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August 15, 2000


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 ORDERED that:

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 DENIED.

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 Mr. Marra's.

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 sustained:

(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 2.
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 at 10.
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 killing.

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 ...

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