United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
C. Mitchell United States Magistrate Judge.
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.
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. 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.
judgment of sentence was affirmed on August 27, 2013 and
review was not sought from the Pennsylvania Supreme
timely post-conviction petition was filed on July 17, 2014.
The latter petition was dismissed without a hearing on March
31, 2015 and an appeal was filed in which the issue
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.
October 14, 2015 the judgment of sentence was
affirmed. Leave to appeal to the Pennsylvania
Supreme Court was denied on April 12, 2016. 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.
amended petition, Pelino claims he is entitled to relief on
the following grounds:
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.
Petitioner was denied an evidentiary hearing on ineffective
assistance of trial counsel.
Post-conviction counsel was ineffective for failing to
properly raise petitioner's post-conviction claims and
effectively argue these claims on appeal.
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