Commonwealth v. WilliamsCommonwealth v. Williams
- Reporters:
- , ,
- Before:
- Rowley
OPINION OF THE COURT
ROWLEY, Judge:Appellant was convicted of third degree murder following a jury trial and was sentenced to nine to twenty years imprisonment. A direct appeal was taken to the Superior Court which affirmed the judgment of sentence on December 30, 1983. (No. 291 Harrisburg, 1982). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied on February 21, 1985. (No. 39 M.D. Allocatur 1984). Appellant then filed a petition for Writ of Habeas Corpus in the United States District Court, but the petition was denied. The Third Circuit Court of Appeals denied certification to appeal the District Court’s order. Thereafter, appellant filed a Post Conviction Hearing Act petition 1 and counsel was appointed. The PCHA petition was denied without a hearing. The instant appeal is from the denial of the PCHA petition. We affirm.
Appellant raises three issues on appeal: 1) whether trial counsel was ineffective for failing to object when the Commonwealth struck all the black veniremen from the jury panel; 2) whether trial counsel was ineffective for failing to object to the Commonwealth’s plea of surprise; and 3) whether trial counsel was ineffective for failing to insist that the court make a definitive ruling concerning the admissibility of a testimonial reference to a polygraph. The second and third issues have been adequately discussed and correctly decided by the trial court. Therefore, we do not address them. The first issue raised by appellant, however, is one of first impression in the appellate courts of this Commonwealth.
In
Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court re-examined the rule first established in
Swain v. Alabama,
380
In
Allen v. Hardy,
— U.S. —, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) which was decided after
Batson
but before
McCormick,
the U.S. Supreme Court held that
Bat-son
does not apply retroactively to collateral review of convictions that became final before
Batson
was announced. In
McCormick
we did not follow
Allen
in part because
Allen
addressed the question of retroactive application of
Batson
to final convictions whereas
McCormick
involved only the issue of retroactive application of
Batson
to cases not yet final when
Batson
was announced. We
In Allen, the Supreme Court stated:
Retroactive application would require trial courts to hold hearings, often years after the conviction became final, to determine whether the defendant’s proof concerning the prosecutor’s exercise of challenges established a prima facie case of discrimination. Where a defendant made out a prima facie case, the court then would be required to ask the prosecutor to explain his reasons for the challenges, a task that would be impossible in virtually every case since the prosecutor, relying on Swain, would have had no reason to think such an explanation would someday be necessary. Many final convictions therefore would be vacated, with retrial “hampered by problems of lost evidence, faulty memory, and missing witnesses.” Solem v. Stumes, supra, 465 U.S. [638], at 650, 104 S.Ct. [1338], at 1345 [79 L.Ed.2d 579]; see also Linkletter v. Walker, 381 U.S. [618], at 637, 85 S.Ct. [1731], at 1742 [14 L.Ed.2d 601].
Allen, Id.,
at —, 106 S.Ct. at 2881, 92 L.Ed.2d at 205. These problems enunciated by the Supreme Court as resulting from the passage of time between final conviction and collateral review of the conviction distinguish those cases raising the
Batson
issue in a case not yet final when
Batson
was decided, and those raising the issue only upon collateral review of the conviction. The detrimental impact on the administration of justice warrants denying retroactive application of
Batson
to cases raising the issue only on collateral review of the final conviction. Therefore, we are
However, regardless of whether Batson is applicable to cases on collateral review of convictions which were final when Batson was decided, appellant has failed to demonstrate that he is eligible for collateral relief.
To be eligible for relief‘under the PCHA, a person must demonstrate that the error resulting in his conviction and sentence has not been finally litigated or waived.
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
In the case presently before us, the issue of the use of peremptory challenges has been raised for the first time in appellant’s PCHA petition. Thus appellant will be eligible for relief only if he can demonstrate that his coun
Because appellant has failed to show that he is eligible for relief on collateral review of his final conviction, and because there are compelling reasons not to apply the Supreme Court’s decision in Batson to collateral review of convictions which were final when Batson was decided, we affirm the trial court’s order.
Order Affirmed.
Notes
.