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October 1, 1997


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, entered February 7, 1995, at Nos. 8206-3288, 3289, 3291, 3293. JUDGES BELOW: Hon. Joseph I. Papalini.

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

The opinion of the court was delivered by: Zappala


DECIDED: October 1, 1997

This is an appeal from the denial of relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. *fn1 We affirm.

In December of 1982, Donald Hardcastle was found guilty of two counts of first degree murder, burglary, and arson. As to both of the murder convictions the jury rendered a sentencing verdict of death. On direct appeal, this Court affirmed the judgment of sentence, 519 Pa. 236, 546 A.2d 1101 (1988), and the United States Supreme Court denied certiorari, 493 U.S. 1093, 110 S. Ct. 1169, 107 L. Ed. 2d 1072 (1990).

Hardcastle then filed a pro se motion for post-conviction collateral relief. The court appointed counsel, who filed amended and supplemental motions. The Commonwealth filed a motion to dismiss. Following argument, the court denied post-conviction relief. The court subsequently denied a motion to vacate the order denying relief. This appeal followed.

The Appellant's first argument is that the common pleas court violated Pa.R.Crim.P. 1507(a) by dismissing the motion for post-conviction relief without having first given notice stating the reasons for the proposed dismissal and allowing the Appellant ten days to respond. Although we agree that the court did not follow the rule, no relief is necessary or warranted.

Pa.R.Crim.P. 1507(a) establishes that a motion for post-conviction relief may be disposed of without an evidentiary hearing if the Judge, upon review of the motion, answer, and other matters of record, is satisfied that there are no genuine issues of material fact and that relief is not warranted. The purpose of the notice and statement of reasons is to allow the petitioner to respond to the court's determination that there are no genuine issues concerning material facts and relief can be denied on the basis of the record.

Here, the court filed an order and opinion on January 20, 1995, addressing all of the issues raised and explaining why they could be decided without need of an evidentiary hearing. Counsel followed with a motion to vacate the order and the court afforded counsel the opportunity to argue why, contrary to the court's stated reasoning, an evidentiary hearing was necessary. In substance, the opinion served the same function as the Rule 1507(a) notice and statement of reasons, and the motion to vacate served the same function as the response to the proposed dismissal. Thus, the court's failure to follow the rule does not constitute an independent ground for relief in this appeal. See Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037 (1996).

Furthermore, based on our examination of each of the issues in light of the record, set forth fully herein, we conclude that there were no genuine issues of material fact; thus the court did not err in denying relief without an evidentiary hearing.

The motion for post-conviction relief put forward numerous claims of ineffective assistance of counsel. These claims are essentially repeated in this appeal. At the time Hardcastle filed his motion for collateral relief, the PCRA required, as it does now, that the petitioner plead and prove by a preponderance of the evidence

That the conviction or sentence resulted from one or more of the following:

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S. § 9543(a)(2)(ii).

We shall consider the claims in sequence as they relate to the course of the trial. The first claim is that counsel failed to "life-qualify" the jury. During voir dire, the prospective jurors were asked by the court whether they had any moral, religious or ethical beliefs that would prevent them from voting for the death penalty in a proper case. This inquiry has come to be known as "death-qualifying" the jury, as its purpose is to exclude jurors who are not qualified to serve because they could not follow the law and impose the death penalty even where the law requires them to do so. Hardcastle argues that counsel should have asked the prospective jurors whether they had any beliefs that would prevent them from voting for life imprisonment in an appropriate case, or whether they would automatically vote for the death penalty upon a conviction of first degree murder.

We have previously held that although such questions are permissible, they are not required and counsel is not ineffective for failing to pose them. Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199 (1994); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991); Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The Appellant's brief fails to acknowledge these decisions, much less try to distinguish them ...

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