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HomeMy WebLinkAboutCP-21-CR-2918-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-2918-2005 THEODORE JOHN SOLANO : CP-21-CR-0277-2006 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., September 2, 2009:-- Theodore John Solano was charged at 2918-2005 with criminal homicide, 12 murder in the first degree, carrying the death penalty, aggravated assault, and abuse 345 of a corpse, and at 0277-2006 with rape, and involuntary deviate sexual intercourse. The informations alleged that the crimes were committed in Cumberland County January 4, 2008 between December 9 and 10, 1993. On , the information at 2918-2005 6 was amended to add a count of kidnapping, and Solano entered pleas of nolo contendere to murder in the third degree and kidnapping in full satisfaction of all of the charges at both informations. Pursuant to a plea agreement for a set sentence that was accepted by the court, Solano was immediately sentenced on the count of murder in the third degree to pay the costs of prosecution and undergo imprisonment in a state __________ 1 18 Pa.C.S. § 2501, 2502. 2 18 Pa.C.S. § 2702(a)(1). 3 18 Pa.C.S. § 5501. 4 18 Pa.C.S. § 3121(1). 5 18 Pa.C.S. § 3123(a)(1). 6 18 Pa.C.S. § 2901. CP-21-CR-2918-2005 CP-21-CR-0277-2006 correctional institution for a term of not less than ten years or more than twenty years, to date from October 13, 2005. On the count of kidnapping, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for a term of not less than seven years or more than twenty years consecutive to the sentence imposed for murder in the third degree. Solano did not file a post-sentence motion or a direct appeal from these judgments of sentence. December 19, 2008 On , Solano filed a pro se petition for relief pursuant to the et seq 7 Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 . Counsel was appointed to represent him. Counsel was given time to file an amended petition if warranted and July 14, 2009 to seek a hearing when warranted. On , counsel filed a no-merit letter and a motion for leave to withdraw with copies to Solano and a letter advising him of his right to proceed pro se or to hire privately-retained counsel if this court grants the request to withdraw. This court must now conduct an independent review of the record in light of the petition for post-conviction relief and the issues set forth therein, as well Commonwealth v. Friend as the contents of counsel’s petition to withdraw. , 896 A.2d 607 (Pa. Super. 2006). The following is the colloquy on January 4, 2008, when the information at 2918 was amended to add a count of kidnapping, and petitioner entered pleas of nolo 7 The petition also sought habeas corpus relief. A petition seeking post-conviction relief must be treated as a petition under the Post-Conviction Relief Act regardless of Commonwealth v. Bronshtein, the title of the document filed. 752 A.2d 868 (Pa. -2- CP-21-CR-2918-2005 CP-21-CR-0277-2006 contendere to murder in the third degree and kidnapping. THE COURT: Mr. Freed. MR. FREED: Good morning, Your Honor. May it please the Court. The matters before Your Honor this morning involve two criminal files, number 2918 of 2005 and 277 of 2006. The matters both involve the case of Commonwealth versus Theodore John Solano. The charges are various, to include criminal homicide and other charges. Pursuant to a negotiated plea agreement, what we expect to happen this morning is that the defendant will enter pleas of no contest to charges of criminal homicide, murder of the third degree, and kidnapping in return for an aggregate immediate sentence of 17 to 40 years in a state correctional institution. The first matter of business that we need to take care of is an oral motion of the Commonwealth to amend the criminal information at docket number 2918 to add Count 4, kidnapping, which is a felony of the first degree, with a maximum possible prison term of 20 years. THE COURT: What is the code section? I think it is 2901. MR. CLAWGES: I believe so. MR. FREED: That's correct. THE COURT: Any objection? MR. CLAWGES: No. THE COURT: Upon the motion of the Commonwealth to amend the information at 2918-2005 to add Count 4, kidnapping, a felony of the first degree, in violation of the Crimes Code at 18 Pa.C.S. Section 2901, the motion is granted. Count 4 is added to the information. MR. FREED: With the amendment of the information at 2918 then, Your Honor, the plea would be to Count 1, criminal homicide, murder of the third degree, and Count 4, kidnapping, in satisfaction of the other charges at that docket number and also at docket number 277 of 2006. THE COURT: Is it going to be a plea of guilty or nolo contendere? MR. FREED: It is going to be a no contest plea. THE COURT: Proceed. 2000). -3- CP-21-CR-2918-2005 CP-21-CR-0277-2006 MR. FREED: The facts in support of the plea are as follows. Natalia Miller, a citizen of Russia, immigrated to the United States in 1993 and settled in the Washington D.C. area. It was there that she met and began a relationship with the defendant, Theodore Solano. They married in June 1993, executing a prenuptial agreement that set forth that neither party would make a claim for alimony or support in the event of a separation and further setting forth that both parties agreed to an uncontested divorce when necessary. On or about December 9, 1993, the defendant unlawfully removed Natalia Miller from the Washington D.C. area. He brought her to the area of Whiskey Springs Road in South Middleton Township, Cumberland County, where he killed her by strangulation. An autopsy performed by Dr. Isidore Mihalakis revealed that the cause of death was ligature strangulation, and the manner of death was homicide. Natalia Miller's body was discovered where she had been killed on December 10th, 1993. Her body went unidentified until late 2004 when DNA samples from her body were resubmitted to the CODDIS database. That's capital C-O-D-D-I-S. Comparison of those samples to the CODDIS database showed a match with the DNA of the defendant. Further DNA comparison was completed using that sample. That comparison showed that the defendant's DNA -- let me back up. Pursuant to a search warrant, Pennsylvania State Police obtained a blood sample from the defendant. Further DNA comparison was done using that sample. That comparison showed that the defendant's DNA was present in samples recovered from Natalia Miller's vagina and anus. In addition, the defendant's DNA was present in a bloodstain recovered from the shirt Natalia Miller was wearing when her body was discovered. Still further testing revealed that the combined DNA in those samples was fully explained by the presence of the DNA of the defendant and the victim. Possible suspects who have been previously investigated were excluded by all DNA testing. THE COURT: Does your client wish to enter a plea of nolo contendere to a count of murder in the third degree and to a count of kidnapping? MR. CLAWGES: Yes. THE COURT: Sir, did you sign a rights form? THE DEFENDANT: Yes, Your Honor, I did. -4- CP-21-CR-2918-2005 CP-21-CR-0277-2006 THE COURT: Do you have any questions regarding those rights? THE DEFENDANT: No, I do not. THE COURT: Did you review those rights with your counsel? THE DEFENDANT: Yes, I did. THE COURT: The offer by the Commonwealth in this case to resolve all charges against you, and that not only includes at 2918 a charge of criminal homicide, murder in the first degree, which could carry the death penalty, an aggravated assault count, an abuse of corpse count, and at 277-2006 a count of rape and a count of involuntary deviate sexual intercourse, the offer of the Commonwealth is to accept the plea of nolo contendere from you to a count of murder in the third degree, in 1993 that was a felony in the first degree, and the maximum penalty was 20 years imprisonment, and to a count of kidnapping, also a felony in the first degree, the maximum penalty is 20 years imprisonment. The offer of the Commonwealth is that in exchange for this plea, you will waive a presentence investigation, and I will impose a set sentence on the murder of the third degree charge of not less than 10 years or more than 20 years, and a set sentence on the kidnapping charge of not less than 7 years or more than 20 years, for an aggregate sentence of not less than 17 years or more than 40 years, and that I will impose that sentence today. If you enter your plea of nolo contendere today pursuant to this agreement, I will abide by it. Therefore, you know that if you enter the plea I will today sentence you to the agreed aggregate sentence of not less than 17 or more than 40 years in a state correctional institution. Do you understand that? THE DEFENDANT: Yes, Your Honor, I do. THE COURT: A plea of nolo contendere is not a specific admission that you committed the crimes. However, it is an acknowledgment by you that the Commonwealth could prove beyond a reasonable doubt every element of the offense of murder in the third degree and every element of the offense of kidnapping. Therefore, unlike a guilty plea where you make a specific admission to guilt, in this case if you enter a plea of nolo contendere to those two charges, you will be acknowledging and admitting that the Commonwealth could prove beyond a reasonable doubt all of the elements of those two offenses, and therefore you will be -5- CP-21-CR-2918-2005 CP-21-CR-0277-2006 subjecting yourself to criminal culpability in the same manner as if you entered a guilty plea. Do you understand that? THE DEFENDANT: Yes, Your Honor, I do. THE COURT: Murder in the first degree is a killing with the specific intent to kill. A killing is with the specific intent to kill if it is willful, deliberate, and premeditated; that is, it is committed by a person who has a fully formed intent to kill who was conscious of his own intent. Any murder that is not first degree murder is third degree murder. You would be guilty of third degree if the Commonwealth proved beyond a reasonable doubt that you killed Natalia Miller, and by that I mean if you were the direct cause of her death, and that the killing was with malice. The element of first degree murder that is not present in third degree murder is a specific intent to kill. In the context of third degree murder, malice is one of the following states of mind: A wickedness of disposition, a hardness of heart, cruelty, reckless of consequence and a mind regardless of social duty indicating an unjustified regard for the probability of death or great bodily harm, and an extreme indifference to the value of human life. It may also include an intent to kill or an intent to inflict serious bodily harm. Malice may be either expressed or inferred from your conduct in light of the intending circumstances. Therefore, in this case, if you plead nolo contendere to murder in the third degree, you are admitting that the Commonwealth could prove beyond a reasonable doubt that Natalia Miller is dead, that your conduct directly caused her death, and that you killed her with malice. Do you wish to enter a plea of nolo contendere to murder in the third degree? THE DEFENDANT: Yes, Your Honor, I do. THE COURT: A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where she is found or if he unlawfully confines another for a substantial period in a place of isolation with the intention to either facilitate the commission of any felony, and a criminal homicide, murder in the third degree, is a felony, and/or to inflict bodily injury on or terrorize the victim. A removal or confinement is unlawful if it is accomplished by force, threat, or deception. -6- CP-21-CR-2918-2005 CP-21-CR-0277-2006 If the Commonwealth proved these elements beyond a reasonable doubt, you would be guilty of kidnapping. Do you wish to enter a plea of nolo contendere to the count of kidnapping? THE DEFENDANT: Yes, Your Honor, I do. THE COURT: Enter this order. Defendant having appeared and tendered a plea of nolo contendere at 2918-2005 to Count 1, murder in the third degree, a felony of the first degree, and to Count 4, kidnapping, a felony of the first degree, those pleas being entered in full satisfaction of all charges at that term and number and of all charges at 277-2006, the pleas are accepted and recorded. In his post-conviction petition petitioner raises five issues which we will review seriatim. As to his allegations involving the ineffective assistance of trial counsel, the Commonwealth v. Jones, Supreme Court of Pennsylvania has stated in 912 A.2d 268 (Pa. 2006): To succeed with a claim of ineffective assistance of counsel, a defendant must show that such ineffectiveness “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.” 42 Pa.C.S. § 9543(a)(2)(ii). We have interpreted this standard to require a petitioner to prove that: (1) the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused appellant prejudice. Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997). I. THE COURT FAILED TO APPLY THE LAW APPROPRIATELY WHEN IT PERMITTED THE COMMONWEALTH TO AMEND THE INFORMATION AT 2918- 2005 AND ADD THE CHARGE OF KIDNAPPING IN VIOLATION OF PA.R.CRIM.P. 564. -7- CP-21-CR-2918-2005 CP-21-CR-0277-2006 The crimes to which petitioner pled nolo contendere were committed in December, 1993. At that time the maximum penalty for murder in the third degree was twenty years. The maximum penalty for kidnapping was twenty years. The plea agreement provided for a set sentence the aggregate of which was not less than seventeen years or more than forty years. Post-conviction counsel learned from trial counsel that the nolo contendere plea to the charges of kidnapping and third degree murder with the set aggregate sentence was designed to avoid the collateral consequences of a plea to the sexual offenses of rape and involuntary deviate sexual intercourse. Nevertheless, petitioner now maintains that his counsel was ineffective in allowing the Commonwealth to amend the information by adding a different offense to those with which he was charged. Pa.R.Crim.P. 564 provides: Amendment of Information The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice. The purpose of this Rule (former Rule 229) “is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition Commonwealth v. of alleged criminal acts of which the defendant is uninformed.” J.F., 800 A.2d 942 (Pa. Super. 2002). In the present case, while the amendment did add a different offense, kidnapping, the charge was premised on the same events upon which the Commonwealth premised its original charges against petitioner. Petitioner -8- CP-21-CR-2918-2005 CP-21-CR-0277-2006 acknowledged in the plea colloquy that the Commonwealth could prove beyond a reasonable doubt that he “unlawfully removed Natalia Miller from the Washington, D.C., area. He brought her to the area of Whiskey Springs Road in South Middleton Township, Cumberland County, where he killed her by strangulation.” In other words, during the course of kidnapping Miller he murdered her. The amendment did not prejudice petitioner. To the contrary, the amendment, by agreement, was to petitioner’s advantage because it allowed him to reach a plea agreement with a set aggregate sentence satisfactory to both himself and the Commonwealth to resolve all of the charges against him. Counsel was not ineffective in allowing the amendment rather than delaying disposition by having the Commonwealth file a separate charge of kidnapping because the amendment served a reasonable strategic basis designed to effectuate petitioner’s interest. II. THE CONVICTION FOR THE CRIME OF KIDNAPPING IS INVALID BECAUSE PENNSYLVANIA LACKED TERRITORIAL AND SUBJECT MATTER JURISDICTION FOR THE CRIME RESULTING IN AN UNKNOWING, AND INVOLUNTARY PLEA, AND AN UNLAWFUL SENTENCE BEING IMPOSED. The Crimes Code at 18 Pa.C.S. Section 2901(a) defines kidnapping as follows: A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions: (2) To facilitate commission of any felony or flight thereafter. -9- CP-21-CR-2918-2005 CP-21-CR-0277-2006 (3) To inflict bodily injury on or to terrorize the victim or another. Before petitioner entered his plea the court told him: A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where she is found or if he unlawfully confines another for a substantial period in a place of isolation with the intention to either facilitate the commission of any felony, and a criminal homicide, murder in the third degree, is a felony, and/or to inflict bodily injury on or terrorize the victim. A removal or confinement is unlawful if it is accomplished by force, threat, or deception. As set forth previously, petitioner acknowledged the factual basis for the plea in the colloquy that the Commonwealth could prove beyond a reasonable doubt that he “unlawfully removed Natalia Miller from the Washington, D.C., area. He brought her to the area of Whiskey Springs Road in South Middleton Township, Cumberland County, where he murdered her by strangulation.” The Crimes Code at Section 102 titled “Territorial applicability,” provides: (a) General rule.— Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct . . . for which he is legally accountable if either: or (1) the conduct which is an element of the offense the result which is such an element occurs within this Commonwealth. . . . (Emphasis added.) The element of the offense of kidnapping which occurred in Pennsylvania was petitioner removing the victim to Pennsylvania which is a substantial distance from Washington D.C. The result, inflicting bodily injury on the victim and facilitating the felony of murder in the third degree, occurred in Pennsylvania. Therefore, there was -10- CP-21-CR-2918-2005 CP-21-CR-0277-2006 subject matter jurisdiction in Pennsylvania over the crime of kidnapping. A knowing and voluntary plea was entered and the sentence imposed was lawful. III. THE CONVICTION FOR KIDNAPPING IS INVALID BECAUSE THE COMMONWEALTH FAILED TO ESTABLISH A PROPER FACTUAL BASIS FOR THE PLEA. Petitioner argues that the factual basis for his plea was deficient because the Commonwealth did not inform him that they did not have jurisdiction over the offense of kidnapping thus his plea was not knowing, voluntary or intelligent. This claim has no merit because, as previously discussed, the court had jurisdiction over the count of kidnapping. IV. THE PLEA COLLOQUY WAS DEFICIENT. Petitioner maintains that the plea colloquy was deficient because there was no adequate inquiry to ensure, as required by Pa.R.Crim.P. 590(3), “That the plea is voluntary and understandably tendered.” The comment to Rule 590 suggests the minimum inquiry that should be made regarding the entry of a plea of guilty or nolo contendere: (1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he or she has the right to trial by jury? (4) Does the defendant understand that he or she is presumed innocent until found guilty? (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged? -11- CP-21-CR-2918-2005 CP-21-CR-0277-2006 (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Commonwealth v. Anthony, 8 See 504 Pa. 551 (1984). The comment to Rule 590 further states that: Nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant and made part of the record of the plea proceeding. This written colloquy would have to be supplemented by some on-the-record oral examination. Anthony,Commonwealth v. Gardner As set forth in the Supreme Court noted that in , 499 Pa. 263 (1982), a written form signed by the defendant can supplement the plea colloquy to satisfy the required arrears of inquiry. In the present case, petitioner maintains that there was no factual basis for the plea. The factual basis for the plea of nolo contendere to criminal homicide and kidnapping was that the Commonwealth could prove beyond a reasonable doubt the facts set forth by the District Attorney in the plea colloquy. These facts formed a valid basis for the plea. Petitioner maintains that there was no adequate basis by which he could understand the nature of the charges to which he was pleading nolo contendere. In the colloquy, the court explained the elements of the crime of murder in the third degree and kidnapping as well as the difference between murder in the first degree for which he was charged and criminal homicide murder in the third degree to which he __________ 8 Anthony In the Supreme Court cited the comment to Rule 319 which is the same as the comment to current Rule 590. -12- CP-21-CR-2918-2005 CP-21-CR-0277-2006 was pleading. Petitioner maintains that he did not understand that he had a right to a trial by jury. The plea colloquy reflects the following: THE COURT: Does your client wish to enter a plea of nolo contendere to a count of murder in the third degree and to a count of kidnapping? MR. CLAWGES: Yes. THE COURT: Sir, did you sign a rights form? THE DEFENDANT: Yes, Your Honor, I did. THE COURT: Do you have any questions regarding those rights? THE DEFENDANT: No, I do not. THE COURT: Did you review those rights with your counsel? THE DEFENDANT: Yes, I did. The rights form that is part of the record and signed by petitioner sets forth: You have a right to a trial by a jury of 12 people. This means you may participate in the selection of a jury with your attorney. This involves exercising both peremptory and cause challenges. The jury is randomly selected from a cross section of residents throughout Cumberland County. You are presumed innocent until the Commonwealth proves every element of each offense beyond a reasonable doubt, and you have a right to remain silent during all proceedings. The jury will listen to the facts and based on the evidence all 12 jurors must agree unanimously as to your guilt beyond a reasonable doubt of each and every element of the crimes charged before they can convict . . . Do you understand that by pleading nolo contendere you are giving up your rights to a trial (jury . . .) and all the included rights described above? Petitioner wrote, “Yes, I do.” Petitioner maintains that he was not informed that he is presumed innocent until found guilty. The above-cited part of the rights form set forth that, “You are presumed innocent until the Commonwealth proves every element of each offense beyond a reasonable doubt.” Petitioner maintains that he was not made aware of the permissible -13- CP-21-CR-2918-2005 CP-21-CR-0277-2006 ranges of sentence and/or fines for the offenses charged. The colloquy shows petitioner was informed that the maximum sentence for third degree murder was twenty years and that the maximum sentence for kidnapping was twenty years, and that he was pleading nolo contendere for an agreed aggregate sentence of not less than seventeen years or more than forty years. The plea colloquy did not set forth the maximum fines that could have been imposed because the plea agreement for a set sentence did not provide for the imposition of fines, and no fines were imposed. Petitioner maintains that he was not made aware that the judge was not bound by the terms of the plea agreement tendered unless he accepted such an agreement. The judge specifically made petitioner aware that he accepted the plea agreement for a set sentence. That is, if he pled nolo contendere to the two charges he would receive an aggregate sentence of not less than seventeen years or more than forty years. Petitioner received that sentence. V. THE CONVICTIONS ARE INVALID AS THEY ARE BASED ON CRIMES THAT ARE UNENFORCEABLE BECAUSE THERE IS NO SAVINGS CLAUSE FROM THE 1874 PENNSYLVANIA CONSTITUTION TO THE 1968 CONSTITUTION OF THE CRIMES CODE OR STATUES. Petitioner was not prosecuted for violating the Pennsylvania Constitution. He was prosecuted for criminal homicide and kidnapping in violation of the Crimes Code of Pennsylvania. The crimes for which he was convicted of committing in December, -14- CP-21-CR-2918-2005 CP-21-CR-0277-2006 1993 had not been removed from the State’s condemnation from conduct that was Commonwealth v. Bangs, formerly deemed criminal. See 259 Pa. Super. 68 (1978). VI. PURSUANT TO THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS, PETITIONER WAS ENTITLED TO BE INDICTED BY A GRAND JURY, AND BECAUSE HE WAS FORMALLY CHARGED BY WAY OF A CRIMINAL INFORMATION SIGNED BY THE DISTRICT ATTORNEY, HE WAS DENIED DUE PROCESS OF LAW AND THEREFORE HIS PLEA AND SENTENCE ARE INVALID AND UNLAWFUL. Article I, Section 10 of the Pennsylvania Constitution provides in part: Each of the several courts of common pleas may, with the approval of the Supreme Court, provide the initiation of criminal proceedings therein by information filed in a manner prescribed by law. This constitutional provision was effective on November 6, 1973. The Legislature adopted legislation and the Supreme Court adopted rules implementing 9 Article I, Section 10. Notwithstanding, petitioner argues that Article I, Section 10 of the Pennsylvania constitution violates his rights under the Fifth Amendment to the United States Constitution that provides: “No person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment or indictment of a Grand Jury ...” The Fifth Amendment right to indictment by a grand jury is not incorporated into the __________ 9 Act of October 10, 1974, P.L. --, No. 238, §§ 1-6; Pennsylvania Rule of Criminal Procedure 225. The authorization granted to file informations in Rule 225 is now embodied in Rule 560(A). Cumberland County was granted approval by the Supreme Court of Pennsylvania to proceed by criminal information in 1983. -15- CP-21-CR-2918-2005 CP-21-CR-0277-2006 Due Process Clause of the Fourteenth Amendment to the United States Constitution, Commonwealth v. Slick, and, accordingly, does not pertain to the states. 432 Pa. Super. 563 (1994). Requiring a defendant to stand trial without indictment by a grand jury does not violate the rights guaranteed by the Fourteenth Amendment to the United Commonwealth v. Webster States Constitution. , 462 Pa. 125 (1975). Bibb v. Navajo Freight Line, Inc., Citing 359 U.S. 520, 79 S.Ct. 962 (1959), petitioner argues that the Supremacy Clause in the United States Constitution, prohibits terminating a requirement of a grand jury indictment in favor of the filing of a criminal information. The Supremacy Clause, which is contained in Article VI of the Constitution, provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Bibb involved an issue of whether an Illinois statute requiring the use of certain type of rear fender mud guard on trucks and trailers operated on the highways of that state conflicts with the Commerce Clause of the Constitution. The Supreme Court of the United States concluded that this was “one of those cases – few in number – where local safety measures that are non-discriminatory place an unconstitutional burden on Bibb interstate commerce. Petitioner seizes on the following language in : The various exercises by the States of their police power stand, however, on an equal footing. All are entitled to the same presumption of validity -16- CP-21-CR-2918-2005 CP-21-CR-0277-2006 when challenged under the Due Process Clause of the Fourteenth Amendment. Lincoln Federal Labor Union, etc. v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Similarly the various state regulatory statutes are of equal dignity when measured Local regulations which against the Commerce Clause, art. 1, s 8, cl. 3. would pass muster under the Due Process Clause might nonetheless fail to survive other challenges to constitutionality that bring the Supremacy Clause into play. Like any local law that conflicts with federal regulatory measures (Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470; Services Storage & Transfer Co. v. Commonwealth of Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717), state regulations that run afoul of the policy of free trade reflected in the Commerce Clause must also bow. (Emphasis added.) Article 1, Section 10 of the Pennsylvania Constitution is not a local regulation. No logical legal argument can be made that Article I, Section 10, which does not violate the Fifth Amendment and the Fourteenth Amendment to the United State Constitution, somehow violates the Supremacy Clause. July 27, 2009 On , this court sent to petitioner a statement of our independent review of the record and notice of our intent to allow his court-appointed counsel to withdraw and to dismiss his petition for post-conviction relief. Petitioner was advised that he could respond within twenty days. No response had been received. For the reasons set forth herein, we will grant the motion of counsel to withdraw and will dismiss this petition for post-conviction relief. Petitioner will be notified by certified mail, return receipt requested, of the right to file an appeal from this final order within thirty days. -17- CP-21-CR-2918-2005 CP-21-CR-0277-2006 ORDER OF COURT IT IS ORDERED: AND NOW, this day of September, 2009, (1) The motion of court-appointed counsel to withdraw his representation of IS GRANTED. petitioner, IS DISMISSED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. David Freed, Esquire District Attorney Theodore John Solano, HL 3168 SCI Rockview 1 Rockview Place Bellefonte, PA 16823 Nathan C. Wolf, Esquire :sal -18- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-2918-2005 THEODORE JOHN SOLANO : CP-21-CR-0277-2006 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT IT IS ORDERED: AND NOW, this day of September, 2009, (1) The motion of court-appointed counsel to withdraw his representation of IS GRANTED. petitioner, IS DISMISSED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. David Freed, Esquire District Attorney Theodore John Solano, HL 3168 SCI Rockview 1 Rockview Place Bellefonte, PA 16823 Nathan C. Wolf, Esquire :sal