The opinion of the court was delivered by: D. Brooks Smith, Chief United States District Judge.
MEMORANDUM OPINION AND ORDER
I. FACTS AND PROCEDURAL HISTORY
A. The Procedural Bars in Question
B. When The Alleged Default Occured
C. Was the Waiver Rule Firmly Established Between 1982 and 1994?
D. Was the One Year Limitations Period Firmly Established in 1986?
E. Conclusion to Procedural Default
V. PURSELL'S GUILT-PHASE CLAIMS
A. Trial Court's Refusal to Order Change of Venue
(a) Refusal to Presume Prejudice
(b) Refusal to Find Actual Prejudice
(3) Ineffective Assistance Claim
B. Trial Court's Denial of Challenges For Cause
(1) Ineffective Assistance Claim
(b) Challenges to Shank, Noble, Fink, and Gunther
(c) Challenges to Ott and Yaple
(d) Was Counsel Deficient In Failing to Raise Claims Concerning
Ott and Yaple?
(2) Sixth Amendment Right to Impartial Jury
(4) Trial Court's Grant of Commonwealth's Challenge for Cause
C. Prosecution's Failure to Disclose Evidence of Other Suspect
(2) Request for Evidentiary Hearing
(4) Ineffective Assistance Claim
D. Prosecutorial Misconduct
(1) Claims Relating To Testimony of Officer Mark Krahe
(a) Pursell's Invocation of Right to Counsel
(b) Testimony About Pursell's Prior Criminal Record and
Counsel's Withdrawl of Motion for Mistrial
(c) Krahe's Testimony About Conley's Accusation of Rape
(d) Krahe's Testimony That Pursell Was "Nervous"
(2) The Testimony of the Erie County District Attorney
(3) The Use of Prior Consistent Statements
(b) Prosecutorial Misconduct Claim
(c) Ineffective Assistance Claim
(4) Prosecutor's Remarks About Pursell's Appearance
(b) Admission of Evidence in Case in Chief
(c) Prosecutor's Closing Remarks
(5) Prosecutor's Reference to Personal Knowledge
(6) Prosecutor's Reference to Time of Death
(7) Cumulative Effect of Error
(a) What Errors Should Be Considered?
(b) Legal Analysis of Cumulative Claim
E. Ineffective Assistance of Counsel
(1) Counsel's Failure to Request a Jury Instruction on Good
(2) Counsel's Failure to Rehabilitate Dorothy Pursell
(3) Counsel's Failure to Object to Impeachment by Omission
(4) Counsel's Failure to Challenge Contention That Nearest Rock Was
Two Hundred Feet From Victim
(5) Counsel's Failure to Impeach Diane Walters
(6) Counsel's Failure to Rebut Claim of Premeditation
(7) Claim Based on Counsel's Cumulative Errors
F. Challenge to Jury Instructions
(1) Jury Instruction on Malice
(2) Mandatory Presumption of Malice and Intent to Kill
(3) Ineffective Assistance Claim
G. Pursell Represented Himself On His PCRA Appeal
(2) Claim is Barred By Teague
H. Challenge to Conduct of All Prior Counsel
I. Claim for Cumulative Trial Error
(1) Analyzing Claims for Cumulative Error
J. Conclusion to Guilt-Phase Analysis
VI. PURSELL'S SENTENCING-PHASE CLAIMS
A. Counsel's Failure to Investigate and Introduce Mitigating Evidence
(a) Pursell's Early Years
(b) Physical and Sexual Abuse
(c) Drug and Alcohol Abuse
(d) Psychological Impairments
(e) Kind, Loving, and Peaceful Person
(2) Expansion of the Record
(a) Counsel was Deficient
(b) Counsel's Conduct Prejudiced Pursell
B. The Trial Court's Instruction on the Meaning of Torture
(2) Clearly Established Federal Law
(3) Unconstitutionality of the Instruction
(a) Especially Heinous, Attrocious, or Cruel Manifesting
(b) Intention to Inflict Pain or Suffering
(c) Meaning of Torture Was a Moving Target
(4) Is Relief Required Under AEDPA?
(a) The Pennsylvania Supreme Court's Decision
(b) Unreasonable Application Prong
(5) Harmless Error Analysis
(6) Conclusion to Torture Challenge
On January 26, 1982, a jury empaneled by the Court of Common Pleas of
Erie County, Pennsylvania convicted petitioner, Alan Pursell, of first
degree murder in the death of thirteen year-old Christopher Brine and, in
a separate proceeding, sentenced him to death. At issue today is
Pursell's federal habeas corpus petition filed pursuant to
28 U.S.C. § 2254 (1994 & Supp. 2001). Dkt. nos. 9 & 26. In this
petition, Pursell claims that his trial and sentencing hearing were
infected with constitutional error, and he requests either a new trial
or, at a minimum, a new sentencing hearing. For the following reasons, I
will grant this petition to the extent that it seeks a new sentencing
hearing and deny it in all other respects.
I. FACTS AND PROCEDURAL HISTORY
On July 23, 1981 at approximately 6:30 p.m., thirteen year-old
Christopher Brine left his home in Wesleyville, Pennsylvania, riding his
bronze Columbia bicycle. (Tr. 1/19/82, at 101-04).*fn1 Less than
twenty-four hours later, he was found dead along a wooded area in
Lawrence Park Township. Id. at 57-61. He was naked, his face was drenched
with blood, and a twenty-five foot long tree-limb lay across his throat.
Id. at 74-75; 125-26; 134; Commonwealth v. Pursell, 495 A.2d 183, 186
(Pa. 1985) (Pursell-1). An autopsy revealed that Brine had sustained
fifteen blows to the head with a rock, and had suffered a broken nose,
internal hemorrhaging in the neck, and swollen eyes. Pursell-1, 495 A.2d
at 186; see also (Tr. 1/20/82, at 172-77, 179). The ultimate cause of
death, however, was asphyxiation as Brine's windpipe was crushed when he
was strangled with the tree-limb. (Tr. 1/20/82, at 180).
Within days of the murder, the police began to piece together evidence
that linked Alan Pursell to the crime. By the time that Pursell was tried
for Brine's murder in January of 1982, the Commonwealth's case against
him rested on four evidentiary pillars.
First, a pair of glasses was found at the murder scene. Id. at 133. An
optometrist, Dr. Moody Perry, examined these glasses and determined that
they were the same prescription and frame that he sold to Pursell a few
months before the murder. (Tr. 1/20/82, at 218-20). According to Dr.
Perry, the prescription was so rare that his office records revealed that
he had written it only once in six years. Id. at 214 & 220. On the
afternoon of July 24, 1981, hours after the murder took place, Pursell
returned to Dr. Perry's office and ordered a new pair of glasses,
that his pair had been stolen. Id. at 226-28, 239, 254-55.
Second, a number of witnesses confirmed that Pursell lost his glasses
on the very night that Brine was killed. On the night of the murder,
Pursell was living with his mother in her trailer in Wesleyville,
Pennsylvania. (Tr. 1/21/82, at 68-69). Almon Hall saw Pursell at
approximately 9:00 or 9:30 p.m. on the night of the murder at Mrs.
Pursell's trailer. Id. at 69-70. According to Hall, Pursell was not
wearing any glasses, id. at 70-71, and he looked nervous. Id. at 73. Hall
overheard Mrs. Pursell ask her son about his glasses, and Pursell said
that he lost them in a fight. Id. at 71, 73. An hour later, at
approximately 10:30 p.m., Pursell had a brief conversation with two boys
who lived next to his mother's trailer, James Lynch and Thomas Jagta.
Both boys noticed that Pursell was not wearing his glasses. Id. at 8,
26. When Lynch asked Pursell about his glasses, Pursell also told him
that he lost them in a fight. Id. Pursell mentioned as well that he hit
someone in the head with a brick during this fight. Id. 8-9, 26.
Third, Pursell made an incriminating statement to his friend, Diane
Walters. On July 27, 1981, he and Walters were watching the television
news when, out of the blue, Pursell asked if a person could be traced
through his glasses. Id. at 57-58. At the time, only the police and the
murderer himself could have known that a pair of glasses was found at the
scene of the crime because the local news media had made no such report.
(Tr. 1/20/82, at 269-71, 275); (Tr. 1/21/82, at 85-86).
Finally, a search of Pursell's trailer turned up a pair of
brown shoes that contained several small drops of blood. Although
Pursell and Brine had the same blood type, an analysis of the
isoenzymes in the blood stains showed that they were inconsistent
with Pursell's blood, but consistent with the blood chemistry of
5.5% of the population, including Brine. (Tr. 1/22/82, at 162,
Based on this and other evidence, Pursell was tried for the
murder of Christopher Brine. At trial, he contested nearly all of
the facts introduced against him.
First, he attacked the Commonwealth's theory that he lost his
glasses while murdering Brine, introducing evidence to show that
he lost them days before Brine's death. Two witnesses testified
that they saw Pursell at the optometrist's office without his
glasses on the afternoon of July 23, 1981, hours before the
alleged murder took place. (Tr. 1/25/82, at 8-11, 163).*fn2
Pursell introduced testimony to show that his conversation with
Lynch and Jagata took place on July 22, not July 23, (Tr. 1/22/82,
at 230, 232), proving, according to Pursell, that he lost his
glasses long before Brine's death. Finally, both Pursell and his
mother testified that Pursell had lost his glasses days before the
murder. (Tr. 1/25/82, at 20-24, 85-87).
Second, Pursell tried to refute the inference that Brine's
blood was on his shoes. Kathy Sheehan, who had been living with
Pursell shortly before the murder, testified that Pursell received
those shoes from the Red Cross in April 1981. (Tr. 1/22/82, at
266-67). According to the trial testimony,
the shoes contained
blood spots on them when they came from the Red Cross. Id. at 268.
Nevertheless, Pursell did not like the shoes, kept them at his
mother's house, and wore them on only one occasion. Id. at
269-70, 279; see also (Tr. 1/25/82, at 20-21, 81-82).
Finally, Pursell offered an alibi for his whereabouts during
the time of the murder. Pursell's mother testified that she was
with her son throughout the night of July 23 and into the morning
of July 24. Although Mrs. Pursell had a date on the night of July
23 with Almon Hall, she and Hall returned to the trailer around
9:30 or 10:00 p.m. where they found Pursell eating cereal. The
three chatted until Hall left at approximately 11:00 p.m. (Tr.
1/25/82, at 31-35). Mrs. Pursell and her son then talked until
12:15 p.m. when she went to bed. Mrs. Pursell, who is a light
sleeper, was up several times during the night and each time she
saw her son asleep on the couch. Id. at 37-38.
The jury rejected Pursell's account, convicted him of first
degree murder, and sentenced him to death. (Tr. 1/26/82, at 100,
151-53). On appeal, Pursell challenged his conviction and death
sentence on numerous grounds. Dkt. no. 18, at 1978. In a five to
two decision, the Pennsylvania Supreme Court rejected Pursell's
challenge and affirmed his conviction and death sentence.
Pursell-1, 495 A.2d at 198.*fn3 Pursell's conviction became
final on December 23, 1985.*fn4
Pursell subsequently filed various pleadings with the Court of Common
Pleas and the Pennsylvania Supreme Court, seeking relief under the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat.Ann.
§§ 9541 et seq. Pursell's court-appointed counsel filed a PCRA
petition ("counseled PCRA petition") that raised only three claims for
relief. Commonwealth v. Pursell, 724 A.2d 293, 300 (Pa. 1999)
(Pursell-2). In response, Pursell filed a motion requesting the
appointment of new counsel and seeking leave to supplement the counseled
PCRA petition. The trial court denied both motions and later, without
opinion, denied the counseled PCRA petition on March 23, 1993. Id. Acting
pro se, Pursell appealed the trial court's decision to the Pennsylvania
Supreme Court. In that appeal, he raised the three claims put in his
counseled PCRA petition and twenty-seven other claims. Id. Because the
trial court had never issued an opinion in the matter, the Pennsylvania
Supreme Court remanded the case so that the trial court could explain its
March 23, 1993 order. This remand occurred on January 15, 1997. Id.
After the trial court issued its opinion, the Pennsylvania
Supreme Court again took up Pursell's pro se appeal. Relying on
the original briefs filed in 1994, id. at 2257-2488, the Supreme
Court issued an opinion denying both Pursell's counseled and pro
se petitions for relief. Pursell-2, 724 A.2d at 315.*fn6
First, the court held that most of Pursell's claims were waived
because they were not raised at trial or on direct appeal. Id. at
302 n. 6, 303, 306. Second, although recognizing that Pursell
could overcome his waiver by asserting an ineffective assistance
of counsel claim, the court rejected Pursell's allegation that his
counsel was ineffective for failing to raise certain claims in the
PCRA petition. Id. at 304-313. Finally, the court reviewed the
three claims raised in the counseled PCRA petition and denied
relief on these claims on the merits. Id. at 314-315. The court
issued its opinion in Pursell-2 on January 19, 1999. On April 5,
1999, it denied Pursell's request for reargument.
On May 12, 1999, Pennsylvania Governor Thomas Ridge signed a warrant
for Pursell's execution. Within days, Pursell's lawyers entered their
appearance on his behalf in federal court and filed a motion for stay of
execution. Dkt. no. 1. On May 24, 1999, I granted the stay, dkt. no. 5,
and subsequently entered an order setting a schedule for Pursell to file
a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. no.
6. Pursell filed this petition, along with a memorandum of law, on
September 15, 1999. Dkt. no. 9.
At the same time that he was seeking habeas relief in federal court,
however, Pursell was still pursuing his remedies in the state courts. In
fact, on June 4, 1999, he filed yet another PCRA petition ("second PCRA
petition") with the Court of Common Pleas of Erie County.*fn7
Commonwealth v. Pursell, 749 A.2d 911, 912-13 (Pa. 2000) (Pursell-3).*fn8
Almost immediately, the trial court denied Pursell's request for relief.
Id. at 913. Pursell appealed the trial court's decision to the
Pennsylvania Supreme Court which affirmed on procedural grounds. In
particular, the court explained that Pursell's petition was barred by the
1995 amendments to the PCRA. See 42 Pa. Cons.Stat.Ann. § 9545(b).
Under these amendments, "[a]ny petition . . ., including a second or
subsequent petition, shall be filed
within one year of the date that
judgment becomes final . . ." Id. § 9545(b)(1). Because Pursell's
conviction became final in 1985, and he did not file the petition in
question until 1999, the court held that his petition was time barred.
Pursell-3, 749 A.2d at 219. It issued this opinion in Pursell-3 in April
After the conclusion of these state court proceedings, I ordered the
parties to file new memoranda addressing all of the legal and factual
issues in this case. At that time, Pursell raised eighteen claims for
relief, including numerous sub-claims, and sought a new trial or, at a
minimum, a new sentencing hearing. Dkt. no. 26. The Commonwealth
addressed the merits of these claims, but vigorously maintained that the
entire petition should be dismissed because it contained claims that were
unexhausted in the Pennsylvania state courts. Additionally, the
Commonwealth argued that a number of Pursell's claims were procedurally
defaulted and, thus, unreviewable in federal court. Dkt. no. 28. It is to
these procedural issues that I turn first.
The federal habeas corpus statute, 28 U.S.C. § 2254, permits a
federal court to entertain an application for habeas corpus relief from a
state prisoner "only on the ground that he or she is in custody in
violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Although the writ of habeas corpus has been
described as the "highest safeguard of liberty," Smith v. Bennett,
365 U.S. 708, 712 (1961), there are strict procedural limits on when and
how it can be entertained by a federal court. One such limitation is
known as the exhaustion requirement. As a general rule, a federal court
cannot grant a writ of habeas corpus unless "the applicant has exhausted
the remedies available in the courts of the State."
28 U.S.C. § 2254(b). This exhaustion requirement "ensures that state
courts have the first opportunity to review federal constitutional
challenges to state convictions and preserves the role of the state
courts in protecting federally guaranteed rights." Evans v. Court of
Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992).
To satisfy the exhaustion requirement, a claim need not be actually
decided by the state courts. Instead, a claim is exhausted if it was
"fairly presented" to the state courts. Id. at 1231 (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971)). This merely requires that the federal
claim is the "substantial equivalent" of the claim brought in state
court. Id. As the Third Circuit has repeatedly explained, in deciding
whether a claim was fairly presented, a district court should look to
"the substance of the claim presented to the state courts, rather than
its technical designation." Id. Even if the state court refuses to hear
the claim presented because it is time-barred or waived, the claim is
still exhausted as long as the state court is given the opportunity to
address it. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989) (holding
that presentation of an untimely petition to the state's highest court
satisfied the exhaustion requirement).
Only one of Pursell's claims merits any discussion on the exhaustion
issue. He asks this court to vacate his death sentence because the
Pennsylvania Supreme Court conducted what he calls an "arbitrary
proportionality review" that violated his rights under the United States
Constitution. Dkt. no. 26, Claim 14, at 206. At the time of his
conviction, the Pennsylvania Supreme Court was statutorily required to
conduct a proportionality review in all death penalty cases. See 42 Pa.
Cons.Stat.Ann. § 9711(h)(3)(iii) (1985). Under this review, the
Supreme Court had to vacate any death sentence if it was "excessive or
disproportionate to the penalty imposed in similar cases . . ." Id. In
Pursell-1, the Pennsylvania Supreme Court performed this proportionality
review and concluded that Pursell's sentence was not excessive or
disproportionate in relation to the sentences of others convicted of
first-degree murder. Pursell-1, 495 A.2d at 197-98. Today, Pursell
challenges the Pennsylvania Supreme Court's proportionality review,
calling it arbitrary and unconstitutional. Dkt. no. 26, at 206-220.
While Pursell did not explicitly raise this issue in state court, the
state court nevertheless decided it in two ways. First, to affirm
Pursell's conviction on direct review, the Pennsylvania Supreme Court had
to necessarily decide the question presented by Pursell in this case.
Pursell-1, 495 A.2d at 197-98. Indeed the same statute that required the
court to perform a proportionality review also stated that a death
sentence could not be affirmed if it was "arbitrary." 42 Pa.
Cons.Stat.Ann. § 9711(h)(3)(i). The Supreme Court clearly determined
that the proportionality review in Pursell's case was not "arbitrary," as
Pursell now claims, or it could not have affirmed his sentence. Second,
in a recent decision, the Pennsylvania Supreme Court explained that it
implicitly resolves all constitutional issues concerning the application
of proportionality review when it performs that review on direct appeal.
In Commonwealth v. Albrecht, 720 A.2d 693, 708 (Pa. 1998), the court
confronted a challenge to its proportionality review that is identical to
the one in the present case. It rejected the constitutional challenge
with no discussion, stating only that the issue was "previously
litigated" when it "fulfilled its statutory obligation to review
[defendant's] sentence for proportionality and ruled against him." Id.
The exhaustion doctrine simply does not require a litigant to present an
issue that the state court has already decided.
Even if the exhaustion doctrine did require such an odd result, I would
excuse Pursell's failure to exhaust this claim because exhaustion would
be futile. The Third Circuit has explained that "`[f]utility' exists
where . . . `a state's highest court has ruled unfavorably on a claim
involving facts and issues materially identical to those undergirding a
federal habeas petition and there is no plausible reason to believe that
a replay will persuade the court to reverse its field.'" Lines v.
Larkins, 208 F.3d 153, 162 (3d Cir. 2000) (quoting Allen v. Attorney
General of Maine, 80 F.3d 569, 573 (1st Cir. 1996)); see also Lynce v.
Mathis, 519 U.S. 433, 436 n. 4 (1997) (holding that "exhaustion would
have been futile" because the Florida Supreme Court previously rejected
the same claim in other cases and counsel for the state had "not
suggested any reason why the Florida courts would have decided
petitioner's case differently.").
Just such a situation is present in Pursell's case. Repeatedly over the
past few years, the Pennsylvania Supreme Court has rejected identical
constitutional challenges to its proportionality review. In Commonwealth
v. Gribble, 703 A.2d 426, 441 (Pa. 1997), the court held that there was
nothing "arbitrary or capricious" in the Pennsylvania scheme. Id. A
year later, in Albrecht, it again rejected a constitutional challenge to
its proportionality review. Albrecht, 720 A.2d at 708. Finally, in
early 1999, it rejected the same constitutional challenge, holding that
it found "nothing in Appellant's argument which persuades us that our
reasoning in Gribble was incorrect." Commonwealth v. Porter, 728 A.2d 890,
901 (Pa. 1999). To force Pursell to raise a constitutional challenge
identical to one that has been repeatedly rejected by the Pennsylvania
Supreme Court would require him to perform a "futile act." Allen, 80
F.3d at 573. The exhaustion doctrine does not require such meaningless
gestures. "After all, it is the legal issues that are to be exhausted,
not the petitioner." Story v. Kindt, 26 F.3d 402, 406 n. 8 (3d Cir.
1994) (citations omitted).*fn9
The Commonwealth's second procedural attack is based on the doctrine of
procedural default. It is well-established that a state court decision
resting on an independent and adequate state procedural rule is barred
from review in the federal courts. Wainwright v. Sykes, 433 U.S. 72, 81,
86-87 (1977). Known as procedural default, this doctrine is "grounded in
concerns of comity and federalism," Coleman v. Thompson, 501 U.S. 722,
730 (1991), and it bars federal habeas review whenever the petitioner has
failed to comply with the state's procedural rules, whether this failure
occurred at trial, on appeal, or during post-conviction review. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). Only in the rare instance where
the petitioner can demonstrate "cause" for not following the state
procedural rule and "prejudice" resulting from application of the
procedural bar will a federal habeas court review the merits of the
petitioner's claim. Sykes, 433 U.S. at 87.
Before a state procedural rule can act as a bar to relief in federal
court, however, it must be both "independent" of federal law and
"adequate." Coleman, 501 U.S. at 729; Szuchon v. Lehman, 273 F.3d 299,
325 (3d Cir. 2001); Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir. 2001). The
Pennsylvania Supreme Court's procedural rules were independent and,
thus, I turn to whether those rules were "adequate." A state procedural
rule is "adequate" only if it is "firmly established and regularly
followed" at the time
that the alleged procedural default occurred. Ford
v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky,
466 U.S. 341, 348-51 (1984)); see also Edwards, 529 U.S. at 455 (Breyer,
J., concurring). The United States Supreme Court explained this
requirement in Ford v. Georgia. In that case, the Georgia Supreme Court
applied a state procedural rule adopted in 1987 in the case of State v.
Sparks, 355 N.E. 658, 659 (Ga. 1987) to bar defendant's claim, even though
defendant's alleged default took place in 1984, three years before the
Sparks rule was even in effect. The United States Supreme Court rejected
the Georgia Court's attempt to bar petitioner's federal claim.
The Supreme Court of Georgia's application of its
decision in Sparks to the case before us does not even
remotely satisfy the requirement of James that an
adequate and independent state procedural bar to the
entertainment of constitutional claims must have been
`firmly established and regularly followed' by the
time as of which it is to be applied . . . . Sparks
was decided more than two years after petitioner in
this case filed his motion on the prosecution's use of
peremptory challenges and long after petitioner's
trial was over.
Ford, 498 U.S. at 424. As the Court further explained, to apply the
Sparks rule "retroactively to bar consideration of [petitioner's] claim
. . . would therefore apply a rule unannounced at the time of
petitioner's trial and consequently inadequate to serve as an independent
state ground within the meaning of James." Id.
Cases in the Third Circuit have also held that a state procedural rule
is not adequate to bar federal habeas relief unless it was firmly
established at the time the alleged default occurred. Doctor v. Walters,
96 F.3d 675, 686 (3d Cir. 1996); Reynolds v. Ellingsworth, 843 F.2d 712,
722 (3d Cir. 1988); Szuchon, 273 F.3d at 325-26. In Doctor v. Walters,
for instance, the Third Circuit reviewed the petition of Gary Lee
Doctor. Doctor escaped from state custody in June 1986. In August of
that same year, the state trial court entered a guilty verdict against
Doctor without ever informing him or his attorney. In 1992, Doctor was
rearrested and sentenced. Soon after his sentencing, Doctor filed an
appeal to the Pennsylvania Superior Court, but the Court quashed the
appeal in 1993, relying on a procedural rule that required dismissal of
all claims brought by a recaptured fugitive. Doctor, 96 F.3d at 684.
According to the Superior Court, it had no discretion to hear Doctor's
In reviewing Doctor's petition for habeas corpus, the Third Circuit
held that the state's procedural rule was not adequate to bar habeas
relief. First, the Court explained that a state procedural rule only
bars federal review if it is "firmly established and regularly applied."
Id. at 684 (quoting Ford, 498 U.S. at 423-24)). Second, the Court said
that the relevant time period for deciding whether the procedural rule
was firmly established was not "1993 when the Superior Court relied on
it, but rather . . . the date [that] the waiver . . . allegedly occurred
when Doctor escaped in 1986." Id. at 686. After a detailed review of
the Pennsylvania case law in existence in 1986, the Third Circuit
concluded that "it was not `firmly established' that Pennsylvania courts
lacked the discretion to hear an appeal first filed after custody had
been restored." Id. at 686. Accordingly, "the state courts in this case
did not rely on an `adequate' procedural rule to deny petitioner review
of his appeal on the merits."
As the Third Circuit's analysis in Doctor demonstrates, a federal
district court analyzing whether a state procedural rule bars federal
habeas relief must undergo a multi-part inquiry. First, it must define
the state procedural rule that was allegedly violated. Second, it must
identify when, precisely, the alleged default occurred. Finally, it must
review the state court decisions prior to the time of the alleged default
to determine whether the procedural rule in question was firmly
established and consistently applied at that time. Bronshtein v. Horn,
Civil Action No. 99-2186, 2001 WL 767593, *5 (E.D.Pa. July 5, 2001). In
applying this analysis to the present case, I conclude that Pursell's
claims are not procedurally defaulted.
A. The Procedural Bars in Question
There are two alleged procedural bars at issue in the present case.
First, in Pursell-2, the Pennsylvania Supreme Court refused to address
some of the claims raised in Pursell's pro se PCRA petition, holding that
these claims were waived because they were not raised at trial or on
direct appeal. Pursell-2, 724 A.2d at 302 n. 6, 303, 306. Under this
rule, claims that were not properly raised at trial or on direct appeal
were waived. Id. The second procedural bar relied on by the Pennsylvania
Supreme Court was a statute of limitations. In Pursell-3, the Court held
that Pursell's second PCRA petition was barred by the PCRA's one-year
statute of limitations. Pursell-3, 749 A.2d at 913. Under 42 Pa.
Cons.Stat.Ann. § 9545(b), any PCRA petition must be filed "within one
year of the date that judgment becomes final." Id. Pursell's conviction
and death sentence became final in 1985, but his second "PCRA petition
was filed in 1999, more than one year from the date that his judgment of
sentence became final . . ." Pursell-3, 749 A.2d at 913. Accordingly,
the Court held that Pursell's second PCRA petition was time-barred.
B. When The Alleged Default Occurred
Pursell's second alleged procedural lapse is easier to place in time.
In fact, in Pursell-3, the Pennsylvania Supreme Court identified
precisely when the alleged procedural default occurred in that case.
Direct review of [Pursell's] conviction expired in
1985 when [Pursell] failed to seek review in the
United States Supreme Court of our decision affirming
[his] conviction and death sentence. [Pursell's]
present PCRA petition was filed in 1999, more than one
year from the date that his judgment of sentence
became final and therefore not in compliance with the
general one-year time limitation of 42 Pa.C.S. §
Pursell-3, 749 A.2d at 913. By pinpointing the expiration of Pursell's
conviction in 1985, and holding that he had only one year from that date
to file his petition, the Supreme Court clearly points to 1986 as the
year when Pursell's procedural default occurred. Accordingly, my inquiry
must focus on the state of the PCRA one-year limitations period in 1986.
The only remaining question is whether the procedural rules used to bar
Pursell's claims in Pursell-2 and Pursell-3 were "firmly established and
regularly followed," James, 466 U.S. at 348-51, at the time when the
alleged defaults occurred.
C. Was the Waiver Rule Firmly Established Between 1982 and 1994?
The waiver rule applied in Pursell-2 was not "firmly established and
regularly followed," James, 466 U.S. at 348-51, until 1998, many years
after the alleged default in this case occurred. This waiver rule has its
root in the language of the PCRA. 42 Pa. Cons.Stat.Ann. § 9544(b)
(stating that an issue is waived "if the petitioner failed to raise it
and if it could have been raised before the trial, at the trial, on
appeal, in a habeas corpus proceeding or other proceeding actually
conducted"). Nonetheless, between 1978 and 1998, the Pennsylvania Supreme
Court simply did not adhere to this provision in capital cases. In
Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978), for instance, the Court
stated that it had a "duty to transcend procedural rules" in death
penalty cases because procedural rules "cannot be exalted to a position so
lofty as to require this Court to bind itself to the real issue —
the propriety of allowing the state to conduct an illegal execution of a
citizen." Id. at 181. The doctrine set forth in McKenna became known as
the "relaxed waiver rule." Under this rule, the Pennsylvania Supreme
Court reviewed the merits of all claims raised in capital cases, whether
on direct appeal or in post-conviction proceedings, regardless of any
alleged waiver by the defendant.*fn11 By 1997, the relaxed waiver
was so well established that even the Third Circuit concluded that the
Pennsylvania Supreme Court had a "practice of reaching the merits of
claims in PCRA petitions in capital cases regardless of the failure of
the petition to meet the appropriate procedural criteria." Banks v.
Horn, 126 F.3d 206, 214 (3d Cir. 1997).
The relaxed waiver rule was firmly in place when Pursell's trial was
conducted in 1982 and when his conviction was affirmed in 1985. See
supra n. 11. In 1991, when he filed his first PCRA petition with the
Court of Common Pleas, the relaxed waiver rule was firmly entrenched in
Pennsylvania jurisprudence. Id. In 1993, when Pursell filed the appeal
of the denial of his first PCRA petition, dkt. no. 19, at 2257-2488, the
relaxed waiver rule remained fixed in Pennsylvania law. See supra n.
11. Finally, in 1997, when Pursell sought to amend his PCRA petition to
add new claims, the relaxed waiver rule was "generally applie[d] . . .
because of the permanent and irrevocable nature of the death penalty."
Brown, 711 A.2d at 455; see also supra n. 11.
In 1998, while Pursell's first PCRA petition was pending before the
Pennsylvania Supreme Court, however, the rules changed. In Commonwealth
v. Albrecht, the Pennsylvania Supreme Court was urged, once again, to
apply its relaxed waiver rule to issues raised for the first time in
petitioner's PCRA petition. Albrecht, 720 A.2d at 700. The Court
refused. "While it has been our `practice' to decline to apply ordinary
waiver principles in capital cases, we will no longer do so in PCRA
appeals." Id. (internal citations omitted). Recognizing that the
"negligible benefits" from applying the relaxed waiver doctrine to PCRA
appeals was "outweighed by the need for finality and efficient use of
[its] resources," the Supreme Court abandoned the relaxed waiver rule on
PCRA appeals. Id. The Albrecht decision was handed down on November
23, 1998, id. at 693, and used to bar certain of Pursell's claims in
January of 1999, Pursell-2, 724 A.2d at 293.*fn12
D. Was the One-Year Limitations Period Firmly Established in 1986?
I reach the same conclusion with the limitations period used to bar
Pursell's claims in Pursell-3. In 1995, the Pennsylvania legislature
amended the PCRA to add a one-year statute of limitations for all
petitions filed under the Act. 42 Pa. Cons.Stat.Ann. § 9545(b). As
one commentator has stated, these 1995 amendments to the PCRA "were not
written on a blank slate." Natali, New Bars in Pennsylvania, 73 Temp. L.
Rev. at 101. Instead, they were written against the backdrop of the
well-established relaxed waiver doctrine. Id. Accordingly, even when
the statute of limitations was added to the PCRA in 1995, many believed
that the Pennsylvania Supreme Court simply would not follow it in capital
The Third Circuit took this view. In Banks v. Horn, the Court held
that the relaxed waiver rule applied to a petition by a capital defendant
filed outside the statute of limitations. Banks, 126 F.3d at 214. While
the Commonwealth argued that Banks' claim was barred by the clear
language of the 1995 PCRA amendment, the Third Circuit rejected this
While it is true that the text of the 1995 PCRA
amendments supports these contentions, it is not clear
that these amendments are dispositive. The
Commonwealth does not refer us to a Pennsylvania
Supreme Court case applying the PCRA as amended in
1995 to support its view. . . . [T]he Pennsylvania
Supreme Court seems to exercise strong control of
procedures in death penalty cases.
In the circumstances, we are not confident that the
Pennsylvania Supreme Court, even in the face of the
1995 amendments to the PCRA, will abandon its practice
of reaching the merits of claims in PCRA petitions in
capital cases regardless of the failure of the
petition to meet the appropriate procedural
Id. As of 1997, whether the Pennsylvania Supreme Court would follow the
limitations period in the PCRA was simply unclear. Id.; see also Peterkin
v. Horn, 30 F. Supp.2d 513, 519-20 (E.D.Pa. 1998) ("it is virtually
impossible for this Court to definitively predict" if the PCRA statutory
time limits will be applied to capital cases); Crawley v. Horn,
7 F. Supp.2d 587, 588 (E.D.Pa. 1998) (PCRA statutory time bar may be
overcome by capital case relaxed waiver rule); Jermyn, 266 F.3d at
In late 1998, however, the Pennsylvania Supreme Court ruled for the
first time that it would follow the PCRA limitations period in capital
cases. In Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), the Court
dismissed a capital defendant's second PCRA petition as untimely under
the PCRA's statute of limitations. Id. at 642. Because Peterkin failed
to file his petition by 1988, a year after his conviction became final,
he was barred under the PCRA. Id. at 641. Nonetheless, the Court's
decision in Peterkin did not address whether the relaxed waiver rule
applied. See Banks v. Horn, 271 F.3d 527, 532 (3d Cir. 2001). Indeed, as
the Third Circuit has explained, "the Pennsylvania
Supreme Court did not
clarify that the state PCRA statute was jurisdictional and not waivable
until 1999 in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999)."
Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001). In Banks, the
Pennsylvania Supreme Court addressed for the first time the relationship
between the relaxed waiver doctrine and the PCRA time-limitations,
holding that "the issue here is one of jurisdiction and not waiver."
Banks, 726 A.2d at 376. Accordingly, it was not until March 2, 1999, the
date that the Banks decision was handed down, that Pursell was put on
notice that he had to comply with the PCRA's one-year limitations
period. Banks, 726 A.2d at 374.
Once again, the rule applied by the Supreme Court to bar Pursell's
claims was not "firmly established and regularly followed" at the time of
Pursell's alleged default. According to the Court in Pursell-3, Pursell
was required to file his PCRA petition by 1986, within one year of the
date his conviction became final. Pursell-3, 749 A.2d at 913. However,
that limitations period did not exist at the time that Pursell was
supposed to comply with it. Once again, the law changed midstream and
these changes were applied retroactively to bar merits review of a number
of Pursell's claims. Such a retroactive application of a procedural rule
is simply inadequate to bar relief in federal court. Ford, 498 U.S. at
The fact that Pursell did not file his second PCRA petition until June
1999, three months after the decision in Banks, does not alter my
conclusion in this case. On at least two occasions before the Banks
decision, Pursell tried to amend his first PCRA petition by adding new
claims. Pursell-2, 724 A.2d at 300-301. Both attempts were rejected by
the trial court. To make matters worse, Pursell was barred under
Pennsylvania law from filing a second petition in which he could raise
these new claims until his first petition was resolved. Whitney v.
Horn, 170 F. Supp.2d 492, 499 (E.D.Pa. 2000); Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000). Had the trial court permitted Pursell to
amend his first petition, it might have obviated the need for a second
one. Nonetheless, the trial court's refusal left Pursell with a classic
Hobson's choice: he was free to raise any claims he wanted, at any time,
Fahy, 240 F.3d at 245; Banks, 271 F.3d at 53; Bronshtein, 2001 WL
767593, at *8-10, but he could only raise them in a second petition, and
only after his first petition was resolved. Whitney, 170 F. Supp.2d at
499. Accordingly, Alan Pursell had to wait, and while he waited, the law
in Pennsylvania changed, and his window for asserting new claims quickly
closed.*fn13 Under such unique circumstances, I conclude that
Pennsylvania's one-year statute of limitations does not act as an
adequate bar to Pursell's federal claims. See Whitney, 170 F. Supp.2d at
E. Conclusion to Procedural Default
With the procedural issues put to rest, only one preliminary matter
remains: the standard of review in cases brought under
28 U.S.C. § 2254. Pursell filed his petition for habeas corpus
relief after April 24, 1996, the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132 §
104, 110 Stat. 1214, so that statute applies to his case. See Lindh v.
Murphy, 521 U.S. 320, 326-27 (1997). Of particular importance in this
case is § 2254(d) which creates a deferential standard of review for
federal habeas corpus petitions. This section provides in relevant part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.
28 U.S.C. § 2254(d)(1). The United States Supreme Court interpreted
this standard for the first time in Williams v. Taylor, 529 U.S. 362
(2000). Subsequently, in Hameen v. State of Delaware, 212 F.3d 226, 235
(3d Cir. 2000), the Third Circuit set forth how a district court should
proceed when reviewing a habeas petition under § 2254(d)(1).
First, the court must decide exactly what is clearly established law
determined by the Supreme Court in the case at hand. Williams, 529 U.S.
at 390; see also Hameen, 212 F.3d at 235. The Supreme Court provided
some guidance on this issue in its Williams decision. The phrase
"clearly established Federal law" "refers to the holdings, as opposed to
the dicta," of Supreme Court opinions at the time that the state court
conviction became final. Williams, 529 U.S. at 390 ("[t]he threshold
question under AEDPA is whether Williams seeks to apply a rule of law
that was clearly established at the time his state-court conviction
became final."). Nonetheless, even Supreme Court decisions rendered after
the petitioner's conviction became final can be considered "clearly
established Federal law" if those decisions would have been considered
"old rules" under Teague v. Lane, 489 U.S. 288 (1989). See Moore v.
Morton, 255 F.3d 95, 104-05 (3d Cir. 2001) (quoting Williams, 529 U.S. at
Under the "unreasonable application" clause, a federal habeas court may
grant the writ even if the state court identifies the correct legal
principle, as long as the court unreasonably applies that principle to the
facts of the case. Williams, 529 U.S. at 413. The Third Circuit
explained how a district court should apply this prong of §
2254(d)(1) in Hameen:
The "unreasonable application" inquiry requires the
habeas court to "ask whether the state court's
application of clearly established federal law was
objectively unreasonable." Thus, under the
"unreasonable application" clause, "a federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the
relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable."
Hameen, 212 F.3d at 235 (quoting Williams, 529 U.S. at 418-411).*fn15
While the Williams decision concerned only those instances when §
2254(d)(1) obviously applies, the clear language of that section suggests
that it does not apply to all cases. The introductory sentence of §
2254(d)(1) explicitly limits deferential review to only those claims that
were "adjudicated on the merits in State court proceedings."
42 U.S.C. § 2254(d)(1). "It follows that when, although properly
preserved by the defendant, the state court has not reached the merits of
a claim thereafter presented to a federal habeas court, the deferential
standards provided by AEDPA and explained in Williams do not apply."
Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). In such cases, the
court should exercise "pre-AEDPA independent judgment" on those claims.
Hameen, 212 F.3d at 248; see also Appel, 203 F.3d at 210.
Prior to the passage of AEDPA, pure questions of law and
mixed-questions law and fact were reviewed de novo by district courts.
Appel, 250 F.3d at 210; Williams, 529 U.S. at 400-402 (O'Connor, J.,
concurring) (noting that before AEDPA, federal courts exercised
independent judgment when deciding both questions of constitutional law
and mixed constitutional questions, i.e, application of law to fact).
Nonetheless, the state court's factual findings are still presumed
correct, and the petitioner has the burden of rebutting this presumption
by clear and
convincing evidence. Appel, 250 F.3d at 210 (citing
28 U.S.C. § 2254(e)(1)).
With these legal standards in mind, I now turn to the merits of
V. PURSELL'S GUILT-PHASE CLAIMS
Pursell raises numerous claims for relief from his conviction for
first-degree murder. As so often occurs when a third party
retrospectively examines a trial record, many aspects of Pursell's trial
give me pause. Had I presided over his case, I might have ruled
differently than the trial court did on certain objections; and had I
represented Pursell, I might have raised certain objections that went
unraised, explored certain avenues that went unexplored, and asked
certain questions that went unasked. But I did not participate in this
case, and cannot on a petition for habeas relief impose my personal
predilections on a trial that occurred nearly twenty years ago. Errors
were committed during the guilt-phase of Pursell's trial, but proof of
error, standing alone, is not sufficient to merit relief on a petition
for habeas corpus. Instead, Pursell must show that these errors, either
separately or cumulatively, rose to the level of a constitutional
violation. In the present case, he has failed to make such a showing,
and I will deny his request for habeas relief.
A. Trial Court's Refusal to Order Change of Venue
Pursell first claims that he was denied his right to an impartial jury
when the trial court denied his repeated requests for a change of venue
due to highly prejudicial pretrial publicity.*fn16 The Pennsylvania
Supreme Court denied this claim in Pursell-1, 495 A.2d at 187-89, giving
two reasons. First, it held that any prejudice against Pursell created by
the media coverage in July 1981 had "dissipate[d]" by the time Pursell
was tried in January 1982. Id. at 188. Second, it carefully reviewed
the 900 pages of jury voir dire and concluded that neither the veniremen
nor the sixteen individuals actually chosen for the jury were affected by
the pretrial publicity. Id. at 188-89. Because this decision was
neither "contrary to" nor "an unreasonable application of" "clearly
established Federal law," 28 U.S.C. § 2254(d)(1), I will deny
Pursell's claim for relief.
Before delving into the merits of Pursell's claim, I will briefly
outline the extent of the pretrial publicity at issue in this case.*fn17
There was regular media coverage of Brine's murder for a number of days
in late July 1981. Dkt. no. 10, Ex. 10; dkt. no. 26, at 84-89. From
these early reports, four kinds of stories emerged that were potentially
prejudicial to Pursell.
First, a number of newspaper articles raised speculation that Brine had
been sexually assaulted by the murderer. Dkt. no. 10, Ex. 10 (Erie
Times-News, 7/25/81; Erie Times-News, 7/26/81; Erie Daily Times,
7/27/81). In fact, one investigator said that "[t]his appears to be a
fiendish sex crime killing." Id. (Erie Times-News, 7/26/81).
Nevertheless, after Pursell was arrested, the police stated that
"[a]lthough there has been much speculation of a sex-based crime. . . .,
[r]ight now we don't know that it was a sex crime." Id. (Erie Morning
News, 7/29/81). Ultimately, Pursell was not charged with any kind of
sexual assault, and the newspapers reported this fact, indicating that
the only charge against him was murder. Id. (Erie Daily Times,
Second, newspaper articles and television broadcasts showed Pursell
handcuffed on a number of different occasions. For example, an August
11, 1981 front-page article in the Local section of the Erie Daily Times
showed a picture of Pursell in handcuffs. Id. The caption of the
picture noted that the statement "Born To Raise Hell" was tattooed on
Pursell's bicep. Id. Television broadcasts showed Pursell in handcuffs a
number of times as well. Dkt. no. 26, at 87.
Third, some stories inferred that Pursell might be guilty of the Brine
killing. On July 30, 1981, WJET-TV ran a report during its 6:00 p.m.
newscast in which several residents of the Wesleyville/Lawrence Park area
made accusations of guilt against Pursell. Id. During one television
broadcast, Pursell's neighbors called him "weird" and a "wild man."
Dkt. no. 18, at 1882. One person even accused him of brandishing a gun
in the neighborhood. Id. Additionally, on August 14, 1981, the Erie
Daily Times ran an article on the front page of its Local section
entitled, "How does it feel to be the mother of murderer?" Dkt. no. 10,
Ex. 10 (Erie Daily Times, 8/14/81). Despite its unfortunate title, the
text of the article focused on Mrs. Pursell's view that her son was
innocent. Id. Finally, the local media ran a number of stories about
how Pursell's glasses were found at the murder scene, id. (Erie Daily
Times, 7/28/81; Erie Morning News, 7/29/81), suggesting that Pursell was
at the scene of the murder.
Finally, and most troubling, newspaper accounts and television
broadcasts detailed Pursell's record of prior offenses. A July 28, 1981
article in the Erie Daily Times was entitled "Pursell has record of
offenses." Id. (Erie Daily Times, 7/28/81). Beginning on the front
page, and highlighted by a star, this article detailed Pursell's past
criminal record. In addition, the article excerpted a letter to a state
court judge that Pursell himself had written while in prison. "I want to
try to straighten my life out, I don't want to have to be in jails the
rest of my life [because] of the things I do while I'm drinking or on
drugs." Id. The article also explained that Pursell's record did "not
involve violent or sex crimes." Id. Around the same time, a television
broadcast "also pointed out that [Pursell] had spent 1 1/2; years in
prison for a stabbing," an incorrect statement. Dkt. no. 18, at 1882.
After this initial flurry of articles appearing around the time of
Pursell's arrest, the coverage of the Brine killing slowed down
considerably. A few articles appeared in the middle of August, at the
time of the preliminary hearing, and some more, mostly factual in
nature, ran when Pursell plead not guilty in October 1981, dkt. no. 10,
Ex. 10 (Erie Morning News, 10/8/81; Erie Daily Times, 10/8/81), when the
court denied Pursell's pretrial motions in November, 1981, id. (Erie
Daily Times, 11/3/81), and when the prosecution decided to seek the death
penalty. Id. (Erie Daily Times, 11/7/81). Finally, in January 1982, when
the trial commenced, media coverage resumed, but it was strictly factual
in nature. Dkt. no. 27, Ex. J.
The threshold question under AEDPA is whether Pursell seeks to apply a
rule of law that was clearly established on December 23, 1985, the date
his state court conviction became final. Williams, 529 U.S. at 390. That
question is easily answered because Pursell's change of venue claim is
governed by a series of cases, all decided by 1985, in which the Supreme
Court held that the
due process clause of the Fourteenth Amendment
guarantees a criminal defendant the right to "a trial by an impartial
jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333,
362 (1966); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961); Rideau v.
Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965);
Murphy v. Florida, 421 U.S. 794 (1975); Patton v. Yount, 467 U.S. 1025
(1984). As these cases hold, when prejudicial pretrial publicity wholly
undermines the impartiality of the jury, the trial court should take
steps to assure a fair trial, usually by granting a change of venue.
Sheppard, 384 U.S. at 363; Rideau, 373 U.S. at 723.
In some cases, adverse pretrial publicity is so extreme that the court
will presume prejudice to the defendant. Irvin, 366 U.S. at 723;
Patton, 467 U.S. at 1031. "Where media or other community reaction to a
crime or a defendant engenders an atmosphere so hostile and pervasive as
to preclude a rational trial process, a court reviewing for
constitutional error will presume prejudice to the defendant without
reference to an examination of the attitudes of those who served as the
defendant's jurors." Rock v. Zimmerman, 959 F.3d 1237, 1252 (3d Cir.
1992), overruled on other grounds Brecht v. Abrahamson, 507 U.S. 619
(1993); see also Sheppard, 384 U.S. at 333; Rideau, 373 U.S. at 723.
Such cases, however, are "exceedingly rare." Rock, 959 F.3d at 1253;
Flamer v. Delaware, 68 F.3d 736, 754 (3d Cir. 1995). In fact, for a
court to presume prejudice, "the community and media reaction . . . must
have been so hostile and so pervasive as to make it apparent that even
the most careful voir dire process would be unable to assure an impartial
jury." Rock, 959 F.3d at 1252.
In the absence of facts that demonstrate a presumption of prejudice, a
defendant must prove actual prejudice, that is, that those who served on
his jury could not reach an impartial verdict based solely on the
evidence presented at trial. Patton, 467 U.S. at 1035 (citing Irvin, 366
U.S. at 723); Rock, 959 F.2d at 1253.
It is not required . . . that jurors be totally
ignorant of the facts and issues involved. In these
days of swift, widespread and diverse methods of
communication, an important case can be expected to
arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as
jurors will not have formed some impression or opinion
as to the merits of the case. This is particularly
true in criminal cases. To hold that the mere
existence of any preconceived notion as to the guilt
or innocence of an accused, without more, is
sufficient to rebut the presumption of a prospective
juror's impartiality would be to establish an
impossible standard. It is sufficient if the juror
can lay aside his impression or opinion and render a
verdict based on the evidence presented in court.
Irvin, 366 U.S. at 722-23 (emphasis added). To determine whether
actual prejudice exists, the court should look to the totality of
the circumstances, including the voir dire of the jury. Murphy,
421 U.S. at 799-801.
Having set forth the clearly established federal law, the next question
is whether the Pennsylvania Supreme Court's decision in Pursell-1 was
either "contrary to" or "an unreasonable application of" that
Pursell admits that the Court's decision was not "contrary to" "clearly
established Federal law." Dkt. no. 26, at 94. This is a wise
concession. In rejecting Pursell's claim, the Pennsylvania Court relied
on Commonwealth v. Casper, 392 A.2d 287 (Pa. 1978), a case that properly
recognized Irvin, Rideau, Sheppard, and Murphy as setting forth the
guiding principles for claims concerning prejudicial pretrial publicity.
In the present case, this is sufficient to pass muster under §
2254(d)(1)'s "contrary to" standard. Williams, 529 U.S. at 406.
Therefore, the only issue before me is whether the Pennsylvania Supreme
Court's decision was an "unreasonable application of" this clearly
(a) Refusal to Presume Prejudice
In refusing to presume prejudice, the Pennsylvania Supreme Court relied
on a "six month `cooling off period'" between the time when the alleged
prejudicial coverage was released and Pursell's trial. Pursell-1, 495
A.2d at 188. Acknowledging that some of the coverage "may establish
prejudice," id., the Court nonetheless held that the "`cooling off period'
was sufficient to dissipate the prejudice, if any, engendered by the
July, 1981, publicity." Id. Pursell claims that the Pennsylvania
Court's reliance on this "cooling-off period" was an "unreasonable
application" of Supreme Court precedent. For two reasons, I disagree.
First, the United States Supreme Court has explained that, even when
pretrial publicity is extensive and severe, a lapse in time between the
publicity and the trial can dissipate any prejudice that may have
resulted. In Murphy, for instance, the Court held that extensive media
coverage of the defendant's prior crimes did not amount to prejudice,
particularly since the publicity had stopped seven months before jury
selection. Murphy, 421 U.S. at 802. In Patton, the Court found no
prejudice when the extensive and prejudicial media coverage occurred four
years before the trial itself. During that time, "the community
sentiment had softened." Patton, 467 U.S. at 1034. "That time soothes
and erases is a perfectly natural phenomenon, familiar to all," the
Patton Court explained.
The relevant question is not whether the community
remembered the case, but whether the jurors at Yount's
trial had such fixed opinions that they could not
judge impartially the guilt of the defendant. It is
not unusual that one's recollection of the fact that a
notorious crime was committed lingers long after the
feelings of revulsion that create prejudice have long
passed. . . . [I]t is clear that the passage of time
. . . can be a highly relevant fact. In the
circumstances of this case, we hold that it clearly
rebuts any presumption of partiality or prejudice that
existed at the time of the initial trial.
Id. at 1035 (emphasis added) (internal citations omitted); see also
Flamer, 68 F.3d at 755 (refusing to presume prejudice when there was a
lapse of eight months between the publication of the last newspaper story
on which the defendant relied and the start of jury selection); see also
Jacobs v. Horn, 129 F. Supp.2d 390, 411 (M.D.Pa. 2001) (refusing to
presume prejudice when, among other things, the articles in question ran
seven months before the trial). Thus, the Pennsylvania Supreme Court's
reliance on a "cooling off period" was perfectly appropriate under
Second, there is ample support for the Pennsylvania Supreme Court's
conclusion that the "cooling off period" had an effect in the present
case. For one, as the Pennsylvania Court correctly noted, the media
coverage in Pursell's case was "not extensive,
sustained, or pervasive."
Pursell-1, 495 a.2d at 189. Instead, it involved but a few stories, most
of which ran nearly six months before trial. Id. at 188. Second, when
questioned during voir dire, most jurors only vaguely recalled these
media reports, and none of them had a fixed opinion of Pursell's guilt.
Pursell-1, 495 A.2d at 188-89. In Pursell's case, "the passage of time"
was a "highly relevant fact," Patton, 467 U.S. at 1035, and the
Pennsylvania Supreme Court was absolutely correct to rely on it.
Even without the passage of time, however, the publicity in Pursell's
case was still far from the kind of "trial atmosphere . . . utterly
corrupted by press coverage," Murphy, 421 U.S. at 799, that the United
States Supreme Court has required before attaching a presumption of
prejudice. In Sheppard, for instance, prejudicial publicity about the
murder of Marilyn Sheppard ran all the way through trial and spanned five
volumes in the Supreme Court's record. Sheppard, 384 U.S. at 333.
Much of the material printed or broadcast during the
trial was never heard from the witness stand, such as
the charges that Sheppard had purposely impeded the
murder investigation and must be guilty since he had
hired a prominent criminal lawyer; that Sheppard was a
perjurer; that he had sexual relations with numerous
women; that his slain wife had characterized him as a
`Jekyll-Hyde'; that he was `a bare-faced liar' because
of his testimony as to police treatment; and finally,
that a woman convict claimed Sheppard to be the father
of her illegitimate child.
Id. at 356-57. Even though some of the jurors admitted that they heard
or read these prejudicial news reports, id. at 348, 357, the trial court
did not sequester the jurors, and it never directly instructed them to
avoid media coverage. Id. at 352-53. Under such circumstances, the
Court held that due process was violated by the trial court's failure to
"protect Sheppard from the inherently prejudicial publicity which
saturated the community and to control the disruptive influences in the
courtroom." Id. at 363. Sheppard was a case where prejudice was
In contrast, the pretrial coverage in Pursell's case was tame, to say
the least. It was of limited scope and duration, and it left only a
slight impression on the veniremen, and almost no lasting impression on
the jurors actually seated.*fn18 Pursell has failed to show that his is
one of those "exceedingly rare" cases, Rock, 959 F.2d at 1252, where "the
community and media reaction . . . [was] so hostile and so pervasive as
to make it apparent that even the most careful voir dire process would be
unable to assure an impartial jury." Id. at 1252. Accordingly, the
Pennsylvania Supreme Court's refusal to presume prejudice was not an
unreasonable application of clearly established federal law.
(b) Refusal to Find Actual Prejudice
In addition to refusing to presume prejudice, the Pennsylvania Supreme
also did not find any actual prejudice at work in Pursell's case.
In making this judgment, the Pennsylvania Court canvassed the 900 pages
of jury voir dire. The Court explained that 66 of the 101 potential
jurors were actually questioned about their knowledge of the case, the
other 35 having been excused due to their views on the death penalty.
Pursell-1, 495 A.2d at 188. Of these 66 prospective jurors, 58 of them
had heard about the case in some way. Nonetheless, of those 58, 57 said
that they had no fixed opinion about Pursell's guilt, stated that they
would be able to reach a verdict based solely on the evidence presented
at trial, and claimed that the information they learned outside the
courtroom would not affect their decision. Id. In addition, the
Pennsylvania Supreme Court noted that of these 66 prospective jurors,
only 2 actually knew that the defendant had a prior criminal record.
Id. "Considering the almost unanimous lack of knowledge of [Pursell's]
prior criminal conduct by the veniremen," the Court concluded, "it is
obvious that the community was not saturated with the knowledge of
[Pursell's] prior offenses." Id. at 189.
A review of the jury voir dire confirms the Pennsylvania Supreme
Court's conclusion that the jury was capable of impartially determining
Pursell's fate.*fn19 None of the jurors had a fixed opinion concerning
Pursell's guilt; none of them had any specific knowledge about Pursell's
prior crimes; and each of them said that he or she could render a verdict
based solely on the evidence presented at trial. Indeed, in the entire
voir dire transcript there are only two colloquies on which Pursell could
create a colorable claim of partiality. First, Douglas Czerwinski stated
that he heard someone on the news say that Pursell was a "neighborhood
troublemaker." (Tr. 1/15/82, at 134, 138). Nonetheless, he expressed no
opinion on Pursell's guilt, and said that he could decide the case based
solely on the evidence presented at trial. Id. at 135-36. He was
accepted by the defendant without challenge. Id. at 138. Second, Donald
Schruers stated that he had seen all that had been reported about the
case and would have a hard time disregarding that information. (Tr.
1/14/82, at 89-91). Yet, he too said that he had no fixed opinion about
Pursell's guilt, and that he could judge the case on the evidence brought
at trial. Id. at 90-91, 94. Again, the defense accepted him without
objection. Id. at 94.
Pursell's jury had even fewer indicia of partiality than did the juries
in many cases where the Supreme Court has held that actual prejudice did
not exist. In Murphy, "20 of the 78 persons questioned were excused
because they indicated an opinion as to petitioner's guilt," Murphy, 421
U.S. at 794, yet that jury was deemed to be without actual prejudice.
Likewise in Patton, where 77% of prospective jurors admitted that they
would carry an opinion about defendant's guilt into the jury box, and
where 8 of 14 jurors seated, admitted that they, at some time, had formed
an opinion as to defendant's guilt, the Court held that such evidence was
insufficient to amount to actual prejudice. Patton, 467 U.S. at
1029-30, 1035. Needless to say, if the Murphy
and Patton voir dires were
insufficient to show actual prejudice then the Pursell jury easily passes
constitutional muster. The Pennsylvania Supreme Court's decision to deny
Pursell's due process claim was correct, and hardly an unreasonable
application of clearly established federal law.
(3) Ineffective Assistance Claim
Pursell's final argument concerning pretrial publicity is that his
counsel was ineffective for failing to ensure that the record before the
Pennsylvania Supreme Court contained all of the relevant newspaper
articles and television broadcasts. In one respect, Pursell is correct:
the record before the Pennsylvania Supreme Court on his claim for
pretrial publicity was incomplete. As that Court noted, "[t]he
characterization of continued and pervasive prejudicial pretrial
publicity . . . appears nowhere in the record presented to us for review
. . . . Such factual allegations, de hors the record, cannot be considered
by a reviewing court and the practice of asserting facts in an appellate
brief, which allegations do not appear in the record has recently been
condemned by us . . ." Pursell-1, 495 A.2d at 188 n. 3. In his
petition, Pursell has remedied this problem by including all of the
articles that were not given to the Pennsylvania Supreme Court. I have
independently reviewed these articles and have measured the Pennsylvania
Supreme Court's decision against this complete record. Because I
conclude that Pursell was not entitled to relief on his due process
claim, even under a review of the complete record, I will deny his claim
for ineffective assistance of counsel.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
explained that there are two components to demonstrating a violation of
the right to effective assistance of counsel. First, the defendant must
show that counsel's performance was deficient. This requires showing
that "counsel's representation fell below an objective standard of
reasonableness." Id. at 688; see also Williams, 529 U.S. at 390-91.
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too easy
for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act
or omission of counsel's was unreasonable. . . . [A]
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action "might be
considered sound trial strategy."
Strickland, 466 U.S. at 689. As the Third Circuit has explained,
"[i]t is only the rare claim of ineffective assistance of counsel
that should succeed under the properly deferential standard to be
applied in scrutinizing counsel's performance." United States v.
Kauffman, 109 F.3d 186, 190 (3d Cir. 1997).
Second, the defendant must show that he was prejudiced by the deficient
performance. "This requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. To establish prejudice, the
defendant "must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694, 104
S.Ct. 2052; see also Williams, 529
U.S. at 391.
In the present case, Pursell cannot prove that he suffered any
prejudice from his counsel's failure to ensure that the record before the
Pennsylvania Supreme Court was complete. As my analysis above
demonstrates, even if the Pennsylvania Supreme Court had been provided
with all of the pretrial publicity in this case, its conclusion would
have been the same. Accordingly, Pursell has failed to prove a
"reasonable probability that, but for counsel's errors, the result of the
proceedings would have been different." Id. at 694. His ineffectiveness
claim is denied.
I will deny Pursell's claims for relief concerning the trial court's
failure to grant a change of venue. Because I do not believe that
Pursell has made a "substantial showing of the denial of a constitutional
right," 28 U.S.C. § 2253(c)(2), on his due process and ineffective
assistance of counsel claims, I will also deny him a certificate of
appealability on those claims.*fn20
B. Trial Court's Denial of Challenges For Cause
Pursell's second guilt-phase claim is also directed at the composition
of his jury and the conduct of his lawyers. During the jury voir dire,
Pursell's lawyer moved to strike some potential jurors for cause and, in
a number of instances, the trial court denied these challenges. Pursell
claims that these rulings, and his lawyer's failure to challenge them on
appeal, violated his Sixth Amendment rights to effective assistance of
counsel and an impartial jury, and his Fourteenth Amendment right to due
process.*fn21 Because the Pennsylvania Supreme Court did not address the
merits of these claims, I review them de novo. For the following
reasons, I will deny Pursell's claims for relief.
(1) Ineffective Assistance Claim
Pursell first claims that his appellate counsel was ineffective when he
failed to raise on appeal the trial court's refusal to strike six
potential jurors: Harold Shank; William Noble; Patricia Gunther; Jerome
Ott; Wellie Yaple; and Ruth Fink. The Sixth Amendment's right to
effective assistance of counsel, as set forth in Strickland, also extends
to appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985).
Accordingly, to succeed on his claim that his appellate counsel was
ineffective, Pursell must prove both prongs of the Strickland test.
United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000). First, he
must show that his appellate counsel's "representation fell below an
objective standard of reasonableness." Strickland, 466 U.S. at 688.
That is, he must show that counsel unreasonably failed to raise on appeal
the trial court's denial of his challenges for cause. Second, he must
prove that he was prejudiced by his counsel's failure. This requires a
showing that "there is a reasonable probability that, but for counsel's
unprofessional errors," id. at 694, he "would have prevailed on appeal."
Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145
L.Ed.2d 756 (2000); see also Mannino, 212 F.3d
Obviously, I cannot resolve Pursell's Strickland claim until I first
examine the merits of the claim that his lawyer failed to raise on
appeal. Mannino, 212 F.3d at 840. If the trial court was wrong when it
denied any of Pursell's six challenges for cause, and if this error was
reversible under Pennsylvania law, then Pursell's counsel should have
raised this claim on appeal. But if Pursell's underlying claim lacks
merit, then he "cannot successfully argue that counsel's failure to raise
the claim on direct appeal denied [him] [his] constitutional right of
representation." Id. Success or failure on the Strickland claim, in
other words, is linked with success or failure on Pursell's underlying
challenge for cause claim.
At the time of Pursell's direct appeal, Pennsylvania law was relatively
straightforward on when a trial court should strike a juror for cause.
The test for determining whether a prospective juror
should be disqualified is whether he or she is willing
and able to eliminate the influence of any scruples
and render a verdict according to the evidence, and
this is to be determined on the basis of answers to
questions and demeanor, Commonwealth v. Bighum,
425 Pa. 554, 307 A.2d 255 (1973). It must be
determined whether any biases or prejudices can be put
aside on proper instruction of the court, Commonwealth
v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A
challenge for cause should be granted when the
prospective juror has such a close relationship,
familial, financial, or situational, with the
parties, counsel, victims, or witnesses that the court
will presume a likelihood of prejudice by his or her
conduct and answers to questions, Commonwealth v.
Colon, 223 Pa. Super. 202, 299 A.2d 326 (1972). The
decision on whether to disqualify is within the sound
discretion of the trial court and will not be reversed
in the absence of a palpable abuse of discretion,
Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627
Commonwealth v. Colson, 490 A.2d 811, 818 (Pa. 1985), abrogated on
other grounds, Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001).
As this standard indicates, jurors need not be free from bias.
Indeed, "it would be unrealistic to expect jurors to be free from all
prejudices, a failing common to all human beings." Commonwealth v.
Johnson, 305 A.2d 5, 8 (Pa. 1973). Rather, Pennsylvania law only
requires that jurors seek "to put aside those prejudices in the
performance of their duty, the determination of guilt or innocence." Id.
As the Pennsylvania Supreme Court has explained repeatedly: "We therefore
do not expect a tabula rasa but merely a mind sufficiently conscious of
its sworn responsibility and willing to attempt to reach a decision
solely on the facts presented, assiduously avoiding the influence of
irrelevant factors." Id.; see also Commonwealth v. England, 375 A.2d 1292,
1296 (Pa. 1977); see also Colson, 490 A.2d at 818; Commonwealth v. Drew,
459 A.2d 318, 320 (Pa. 1983).
In the first instance, it is the trial judge who must decide whether a
potential juror has satisfied this standard. His ruling is a finding of
fact, entitled to great deference, and it will not be disturbed on appeal
unless it amounts to a "palpable abuse of discretion." Colson, 490 A.2d
Commonwealth v. Gelfi, 128 A. 77, 79 (Pa. 1925); Commonwealth ex rel.
Fletcher v. Cavell, 149 A.2d 434 (1959); Commonwealth v. Bighum,
307 A.2d 255, 259 (Pa. 1973). To show that his underlying claim is
meritorious, therefore, Pursell must do more than just prove that the
trial court was wrong in denying a challenge for cause. He must also
show that the trial court's ruling was a "palpable abuse of discretion."
What complicates matters for Pursell is that AEDPA adds an additional
layer of protection for the trial court's rulings in the present case.
The United States Supreme Court has held that a trial judge's
determination that a potential juror is qualified to sit on a jury is a
finding of fact. Patton, 467 U.S. at 1038; Wainwright v. Witt,
469 U.S. 412, 428 (1985). Under AEDPA, such factual determinations are
"presumed to be correct," 28 U.S.C. § 2254(e)(1), and a petitioner,
like Pursell, bears "the burden of rebutting the presumption of
correctness by clear and convincing evidence." Id. While the parties do
not raise § 2254(e)(1), the clear language of the statute seems to
apply to this case. In fact, the statute itself applies to any
"determination of a factual issue made by a State court . . ." Id. And
at least one federal circuit court has applied § 2254(e)(1)'s
presumption to a factual situation similar to the one presented by
Pursell's challenge. Collins v. Dormire, 240 F.3d 724, 727 (8th Cir.
2001) (applying presumption of correctness to trial court factual
findings concerning underlying claim that counsel failed to raise on
With this legal background in mind, I now turn to the merits of
Pursell's challenge for cause claim.
(b) Challenges to Shank, Noble, Fink, and Gunther
Of the six potential jurors challenged by Pursell, four of them
— Harold Shank, William Noble, Ruth Fink, and Patricia Gunther
— were clearly qualified to serve as jurors under Pennsylvania
law. Shank, Noble, Fink, and Gunther each came into the courtroom with a
built-in bias, but each acknowledged that he or she could put this bias
aside and judge the case against Pursell solely on the evidence
introduced at trial. Pennsylvania law requires no more. Colson, 490
A.2d at 818; Drew, 459 A.2d at 320; Johnson, 305 A.2d at 8. A brief
review of the testimony of each juror confirms the soundness of the trial
William Noble had heard about the case from the news media and, when he
entered the courtroom, he was "leaning one way": "[g]uilty." Id. at
112, 115. Nonetheless, he believed that he could set aside all he had
seen and judge the case solely on the evidence presented in the
courtroom. Id. at 112-13. In fact, on questioning from defense
counsel, Noble said that his opinion was not "fixed" and that he could
put it out of his mind if selected for the jury, id. at 115-16, even
though he was not "positive" that he could forget it. Id. at 116. After
Pursell's lawyer moved to strike for cause, the court conducted its own
THE COURT: It's like an opinion, once it's
there-would you explain that once again? You have an
opinion and now you can't get it out of your mind?
MR. NOBLE: Well, I can't get it out of my mind, but I
would be willing to listen to all evidence and base an
opinion on that but I have already — I am not
going to say that I haven't read nothing.
THE COURT: But are you willing to dismiss from your
mind any prejudice that you might have or any leaning
one way if you were chosen while you were listening to
the evidence and testimony from both sides?
MR. NOBLE: I could do that.
Id. at 116. The court then correctly denied the challenge for cause.
Id. at 117.
Ruth Fink said that she had a "tendency" to believe police officers
more than other witnesses. (Tr. 1/19/82, at 66-67, 69). Based on this
testimony, defense counsel moved for cause, and this motion was denied.
Id. at 70. Nonetheless, the trial court allowed further questioning.
During this questioning, Fink said that she would follow the court's
instructions on the credibility of witnesses, id. at 70, and that she
would apply these instructions to both police and other witnesses. Id.
at 70-71. Finally, in response to questioning by defense counsel, she
said "[t]he more you question me the least I would be inclined to say
that [it] is my tendency to believe someone just because of their
occupation." Id. at 72-73. At that point, defense counsel struck Fink
with a peremptory challenge. Id. at 73. While the soundness of the
trial judge's initial ruling is debatable, his judgment about Fink's
impartiality was borne out by further questioning. Even defense counsel
seemed to acknowledge as much because he did not renew his challenge for
Finally, Patricia Gunther had no fixed opinion about Pursell's guilt,
(Tr. 1/14/82, at 17-18), and acknowledged that she could put aside what
little she remembered and judge the case solely on the evidence presented
in court. Id. at 18-19. Nevertheless, when informed that the victim was
a thirteen year-old boy, Gunther said that she would hope to be impartial
because she had a daughter that age. Id. at 18. At the end of her voir
dire, defense counsel pursued this line of inquiry.
Q. Would you still be able to act impartially in light of
the fact that the victim is thirteen years old?
A. Now honestly, the only thing I can say is that I
would hope I would.
Q. Is the answer "I don't know"?
[DISTRICT ATTORNEY]: I think the answer was she would
attempt and she would hope she would.
MRS. GUNTHER: Yeah, I would hope that I would be
impartial. I can't —
Q. (By [Defense Attorney]) At this time you can't
say; is that correct?
A. Yeah, I can't say a definite yes I will act
impartial, you know.
The trial judge was not troubled by this colloquy and neither am I.
For one, it is unclear whether Gunther had an actual bias at all. She
acknowledged, quite honestly, that she hoped her child's age would not
influence her thinking, but she never said that it would. Second, it was
only after repeated questioning that she finally said "I can't say a
definite yes I will act impartial." Id. at 23. In Murphy, 421 U.S. at
801-02, the United States Supreme Court confronted a juror who indicated
that he could be impartial, but after numerous leading questions made a
statement that undermined his impartiality. In upholding the trial
court's refusal to strike for cause, the Supreme Court, in an opinion by
Justice Marshall, stated that "we cannot attach great significance to
this statement . . . in light of the leading nature of counsel's
questions and the juror's other testimony . . ." Id. I concur with the
Murphy Court's assessment and find no problem with the trial court's
refusal to exclude Gunther for cause.
Obviously, the trial court's rulings on Shank, Noble, Fink, and Gunther
were correct if AEDPA's presumption of correctness applies to the present
case. 28 U.S.C. § 2254(e)(1). None of the voir dire testimony shows
the kind of clear and convincing evidence needed to overcome AEDPA's
hurdle. Yet, even if the presumption does not apply, the trial judge's
rulings were still correct. All four witnesses testified that they could
set aside any pre-existing biases, and judge the case on the evidence
presented at trial. Pennsylvania law expects no more. Colson, 490 A.2d
at 818. Pursell's claim concerning Shank, Noble, Gunther, and Fink is
without merit, and his counsel was not ineffective for failing to raise
it on appeal. Mannino, 212 F.3d at 840.
(c) Challenges to Ott and Yaple
That leaves two potential jurors, Jerome Ott and Wellie Yaple. The
most troubling part about Ott's voir dire is his testimony about police
Q. Now, would you naturally tend to believe a police
witness more than another witness just because he
is a police officer?
A. That's a tough question. I always believe police officers.
A. I've always believed police officers.
Q. Well, because he is a police officer?
Q. Okay, in other words, would you believe him just
because he is a police officer more than you would
believe anybody else who is a witness because he
isn't a police officer?
(Tr. 1/14/82, at 126). After the court completed its questioning of
Ott, defense counsel asked a few questions on the issue of police
Q. I think you said it was a tough question in your
mind whether you would tend to believe a police
officer more than other witnesses; is that
A. Well, like I say, I was always brought up to law
and order and that the police officer was always
— he was authority — and so I at least
have a tendency to believe him more than I would
an ordinary person.
Q. Is that still the case?
A. Depends on the police officer now, I believe.
Q. Okay, I am talking about just because he is a
police officer. You might not know these police
officers at all. In fact, I think that probably
will be the case because you have been read a list
of witnesses. So, let me just ask that again. If
you would see a police officer that appeared who
you don't know at all, all you know is that he is
a police officer —
A. I think I could disregard the fact that he is a