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explaining "unsubstantiated rumor testimony, such as the 'word on the street,' is generally considered inadmissible hearsay evidence"
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Civil Action 02-CV-7693.
September 30, 2004
MEMORANDUM AND ORDER
Presently before the Court is Steven E. Williams's ("Petitioner") pro se Petition for Writ of Habeas Corpus (Doc. No. 1), the Report and Recommendation filed by Chief Magistrate Judge James R. Melinson (Doc. No. 17), and Petitioner's Objections to the Magistrate's Report and Recommendation (Docs. No. 23, 25). For the reasons that follow, we will dismiss the Petition with prejudice.
I. FACTUAL AND PROCEDURAL HISTORY
A. Trial and Direct Appeal
On May 25, 1990, following a jury trial in the Court of Common Pleas of Philadelphia County, Petitioner and his co-defendants, Clarence Johnson and Joseph D'Amato, were found guilty of murder in the first degree and criminal conspiracy. Commonwealth v. D'Amato, Nos. 342-346, 337-341, 347-351, slip op. at 2 (Pa. Ct. Com. Pl. Nov. 7, 1991). The jury deadlocked after the penalty phase hearing, and the trial court sentenced Petitioner to a term of life imprisonment. Id. The trial court heard and denied Petitioner's post-verdict motions, and formally sentenced him to life imprisonment for murder and a consecutive sentence of five to ten years' imprisonment for criminal conspiracy. Id.
On April 26, 1991, Plaintiff filed a timely notice of appeal to the Pennsylvania Superior Court. Commonwealth v. Williams, 654 A.2d 604 (Pa.Super.Ct. 1994) (table). The appeal was initially dismissed on January 30, 1992, by a panel of the Superior Court for failure to file a brief. Id. Petitioner's appellate rights were later reinstated nunc pro tunc on September 17, 1993, and Petitioner's counsel filed a notice of appeal in the on October 13, 1993. Id. Petitioner raised four issues in his direct appeal: (1) whether the trial court erred in admitting photographs of the decedent's body; (2) whether the court erred in permitting the Commonwealth to use a display board containing photographs of persons not involved in the prosecution; (3) whether the government deprived Petitioner of a fair trial by failing to disclose that Jonathan White would testify as a Commonwealth witness and by failing to disclose that Mr. White was granted a concession of immunity in exchange for his testimony; and (4) nine separate allegations of ineffective assistance of counsel. Id. On October 20, 1994, the Superior Court affirmed the trial court's judgment of sentence, denying all four of Petitioner's claims on the merits. Id. Williams's petition for allocatur to the Pennsylvania Supreme Court was denied on March 20, 1995. Commonwealth v. Williams, 657 A.2d 490 (Pa. 1995) (table).
B. PCRA Proceedings
On September 6, 1996, Williams filed a pro se application for relief under the Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONST. STAT. ANN. §§ 9541 et seq. (1998 Supp. 2003). The PCRA court appointed counsel to represent Petitioner in his post-conviction proceeding. Commonwealth v. Williams, 550 A.2d 213 (Pa.Super.Ct. 2000) (table). Petitioner's PCRA counsel filed a "no merit" letter on March 2, 1998, indicating that Petitioner's asserted issues were without arguable merit, and that there were no additional meritorious issues to be raised in an amended PCRA petition. Id. (discussing Letter of Neal M. Masciantonio, Esq., Counsel for Steven Williams, to Hon. Tama Myers Clark, Pennsylvania Court of Common Pleas (Mar. 2, 1998)). After reviewing the record and PCRA counsel's "no merit" letter, on June 25, 1998, the PCRA court dismissed the petition. Id.
Petitioner timely appealed the dismissal of his PCRA petition. Id. On September 29, 2000, the Superior Court vacated the PCRA court's order, concluding that PCRA counsel's "no merit" letter failed to comply with the procedural requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998). Commonwealth v. Williams, 766 A.2d 894 (Pa.Super.Ct. 2000) (table). On remand, new PCRA counsel was appointed for Petitioner. Commonwealth v. Williams, 806 A.2d 468 (Pa.Super.Ct. 2002) (table). On April 17, 2001, new PCRA counsel also filed a "no merit" letter, concluding that Petitioner had no issues of arguable merit that could be presented in an amended petition. Id. The PCRA court dismissed Petitioner's pro se PCRA petition on May 18, 2001, and the Pennsylvania Superior Court affirmed the dismissal order on June 18, 2002. Id. Petitioner did not seek further review by the Pennsylvania Supreme Court.
C. Federal Habeas Petition
On October 3, 2002, Petitioner filed the instant pro se Petition for a Writ of Habeas Corpus. (Doc. No. 1.) Specifically, he asserted that the writ of habeas corpus should be granted because: (1) trial counsel was ineffective for failing to present two alibi witnesses and two fact witnesses; (2) trial counsel was ineffective for failing to file post-verdict motions alleging that the trial court committed reversible error by permitting Terri Harris, a government witness, to introduce inadmissible hearsay testimony of a co-conspirator, Leroy Clacks; (3) trial counsel was ineffective for failing to file post-verdict motions alleging that the trial court improperly restricted the cross-examination of government witnesses Harris, Steven Moore, Gene Swain, and Lieutenant Andrew Kalmar; (4) trial counsel was ineffective for failing to file post-verdict motions alleging that the trial court erred in permitting the Commonwealth to present hearsay testimony and not permitting defense counsel to test this evidence; and (5) the prosecutor committed misconduct by failing to disclose that Jonathan White would be a witness and that he had been granted concessions from the government in exchange for his testimony. Id. The Commonwealth responded that Petitioner is not entitled to habeas relief because all of these claims are without merit. (Doc. No. 11.)
We referred the Petition to Chief Magistrate Judge James R. Melinson for a Report and Recommendation. (Doc. No. 4.) On November 21, 2003, Chief Judge Melinson issued a Report and Recommendation, concluding that none of Petitioner's claims merited habeas relief. (Doc. No. 17 at 3-19.) Petitioner then filed a timely Objection to the Magistrate's Report and Recommendation, and requested de novo review of all claims raised in the original habeas Petition. (Doc. No. 23.)
We also include in our de novo review the arguments made in Petitioner's Additional Objection to the Magistrate's Report and Recommendation. (Doc. No. 25.) The Additional Objection was timely filed on January 26, 2004, and appears only to supplement the legal arguments made in the original Objection, rather than raising new issues. ( Id.)
II. STANDARD OF REVIEW
This Court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which specific objections have been made. 28 U.S.C. § 636(b)(1) (2000); FED. R. CIV. P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 141-42 (1985) ("[A] United States district judge may refer . . . petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions. . . . [A]ny party that disagrees with the magistrate's recommendations `may serve and file written objections' to the magistrate's report, and thus obtain de novo review by the district judge." (citations and footnotes omitted)). Here, Petitioner objects to the Magistrate Judge's determinations on all claims raised in the original habeas Petition. (Docs. No. 23, 25.) While the Report and Recommendation provides a comprehensive analysis of each of Petitioner's alleged grounds for relief, this Court nevertheless will address de novo all Petitioner's objections to the Report and Recommendation below.
Because Petitioner is acting pro se, we will liberally construe his objections to the Report and Recommendation. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hubbard v. Pinchak, 378 F.3d 333 (3d Cir. 2004).
III. DISCUSSION
Absent exceptional circumstances, a state prisoner is required to exhaust all avenues of state review of his claims prior to filing a petition for federal habeas review. 28 U.S.C. § 2254(b)(1) (2000); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); see also Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993) ("A state prisoner may initiate a federal habeas petition only after state courts have had the first opportunity to hear the claim sought to be vindicated."). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c) (2000). The policy of the exhaustion requirement is rooted in the tradition of comity: the state must have the "`initial opportunity to pass upon and correct'" alleged violations of a habeas petitioner's constitutional rights. Picard v. O'Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). To satisfy the exhaustion requirement, the claims included in a federal habeas petition must first have been "fairly presented" to the state courts. Picard, 404 U.S. at 275; Toulson, 987 F.2d at 987. Once a claim is fairly presented to the state's trial court, intermediate appellate court, and highest court of appeal, it is deemed exhausted. Evans v. Court of Common Pleas, 959 F.2d 1227, 1230-31 (3d Cir. 1992) (citing Picard, 404 U.S. at 275). The habeas petitioner bears the burden of proving that he has exhausted available state remedies. Toulson, 987 F.2d at 987.
Fair presentation requires that a prisoner invoke "`one complete round'" of the state's established appellate process to satisfy the exhaustion requirement. Villot v. Varner, 373 F.3d 327 (3d Cir. 2004) (quoting O'Sullivan, 526 U.S. at 845).
The exhaustion requirement does not apply when "state procedural rules bar a petitioner from seeking further relief in state courts." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). In such cases, exhaustion is not possible because the state court would refuse to hear the merits of the claim on procedural grounds, and any attempt to assert the claims would be futile. Id. However, this does not mean a federal court may, without more, proceed to the merits of petitioner's claims. "[C]laims deemed exhausted because of a state procedural bar are procedurally defaulted." Id; see also Coleman v. Thompson, 501 U.S. 722, 749 (1991) (holding that federal review of procedurally defaulted claims is precluded if the "prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule"). Federal courts may not consider the merits of a procedurally defaulted claim unless "the petitioner `establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default.'" Lines, 208 F.3d at 260 (quoting McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)); see also Dretke v. Haley, 124 S. Ct. 1847, 1852 (2004) ("[W]e have recognized an equitable exception to the bar when a habeas applicant can demonstrate cause and prejudice for the procedural default.").
The federal habeas statute for state prisoners, 28 U.S.C. § 2254, "requires habeas courts to employ a deferential, `reasonableness' standard of review" to a state court's judgment on constitutional issues. Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 903 (3d Cir. 1999); see also Lindh v. Murphy, 521 U.S. 320, 334 n. 7 (1997) (describing § 2254(d)'s standard of review as "highly deferential" to state court determinations). A federal court may overturn a state court's resolution on the merits a constitutional issue only if the state court decision "1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254(d)(1)-(2) (2000). The Supreme Court has adopted a two-part standard for analyzing claims under § 2254(d)(1), establishing that the "contrary to" and "unreasonable application of" clauses have independent meaning:
Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "[A] federal habeas court may not issue the writ [of habeas corpus] simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
This court must also apply a deferential standard to a state court's determination of facts. A state court's determination of a factual issue is "presumed to be correct," and may be rebutted only by "clear and convincing evidence" to the contrary. 28 U.S.C. § 2254(e)(1) (2000). Habeas relief predicated on an alleged factual error will be granted only if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2).
This presumption of correctness applies to the factual determinations of both state trial and appellate courts. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).
A. Ineffective Assistance of Counsel — Failure to Call Witnesses
First, Petitioner claims that his trial counsel was ineffective for failing to call two alibi witnesses, Val Burgess and Lottie Alfreda ("Freda") Denny, and two fact witnesses, Darryl Bookie and Sam Bennie, in his defense. (Doc. No. 23 at 1-4.) This claim was raised on direct appeal and is exhausted.
The Supreme Court held in Williams v. Taylor that the "clearly established federal law" with respect to ineffective assistance of counsel claims is found in Strickland v. Washington, 466 U.S. 668 (1984). 529 U.S. at 367. In Strickland, the Court established a two-pronged test for evaluating a Sixth Amendment claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.466 U.S. at 687. Both the "performance" and "prejudice" prongs of the Strickland test must be satisfied to establish a Sixth Amendment violation. Id.
To demonstrate that counsel's performance was deficient, a petitioner must show that counsel's representation fell below an "objective standard of reasonableness" based on the facts of the case, viewed at the time of counsel's conduct. Id. at 688, 690. A strong presumption exists that counsel's conduct falls within the wide range of reasonably professional assistance. Id. at 689; see also id. ("Judicial scrutiny of counsel's performance must be highly deferential."); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) (" Strickland's standard, although by no means insurmountable, is highly demanding. . . . Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ. . . ."). To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Supreme Court has defined "reasonable probability" as "`a probability sufficient to undermine confidence in the outcome.'" Holland v. Jackson, 124 S. Ct. 2736, 2738 (2004) (quoting Strickland, 466 U.S. at 694). This evaluation must be made in light of "the totality of the evidence before the judge or jury" in the case. Strickland, 466 U.S. at 695.
Here, we must determine whether the state court's denial of Petitioner's ineffective assistance of counsel claim for failure to call the alleged alibi and fact witnesses was objectively unreasonable. See Woodford v. Viscotti, 537 U.S. 19, 27 (2002) (per curiam) ("`[I]t is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly.' The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable." (citations omitted)). Considering Petitioner's first claim on direct appeal, the Superior Court stated:
The appellant's . . . claim is an assertion of the ineffectiveness of trial counsel for failing to present two alibi witnesses, Val Burgess and Freda Denny, and two fact witnesses, Darryl Booker and Sam Bennie, at trial. The appellant alleges that, prior to trial, he gave trial counsel the names of these individuals who would testify on his behalf. The appellant avers that the testimony of these witnesses would have either established that he had no involvement in the murder of John Philson or that Terri Harris lied about his involvement to avoid prosecution herself. The appellant contends that trial counsel was aware of the existence of these witnesses as well as the content of their proposed testimony and that the testimony at best might have resulted in an acquittal or at least have created a reasonable doubt in the minds of the jurors. . . . Because he was prejudiced by trial counsel's inaction, the appellant concludes, trial counsel was ineffective. We disagree.
In Commonwealth v. Gillespie, 620 A.2d 1143 (1993), this Court, citing Commonwealth v. Petras, 543 A.2d 483, 485 (1987), held that in order to obtain relief due to trial counsel's ineffectiveness in failing to present a witness, an appellant must establish: (1) that the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should have known of the witness; (4) the witness was willing to cooperate and testify for the appellant at trial; and (5) the absence of the testimony prejudiced the appellant so as to deny him a fair trial. Commonwealth v. Gillespie, supra at 1145; Commonwealth v. Davis, 554 A.2d 104, 110 (1989), allocatur denied, 571 A.2d 380 (1989). The appellant's proffer does not meet these requirements. He has not established that the witnesses were available. Of the four witnesses that the appellant has named, he has submitted only one affidavit indicating that any of the witnesses were willing to cooperate and testify for him at trial. The appellant has not demonstrated through a showing of the content of their proposed testimony that the absence of the witnesses' testimony so prejudiced him as to deny him a fair trial. Because appellant has failed to show that his underlying contention possesses arguable merit, trial counsel may not be deemed ineffective.Commonwealth v. Williams, 654 A.2d 604, slip op. at 37-39 (Pa.Super.Ct. 1994) (table) [hereinafter Williams, slip op.] (citations and footnotes omitted). In its opinion, the Superior Court also found that (1) Val Burgess had moved out of town and was unavailable to testify, Williams, slip op. at 37 n. 15 (citing N.T. 5/21/90 at 165); (2) Freda Denny left the appellant's presence prior to the time of the murder, and therefore could not provide an alibi, id. at 37 n. 15; (3) that trial counsel considered calling Terry Booker as a witness, but ultimately declined to do so because his testimony was irrelevant and based on hearsay knowledge, id. at 37-38 n. 15 (citing N.T. 5/22/90 at 8-9); and (4) Sam Bennie would have testified that, on the night of the murder, he saw Terri Harris and an unindicted co-conspirator, Leroy Clacks, but did not see Petitioner, id. at 38 n. 15. In the absence of clear and convincing evidence to the contrary, these factual findings must be accepted as correct. 28 U.S.C. § 2254(e)(1) (2000).
We cannot conclude that the state court's holding was objectively unreasonable under the Strickland standard for ineffective assistance of counsel. Decisions which are not "contrary to" clearly established Supreme Court law are subject to habeas relief only if they are not merely erroneous, but also an "unreasonable application" of clearly established federal law. Woodford, 527 U.S. at 24-25. The Superior Court applied a five-part test to determine whether trial counsel was ineffective for failing to present a witness. Williams, slip op. at 38-39. To establish ineffectiveness, the court held that a petitioner must establish: (1) the witnesses existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should have known of the witness; (4) the witness was willing to cooperate and testify for the appellant at trial; and (5) the absence of testimony prejudiced the defendant so as to deny him a fair trial. Id. (citing Commonwealth v. Gillespie, 620 A.2d 1143, 1145 (Pa.Super.Ct. 1993); Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.Ct. 1987)). We conclude that this test is not contrary to, or an unreasonable application of, the Supreme Court's Strickland standard for determining ineffective assistance with respect to counsel's failure to call potential witnesses at trial. The first four requirements of the Superior Court's five-part test are relevant to Strickland's performance prong, and the last part comports with Strickland's prejudice prong. See Satterfield v. Johnson, 322 F. Supp. 2d 613, 621 (E.D. Pa. 2004). Several other decisions in this Court have reached a similar conclusion. See, e.g., Satterfield, 322 F. Supp. 2d at 621; Wright v. Vaughn, No. 00-3822, 2004 U.S. Dist. LEXIS 14648, at *23-26 (E.D. Pa. July 26, 2004); Fithian v. Shannon, No. 02-1861, 2002 U.S. Dist. LEXIS 13388, at *11-12 (E.D. Pa. July 23, 2002); see also Blasi v. Attorney Gen., 120 F. Supp. 2d 451, 474-75 (M.D. Pa. 2000).
Since the Williams appeal in 1994, the Superior Court's five-part test has been adopted by the Pennsylvania Supreme Court for evaluating ineffective assistance of counsel claims for failure to call a witness. See Commonwealth v. Holloway, 739 A.2d 1039, 1048 (Pa. 1999); Commonwealth v. Henry, 706 A.2d 313, 329 (Pa. 1997); Commonwealth v. Smith, 675 A.2d 1221, 1230 (Pa. 1996).
We also conclude that the state court's application of the ineffective assistance standard to the facts in this case was not objectively unreasonable. First, the state court determined that Petitioner had not demonstrated any of the witnesses were available. Williams, slip. op at 39 n. 16. This determination was reasonable. When a petitioner contends that trial counsel was ineffective because he failed to locate or call witnesses, the petitioner must, at a minimum, show that the witnesses were available at the time of trial. See, e.g., Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991). To make this showing, a petitioner must do more than make "vague and conclusory allegations" in his habeas petition that the witness was available. Id. at 298. Here, Petitioner has presented only one affidavit by a potential witness, Samuel Bennie, alleging that he was available at the time of the trial and willing to testify. Williams, slip op. at 39 n. 18. Absent any evidence other than Petitioner's "vague and conclusory allegations" that the other three witnesses were available and willing to testify at trial, we cannot conclude that the state court's decision on this point was objectively unreasonable.
This affidavit was submitted in the 1994 state court appeal.
The state court also determined that trial counsel's failure to call any of the four prospective witnesses did not prejudice Petitioner. Williams, slip op. at 39. We conclude that this finding also was not unreasonable. A finding of prejudice "requires a showing that counsel's errors were so serious as to deprive [Petitioner] defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. As discussed above, this "highly demanding" standard, Kimmelman, 477 U.S. at 382, requires a petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Petitioner first alleges that Val Burgess, if called, "would have testified that the Petitioner was helping to move his aunt the evening of the victim's murder." (Doc. No. 1 at 2-A.) Even if Burgess was available and testified to this effect, however, it was not unreasonable for the state court to conclude that counsel's failure to call her was not prejudicial. At trial, counsel called Petitioner's aunt, Gloria Mitchell, who testified that Petitioner was at her house on the night of the murder, helping her move. (N.T. 5/21/90 at 151-54.) Burgess's purported testimony thus would have been repetitious of Mitchell's testimony. Failure to present repetitious or cumulative evidence does not create a reasonable probability that the trial's outcome would have been different. Hess v. Mazurkiewicz, 135 F.3d 905, 909 (3d Cir. 1998); cf. FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by . . . needless presentation of cumulative evidence."). Consequently, it was not unreasonable for the state court to determine that Petitioner was not prejudiced by his counsel's failure to call Val Burgess.
Petitioner's second argument is that he was prejudiced by counsel's failure to call Lottie Alfreda ("Freda") Denny, Petitioner's former girlfriend, as an alibi witness. (Doc. No. 1 at 4-A.) Petitioner asserts that Denny spoke with Petitioner on three separate occasions during the evening of the murder while Petitioner was allegedly at his aunt's home. ( Id.) Contrary to Petitioner's allegations, however, Denny is not an alibi witness. Petitioner admits in his habeas petition that after he helped Mitchell move, Denny left him for the rest of the day. See id. ("Ms. Lottie Denny, was at the home during the time the moving by the Petitioner, for his Aunt Gloria Mitchell, took place. After the move was complete Denny left the home to attend to some personal business of hers."). This is corroborated by Mitchell's testimony at trial that after the moving job, Denny did not stay with Petitioner at Mitchell's home. (N.T. 5/21/90 at 171-72.) Because Denny was absent, she could not have known whether Petitioner remained at his aunt's house that night, and thus could not provide an alibi for him. Counsel cannot be deemed ineffective for deciding not to present a witness who could not testify to an alibi. Commonwealth v. Wade, 416 A.2d 613 (Pa. 1983); Commonwealth v. McIntyre, 424 A.2d 874 (Pa. 1981); Commonwealth v. Wallace, 500 A.2d 816 (Pa.Super.Ct. 1985). Therefore, it was not unreasonable for the state court to conclude that counsel's failure to call Freda Denny did not constitute ineffective assistance of counsel.
Petitioner's third argument is that trial counsel was ineffective for failing to call Darryl Booker. Petitioner alleges that Booker would have testified that Terri Harris, a government witness, told Booker that she had to incriminate petitioner to avoid going to jail herself. (Doc. No. 1 at 7-A to 8-A.) The trial transcript indicates that counsel considered presenting Mr. Booker and talked with him during the proceedings. (N.T. 5/21/90 at 178, 180.) Ultimately, however, counsel decided not to call Booker because the witness personally knew nothing about Ms. Harris's alleged statements and could only testify to hearsay. ( Id. at 8-9.) Counsel thus made a informed decision not to call Booker. Choices made by trial counsel "after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable" under the Strickland standard. Strickland, 466 U.S. at 490; see also Government of V.I. v. Weatherwax, 77 F.3d 1425 (3d Cir. 1996) (noting that witness selection is a non-fundamental decision counsel is entitled to make at trial). Here, counsel made an informed choice not to call Booker because much, if not all, of his testimony would not have been admissible. Thus, the state court's decision finding that counsel was not ineffective for failing to call Darryl Booker is also reasonable.
Finally, Petitioner alleges that his trial counsel was ineffective for failing to call Sam Bennie. (Doc. No. 1 at A-6.) However, the affidavit that Petitioner provided in the state court appeal establishes that Bennie had little relevant evidence to offer. According to the affidavit, Bennie saw two of Petitioner's co-conspirators, Leroy Clacks and Terri Harris, near the scene of the murder around the time of the incident, but did not see Petitioner. Williams, slip op. at 39 n. 18. The fact that Bennie allegedly did not see Petitioner on the street near the time of the crime, however, does little to establish that Petitioner did not take part in the murder, and falls far short of the Strickland standard that the witness's testimony must create a "reasonable probability" of a different outcome. We therefore find that the state court's decision that Petitioner's trial counsel was not ineffective for failing to call Bennie was not unreasonable.
B. Ineffective Assistance of Counsel — Hearsay Objections
Petitioner's second claim is that trial counsel was ineffective for failing to preserve an objection to Harris's alleged hearsay testimony. (Doc. No. 1 at 8-A to 12-A.) This claim was also raised on direct appeal and is exhausted.
Discussing Petitioner's claim on direct appeal, the Superior Court stated:
The appellant's twelfth and final issue is an assertion that trial counsel was ineffective for failing to preserve a claim that the trial court committed reversible error when it permitted Terri Harris to testify to inadmissible hearsay. Specifically, the appellant finds fault with several references attested to by Terri Harris to statements made by Leroy Clacks. We cannot agree.
The co-conspirator's exception to the hearsay rule
allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is . . . other evidence of the existence of a conspiracy. The co-conspirator exception applies even where no party has been formally charged with conspiracy.
To lay a foundation for the co-conspirator's exception to the hearsay rule, the Commonwealth must prove the following: (1) a conspiracy existed between the declarant and the person against whom the evidence is offered and (2) the statement sought to be admitted was made during the course of the conspiracy. Such statements may be admitted by the trial court "upon only slight evidence of the conspiracy." A conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties.
In Commonwealth v. Johnson D'Amato, [ 615 A.2d 1322 (Pa.Super.Ct. 1992),] the appellant's co-defendants presented an identical claim of trial court error. This Court held that: "Our review of the record reveals that all of the statements were made during the course of the conspiracy. Consequently, we find that the trial court did not err when it allowed the statements in under the coconspirator's exception to the hearsay rule." Id. at 1331. Following our independent review, we conclude that we agree with this finding. Because the appellant's underlying issue is devoid of merit, we hold that the trial counsel may not be deemed ineffective for failing to preserve the claim for review.Williams, slip op. at 40-41 (citations omitted). In the absence of clear and convincing evidence to the contrary, this Court must assume the facts recounted by the state court are correct. 28 U.S.C. § 2254(e)(1) (2000).
We conclude that the state court's determination on this claim is also objectively reasonable and not contrary to established Supreme Court precedent. According to Pennsylvania state law, under the co-conspirator's exception to the hearsay rule, statements of a non-testifying co-conspirator made during the course of a conspiracy and in furtherance of the conspiracy are admissible against the defendant co-conspirator. Commonwealth v. Pinkins, 525 A.2d 1189 (Pa. 1987); Commonwealth v. Dreibelbis, 426 A.2d 1111, 1115 (Pa. 1981). This exception applies even when the non-testifying co-conspirator has not been formally charged with conspiracy. Dreibelbis, 426 A.2d at 1115 (citing Commonwealth v. Stoltzfus, 337 A.2d 873 (Pa. 1975)). A conspiracy may be inferentially established by showing the relation, conduct, and circumstances of the parties. Dreibelbis, 426 A.2d at 1115 (citing Commonwealth v. Roux, 350 A.2d 867 (Pa. 1976)). Here, the state court found that the testimony of witnesses at trial — specifically, Terri Harris, Steven Moore, and Lt. Andrew Kalmar — established the existence of a conspiracy. See Commonwealth v. Johnson D'Amato, 615 A.2d 1322, 1330-31 (Pa.Super.Ct. 1992).
Harris testified that about a month before the murder, she accompanied Petitioner and Clacks to a store near 15th and Tasker Street, where Petitioner and Clacks went inside to meet the other co-conspirators, Charles Johnson and Joseph D'Amato. (N.T. 5/14/90 at 139-41.) When Petitioner and Clacks returned, they were carrying guns ( Id. at 142-47), and Harris testified that she later witnessed one of the guns being used to shoot the victim. ( Id. at 151-52.) Based on this evidence, the state court's determinations that (1) a conspiracy existed, (2) Clacks's statements were admissible under Pennsylvania's co-conspirator exception to the hearsay, and (3) counsel therefore was not ineffective for failing to preserve a hearsay objection are not unreasonable.
Petitioner also contends that Harris testified to statements made after the conspiracy ended, and that trial counsel was ineffective for failing to preserve objections to these statements. This claim is also without merit. "[T]here are instances in which statements made after the perpetration of the target crime are admissible because they are so closely connected to the commission of the substantive offense that they may reasonably be considered part of a continuing course of criminal conduct emanating from the substantive offense." Commonwealth v. Cull, 656 A.2d 476, 482 (Pa. 1995). These statements include admissions of guilt made shortly after the crime, see, e.g., Commonwealth v. Hackett, 627 A.2d 719, 723-24 (Pa. 1993); Commonwealth v. Chester, 587 A.2d 1367, 1374-75 (Pa. 1991), and relating to final payment made after the commission of a crime, see Commonwealth v. Watson, 512 A.2d 1261, 1263-64 (Pa.Super.Ct. 1986). At trial, Harris said that the morning after the murder, Clacks admitted killing the victim while covered in blood and in Petitioner's presence. ( Id. at 153-55). Additionally, Harris testified that within a week of the murder, Clacks told her that he and Petitioner killed the victim because the victim had robbed one of Johnson's numbers houses. ( Id. at 156-57.) She also heard Petitioner and Clacks discuss "that they had to go and get paid" for a job they did for Johnson. ( Id. at 175-76.) Because these statements were made in furtherance of the conspiracy under Pennsylvania law, we cannot conclude that the state court acted unreasonably.
Finally, Petitioner also alleges in his habeas petition that counsel was ineffective for failing to object to the hearsay testimony on Sixth Amendment Confrontation Clause grounds. (Docs. No. 1 at 12-A; 25 at 7.) Because Petitioner failed to raise this contention on direct appeal, however, Williams, slip op. at 6-7, and because he has failed to establish that "cause or prejudice" exists or that a fundamental miscarriage of justice will result if this claim is not considered, the issue is procedurally defaulted. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977) (holding that failure to comply with a state procedural requirement results in default, absent cause for the failure and prejudice resulting from it); Murray v. Carrier, 477 U.S. 478, 496 (1986) ("Where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").
Even if we were to reach the merits of Petitioner's Confrontation Clause challenge, he would not be entitled to relief. In a recent decision, Crawford v. Washington, 124 S. Ct. 1354 (2004), the Supreme Court held that "[t]estimonial statements of witnesses absent from trial" can be admitted under the Confrontation Clause "only where the [out-of-court] declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine" the declarant. Crawford, 124 S. Ct. at 1369; see also id. at 1374 ("Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."). The Crawford decision applies, however, only to statements that are "testimonial" in nature. See id. at 1374 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts [ Ohio v. Roberts, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether."); see also United States v. Saget, 377 F.3d 223, 227 (2nd Cir. 2004) (" Crawford leaves the Roberts approach untouched with respect to nontestimonial statements."). Although the Court declined to "spell out a comprehensive definition" of what qualifies as "testimonial" evidence, id. at 1374, based on its discussion in Crawford, it is clear that an out-of-court statement by a co-conspirator to a bystander is not "testimonial." The Court stated that:
. . . [N]ot all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark . . . bears little resemblance to the civil-law abuses the Confrontation Clause targeted. . . .
The text of the Confrontation Clause. . . . applies only to "witnesses" against the accused — in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or providing some fact." An accuser who makes a formal statement to the government bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.Id. at 1364 (citations omitted). Consequently, "an off-hand, overheard remark" to an acquaintance, such as the one made by co-conspirator Clacks to Harris, is outside the scope of Crawford and thus does not violate the Confrontation Clause. See generally United States v. Inadi, 475 U.S. 387 (1986) (holding that a co-conspirator's out-of-court statement does not violate the Confrontation Clause under the Roberts test). All circuits that have considered this issue with respect to co-conspirators have reached a similar conclusion. See Saget, 377 F.3d at 229-30; United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004); Guiterrez v. Dorsey, 2004 U.S. App. LEXIS 13987, at *6-9 (10th Cir. July 7, 2004); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004).
C. Ineffective Assistance of Counsel — Objections to Limitations on Cross-Examination
Petitioner's third claim is that trial counsel was ineffective by failing to object to the trial court's limitations on counsel's cross-examination of Terri Harris, Steven Moore, Gene Swain, and Lt. Andrew Kalmar. This claim was also raised on direct appeal and is therefore exhausted.
1. Terri Harris
Considering Petitioner's claim of ineffective assistance with respect to counsel's failure to object to the scope and manner of cross-examination of Terri Harris, the Superior Court stated:
In Commonwealth v. Johnson D'Amato, supra, this Court reiterated the axiomatic principle that the scope and manner of cross-examination are left to the discretion of the trial court judge and his decisions will not be overturned absent an abuse of discretion. 615 A.2d at 1332.
The appellant contends that he was denied adequate time to review Terri Harris' grand jury testimony before cross-examining her and that the trial court improperly denied him the right to conduct further cross-examination of the witness later during the trial. The appellant's co-defendants raised a similar issue on their appeal to this Court. In Commonwealth v. Johnson D'Amato, supra, this Court reasoned as follows:
Our review of the record reveals that following the direct testimony of Harris, the assistant district attorney provided defense counsel with the witness' grand jury testimony before the defendant proceeded to cross-examination. The trial court then specifically asked defense counsel if they would like a recess, to which defense counsel agreed. It was only later, when the jury had returned to the courtroom, that defense counsel for the first time requested an overnight recess. N.T. [5/14/90] at 179. That request was denied and cross-examination was commenced. After extensive crossexamination the trial judge asked, "Anything else?" Id. at 179-272. Since neither counsel indicated a desire to pursue further questioning, the witness was excused. It was not until three days after the witness was dismissed that defense counsel told the court that she had, "a lot more areas for examination." N.T. [5/17/90] at 7. The trial court asked defense counsel what she wished to ask the [witness], but defense counsel's answers were vague.
Consequently, the trial court denied the request, but made it clear that the witness would be made available for use in the defense case. In light of the above facts, we cannot say that the defense was given insufficient time to review the grand jury testimony of the witnesses or that they were improperly restricted in their crossexamination of the witnesses.
615 A.2d at 1332. The appellant further claims that co-defendant Clarence Johnson's trial counsel was prevented from showing Terri Harris a photograph of Johnson depicting his appearance in 1980 in an attempt to impeach Harris' identification testimony to the effect that Johnson's appearance had not changed markedly since 1980. This claim was raised and held to be meritless in codefendant Clarence Johnson's direct appeal. 615 A.2d at 1336. Thus, trial counsel may not be deemed ineffective for failing to preserve baseless issues for review.Williams, slip op. at 33-34. The record above clearly indicates that Petitioner's counsel had ample opportunity to cross-examine Harris. Counsel for the defendants, including Petitioner's counsel, were granted a recess to review Harris's grand jury testimony, and then proceeded to conduct a lengthy cross-examination of the witness, the transcript of which was nearly a hundred pages long. (N.T. 5/14/90 at 178-272.) As the Superior Court noted in Commonwealth v. Johnson D'Amato, "the scope and manner of cross-examination are left to the discretion of the trial court judge," and these decisions "will not be overturned absent an abuse of discretion. 615 A.2d at 645 (citing Commonwealth v. Tyler, 587 A.2d 326, 329 (1991)). Thus, we conclude that the state court was not unreasonable in finding Petitioner's trial counsel was not ineffective for failing to preserve an objection regarding the scope and manner of his cross-examination of Harris.
2. Steven Moore
Reviewing Petitioner's claim on direct appeal with respect to Steven Moore's crossexamination, the Superior Court again referred to its decision in Johnson D'Amato, stating:
Our review of the record reveals that defense counsel extensively cross-examined Moore on his criminal record, prison difficulties, his drug use and whether he had been promised any sentencing consideration or leniency in exchange for his testimony. N.T. [5/17/90] at 14-23, 35-44, 48, 63-65, 83. Thus, any claim as to insufficient cross-examination is meritless.15
15. In addition, D'Amato and Johnson contend that they were improperly disallowed from impeaching Moore with non- crimen falsi offenses. Appellants cite to Commonwealth v. Eubanks, 512 A.2d 619 (1986), for the proposition that evidence of non- crimen falsi offenses is admissible and thus the trial court's restriction on cross-examination on this issue was improper. We disagree. In Eubanks, the Pennsylvania Supreme Court held that a rape complainant's prior murder conviction was relevant and admissible on cross-examination because it supported defendant's version of the events leading up to the crime. Eubanks, however, did not hold that every irrelevant non- crimen falsi offense of a Commonwealth witness is admissible to impeach the credibility of a witness provided the offense involved dishonesty or false statement. Here, the trial judge properly applied the Randall crimen falsi rule which allowed extensive impeachment of Moore by the defense on the issue of prior crimen falsi offenses. Consequently, appellants are not entitled to relief.
615 A.2d at 1332. Thus, this Court determined that [Petitioner's] underlying claim is meritless. Counsel may not be deemed ineffective for failing to preserve for review issues which are devoid of merit.Williams, slip op. at 35-36 (citations omitted). Again, a review of the state record clearly indicates that the state court was not unreasonable in finding that Petitioner's underlying claim regarding the scope and manner of counsel's cross-examination of Moore was without merit, and counsel thus could not be ineffective for failing to preserve the claim. The state court clearly permitted an extensive cross-examination of the witness, including his prior crimen falsi convictions and possible biases toward the government in order to obtain leniency in sentencing. Johnson D'Amato, 615 A.2d at 1132. Consequently, this claim is without merit.
3. Gene Swain
Petitioner's third claim is that the trial court erred in restricting the cross-examination of Gene Swain. This contention is equally meritless. The record reflects that Swain was impeached with his prior record for crimen falsi, including bribery of police officers (N.T. 5/15/90 at 24-25), and his participation in illegal lotteries ( id. at 15). Swain was also cross-examined about any promises of leniency made to him and regarding his grand jury testimony. ( Id. at 29-32, 35, 37, 65-69, 73.) Petitioner's assertion that he was precluded from questioning Swain about his knowledge of possible motives for the murder of Leroy Clack is also frivolous. (Doc. No. 1 at 18-A to 19-A.) Despite an earlier government objection, Swain was cross-examined on that precise issue. (N.T. 5/15/90 at 38, 40-41, 72.) Consequently, the state court's rejection of Petitioner's claim that his counsel was ineffective for failing to preserve an objection to the permitted scope of cross-examination of Swain is reasonable.
4. Lieutenant Andrew Kalmar
Finally, the Superior Court found no merit to Petitioner's claim that the trial court erred in refusing to permit trial counsel to review and use a Police Ethics Accountability Division file of Lt. Kalmar on cross-examination. Considering the claim, the state court stated:
[I]n Commonwealth v. Johnson D'Amato, supra, this Court reasoned as follows:
The file, which was subpoenaed and produced for review by the trial judge, contained no impeachment material. N.T. [5/11/90] at 72-75. Rather, it showed that the officer had been cleared of any wrongdoing and that, in his twenty years on the police force, he had never been the subject of disciplinary action. Id. at 73. Hence, this case is readily distinguishable from Commonwealth v. Peetros, 535 A.2d 1026 (1987), upon which appellants rely. In Peetros an officer had been disciplined and demoted for bribery. The court held that the prior disciplinary action was admissible to impeach the officer. In the instant case, the file had no impeachment value, thus the trial court did not err in refusing the defense request to use the file for purposes of cross-examination.
615 A.2d at 1333. Because the file had no impeachment value, and the trial court did not err when it refused to allow trial counsel to review and use the file for purposes of cross-examination, trial counsel may not be deemed ineffective for failing to preserve this issue.Williams, slip op. at 36-37. As previously noted, in the absence of clear and convincing evidence to the contrary, these factual findings are presumed correct. 28 U.S.C. § 2254(e)(1) (2000). Because there were no documents in Kalmar's file that trial counsel could have used to impeach him, counsel obviously cannot be deemed ineffective for failing to object to the trial court's decision not to permit use of the file. Consequently, this determination by the state court was also reasonable.
D. Ineffective Assistance of Counsel — Failure to Objection to Other Alleged Hearsay
Fourth, Petitioner contends that trial counsel was ineffective for failing to preserve objections to the trial court's rulings permitting the Commonwealth to introduce additional alleged hearsay in its case-in-chief through the testimony of Lt. Kalmar and Terri Harris, and through the rebuttal testimony of Officer Howard Jones. (Doc. No. 1 at 21-A to 22-A.) Petitioner also contends that trial counsel was ineffective for failing to preserve an objection to the trial court's ruling excluding certain evidence offered by the defense. ( Id. at 22-A.) These claims were raised on direct appeal and are exhausted.
In evidentiary matters, rulings of state courts will not be reviewed unless there is an error of constitutional magnitude. See, e.g., Bisaccia v. Attorney Gen., 623 F.2d 307, 312 (3d Cir. 1980) ("It is well established that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas court proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial."). The United States Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly; a reviewing federal court must determine "only whether the action complained of violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." Dowling v. United States, 493 U.S. 342, 352-53 (1990).
The Superior Court evaluated and rejected Petitioner's claim on this issue, stating:
In his [next] issue, the appellant asserts that trial counsel was ineffective for failing to preserve an issue alleging that the trial court erred when it permitted the Commonwealth to introduce certain hearsay testimony and precluded the appellant's counsel from cross-examining on the alleged hearsay statements. Specifically, the appellant states that Officer Andrew Kalmar was permitted to testify about illegal activities engaged in by individuals whose likenesses were posted on the display board and his interpretation of tape recorded comments made to him by the appellant's co-defendant, Joseph D'Amato. The appellant also complaints that Officer Howard Jones was permitted to testify about certain matters, the basis of which were hearsay. The appellant then baldly argues that trial counsel was not permitted by the trial court to counter other hearsay statements made by Steven Moore, Terri Harris, and Officer Jones. The appellant also contends that trial counsel was ineffective for failing to raise an objection to the trial court's ruling which excluded evidence "as to what the word on the street was concerning the killing of Philson or the involvement of persons in illegal activity in generally [sic]."
As we stated earlier in our analysis, evidentiary rulings are committed to the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Commonwealth v. Foy, supra. Following a thorough review of the testimony indicated by the appellant in his brief, we conclude that the trial court did not permit the Commonwealth to elicit hearsay testimony from its witnesses. Thus, trial counsel had a reasonable basis for not raising an objection to their testimony; the appellant's underlying issue is meritless; and trial counsel cannot be deemed ineffective for failing to preserve a meritless issues.Williams, slip op. at 25-26. Again, absent clear and convincing evidence, this Court must accept the factual findings of the state court. 28 U.S.C. § 2254(e)(1) (2000).
We conclude that the state court's decision on these issues was reasonable and does not contradict any Supreme Court precedent. Despite Petitioner's claim, Lt. Kalmar's testimony was not hearsay, but rather was an explanation of terms heard on the tape-recorded conversation based on his undercover experience and knowledge of the illegal lottery operation. (N.T. 5/11/90 at 7, 14-16.) For example, Kalmar testified that when D'Amato said Johnson had done "jobs" for him, the phrase "couple of jobs" meant killings because D'Amato had used that phrase when recommending Mr. Johnson to Kalmar as a hit man who had killed several men at D'Amato's request. ( Id. at 18-19, 27, 66.) In addition, Kalmar summarized statements made on the tape, but the jury also heard the tape-recorded conversations and could determined for itself whether the tapes were consistent with Kalmar's summary. ( Id. 67-68, 90.) Because Kalmar's testimony was properly admitted, trial counsel had a reasonable basis for not objecting or preserving objections for review.
There is also no merit to Petitioner's claim that the trial court erred in permitting rebuttal testimony from Officer Jones regarding Johnson's involvement in the numbers business. (Doc. No. 1 at 22-A.) This testimony was properly introduced to rebut evidence of good character offered by Johnson. Commonwealth v. Johnson D'Amato, 615 A.2d at 1331. Johnson placed in issue not only his general reputation for being truthful, peaceful, and law-abiding, but also used his reputation witnesses specifically to deny that he had any involvement in lotteries. (N.T. 5/14/90 at 23; N.T. 5/21/90 at 10-11.) Consequently, the state court correctly allowed Officer Johnson, who had many years of experience in the relevant neighborhood during the time period, to rebut Johnson's assertions. (N.T. 5/22/90 at 26, 33.) In any event, Officer Jones's testimony did not incriminate Petitioner; rather, they concerned only defendants D'Amato and Johnson. Since the evidence did not prejudice Petitioner, trial counsel had a reasonable basis for not preserving any objections to their testimony.
Finally, Petitioner also asserts that the trial court erred in prohibiting him from presenting evidence of "what the word on the street was" concerning the victim's murder and related matters. (Doc. No. 1 at 22-A.) This claim is not supported by the record, which reveals at least two instances where such evidence was permitted. First, Steven Moore testified that Petitioner told him that Leroy Clacks had shot the victim. (N.T. 5/17/90 at 13.) Later, Moore testified about rumors on the street concerning the murder, including that the rumors did not include Petitioner as a participant. ( Id. at 13, 56-57.) Additionally, unsubstantiated rumor testimony, such as the "word on the street," is generally considered inadmissible hearsay evidence. Commonwealth v. Warren, 399 A.2d 773, 775 n. 5 (Pa.Super.Ct. 1979). Thus, the Superior Court's rejection of these claims was not unreasonable.
E. Due Process and Prosecutorial Misconduct Regarding Jonathan White
Petitioner's fifth and final claim is that he was deprived of a fair trial because the government failed to disclose that Jonathan White would testify as a government witness, and that White had allegedly received immunity in return for his testimony in this case. (Doc. No. 1 at 23-A to 28-A.) The Superior Court found that this issued had been was waived on appeal because Petitioner had failed to file a discovery motion pursuant to Pa. R. Crim. P. 305. Williams, slip op. at 11. This is reason to reject the claim on federal habeas review because Petitioner defaulted his federal claims in state court pursuant to an independent and adequate procedural rule, and he has failed to establish cause and prejudice or a fundamental miscarriage of justice that would permit federal review of this procedurally defaulted claim. See Coleman, 501 U.S. at 748 ("[A] state procedural default of any federal claim will bar federal habeas unless the petitioner demonstrates cause and actual prejudice. . . . [T]he cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct `a fundamental miscarriage of justice.'" (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982))).
Despite Petitioner's procedural default, the Superior Court also considered the merits of this claim, and found that White's testimony was limited to co-defendant D'Amato's participation in the illegal lottery business, and that this testimony in no way implicated Petitioner. Williams, slip op. at 13. In fact, the state court explicitly noted that White had denied any acquaintance with Petitioner. Id. (citing N.T. 5/15/90 at 104-05). Based on this evidence, the court's conclusion that White's testimony "was neither exculpatory not material to the appellant's defense and would not likely have been disclosed to the appellant even if he had filed a discovery motion" was reasonable. Id.
Petitioner's reliance on Brady v. Maryland, 373 U.S. 83 (1984), is misplaced because the Brady case applies only to exculpatory evidence. Under Brady, a due process violation exists only if the government failed to turn over evidence favorable to the accused, and where the evidence is material to a determination of guilt or punishment. Id. at 87. Because White's testimony was neither beneficial to Petitioner nor material to his personal guilt or punishment, it was not unreasonable for the state court to determine that no due process violation existed.
Petitioner's claim that White had received immunity was also rejected by the state court:
. . . In his brief, the appellant claims that because Mr. White testified approximately three weeks later (June 6, 1990) at the trial of a police officer charged with corruption and stated that he'd been granted immunity in that case, White had received immunity in the instant case. In support of this assertion the appellant has attached miscellaneous pages of transcript from the latter trial to the back of his brief. After a thorough reading of the pages appended to the appellant's brief marked Exhibit A, it is clear that Jonathan White received immunity for his testimony in a case where a police officer was charged with corruption. However, we cannot conclude that the appellant has offered any substantiation of his claim that Jonathan White received concessions in return for his testimony in the instant case. Furthermore, as we discussed . . . [White's] testimony resulted in no prejudice to the appellant and [White] had absolutely no direct knowledge regarding the murder of John Philson. Therefore, we conclude that the prosecutor did not deprive the appellant of his right to a fair trial by not informing the appellant that Jonathan White would be testifying for the Commonwealth or failing to disclose any concessions granted to the witness in exchange for his testimony because none were given.Williams, slip op. at 14. Once again, absent clear and convincing evidence, this Court must accept the factual findings of the state court because Petitioner has failed to present clear and convincing evidence to establish that the findings are erroneous. 28 U.S.C. § 2254(e)(1) (2000).
A habeas petitioner will not succeed on a prosecutorial misconduct claim merely because the prosecutor's actions were "undesirable, erroneous, or even universally condemned." Cupp v. Naughton, 414 U.S. 141, 146 (1973). Instead, the court must determine whether the prosecutor's actions "`so infected the trial with unfairness as to make the resulting convictions a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992) (holding that in a prosecutorial misconduct claim, the court must distinguish between ordinary trial error and egregious conduct that amounts to a denial of due process). The trial transcript reveals that White's testimony was limited to his involvement with D'Amato and Johnson in the illegal lottery business. (N.T. 5/15/90 at 75-105.) On cross examination, Petitioner's counsel asked White only three questions, all of which established that D'Amato did not know Petitioner. ( Id. at 104-05.) Finally, there is no evidence to support Petitioner's claim that White received immunity in exchange for his testimony in this case. Consequently, we cannot conclude that the Commonwealth's failure to disclose Jonathan White until trial compromised the trial's fairness. Thus, there is no prosecutorial misconduct, and the state court's decision is neither contrary to, nor an unreasonable application of, established Supreme Court precedent. Williams, 529 U.S. at 1519.
An appropriate Order follows.
ORDER
AND NOW, this 30th day of September, 2004, upon consideration of the Petition for Writ of Habeas Corpus (Doc. No. 1), the Report and Recommendation filed by Chief Magistrate Judge James R. Melinson (Doc. No. 17), and Petitioner's Objections to the Magistrate's Report and Recommendation (Docs. No. 23, 25), it is ORDERED that:
1. The Objections to the Report and Recommendation are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The Petition is DISMISSED.
4. There are no grounds for a Certificate of Appealability.
IT IS SO ORDERED.