Commonwealth v. Martin

1

COMMONWEALTH OF PENNSYLVANIA v. MARK ANTHONY MARTIN Appellant

No. 970 WDA 2021

No. J-S11029-22

Superior Court of Pennsylvania

April 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered July 20, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0013843-2011

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM

OLSON J.

Appellant Mark Anthony Martin, appeals from the July 20, 2021 order filed in the Court of Common Pleas of Allegheny County denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9545. We affirm.

We previously summarized the factual and procedural history as follows:

[In September 2011], Sonya Smith was watching television inside the second-floor bedroom of her residence in the Penn Hills section of Allegheny County, Pennsylvania. Smith and Appellant had been involved in an intimate relationship since 2006, but became estranged in May 2011. Appellant was familiar with Smith's residence from visiting and staying there throughout their relationship. Smith locked all [] the doors to her house before retiring to her bedroom that evening. At approximately 3:45 a.m. [on September 18, 2011] Smith was awakened by voices outside of her bedroom window. Smith called the police when she heard prying noises at the kitchen window, which was directly below her bedroom. Appellant and John Sloan, who were unable to gain entry through the locked doors, broke [] a windowpane in the kitchen door to gain entry to Smith's [residence] through that door.

Shortly thereafter, Sloan, wearing black sweatpants, a black sweatshirt, gloves, a Halloween mask, and a paintball mask, entered Smith's bedroom holding a 9mm firearm. Sloan ordered Smith to lie on her bed facedown and struck Smith in the head and arms multiple times with the firearm. Appellant, who was wearing a light-colored t-shirt, grey sweatpants, and a ski mask entered Smith's bedroom shortly after Sloan. Appellant and Sloan straddled Smith and struck her multiple times in the arms and head; Sloan with the firearm and Appellant with a heavy object, most likely a crowbar.

Following the assault, the two men fled the residence. Appellant left first, exiting through the sliding glass door in the dining room, a door that because of its "stickiness" could only be opened by someone familiar with the premises. At the same time, Penn Hills police officers arrived on scene in response to Smith's 911 call. Officer Ronald Como, with the assistance of his vehicle spotlight, observed Appellant jog across the road and away from Smith's home. Officer Como exited his vehicle to approach Appellant, who immediately encountered dogs in a neighbor's yard. Officer Como's in-vehicle camera captured Appellant's image as he ran across the road and away from Smith's home.

Officer Richard Pine approached from the opposite direction and observed Sloan exiting from the side kitchen door of Smith's residence and running towards the wooded area behind Smith's home. Sloan was able to escape the immediate area but was stopped by a Penn Hills police officer responding to the scene approximately one-half mile away. Sloan was taken to the Penn Hills police station to be identified because he had no identification with him. At the police station, Sloan explained to the police officer that he had been out jogging, "blowing off steam," after a domestic argument. He was later charged with the incident once Smith was able to be interviewed and identified him as one of the assailants.

At approximately 4:30 a.m., Jerome Landrum was awakened by Appellant knocking on his door. Landrum lived approximately one-half mile from Smith's residence.

Landrum had known Appellant for over ten years, but could not see Appellant's face when he looked outside so he called the police and gave a general description of the individual knocking on his door. Unable to gain entry to Landrum's home, Appellant went next door and knocked on the door of the home of Glenn Dillard, who was Landrum's uncle. Appellant knew and called out Dillard's name, and Dillard admitted him into his residence. Police officers responded to the area based on Landrum's call and because his description of the person at his door matched the description of Appellant provided by Officer Como. The police officers did not encounter anyone on the roadway leading to Dillard's residence at that time. Landrum entered Dillard's home and encountered Appellant, who told him that he had gotten into an altercation and needed a ride home. Appellant appeared scared and repeatedly looked out the windows of Dillard's home until police officers vacated the area. Landrum refused to provide a ride to Appellant, and after approximately fifteen minutes, Appellant left Dillard's home.

Penn Hills police officers responding to Smith's home entered Smith's residence and encountered Smith, severely injured, in her bedroom. She notified the responding police officers that she immediately recognized Appellant as the second assailant based on his build, height, weight, and distinctive smell. Smith was immediately transported to the hospital for her injuries. She sustained a total of nine broken bones in her arms, bruising on her arms and back, and a concussion. As a result of the attack, Smith spent several days in the hospital and one month in a nursing facility for rehabilitation.

On September 23, 2011, en route from the rehabilitation facility to attend a funeral, Smith returned home briefly and discovered a book-bag belonging to Appellant in the dining room near the sliding glass door that Appellant exited on the night of the incident. She also found a ski mask on a table near the book-bag. Smith contacted the police, who collected the ski mask and the book-bag which contained, among other items, a crowbar. The ski mask was submitted to the crime lab, and a DNA mixture obtained from a tape lift and a suspected saliva stain from the mask were compared to the DNA profiles of Appellant and Sloan. Appellant and Sloan could not be excluded as contributors to the sample taken from the tape lift, and Appellant could not be excluded as a contributor to the suspected saliva stain on the ski mask. Smith viewed the video recorded by Officer Como's in-vehicle camera and identified Appellant based on his build, height, weight, and skin color. Kimberly Carson and Beatrice Berry, individuals who had lengthy relationships with Appellant, were shown a still photograph from the camera video and also identified Appellant. Dillard and Landrum were interviewed at a later date and identified Appellant as the individual who entered Dillard's residence in the early morning hours on September 18, 2011.

Trial Court Opinion, 1/5/15, at 6-10 (citations and footnote omitted).

Appellant was charged with robbery - inflicts serious bodily injury, burglary, aggravated assault - serious bodily injury, and criminal conspiracy.^[FN1] Appellant's first jury trial resulted in a mistrial when the jury was unable to reach a verdict. The second jury trial resulted in the jury convicting Appellant of all charges, with the exception of robbery. The trial court sentenced Appellant to an aggregate term of 17 to 34 years in prison. The trial court denied Appellant's post-sentence motions.

[Footnote 1] 18 Pa.C.S.A. §§ 3701(a)(1)(i), 3502(c)(1), 2702(a)(1), and 903(c), respectively.

[] This Court affirmed Appellant's judgment of sentence on October 26, 2015. [Commonwealth v. Martin, 2015 WL 6471183, at *4 (Pa. Super. Oct. 26, 2015) (unpublished memorandum).] On April 5, 2016, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Martin, 136 A.3d 980 (Pa. 2016). Appellant did not seek discretionary review with the Supreme Court of the United States. Therefore, Appellant's judgment of sentence became final on July 5, 2016.^[FN2] See 42 Pa.C.S.A. § 9545(b)(3) (stating, "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 the time for seeking a review"); see also U.S. Sup. Ct. R. 13(1) (stating, "a petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review")[.]

[Footnote 2] We observe that the 90^th day upon which to file a petition for writ of certiorari in the case sub judice fell on Monday, July 4, 2016, a federal holiday. Therefore, Appellant's judgment of sentence became final on Tuesday, July 5, 2016. See 1 Pa.C.S.A. § 1908 (stating that, whenever the last day of any period of time referred to in a statute "shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation"); see also 5 U.S.C.A. § 6103(a) (listing Independence Day, July 4, as a federal holiday).

According to the PCRA court docket, Appellant filed pro se the instant PCRA petition on July 10, 2017. The PCRA court subsequently appointed Thomas N. Farrell, Esquire ("Attorney Farrell") to represent Appellant. Thereafter, Attorney Farrell filed a series of motions for extensions of time to file an amended PCRA petition, which the PCRA court subsequently granted. On June 3, 2020, Attorney Farrell filed a motion to withdraw, as well as a Turner/Finley "no merit" letter.^[FN3] Motion to Withdraw, 6/3/20, at Exhibit 1. Attached as an exhibit to Attorney Farrell's motion to withdraw was a letter directed to Appellant stating that, upon

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