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Messina v. Wynder

November 28, 2007

DONALD MESSINA,, GG-0082, PETITIONER,
v.
JAMES WYNDER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.

MEMORANDUM OPINION AND ORDER

Donald Messina an inmate at the State Correctional Institution at Dallas has presented a petition for a writ of habeas corpus. For the reasons set forth below, that petition will be dismissed and because no viable constitutional issue exists upon which a reasonable jurist could conclude that there is a basis for appeal, a certificate of appealability will be denied.*fn1

Messina is presently incarcerated serving a six to twelve year sentence imposed following his conviction by a jury of four counts of statutory sexual assault and one count of corruption of minors at No. 528 of 2004, in the criminal division of the Court of Common Pleas of Clarion County, Pennsylvania. This sentence was imposed on June 1, 2005.*fn2

An appeal was taken to the Superior Court in which the issues presented were:

I. Whether the trial court erred by denying defendant's pre-trial motion in limine, thereby permitting the Commonwealth to introduce, during its case in chief, evidence relating to the complainant's pregnancy, the birth of her child and the identity of defendant as the father, when said evidence had no probative value and could only serve to unfairly prejudice the defendant.

II. Whether the trial court erred by denying defendant's pre-trial motion to allow evidence of the complainant's past sexual activity with older men as a constitutionally required exception to the [Pennsylvania] Rape Shield Statute when such evidence supported defendant's mistake of age defense, thereby unfairly limiting defendant's due process right to present a defense and confront witnesses.*fn3

On August 28, 2006, the judgment of sentence was affirmed and no further appellate relief was sought.*fn4

During the pendency of the appeal, Messina filed a post-conviction petition in the trial court, and that petition was denied on September 16, 2005.*fn5 Following the affirmance of his conviction and sentence, on October 2, 2006, Messina submitted a second post-conviction See: Bleitner v. Wellborn, 15 F.3d 652 (7th Cir. 1994).

petition to the Court of Common Pleas raising the issues of:

1. Did trial judge unfairly prohibit evidence

2. Was sentence excessive

3. [Were petitioner's] rights violated due to contradictory testimony and untruths told by witnesses on the stand.*fn6

On July 11, 2007, the court granted Messina's motion to withdraw his post-conviction petition and it appears that no further relief was sought.*fn7 The instant petition was executed on July 2, 2007, and the timing of its execution suggests that Messina elected to waive his post-conviction rights and rather to seek federal relief. We note that he cannot now filed a post-conviction petition as such action would be untimely. Rule 901, Pa.R.Cr.P.

In the instant petition, Messina contends he is entitled to relief on the grounds that:

1. The trial judge would not permit evidence showing sexual history of alleged victims which would have clearly shown a history of victim stating an age higher than actual age. Also a history of sexual activity for the purpose of profit.

2. Trial court erred by denying pre-trial motion in limine relating to [exclusion] of complaint's pregnancy, birth of child and identity of defendant as father ...


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