Opinion
Civil No. 1:19-cv-966
01-29-2020
ARTHUR BURTON SCHIRMER Petitioner, v. ROBERT D. GILMORE, et al., Respondents.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
The petitioner, Arthur Schirmer, a former pastor of a United Methodist Church, was convicted by a jury in Monroe County in 2013 of first-degree murder and tampering with evidence in connection with the death of his second wife, Betty Jean Schirmer. Betty Schirmer died in 2008 in what appeared to be a car accident, during which she suffered a head injury. Shortly after Betty Schirmer's death, one of Schirmer's parishioners broke into Schirmer's office and committed suicide at his desk, leaving a note that accused Schirmer of having an affair with his wife, who was Schirmer's assistant. Following the suicide, the investigation into Betty Schirmer's death was reopened and investigators found several inconsistencies between Betty Schirmer's fatal injuries and the alleged car accident, including a significant amount of the victim's blood found in Schirmer's garage—immutable physical evidence that was absolutely inconsistent with Schirmer's claim that his wife died as a result of a sudden traumatic injury in an auto accident after she had left the garage. Ultimately, Schirmer was arrested and charged with Betty's murder.
Betty Jean Schirmer was Arthur Schirmer's second wife and she was the second spouse who was murdered by the petitioner. In 1999, Schirmer's first wife, Jewel Schirmer, passed away under mysterious circumstances that Schirmer had, at the time of her death, described as an accident. When Schirmer's second wife died under similarly suspicious circumstances, police re-opened their investigations into both deaths. Those investigations revealed that the cause of death for both Jewel and Betty Schirmer was homicide. Moreover, in both instances, the victim's murder was committed through blunt force trauma to the victim's head that was then masked through the staging of the death as an apparent accident, a common modus operandi which Schirmer used in executing both of his wives. See Commonwealth v. Schirmer, No. 2644 EDA 2013, 2014 WL 10752263, at *4 (Pa. Super. Ct. Dec. 23, 2014). Schirmer later pleaded guilty to third degree murder in the death of Jewel Schirmer after the trial in the instant matter. Commonwealth v. Schirmer, No. 2382 EDA 2017, 2018 WL 2210965, at *2 n. 4 (Pa. Super. Ct. May 15, 2018). Given this guilty plea to the murder of Jewel Schirmer, the petitioner prudently has elected not to pursue any claims pertaining to the murder of his first wife in the instant federal habeas corpus petition.
At trial, the Commonwealth introduced evidence that contradicted Schirmer's story that Betty Schirmer's death was caused by the alleged car accident. The evidence indicated that there was a substantial amount of the victim's blood found inside Schirmer's garage, that the vehicle was traveling at a speed much slower than Schirmer had recounted, and that the blood spatter inside the vehicle was not consistent with an uninjured person striking the inside of a vehicle at the time of a collision. Rather, the evidence showed that Betty Schirmer was sitting in her own blood, and that the points of impact inside the vehicle were hit with an object that was already bloody. This physical evidence, coupled with the significant volume of the victim's blood detected in Schirmer's garage, led to the ineluctable conclusion that Betty Schirmer had suffered a brutal head trauma at her home, had been placed in the car by her assailant, had been driven to a remote location while she sat in the car bathed in her own blood, and then her assailant had staged an accident scenario to conceal the fact that she had been bludgeoned to death. In addition to the physical evidence, the Commonwealth elicited testimony that indicated Schirmer had been having an affair because of a lack of intimacy in his marriage.
Schirmer was found guilty of first-degree murder and tampering with evidence, convictions that he now challenges in his habeas corpus petition. Despite the physical evidence and Schirmer's repeated deceits, all of which tied him to the murder of his second wife, Schirmer argues that he is entitled to a new trial based on his trial counsel's alleged ineffectiveness, as well as alleged instances of prosecutorial misconduct. However, we find that Schirmer's conviction is a product of his demonstrable guilt and his arguments to the contrary plainly lack merit. Therefore, for the following reasons, we will recommend that this petition be denied.
II. Statement of Facts and of the Case
The factual background of the instant petition was aptly summarized by the trial court in its decision denying Schirmer's petition for post-conviction relief:
On September 12, 2010, following a Monroe County Grand Jury presentment, charges of criminal homicide and tampering with evidence were filed against Defendant. These charges arose from the 2008 death of Defendant's second wife, Betty Jean Schirmer. On July 16, 2008, Betty was pronounced dead at the Lehigh Valley Hospital. She died from what appeared to be a massive head injury caused by a motor vehicle accident that occurred in the early morning hours of July 15, 2008. In October of 2008, the Pennsylvania State Police began investigating the apparent suicide of Joseph Musante, Defendant's parishioner. Joseph Musante was the husband of Defendant's assistant, Cynthia Musante. Joseph Musante broke into Defendant's office at the United Methodist Church in Reeders, Pennsylvania and committed suicide while seated at Defendant's desk. Joseph Musante believed that Defendant and Cynthia Musante were engaged in an extramarital affair. The suicide and allegations of the affair caused members of the Pocono Township Police Department to inquire further into Defendant's background and the circumstances of the deaths of both of his wives. The investigation into the motor vehicle accident which allegedly caused the death of Betty Schirmer was reopened.
***
The reopened investigation into the accident revealed a number of reasons to question the initial determination that the cause of death was accidental. There was a large quantity of blood inside the vehicle, a PT Cruiser. This blood was largely contained to the front passenger side of the vehicle. There was minimal damage to the body of the car, especially considering the speed the Defendant claimed to be traveling. There was testimony that the car was in fact drivable. Air bags did not deploy. Defendant was uninjured.
Retired State Trooper Philip Barletto testified as an expert in crime scene reconstruction, crime scene processing, and blood spatter analysis. He opined that after reviewing photographs of the inside of
the vehicle, he believed that the victim was bleeding prior to entering the vehicle. Analysis of the blood spatter inside the vehicle revealed that the points of impact inside the car were with an object that was already bloody. This was different from an uninjured person striking an object inside the vehicle, being cut and then beginning to bleed. A drop of blood inside the door caused investigators to believe that the door had been closed over the blood. The victim's blood was on the seat underneath Defendant, though he never left the vehicle as the victim was being removed. The victim was also sitting in her own blood where it would be expected that a void in the shape of her body would exist on the seat if the victim were injured while sitting in the vehicle.(Doc. 17-3, at 39-42) (citations to the record omitted). Schirmer was convicted of first-degree murder and tampering with evidence. He was sentenced to life in prison and an additional 3 to 24 months' imprisonment for the tampering with evidence charge.
Luminol processing inside the garage revealed what appeared to be a trail of blood from the back door of the garage to the passenger side of the vehicle. When confronted with this information Defendant told police that his wife had bled on the garage floor when a stack of wood, about 18 inches high, fell over and cut the victim's arm.
The initial speed reported by Defendant—approximately 45 miles per hour—was questioned by the police. The minimal damage to the vehicle and the and the non-deployment of air bags caused the estimated speed to ultimately be set at between 15 and 25 miles per hour. Although good photos were not taken of the roadway, there did not appear to be skid marks or anything consistent with Defendant's story of swerving to avoid hitting a deer.
There was also testimony regarding Defendant's cold demeanor, noted by a passerby who reported the accident, family members at the hospital and by first responders. There was testimony regarding the state of Defendant's marriage. There was also testimony about the circumstances surrounding the death of Defendant's first wife.
Following Schirmer's conviction and sentence, he filed post-sentence motions, which were denied on August 23, 2013. Schirmer filed an appeal and raised six issues, arguing that the trial court erroneously admitted evidence and that he was prohibited from calling certain witnesses. (Doc. 17-5, at 1-3). Schirmer's appeal was denied by the Pennsylvania Superior Court, and the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal. Commonwealth v. Schirmer, No. 2644 EDA 2013, 2014 WL 10752263, at *4 (Pa. Super. Ct. Dec. 23, 2014).
Thereafter, Schirmer filed a petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9542, et seq., alleging several claims of trial counsel's ineffectiveness as well as misconduct by the Commonwealth, including a claim that the prosecution committed a Brady violation. The PCRA court held a hearing and subsequently denied Schirmer's petition on June 26, 2017. The Superior Court affirmed the denial of Schirmer's PCRA petition, and his Petition for Allowance of Appeal was denied by the Supreme Court on June 25, 2018. Commonwealth v. Schirmer, No. 2382 EDA 2017, 2018 WL 2210965, at *2 n. 4 (Pa. Super. Ct. May 15, 2018).
Brady v. Maryland, 373 U.S. 83 (1963).
Schirmer filed the instant habeas petition on June 5, 2019. (Doc. 1). In his petition, Schirmer raises nine grounds for relief, seven of which are claims of trial counsel's ineffectiveness. On this score, he argues that counsel was ineffective for: failing to object to the prosecution's opening statement, closing argument, questions to a Commonwealth witness, and questions on Schirmer's cross examination; failing to include certain pieces of evidence in the record for appeal; and failing to object to a lack of subject matter jurisdiction in the trial court. He also argues that the cumulative effects of counsel's alleged errors entitle him to a new trial. In addition, Schirmer raises two claims alleging misconduct by the Commonwealth, including a claim that the Commonwealth committed a Brady violation.
After a review of the record, we find that Schirmer's conviction was the result of the compelling, incontrovertible physical evidence that revealed that he had engaged in the calculated murder of his spouse and then deceitfully staged this murder to appear to be an accident. Given the overwhelming evidence of his guilt, Schirmer's claims are entirely without merit. Accordingly, these claims do not warrant habeas relief, and we recommend that Schirmer's petition be denied.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1)Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) and (b).
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;
..........
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2)Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) "contrary to" or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was "based upon an unreasonable determination of the facts," see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever "[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact." Rolan, 445 F.3d at 681.
(3)Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to "establish first that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors "so serious" that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment "[t]here is a 'strong presumption' that counsel's performance was reasonable." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also "must demonstrate that he was prejudiced by counsel's errors." Id. This prejudice requirement compels the petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. "Furthermore, in considering whether a petitioner suffered prejudice, '[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir.2000) ("[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not 'contrary to' established Supreme Court precedent"). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an "unreasonable application" of Strickland. Billinger v. Cameron, 2010 U.S. Dist. LEXIS 63759, at *11, 2010 WL 2632286 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision "cannot reasonably be justified under existing Supreme Court precedent." Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, "the state court's decision must be shown to be not only erroneous, but objectively unreasonable.") (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is "doubly deferential when it is conducted through the lens of federal habeas"). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688, 104 S. Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689, 104 S. Ct. 2052. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id., at 690, 104 S. Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts "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. The presumption can be rebutted by showing "that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
B. This Petition Should Be Denied.
As we have stated, Schirmer raises nine grounds which he believes entitle him to habeas relief. He alleges seven claims of his trial counsel's ineffectiveness, as well as two claims of misconduct by the prosecution. We will address each of Schirmer's claims in turn.
1. Ineffective Assistance of Counsel
Schirmer alleges that his trial counsel was ineffective for failing to object to several comments made by the prosecutor in his opening statement and closing argument, as well as questions posed to Schirmer on cross examination. Further, Schirmer argues that his counsel should have objected to the prosecution's questions to Sergeant Holtsmaster, who interview Schirmer during the investigation, which he contends was the prosecution's way of "goading" the defense to call for a mistrial. Schirmer also contends that counsel was ineffective for failing to include certain pieces of evidence in the appellate record. Finally, he argues that his counsel failed to object to the court's lack of subject matter jurisdiction. However, after a review of the record, we find that Schirmer has not met his burden under Strickland to show that trial counsel rendered ineffective assistance, and thus, these claims do not entitle him to habeas relief.
Schirmer also raises this claim as a claim of prosecutorial misconduct, which will be discussed separately.
a. Failure to Object to Opening Statement and Closing Argument
At the conclusion of the prosecution's opening statement, the Assistant District Attorney, after recounting the evidence to be presented to the jury, stated: "[T]here's going to be a lot more detail, and I know this isn't going to be a pleasant thing for you all to sit and listen to. I mean, basically it's a journey into the darkest inner recesses of the human soul." (Doc. 17-14, at 61). Later, in his closing argument, the ADA referred to Schirmer three times as the "sinister minister." (Doc. 17-23, at 76, 95, 110). Schirmer argues that these comments were extremely prejudicial to his right to a fair trial, and thus, his counsel should have objected to these statements. Particularly, Schirmer takes issue with the use of the word "soul," arguing that the ADA was referring to Schirmer himself, and that this reference was made in order to hold Schirmer to a higher standard due to his role as a minister.
The PCRA court addressed these claims in its decision denying Schirmer's PCRA petition. With respect to the ADA's opening statement, the PCRA court found that there was no inference of prejudice from using the word "soul," as the prosecution "was not even commenting on the Defendant or his soul." (Doc. 17-3, at 48). Rather, the court found that the ADA was commenting on his understanding that the role of the jury in a homicide case can be undesirable. (Id., at 49). Further, with respect to the ADA's "sinister minister" comments, the court found that in the context of his closing argument, the ADA was "drawing attention to facts and arguing their meaning," rather than characterizing the defendant. (Id.) Moreover, the court found that even if this comment was improper, Schirmer was not prejudiced because the jury was instructed that counsel's arguments were not evidence. (Id., at 49-50). The court ultimately concluded that Schirmer's counsel could not be determined to be ineffective for failing to object to a meritless issue. (Id., at 50).
The Superior Court affirmed the decision of the PCRA court. The Superior Court found that the ADA's reference to the "human soul," taken in the context of the entire opening statement, referred to the fact that the case involved a murder and a suicide. (Doc. 17-13, at 8). Moreover, the comment "did not serve to inflame the jury or divert the jurors' attention from the issues at hand." (Id., at 9). As for the prosecutor's "sinister minister" comment, the Superior Court agreed with the PCRA court that this constituted "permissible oratorical flair" and did not prejudice Schirmer, as the jury was presumed to follow the court's instruction that the prosecutor's argument was not evidence. (Id.)
On this score, given the thorough treatment of these claims by the PCRA court and Superior court and the doubly deferential standard of review applied to these claims, see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009), we cannot conclude that the state courts' decisions were an unreasonable application of Strickland or based on an unreasonable determination of the facts. To the contrary, the PCRA court's careful analysis of this ineffective assistance of counsel claim, and the Superior Court's decision affirming that analysis, is thorough and well-supported by both the law and the facts of the petitioner's case. In particular, we note that while the prosecutor's description of the petitioner as a "sinister minister" was certainly evocative, it also was entirely apt given the evidence, which revealed that Schirmer had brutally bludgeoned his wife to death and then engaged in a fabric of calculated lies to make her death appear to be a tragic accident. Accordingly, this claim does not warrant habeas relief.
b. Failing to Object to Questions on Schirmer's Cross Examination
Next, Schirmer claims that his counsel was ineffective when counsel failed to object to the prosecutor's questioning of Schirmer concerning his sex life. Specifically, the ADA, when questioning Schirmer about his communications with Cynthia Musante, asked Schirmer about his masturbation habits. Schirmer contends that his counsel should have objected to these questions, particularly the question concerning which hand Schirmer favored, as they were prejudicial and served no purpose other than to humiliate Schirmer.
The PCRA court found that counsel was not ineffective for failing to object to this line of questioning. At the outset, the court noted that the line of questioning, in itself, was not prejudicial. (Doc. 17-3, at 54). Rather, the court found that the prosecutor's questions were particularly relevant to Schirmer's case, as "[t]he Commonwealth's entire case was built around the motive of a deteriorating and sexless relationship driving the Defendant to infidelity and eventually murder." (Id.) Moreover, with respect to the question of which hand Schirmer favored, the PCRA court found that the testimony elicited was necessary for the Commonwealth's summation of the evidence, during which the prosecutor argued that Schirmer struck his wife using his right hand. (Id., at 55). Accordingly, the court found that counsel could not be ineffective for failing to object, as the testimony was relevant and admissible. On appeal, the Superior Court affirmed. The court agreed with the PCRA court that the lack of intimacy between Schirmer and his wife was relevant to his motive, and the testimony regarding his favored hand was relevant under the circumstances. (Doc. 17-13, at 11).
Here, we cannot conclude that the state courts' decision was an unreasonable application of Strickland. Rather, it is clear from the record that the questions posed to Schirmer on cross examination were relevant to the Commonwealth's theory of motive, as well as to show that Schirmer was right-handed. Thus, given that these questions and the testimony elicited from Schirmer was relevant and admissible, counsel could not be found ineffective for failing to object to this meritless issue. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); McCleaf v. Carroll, 416 F.Supp.2d 283, 293 (D. Del. 2006). Accordingly, this claim does not entitle Schirmer to habeas relief.
c. Failing to Object to Questions Posed to Sergeant Holtsmaster
Next, Schirmer contends that his trial counsel was ineffective when counsel did not object to the questions asked on direct examination of Sergeant Holtsmaster, who had been part of the renewed investigation into Betty Schirmer's death and who had interviewed Schirmer during the investigation. Holtsmaster testified to the encounter that he had with Schirmer, in which he began to give an opinion about Schirmer's honesty. Trial counsel objected, arguing that Holtsmaster could not be permitted to testify to Schirmer's truthfulness, and the trial judge instructed the ADA not to ask questions that would elicit such an opinion. (Doc. 17-3, at 50-51). Thereafter, Holtsmaster testified about the substance of his interview with Schirmer, during which he claimed that Schirmer had admitted that he lied to Holtsmaster about the woodpile falling onto Betty and causing her blood to be found in the garage. (Id., at 51-52). Schirmer contends that his counsel should have renewed his objection to Holtsmaster's testimony, as this testimony was opining about Schirmer's truthfulness.
The PCRA court disagreed. The court found that, while Holtsmaster's initial testimony was objectionable, and was in fact objected to by counsel, this latter testimony did not amount to Holtsmaster giving an opinion about Schirmer's truthfulness. Rather, the court found that this testimony was simply a factual recitation of Holtsmaster's interactions with Schirmer during the investigation, in that Holtsmaster was explaining why he took certain investigatory steps based on Schirmer's account of what had happened to Betty. (Id., at 52). Thus, the court found that counsel could not be ineffective for failing to object to this permissible testimony. The Superior Court affirmed the PCRA court, reasoning that Holtsmaster's testimony amounted to a characterization of his interview with Schirmer, in which Schirmer admitted he lied about the woodpile incident. (Doc. 17-13, at 14).
Here, the record is clear that the ADA's questions to Holtsmaster, and Holtsmaster's answers to those questions, did not violate the trial judge's directive. Rather, the ADA questioned Holtsmaster about his interactions with Schirmer during the investigation, and Holtsmaster detailed his interactions with Schirmer and how Schirmer's responses led him to take certain steps in the investigation. At no time did Holtsmaster give an opinion about Schirmer's truthfulness after the trial judge directed the ADA to stay away from such questions. Thus, as the state courts determined, Schirmer's counsel had no basis to object to the ADA's questions or Holtsmaster's responses and cannot be deemed ineffective for failing to object. Accordingly, given the level of deference we must afford to the state courts' decisions, Schirmer has not met his burden under Strickland to show that his counsel was ineffective, and this claim does not warrant habeas relief.
d. Failure to Include Evidence in the Appellate Record
Next, Schirmer argues that his trial counsel was ineffective for failing to include certain pieces of evidence in the record on direct appeal. Specifically, Schirmer points to a photograph of Joseph Musante's suicide and a letter written to church officials by Musante's daughter. Schirmer claims that these pieces of evidence were extremely prejudicial and denied him his right to a fair trial, and that the Superior Court could not address his claim on appeal given counsel's failure to include them in the record.
However, a review of the PCRA court's decision reveals that the Superior Court expressly addressed Schirmer's claim that evidence of Musante's suicide was prejudicial, even though these particular pieces of evidence were not in the appellate record. On direct appeal, Schirmer raised a claim that evidence of Musante's suicide should not have been admitted at his trial. The Superior Court denied this claim and found that the trial court did not abuse its discretion in admitting evidence of Musante's suicide:
Here, the evidence of Mr. Musante's suicide was close in time and place to the criminal investigation surrounding Betty's death and necessary to complete the whole story as to why her death was deemed an accident originally, but was subsequently reopened. The investigation was complicated, made difficult by the fact that Betty's death appeared staged, and involved multiple authorities from both the church and police departments. Throughout the investigation, Appellant gave conflicting stories to church officials and the police that formed the basis for the natural progression of the investigation. Thus, evidence of the suicide was clearly relevant to complete the story regarding the charged offenses. Moreover, the suicide was completely distinct from Appellant's charged crimes and the minimal likelihood of the jury convicting him on such evidence was outweighed by the probative value of evidence of the suicide. Furthermore, upon independent review, the Commonwealth did not inappropriately argue that Appellant cause Mr. Musante's death or that causing someone to commit suicide was consistent with the murder of Appellant's second wife. The evidence was tailored to the investigation and formed part of the history of the case. As such, we discern no abuse of discretion or error of law by the trial court in admitting evidence of Mr. Musante's suicide.Com. v. Schirmer, 2014 WL 10752263, at *8 (Pa. Super. Ct. Dec. 23, 2014). Thus, although the Superior Court did note that it could not consider whether the photograph and letter specifically were unduly prejudicial, as the evidence was not in the certified record on appeal, the Court held that evidence of the suicide had more probative value than prejudicial effect, and thus there was no abuse of discretion by the trial court in admitting this evidence. Id. at *8 & n.5.
The PCRA court denied Schirmer's claim that counsel was ineffective for failing to include these two pieces of evidence in the appellate record. The court found that counsel could not be found ineffective because this evidence "was not necessary to the motion before the Superior Court and it was able to render a full decision on the merits." (Doc. 17-3, at 57). On appeal, the Superior Court first noted that Schirmer's argument had not been fully developed, as he had not argued how the outcome of his direct appeal would have been different had the evidence been included in the record. (Doc. 17-13, at 14). Further, regarding the specific pieces of evidence that Schirmer argued were prejudicial, the court noted that counsel had not objected to this evidence during Schirmer's trial, and thus, Schirmer's claims that this evidence prejudiced him were waived on direct appeal, regardless of whether the evidence was included in the appellate record. (Id., at n.10).
After a review of the state courts' decisions, we cannot conclude that counsel was ineffective for failing to include this evidence in the appellate record. Rather, as the Superior Court noted, Schirmer has not shown how he was prejudiced by the failure to include these pieces of evidence in the record. Rather, it is clear from the Superior Court's decision denying Schirmer's direct appeal that the evidence of Musante's suicide was relevant to the case against Schirmer and was properly admitted by the trial court. Therefore, given that Schirmer has not shown prejudice from counsel's failure to include this evidence in the record, we cannot conclude that counsel rendered ineffective assistance under Strickland. Accordingly, this claim does not warrant habeas relief.
e. Failure to Object to the Court's Subject Matter Jurisdiction
Schirmer's final claim of trial counsel's ineffectiveness asserts that counsel should have objected to the trial court's lack of subject matter jurisdiction. This final ineffective assistance of counsel argument springs from two novel and completely unpersuasive propositions. Specifically, Schirmer first contends that "[m]urder is not a crime in Pennsylvania because the Murder statute does not define what murder is." (Doc. 1, at 70). Schirmer then argues that the Commonwealth failed to charge him with the element of "malice," such that the court did not have subject matter jurisdiction to preside over his case, and that his counsel was ineffective for failing to object to the lack of subject matter jurisdiction. (Doc. 1, at 256-57).
At the outset we note that there is a certain absurd quality to these claims. As we have observed in the past when confronted with a similar claim that state courts lack the ability to hear murder cases: "This claim is risible. Pennsylvania plainly has jurisdiction to prosecute and punish a defendant, like [the petitioner], who is convicted of participating in the slaying of another person within the state." Garrett v. McGinley, No. 4:17-CV-1574, 2019 WL 2078992, at *6 (M.D. Pa. Apr. 3, 2019), report and recommendation adopted, No. 4:17-CV-01574, 2019 WL 2074558 (M.D. Pa. May 10, 2019). Likewise, Schirmer's argument that murder is not a crime in Pennsylvania because of alleged ambiguities in Pennsylvania's homicide statute has been considered and flatly rejected by the courts which have found that there is no fatal ambiguity in this state law which plainly forbids murder. See Altawarh v. Wetzel, No. CV 17-1303, 2017 WL 4855858, at *6 (E.D. Pa. Aug. 31, 2017), report and recommendation adopted, No. CV 17-1303, 2017 WL 4838730 (E.D. Pa. Oct. 26, 2017).
We are also constrained to note for Schirmer that these settled tenets of Pennsylvania law forbidding murder reflect timeless elements of our Judeo-Christian heritage, a heritage with which Schirmer is intimately familiar, in that the Book of Exodus states "You shall not murder." Exodus 20:13. It strains credulity to believe that Schirmer was unclear or confused on this issue at the time that he murdered his second wife. This suggestion becomes particularly absurd in light of Schirmer's guilty plea conviction relating to the murder of his first wife.
The PCRA court addressed this claim, which was not brought as a claim of ineffective assistance of counsel. Rather, Schirmer simply argued that the Court of Common Pleas of Monroe County lacked subject matter jurisdiction over his case. On this score, the PCRA court succinctly stated the standard for the court's subject matter jurisdiction and denied Schirmer's claim as meritless:
Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented. McGinley v. Scott, 164 A.2d 424 (Pa. 1960). Jurisdiction is a matter of substantive law. Id. at 428; 42 Pa.C.S. §931(a) (defining the unlimited original jurisdiction of the courts of common pleas). Defendant was charged with violations pursuant to the Crimes Code. Controversies arising out of violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within that tier of the unified judicial system is competent to hear and decide a matter arising out of the Crimes Code. Pa. Const. Art. 5 § 5
(establishing the jurisdiction of the courts of common pleas within the unified judicial system). As such Defendant's claim is DENIED.(Doc. 17-3, at 63). The Superior Court agreed, noting that the charging document "adequately impl[ied] malice in relation to the murder charge against Appellant." (Doc. 17-13, at 24 & n. 13) (citing Commonwealth v. Chamberlain, 30 A.3d 381, 423 (Pa. 2011) (holding that when malice is adequately implied in the charging documents that charge a defendant with murder, a claim that the criminal information is defective is without merit)).
Here, we first note that Schirmer did not present this claim as a claim of ineffective assistance of counsel to the state courts. In any event, Schirmer's claim is without merit. Indeed, counsel cannot be deemed ineffective for failing to object to a meritless issue. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); McCleaf v. Carroll, 416 F.Supp.2d 283, 293 (D. Del. 2006). As the PCRA court aptly noted, the Monroe County Court of Common Pleas did, in fact, have subject matter jurisdiction over Schirmer's case, as Schirmer was charged with murder under the Crimes Code. Accordingly, Schirmer has not met his burden under Strickland to show that counsel's performance was deficient or that he was somehow prejudiced by counsel's failure to object to this meritless issue. Thus, this claim does not afford Schirmer relief.
We further note that Schirmer has also raised a claim that the cumulative effects of counsel's alleged ineffectiveness require this court to grant him a new trial. However, this claim also fails as a matter of law, as we have found that Schirmer's counsel did not render ineffective assistance. See Aponte v. Eckard, 2016 WL 8201308, at *20 (E.D. Pa. June 3, 2016) ("The cumulative error doctrine requires the existence of 'errors' to aggregate. Absent such errors by counsel, the cumulative error doctrine does not apply"). Accordingly, none of Schirmer's claims of ineffective assistance of counsel entitle him to habeas relief.
2. Prosecutorial Misconduct
Schirmer also raises two grounds of prosecutorial misconduct that he believes entitle him to habeas relief. He claims that the ADA attempted to "goad" defense counsel into calling for a mistrial when the ADA elicited testimony from Sergeant Holtsmaster about Schirmer's truthfulness. He also alleges that the Commonwealth committed a Brady violation when it failed to disclose certain luminol photographs. The respondents argue that these claims have not been properly exhausted in state court. Moreover, they claim that Schirmer's claims fail on their merits.
State prisoners seeking relief under section 2254 must satisfy specific procedural standards. Among these procedural prerequisites is a requirement that the petitioner "has exhausted the remedies available in the courts of the State" before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, and the claims brought in federal court must be the "substantial equivalent" of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982).
Here, Schirmer's prosecutorial misconduct claim regarding the Commonwealth's questioning of Holtsmaster was not presented as a prosecutorial misconduct claim in the state courts. Rather, it was presented as a double jeopardy claim in Schirmer's PCRA petition. Additionally, in its decision affirming the denial of Schirmer's PCRA petition, the Superior Court noted that Schirmer's Brady claim had been waived, as he had not presented the claim in his direct appeal. (Doc. 17-13, at 20-21). However, while the PCRA court noted that Schirmer must have misunderstood the concept of double jeopardy, it nonetheless found that his claim was without merit, as the court had found that the ADA had not committed any misconduct in questioning Holtsmaster. Additionally, both the PCRA court and the Superior Court addressed Schirmer's Brady claim on the merits. Thus, while Schirmer may not have properly presented his claims to the state courts in exactly the same manner he has presented them now, the state courts had the opportunity to address the merits of these claims and did, in fact, address them. See Evans, 959 F.2d at 1231; Santana, 685 F.2d at 73-74. Accordingly, in our view, Schirmer "fairly presented" his claims to the state court and has exhausted his state remedies. However, after a review of the state court decisions, we agree that these claims are without merit and do not afford Schirmer any relief.
a. Questioning of Sergeant Holtsmaster
At the outset, we note that Schirmer's claim concerning the ADA's questioning of Holtsmaster was generally framed as an ineffective assistance of counsel claim in Schirmer's PCRA petition, in addition to his claim of a double jeopardy violation. As we have explained above, the PCRA court found that trial counsel was not ineffective for failing to object to the ADA's questions to Holtsmaster because the ADA did not violate the judge's directive. (Doc. 17-3, at 51). Rather, the ADA questioned Holtsmaster about his interactions with Schirmer during the investigation, which the court found was an entirely proper line of questioning. (Id.) The Superior Court agreed, finding that counsel could not be deemed ineffective for failing to object to a meritless issue. (Doc. 17-13, at 14).
"[P]rosecutorial misconduct is insufficient to overturn a conviction unless it 'so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.'" Reid v. Beird, 420 F. App'x 156, 159 (3d. Cir. 2011) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (U.S. 1974)). This determination requires the court to "distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process." Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d. Cir. 1992) (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d. Cir. 1976) (internal quotations omitted)). In determining whether there was prosecutorial misconduct, the conduct of trial counsel must be examined in the context of the trial as a whole. Ramseur, 983 F.2d at 1239 (citing Greer v. Miller, 483 U.S. 756, 766 (U.S. 1987)).
Here, while Schirmer characterizes the ADA's questions as an egregious attempt to "goad" the defense into requesting a mistrial, it is clear from the record that the ADA did not commit prosecutorial misconduct. Rather, the ADA abided by the court's directive to stay away from questions that would elicit Holtsmaster's opinion about Schirmer's truthfulness. Further, Holtsmaster's responses to the ADA's questions were entirely proper, as they "characterized his interview with [Schirmer] in the context of explaining his questioning process and ultimately to explain that this process led to [Schirmer] admitting he had lied" in the course of the investigation. (Doc. 17-13, at 14). Accordingly, we cannot conclude that the ADA's questions to Holtsmaster violated Schirmer's due process rights and amounted to prosecutorial misconduct.
b. Brady Violation
Finally, Schirmer contends that the Commonwealth committed a Brady violation when it allegedly withheld the original luminol photographs taken inside of Schirmer's garage, which were used to create layered photographs to depict the blood stains in the garage. At trial, defense counsel objected to Trooper Corrigan's testimony concerning the process of using the original luminol photographs and producing an overlay to show the blood stains, arguing that the original luminol photographs would not be shown to the jury. (Doc. 17-3, at 59-61). The trial judge overruled counsel's objection and permitted Trooper Corrigan to testify to the layering process that produced the end-result photographs. (Id.) Schirmer contends that the original photographs were never turned over to his counsel, and that the defense's expert was hindered from giving full testimony due to the Commonwealth's alleged nondisclosure of these photographs.
The PCRA court addressed Schirmer's Brady claim and ultimately concluded that this claim was without merit. After setting forth the applicable standards, which required a showing by Schirmer that the Commonwealth suppressed exculpatory evidence and that the suppression of that evidence prejudiced him, the PCRA court found that there was no indication that the Commonwealth suppressed any evidence, let alone exculpatory evidence. (Doc. 17-3, at 61). To the contrary, as the court noted:
During a lengthy cross-examination, counsel for the Defendant showed Trooper Corrigan numerous unlayered photographs of the parsonage both in the dark and under normal lighting conditions. The defense also moved into evidence exhibit 3 and 5, thumb drives containing multiple additional unlayered photographs of the Defendant's home. All of these photographs were provided to the defense by the Commonwealth. It is unknown what exculpatory evidence Defendant believes is in the possession of the Commonwealth.(Id., at 61-62). Thus, the PCRA court found that the defense did, in fact, possess the unlayered photographs that Schirmer now contends were never disclosed by the Commonwealth. The Superior Court, while noting that Schirmer had actually waived this claim by not presenting it on direct appeal, affirmed the PCRA court's denial of this claim, finding that the photographs Schirmer sought, whether they were disclosed or not, were not exculpatory. (Doc. 17-13, at 20-21).
On this score, we cannot conclude that the state courts' decisions were an unreasonable application of the law, or that they were based on an unreasonable determination of the facts. Rather, it is clear from these decisions and from the record that Schirmer's counsel possessed the unlayered photographs that Schirmer contends were never disclosed. Indeed, these photographs were entered into evidence at trial by the defense. (Doc. 17-3, at 61-62). Moreover, had the Commonwealth failed to disclose these photographs, Schirmer has not shown how these photographs were exculpatory or how he would have been prejudiced from the failure to disclose these photographs. In fact, his own petition states that his expert testified regarding the photographs and the blood spatter found in the garage. (Doc. 1, at 249). Further, as the Superior Court stated, Schirmer's assertion that he had a right to have an expert review certain blood spatter data was "'even less than an assertion' that the evidence at issue was exculpatory." (Doc. 17-13, at 21) (quoting Commonwealth v. Free, 902 A.2d 565, 571 (Pa. Super. Ct. 2006)).
In sum, Schirmer's claims of ineffective assistance of counsel and prosecutorial misconduct were thoroughly reviewed by the state courts and denied on their merits. Our review of those decisions, coupled with the deferential standard of review in habeas cases like Schirmer's, reveals that those decisions were not based on an unreasonable application of the law or an unreasonable determination of the facts. Rather, the record indicates that there was no misconduct by the Commonwealth at trial, and that Schirmer's counsel provided him with competent and thoughtful representation. Accordingly, we find Schirmer's claims to be without merit and recommend that this habeas petition be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 29th day of January 2020.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge