Commonwealth v. Roane

142 A.3d 79

COMMONWEALTH of Pennsylvania

v.Reginald ROANE, Appellant.

No. 2602 EDA 2014

Superior Court of Pennsylvania.

Submitted March 28, 2016.

Filed June 15, 2016.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Jessica D. Khan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

OPINION BY FORD ELLIOTT, P.J.E.:

Reginald Roane appeals from the August 15, 2014 order of the Court of Common Pleas of Philadelphia County denying his amended petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 –9546. We affirm in part, reverse in part, and remand for resentencing.

A previous panel of this court recited the following relevant facts:

... [T]he evidence established that at the time of his death, William Crandall lived alone at 3147 N. Carlisle Street in Philadelphia. For several years he was almost totally confined to a wheelchair. He was apparently a small dealer in drugs. Late in the evening of January 23, 1984, Maria Davis and her fourteen-month old daughter, Nicole[,] visited Mr. Crandall at his home. Ms. Davis was a neighbor of Mr. Crandall and assisted him with household chores. At approximately 10:15 p.m., while Mr. Crandall and Ms. Davis were playing cards, [appellant] and another man arrived at Crandall's apartment. [Appellant] indicated that he wanted to buy some marijuana. Ms. Davis admitted the two men and a third man who subsequently arrived at the apartment.

After Mr. Crandall handed a small paper bag to [appellant,] one of [appellant's] accomplices stated “This is a stick-up,” and wrapped his arm around Ms. Davis' neck in a choke hold, and placed a handgun at her back. [Appellant] simultaneously placed Mr. Crandall in a choke hold and stuck a handgun in his back. Crandall then pulled a handgun from his wheelchair and aimed it at the man who was holding Ms. Davis.

Nicole began to cry, and Ms. Davis begged her assailants to let her go to the child. She was thrown to the floor and placed her body over her child's. Her sight was diverted from [appellant] when she heard the sounds of a struggle and four or five gunshots erupt from the area where [appellant] and Mr. Crandall were. After the three men left, Ms. Davis called the police, as well as her brother who lived with her nearby.

Shortly after the incident, Ms. Davis identified each of the three men involved from photographs shown to her by the police. She told the police she did not know [ ] appellant. Several months after identifying [appellant's] photograph, Ms. Davis informed the police that she knew [appellant] as one of her gradeschool[sic] classmates, whom she had not seen for approximately six years prior to William Crandall's murder.

Commonwealth v. Roane, No. 1874 Philadelphia 1987, unpublished memorandum at 2–3, 544 A.2d 1044 (Pa.Super. filed April 12, 1988).

The PCRA court aptly summarized the long and complicated procedural history of this case:

[Appellant] was arrested on August 14, 1984 and charged with a range of offenses, including murder.[Footnote 1] On March 22, 1985 a jury presided over by the Honorable Juanita Kidd Stout, now deceased, found him guilty of second-degree murder, criminal conspiracy, robbery and possession of an instrument of crime (PIC). On April 1, 1985 trial counsel, Wallace Walker, Esquire, filed a Post–Verdict Motion, and was later allowed to withdraw from the case. Dale Miller, Esquire, was then appointed as [appellant's] new counsel and he amended the Post–Verdict Motion on October 14, 1986. Thereafter, on June 23, 1987, [appellant] was sentenced by Judge (later Justice) Stout to life imprisonment without the possibility of parole for second-degree murder and a concurrent five to ten years of incarceration on the criminal conspiracy charge, ten to twenty years of incarceration on the robbery charge, and two and one-half to five years of incarceration on the PIC charge. On June 25, 1987 [appellant] filed a timely Notice of Appeal and on April 12, 1988[,] the judgment of sentence was affirmed by the Superior Court in a memorandum opinion. [Footnote 2] On May 10, 1988 [appellant] petitioned the Supreme Court of Pennsylvania for allowance of appeal, but said petition was denied on January 31, 1989.^[1] [Appellant] did not seek certiorari before the United States Supreme Court, and his judgment of sentence therefore became final on May 1, 1989.

[Footnote 1] [Appellant] was charged with 18 [Pa.C.S.A.] § 2502(a) murder of the first degree; § 3701 robbery; § 3502 burglary; § 903 criminal conspiracy; § 3921 theft by unlawful taking; § 2504 involuntary manslaughter; and § 907 possession of an instrument of crime.

[Footnote 2] Memorandum Opinion, Commonwealth v. Roane, [1874 Philadelphia 1987], 378 Pa.Super. 651, 544 A.2d 1044 (Pa.Super. April 12, 1988).

On March 9, 1990 [appellant] timely filed his first PCRA petition pro se seeking to raise an ineffective assistance of trial and appellate counsel claim. Norris Gelman, Esquire, was appointed to represent [appellant] on April 27, 1990. On July 23, 1991, [appellant] filed a pro se amended petition. On March 3, 1992[,] the Honorable James D. McCrudden found that [appellant] was uncooperative with Mr. Gelman, permitted counsel to withdraw and ordered [appellant] to proceed pro se. On October 28, 1993[, appellant's] first and uncounseled PCRA petition was summarily dismissed on the merits by Judge Joseph I. Papalini. On November 19, 1993[, appellant] filed a pro se Notice of Appeal and Statement of Questions Raised on Appeal. On January 25, 1994, new counsel, Joseph J. Marinaro, Esquire, was appointed to represent [appellant] on the appeal. The Superior Court reversed the summary dismissal of [appellant's] first pro se PCRA petition on July 18, 1994. On remand Mr. Marinaro was instructed to amend the PCRA petition, which he did on October 25, 1994. Subsequently, on November 29, 1996 the Honorable Genece E. Brinkley, having been assigned the case, issued a notice of intent to dismiss [appellant's] PCRA, finding the issues meritless. Accordingly, on December 10, 1996, Judge Brinkley denied [appellant's] request for an evidentiary hearing and dismissed his first PCRA petition. The notice of the dismissal, however, was never filed or docketed in the Quarter Sessions file.

[Appellant] did not appeal Judge Brinkley's order, but subsequently filed three petitions in an attempt to revive his right to appeal the dismissal of his first PCRA petition. First, on December 9, 1997, [appellant] filed a second PCRA petition pro se. This second PCRA petition was formally dismissed as untimely by Judge Stout on June 2, 1998. Later, on June 30, 1998, [appellant] filed pro se Notice of Appeal from Judge Stout's dismissal which he subsequently withdrew on August 31, 1998. Second, on August 4, 1998, [appellant] filed a third pro se PCRA petition, which was his first petition for Writ of Habeas Corpus Relief, however the courts have no record of receiving it. Third , on July 19, 2000[, appellant] filed his fourth pro se petition and second petition for Writ of Habeas Corpus Relief, which the Superior Court has treated as an amendment to the original PCRA petition.

On December 16, 2000[,] the Defender Association of Philadelphia was appointed to represent [appellant]. The Defender Association filed an amended PCRA petition on November 27, 2001 seeking to reinstate [appellant's] right to appeal Judge Brinkley's December 1996 order dismissing his 1990 PCRA petition. An evidentiary hearing was held on May 7, 2003 before the Honorable Renee Caldwell Hughes to whom the case was then assigned. On May 15, 2003 [, appellant] filed a supplemental PCRA petition. In a May 27, 2003 order, which was amended and corrected on June 26, 2003, Judge Hughes disposed of Judge Brinkley's undocketed order and reinstated [appellant's] right to appeal, nunc pro tunc, the dismissal of his first PCRA petition.[Footnote 7] On June 20, 2003 and July 8, 2003[, appellant] filed a Notice of Appeal pursuant to Judge Hughes's order and served it upon Judge Brinkley. On October 6, 2003 after the Commonwealth appealed Judge Hughes's reinstatement of [appellant's] appellate rights, Judge Hughes issued a supporting opinion.

[Footnote 7] Judge Hughes found that the 2000/2001 PCRA petition was an extension of [appellant's] original 1990 PCRA petition.

On November 10, 2004[,] the Superior Court affirmed, in part, Judge Hughes's order, but remanded the case for an evidentiary hearing.[Footnote 11] On February 14, 2005[, appellant] requested an allowance of appeal to the Supreme Court of Pennsylvania, but said petition was denied on June 15, 2005.^[2] On December 5, 2006 [appellant] filed a supplemental amendment to his (original) petition for PCRA relief. On October 8, 2008 and January 26, 2009, pursuant to the Superior Court's order, an evidentiary hearing was held before Judge Hughes. Oral arguments were heard by Judge Hughes on May 28, 2009, but a decision was never rendered. Thereafter, upon Judge Hughes's retirement, [appellant's] case was transferred to this court on April 23, 2012. The original PCRA petition was again amended on August 20, 2012 and December 16, 2013. On May 10, 2012[,] this court listed the case for oral argument to occur on July 13, 2012, however, defense counsel requested that the matter be continued until the publication of decisions in pending appellate litigation relevant to issues raised by [appellant]. On July 16, 2014 this court found petitioner's layered ineffective assistance of counsel claims to be meritless. Accordingly, a Rule 907 notice of intent to dismiss the PCRA petition was issued. On July 31, 2014[, appellant] submitted a Response to 907 Notice seeking reconsideration of this court's decision. On August 15, 2014 [,] the PCRA petition was formally dismissed and [appellant] filed a Notice of Appeal to the Superior Court on September 8, 2014.

[Footnote

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