Opinion
Civil Action No. 15 - 1639
12-03-2018
JEVON A. EVERETT, Petitioner, v. SUPERINTENDENT, SCI FAYETTE and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
District Judge Cathy Bissoon
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be denied and that a Certificate of Appealability also be denied.
II. REPORT
Before the Court is a Petition for Writ of Habeas Corpus ("Petition") filed by Petitioner Jevon A. Everett ("Petitioner") pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (ECF No. 1.) He is challenging his judgment of sentence of life imprisonment without parole after he was convicted by a jury of first degree murder on August 29, 2008.
A. Factual History
The trial court set forth the following recitation of facts in its opinion filed pursuant to Pa. R.A.P. 1925(a):
In April of 2006 Appellant was living with his wife and children at 910 Bernd Street in the Arlington section of the City of Pittsburgh, Allegheny County. He was also renovating a nearby storefront property at 902 Bernd Street. Thomas McClintock (McClintock) was living at the storefront and assisting Appellant with the renovations. On April 13, 2006 Appellant and McClintock worked at the storefront until approximately 9:00 p.m., whereupon Appellant returned to his nearby home. Apparently when he returned home his five year old daughter told him that "a white man who wore glasses" had molested her. McClintock was a white man who wore glasses.
Appellant, with his wife and daughter, and a neighbor, Taj McBride (McBride), left his home and returned to the storefront. At that time Appellant took with him a handgun that he concealed in a sock, and placed in his pants pocket. On a previous occasion Appellant had explained to McBride that having the gun inside a sock prevents the ejected shells from falling to the ground.
At the storefront, Appellant confronted McClintock about the allegations. McClintock steadfastly denied the allegations, and Appellant's daughter confirmed that McClintock was not the man who allegedly assaulted her. Rather, she stated that it was, "the other white guy with glasses," and also mentioned the word "chocolate" in connection with the man who assaulted her. The victim, Michael Armbruster (Armbruster), who was white and wore glasses, had also been assisting Appellant occasionally with the renovation work at the storefront. McClintock recalled that Armbruster had handed chocolate candy out to children in the storefront several days earlier. Both Armbruster and McClintock were drug users and Appellant on occasion supplied drugs to both.
At 11:57 p.m., at the Appellant's request, McClintock attempted to contact the victim from a cell phone provided by McBride. McClintock spoke with Armbruster's wife, Heather Shiff, who informed him that the victim was not at home; he was at the movies with his children.
Shortly thereafter, Appellant's wife, daughter, and McBride left the storefront, and once they left, Appellant asked McClintock what he would do "if he was in Appellant's shoes." McClintock told Appellant that he would probably kill the person who raped his child. Appellant and McClintock left the storefront and went to Appellant's house. When Appellant arrived home, he called McBride over to him, ranting about Armbruster raping his daughter, stating, "I got to get him. I'm gonna kill him."
At 12:05 a.m. on April 14, 2006, a second call was made to the victim's residence from the same cell phone used by McClintock, this time by McBride, who claimed to be Appellant. McBride was also told by Heather Shiff that the victim was at the movies.
The victim returned home about ten minutes after that call, and his wife informed him that both McClintock and Appellant had called. The victim telephoned Appellant, who told him that he had drugs for him, and to come and get them. After the call the victim told his wife that he had to go out, and that he would be back in an hour. He left home driving a blue 1998 Mercury Villager van, and proceeded to Appellant's home.
Once he got to Appellant's home he had a brief conversation with Appellant outside the residence, and Appellant got into the van and they drove away. They drove a short distance to Eldora Park, parked the van, and walked into a nearby park (McKinley Park). On a path in the park, Appellant and the victim argued, and Appellant shot the victim once in the head.
Less than an hour after Appellant and Armbruster had left in the van, McClintock, who was sitting on the storefront steps, observed Appellant walk up the city steps that pass in front of the houses on Bernd Street and enter the storefront. A short time later Appellant left the storefront carrying a pair of shoes in his hand, and wearing another pair of shoes that he changed into inside the store. As Appellant was leaving, McClintock asked if the victim had said anything, and Appellant replied, "No." Appellant also said, "It's a done deal," then walked away.
When Appellant arrived home, McBride observed that Appellant was sweating profusely, and was "real hyper"; McBride heard him repeat, "I gotta go. I gotta go." McBride also heard Appellant state, "I did it. I did it." Appellant threw the gun he had been carrying, a black and silver "Sig" nine-millimeter, onto the couch where McBride was sitting, and he instructed McBride to "get rid of the gun." Appellant's wife was crying and his son telephoned someone to arrange for a ride for his father. Appellant's wife gave Appellant $300-$400, and he left the house. After Appellant left[,] McBride hid the gun in the attic of Appellant's house, in a hole in the floor underneath a sink.
The victim's body was discovered that morning shortly before 11:00 a.m., lying on a flat pathway in a steep, heavily wooded area of McKinley Park. That location was only several hundred yards from the city steps that lead up to Bernd Street.
The victim had a "through and through" gunshot wound that entered behind his right ear and exited in the region of his left temple. There was a pool of blood behind the victim's head and blood spatter on several leaves in immediate proximity to his head. There were no signs of a struggle in the area where his body was found, and the key to the victim's blue van, his driver's license, and wallet were found in his pockets. The victim died from the gunshot wound of the head, and the manner of death was homicide. No gunshot particles were found in the area of the wound, indicating that the bullet was fired from a
distance of more than two feet. Based on the body's state of rigor mortis, the victim had been dead for approximately ten to twelve hours.(Resp't Ex. 4, Trial Ct. Op., 11/8/09, pp3-9; ECF No. 10-2, pp.4-9) (internal citations to the record omitted).
Four days later, on April 18, 2006, the victim's blue van was recovered on Eldora Place, which is within walking distance of the location of the victim's body. The van was towed to the Allegheny County mobile crime unit garage and processed by the crime unit for evidence, including fingerprints. No prints of value were recovered from the van.
While incarcerated pending trial on the instant charges, Appellant told a fellow inmate that he was angry because the victim had molested his daughter. Appellant further admitted that he lured the victim to his house with the promise of drugs, and they drove together to a park in the victim's van, where he shot the victim in the head after arguing with him.
B. Procedural History
On September 29, 2006, Petitioner was charged with one count of Criminal Homicide by Information filed in the Court of Common Pleas of Allegheny County, Criminal Division at CC No. 200612952. (Resp't Ex. 1, Docket Sheet; ECF No. 10-1, pp.1-27.) His first trial was March 18, 2008, through March 24, 2008, at the conclusion of which a mistrial was declared pursuant to a hung jury. His second trial commenced before Judge Borkowski on August 26, 2008, and concluded on August 29, 2008, when the jury found Petitioner guilty of first degree murder. Id. He was sentenced to life in prison without the possibility of parole on December 11, 2008, and his judgment of sentence was affirmed by the Pennsylvania Superior Court on March 24, 2011. (Resp't Ex. 6, Memorandum, 3/24/11; ECF No. 10-2, pp.43-51.) His Petition for Allowance of Appeal ("PAA") was denied by the Pennsylvania Supreme Court on October 31, 2011. (Resp't Ex. 7, Docket Sheet; ECF No. 10-2, pp.52-54.)
Petitioner filed a pro se Petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA") in November 2011, and he filed another pro se PCRA Petition in May 2012. On March 29, 2012, the PCRA court appointed Attorney Christy P. Foreman to represent Petitioner for his PCRA proceedings. While he was represented, Petitioner filed a supplemental pro se PCRA Petition on January 3, 2013. (Resp't Ex. 8, PCRA Petition; ECF Nos. 10-3, 10-4, 10-5.) Attorney Foreman filed a "No Merit" letter and a motion to withdraw pursuant to Turner-Finley on November 8, 2013. (Resp't Ex. 9, No Merit Letter; ECF No. 10-6, pp.1-12.) On November 14, 2013, the PCRA court granted counsel's motion to withdraw and filed its notice of intent to dismiss the PCRA Petition for the reasons stated in counsel's No Merit letter. The PCRA court then dismissed Petitioner's PCRA Petition on December 4, 2013. (Resp't Exs. 10, 11, Notice and Order; ECF No. 10-6, pp.13-15.) The dismissal of his PCRA Petition was affirmed on appeal by Memorandum issued by the Pennsylvania Superior Court on February 10, 2015. (Resp't Ex. 15, Memorandum, 2/10/15; ECF No. 10-7, pp.1-6.)
Counsel for Petitioner filed the instant Petition and Brief in Support thereof on December 14, 2015. (ECF Nos. 1, 2.) Respondents filed their Answer to the Petition on March 9, 2016 (ECF No. 10), and Petitioner filed a Reply to their Answer on March 23, 2016 (ECF No. 13).
C. Applicable Standards
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the "contrary to" clause], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1498. The Third Circuit Court of Appeals, consistent with the Williams v. Taylor interpretation, set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528 U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1) is restricted "to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 365. Under the "unreasonable application" clause,
a federal habeas court may not grant relief simply because that 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. If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 F. App'x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) ("When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires."). Indeed, the Third Circuit recently explained that,
[w]hile a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is "firmly convinced that a federal constitutional right has been violated," Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) ("[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard"). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).
The AEDPA further provides for relief if an adjudication "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)(2). Under § 2254(d)(2), a state court decision is based on an "unreasonable determination of the facts" if the state court's factual findings are "objectively unreasonable in light of the evidence presented in the state-court proceeding," which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
2. Exhaustion and Procedural Default
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. Specifically, a federal habeas court may not grant a state prisoner's petition for writ of habeas corpus unless he has first presented his federal constitutional claims to the state courts. 28 U.S.C. § 2254(b)(1)(A). This is called the "exhaustion" requirement and it is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). See also O'Sullivan v. Boerckel, 526 U.S. 838, 842-49 (1999). In order to exhaust a claim, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
"If a claim has not been fairly presented to the state courts but state law clearly forecloses review, see Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998), 28 U.S.C. § 2254(b)(1)(B)(i), exhaustion is excused, see, e.g., Lambert [v. Blackwell], 134 F.3d [506] at 513, 517-19 [(3d Cir. 1997)]; Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996), but the doctrine of procedural default may come into play." Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Under the procedural default doctrine, a federal court may be precluded from reviewing claims in certain situations. See Gray v. Netherland, 518 U.S. 152, 162 (1996) (The procedural default doctrine prohibits federal habeas courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment); Coleman v. Thompson, 501 U.S. 730, 732 (1991) (If a petitioner has failed to properly exhaust a claim - for example, he failed to comply with a state procedural rule, and as a result the state court declined to adjudicate the claim on the merits, the claim is defaulted in federal habeas corpus under the procedural default doctrine.). As the United States Court of Appeals for the Third Circuit explained in Rolan v. Coleman, 680 F.3d 317 (3d Cir. 2012):
Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001); or when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).Rolan, 680 F.3d at 317.
A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: 1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or 2) failure to consider the claims will result in a "fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). To satisfy the cause standard, a petitioner must demonstrate that some objective factor external to the defense impeded his or her efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions, not merely that the error created a "possibility of prejudice." Carrier, 477 U.S. at 494; United States v. Frady, 456 U.S. 152, 170 (1982). Where a petitioner cannot make a showing of "cause and prejudice," a federal court may nevertheless consider the merits of his or her unexhausted claims under circumstances in which the failure to adjudicate such claims would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. This exception to the procedural default doctrine is based on the principle that, in certain circumstances, "the principles of comity and finality that inform the concepts of cause and prejudice 'must yield to the imperative of correcting a fundamentally unjust incarceration.'" Carrier, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).
The "prototypical example" of a miscarriage of justice is a situation in which an underlying constitutional violation has led to the conviction of an innocent defendant. Sawyer v. Whitley, 505 U.S. 333, 340 (1992). In that instance, the merits of a petitioner's claims can be considered notwithstanding his or her failure to raise them before the state courts. In order to avail himself or herself of this exception to the procedural default rule, a petitioner must make a substantial showing that he or she is actually innocent of the crime for which he or she is incarcerated. Schlup v. Delo, 513 U.S. 298, 324 (1995).
Finally, in Martinez v. Ryan, 132 S. Ct. 1309 (2012), the United States Supreme Court recognized a narrow exception to the doctrine of procedural default: "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." This exception is available to a petitioner who can show that: (1) his procedurally defaulted ineffective assistance of trial counsel claim has "some merit," id. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)); and that (2) his state-post conviction counsel was "ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984)." Id.
In order to prove ineffective assistance of counsel under Strickland v. Washington, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-88. A petitioner must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. These are referred to as the "performance" and "prejudice" prongs, respectively. See Bey v. Superintendent Greene SCI, 856 F.3d 2300. 238 (3d Cir. 2017).
D. Discussion
Petitioner raises the following four claims in his Petition, all of which allege ineffective assistance of counsel: (1) ineffective assistance of counsel for failing to advise Petitioner of the substantial risks of not taking the ten (10) to twenty (20) year plea offer; (2) ineffective assistance of counsel for failing to object to the hearsay testimony regarding Taj McBride; (3) ineffective assistance of counsel for failing to object to misleading jury instructions; and (4) ineffective assistance of counsel for failing to file a motion for judgment of acquittal based on violation of the corroboration rule.
1. Petitioner's claims are unexhausted and procedurally defaulted.
First, all four of Petitioner's IAC claims are unexhausted because they were either abandoned on his PCRA appeal (claim one) or not raised in state court in any form whatsoever (claims two, three and four). Since Petitioner would be time-barred from raising them in state court at this point in time, see 42 Pa. C.S.A. § 9545(b), the claims are also procedurally defaulted. Indeed, counsel for Petitioner acknowledges that the claims are procedurally defaulted and attempts to overcome the default of the claims by arguing that they fall within the exception enunciated by the Supreme Court in Martinez v. Ryan, 132 S. Ct. 1309 (2012). See, II.C.2 supra.
2. Petitioner cannot overcome the procedural default of claim one.
Petitioner's first claim cannot be saved by Martinez because the United States Supreme Court made clear that the "narrow exception" to the procedural default doctrine announced in that case applies only to attorney error in initial-review collateral proceedings, not appeals from those proceedings. 132 S. Ct. at 1320. See also Norris v. Brooks, 794 F.3d 401, 404 (3d Cir. 2015). While claim one was raised in Petitioner's pro se PCRA Petition (Resp't Ex. 8, PCRA Petition; ECF No. 10-4, pp.2, 17-18), it was not raised in his PCRA appeal. Thus, the default of this claim was caused by Petitioner's PCRA appellate counsel, not Attorney Foreman who was appointed to represent him in the PCRA-court phase of the litigation. Martinez, therefore, does not apply. See Federal Habeas Manual § 9B:62 ("The Court's decision in Martinez was influenced by the realization that '[w]hen an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim.' 132 S. Ct. at 1316. Because this concern is not present in 'appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts,' a petitioner may not use attorney error in one of those proceedings as cause to excuse a procedural default. 132 S. Ct. at 1320[.]"). Petitioner does not argue any other basis to excuse the procedural default of claim one. He argues neither cause and prejudice nor manifest injustice. Therefore, claim one is procedurally defaulted.
3. Assuming the procedural default of claims two , three and four can be excused under Martinez, they should be denied as without merit.
Petitioner's second, third and fourth claims were never raised in the state courts, but counsel for Petitioner argues that their procedural default should be excused due to PCRA counsel's ineffectiveness. To overcome the procedural default of these claims, Petitioner must first demonstrate that the claims are "substantial," which means that they must have "some merit." Martinez, 132 S. Ct. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). To demonstrate that a claim has "some merit," a petitioner must "show that reasonable jurists could debate whether (or, for that matter, agree that) . . . the issues presented were adequate to deserve further encouragement to proceed further." Miller-El, 537 U.S. at 336 (internal citation, quotation marks, and alternation omitted). This is a threshold inquiry that "does not require full consideration of the factual or legal bases adduced in support of the claims." Id. at 327, 336. In addition to demonstrating that the claim has "some merit," Petitioner must also show that state post-conviction counsel was ineffective under the standards of Strickland v. Washington to excuse the procedural default of the underlying claim. Martinez, 132 S. Ct. at 1318. As this Court has stated, "Martinez v. Ryan does not allow habeas petitioners who fail to make a claim until the federal habeas stage to obtain an evidentiary hearing and a de novo evaluation of the claim on the mere assertion that PCRA counsel was ineffective." Boggs v. Rozum, No. 3:14-cv-34, 2017 WL 1184062, at *9 (W.D. Pa. Jan. 5, 2017).
The Third Circuit Court of Appeals recently adopted the following rule with respect to Martinez. If a petitioner can show "that his underlying ineffective-assistance-of-trial-counsel claim has some merit and that his state post-conviction counsel's performance fell below an objective standard of reasonableness, [then] he has shown sufficient prejudice from counsel's ineffective assistance that his procedural default must be excused under Martinez." Workman v. Superintendent Albion SCI, -- F.3d --, 2018 WL 5987138, at *7 (3d Cir. Nov. 15, 2018).
For the reasons stated hereinafter, neither claim two, three nor four are substantial claims of ineffective assistance of trial counsel or have "some merit" under the standard contemplated by Martinez to excuse their procedural default. However, even assuming they do, and that PCRA counsel, Attorney Foreman, rendered ineffective assistance by failing to pursue them in an amended PCRA petition, they should nevertheless be denied as without merit.
i. Claim two: Taj McBride
Petitioner's second claim is that trial counsel was ineffective for failing to object to the hearsay testimony of witnesses who testified regarding Taj McBride's fears - that Petitioner and his family were threatening McBride, which caused him not to testify truthfully. Counsel for Petitioner argues that this testimony was extremely prejudicial and denied Petitioner due process and a fair trial. She also claims that Petitioner's trial counsel should have objected to the testimony on the grounds that it was admitted in violation of the Confrontation Clause of the Sixth Amendment.
Taj McBride was perhaps the Commonwealth's main witness at Petitioner's trial. Following the victim's murder, he gave multiple statements to investigators, including three recorded ones to police detailing what he knew about the homicide. However, at the beginning of Petitioner's preliminary hearing that was held on August 25, 2006, McBride testified contrary to his prior statements and denied knowing anything about the crime. Mid-testimony, McBride stated that he had to use the bathroom, and, while he was in the restroom, he asked to speak to the Deputy District Attorney Mark Tranquilli, who was the one conducting the hearing.
DDA Tranquilli testified at Petitioner's trial as to what occurred in the bathroom with McBride at Petitioner's preliminary hearing on August 25, 2006. He said that McBride was sitting on the floor of the bathroom in a tearful state holding his head in his hands and shaking his head from side to side. (TT 344.) McBride said that "he couldn't do it" because Petitioner's family was in the courtroom, including Petitioner's wife who he had been friends with for years. (TT 345-46.) Tranquilli testified that he told McBride he could either continue his "line of BS" in which case he would play McBride's taped statements for the Magistrate or McBride could tell the truth. (TT 346.) McBride said that he was afraid, that there had been some threats communicated to him, and he asked about witness protection. (TT 346.) He also indicated that he had been informed by his father that a hit had been put on him. (TT 346-47.) Tranquillli told McBride that he could go into witness protection if he did not feel safe. (TT 347.) When the preliminary hearing resumed, McBride changed course and testified that everything he said in the first half of the hearing was a lie and that his statements made to police were true. (TT 347-48.)
At trial, however, McBride once again changed his position and denied the truth of his prior recorded statements to police. (TT 157-81.) He testified that the police had forced him to make the statements and/or testify at the preliminary hearing, but he also testified that he had told the police that he was afraid of Petitioner and his family since he was "snitching." (TT 181-84.) Later in the trial, McBride's three recorded statements were played for the jury (TT 235-40), and his preliminary hearing testimony was read into the record (TT 353-412).
Detective Brian Weismantle, a homicide detective with the City of Pittsburgh homicide bureau, also testified at Petitioner's trial about Taj McBride's fears. He testified that he and his partner, Detective Canofari, first encountered McBride and Thomas McClintock at Petitioner's storefront on Bernd Street at 9:00 am on April 15, 2006, at which time both McBride and McClintock voluntarily agreed to go with the detectives to police headquarters for questioning. (TT 255-58.) They were questioned in separate rooms and each agreed to record their statements on tape. (TT 259.) McBride also provided more details to police in two additional statements that were taped on May 2, 2006 and June 16, 2006. (TT 259-61.) With regard to Petitioner's preliminary hearing, Detective Weismantle testified that it was originally scheduled for June 23, 2006, but it was postponed to June 30, 2006 at the request of defense counsel. (TT 275.) However, when Detective Weismantle and his partner went to pick up McBride from the Washington County Jail for the hearing on June 30, they discovered that he had been bailed out by Petitioner's wife the previous night. (TT 275.) After he failed to show for the preliminary hearing, a warrant was issued for his arrest and the hearing was again postponed. (TT 276-77.) Detective Weismantle testified that McBride contacted his office on July 5, 2006 and asked that the detectives come to speak with him. (TT 276.) When they met McBride at McKinley Park, McBride expressed that he was in fear for his safety and that he did not go to the hearing on June 30 because he was being held against his will by members of Petitioner's family. (TT 277, 291.) At that time, McBride was taken into custody due to the outstanding warrant for his failure to show at the June 30 preliminary hearing and later ordered into the witness protection program where he remained for approximately thirteen days before voluntarily leaving the program and ending up back at the Washington County Jail. (TT 278-79.)
Detective Weismantle and Detective Hal Bolin picked up McBride from the jail for Petitioner's preliminary hearing on August 25, 2006 (TT 279), and during the car ride Petitioner expressed concern about who would be in the courtroom and even drafted a note and asked the detectives to sign it indicating that they promised to protect him (TT 251-53, 280). Members of the public, including Petitioner's family and media personnel were present at the preliminary hearing. (TT 280.) When McBride took the stand to testify he did not testify consistently with what he had previously told police in his taped statements. (TT 281-82.) Detective Weismantle stated that he then gave DDA Tranquilli the note McBride had drafted in the car, and when McBride saw that he asked for a bathroom break. (TT 282.) Detectives Weismantle and Bolin escorted McBride to the bathroom because he was still in custody and once inside McBride said that he wanted to talk. (TT 283.) Detective Weismantle retrieved DDA Tranquilli from the courtroom and brought him into the bathroom to speak to McBride. (TT 283.) Once again McBride expressed his fears and told them that he could not "go through with it" because Petitioner was like family to him. (TT 283.) McBride asked for a few minutes to pray on it and when he returned to the courtroom he testified consistently with what he had told the police in his taped statements. (TT 284.)
As to Petitioner's argument that this testimony was hearsay, it was not. The out-of-court statements made by Taj McBride about his fears of testifying, as admitted at trial through the testimony of DDA Tranquilli and Detective Weismantle, were not offered for the truth of the matter asserted - that Petitioner's family was actually threatening McBride. Instead, they were offered as an explanation for why McBride's story kept flip-flopping. In fact, his fear of Petitioner's family was not the only testimony offered at trial to explain why he kept changing his story. McBride himself testified that the reason he changed his story in the second part of the preliminary hearing was because police threatened and physically assaulted him in the restroom during the bathroom break. He also testified that he lied to police in his taped statements because they threatened him with a knife and with twenty-five to fifty years of imprisonment for conspiracy. McBride's story alternated back and forth numerous times throughout the ordeal and each time he admitted that his prior statements were given out of fear of either Petitioner's family and friends or the police. Hearsay was not a basis on which trial counsel could have objected to the testimony about McBride's fears because they were introduced only to explain why his story kept changing.
Second, trial counsel had no basis to object to the testimony as a violation of the Sixth Amendment's Confrontation Clause. Not only does the Confrontation Clause only apply to hearsay statements offered for their truth, of which these were not, but it also only applies when a witness is unavailable and the defendant did not have a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (1985)); see also Davis v. Washington, 547 U.S. 813, 823-24 (2006). Taj McBride was available and did testify at Petitioner's trial. He even testified about the alleged threats that were made against him by Petitioner's family and his fear of the police, and he was cross-examined by trial counsel on these issues. Therefore, no violation of the Confrontation Clause occurred.
For these reasons, the undersigned finds that Petitioner's claim, even though procedurally defaulted and not substantial enough to warrant falling into the Martinez exception, is nevertheless without merit and should be denied if the Court finds reason to excuse the default and review the claim de novo. See Bey v. Superintendent Greene, SCI, 856 F.3d 230, 236 (3d Cir. 2017) (If the procedural default of a claim is excused then review of a petitioner's claim is de novo because the state court did not consider the claim on the merits).
ii. Claim three: Jury instructions
Petitioner's third claim is that trial counsel was ineffective for failing to object to the trial court's jury instructions on first-degree murder. In Pennsylvania, first-degree murder is defined as an "intentional killing," which is defined as a killing that is "willful, deliberate and premediated." Pa. C.S.A.§ 2502(d). It is the specific intent to kill which distinguishes first- degree murder from all other grades of homicide. With regard to specific intent, the judge instructed the jury as follows:
The jury was also instructed on third-degree murder and voluntary manslaughter. (TT 620-23.)
The specific intent to kill including the premeditation needed for first degree murder does not require planning or previous thought or any particular length of time. It can occur quickly. All that is necessary is that there be time enough so that the defendant can and does fully form an intent to kill and is conscious of that intention.(TT 619.) Counsel for Petitioner appears to disagree with that portion of the instruction that states specific intent does not require planning. She argues that a "deliberate" killing by definition requires planning, of which she claims there was no evidence presented at trial, and that trial counsel should have objected to the instruction as being inaccurate.
Pennsylvania accords its trial courts great discretion in phrasing jury instructions so long as the law is clearly, adequately, and accurately presented to the jury. Commonwealth v. Eichinger, 915 A.2d 1122, 1138 (2007). The trial court's instruction in this case accurately stated the law and tracked the exact language of the suggested standard jury instruction. See Pa. S.S.J.I. (Crim) §§ 15.2502A ("4. The specific intent to kill [including the premeditation] needed for first-degree murder does not require planning or previous thought or any particular length of time. It can occur quickly. All that is necessary is that there be time enough so that the defendant can and does fully form an intent to kill and is conscious of that intention.") The Pennsylvania Suggested Standard Criminal Jury Instructions do not provide a specific definition for the word "deliberate," and when faced with a similar challenge to the definition of first-degree murder in Pennsylvania, specifically the trial court's refusal to define the word "deliberate" in its jury instructions definition, the Pennsylvania Supreme Court rejected the attempt "to critique the subtleties of the language in the Pennsylvania Suggested Standard Jury Instructions" finding them to "thoroughly and accurately represent[] the law on first degree murder." Commonwealth v. Towles, 106 A.3d 591, 607 (Pa. 2014). The case law in Pennsylvania has "consistently held that the requirement of premeditation and deliberation is met whenever there is a conscious purpose to bring about death." Commonwealth v. O'Searo, 352 A.2d 30, 37 (Pa. 1976). The cases further hold that the specific intent to kill "can be formulated in a fraction of a second." Id. at 37-38 (footnote omitted). Counsel is not deemed ineffective for failing to object to a jury instruction given by the court where the instruction itself is justifiable and not otherwise improper.
Counsel for Petitioner also claims that trial counsel should have objected to that portion of the first-degree murder jury instruction involving the use of a deadly weapon on a vital part of the body.
When deciding whether the defendant had the specific intent to kill, you should consider all of the evidence regarding his words and conduct and the attending circumstances that may show his state of mind including the evidence of his use of a deadly weapon on a vital part o the victim's body. You may regard that as an item of circumstantial evidence from which you may, if you choose, infer the defendant did have the specific intent to kill.(TT 619-20.) Counsel argues that the instruction is unconstitutional because it creates an impermissible presumption of guilt which is illogical in all cases. For example, the use of a weapon on a vital part of the body could be done accidentally and without the specific intent to kill. Counsel states that the court erred by not instructing the jury that it could disregard the instruction if it found qualifying circumstances that would negate the inference.
The Pennsylvania Supreme Court has routinely rejected similar challenges. See, e.g., Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (holding that an instruction permitting the jury to infer the specific intent to kill from the appellant's use of a deadly weapon on a vital part of the victim's body was in accordance with the law, and trial counsel was not ineffective for failing to object to it); Commonwealth v. Murphy, 739 A.2d 141, 150 (Pa. 1999) (rejecting claim that trial counsel was ineffective for failing to object to the charge informing the jury that it could infer malice from the use of a deadly weapon on a vital part of the victim's body because such instruction is "consistent with long-standing jurisprudence of this Court"); Commonwealth v. Ly, 599 A.2d 613, 619 (Pa. 1991) (holding that "the instructions that the jury could infer malice or intent to kill from the use of a deadly weapon upon a vital part of the body was proper and does not shift the burden of production to the defendant"); Commonwealth v. O'Searo, 352 A.2d 30, 36-37 (Pa. 1976) (rejecting challenge to instruction that the jury could infer malice to kill from the use of a deadly weapon upon a vital part of the body and holding that the inference arising from the instruction is permissive, allowing the jury to either accept or reject it based on the attendant circumstances). In fact, it recently affirmed this conclusion when faced with a case wherein the appellant argued that the charge, even if generally valid, was invalid as to his case. See Commonwealth v. Hanible, 30 A.3d 426, 481 (Pa. 2011). In that case the court stated that the charge did not improperly shift the burden of proof to him and when read as a whole the jury instructions informed the jury that the defendant was presumed innocent and did not have to prove anything in his defense. Id. Such is the case here. The instruction was correct and appropriate and there was no basis on which trial counsel could have objected.
Furthermore, the Pennsylvania Supreme Court has stated that
[t]he inference or presumption that arises from the intentional use of a deadly weapon on the vital art of the body of another human being is merely a factual presumption. In the absence of any other evidence as to the defendant's intent, it is sufficient to sustain a finding of murder in the first degree. When evidence is introduced to overcome or rebut this presumption, the question of defendant's intent becomes one for the triers of fact. The triers of fact may, however, consider the presumption along with all other credible evidence presented on the issue of intent.Commonwealth v. Moore, 373 A.2d 1101, 1104 (Pa. 1977). Having considered all the testimony presented at trial, it was the function of the jury to resolve the question of whether Petitioner had formed the specific intent to commit murder of the first-degree.
In addressing Petitioner's challenge to the sufficiency of the evidence to demonstrate beyond a reasonable doubt that he possessed the requisite intent to commit first-degree murder, the trial court noted that other than the fact that the jury could infer that he intended to kill the victim based on the where the victim was shot, "there was compelling evidence that demonstrated [Petitioner] engaged in a willful, deliberate, and premediated act." (Resp't Ex.4; ECF No. 10-2, pp.12-13.) "That evidence began with his affirmative response, by conduct, to Thomas McClintock's 'suggestion' that the person who molested his daughter should be killed, continued with his readying the murder weapon and luring the victim to McKinley Park, and culminated with the gunshot wound to the victim's head." Id., p.13.
In sum, neither of the ineffective assistance of counsel arguments set forth by Petitioner's counsel in connection to the jury instructions are substantial to warrant falling into the Martinez exception and the Court should find that they are procedurally defaulted or deny them in the alternative as being without merit.
iii. Claim four: Corroboration
Petitioner's final claim is that counsel was ineffective for failing to move for judgment of acquittal based on a violation of the corroboration rule because there was no evidence that Petitioner had any involvement in the murder of the victim except for his statements set forth in the testimony of Taj McBride, Thomas McClintock and Angel Molina.
It is well settled that "a confession is not evidence in the absence of proof of the corpus delicti . . . . [W]hen the Commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime." Gray v. Commonwealth, 101 Pa. 380, 386 (Pa. 1882); see also Commonwealth v. Smallwood, 442 A.2d 222, 225 (Pa. 1982) (extending rule to admissions and statements of the accused; not limited to formal confessions). "Corpus delicti" means, literally, "the body of the crime." Black's Law Dictionary 344 (6th ed. 1990). The "corpus delicti consists of the occurrence of a loss or injury resulting from some person's criminal conduct." Commonwealth v. McMullen, 681 A.2d 717, 721 (Pa. 1996).
In essence, the rule stands for the proposition "that a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti." Commonwealth v. Ware, 329 A.2d 258, 275 (Pa. 1974) (citing Commonwealth v. May, 301 A.2d 368, 369 (Pa. 1973)). "[T]he corpus delicti rule has never been termed a constitutional requirement, but rather has been described as a 'general rule that . . . has been consistently applied in the lower federal courts and in the overwhelming majority of state courts . . . .'" U.S. ex rel. Howard v. Johnson, 508 F.3d 322, 330 n.28 (3d Cir. 1975) (quoting Smith v. United States, 348 U.S. 147, 152-153 (1954)).
In Pennsylvania, the corpus delicti rule requires the Commonwealth to present evidence independent of the defendant's statements that: (1) a loss has occurred; and (2) the loss occurred as a result of a criminal agency. Commonwealth v. May, 301 A.2d 368, 369 (Pa. 1973). Only then can "the Commonwealth . . . rely upon statements and declarations of the accused" to prove that the accused was, in fact, the criminal agent responsible for the loss. Id. "The grounds on which the rule rests are the hasty and unguarded character [that] is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed." Commonwealth v. Turza, 16 A.2d 401, 404 (Pa. 1940).
The Pennsylvania Supreme Court has stated that a corpus delicti in a murder prosecution consists of proof that an individual is dead and that the death resulted from criminal means. Commonwealth v. Tallon, 387 A.2d 77 (Pa. 1978). The Pennsylvania Supreme Court has explained that
[t]he first element, that a human being is in fact dead, rarely presents difficulty. But proof of the second element - that death occurred through a criminal agency, - frequently is disputed. Often the circumstances of death are such that homicide cannot be established absent the statements of the accused as the cause of death to the exclusion of the accident or suicide. Accordingly, we have held that the corroboration policy is satisfied if the independent evidence points to an unlawful killing, although it may indicate as well accident or suicide, or where the circumstances attending the death are consistent with crime, though they may also be consistent with accident . . . or suicide. Although corroboration is insufficient if the independent evidence is equally consistent with accident or criminality, the prosecution has no duty to affirmatively exclude the possibility of accident or suicide in order to establish the corpus delicti.Ware, 329 A.2d at 274-75 (internal citations, quotations and footnote omitted).
Counsel for Petitioner argues that there was no independent evidence corroborating Petitioner's involvement in the victim's homicide other than the statements that he made to Taj McBride, Thomas McClintock and Angel Molina. However, counsel's argument seems to confuse the elements of corpus delicti for a homicide prosecution. The only thing that must be corroborated by independent evidence is the elements of corpus delicti, which in a murder case "consists of proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act." Commonwealth v. Milliken, 300 A.2d 78, 82 (Pa. 1973). "The Commonwealth need not establish a connection to [the defendant] in order to establish corpus delicti, although to establish a prima facie case the Commonwealth is required to show a connection between the defendant and the crime." Commonwealth v. Meder, 611 A.2d 213, 218 (Pa. Super. 1992). "All the Commonwealth need demonstrate, independently of the confession or incriminating statements, is that the death occurred under circumstances that indicate criminal activity. Once this is shown, the confession or incriminating statements are admissible." Id.
In her Reply brief submitted in response to Respondents' Answer to the Petition, Counsel for Petitioner disagreed with Respondents' assessment of this claim as being an alleged violation of the corpus delicti rule and argued that the "'corroboration rule' is not to be confused with the corpus delicti rule." (ECF No. 13, p.12.) In support of her argument, she cites to Smith v. United States, 348 U.S. 147 (1954) and Opper v. United States, 348 U.S. 84 (1954), two cases by the Supreme Court in 1954 that announced a new approach to the corpus delicti rule. Opper and Smith adopted the "trustworthiness doctrine" for determining whether a defendant's statements could be used to prove the defendant's guilt. Under the Supreme Court's version of the trustworthiness doctrine, a defendant's confession or statement may be used to prove the defendant's guilt as long as the prosecution introduces "substantial independent evidence which would tend to establish the trustworthiness of the statement." Opper, 348 U.S. at 93. The Supreme Court adopted this approach after recognizing the number of false confessions that are often voluntarily made. Thus, it abrogated the strictures of the corpus delicti rule in favor of an approach measuring the reliability of the defendant's confession or admission and permits a confession to be relied upon to meet and remedy a deficiency otherwise existing in the proof of corpus delicti if the trustworthiness of the confession appears to be assured by circumstances shown by the independent evidence. This independent evidence must corroborate the essential facts contained within the defendant's statements sufficiently to justify an inference of their truth. However, in 2003, the Pennsylvania Supreme Court chose not to follow the federal and state jurisdictions that have adopted the trustworthiness approach to the corpus delicti rule that was announced in Opper and Smith. See Commonwealth v. Taylor, 831 A.2d 587, 594-95 (Pa. 2003). Instead, Pennsylvania has consistently required only "that the prosecution introduce evidence independent of the defendant's statements which establishes that a crime in fact occurred." See Ware, 329 A.2d at 274.
The first element of corpus delicti that must be established is that a person is dead. That element does not appear to be disputed here as the body of the victim was found the next day. The second element is that the death occurred under circumstances that indicate that it was criminally caused by someone. In this case, there was evidence independent of the statements made by Petitioner that show the circumstances of the victim's death clearly point to and are consistent with felonious homicide - specifically, both forensic and non-forensic witnesses testified that the victim was found in a wooded area with a through and through gun-shot wound to the head and no weapon found at the scene. Thus, the Commonwealth established that the death occurred under circumstances indicating that it was criminally caused by someone, and, therefore, it was proper to permit consideration of Petitioner's extra-judicial admissions and statements.
There was no basis for trial counsel to move for a judgment of acquittal based on the violation alleged by Petitioner. Therefore, trial counsel cannot be deemed ineffective for failing to do so. Like Petitioner's other two claims, this claim is also not substantial enough to warrant falling into the Martinez exception and the Court should find that it is procedurally defaulted or deny it in the alternative as being without merit.
E. Certificate of Appealability
A court should issue a certificate of appealability where a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner meets this burden by showing that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). A certificate of appealability should be denied in this case because jurists of reason would not disagree with the Court's resolution of Petitioner's claims or conclude that they are "adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484).
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be denied and that a Certificate of Appealability also be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: December 3, 2018.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: All counsel of record
(Via CM/ECF electronic mail)