Com. v. Marinelli

• Decision Date: 27 November 2006
• Citation: 910 A.2d 672
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kevin MARINELLI, Appellant.
• Court: Pennsylvania Supreme Court

910 A.2d 672

COMMONWEALTH of Pennsylvania, Appellee, v.Kevin MARINELLI, Appellant.

Supreme Court of Pennsylvania.

Submitted April 14, 2005.

Decided November 27, 2006.

COPYRIGHT MATERIAL OMITTED

Billy Horatio Nolas, Esq., Philadelphia, for Kevin Marinelli.

Frank G. Fina, Esq., Amy Zapp, Esq., Jonelle Harter Eshbach, Esq., Harrisburg, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NEWMAN.

Kevin Marinelli(Appellant) appeals from the March 30, 2004 Order of the Court of Common Pleas of Northumberland County(PCRA court) denying the Petition that he filed pursuant to the Post Conviction Relief Act (PCRA).¹In its original Opinion, the PCRA court determined that Appellant waived eight issues² that he had raised in his first Amended Petition because he did not raise them in his Second Amended Petition or in his post-hearing brief.After finding that the Second Amended Petition and post-hearing brief incorporated the claims by reference to the first Amended Petition, we reversed the PCRA court's determination of waiver and remanded for its consideration of the eight issues.Commonwealth v. Marinelli,570 Pa. 622, 810 A.2d 1257, 1265(2002).On remand, the PCRA court concluded that all eight claims lack merit.Commonwealth v. Marinelli,No. CR-94-451(C.P. Pa. Northumberland Mar. 30, 2004)(hereinafter "PCRA ct.Op.").We now affirm.

FACTS AND PROCEDURAL HISTORY

We recite the facts as stated by Justice, now Chief Justice, Cappy in our 1997 Opinion affirming Appellant's convictions and Judgments of Sentence.SeeCommonwealth v. Marinelli,547 Pa. 294, 690 A.2d 203(1997), cert. denied,523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473(1998):

The testimony at [A]ppellant's trial established the following facts.On the evening of April 26, 1994, [A]ppellant and his brother, Mark Marinelli(Mark), and [Thomas] Kirchoff [Kirchoff] met at [A]ppellant's apartment to plan a burglary of the residence of Conrad Dumchock(Dumchock), whom Mark knew to have stereo equipment.The three men obtained weapons, disguises, and gloves in preparation for the burglary, and proceeded to Dumchock's home in Kulpmont.

Dumchock was home alone and had just spoken to his sister and brother-in-law on the telephone for forty-five minutes.The Marinelli brothers and Kirchoff arrived at Dumchock's home and initially had difficulty gaining entry.Observing that Dumchock's car was parked outside his house and concerned about the possibility of being discovered, the threesome left Dumchock's residence but returned a few minutes later to again attempt to enter.Eventually, they broke a small window in the kitchen door and entered the residence.

Upon entering Dumchock's residence, [A]ppellant immediately proceeded to the second floor, where he encountered Dumchock.When Dumchock requested that [A]ppellant leave his home, [A]ppellant struck Dumchock's face with his gun and yelled for assistance from Mark and Kirchoff.

[A]ppellant and Kirchoff continued to beat Dumchock, despite Dumchock's pleading with them to take what they wanted and leave him alone.The three rummaged through Dumchock's home looking for items to take and asking Dumchock where his guns and money were located.When Dumchock would moan or not answer, [A]ppellant would hit Dumchock again.

Mark and Kirchoff departed Dumchock's home after they had loaded the items they wished to steal, while [A]ppellant remained in the residence with Dumchock.Appellant then shot Dumchock twice in the head, with one shot into Dumchock's eye and the other directly between Dumchock's eyes.Appellant then ran out of Dumchock's house and exclaimed, "Let's get out of here!"

The threesome returned to Kirchoff's home and divided the items stolen from Dumchock.A short while later, the Marinelli brothers returned to Dumchock's house and took a motorcycle from the victim's porch.Appellant attempted to start the motorcycle on compression, with Mark following in a car.They were observed crossing the main road in Kulpmont heading toward the other side of town.When the motorcycle would not start, [A]ppellant abandoned it.

On the morning following the killing, Clyde Metzger, who was waiting for Dumchock to drive him to work, entered the victim's home and discovered Dumchock's stereo equipment had been disarranged and Dumchock's dog was shaking.Metzger called out to Dumchock but received no response.Metzger became concerned and left Dumchock's home, and headed to the police station.On his way there, Metzger encountered a Kulpmont Police Sergeant Detective Robert Muldowney, and related to him the circumstances he had found.

Sergeant Muldowney entered Dumchock's home, noting that the storm door was open, the inside door was propped open with a chair, and the glass had been broken from a window in the door.Inside the house, Sergeant Muldowney discovered that telephone cords had been cut.Upstairs, Sergeant Muldowney discovered the victim's cold body lying at the top of the stairway landing.Sergeant Muldowney noted that Dumchock's bedroom was disheveled, with drawers removed from the dresser and various items strewn on the victim's bed.Pennsylvania State Police and County CoronerRichard Ulrich were called to the scene.The victim's sister also arrived at his house and noted that Dumchock's motorcycle was missing.The motorcycle was later recovered hidden in some brush where it had been abandoned.Dumchock's brother-in-law informed police that guns, tools, and electronic equipment were also missing from Dumchock's residence.One of Dumchock's friends, David Dormer, was brought to Dumchock's residence to assist police in determining which stereo equipment, as well as liquor, was missing.

On May 25, 1994, Mark Marinelli's girlfriend, Deeann Chamberlain, turned over to Coal Township Police certain weapons which Mark had brought to her home.These weapons were later identified as having belonged to the victim.County Coroner Ulrich was at the Coal Township police station when Ms. Chamberlain turned over these weapons.The coroner connected the items with the Dumchock killing, and notified the District Attorney and State Police.Further, Ms. Chamberlain allowed Shamokin Police to come to her home and remove other items Mark had left there, including a telephone answering machine.Coroner Ulrich recognized the telephone answering machine as being of the type reported missing from Dumchock's house, and he notified the State Police.

Additionally, a friend of [A]ppellant, Nathan Reigle, was questioned by police about the Dumchock murder.Reigle stated to police that [A]ppellant had bragged about how he had killed Dumchock.A search of [A]ppellant's residence by police recovered a number of items, including stereo equipment, later identified as property belonging to the victim.After being questioned by police, [A]ppellant gave police both an oral and a taped confession as to his involvement in the Dumchock killing.

Id. at 209-10.

The Commonwealth conducted a joint trial of Appellant and Kirchoff from May 8, 1995, through May 18, 1995.At the conclusion of the trial, the jury convicted Appellant of the following offenses: (1) first-degree murder;³(2) robbery;⁴(3) conspiracy to commit robbery;⁵(4) burglary;⁶(5) theft by unlawful taking;⁷(6) receiving stolen property;⁸ and (7) aggravated assault.⁹Following a penalty hearing limited to Appellant, the jury found two aggravating circumstances and two mitigating circumstances¹⁰ and concluded that the aggravating circumstances outweighed the mitigating circumstances.Accordingly, the trial court sentenced Appellant to death.¹¹On appeal, this Court affirmed Appellant's convictions and Judgments of Sentence.Commonwealth v. Marinelli,547 Pa. 294, 690 A.2d 203(1997), cert. denied,523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473(1998).The same attorney, James J. Rosini, Esquire(Attorney Rosini) represented Appellant at trial and on direct appeal.

On April 29, 1998, Appellant timely filed a pro sePCRA Petition.The following day, the PCRA court appointed Robert Brett Dunham, Esquire(Attorney Dunham) of the Center for Legal Education, Advocacy and Defense Assistance, who filed an Amended Petition on October 13, 1998.Attorney Dunham subsequently ceased representation of Appellant.

Following an evidentiary hearing held January 24-27, 2000, Jerome H. Nickerson, Jr., Esquire(Attorney Nickerson) of the Defender Association of Philadelphia, filed a Second Amended PCRA Petition on behalf of Appellant on March 22, 2000.After directing the parties to file post-hearing briefs, the PCRA court ultimately denied the Second Amended Petition.In an Opinion filed May 15, 2001, the PCRA court explained that Appellant waived eight of the issues that he had raised in his first Amended Petition because he did not specifically raise them in his Second Amended Petition or in his post-hearing brief.On May 18, 2001, the Defender Association of Philadelphia substituted current PCRAcounsel, Billy H. Nolas, Esquire, for the appearance of Attorney Nickerson, who withdrew on that date.

On appeal to this Court, Appellant challenged the PCRA court's determination that he waived the eight claims.We agreed with Appellant that he did not waive these issues because his Second Amended Petition and post-hearing brief actually had incorporated the claims by reference to his first Amended Petition.Commonwealth v. Marinelli,570 Pa. 622, 810 A.2d 1257, 1265(2002).Thus, we held that the PCRA court erred by refusing to review the issues, and we remanded to the PCRA court to address those claims that were cognizable under the PCRA.Seeid.("[T]o the extent that [Appellant] raised claims cognizable under the PCRA, these claims should have been reviewed.").As for the remainder of Appellant's claims, this Court found that they were either previously litigated or...