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Whitehead v. Rozum

August 5, 2008

CARL WHITEHEAD, EK-5805, PETITIONER,
v.
GERALD L. ROZUM, ET AL., RESPONDENTS.



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

MEMORANDUM AND ORDER

Carl Whitehead, an inmate at the State Correctional Institution at Somerset, has presented a petition and amended petition for a writ of habeas corpus. For the reasons set forth below, the petitions will be dismissed and because no reasonable jurist could conclude that there is a basis for appeal, a certificate of appealability will be denied.

Carl Whitehead, has presented a petition and amended petition for a writ of habeas corpus. In an Order entered on February 25, 2008, the respondents and the District Attorney of Allegheny County were directed to answer and show cause, if any, why the relief sought should not be granted.

Whitehead is presently serving a thirty-five to seventy year sentence imposed following his conviction, by a jury, of deviate sexual intercourse, rape, indecent assault, aggravated assault, incest, endangering the welfare of a child and corrupting the morals of a minor at No. CC 199909216 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on September 25, 2000.*fn1

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

I. Did the Trial Court err in admitting hearsay evidence over the objection of defense counsel?

II. Did the Trial Court err in sentencing the defendant to an aggregate term of incarceration of not less than 35 nor more than 70 years of incarceration, substantially in excess of the sentence guidelines without providing adequate reasons or the appropriate sentencing factors?

III. Was trial counsel ineffective in:

A. Failing to object to the admission of prejudicial evidence when legal grounds to do so existed?

B. Failing to object to the admission of inflammatory photograph which had limited relevance?

C. Failing to adequately cross-examine Commonwealth's witnesses?

D. Failing to object to improper closing argument by the Commonwealth's attorney?

IV. Did the Trial Court err when it denied the defendant's motion to dismiss the charges on the basis of double jeopardy due to prosecutorial misconduct?*fn2 On April 25, 2002, the judgment of sentence was affirmed and relief was not sought from the Supreme Court of Pennsylvania.*fn3 On April 3, 2003, a post-conviction petition was executed.*fn4 That petition was dismissed on July 15, 2003.*fn5 An appeal was taken to the Superior Court in which the issues presented were:

I. Whether PCRA court erred when it dismissed petitioner's PCRA petition without an evidentiary hearing or independent review of the record?

II. Whether PCRA court erred when it denied petitioner's objection to dismissal of PCRA petition as untimely without applying the prisoner's mail box rule?

III. Whether PCRA counsel was ineffective in filing no merit letter when the issues raised were of arguable merit on the face of the record?

IV. Whether trial court erred when it violated petitioner's right to be present at all stages of trial?

V. Whether trial court erred when it denied petitioner the right to trial by jury guaranteed by Art.I, § 6 of the Pennsylvania Constitution and PA.R.CRIM.P Rule 641?

VI. Whether trial court erred when it denied petitioner the right to confront and impeach Commonwealth's key witness in violation of both the Pennsylvania and United States Constitutions?

VII. Whether trial court erred when it denied petitioner counsel at a critical stage of the trial process?

VIII. Whether trial counsel was ineffective for failing to call the original East Pittsburgh police officers called to 68 Prospect Terrace on 6/22/99?

IX. Whether trial counsel was ineffective in failing to object to Commonwealth Exhibit "1" going out with the jury during deliberations in violation of PA.R.CRIM.P. Rule 646?

X. Whether all prior counsel were ineffective in failing to raise, preserve and argue the selective ...


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