The opinion of the court was delivered by: Pollak, District Judge.
Upon consideration of the pleadings and record herein, and
after review of the Report and Recommendation of United States
Magistrate Judge Charles B. Smith, together with petitioner's
objections and respondents' responses thereto, it is hereby
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Petition for Reconsideration of the dismissal of the
Petition of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is
3. It is hereby CERTIFIED that there is probable cause for
appeal of the denial of the Petition for Habeas Corpus.
Richard Marra, who is serving a life sentence in a Pennsylvania
prison for the first degree murder of Michael Ragno,*fn1 has
challenged his murder conviction by petitioning for habeas corpus
pursuant to 28 U.S.C. § 2254.
In his petition for habeas corpus, Mr. Marra presented three
claims. The first claim was that the evidence was insufficient to
support the murder conviction. The second claim was that the
trial judge, in responding to the jury's request that grand jury
testimony of a key prosecution witness, Karen Antonelli, be
reread, had taken so narrowly literal a view of the jury's
request that the testimony read back to the jury was likely to
have conveyed a radically and crucially skewed sense of what the
witness had seen. The third claim was that trial counsel Robert
Simone had been markedly ineffective. This claim had two parts.
The first was that counsel should have presented character
witnesses. The second was that Mr. Simone was laboring under a
conflict of interest — namely, a close link to Phillip Narducci —
that led him to refrain from presenting evidence (statements and
a videotape) inculpatory of Mr. Narducci and of a co-defendant of
Magistrate Judge Smith filed a Report and Recommendation
recommending denial of the petition for habeas corpus. Judge
Smith found the evidence against Mr. Marra to be sufficient to
support the verdict. He concluded that the trial judge had not
abused his discretion in determining what portion of Ms.
Antonelli's testimony should be reread to the jury. And he
determined that trial counsel's decisions not to present certain
types of evidence in Mr. Marra's defense were strategic choices
that were not unreasonable. Judge Smith also found that Mr.
Marra's claim that Mr. Simone had a disabling conflict of
interest had not been sufficiently pursued in the state courts
and hence was procedurally barred in this habeas proceeding.
I accepted Judge Smith's Report and Recommendation, modifying
it somewhat to reflect my differing understanding of the evidence
presented by the Commonwealth at trial. The record as I read it
added up to a weaker prosecution case; but I concluded,
nonetheless, that the evidence against Mr. Marra was sufficient
to support a conviction. On the other issues I found no reason to
question Judge Smith's assessment.
Mr. Marra, proceeding pro se, moved for reconsideration. I
denied the motion. Meanwhile, Mr. Marra had retained new counsel
who, three days after denial of the motion for reconsideration,
moved that the order denying reconsideration be vacated with a
view to permitting the filing of more substantial submissions. I
granted that motion. Additional submissions were filed. I
referred the case back to Judge Smith for preparation of a new
Report and Recommendation addressed to new counsel's arguments in
favor of the motion for reconsideration.
Judge Smith has prepared a new Report and Recommendation
recommending denial of the motion for reconsideration.
I conclude that Judge Smith's recommendation should be
(1) The most difficult question is whether there was sufficient
evidence to support the verdict. Judge Smith's careful analysis
is, in my view, persuasive that the evidence was sufficient —
even if only by a narrow margin:
In the court's request for Reconsideration, it was
observed that Karen Antonelli's testimony was less
inculpatory than I earlier found because the record
"does not support a finding that Ms. Antonelli saw
the petitioner standing by the body of the victim. In
fact she explicitly stated at trial that she did not
see the body at all."8 He added that "taken
alone, Ms. Antonelli's testimony is of limited value
in supporting the inference that petitioner was one
of the three men seen by Ms. Murray." Memorandum at
Upon review of Ms. Antonelli's testimony, I agree
that, taken alone, her testimony does not establish
plaintiff as the shooter and is not itself
inculpatory. The same can be said for the testimony
of Williams Rodgers, Susan Murray, Tina Marie
Bianchi, and Bernard Mulholland. Taken individually,
none of this testimony would be sufficient to convict
petitioner since Murray, Bianchi, and Mulholland
could not identify petitioner as the murderer and
Antonelli testified that she did not see the body
near the defendants. However, each of these
witnesses' testimony is probative and their
cumulative effect "based on an interpretation of the
facts and inferences (emphasis added) made most
favorably to the prosecution," could rationally lead
a jury to conclude that the petitioner was guilty of
first degree murder.9 Jackson v. Virginia,
[443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)].
In assessing the totality of the testimony before
them, the jury heard: 1) Rodgers testify about the
confrontation between the victim and the petitioner
and his threat to Ragno that "You'll see who I am";
2) Susan Murray testify that she saw a man in the
middle of three fire a gun and shoot the victim; 3)
Karen Antonelli testify that she turned and looked at
the area where the loud noise came from and
identified petitioner as the one in the middle, and
her possibly conflicting grand jury testimony, that
they wanted reread to them during deliberations,
which put into question whether she saw the
defendants near the body; 4) Tina Marie Bianchi
testify that she saw someone run down the steps
immediately after the "loud noise" and apparently
conceal a dark object in his pants; and 5) Bernard
Mulholland corroborate Rodgers' and Bianchi's
testimony concerning the threats made to Ragno at the
earlier confrontation and petitioner['s] actions
after the shot being the first to run out of the club
with his hand in his pocket apparently concealing
something and flee in a car later found burned and
registered to the petitioner's family.
From this testimony and the inferences permitted to
be drawn from such under Jackson, I find that a
rational trier of fact could have found the essential
elements of the crime of first degree murder beyond a
reasonable doubt. Sullivan v. Cuyler,
[723 F.2d 1077 (3d Cir. 1983)]; Jackson v. Virginia.
8 Relying on the trial testimony as related in the
state court decisions, I erroneously wrote in my
prior Report that Susan Murray saw the three men in a
"semi-circle" and that Karen Antonelli observed the
men standing over the body. Report and Recommendation
9 Under 18 Pa.C.S.A. § 2502, first degree murder is
defined as follows:
A criminal homicide constitutes murder of the first
degree when it is committed by an intentional killing
by means of poison, or by lying in wait, or by any
other kind of willful, deliberate and premeditated
Report and Recommendation, at 10-12 (Mar. 30, 1999).
(2) Closely related to the question of the sufficiency of the
evidence is the question whether the trial judge responded
adequately to the jury's request for the rereading of grand jury
testimony of Karen Antonelli. It is the defendant's view that the
rereading provided by the trial judge was so limited as to permit
the jury to draw the inference that Ms. Antonelli saw Mr. Marra
and his co-defendants standing in front of the body of the murder
victim right after the shooting. Such an inference would have
been highly inculpatory. But such an inference would have been at
odds with Ms. Antonelli's trial testimony (on redirect
examination that followed the prosecution's confronting Ms.
Antonelli with her grand jury testimony) that "I never said I saw
a body." Although a strong case can be made for the proposition
that it would have been prudent for the trial judge to include in
his rereading the pertinent portion of the redirect, I am not
persuaded that the trial judge's decision to limit the rereading
to the grand jury colloquy was an abuse of discretion of
constitutional dimension. (In reaching this conclusion, I am
mindful that (1) what the jury requested be reread was grand jury
testimony, and (2) the trial judge advised the jury that he would
entertain jury requests for the rereading of additional testimony
if the jury felt the need for it).
(3)(a) For the reasons addressed by Judge Smith, Mr. Marra's
claim that Robert Simone's representation of him at trial was
constitutionally deficient is unavailing. Other lawyers might
have thought it useful to present character testimony, or might
have sought to introduce evidence inculpatory of Phillip Narducci
and Jeffrey DiOrio, but Mr. Simone's decisions not to do so were
not demonstrably unwarranted.
(b) Mr. Marra's claim that Mr. Simone, because of his close
association with Phillip Narducci, had an unacceptable conflict
of interest, was found by Judge Smith, in his first Report and
Recommendation, to be procedurally defaulted. The claim was
presented by Mr. Marra on direct appeal in Mr. Marra's petition
for allocatur in the Pennsylvania Supreme Court. The claim was
again presented in Mr. Marra's application to the trial judge for
post-conviction review (P.C.R.A.). But, following the trial
judge's denial of post-conviction relief, the claim was not among
the issues Mr. Marra presented on appeal to the Superior Court,
or, thereafter, by petition for allocatur to the Pennsylvania
Supreme Court.*fn2 Therefore, as Judge Smith determined, the
claim cannot be resuscitated in this habeas proceeding.
For the foregoing reasons, the motion for reconsideration will
be denied and the petition for habeas corpus will also be denied.
At the same time, given that the issue of the sufficiency of the
evidence is certainly a close one, the determination that the
evidence was constitutionally sufficient is "debatable among
jurists of reason." Barefoot v. Estelle, 463 U.S. 880, 893 n.
4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). I therefore conclude
that it is ...