Commonwealth v. Gillespie

482 A.2d 1023, 333 Pa. Super. 576

Opinions

BROSKY, Judge:

This is an appeal from the order of the court below denying appellant’s petition under the Post Conviction Hearing Act (PCHA).¹ Although appellant states only three questions in his statement of questions presented,² he raises twenty-one grounds for relief, including a claim that the sentencing court placed him twice in jeopardy by imposing a consecutive sentence for robbery together with a life sentence for murder when the murder verdict could have been predicated on the felony murder doctrine. We find that appellant has waived all but his double jeopardy claim, but find merit to that claim and accordingly vacate the sentence imposed for robbery.

In 1969, appellant robbed a gas station, taking $130.41 in cash. He then abducted the gas station attendant and drove him twelve miles to an isolated area, where he shot the attendant to death.

On June 28, 1972, a jury found appellant guilty of first-degree murder and armed robbery and set the punishment for murder at life imprisonment. Post-verdict motions were filed and denied and appellant was sentenced to five to ten years for robbery, to run consecutively to the life term for murder. Appellant appealed to the Pennsylvania Supreme Court which affirmed the convictions per curiam.

Appellant subsequently filed a habeas corpus petition in the United States District Court for the Middle District of Pennsylvania. The federal court appointed counsel to represent appellant on the petition and on October 21, 1976 denied the petition without a hearing. The United States Court of Appeals for the Third Circuit affirmed without opinion and the United States Supreme Court denied appellant’s petition for certiorari.

On June 13, 1979 appellant filed a PCHA petition and was appointed counsel by the PCHA court. After a hearing, the court denied the petition. This timely appeal followed.

Appellant’s petition to the PCHA court alleged thirty-one grounds for relief of which twenty-one are pursued in this appeal. The Commonwealth argues that, under § 1180-4 of the PCHA, appellant has waived all of these issues by failing to present them either in the original proceedings before the Pennsylvania courts or in the federal habeas corpus proceedings.³ However, we need not resolve this issue because we find that appellant has waived twenty of his claims due to the inadequacy of his presentation of those claims for our review and that his challenge to the sentence cannot be waived.

As to the twenty claims we find waived, we note that Pa.R.A.P. 2116(a) requires that a brief contain a statement of questions involved and further provides as follows:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby ...

Appellant’s brief presented the following as his third question of his statement of questions involved:

Whether or Not Various Matters Raised at the Insistance [sic] and Behest of Appellant Require the Court to Grant Relief to Appellant In this Case.

This question defines no specific issue for appellate review or determination.

Pa.R.A.P. 2118 requires that the brief contain a summary of argument as follows:

The summary of argument shall be a concise summary of the argument of the party in the case, suitably paragraphed. The summary of argument should not exceed one page and should never exceed two pages. The summary of argument should not be a mere repetition of the statement of questions presented. The summary should be a succinct, although accurate and clear picture of the argument actually made in the brief concerning the questions.

Appellant’s summary of argument with respect to the above question is as follows: Appellant asserts that the Court erred as regards various matters which are now raised at Appellant’s behest and insistance. [sic]

This summary amounts to nothing more than a repetition of the above question.

Finally, appellant’s argument with respect to the above question consists essentially of twenty numbered paragraphs, few longer than one sentence long, containing what amount to bald assertions of trial counsel’s ineffectiveness or court error.⁴

When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982); see Commonwealth v. Jackson, 494 Pa. 457, 481 A.2d 944 (1981).

We find appellant’s brief to be completely inadequate as to the twenty claims raised by his third question, and, therefore, will not reach its merits.

However, appellant’s double jeopardy claim is properly raised and developed in his brief. Moreover, such a claim raises the issue of the lawfulness of the sentence imposed upon his convictions. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Since claims of illegality of sentence cannot be waived, this issue is properly before us, whether or not it would otherwise be considered waived under the PCHA. Commonwealth v. Albertson, 269 Pa.Super. 505, 410 A.2d 815 (1979).

Appellant bases his claim on the cases of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) and Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). In Tarver, the Pennsylvania Supreme Court held that the Double Jeopardy Clause of the United States Constitution,⁵ in its protection against multiple punishments for the same offense,⁶ prohibits the imposition of consecutive sentences for felony murder and its underlying felony. According to the Tarver Court, felony murder and its underlying felony are the same offense for sentencing purposes.

Both Tarver and appellant were convicted of first degree murder under the Act of June 24, 1939, P.L. 872 § 701, which provided

All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.

The 1939 Act identified two distinct categories of first degree murder: murder accomplished by “willful, deliberate, and premeditated killing,” and murder “committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping.” The latter category is commonly known as “felony murder.”⁷

Tarver clearly was convicted of first degree murder of the felony murder variety. In the course of a bank robbery involving Tarver and two co-felons, a customer was shot and killed. Tarver pled guilty to murder and, at a degree-of-guilt hearing was adjudged guilty of first degree murder based on a finding the killing was perpetrated in the course and in furtherance of the robbery. He ultimately received a life sentence for the conviction. He also was tried and convicted on other charges, including robbery and was sentenced to ten to twenty years on the robbery count, to be served consecutively to the life term. On appeal, the Supreme Court then vacated the robbery sentence as violative of the Double Jeopardy Clause.

Instantly, appellant argues that the jury’s verdict was possibly based on the felony murder doctrine and that this possibility brings his case within the Tarver rule. This possibility was injected into the case by the trial court’s charge to the jury:

If you find, beyond a reasonable doubt, that the defendant, James Gillespie, while in the perpetration, or an attempt to perpetrate a robbery, as I have defined it, did violence to the person of William Gilmour by firing bullets into his body, thereby causing his death, then you should return a verdict of murder in the first degree. If you find, beyond a reasonable doubt, that the defendant, James Gillespie, regardless of whether a robbery was perpetrated, or attempted, did willfully, deliberately, and with premeditation, as defined by the court, shoot and kill William Gilmour, then you should return a verdict of murder in the first degree.

The jury returned a general verdict of guilty of first degree murder without specifying upon which of the alternative charges they had relied. Thus, there is no way of knowing on which theory the jury proceeded.⁸

Tarver, however, is not necessarily alone dispositive of the instant case since there it was certain that the conviction of first degree murder was based on the felony murder doctrine. The question before us is whether the Tarver rule applies where there is only a possibility that the verdict was predicated on the felony murder doctrine.

We believe that the case of Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977) compels us to answer this question in the affirmative. In Sparrow, the Supreme Court, faced with the same type of jury instructions and verdict as appear instantly, stated:

There was ample evidence in the case (such, for example, as Sparrow’s announced purpose, “I’m going to get me a homicide”) from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premeditated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant’s contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable.

Sparrow, 471 Pa. at 502, 370 A.2d at 720. However, the Sparrow court went on to hold that the imposition of a consecutive sentence for robbery, even if it lay behind the murder verdict, did not violate the doctrine of merger or the Double Jeopardy Clause. Thus, if the instant case were governed by Sparrow, appellant would not prevail.

However, Tarver, in holding that felony murder and its underlying felony are the same offense for sentencing purposes, expressly overruled Sparrow’s contrary holding. We conclude, therefore, that a consideration of Sparrow and Tarver together produces the following rule: if there is no way of knowing on which theory (felony murder or willful, deliberate and premeditated murder) the jury based its verdict of first degree murder, a sentence may not be imposed both for the murder conviction and for the felony that would be the underlying offense were the murder conviction considered to be based on a theory of felony murder.

However, since Tarver was decided after appellant’s conviction had become final, the preceding rule would not apply unless Tarver is to be given full retroactive effect. This question is one of first impression.⁹

In Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969), our Supreme Court adopted the standards to be followed in determining whether to retroactively apply a decision in a criminal case. The court relying upon Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) required a number of factors to be considered. The court must review the purpose of the standard, the reliance place upon prior decisions, and the effect upon the administration of justice.

Commonwealth v. Parrott, 287 Pa.Super. 83, 87, 429 A.2d 731, 733 (1981).

We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated.

Linkletter indicated, for instance, that only those procedural rules affecting “the very integrity of the factfinding process” would be given retrospective effect. 381 U.S. at 639 [85 S.Ct. at 1743], 14 L.Ed.2d 601. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding' process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia, 408 U.S. 936, 92 S.Ct. 2845, 33 L.Ed.2d 753 [ (1972) ].

The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases.

The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.¹⁰

Robinson v. Neil, 409 U.S. 505, 507-508, 93 S.Ct. 876, 877-8, 35 L.Ed.2d 29, 32-33 (1973).

This holding was put in a broader perspective in the case of United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). There the Court stated the following:

... the Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place. The Court has invalidated inconsistent prior judgments where its reading of a particular constitutional guarantee ... serves “to prevent [his] trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of [that] trial,” Robinson v. Neil, 409 U.S., at 509, 93 S.Ct., at 878 (double jeopardy). In such cases, the Court has relied less on the technique of retroactive application than on the notion that the prior inconsistent judgments or sentences were void ab initio.

Id., at 550, 102 S.Ct. at 2587-88, 73 L.Ed.2d at 214.

The principles of Robinson and Johnson were recognized by this court in Commonwealth v. Beam, 227 Pa.Super. 293, 324 A.2d 549 (1974), where we stated that:

The cases in which double jeopardy principles have been given retroactive application have involved situations wherein a second prosecution or punishment was deemed to constitute jeopardy for the same offense. Retroactive application of these decisions was required in order to enforce the traditional Fifth Amendment ban on double punishment and successive prosecutions for the same offense.

Id., 227 Pa.Superior Ct. at 300, 324 A.2d at 553 (emphasis added) (citations omitted).

As noted earlier, the Tarver court’s decision was that the double jeopardy clause, in its protection against multiple punishments for the same offense, prohibits the imposition of consecutive sentences for felony murder and its underlying felony. We believe that the preceding discussion makes it abundantly clear that such a decision must be given full retroactive effect.¹¹

Since the instant case thus falls within the rule prescribed above, we must vacate the sentence of five to ten years on the robbery conviction.¹² It is so ordered.

Order of the PCHA court affirmed in part and reversed in part. Jurisdiction relinquished.

CIRILLO, J., filed a dissenting opinion.

Footnotes

1

. 19 P.S. § 1180-1 et seq., reenacted as 42 Pa.C.S.A. § 9541 et seq.

2

. Appellant’s statement of questions presented is as follows:

Issue I — Whether or Not Appellant Has Waived His Right to Raise Certain Issues By Way of A Petition Under the Post Conviction Hearing Action, 19 P.S. 1180-1 et seq.

Issue II — Whether or Not the Sentencing Court Violated the Double Jeopardy Provision of the United States Constitution By Imposing a Consecutive Sentence for the Armed Robbery Conviction.

Issue III — Whether or Not Various Matters Raised at the Insistance [sic] and Behest of Appellant Require the Court to Grant Relief to Appellant In this Case.

3

. Section 1180-4, now section 9544 of the PCHA provides in relevant part that:

(b) for purposes of this act, an issue is waived if: (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 or any other, proceeding actually conducted, or in a prior proceeding actually initiated under this act; and (2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

4

. For example, in paragraph 10, appellant states the following:

10. Trial counsel failed to object and move for a mistrial as regards the charge of the jury on the issue of flight and the prosecutor’s remarks as regards flight of Appellant.

This statement constitutes the entire argument on the issue raised in it.

5

. U.S. Const. Amend V.

6

. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

7

. Felony murder is presently classified as murder of the second degree. 18 Pa.C.S.A. § 2502(b).

8

. The Commonwealth itself concedes in its brief that it "is impossible to decipher whether the jury relied on the court’s first or second charge concerning a finding of Murder in the First Degree.

9

. In Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982), Tarver was made retroactive to the extent that it was held to apply to cases on direct appeal at the time it was decided.

10

. While, instantly, a different aspect of double jeopardy is at issue— that of the prohibition against multiple punishments for the same offense — its practical result is still not to prescribe procedural rules that govern the conduct of a trial.

11

. Unlike the case at bar, the Pennsylvania Supreme Court cases relied on by the dissent in support of its position that Tarver should not be applied retroactively involve procedural rule changes. Thus, they are clearly inapposite to the instant case.

12

. The dissent would distinguish Sparrow on the basis that there the evidence could rationally and legitimately support a finding that the defendant did not specifically intend the death of his victim while here it could not. We believe this is a false distinction.

The dissent’s argument misses the point that no matter how great the quantum of evidence may be to support such a finding, a contrary finding by the jury would always be legitimate, for it is solely the jury’s province to determine the quality of that evidence. We do not, as the dissent mistakenly believes, refer here to the jury’s traditional power to exercise mercy, but to its basic and exclusive function of assessing the credibility of the testimony. A jury is free to believe all, part or none of the evidence. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). Thus, no matter how unequivocally the dissent believes the evidence proved premeditated murder, it was within the province of the jury to disbelieve evidence that the appellant specifically intended the death of his victim. Essentially, the dissent would have us weigh the evidence and determine that the jury either must have or should have found that appellant was guilty of wilful, deliberate premeditated murder. This we cannot do.

On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98 (1960). To do so would require an assessment of the credibility of the testimony and that is clearly not our function. Commonwealth v. Sullivan, 436 Pa. 450, 456, 263 A.2d 734 (1970) cert. denied, 400 U.S. 882, 91 S.Ct. 127, 27 L.Ed.2d 120; Commonwealth v. Schuck, 401 Pa. 222, 228, 164 A.2d 13 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961).

Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). Thus, as in Sparrow, we are left unable to rule out the possibility that the jury based its verdict of first-degree murder solely on the felony-murder doctrine.

We also fear that the dissent greatly exaggerates the import of our decision. Certainly, the dissent concedes that, under Sparrow, the rule of Tarver would apply to unspecified verdicts where it would determine that the evidence could legitimately support a finding that the defendant did not intend the death of the deceased. Our decision would extend that rule only to what must certainly be the much smaller number of cases involving unspecified verdicts in which the dissent would determine that the evidence could not support such a finding.

It would seem, therefore, that the dissent’s quarrel is more with the Supreme Court decisions of Sparrow and Tarver than with us. Moreover, we believe the welfare of society is, perhaps, better served when our decisions are based on precedent and Constitutional guarantees rather than on an unnamed assistant district attorney’s statements as to parole policy. However, in an effort to further allay the dissent’s fears we note that a parole board in making its decision must investigate and inform itself of the circumstances of the offense and must consider the recommendations of, inter alia, the trial judge and the district attorney. 61 P.S. § 331.19.