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[U] Commonwealth v. Borelli

Superior Court of Pennsylvania

November 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PETER FRANK BORELLI, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PETER FRANK BORELLI, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered August 6, 2012, in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0003664-2005.

Appeal from the Order entered August 24, 2012, in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0002479-2006.

BEFORE: SHOGAN, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

In these consolidated pro se appeals, Peter Frank Borelli ("Appellant"), claims the PCRA court erred in denying his petitions pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant appeals from two different docket numbers. We first consider his appeal at No. 1575 MDA 2012. The PCRA court summarized the pertinent facts and procedural history as follows:

On March 16, 2005, Alfredo Alicea ("Alicea") shot and killed Jamar O'Bryant ("O'Bryant"). Alicea, [Appellant's] co-defendant at trial, was acting under [Appellant's] orders to settle a drug dispute with a rival drug dealer. The dispute arose out of a debt that [Appellant's] brother, Frank Borelli ("Frank"), owed to O'Bryant. [Appellant] and some other individuals met with O'Bryant at a bar, and eventually [Appellant], Alicea, Frank, and O'Bryant all convened at 538 Walnut Street, Reading, PA. Frank and O'Bryant held a conversation regarding the debt owed, culminating in O'Bryant calling his supplier. Immediately after the phone call ended, Alicea unloaded his gun at O'Bryant, inflicting nine (9) gunshot wounds which proved fatal.
On June 12, 2008, a jury found [Appellant] guilty of Murder in the First Degree, Conspiracy to Commit Murder in the First Degree, Corrupt Organizations, Criminal Conspiracy to Commit Delivery of a Controlled Substance, and Criminal Use of a Communication Facility. On June 28, 2008, with a deadlocked jury, the Court sentenced [Appellant] to life imprisonment for murder with an additional period of incarceration for the remaining charges. After timely appeal, the Superior Court affirmed the judgment of sentence. The Supreme Court of Pennsylvania denied [Appellant's] Petition for Allowance of Appeal on June 2, 2010.
On March 24, 2011, [Appellant] filed a timely pro se PCRA petition. On May 2, 2011, [the PCRA court appointed counsel, and PCRA counsel] was granted thirty (30) days to file an amended [PCRA] petition . . . or in the alternative file a "Finley" petition, Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), detailing the reasons [the PCRA court] should allow counsel to withdraw. Due to the complexity of the case, the Court granted counsel extensions of time to file the appropriate documents. On April 26, 2012, [PCRA] counsel filed a Motion for Leave to Withdraw as Counsel and "No-Merit" letter, wherein he certified that after reviewing the record . . . it was counsel's professional judgment that [Appellant's] petition was without merit. On May 3, 2012, the [PCRA court] issued a Notice of Intent to Dismiss, pursuant to Pa.R.Crim.P. 907(1). On May 23, 2012, the Court granted [Appellant] a sixty (60) day extension, pursuant to [Appellant's] request. On July 25, [2012], [Appellant filed] his pro se Answer to the [Pa.R.Crim.P. 907] Notice. . . . The [PCRA court, on August 6, 2012, ] dismissed [Appellant's] PCRA Petition.
On August 29, 2012, [Appellant] filed a pro se Notice of Appeal. On September 19, 2012, the [PCRA court] ordered [Appellant] to file a Concise Statement of [Errors] Complained of on Appeal. On October 1, 2012, [Appellant] filed a Concise Statement raising one claim of error.

See PCRA Court Opinion, 12/4/12, at 2-5 (footnotes omitted).

Appellant raises the following issue in his appeal at No. 1575 MDA 2012:

A. THE [PCRA] COURT COMMITTED AN ERROR OR ABUSED ITS DISCRETION FOR CONCURRING WITH PCRA COUNSEL'S "NO-MERIT" LETTER AND SUMMARILY DISMISSING APPELLANT'S PCRA PETITION WHERE APPELLANT RAISED ADEQUATE AND SPECIFIC CLAIMS OF INEFFECTIVE ASSISTANCE OF ALL PRIOR COUNSEL SUCH THAT WARRANTED A HEARING [sic] TO DETERMINE THE SPECIFIC FACTUAL ISSUES RAISED IN HIS PRO SE ANSWER (AS IDENTIFIED AND ARGUED INFRA) TO THE [PCRA] COURT'S RULE 907 NOTICE?
1. Trial [C]ounsel was ineffective for failing to seek severance of [Appellant's] trial?
2. Trial Counsel was ineffective for failing to object to and preserve for appellate review the trial court's grossly improper charge to the jury on corrupt organizations?
3. Trial Counsel was ineffective for failing to object and/or request a mistrial where the prosecutrix committed misconduct during her grossly improper closing argument?
4. Appellate Counsel was ineffective for failing to raise on direct appeal that the trial court abused its discretion when it denied trial counsel's motion claiming double jeopardy or collateral estoppel on the charges of corrupt organizations?

Appellant's Brief at 5. Additionally, in the argument portion of his brief, Appellant further asserts that "TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT AT TRIAL AND PRESERVE FOR APPELLATE REVIEW THE TRIAL COURT PERMITTING THE COMMONWEALTH TO ADD THE CHARGE OF CONSPIRACY TO COMMIT CRIMINAL HOMICIDE DURING TRIAL ...


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