Commonwealth v. Travaglia

723 A.2d 190, 1998 Pa. Super. LEXIS 4198
CourtSuperior Court of Pennsylvania
DecidedDecember 15, 1998
StatusPublished
Cited by11 cases

This text of 723 A.2d 190 (Commonwealth v. Travaglia) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Travaglia, 723 A.2d 190, 1998 Pa. Super. LEXIS 4198 (Pa. Ct. App. 1998).

Opinions

JOYCE, J.:

Appellant, Michael J. Travaglia, appeals from the Order of the trial court denying his motion to bar re-sentencing. For the reasons set forth below, we affirm. During a seven (7) day period beginning at the end of December, 1979 and ending on January 3, 1980, Appellant participated in four (4) separate murders. Three (3) murders were committed in Indiana County and one (1) in Westmoreland County. The three (3) murders in Indiana County occurred on December 28,1979, January 1,1980 and January 3, 1980. John Lesko participated in all the murders and Richard Rutherford accompanied Appellant and Lesko in the last two (2) murders. The relevant facts and procedural history of this case are as follows.

On December 27 and continuing into December 28 of 1979, Appellant and John Lesko kidnapped Peter Levato and stole his automobile. They drove Levato to a remote area where they proceeded to throw him off a bridge. When Levato did not die, Appellant and Lesko searched for him and ultimately shot him to death with a handgun. Appellant pled guilty.

On January 1, 1980, Marlene Newcomer offered Appellant and Lesko a ride. They robbed her and shot her with the same handgun used to kill Levato. Appellant pled guilty.

In the late evening hours of January 2, 1980, Appellant, accompanied by John Lesko and Richard Rutherford, kidnapped William Nichols. They stole Nichols’ vehicle and forced him to ride along with them. During [192]*192the course of the ride, Appellant shot Nichols in the arm, repeatedly punched him and taunted him with a knife. After losing consciousness, Nichols was gagged and taken to a wooded location in Indiana County where he was handcuffed and his feet bound. Appellant and Lesko dragged Nichols down to a lake and rolled him into the water where he subsequently drowned. Appellant pled guilty to this murder.

In the early morning hours of January 3, 1980, Apollo, Westmoreland County, police officer Leonard Clifford Miller saw the trio speed past his car in the vehicle stolen from Nichols. Officer Miller pursued them and eventually forced the vehicle off the road. Appellant shot Officer Miller twice as he approached the vehicle, killing him. Appellant and Lesko were arrested on January 3, 1980, after police officers investigating a string of murders connected to Appellant, located the stolen Nichols’ vehicle. Appellant was charged with the murders of Leva-to, Newcomer and Nichols in Indiana County. He was also charged with the murder of Officer Miller in Westmoreland County. Appellant pled guilty to the three (3) Indiana County murders. However, the Westmore-land County murder conviction has had a long and tortured procedural history lasting sixteen (16) years.

Initially, Appellant and Lesko demanded a jury trial in Westmoreland County, following which both were found guilty of first degree murder. Appellant was sentenced to death on June 4, 1982. Appellant’s judgment of sentence was affirmed by the Pennsylvania Supreme Court and certiorari was denied in Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert, denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).

Appellant filed his first petition for post-conviction relief and a hearing was held in September of 1985. His petition was denied on October 4, 1985. This Court affirmed in Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (Pa.Super.1986), appeal denied,. 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).

Governor Casey signed an execution warrant on June 8, 1990. A petition to stay execution was filed by Appellant in the federal court and granted by Judge Bloch on September 9, 1990 to allow Appellant time to file a petition for a' writ of habeas corpus. Appellant filed a second petition for post-conviction relief and a hearing was held in March of 1992. The trial court denied the petition on May 19, 1993. Appellant directly appealed to the Supreme Court, which affirmed and certiorari was denied in Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

Appellant filed a supplemental petition for habeas corpus on May 21, 1996. Judge Bloch of the federal district court remanded for re-sentencing finding that the evidence of the Indiana County guilty plea in the Nichols case should have been excluded based on the plea agreement entered into by the parties. All other requested relief was denied. Appellant thereafter filed an omnibus pre-trial motion with the trial court seeking to bar re-sentencing based on the Supreme Court’s decision in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1994). The trial court denied this motion on December 16, 1997, however, the court granted Appellant the right to file an immediate appeal. This timely appeal followed.

Appellant raises the following issues for our review: (1) whether re-sentencing Appellant in the Westmoreland County murder is barred by the application of 18 Pa.C.S.A. § 110 and the holding in McPhail', (2) whether the evidence surrounding the Nichols murder should be excluded at re-sentencing based on the plea agreement; (3) whether the alleged comments of then District Attorney A1 Nichols that he would not seek the death penalty in the event of a retrial precluded seeking the death penalty instantly; (4) whether the 1988 amendments to 42 Pa.C.S.A. § 9711(h)(4): (a) violate equal protection rights of Appellant in that they inappropriately require certain defendants to face the death penalty based on the erroneous decision of the state court prior to the amendments; (b) violate due process rights; (c) constitute an ex-post facto law; (5) whether the Pennsylvania sentencing statute violates due process by permitting the imposi[193]*193tion of the death penalty in an arbitrary fashion at the prosecutor’s discretion; and (6) whether- the designation of law enforcement officers, as set forth in 42 Pa.C.S.A. § 9711(d)(1), as an aggravating circumstance, arbitrarily and inappropriately places a higher worth on the value of their lives violating equal protection.

Appellant contends the trial court erred in finding 18 Pa.C.S.A. §110 and the Supreme Court’s recent holding in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (Pa.1994) does not apply to the case at bar.1 Although the trial court found that all of the requirements of McPhail were met, the court determined that the holding did not apply retroactively. We find that the court properly determined that McPhail does not apply, however, we base our decision on a finding that Appellant’s acts did not fall under the statutory definition of a single criminal episode.2

Section 110 provides, in relevant part, as follows:

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Commonwealth v. Travaglia
723 A.2d 190 (Superior Court of Pennsylvania, 1998)

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Bluebook (online)
723 A.2d 190, 1998 Pa. Super. LEXIS 4198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-travaglia-pasuperct-1998.