United States District Court, E.D. Pennsylvania
January 16, 2004.
BEN VARNER, et al.
The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Bernard Bennett ("Petitioner"), an
individual currently incarcerated at the Smithfield State Correctional
Institution in Huntingdon, Pennsylvania. For the reasons that follow, I
recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
The following facts were determined at trial:
In January of 1996, Philadelphia police officer
Kyle Bey (Bey) appeared in court to testify
against [Petitioner] for a weapons violation.*fn1
Later that same evening, Bey and fellow police
officer, Richard Porter (Porter), both off-duty,
entered a bar to visit Porter's girlfriend.
[Petitioner] was at the bar with two 
companions. While greeting a fellow off-duty
police officer, Bey inadvertently knocked over an
empty chair at [Petitioner's] table. One of
[Petitioner's] companions poked Bey in the back
and gestured to the fallen chair. As Bey returned
to his conversation with the police officer, Bey
heard [Petitioner] and his companions engaged in
an agitated discussion. Words were then exchanged
between [Petitioner] and his companions and other
police officers in the bar. Bey heard someone from
[Petitioner's] table shout "I don't care if they
are [police]." Shortly thereafter, Bey and Porter
left the bar and entered Bey's vehicle.
[Petitioner] and his two  companions
followed the officers out of the bar. The three
 individuals entered their vehicle and began to
follow the police officers. The driver of
[Petitioner's] vehicle engaged in certain unusual
maneuvers and eventually positioned [Petitioner's]
vehicle behind Bey's vehicle. When [Petitioner's]
vehicle was near the right side of Bey's vehicle,
one of the [Petitioner's] companions fired eight
 bullets into Bey's vehicle, three  of which
struck Porter, resulting in his death.
Following the incident, [Petitioner] and his
companions fled the scene, collided with two 
traffic signs, and then fled on foot with police
officers in pursuit. [Petitioner] was ultimately
arrested in Wilmington, Delaware. Police officers
recovered a nine-[9-] millimeter handgun [the
"Wilmington handgun"] from the Wilmington
apartment where [Petitioner] was arrested. The
handgun contained ammunition that was consistent
with the ammunition recovered from the crime
Commonwealth v. Bennett, No. 2708 EDA 2001, at 1-2 (
Pa. Super. Sept. 19, 2001).
Petitioner was tried by a jury before the Honorable Jane Cutler
Greenspan, Court of Common Pleas of Philadelphia County. On September 26,
1997, Petitioner was convicted of murder in the first-degree, attempted
murder, criminal conspiracy, and possession of an instrument of crime. On
November 10, 1997, the court sentenced Petitioner to life imprisonment
for the murder of Officer Porter, with concurrent terms of seven (7) to
twenty (20) years of imprisonment for the attempted murder of Officer Bey
and five (5) to ten (10) years of imprisonment for criminal conspiracy.
On December 31, 1997, Petitioner filed a direct appeal to the Superior
Court in which he presented the following claims:
1. Sufficiency of the evidence to support the
2. Trial court error in allowing co-defendant
Dwayne Brown's statement into evidence that, "It's
cop killing season, and we're holding Court out on
3. Prosecutorial misconduct during the
Commonwealth's opening statement, when the
prosecutor stated that Petitioner was responsible
for the numerous continuances in his earlier
weapons case involving Officer Bey; and
4. Prosecutorial misconduct during the
Commonwealth's closing statement referring to
Officer Bey's earlier arrest of Petitioner as
providing motive to attack the officers.
The Superior Court affirmed the trial court's judgment of sentence on
April 7, 1999. Commonwealth v. Bennett, No. 0132 Phila. 1998
(Pa. Super. April 7, 1999).
The Pennsylvania Supreme Court denied Petitioner's request for
allocatur on September 30, 1999. Commonwealth v.
Bennett, 743 A.2d 913 (Pa. 1999) (table). Petitioner's convictions
became final on December 29, 1999, when the ninety (90) day period
expired to file an application for a writ of
certiorari in the United States Supreme Court.
On May 25, 2000, Petitioner filed a pro se petition for
collateral relief under Pennsylvania's Post Conviction Relief Act
("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et. seq.
Petitioner filed amended petitions on January 17, 2001, and July 13,
2001. On September 19, 2001, the PCRA court denied relief.
On October 1, 2001, Petitioner appealed the denial of the PCRA relief
to the Superior Court, raising the following claims:
1. Trial/PCRA court error for failing to find
ineffectiveness of counsel for failing to object
to the admission of a weapon into evidence;
2. PCRA court error for failing to find
ineffectiveness of all prior counsel for failing
to argue that the verdicts were against the weight
of the evidence;
3. PCRA court error for failing to find
ineffectiveness of trial counsel for failing to
object to prejudicial remarks made by the
prosecutor during closing argument,
ineffectiveness of appellate counsel for failing
to raise the issue, and prosecutorial misconduct
for references to Petitioner's silence throughout
4. PCRA court error for answering a question to
the jury in such a fashion as to confirm that
Petitioner was one of the men in the getaway car,
ineffectiveness of trial counsel claim for failing
to object to the PCRA court answering the jury's
question, and ineffectiveness of appellate counsel
for failing to raise the claim;
5. PCRA court error for re-defining accomplice
liability without again defining "shared intent,"
and ineffectiveness of appellate counsel for
failing to raise the claim; and
6. PCRA court error for failing to find
ineffectiveness of trial counsel for failing to
argue lack of motive, and ineffectiveness of
appellate counsel for failing to raise the claim.
On November 4, 2002, the Superior Court affirmed the denial of PCRA
relief. Commonwealth v. Bennett, No. 2708 EDA 2001 (Pa. Super.
Nov. 4, 2002).
On May 21, 2003, Petitioner filed the instant pro se petition
for writ of habeas corpus, raising the following grounds:
1. Insufficient evidence to support the guilty
verdict due to Petitioner's "mere presence" at the
2. Trial/PCRA court error for failing to find
ineffectiveness of trial counsel for failing to
object to the admission of a weapon into evidence,
and ineffective assistance of appellate counsel
for failing to raise the claim; and
3. Prosecutorial misconduct for making prejudicial
On October 6, 2003, Petitioner filed a Memorandum of Law including the
following two (2) additional claims:
1. Trial court error for allowing the statement of
co-defendant Dwayne Brown into evidence that,
"It's cop killing season, and we're holding court
out on the street;" and
2. Trial/PCRA court error for failing to properly
charge Petitioner and for making an assertion that
he was the "getaway driver."
On October 30, 2003, Respondents filed a response arguing that the
claims raised only in Petitioner's Memorandum of Law are time-barred, and
that Petitioner is not entitled to federal habeas relief on his remaining
II. APPLICABLE LAW
A. Exhaustion and Procedural Default
A federal court should not entertain a petition for writ of habeas
corpus unless the petitioner has first satisfied the exhaustion
requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant
part that "[a]n 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 unless it appears that (A) the applicant has exhausted
the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a
petitioner "fairly present" each claim in his petition to each level of
the state courts, including the highest state court empowered to consider
it. See 28 U.S.C. § 2254(c) ("An applicant shall not
be deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure, the
question presented"); O'Sullivan v. Boerckel, 526 U.S. 838, 848
(1999). In order for a claim "to have been `fairly presented' to the
state courts, . . . it must be the substantial equivalent of that
presented to the state courts. In addition, the state courts must have
available to it the same method of legal analysis as that to be employed
in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.
2000): see also Lines v. Larkins. 208 F.3d 153, 159 (3d Cir. 2000) ("The
exhaustion requirement ensures that state courts have the first
opportunity to review convictions and preserves the role of state courts
in protecting federally guaranteed rights"). The habeas petitioner bears
the burden of showing that his or her claims have been "fairly presented"
to the state courts, and that the habeas claims are the "substantial
equivalent" of those presented to the state courts. Santana v.
Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied,
459 U.S. 1115 (1983).
The exhaustion requirement may be excused if it would be fufile for the
petitioner to seek relief in the state court system, or if the particular
circumstances of the case render the state process ineffective to protect
the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also
Szuchon v. Lehman, 273 F.3d 299, 323 n. 14 (3d Cir. 2001)
("Exhaustion will be excused as `fufile' if'the state court would refuse
on procedural grounds to hear the merits of the claims'") (quoting
Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996));
Werts, 228 F.3d at 192 (same).
Where a petitioner fails to comply with state procedural rules and is
barred from litigating a particular constitutional claim in state court,
the claim may nevertheless be considered on federal habeas if the
petitioner "demonstrate[s] cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate[s] that
failure to consider the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("We
. . . require a prisoner to demonstrate cause for his state-court default
of any federal claim, and prejudice therefrom, before the federal habeas
court will consider the merits of that claim") (emphasis in original).
Also, a petitioner may raise a claim in federal habeas proceedings if the
state has waived or declined to rely on the procedural default. See
Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999) (citations omitted).
The issue of cause "ordinarily turn[s] on whether the prisoner can show
that some objective factor external to the defense impeded [his] efforts
to comply with the State's procedural rule." Murray v. Carrier,
477 U.S. 478, 488 (1986). Prejudice means that the errors at trial
"worked to [petitioner's] actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions." Id.
at 494; Werts, 222 F.3d at 193. The petitioner bears the burden
of establishing cause and prejudice. Coleman, 501 U.S. at
In order to satisfy the "fundamental miscarriage of justice" exception,
the Supreme Court requires the petitioner to show that a "constitutional
violation has probably resulted
in the conviction of one who is actually innocent." Schlup v.
Delo, 513 U.S. 298 326-327 (1995) (citing Murray, 477 U.S.
at 496); Werts, 228 F.3d at 193. To satisfy the "actual
innocence" standard, a petitioner must show that, in light of new
evidence, it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. Id
B. Applicable Law for Claims Addressed on the Merits
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which
became effective on April 24, 1996, amended the standards for reviewing
state court judgments in federal habeas petitions filed under
28 U.S.C. § 2254. Werts, 228 F.3d at 195. The AEDPA increases the
deference federal courts must give to the factual findings and legal
determinations of the state courts. Id. at 196 (citing
Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant
to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for
habeas corpus may only be granted if (1) the state court's adjudication
of the claim resulted in a decision contrary to, or involved an
unreasonable application of, "clearly established Federal law, as
determined by the Supreme Court of United States;" or if (2) the
adjudication resulted in a decision that was "based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues
determined by a state court are presumed to be correct and the petitioner
bears the burden of rebutting this presumption by clear and convincing
evidence. Werts, 228 F.3d at 196 (citing
28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v.
Taylor, 529 U.S. 362 (2000). In Williams, the Court
explained that "[u]nder the `contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Hameen v. State of
Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing
Williams, 529 U.S. at 389-390). The Court in Williams
further stated that "[u]nder the `unreasonable application' clause, a
federal habeas court may grant the writ if the state court identifies the
correct legal principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case."
Id. The "unreasonable application" inquiry requires the habeas
court to "ask whether the state court's application of clearly
established federal law was objectively unreasonable." Id.
(citing Williams, 529 U.S. at 388-389). "In further delineating
the `unreasonable application of component, the Supreme Court stressed
that an unreasonable application of federal law is different from an
incorrect application of such law and a federal habeas court may not
grant relief unless that court determines that a state court's incorrect
or erroneous application of clearly established federal law was also
unreasonable." Werts, 228 F.3d at 196 (citing
Williams, 529 U.S. at 389).
A. The Two (2) Claims Raised for the First Time in Petitioner's
Memorandum of Law are Time-Barred.
Section 101 of the AEDPA, effective April 24, 1996, amended habeas
corpus law by imposing a one (1) year limitation period to applications
for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A.
§ 2244(d)(1). Section 2244, as amended, provides that the one (1)
year limitation period shall run from the latest of:
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration
of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by state action in violation
of the Constitution or laws of the United States
is removed, if the applicant was prevented from
filing by such state action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The amended statute also provides that the
time during which a properly filed application for state post-conviction
or other collateral review is pending shall not be counted toward any
period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of
limitations is "the date on which the judgment became final by the
conclusion of direct review or the
expiration of the time for seeking such review." Swartz v.
Meyers, 204 F.3d 417, 419 (3d Cir. 2000). Petitioner's conviction
became final on December 29, 1999, when the time for seeking certiorari
review in the United States Supreme Court expired (ninety (90) days after
the Pennsylvania Supreme Court affirmed his conviction on September 30,
1999). Consequently, Petitioner would normally have had until December
29, 2000, to file a timely § 2254 petition.
However, on May 25, 2000 148 days into his one (1) year grace
period Petitioner filed a PCRA petition.*fn3 Because this
petition was filed in accordance with Pennsylvania's procedural
requirements, it is considered a "properly filed application" for
post-conviction relief, thereby tolling the one (1) year limitation
period. See 28 U.S.C. § 2254(d)(2) (the time during which a
"properly filed application" for state post-conviction review is pending
shall not be counted toward the one (1) year period of limitation);
Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is
`properly filed' when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings" such as "the form of the
document, the time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee"). Such a petition
is considered "pending" within the meaning of § 2244(d)(2) during the
time a state prisoner is pursuing his state post-conviction remedies,
including the time for seeking discretionary review of any court
decisions whether or not such review was actually sought. See
F.3d at 424. Bennett's petition was thus pending until December 3,
2002, when the Pennsylvania Supreme Court affirmed the denial of PCRA
relief.*fn4 At this time, the one (1) year grace period began to run
again and Petitioner had two hundred and seventeen (217) days, or until
July 8, 2003, to file a timely § 2254 petition.
Because Petitioner submitted the instant federal habeas petitioner for
filing on May 21, 2003, the claims raised in the petition are considered
timely. However, in Petitioner's Memorandum of Law, which was filed on
October 6, 2003, almost three (3) months after the limitation period had
expired, Petitioner asserted two (2) additional claims not included in
the original petition. Petitioner made no explanation in his Memorandum
of Law as to why the additional claims were not included in the original
petition. Petitioner does not assert that there has been an impediment to
filing theses claims in his habeas petition which was caused by state
action, that these claims involve a right which was newly recognized by
the United States Supreme Court, or that there are new facts which could
not have been previously discovered. See
28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from
presenting these claims under § 2254, unless the instant petition is
subject to equitable tolling.
The Third Circuit has determined that the one (1) year period of
limitation for § 2254 is subject to equitable tolling because this
limitation period is a statute of limitations
and not a jurisdictional bar. See Miller v. New Jersey State
Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988). Equitable
tolling is proper only when the "principles of equity would make [the]
rigid application [of a limitation period] unfair." Id.
(citation omitted). "The petitioner must show that he or she `exercised
reasonable diligence in investigating and bringing [the] claims.' Mere
excusable neglect is not sufficient." Id. at 618-19 (citations
omitted). The Third Circuit has set forth three (3) circumstances in
which equitable tolling is justified: (1) if the defendant has actively
misled the plaintiff; (2) if the plaintiff has in some extraordinary way
been prevented from asserting his rights; or (3) if the plaintiff has
timely asserted his rights, but has mistakenly done so in the wrong
forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)
(citations omitted). "In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been
found to rise to the `extraordinary' circumstances required for equitable
tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)
I do not find the instant matter to be one of "rare situation[s] where
equitable tolling is demanded by sound legal principals as well as the
interests of justice." See Jones, supra. Petitioner filed a
timely habeas petition, but inexplicably failed to raise two (2) claims
until he filed his Memorandum of Law, which occurred after the
AEDPA Statute of Limitations had passed. Consequently, these two (2)
claims trial court error for allowing a statement of co-defendant
Dwayne Brown into evidence, and for failing to properly charge Petitioner
and making an assertion that he was the "getaway driver" are
time-barred. Because Petitioner has not established "extraordinary"
circumstances which would justify application of equitable principles,
this court finds that there are no circumstances which would make the
rigid application of the limitation period unfair. Therefore, these two
(2) claims must be dismissed.
B. Sufficiency of the Evidence
In his first claim, Petitioner argues that there was insufficient
evidence to support his convictions because: (1) he was merely present in
the vehicle when Officer Porter was shot; (2) he did not inflict the
wound upon the victim; and (3) there was no testimony that there was a
shared intent among anyone but the driver and the actual shooter.
See Ptr.'s Br. at 2-3. Respondents argue that this claim is
meritless. See Resp.'s Br. at 23-25.
It has long been established that due process requires that a person
can only be convicted of the crime with which he is charged by proof of
every element of the criminal offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re
Winship, 397 U.S. 358, 364 (1970); Davis v. United States,
160 U.S. 469, 488 (1895). In reviewing challenges to the sufficiency of
the evidence, a court must determine "whether, after reviewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Sullivan v. Cuyler,
723 F.2d 1077, 1083-84 (3d Cir. 1983) (quoting Jackson, 443 U.S. at 319)
(emphasis in original).
The AEDPA has limited a habeas court's role in reviewing a claim that
evidence adduced at trial was insufficient to support a conviction.
Under 28 U.S.C. § 2254(d)(1), a writ of habeas corpus may be issued
for evidentiary insufficiency only if the state courts have unreasonably
applied either the Jackson "no rational trier of fact
standard," or the state equivalent of the Jackson standard.
See Smith v. Vaughn, 1997 WL 338851, at *7 (E.D. Pa. June 17,
1997) (citing Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.),
vacated and remanded on other grounds, 522 U.S. 801 (1997))
(28 U.S.C. § 2254(d)(1) requires deference to the state court's
Conspiracy of a crime is defined under Pennsylvania law, in relevant
part, as follows:
§ 903. Criminal Conspiracy
(a) Definition of Conspiracy A person is
guilty of conspiracy with another person or
persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage in
conduct which constitutes such crime or attempt
or solicitation to commit such crime; or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or
of an attempt or solicitation to commit such
(e) Overt act No person may be convicted
of conspiracy to commit a crime unless an overt
act in pursuant of such conspiracy is alleged
and proved to have been done by him or by a person
with whom he conspired.
18 Pa. Cons. Stat. Ann. § 903(a), (e).
In addressing this claim on direct appeal, the Pennsylvania Superior
Court stated the following:
The applicable standard of review is whether,
viewing all the evidence in
the light most favorable to the Commonwealth
as verdict winner, a jury could find that every
element of the crime exists beyond a reasonable
doubt. . . . The record reveals that [Petitioner]
acted in concert with his co-defendants.
[Petitioner] was involved in a heated discussion
in which co-defendant Young announced that he did
not care if the victims were police officers.
[Petitioner] and his co-defendants followed the
police officers outside the bar, where
[Petitioner] climbed into a jeep with the other
co-defendants. The co-defendants extensively
maneuvered the jeep to a position behind the
officers' car. Although the jeep was stopped
several times during this maneuvering,
[Petitioner] never attempted to exit the vehicle.
One of the co-defendants sprayed the officers' car
with gunfire, resulting in the death of one  of
the officers. After the shooting, [Petitioner]
fled the scene in the Jeep with his co-defendants.
Eventually, [Petitioner] exited the Jeep and fled
on foot. Additionally, [Petitioner] possessed a
revenge motive, Officer Bey's prior arrest of and
planned testimony against [Petitioner] for a prior
weapons offense, for seeking to harm the officers.
Commonwealth v. Bennett, No. 0132 Philadelphia 1998, at 4-6
(Pa. Super. April 7, 1999) (citations omitted).
I find that the state courts' conclusion is neither contrary to, nor an
unreasonable application of, Supreme Court precedent as set forth by
Jackson. The state court properly set forth the elements of the
law and applied relevant trial evidence thereto in finding that the
Commonwealth had presented sufficient evidence to establish that
Petitioner conspired with the co-defendants in murdering Officer Porter
and attempting to murder Officer Bey. For example, Petitioner was more
than merely present at the scene of the crime; rather, he actively
participated in each of the events that resulted in the officer's death.
Because there is sufficient evidence to support Petitioner's conviction
under Pennsylvania law, Petitioner is not entitled to relief on this
C. Trial/PCRA Court Error for Failing to Find Ineffectiveness of
Trial Counsel for Failing to Object to the Admission of a Weapon into
Evidence, and Ineffectiveness of Appellate Counsel for Failing to Raise
In his second claim, Petitioner argues that the trial court erred (and
therefore violated his due process rights) by failing to find
ineffectiveness of trial counsel for counsel's failure to object to the
admission of a weapon into evidence, and that appellate counsel was
ineffective for failing to raise the claim. See Ptr.'s Br. at
"It is well established that evidentiary errors of state courts are not
considered to be of constitutional proportion, cognizable in federal
habeas corpus proceedings, unless the error deprives a defendant of
fundamental fairness in his criminal trial." Bisaccia v. Attorney
General of State of New Jersey. 623 F.2d 307. 312 (3d Cir. 1980);
see also Crane v. Kentucky, 476 U.S. 683, 689-690
(1996) (same). The category of errors that violate fundamental fairness
is very narrow. See Dowling v. United States, 493 U.S. 342,
352-353 (1990) (stating court reviewing evidentiary decisions must
determine whether action complained of "violates those fundamental
conceptions of justice which lie at the base of our civil and political
institutions and which define the community's sense of fair play and
Here, in order to determine whether the trial court committed error and
thereby violated Petitioner's due process rights, it is necessary to
discuss Petitioner's underlying
claim of ineffectiveness of trial counsel for failing to object to
the admission of certain handgun evidence into trial.*fn6 In addressing
this claim on collateral appeal, the Pennsylvania Superior Court stated
Herein, the evidence of record does not establish
that it was factually impossible for the
Wilmington gun to have been the murder weapon.
Detective Patrick Burke, of the Wilmington,
Delaware police department, testified that,
pursuant to a search warrant, he was present at an
apartment in Wilmington where he observed a police
officer recover a nine-millimeter handgun from
underneath a couch. Lieutenant Mark Stephan
(Stephan), with the Philadelphia Firearms
Identification Unit, testified that the ammunition
found in the Wilmington handgun was consistent
with the ammunition found at the crime scene, as
well as the ammunition found in Porter's body and
in Bey's vehicle. Police officer Cronin (Cronin),
of the Delaware Joint Violent Crime Fugitive Task
Force, testified that [Petitioner] was present at
this Wilmington apartment and was subsequently
arrested. Cronin also testified that a set of keys
was removed from [Petitioner].
Although Stephan testified that, in his opinion,
the bullets were not fired from the Wilmington
handgun, this testimony does not preclude the
admission of the handgun. The Wilmington handgun
was not admitted to show [Petitioner] possessed
the means to commit the murder. The Wilmington gun
was admitted to show that [Petitioner] possessed
ammunition that was consistent with the ammunition
used to kill Porter. The trial court admitted both
the Wilmington handgun and the ammunition because
"the ammunition was the same size and from the
same manufacturer as the ammunition recovered from
the situs of the crime, from [Porter's] body and
from [Bey's] car." Since [Petitioner]'s possession
of the ammunition, as opposed to the possession of
the Wilmington handgun, was at issue, the evidence
was relevant and therefore properly admitted.
Moreover, after noting that the jury heard
evidence that a handgun was present in the
apartment where [Petitioner] was arrested, the
trial court instructed the jury as follows:
"[r]emember: [t]hat gun is not the [m]urder weapon
in this case. You must not say to yourselves, in
because that gun was present in that house,
[Petitioner] is guilty of this offense. That,
also, is totally improper. He is not on trial for
possession of that gun." A trial judge is
uniformly capable of restricting the admission of
evidence to only that information which is
relevant, and a jury is presumed to follow the
instructions of the court.
Accordingly, we find no error in the admission of
the Wilmington handgun into evidence. Since
[Petitioner]'s underlying claim is meritless,
counsel cannot be ineffective for failing to raise
a meritless claim.
Commonwealth v. Bennett, No. 2708 EDA 2001, at 6-9 (
Pa. Super. Nov. 4, 2002) (citations omitted).
Ineffectiveness of counsel claims are analyzed pursuant to
Strickland v. Washington, 466 U.S. 668 (1984). See
Williams, 529 U.S. at 391 ("It is past question that the rule set
forth in Strickland qualifies as `clearly established Federal
law, as determined by the Supreme Court of the United States.'"). In
Strickland, the United States Supreme Court set forth the
standard for showing ineffectiveness of counsel:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed by
the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. 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. Because "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 was unreasonable,"
a court must be "highly deferential" to counsel's performance and
"indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. at 689.
In determining prejudice, "the question is
whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt."
Id. at 695. "[A] court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies." Id. at 697.
"If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed."
As previously mentioned, Petitioner argues that counsel was ineffective
for failing to object to the admission of the Wilmington gun. He contends
that admission of this gun was highly prejudicial to him because "the
introduction of this weapon served as nothing more but a further way to
prejudice the [P]etitioner in the minds of the jury, a way to allege that
he was a person who kept guns close to him and therefore must be guilty
of the crime." See Ptr.'s Br. at 12. I disagree. Even assuming
that I were to find that counsel acted deficiently in failing to object
to the admission of the handgun, Petitioner has failed to establish the
requisite prejudice for habeas relief. The standard established in
Strickland for prejudice is whether there is a reasonable
probability that, but for counsel's deficiency, the result of the
proceeding would have been different. Everett v. Beard,
290 F.3d 500, 509 (3d Cir. 2002), cert. denied, 537 U.S. 1107
(2003) (citing Strickland, 466 U.S. at 694). Here, the evidence
clearly established that Petitioner acted in concert with his two (2)
companions when gunfire erupted in the direction of Officer Bey's
vehicle. Officer Bey testified that, following a heated discussion
between Petitioner and his
companions, all three (3) individuals followed the police officers
out of the bar, entered their vehicle and pursued the police officers.
Bey specifically testified that he witnessed Petitioner enter the
vehicle. Bey testified that he heard gunshots and that he saw a gun being
fired from Petitioner's vehicle. Bey further testified that immediately
following the shooting, he gave a fellow police officer a complete
description of each of the three (3) individuals, including Petitioner,
who were present in the vehicle at the time of the shooting. Moreover, as
noted by the state court, the trial judge gave a cautionary instruction
to the jury regarding the proper evidentiary purpose of the Wilmington
For the aforementioned reasons, I conclude that Petitioner has failed
to show how counsel's actions prejudiced him and, therefore, the
underlying ineffectiveness claim must fail.*fn7 In addition, because
appellate counsel cannot be deemed ineffective for failing to raise a
meritless claim on appeal, Petitioner's claim of ineffectiveness of
appellate counsel must also fail. Because the underlying ineffectiveness
claims have no merit, I further conclude that Petitioner is not entitled
to relief on his claim of trial/PCRA court error for failing to find
ineffectiveness of counsel for failing to object to the admission of the
D. Prosecutorial Misconduct
In his final claim, Petitioner raises two (2) claims of prosecutorial
namely: (1) prosecutorial misconduct regarding mention of
continuances during the opening statement, and (2) prosecutorial
misconduct regarding a prior weapons charge. The Supreme Court "has
recognized that prosecutorial misconduct may `so infec[t] the trial with
unfairness as to make the resulting conviction a denial of due process.'"
Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974));
Darden v. Wainwright, 477 U.S. 168 (1986). To constitute a due
process violation, the prosecutorial misconduct must be "of sufficient
significance to result in the denial of the defendant's right to a fair
trial." Greer, 483 U.S. at 765 (citation omitted) (quoting
United States v. Agurs, 427 U.S. 97, 108 (1976)); Smith v.
Phillips, 455 U.S. 209, 211 (1982): see also Ramseur v.
Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992) (stating court must
distinguish between ordinary trial error and egregious conduct that
amounts to a denial of due process). The alleged misconduct must be
viewed in the context of the entire proceedings. Donnelly, 416
U.S. at 643.
1. Prosecutorial Misconduct Regarding Mention of Continuances
During the Opening Statement
Petitioner argues that the prosecutor committed misconduct during his
opening statement when he stated that Petitioner was responsible for the
numerous continuances in a prior case involving Officer Bey.
See Ptr.'s Br. at 7-10. Respondents counter that this claim is
procedurally defaulted. See Resp.'s Br. at 67-71.
On direct appeal, Petitioner raised the claim that the prosecutor's
opening statement was unduly prejudicial because the prosecutor implied
that Petitioner was
responsible for numerous continuances in the weapons case in which
Officer Bey had appeared to testify against Petitioner. See
Commonwealth v. Bennett, 0132 Phila. 1998, at 8-9 (Pa. Super. April
7, 1999). However, the Pennsylvania Superior Court found the claim to
have been waived because Petitioner failed to develop an argument or cite
supportive authority in his argument section of the appellate brief, as
required under Pa.R.A.P. 2119(a). Id. The Superior Court
[Petitioner's] entire argument section pertaining
to this issue consists of two (2) paragraphs
quoted from the transcript. He does not include
any argument or citation to legal authority.
Accordingly, the issue is waived.
Commonwealth v. Bennett, 0132 Phila. 1998, at 8 (Pa. Super.
April 7, 1999).
Where a petitioner has presented a claim in the Pennsylvania state
courts, federal courts will not review the state court decision involving
a question of federal law if the state court decision is based on state
law, even a state procedural law, that is independent of the federal
question and adequate to support the judgment. Coleman, 501
U.S. at 727-31. As the Supreme Court has explained, the application of
the independent and adequate state ground doctrine is grounded in
concerns of comity and federalism:
In the absence of the independent and adequate
state ground doctrine in federal habeas, habeas
petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in
state court. The independent and adequate state
ground doctrine ensures that the States' interest
in correcting their own mistakes is respected in
all federal habeas cases.
Edwards, 529 U.S. at 452 (citing Coleman, 501 U.S.
Here, Petitioner presented his current claim to the state courts only
appeal, and the state courts refused to address the claim because,
under Pennsylvania procedural law, the Petitioner failed to develop an
argument and failed to cite supportive authority. As a result, the claim
is procedurally defaulted by operation of the independent and adequate
state ground doctrine. Petitioner has not established either cause or
prejudice for this default and, for the reasons previously set forth,
Petitioner has failed to demonstrate that a miscarriage of justice will
result if his claim is not reviewed. Therefore, this claim must be
dismissed as procedurally defaulted.
2. Prosecutorial Misconduct Regarding a Prior Weapons
Petitioner next argues that the prosecutor committed misconduct when he
implied to the jury that Officer Bey's previous arrest of Petitioner on
an unrelated gun charge provided motive for Petitioner to kill Officer
Bey.*fn8 See Ptr.'s Br. at 7-10.
The state court found that Officer Bey did arrest Petitioner for a
previous weapons charge, and that he intended to testify against
Petitioner at trial. Therefore, the state court
found a "fair inference from this evidence is that [Petitioner] had
a motive to kill Officer Bey." Commonwealth v. Bennett, No.
0132 Phila. 1998, at 9 (Pa. Super. April 7, 1999).
In evaluating whether the remarks of the prosecutor rise to the level
of a constitutional violation, a federal habeas court is required to
examine those remarks in the context of the whole trial. Werts,
228 F.3d at 198 (citing Ramseur, 983 F.2d at 1239 and
Greer, 483 U.S. at 766). Here, I conclude that the state court
decision is not "contrary to" or an "unreasonable application of Supreme
Court precedent. As noted by the Superior Court, Officer Bey had arrested
Petitioner on a previous weapons charge and had intended to testify
against him, including on the very morning of the incident in question,
after Officer Bey's testimony had been continued. Because a fair
inference could be made that Petitioner had a motive to kill Officer Bey,
it cannot be said that the prosecutor's statement so infected the trial
with unfairness as to make the resulting conviction a denial of due
process. See Greer, 483 U.S. at 765; see also
Donnelly, 416 U.S. at 645 (an ambiguous remark by a prosecutor,
followed by a specific disapproving instruction, did not make a habeas
petitioner's "trial so fundamentally unfair as to deny him due process").
Consequently, I find that Petitioner is not entitled to relief on this
Therefore, I make the following:
AND NOW, this day of, 2004, IT IS RESPECTFULLY RECOMMENDED that the
petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254 be DENIED. There has been no substantial showing of
the denial of a constitutional right requiring the issuance of a
certificate of appealability.
AND NOW, this day of, upon careful and independent consideration of the
petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254, and after review of the Report and Recommendation of
United States Magistrate Judge Peter B. Scuderi, and any objections made
thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of