Pennsylvania Superior Court has denied a request by a former Huntingdon County man seeking to overturn his conviction and life sentence for a 1985 murder.
Kim Lee McMullen, now 59, has argued over the years that he was unlawfully convicted of the 1985 murder of Dominic Barcelona, 30, whose body was found in Black Rock Creek in February 1985.
McMullen was also tried and found guilty of the burglary of the Grocery Box Store in Orbisonia, near a bridge spanning the creek.
Police speculated that Barcelona on the night of February 23 saw McMullen exit the Grocery Box following a burglary.
McMullen, it was argued, pushed Barcelona off the bridge and the victim drowned.
The first report concerning the death was “accidental drowning”.
This decision remained unchanged for several years before the police, on the basis of a tip, reopened the investigation and questioned McMullen, who was in prison for another offense.
McMullen admitted to being at the scene but denied having any part in Barcelona’s death.
In 1990, a jury found him guilty of burglary and second-degree homicide, but on reviewing the case, the Superior Court upheld the burglary verdict but overturned the murder finding because there was no had no evidence that Bacelona had been the victim of murder – based on the cause of death that remained “accidental drowning”.
This led to the exhumation of the body and a re-determination that Barcelona had been victims of homicide.
McMullen challenged the decision to retry him for homicide based on the constitutional prohibition against trying a suspect twice for the same crime – double jeopardy.
The state police investigation placed McMullen at the scene of the crime by his own statement and ruled out McMullen’s claim that another man threw the victim off the bridge.
In 1999, McMullen, in a second trial, was again found guilty of
second degree murder and sentenced to life in prison.
Since then, he has repeatedly and unsuccessfully challenged his murder conviction in the Superior Court of Pennsylvania, the Commonwealth Court, the Supreme Court of Pennsylvania, the United States District Court and the 3rd Court of Appeals of the United States. United States circuit.
A Superior Court panel of Justices Mary Jane Bowes, Carolyn H. Nichols and Daniel D. McCaffery late last week dismissed McMullen’s latest appeal in which he sought a review of his case based on the ineffective assistance of a lawyer and double jeopardy.
In his August 9, 2021 motion, McMullen requested a re-examination of the facts of the case, but Cumberland County Senior Judge Kevin A. Hess ruled that McMullen’s re-appeal was not timely filed. .
The inmate, who is serving his sentence at Huntingdon State Correctional Institution, challenged the statute of limitations for filing appeals as a curtailment of his due process and right to effective counsel.
He asked the Superior Court to reopen his case based on a legal precedent established in 1988.
Did the trial court err when it departed from the standard of fairness, law and justice, he asked.
The Superior Court, however, upheld Judge Hess’ finding that these issues had been raised and answered on previous occasions and upheld Hess’ decision that McMullen’s last filing was premature.
In McMullen’s case, Hess had ruled, under Pennsylvania law, that McMullen had until December 26, 2001 to file a post-conviction motion.
He did not file the current lawsuit, which Hess says was a post-conviction motion, until August 9, 2021, more than 19 years after his case was supposedly closed.
The Superior Court, in its review, pointed out that there are exceptions to the statute of limitations rule, but McMullen did not cite any of the exceptions.
His appeal was also vague because he did not know which of his four attorneys during his case was ineffective, according to the Superior Court.
McMullen also argued that a “structural error” in his case proceeded to a second murder trial, but as the Superior Court found, “he did not explain what ‘structural error’ he was talking about.
“Insofar as the structural error related to his dual criminality claim, this issue has been addressed by the trial court and this court on several occasions,” according to the judgment of the Superior Court.
McMullen also claimed that he was only informed of the exhumation of the victim’s body for a second autopsy after it was completed.
This argument, as an alleged infringement of McMullen’s rights, was dropped, the Superior Court ruled, because it was a new issue that was never presented to the judge who considered his appeal and therefore constituted a violation of legal process.