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Urch v. Burns

United States District Court, W.D. Pennsylvania

January 27, 2015

WESLEY URCH, JR., Petitioner,
v.
DANIEL P. BURNS, et al., Respondents.

OPINION

ARTHUR J. SCHWAB, District Judge.

Before this Court is a petition for a writ of habeas corpus filed by Petitioner, Wesley Urch, Jr., pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On September 30, 2007, he was involved in a hit and run accident in which one pedestrian was killed and another seriously injured. An Erie County jury subsequently convicted him of one count of homicide by vehicle, one count of involuntary manslaughter, and two counts each of recklessly endangering another person, aggravated assault, and accidents involving death or personal injury. After careful consideration, the Court concludes that Petitioner is not entitled to habeas relief. Therefore, his petition is denied. A certificate of appealability also is denied.

I. Background[1]

Petitioner raises 14 claims for habeas relief. He was tried in September 2008 in the Court of Common Pleas of Erie County. His trial attorney was Timothy Lucas. In its Opinion addressing Petitioner's post-trial motion, the trial court summarized the case as follows:

On September 30, 2007, at approximately 4:20 p.m., Terri Peoples and Steven Caldwell went to the Knights of St. John Club located at 660 West 26th Street in Erie to watch a Pittsburgh Steelers-Cleveland Browns football game. Terri and Steven, both club members, had been dating for a few months. N.T. Trial, Day 1, 9/17/08, pp. 72-73. They drove to the Club in Terri's small red Mitsubishi Eclipse.
[Earlier that afternoon, at] 12:48 p.m. Appellant [Urch], his girlfriend, Deneen DeVandry..., joined their friends Mark Maraz and Andy Stevens[] at the Knights of St. John Club. Id. at 88. Maraz testified he drank beer while Appellant and Deneen drank an unspecified number of Sea Breezes, a mixed alcoholic drink. Id. at 88-89. The group left the Club at approximately 3:08 p.m. and went to 21 Hampton, a bar located at 2104 Hampton Road, Erie, where they continued to drink beers and Sea Breezes. Id. at 89-90. Maraz testified that Appellant and Deneen got into an argument and were asked by the bar to leave. Id. at 91. Deneen was dropped off at the house she shared with Appellant, located at 1262 East 38th Street, Erie. Id. at 91-92.
Appellant drove himself and Maraz back to the Knights of St. John Club in his Dodge Ram 1500 pickup truck. Id. at 92. Appellant parked the truck near Maraz's business, Maraz's Car Care, located at 642 West 26th Street, Erie. Id . Maraz testified that Appellant parked the truck very closely to a small red car. Id. at 94. Maraz testified that he recognized the small red car as Terri Peoples' Mitsubishi Eclipse or Eagle Talon, and that he knew her and Steven Caldwell as members of the Club. Id. at 93, 97.
Maraz and Appellant entered the Club around 5:30 p.m., ordered drinks, and eventually parted ways. Id. at 95-96. Maraz testified that Appellant drank 8-12 alcoholic drinks during their time together. Id . Appellant later left the Club with a Styrofoam container of chicken wings for Deneen at approximately 9:58 p.m.
Alan Basham..., a friend of Terri Peoples and Steven Caldwell, was with them at the Knights of St. John Club. N.T. Trial, Day 2, 9/18/08, p. 121. Prior to that, the three were a Willows, a nearby bar located at 621 West 26th Street, Erie. Id . Basham testified that his residence was "across the street" from Willows at 614 West 26th Street. Id. at 120. Around 9:30 p.m., Basham left the Club with Terri Peoples and Steven Caldwell. Id. at 123. He left the pair talking near Terri's car and walked home where he sat on his porch. Id. at 123-124. Basham testified that a dark colored Dodge Ram Truck was parked very closely to Terri's car. Id. at 124.
Alija Bajramovic was riding in the front passenger seat of a car driven by his friend Senad Rakovic near the intersection of West 26th Street and Hazel Streets. N.T. Trial, Day 1, 9/17/18, pp. 94-96, 101. Hillary Lepak and an individual only identified as Ramo were in the vehicle's back seat. After dropping off a friend, they were heading east on West 26th Street to McDonald's for food. Id. at 96-97.
Alija testified that ahead on West 26th Street he saw a man and woman standing near a red car with its driver's side door open talking to another person in a truck. Id. at 98-99. It appeared to Alija that the truck might have hit the red car from behind and that the people were arguing. Id. at 99, 103-104.
Alija then observed the truck suddenly pull out from behind the red car and strike the woman first and then the man. Id. at 104. He testified that he saw the truck's headlights turn on and heard the truck's engine rev and the tires squeal. Id. at 104-105, 125. The woman was briefly dragged by the truck before it ran over her and drove away. Id. at 105-106. Alija called 911 from his cell phone and got out of the car to stop oncoming traffic. Id. at 107-109. Alija described the truck as black or dark blue with tinted windows and an extended cab and was able to get a partial license plate number. Id. at 110-111, 118.
Senad testified that he saw the truck coming at his vehicle and he veered to the right onto the sidewalk to avoid being hit. N.T. Trial, Day 2, 9/18/08, pp. 147-148. He saw the truck, driven by a white male, hit the man, then the woman, dragging her a few feet, before speeding away. Id. at 148-149. He stopped the car to help the victims. Id. at 150.
Hillary, seated behind Senad, testified that she saw a male in a truck arguing with a man and woman who were crossing near West 26th and Hazel Streets. Id. at 75-76. Hillary heard the truck "peel out" with squealing tires from behind a car and watched it strike the man, then the woman and drag her for several feet. Id. at 77-78. Hillary observed the man fall to the ground and then sit up screaming. Id. at 79. She saw the woman lying in the road, not moving. Id. at 80.
Charlotte Hilbert was seated in her car, parked near the Knights of St. John Club, waiting for her daughter's shift at the Club to end at 10 p.m. Id. at 153-154. She testified that she heard a loud bang and assumed there had been an accident on nearby Cherry Street. Id. at 156. Hilbert saw in her mirror a blue truck speeding toward her car. Hilbert thought for a moment that the truck might strike her vehicle. Id . Instead, the truck swerved around her and sped past, turning at the next corner. Id . Hilbert saw two people lying in the street and went into the Club to report an accident. Id. at 156-158.
Mark Maraz was still at the Club when people came into the Club to report an accident. Id. at 96. Maraz went outside and learned that the victims of the accident were Terri Peoples and Steven Caldwell. Id. at 97. He testified that Appellant's truck was gone. Id.
Alan Basham was sitting on his porch when he heard squealing tires and observed traffic backing up on West 26th Street around 10 p.m. Id. at 124-125. He walked down the street and saw Terri Peoples and Steven Caldwell lying in the street. Id. at 125. He also noticed the truck that had been parked behind Terri's car was gone. Id. at 126.
....Both victims were transported to Hamot Medical Center. Id. at 91.
Terri Peoples testified that she does not remember leaving the Knights of St. John Club and being struck. Id. at 75. She woke up in the hospital several days after the accident with numerous injuries including a head injury, a broken jaw, broken ribs and vertebrae, a lacerated liver and a collapsed lung. Id. at 76-81.
Erie Police Department (EPD) Officer Marc Bellotti was dispatched to the scene to take a report on the accident. N.T. Trial, Day 2, pp. 4-5. Officer Bellotti spoke with Alija Bajramovic, Senad Rakovic, Hillary Lepak, and Alan Baham. Id. at 7-9. While at the scene, Office Bellotti learned that Steven Caldwell had been pronounced dead at the hospital. Id. at 7. Based upon that information and the witness' statements, Officer Bellotti contacted the Identification Unit (ID Unit) to investigate. Id. at 8, 11, 23-29. Detective Mark Sennett took photographs. Id. at 12.
Detective Johnathan Peters was called to the scene. N.T. Trial, Day 1, p. 45. He obtained a description of the truck that hit Terri Peoples and Steven Caldwell. Id. at 46. A be-on-the-look-out advisory was put out at 4 a.m. for a dark blue or black pickup truck with tinted windows and a partial plate number of FTJ20. Id. at 54-55.
Mark Maraz walked to the hospital to see how Terri Peoples and Steven Caldwell were. N.T. Trial Day 2, 9/18/08, pp. 97-98. Along the way, he telephoned Deneen DeVandry. Id. at 99. He testified that he suspected that Appellant might have had something to do with the accident. Maraz testified that Deneen was crying when she answered the phone. Id. at 115-116. When he asked to speak with Appellant, Deneen put the phone down, but no one ever spoke to Maraz. Id . He hung up and tried calling her back, but there was no answer. Id.
- - -
The next morning, Mark Polinek contacted EPD stating he believed he sold a truck matching the description given by police to Appellant. N.T. Trial Day 1, 9/17/18, p. 47. Mark Maraz also contacted EPD about his belief that Appellant was the driver of the truck. N.T. Trial Day 2, 9/18/08, p. 48. Based on this information, the police went to Appellant's residence at 1262 West 38th Street.

Commonwealth v. Urch, No. 3333-2007, slip op. at 2-7 (C.P. Erie, Aug.13, 2009) ("Urch 1"), ECF No. 30-2 at 24-29 (footnotes omitted).

After securing a search warrant for the truck, the police retrieved hairs on the underside of it, which matched a DNA sample provided by Terri Peoples. The police also discovered that the front bumper of the truck had been freshly painted, and they found a can of blue spray paint in the car behind the driver's seat. Id. at 8-9, 11, ECF No. 30-2 at 30-31, 33. Urch was subsequently arrested and gave a videotaped confession to the police. Id. at 10, ECF No. 30-2 at 32. During his booking, one officer heard Urch say he "just killed someone. Drinking has been the downfall of my life." Id . Additionally, on a recorded phone call, Urch told his sister that he was drunk the night of the accident, that he did not mean to hit the victims, and that he drove his car through a car wash because he knew he had hit something. Id. at 10-11, ECF No. 30-2 at 32-33.

Following a three day trial in September 2008, the jury found Urch guilty of all charges. Prior to sentencing, Urch applied for a Public Defender and the trial court appointed Nicole Sloane, Esquire, to represent him. On November 5, 2008, the trial court sentenced him to 22½ to 45 years of incarceration.

Urch subsequently filed a motion for post-sentence relief in which he raised numerous claims, including claims that his trial counsel, Attorney Lucas, provided him with ineffective assistance. Id. at 11-30, ECF No. 30-2 at 33-52. On February 6 and 10, 2009, the trial court presided over an evidentiary hearing at which Urch, Lucas and three other individuals testified.

After the trial court denied his post-trial motion, Urch, through Attorney Sloane, filed an appeal to the Superior Court of Pennsylvania. On August 13, 2009, the trial court issued its Rule 1925(a) Opinion (Urch 1) in which it explained that none of Urch's claims had merit. At the end of that Memorandum, the trial court observed:

At the [February 2009 evidentiary hearing], the Court permitted Appellant to testify at length and air all of his grievances about the trial, its witnesses, his counsel, etc. N.T. [February 6, 2009 hearing] pp. 53-122. Appellant was fixated on certain details such as the Erie police dispatch records while ignoring others such as his multiple confessions (on video, phone, and to Officer Bailey). None of this persuades this Court to find Attorney Lucas ineffective and/or grant Appellant a new trial. See Commonwealth v. Johnson, 512 A.2d 1242 (1996) where defendant's testimony at ineffective assistance of counsel hearing was self-serving and ultimately rejected as not credible.
Appellant's lack of faith in his own case is readily apparent from the record. Prior to trial, he filed several letters with the Clerk of Courts in anticipation of his appeal. At the colloquy to determine whether he would testify at trial, Appellant again referred to filing a future appeal before the trial had even concluded. N.T. Trial Day 3, 9/19/08, pp. 41-42, 51-52. It appears that Appellant is, was, and perhaps will always be, unsatisfied with the criminal justice system.17
17. For example, while Appellant accused Attorney Lucas of ineffectiveness, he also stated that his appellate counsel, Attorney Sloane, did not raise every issue he wanted to present at the [February 2009] evidentiary hearing. N.T. [ ] Day 1, 2/6/09, p. 80. The Court recognizes that this may put ...

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