Opinion
CIVIL ACTION NO. 21-724
01-20-2023
Len VANDO, Petitioner, v. Michael CLARK, et al., Respondents.
Len Vando, Somerset, PA, Pro Se. Samuel H. Ritterman, Ahmad Zaffarese LLC, Philadelphia, PA, David Napiorski, Philadelphia District Attorney, Philadelphia, PA, for Respondents.
Len Vando, Somerset, PA, Pro Se. Samuel H. Ritterman, Ahmad Zaffarese LLC, Philadelphia, PA, David Napiorski, Philadelphia District Attorney, Philadelphia, PA, for Respondents. MEMORANDUM EDUARDO C. ROBRENO, District Judge
I. INTRODUCTION
Pro se Petitioner Len Vando was convicted by a jury in the Philadelphia County Court of Common Pleas of third-degree murder in violation of 18 Pa. C.S. § 2502(c). Petitioner was sentenced to twenty (20) to forty (40) years' imprisonment for the offense. Petitioner now brings a § 2254 habeas petition raising four claims: (1) Petitioner's trial counsel was constitutionally ineffective for failing to object to the trial court's reasonable doubt instruction; (2) Petitioner's trial counsel was constitutionally ineffective for failing to file a motion to dismiss the complaint for a violation of his right to a speedy trial; (3) Petitioner's sentence was illegal due to the trial court denying him credit for time served from arrest to sentencing; and (4) Petitioner's trial and appellate counsel were ineffective for failing to argue that his prosecution was barred by double-jeopardy. See Petitioner's Federal Habeas Corpus Petition 10-25, ECF No. 1 [hereinafter "Pet."]. Magistrate Judge Lloret issued a Report and Recommendation recommending that the petition be granted on the single issue of the constitutionality of the reasonable doubt instruction given at trial and dismissed with prejudice as moot for all remaining issues. See generally R. & R., ECF No. 38.
Petitioner does not object to the Report & Recommendation. Also, the Commonwealth has conceded that Petitioner's first claim should be granted as recommended by Magistrate Judge Lloret in that the Superior Court's denial of this claim on PCRA was an unreasonable application of clearly established Supreme Court precedent. Moreover, the Commonwealth agrees that Petitioner was prejudiced by ineffective assistance of counsel when counsel failed to object to a hypothetical included in the trial court's reasonable doubt instruction. See Commonwealth's Resp. to Pet. for Writ of Habeas Corpus 12-29, ECF No. 34 [hereinafter "Com. Resp."]. I agree with Judge Lloret that the reasonable doubt instruction was unconstitutional and contrary to clearly established federal law as determined by the United States Supreme Court. For the reasons explained herein, Petitioner's habeas petition will be granted.
II. BACKGROUND
The facts underlying Petitioner's conviction are laid out in detail in Judge Lloret's thorough Report and Recommendation, and I will recount them briefly here. See R. & R. 2-6, ECF No. 38. The trial court summarized the facts of the case as follows:
On October 1, 2004, barmaid Maria Nunez was working at the ZIP Code Bar, at the intersection of Hope Street and Lippincott Street in Philadelphia. The ZIP Code Bar was being used as a venue for a birthday party for a member of the Latin Queens, which was the female counterpart of the Latin Kings gang, and many members of both gangs were at the party. Between 12:00 and 12:30 a.m., [Petitioner] and codefendant Juan Navarro showed up for the party. The doorman, who was supposed to search patrons to ensure that they did not bring weapons into the bar, was not at his post when Mr. Navarro arrived. Because weapons were not allowed at the bar, Mr. Navarro handed his gun to Ms. Nunez to hold, and she put it in her purse. Ms. Nunez was familiar with Mr. Navarro, having seen him at weekly meetings of the Latin Kings and Queens. At approximately the same time [Petitioner] and Mr. Navarro arrived at the bar, the victim in this case, Francisco Gonzalez, arrived with his girlfriend.
Near closing time, at around 2 a.m., Mr. Gonzalez was sitting at the bar when he reached over and, using his fingers, "plucked" the crown tattoo on Ms. Nunez's neck that signified her membership in the Latin Queens. After Ms. Nunez told Mr. Gonzalez not to touch her, he claimed to be a "First Crown" in the New York chapter of the Latin Kings. Ms. Nunez expressed disbelief that Mr. Gonzalez was a high-ranking member of the Latin Kings, and therefore asked him to state the "Five Points" of the Latin Kings, which any genuine Latin King would know. Mr. Gonzalez was unable to answer. Ms. Nunez then told another Latin King member, Clemente Garcia, that Mr. Gonzalez was claiming to be a First Crown Latin King, and that he had "plucked" her tattoo. Mr. Garcia then went to talk to [Petitioner]. Thereafter, Mr. Garcia, [Petitioner], and another Latin King, Edward Irizarry, confronted Mr. Gonzalez, telling him that they knew he was not a Latin King, and that he was being disrespectful to them. During that confrontation, Mr. Navarro stood nearby, staring up and down at Mr. Gonzalez.
Mr. Garcia then approached Ms. Nunez and asked her to give Mr. Navarro back his gun, which she had been keeping under the bar. Mr. Navarro also came over to Ms. Nunez and asked her to give him his gun back. Ms. Nunez retrieved the gun and gave it to Mr. Navarro. As Ms. Nunez looked on, [Petitioner], Mr. Garcia, and Mr. Irizarry dragged Mr. Gonzalez out of the bar. Mr. Navarro walked behind them out the door. Several other members of the Latin Kings followed . . . . Once everyone was outside
the bar, [Petitioner] "sucker punched" Mr. Gonzalez, who immediately fell to the ground. Mr. Navarro then pulled his gun from his waistband and shot Mr. Gonzalez multiple times in the head. Everyone present then fled the scene.Commonwealth v. Vando, No. CP-51-CR-0510182-2006, at 2-4 (Pa. Com. Pl. Dec. 29, 2011).
Based on these facts, Petitioner was charged in both federal and state court with the Gonzalez homicide. See United States v. Sosa, et al., No. 05-CR-00044, ECF Doc. No. 10 (Indictment); Commonwealth v. Vando, No. CP-51-CR-0510182-2006. After trial in federal court, Petitioner was found not guilty on conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, and using and carrying a firearm during a violent crime. However, he was found guilty on a separate conspiracy to commit murder in aid of racketeering and sentenced to 108 months imprisonment, followed by three years of supervised release. On the other hand, in state court, Petitioner's first trial ended with the jury unable to reach a verdict as to either Petitioner or his co-defendant, Navarro. After Petitioner's second state trial, a jury convicted Petitioner of one count of third-degree murder, and he was subsequently sentenced to the statutory maximum sentence of twenty to forty years' imprisonment to run consecutive to his federal sentence.
On December 22, 2014, Petitioner filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA). Petitioner then filed his federal habeas petition in this Court on January 28, 2021, while his PCRA appeal was still pending.
One of the five issues raised in the PCRA petitions, designated as claim 4, was that:
Trial defense counsel was ineffective for filing [sic] to object to the trial court's instruction on burden of proof beyond a reasonable doubt to the jury because the instruction was defective and allowed the jury to convict the defendant on a burden of proof standard below the reasonable doubt standard. The defendant's right to due process of law under the 14th Amendment of the U.S. Constitution[ ] and the due process clause of the State Constitution was violated by this defective instruction.Commonwealth v. Vando, Defendant's Rule 1925(b) Statement ¶ 4, No. CP-51-CR-0510182-2006 (Pa. Ct. Com. Pl. Nov. 30, 2018). Judge Erlich denied the claim, and the Superior Court affirmed the denial. Commonwealth v. Vando, 242 A.3d 457, 2020 WL 7028618 at *8 (Pa. Super. Nov. 30, 2020) (Table) (citing Commonwealth v. Moore, 225 A.3d 1155 (Pa. Super. 2019)).
III. LEGAL STANDARD
A federal district court "shall not" grant a petition for habeas corpus
unless the adjudication of the claim . . . 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 . . . 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). Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).
To prevail on ineffective assistance of counsel claims, a petitioner "must show that counsel's performance was deficient," that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The inquiry proceeds in two steps. At step one, a petitioner must demonstrate evidence of "ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles" on the part of counsel. Gov't of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994) (quoting ABA Standard for Criminal Justice § 4.47-68 commentary (2d ed. 1980 & Supp. 1986)). At step two, a petitioner must also show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
If a party timely objects to a magistrate judge's report and recommendation, the court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). District courts "may accept, reject, or modify, in whole or in part," the magistrate judge's findings or recommendations. Id.
When neither party files timely objections to a magistrate judge's report and recommendation on a dispositive issue, the district court is not required to review the report and recommendation before adopting it. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). Notwithstanding, the Third Circuit has held that "in the absence of objections . . . the better practice is for the district judge to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also Fed R. Civ. P. 72, 1983 advisory committee notes ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
That the Commonwealth agrees with Petitioner that the writ should be granted is not sufficient to discharge the Court's obligation to determine whether a constitutional violation has occurred. As recently stated by Judge Goldberg:
[U]nder § 2254, a district court's authority to grant the writ is limited to those cases in which there has been a violation of the Constitution or laws of the United States. It logically follows that a district court cannot dispense with this limitation merely because the prosecutor has now changed its position and conceded that there has been such a violation.Wharton v. Vaughn, 371 F. Supp. 3d 195, 199 (E.D. Pa. 2019). This cautionary note is particularly important where the basis for the Commonwealth's concession is a subsequent prosecutor's evaluation of the ex post credibility of the trial witnesses, based on either recantation, discovery of evidence alleged to be newly discovered, or some other reason. However, because under the circumstances, the challenge is strictly legal and does not put at issue the factual basis of the jury's findings, this concern is less significant here.
Wharton was a capital case, but its teachings are equally applicable to non-capital cases, such as this one.
IV. DISCUSSION
Petitioner argues that (1) the trial court's reasonable doubt instruction was constitutionally flawed, and (2) his trial counsel's failure to object to the instruction was ineffective assistance of counsel. The Commonwealth now agrees that the instruction was flawed, and that the Superior Court's decision finding that instruction constitutional was an unreasonable application of settled Supreme Court precedent.
A. The Reasonable Doubt Instruction was Unconstitutional
At trial, the state judge gave the following charge on reasonable doubt:
Now, in reaching your verdict, the standard that must be met is proof beyond a reasonable doubt. A person can only be found guilty when the Commonwealth proves beyond a reasonable doubt that a crime was committed and that the person on trial committed that crime. This is, in fact, the highest standard in the law. There is nothing greater than proof beyond a reasonable doubt.
But, ladies and gentlemen, that does not mean the Commonwealth must prove its case beyond all doubt. The Commonwealth is not required to meet some mathematical certainty. The Commonwealth does not intend, nor is it required to answer all of your questions. The Commonwealth is not required to demonstrate the impossibility of innocence. A reasonable doubt, it's a doubt that would cause a reasonably careful and sensible person to pause, to hesitate, to refrain from acting upon a matter of the highest importance of their own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of each of the crimes charged.
Now, ladies and gentlemen, I find it helpful to think about reasonable doubt this way. I know because I had the great very good fortune to talk to each and every one of you that each and every one of you loves somebody. Each and every one of you has a spouse, a significant other, a sibling, a niece, a nephew, a child, or grandchild.
Each and every one of you loves somebody. If you were told that your precious one had a life-threatening condition and the only appropriate protocol for that life-threatening condition was surgery now, you're probably going to ask for a second opinion. You might even ask for a third opinion. You might do research; what is this condition, who are the best doctors in the region, probably in the country. You're going to call everybody you know who has anything to do in medicine. Tell me about this disease. Tell me about this surgery. Tell me about this doctor, what do you know. You're going to do everything you can to gather all the information that you can.
If you go forward, because, remember, at some point the question will be called, do you go forward with the surgery or not. But if you go forward, it's not because you moved beyond all doubt. Ladies and gentlemen, there are no guarantees in life. If you go forward, it's because you have moved beyond all reasonable doubt.
Ladies and gentlemen, a reasonable doubt must be a real doubt. It may not be a doubt that's imagined or manufactured to avoid carrying out an unpleasant responsibility. You may not find a person who is accused of a crime guilty based upon a mere suspicion of guilt.
The Commonwealth bears its burden of proving Juan Navarro and Len Vando guilty beyond a reasonable doubt. If the Commonwealth has met that burden, then Juan Navarro and Len Vando are no longer presumed to be innocent. And you should find them guilty. On the other hand, if the Commonwealth has not
met its burden, then you must find them not guilty.Apr. 20, 2011 Trial Tr. 67:10-70:8. Petitioner's counsel did not object to the reasonable doubt hypothetical.
The Third Circuit has not yet addressed whether the hypothetical used in the above jury charge is constitutional. See Baxter v. Sup't Coal Township SCI, 998 F.3d 542 (3d Cir. 2021) (considering a similar reasonable doubt instruction at the same procedural posture, the Third Circuit bypassed the question of whether the use of the surgery hypothetical made the entire instruction unconstitutional, focusing instead on Strickland's second prong and finding that the petitioner failed to establish prejudice due to the weight of the evidence against him). However, courts in the Eastern District of Pennsylvania that have addressed similar versions of the reasonable doubt instruction are divided on the constitutionality of the instruction.
Some courts have found the instruction at issue to be unconstitutional. See Moore v. Rivello, No. 20-838, 2022 WL 1749250, at *10 (E.D. Pa. May 31, 2022) (Pratter, J.) (finding that there is a danger that the use of an "emotionally charged analogy" contained within "cold, distant, and clinical legalese" can create a "risk that jurors will latch on to the hypothetical or analogy rather than grappling with the vague and abstract concept itself, as they must" (quoting Corbin v. Tice, No. 16-4527, 2021 WL 2550653, at *7 (E.D. Pa. June 22, 2021) (Tucker, J.)); Brooks v. Gilmore, No. 15-5659, 2017 WL 3475475 (E.D. Pa. 2017) (McHugh, J.); Corbin, 2021 WL 2550653, at *2-5; Jackson v. Capozza, No. 17-5126, 2019 WL 12288169, at *8-10 (E.D. Pa. Feb. 28, 2019), report and recommendation adopted by 2021 WL 1962887 (E.D. Pa. May 17, 2021) (Tucker, J.); Edmunds v. Tice, No. 19-1656, 2020 WL 6810409, at *8-9 (E.D. Pa. Aug. 31, 2020), report and recommendation adopted by 2020 WL 6799259 (E.D. Pa. Nov. 19, 2020) (Beetlestone, J.); McDowell v. DelBalso, No. 18-1466, 2019 WL 7484699, at *3-4 (E.D. Pa. Jan. 23, 2019), report and recommendation adopted by 2020 WL 61162 (E.D. Pa. Jan. 3, 2020) (Brody, J.); Brown v. Kauffman, 425 F. Supp. 3d 395, 408-10 (E.D. Pa. 2019) (Slomsky, J.).
On the other hand, some courts have disagreed, finding that the surgery hypothetical in the jury instruction passes constitutional muster. See Bey v. Kauffman, No. 19-2127, 2020 WL 5775932, at *17 (E.D. Pa. July 15, 2020), report and recommendation adopted by 2020 WL 5763550 (E.D. Pa. Sept. 28, 2020) (Joyner, J.); Gant v. Giroux, No. 15-4468, 2017 WL 2825927, at *14-15 (E.D. Pa. Feb. 27, 2017), report and recommendation adopted by 2017 WL 2797911 (E.D. Pa. June 28, 2017) (Savage, J.), vacated and remanded in light of Commonwealth's concession, Order, No. 17-2559 (3d Cir. Sept. 4, 2018); Baxter v. McGinley, No. 18-0046, 2019 WL 7606222, at *5-6 (E.D. Pa. Dec. 5, 2019), report and recommendation adopted by 2020 WL 299517 (E.D. Pa. Jan. 17, 2020) (Joyner, J.), aff'd on other grounds, 998 F.3d 542, 544 (3d Cir. 2021); Johnson v. Varner, No. 01-2409, slip op., at 7-8, Doc. No. 24 (E.D. Pa. Sept. 4, 2003) (Kauffman, J.); see also Walker v. Brittain, No. 18-3705, 2020 WL 4815874, at *18 (E.D. Pa. Aug. 19, 2020) (Kearney, J.) (finding Martinez exception to procedural default did not apply because PCRA counsel did render ineffective assistance in failing to raise ineffective-assistance-of-trial-counsel claim based on same reasonable doubt instruction where no court at the time of trial had found the instruction to be unconstitutional).
The instruction at issue here essentially told the jury not to assume that the only treatment for their loved one was "experimental" surgery, but instead to assume that "the only appropriate protocol for that life-threatening condition was surgery." I agree with Judge Lloret that this language heightens the error because "[a] family member confronted with [ ] a choice" where " 'surgery' was the only reasonable hope--however dim--for treating a 'life-threatening condition' " "would likely take action notwithstanding substantial doubts that the procedure will save the patient's life." See R. & R. 14, ECF No. 38 (quoting Shields v. Smith, No. 18-750, 2020 WL 6929097, at *14 (E.D. Pa. Oct. 5, 2020), report and recommendation adopted by 2020 WL 6888466 (E.D. Pa. Nov. 24, 2020) (DuBois, J.)). Therefore, I agree with Judge Lloret's determination that the reasonable doubt instruction in this case was unconstitutional. See R. & R. 11-14, ECF No. 38.
B. The State Court's Decision was Contrary to Clearly Established Supreme Court Law
Because the Superior Court examined the question raised here, deciding that the instruction in question was constitutional, the Court must determine whether that decision was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. 18 U.S.C. § 2254(d)(1).
The Superior Court reviewed the PCRA court's dismissal of Petitioner's ineffective assistance of counsel claim for failing to object to the trial court's reasonable doubt instruction by first examining "the jury charge as a whole to determine if it is fair and complete." Commonwealth v. Vando, 242 A.3d 457, 2020 WL 7028618, at *5 (Pa. Super. Nov. 30, 2020) (Table) (Unpublished Disposition) (Vando III). In its analysis, the Superior Court relied on the principle that, because defense counsel had no binding precedent in 2011 that would have supported an objection to the instruction, his failure to object was not ineffective assistance of counsel. Id. at *7 (citing Commonwealth v. Moore, 225 A.3d 1155 (Pa. Super 2019) (unpublished memorandum) and its finding that the same trial judge's analogy was "at best ambiguous," and when combined with the accurate definition of the reasonable doubt standard, did not support a finding that there was a "reasonable likelihood" that the jury applied the reasonable doubt standard in an unconstitutional manner).
The Supreme Court has acknowledged that while proof beyond a reasonable doubt does not require a "mathematical certainty," Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150 (1954), it cannot be construed as a "grave uncertainty" or "actual substantial doubt." Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (holding that the common meaning of the terms "substantial" and "grave" suggested a "higher degree of doubt than is required for acquittal under the reasonable-doubt standard") overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
Meanwhile, when conducting the same analysis as required here, the Third Circuit found a trial judge's statement in the preliminary comments, but not repeated in the jury charge, that the determination of reasonable doubt should be based on what "you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt" required reversal. United States v. Hernandez, 176 F.3d 719, 729 (3d Cir. 1999).
Judge Lloret's analysis that "[t]he Superior Court's reliance in [Petitioner's] case on the 'at best ambiguous' language from the decision in Commonwealth v. Moore, 2019 WL 6825166 at *5, . . . supports a finding here that the Superior Court got it wrong" is persuasive. See R. & R. 17, ECF No. 38. As Judge Pratter reasoned when addressing this very issue:
The Superior Court should have stopped once it acknowledged that the instruction was ambiguous. That is because "[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis [v. Franklin], 471 U.S. [307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)]. Whether or not the Superior Court "believe[d]" the jury applied the instruction in a constitutional manner is irrelevant.Moore, 2022 WL 1749250 at *12. Thus, the Superior Court's decision is an unreasonable application of clearly established federal law as determined by the Supreme Court.
C. Petitioner's Trial Counsel was Ineffective for Failing to Object
After determining that the reasonable doubt instruction was an unreasonable application of clearly established federal law as determined by the Supreme Court, it is necessary to evaluate whether, under Strickland, counsel was ineffective for failing to object to the instruction. The Superior Court held that the failure to object to the reasonable doubt instruction was not ineffective assistance of counsel because "[a]t the time of [Petitioner's] trial, there was no binding precedent for counsel to follow." Vando III at *7. In Cage and Sullivan, the Supreme Court held that "grave uncertainty" and "moral uncertainty" deserved no place in a reasonable doubt instruction.
Given the clearly established federal law as determined by Supreme Court, I agree that failure to object to the hypothetical included in the reasonable doubt instruction here satisfied Strickland's first prong in that counsel's error denied Petitioner effective assistance of counsel and "alter[ed] the entire evidentiary picture." 466 U.S. at 695-96, 104 S.Ct. 2052. The failure to do so was particularly troublesome here because Petitioner's only available defense was reasonable doubt.
D. Petitioner's Trial Counsel's Failure to Object to the Reasonable Doubt Instruction Caused Prejudice
Under Strickland's second prong, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." 466 U.S. at 692, 104 S.Ct. 2052. A considerable defect in a reasonable doubt instruction is not harmless and "vitiates all the jury's findings." Sullivan, 508 U.S. at 281, 113 S.Ct. 2078. Where such a defect exists, a "criminal trial cannot reliably serve its function." Id. "[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." Strickland, 466 U.S. at 696, 104 S.Ct. 2052. As the Third Circuit observed:
As Judge Lloret acknowledges, the question of whether a defective reasonable doubt instruction is "structural error" that precludes a prejudice inquiry under Strickland is unresolved. See Shields v. Smith, 2020 WL 6929097, at *11-15. Thus, the Court will also conduct an analysis under Strickland's second prong.
It is well settled that courts applying Strickland's prejudice test must consider the strength of the evidence against the defendant. Without considering the strength of the evidence against the defendant, a court cannot determine whether there was a reasonable probability of a different result. The greater
the support a verdict has in the record, the less likely it is to have been affected by errors. Where the magnitude of the evidence against the defendant is such that he cannot show he was deprived of a reliable trial result, prejudice under Strickland is not met.United States v. Calhoun, 600 F. App'x 842, 844-45 (3d Cir. 2015) (citing and quoting Strickland, 466 U.S. at 696, 104 S.Ct. 2052 ("In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of a particular proceeding is unreliable . . . ."); Albrecht v. Horn, 485 F.3d 103, 128-29 (3d Cir. 2007) (finding no prejudice from counsel's failure to request limiting instruction where there was "ample if not overwhelming evidence of [the defendant's] guilt"); Buehl v. Vaughn, 166 F.3d 163, 171-72 (3d Cir. 1999) (finding that the defendant could not show the absence of a limiting instruction deprived him of a fair trial "[i]n view of the magnitude of the evidence.")).
Prejudice under these circumstances is found when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Judge Lloret's review of the entire state court trial record shows that although it is true that witness testimony was somewhat inconsistent, the evidence conclusively demonstrates that Petitioner was present in the bar where the confrontation began, led the victim out the back door, punched the victim (causing him to fall to the ground), and thereafter bragged about his involvement in the homicide to his fellow inmates and other members of the Latin Kings. Notably, the evidence is undisputed that no eyewitness saw Petitioner possess the murder weapon on the night of the incident or shoot the victim. This lack of eyewitness testimony, coupled with a lack of physical evidence linking Petitioner to the actual shooting, renders the Commonwealth's proof relatively weak and weighs in favor of finding prejudice.
1. Events at the ZIP Code Bar
Three witnesses--Maria Pagan a/k/a Maria Nunez, Angel Cruz a/k/a "King Quiet Storm", and Oscar Bermudez a/k/a "King Fat Joe"--testified to the events at the ZIP Code Bar on the night of the incident. The three had minor inconsistencies among their testimony, and two testified that they believed the victim was to be given a beating in the alley behind the bar only for falsely claiming to be a Latin King.
In the back alley, both Cruz and Bermudez saw Petitioner punch the victim. Cruz saw Petitioner's co-defendant, Navarro, pull out a gun and fire shots into the back of the victim's head, while Bermudez heard several shots but did not see who pulled the trigger or where the bullets landed. Nunez was in the back alley, but she did not witness the killing. Thus, no witness testified to seeing Petitioner shoot the victim.
2. Petitioner's Discussion of the Incident Afterwards
Nunez, Cruz, and Bermudez testified to the events after the shooting, in addition to three new witnesses--Jose Serrano, Lynwood Lanier, and Eric Alamo. Only Nunez, whose account was inconsistent, testified that Petitioner bragged to her about being the one to shoot the victim several days after the incident.
Nunez also testified that after the shooting, she saw King KR (a Latin King member unidentified by another name in the record) with a revolver and that he told her he was the one who shot the victim.
Three witnesses testified that Petitioner admitted to punching the victim. Bermudez testified that Petitioner described punching the victim in the face. Serrano and Lanier, Petitioner's fellow inmates, both testified that Petitioner told them he punched the victim during the incident that led to the murder.
Three witnesses testified that Petitioner's co-defendant, Navarro, bragged about being responsible for the homicide. Cruz testified that the night after the shooting, he asked both Petitioner and Navarro why the victim had to be killed, and they both stated that "it had to be done" because of the victim's disrespectful behavior toward the Latin Kings. Further, Cruz overheard Navarro bragging about the homicide while housed with Navarro at a state correctional institution. Bermudez testified that Navarro admitted that he "emptied the whole clip on the guy." Alamo testified that while incarcerated with Navarro, Navarro told him that Navarro had "killed the wrong guy." Navarro told Alamo about the incident at the ZIP Code Bar, then said he had shot the victim because he thought the victim was "one of the guys . . . that shot his brother Josh and left him on the railroad for dead."
Apart from witness testimony, which clearly suggested that Petitioner only punched the victim whereas Navarro shot and killed the victim, there was an absence of evidence linking Petitioner to the shooting, such as DNA or fingerprints matching Petitioner at the scene, a recovered firearm linked to the shooting, or security camera footage to identify the actors. Moreover, the witnesses who were present the night of the incident all testified that they expected that the outcome for the victim falsely claiming to be a Latin King would be a beating in the back alley. That Navarro killed the victim because he believed the victim had killed his brother, as he expressed to Alamo, provides an explanation for why the victim was killed rather than beaten. From the testimony, it is equally plausible, therefore, that Petitioner was not aware of Navarro's reasoning for shooting the victim, and indeed, only became aware of Navarro's motivation after he heard Alamo's testimony.
Although Petitioner was charged with first-degree murder and conspiracy to commit murder, Petitioner was convicted instead of the lesser offense of third-degree murder. Given the lack of physical evidence or witness testimony suggesting that Petitioner knew or intended the victim to be shot combined with the confusing jury instruction, I agree with Judge Lloret that "[h]ad that jury been properly instructed with regard to the type of 'reasonable doubt' that would cause them to 'hesitate to act,' there is a reasonable likelihood--enough to 'undermine confidence' in the outcome--that this jury would have acquitted [Petitioner], as the federal jury did, or failed to reach a verdict, as the first state court jury did." See R. & R. 38, ECF No. 38 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
18 PA. STAT AND CONS. STAT. § 2502 (West 1978) provides that a criminal homicide constitutes murder of the first degree "when it is committed by an intentional killing"; murder of the second degree "when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony"; and murder of the third degree as "[a]ll other kinds of murder."
V. CONCLUSION
For the reasons set forth above, taking into consideration that neither party objected to Judge Lloret's Report and Recommendation, and after independent review of the dispositive legal issue in this case, the Court will adopt the Report and Recommendation, grant Petitioner's habeas petition on the single issue of the constitutionality of the reasonable doubt instruction given to the jury at trial, and instruct the Commonwealth to retry Petitioner within a reasonable period of time. Given the Court's ruling, the Court need not consider Petitioner's other arguments, and those arguments will be dismissed as moot.
An appropriate order follows.
ORDER
AND NOW, this 20th day of January, 2023, after careful and independent consideration of the Report and Recommendation of the United States Magistrate Judge Richard Lloret (ECF No. 38) and Petitioner's response thereto (ECF No. 40), it is hereby ORDERED as follows:
1. The Report and Recommendation (ECF No. 38) is ADOPTED in accordance with the accompanying Memorandum;
2. The Petition for a Writ of Habeas Corpus (ECF Nos. 1, 18) is GRANTED, and the Commonwealth of Pennsylvania shall either release or retry Petitioner within 120 days of entry of this Order; and
3. The Clerk of Court shall mark this case CLOSED.
In the event that Petitioner is not retried within 120 days, the "release or retry" language above "d[oes] not prohibit the Commonwealth from re-arresting and retrying Petitioner after his release on the original charges, and detaining him pending that retrial, subject to Petitioner's right to a pretrial bail hearing and any other rights of the accused under state and federal law." See Washington v. Beard, 258 F. Supp. 3d 512, 517 (E.D. Pa. 2017) (Robreno, J.). Whether Petitioner should be released on bail if the Commonwealth choses to retry him pending trial is an issue for the state court of competent jurisdiction to determine.
AND IT IS SO ORDERED.
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. Magistrate Judge
Before me is the Petition for Writ of Habeas Corpus of Len Vando pursuant to 28 U.S.C. § 2254. Petitioner raises four separate claims in his petition: (1) Petitioner's trial counsel was constitutionally ineffective for failing to object to the trial court's reasonable doubt instruction; (2) Petitioner's trial counsel was constitutionally ineffective for failing to file a motion to dismiss the complaint for a violation of speedy trial; (3) Petitioner's sentence was illegal due to the trial court denying him credit for time served from arrest to sentencing; and (4) Petitioner's trial and appellate counsel were ineffective for failing to argue that his prosecution was barred by double-jeopardy. See Petitioner's Federal Habeas Corpus Petition, Doc. No. 1, pp. 10-25 ("Pet.").
All page numbers for documents in the ECF system are those inserted at the top of the page by the Clerk of Court.
The Commonwealth has conceded that Petitioner's first claim should be granted, arguing that Petitioner's counsel provided constitutionally ineffective assistance when he failed to object to a hypothetical included in the trial court's reasonable doubt instruction which changed the Commonwealth's burden of proof, and the Superior Court's denial of this claim on PCRA was an unreasonable application of clearly established Supreme Court law. Further, the Commonwealth concedes that Petitioner was prejudiced by the failure to object. See Commonwealth's Response to Petition for Writ of Habeas Corpus, Doc. No. 34, pp. 12-29 ("Com. Resp."). The Commonwealth declined to respond to Petitioner's three other claims, unless requested to do so. Petitioner has not filed a reply. After careful review, for the reasons set forth below, I respectfully recommend that the writ be granted on Petitioner's first issue, that the remaining issues be dismissed as moot, and that Petitioner be granted a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from Petitioner's conviction on one count of third-degree murder after a jury trial, and his subsequent sentence of 20 to 40 years' imprisonment for the offense. The trial court summarized the facts of the case as follows:
In violation of 18 Pa. C.S. § 2502(c).
The factual summary was inserted verbatim into the Superior Court's decision on direct appeal. Commonwealth of Pennsylvania v. Len Vando, No. 2555 EDA 2011, pp. 1-2, 2012 WL 7637191 (Pa. Super. Nov. 2, 2012) (Vando I).
On October 1, 2004, barmaid Maria Nunez was working at the ZIP Code Bar, at the intersection of Hope Street and Lippincott Street in Philadelphia. The ZIP Code Bar was being used as a venue for a birthday party for a member of the Latin Queens, which was the female counterpart of the Latin Kings gang, and many members of both gangs were at the party. Between 12:00 and 12:30 a.m., [Petitioner] and codefendant Juan Navarro showed up for the party. The doorman, who was supposed to search patrons to ensure that they did not bring weapons into the bar, was not at his post when Mr. Navarro arrived. Because weapons were not allowed at the bar, Mr. Navarro handed his gun to Ms. Nunez to hold, and she put it in her purse. Ms. Nunez was familiar with Mr. Navarro, having seen him at weekly meetings of the Latin Kings and Queens. At approximately the same time [Petitioner] and Mr. Navarro arrived at the bar, the victim in this case, Francisco Gonzalez, arrived with his girlfriend.
Near closing time, at around 2 a.m., Mr. Gonzalez was sitting at the bar when he reached over and, using his fingers, "plucked" the crown tattoo on Ms. Nunez's neck that signified her membership in the Latin Queens. After Ms. Nunez told Mr. Gonzalez not to touch her, he claimed to be a "First Crown" in the New York chapter of the Latin Kings. Ms. Nunez expressed disbelief that Mr. Gonzalez was a high-ranking member of the Latin Kings, and therefore asked him to state the "Five Points" of the Latin Kings, which any genuine Latin King would know. Mr. Gonzalez was unable to answer. Ms. Nunez then told another Latin King member, Clemente Garcia, that Mr. Gonzalez was claiming to be a First Crown Latin King, and that he had "plucked" her tattoo. Mr. Garcia then went to talk to [Petitioner]. Thereafter, Mr. Garcia, [Petitioner], and another Latin King, Edward Irizarry, confronted Mr. Gonzalez, telling him that they knew he was not a Latin King, and that he was being disrespectful to them. During that confrontation, Mr. Navarro stood nearby, staring up and down at Mr. Gonzalez.
Mr. Garcia then approached Ms. Nunez and asked her to give Mr. Navarro back his gun, which she had been keeping under the bar. Mr. Navarro also came over to Ms. Nunez and asked her to give him his gun back. Ms. Nunez retrieved the gun and gave it to Mr. Navarro. As Ms. Nunez looked on, [Petitioner], Mr. Garcia, and Mr. Irizarry dragged Mr. Gonzalez out of the bar. Mr. Navarro walked behind them out
the door. Several other members of the Latin Kings followed, including Angel Cruz, Oscar Bermudez, and "King Kelvin." Once everyone was outside the bar, [Petitioner] "sucker punched" Mr. Gonzalez, who immediately fell to the ground. Mr. Navarro then pulled his gun from his waistband and shot Mr. Gonzalez multiple times in the head. Everyone present then fled the scene.Trial Court Opinion, December 29, 2011, at 2-4 (citations and footnotes omitted).
The Superior Court noted that the "Trial Court Opinion" was written by the Hon. Glenn B. Bronson, who was reassigned the case after the trial but before the sentencing, due to the retirement of the Hon. Renee Cardwell Hughes, who presided over the trials. The first trial ended in a mistrial when the jury deadlocked on April 8, 2011. A new jury was selected beginning on April 11, 2011, and that jury reached a verdict on April 25, 2011. See Commonwealth v. Juan Navarro, Cr. Docket No. CP-51-CR-0510181-2006, pp. 21-24. ("Dkt.").
Mr. Vando was charged in a federal indictment with the Gonzalez homicide. See United States v. William Sosa, et al., No. 2:05-CR-00044-GEKP, ECF Doc. No. 10 (Indictment). Mr. Vando was charged in count 1 with conspiracy to participate in a racketeering (RICO) enterprise, in counts 21 and 22, along with William Sosa, Edwin Irizarry, and Clement Garcia with conspiracy to commit murder in aid of racketeering (count 21) and using and carrying a firearm during a violent crime (count 22). Mr. Vando was found not guilty on all three of these counts on March 15, 2006. Id., ECF Doc. No. 519. He was found guilty of a separate conspiracy to commit murder in aid of racketeering in count 24, and sentenced to 108 months imprisonment, followed by three years of supervised release. ECF Doc. No. 696 (Minute Entry).
Mr. Vando was charged in the federal indictment as Angel Aviles, a/k/a Len Vando, a/k/a "King Cano."
Mr. Vando was charged in state court with Mr. Gonzalez' death, along with accused shooter Juan Navarro. Commonwealth v. Len Vando, No. CP-51-CR-0510182-2006. He was arrested on the state charges on May 16, 2005, months before he was acquitted in federal court. See Commonwealth v. Vando, No. 2771 EDA 2018, Trial Court Opinion, (PCRA), November 19, 2019 (Ehrlich, J.) at 2. (Vando II). He was arraigned after the federal acquittal, on June 14, 2006. Dkt. p. 3. Mr. Vando lost his motion to dismiss the criminal complaint, where he argued his acquittal in the federal prosecution should bar the state prosecution under 18 Pa. C. S. § 111, Pennsylvania's double jeopardy statute. The trial court denied the motion and the Superior Court affirmed. Commonwealth v. Len Vando, 970 A.2d 484 (Pa. Super. Feb. 5, 2009) (unpublished memorandum), appeal denied 603 Pa. 676, 982 A.2d 65 (2009) (Table).
Mr. Vando's first state trial in April 2011 ended with the jury unable to reach a verdict as to either defendant. The trial judge immediately picked a second jury, and the trial began anew on April 12, 2011. Commonwealth v. Juan Navarro and Len Vando, CP-51-CR-0510181-2006, CP-51-CR-0510182-2006, N.T., April 12, 2011, p. 3. After several days of trial and two days of deliberation, the jury reached a verdict, finding Mr. Vando guilty of third-degree murder, but acquitting him of criminal conspiracy to kill Mr. Gonzalez. N.T., April 25, 2011, pp. 2-3. The jury also acquitted Juan Navarro of conspiracy and convicted him of third-degree murder. Id. at 7. Mr. Vando was sentenced to the statutory maximum sentence of 20 to 40 years' imprisonment, to run consecutive to his federal sentence, on August 18, 2011. N.T. August 18, 2011, pp. 42-44. Mr. Vando's direct appeal was rejected by the Superior Court on November 2, 2012. Commonwealth v. Vando, No. 2555 EDA 2011, 63 A.3d 819 (Pa. Super. 2012) (unpublished memorandum) (Vando I); and his appeal to the Pennsylvania Supreme Court was dismissed on July 13, 2013. Commonwealth v. Vando, 620 Pa. 722, 69 A.3d 602 (2013). His writ of certiorari to the United States Supreme Court was likewise denied, on November 4, 2013. Len Vando v. Pennsylvania, 571 U.S. 998, 134 S.Ct. 531, 187 L.Ed.2d 381 (2013). Mr. Vando filed a petition for rehearing, which was denied on January 13, 2014. Vando v. Pennsylvania, 571 U.S. 1160, 134 S.Ct. 995, 187 L.Ed.2d 844 (2014). While his petition was pending in the Supreme Court, Mr. Vando also filed a federal habeas corpus petition, which was denied on July 9, 2015. See Vando v. Folino, 2015 WL 4138802 (E.D. Pa. 2015) (Robreno, J.).
Mr. Navarro proceeded immediately to sentencing after the verdict, during which the trial judge expressed some disbelief at the jury's conviction of Mr. Navarro on third-degree, rather than first-degree, murder, stating to defense counsel, "David, you tell me in what universe 14 (sic) bullets to the back of a man's head is not the specific intent to kill? Now I will never, as long as I draw breath, criticize a jury, but I can truly be perplexed." N.T. April 25, 2011, p. 16.
During the pendency of those proceedings, Mr. Vando filed a pro se motion for reconsideration of sentence with the trial court. The Pennsylvania Superior Court later found that this motion was improperly handled by the trial court, as it should have been construed as a PCRA petition, and counsel should have been appointed. Because counsel was appointed when Mr. Vando later filed a formal PCRA petition, in which he raised the same ineffective assistance of counsel claims as were raised in the motion for reconsideration, the Superior Court found that Mr. Vando was not prejudiced by the error. Commonwealth v. Vando, 242 A.3d 457 (Pa. Super. Nov. 30, 2020) (Table) (Unpublished Disposition) at *1, n.3, 2020 WL 7028618, (Vando III).
On December 22, 2014, Mr. Vando filed a timely pro se petition pursuant to the Post-Conviction Relief Act (PCRA). Counsel was appointed to represent him and filed a series of counseled Amended PCRA petitions. When the briefing concluded in 2018, the matter was again reassigned from Judge Bronson to the Hon. Charles Ehrlich. Among the five issues raised in the various PCRA petitions, was one delineated as number 4:
Trial defense counsel was ineffective for filing (sic) to object to the trial court's instruction on burden of proof beyond a reasonable doubt to the jury because the instruction was defective and allowed the jury to convict the defendant on a burden of proof standard below the reasonable doubt standard. The defendant's right to due process of law under the 14th Amendment of the U.S. Constitution[ ] and the due process clause of the State Constitution was violated by this defective instruction.Petitioner's P.C.R.A. 1925(b) Statement.
Judge Ehrlich denied the claim without a hearing. Vando II at 11-17. The Superior Court likewise ruled against Mr. Vando on the issue when he appealed the dismissal of the PCRA. Vando III at *5-*8. Citing Commonwealth v. Moore, 225 A.3d 1155 (Pa. Super. 2019), the Superior Court held that there was not a "reasonable likelihood" that the jury applied the reasonable doubt standard in an unconstitutional manner, and thus, counsel was not ineffective for failing to object to the charge. Id. at *7-*8.
Mr. Vando filed his timely federal habeas petition in this Court on January 28, 2021, while his PCRA appeal was still pending. Pet. at 31. I entered a stay to allow Mr. Vando to complete his appeals in state court. ECF Doc. No. 9. Mr. Vando filed a motion to lift the stay on July 15, 2021, ECF Doc. No. 13, and the stay was lifted on July 19, 2021. ECF Doc. No. 14. The Commonwealth responded to the petition on July 14, 2022, conceding the first issue, and arguing that a new trial should be granted due to the error in the trial court's reasonable doubt instruction. The Commonwealth did not respond to Petitioner's remaining three issues. Com. Resp. at 1, 12-27. Mr. Vando has not filed a reply.
II. STANDARD OF REVIEW
A. Merits review.
Where the federal court reviews a claim that has been adjudicated on the merits by the state court, 28 U.S.C. § 2254(d) permits the federal court to grant a petition for habeas relief only if: (1) the state court's adjudication of the claim "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 if (2) the 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)(1)-(2); see Parker v. Matthews, 567 U.S. 37, 42-45, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) (reiterating that the standard under 2254(d)(1) is highly deferential to state court decisions, and overturning a Sixth Circuit decision granting habeas relief because the state court's decision denying relief was not objectively unreasonable). Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (citing to 28 U.S.C. § 2254(e)(1)).
Interpreting this statutory language, the Supreme Court has explained that "[u]nder 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 [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to "the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. As the Third Circuit has noted, "an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495).
B. Ineffective assistance of counsel.
Where a defendant alleges a claim for ineffective assistance of counsel, the Supreme Court's analysis in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is the governing standard. To prevail on any of his ineffective assistance of counsel claims, the Petitioner "must show counsel's performance was deficient," that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 687.
Ineffectiveness may be shown by evidence of "ineptitude, inexperience, lack of preparation, [or] unfamiliarity with basic legal principles" on the part of counsel. See Gov't of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994). The Petitioner also must demonstrate that he was prejudiced by the deficient performance to the point of being deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish this, the Petitioner must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Absent establishing these two prongs, "it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.
In the habeas context, establishing ineffective assistance of counsel is all the more challenging. "The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal citations omitted). Importantly, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
III. DISCUSSION
The trial court erred in its reasonable doubt instruction to the jury, defense counsel was ineffective for failing to object to the instruction, the Superior Court's denial of the claim was an unreasonable application of clearly established federal law, and as a result, Petitioner suffered prejudice.
Mr. Vando argues in a layered claim that (1) the trial court's reasonable doubt instruction was constitutionally flawed, and (2) his trial counsel's failure to object to the instruction was ineffective assistance of counsel. Pet. at 10-14. The Commonwealth has agreed that the instruction was flawed, and that the decision of the Superior Court finding the instruction constitutional was an unreasonable application of settled Supreme Court precedent. Com. Resp. at 12-27.
A. The Instruction.
At trial, the judge gave the following charge on reasonable doubt:
Now, in reaching your verdict, the standard that must be met is proof beyond a reasonable doubt. A person can only be found guilty when the Commonwealth proves beyond a reasonable doubt that a crime was committed and that the person on trial committed that crime. This is, in fact, the highest standard in the law. There is nothing greater than proof beyond a reasonable doubt.
But, ladies and gentlemen, that does not mean the Commonwealth must prove its case beyond all doubt. The Commonwealth is not required to meet some mathematical certainty. The Commonwealth does not intend, nor is it required to answer all of your questions. The Commonwealth is not required to demonstrate the impossibility of innocence.
A reasonable doubt, it's a doubt that would cause a reasonably careful and sensible person to pause, to hesitate, to refrain from acting upon a matter of the highest importance to their own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of each of the crimes charged.
Now, ladies and gentlemen, I find it helpful to think about reasonable doubt this way. I know because I had the great very good fortune to talk to each and every one of you that each and every one of you loves somebody. Each and
every one of you has a spouse, a significant other, a sibling, a niece, a nephew, a child, or grandchild.N.T. April 20, 2011, pp. 67-69.
Each and every one of you loves somebody. If you were told that your precious one had a life-threatening condition and the only appropriate protocol for that life-threatening condition was surgery now, you're probably going to ask for a second opinion. You might even ask for a third opinion. You might do research; what is this condition, who are the best doctors in the region, probably in the country. You're going to call everybody you know who has anything to do in medicine. Tell me about this disease. Tell me about this surgery. Tell me about this doctor, what do you know. You're going to do everything you can to gather all the information that you can.
If you go forward, because, remember, at some point the question will be called, do you go forward with the surgery or not. But if you go forward, it's not because you moved beyond all doubt. Ladies and gentlemen, there are no guarantees in life. If you go forward, it's because you have moved beyond all reasonable doubt.
Ladies and gentlemen, a reasonable doubt must be a real doubt. It may not be a doubt that's imagined or manufactured to avoid carrying out an unpleasant responsibility. You may not find a person who is accused of a crime guilty based upon a mere suspicion of guilt.
The Commonwealth bears its burden of proving Juan Navarro and Len Vando guilty beyond a reasonable doubt. If the Commonwealth has met that burden, then Juan Navarro and Len Vando are no longer presumed to be innocent. And you should find him guilty. On the other hand, if the Commonwealth has not met its burden, then you must find them not guilty.
At the conclusion of the charge, the judge and counsel discussed objections in the Judge's robing room, where Mr. Rudenstein, on behalf of Mr. Navarro, made objections to the judge's "remark to the jury that they will come back unanimously." Id. at 109-10. They discussed in detail the prior convictions of the various witnesses. Id. at 110-12. Both counsel objected to the conspiracy charge including "conspiracy with 'Latin Kings.' " Id. at 112-15. Neither counsel objected to the reasonable doubt hypothetical.
B. The Constitutionality of the Reasonable Doubt Instruction.
The Third Circuit has yet to address whether or not the hypothetical used in this particular Commonwealth Judge's jury charge is, or is not, constitutional, despite its having been raised a number of times at the district court level. See Johnson v. Varner, No. 01-cv-2409 (E.D. Pa. 2003) (Kaufman, J.); Brooks v. Gilmore, No. 15-cv-5659, 2017 WL 3475475 (E.D. Pa. 2017) (McHugh, J.); Corbin v. Tice, No. 16-cv-4527, 2021 WL 2550653 (E.D. Pa. 2021) (Tucker, J.); and most recently, Moore v. Rivello, No. 20-cv-0838, 2022 WL 1749250 (E.D. Pa. 2022) (Slip op.) (Pratter, J.).
In Baxter v. Sup't. Coal Township SCI, 998 F.3d 542 (3d Cir. Apr. 8, 2021), the Third Circuit examined one such case containing a near-identical version of the reasonable doubt instruction, in the same procedural posture as this case, that is, where the petitioner contended that his attorney was ineffective for failing to object to the instruction. But the court sidestepped the question of whether or not the use of the "surgery" hypothetical in fact made the entire instruction unconstitutional. Instead, it found that the petitioner failed to establish prejudice, given the strength of the evidence against him. The court noted that the Commonwealth did "not challenge whether the failure to object to the instruction fell below the standard of competent representation," and, although presuming the instruction to be unconstitutional for purposes of the decision, also stated, "there are persuasive arguments that the instruction, read in its entirety, did not violate due process and thus justified counsel's decision not to object to the instruction." Id. at n.5, (citing Corbin and its collected cases "upholding identical jury instructions because 'in evaluating a challenge to jury instructions, the court must "consider the totality of the instructions and not a particular sentence or paragraph in isolation" ' quoting United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999)"). Id. Given this language, it is nearly impossible to "read the tea leaves," and determine which way the Third Circuit will ultimately decide the issue, if in fact they are ever in a position to do so. As discussed below, however, I must face the issue avoided in Baxter, because the evidence presented against Mr. Vando was not so overwhelming as to foreclose a finding of prejudice.
Judge Pratter, in the recent Moore decision, makes a compelling case that the "surgery" hypothetical improperly lowers the Commonwealth's burden of proof such that it constitutes structural error, which, if raised on direct appeal, would result in automatic reversal, even if prejudice is not established. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
Rasul Moore is the same petitioner who failed to convince the Superior Court of the unconstitutionality of the reasonable doubt instruction in Commonwealth v. Moore, 225 A.3d 1155 (Pa. Super. 2019), the case relied upon by the Superior Court in Mr. Vando's PCRA appeal when they upheld the jury instruction in this case. See supra at 523-24.
Finding first that the reasonable doubt "illustration" is of an "emotionally charged nature," Judge Pratter notes that, although hypotheticals, analogies, and the like are rhetorical devices that can help those not trained in the law to better understand vague and abstract concepts like reasonable doubt; an incorrect or "emotionally charged analogy" contained within "cold, distant, and clinical legalese" can leave "a lasting impression on a jury." Moore, 2022 WL 1749250, at *10, quoting Corbin, 2021 WL 2550653, at *3-4. There is a danger that their use can create a "risk that jurors will latch on to the hypothetical or analogy rather than grappling with the vague and abstract concept itself, as they must." Id. I agree. And here, like the instruction in Moore, the trial judge inserted the hypothetical "explanation" in the second half of the instruction, before returning to the more definitional language, that, "a reasonable doubt must be a real doubt. It may not be a doubt that's imagined or manufactured to avoid carrying out an unpleasant responsibility. You may not find a person who is accused of a crime guilty based upon a mere suspicion of guilt." N.T. Apr. 20, 2011, p. 69.
Next, Judge Pratter chronicled how our district courts have concluded that this particular hypothetical contains internal conflicts. Although the standard definition of reasonable doubt used at the beginning of the instruction properly defines the concept, the hypothetical's extended analogy, that a loved one needs surgery, "suggest[s] that the jury could still convict the defendant even if they had grievous or substantial doubt." Id., citing Brooks, 2017 WL 3475475, at *4. Having made the suggestion, the instruction then returns to the standard definition.
More troubling, the hypothetical reverses the circumstances under which a jury should "act," that is, find a defendant guilty. The standard definition of reasonable doubt explains that reasonable doubt is something that would lead a juror to pause or hesitate to act. Here, the trial judge stated it as: "it's a doubt that would cause a reasonably careful and sensible person to pause, to hesitate, to refrain from acting upon a matter of the highest importance to their own affairs." N.T. April 20, 2011, p. 68. The hypothetical, however, discusses reasonable doubt in terms of taking action, that is, something that would be overcome "if you go forward" with the surgery. Id. at 69. Then, the instruction switches back to the concept of "acting," that is, finding the defendant guilty, only if "the Commonwealth has met [its] burden" of proving the defendant guilty beyond a reasonable doubt. As noted in Moore, this internal conflict makes it "nearly impossible for a reviewing court to determine which of the two versions of reasonable doubt the jurors applied." Moore, 2022 WL 1749250, at *10, citing Francis v. Franklin 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
There is another issue, not present in Moore and Brooks, that causes me additional concern here. Like the version of the hypothetical used by this same trial judge in Shields v. Smith, No. 18-cv-00750, 2020 WL 6929097, (E.D. Pa. Oct. 5, 2020), report and recommendation adopted, 2020 WL 6888466 (E.D. Pa. Nov. 24, 2020) (DuBois, J), the jury here was told not to assume that the only treatment for their loved one was "experimental" surgery, (which would inherently involve a high level of risk), but merely to assume that "the only appropriate protocol for that life-threatening condition was surgery." This, I believe, heightens the error. As I stated in my report and recommendation to the district court in Shields:
In Brooks the court held that the hypothetical undercut the proper understanding of reasonable doubt by a jury. In this case, as pointed out by Petitioner in his reply, the jury was not to weigh a decision involving "experimental" or "risky" medical treatment. At least that language, present in Brooks, posited some risk created by taking action. In this case the jury was told to assume that "the only protocol for this life-threatening condition was a surgical procedure." N.T. Jan. 8, 2010, at 189. Petitioner argues, and I agree, that this removal of the "experimental" aspect of the surgery significantly changed the hypothetical for the worse, into one in which the jury was to assume that "surgery" was the only reasonable hope - however dim - for treating a "life-threatening condition." A family member confronted with such a choice - hardly a choice at all - would likely take action notwithstanding substantial doubts that the procedure will save the patient's life. As such, the hypothetical "serve[d] as a directive to convict in even the weakest of cases." Pet. Rep. at 12. If the instruction in Brooks did not pass constitutional muster, then the instruction in this case certainly does not.Id. at *14. For all of these reasons, I respectfully recommend that the reasonable doubt instruction be rejected as unconstitutional.
C. The State Court's Decision was Contrary to Clearly Established Supreme Court Law.
A finding that the instruction was unconstitutional does not end the analysis, given the posture of this case. Because the Superior Court examined the very question raised here, and decided that the instruction in question was constitutional, I must determine whether that decision was contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court. 18 U.S.C. § 2254(d)(1). I respectfully recommend that it was.
The Superior Court reviewed the PCRA court's dismissal of the claim that Mr. Vando's trial counsel was ineffective for failing to object to the trial court's reasonable doubt instruction by first examining "the jury charge as a whole to determine if it is fair and complete." Vando III at*5, citing Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008). Quoting Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the court stated, [w]hen determining whether an instruction is unconstitutional, 'the proper inquiry is not whether the instruction "could have" been applied in an unconstitutional manner, but whether here is a reasonable likelihood that the jury did so apply it.' " Id. The court noted that Mr. Vando had alleged that the trial court's analogy to pursuing a life-saving surgery for a loved one to the definition of reasonable doubt, "impermissibly heightened the degree of reasonable doubt required to acquit, and directed the jury to favor conviction[,]" and that he relied on the decision in Brooks in support. Id. at *6.
Other than (correctly) stating that the Superior Court is "not bound by the decisions of federal courts inferior to the U.S. Supreme Court," (citing In re Stevenson, 615 Pa. 50, 40 A.3d 1212, 1216 (2012)), and further noting that Brooks was decided some six years after Mr. Vando was tried in 2011, the Superior Court did little to wrestle with the instruction itself, instead relying on the principle that, because defense counsel had no binding precedent in 2011 that would have supported an objection to the instruction, his failure to object was not ineffective assistance of counsel. Id. at *7. The court also specifically cited to Commonwealth v. Moore, 225 A.3d 1155 (Pa. Super 2019) (unpublished memorandum), and its finding that the same trial judge's analogy was "at best ambiguous," and when combined with the accurate definition of the reasonable doubt standard, did not support a finding that there was a "reasonable likelihood" that the jury applied the reasonable doubt standard in an unconstitutional manner. Vando III at *7, citing again to Moore, 225 A.3d 1155 (unpublished memorandum at 9).
Although the Superior Court did not state as much, this "reasonable likelihood" language originates in Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("in reviewing an ambiguous instruction such as the one at issue here, we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). The Supreme Court has acknowledged that proof beyond a reasonable doubt, while it is not proof to a "mathematical certainty," see Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150 (1954), cannot be construed as a "grave uncertainty" or "actual substantial doubt." Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) overruled on other grounds by Estelle, 502 U.S. at 72, n.4, 112 S.Ct. 475. In Cage, the trial judge equated reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and the jury was told that "what was required was a 'moral certainty' that the defendant was guilty." Id. The Supreme Court said that the use of the terms "substantial" and "grave," when given their common meaning, suggested "a higher degree of doubt than is required for acquittal under the reasonable-doubt standard." Id.
The Third Circuit found a trial judge's statement that the determination of reasonable doubt as to each element of a crime should be based upon what "you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt," to require reversal, even though the improper remark was made not during the jury charge, but in the preliminary comments, just after the jury was impaneled but before they heard any evidence. United States v. Hernandez, 176 F.3d 719, 729 (3d Cir. 1999). Reversal was necessary even though the jury charge itself did not repeat the error.
The Superior Court's reliance in Mr. Vando's case on the "at best ambiguous" language from the decision in Commonwealth v. Moore, 2019 WL 6825166 at *5, language that Judge Pratter found to be fatally flawed, supports a finding here that the Superior Court got it wrong. Judge Pratter reasoned:
Though acknowledging that the hypothetical might have led the jury to "underst[an]d the degree of doubt the Commonwealth must overcome to secure a conviction as being lower than the law requires," the Superior Court, nonetheless, concluded that it was "not clear that the illustration lowered the degree of doubt." Moore, 2019 WL 6825166 at *5. (emphasis added). The Superior Court should have stopped once it acknowledged that the instruction was ambiguous. That is because "[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis, 471 U.S. at 322, 105 S.Ct. 1965. Whether or not the Superior Court "believe[d]" the jury applied the instruction in a constitutional manner is irrelevant. Moore, 2019 WL 6825166 at *5. There simply is no recognized category of "ambiguously constitutional" or "constitutionally ambiguous" reasonable doubt instructions. Once the Superior Court acknowledged that it was "not clear [whether] the illustration lowered the degree of doubt" required to convict Mr. Moore, id., that should have been the end of the inquiry.Moore, 2022 WL 1749250 at *12.
I need not add to Judge Pratter's analysis. Because the Superior Court relied upon the same flawed analysis used in Moore to uphold Mr. Vando's conviction, in which an even more "ambiguous" hypothetical was used, the decision of the Superior Court was an unreasonable application of settled Supreme Court law.
The court here said, "In Moore, this Court again analyzed a substantially similar jury instruction and found the surgery analogy part of the instruction was 'at best ambiguous' as to whether it lowered or increased the degree of doubt. (Citation omitted). The Moore court determined, in viewing the medical illustration in combination with the trial court's accurate definition of the reasonable doubt standard, it did not believe there was a 'reasonable likelihood that the jury applied the reasonable doubt standard in an unconstitutional manner." Vando III at *7.
D. Mr. Vando's Trial Counsel was Ineffective for Failing to Object to the Reasonable Doubt Instruction.
The next step in examining the layered claim is to examine whether or not Mr. Vando's trial counsel's failure to object to the reasonable doubt instruction and the hypothetical example it contained constituted ineffective assistance of trial counsel. The Superior Court ruled that the failure to object to the instruction was not ineffective assistance, because, "[a]t the time of [Petitioner's] trial, there was no binding precedent for counsel to follow." Vando III at *7. The court noted that since the district court's decision in Brooks, the Superior Court had twice ruled that similar instructions to that examined in that case had been twice "interpreted . . . differently," in Commonwealth v. Nam, 221 A.3d 301 (Pa. Super. 2019) (unpublished memorandum) and Commonwealth v. Moore, 224 A.3d 810 (Pa. Super. 2019) (unpublished memorandum).
I note that I am not simply reviewing whether the reasonable doubt instruction was erroneous, but whether counsel was ineffective, under Strickland, for failing to object to the instruction.
The Commonwealth concedes that the failure to object to the instruction was ineffective. Com. Resp. at 19-22. Here, as in Moore, the defense strategy "hinged on the reasonable doubt defense." Id. at *14; N.T. Apr. 19, 2011, at 129-32, 140-41 (closing arguments). The Commonwealth contends, and I agree, that the lack of cases from the Superior Court acting as binding precedent for the proposition that the hypothetical at issue here was unconstitutional, is largely irrelevant, in light of the well-established Supreme Court precedent found in Cage and Sullivan. If the Supreme Court previously (indeed, in 1990), held that "grave uncertainty," and "moral certainty" deserved no place in a reasonable doubt instruction, then the highly charged hypothetical involving a loved one's need for surgery should have triggered an objection from counsel. This is especially true because Mr. Vando's only available defense was reasonable doubt. As the district court stated in Moore,
True, a federal court reviewing an ineffective-assistance-of-counsel claim must not merely second guess the defendant's attorney years later and with the benefit of hindsight. Strickland, 466 U.S. at 689 . But given the importance of a reasonable doubt instruction, the lengthy, incorrect, and emotionally charged hypothetical posed to the jury by the trial court here should have been "instinctively problematic" to any reasonable defense counsel. Brooks, 2017 WL 3475475, at *6.Moore, 2022 WL 1749250, at 14.
I respectfully recommend that the failure to object to the instruction was deficient, under Strickland's first prong. 466 U.S. at 689, 104 S.Ct. 2052. This is the type of error that pervades "the entire evidentiary picture," and is therefore more likely to support a finding of deficient attorney conduct. Id. at 695-96, 104 S.Ct. 2052. Nor can I envision any "sound trial strategy" that might have been served by failing to object. Id. at 689, 104 S.Ct. 2052. Arguing reasonable doubt is often a defense strategy that is chosen over more risky strategies, and that choice is frequently approved by courts. But permitting a defective jury instruction to undercut the jury's understanding of the demands of reasonable doubt is not a promising defense "strategy," to put it mildly. Indeed, the Commonwealth has conceded that there did not appear to be any sound trial strategy to which they could point as a reason for failing to lodge an objection. Com. Resp. at 19.
E. The Failure of Mr. Vando's Trial Counsel to Object to the Reasonable Doubt Instruction Caused Prejudice.
I consider next whether the deficient representation by trial counsel prejudiced Mr. Vando. Strickland, 466 U.S. at 692, 104 S.Ct. 2052 ("any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."). There is a serious question whether a defective reasonable doubt instruction is "structural error" that obviates a prejudice inquiry under Strickland. See Shields v. Smith, 2020 WL 6929097, at *14-15 (E.D. Pa. 2020) (discussing the impact of Sullivan's structural error analysis on the application of Strickland's prejudice prong). As I concluded in Shields, in the absence of guidance from the Third Circuit and the Supreme Court, prudence suggests I conduct a prejudice analysis under Strickland's second prong. Id. My prejudice analysis is strongly influenced by the considerations that led the Supreme Court to conclude, in Sullivan, that a significant reasonable doubt error cannot be harmless. A reasonable doubt instruction is the foundation of a jury's proper consideration of the evidence. A significant defect in the instruction "vitiates all the jury's findings." Sullivan, 508 U.S. at 281, 113 S.Ct. 2078. A "criminal trial cannot reliably serve its function" in the presence of such a defect. Id.
The strength of the evidence presented against the defendant at trial is key to the prejudice inquiry. "[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." Id. at 696, 104 S.Ct. 2052. As the Court of Appeals observed in United States v. Calhoun, 600 Fed. App'x. 842 (3d Cir. 2015) (non-precedential):
[i]t is well settled that courts applying Strickland's prejudice test must consider the strength of the evidence against the defendant. Without considering the strength of the evidence against the defendant, a court cannot determine whether there was a reasonable probability of a different result. The greater the support a verdict has in the record, the less likely it is to have been affected by errors. Where the magnitude of the evidence against the defendant is such that he cannot show he was deprived of a reliable trial result, prejudice under Strickland is not met.Id. at 844-45 (internal citations omitted).
Because the Superior Court never reached the issue of prejudice, ruling instead that Petitioner failed to demonstrate that counsel's failure to object to the instruction constituted ineffective assistance of counsel, my standard of review is de novo. Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009).
The Commonwealth has again conceded the point, arguing that they now agree that Mr. Vando suffered prejudice due to counsel's error, prejudice being defined in these circumstances as, "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is 'a probability sufficient to undermine confidence in the outcome.' " Com. Resp. at 22, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In a footnote, the Commonwealth acknowledges that this is a reversal from their position before the Superior Court, where they argued that the evidence of Mr. Vando's guilt was "overwhelming." Com. Resp. at 23, n.7. They note that the Commonwealth's position as to prejudice before the Superior Court:
failed to consider the witnesses' inconsistent statements, their credibility issues, the dearth of physical evidence supporting Vando's involvement, the jury's deliberations, or that this was Vando's third trial after an acquittal [in federal court] and a hung-jury mistrial. After further careful review, Respondents disavow the argument previously made to the Superior Court.Id.
While the Commonwealth's candid retraction is laudable, it does not end my inquiry here. I have reviewed the entire trial record in this case. Credibility issues or not, the evidence was undisputed that Mr. Vando was present in the bar, escorted the victim out the back door, and "sucker punched" him, causing the victim to fall to the ground. Additionally, Mr. Vando bragged to multiple individuals that he was involved in this homicide, establishing consciousness of guilt. However, it was also undisputed that Mr. Vando did not possess the gun, and that he ran from the scene as soon as his co-defendant began firing. Therefore, a brief examination of all the evidence will assist in determining the overall strength of the evidence against Mr. Vando.
The Commonwealth called three members of the "Almighty Latin King and Queen Nation," Maria Pagan, Angel Cruz, and Oscar Bermudez. They called two individuals who were incarcerated with Mr. Vando and who heard him confess to his involvement in the killing of Francisco Gonzalez, Jose Serrano and Lynwood Lanier. The prosecution also called Eric Alamo, who discussed his conversations with co-defendant Juan Navarro in prison about the homicide. The Assistant Medical Examiner, Dr. Edwin Lieberman, and various Philadelphia Police personnel provided testimony on what little physical evidence existed.
1. What happened in the bar.
Maria Pagan a/k/a Maria Nunez provided the most detailed testimony regarding the events inside the bar. N.T. Apr. 13, 2011, pp. 35-56. She described the victim and his girlfriend arriving at the bar around midnight, and the incident two hours later when he "plucked" her crown tattoo and claimed to be a Latin King from New York. Id. at 43-44. She told "King KR" what had occurred, and watched as KR and Vando discussed victim Francisco Gonzalez' claim that he was a "First Crown" Latin King from New York. Id. at 47. Defendant Navarro gave Nunez his 9mm semi-automatic pistol when he arrived at the bar, and she held it in her purse until just before Navarro, Vando, and "King KR" took the victim to the back alley, when she gave it back to Navarro. Id. at 51-52. Although she expected the victim would be given a beating, she heard gunshots after the group went outside, and she saw the victim lying dead in the street several minutes later. Id. at 53.
Angel Cruz, a/k/a "King Quiet Storm" was also in the bar, and testified consistently with Maria Nunez that the victim was in the bar with his girlfriend, that he claimed to be a Latin King but was not, and that Cruz watched "King KR," Vando, and "King Penguin," (not identified by any other name in the record) get into an altercation with the victim in which they told the victim he "was being disrespectful because he was fake he wasn't no Latin King." N.T. Apr. 15, 2011, pp. 11-12. KR, Vando, and Penguin dragged the victim out of the bar. Id. at 12. Navarro followed. Id. at 13. Cruz, like Nunez, believed the victim would receive a beating in the alley for his disrespect to the Latin Kings. Id.
Finally, Oscar Bermudez a/k/a "King Fat Joe" corroborated Ms. Nunez' observations of the altercation inside the bar, also testifying that KR and Vando huddled together at the bar (it was too loud for Bermudez to overhear their conversation), and then, along with Navarro, took the victim out of the bar. N.T. Apr. 18, 2022, pp. 42-44. Bermudez also described all four coming back into the bar, and then leaving again, but without KR. Id. at 44. Bermudez went out the front door of the bar with Quiet Storm, (Cruz), and ultimately witnessed the shooting. Id. at 45.
2. What happened in the alley.
Angel Cruz was in the back alley with Francisco Gonzalez, Mr. Vando, Mr. Navarro, KR and Penguin. Cruz watched KR, Penguin, and Mr. Vando grab the victim, and Cruz "tried to break between." N.T. Apr. 15, 2011, pp. 13-14. Navarro walked up behind them, and was not grabbing at the victim. Id. at 15. Cruz saw Mr. Vando "sucker punch" Gonzalez, and then watched Navarro pull out a gun, as the victim fell to the ground, face down. Id. at 16. Cruz saw multiple shots fired into the back of Mr. Gonzalez' head. Id.
Oscar Bermudez also testified that he witnessed the attack of Francisco Gonzalez in the alley. N.T. Apr. 18, 2011, pp. 45-48. He testified that Mr. Vando punched Gonzalez in the face, at which point Mr. Gonzalez dropped to the ground, and Navarro then pulled out a gun and "started shooting on him." Id. at 45. Mr. Bermudez could not be more specific than that he heard "several" shots, and he could not see where on the victim's body the bullets landed. Id. at 46.
Maria Nunez did not witness the killing, but was in the back alley with Gonzalez' girlfriend, whom she warned against talking about what she had seen. N.T. Apr. 13, 2011, p. 54. She directed a comment of "that's what you get," toward the victim's body, in apparent acknowledgement of the fact that it was his physical action of touching her tattoo earlier that evening that caused his demise. Id.
3. What Vando and Navarro said about the killing.
Maria Nunez went to her sister's house after the killing, where she saw King KR. N.T. Apr. 13, 2011, p. 55. He had a revolver with him, and told Maria that he was the one who shot Mr. Gonzalez. Id. at 56. Several days later, she saw Mr. Vando, who "also said he [meaning Mr. Vando] did it." Id. Ms. Nunez said Mr. Vando, far from showing remorse, was bragging about the killing. Id.
Angel Cruz saw Mr. Navarro and Mr. Vando later that same night (actually early the next morning), at the home of Mr. Navarro's ex-girlfriend, "Mari," and had a private conversation with them at that time. N.T. Apr. 15, 2011, p. 18. Cruz asked why the victim had to be killed, and both Navarro and Vando stated that "it had to be done" because of Gonzalez' disrespectful behavior toward the Latin Kings. Id. Neither man seemed remorseful for the killing, in fact, Navarro appeared "excited." Id. at 19. Later, Cruz was housed with Navarro at a state correctional institution, and Cruz heard Navarro "bragging in the yard with all the brothers from Reading, Allentown and from Philly" about the homicide. Id. at 19-20. Cruz advised Navarro to keep quiet because the "walls got ears." Id. at 20.
Oscar Bermudez also ended up at "Maritza's house," that night, "Mari" or "Maritza" apparently being Mr. Bermudez' cousin. N.T. Apr. 18, 2011, p. 47. There he saw Angel Cruz, Mr. Navarro, Mr. Vando, and several additional cousins. Id. He also witnessed Navarro and Vando "bragging" about the homicide and heard Vando describe punching the victim in the face, while Navarro admitted he "emptied the whole clip on the guy." Id. at 47-48.
Mr. Vando told two fellow inmates, at different times, that he punched Mr. Gonzalez during the incident that led to his murder. In 2005, Mr. Vando shared a cell with Jose Serrano, to whom he confessed his role in the killing. N.T. Apr. 18, 2011, pp 4-6. In 2006, Mr. Vando briefly shared a cell with Lynwood Lanier, who testified that he first overheard Mr. Vando talking to fellow inmates "A.M." and "Penguin," whom he did not know, about "fighting this guy" named "Toto," [Francisco Gonzalez], and "knock[ing] him out cold." N.T. Apr. 19, 2011, pp. 5-7. Lanier overheard Vando "bragging" about the killing, which was a result of Gonzalez claiming to be a Latin King. Id. at 7. Neither Serrano nor Lanier knew Vando or any other Latin Kings before these conversations. Both testified in hope of helping themselves. N.T. Apr 18, pp. 12-13 [Serrano]; N.T. Apr. 19, 2011, pp. 8-12 [Lanier].
Eric Alamo also testified pursuant to a cooperation plea agreement with the United States, while awaiting sentencing on federal drug charges. N.T. Apr. 15, 2011, pp. 157-62. He told the jury that while incarcerated with Mr. Navarro, they discovered they "had a girl in common," named Jamari. Id. at 164. She was Mr. Alamo's ex-girlfriend, and had a child with Navarro's brother-in-law. Id. Mr. Alamo related that one day, after finishing a telephone call, Mr. Navarro looked visibly upset, and asked if Alamo had any cigarettes. Id. at 165. Cigarettes are contraband in the prison, but Alamo was known to have them, and had rigged his cell so that they could smoke near the vent to avoid detection. Id. 165-66. While the two shared a cigarette, Mr. Navarro told Mr. Alamo that he had "killed the wrong guy." Id. at 166. Mr. Navarro explained what had happened at the ZIP Code bar, which Alamo knew nothing about, and then said that he had shot "Toto" because he believed him to be "one of the guys from Rosehill and Indiana that shot his brother Josh and left him on the railroads for dead." Id. Navarro told Alamo how he and the other Latin Kings took the victim outside, punched him, and Navarro then "shot him in the back of the head 16 to 17 times. He said he unloaded the whole weapon on him." Id. at 166-67. Alamo testified that he is not a Latin King, that he had never been in the ZIP Code bar, and although he lived approximately fifteen to 20 blocks from the bar, he had not heard anything about the homicide before this conversation. Id. at 167-68.
Mr. Alamo's testimony is never mentioned in the Commonwealth's responsive brief. He testified only concerning Juan Navarro, however, his testimony is relevant to my analysis regarding the weight of the evidence in this case against Mr. Vando.
4. Inconsistencies and benefits.
Prosecutors frequently are forced to rely on polluted witnesses, given that they are most often the ones in the vicinity when crimes are committed. A prosecutor is not wrong to argue in closing that just because a witness is a murderer, that doesn't automatically make him a liar. The problem for the prosecutor here was that many of his witnesses were, in fact, documented liars.
Again, the problem is ubiquitous, especially when prosecuting violent crime. Witnesses frequently believe they may get away with telling part of the story, without implicating themselves or their friends in a crime. Only when faced with the reality of their own situation, frequently months or even years after their initial statements, do they face facts and "come clean," providing all of the details that they have known all along. Sometimes, as in this case, the only way to get that full story is to provide partial or full immunity.
Here, the inconsistencies between the description of events between Nunez, Cruz, and Bermudez, were minor, however, each of them gave multiple statements to police, and it was only in their later statements that they told police of their own involvement. In Nunez' case, she received a grant of immunity prior to testifying in the related federal trial. See generally, N.T. Apr. 13, 2011, pp. 35-36, 38, 64, 102, 129 [Nunez]; Apr. 15, 2011, p. 27 [Cruz]; Apr. 18, 2011, pp. 58-61 [Bermudez]. Serrano [N.T. Apr. 18, 2011, pp. 12-13]; Lanier [Apr. 19, 2011, pp. 8-12, 27-31]; and Alamo [Apr. 15, 2011, pp. 157-62], all testified pursuant to cooperation plea agreements or in hope of a reduced sentence on pending charges.
This close examination of the evidence presented by the Commonwealth at trial establishes that the prosecution did a textbook job of utilizing the available evidence from multiple witnesses to corroborate that of the polluted witnesses who were on the scene at the ZIP Code Bar that night. Compounding the difficulty of establishing guilt in this case, however, was the utter absence of evidence directly linking Petitioner to the shooting, such as DNA or fingerprints matching Petitioner at the scene or on a recovered firearm linked to the shooting. No security camera footage aided in identifying the actors.
No firearm was ever found, although there was evidence that all thirteen rounds were fired from the same gun. N.T. Apr. 13, 2011, p. 8; Apr. 15, 2011, pp. 219-22.
More troubling is the simple fact that everyone who was there that night testified that, given the incident, that is, Mr. Gonzalez falsely claiming to be a Latin King, the expected outcome was a beating in the back alley. Instead, Juan Navarro pulled out a 9mm semi-automatic handgun and emptied thirteen rounds into the back of the victim's head. Even all of the bragging afterward was consistent—Gonzalez was shot for impersonating a Latin King, according to Vando's statements to his cellmates. But the punishment does not fit the crime. Only Navarro's ultimate confession to Eric Alamo, a person with no connection whatsoever to either the Latin Kings or the events of October 1, 2004, that Navarro killed Gonzalez because he believed Gonzalez had shot his brother, provides a logical explanation for what happened that night. And it seems clear that Mr. Vando did not know before the shooting, or indeed after, possibly not until he heard this testimony, that this was the real motive behind the shooting.
Mr. Vando [and indeed Mr. Navarro] were convicted of third-degree murder, not first-degree murder, and therefore specific intent need not be proven. Had the jury been properly instructed with regard to the type of "reasonable doubt" that would cause them to "hesitate to act," there is a reasonable likelihood - enough to "undermine confidence" in the outcome - that this jury would have acquitted Vando, as the federal jury did, or failed to reach a verdict, as the first state court jury did. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
I therefore respectfully recommend that Mr. Vando's petition be granted as to the first issue, and the Commonwealth instructed to retry Mr. Vando within a reasonable period of time. Because Mr. Vando's remaining issues are rendered moot by a granting of the first issue, I respectfully recommend that those issues be dismissed with prejudice.
RECOMMENDATION
Based upon the discussion above, I respectfully recommend Petitioner Len Vando's petition be granted on the single issue of the constitutionality of the reasonable doubt instruction given to the jury at trial. I recommend that all remaining issues be dismissed with prejudice as moot, and that no certificate of appealability issue with regard to those remaining claims because "the applicant has [not] made a substantial showing of the denial of a constitutional right[,]" under 28 U.S.C. § 2253(c)(2), since he has not demonstrated that "reasonable jurists" would find my "assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see United States v. Cepero, 224 F.3d 256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134, 132 S. Ct. 641, 181 L.Ed.2d 619 (2012).
The parties may object to this report and recommendation under 28 U.S.C. 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with this document. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and shall provide an explanation of the basis for the objection. Failure to file timely objections will likely result in the loss of appellate rights. See Equal Employment Opportunity Commission v. City of Long Branch, 866 F.3d 93, 99-100 (3d Cir. 2017); Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within fourteen (14) days of the date the objections were served.