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HomeMy WebLinkAboutCP-21-CR-426-1999 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GARY DEAN BARRICK : CP-21-CR-0426-1999 IN RE: SECOND PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., August 26, 2009:-- October 29, 1999, On a jury found Gary Barrick guilty of criminal homicide, 1 2 murder in the first degree, carrying a firearm without a license, and illegal possession 3 of a firearm. The facts at trial in the light most favorable to the Commonwealth were that in the early morning hours of February 3, 1999, Barrick, a 34-year-old bisexual male, left a party in the company of his eighteen-year-old girlfriend, Veronica Vera, with whom he had been loudly and profanely arguing. He drove Vera to a remote campground where he killed her with a gunshot through the roof of her mouth. He disposed of her body in a creek. He killed Vera because he suspected that she had engaged in sexual relations with someone else, and that she was the cause of his estrangement from John Morrow, a teenage male who was the target of his ardor. On February 10, 1999, defendant told a Pennsylvania State Police Officer that he took __________ 1 18 Pa.C.S. § 2501(a), 2502(a). 2 18 Pa.C.S. § 6105. 3 18 Pa.C.S. § 6106. CP-21-CR-0426-1999 Vera to a deserted campground next to a creek, but that she fell and hit her head on a rock. Later in the interview, he stated that Vera “took a bullet” accidentally while trying to stop him from committing suicide. He finally admitted to killing Vera by putting a gun barrel in her mouth and pulling the trigger. Barrick told the officer where Vera’s body could be found. Within hours, spent shell casings and skull fragments were recovered at that location. Her body was recovered twelve days later, approximately 1.5 miles downstream. The five spent shell casings found at the scene were all fired from the same firearm. Thirteen spent shell casing seized in Barrick’s home were also fired from that same firearm. November 23, 1999, On Barrick was sentenced: (1) for murder in the first 4 degree, to undergo imprisonment in a state correctional institution for life, (2) for carrying a firearm without a license, to undergo imprisonment in a state correctional institution of not less than two years or more than five years consecutive to the life sentence, and (3) for illegal possession of a firearm, to pay the costs of prosecution. Barrick filed a direct appeal from the judgment of sentence which was affirmed by the August 23, 2000January 9, 2001 Superior Court of Pennsylvania on . On , the Supreme Court of Pennsylvania denied a petition for an allowance to appeal. April 27, 2005 On , Barrick filed a petition for relief pursuant to the Post- 4 The jury was unable to reach a unanimous verdict on either a sentence of death or life imprisonment. Therefore, the court was mandated to impose a sentence of life imprisonment. 42 Pa.C.S. § 9711(c)(1)(v). -2- CP-21-CR-0426-1999 et seq. Conviction Relief Act. 42 Pa.C.S. § 9541 Counsel was appointed. The Commonwealth filed a motion to dismiss the petition for lack of jurisdiction. The issue was whether the petition was time-barred under 42 Pa.C.S. Section 9545(b), which provides: Any petition under this subchapter, (1) including a second or shall be filed within one year of the date the subsequent petition, judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence;or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. (4) For purposes of this subchapter, “government officials” shall not include defense counsel, whether appointed or retained. (Emphasis added.) The petition alleged ineffectiveness of his trial counsel. It contained an allegation of the “unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” Barrick identified such evidence as the mental health records of -3- CP-21-CR-0426-1999 January 5, 2006 Veronica Vera. On , following a hearing and upon finding that a petition for post-conviction relief was not filed within one year of the date that the judgment of sentence had become final, and that none of the three exceptions in 42 Pa.C.S. Section 9545 (b)(1)(i), (ii), and (iii) were applicable, an order was entered 5 September 6, 2006 denying the petition for lack of jurisdiction. On , the order was February 5, 2007 affirmed by the Superior Court of Pennsylvania. On , the Supreme Court of Pennsylvania denied a petition for an allowance of appeal. July 27, 2009 On , Barrick filed a second petition for post-conviction relief. He alleges that he is entitled to relief because of: (I) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (II) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. * * * (V) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced. __________ 5 The last day of the one year period for Barrick to file a petition for post-conviction relief under Section 9545(b)(1) of the Judicial Code passed ninety days after the Supreme Court of Pennsylvania denied his allowance to appeal from the order affirming the judgment of sentence of the Superior Court of Pennsylvania, from which he did not Commonwealth v. seek a writ of certiorari in the United States Supreme Court. See Davis, 816 A.2d 1129 (Pa. Super. 2003). That date was April 10, 2002. The petition for post-conviction relief was not filed until April 27, 2005. The time requirements in Commonwealth v. Pursell, Section 9545(b) of the Judicial Code are jurisdictional. 749 A.2d 911 (Pa. 2000). -4- CP-21-CR-0426-1999 Barrick alleges: Unreliable forensic evidence by means of a report issued by the National Research Council of National Academy of Sciences at the behest of the United States Congress, titled “Strengthening Forensic Science in the United States: A Path Forward” Which include, but are not limited to: 1) unreliable forensic evidence, 2) incomplete search warrants, 3) destruction of evidence, 4) incomplete discovery, 5) improper police conduct and procedures, 6) ineffective assisstance [sic] and errors by counsel. Barrick alleges counsel’s ineffectiveness as: 1. present diminished capacity when expert testimony indicated that defendant was suffering from major depression and anxiety. Com v. Legg 551 Pa. 437, 711 A.2d 430 (1998). 2. interview his own client relative to facts on the night in question. Counsel exhibited a gross unattention to the capital nature of his client’s plight and failed to call character witnesses. Com v. Perry 537 Pa. 385, 392 A.2d 644 (1994). 3. call a psychiatric witness who would negate the element of malice. Com v. Potts 486 Pa. 509, 406 A.2d 1007 (1979). 4. call character witnesses. Com. V. Simler 320 Pa.Super. 342, 467 A.2d 355 (1983). Com v. Weiss 530 Pa. 1, 606 A.2d 439 (1992). Com v. Glover 422 Pa.Super. 543, 619 A.2d 1357 (1993). Com v. Gillespie 423 Pa. Super. 128, 620 A.2d 1143 (1993). 5. perfect direct appeal pursuant to Article V, Section 9 of the Pennsylvania Constitution. Com v. Lantzy 558 Pa. 214, 736 A.2d 564, 571 (1999). 6. challenge the voluntariness of defendant’s confession at trial, even though the Court found the confession admissible. Com v. Myers 472 Pa. 200, 371 A.2d 1279 (1977). Joyner, supra. 7. poll jury. 8. challenge the sufficiency of the evidence. P.R.Crim.P. rule 1124. 9. call expert witness to rebuff the testimony of Oren Kauffman and Dr. Land. 10. provide complete record to Superior and Supreme Courts for review on appeal pursuant to PA R.A.P. 1922. 11. assure trial transcripts were complete and accurate pursuant to PA R.A.P. 1911(a), 1922(a). -5- CP-21-CR-0426-1999 Counsel attempted to coerce defendant into a plea bargain with the aid of the defendant’s parents. Commonwealth v. Palmer, In 814 A.2d 700 (Pa. Super. 2002), in which the Superior Court reviewed a trial court’s denial of a petitioner’s second PCRA petition, the court stated: As this was Palmer’s second PCRA petition, in addition to satisfying the eligibility and timeliness requirements of the PCRA, 43 Pa.C.S.A. §§ 9543 and 9545, he was also required to comply with the dictates of Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988), and its progeny. As this court has observed: Requests for review of a second or subsequent post- conviction petition will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Lawson, . . . 549 A.2d at 112. This standard is met only if petitioner can demonstrate either: (a) the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (b) he is innocent of the crimes charged. Commonwealth v. Szuchon, [] 633 A.2d 1098, 1099-1100 ([Pa.] 1993). Commonwealth v. Austin, 721 A.2d 375, 377 (Pa.Super. 1998). (Footnote omitted). sub judice 6 In the case , there is no requirement for the appointment of counsel, and no need for a hearing, because it is clear from reviewing this second petition for post-conviction relief that this court does not have jurisdiction because petitioner has not met the time requirement for filing the petition. The allegations of ineffective assistance of counsel numbers 1 through 4 and 6 through 9 all relate to alleged errors discernable from the trial record or to counsel’s failure to present defenses or mitigation __________ 6 Commonwealth v. Kubis , 808 A.2d 196 (Pa. Super. 2002). -6- CP-21-CR-0426-1999 evidence that were purported available at the time of petitioner’s trial. See Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000). Number 5 which alleges the failure to perfect a direct appeal is clearly wrong because a direct appeal was filed and litigated. As to numbers 10 and 11, the contents of trial transcripts and the record that was forwarded to the Superior and Supreme Courts were known to petitioner in 2000. The last unnumbered allegation, that counsel attempted to coerce petitioner into a plea bargain with the aid of defendant’s parents, is of no legal import because petitioner went to trial and was convicted by a jury. Attaching an undated, prepublication copy of a report about strengthening forensic science published by a committee of the National Research Council of the National Academies, without any allegation as to how the report shows that the forensic evidence admitted against petitioner at trial was unreliable, is of no legal import. Thus, there are no allegations in the petition alleging, as required, or otherwise showing how any of the exceptions to the timeliness requirements in 42 Pa.C.S. Section 9545(b)(1)(i), (ii), (iii), for the filing of a petition for post-conviction relief, are applicable. Pa.R.Crim.P. 907(1), provides with respect to a petition for post-conviction relief: the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of -7- CP-21-CR-0426-1999 the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. (Emphasis added.) July 31, This court complied with this Rule by sending a notice to petitioner on 2009August 21, 2009 . Petitioner filed a response on . We have reviewed his response which does not change our view that this court lacks jurisdiction to a grant petitioner any relief in this second petition for post-conviction relief. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2009, the within second petition for IS DISMISSED. post-conviction relief, By the Court, Edgar B. Bayley, J. David Freed, Esquire District Attorney Gary D. Barrick, Pro se SCI Somerset 1590 Walters Mill Road Somerset, PA 15510-0001 :sal -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GARY DEAN BARRICK : CP-21-CR-0426-1999 IN RE: SECOND PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of August, 2009, the within second petition for IS DISMISSED. post-conviction relief, By the Court, Edgar B. Bayley, J. David Freed, Esquire District Attorney Gary D. Barrick, Pro se SCI Somerset 1590 Walters Mill Road Somerset, PA 15510-0001 :sal