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[U] Commonwealth v. Bethea

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TERRANCE BETHEA Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order October 31, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-23-CR-0003638-2003

BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

OTT, J.

Terrance Bethea appeals from the order entered in the Court of Common Pleas of Lehigh County denying him relief, without a hearing, on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Among other reasons, the PCRA Court determined Bethea's petition, his second, was untimely and no exception to the timeliness requirements applied. Following a thorough review of the certified record, relevant law and Bethea's pro se brief[1], we affirm.

Bethea is serving a life sentence after being convicted by a jury of first and second-degree murder[2] involving the deaths of Carlos Juarbe and Oscar Rosado. We rely on the trial court's recitation of the facts:

According to the Commonwealth's theory of the case, [Bethea] had been involved in a dispute with one of the victims, Carlos Juarbe. Although Mr. Juarbe, a part-time disc-jockey, and [Bethea] had been friends at one time, relations had deteriorated to the point where [Bethea], along with co-defendant Junius Burno, set out to rob Mr. Juarbe. As the evening of April 12, 2003, waned into the early hours of April 13, 2003, [Bethea] and Burno appeared at the Allentown home of Mr. Juarbe. [Bethea] and co-defendant produced hand guns in order to rob Juarbe and his guest, Oscar Rosado, who had been snorting cocaine and watching movies that evening with Mr. Juarbe. Evidently anticipating foul play, Mr. Juarbe had a shotgun at the ready that he managed to discharge twice. After being struck in the leg by one of the blasts, [Bethea] struggled with Juarbe and fired several bullets into him. Dumping additional shots in Juarbe, Burno finished him off before depositing, under [Bethea's] instruction, a single bullet into the head of Rosado, who had sat cowering in the next room during the altercation involving Juarbe.

Opinion, 6/8/05, at 2-3.[3]

Judgment of sentence was imposed on Bethea on November 24, 2006. He filed a timely direct appeal that afforded him no relief. See Commonwealth v. Bethea, 913 A.2d 938 (Pa.Super. 2006) (unpublished memorandum), appeal denied, 921 A.2d 494 (2007). The Pennsylvania Supreme Court denied Bethea's petition for allowance of appeal on April 25, 2007. Bethea's judgment of sentence became final 90 days later when time expired to file a writ of certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13.

On October 3, 2007, Bethea filed his first PCRA petition. Following a hearing, the PCRA court denied him relief on March 5, 2009. A panel of our Court similarly denied Bethea relief on June 29, 2010. See Commonwealth v. Bethea, 4 A.3d 701 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 13 A.3d 473 (2010).

On September 12, 2012, Bethea filed the instant petition, claiming trial counsel was not qualified pursuant to Pa.R.Crim.P. 801, he had been subject to an illegal wiretap when his prison phone conversations were recorded, the homicide statute is unconstitutionally vague, his sentence is illegal, and multiple claims of ineffective assistance of counsel. Although he checked the box indicating he was claiming the discovery of recently available exculpatory evidence, that claim was not developed in his petition.

Even though the PCRA court denied Bethea relief on multiple grounds, the court noted the petition was untimely. We have held that,

[t]his Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed ...

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