Wilson v. Vaughan

Full title: THEOPHALIS WILSON v. DONALD T. VAUGHAN, et al

Court: United States District Court, E.D. Pennsylvania

Date published: Oct 27, 2003

CIVIL ACTION No. 02-1605 (E.D. Pa. Oct. 27, 2003)

Opinion

CIVIL ACTION No. 02-1605

October 27, 2003

REPORT AND RECOMMENDATION

PETER SCUDERI, Magistrate Judge

Before the court is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Theophalis Wilson ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Graterford, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

I. FACTS AND PROCEDURAL HISTORY

The following facts were determined at trial:

In 1989, [Petitioner] and several others were members of a gang headed by co-defendant, Christopher Williams. In September of 1989, Williams set up a fake sale of guns to three [3] Jamaican drug dealers, Gavin Anderson, Kevin Anderson and Otis Reynolds. On September 25, 1989, these three [3] men were lured to an apartment complex under the pretext of the gun sale. Once inside, guns were drawn by [Petitioner] and other members of the gang, and the victims were forced to the floor and robbed of their money. One [1] of the victims was taken out of the apartment by co-defendants Williams and Bennett, was robbed of additional money, shot and killed. Upon Williams' and Bennett's return, the other two [2] victims were loaded into a van. Thereafter, the victims were fatally shot in the face by co-defendant Williams, and their bodies dumped from the van.

Commonwealth v. Wilson. No. 02646 Phila. 1995 (Pa.Super. Dec. 31, 1996).

Petitioner was tried by jury before the Honorable Paul Ribner, Court of Common Pleas of Philadelphia County, along with co-defendants Christopher Williams and Rick Bennett. On August 6, 1993, the jury found Petitioner guilty of three (3) counts of first-degree murder, three (3) counts of criminal conspiracy, three (3) counts of robbery, one (1) count of violating the Pennsylvania Corrupt Organizations Act ("PCOA") and one (1) count of possessing an instrument of crime. On August 10, 1993, after a penalty hearing, the jury sentenced Petitioner to three (3) terms of life imprisonment, one (1) for each murder victim. On January 17, 1995, the trial court denied Petitioner's post-verdict motions and formally imposed the three (3) life sentences as concurrent to each other and concurrent to all other sentences imposed.¹

1 In addition to the three (3) life sentences, Petitioner was sentenced to five (5) to ten (10) years of imprisonment for each of the three (3) robbery convictions; two (2) to four (4) years of imprisonment for each of the three (3) conspiracy convictions; eight (8) to sixteen (16) months of imprisonment for violation of the PCOA; and six (6) to twelve (12) months of imprisonment for possession of an instrument of crime.
Meanwhile, the jury convicted co-defendant Christopher Williams of similar charges and sentenced him to death, and acquitted co-defendant Rick Bennett.

Petitioner filed a direct appeal to the Pennsylvania Superior Court,² raising the following five (5) claims:

2 Petitioner was represented at trial and on direct appeal by Jack McMahon, Esquire.

1. Trial court error in permitting the introduction of testimony from David Lee, and similar testimony from an agent of the Federal Bureau of Alcohol, Tobacco and Firearms ("ATF"), concerning Petitioner's attempts to illegally purchase firearms several months after the murders;

2. Trial court error in permitting the Commonwealth to present evidence of predicate acts for the PCOA conviction not included in the Bill of Information and not included in the prosecutor's specific statement of which predicate acts he was moving on;

3. Trial court error in refusing to allow defense evidence that Petitioner voluntarily cooperated with homicide investigators, and that he was promised that he would not be arrested if he cooperated;

4. Trial court error in denying the defense the opportunity to demonstrate that someone other than Petitioner had a motive to harm the victims; and

5. Trial court error in refusing to allow the defense to call Detective Raymond Barlow to testify to the prior inconsistent statement of a witness, and in refusing to subsequently charge the jury that the witness' statement could be treated as substantive evidence.

On December 31, 1996, the Superior Court affirmed the judgments of sentence in an unpublished memorandum opinion. Commonwealth v. Wilson. No. 02646 Phila. 1995 (Pa.Super. Dec. 31, 1996). Petitioner raised the same claims in his petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on June 11, 1997.Commonwealth v. Wilson. 698 A.2d 67 (Pa. 1997) (table).

On June 8, 1998, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. On November 2, 1998, Thomas Quinn, Esquire, was retained and filed an amended petition on May 18, 1999. Petitioner filed a supplemental pro se petition on November 12, 1999, and ten (10) days later moved to be allowed to dismiss counsel and proceed pro se. On December 13, 1999, counsel filed a supplemental petition of his own, incorporating the claims set forth by Petitioner's supplemental pro se petition. On May 12, 2000, Petitioner filed a pro se addendum to his supplemental pro se petition, followed by a second pro se addendum on June 15, 2000. One (1) day later, counsel filed a second supplemental PCRA petition. On June 19, 2000, the Honorable Lisa A. Richette, Court of Common Pleas of Philadelphia County, sent Petitioner a notice that she intended to dismiss his PCRA petition; and the petition was dismissed on July 7, 2000.

Petitioner filed a pro se notice of appeal to the Pennsylvania Superior Court, and counsel was appointed to represent him. When Petitioner requested to remove counsel and proceed pro se, the Superior Court remanded the matter to the PCRA court for an on-record determination of whether Petitioner's desire to waive counsel was knowing, intelligent and voluntary. The PCRA court conducted a colloquy pursuant to Commonwealth v. Grazier. 713 A.2d 81 (Pa. 1998), and determined that Petitioner's decision to proceed without counsel was knowing, intelligent and voluntary. Petitioner then proceeded with his appeal pro se, presenting the following claims:

1. Ineffective assistance of trial and appellate counsel for failing to preserve and raise a claim that because there was no evidence that Petitioner's gang was engaged in legal activities, there was insufficient evidence to support Petitioner's PCOA conviction;

2. Trial court error for allowing the introduction of Petitioner's attempts to purchase illegal weapons several months after the murders, as part of the evidence establishing the predicate offenses for Petitioner's PCOA conviction;

3. Ineffective assistance of appellate counsel for failing to object, raise and preserve a claim of trial court error for allowing the Commonwealth to amend its information to include Petitioner's subsequent attempts to purchase guns;

4. Ineffective assistance of appellate counsel for failing to object, raise and preserve a claim of trial court error for directing the sheriff to enter the jury room during deliberations to inform the jury that its verdict must be unanimous;

5. Ineffective assistance of appellate counsel for failing to object, raise and preserve a claim of trial court error for giving an erroneous instruction on accomplice liability;

6. Ineffective assistance of appellate counsel for failing to object, raise and preserve a claim of trial court error for failing to give a "corrupt source" charge as to witness David Lee;

7. Ineffective assistance of appellate counsel for failing to object, raise and preserve a claim of trial court error for admitting the hearsay testimony of Lee;

8. Ineffective assistance of PCRA counsel for failing to present a layered ineffectiveness claim based on the trial court's failure to allow trial counsel to ask the medical examiner a hypothetical question about whether the condition of the victims' corpses was consistent with having been tossed from a moving van; and

9. Ineffective assistance of PCRA counsel for failing to raise a Brady claim concerning a statement by Anthony Thigpen.

On March 18, 2002, the Superior Court affirmed the dismissal of Petitioner's PCRA petition in an unpublished memorandum opinion.Commonwealth v. Wilson. 799 A.2d 177 (Pa. Super 2002) (table). Petitioner did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.

On March 25, 2002, Petitioner filed a pro se federal petition for writ of habeas corpus setting forth four (4) numbered claims (with sub-claims), and stating: "Note: Petitioner is not waiving any of his Habeas claims and reserves the right to raise his additional Habeas claims when they arrive in an amended Habeas Corpus petition." On June 5, 2002, Petitioner executed a secondpro se habeas petition, entitled "Amended Petition," setting forth an additional fifteen (15) numbered claims. Petitioner subsequently obtained counsel,³ who on January 21, 2003, filed a "Brief in Support of Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254," which restated the claims set forth in Petitioner's two (2)pro se petitions as follows:⁴

1. Trial court error in that there was insufficient evidence to convict Petitioner of violating the PCOA because there was no evidence of the organization having a legitimate purpose;

2. Trial court error in incorrectly charging the jury that Petitioner's organization need not have encompassed a legitimate purpose;

3. Trial court error in improperly admitting evidence that Petitioner was involved in illegal weapons transactions several months after the murders had occurred;

4. Trial court error for refusing to allow defense testimony regarding other people who had motive to commit the murders;

5. Trial court error for refusing to allow testimony that Petitioner had cooperated with the investigation and that he would not have been arrested had he agreed to provide false testimony against a co-defendant;

6. Ineffective assistance of trial and appellate counsel for failing to raise, preserve and litigate claims (1) and (2);

7. Ineffective assistance of trial and appellate counsel for failing to challenge the trial court's jury instruction on accomplice liability;

8. Ineffective assistance of trial counsel for failing to object to the Commonwealth's amending the bill of information for the PCOA charge to include evidence that Petitioner was involved in gun transactions several months after the murders occurred;

9. Ineffective assistance of trial counsel for failing to request a "corrupt source" charge as to witness David Lee;

10. Ineffective assistance of appellate counsel for failing to raise a claim that the trial court improperly refused to allow trial counsel to cross-examine the medical examiner concerning whether the condition of the victims' corpses was consistent with having been tossed from a moving van;

11. Ineffective assistance of appellate counsel for failing to raise a claim that a portion of the statement of David Lee was inadmissable hearsay;

12. Ineffective assistance of trial and appellate counsel for failing to challenge the trial court's decision to send a sheriff into the jury room to remind the jurors that their verdict had to be unanimous;

13. Ineffective assistance of trial counsel for failing to investigate and interview Dawn Johnson; and

14. Prosecutorial misconduct for failing to provide in discovery an exculpatory statement given by Anthony Thigpen one (1) week after the murders which implicated other people in the murder.

3 Barnaby Wittels, Esquire, who had briefly represented Petitioner on his PCRA appeal.

4 Petitioner's claims, as set forth by counsel in his brief, have been renumbered and rephrased for purposes of analysis.

On April 24, 2003, Respondents filed an answer to the petition for writ of habeas corpus, arguing that many of the claims are procedurally defaulted, and that none of the claims subject to review have any merit. II. APPLICABLE LAW

A. Exhaustion and Procedural Default

A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant part that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a petitioner "fairly present" each claim in his petition to each level of the state courts, including the highest state court empowered to consider it. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In order for a claim "to have been `fairly presented' to the state courts, . . . it must be the substantial equivalent of that presented to the state courts. In addition, the state courts must have available to it the same method of legal analysis as that to be employed in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000):see also Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) ("The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights"). The habeas petitioner bears the burden of showing that his or her claims have been "fairly presented" to the state courts, and that the habeas claims are the "substantial equivalent" of those presented to the state courts.Santana v. Fenton. 685 F.2d 71, 74 (3d Cir. 1982), cert. denied. 459 U.S. 1115 (1983).

The exhaustion requirement may be excused if it would be futile for the petitioner to seek relief in the state court system, or if the particular circumstances of the case render the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also Szuchon v. Lehman, 273 F.3d 299, 323 n. 14 (3d Cir. 2001) ("Exhaustion will be excused as `futile' if' the state court would refuse on procedural grounds to hear the merits of the claims'") (quoting Doctor v. Walters. 96 F.3d 675, 681 (3d Cir. 1996));Werts. 228 F.3d at 192 (same).

Where a petitioner fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim may nevertheless be considered on federal habeas if the petitioner "demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson. 501 U.S. 722, 750 (1991);see also Edwards v. Carpenter. 529 U.S. 446, 451 (2000) ("We . . . require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim") (emphasis in original). Also, a petitioner may raise a claim in federal habeas proceedings if the state has waived or declined to rely on the procedural default. See Hull v. Kyler. 190 F.3d 88, 97 (3d Cir. 1999) (citations omitted).

The issue of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier. 477 U.S. 478, 488 (1986). Prejudice means that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494; Werts. 222 F.3d at 193. The petitioner bears the burden of establishing cause and prejudice. Coleman. 501 U.S. at 749-50.

In order to satisfy the "fundamental miscarriage of justice" exception, the Supreme Court requires the petitioner to show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo. 513 U.S. 298 326-327 (1995) (citingMurray. 477 U.S. at 496); Werts. 228 F.3d at 193. To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id

B. Applicable Law for Claims Addressed on the Merits

The AEDPA, which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts. 228 F.3d at 195. The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196 (citing Dickerson v. Vaughn. 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of 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). Factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts. 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).

The Supreme Court expounded upon this language in Williams v. Taylor. 529 U.S. 362 (2000). In Williams, the Court 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." Hameen v. State of Delaware. 212 F.3d 226, 235 (3d Cir. 2000) (citingWilliams. 529 U.S. at 389-390). The Court in Williams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. 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. (citing Williams. 529 U.S. at 388-389). "In further delineating the `unreasonable application of component, the Supreme Court stressed that 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. 228 F.3d at 196 (citingWilliams. 529 U.S. at 389).

III. DISCUSSION

Petitioner presents fourteen (14) main claims — five (5) claims arising from various alleged trial court errors, eight (8) claims of ineffectiveness of counsel, and one (1) claim of prosecutorial misconduct. These claims will be discussed seriatim.

A. Claims One (1) Through Five (5): Trial Court Errors

1. Violation of due process and ex post facto clause in that there was insufficient evidence to convict Petitioner of violating the PCOA because there was no evidence that his organization had a legitimate purpose .

In his first claim, Petitioner argues that his due process and ex post facto rights were violated because there was insufficient evidence to support his PCOA conviction. Specifically, Petitioner argues that his PCOA conviction is wrongful because there was no evidence that his criminal organization had a legitimate purpose, which is required pursuant to the Pennsylvania Supreme Court decision inCommonwealth v. Besch. 674 A.2d 655 (Pa. 1996).⁵ See Ptr.'s Br. at 12-16. Respondents argue that this claim is procedurally defaulted. See Resp.'s Br. at 30-38.

5 Eight (8) months after Petitioner was sentenced, the Pennsylvania Supreme Court in Besch granted relief to a criminal defendant who had preserved a claim that he was improperly convicted under the PCOA because his illegal drug enterprise was not linked to a legitimate business, and because he had not attempted to infiltrate a legitimate business. Besch. 674 A.2d at 655. The state supreme court concluded that the state legislature had not intended the PCOA to apply to wholly illegitimate enterprises. See Commonwealth v. Shaffer. 696 A.2d 179, 182 (Pa.Super. 1997), rev'd on other grounds. 734 A.2d 840 (Pa. 1999) (stating that, prior to Besch. "the [PCOA] was historically interpreted so as to reach illegitimate as well as legitimate enterprises"). Importantly, the state legislature disagreed with the court's interpretation of its intent by amending the PCOA statute to expressly include wholly illegitimate enterprises. Id. at 183 (declining to apply Besch in light of the legislature's response to that case).

Petitioner never presented this claim to the state courts. Instead, Petitioner raised a variant of this claim, namely, that counsel was ineffective for failing to raise this claim in his mandatory post-verdict motions and on direct appeal.⁶ Because that claim is different from the one herein asserted for the first time, this variant of the claim is unexhausted.

6 Petitioner again raises the ineffectiveness variant of this claim in the instant federal habeas petition, at B(1), infra.

I find, however, that exhaustion should be excused pursuant to 28 U.S.C. § 2254(b)(1), because a return to state court would be futile due to "an absence of available State corrective process."Lines. 208 F.3d at 162. The only way in which Petitioner could present this claim in the state court at this time is by filing another PCRA petition. See Lines. 208 F.2d at 164, n. 17. However, any such petition would be time-barred by the PCRA's statute of limitations. Pursuant to the amended PCRA, effective January 16, 1996. collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1); see also, e.g,Lines. 208 F.3d at 164 n. 17 (noting that the Pennsylvania Supreme Court has held that the time restrictions for seeking relief under the PCRA are jurisdictional) (citing Commonwealth v. Banks. 726 A.2d 374 (Pa. 1999)). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. Ann. § 9545(b)(3). As previously noted, the Pennsylvania Supreme Court denied discretionary review on direct appeal on June 11, 1997. and Petitioner failed to petition for a writ of certiorari in the United States Supreme Court; therefore, his conviction became final on July 11, 1997, when the time for seeking an appeal in the United States Supreme Court expired. As a result, the PCRA statute of limitations would preclude Petitioner from presenting the instant claim in a PCRA petition. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Consequently, exhaustion would be futile and is excused.

Although exhaustion is excused, Petitioner's first claim is nevertheless procedurally defaulted. Petitioner has failed to show cause and prejudice for the default of these claims. Moreover, although Petitioner asserts that any default should be excused because failure to excuse default will result in a fundamental miscarriage of justice, I do not agree. As previously mentioned, to satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup. 513 U.S. at 327. The only "new evidence" offered is the fact that, eight (8) months after Petitioner was sentenced, the Pennsylvania Supreme Court inBesch ruled that the PCOA statute did not apply to wholly illegitimate enterprises, such as Petitioner's criminal gang.See Besch. 674 A.2d at 655; Shaffer. 696 A.2d at 182. As more fully discussed in Part B(1), infra, this subsequent (and temporary) change in the law did not alter the fact that Petitioner was convicted of the elements of the crime as it stood at the time of his trial. Instead, the change in the law meant only that Petitioner's wholly illegitimate gang did not, in the opinion of a subsequent state court ruling, qualify under the PCOA statute-an opinion which the state legislature quickly rejected by amending the PCOA statute to specifically include wholly illegitimate enterprises. See 18 Pa. Cons. Stat. Ann. § 911(h)(1)(iv)(3); Schaffer. 696 A.2d at 183. As a result, Petitioner's allegation of actual innocence is based upon the state supreme court's subsequently repudiated interpretation of the law, whereas the United States Supreme Court has explicitly linked the miscarriage of justice exception to a petitioner's true "actual innocence." See, e.g, Kuhlmann v. Wilson. 477 U.S. 436, 452 (1986) (stating fundamental miscarriage of justice exception applies to a prisoner who retains an overriding interest in obtaining release from custody "if he is innocent of the charge for which he was incarcerated" and whose guilt is not "conceded or plain"). The court is unaware of any instance where the miscarriage of justice exception was applied to a subsequent change in the law, even where the change was not subsequently repudiated, and even where it involved only the crime for which a petitioner was incarcerated. Here, Petitioner seeks to excuse the default of his first claim because his criminal gang had no legitimate purpose; and, more importantly, Petitioner makes no claim of actual innocence regarding any of the serious crimes committed by him and his gang, and for which he has been incarcerated.

For all of the foregoing reasons, I find that Petitioner's default of his first claim cannot be excused by the fundamental miscarriage of justice exception. As a result, Petitioner's first claim is procedurally defaulted and not subject to federal habeas review.

2. Violation of due process and ex post facto clause in that the trial court incorrectly charged the jury that Petitioner's organization need not have encompassed a legitimate purpose.

In a related claim, Petitioner argues that his due process and ex post facto rights were violated because the trial court charged the jury that Petitioner's organization need not have encompassed a legitimate purpose for purposes of the PCOA, in violation of Besch. Respondents counter that this claim is defaulted. See Resp.'s Br. at 38.

As with Petitioner's first claim, this claim was never presented to the state courts for review. As a result, for all of the reasons previously discussed, Petitioner's second claim is unexhausted and procedurally defaulted. 3. Violation of due process and ex post facto clause in that the trial court improperly admitted evidence that Petitioner was involved in illegal weapons transactions several months after the murders had occurred .

Petitioner also argues that the trial court violated his due process and ex post facto rights by admitting evidence that Petitioner was involved in illegal weapons transactions several months after the murders occurred (and several months after Petitioner's criminal organization had disbanded), said evidence having been used by the prosecution to prove the predicate acts element of the PCOA charge. In asserting this claim, Petitioner explicitly and exclusively argues that the evidence was improperly admitted because the PCOA charge itself was wrongful in light of Besch. See Ptr.'s Br. at 22 ("[T]here was absolutely no basis for the corrupt organizations charge in this case, since the Commonwealth failed to so much as prove the existence of a legitimate enterprise which could bring this case within the [PCOA]").

Petitioner raised a variant of this claim on direct appeal, namely that the trial court erred in admitting evidence of the later firearms transactions because the evidence was irrelevant; it violated the rule regarding the exclusion of evidence of other crimes; and it was outside the scope of the corrupt organization and conspiracy. This variant of the claim was denied on the merits by the Pennsylvania Superior Court, which held that evidence of Petitioner's subsequent gun transactions was relevant to the charges of criminal conspiracy and PCOA, the latter requiring proof of a pattern of prohibited conduct; that it showed both the "extent and nature" of the organization's activities relating to gun acquisition and violent crime; and that the court did not abuse its discretion in determining that the evidence be admitted. Commonwealth v. Wilson. No. 2646 Phila. 1995, at 5 (Pa.Super. Dec. 31, 1996).

On collateral appeal, Petitioner for the first time raised the same claim presented in the instant habeas petition, namely that the evidence of subsequent gun purchases was wrongfully admitted by operation ofBesch. The PCRA court found that the claim was a variant of the claim that had been previously litigated on direct appeal, and that it was therefore not reviewable. Commonwealth v. Wilson. No. 1779 April Term 1992, at 2 (Phila. Oct. 17. 2000). The Superior Court agreed, stating:

To be eligible for relief under the PCRA, [Petitioner] must prove that his claim has not been previously litigated. During his direct appeal from the judgment of sentence, [Petitioner] unsuccessfully challenged the trial court's admission of his subsequent criminal activities. In these PCRA proceedings, [Petitioner] merely reframes the issue under a new legal theory. A petitioner cannot obtain post-conviction relief by presenting previously litigated claims shrouded under novel theories of law.

Commonwealth v. Wilson. 2360 EDA 2000, at 7-8 (Pa.Super. March 18, 2002) (citations to state law omitted). Therefore, the Superior Court found that Petitioner was not eligible for PCRA relief.Id at 8.

Where a petitioner has presented a claim in the Pennsylvania state courts, federal courts will not review the state court decision involving a question of federal law if the state court decision is based on state law, even a state procedural law, that is independent of the federal question and adequate to support the judgment. Coleman. 501 U.S. at 727-31. As the Supreme Court has explained, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism:

In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.

Edwards. 529 U.S. at 452 (citing Coleman. 501 U.S. at 732).

Here, Petitioner presented his current claim to the state courts only on collateral appeal, and the state courts refused to address the claim because, under Pennsylvania procedural law, the claim was merely a variant of a claim previously litigated on direct appeal. As a result, the claim is procedurally defaulted by operation of the independent and adequate state ground doctrine. Petitioner has not established either cause or prejudice for this default and, for the reasons previously set forth, Petitioner has failed to demonstrate that a miscarriage of justice will result if his claim is not reviewed. Therefore, this claim must be dismissed as procedurally defaulted.

4. Trial court error in refusing to allow defense testimony regarding other people who had motive to commit the murders .

Petitioner next argues that the trial court violated his due process rights by refusing to allow defense testimony offered to show that other people had motive to commit the murders at issue. See Ptr.'s Br. at 36-37. Respondents counter that this claim is defaulted and meritless. See Resp.'s Br. at 84-91.

Petitioner raised and exhausted this claim on direct appeal. In considering this claim, the Pennsylvania Superior Court first explained that "the decision to admit or exclude evidence rests within the sound discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion." Commonwealth v. Wilson. 2646 Phila. 1995, at 3 (Pa.Super. Dec. 31, 1996) (citations to state law omitted). The Superior Court then quoted Commonwealth v. Stark. 625 A.2d 383, 391-92 (Pa.Super. 1987), for the proposition that "[n]ot all relevant evidence is admissible, . . . and the trial court may exercise its discretion to exclude that [which], though relevant, may confuse, mislead, or prejudice the jury." Id. at 7. The Superior Court then stated:

The trial court . . . acted within its discretion in refusing to admit evidence related to an alleged motive of other parties to kill the three [3] victims. As with [Petitioner's] argument to this court on appeal, the trial court properly found this proffer to be `vague, ambiguous, and nearly impossible to substantiate or counter . . .' (Trial Court Opinion at 6.) Moreover, the record reflects the fact that [Petitioner] specifically dissociated himself from co-defendant Williams' offer of evidence regarding this alleged motive of other persons to kill the three [3] victims. Accordingly, he has waived this issue and may not raise it for the first time with this court."

Commonwealth v. Wilson. 2646 Phila. 1995, at 7 (Pa.Super. Dec. 31, 1996).

The Superior Court's finding that this claim was waived constitutes an independent and adequate state ground that, for the reasons previously discussed, renders this claim procedurally defaulted and not subject to federal habeas review. Even if this matter were not deemed waived, however, I find that the decision of the state courts is neither contrary to, nor an unreasonable application, of Supreme Court precedent. "It is well established that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial." Bisaccia v. Attorney General of State of New Jersey. 623 F.2d 307. 312 (3d Cir. 1980):see also Crane v. Kentucky. 476 U.S. 683, 689-690 (1996) (same). The category of errors that violate fundamental fairness is very narrow. See Dowling v. United States. 493 U.S. 342, 352-353 (1990) (stating court reviewing evidentiary decisions must determine whether 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"). Here, the proffered evidence involved allegations that the victims had committed crimes against other, unidentified persons who might have wished to kill them. See,e.g, Exhibit "A" attached to Resp.'s Br., at 7. The state courts found defense counsels' offer of proof regarding other people with alleged motive to commit the murders to be both vague and improperly prejudicial, and there is no evidence to indicate that the finding violated principles of fundamental fairness. Therefore, even if this claim were deemed to be reviewable, Petitioner is not entitled to relief on this claim.⁷ 5. Trial court error in refusing to allow testimony that Petitioner had cooperated with the investigation and that he would not have been arrested had he agreed to provide false testimony .

7 The court notes that Williams, Petitioner's co-defendant, raised this identical claim on his direct appeal to the Pennsylvania Supreme Court, which held that the trial court properly excluded the evidence because the "proffered testimony was rank hearsay and highly speculative." Commonwealth v. Williams. 720 A.2d 679, 686 (Pa. 1998).

Petitioner next argues that the trial court violated his due process rights by refusing to allow testimony that Petitioner had cooperated with the investigation and that he would not have been arrested had he agreed to provide false testimony against co-defendant Williams. See Ptr.'s Br. at 39. Respondents counter that this claim is defaulted and meritless. See Resp.'s Br. at 92-93.

Petitioner raised and exhausted this claim on direct appeal. In considering the claim, the Pennsylvania Superior Court stated:

Wilson contends that the court erred in refusing to allow the defense to present evidence regarding his voluntary cooperation with police prior to his arrest, and of the improper motive of the Assistant District Attorney in arresting him. A defendant's prior exculpatory statements are considered inadmissible hearsay. Additionally, the proffered evidence relating to alleged improper motive and misconduct of the Assistant District Attorney, even if arguably probative, would be substantially outweighed by the potential for prejudice in confusing and misleading the jury. Accordingly, the trial court was well within its discretion to refuse to admit this evidence.

Commonwealth v. Wilson. 2646 Phila. 1995, at 6-7 (Pa.Super. Dec. 31, 1996) (citations to state law omitted).

I find that the decision of the state courts is neither contrary to, nor an unreasonable application, of Supreme Court precedent regarding the admissibility of evidence. Petitioner argues that the trial court improperly blocked his attempt to present testimony concerning the fact that his arrest was delayed while the prosecution and police attempted to convince him to "cooperate" by allegedly falsely accusing co-defendant Williams of several crimes, and that Petitioner's eventual arrest was motivated by a desire to punish Petitioner for insisting that he knew nothing of the other crimes. Petitioner provides no evidence to support these allegations and, in any event, the trial court's evidentiary decision cannot be said to have violated the principles of fundamental fairness. Therefore, Petitioner is not entitled to relief on this claim.

B. Claims Six (6) Through Thirteen (13): Ineffective Assistance of Counsel

Petitioner raises multiple claims of ineffective assistance of trial and appellate counsel. Before considering the merits of these claims, however, it is necessary to determine whether the standard utilized by the Pennsylvania state courts in reviewing these claims comports with the federal standard for ineffectiveness claims as set forth inStrickland v. Washington. 466 U.S. 668 (1984). The outcome of this determination is important because the AEDPA standard of review discussed supra does not apply "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Everett v. Beard. 290 F.3d 500, 508 (3d Cir. 2002), cert. denied. 537 U.S. 1107 (2003) (citing Hameen v. Delaware. 212 F.3d 226, 248 (3d Cir. 2000), cert, denied. 532 U.S. 924 (2001)). If the AEDPA does not apply, "a federal habeas court owes no deference to a state court's resolution of mixed questions of constitutional law and fact . . . whereas the state court's factual findings are presumed to be correct unless, inter alia, the state court's findings are not `fairly supported by the record.'"Everett. 290 F.3d at 508 (citations omitted).

The appropriate starting point for review of this issue is the interplay between the governing federal standard for ineffective assistance of counsel claims and the AEDPA. In Strickland. the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds 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.

Id. at 687. In discussing the governing standard of review in the case of Werts v. Vaughn. supra, the Third Circuit noted that the Pennsylvania Supreme Court held in Commonwealth v. Pierce. 527 A.2d 973, 976-77 (Pa. 1987), that the Pennsylvania standard judging ineffectiveness claims was identical to the ineffectiveness standard enunciated by the United States Supreme Court inStrickland. Werts, 228 F.3d at 203. InPierce, the Pennsylvania Supreme Court found that, pursuant to the state standard:

[In]effectiveness claims are measured by two [2] components. First, counsel's performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit . . . Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.

Pierce. 527 A.2d at 975 (citations omitted). In applying the AEDPA standard of review to the petitioner's ineffective assistance of counsel claim, the Third Circuit specifically found that the application of Pierce was "not a rule of law that contradicts the Supreme Court's holding inStrickland." Id at 204.

However, almost two (2) years later, in Everett.supra, the Third Circuit held that the AEDPA standard of review did not apply in the review of a petitioner's ineffective assistance of counsel claim "because the state courts had not adjudicated the petitioner's properly exhausted claim that his Sixth Amendment right to the effective assistance of counsel had been violated[,] but instead had decided only that his rights under state law had not been abridged."Chadwick v. Janecka. 312 F.3d 597, 605-606 (3d Cir. 2002) (citing Everett. 290 F.3d at 516). In specifically explaining why the § 2254(d) standards did not apply the facts ofEverett. the Third Circuit later explained:

[T]he Pennsylvania courts . . . analyzed his ineffectiveness claim not under a Strickland analysis, but under standards set by its own precedent, different from those enunciated in Strickland. Rather than asking whether counsel's performance was objectively reasonable, the court inquired whether the underlying claim was meritorious, then whether "the course of action chosen by his counsel had no reasonable basis designed to effectuate the client's interests," and, finally, whether the defendant was prejudiced.

Marshall v. Hendricks. 307 F.3d 36, 69 n. 18 (3d Cir. 2002) (citing Everett. 290 F.3d at 506-07). See also generally Hameen. 212 F.3d at 248 (concluding that, because the state court had not ruled upon petitioner's actual Eighth Amendment constitutional claim, but rather ruled on state law grounds, pre-AEDPA independent judgment applied); Appel v. Horn. 250 F.3d 203, 210 (3d Cir. 2001) ("when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standard provided by the AEDP A and explained in Williams do not apply") (citations omitted).

In the instant case, the Superior Court set forth the following standard for reviewing Petitioner's ineffective assistance of counsel claims:

To prove a claim of ineffectiveness of counsel, a petitioner must prove by a preponderance of the evidence each of the following: (1) the underlying claim is of arguable merit; (2) counsel's performance had no reasonable basis; and (3) counsel's ineffectiveness prejudiced the defendant.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 5 (March 18, 2002) (citations to state law omitted). We find this standard indistinguishable from that state law standard which the Third Circuit had previously determined failed to comport with the federalStrickland standard. In particular, we note that the state court in the instant case applied the same three-(3-) prong test. Moreover, the state court utilized a similar phrase to that which the Third Circuit apparently found to conflict with the federal "objectively reasonable" standard in Everett. namely, the state court's use of a standard in which it must be proven that "counsel's performance had no reasonable basis."⁸

8 We note that this standard appears to expound upon that standard set forth in Pierce and subsequently approved inWerts. In interpreting that standard, however, the state courts appear to have overstepped the bounds of the federal inquiry mandated byStrickland.

Respondents argue that Everett's precedential value is "questionable" in light of the United States Supreme Court decisions inEarly v. Packer. 537 U.S. 3 (2002), Woodford v. Visciotti. 537 U.S. 19 (2002), and Bell v. Cone. 535 U.S. 685 (2002). See Resp't Answer, at 21-22. These cases, however, appear to hold that as long as a state court adjudicates a claim substantively in accordance with federal precedent, it need not identify federal law as the rule of decision in order for the claim to have been adjudicated on the merits for purposes of the AEDPA. We do not find that these cases direct the conclusion thatEverett is not binding precedent. See,e.g, Reid v. Vaughn. 2003 WL 22038401, at *5 (E.D. Pa. 2003) (assuming that Everett remains good law after the United States Supreme Court decision in Early.). In the cases before the Supreme Court, the state court decisions applied the correct federal standard, but omitted the technical references, or imprecisely or inadequately addressed them. See Early. 537 U.S. 3 (citation or even awareness of Supreme Court precedent is unnecessary as long as neither the reasoning nor the result of the state court decision contradicts it); Woodford. 537 U.S. 19 (the Ninth Circuit erred in finding that the state court held respondent to a higher standard thanStrickland when the state court used "probable" without the modifier "reasonably" in three (3) places in its opinion; failed to acknowledge the state court's reference to Strickland: and failed to acknowledge the lower court's proper framing of the question);Cone. 535 U.S. 85 (finding that the state court had used the appropriate standard of review when applying the state equivalent ofStrickland). The instant case does not present a matter where the state court utilized the proper federal standard of review and simply neglected to cite federal caselaw. Rather, the state court used its own state law standard which, pursuant to Everett. deviated from the federal Strickland standard. Because the correct federal standard of review was not never utilized by the state court (implicitly or explicitly), we cannot deem the instant claims of ineffective assistance of counsel to have been "adjudicated on the merits" by the state courts. See 28 U.S.C. § 2254(d). Consequently, we will review Petitioner's ineffectiveness claims under the pre-AEDPA standard.

1. Ineffective assistance of trial and appellate counsel for failing to raise, preserve and litigate claims A(1) and A(2) , supra .

Petitioner argues that counsel at trial and on direct appeal (the same attorney) was ineffective for failing to raise, preserve and litigate Petitioner's due process and ex post facto claims regarding his PCOA conviction, that is, the claims which were discussed at A(1) and A(2),supra. Respondents argue that both aspects of this two-(2-) part claim are procedurally defaulted and, in the alternative, are meritless. See Resp.'s Br. at 38-52. The two (2) parts of this claim will be discussed separately.

a. Ineffectiveness of counsel for failing to challenge the sufficiency of Petitioner's PCOA conviction.

In the first part of this two-(2-) part claim, Petitioner argues that counsel was ineffective for failing to challenge the sufficiency of Petitioner's PCOA conviction on the grounds that a subsequent state court decision excluded wholly illegitimate organizations, such as Petitioner's criminal gang, from the purview of the law. See Ptr.'s Br. at 16-20. Because Petitioner raised this claim before the PCRA court and the Pennsylvania Superior Court on collateral appeal, I find that this part of the two-(2-) part claim is exhausted and subject to review on the merits.⁹

9 Respondents strenuously argue that Petitioner did not fully exhaust this claim (as well as several other claims) because he did not file a petition for allowance of appeal with the Pennsylvania Supreme Court on collateral appeal. See Resp.'s Br. at 39-47. In doing so, Respondents criticize Order 218 of the Pennsylvania Supreme Court, dated May 9, 2000, which no longer required federal habeas prisoners to present their claims to the state supreme court in order for those claims to be considered exhausted. See In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000). However, the court notes that it must effectuate Order 218, which was issued before Petitioner's collateral appeal, pursuant to binding Third Circuit case law.See Wenger v. Frank. 266 F.3d 218, 226 (3d Cir. 2001) (stating "Order 218 does not apply in cases in which the time to petition for review by the state supreme court expired prior to the date of the order"). As a result, I find that all claims raised on direct appeal before the trial court and the Pennsylvania Superior Court, and all claims raised on collateral appeal before the PCRA court and the Superior Court, are exhausted, even if Petition did not file a request for allowance of appeal with the state supreme court.

In considering this claim on collateral appeal, the Pennsylvania Superior Court stated the following:

According to [Petitioner], his conviction of corrupt organizations cannot be upheld because the enterprise in which he was involved was a wholly illegal entity, and not connected with a legitimate business enterprise. In support of this argument, [Petitioner] relies upon the Pennsylvania Superior Court's decision in Besch. which was filed while his direct appeal was pending. [Petitioner] asserts that his trial and direct appeal counsel should have anticipated the Pennsylvania Supreme Court's decision in Besch. and preserved the issue for appellate review. We disagree.

In the instant case, [Petitioner] was involved in a wholly illegal enterprise. Prior to Besch. the Supreme Court had upheld convictions under the [PCOA] that were based on a defendant's participation in an illegal enterprise. However, in Besch. the Pennsylvania Supreme Court determined that the [PCOA] was not intended to encompass the `prosecution of a wholly illegitimate enterprise.' Thus, if Besch were applied to [Petitioner's] case, the evidence would be insufficient to sustain [Petitioner's] conviction of corrupt organizations. This change in the law occurred while [Petitioner's] direct appeal was pending.

In order for a new rule of law to apply retroactively to a case pending on appeal, the issue must be preserved at `all stages of adjudication up to and including the direct appeal.' At the time of [Petitioner's] trial, Pennsylvania Rule of Criminal Procedure 1410 required a defendant to file post-verdict motions in order to preserve a claim for appellate review. [Petitioner's trial counsel] did not file a post-verdict motion challenging the sufficiency of the evidence underlying [Petitioner's] conviction for corrupt organizations. Thus, counsel did not preserve the claim for appellate review. However, the adequacy of trial counsel's representation is assessed based on the law as it existed at the time of the representation. Counsel cannot be deemed ineffective for failing to predict a change in the law. At the time that [defense counsel] filed [Petitioner's] post-verdict motions, the Supreme Court had not yet announced its decision in Besch. We cannot deem [counsel] ineffective based upon his failure to predict the change in the law announced by the Supreme Court in Besch. Accordingly, we cannot grant [Petitioner] relief on this claim.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 5-7 (March 18, 2002) (citations to state law omitted) (emphasis in original). In reaching its decision, the Superior Court also rejected Petitioner's contention, repeated here, that counsel should have anticipatedBesch based upon the Pennsylvania Supreme Court's dicta inCommonwealth v. Bobitski, 632 A.2d 1294 (1993), which suggested that a PCOA conviction would require proof of connection to a legitimate enterprise. Id. at 7 n. 4.

As previously noted, Petitioner's claim of ineffective assistance of counsel is governed by Strickland. which requires proof that counsel performed deficiently, and that the deficient performance prejudiced the defense. 466 U.S. at 687. Under federal law, as under Pennsylvania law, "[t]here is no general duty on the part of defense counsel to anticipate changes in the law." Sistrunk. 96 F.3d 666, 670 (3d Cir. 1996) (quoting Government of the Virgin Islands v. Forte. 865 F.2d 59, 62 (3d Cir. 1989)). Here, Petitioner was convicted in 1993 and sentenced in 1995, while Besch was decided in 1996, during the pendency of Petitioner's direct appeal. As a result, counsel cannot be deemed to have been deficient in failing to anticipate Besch by preserving a sufficiency claim in post-verdict motions.¹⁰ Similarly, appellate counsel cannot be deemed ineffective for failing to preserve a meritless claim on appeal.See Buehl v. Vaughn. 166 F.3d 163, 173 (3d Cir. 1999) (stating ineffectiveness of appellate counsel requires showing that appellate counsel's action fell outside "the wide range of reasonable professional assistance; that is, [the petitioner would have to] overcome the presumption that, under the circumstances, the challenged action `might be considered sound [appellate] strategy'") (quotingStrickland. 466 U.S. at 689). Accordingly, Petitioner is not entitled to relief on this claim.¹¹

10 The court further notes that Bobitski. which contained dicta anticipating Besch. was itself issued after Petitioner filed his post-verdict motions. Moreover, the issue presented inBobitski — "whether the [PCOA] can be applied to an individual who committed a series of criminal acts for his own benefit while employed by a legitimate enterprise" — clearly involved a different issue than Petitioner's case, which involved no legitimate enterprise. See Bobitski, 632 A.2d at 1295.

11 Since we have concluded that counsel's performance was not shown to be deficient, we need not determine whether Petitioner was prejudiced by counsel's action. See Strickland. 466 U.S. at 687 (stating "there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one").
In any event, even if counsel was found to have been deficient in not anticipating Besch. I find that Petitioner suffered no prejudice. See Strickland. 466 U.S. at 687. Even assuming Petitioner were to obtain relief from his PCOA conviction, Petitioner was also sentenced to three (3) life terms for the three (3) murders, as well as other sentences for other convictions related to the triple-murder, which would remain intact. Consequently, the invalidation of his PCOA conviction would have no practical effect. Moreover, this court reiterates that the state supreme court's decision in Besch. which was based upon a finding that the state legislature did not intend for the PCOA to apply to wholly illegitimate enterprises, prompted the legislature to quickly clarify that it did intend the PCOA to encompass both legitimate and illegitimate enterprises, such as Petitioner's criminal gang.See 18 Pa. Cons. Stat. Ann. § 911(h)(1)(iv)(3);Schaffer. 696 A.2d at 183.

b. Ineffectiveness of counsel for failing to challenge the trial court's jury charge regarding the PCOA.

In the second part of this two-(2-) part claim, Petitioner argues that counsel was ineffective for failing to challenge the trial court's jury charge that Petitioner's organization need not have encompassed a legitimate purpose for purposes of the PCOA. See Ptr.'s Br. at 21. Petitioner never presented this aspect of his two-(2-) part claim to the state courts. Instead, Petitioner alleges that this claim is "implicit and subsumed in the sufficiency" claim discussedsupra. See id. at 21 n. 9. I disagree. As previously explained, a petitioner is required to "fairly present" his claims before the state courts, which requires that the state courts be put on notice of specific claims. See Werts. 228 F.3d at 192. Because Petitioner did not place the state courts on sufficient notice of this claim, it is unexhausted. Moreover, the claim is procedurally defaulted for the reasons previously set forth.

2. Ineffective assistance of trial and appellate counsel for failing to challenge the trial court's jury instruction on accomplice liability.

Petitioner next argues that counsel at trial and on direct appeal was ineffective for failing to challenge the trial court's instruction on accomplice liability. See Ptr.'s Br. at 23-27. Respondents counter that this claim is procedurally defaulted and meritless. See Resp.'s Br. at 55-67.

Petitioner presented and exhausted this claim on collateral appeal. In considering this claim, the Pennsylvania Superior Court first found the claim to have been waived because, although Petitioner generally asserted that the jury charge was erroneous and ambiguous, he failed to specifically identify the allegedly erroneous or ambiguous portions of the charge. Commonwealth v. Wilson. No. 2360 EDA 2000, at 9 (March 18, 2002). The Superior Court then stated:

[E]ven if [Petitioner] had properly presented the claim, we would not grant him the relief requested. When reviewing a challenge to a jury instruction, we must review the charge as a whole. `An instruction will be upheld if it clearly, adequately and accurately reflects the law. The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court's instruction accurately conveys the law.' In addition, the trial court has broad discretion in phrasing its instructions and is permitted to choose its own wording.

Our review of the record discloses that the trial court properly instructed the jury regarding the requisite intent to establish accomplice liability. Moreover, [Petitioner] fails to demonstrate actual prejudice resulting from [counsel's] alleged ineffectiveness.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 10 (March 18, 2002) (citations to state law omitted). Accordingly, the Superior Court denied Petitioner relief on this claim. Id.

I find that the state court determination comports withStrickland. As an initial matter, as Petitioner acknowledged in his amended PCRA petition, co-defense counsel objected to the court's jury charge on accomplice liability and, pursuant to agreement among co-defense counsel at the outset of trial, an objection made by any one (1) defense counsel would be presumed to be joined by all defense counsel. Thus, it is factually incorrect to assert that trial counsel was ineffective for failing to object to the jury charge.

In any event, under federal law a challenged jury instruction cannot be viewed in isolation, "but must be viewed in the context of the overall charge." Boyde v. California. 494 U.S. 370, 378 (1990) rquotingCupp v. Naughten. 414 U.S. 141, 146-147 (1973)). Here, the trial court discussed the requisite intent for accomplice liability in several parts of its jury charge:

A defendant is guilty of a crime if he is the accomplice of another person who commits that crime.

A defendant does not become an accomplice merely by being present at the scene or knowing about the crime.

He is an accomplice if, with the intent of promoting or facilitating the commission of the crime, he either solicits, commands, encourages or requests the other person to commit it, or he aids, agrees to aid or attempts to aid the other person in planning or committing it.

* * * *

Each of the defendants are charged with several murders.

First degree murder is a murder in which the killer has the specific intent to kill.

You may find the defendant guilty of first degree murder if you are satisfied that there are three [3] elements that were proven beyond a reasonable doubt.

First, that the named victim is dead . . .

Second, you must find that the defendant killed him, and third, that the defendant did so with the specific intent to kill and with malice.

I won't keep repeating accomplice liability. You will remember what I told you.

A person can be the one who actually commits the act or can be the one who took part in some fashion as an accomplice.

* * * *

With regard to more than one [1] person involved in the killing, if persons are partners or if they were both principals or one [1] of them was a principal and the other is an accomplice, then you can find them both guilty of homicide.

A person is a principal if he actually commits the crime or makes the attempt himself.

A person is an accomplice if he aides [sic] or encourages the principal to commit or attempts the crime or does so intending to get the principal to commit the crime or attempts to make it easier for the principal to admit it.

With regard to certain felonies, if all the partners conspire to commit the felony, then you may find they conspired to commit the crime.

Two [2] people conspir[e] to commit a crime, if they share the same intent that the crime be committed and they agreed that one [1] or both of them would commit that crime or one [1] of them would help the other to commit the crime . . .

(N.T. 8/4/93, 74, 84-86, 94-95; Ptr.'s Br. at 24-26; Resp.'s Br. at 60-62) (emphasis added). Read as a whole, the jury charge clearly indicates that the trial court instructed the jury that an accomplice is one who intends to promote or assist in a crime by the principal; that first degree murder requires specific intent to kill; and that accomplices must share the intent to commit a crime. Because these instructions accurately set forth the law on accomplice liability pursuant to Pennsylvania law, counsel cannot be said to have acted deficiently in challenging this instruction. Therefore, Petitioner is not entitled to relief on this claim.

3. Ineffective assistance of trial counsel for failing to object to the Commonwealth's amending the bill of information for the PCOA charge to include evidence that Petitioner was involved in gun transactions several months after the crimes charged had occurred .

Petitioner next argues that trial counsel was ineffective for failing to object to the Commonwealth's amending the bill of information for the PCOA charge to include evidence that Petitioner was involved in gun transactions several months after the crimes charged had occurred.See Ptr.'s Br. at 28. Respondents counter that this claim is procedurally defaulted. See Resp.'s Br. at 67-71.

On direct appeal, Petitioner raised a variant of this claim, namely, that "the trial court erred in permitting the Commonwealth to present evidence to the jury regarding predicate acts which were not set forth in the Bill of Information." See Commonwealth v. Wilson. 2646 Phila. 1995, at 5 (Pa.Super. Dec. 31, 1996). However, this is not the same claim as the ineffectiveness variant raised here. In addition, when Petitioner subsequently raised the claim in his collateral appeal to the Pennsylvania Superior Court, the appellate court found the claim to have been waived because it had not been presented to the PCRA court, as required under Pennsylvania law. Commonwealth v. Wilson. No. 2360 EDA 2000, at 8 (March 18, 2002).

The Superior Court's finding that this claim was waived and thus unreviewable on collateral appeal constitutes an independent and adequate state ground that now precludes federal habeas review of this claim. Although Petitioner asserts that this claim was raised as part of his PCRA petition, see Ptr.'s Br. at 28, this court has been unable to locate such a claim in any of the myriad of filings made to the PCRA court by Petitioner pro se or by counsel. Instead, the first time the claim appears to have been raised was in Petitioner'spro se reply, dated July 5, 2000, to the PCRA court's notice of intent to dismiss the PCRA petition, which the Superior Court apparently did not find to be sufficient for purposes of waiver under Pennsylvania law. As a result, this claim is defaulted. Moreover, for the reasons previously discussed, Petitioner has failed to demonstrate cause and prejudice for the default,¹² or that failure to review the claim would constitute a fundamental miscarriage of justice. Therefore, I find the claim to be procedurally defaulted. 4. Ineffective assistance of trial counsel for failing to request a "corrupt source" charge as to witness David Lee .

12 To the extent that Petitioner would argue that his default was due to counsel's failure to present this claim, such an argument must fail. A claim of ineffective assistance of counsel constitutes "cause" for procedural default only if the claim was presented to the state courts independently prior to its use to establish cause. Edwards v. Carpenter. 529 U.S. 446, 451 (citing Carrier. 477 U.S. at 488-89). Here, Petitioner never argued in the state courts that appellate counsel was ineffective for failing to raise this claim on direct appeal. Consequently, ineffective assistance of appellate counsel cannot constitute "cause" for his default. Furthermore, any claim that Petitioner would make regarding ineffectiveness of post-conviction counsel as cause for his failure to present this claim, or any other claim, in his petitions for post-conviction relief also must fail. The Supreme Court has determined that any attorney error that has led to the default of a petitioner's claims on collateral appeal cannot constitute cause to excuse his default in a federal habeas petition. See Coleman. 501 U.S. at 757; see also Pennsylvania v. Finley, 481 U.S. 551, 558 (1987) (Constitution does not dictate standard for attorney effectiveness on collateral appeal).

Petitioner next argues that trial counsel was ineffective for failing to request a "corrupt source" charge as to witness David Lee.See Ptr.'s Br. at 28-30. Respondents counter that this claim is defaulted and meritless. See Resp.'s Br. at 71-75.

Petitioner presented and exhausted this claim on collateral appeal. In considering the merits of the claim, the Superior Court stated:

[Petitioner] . . . asserts that [trial counsel] was ineffective for failing to request a `corrupt source' charge as to prosecution witness, David Lee ("Lee"). [Petitioner] claims that there was substantial testimony that Lee was an accomplice, and therefore, a corrupt source charge was necessary. We disagree.

In any case in which an accomplice implicates the defendant, the trial court should instruct the jury that the accomplice is a corrupt and polluted source, whose testimony should be considered with caution. Here, however, there was no evidence that Lee was [Petitioner's] accomplice.

At trial, Lee testified that he purchased weapons for Williams and [Petitioner], at their request. According to Lee, he purchased these weapons in order to make some money. Lee testified that he stopped making purchases for the men when he found out that they were `heavy into drugs.'

There is no evidence that Lee was involved with [Petitioner] as his accomplice in the illegal enterprise; nor was Lee charged as an accomplice in these proceedings. Accordingly, a corrupt source charge was not warranted.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 10-11 (March 18, 2002) (citations to trial transcript, and to state law, omitted). Because the Superior Court found that it was not necessary for the jury to hear a corrupt source charge, the court further found that trial counsel was not ineffective for failing to seek such an instruction. Id. at 11.

The Pennsylvania Supreme Court has set forth the following regarding the issuance of a corrupt source charge:

[I]t is well established that, in any case in which an accomplice implicates the defendant, the trial court should instruct the jury that the accomplice is a corrupt and polluted source whose testimony should be considered with caution. See Commonwealth v. Chmiel. 639 A.2d 9, 13 (Pa. 1994). The charge is indicated in cases in which the evidence is sufficient to present a jury question with respect to whether the Commonwealth's witness is an accomplice. Id.: see also Commonwealth v. Spence. 627 A.2d 1176, 1183 (Pa. 1993). Such a jury question is present when the witness could be indicted for the crime for which the accused is charged. Commonwealth v. Sisak. 259 A.2d 428, 431 (Pa. 1969). A person maybe indicted as an accomplice where the evidence would establish that he "knowingly and voluntarily cooperate[d] with or aids another in the commission of a crime" with the intent to assist the principal. Id. at 268 n. 4, 259 A.2d at 431 n. 4 (citations omitted). See generally 18 Pa. Cons. Stat. § 306(c)(1) (setting forth the statutory definition of accomplice).

See Commonwealth v. Williams. 732 A.2d 1167, 1181 (Pa. 1999). Here, there is no evidence (and no assertion) that Lee was a member of Petitioner's gang or an accomplice to the triple robbery and triple murder, and thus no suggestion that Lee could be indicted for the crimes at issue here.¹³ Therefore, counsel cannot be found deficient in failing to request the "corrupt source" charge, and appellate counsel cannot be found deficient for failing to raise the claim on appeal.See Strickland. supra. Accordingly, Petitioner is not entitled to relief on this claim. 5. Ineffective assistance of appellate counsel for failing to raise a claim that the trial court improperly refused to allow trial counsel to cross-examine the medical examiner concerning whether the condition of the victims' corpses was consistent with having been tossed from a moving van .

13 While there is evidence that Lee faced prosecution, including Lee's own admission that he was under investigation, such investigation and prosecution concerned Lee's involvement in illegal firearms transactions and did not involve any of the crimes at issue here.

Petitioner next argues that appellate counsel was ineffective for failing to raise a claim that the trial court had improperly refused to allow trial counsel to cross-examine the medical expert in an attempt to show that the injuries apparent on the victims' corpses were inconsistent with the bodies having been thrown from a moving van. See Ptr.'s Br. at 30-32. Respondents counter that the claim is defaulted and meritless. See Resp.'s Br. at 75-79.

Petitioner raised and exhausted this claim on collateral appeal. In considering the merits of the claim, the Superior Court stated:

[Petitioner] contends that the trial court improperly included [defense counsel] from asking the medical examiner a hypothetical question during cross-examination. Several times, [counsel] had attempted to ask the medical examiner whether the lack of abrasions or bruises on the bodies of the last two [2] victims was consistent with being pushed from a moving van. Each time that the Commonwealth objected to [counsel's] hypothetical question, the trial court sustained the objection. When [counsel] moved for a mistrial based upon the preclusion of his hypothetical question, the prosecutor countered: "[E]ach time the question was asked, there was a dramatic throwing of the body, which was a complete misrepresentation of what the record was." The trial court denied [counsel's] motion for a mistrial, holding that his questions assumed facts that were not in evidence.

The scope and limits of cross-examination are vested in the trial court's discretion and that discretion will not be reversed unless the trial court clearly has abused its discretion or made an error of law. From the certified record, we are unable to review the "dramatic throwing of the body" that accompanied [counsel's] attempts to cross-examine the medical examiner.

It is apparent from the record, however, that the trial court limited [counsel's] cross-examination because the nature of these gestures assumed facts that were not in evidence. We discern no abuse of discretion on the part of the trial court in limiting the scope of cross-examination on this basis.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 12-13 (March 18, 2002) (citations to the trial transcript, and to state law, omitted).

I find that the decision of the state courts is consistent withStrickland. Under federal law, as under Pennsylvania law, "the scope of cross-examination is left to the sound discretion of the trial court, and [the court of appeals] will reverse only for an abuse of discretion." United States v. Werme. 939 F.2d 108, 117 (3d Cir. 1991); see also United States v. Irizarry. 341 F.3d 273, 306 (3d Cir. 2003) (same). Here, as noted by the state appellate court, the trial court limited defense counsel's cross-examination because the nature of counsel's gestures assumed facts — such as the bodies being dramatically thrown from a fast-moving van — that were not in evidence. Such a limitation in questioning is appropriate and does not rise to the level of an abuse of discretion. Because appellate counsel cannot be faulted for failing to raise this claim on appeal, Petitioner is not entitled to relief on this claim.

6. Ineffective assistance of appellate counsel for failing to raise a claim that a portion of the statement of David Lee was inadmissable hearsay .

Petitioner next argues that appellate counsel was ineffective for failing to raise a claim that a portion of the statement of David Lee was inadmissable hearsay. See Ptr.'s Br. at 33. Respondents counter that this claim is defaulted and meritless. See Resp.'s Br. at 79-81.

Petitioner raised this claim before the PCRA court, but failed to specify what aspect of Lee's testimony allegedly constituted hearsay. On appeal, the Pennsylvania Superior Court stated the following:

[Petitioner] . . . asserts that [trial counsel] was ineffective for failing to object to Lee's testimony that [Petitioner] and Williams were "heavy into drugs." Although [Petitioner] now identifies the particular statement forming the basis of his claim, he failed to identify the objectionable statement before the PCRA court, and the PCRA court did not address this claim in its Opinion. Accordingly, the claim is waived.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 11-12 (March 18, 2002) (citation to state law omitted).

The Superior Court's finding that this claim was waived and thus unreviewable on collateral appeal constitutes an independent and adequate state ground that now precludes federal habeas review of this claim. As a result, this claim is defaulted. Moreover, for the reasons previously discussed, Petitioner has failed to demonstrate cause and prejudice for the default, or that failure to review the claim would constitute a fundamental miscarriage of justice. Therefore, I find the claim to be procedurally defaulted.¹⁴ 7. Ineffective assistance of trial and appellate counsel for failing to challenge the trial court's decision to send a sheriff into the jury room to remind the jurors that their verdict had to be unanimous .

14 Even if this claim were not deemed procedurally defaulted, I would find the claim to be meritless. In response to the question "[w]hy did you stop buying guns for Christopher Williams and Theophalis Wilson?," Lee answered "[t]hey were heavy into drugs, into selling drugs." (N.T. 7/27/93, 62). Under Pennsylvania law, hearsay is defined as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa. R. Evid. 801(c). Here, Lee testified as to his motive for ceasing to buy weapons for Williams and Petitioner, and the evidence was offered to prove what Lee thought and not to prove that Petitioner was actually selling drugs. Moreover, given the amount of evidence the jury heard concerning Petitioner's involvement with drugs, including taped conversations in which Petitioner bragged about his gang's drug activities, Lee's statement can hardly be deemed to have prejudiced Petitioner at trial.

Petitioner next argues that trial and appellate counsel was ineffective for failing to challenge the trial court's decision to send a sheriff into the jury room to remind the jurors that their verdict had to be unanimous. See Ptr.'s Br. at 34. Respondents counter that this claim is defaulted and meritless. See Resp.'s Br. at 81-84.

Petitioner raised and exhausted this claim on collateral appeal. In considering this claim, the Superior Court stated:

[Petitioner] . . . claims that [trial counsel] was ineffective for failing to object when the trial judge directed the sheriff to enter the jury deliberation room to inform the jury that its verdict must be unanimous. Although [Petitioner] points out the impropriety of the trial court's actions, he fails to demonstrate actual prejudice resulting from counsel's dereliction. Accordingly, [Petitioner's] claim must fail.

Commonwealth v. Wilson. No. 2360 EDA 2000, at 8-9 (March 18, 2002) (citations to state law omitted).

I find that the decision of the state courts is consistent withStrickland because Petitioner cannot show how the action complained of prejudiced Petitioner.¹⁵ The trial court informed the jurors on several occasions that their verdict had to be unanimous, which likely explains why no defense counsel objected when the trial court sent the sheriff into the deliberation room to tell them again. In any event, Petitioner does not attempt to explain how counsel's failure to object to the unorthodox action of the court prejudiced him, particularly where the evidence of guilt was overwhelming, and where the jury returned unanimous verdicts on all counts. Therefore, Petitioner is not entitled to relief on this claim.

15 The court reiterates that, under Strickland. a petitioner must show that counsel was deficient and that the deficiency was prejudicial. See 466 U.S. at 687.

8. Ineffective assistance of trial counsel for failing to investigate and interview Dawn Johnson .

Petitioner next argues that trial counsel was ineffective for failing to investigate and interview Dawn Johnson. See Ptr.'s Br. at 34. This claim was never presented to any state court and is, therefore, unexhausted and procedurally defaulted for the reasons previously set forth. As a result, this claim is not subject to federal habeas review.

D. Claim Fourteen (14): Prosecutorial Misconduct

In his final claim, Petitioner argues that the prosecutor engaged in misconduct for failing to provide in discovery an exculpatory statement given by Anthony Thigpen one (1) week after the murders which implicated other people in the murder. See Ptr.'s Br. at 37-38. On collateral appeal, the Superior Court found that this claim was previously litigated. Commonwealth v. Wilson. No. 2360 EDA 2000, at 14-15 (March 18, 2002). Petitioner argues, and we agree, that this was an unreasonable reading of the record insofar as the issues of trial court error raised on direct appeal had to do with witnesses other than Thigpen.

Nevertheless, I find this claim to be meritless. On November 18, 1992, the Commonwealth sent a package of discovery materials to defense counsel, along with a cover letter that listed, inter alia. Thipgen's statement as being among the items provided.See Response to Petition at Exhibit "D." In the absence of any evidence to the contrary, I must conclude that the statement was, in fact provided. As a result, Petitioner's final claim is baseless.

Accordingly, I make the following:

RECOMMENDATION

AND NOW, this day of October, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED. I FURTHER RECOMMEND that a Certificate of Appealability be issued concerning whether the Pennsylvania standard of review for ineffective assistance of counsel comports with the federal standard for ineffectiveness set forth in Strickland v. Washington. 466 U.S. 668 (1984).

ORDER

AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.

3. A Certificate of Appealability is HEREBY ISSUED concerning whether the Pennsylvania standard of review for ineffective assistance of counsel comports with the federal standard for ineffectiveness set forth in Strickland v. Washington. 466 U.S. 668 (1984).