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September 17, 1997


Appeal from the Order of the Court of Common Pleas of Philadelphia County dated October 25, 1995, denying PCRA relief.

JUDGES BELOW: Hon. Albert F. Sabo.

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

The opinion of the court was delivered by: Castille



DECIDED: September 17, 1997

The sole issue before this Court is whether appellant's waiver of all collateral or appellate proceedings is valid. We hold that appellant's waiver is valid; therefore the instant appeal is dismissed.

In 1983, a jury convicted appellant of first-degree murder, rape, burglary and possession of an instrument of crime as a result of his rape, torture and murder of a neighbor's twelve-year-old daughter. He was sentenced to death and on direct appeal in 1986, this Court affirmed his sentence of death. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986).

In 1986, appellant filed a PCRA petition which was dismissed in 1987 because no action was taken on the petition. Five years later, the Governor of the Commonwealth issued a warrant of execution, and appellant was scheduled to be put to death on January 14, 1992. Approximately one week before the scheduled execution, appellant, represented by court appointed counsel, Norris Gelman, Esq. and Louis M. Natali, Esq., sought a stay of execution from the Court of Common Pleas on the grounds that, before his execution, appellant should be allowed to argue the issue of whether his trial counsel was ineffective for failing to challenge the aggravating circumstance of torture. The trial court denied the stay, and appellant filed a stay request in both this Court and in the Federal District Court. On January 13, 1992, this Court remanded the matter to the trial court for a PCRA hearing on the torture issue. On September 14, 1992, the trial court held a PCRA hearing and denied relief to appellant. This Court affirmed on July 1, 1994. Commonwealth v. Fahy, 537 Pa. 533, 645 A.2d 199 (1994). The United States Supreme Court denied appellant's petition for certiorari on January 9, 1995.

On May 19, 1995, the Governor signed another death warrant after which appellant again filed stay requests in the common pleas court, this Court and the Federal District Court. On June 1, 1995, appellant filed a motion requesting additional time to file a PCRA petition. On July 7, 1995, this Court granted a stay of execution and allowed appellant thirty days to file yet another PCRA petition. Appellant filed his third petition on August 4, 1995 and supplemented it on September 12, 1995 claiming that he suffered from a mental illness that should have been deemed a mitigating factor in the penalty phase and that there should have been a competency hearing before the penalty phase. Following an evidentiary hearing, on October 25, 1995, the PCRA court denied the PCRA petition, and appellant appealed to this Court.

While his appeal before this Court was pending, on December 5, 1995, appellant himself filed a handwritten petition asking the PCRA court to allow him to waive all collateral proceedings and to withdraw any appeals so that his sentence could be carried out. On March 22, 1996, attorneys Gelman and Natali filed a motion requesting that the PCRA court determine appellant's competency to waive his rights, arguing that public interest requires a psychiatric evaluation whenever a defendant decides to waive his collateral and appellate rights in a capital case. On July 17, 1996, this Court remanded to the PCRA court "for a colloquy to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and to waive all collateral proceedings."

On August 2, 1996, appellant appeared for the colloquy and requested an additional week and a transfer to Graterford prison during that week to consider his decision. The court granted appellant's requests. One week later, on August 9, 1996, appellant again appeared before the PCRA court for the waiver colloquy. The hearing began with the Judge questioning appellant about whether he had an opportunity to speak to the attorneys from the Center for Legal Education, Advocacy & Defense Assistance ("CLEADA") during his week at Graterford. Appellant responded that he spoke to them on three separate days and again on the morning of August 9, 1996. Appellant stated that the last time the attorneys from CLEADA came to Graterford he signed papers stating that he wanted them to represent him. He then stated that he had changed his mind and did not want to be represented by the attorneys from CLEADA.

Appellant Fahy told the court that he knew that the attorneys "mean well" but that he did not want any further appeals:

I just don't want you to file any more petitions for me. When I leave here, don't ask the Court to reconsider, the Supreme Court. I know what I'm doing. I don't need to be brought down here on some petition as Mr. Gelman put the remand in for my Petition that I filed on December 5th which is marked as Exhibit C-1. I don't need some action put on that. I know what I want. If I hadn't known what I want I never would have filed a Petition. It ...

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