Opinion
CIVIL ACTION NO. 03-3821
March 16, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a counseled Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution in Hunlock Creek, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Following a jury trial presided over before the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, petitioner and his co-defendants, Bernard Bennett and Brian Young, were convicted, on September 12, 1997 of murder in the first degree, conspiracy, attempted murder and possession of an instrument of crime. Petitioner was sentenced to life imprisonment without parole on the murder charge, together with concurrent terms of 8-20 years for attempted murder and 5-10 years for conspiracy. No separate sentence was imposed on the possession of an instrument of crime conviction. On December 11, 1997 and January 18, 1998, Judge Greenspan denied post-verdict motions and post-sentence motions respectively.
Petitioner retained new counsel and appealed to the Pennsylvania Superior Court raising four claims challenging the effectiveness of his counsel: (1) failure to "counter" rebuttal evidence introduced by the Commonwealth concerning a statement allegedly made by appellant to two inmates while in prison; (2) failure to object to the "impermissible use of Biblical quotations" by the Commonwealth during closing argument; (3) failure to object to the admission of "other crimes" evidence; and (4) failure to object to allegedly erroneous jury instructions. The Superior Court affirmed on May 28, 1999, finding no merit to any of petitioner's claims. Commonwealth v. Brown, 739 A.2d 582 (Pa.Super. 1999) ("Superior Court Opinion (1999)"). The Pennsylvania Supreme Court thereafter denied petitioner's request for allowance of appeal on January 14, 2000.Commonwealth v. Brown, 749 A.2d 465 (Pa. 2000). The United States Supreme Court declined to grant certiorari on June 12, 2000, making petitioner's convictions final. Brown v. Pennsylvania, 530 U.S. 1234, 120 S.Ct. 2670 (2000).
By way of a petition filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., petitioner sought collateral relief on December 5, 2000, The PCRA court appointed counsel, who thereafter submitted both an amended petition and a supplemental amended petition. Following an evidentiary hearing, the PCRA court, on November 30, 2001, denied relief. ("PCRA Court Opinion (2001)"). On appeal, petitioner raised the following issues for consideration: (a) whether appellate counsel was ineffective for failing to preserve the issue of trial counsel ineffectiveness for failing to object or seek a cautionary instructions due to a series of comments by the prosecutor focusing on petitioner's decision not to testify; (b) whether the PCRA court erred in dismissing petitioner's after-discovered evidence claim without taking testimony from a witness who wished to recant his trial testimony; (c) whether appellate counsel was rendered ineffective by lack of subpoena power to substantiate his client's claims; and (d) whether appellate counsel was ineffective for failing to preserve the issue of trial counsel's ineffectiveness for failure to impeach the Commonwealth's only substantive witness with prior inconsistent statements. The Superior Court affirmed on November 26, 2002. Commonwealth v. Brown, 816 A.2d 325 (Pa.Super. 2002) ("Superior Court Opinion (2002)").
Petitioner filed a pro se Petition for Writ of Habeas Corpus on June 26, 2003. Subsequently, on September 23, 2003, petitioner, represented by counsel, filed an amended memorandum of law in support of his habeas petition, setting forth the following claims:
1. The PCRA court erred in refusing to hold an evidentiary hearing on the claim of recantation by Jermaine Brute;
2. Ineffective assistance of trial counsel for:
a. Failure to get the hard copy of computer records that would have conclusively demonstrated that the testimony of jailhouse informant, Jermaine Brute, was false;
b. Failure to object to a closing argument directed to the passions and prejudices of the jury;
c. Failure to object to the admission of irrelevant evidence and other crimes evidence;
d. Failure to object to the prosecutor's comments focusing on the petitioner's decision not to testify;
e. Failure to impeach Jermaine Brute with prior inconsistent statements;
3. Appellate counsel was rendered ineffective by state action;
4. Petitioner was denied due process in connection with the supplemental charge on accomplice accountability and conspirator liability;
5. Petitioner was denied due process in connection with the chance to prove that the testimony of Jermaine Brute was totally false.
II. FACTUAL BACKGROUND
The underlying facts surrounding petitioner's arrest and conviction were summarized by the Pennsylvania Superior Court on appeal of petitioner's PCRA petition, as follows:
On January 23, 1996, off-duty police Officers Kyle Bey and Robert Porter stopped at a bar in West Philadelphia. The defendants, Bernard Bennett, Brian Young and Dwayne Brown were seated at a table in the back of the establishment with two young women. Following a brief altercation, during which Officer Bey accidentally knocked over a chair that brushed Young's leg, the Officers left the bar and returned to Officer Porter's Nissan Pathfinder, which was parked outside of the bar. At trial, Officer Bey testified that he saw the three defendants leave the bar and get into a green Jeep Cherokee. Brown was the driver, Bennett was seated in the front passenger seat and Young was in the rear. Officer Bey pulled into the intersection and proceeded on 38th Street. Shortly, thereafter, the defendants' Jeep pulled along side the Pathfinder and Young fired eight shots into the car, fatally shooting Officer Porter. After the incident, Brown sped away, exited the highway and turned north on 29th Street with five police cars in pursuit. Several blocks later, Brown's vehicle crashed. Bennett fled from the vehicle on foot. The police arrested Defendants Brown and Young. During the arrest, Brown claimed that he did not know why he was being taken into custody, protesting that he had only been involved in an "auto accident." Brown also exclaimed that he did not know anything "about anybody getting shot at a bar." Police arrested Bennett in Wilmington, Delaware several weeks after the shooting.
Subsequently, during a joint trial the Commonwealth presented the testimony of Jermaine Brute, a jailhouse informant, who testified that he and several others were in the company of Brown at Philadelphia County Prison when Brown admitted to killing Officer Porter.
Superior Court Opinion (2002), at 2-3.
III. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for writ of habeas corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court, as follows:
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
The United States Supreme Court, in the case of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded to state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Williams, 529 U.S. at 404-405. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States." A state court decision can be contrary to Supreme Court precedent in two ways: 1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. The Court explained, however, that this "contrary to" clause does not encompass the "run-of-the-mill state-court decisions" applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: 1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or 2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply." Williams, 529 U.S. at 407-408. Under this clause, however, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly-established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
IV. MERITS
A. Whether the PCRA Court Erred in Refusing to Hold an Evidentiary Hearing on the Claim of Recantation by Jermaine Brute and Whether Petitioner Was Denied Due Process in Connection with the Chance to Prove that the Testimony of Jermaine Brute was Totally False
In his first two challenges to his conviction, petitioner focuses on the trial testimony of Jermaine Brute and his subsequent recantation. Brute testified during petitioner's trial that, while he and petitioner were in prison together, petitioner confessed that he had "slumped a cop," that he was going to "beat the case," and that "it's cop killing season and we're holding court out in the world." (N.T. 9/16/97, 108-113, 121). Following the conviction, defense counsel hired a private investigator, who produced a signed, but unsworn affidavit from Brute recanting his testimony at trial that petitioner admitted participation in the killing of Officer Porter. In that affidavit, he explained that his testimony at trial was the product of the threats of homicide detectives and prosecutors.
Raising this "after-discovered exculpatory evidence" in his PCRA petition, petitioner sought an evidentiary hearing. The PCRA court, however, having already held an evidentiary hearing on multiple other claims, noted that this evidence was not of such a nature that a different verdict would result if a new trial were granted. It explained that the evidence against petitioner was overwhelming, as petitioner clearly drove the Jeep in pursuit of Officers Porter and Bey until his co-defendant murdered Officer Porter, then drove away from the scene until the vehicle crashed and, when apprehended, claimed to know nothing about a shooting. In addition, the court remarked that recantation is an extremely unreliable form of proof, especially where Brute's recantation admits his trial testimony involved perjury. As such, it concluded that it was "hardly satisfied that Mr. Brute's recent statement contradicting his trial testimony is true." On appeal, the Superior Court affirmed this decision.
Petitioner now sets forth two arguments with regard to his after-discovered evidence. First, he asserts that the PCRA court erred in failing to provide an evidentiary hearing during which he could present Jermaine Brute as a witness. Second, he contends that the absence of a hearing on his after-discovered evidence claim results in a denial of due process.
Petitioner's first allegation is simply not cognizable in this court. Section 2254 permits a district court to consider a habeas petition only where the petitioner asserts a "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). A state court's decision to deny a request for an evidentiary hearing in post-conviction proceedings, however, is a matter of state law. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001) ("[t]he right to an evidentiary hearing on a post-conviction petition is not absolute."). A federal court thus cannot provide habeas relief where a petitioner challenges only the state court's denial of a hearing under state law.See Engle v. Issac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567 (1982) (federal habeas relief not available for violations of state law); Nwanze v. Hahn, 97 F. Supp.2d 665, 668 (W.D. Pa. 2000) (same).
Petitioner's alternative argument, however, merits further discussion. As noted above, he contends that he was denied his due process rights in connection with the chance to prove that the testimony of Jermaine Brute was totally false and is thus entitled to a federal evidentiary hearing. Our jurisprudence is clear that if the federal habeas court determines that petitioner failed to develop the state court record, petitioner is barred from a federal evidentiary hearing unless he can overcome the stringent standard set forth in Section 2254(e)(2)(A) and (B). Williams, 529 U.S. at 433; Porter v. Horn, 276 F. Supp.2d 278, 297 (E.D. Pa. 2003). If, on the other hand, the habeas petitioner "has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court, § 2254(e)(2) will not preclude an evidentiary hearing in federal court." Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001) (quoting Cardwell v. Greene, 152 F.3d 331, 331 (4th Cir. 1998)). Even when such a hearing is permitted, however, federal courts retain the discretion over whether to hold an evidentiary hearing or not. Id."In exercising that discretion, courts should `focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim.'" Id. "A district court must hold a hearing if the petitioner has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of the allegations." Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir.), cert. denied, 302 U.S. 902, 112 S.Ct. 280, reh'g denied, 502 U.S. 1000 (1991). "However, bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing." Id.
In the case at bar, although petitioner diligently sought a hearing on the issue, the state court explicitly found that Brute's recantation of his trial testimony, as set forth in an unsworn affidavit, was unreliable based on the Pennsylvania Supreme Court's statement that "recantation is one of the least reliable forms of proof."Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995). While state court findings of fact are normally given a presumption of correctness under 28 U.S.C. § 2254(e)(1), we are troubled by the fact that the state court failed to hold an evidentiary hearing and to observe Brute testify, as a basis for that determination. Repeatedly, the Pennsylvania courts have found that while recantation may be among the most unreliable forms of evidence, such evidence should still be adjudged by way of a live evidentiary hearing. See, e.g., Commonwealth v. Gaddy, 424 A.2d 1268, 1270 (Pa. 1981) (appellate court will not disturb trial court's credibility finding regarding recanting witness where lower court had ample opportunity to observe his manner and demeanor during a full evidentiary hearing); Commonwealth v. Williams, 732 A.2d 1167, 1180 (Pa.Super. 1999) (while a credibility-based dismissal of a petitioner's claims involving recantation might be appropriate under some set of circumstances without the necessity of an evidentiary hearing, a court must ordinarily make an independent credibility determination);Commonwealth v. Bernstein, 455 A.2d 1232, 1234 (Pa.Super. 1981) ("[w]e realize that recantation testimony is considered extremely unreliable . . . [t]he issue of credibility can better be resolved, however, when the trial court conducts a full evidentiary hearing and is thereby able to observe the manner and demeanor of the witness as he delivers his recantation testimony in an adversary proceeding."); see also Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127 (1989) (deference to be given to state court credibility finding on recantation testimony where state court held full evidentiary hearing) Collectively, this jurisprudence emphasized the importance of observing witness demeanor prior to adjudging credibility. In light of this law, we simply cannot defer to a finding made by the state court when it stood in no greater vantage point as to Brute's credibility than this Court.
Indeed, we find it notable that in McCracken, the very case cited by the PCRA court for the proposition that recantation testimony is unreliable, the Pennsylvania Supreme Court upheld the trial court's finding that the witness recantation was a sufficient basis for the grant of a new trial. McCracken, 659 A.2d at 551. In originally granting the new trial, the trial court stated that although the recanting witness was no "paragon of truth," having had the opportunity to listen to the testimony and observe the demeanor of the witnesses, "there are thing's which [it] can find which might come as a surprise to those who have not heard the actual testimony and seen the actual witnesses testify." Id. at 548-549.
Notwithstanding that fact, we note that the state court also denied petitioner's claim on alternate ground that there existed substantial other evidence of his guilt and that Brute's recantation was not of such a nature that a different verdict would result if a new trial were granted. The question then arises as to whether this remaining evidence was, in fact, sufficient to support the verdict. "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction. . . . does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 309, 318-319, 99 S.Ct. 2781, 2788-2789 (1979) (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486 (1966)). Rather, "[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original).
Pursuant to this deferential standard of review, we cannot find that the state court's determination is either contrary to or an unreasonable application of federal law. The record remained uncontradicted that petitioner drove the Jeep in pursuit of Officer Porter's car, positioned the Jeep so that his co-defendant could make a clean shot, and then fled the scene. Thereafter, after causing serious damage to the vehicle, he crashed. When he and Young were apprehended, and after Bennett fled on foot, petitioner denied knowledge of any shooting. Undoubtedly, in light of the deliberate actions taken by petitioner, a rational juror could easily infer from these facts that petitioner possessed a shared specific intent to kill with his co-defendants, even absent the testimony of Jermaine Brute. Petitioner has thus failed to allege facts that mandate the holding of an evidentiary hearing Zettlemoyer, 923 F.2d at 301. As such, we deny habeas relief on this claim.
B. Ineffective Assistance of Counsel Claims
Via his next claim for habeas relief, petitioner presents a series of challenges to the effectiveness of his trial and appellate counsel. Having considered each of these allegations, the Court declines to grant the petition.
1. Standard for Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, reh' g denied, 467 U.S. 1267, 104 S.Ct. 3562 (1984), the Supreme Court set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 107, 76 S.Ct. 158, 163-164 (1955)). A convicted defendant asserting ineffective assistance must, therefore, identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. The reviewing court must then determine whether, in light of all circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. It is well-established that appellate counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. at 691; Holland v. Horn, 150 F. Supp.2d 706, 730 (E.D. Pa. 2001).
Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. It requires a demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. 2. Failure of Trial Counsel to Get the Hard Copy of Computer Records
Petitioner contends that the state courts applied the wrong standard when reviewing his ineffective assistance of counsel claims. We find absolutely no merit to this contention. Both on direct appeal and during PCRA review, the state courts applied a three prong test for evaluating these allegations: (1) the underlying claim must have arguable merit; (2) defense counsel must have had no reasonable basis for undertaking or failing to undertake the act or omission in question; and (3) there must be a reasonably probability that but for the act or omission in question, the outcome of the proceeding would have been different. The Pennsylvania Supreme Court has held that the Strickland and Pennsylvania tests "constitute an identical rule of law in this Commonwealth." Commonwealth v. Pierce, 527 A.2d 973, 977 (Pa. 1987); see also Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621 (2001) (Pennsylvania standard governing ineffective assistance claims has been found to be materially identical to the Strickland test and includes the requirement of showing actual prejudice). Thus, the standard applied by the state court was not substantially different from the pertinent Supreme Court precedent. WhileStrickland does not explicitly contain the same first prong as the Pennsylvania test, such an element is presumed to be in the firstStrickland prong since counsel cannot be ineffective for failing to raise a meritless claim. Werts, 228 F.3d at 203; Holland v. Horn, 150 F. Supp.2d 706, 730 (E.D. Pa. 2001).
Petitioner's first ineffective assistance claim again turns on the testimony of Jermaine Brute. During cross-examination, Brute testified that the incriminating discussions between he and petitioner occurred on January 23, 1996 in the Philadelphia County Prison ("CFCF"), and that inmates Rasheed Simpson and Christopher Roney were present when petitioner made the statements. (N.T. 9/16/97, 155-157). In an effort to disprove Brute's statements, the defense presented the testimony of Robert Durison, the director of inmate records for the prison system of Philadelphia County, who testified that, based on computer tracking records, petitioner and Brute were in CFCF together on January 23, 1996, but Christopher Roney was not, having been transferred out on January 20, 1996. (N.T. 9/17/97, 170-173). On rebuttal, the Commonwealth offered a Philadelphia Sheriff's Deputy, Lieutenant Gary Cardimone, to testify that the computerized prison system records were inaccurate 5% of the time. (N.T. 9/18/97, p. 55-56). Petitioner now asserts that trial counsel should have moved for a continuance to get the documents supporting the computerized records, including all the hard copy backing the computerized records. Had he done so, he would have been able to repudiate the Commonwealth rebuttal evidence and conclusively show Brute's testimony to be false.
Brute explained that he specifically recalled that day since he was sentenced to 17 1/2 to 35 years on the same date. (9/16/97, 155-156).
On appeal from petitioner's conviction, the Superior Court noted Mr. Durison's testimony that, pursuant to the subpoena duces tecum, he brought to court all of the records pertaining to the location of the petitioner, Brute and Roney within the Philadelphia prison system. Moreover, it remarked that these records alone served to impeach Brute since they established that Roney and Brute were not in the CFCF at the same time. Finally, it opined that these records did not affect the essential, substantive testimony of Brute that petitioner admitted to participation in the murder. Accordingly, the court determined that counsel did not provide ineffective assistance of counsel in this regard.
We do not find this decision to be either contrary to or an unreasonable application of federal law. First, Mr. Durison specifically testified that he brought with him all records pertaining to the location of the three individuals, the date they entered and the prisons that they were in. (N.T. 9/17/97, 183-184). Petitioner now fails to specify precisely what other records Mr. Durison could have produced had his counsel moved for a continuance. Although Mr. Durison did state that movements in and out of the Philadelphia County Prison System are recorded in a log book, (N.T. 9/17/97, 167), there is no clear showing that these still existed or even that they would have been more accurate than the computerized records. Consequently, counsel's decision to not continue the trial simply to request those records did not fall below an objective standard of reasonableness.
Second, even assuming counsel was ineffective, petitioner neglects to establish prejudice under the second prong of Strickland. He alleges that the records "would have conclusively shown Brute's testimony to be false." Mr. Durison, however, had already impeached the inculpatory testimony of Jermaine Brute by stating that Christopher Roney was not in the CFCF on the date of the alleged conversation between Brute and petitioner. He then affirmed that, "[t]he officers who work for the prison are enjoined to be as accurate as possible" and that he would deem the records very reliable. (N.T. 9/17/97, 181, 184). The relatively harmless rebuttal testimony of Lieutenant Cardimone that there was a 5% error margin in those records did not alter or even severely undermine that of Mr. Durison. The jury was free to weigh the credibility of Mr. Durison's testimony and made its own determination. Counsel's attempts to reduce that margin of error to one or even zero percent would likely made little difference in the jury's decision.
3. Failure of Trial Counsel to Object to the Commonwealth's Closing Argument
In his next challenge to the effectiveness of his counsel, petitioner attacks several portions of the Commonwealth's closing argument, which he claims improperly appealed to the passions and prejudices of the jury. Notwithstanding these alleged blatant efforts to invoke the jury's sympathies, counsel failed to make any objection. Such failure, petitioner asserts, resulted in a flawed verdict.
"[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947 (1982). A petitioner seeking the writ of habeas corpus will not succeed merely because the prosecutors' actions "were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, reh'g denied, 478 U.S. 1036, 107 S.Ct. 24 (1986) (quotations omitted). Rather, to state a claim for habeas relief based upon comments at trial by the prosecutor, a petitioner must show that the prosecutor's comments were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Darden, 477 U.S. at 181 (quotingDonnellv v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974);Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273 (1991).
Although Petitioner is not directly claiming prosecutorial misconduct, "the Court views the standards for a prosecutorial misconduct claim as helpful in establishing the parameters of reasonableness for a prosecutor's comments and whether any objections to those comments would have been sustained." Lawrie v. Snyder, 9 F. Supp.2d 428, 443 (D. Del. 1998).
A prosecutor's comments during closing arguments must be directed to an understanding of the facts and of the law rather than to passion and prejudice. Lesko, 925 F.2d at 1545 (citing United States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir. 1976),cert. denied, 430 U.S. 972, 97 S.Ct. 1659 (1977)). In evaluating whether petitioner was denied his right to a fair trial as a result of the prosecutorial argument, the Court must look at the prosecution's comments in the context of the trial. Laird v. Horn, 159 F. Supp.2d 58, 129 (E.D. Pa. 2001). Where an error occurs, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct "had substantial and injurious effect or influence in determining the jury's verdict."Brecht v. Abramson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993), reh'g denied, 508 U.S. 968, 113 S.Ct. 2951 (1993).
Petitioner points to two separate instances in the prosecutor's closing which he finds prejudiced his trial: (1) a remark wherein the prosecutor allegedly linked the jury's decision to public perception and exalted the victim as a hero and (2) a comment wherein the prosecutor invoked a biblical passage. For ease of discussion, we consider each individually.
a. Restoration of Badge Comment
In the first challenged remark, the prosecutor stated:
It is a very humbling role to be cast into, to seek justice for somebody who laid his life down for us in the line of duty. Early on, at the very outset of the case, which wasn't all that long ago, you heard one of the attorneys, speaking on behalf of one of the defendants, say that it was a critical thing to remember that Officer Robert Parker did not die in the line of duty.
You heard, throughout the course of the trial, that the officer was referred to, time and again, as Mr. Porter. It is not that the title "Police Officer, " exalts a human being over the rest of us, but it is a title of honor and a badge of honor, which belongs to himself and the parents who raised him.
So I am here to restore the officer's title, as a Police Officer, and to tell you, as Officer Barber said, when he addressed you with his information about what happened that night, that when you are a sworn police officer, you are on 24-7; that in the face of an emerging threat to public safety or lives, you are called to action under pain of the Disciplinary Code.
You know, from the evidence here, that once the emerging threat became clear to Officer Kyle Bey, and to Officer Robert Porter, they took the beginning of police action, which was to thwart the deadly intent of those who were setting about to kill them, the two of them.
So consider his badge restored in death, Mr. and Mrs. Porter.
(N.T. 9/18/97, 128-129). Petitioner now argues that such comments "turned the trial into a hero's memorial," as opposed to an objective evaluation of the evidence. Amended Memorandum at p. 19. In turn, it focused the jurors' attention on the community and what others might think of their verdict.
On review of this identical claim during direct appeal, the Superior Court rejected it outright, noting that petitioner failed to demonstrate that these comments went beyond the permissible type of advocacy and created bias and hostility toward the defendant. This Court agrees. During opening, the defense repeatedly referred to Officers Bey and Porter as two civilian victims of a crime, who also happened to be employed as police officers. (N.T. 9/12/97, 38). In response, the prosecution appropriately reminded the jury that the officers, while technically off-duty, were attacked because of their status as officers. Indeed, a motive for the murder existed due to Officer Bey's prior arrest of co-defendant Bennett and appearance in court that day. Such comments certainly did not have the "substantial and injurious effect or influence in determining the jury's verdict," as is contemplated by federal jurisprudence. Consequently, counsel cannot be ineffective for failing to object.
b. The Biblical Exhortation
The second challenged comment of the prosecutor involved the following remarks:
Ladies and gentlemen, I ask you to be the last barrier to them [defendants] beating the case. I ask you, on behalf of all people who count on the righteousness, the propriety, and the good every day common sense of your verdict, to find that they are all co-equal, they are all guilty of murder in the first degree and that they should be treated as equals in their guilt, as they acted out their crimes before arrest.
Remember this: We have the finest of Philadelphia to protect our lives and property and even they are vulnerable and mortal, and so, unless the Lord guards this city of ours, these watchmen work in vain.
(N.T. 9/18/97, 168). The final portion of that statement was reminiscent of Psalm 127, which reads, in part, "Unless the Lord has built the house, they who build it labor in vain. Unless the Lord watches over the city, the watchmen awake in vain." Psalm 127. As Pennsylvania law forbids biblical exhortations, petitioner asserts that his trial counsel should have objected.
Distinguishing petitioner's case from the pertinent Pennsylvania case law, the Superior Court commented that the prosecutor's reference to the "Lord" was an isolated remark during closing argument. Moreover, it held that "the reference was not made to persuade the jury to impose the death penalty, and did not represent an attempt by the Commonwealth to interj [e]ct religious law into the deliberations of the jury." Superior Court Opinion (1999), at 8. Consequently, it declined to grant relief.
Again, we find no basis on which to reverse the state court's holding. In Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991), cert. denied, 504 U.S. 946, 112 S.Ct. 2290, reh'g denied, 505 U.S. 1238, 113 S.Ct. 9 (1992), the Pennsylvania Supreme Court admonished that "reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action." Id. at 644. Explaining the logic behind this rule, the court stated:
More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that "the murderer shall be put to death," the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.Id. Chambers was thus expressly concerned with the use of biblical references during the sentencing phase of death penalty cases. The Pennsylvania Supreme Court has since declined to extend that holding beyond those circumstances to the guilt phase of a trial. Commonwealth v. Spotz, 756 A.2d 1139, 1164-1165 (Pa. 2000).
The biblical reference in this case, by contrast, was merely an attempt at "oratorical flair" by the prosecutor made during his closing argument in the guilt phase of trial. It was far from clear that he was invoking the Bible, as he never mentioned it by name or relied on a well-known passage. Considered in the context of the trial, we find nothing in those remarks creating a legitimate basis for objection by counsel. Nor do we find that this comment, in and of itself, which rendered the trial fundamentally unfair or resulted in a denial of due process. The phrase was not so distinctly of biblical origin as to improperly appeal to the jury's passions. As stated by the Pennsylvania Supreme Court, "[t]o ban all such phrases based on their etymology might ultimately operate to ban most speech, or most speech concerning moral matters such as criminal responsibility." Spotz, 756 A.2d at 544. Consequently, nothing in our federal law compels an opposite conclusion.
While "[m]ost, if not all of the federal and state courts that have considered the issue have condemned the use of religious authority in death penalty case arguments," Kindler v. Horn, 291 F. Supp.2d 323, 364 (E.D. Pa. 2003) (citing cases), that view has yet to be explicitly adopted by the Third Circuit or the United States Supreme Court. Id.
4. Failure to Object to the Admission of Irrelevant Evidence and Other Crimes Evidence
In his next effort to obtain habeas relief, petitioner contends that his trial was wrought with irrelevant evidence and unduly prejudicial evidence. More specifically, notwithstanding his alleged limited role as the driver-accomplice of Brian Young, the person who shot Officer Porter, he claims that he was "smeared" with evidence regarding crimes of his co-defendants or with evidence that had no bearing on the trial. This evidence included the following: (1) testimony by Officer Bey that he had arrested co-defendant Bennett two years earlier for unlawful possession of a firearm and that he had been in court on the day of the murder in connection with that arrest; (2) evidence that the Jeep petitioner was driving was bought, several months earlier, by William Sanders, who was given $9,000 in cash by petitioner to make the purchase, and who placed the Jeep in his name, even though the two men shared it; and (3) evidence that a week after the shooting, co-defendant Bennett was arrested in Delaware and a 9 mm gun — not the one used in the murder — was found under the couch in the apartment he was living. Petitioner now asserts that the sole purpose of this evidence was to show the criminal propensity of Bennett, and taint the petitioner based on his association with Bennett. His counsel, however, failed to object to the admission of any of this evidence, thereby rendering his performance deficient.
The Pennsylvania Superior Court rejected this claim because petitioner failed to allege that trial counsel's lack of objection to the admission of this evidence had an adverse effect upon the outcome of the proceeding. Accordingly, it determined that trial counsel could not be found to have provided ineffective assistance for failure to raise a meritless issue.
Our own review leads to the identical result. As a primary matter, petitioner maintains an unfounded fear that this evidence tainted him since it associated him with Bennett's criminal propensity. Petitioner was tried jointly with Bennett and, based on eyewitness testimony from Officer Bey, was found to be the driver of the car from which Bennett shot Officer Porter. Certainly, evidence that implicated Bennett in other, unrelated weapons offenses could not have had any greater impact on the jury's perception of petitioner.
Moreover, all of the evidence was pertinent, but in no way prejudicial to petitioner. With respect to the evidence regarding Bennett's prior arrest by Officer Bey on unrelated weapons charges, that information revealed Bennett's motive to commit the shooting. With regards to the gun found in Bennett's Delaware apartment, the evidence was introduced as circumstantial evidence of Bennett's possession of the same type and caliber bullets used to kill Officer Porter. Moreover, the trial court specifically instructed the jury that Bennett's possession of the gun was not evidence of his guilt of murder and could not be considered against the other defendants. (N.T. 9/22/97, 17-18). Finally, the evidence regarding ownership of the Jeep that petitioner was driving on the night of the murder simply helped to establish background facts and had no bearing on petitioner's guilt or innocence. Such harmless evidence certainly provided no basis for any form of objection by defense counsel. Consequently, we affirm the state court's reasoning as well within the boundaries of federal law.
5. Failure to Object to Prosecutor's Comments on Petitioner's Decision Not to Testify
Petitioner next asserts that trial counsel improperly failed to raise an objection to several of the prosecutor's comments which implicated petitioner's decision not to testify. In particular, the petitioner points to the following comments by the prosecutor:
You have been invited by counsel, through counsel for Mr. Brown, for example, to imagine what he might be thinking as to this or that or that choice he had to make with his evening and his life. You have Ms. Smarro's speculative invitation to imagine what Mr. Brown might have been thinking that night. That is all you have, her supposition about what he was thinking that night.
(N.T. 9/18/97, 142)
. . . and he position himself with his vehicle to maximize the opportunity for the shooter in this little gunship to deliver a lethal blast of gunfire into that vehicle. You know that. It is uncontradicted that he did that.
(N.T. 9/18/97, 145)
Mr. Smarro speaking on behalf of her client, Mr. Brown said, "Who knew that anybody was even hurt inside the vehicle?" How could they know that anybody was hurt?
(N.T. 9/18/97, 145-146)
We will never know what was spoken inside that jeep, that vehicle of death; we won't know that . . .
(N.T. 9/18/97, 147).
I submitted a live witness to you with a lot of baggage, a significant criminal record . . . In response to that what you got from the defense was some records from a computer, which wasn't reliable, records from a computer which has acknowledged defects, about who was there for the conversation, a real live person, like him or not.
(N.T. 9/18/97, 161)
. . . Where is that gun? I can't tell you where it is. Our evidence doesn't bring that gun back to you. Only the secrets locked within that jeep can tell you where that gun is.
(N.T. 9/18/97, 164-165). Although trial counsel objected to the final comment, he failed to request cautionary instructions. Moreover, he neglected to lodge an objection to any other comment. As the jury was repeatedly directed to petitioner's failure to testify, counsel's failure to lodge any form of objection, according to petitioner, constitutes ineffective assistance.
Considering this claim on appeal from petitioner's PCRA petition, the Superior Court found that the Commonwealth's closing argument did not unequivocally call attention to petitioner's decision not to testify and, thus, did not constitute reversible error. As no prosecutorial misconduct occurred, the court held that counsel was not ineffective for failing to raise this claim. Finally, it remarked that any potential prejudice created by the closing remarks was cured by the trial court's instructions to the jury.
On review of the prevailing federal jurisprudence, we again decline to find the state court's ruling to be either contrary to or an unreasonable application of federal law. It remains well-established that remarks pertaining to defendant's failure to testify are barred. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, reh'g denied, 381 U.S. 957, 85 S.Ct. 1797 (1965). To determine whether comments refer to a defendant's failure to testify, however, a reviewing court must consider "`whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" Bontempo v. Fenton, 692 F.2d 954, 959 (3d Cir. 1982), cert. denied, 460 U.S. 1055, 103 S.Ct. 1056 (1983) (quoting United States v. Chaney, 446 F.2d 571, 576 (3d Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 543 (1971)). The challenged prosecutorial remark must be examined in its trial context, including its responsiveness to statements made by defense counsel. Darden, 477 U.S. at 179 (determining whether prosecutor's remarks violated due process in the context of entire trial); Lesko, 925 F.2d at 1544. Thus, "[w]hen a defendant advances a `theory of the case,' this opens the door to an appropriate response by the prosecution, commenting on the `quality of his . . . witnesses or. attacking the weak evidentiary foundation on which the defendant's theory of the case rested.'" United States v. Roberts, 199 F.3d 1006, 1015 (1st Cir. 1997) (quoting United States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1981). Questions about the absence of facts in the record need not be taken as a comment on defendant's failure to testify. Bontempo, 592 F.2d at 959.
With regards to the prosecution's arguments about the lack of evidence from inside the Jeep, we note that throughout the defense's closing argument, counsel invited the jury to speculate on the petitioner's state of mind and argued that petitioner had no knowledge of his co-defendants' actions and that no one in the Jeep knew that a murder had occurred. In response, the prosecutor fairly reminded the jury that there was no evidence whatsoever on the petitioner's state of mind and, thus, it could not accept defense counsel's theory about her client's mindset at the time of the murder. Rather, they could only focus on the substantive evidence that petitioner, as the driver of the vehicle, positioned the car to allow the shooter to reach the passengers inside the officers' vehicle. The protections afforded by Griffin do not foreclose the prosecution from such commentary. Hence, we decline to construe the Commonwealth's closing otherwise as an improper attempt to comment on petitioner's failure to testify.
For example, counsel for petitioner made the following statements in her closing:
"[T]here is absolutely no evidence in this record on which you can rely to come to the conclusion that Dwayne Brown did that [deliberately drove around the corner after Officer Bey], that he had any motive to do that, or any reason to do that, absolutely none."
(N.T. 9/18/97, 78).
"Now, when that car pulled up next to Kyle Bey, I would suggest to you that there is no evidence to suggest that Dwayne Brown knew what was going to happen. There is no evidence to suggest that Brian Young told him to pull up. There is no evidence that Dwayne Brown knew that anyone in that car was carrying a gun that night."
(N.T. 9/18/97, 81).
"How in the name of God would Dwayne Brown know, in that split second, that Brian Young, or anyone else, was going to take a gun and lean out of the window, and fire on that vehicle, in a split second? How is he to know that?
(N.T. 9/18/98, 82).
"[W]hen Dwayne Brown drove that vehicle southbound on 38th Street, no one knew that anyone had been killed. No one knew that Robert Porter had been hit . . . There is no evidence in this record to suggest that Dwayne Brown knew, when those shots were fired, that anyone was hit, and again, if you conclude that he did know it, where is the evidence to support that?
(N.T. 9/18/97, 84-85).
As to the prosecution's statement that, in response to Jermaine Brute's testimony regarding his conversation with petitioner, the defense produced only some inaccurate computer records about who was there for the conversation, we likewise find no error. The comment again merely pointed to the weak evidentiary foundation upon which the defense theory stood. The prosecutor identified the fact that the defense's computer records were relatively weak evidence in comparison to the live testimony of Brute. We can glean no inference to petitioner's failure to testify from this statement.
6. Failure to Impeach Jermaine Brute with Prior Inconsistent Statements
Petitioner's last substantive attack on the effectiveness of his trial counsel again revolves around the testimony of Jermaine Brute. Prior to trial, Brute had given a written statement to Detective Blasi, who was investigating the crime. In that statement, Brute stated that he had misinformed petitioner's trial counsel into believing that petitioner had not made any admissions to him regarding the crime. Petitioner contends that this "misinformation" amounts to a prior inconsistent statement since Brute later testified that the conversation had, in fact, taken place. Trial counsel, however, failed to even attempt to impeach Brute with this statement — a failure which allegedly prejudiced the trial.
The PCRA court conducted an evidentiary hearing on this issue and remarked that trial counsel was clearly acting in her client's best interests when not cross-examining Brute regarding this statement. She felt that it may have been harmful to petitioner's case since it might appear that she was trying to influence Brute prior to trial. In an effort to impeach his credibility, however, defense counsel did cross-examine Brute with respect to his aliases and his criminal record. In light of these facts, the PCRA court determined that counsel's decision not to cross-examine Brute about his prior inconsistent statement was strategic and, hence, reasonable.
Granting deference to the state court's factual findings, pursuant to 28 U.S.C. § 2254 (e), we have no basis on which to disagree. Pursuant toStrickland, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that the challenged conduct is "sound trial strategy." Strickland, 466 U.S. at 689. In this matter, trial counsel reasoned out the options and ultimately elected what she believed to be the more beneficial course of action. We cannot now, in hindsight, find this strategy to be flawed.
7. Appellate Counsel Rendered Ineffective by State Action
In an offshoot of his ineffectiveness claims, petitioner asserts that his appellate counsel was rendered ineffective by the lack of subpoena power necessary to prove his claim that trial counsel was ineffective for failing to obtain the hard copy records supporting the testimony of Robert Durison. Specifically, he explains that, on appeal, counsel attempted to secure cell block logs, transportation logs, admission and discharge records, medical records and any other form of handwritten log showing prisoner movement. The Superior Court, however, denied a motion for a remand to develop the record, leaving the record incomplete.
Respondent argues that this claim is not exhausted and procedurally defaulted because petitioner cites, for the first time, to the case ofUnited States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). The substance of the claim raised in the state courts, however, is substantially equivalent to the one raised here. Although each of the claims presented to the federal court must arise under specific constitutional provision, a petitioner is not required to cite those provisions or their supporting cases "book and verse" before the state courts in order to then submit a valid habeas petition. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513 (1971); McMahon v. Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987).
The PCRA court determined that petitioner was not prejudiced by any alleged error of counsel, as there was no reasonable probability that the outcome of any proceedings would have been different if trial or appellate counsel had been able to obtain the original logs. Trial testimony established that the computer records were accurate 95% of the time, or inaccurate 5% of the time. During closing argument, trial counsel vigorously argued that the computer records were indeed reliable. Ultimately, the state court concluded that even if the computer records for petitioner and Mr. Roney were 99% accurate, the result in the case would not have been changed due to the overwhelming nature of the evidence against petitioner.
Again we cannot disagree. The jury was presented with two forms of conflicting evidence: (a) testimony from Robert Durison indicating that Christopher Roney, who was supposedly present during the conversation between Brute and petitioner, was not in the same prison at the same time as petitioner and (b) evidence from the Commonwealth that the records from which Mr. Durison testified had a 5% margin of error. That evidence, in and of itself, was relatively unbalanced and weighted heavily in favor of the defense's position that Brute could not have accurately testified regarding his conversation with petitioner. Nonetheless, the jury chose to convict. Even had appellate counsel had the opportunity to subpoena all of the "hard copies" of the prison records and even if those records would show that there is no 5% margin of error in the computerized records, this Court simply cannot say that the outcome would have been altered. The evidence was undisputed that petitioner drove the Jeep in the pursuit of the officers, drove away from the scene of the crime until crashing and then claimed to know nothing about the shooting. Such evidence certainly sufficed for a conviction of first degree murder.
Notably, during an evidentiary hearing on October 16, 2001, Dorothy Harris, the Custodian of Records for the Philadelphia Prison System, testified that Mr. Roney was, in fact, transferred out of CFCF on January 20, 1996, one day before defendant Brown arrived there.
In support of this claim, petitioner cites to United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984), which held that "[c]ircumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Id. at 659-660. This case has no bearing on the above claim since we determine that a subpoena of the prison records was entirely unnecessary.
Petitioner also argues that the actions of the Commonwealth attorneys in opposing the motion for remand to allow the records to be subpoenaed were improper. We find this argument completely unfounded. The Commonwealth stood in an adversarial position to defendant and was equally entitled to put forth its position with vigor.
8. Cumulative Effect of Counsels' Errors
Petitioner's final assertion under his general allegation of ineffective assistance of counsel charges that counsel's errors cumulatively deprived him of his right to a fair trial.
We disagree. Aside from the fact that petitioner never raised this claim to the state courts, making it unexhausted, it is wholly without merit. The Third Circuit endorsed the theory of a "cumulative errors" claim in Berryman v. Morton, 100 F.3d 1089, HOI-1102 (3d Cir. 1996). In that matter, the court found that, as to each error alleged by petitioner, counsel had been deficient under Strickland. Id. at 1097-1101. Thereafter, the court considered the cumulative effect of these errors for purposes of deciding whether the prejudice prong ofStrickland had been met and whether petitioner was entitled to habeas relief. Id. at 1101-1102.
Such analysis is not warranted in this case. As discussed in detail above, petitioner's allegations of ineffectiveness are all unfounded, in that they do not meet even the first prong of Strickland. Consequently, these errors, even taken cumulatively, cannot be said to have denied petitioner a fair trial. See Pursell v. Horn, 187 F. Supp.2d 260, 363 (W.D. Pa. 2002) (where ineffectiveness claims do not surmount first prong of Strickland, there are no errors to bundle together for a cumulative prejudice review)
C. Denial of Due Process in Connection with the Supplemental Charge on Accomplice Accountability and Conspirator Liability
Petitioner's last attempt at habeas relief contends that he was improperly convicted on a theory of accomplice liability. During deliberations, the jury requested that the trial court re-define conspiracy liability. The court, at defense counsel's request, opted to redefine both accomplice and conspiracy liability. During the re-charge, the Court stated as follows:
A defendant is guilty of a crime if he is an accomplice of another person who commits that crime. A defendant does not become an accomplice merely by being present at the scene, or knowing about a crime. He is an accomplice if, with the intent of promoting or facilitating the commission of the crime, he solicits, commands, encourages, or requests the other person to commit it, or he aids, agrees to aid, or attempts to aid the other person in the planning or committing of it.
You may find a Defendant guilty of a crime on the theory that he was an accomplice, as long as you are satisfied, beyond a reasonable doubt, that the crime was committed, and that the Defendant that you are evaluating was an accomplice of the person who committed it.
(N.T. 9/22/97, 53-54). This re-instruction failed to include the supplemental instruction, given in the original charge, that a defendant could not be convicted of first degree murder on an accomplice theory unless he had the specific intent to kill. As such, petitioner alleges that he was denied due process.
We dismiss this claim on two grounds. Primarily, this claim is procedurally defaulted. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). In other words, a petitioner must invoke "one complete round of the State's established review process." Id. at 845. In the case of an unexhausted petition, the federal courts should dismiss it without prejudice, otherwise, they risk depriving the state courts of the "opportunity to correct their own errors, if any."Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2553, reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991);McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. at 729. "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted. Carter v. Vaucghn, 62 F.3d 591, 595 (3d Cir. 1995).
Petitioner's claim of denial of due process in connection with the supplemental charge on accomplice accountability was never presented to the state courts, thereby branding it unexhausted for purposes of federal habeas review. Under unequivocal state law, petitioner now has no recourse for exhausting this claim since, pursuant to the PCRA statute, "[a]ny petition under this subchapter . . . shall be filed within one year of the date the judgment becomes final . . .," unless petitioner proves that he was either prevented by government officials from raising the claims, the facts upon which the claims are based were previously unknown, or the right asserted is a newly-recognized constitutional right." 42 Pa.C.S.A. § 9545(b) (1998). Petitioner's judgment became final on June 12, 2000. See 42 Pa.C.S.A. § 9545(b)(3) (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 time for seeking the review.). Therefore, he had until June 12, 2001 to file any and all petitions for collateral relief under this statute. The Pennsylvania Supreme Court has conclusively established that the one-year statute of limitations acts as a jurisdictional bar and is not subject to equitable tolling. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Accordingly, any current attempt by petitioner to file a second PCRA petition raising these claims would unequivocally be deemed untimely. Because petitioner cannot now return to the Pennsylvania courts, this unexhausted claims becomes procedurally defaulted for purposes of habeas review.
During PCRA, petitioner raised the distinct claim ineffective assistance of counsel for failing to object to the original charge of the court on accomplice liability for murder in the first degree.
To survive procedural default in the federal courts, the petitioner must either "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Petitioner has not made any allegations which would satisfy either exception.
In any event, we do not find this claim to have merit. A trial judge has "broad discretion in framing the form and language of the charge to the jury." U.S. v. Traitz, 871 F.2d 368, 383 (3d Cir.), cert. denied, 493 U.S. 821, 110 S.Ct. 78 (1989) (quotations omittd). A new trial will be ordered on account of the failure to give a proposed jury instruction "only if the instruction was correct, not substantially covered by other instructions, and was so important that omission of the instruction prejudiced the defendant." United States v. Pitts, Crim. A. No. 91-279-10, 1992 WL 13017, *4 (E.D. Pa. Jan. 22, 1992) (quoting United States v. Leo, 941 F.2d 181, 200 (3d Cir. 1991)). In the absence of prejudice, the failure to give a particularly worded instruction does not require reversal; that is, a conviction should not be reversed unless the jury charge `improperly guided the jury in such a substantial way as to violate due process." United States v. Schlei, 122 F.3d 944, 969, reh'g denied, 132 F.3d 1462 (11th Cir. 1997), cert. denied, 523 U.S. 1077, 118 S.Ct. 1523 (1998).
During the original charge, in this case, the trial judge instructed:
I will shortly define the other degrees of murder, but it is important for you to note now that a defendant cannot be guilty of murder in the first degree, as an accomplice or co-conspirator, unless that defendant shared the specific intent to kill with the principal; that is, the accomplice, who need not perform the acts necessary for the crime must, nevertheless, specifically intend that a killing take place, in order to be guilty of first degree murder.See Superior Court Opinion (1999), at 10. When giving the supplemental charge, the judge was only asked to re-define conspiracy, but elected, at the request of defense counsel, to define the basic elements of both conspiracy and accomplice liability in order to distinguish between them. This supplemental instruction did not override the previous instruction that, for the jury to find a defendant guilty of first-degree murder as either an accomplice or a co-conspirator, it must find that defendant to have possessed specific intent to kill. Consequently, we find no merit to this claim.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of March, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.