Commonwealth v. Carbone

707 A.2d 1145, 1998 Pa. Super. LEXIS 6
CourtSuperior Court of Pennsylvania
DecidedJanuary 12, 1998
StatusPublished
Cited by21 cases

This text of 707 A.2d 1145 (Commonwealth v. Carbone) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Carbone, 707 A.2d 1145, 1998 Pa. Super. LEXIS 6 (Pa. Ct. App. 1998).

Opinions

CIRILLO, President Judge Emeritus:

Appellant Patricia Ann Carbone appeals from the order of the Court of Common Pleas of Somerset County denying her request for relief under the Post Conviction Relief Act, (PCRA), 42 Pa.C.SA. § 9541, et seq. We reverse and remand for a new trial.

Patricia Carbone, age thirty-one, was charged with first-degree murder, third-degree murder, and voluntary manslaughter. She admitted stabbing the decedent, Jerome [1147]*1147Lint, but claimed self-defense.1 Carbone was tried before a jury and convicted of first-degree murder. She was sentenced to life imprisonment. On appeal, this court, sitting en banc, found the evidence insufficient to sustain a conviction for first-degree murder. Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988) (en banc). This court determined that the Commonwealth had failed to disprove Carbone’s claim of self-defense beyond a reasonable doubt, see 18 Pa.C.S.A. § 505, and, therefore, the evidence did not establish that the killing was inspired by malice. We remanded for a new trial on the charge of voluntary manslaughter. Commonwealth v. Carbone, 375 Pa.Super. at 277-79, 544 A.2d at 470.2

The Supreme Court of Pennsylvania granted the Commonwealth’s petition for appeal, reversed this court’s decision and remanded for disposition of the issues raised but not addressed in Carbone’s direct appeal. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990). Following review on remand, this court affirmed the judgment of sentence. Commonwealth v. Carbone, 408 Pa.Super. 644, 588 A.2d 558 (1990).

On May 21, 1996, Carbone filed a petition for post-conviction relief. See 42 Pa.C.SJL § 9541, et seq.3 In her petition Carbone alleged that trial counsel was ineffective for (1) failing to call any character witnesses on her behalf and (2) failing to call Kathy Potter as a defense witness. The PCRA court denied relief. Carbone petitioned for reconsideration of the decision on her second claim of ineffectiveness of counsel, that counsel was ineffective for failing to present Kathy Potter as a rebuttal witness. The PCRA court denied reconsideration and concluded that the issue was waived under 42 Pa.C.S.A. § 9544(b) because current counsel failed to raise it on direct appeal. This appeal followed. Carbone raises three issues for our review:

1. Whether the trial court erred in determining that petitioner waived her claims of ineffectiveness of trial counsel?
2. Whether the petitioner’s constitutional right to due process was violated by the trial court’s denial of her PCRA petition when the trial court determined the petitioner previously waived her claim to ineffectiveness of counsel?
3. Whether the amendments to the PCRA extinguished the “extraordinary circumstance” exception to the waiver doctrine?

Each of these claims questions the waiver doctrine of the Post Conviction Relief Act. [1148]*1148We, therefore, address these issues simultaneously.

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court’s findings were supported by the record and whether the court’s order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994). The PCRA court’s findings and credibility determinations are binding on review only if supported by the record. See id.; Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996). See also Commonwealth v. K.M., 452 Pa.Super. 7, 11-12, 680 A.2d 1168, 1171 (1996).

The purpose of the PCRA4 is to prevent a “fundamentally unfair conviction,” Commonwealth v. Weinder, 395 Pa.Super. 608, 626-27, 577 A.2d 1364, 1374 (1990), and provide an action where persons convicted of crimes they did not commit or individuals who have been serving illegal sentences may obtain collateral relief. 42 Pa.C.S.A. § 9542. In order to be eligible for relief, a petitioner must establish at least one of the factors under section 9543(a)(2)5 and that the claim of error has not been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). Section 9544(b) of the PCRA states: “For purposes of this subchapter, an issue is waived if a petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior posteonviction proceeding.” 42 Pa.C.S.A. § 9544(b).

Petitioner argued to the PCRA court that her claim was not subject to the waiver doctrine because her current counsel (who represented her on direct appeal) was completely unaware of the existence of the proposed defense witness, Kathy Potter. In response, the Commonwealth argued that petitioner sought to equate Kathy Potter’s testimony with “after-discovered evidence.” The PCRA court agreed with the Commonwealth’s characterization, analyzed petitioner’s claim under the after-discovered evidence test,6 and concluded that because [1149]*1149Kathy Potter was interviewed by defense counsel and was available for trial, petitioner failed to meet the “unavailable at trial” requirement of the after-discovered evidence test. See Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978); Commonwealth v. Cooney, 444 Pa. 416, 417, 282 A.2d 29, 30 (1971); Commonwealth v. Galloway, 433 Pa.Super. 222, 640 A.2d 454 (1994); Commonwealth v. Bonaccurso, 425 Pa.Super. 479, 625 A.2d 1197 (1993).

On reconsideration, petitioner urged the PCRA court to reexamine her argument that current .counsel/direct appeal counsel had no knowledge of Kathy Potter until after petitioner’s original appeal rights had been exhausted, making it impossible for current counsel to raise the issue on direct appeal. The PCRA court dismissed this argument, this time on the basis of waiver. See 42 Pa.C.S.A. § 9544(b). The court stated that in light of the November 17, 1995 amendments to the PCRA, which eliminated the “extraordinary circumstances” language, there are “no longer any ... loopholes for Petitioner to squeeze through.” On appeal, the Commonwealth continues this argument, suggesting that the 1988 amendments to the waiver provision of the PCRA, 42 Pa.C.S.A. § 9544,7 preclude relief in this case. We find the argument unconvincing.

Prior the 1988 amendments, section 9544(b) stated:

(b) Issues waived. — For the purposes of this subehapter, an issue is waived if:

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Cite This Page — Counsel Stack

Bluebook (online)
707 A.2d 1145, 1998 Pa. Super. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-carbone-pasuperct-1998.