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Frey v. Fulcomer

filed: August 20, 1992; As Corrected September 15, 1992.


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (Dist. Ct. Civil No. 89-04248)

Before: Becker, Greenberg, and Cowen, Circuit Judges

Author: Becker


BECKER, Circuit Judge.

Thomas Fulcomer, the warden of a Pennsylvania state prison, appeals from an order of the district court for the Eastern District of Pennsylvania granting a writ of habeas corpus to a death row inmate, appellee Roderick Frey. A jury in Pennsylvania state court had convicted and sentenced Frey to death for the contract murder of his estranged wife. Frey unsuccessfully appealed his conviction and sentence and was rebuffed in two subsequent attempts to obtain post-conviction relief in the Pennsylvania courts. He then petitioned for habeas corpus relief in federal district court under 28 U.S.C. § 2254 (1988). The district court ruled that none of Frey's challenges to his conviction were meritorious, but held that he had received ineffective assistance of counsel at the sentencing stage and that the trial court had improperly admitted the testimony of witness Sharon Bowers at that stage. The district court therefore vacated Frey's death sentence, without prejudice to Pennsylvania's right to sentence him to life imprisonment or to conduct a new sentencing hearing.

We conclude that Frey was not denied due process by the admission of the Bowers testimony. As to the ineffective assistance claim, the performance of Frey's counsel at the death penalty phase was, as Pennsylvania concedes, deficient in several respects. Among other things, Frey's attorney, who was handling the sentencing stage of a capital case for the first time, read from and argued based upon a Pennsylvania death penalty statute that had been held unconstitutional three years earlier, largely because it had overly restricted a defendant's ability to argue mitigating circumstances. The first prong of the test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), was thus satisfied, and hence we must decide whether Frey has shown sufficient prejudice to meet the second prong of Strickland. That is, the case turns on the existence of a "reasonable probability" that Frey's jury would have given him a life sentence if he had had effective assistance of counsel.

Undoubtedly, Frey's counsel could have and should have made a stronger argument on mitigating factors by using the proper statute as his frame of reference. In particular, he should have argued that statutory mitigating circumstances not recognized in the superseded statute, including Frey's lack of a prior criminal record and his "substantial domination" by a coconspirator, helped outweigh the aggravating circumstance of contract murder. Frey's lawyer only indirectly raised Frey's lack of a criminal record, and although he argued the facts supporting "substantial domination" quite forcefully, he did so under the rubric of "duress," a similar but presumably slightly more difficult to prove mitigating factor.

On the other hand, the prosecutor openly conceded that Frey's lack of a criminal record was a mitigating factor. Moreover, defense counsel, despite laboring under the wrong statute, still managed to introduce all the evidence supporting findings of "substantial domination" and other "miscellaneous" statutory mitigating factors, although he did not neatly dovetail the arguments into the revised statute. Furthermore, the trial Judge properly instructed the jury as to which aggravating and mitigating factors to consider and how to balance them, and the evidence suggests that the jury understood the law correctly.

Under these circumstances, we conclude that although it is theoretically possible that, if Frey had had proper assistance of counsel, the jury would have sentenced him to life imprisonment, that outcome was not "reasonably probable." We will therefore vacate the order of the district court granting habeas corpus, and will remand the case for that court to consider those of Frey's claims that it has yet to pass upon.*fn1


A. The Crime

Roderick and Barbara Frey were married in 1956 and had three sons, one of whom died in an automobile accident in late 1977. By 1979, the Freys' relationship had become strained. Mr. Frey openly spoke of his desire for a divorce but expressed concern that the settlement would be a severe financial drain on him.

As part of his duties as a truck driver for the Turkey Hill dairy, Mr. Frey made deliveries to a Turkey Hill convenience store managed by Charles Zehring, whom the Pennsylvania Supreme Court has described as "a paranoid schizophrenic who collected exotic weaponry and anarchist/survivalist literature," Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 702 ("Frey I"), cert. denied, 469 U.S. 963, 105 S. Ct. 360, 83 L. Ed. 2d 296 (1984). Some time in mid-1979, Mr. Frey told Zehring of his woes, and Zehring agreed to serve as a private dectective to surveil Mrs. Frey. Evidently, however, Mrs. Frey, unlike Mr. Frey, was not indulging in extramarital affairs, and Zehring therefore suggested that, instead of proceeding with a financially unattractive divorce, Mr. Frey might have Mrs. Frey killed in a manner that made her death appear accidental.

Although the Freys subsequently attempted to reconcile, in October 1979 Mrs. Frey sued for divorce, and Mr. Frey moved out of their home. At about that time, Mr. Frey and Zehring agreed that Mr. Frey would pay Zehring $5000 to murder Mrs. Frey, $3000 in advance and the remainder when the deed was done. As the district court wryly put it, "in a display of sensitivity which no doubt later contributed to the verdict and sentence, [Mr. Frey] financed the transaction by borrowing the money from his wife, against their future property settlement."

Although Zehring arranged most of the details of the murder, Mr. Frey was crucially involved in at least some of the planning.*fn2 To be certain where Mrs. Frey would be at the time of the attempted murder, Mr. Frey asked Mrs. Frey to meet him very early in the morning of November 8, 1979 at the Turkey Hill convenience store where she worked, so that she could deliver some luncheon meat that she was to slice for him. Mr. Frey advised Zehring of Mrs. Frey's probable route and the time of her journey to the store. Mr. Frey then spent part of the evening before the planned murder engaging in intimate relations with his girlfriend (also a Turkey Hill employee), and later met with Zehring to ensure that arrangements were set for the murder.

To assist in the murder, Zehring recruited a young ex-Coast Guardsman named Richard Heberlig in exchange for $500. Zehring apparently misled Heberlig to believe that the two would merely beat up the victim in order to collect a debt. By the time that the two actually set out at approximately 4:00 a.m. on the morning of November 8, 1979, however, Heberlig was aware that murder was planned. Shortly thereafter, Zehring and Heberlig, posing as police officers, encountered Mrs. Frey's car on the highway near her home, pulled her over to the side of the road, and approached her. The plan had been to beat Mrs. Frey into unconsciousness and then to stage an automobile accident. When Mrs. Frey remained conscious despite severe beating, however, Heberlig panicked and shot her in the chest. The two men moved her and her car to a cornfield some distance away and attempted unsuccessfully to set fire to the car. Mrs. Frey was later discovered dead from massive hemorrhaging.

After the crime, Zehring met with Mr. Frey and received the final payment for the contract killing. When Mrs. Frey failed to appear for work, the police began inquiries. Mr. Frey denied involvement, but the police were suspicious based on an examination of Mrs. Frey's bank records, which revealed a substantial payment to him shortly before the murder. Mr. Frey at first attempted to explain that he had gambled away the money (which he no longer possessed), but on December 6, 1979, he gave a detailed confession, implicating Zehring, who in turn fingered Heberlig. All were arrested and charged with murder and conspiracy.

B. Frey's Trial and Sentencing Hearing

Notwithstanding his confession, Frey elected to stand trial in the Court of Common Pleas of Lancaster County, which lasted several days. Because the guilt phase is not at issue here, we summarize only the testimony that remained especially relevant at the sentencing phase.

The prosecution's case was extremely strong. It relied primarily on Frey's voluntary confession to the police. It corroborated this with extensive evidence of Zehring's perpetration of the crime (Heberlig was barely mentioned and was referred to as "Mr. X"), circumstantial evidence (including bank and phone records) that Frey had paid Zehring to commit it, and evidence of Frey's motive.

The defense first called several inmates from the Lancaster County Prison, who testified that, while in prison, Zehring had boasted that he had set up the murder scheme in order to extort money from Frey, and that he intended to kill Frey once he had milked Frey for all the money that he could obtain, including money that came to Frey upon his wife's death. Those witnesses also testified that Zehring appeared crazed.

The defense also called a psychologist, Dr. Bruce Wittmaier, who testified in great detail. Wittmaier had interviewed Frey in prison and had given him various psychological tests. Wittmaier testified on direct examination that Frey has a 91 I.Q., which is at the low end of the normal range, and that he tends to be submissive, noncompetitive, and unemotional. Wittmaier also opined that Frey's statement to the police would have been given under stress, in which condition he would be unlikely to stand up for himself, and would be quite likely to feel intimidated and to go along with others' suggestions. On the other hand, Wittmaier conceded on cross-examination that Frey's test scores were statistically abnormal in only three of over twenty categories: a high mark for harm avoidance (he is not a risk taker), a low mark for defendence (he tends not to defend himself), and a low mark for exhibition (he eschews public attention).

Wittmaier's testimony on direct examination was intended to dovetail with that of Frey himself, who recanted his confession to the police.*fn3 Frey admitted that he had paid Zehring $5000 but explained that the payments were extortion payments to Zehring to prevent him from harming the Frey family. Frey suggested that Zehring had harrassed him and repeatedly threatened to harm him, his wife, and their family. Although Zehring and Heberlig were available, neither side called them to testify.

The Commonwealth briefly called several witnesses in rebuttal. Closing arguments followed, during which the Commonwealth again read extensively from the transcript of Frey's confession. After instructions from the trial Judge, the jury retired shortly before 10 a.m. on Friday, May 14, 1980. Shortly after 4 p.m. that day, the jury returned, having found Frey guilty of first degree murder.

The sentencing hearing before the same Judge and jury began shortly thereafter. Because its events are essential to our decision, we recite them in detail. The Commonwealth proceeded first, and proposed to call as a witness Sharon Bowers, an acquaintance of both Freys who had not appeared during the guilt phase. The Commonwealth explained that it had only become aware that Bowers had knowledge about the case the day before, after it had rested its guilt phase case-in-chief. It had attempted to call Bowers on rebuttal during the guilt phase, but the trial Judge had refused, apparently because her availability at that time was uncertain. This time Bowers was present, and the trial Judge allowed her to testify, specifically ruling that it was proper for the Commonwealth to counter the expected defense theory that Zehring had dominated Frey.

Bowers, who was under the misapprehension that she was testifying at the guilt phase, testified that she knew Frey well because he frequently delivered dairy products to her Turkey Hill store, and recounted that he chronically complained about his marital problems. She specifically recalled one conversation in May or June of 1979 when Frey said, referring to his wife, that "I would kill the son of a bitch [sic] if I knew I could get away with it." Bowers testified that she responded, "Oh come on, Rod, you don't mean that," and he replied "Yes, I do," and explained that his wife "couldn't enjoy her money."

Frey's trial counsel, James Sorrentino, then put on his sentencing defense. Sorrentino called Frey's mother, father, and brother, who briefly testified that, based on their knowledge of Frey's personality, Frey could not have cold-bloodedly paid to have his wife killed unless he was under coercion or duress. Frey's father also testified that his son had "never been in trouble before in his life." Sorrentino then briefly called Frey himself back to the stand. Frey asserted that his guilt phase testimony that Zehring had threatened him and his family (including one incident where Zehring held a flashlight and gun in his face) was true. He also stated that he had never told Bowers that he would kill his wife if he could get away with it.

After a dinner break, Sorrentino made his closing argument. His presentation was in large part a reading from what he erroneously thought was Pennsylvania's death penalty statute, supplemented with his commentary thereon. At one key juncture, he erroneously told the jury that if it found a mitigating circumstance, Frey should be sentenced to life imprisonment. He then told the jury what were, in his opinion, the only aggravating and mitigating circumstances that pertained to the case. The relevant aggravating circumstance, he related, was contract murder, and the relevant mitigating circumstances were "two, perhaps only one": (1) age, lack of maturity, or youth of the defendant; and (2) duress not sufficient to be a complete defense to the crime.

Effectively abandoning the age factor for the obvious reason that Frey was forty-two years old at the time of the murder, Sorrentino focused on the second factor, duress, emphasizing that the jury should find that Zehring threatened and coerced Frey.*fn4 In support of that theory, Sorrentino recited not only Frey's testimony but also Zehring's statements to other prisoners that he intended to extort Frey's money and then kill him. Sorrentino also briefly adverted to the testimony of the psychologist as to Frey's I.Q. and his susceptibility to pressure.

The Commonwealth then gave its closing, politely noting that it had "a little different understanding of what this death penalty law says." The prosecution argued that the jury had already concluded that Frey took part in a contract murder, but it candidly admitted the presence of at least one mitigating circumstance, Frey's lack of a significant criminal record, which Sorrentino had failed to highlight in summation. The prosecution did contest duress, however, arguing that Frey's statements in his confession indicated that the contract murder was his own decision. It also stressed that, contrary to Sorrentino's assertion that the presence of a mitigating circumstance ended the inquiry, once the jury also found an aggravating circumstance, the jury was required to balance all the aggravating and mitigating circumstances. As to that balance, the prosecution suggested that Frey's contract killing was particularly terrible because it had been contemplated for a long time, because Frey had taken part in the planning by advising of his wife's route to work, because the manner of execution was particularly callous in that Frey had borrowed the money to finance the murder from his wife, and because Frey's motivation was simply greed.

The court then carefully instructed the jury. It stated that the verdict had to be death if the jury unanimously found at least one aggravating circumstance and no mitigating circumstance, or if it unanimously found that one or more aggravating circumstances outweighed any mitigating circumstances; otherwise, it instructed, the verdict had to be life imprisonment. The court noted that the only relevant aggravating circumstance was contract murder, but, unlike both counsel, gave a list of six possibly relevant mitigating circumstances: (1) the lack of a significant history of prior criminal convictions; (2) the influence of extreme mental or emotional disturbance; (3) substantial impairment of the capacity to appreciate criminality of conduct or to conform conduct to the law; (4) youth or advanced age; (5) extreme duress or substantial domination of another person; and (6) "any other mitigating matter concerning the character or record of the defendant or the circumstances of his offense." It also instructed that although the Commonwealth had to prove aggravating circumstances beyond a reasonable doubt, the defendant only had to prove mitigating circumstances by a preponderance of the evidence. Finally, it reminded the jury that its verdict had to be unanimous.

The jury retired to deliberate at 7:38 p.m. on May 14, 1980. After a little more than five and a half hours of deliberation, it returned its verdict at 1:18 a.m. the next day, unanimously voting for the death penalty. Post-trial motions were denied.

C. Trials of the Coconspirators

Frey, Zehring, and Heberlig were originally scheduled to stand trial simultaneously, but before different Judges and juries. Zehring's trial was postponed, however, and Heberlig, the triggerman, pleaded guilty to murder generally just as Frey went to trial. The Judge in Heberlig's case determined the offense to be first degree murder and, after Heberlig waived his right to a jury, sentenced him to life imprisonment. In so ruling, the court found that the three mitigating circumstances that it found present (no prior criminal record, good character, and the fact that Heberlig was not part of the original conspiracy to commit murder) outweighed the one statutory aggravating circumstance (contract murder).

In September 1980, Zehring pleaded guilty to murder, and, after a hearing, his trial Judge also found him guilty of first degree murder. Zehring, like Heberlig, waived his right to a penalty phase jury, and, after a hearing, the trial Judge sentenced him too to life imprisonment. At Zehring's sentencing hearing, the parties stipulated that Zehring had been taking prescribed amphetamines during the months leading up to the crime, that Zehring had only one minor prior offense (disorderly conduct), that Zehring was twenty-two years old at the time of the offense, and that Heberlig had received a life sentence while Frey had received a death sentence. There also was testimony of a psychologist that Zehring had schizoid and paranoid personality disorders.

In sparing Zehring's life, the trial court found that three mitigating circumstances (no significant history of prior convictions, presence of a personality disorder exacerbated by abuse of amphetamines, and cooperation with the authorities) outweighed the single mitigating circumstance (contract murder). The court's ruling did not mention Zehring's youth or the sentences of the coconspirators.

D. Post-Trial Proceedings

Frey obtained new counsel on appeal. His initial direct appeal to the Pennsylvania Supreme Court raised numerous issues, none of which significantly troubled that court. See Frey I, 504 Pa. 428, 475 A.2d 700. The only issue raised there that concerns us here is his allegation that his sentence was excessive and disproportionate to the life sentences of Zehring and Heberlig. The Pennsylvania Supreme Court held that the other two cases were not "similar" for purposes of the proportionality review required by 42 Pa. Cons. Stat. Ann. ยง 9711(h)(3)(iii) (Purdon 1982). It considered the circumstances of Frey's participation dissimilar, and found significant differences in the "character and record" of the three, noting that Heberlig was a latecomer to the conspiracy and that Zehring was a drug-abusing paranoid ...

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