Commonwealth v. Butler

LARSEN, Justice,

concurring.

I agree with the majority’s disposition of this case. I also agree with its analysis of the issues that have been finally litigated and are, hence, improper subjects for the PCHA petitions.

However, for the reasons set forth in my opinion in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), I cannot accept the majority’s analysis of the remaining issues. That analysis perpetuates the misguided notion *91that “the utterance of the magic words ‘ineffective assistance of counsel’ . . . establishes] an automatic right to bring multiple PCHA proceedings. ...” “Id., 495 Pa. at 33, 432 A.2d at 185. Such a notion is not countenanced by the PCHA which explicitly stated the intention of the General Assembly to provide one post-conviction review procedure. 19 P.S. § 1180-5(b), 1180-4(b)(2) and 1180 4(c); Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431, 436-37 (Flaherty, J., dissenting; joined by Kauffman, J.)

It is not true that “[t]he PCHA provides for an evidentiary hearing if it cannot be determined from the record whether counsel’s actions had a reasonable basis . . . [or that] [r]elief may be denied without a hearing if the record reveals that counsel’s actions were reasonable.” 495 Pa. at 31, 432 A.2d at 183. The PCHA does not equate the absence of a reasonable basis on the record (one component of the ineffective assistance of counsel standard) with the necessity of granting a hearing, as the majority would have it. Rather, the PCHA, § 1180-9, provides:

If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.
The petitioner shall have a full and fair hearing on his petition. The court shall receive all evidence, which shall be recorded, that is relevant and necessary to support the claims in the petition, including affidavits, depositions oral testimony, certificate of the trial judge, and relevant and necessary portions of transcripts of prior proceedings.
The petitioner has the right to appear in person at the hearing.

*92Moreover, this provision applies only to the first PCHA petition — the one petition contemplated by the PCHA. As to subsequent petitions filed, other considerations apply and must be factored into the lower court’s decision whether to grant a hearing. Commonwealth v. Alexander, supra, 495 Pa. at 35-39, 432 A.2d at 186-188. In the instant case, all of the issues raised by appellant’s third petition have been finally litigated, are lacking in specific factual predicate1 or are frivolous,2 especially in light of the number, nature and quality of the prior petitions. I would, accordingly, affirm the order of the Court of Common Pleas on the basis of the foregoing (Alexander) analysis.

. The issue that first post-conviction counsel “refused to subpoena certain witnesses to appear at the evidentiary hearing” is without specific factual predicate demonstrating what prejudice may have been caused by the asserted ineffectiveness. The majority opinion acknowledges that “counsel has not found it necessary to expand further on this allegation of error” and was forced to “assume... that appellant desired the witnesses to appear because he believed they could have proven that two Commonwealth trial witnesses had committed perjury.” The PCHA does not require, or encourage, this Court or the lower court to supply omissions in a PCHA petition with such assumptions, particularly petitions subsequent to the first.

. The issues of PCHA counsel’s failure to challenge trial counsel’s failure to appeal, failure to charge trial counsel with perjury and failure to challenge the bias of the hearing judge are all frivolous as I believe has been demonstrated by the majority opinion. The relative worth of these issues has also been diluted by the number, nature and quality of the prior petitions.