The opinion of the court was delivered by: Mitchell, M.J.:
Frederick Cromlish has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, 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.
Cromlish is presently incarcerated at the State Correctional Institution at Forest serving an eight year and ten month to twenty-eight year sentence imposed following his conviction, by a jury, of escape, receiving stolen property, fleeing and attempting to elude police and criminal trespass at Nos. 200611802 and CC 200612185 in the Court of Common Pleas of Allegheny County, Pennsylvania. Sentence was originally imposed on August 26, 2008 and resentencing to the present term of imprisonment occurred on March 15, 2010.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
I. When a police officer testifies, "I knew him [the defendant] from prior deals," this testimony is prejudicial, inadmissible evidence of alleged prior bad acts of the defendant.
II. The lower court imposed an illegal 40-month-to-8year sentence for a third-degree felony that carries a statutory maximum of seven years.*fn2
On December 30, 2009, the Superior Court vacated the judgment of conviction and remanded for re-sentencing only and hence the resentencing on March 15, 2010.
Petitioner filed a timely post-conviction petition on April 20, 2010 which was dismissed on September 20, 2010.*fn3 Rather than filing an appeal, the petitioner filed a second post-conviction petition on October 7, 2010 and that petition was dismissed on December 28, 2010.*fn4
No further relief was sought in the courts of the Commonwealth.
The background to this prosecution is set forth in the December 30, 2009 Memorandum of the Superior Court:
On July 26, 2006, Benjamin Dowler ("Dowler") returned to his house, which he shared with four other people, at 422 Bailey Avenue in the Mt. Washington area of Pittsburgh, Pennsylvania. After placing his wallet, watch and keys onto the kitchen counter, Dowler went to his roommate‟s room to borrow his computer. Dowler later returned the computer by placing it outside his roommate‟s door. Sometime after midnight, Dowler heard someone quickly run down the stairs and leave through the front door. Dowler then checked the front door, noticed it was ajar and closed it.
The following morning, Dowler‟s roommate‟s computer was found to be missing. Dowler realized that his wallet, keys, cell phone and his car, a 2001 black Pontiac Sunfire, were also missing. Dowler informed the police about the missing items. Detective Brian Rodgers of the Pittsburgh Police received the case for further investigation. Detective Rodger‟s went to Cromlish‟s home on another matter and observed that Cromlish was driving a black Pontiac Sunfire [later determined to belong to Dowler]. Upon seeing Detective Rodgers, Cromlish stopped the vehicle. Detective Rodgers informed Cromlish that he was under arrest. At this point, Cromlish drove away from Detective Rodgers at a high rate of speed, eventually hitting a retaining wall. The impact caused the vehicle‟s left front tire to blow out. Cromlish fled the scene on foot. During his flight, Cromlish ran across the porch of Ruth Tracy ("Tracy") and eventually entered her home. After Cromlish left the home, the police arrested him. Following the arrest, Tracy and Detective Rodgers examined her property and determined that items had been removed from Tracy‟s basement.
The Commonwealth charged Cromlish with criminal trespass -- breaking into a building at CC 200611802, with escape, receiving stolen property and fleeing or attempting to elude a police officer at CC 200612185, and with one count of burglary ...