COMMONWEALTH OF PENNSYLVANIA v. AQUIL BOND (2010)

I join the denial of the application for reargument and write only to respond to appellant's assertion, forwarded for the first time on reargument, that the claim he faults this Court for finding waived in fact was unwaivable.   He further alleges that the claim “was explicitly and implicitly reached” by this Court even though we held it was waived and said nothing on the merits.   This theory of “implicit and explicit” exhaustion of claims fails to acknowledge this Court's rejection of the theory in Commonwealth v. VanDivner,

that he was entitled to a new penalty hearing because the trial court violated his constitutional rights by requiring him to appear shackled before the jury during the penalty phase.   This Court's unanimous Opinion concluded that the claim was waived because appellant failed to include it in his Pa.R.A.P.1925(b) statement of matters complained of on appeal.   See Commonwealth v. Bond,¹

Not all claims of error, or even all claims of constitutional error, implicate passion, prejudice, or arbitrariness.  (Appellant's claim that the statute authorizes review of “all constitutional errors” ignores the statutory language.)   Appellant cites to no authority from this Court, or from any other source, that remotely suggests that the claim he has belatedly identified implicates the statutory standard.   Merely labeling a waived claim as one implicating the standard, as appellant does, does not make it so.   Nothing in the statute, this Court's practices, or this Court's precedent suggests that our statutory review of death sentences for passion, prejudice or arbitrariness operates as an obligation to discover and raise any and all possible new defense claims and constitutional theories, such that a claim of sub silentio appellate court decision and “error” becomes available on reargument.

Id. We then discussed at some length Bronshtein v. Horn,

This Court does not silently pass upon, and thereby impliedly preserve, decide or exhaust, claims in capital cases never argued to it or never discussed in our opinions.   Our statutory review obligation does not prevent or discourage capital defendants from raising statutory review claims affirmatively.   Moreover, generally speaking, statutory review does not relieve capital defendants of the obligation to affirmatively raise their claims on direct appeal.

VanDivner,

Application for Reargument

CONCURRING STATEMENT

I join the denial of the application for reargument and write only to respond to appellant's assertion, forwarded for the first time on reargument, that the claim he faults this Court for finding waived in fact was unwaivable.   He further alleges that the claim “was explicitly and implicitly reached” by this Court even though we held it was waived and said nothing on the merits.   This theory of “implicit and explicit” exhaustion of claims fails to acknowledge this Court's rejection of the theory in Commonwealth v. VanDivner,

that he was entitled to a new penalty hearing because the trial court violated his constitutional rights by requiring him to appear shackled before the jury during the penalty phase.   This Court's unanimous Opinion concluded that the claim was waived because appellant failed to include it in his Pa.R.A.P.1925(b) statement of matters complained of on appeal.   See Commonwealth v. Bond,¹

Not all claims of error, or even all claims of constitutional error, implicate passion, prejudice, or arbitrariness.  (Appellant's claim that the statute authorizes review of “all constitutional errors” ignores the statutory language.)   Appellant cites to no authority from this Court, or from any other source, that remotely suggests that the claim he has belatedly identified implicates the statutory standard.   Merely labeling a waived claim as one implicating the standard, as appellant does, does not make it so.   Nothing in the statute, this Court's practices, or this Court's precedent suggests that our statutory review of death sentences for passion, prejudice or arbitrariness operates as an obligation to discover and raise any and all possible new defense claims and constitutional theories, such that a claim of sub silentio appellate court decision and “error” becomes available on reargument.

Id. We then discussed at some length Bronshtein v. Horn,

This Court does not silently pass upon, and thereby impliedly preserve, decide or exhaust, claims in capital cases never argued to it or never discussed in our opinions.   Our statutory review obligation does not prevent or discourage capital defendants from raising statutory review claims affirmatively.   Moreover, generally speaking, statutory review does not relieve capital defendants of the obligation to affirmatively raise their claims on direct appeal.

VanDivner,

FOOTNOTES

FN1. As a result of appellant's waiver, the trial court's otherwise comprehensive opinion did not address his claim..  FN1. As a result of appellant's waiver, the trial court's otherwise comprehensive opinion did not address his claim.

FN1. As a result of appellant's waiver, the trial court's otherwise comprehensive opinion did not address his claim..  FN1. As a result of appellant's waiver, the trial court's otherwise comprehensive opinion did not address his claim.

MR. CHIEF JUSTICE CASTILLE