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David Robert Kennedy, Gk-9993 v. Marirosa Lamas

June 22, 2011

DAVID ROBERT KENNEDY, GK-9993, PETITIONER,
v.
MARIROSA LAMAS, ET AL., RESPONDENTS.



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

MEMORANDUM and ORDER

David Robert Kennedy, an inmate at the State Correctional Institution at Rockview, has presented a petition for a writ of habeas corpus. 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.

Kennedy is presently serving a life sentence imposed following his conviction, by a jury, of first degree murder. This sentence was imposed on November 21, 2005 at No. CP-02-CR-571-2001 in the Court of Common Pleas of Allegheny County.*fn1

An appeal was taken to the Superior Court of Pennsylvania in which the questions raised were:

1. Whether the trial court erred in denying Kennedy‟s motion to suppress and in allowing admission of the tainted testimony of witness, Ruth Beck, the improperly hypnotized Commonwealth witness?

2. Whether the trial court erred by refusing to admit a Pennsylvania State Police Report containing the statement of William Miller, who was deceased at the time of trial, as: (1) said report qualified as a business record exception to the hearsay rule; and (2) Mr. Miller‟s statement was also a present sense impression exception to the hearsay rule?

3. Whether the trial court erred in failing to dismiss the information filed against Kennedy as a violation of his Due Process where the 23-year pre-trial delay was improper, unreasonable, and resulted in actual prejudice to Kennedy?

4. Whether the trial court erred in allowing the expert testimony of Dr. Rozin where: 1) no expert report was provided to the defense in violation of Pa.R.Cr. P. 573(B)(1)(e); 2) his opinion was based upon facts not supported by the record; 3) no evidence was introduced that the extrinsic facts upon which Dr. Rozin based his opinion were of the type normally relied upon by pathologists; 4) he read portions of an inadmissible report into the record; and 5) he did not testify his expert opinion was within a reasonable degree of medical certainty.*fn2

On February 26, 2007, the Superior Court affirmed the judgment of sentence.*fn3 Leave to appeal to the Pennsylvania Supreme Court was not sought.*fn4

A post-conviction petition was filed on March 12, 2008.*fn5 As a result, on August 1, 2008, the petitioner‟s right to file a petition for allowance of appeal in the Supreme Court was granted.*fn6

In his petition, Kennedy only raised the first three of the grounds he had raised in the Superior Court, apparently abandoning the fourth issue.*fn7 On December 31, 2008, leave to appeal was denied.*fn8

On February 19, 2009, Kennedy filed a post-conviction petition which was dismissed on April 14, 2009. An appeal to the Superior Court was filed in which the issues presented were:

1. Whether attorney Manifesto was ineffective for failing to preserve the claim that: the trial court erred in allowing the expert testimony of Dr. Rozin when:

(1) No expert report was provided to the defense in violation of Pa.R.CR.P. 573(B)(1)(E);

(2) His opinion was based upon facts not supported by the record and no evidence was introduced that the extrinsic facts upon which Dr. Rozin based his opinion were of the type normally relied upon by pathologists;

(3) He read parts of an inadmissible report into the record;

(4) He did not testify his expert opinion was within a reasonable degree ...


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