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Carter v. Lockett

November 26, 2008

RICO D. CARTER, DZ-8633, PETITIONER,
v.
SUPT. LOCKETT, ET AL., RESPONDENTS.



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

MEMORANDUM AND ORDER

Rico D. Carter, and inmate at the State Correctional Institution at Greensburg has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. Because the allegations contained in the petition are without merit, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied. An appropriate Order and Judgment shall be entered.

Carter is presently incarcerated serving a twenty-two and a half to forty-five year sentence imposed following his conviction by a jury of attempted homicide, aggravated assault, violation of the uniform firearms act and possession of an instrument of crime at No.CC 199902981 in the Court of Common Pleas of Allegheny County, Pennsylvania.*fn1 This sentence was imposed on

August 5, 1999 and February 23, 2000.*fn2

Timely appeals were pursued and consolidated. In his appellate brief, the petitioner contended he was entitled to relief on the following grounds:

I. The trial court erred in denying the defense motion to suppress. The Commonwealth failed to show probable cause to stop Mr. Carter. Additionally, the Commonwealth failed to show reasonable suspicion to warrant a valid Terry stop and search.

II. The evidence was insufficient as to the charges of aggravated assault and criminal attempt homicide, as the Commonwealth did not prove all the requisite elements of the crimes.

III. The verdict was against the weight of the evidence and trial counsel was ineffective in failing to preserve the issue.

IV. The trial court erred in failing to grant the defense motion in limine as the evidence sought to be introduced by the Commonwealth was solely for the purpose of prejudicing the jury and that outweighed its probative value.

V. The trial court erred in admitting the photos of the victim's injuries over the defense objection, as the photos were highly prejudicial and inflammatory.*fn3

In a Memorandum filed on June 5, 2001, the Superior Court affirmed on all issues except petitioner's third claim, regarding counsel's ineffectiveness regarding the weight of the evidence issue, and remanded on this issue alone for further consideration.*fn4

A petition for allowance of appeal to the Pennsylvania Supreme Court was filed on Carter's behalf in which the issue presented was:

I. The decision of the panel of the Superior Court below is contrary to this Honorable Court's prior decision in Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999).*fn5

On December 28, 2001, the petition for allowance of appeal was denied.*fn6

On July 5, 2003, the petitioner's request for reinstatement of his appellate right on the weight of the evidence claim was granted.*fn7 Accordingly, an appeal was filed in which the sole issue presented was:

Whether the trial court abused its discretion when it held that the verdicts in this matter was not against the weight of the evidence, and subsequently, denied ...


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