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Pelino v. Gilmore

United States District Court, W.D. Pennsylvania

July 6, 2017

VITO PELINO, Petitioner,
v.
ROBERT GILMORE, et al., Respondents.

          MEMORANDUM AND ORDER

          Robert C. Mitchell United States Magistrate Judge.

         Vito Pelino by his counsel has presented an amended petition for a writ of habeas corpus (ECF No.17). For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Pelino is presently serving a sentence of life imprisonment plus an additional one to two year sentence imposed following his convict by a jury of first degree murder and abuse of a corpse. This sentence was imposed on June 13, 2012 at No. CP-02-2578-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania.[1] An appeal was taken to the Superior Court of Pennsylvania in which the issues presented were:

The trial court committed reversible error when it did not declare a mistrial after Commonwealth witness Corey Roberts testified that he and Pelino talked about killing someone else before and exacerbated the error by highlighting it to the jury with an unrequested cautionary charge.
The trial court erred in not giving the heat of passion-voluntary manslaughter charge.
The trial court committed reversible err[or] in admitting into evidence and displaying to the jury unnecessary gruesome color photos of body parts of the deceased.[2]

         The judgment of sentence was affirmed on August 27, 2013 and review was not sought from the Pennsylvania Supreme Court.[3]

         A timely post-conviction petition was filed on July 17, 2014. The latter petition was dismissed without a hearing on March 31, 2015[4] and an appeal was filed in which the issue raised was:

The trial court erred in dismissing the PCRA petition without a hearing where petitioner made a clear showing that several allegations of ineffective assistance of counsel raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief.[5]

         On October 14, 2015 the judgment of sentence was affirmed.[6] Leave to appeal to the Pennsylvania Supreme Court was denied on April 12, 2016.[7] The instant petition was filed on June 14, 2016 and amended on November 30, 2016 (ECF No.17). The Commonwealth concedes that the petition here is timely.[8]

         In his amended petition, Pelino claims he is entitled to relief on the following grounds:

         1. Trial counsel was ineffective in

a. Failing to move for severance;
b. Failing to prepare petitioner to testify;
c. Failing to call certain fact and character witnesses;
d. Failing to present evidence of self-defense;
e. Failing to object to prosecutor's prejudicial remarks in her closing, and
f. Violating petitioner's right to a public trial.

         2. Petitioner was denied an evidentiary hearing on ineffective assistance of trial counsel.

         3. Post-conviction counsel was ineffective for failing to properly raise petitioner's post-conviction claims and effectively argue these claims on appeal.[9]

         The background to this prosecution is set forth in the October 14, 2015 Memorandum of the Superior Court:

On the evening of February 12, 2011, [the victim] was socializing with a group of friends at a bar …. Later that night [the victim] met [Appellant's sister, N.T.]. [N.T.] had come to the bar with [Appellant] after getting off work and having several drinks[.] … [The victim] and [N.T.] talked, danced and drank for a couple of hours…. [Around 2:00 on February 13th, the victim's friend drove the victim] and [N.T.] to [N.T.'s] residence and returned to the bar…. [Appellant had] agreed to provide [the victim] with a ride home from [N.T.'s residence] after he took [his friend, Corey] Robert home [because the victim and Appellant] resided [in the same community].
[Appellant] arrived at [N.T.'s] residence at approximately 3:00 a.m. and the three of them drank and talked amicably inside. [The victim] at some point excused himself to use the bathroom and [N.T.], by that time intoxicated and tired, told [Appellant] that she needed [the victim] to be out of the residence because her boyfriend would be coming home soon. [Appellant] informed [the victim] of the circumstances, and although [the victim] had been excited about the potential of "hooking up" with [N.T., Appellant] persuaded [the victim] to leave with him.
[Appellant] and [the victim] left and drove into [their community] in [Appellant's] vehicle. During the ride [the victim] began talking about [N.T.] in a manner that [Appellant] perceived as disrespectful…. A verbal argument ensued and [Appellant] stopped the vehicle [and] the argument escalated between the two men. [Appellant] then grabbed a knife that he had beside the driver's side door and began to stab [the victim].
[Appellant] inflicted 72 stab and incised wounds on [the victim], stabbing him until he was certain [the victim] was dead. Many of the incised wounds were defensive wounds to [the victim's] hands; and the most lethal wounds were stab wounds to [the victim's] neck, which transected his left carotid artery and perforated his trachea, as well as a stab wound to the back which penetrated his lung.
… [Appellant] drove home to his apartment … which was across the street from his mother's home. He parked his vehicle in the back of his mother's house and pushed [the victim's] body onto the back seat. [Appellant] went into his apartment and retrieved a black bed ...

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