SEP 8, 2019, PHIL RAY, email@example.com
A federal magistrate judge has issued an addendum to a recommendation he made in mid-August, raising the possibly that a convicted Altoona drug dealer could end up with lower minimum prison sentence than he is now serving.
The inmate, Charles Bellon, 40, who is serving a 31- to 62-year sentence at the State Correctional Institution at Benner in Centre County, filed a federal appeal to his conviction and lengthy prison sentence.
The appeal was referred by U.S. District Judge Kim R. Gibson in Johnstown to federal Magistrate Judge Keith A. Pesto, who recommended Bellon’s challenge to his convictions be dismissed, but who also found that the maximum sentence imposed on 10 charges of possession with intent to deliver cocaine was above the maximum allowed under Pennsylvania law.
Bellon received a sentence of 7- to 14 years on each of the charges.
The maximum for the charges is 10 years, according to Pesto’s 17-page opinion, which was issued on Aug. 15.
His recommendation was that Blair County correct the illegal sentences within 120 days.
If the Blair County Court of Common Pleas does not correct the sentences on its own, Pesto is recommending a federal writ be ordered “to release (Bellon) from the judgment of sentence imposed by the Court of Common Pleas at those counts…”
The magistrate’s recommendation immediately raised questions, and Pesto held a follow-up telephone status conference Aug. 27.
Bellon is represented by attorney Todd M. Mosser of Philadelphia, and the prosecution is represented by by Pennsylvania Deputy Attorney General Christopher J. Schmidt.
The questions raised by the attorneys addressed whether Bellon’s minimum sentence on each of the 10 counts must also be lowered to no more than half the new maximum, meaning the highest minimum he could receive on a new 10-year sentence would be five years.
The attorneys also questioned if the new sentence maintains the minimum of seven years with a maximum of 10 years, and whether or not the ordering of a corrected sentence means Bellon has the right to argue for an entirely new sentence.
Pesto, in his latest recommendation, pointed out that state law requires that the maximum sentence be at least twice the minimum sentence. He gave an example, stating a 1- to 5-year sentence is permissible but a 3- to 5-year sentence would not be.
His opinion noted that the prosecution attorney believes the state sentencing code would permit a new sentence of 7 to 10 years on each charge.
Bellon’s attorney argued during the status conference that when a sentencing scheme is vacated, the defendant has the opportunity to seek a lower overall sentence.
Pesto noted that his recommendation does not address these two issues.
“I do not think they are within the scope of (the federal court),” he stated.
A guiding principle is that federal courts should grant the relief in cases like Bellon’s with “the least intervention into the state criminal process,” he stated.
However, addressing the Bellon case, he said the sentencing of a defendant to a maximum sentence not permitted under law “is a clearcut due process violation under the Fourteenth Amendment. …”
The idea of a minimum sentence is a “creature of state law,” Pesto concluded.
He reasoned it will be up to the state courts to resolve the issues in the Bellon case.
The attorneys have until the end of next week to comment on Pesto’s latest ruling, after which the magistrate’s recommendation will go to Judge Gibson for final determination.
Bellon was charged with operating a cocaine distribution ring in Blair, Cambria and Huntingdon counties from 1992 to 2001.
Senior Judge Hiram A. Carpenter of Blair County sentenced Bellon to 31 to 62 years after his Aug. 7, 2006, conviction on 17 offenses.
Brandon Olivieri killed two other teens, including one of his own friends, in a 2017 shooting that left a South Philadelphia community both outraged and heartbroken
By NBC10 Staff • Published July 22, 2019 • Updated on July 22, 2019 at 5:45 pm
What to Know
- Olivieri, now 18, was 16 at the time of the shooting in 2017.
- The teenage killer, convicted in May 2019, has spent much of his time in prison in isolated confinement for his safety.
- He shot a neighborhood rival following an ongoing squabble, as well as one of his own friends.
A man who as a juvenile shot and killed two other boys in a squabble that ripped apart a South Philadelphia neighborhood has been sentenced to at least 37 years in prison.
Brandon Olivieri, now 18, shot a neighborhood rival Sal DiNubile during a struggle on the street Oct. 24, 2017. Olivieri also shot his own friend, Caleer Miller, during that struggle over the handgun.
Both victims were 16 years old at the time, as was Olivieri.
In May this year, Olivieri was convicted of first-degree murder for DiNubile’s killing and third-degree murder for Miller’s death.
At sentencing Monday, a judge gave Olivieri 35 years to life in prison for the first-degree charge and two to four years for the third-degree charge.
- Jury Finds South Philly Teen Guilty of Murdering Fellow Teens in 2017
- South Philly Teen, 16, Held for Court on Murder Charge in Deaths of Two Other Teens
- Teen, 16, Surrenders to Police in Slayings of 2 Boys in South Philadelphia
Olivieri tearfully surrendered to police three days after the shooting. Around the same time, an internal police bulletin with his name, photo and address was leaked to a local Facebook group. A few hours later, a gunman riddled Olivieri’s home with bullets.
Defense attorney James Lammendola said at the time that Olivieri’s parents were “scared out of their minds that their house was shot” and he also feared for their son’s safety.
Olivieri has spent much of his time in isolated confinement while imprisoned the last 21 months, according to the court docket.
The three-day trial ended May 17 after a jury deliberated for just three hours.
by Mensah M. Dean, Posted: November 3, 2017
A Philadelphia judge on Friday threw out a murder conviction and sentence of a man who has been behind bars since 2008, ruling that the homicide detective who arrested him fabricated evidence and provided trial testimony that was so prejudicial it should have resulted in a mistrial.
The ruling by Common Pleas Court Judge M. Teresa Sarmina was the answered prayer that Dwayne Thorpe, 34, and his family had been seeking for years, while it was the latest blow to Detective James Pitts, who for years has been accused in lawsuits, court filings, and police Internal Affairs reports of using heavy-handed interrogation methods to coerce statements from suspects and witnesses.
The Inquirer and Daily News reported earlier this week that the city paid $750,000 to settle a lawsuit brought by a West Philadelphia man named Nafis Pinkney whom a jury acquitted of a 2009 double murder to which Pitts and his partner had coerced Pinkney to confess to committing.
During his 2013 trial, Pinkney testified that he signed a false confession statement after a 24-hour interrogation session during which the detectives assaulted him. Another man has since confessed to committing the slayings, but has yet to be charged.
Pitts, who did not attend Friday’s hearing, joined the Police Department in 1989 and was promoted to the Homicide Unit in 2006. In seven lawsuits in which he was a defendant, the city has paid or been ordered to pay plaintiffs more than $2.5 million, according to court and city records.
City payroll records show that Pitts last year was paid $177,671, including $97,034 in overtime.
Attempts to reach police officials for comment on the ruling were not successful.
Thorpe’s mother, Michelle Evans, reacted with a combination of shock and joy to the judge’s ruling Friday.
“I’m just dumbfounded,” she said. “I don’t know how I feel. I’m just glad that the judge saw through Detective Pitts’ manipulation. He seems to have a record of destroying lives and families, forcing statements and manipulating cases. He should be off the force for being a crooked cop. Now my son has a chance at a fair trial.”
Sarmina’s ruling, which followed a Post Conviction Relief Act hearing that took place over four days in June, gives the Philadelphia District Attorney’s Office 30 days to decide whether to appeal. Meanwhile, Thorpe remains behind bars. The office could decide not to retry the case, a decision that likely would be made by the winner of next week’s district attorney election. Office spokesman Cameron Kline declined to comment, saying the judge’s formal order had not yet been released.
Attorney Todd Mosser, who represents Thorpe, said that his client was nowhere near the July 4, 2008, murder for which he was convicted, and that he’d find it hard to believe that the District Attorney’s Office would stand by the tainted detective.
“I would hope they wouldn’t appeal,” Mosser said. “I would hope they wouldn’t continue to defend this detective. If they don’t appeal, or if we’re successful in the appeal, he’ll get a new trial. And quite frankly, given the sheer volume of cases involving this detective, I think it’s pretty obvious there’s a problem here.”
Mosser said the path to Friday’s ruling began when he read a November 2013 Daily News article that examined the cases of three people whom Pitts and his partner had arrested on murder charges but who ultimately were exonerated. “I added to that by finding 10 people who testified to their experiences with Pitts,” Mosser said Friday.
The judge heard testimony from eight of those people in June and had written testimony from two others. They corroborated Thorpe’s claims against Pitts, Mosser said.
“Ten witnesses who have no relation to each other [except two] all say the same thing — that Det. Pitts uses force, bullying, threats, and coercion to attempt to secure statements from people. It strains credulity to accept the notion that all ten witnesses fabricated allegations that in large part are consistent with each other and tell the same story about this detective,” Mosser wrote in a brief to the court after the June hearing.
Thorpe was convicted of the July 4, 2008, shooting death of Hamin Span in the 2000 block of Elkhart Street in Kensington. The gunman, described by witnesses as about 18 years old, used his right hand to fire a handgun at the fleeing Span. Thorpe, who was 25 at the time, has a stocky build, is left-handed, and was more than a mile away attending a block party hosted by his family in the 800 block of North 10th Street in North Philadelphia, according to four relatives’ testimony.
Thorpe became a suspect in Span’s slaying when the victim’s brother, who witnessed the shooting, told police the gunman ran into an apartment in the 3000 block of Frankford Avenue. After finding a picture of Thorpe posing with another male in the apartment, they interviewed the apartment owner’s boyfriend, Allen Chamberlain, a close friend of Thorpe’s.
Although Chamberlain knew nothing of the murder, Mosser said, when he was taken downtown for questioning, Pitts threatened to arrest him, said he would take his young son away, and punched him in the face and stomach. The interrogation resulted in Chamberlain signing a statement implicating Thorpe as the gunman. At Thorpe’s trial, Chamberlain disavowed his statement.
“He was very forceful with me in his insistence that he never said what Pitts said he said,” Mosser said of Chamberlain.
Sarmina ruled that the testimony of those who recounted Pitts’ misconduct was newly discovered evidence, Mosser said. She ruled that Thorpe had ineffective counsel during his 2009 trial because his attorney failed to seek a mistrial when Pitts testified about drugs and guns that had nothing to do with the case, and because Pitts testified that Thorpe had a prior arrest record, which should not have been mentioned in front of the jury.
If a new trial takes place, the judge ruled, city prosecutors would not be allowed to mention guns and drugs, or Thorpe’s prior arrest, or to use the statement Pitts took from Chamberlain, which the jury heard despite his recantation.
by Mensah M. Dean, Updated: March 27, 2019
A Philadelphia man who has served 10 years of a life sentence without parole for a 2008 murder in Kensington, and who claims he was framed by a tainted city homicide detective, was ordered released from state prison Wednesday after the District Attorney’s Office withdrew the charges.
Dwayne Thorpe, 35, had maintained his innocence since his 2008 arrest in the fatal shooting of Hamin Span in the 2000 block of Elkhart Street on July 4 that year. He won the right to a new trial in 2017 after making his allegations against the detective, James Pitts.
In throwing out the murder conviction in November 2017, Common Pleas Court Judge M. Teresa Sarmina ruled that a statement Pitts took from witness Allan Chamberlain that led to Thorpe’s arrest was coerced, and that testimony Pitts provided during the trial was prejudicial.
The District Attorney’s Office could have tried Thorpe again next month, but prosecutors Wednesday told Common Pleas Court Judge Gwendolyn Bright in front of 15 of his relatives that the office wanted to drop the charges, and the judge granted the request.
Ben Waxman, spokesperson for District Attorney Larry Krasner, said the office had determined that the key evidence in the case was “based on a suggestive photo array.”
“We’re duty bound to only prosecute cases where we believe that we can prove guilt beyond a reasonable doubt, and that standard was not met in this case,” Waxman said.INQUIRER MORNING NEWSLETTER
Thorpe’s attorney, Todd Mosser, said two photo arrays that Pitts showed a 15-year-old witness to the murder were highly suggestive because Thorpe was the only man out of 16 who did not have a dark complexion. The witness, Nafis Robinson, was the half brother of the murder victim.
Assistant District Attorney Michael Garmisa on Wednesday cited the suggestive nature of the photo arrays and Robinson’s reluctance to come to court again among the reasons his office decided to drop the case.
“I think they deserve credit for recognizing that the case should have been dismissed,” Mosser said of the DA’s Office. “They did an extraordinary amount of work re-investigating the case and they came to the right conclusion.”
Mosser, who represented Thorpe pro bono, presented evidence from 10 unrelated cases in which Pitts allegedly used coercive tactics to get witnesses to make false statements.
Chamberlain, a friend of Thorpe’s, alleged during the trial that Pitts had punched him in the stomach and threatened to take his son away if he did not give a statement saying Thorpe told him that he was going to shoot someone hours before the killing of Span.
Pitts recently was reassigned to a position in which he has no contact with the public.
Thorpe’s mother, Michelle Evans, expressed joy at the decision to free him.
“I’m just overwhelmed, I’m happy,” Evans said in an interview. “I never stopped believing in God and that the DA would do the right thing. I’m just disappointed in the Philadelphia Police Department having Detective Pitts on the force. He’s allowed to destroy lives and families.”
Evans said that her son recently became a follower of Islam and is looking forward to putting prison behind him, but she’s concerned that a decade behind bars will impact his ability to find employment.
“I pray my son is able to make it out here, because it’s so hard for the black man,” she said. “I pray my son is able to come out and take care of himself, take care of his daughter, and be loving to his family. But that’s my boy. I love him and I never gave up on him.”
Information on Appeals
- Mosser submits brief on behalf of Lt. General Michael Flynn (at 21:45)
- Man convicted of drug offenses entitled to new sentencing
- Appeal for man convicted of two homicides
- New trial for man who was set u
- Man exonerated after fabricated evidence discovered
- Filing an Appeal for a Civil Court Decision
- Filing an Appeal for a Family Court Decision
- How the PCRA Process Works in PA
- Federal Courts and the Federal Appeals Process
- Pennsylvania Criminal Appeals
- Federal Criminal Appeals
- Fees And Costs Associated With Appeals In Pennsylvania
- Limited Right To Appeal To The Highest Appellate Court
- State And Federal Courts In Pennsylvania
- Filing Deadlines And Other Things To Help Win An Appeal