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07/23/97 COMMONWEALTH PENNSYLVANIA v. ROBERT LARK

July 23, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ROBERT LARK, APPELLANT



Appeal from the Order entered on September 12, 1995 which denied P.C.R.A. relief in the Criminal Division, Court of Common Pleas of Philadelphia County at Nos. 80-01-2012-2022 (John J. Poserina, Jr.).

Original Opinion Previously

Mr. Chief Justice Flaherty. Mr. Justice Castille did not participate in the consideration or decision of this case. Mr. Justice Cappy concurs in the result.

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: July 23, 1997

This is an appeal from the denial of a PCRA petition in a death penalty case. On June 28, 1985, Lark was convicted of first degree murder, possession of an instrument of crime, terroristic threats, and kidnapping. On April 24, 1986, he was formally sentenced to death on the murder conviction and various terms of imprisonment on the other convictions. He appealed the conviction and the judgment of sentence to this court, and on May 17, 1988, we affirmed. On August 19, 1994, the Governor of Pennsylvania signed the warrant for Lark's execution, and Lark then petitioned for collateral review. On July 21, 1995 the Court of Common Pleas of Philadelphia-Criminal Division (the PCRA court) heard argument to determine "whether or not there is [an] evidentiary hearing necessary on the PCRA petition." N.T. 7/21/95, 2. After argument, the court took the case under advisement and ultimately dismissed the petition without hearing on September 12, 1995. Lark appeals the denial of the PCRA petition.

The facts underlying this case are that in late 1978, Lark robbed Tae Bong Cho while putting a gun to the head of the victim's infant child. He was apprehended shortly after the robbery and was charged with the crime. Approximately two months later, Lark murdered Mr. Cho in order to prevent him from testifying against Lark in the robbery trial. No witness was able to identify the killer, because he wore a ski mask. However, Lark bragged to a number of acquaintances that he had killed "the Korean."

Lark failed to appear for trial on the robbery charge and he was convicted in absentia. Thereafter, Lark repeatedly threatened the prosecutor in the robbery case and detectives investigating the Cho homicide. He was captured on January 9, 1980 after he took a mother and her two small children hostage. While he was barricaded inside the hostage's house, he told police: "I'll kill you all like that [expletive]. . . . I'll shoot you in the legs."

Following capture, Lark was charged with offenses related to the murder of Mr. Cho, terroristic threats against the prosecutor in the robbery case, and the kidnapping of the woman and her two children. The first trial ended in mistrial as the result of an inadvertent question asked by the trial court, and after a second trial in June, 1985, as stated above, Lark was convicted of murder of the first degree and the other offenses.

In the present collateral proceeding, Lark alleges nineteen separate matters as bases for relief from the conviction and sentence of death. Some of these matters are couched in terms of ineffectiveness of trial counsel; others in terms of error of the trial court.

We recently summarized the requirements for PCRA relief as follows:

To be eligible for PCRA relief, Appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in section 9543(a)(2) and that his issues have not been previously litigated. An issue is deemed finally litigated for purposes of the PCRA if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been finally litigated, Appellant must also demonstrate that those allegations of error have not been waived or that, if waived, either the conditions listed in section 9543(a)(3)(ii) or (iii) are met. 42 Pa.C.S. § 9543(a)(3). An issue is deemed waived "if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, [or] on appeal . . . " 42 Pa.C.S. § 9544(b). Finally, Appellant must demonstrate that the failure to litigate the issue prior to, or during trial, or on direct apeal could not have resulted from any reasonable tactical decision of counsel. 42 Pa.C.S. § 9543(a)(4).

Commonwealth v. Banks, 540 Pa. 143, 148-49, 656 A.2d 467, 469-70 (1995)(footnotes omitted). *fn1

Three of Lark's claims, (numbers 7, 9 and 12) have been previously litigated. *fn2 Claim 7 is that the trial court erred in admitting the statement of Michael Johnson; claim 12 is that the Commonwealth improperly presented false evidence (the testimony of Michael Johnson); *fn3 and claim 9 is that prosecution was barred because of double jeopardy. The first two claims were adjudicated on direct appeal to this court; the third was adjudicated on direct appeal to the Superior Court. Since the claims have been previously litigated, they are not, therefore, eligible for review under the PCRA. See 42 ...


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