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Commonwealth v. Fahy

November 21, 2008


Appeal from the Order of the Court of Common Pleas of Philadelphia County, entered April 26, 2007 at No. CP-51-CR-0222831-1981.

The opinion of the court was delivered by: Madame Justice Greenspan


SUBMITTED: September 15, 2008


In this capital case, we decide whether the Court of Common Pleas of Philadelphia County erred when it limited the scope of its hearing on the fifth petition filed by Appellant Henry Fahy under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.*fn1

In 1983, Appellant was convicted of murder in the first degree, rape, burglary, and possession of an instrument of crime for the brutal rape and slaying by strangulation of twelve-year old Nicoletta Caserta inside her home. The jury sentenced the Appellant to death after finding that the two mitigating circumstances it found were outweighed by three aggravating circumstances established by the Commonwealth.*fn2 Following the imposition of that sentence, Appellant filed a direct appeal to this Court, which affirmed the judgment of sentence. Commonwealth v. Fahy, 516 A.2d 689 (Pa. 1986). Appellant did not seek review in the United States Supreme Court and his conviction became final for purposes of the PCRA on January 19, 1987, ninety days after the judgment of sentence was affirmed. See 42 Pa.C.S. § 9545(b)(3) (a judgment becomes final under the PCRA at the conclusion of direct review, including discretionary review in the Supreme Court of the United States).

Appellant filed his first pro se petition for collateral review under the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-46, in 1986, but took no further action on the petition. The petition was dismissed the following year. Thereafter, in November 1991, the Governor of Pennsylvania signed a warrant for Appellant's execution, scheduled for the week of January 13, 1992. On January 7, 1992, retained counsel filed a petition for stay of execution and appointment of counsel with this Court. This Court remanded the matter to the Court of Common Pleas for a hearing on whether the aggravating circumstance of torture had been proved. On September 14, 1992, a hearing was held and the PCRA court denied relief. This Court affirmed the denial of collateral relief. Commonwealth v. Fahy, 645 A.2d 199 (Pa. 1994).

The Governor signed a second death warrant on May 19, 1995. On July 7, 1995, this Court granted a stay to permit Appellant thirty days in which to file another petition for collateral relief. Appellant filed his third petition on August 4, 1995. A hearing was held and on October 25,1995, Appellant's third petition was denied. Appellant appealed to this Court.

While his appeal was pending, Appellant personally petitioned the PCRA court asking it to permit him to waive all collateral proceedings and to withdraw all appeals in order that the death sentence be carried out. This Court ordered a remand for a hearing to ascertain whether Appellant fully understood the rights he wished to waive after his attorney filed a motion for the PCRA court to determine Appellant's competency to waive his rights.

Appellant appeared before the PCRA court on August 2, 1996, and requested that the hearing be postponed for a week to allow him more time to decide whether or not to waive his right to further review. The request was granted and a week later, after an extensive colloquy, the PCRA court concluded that Appellant was competent to waive his right to collateral review and further appellate proceedings. Even though Appellant had made it clear that he no longer wished to contest his conviction and sentence, Appellant's counsel from the Center for Legal Education, Advocacy& Defense Assistance (CLEADA) filed an appeal to this Court, alleging that Appellant did not want to waive his rights to collateral and appellate review.

On September 17, 1997, this Court held unanimously that Appellant had knowingly waived all collateral or appellate proceedings in the August 1996 colloquy. Commonwealth v. Fahy, 700 A.2d 1256 (Pa. 1997). Nine days later, CLEADA filed an application for reargument that was denied.

On November 12, 1997, CLEADA filed in Appellant's name a fourth petition for collateral relief. The PCRA court dismissed Appellant's PCRA petition. An appeal was filed and on August 27, 1999, this Court affirmed. Commonwealth v. Fahy, 737 A.2d 214, 216-217 (Pa. 1999).

On January 27, 2006, Appellant filed the instant--his fifth--PCRA petition. In it he alleged that he was entitled to a new trial because of a pattern of racial discrimination exhibited by the Philadelphia District Attorney's Office involving the jury selection process. In response, the Commonwealth argued that Appellant was not entitled to relief for several reasons including that the Appellant failed to file his PCRA petition in a timely fashion. However, the PCRA court determined that Appellant's fifth petition had been timely filed. The PCRA court then held an evidentiary hearing on the limited issue of whether it was the policy and practice of the Philadelphia District ...

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