degree murder charge.

On direct appeal before this Court pursuant to 42 Pa. C.S. § 9711(h), we affirmed the convictions and death sentence in Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1985), and denied reargument on January 16, 1985. *fn1

Subsequently, Petitioner filed his first petition for post-conviction relief. On February 27, 1987, the trial court denied the PCRA petition without a hearing. The Superior Court affirmed in Commonwealth v. Szuchon, 377 Pa. Super. 657, 541 A.2d 1155 (1988). On February 21, 1989, this Court denied further appellate review. See Commonwealth v. Szuchon, allocatur denied, 521 Pa. 620, 557 A.2d 723 (1989).

On March 6, 1992, Appellant filed a second petition for post conviction relief which was denied by the trial court. This Court affirmed in Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993).

On January 8, 1996, the trial court denied Appellant's third petition for PCRA relief. Appellant took a direct appeal to this Court. *fn2 For the following reasons, we affirm.

In his third PCRA petition, Appellant has raised four issues for review. However, none of Appellant's claims warrant PCRA relief.

Section 9543 governs eligibility under the Post-Conviction Relief Act, including preclusion of claims that have been previously litigated. *fn3 Section 9544(a) of the PCRA defines previous litigation as follows:

(a) Previous litigation.-- For the purpose of this subchapter, an issue has been previously 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 did not appeal;

(2) the highest appellate court in which petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

42 Pa. C.S. § 9544(a) (emphasis added).

Appellant first argues that there was insufficient evidence to support the aggravating circumstance found by the jury under 42 Pa. C.S. § 9711(d)(7). *fn4 After a thorough examination of the record on direct appeal, however, this Court determined that the evidence overwhelmingly supports the finding of the aggravating circumstance of knowingly creating a grave risk to another person in addition to the murder victim pursuant to section 9711(d)(7). See Commonwealth v. Szuchon, 506 Pa. at 259, 484 A.2d at 1381. Thereafter, in his second petition for PCRA relief, Appellant again challenged the jury's finding that there was sufficient evidence to support the aggravating factor under section 9711(d)(7). In addressing the claims in that petition, this Court made clear that since we had already decided this question on direct appeal, Appellant was ineligible for PCRA relief. See Commonwealth v. Szuchon, 534 Pa. at 485, 633 A.2d at 1099. Nevertheless, in this third PCRA petition, Appellant yet again argues that there was insufficient evidence to support the aggravating factor found by the jury under section 9711(d)(7). As we have stated previously, since this Court has already decided the question on direct appeal, Appellant is ineligible for PCRA relief on this claim. See Commonwealth v. Szuchon, 534 Pa. at 485-486, 633 A.2d at 1099. See also 42 Pa. C.S. § 9543(a)(3). Second, Appellant argues that the trial court erred by denying his first PCRA petition in 1987 without an evidentiary hearing. Appellant claims the trial court did not adequately review his first PCRA petition and the trial court's dismissal without a hearing was arbitrary and capricious, and a violation of his due process rights. See Appellant's Brief at 49.

On February 27, 1987, the trial court denied Appellant's first PCRA petition without a hearing, explaining in a 15 page Opinion that an evidentiary hearing was unnecessary because each of the isssues raised were either litigated on direct appeal or patently frivolous. Appellant filed an appeal in the Superior Court claiming that the trial court erred in denying his petition without an evidentiary hearing. In a Memorandum Opinion and Order, the Superior Court affirmed on the basis of the trial court opinion. Again, Appellant's claim was previously litigated under section 9544(a)(2) of the PCRA, and accordingly Appellant is ineligible for relief on this claim.

Third, Appellant asserts that the trial court erred when it failed to inform the sentencing jury that, if the jury imposed a life sentence, Appellant would be ineligible for parole and that the Commonwealth's suggestion that only a sentence of death would prevent Appellant from returning to society mandated such an instruction. Appellant argues that under the authority of Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), the trial court erred by failing to instruct the jury that a "life sentence" means "life without parole." *fn5

In Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995), this Court held that Simmons cannot be applied retroactively to collaterally attack an appellant's death sentence in a capital case. In Christy, the defendant was convicted by a jury of first-degree murder in 1983, and was sentenced to death. On direct appeal, this Court affirmed the conviction and death sentence in 1986. See Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), cert. denied, 481 U.S. 1059, 107 S. Ct. 2202, 95 L. Ed. 2d 857 (1987). Approximately eight years after the Christy conviction, the United States Supreme Court decided Simmons. Christy filed a petition for PCRA relief, alleging that the trial court erred by failing to give a Simmons instruction to the sentencing jury.

The Christy Court reasoned that Simmons did not apply retroactively where the defendant had exhausted his direct appeal process prior to Simmons yet nevertheless attempted to argue Simmons on PCRA review. This Court stated:

A case which breaks with past precedent is not applicable retroactively to cases final on direct appeal but pending in a collateral proceeding. See e.g., Allen v. Hardy, 478 U.S. 255, 257-58, 106 S. Ct. 2878, 2879, 92 L. Ed. 2d 199 (1986); Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986).Simmons broke with past precedent in Pennsylvania since such a request would have been properly denied in cases predating the applicability of Simmons. Since Simmons announces a new rule of law in Pennsylvania, it is not to be applied retroactively to the collateral attack of [defendant's] sentences.

Christy, 540 Pa. at 216-17, 656 A.2d at 889. In Christy, we refused to apply Simmons retroactively on PCRA review for another important reason:

One cannot ignore the effect of retroactive application of Simmons to collaterally attacked sentences. Should we hold otherwise, it is not unreasonable to anticipate that almost every death sentence imposed in Pennsylvania would be subject to collateral attack on the basis of Simmons.

Christy, 540 Pa. at 217, 656 A.2d at 889, n.23.

Appellant's argument herein is identical to that in Christy. Appellant herein exhausted his direct appeal process in 1985, years before the Simmons decision. Accordingly, Simmons cannot be applied retroactively as a basis to afford Appellant PCRA relief.

Fourth and finally, Appellant argues that the trial court erred by admitting the testimony of psychiatrist Dr. Walter Finken during the guilt and penalty phases of Appellant's trial. Despite the fact that Appellant requested the psychiatric examination which Dr. Finken performed and later raised a diminished capacity defense during both the guilt and penalty phases of his trial, Appellant argues that his Fifth Amendment privilege against self-incrimination was violated, since he did not receive Miranda warnings prior to his examination by Dr. Finken. Furthermore, Appellant asserts that the trial court erred by permitting the Commonwealth to introduce information from Dr. Finken's psychiatric report during the guilt and penalty phases of the trial.

Recently, in Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254 (1996), this Court addressed the question of whether a criminal defendant retains his Fifth Amendment privilege against self-incrimination under Miranda during a court-ordered psychiatric exam by a Commonwealth psychiatrist in a criminal trial. *fn6 In Morley, we held that where a defendant has raised a defense based on mental infirmity, including a diminished capacity defense, neither the Fifth Amendment of the United States Constitution, nor Article I, Section 9 of the Pennsylvania Constitution are violated when a court-ordered psychiatric examination is conducted by a Commonwealth psychiatrist without giving the defendant any Miranda warnings. See Morley, 681 A.2d at 1258.

Appellant acknowledges that his counsel requested the psychiatric examination performed by Dr. Finken, who concluded that Appellant was competent to stand trial. See Appellant's Brief at 32. In Morley, the defendant underwent a court-ordered psychiatric examination by a Commonwealth psychiatrist. Thus, there is even less of a basis to afford Appellant protection under the Fifth Amendment in this case where Appellant himself requested the psychiatric examination. Moreover, it is undisputed that Appellant raised diminished capacity as the cornerstone of his defense against the first-degree murder charge and thus was unable to form the requisite specific intent:

Appellant's defense was that he had been operating with a diminished capacity and/or had been in a drugged or intoxicated condition such that he was not able to form the specific intent to commit murder. Thus the defense, for obvious reasons, did not deny that Appellant committed the crimes, but attempted, rather, to reduce the degree of guilt on the homicide charge. The defense was unsuccessful. Moreover, the Commonwealth introduced Dr. Walter Finken, a psychiatrist at Warren State Hospital who had examined Appellant, discussed his participation in the crimes with him and testified that in his opinion, at the time of the incident Appellant was able to comprehend the nature and the quality of his acts, knew right from wrong, and was capable of forming the specific intent to commit murder.

Commonwealth v. Szuchon, 506 Pa. at 236, 484 A.2d at 1369. Since Appellant argued diminished capacity throughout the guilt and penalty phases of his trial, the Morley decision makes clear that his Fifth Amendment privilege against self-incrimination was not violated by Dr. Finken's psychiatric examination and subsequent testimony. *fn7

Appellant further alleges that counsel was ineffective for failing to object to the admission of Dr. Finken's testimony on the basis that it violated his Fifth Amendment privilege against self-incrimination. As discussed above, however, Appellant's underlying claim has no merit. Therefore, Appellant's claim of ineffective assistance of counsel must necessarily fail. See, e.g., Commonwealth v. Morley, (rejecting Appellant's ineffective assistance of counsel claim where Appellant's underlying Fifth Amendment claim was meritless); See also Commonwealth v. Wilson, 538 Pa. 485, 498, 649 A.2d 435, 442 (1994), cert.denied, 133 L. Ed. 2d 91, 116 S. Ct. 145 (1995) (rejecting Appellant's ineffective assistance of counsel claim where Appellant's underlying claim was meritless).

For the above reasons, we AFFIRM.


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