Com. v. Marinelli

• Decision Date: 25 November 2002
• Citation: 810 A.2d 1257,570 Pa. 622
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kevin MARINELLI, Appellant.
• Court: Pennsylvania Supreme Court

810 A.2d 1257

570 Pa. 622

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

Supreme Court of Pennsylvania.

Submitted April 15, 2002.

Decided November 25, 2002.

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

Ann Targonski, Sunbury, for appellee, Com. of PA.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice NEWMAN.

Kevin Marinelli (Marinelli) appeals from an Order of the Court of Common Pleas of Northumberland County (PCRA court), denying his Petition for Post-Conviction Relief pursuant to the Post Conviction Relief Act¹ (PCRA). For the reasons set forth herein, we affirm in part and reverse in part the Order of the PCRA court and remand the matter for proceedings consistent with this Opinion.

FACTS AND PROCEDURAL HISTORY

The evidence submitted at trial, as summarized by the 1997 opinion of this Court on direct review, authored by Justice Cappy, established the following:

On the evening of April 26, 1994, [Marinelli], his brother, Mark Marinelli (Mark), and [co-defendant Thomas] Kirchoff met at [Marinelli'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, [Marinelli] immediately proceeded to the second floor, where he encountered Dumchock. When Dumchock requested that [Marinelli] leave his home, [Marinelli] struck Dumchock's face with his gun and yelled for assistance from Mark and Kirchoff.

[Marinelli] 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, [Marinelli] would hit Dumchock again.

Mark and Kirchoff departed Dumchock's home after they had loaded the items they wished to steal, while [Marinelli] remained in the residence with Dumchock. [Marinelli] then shot Dumchock twice in the head, with one shot into Dumchock's eye and the other directly between Dumchock's eyes. [Marinelli] 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. [Marinelli] 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, [Marinelli] 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 Coroner Richard 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 [Marinelli], Nathan Reigle, was questioned by police about the Dumchock murder. Reigle stated to police that [Marinelli] had bragged about how he had killed Dumchock. A search of [Marinelli'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, [Marinelli] gave police both an oral and a taped confession as to his involvement in the Dumchock killing.

Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 209-210 (1997),cert. denied, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998).

The Commonwealth tried Marinelli and Kirchoff for the homicide of Dumchock.² Following a joint trial conducted from May 12, 1995, through May 18, 1995, a jury convicted Marinelli of murder in the first degree,³ robbery,⁴ conspiracy to commit robbery,⁵ burglary,⁶ theft by unlawful taking,⁷ receiving stolen property,⁸ and aggravated assault.⁹ The jury convicted Kirchoff of all of the same crimes, save murder in the first degree, convicting him instead of murder in the second degree.¹⁰ Following a penalty hearing limited to Marinelli, the same jury found two aggravating circumstances, that Marinelli committed the killing while in the perpetration of a felony¹¹ and that he committed the offense by means of torture,¹² and two mitigating circumstances, that Marinelli had no significant history of prior convictions¹³ and other evidence concerning Marinelli's character and record.¹⁴ The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and, accordingly, sentenced Marinelli to death. The trial court sentenced Marinelli to additional terms of imprisonment of ten to twenty years for robbery, five to ten years for conspiracy, and ten to twenty years for burglary, each sentence to run consecutive to all other sentences. On direct appeal, this Court affirmed the convictions and judgments of sentence. Marinelli, 690 A.2d at 222. The same attorney, James J. Rosini, Esq. (Rosini), represented Marinelli at trial and on direct appeal.

Marinelli filed a timely pro se Petition for Post-Conviction Relief and request for appointment of counsel on April 28, 1998. The PCRA court appointed counsel, who filed an Amended PCRA Petition on October 13, 1998 (First Amended Petition). Original PCRA counsel ceased representation of Marinelli on October 22, 1999, at which time second PCRA counsel entered an appearance on behalf of Marinelli. The PCRA court conducted an evidentiary hearing on the Amended PCRA Petition from January 24, 2000, through January 27, 2000. On March 22, 2000, second PCRA counsel filed a Second Amended PCRA Petition (Second Amended Petition). On March 28, 2000, the PCRA court ordered the parties to file post-hearing briefs on the issues raised at the January 2000 hearing. The PCRA court received these briefs from both the Commonwealth and second PCRA counsel in March of 2001 and entertained arguments on May 1, 2001, on the additional issue raised in the Second Amended Petition and the issues discussed in Marinelli's post-hearing briefs. By Opinion and Order dated May 15, 2001, the PCRA court denied Marinelli's request for post-conviction relief. Also on May 15, 2001, second PCRA counsel withdrew and current PCRA counsel substituted his appearance for that of second PCRA counsel.

DISCUSSION¹⁵

On appeal to this Court, Marinelli raises thirteen claims attacking his convictions and sentences. For clarity of discussion, we group together those claims that we dispose, of in similar fashion and state each such issue at that time.

Waiver Analysis

The PCRA court determined that Marinelli waived each of the following eight claims because he did not properly preserve them by raising them in either his Second Amended Petition or in his Post-Hearing Memorandum:

1. Should Marinelli's death sentence be vacated because he was denied an impartial capital sentencing jury and, as a result, consideration of mitigating evidence was restricted, in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 9 and 13 of the Pennsylvania Constitution?

2. Is Marinelli entitled to a new sentencing proceedings because the trial court's penalty

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