Commonwealth v. Jackson ( 1981 )

OPINION

LARSEN, Justice.

In 1968, appellant confessed to involvement in the robbery and murder of one Randolph Butts who was robbed of his wallet and stabbed several times in the back. After a jury trial, appellant was convicted of aggravated robbery and murder of the first degree and sentenced to life imprisonment. An appeal was taken to this Court by trial counsel and we affirmed. Commonwealth v. Jackson, 444 Pa. 601, 281 A.2d 639 (1971). In 1978, appellant filed a counselled Post Conviction Hearing Act (PCHA) petition; relief was denied after a hearing. This appeal followed.

Appellant advances two grounds for PCHA relief: (1) that his conviction resulted from the introduction of an involuntary confession; and (2) that trial counsel ineffectively failed to object to the admission of certain circumstantial evidence.¹ It is unnecessary to reach the merits of either of these claims.

PCHA relief must be denied because appellant has not sustained his burden of proving that his claims have not been finally litigated. 19 P.S. § 1180-3(d) provides that “To be eligible for [PCHA] relief ... a person . . . must prove . . . [t]hat the error resulting in his conviction and sentence has not been finally litigated ...” [emphasis supplied]. Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976) (“The burden of establishing the ground upon which post-conviction relief is requested rests on the person seeking that relief.”) Appellant’s PCHA Petition, briefs and testimony are utterly silent regarding his 1971 direct appeal.² This Court’s 1971 per curiam opinion does not recite which issues were considered nor are the appellate briefs in that proceeding part of the record. Appellant’s failure to bring the substance of all prior adjudications to our attention is fatal to his burden of proving that his claim has not been finally litigated. See 19 P.S. § 1180-5(a)(l) (“The [PCHA] petition . . . must include ... an identification of all previous proceedings . . . ”); Pa.R.Crim.P. 1501, ¶ 7(A) (PCHA petition must identify prior direct appeals); Pa.R. A.P. 2117(a)(2) (appellate brief must contain statement of previous proceedings.

The order of the PCHA court denying relief is affirmed.

ROBERTS, J., filed a concurring opinion.

1 . In the “Statement of Questions Involved” portion of his brief, appellant also claims that trial counsel ineffectively failed to argue the voluntariness of appellant’s confession. Appellant, however, completely fails to address this claim in the “Argument” portion of his brief. The “Argument” must separately address each claim presented. Pa.R.A.P. 2119(a). Failure to do so waives consideration of the claim. Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978) (opinion in support of affirmance); See Commonwealth v. Unger, 494 Pa. 595 n. 1, 432 A.2d 146 n. 1 (1980) (claim waived when not included in appellant’s “Statement of Questions Involved” portion of the brief). This result is warranted because an appeal can be quashed where briefs are substantially defective. Pa.R.A.P. 2101; Commonwealth v. Holcomb, 261 Pa.Super. 532, 396 A.2d 29 (1978); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978). Appellant has failed to guide this Court as to the facts or applicable law.

2 . The PCHA Court’s opinion alludes to the 1971 direct appeal.