Entry #21), did not prompt any action from the Monroe County District Attorney. Thus, this matter remained dormant until March 1, 1994, when it was reassigned to me.
On April 21, 1994, Alleyn filed a supplemental brief to his habeas corpus petition, indicating that "only the insufficient evidence issue is [now] being pressed." (Dkt. Entry # 24.) When a review of the record revealed that compliance with the August 6, 1992 Order had not been achieved, I issued an Order under date of June 22, 1994, directing the District Attorney of Monroe County to file, inter alia, the complete transcript of all trial proceedings held in connection with Alleyn's conviction. The District Attorney has complied with this Order.
A. Sufficiency of the Evidence
Alleyn argues that the "finding of footprints at the scene of the fire in fresh snow that the [Commonwealth] claimed to have traced to my campsite in the woods is not proof beyond reasonable doubt of my guilt." (Dkt. Entry # 35 at 3.) When a person challenges a jury's verdict on the ground that there was insufficient evidence to support conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original). Accord, Wright v. West, 505 U.S. 277, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992). Put another way, Alleyn is entitled to habeas corpus relief only "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. The reviewing court must defer to the jury's resolution of conflicts in the evidence since the weighing of evidence is the province of the jury. Id. at 326.
Viewing the evidence in the light most favorable to the prosecution, it is clear that sufficient evidence was presented to allow any rational trier of fact to find that Alleyn was guilty beyond a reasonable doubt with respect to all elements of his arson conviction. Alleyn's arson conviction required the prosecution to prove: (1) that there was a fire; (2) that it was maliciously and willfully set; and (3) that it was set by the defendant. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988). Alleyn does not dispute that the Vecchio residence was maliciously and willfully set on fire. Rather, Alleyn challenges the sufficiency of the evidence that the fire was set by him.
The prosecution presented ten (10) witnesses who observed footprints at the scene of the fire that were tracked directly to Alleyn. For instance, fireman Stephen Carey observed a set of footprints leading to the fire scene and two sets leading away. (Tr. at 30, 32-3, 36.) He testified that the footprints from all three sets matched. (Tr. at 33.) He further testified that the footprints leading away from the fire scene extended through the yard and across the road. (Tr. at 40.)
Security guard Daniel Dorwart testified that he followed the tracks he observed on the Shawnee Stables property from the tire scene to the Brodhead Creek bridge crossing. (Tr. at 67-8.) Primrose testified that after Dorwart took him to the bridge crossing where Dorwart ceased tracking, he tracked the footprints across an open field and to railroad tracks which the prints began to follow. (Tr. at 97-8.) Primrose, Hartley, Van Vliet, an Witcraft testified about the tracking of the footprints from this point to the discovery of Alleyn.
Hartley testified that after apprehending Alleyn, he compared the impression made by Alleyn's shoes with those tracks that they followed and concluded that they were the same. (Tr. at 258.) Moreover, Trooper John Lazur, accepted as an expert regarding footprints, testified that he personally examined footprints from along the path traced from the scene of the fire to the site of Alleyn's apprehension. (See Tr. at 171-72.) Lazur took photographs of those prints, which were admitted into evidence. (Tr. at 174.) Lazur compared the shoes Alleyn wore when he was apprehended with the prints, determining that not only did the sizes match, but that the shoe soles matched and that a design found on the side of the heel of the right shoe matched the unique pattern made in the freshly fallen snow by the right footprint. (Tr. at 179-80.) Furthermore, Lazur testified that plastic which Alleyn had in his left shoe, which stuck out of the shoe, could account for a "dragging" effect found on the snow near the left foot mark of the tracks. (Tr. at 180.)
A rational trier of fact certainly could conclude that the evidence submitted at Alleyn's trial demonstrated beyond a reasonable doubt that Alleyn had been at the Vecchio house shortly before the fire was discovered. This circumstantial evidence was sufficient to support a conclusion, beyond a reasonable doubt, that Alleyn had set the fire.
B. "New Evidence" Concerning A Delayed Incendiary Device
The DA. says I have shown no evidence to prove a delayed candle device was used. But a long burning wax candle is not detectable at a fire site once a big fire gets going. Wax melts by fire and does not burn down into wood like inflamable (sic] liquid. . . . Some very reasonable doubt is certain here especially with the fact being that no imflmable [sic] liquid was found on defendant. Including smell of said. [Dkt. Entry # 35 at 2, 3.]
Although Alleyn argues that his insufficient evidence argument "includes the delayed time candle device," (dkt. entry # 35 at 1), his argument regarding insufficiency of evidence is analyticaly distinct from his argument that evidence of a delayed timing device would have introduced reasonable doubt into the jurors' minds. In claiming that the jury should have received evidence that a delayed timing device allegedly could have started the fire, Alleyn argues that evidence not introduced at his trial would have demonstrated his innocence.
The Supreme Court, in Herrera v. Collins, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), recently addressed a case where a habeas corpus petitioner claimed that newly discovered evidence showed that he was actually innocent.
The petitioner in Herrera submitted affidavits to dispute his conviction for the murder of a Texas patrol officer. Two affiants swore that the petitioner's brother told them that he killed the officer. Id. at 24. A third affiant, the brother's son, swore that he witnessed his father soot the officer, although the affiant was nine years old at the time of the murder. Id.9
In the same manner as Alleyn argues in his petition, the petitioner in Herrera claimed "that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial." Id. at 216. The Herrera petitioner, however, did not, and could not, contend that an independent constitutional violation occurred during his underlying trial. This fact is significant because "claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id. at 216. Alleyn does not contend that his trial suffered from some constitutional flaw relevant to his claim that he missed an opportunity to present his new theory to the jury. For instance, Alleyn. does not argue that a witness was coerced or that tampered evidence was introduced.
Rather, Alleyn questions the legitimacy of the jury's determination based on facts not before them. Habeas corpus relief may not be awarded on the basis of Alleyn's unsubstantiated contentions.
The Supreme Court in Herrera, without deciding, intimated that if evidence is newly discovered, a habeas petitioner possibly could obtain relief by making a "truly persuasive demonstration of 'actual innocence.'" Id. at 227. Alleyn's claim, however, that a theory not presented at trial would have introduced reasonable doubt into the minds of the jurors does not constitute a "truly persuasive demonstration of 'actual innocence.'" Nor has he preserted "newly discovered" evidence. Accordingly, Alleyn is not entitled to habeas corpus relief based on his delayed incendiary device theory.
An appropriate Order is attached.
Thomas I. Vanaskie
United States District Judge
DATED: January 4, 1995
NOW, THIS 4th DAY OF JANUARY, 1995, for the reasons set forth in the accompanying Memorandum, it is hereby ordered:
1. The Clerk of Court is directed to enter into the record a photocopy of the transcript of the July, 1988 trial of Andrew Edward Muldowney. The Clerk of Court is further directed to return the original of the July, 1988 trial transcript to James Gregor, Monroe County District Attorney, Monroe County Courthouse, Stroudsburg, PA 18360.
2. Alleyn's Petition for a Writ of Habeas Corpus is DENIED.
3. The Clerk of Court is directed to close this case file.
4. There is no probable cause for an appeal and or any appeal from this Order will be deered frivolous and not taken in good faith.
Thomas I. Vanaskie
United States District Judge
DATED: January 4, 1995