Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

[U] Commonwealth v. DeMarino

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BETSY R. DEMARINO Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 30, 2013, in the Court of Common Pleas of Chester County, Criminal Division, at No(s): CP-15-CR-0001914-2009.

BEFORE: ALLEN, STABILE, and STRASSBURGER, [*]JJ.

MEMORANDUM

STRASSBURGER, J.

Betsy R. DeMarino[1] (Appellant) appeals from the July 30, 2013 order which denied her petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On January 1, 2009, Appellant was arrested on suspicion of drunk driving. She was transported to Chester County Hospital, where a blood draw was performed by Nurse James Gadebusch (Gadebusch). Appellant was found to have a blood alcohol content (BAC) of 0.198%. As a result, Appellant was charged with driving under the influence (general impairment) and driving under the influence (highest rate of alcohol).[2]

Appellant proceeded to a jury trial on November 9, 2009. Appellant's first trial ended in a mistrial. Following her second trial, on January 28, 2011, the jury found Appellant guilty of the aforementioned charges. On March 8, 2011, Appellant was sentenced to 15 days of incarceration followed by three years of probation. Appellant filed a direct appeal, and her judgment of sentence was affirmed by a panel of this Court on December 7, 2011. Commonwealth v. DeMarino, 40 A.3d 185 (Pa.Super. 2011) (unpublished memorandum). Appellant then filed a petition for allowance of appeal with our Supreme Court, which was denied on March 21, 2013. Commonwealth v. DeMarino, 63 A.3d 1243 (Pa. 2013).

On April 11, 2013, Appellant timely filed a counseled PCRA petition. On July 3, 2013, the PCRA court gave Appellant notice of its intent to dismiss her PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a response to this notice on July 23, 2013. Nonetheless, the PCRA court dismissed Appellant's PCRA petition on July 30, 2013. Appellant timely filed a notice of appeal. The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied.

Appellant now raises the following issue on appeal.

Trial courts may deny hearings where a PCRA claims [sic] are patently frivolous and the issues have no trace of support— either in the record or from other evidence. Here, [Appellant] raises an arguable issue: her trial counsel failed to introduce textual materials to buttress, and explain, expert testimony. Where this claim has support in the record, did the trial court improperly deny [Appellant's] PCRA petition without the benefit of an evidentiary hearing?

Appellant's Brief at 4 (emphasis in original)

We consider Appellant's argument mindful of the following.

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotations and citations omitted). We note that "[a] PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact. A PCRA court's decision denying a claim without a hearing may only be reversed upon a finding of an abuse of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.