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LESKO v. JEFFES

May 2, 1988

JOHN CHARLES LESKO, Petitioner,
v.
GLEN R. JEFFES, Commissioner of the Pennsylvania Department of Corrections; CHARLES ZIMMERMAN, Superintendent of the State Correctional Institution at Graterford; JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview; HENRY G. BARR, General Counsel of Pennsylvania; and LEROY ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania, Respondents


Alan N. Bloch, United States District Judge.


The opinion of the court was delivered by: BLOCH

ALAN N. BLOCH, UNITED STATES DISTRICT JUDGE

 Petitioner John Charles Lesko has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, setting forth numerous contentions of error arising out of his trial, conviction and sentence on charges of criminal homicide and criminal conspiracy in the Court of Common Pleas of Westmoreland County, Pennsylvania. The Court concludes that petitioner was deprived of his right to a fair trial guaranteed by the Fourteenth Amendment and, therefore, grants the writ. *fn1"

 I. Facts

 Early in the morning of January 3, 1980, Officer Leonard Miller was killed by two bullets fired from a .38 caliber revolver. His body was discovered by fellow police officers who had heard his radio message stating that he had been shot. Testimony at trial revealed that shortly before the shooting, Miller was observed in his patrol car in the parking lot of a local convenience store. A Lancia sports car was observed repeatedly driving past the officer at a high rate of speed.

 The primary Commonwealth witness at trial was Richard Rutherford, a juvenile who had been present with the petitioner and his co-defendant Michael Travaglia throughout the evening of January 2-3, 1980. Rutherford testified that upon observing Officer Miller in his patrol car at the side of the road, Travaglia, the driver of the automobile in which the three men were riding, stated that he wanted to "have some fun with this cop." He then sped past the officer's car and beeped the horn. When the officer did not pursue the car, Travaglia turned around and sped past him again, at which point Miller gave chase. After a short time, Miller forced the car to the side of the road. Travaglia rolled down the window on the driver's side of the car and, as Miller approached, fired two shots, at least one of which struck the officer. The officer returned fire, striking the passenger window of the automobile.

 The statements of Travaglia and petitioner were introduced at trial. Travaglia maintained that he shot Miller accidentally when the hammer of the gun slipped and a shot was discharged. Petitioner stated that the purpose of speeding past Miller was to draw him away from the convenience store so that they later could return and rob it.

 Rutherford gave additional testimony that, later the same day, Travaglia and petitioner met one Daniel Montgomery in downtown Pittsburgh at which time Travaglia gave Montgomery a .38 caliber revolver and stated that he had "shot a cop." The revolver later was recovered from Montgomery; ballistics tests established that it was the weapon from which the shots which had killed Miller had been fired.

 The Lancia automobile was recovered following the shooting and was identified as being registered in the name of William Nichols; Nichols' wallet was found in the car. The right passenger window had been shot out. Analysis of glass fragments retrieved from the area where Miller's body was found revealed the fragments were of the same type as the glass in the windows of the Lancia automobile. A lead slug removed from the vehicle was identified by the Commonwealth's ballistics expert as having been fired from Miller's .357 magnum service revolver.

 II. Procedural History

 Petitioner was charged with first degree murder and criminal conspiracy to commit murder in connection with the death of Officer Miller. Following lengthy jury selection proceedings, the trial in petitioner's case commenced January 21, 1981, in the Court of Common Pleas of Westmoreland County, Pennsylvania. Defendant was tried jointly with Michael Travaglia. The evidence presented at trial documented that Travaglia was the primary actor in the charged offense; the jury was instructed that petitioner could be found guilty of the murder of Officer Miller only as an accomplice. On January 30, 1981, a verdict of guilty of murder of the first degree and guilty of criminal conspiracy was returned against both defendants.

 The sentencing phase of the trial immediately followed return of the jury's verdict; evidence was presented concerning aggravating and mitigating circumstances pursuant to 42 Pa.C.S.A. § 9711. The jury determined that a sentence of death was appropriate as to both defendants.

 Post-trial motions were filed by petitioner with the Court of Common Pleas of Westmoreland County, which motions were denied by order of April 5, 1982. On April 23, 1982, the Court of Common Pleas formally imposed a sentence of death upon petitioner.

 Petitioner then filed an appeal from the judgment of conviction and sentence with the Pennsylvania Supreme Court. By order dated September 29, 1983, the Court affirmed the judgment of conviction. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). Reargument was denied on December 14, 1983.

 On February 13, 1984, petitioner filed a petition for a writ of certiorari with the United States Supreme Court. The writ was denied on June 18, 1984. Lesko v. Commonwealth, 467 U.S. 1256, 82 L. Ed. 2d 850, 104 S. Ct. 3547 (1984)

 Having completed the remedies available to him on direct appeal, petitioner then filed a petition for post-conviction relief with the Court of Common Pleas of Westmoreland County, pursuant to the Pennsylvania Post-Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. The petition was denied on June 11, 1985. On July 10, 1985, petitioner filed an appeal from the order of June 11, 1985, with the Pennsylvania Supreme Court. In an order dated November 12, 1985, the Supreme Court affirmed the trial court's denial of post-conviction relief. Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (1985). Rehearing was denied on April 2, 1986.

 On May 31, 1986, petitioner filed a second petition for a writ of certiorari with the United States Supreme Court, which was denied on February 23, 1987. Lesko v. Pennsylvania, 479 U.S. ...


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