Opinion
Civil Action No. 04-2625.
October 19, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the State Correctional Institution at Houtzdale, Pennsylvania. For the reasons that follow, the court respectfully recommends that the petition be denied.
I. BACKGROUND
The Commonwealth proved the following facts at trial. On April 28, 1995, petitioner shot and killed Clarence Moore in the vicinity of 43rd and Pennsgrove Streets in Philadelphia. Three eyewitnesses, Birdalla Bruner, John Bruner, Sr., and John Bruner, Jr., saw petitioner aim a nine-millimeter semi-automatic pistol and fire seven shots in succession at the victim, Mr. Moore. (N.T., 2/26/97, at 53-54, 56-57, 81; N.T., 2/27/97, at 7-8.) Shortly thereafter, the police were summoned to the scene. Immediately upon arrival, police officer Pamela Davis attempted to talk to the victim. (N.T., 2/26/97, at 76.) The victim told the police officer that he was dying and that petitioner had shot him. Id. Mr. Moore later died as a result of his injuries. Id. at 77, 143. Petitioner fled the scene and was not apprehended by the Philadelphia police until April 20, 1996.
On March 3, 1997, a jury sitting in the Court of Common Pleas for Philadelphia County convicted petitioner of first degree murder, carrying a firearm on a public street, and possessing an instrument of crime. Petitioner was sentenced to life imprisonment on the first degree murder conviction, and an aggregate concurrent term of two to four years imprisonment on the remaining convictions.
Petitioner appealed to the Superior Court of Pennsylvania and raised two issues: first, whether the evidence was insufficient to sustain the verdict of murder in the first degree and second, whether petitioner was entitled to an evidentiary hearing and/or a new trial because of prosecutorial misconduct in the form of inflammatory and prejudicial comments throughout the Commonwealth's closing argument. Commonwealth v. Holmes, No. 3769 Phila. 1998, slip op. at 1 (Pa.Super.Ct. Nov. 10, 1999). The court affirmed the judgment of sentence on November 10, 1999.Commonwealth v. Holmes, 748 A.2d 1251 (Pa.Super.Ct. 1999). The Pennsylvania Supreme Court denied allocatur on March 28, 2000. Commonwealth v. Holmes, 753 A.2d 815 (Pa. 2000).
On March 16, 2001, petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. On November 18, 2002, the PCRA court dismissed the petition as meritless. Petitioner appealed to the Superior Court and raised the following three issues: (1) whether petitioner was deprived of the effective assistance of counsel by his trial counsel's failure to object to two defects in the jury charge; (2) whether petitioner was deprived of the effective assistance of counsel by his trial counsel's failure to move in limine or otherwise object to the admission of "other acts" evidence; and (3) whether petitioner was deprived of effective assistance of counsel by his trial counsel's failure to seek the introduction of a potentially exculpatory 911 recording. On October 23, 2003, the Superior Court affirmed the PCRA court's dismissal of the petition.Commonwealth v. Holmes, 839 A.2d 1155 (Pa.Super.Ct. 2003). Petitioner's request for discretionary review was denied by the Pennsylvania Supreme Court on June 9, 2004. Commonwealth v. Holmes, 852 A.2d 311 (Pa. 2004).
On June 15, 2004, petitioner filed his petition for a writ of habeas corpus. He raises three issues which are divided into numerous subclaims. The issues are as follows:
Ground One: Ineffective Assistance of Counsel and Due Process Violation
Judge charged jury in 1st degree murder case, that only "essential" elements had to be proved beyond a reasonable doubt and omitted intent to kill from the essential elements; erred in reasonable doubt instruction by saying it could come only from the evidence and not the lack of evidence.
Ground Two: Ineffective Assistance of Counsel and Due Process
Trial counsel failed to move in limine to bar inadmissible "other acts" evidence and failed to introduce exculpatory evidence.Ground Three: Due Process Violation
Prosecutorial misconduct in closing argument that inflamed the jury.
(Petition ¶ 12.) II. STANDARD OF REVIEW A. Habeas Corpus Standards
Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows:
(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1) and (2). With respect to § 2254(d)(1), a federal habeas petitioner is entitled to relief under the "contrary to" clause only 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."Williams v. Taylor, 529 U.S. 362, 413 (2000). The Court inWilliams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08. See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.) (en banc) (to prove entitled to relief under "contrary to" clause, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; . . . petitioner must demonstrate that Supreme Court precedent requires the contrary outcome") (emphasis in original), cert. denied, 528 U.S. 824 (1999).
Under the "unreasonable application" clause, a federal habeas court may not issue the writ simply because that court concludes "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision is also objectively unreasonable. Id. See Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (federal habeas court should not grant the petition unless "the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified" under existing Supreme Court precedent) (quoting Matteo, 171 F.3d at 890), cert. denied, 528 U.S. 824 (1999).
With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state court, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Standard for Ineffective Assistance Claims
Two of petitioner's claims allege ineffective assistance of counsel. Before the court addresses the specifics of these claims, the court will first review the standards used to evaluate an ineffective assistance claim.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide effective assistance. Under the Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there exists a reasonable probability that, barring counsel's ineffectiveness, the result of the proceeding would have been different. Id. at 688-96. To satisfy the first prong of the Strickland test, a petitioner is required to show that "counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In evaluating counsel's performance, a reviewing court should be "highly deferential" and must make "every effort . . . 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." Id. at 689. Moreover, there is 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. (citation omitted).
To satisfy the second prong of the Strickland test, a petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. It follows that counsel cannot be ineffective for failing to pursue meritless claims or objections.United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999);United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987).
Where, as in the instant case, the state court has already rejected an ineffective assistance of counsel claim, a federal court must defer to the state court's decision pursuant to 28 U.S.C. § 2254(d)(1). As the Supreme Court recently stated:
If a state court has already rejected an ineffective-assistance claim, a federal court may grant habeas relief if the 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). Where, as here, the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable.Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) (citations omitted).
III. PETITIONER'S CLAIMS A. Claim No. 1
Petitioner's first claim has three subparts. First, petitioner alleges that the trial judge violated his federal due process rights by instructing the jury that the "essential" elements of murder had to be proved beyond a reasonable doubt, while supposedly omitting "intent to kill" from the essential elements. Second, petitioner claims that the trial judge erred by purportedly instructing the jury that "reasonable doubt" could arise only from the evidence presented at trial, but could not arise from the lack of evidence. Finally, petitioner alleges that his trial counsel was ineffective for failing to object to the erroneous jury instruction given by the trial court.
1. Instruction on First Degree Murder
Petitioner first claims that the trial court's jury instruction on first degree murder was erroneous under state law and that trial counsel was ineffective for not objecting to the same. He also argues that the jury instruction improperly removed the Commonwealth's burden of proving malice and specific intent "beyond a reasonable doubt," which are essential elements of the offense under state law, and thus violates federal due process rights. The Superior Court addressed these arguments on appeal from the dismissal of the PCRA petition.
The Superior Court, after reviewing the instructions as a whole, found that the instructions "were sufficiently clear and unambiguous and did not lessen the Commonwealth's burden of proof." Commonwealth v. Holmes, No. 3176 EDA 2002 (Pa.Super.Ct. Oct. 23, 2003). The trial judge's instructions on first degree murder were as follows:
I shall now define murder for you. First, let me tell you that in all murder, whatever the degree, there is an element which we call malice. If there is no malice, there is no murder. There is a legal definition of malice which is as follows: Malice consists of either an expressed intent to kill or an expressed intent to inflict great bodily harm or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty, which indicates an unjustified disregard for the likelihood of death or great bodily harm, and an extreme indifference to the value of human life.
Legal malice may be inferred and found from the attending circumstances of the act resulting in the death.
Now, a definition of murder in the first degree. A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. As used in this statute, an intentional killing means, among other things, any wilful, deliberate and premeditated killing.
A killing is wilful and deliberate if the defendant consciously decides to kill the victim, and it is premeditated if the defendant possessed a fully formed intent to kill at the time when he acted, even though there need not have been any appreciable amount of time between the time when the defendant first conceived the idea of killing and the time when he acted.
The design to kill can be formulated in a fraction of a second.
(N.T., 2/28/97, at 7-8.) In addition, the trial judge gave the following instructions:
I charge you now on the presumption of innocence. The mere fact that the defendant has been arrested and is accused of crime is not evidence of guilt. The defendant comes before you presumed to be innocent. The presumption of innocence continues throughout the trial, not only at the beginning of the trial, but throughout all of its stages and even while you, the jury, consider your verdict.
It continues throughout the trial and it is the burden of the Commonwealth to prove the defendant guilty beyond a reasonable doubt.
There is no burden of proof and there is no burden of disproof on the part of the defendant. As I said before, there is only one burden of proof, and that is on the Commonwealth, and the measure of that burden is to convince you of the guilt of the defendant beyond a reasonable doubt.
Now, the reasonable doubt standard does not apply to every specific detailed fact of a criminal case, but only to the essential elements of the crime.Id. at 16-17. The trial judge later continued her instruction stating:
As far as homicide is concerned, there are three essential elements in homicide generally: Number one, a death has occurred; number two, the death resulted from criminal agency; and number three, the defendant is legally responsible for that death.
Now, in order for the homicide to be murder in the first degree, the killing must have been done intentionally, with malice. In order for it to be murder in the third degree, the killing must have been done with the intent to do great bodily harm, but not to kill, also malice.
In other words, the only difference between first and third degree murder is the intent with which the murder was done. If the intent was to kill, it is murder in the first degree. If the intent was to do great bodily harm but not to kill, it is murder in the third degree.Id. at 18-19.
Petitioner argues that the above instructions failed to adequately inform the jury that malice and the intent to kill were elements that had to be proved beyond a reasonable doubt. The Superior Court rejected this argument finding "that, as a whole, the jury was adequately appraised of the law it must consider in reaching a verdict in this case and was not given the impression, as Appellant argues, that malice and specific intent could be established by anything less than beyond a reasonable doubt." Commonwealth v. Holmes, No. 3176 EDA 2002, slip op. at 11 (Pa.Super.Ct. Oct. 23, 2003).
Underlying petitioner's ineffective assistance of counsel claim is his assertion that the jury instruction violated both state and federal law. Since the Superior Court of Pennsylvania found that the jury instruction fully complied with state law, it can hardly be said that counsel was ineffective for not challenging the instruction on state law grounds. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (counsel is not ineffective for failing to raise meritless objections); United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987) (same). To the extent that petitioner now asks this court to re-examine the Superior Court's interpretation of state law, this court declines to do so. Generally, federal habeas courts cannot re-examine a state appellate court's determination of state law. See Johnson v. Rosemeyer, 117 F.3d 104, 115 (3d Cir. 1997) ("[O]nly in extraordinary and compelling circumstances should a federal district court in a habeas corpus case decline to follow the opinions of a state intermediate court of appeal with respect to state law rendered in earlier proceedings involving the petitioner.").
While this court is not bound by the Superior Court's interpretation of the federal Constitution, it still must give deference to the state court's interpretation of federal law as required by 28 U.S.C. § 2254(d). Petitioner argues that the state court's jury instructions deprived petitioner of due process of law as guaranteed by the Fourteenth Amendment to the Constitution. Petitioner argues that a jury instruction which improperly removes the Commonwealth's burden of proving "malice and intent to kill," which are essential elements of the offense under state law, violates federal due process rights. See, e.g., Smith v. Horn 120 F.3d 400, 409-10 (3d Cir. 1997) (instruction on first degree murder that improperly removed Pennsylvania's burden of proving specific intent violated defendant's federal due process rights), cert. denied, 522 U.S. 1109 (1998). But see Johnson, 117 F.3d at 110 (In order for a jury instruction based on state law to violate due process of law, the instruction "would need to have relieved the state of the necessity of proving an element of the offense as required by federal law.") (emphasis added).
This court agrees with the Superior Court's conclusion that the trial court's jury instructions, read as a whole, did not relieve the Commonwealth of showing that petitioner harbored malice and possessed the specific intent to kill. The United States Supreme Court has long held that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The Court stressed that each instruction forms "but one of many such instructions" and, therefore, the disputed instructions "must be viewed in the context of the instructions as a whole." Id. at 147. Here, the trial court first instructed the jury on the elements of first degree murder which included "malice," which consists of "an expressed intent to kill." (N.T., 2/28/97, at 7-8.) Then the court told the jury that all the essential elements of the crime must be proved beyond a reasonable doubt. Id. at 16-17. Finally, the trial court repeated that "in order for the homicide to be murder in the first degree, the killing must have been done intentionally, with malice." Id. at 18-19. Viewing all these portions of the instructions as a whole, and not in isolation, it is clear that the trial court did not reduce the Commonwealth's burden of proving all the elements of first degree murder beyond a reasonable doubt. Accordingly, petitioner's federal due process claim is meritless and counsel was not ineffective for failing to object to the instructions on constitutional grounds. 2. Reasonable Doubt Instruction
Petitioner next claims that the trial judge's instructions to the jury were not clear that reasonable doubt could arise from a lack of evidence, as well as from the evidence presented. Further, petitioner claims that trial counsel was ineffective for not objecting to the instructions. The Superior Court of Pennsylvania rejected these claims as meritless. Commonwealth v. Holmes, No. 3176 EDA 2002, slip op. at 5-7 (Pa.Super.Ct. Oct. 23, 2003). In her instructions, the trial judge told the jury that "[a] reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence." (N.T., 2/28/97, at 17 (emphasis added).) Petitioner argues that the court contradicted itself or improperly limited its instruction when it explained as follows:
It must be a real doubt and it cannot be a doubt fancied or conjured up in the minds of you, the jury, to escape an unpleasant verdict. It must be an honest doubt arising out of the evidence itself, the kind of doubt that would restrain a reasonable man or woman from acting in a manner of importance to himself or herself.
(N.T., 2/28/97, at 17-18.)
Petitioner's argument is nearly identical to that made by the habeas corpus petitioner in Thompson v. Kelchner, 2002 WL 31027892 (3d Cir. May 8, 2002) (non-precedential opinion),cert. denied, 537 U.S. 1005 (2002). In Thompson, the petitioner objected to the following jury instruction:
"Reasonable doubt is not merely any imagined or passing fancy that may come into the mind of a juror, it must be doubt arising from the evidence that is substantial and well founded on reason and common sense," and "If you as jurors cannot find evidence on which to base doubt, then it is not doubt arising from the evidence and not reasonable doubt; simply a possible doubt." Id. at **5. The petitioner in Thompson argued that she was deprived of the protections of the reasonable doubt standard because it was reasonably likely this language led the jury to conclude that reasonable doubt could not arise from an absence or a lack of evidence. The Third Circuit rejected this argument, stating the following:
The instructions went on to define reasonable doubt, explicitly stating that reasonable doubt could arise "out of the void, absence, or lack of evidence presented with respect to some element of the crime." When the instructions subsequently stated that reasonable doubt "must be doubt arising from the evidence," it was merely to distinguish reasonable doubt from "an imagined or passing fancy that may come into the mind of a juror." Similarly, when the instructions stated that if "jurors cannot find evidence on which to base doubt, then it is not doubt arising from the evidence and not reasonable doubt; simply a possible doubt," it was to distinguish reasonable doubt from speculation or "possible doubt," as the preceding and succeeding sentences made clear. When read in context, those sentences challenged simply because they did not repeat the "void, absence, or lack of evidence" language cannot be fairly read to eviscerate or contradict the extensive and correct instructions given by the trial court.Id. at **6. Furthermore, the Court of Appeals noted that "there is no requirement, at least as a matter of federal law, that the jury be instructed that reasonable doubt can be based on a lack of evidence." Id. at **7.
Because the Superior Court has ruled that the trial court's instructions on reasonable doubt were entirely proper, counsel cannot be ineffective for failing to object to the instructions on the basis of state law. Furthermore, since the Third Circuit Court of Appeals has rejected the same argument petitioner makes here, it cannot be said that the Superior Court's rejection of petitioner's argument was erroneous. Accordingly, any challenge to the reasonable doubt instructions — whether based on federal or state law — would have been meritless and thus counsel cannot be considered ineffective for not objecting to the instructions. B. Claim No. 2 1. Ineffective Assistance of Counsel — "Other Acts" Evidence
In his second claim, petitioner contends that his trial counsel was ineffective for failing to "move in limine to bar inadmissible `other acts' evidence." (Petition ¶ 12.) The Superior Court carefully examined and rejected this claim on PCRA review. Commonwealth v. Holmes, No. 3176 EDA 2002, slip op. at 11-14 (Pa.Super.Ct. Oct. 23, 2003). The "other acts" evidence to which petitioner refers was testimony by the victim's aunt, Mrs. Bruner, that petitioner previously had threatened her son and the victim, and testimony by petitioner's sister that she had told police that she had observed petitioner with a gun in his possession on at least one earlier occasion. Id. at 11. The facts do not support petitioner's contention. The Superior Court recounted as follows:
With regard to Mrs. Bruner's testimony, we find that the record in this matter belies Appellant's contention that his trial counsel failed to attempt to have the evidence precluded from admission. Prior to trial, counsel did, in fact, present a motion in limine to preclude Mrs. Bruner from testifying that two weeks before the murder she saw the Appellant coming toward her and her nephew pointing a shotgun in their direction. (N.T. 2/26/97, at 4-6.) Trial counsel specifically argued to the court that such testimony "is inadmissible as prior bad acts testimony for which [Appellant] has not been charged. It would be more prejudicial to the jury than probative." (Id. at 6.) The trial court overruled counsel's objection to admission of the evidence at that time and the trial proceeded.
During trial, Mrs. Bruner testified regarding an argument she witnessed between Appellant, the victim, and her son. As a result of this argument, Mrs. Bruner testified that she had advised her nephew "to stay from around here because they was threatening to kill him and my son." (Id. at 61.) Trial counsel objected to this testimony and the court sustained the objection. (Id.) It is clear, therefore, that Appellant's claims that his trial counsel sat mute while prejudicial evidence was admitted at trial are not supported by the record. His trial counsel not only litigated a motion in limine prior to trial, but also objected to certain potentially prejudicial evidence at trial. . . . Accordingly, because trial counsel obviously attempted to preclude admission of certain "prior bad acts" evidence, we find that Appellant has failed to demonstrate that his counsel was ineffective in his representation.Id. at 12-13. Counsel cannot be found ineffective for failing to take action which he did, in fact, take.
The Superior Court also addressed petitioner's claim that trial counsel failed to object to testimony from his sister that she previously had seen petitioner with a gun. The Superior Court rejected this claim and stated as follows:
With regard to Appellant's claim that his counsel was ineffective in failing to object to Appellant's sister's testimony on cross-examination that she previously had seen Appellant with a gun, our review of the testimony at issue leads us to conclude that even if we were to find that any of the evidence in question was admitted in error, Appellant has failed to satisfy the prejudice prong of his ineffectiveness claim: "Prejudice is established when an appellant demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings." Commonwealth v. Balodis, 560 Pa. 567, 572, 747 A.2d 341, 343-344 (2000). . . .
The Commonwealth presented the testimony of three separate eyewitnesses, all of whom previously had known Appellant for some time, who witnessed Appellant shooting the victim without provocation. Accordingly, the independent evidence of Appellant's guilt was so overwhelming that Appellant has not demonstrated that the evidence he sought to have precluded would have affected the outcome of the trial.Id. at 13-14.
This court does not find that the Superior Court's findings were contrary to, or involved an unreasonable application of, clearly established federal law, or 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. Accordingly, petitioner's claim that trial counsel was ineffective for failing to exclude certain testimony of prior bad acts should be denied. 2. Ineffective Assistance of Counsel — Exculpatory Evidence
Petitioner also contends that trial counsel was ineffective for failing to introduce exculpatory evidence consisting of a 911 telephone recording containing the statement that the parties were shooting at each other. (Petition ¶ 12.) See also Commonwealth v. Holmes, No. 3176 EDA 2002, slip op. at 14 (Pa.Super.Ct. Oct. 23, 2003.) Specifically, the recording stated as follows: "Yes, this is, uh, Pennsgrove on 43rd Street corner. About maybe ten gunshots (unreadable) Got somebody hold [sic] a gun in the car. They [sic] shooting each other." Id. Appellant argued in his PCRA petition that trial counsel erred in failing to seek the admission of this recording because it contradicted the prosecution's assertion that all shots were fired by petitioner. Id. The Superior Court carefully reviewed and rejected this claim and stated as follows:
The PCRA court held, however, that not only was the recording in question hearsay, and therefore not admissible, but that even if it were admissible, "the absence of that statement did not prejudice [Appellant's] case such that there is a reasonable probability that the verdict would have been different." (PCRA Court Opinion, 11/18/02, at 2.)
Appellant argues that the "contemporaneous observation of the 911 caller was admissible, regardless of the availability of the declarant, as a present sense impression." (Appellant's Brief at 26.) . . .
Even were we to agree with Appellant that, in fact, the 911 recording in this case was admissible at trial as a present sense impression, we nevertheless agree with the PCRA court's determination that Appellant has failed to demonstrate that his trial counsel's failure to seek admission of this recording into evidence impacted the jury's verdict. The evidence against Appellant was overwhelming. Thus, the prejudice prong of Appellant's ineffectiveness claim has not been satisfied.Id. at 14-15.
This court does not find that the Superior Court's findings were contrary to, or involved an unreasonable application of, clearly established federal law, or 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. Accordingly, petitioner's claim that trial counsel was ineffective for failing to seek to admit certain exculpatory evidence should be denied.
C. Claim No. 3
Lastly, petitioner argues that the prosecutor committed misconduct during his closing argument which inflamed the jury. (Petition ¶ 12.) Petitioner raised this claim on direct appeal, and the Superior Court considered and rejected the claim.Commonwealth v. Holmes, No. 3769 Phila. 1998, slip op. at 6-7 (Pa.Super.Ct. Nov. 10, 1999). Specifically, petitioner claimed that the prosecutor committed misconduct when he quoted from a poem that had "biblical overtones." Id. at 6. Petitioner objected to the following portions of the prosecutor's closing argument:
T.S. Eliot once wrote a long poem about the dead and the concept of being dead, about how none of us can truly understand it because we have never been dead, and he talked about the dead, whether they can speak, and what he finally said in the end was that the dead speak in tongues of fire, beyond the language of the living, and I always think those tongues of fire in the homicide victim are his wounds. You heard about his tongues of fire, Clarence's tongues of fire, through Dr. Hood. . . .
That defendant fired at Clarence Moore, Clarence Moore fired right back at him with his words, his tongues of fire, cannot get any more clearer than that. . . . Think about Clarence Moore, his tongues of fire.
(N.T., 2/27/97, at 79, 81, 86.) The Superior Court concluded that petitioner's claim of prosecutorial misconduct had been waived for failure to make a timely objection. Commonwealth v. Holmes, No. 3769 Phila. 1998, slip op. at 7 (Pa.Super.Ct. Nov. 10, 1999).
The Superior Court nonetheless considered the merits of petitioner's claim and found it to be meritless. The court stated as follows:
Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render and [sic] fair verdict. Commonwealth v. Hall, 549 Pa. 269, 285, 701 A.2d 190, 198 (1997) (citation omitted). Further, prosecutorial misconduct will not be found where comments were based on evidence or proper inferences therefrom or were only oratorical flair. Id. Here, it cannot be said that the prosecutor's comments so prejudiced the jury that they could not weigh the evidence objectively and render a fair verdict. It is clear that the prosecutor was using "oratorical flair" to highlight the victim's dying declaration identifying Appellant as his killer. While Appellant argues that the prosecutor's reference to the poem was "biblical like," it is clear that the prosecutor utilized a work of literature to illustrate a point. The reference clearly was not a biblical one. Accordingly, Appellant's claim of prosecutorial misconduct fails.Id.
The Superior Court's consideration of petitioner's argument was consistent with clearly established federal law as set forth by the United States Supreme Court. In Donnelly v. DeChristoforo, 416 U.S. 637 (1974), the Court ruled that the relevant constitutional standard was whether the prosecutor's disputed conduct, in the context of the entire proceeding, had "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 643. It "is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotation omitted). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987).
This court does not find that the Superior Court's findings were contrary to, or involved an unreasonable application of, clearly established federal law, or 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. Accordingly, petitioner's claim that the prosecutor engaged in misconduct during his closing argument should be denied.
IV. CONCLUSION
Accordingly, for all the above reasons, the court makes the following
RECOMMENDATION
AND NOW, this 19th day of October, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Petitioner also has pending before the court a Motion for Permission to Proceed In Forma Pauperis which was filed on August 26, 2003. (Document No. 8.) According to the docket, petitioner paid the five dollar filing fee. See Docket Entry No. 1 (referencing Receipt # 905975). It appears that this Motion is moot and should be denied.