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Commonwealth v. Lane

Superior Court of Pennsylvania

December 4, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MICHAEL LANE Appellant

Appeal from the PCRA Order August 31, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003487-2002

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

OPINION

GANTMAN, J.

Appellant, Michael Lane, appeals from the order entered in the Lehigh County Court of Common Pleas, which denied and dismissed his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").[1] We reverse and remand with instructions.

The relevant facts and procedural history of this case are as follows. On June 19, 2002, Appellant entered the Park-Mart convenience store of a gas station and demanded that the cashier ("Victim") give Appellant money from various registers. During the robbery, Appellant stabbed Victim's hands, severing several of her tendons. Witnesses flagged down police who ultimately apprehended Appellant. The Commonwealth charged Appellant with robbery, aggravated assault, and possessing instruments of crime ("PIC").

On August 14, 2003, a jury convicted Appellant of three counts of robbery, two counts of aggravated assault, and PIC. Following trial, the Commonwealth filed notice of its intent to seek a sentence of life imprisonment without the possibility of parole pursuant to 42 Pa.C.S.A. § 9714.[2] On December 16, 2003, the court sentenced Appellant to life imprisonment without the possibility of parole. Appellant timely filed post-sentence motions on December 26, 2003. Appellant subsequently filed amended post-sentence motions and, following a hearing, the court denied relief on May 14, 2004.

Appellant timely filed a notice of appeal on June 11, 2004. On June 14, 2004, the court ordered Appellant to file a concise statement of errors complained of pursuant to Pa.R.A.P. 1925(b) no later than fourteen days after the court's order.[3] Appellant filed his concise statement on July 9, 2004. In the court's opinion, it addressed the merits of the Rule 1925(b) issues despite the untimely filing of the statement. This Court affirmed Appellant's judgment of sentence on July 12, 2006. In its decision, the three-judge panel addressed the merits of some of Appellant's direct appeal issues but deemed others waived due to the untimeliness of his Rule 1925(b) statement.

Appellant sought en banc reargument. On September 22, 2006, this Court issued a per curiam order which (1) granted en banc reargument; (2) withdrew the July 12, 2006 panel decision; (3) and required the parties to brief the issue of whether Appellant waived all appellate issues for failure to file a timely Rule 1925(b) statement. This Court issued another per curiam order on December 24, 2006, stating Appellant's failure to file a timely Rule 1925(b) statement waived for appeal purposes all issues raised in that statement. Nevertheless, this Court would consider en banc the legality of Appellant's sentence.[4] [5]

On January 4, 2008, this Court en banc affirmed Appellant's judgment of sentence; and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on September 19, 2008. See Commonwealth v. Lane, 941 A.2d 34 (Pa.Super. 2008) (en banc), appeal denied, 599 Pa. 689, 960 A.2d 837 (2008).

On March 3, 2009, Appellant timely filed a pro se PCRA petition. The court appointed counsel, who filed an amended PCRA petition on July 29, 2010. The court held an evidentiary hearing on January 9, 2012. On August 31, 2012, the court denied PCRA relief. Appellant timely filed a notice of appeal on September 19, 2012. The next day, the court ordered Appellant to file a Rule 1925(b) statement, which Appellant timely filed on October 9, 2012.

Appellant raises three issues for our review:

WAS TRIAL COUNSEL…INEFFECTIVE WHEN HE FAILED TO CALL [APPELLANT] AS A WITNESS AT TRIAL DESPITE THE UNEQUIVOCAL STATED INTENTION OF [APPELLANT] TO TESTIFY?
WAS APPELLATE COUNSEL…INEFFECTIVE WHEN HE FAILED TO FILE A TIMELY [RULE] 1925(B) STATEMENT AND SAID FAILURE RESULTED IN THE WAIVER OF ALL NON-WAIVABLE DIRECT APPEAL ISSUES?
WAS TRIAL COUNSEL…INEFFECTIVE WHEN HE FAILED TO ADDRESS THE IRRELEVANT AND INFLAMMATORY EVIDENCE AND ARGUMENT RELATED TO [APPELLANT'S] RELIGION ...

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