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Echevarria v. Folino

November 4, 2009

NOEL ECHEVARRIA
v.
LOUIS S. FOLINO, ET AL.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J

MEMORANDUM

Presently before this court is the pro se petition for writ of habeas corpus filed by the petitioner Noel Echevarria ("the petitioner") and the response thereto (Doc. Nos. 1 & 14). For the reasons set forth below, the petition will be denied.

I. PROCEDURAL AND FACTUAL HISTORY

In its September 20, 2005 opinion, the Superior Court of Pennsylvania recounted the factual findings and procedural history of the trial court as follows:

On June 5, 2003, the [petitioner], Noel Echevarria, was arrested and charged with murder, conspiracy and Violation of the Uniform Firearms Act (VUFA) in connection with events that occurred on the previous day. On May 19, 2004, the [petitioner] pled not guilty and requested a trial by jury. On May 25, 2004, the jury presided over by [the trial court] returned a verdict of guilty on third degree murder and conspiracy. The [petitioner] was found not guilty of VUFA. On July 29, 2004, the [petitioner] was sentenced to twelve (12) to thirty (30) years for murder and a consecutive sentence of eight (8) to sixteen (16) years for conspiracy. In total, [petitioner] was sentenced to twenty to forty-six (46) years of incarceration.

The facts underlying these convictions are as follows. At 2:31 p.m. on June 4, 2003, Parthenia Drummond flagged down a police officer on the 2100 block of North Franklin Street in North Philadelphia. The officer got out of his vehicle and found a male, with an apparent gun shot injury, lying prone under a black Chevrolet Blazer. The man, later identified as Gideon McCloud, was unresponsive but did have a slight pulse. Officers transported him to the hospital, but he was later pronounced dead. The medical examiner testified that one of the wounds was consistent with the decedent being shot while on the ground. A nurse at the hospital found what appeared to be crack cocaine in the decedent's pocket, and turned it over to police officers.

Ms. Drummond, who was crying and screaming at the scene, initially told the officer that she had seen two males in black run away after the shooting. Later, after speaking to a grief counselor at the hospital, Ms. Drummond told the officer that she could identify the two men who shot the victim.

At trial, Ms. Drummond explained that she was the victim's girlfriend and the mother of his son. On the afternoon of her boyfriend's death, she was driving past the intersection of Franklin and Diamond, when she saw the decedent and a man named "Pudge" engaged in what looked to be an argument. The decedent was a drug dealer and was selling drugs on the corner of Franklin and Diamond. Ms. Drummond got out of her car in front of her mother's house, and the decedent walked up to her and spoke to her. At the same time, she observed "Pudge" on a pay phone at the corner.

Shortly after she saw Pudge on the phone, Ms. Drummond saw Jamal "Chuck" Williams and the [petitioner], known as "Do-rag", turn the corner from Susquehanna and Diamond and walk toward her and the decedent. Ms. Drummond knew both men; she had gone to school with "Chuck", and the [petitioner] was a distant relative who had once lived at her mother's house. Ms. Drummond had previously seen the [petitioner] selling drugs on the corners of 8th and Diamond, 7th and Diamond, Diamond and Franklin and several other corners in the neighborhood. The [petitioner] had previously told her that he was working for "Chuck".

On that afternoon, "Chuck" was wearing a black leather jacket, blue jeans, and a black hat. The [petitioner] was walking next to him, about one foot away. When they were five feet away, Ms. Drummond saw "Chuck" open his jacket to reveal a large gun strapped to his shoulder. It looked like a "big machine gun", and was 10 to 11 inches long. Suddenly, "Chuck" started firing the gun at the decedent. When the gunfire started, the decedent was in a "state of shock". Ms. Drummond begged "Chuck" to stop shooting but he did not stop. His only response was to tell her to "shut the F---up and get the F---out of the way." She ran to the other side of the truck parked by the curb, and ducked down until the gunfire subsided.

Although she admitted it was a guess, Ms. Drummond said she heard around 11 shots fired. When she came out from behind the truck, she saw the [petitioner] and "Chuck" running in different directions. She did not see either man with a gun while they were running away. Based on Ms. Drummond's description of the weapon, and the ballistics evidence found at the scene, a firearms expert estimated that "Chuck's" gun was an Intratec Tec-9 nine-millimeter handgun. Ms. Drummond never saw the [petitioner] holding a gun during the entire incident.

The ballistics evidence gathered at the scene indicated that two different guns were fired during the shooting. The police recovered a total of 16 fired cartridge casings -11 casings from a 9-millimeter gun, and 5 casings from a 10-millimeter. They also found six bullets and bullet jackets -one of which was fired from a 10-millimeter gun. Additionally, six bullets were recovered from the victim's body. Four of the bullets were from a 9-millimeter and one bullet was from a 10-millimeter. One of the bullets was from an earlier time when the decedent was shot.

After Ms. Drummond told her story to the police, the officers, acting pursuant to a search warrant, entered a room above a barber shop less than a block away from the crime scene. Their aim was to apprehend "Chuck", but he was not there. However, police did find two men who tried to escape from police. Police also found several photographs of the [petitioner] propped up near the television so that they could be seen. In one photo, the [petitioner] is holding money. In another, he is holding two handguns. At trial, a firearms expert testified that one of the guns in the picture appeared to be capable of firing the 10-millimeter bullet and shell casings that were recovered from the crime scene.

Shantell Jones, a friend of the [petitioner], testified that she spoke to the [petitioner] shortly after the murder when he asked to see her. At trial, she said that the [petitioner] then told her than he had heard the murder was a drive-by shooting. When she first spoke to police, however, she said that the [petitioner] had ...


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