United States District Court, E.D. Pennsylvania
February 19, 2004.
DAVID ELLIOT, Petitioner
BEN VARNER, et al, Respondents
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
Petitioner David Elliot ("Elliot") is a state prisoner currently
serving a life sentence at SCI Smithfield for the murder of James Rebuck
("Rebuck"). Elliot's counsel filed a petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on October 31, 2002. In his petition,
Elliot claimed that his trial counsel was ineffective for failing to
object to the court's instruction on co-conspirator liability with
respect to first degree murder and the charge given on voluntary
The petition was referred to United States Magistrate Judge Arnold
Rapoport ("Judge Rapoport"). After respondents filed specific answers to
the petition and a memorandum of law in support thereof, Judge Rapoport
issued a Report and Recommendation ("R & R")(paper no. 8) that the
denied. Elliot filed objections to the R & R and the court held
a hearing on February 2, 2004. After de novo review, for the
reasons set forth below, the petition will be denied.
On May 1, 1997, after a jury trial before the Honorable Ward F. Clark,
Elliot was convicted of first degree murder, burglary, conspiracy to
commit murder, and solicitation to commit murder. At trial, the evidence
showed Elliot elicited the help of his cousin, Scott Stocklin
("Stocklin"), to kill James Rebuck in retaliation for a sexual advance
Rebuck made on Elliot.
On the night of October 24, 1996, Elliot and Rebuck had been drinking
at a bar. Elliot went to Rebuck's house and passed out after using
cocaine and taking pills. When he awoke, Rebuck had removed Elliot's
pants, was on top of him and attempting to have sex with him. Elliot left
in a rage; after arriving home, he called several people to try to find
someone to help him kill Rebuck. Both his roommate and another friend
refused to help him; Elliot then called his cousin, Stocklin.
In the early morning of October 25, Elliot and Stocklin arrived at
Rebuck's house. They were wearing latex gloves but kept their hands
hidden in their pockets. Stocklin had a baseball bat and struck Rebuck
with it repeatedly. While Stocklin hit Rebuck with the bat, Elliot went
to the kitchen to get a knife. Rebuck was stabbed forty-five times; there
were nine stab
wounds to the heart. The autopsy showed that Rebuck lost about 40%
of his blood and probably died from blood loss.
Elliot was sentenced to life imprisonment. Trial counsel filed a timely
appeal on Elliot's behalf. On March 6, 1999, the Superior Court affirmed
the sentence. Commonwealth v. Elliot, 625 Phila. 1998. The
Pennsylvania Supreme Court denied allocatur on September 28,
Elliot, in his petition under Pennsylvania's Post Conviction Relief Act
("PCRA"), 42 Pa.C.S.A. §§ 9541-9551, claimed trial counsel was
ineffective for failing to object to portions of the jury charge.
Elliot's petition was denied; the Superior Court affirmed the denial of
relief on November 8, 2001. Commonwealth v. Elliot, 878 EDA
2001. The Pennsylvania Supreme Court denied allocatur on October
15, 2002. Commonwealth v. Elliot, 995 MAL 2001.
Elliot asserts his trial counsel was ineffective for failing to object
to the court's incorrect instructions on co-conspirator liability. Elliot
contends the jury instructions diluted the Commonwealth's burden of proof
and allowed him to be convicted based on the intent of his accomplice
without regard to his actual intent. He argues the jury could have
convicted him on the incorrect instructions without finding that he
specifically intended that Rebuck die.
For a first degree murder conviction, the jury must find that the
defendant possessed a specific intent that the victim die. The court gave
broad based co-conspirator instructions that if the jury found a
conspiracy to commit a criminal act, each party was equally culpable;
Elliot contends the conspiracy instruction allowed the jury to find him
guilty of first degree murder even if he did not have the specific intent
Elliot relies on Smith v. Horn, 120 F.3d 400 (3d Cir. 1997)
and Everett v. Beard, 290 F.3d 500 (3d Cir. 2002). These cases
involved conspiracies to commit robbery during which someone was killed.
In both cases, the Court of Appeals concluded the co-conspirators may
not have had the requisite intent to kill necessary for the first degree
murder conviction, because the conspiracies did not involve murder.
In Smith v. Horn, the Court of Appeals stated the proper
inquiry is "whether there is a reasonable likelihood that the jury has
applied the challenged instructions in a way that violates the
Constitution." Smith, 120 F.3d at 411. The court concluded that
the jury instructions were confusing and allowed conviction of Smith for
first-degree murder without a finding of specific intent. In Everett
v. Beard, 290 F.3d 500 (3d Cir. 2002), Gerald Everett drove the car
carrying two men who robbed and murdered a grocery store owner. No one
alleged that Everett intended anyone be shot; the trial court repeatedly
instructed that Everett could be found guilty of intentional murder if
accomplice intended to cause the victim's death. Both
Smith and Everett are distinguishable from Elliot's
Elliot devised a plan with Stocklin to kill Rebuck. Many witnesses
testified that Elliot planned to kill Rebuck. After the instructions on
conspiracy, the trial court correctly instructed the jury on first degree
murder and the specific intent requirement. Judge Rapoport viewed the
charge as a whole and found that because first degree murder was
correctly defined, there was no error.
Elliot presents this as an ineffective assistance of counsel claim
because his counsel failed to object to the faulty instructions.
Therefore, even if the instructions were faulty, the court must evaluate
whether, but for counsel's failure to object, "the result of the
proceeding would have been different" or that the ineffectiveness was
"sufficient to undermine confidence in the outcome." Strickland v.
Washington, 466 U.S. 668, 694 (1984). The overwhelming evidence at
trial showed that Elliot intended to kill Rebuck; even if the
instructions were confusing, Elliot was not prejudiced by them. See
Commonwealth v. Chester, 557 Pa. 358, 380, n. 12, 733 A.2d 1242,
1253 n.12 (1999); Commonwealth v. Wayne, 553 Pa. 614,
720 A.2d 456 (1998).
Elliot also contends that his trial counsel was ineffective because he
failed to object to instructions on voluntary manslaughter imposing a
burden on the defense. The trial court stated in part:
A sudden passion which would reduce an unlawful
killing from Murder to Voluntary Manslaughter,
must be due to legally adequate provocation. And
even if there's sufficient legal provocation, if
there's sufficient time to cool, then the killing
cannot be voluntary manslaughter. The killing has
to be committed under legally sufficient
provocation in momentary frenzy or passion which
placed the accused beyond control or reason. Then,
in such cases, you're justified in finding the
defendant guilty of voluntary manslaughter.
The court also instructed that the jury could return a verdict of
voluntary manslaughter if it was satisfied beyond a reasonable doubt that
the killing "was unlawful . . . without malice while in the
state of sudden and intense passion resulting from serious legal
Elliot asserts that these instructions unconstitutionally gave him the
burden of negating malice. Throughout the charge, the court stated the
burden of proof was on the Commonwealth. The court never made a statement
that Elliot had to prove that there was no malice; burden-shifting cannot
be inferred from the instructions on voluntary manslaughter. Counsel was
not ineffective for failing to object to the voluntary manslaughter
charge. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir.
2000)(counsel cannot be deemed ineffective for failing to raise a
For the foregoing reason's petitioner David Elliot's
objections to the Report and Recommendation will be overruled. An
appropriate order follows.
AND NOW, this ___ day of February 2004, upon consideration of
petitioner's Petition for Writ of Habeas Corpus by a Person in State
Custody pursuant to 28 U.S.C. § 2254 (Document No. 1), United States
Magistrate Judge Arnold Rapoport's Report and Recommendation (Document
No. 8), Petitioner's Objections to Magistrate Judge's Report and
Recommendation (Document No. 9), and following a hearing at which counsel
for all parties were heard, for the reasons stated in the foregoing
Memorandum, it is hereby ORDERED that:
1. The Report and Recommendation (Document No. 8) is APPROVED
2. Petitioner's Objections to Magistrate Judge's Report and
Recommendation (Document No. 9) are OVERRULED;
3. Petitioner's Petition for Writ of Habeas Corpus by a Person in State
Custody (Document No. 1) is DENIED;
4. There is no probable cause to issue a certificate of appealability;
5. The Clerk of the Court shall mark this case closed for statistical
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