(2) That Petitioner's constitutional rights were violated as the
result of prosecutorial misconduct during the guilt/innocence stage of
(a) That the prosecutor engaged in misconduct by introducing
evidence of uncharged crimes.
In addition to Diana Dunning's testimony that she saw the petitioner
with a gun (not the murder weapon) two days before the crimes, Petitioner
contends that the Commonwealth also adduced evidence that he had
committed two other, uncharged and unrelated crimes — welfare fraud
and voter fraud. In so doing, Petitioner argues, the Commonwealth
violated his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the Constitution and trial and appellate counsel were
ineffective for failing to raise these issues at trial and on direct
The appropriate standard of review on habeas corpus for a claim of
prosecutorial misconduct is the narrow one of due process and not the
broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168,
181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). The relevant question
is whether the prosecutor's comments so infected the trial with
unfairness as to make the resulting conviction a denial of due process.
Id., citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40
L.Ed.2d 431 (1974). Accordingly, the Supreme Court has instructed federal
courts reviewing habeas claims brought by state prisoners and premised
upon prosecutorial misconduct in summation to distinguish between ordinary
trial error of a prosecutor and that sort of egregious misconduct
amounting to denial of constitutional due process — the question is
thus whether the prosecutorial remarks were so prejudicial that they
rendered the trial in question fundamentally unfair. Floyd v. Meachum,
907 F.2d 347, 353 (2nd Cir. 1990). See Also: Kontakis v. Beyer,
19 F.3d 110, 120 (3d Cir. 1994); Keller v. Larkins, 89 F. Supp.2d 593,
604 (E.D.Pa. 2000), aff'd 251 F.3d 408 (3d Cir. 2001).
Similarly, in some circumstances, the admission of evidence in a state
criminal proceeding can rise to the level of a constitutional error. In
such cases, the petitioner must show that the "use of the evidence"
caused "fundamental unfairness" in violation of due process. Kontakis,
supra., citing Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280,
290, 86 L.Ed.2d 166 (1941). See Also: Bisaccia v. Attorney General,
623 F.2d 307, 312 (3d Cir. 1980), cert. denied, 449 U.S. 1042, 101 S.Ct.
622, 66 L.Ed.2d 504 (1980); Keller v. Larkins, 89 F. Supp.2d at 604.
However, just as "not every trial error or infirmity which might call for
application of supervisory powers correspondingly constitutes a failure to
observe that fundamental fairness essential to the very concept of
justice, not every error in balancing probative value against prejudicial
effect amounts to error which rises to constitutional dimensions." Lesko
v. Owens, 881 F.2d 44, 51 (3d Cir. 1989), cert. denied, 493 U.S. 1036,
110 S.Ct. 759, 107 L.Ed.2d 775 (1990) quoting United States ex rel. Perry
v. Mulligan, 544 F.2d 674 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97
S.Ct. 1659, 52 L.Ed.2d 365 (1977) and Donnelly v. DeChristoforo,
416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431(1974).
To constitute the requisite denial of fundamental fairness sufficient
to issue a writ of habeas corpus, the erroneously admitted evidence must
be "material in the sense of a crucial, critical, highly significant
factor," and the probative value of the evidence must be so conspicuously
outweighed by its inflammatory content that a defendant's constitutional
right to a fair trial has been violated. Lesko v. Owens, 881 F.2d at 52;
Robinson v. Vaughn, 1995 WL 572177 at
*3 (E.D.Pa. 1995), quoting Jameson
v. Wainwright, 719 F.2d 1125, 1127 (11th Cir. 1983), cert. denied,
493 U.S. 1036 (1990). In conducting this inquiry, the federal court must
accord great deference to the state trial court given that it is in a
unique position to assess the relative probative value and inflammatory
effect of proffered testimony. Id., citing United States v. Guerrero,
803 F.2d 783, 785 (3d Cir. 1986). It should be noted that evidence may be
unfairly prejudicial if it appeals to the jury's sympathies, arouses its
sense of horror, provokes its instinct to punish or otherwise may cause a
jury to base its decision on something other than the established
propositions in the case. Lesko v. Owens, 881 F.2d at 55.
In this case, Detective Robert Kane testified without objection that he
determined that Otis Peterkin was also known as Otis Loach, Jr. because a
check of the voter registration records revealed that there was an Otis
Loach, Jr. and an Otis Peterkin registered to vote at 1536 Clearview
Street in Philadelphia. (N.T. 9/21/82, 157-158; 9/22/82, 35-36).
Additionally, immediately after the Custodian of Records from the
Department of Public Assistance testified that Otis Peterkin was
receiving welfare payments of $87.40 every two weeks at an address of
5522 Green Street, Detective Kane again testified without objection that
5522 Green Street was, in fact, a vacant lot. (N.T. 9/22/82, 18-19, 23;
36). Subsequent to this testimony, the petitioner, through his trial
counsel, stipulated that he was on public assistance using the address
5522 Green Street for October, November and early December, 1981 and that
he was also known as Otis Loach, Jr. (N.T. 9/21/82, 158; 9/22/82,
94-95). Under Pennsylvania law, evidence of other unrelated crimes is
generally inadmissible to prove the commission of a crime unless it is
being offered to prove (1) motive, (2) intent, (3) a common scheme or
plan involving the commission of two or more crimes so closely related
that proof of one tends to prove the other, (4) the identity of the
perpetrator or (5) the absence of mistake or accident. Lesko v. Owens, 881
F.2d at 52 citing Commonwealth v. Styles, 494 Pa. 524, 525-526,
431 A.2d 978, 980 (1981). In addition, "other crimes" evidence, though
relevant, must be excluded if the probative value is outweighed by the
danger that the facts offered may unduly arouse the jury's prejudice or
hostility. Id. While the evidence regarding petitioner's welfare status
was relevant and probative of his financial status at the time and
possible motive for the robbery, we can find no relevance or probative
value to his voter registration records or to the address at which he
received his welfare payments, nor was it offered under any of the
foregoing five "MIMIC" exceptions.
Had this evidence merely been admitted without more, we would not have
found that its admission was sufficient to rise to the level of a
constitutional violation. However, despite the parties' stipulations to
Petitioner's identity and receipt of welfare, the prosecutor specifically
argued that Petitioner committed welfare fraud in his closing argument.
(N.T. 9/24/82, 41-42, 44). By so doing, we find that the Commonwealth
attached such additional weight to this evidence as to shift the balance
in favor of its inflammatory and unfairly prejudicial content and away
from its probative value. We thus conclude that Mr. Peterkin's
constitutional right to a fair trial has been violated by the admission
of this evidence as well.
(b) That the Petitioner's constitutional rights were violated when
the prosecutor commented on his right to remain silent during his
closing argument to the jury.
Petitioner also argues that the prosecutor made two separate references
to his constitutional right to remain silent during his closing argument
to the jury and that in so doing, violated his rights under the Fifth and
The Fifth Amendment provides, in relevant part that "[n]o person
shall . . . . be compelled in any criminal case to be a witness against
himself . . ." The U.S. Supreme Court has held that "the Fifth
Amendment, in its direct application to the Federal Government and in its
bearing on the States by reason of the Fourteenth Amendment, forbids
either comment by the prosecution on the accused's silence or
instructions by the court that such silence is evidence of guilt."
Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233 14 L.Ed.2d
106 (1965); U.S. v. Balter, 91 F.3d 427, 441 (3d Cir. 1996), cert.
denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996). It is thus
the normal rule in a criminal case that no negative inference from the
defendant's failure to testify is permitted; this rule applies in both
the guilt and penalty phases of a trial. Mitchell v. U.S., 526 U.S. 314,
119 S.Ct. 1307, 1314-1315, 143 L.Ed.2d 424 (1999). The Third Circuit's
well-established test for determining whether a prosecutor's remark
violates Griffin is "whether the language used was manifestly intended or
was of such character that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to testify." Lesko v.
Lehman, 925 F.2d 1527, 1544 (3d Cir. 1991), quoting Bontempo v. Fenton,
692 F.2d 954, 959 (3d Cir. 1982) and United States v. Chaney, 446 F.2d 571,
576 (3d Cir. 1971). In making this determination, the challenged
prosecutorial remark must be examined in its trial context. Id., citing
United States v. Robinson, 485 U.S. 25, 31-33, 108 S.Ct. 864, 868-870, 99
L.Ed.2d 23 (1988) and Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954,
2959, 57 L.Ed.2d 973 (1978).
Here, the prosecutor's closing argument included the following:
. . . Maybe, you say that the Commonwealth didn't show
that but the same man that gave the address to a
vacant lot in Germantown to get Public Assistance. Who
is deceiving who, as he sits there today, calmly in a
suit, passive and cool, protected by the laws of the
Commonwealth, protected by the laws encompassed in the
Bill of Rights? No one begrudges him that, ladies and
gentlemen, but let's think about the two people that
are not here . . . .
. . . Oh yes, he is passive here now but the
destruction that he wreaked, or visited on two human
beings in a civilized society, I hope we can't
tolerate this . . . .
(N.T. 9/24/82, 44, 51).
In evaluating this argument in conjunction with the preceding legal
principles, we can reach no other conclusion but that these prosecutorial
remarks were so prejudicial that they, together with the other
improprieties, rendered the trial in question fundamentally unfair. While
we would agree with the Commonwealth that had the prosecutor merely used
the term "passive" to describe Petitioner, his argument could have been
construed as a suggestion that the jury should not be swayed by his
unthreatening present demeanor in determining whether the evidence would
support a verdict that he killed two people.*fn12 (See: Commonwealth's
Response to Petition for Writ of Habeas Corpus, at p.
48, n. 35).
However, the prosecutor here went far beyond merely contending that the
petitioner's present demeanor was passive. To the contrary, these remarks
clearly implied that by dressing in a suit, sitting calmly and passively
and invoking his right to remain silent throughout his trial, the
petitioner was trying to deceive the jury. That these remarks were made
immediately after the prosecutor's remarks concerning Petitioner's
alleged welfare fraud only serves to further emphasize the inference that
Mr. Peterkin's goal in not testifying was to deceive the members of the
Furthermore, in considering whether or not the admission of these
remarks constituted harmless error in the context of the record as a
whole and notwithstanding the trial court's instruction that the speeches
of counsel were only to be considered to the extent that they were
supported by the evidence, we again find that we have grave doubt that
these remarks did not have a substantial and injurious influence on the
jury's verdict. Calderon v. Coleman, and O'Neill v. McAninch, both
supra. Accordingly, we must find that the error was not harmless and that
these statements present still additional grounds for habeas corpus
(c) That the prosecutor engaged in misconduct in violation of
Petitioner's constitutional rights when he urged the jury to return to
the values of yesteryear.
Mr. Peterkin next challenges the prosecutor's contentions (also
contained in his closing argument) that:
"Once upon a time, ladies and gentlemen, in this
country a dollar used to be made of silver. A coke was
a cola. A joint was a bad place to be. A Ford or Chevy
would last for ten years but now they don't. . . .
Let's go back to that time, ladies and gentlemen.
Let's go back to when life meant something. Let's go
back to that point when a man earned his keep, when a
man got a day's pay for a day's work and there was no
such thing as living behind walls, that is living
behind bars, living in fear and as Mr. Presbery said,
Ronald said, this is a bad neighborhood . . ."
It is, of course, clear that a prosecutor's comments are properly
directed to an understanding of the facts and of the law rather than to
passion and prejudice and may not appeal to the jury's fears and
emotions. Hennon v. Cooper, 109 F.3d 330, 333 (7th Cir. 1997), cert.
denied, 522 U.S. 819, 118 S.Ct. 72, 139 L.Ed.2d 32 (1997); Lesko v.
Lehman, 925 F.2d at 1545; Hance v. Zant, 696 F.2d 940, 951 (11th Cir.
1983), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393
(1983); United States ex rel Perry v. Mulligan, 544 F.2d at 680.
However, taking the foregoing remarks as a whole, which we must, we
cannot find that they are so inflammatory or prejudicial as to rise to
the level of a constitutional violation. While there may have been scant
evidentiary support for the prosecutor's exhortation to return to the
`good old days,' we are confident that the judge's admonition that the
jurors were to consider these remarks in the context of their own
recollection of the evidence presented would have been sufficient to
mitigate the limited extent to which they constituted an unnecessary
appeal to their emotions. We thus do not find that these comments rendered
the trial fundamentally unfair and habeas relief on the basis of this
portion of the prosecutor's closing shall be denied.
(d) That the prosecutor engaged in misconduct in violation of
Petitioner's constitutional rights when he used the hearsay testimony of
Rogers, Trader and Sears as substantive evidence in his closing argument
to the jury.
Again, it is axiomatic that prosecutorial misconduct does not always
warrant the granting of relief. U.S. v. Zehrbach, 47 F.3d 1252, 1265 (3d
Cir. 1995), cert. denied, 514 U.S. 1067, 115 S.Ct. 1699, 131 L.Ed.2d 562
(1995). Indeed, the Supreme Court has acknowledged that given the reality
of the human fallibility of the participants, there can be no such thing
as an error-free, perfect trial, and that the Constitution does not
guarantee such a trial. Id., citing United States v. Hasting, 461 U.S. 499,
508-509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). In deciding whether
the prosecution has improperly commented at trial, the court should look
to the overall context of the statements in the trial record. U.S. v.
Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999) citing United States v.
Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Improper
prosecutorial comments may lead the jury to infer that the prosecutor
knows undisclosed facts which he could not present to the jury. Id. See
Also: United States v. Walker, 155 F.3d 180, 186 (3d Cir. 1998).
Similarly, a prosecutor's summation should be limited to the facts in
evidence and all reasonable inferences derived therefrom. Commonwealth
v. Moretti, 358 Pa. Super. 141, 148, 516 A.2d 1222, 1225 (1986). See
Also: Stelwagon Manufacturing Co. v. Tarmac Roofing Systems, Inc.,
63 F.3d 1267, 1274 (3d Cir. 1995). Where powerfully incriminating hearsay
statements are admitted into evidence and offered again in closing
argument, the risk of prejudice is amplified. See: United States v.
Reynolds, 715 F.2d 99, 105 (3d Cir. 1983).
Here, we concluded infra that while the hearsay statements made by
Ronald Presbery to Maurice Rogers were properly admitted under the
present sense impression to the hearsay rule, the statements which
Presbery made to Stanley Trader and Clarence Sears were not. Although the
trial court did give a cautionary instruction to the jury that they were
only to consider Maurice Rogers' testimony on this point as evidence of
Mr. Presbery's state of mind at the time, the prosecutor in his closing
argument nevertheless urged the members of the jury to accept this
testimony as substantive evidence that Mr. Peterkin had a gun and the
dial to the safe, that he and Mr. Smith had been testing a gun in the
back office and that almost immediately thereafter he had locked the back
office door and driven off in John Smith's car.
Under the standards enunciated above, we could find this error to
have been harmless in and of itself. However, the prosecutor did
not stop there. Rather, he then went on to argue that:
"I would submit to you, ladies and gentlemen, that you
saw how he got the combination to that safe. You saw
the body beneath the sign and you heard Dr. Hoyer talk
about the nine shots, the nine painful shots as he lay
twitching on the floor. You think about that . . . and
"[t]he target practicing that Mr. Presbery heard was
when Mr. Smith met his end." (N.T. 9/24/82, 40-41,
Once again taking these comments and viewing them in the light of the
record as a whole, we believe it highly likely that the manner in which
the prosecutor used this evidence in his closing argument had a
substantial and injurious influence in the determination of the verdict
in this case, despite the trial judge's cautionary directives regarding
Mr. Rogers' testimony in his closing instructions. (N.T. 9/24/82, 67). So
saying, we find that habeas relief is merited on this basis as well.
(e) That the prosecutor engaged in misconduct when he vouched for
the integrity of the Commonwealth's case.
Mr. Peterkin next argues that the prosecutor acted improperly in
arguing that "[t]he experts in this case, Dr. Hoyer, Mr. Fort, they have
done everything that they can do. The detectives, the uniformed police
officers, they have done everything that they can do . . ." (N.T.
9/24/82, 36). We disagree.
Vouching constitutes an assurance by the prosecuting attorney of the
credibility of a Government witness through personal knowledge or by
other information outside of the testimony before the jury and has been
held to be impermissible. United States v. Dispoz-O-Plastics, Inc.,
172 F.3d 275, 283 (3d Cir. 1999), citing, inter alia, United States v.
Walker, 155 F.3d 180, 184 (3d Cir. 1998); United States v.
Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996). Vouching is
distinguishable from a personal opinion based on the evidence presented
at the trial. Id. See Also: United States v. Zehrbach, 47 F.3d at
In examining this portion of the prosecutor's argument in context, we
believe that it is most likely interpreted as meaning nothing more than
that at that point in time the case was then in the jury's hands: the
police investigation had been concluded, the evidence was presented and
that it was then up to the jury to decide whether it was the petitioner
who committed the crimes with which he was charged. To be sure, this
statement was immediately preceded by the prosecutor's commencement of
his closing address by stating that "[t]his is my last opportunity to
speak to you concerning the facts in the case of Commonwealth of
Pennsylvania versus Otis Peterkin, also known as Otis Loach," and was
immediately followed by his admonishment that "[i]t is now up to you. It
is now up to you to decide what happened inside of that Sunoco station."
While it is certainly possible that the jury could have construed these
remarks to mean that the Commonwealth's agents had done the best job
possible, we simply find no evidentiary support for Petitioner's argument
that these comments automatically "equated" with his guilt. Petitioner's
request for habeas relief on this ground is denied.
3. That Petitioner's constitutional rights were violated by
prosecutorial misconduct during the sentencing stage.
As noted above, Mr. Peterkin also alleges that several instances of
prosecutorial misconduct during the sentencing phase of his trial operated
to deprive him of his constitutional rights. While we previously found
prosecutorial misconduct with respect to the prosecutor's use of the
hearsay testimony as substantive evidence but no error with regard to his
use of the term "passively" at the sentencing stage (See notes 12 and
13, both supra.), we turn now to Petitioner's remaining assignments of
error on this point.
As the Third Circuit observed in Lesko v. Lehman, supra.,
The sentencing phase of a death penalty trial is one
of the most critical proceedings in our criminal
justice system. It is clearly the most critical legal
proceeding from the standpoint of the defendant whose
life is at stake. Because of the surpassing importance
of the jury's penalty determination, a prosecutor has
a heightened duty to refrain from conduct designed to
inflame the sentencing jury's passions and
925 F.2d at 1541 citing Berger v. United States, 295 U.S. 78, 88,
55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
(a) The prosecutor committed misconduct by opining to the jury as
to how the victims would have testified had they lived.
Petitioner here first argues that the prosecutor improperly opined
as to what the testimony of his best witnesses, the victims, would
have been if they had lived. The Commonwealth, in turn, contends
that this portion of Mr. King's argument was only made in response
to the defense allegation that the Commonwealth could not prove as
an aggravating circumstance that one of the victims (Presbery) was
killed to prevent him from testifying about the death of the other
victim (Smith). In reviewing the argument in light of the record
as a whole, we again cannot agree with the Commonwealth.
In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d
778 (1985), the Supreme Court noted:
It is clear that counsel on both sides of the table
share a duty to confine arguments to the jury within
proper bounds. Just as the conduct of prosecutors is
circumscribed, the interests of society in the
preservation of courtroom control by the judges are no
more to be frustrated through unchecked improprieties
by defenders. . . . Defense counsel, like the
prosecutor, must refrain from interjecting personal
beliefs into the presentation of his case. . . .
Defense counsel, like his adversary, must not be
permitted to make unfounded and inflammatory attacks
on the opposing advocate . . . .