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HomeMy WebLinkAbout97-1083 CriminalCOMMONWEALTH VS. MARCUS T. ROSE OTN: E662608-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLrNTY, PENNSYLVANIA : 97-1083 CRIMINAL TERM : CHARGES: (1) CRIMINAL ATTEMPT : (HOMICIDE) : (2) AGGRAVATED ASSAULT : (3) RECKLESSLY ENDANGERING : ANOTHER PERSON : (4) CRIMINAL CONSPIRACY : (HOMICIDE) : (5) RECEIVING STOLEN PROPERTY .. IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. AND NOW, this ORDER OF COURT day of April, 1998, upon consideration of Defendant's pro se petition under the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is dismissed, without prejudice. Jonathan R. Birbeck, Esquire Chief Deputy District Attorney BY THE COURT, Marcus T. Rose, DL-7807 SCI Albion 010745 Route 18 Albion, PA 16475 Petitioner, Pro Se Aria M. Waller, Esquire Assistant Public Defender Courtesy Copy :rlm COMMONWEALTH VS. MARCUS T. ROSE OTN: E662608-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1083 CRIMINAL TERM CHARGES: (1) CRIMINAL ATTEMPT (HOMICIDE) (2) AGGRAVATED ASSAULT (3) RECKLESSLY ENDANGERING ANOTHER PERSON (4) CRIMINAL CONSPIRACY (HOMICIDE) (5) RECEIVING STOLEN PROPERTY IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., April ~.e} , 1998. In this criminal case, Defendant (now Petitioner) has filed a pro se petition under the Post Conviction Relief Act,~ seeking his "[r]elease from custody and discharge" as well as a "new trial.''2 For the reasons stated in this opinion, the petition will be dismissed as prematurely filed. STATEMENT OF FACTS On September 24, 1997, Defendant was found guilty following a jury trial before the Honorable Harold E. Sheely of attempted homicide, aggravated assault, recklessly endangering, conspiracy to commit homicide, and receiving stolen property. He was sentenced to state prison ~Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§ 9541 et seq. (1997 Supp.). 2petitioner's Petition under the Post Conviction Relief Act, paragraph 10. 97-1083 CRIMINAL on November 12, 1997, by President Judge Sheely,3 and filed a direct appeal to the Pennsylvania Superior Court from the judgment of sentence on December 11, 1997. As of this writing, the direct appeal remains pending before Superior Court.4 Petitioner's present petition for collateral relief under the Post Conviction Relief Act is based upon alleged ineffectiveness of his trial counsel and the alleged discovery of exculpatory evidence? It is averred that Petitioner's counsel failed to cross-examine a Commonwealth's ballistics expert, a state trooper who was employed "in forensics," and a certain borough police detective.6 It is further averred that such cross-examination "could have" resulted in Petitioner's acquittal.? DISCUSSION It is well settled that "a Post Conviction Relief Act petition filed while a defendant's direct appeal remains pending is premature." Commonwealth v. O'Neill, 393 Pa. Super. 111, 3The most serious sentence of the court was for attempted homicide, and consisted of incarceration in a state correctional institution for a period of not less than five nor more than fifteen years. Order of Court, November 12, 1997. The jail sentences for the other offenses were made to nm concurrent with that for attempted homicide. Id.~. President Judge Sheely retired from the bench prior to the filing of Petitioner's petition. 4The pendency of the appeal is noted in Petitioner's present petition. Petitioner's Petition under the Post Conviction Relief Act, paragraph 7. The docket number of the case in the Superior Court is 01171HBG97. 5Petitioner's Petition under the Post Conviction Relief Act, paragraph 4. 6Id., paragraph 5(A). 7Id., paragraph 5(C). 2 97-1083 CRIMINAL 118, 573 A.2d 1112, 1116 (1990). A dismissal of such a petition without a hearing is warranted. Icl. The dismissal would not in itself preclude a refiling of the petition at an appropriate time. Id. at 118 n.7, 573 A.2d at 1116 n.7. In accordance with the foregoing rule, the following order will be entered: ORDER OF COURT AND NOW, this 2. e~ t~n day of April, 1998, upon consideration of Defendant's pro se petition under the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is dismissed, without prejudice. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jonathan R. Birbeck, Esquire Chief Deputy District Attomey Marcus T. Rose, DL-7807 SCI Albion 10745 Route 18 Albion, PA 16475 Petitioner, Pro Se Arla M. Waller, Esquire Assistant Public Defender Courtesy Copy :rlm