United States District Court, E.D. Pennsylvania
April 21, 2004.
ALFRED ALBRECHT, SR.
MARTIN HORN, Commissioner, Pennsylvania Department of Corrections
The opinion of the court was delivered by: BRUCE KAUFFMAN, District Judge
MEMORANDUM AND ORDER
Before the Court is the Petition of Alfred Albrecht, Sr. ("Petitioner")
for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the Petition will be granted with
respect to Petitioner's sentence and denied with respect to his
On August 8, 1980, Petitioner was convicted by a jury of one count of
first degree murder, two counts of second degree murder, and four counts
of arson for the killing of his wife, his mother, and his daughter in a
fire at the family's home. Answer to Petition for Writ of Habeas Corpus
("Answer") at 8. On May 2, 1983, in accordance with the jury's
recommendation, Petitioner was sentenced to death.
At trial, the Commonwealth established that on May 1, 1979, at
approximately 6:26 a.m., local fire departments responded to a residential
fire at Petitioner's home in Perkasie, Bucks County. Answer at 1. When
the fire was extinguished, they entered the house and found the bodies of Petioner's wife, mother and daughter, who had died from the
combined effect of the heat, gases, and lack of oxygen. Commonwealth v.
Albrecht, 511 A.2d 764, 766 (Pa. 1986) ("Albrecht I"); Answer at 1,
citing Trial Transcript ("T.T." 7/29/80, pp. 6-19). Petitioner's son
survived by jumping out of a second story window. Answer at 1, citing
T.T.s 7/22/80, 7/30/80.
Where Petitioner was when the fire started is disputed. Petitioner
avers that he was in bed. This contention is supported by the testimony
of his son, who said that he heard his father get out of bed after the
fire had started. Petitioner's Post-Hearing Memorandum of Law, Exhibit
1, at 37. Petitioner is a smoker and claims that he inadvertently left a
lit cigarette on the chair in the living room. Commonwealth v. Albrecht,
720 A.2d 693, 707 (Pa. 1998) ("Albrecht II"). Petitioner claims that he
awoke smelling smoke and walked out of his first floor bedroom and into
the living room, where he observed the raging fire. He then fled the
house immediately and only when outside realized that his family was
trapped inside. Petitioner was advised by a neighbor, a fireman, not to
re-enter the house. Petitioner's Post-Hearing Memorandum, Ex. 1, at 50.
The Commonwealth, however, asserts that Petitioner started the fire in
the kitchen, using gasoline as an accelerant. Answer at 15-16, citing
T.T.s 7/23/80, 7/24/80, 7/25/80. According to Commonwealth fire experts,
the presence of petroleum distillates in the wood under the kitchen
floor, the presence of lead on various objects found at the scene, the
presence of gasoline in the ceiling files, and the "blistering" and burn
patterns found in the wood in the living room and kitchen demonstrated
that the fire could not have been accidental and that a liquid accelerant
(gasoline) was used to start the fire. Answer at 2, citing T.T.s
7/28/80, 7/31/80. When police searched Petitioner's car, they found an empty gas can with
Petitioner's fingerprints and soot on it. Answer at 2, citing T.T.s
7/24/80, 7/28/80. The soot was determined to contain gasoline. Answer at
3, citing T.T. 7/31/80. A local gas station employee testified that
Petitioner had attempted to purchase gasoline for that can on the
afternoon before the fire. Answer at 3, citing T.T. 7/31/80.
The Commonwealth also introduced evidence that Petitioner abused his
wife physically and emotionally and that he had threatened to harm her in
the weeks before her death. Albrecht I, 511 A.2d at 766-768. This
evidence included testimony from his wife's attorney about Petitioner's
alleged violation of a December 1978 Protection from Abuse Act order.
Id., 511 A.2d at 767. It also included testimony from neighbors and
friends who observed the physical manifestations of abuse, including
bruises, missing clumps of hair, and cigarette burns on Petitioner's wife
in the months preceding her death. Id.; Answer at 3-6. Neighbors further
testified about a particular incident when Petitioner's wife took refuge
from Petitioner at their house. Albrecht I, 511 A.2d at 767. The
Commonwealth also offered testimony that Petitioner had at least one
extramarital affair. Id. at 766; Albrecht II, 720 A.2d at 702.
The evidence at trial revealed that this pattern of abuse continued
through the night before the fire, when Petitioner's son ran to the
neighbors' house and related that his father was abusing his mother and
threatening to burn the house down. Albrecht II, 720 A.2d at 704-705;
Answer at 6, citing T.T. 7/30/80. The police were called and, upon
investigation, found evidence of a recent fight. Albrecht I, 511 A.2d at
768; Answer at 6, citing T.T. 7/31/80. When questioned, Petitioner's wife
told the police that he had threatened to burn her dress. Albrecht I, 511
A.2d at 768. Petitioner eventually demanded that the police leave. Answer
at 6, citing T.T. 7/31/80. The Commonwealth also introduced evidence regarding prior threats by
Petitioner to burn down his house or to severely injure his wife.
Albrecht I, 511 A.2d at 768. Finally, the Commonwealth introduced
evidence that Petitioner showed little remorse following the fire and the
deaths of his wife, mother and daughter. Answer at 6, citing T.T.
On June 23, 1986, the Pennsylvania Supreme Court affirmed Petitioner's
conviction and death sentence on direct appeal. Albrecht I, 511 A.2d at
764. The United States Supreme Court declined to issue a writ of
certiorari on March 30, 1987. Albrecht v. Pennsylvania, 480 U.S. 951
Thereafter, Petitioner filed a pro se petition for post-conviction
relief ("PCRA petition"). Commonwealth v. Albrecht, B.C.C.C. No.
1980-00408 (docket sheet). On July 13, 1991, Petitioner, by appointed
counsel, filed an amended PCRA petition seeking discovery, funds for
investigation and expert witnesses, and an evidentiary hearing.
Commonwealth v. Albrecht, B.C.C.C. No. 1980-00408 (docket sheet).
Petitioner's request for funds was denied, and the Pennsylvania Supreme
Court denied his Petition for Extraordinary Review. Petition for Writ of
Habeas Corpus ("Petition") at ¶ 4. Petitioner's amended PCRA petition
was dismissed on January 24, 1996. Petition at ¶ 8. He appealed, and the
Pennsylvania Supreme Court affirmed on November 23, 1998. Albrecht II,
720 A.2d at 710. On March 24, 1999, Petitioner filed the present Petition for Writ of
Habeas Corpus, alleging fourteen grounds for relief.*fn2 On April 28,
1999, this Court issued an Order staying Petitioner's execution until further order of Court.
II. Waiver and Procedural Bar
The parties agree that Counts III, IV, XI, XII, and part of Count I*fn3
were addressed by the Pennsylvania Supreme Court on the merits and thus
not waived by Petitioner. However, Respondent avers that Petitioner's
claims in Counts II, V, VI, VII, VIII, IX, and X were waived at the state
level and are therefore procedurally barred from review by this Court.
Because the Supreme Court of Pennsylvania changed its long-standing
practice of "relaxed waiver" on Petitioner's PCRA appeal, this Petition
presents unique issues of waiver and procedural bar.
Respondent argues that Counts II, V, VI, VII, VIII, IX, and X were
reviewed by the Pennsylvania Supreme Court and were found to have been
waived by the failure to raise them, either on direct appeal or on PCRA
review.*fn4 It is not clear the extent to which Counts XIII, XIV, and
the remainder of Count I were presented to the Pennsylvania Supreme
Court, but the Supreme Court did not consider them either on direct appeal or on
The Pennsylvania Supreme Court concluded that the group of claims
asserted in Counts II, V, VI, VII, VIII, IX, and X had been waived.
Normally, unless Petitioner could show cause for and prejudice from his
default at the state level, federal habeas review would be precluded.
Coleman v. Thompson, 501 U.S. 722 (1991); Doctor v. Walters, 96 F.3d 675
(3d Cir. 1996). Petitioner urges the Court not to treat any of the claims
he raised at any level of direct or PCRA appeal as defaulted. He notes
that from 1978 until the decision in his PCRA appeal, the Supreme Court
of Pennsylvania recognized a "duty to transcend procedural rules" in
capital cases. Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978).
This perceived duty led to the doctrine of "relaxed waiver" in death
penalty cases, which amounted to 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 Court often heard arguments
that had not been raised in any of the lower court proceedings, or that
were raised at one level, but not at all required levels. Jacobs v.
Horn, 129 F. Supp.2d 390, 398 (M.D. Pa. 2001).
This practice changed in 1998, when the Supreme Court issued its
decision in this case on Petitioner's PCRA appeal. Albrecht II, 720 A.2d
at 700 ("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.") (internal citations omitted). The Supreme Court found that
Petitioner had waived a number of potential arguments by not raising them
earlier. These claims were not addressed on the merits, but instead were
dismissed on procedural grounds. Accordingly, the first question before this Court is whether the Pennsylvania Supreme Court's decision to
dismiss those claims renders them immune to examination on federal habeas
Normally, out of concern for federalism and comity, a District Court
will not hear argument on issues raised in a habeas petition that were
procedurally defaulted at the state level. Lambrix v. Singletary,
520 U.S. 518, 523 (1997); Bronshtein v. Horn, 2001 WL 767593, *4 (E.D.
Pa. 2001). "[A] habeas petitioner who has failed to meet the State's
procedural requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the first
instance. . . . The independent and adequate state ground doctrine
ensures that the States' interest in correcting their own mistakes is
respected in all federal habeas cases." Coleman, 501 U.S. at 732 (1991).
This doctrine applies equally to procedural and substantive matters,
meaning that it prevents federal courts from hearing the merits of cases
where the petitioner failed to comply with a state procedural rule.
Bronshtein, 2001 WL 767593 at *4. citing Wainwright v. Sykes, 433 U.S. 72,
Nonetheless, a habeas court will review questions of federal law
decided by state courts so long as the state's decision does not rest on
independent and adequate state grounds. Szuchon v. Lehman, 273 F.3d 299,
325 (3d Cir. 2001) ("A habeas court `will not review a question of
federal law decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal question and
adequate to support the judgment'"), quoting Coleman, 501 U.S. at 729.
Here, the Pennsylvania Supreme Court rested its decisions upon
Pennsylvania law. Albrecht II, 720 A.2d at 700, citing 42 Pa. Cons.
Stat. § 9543(a)(3); see generally Szuchon, 273 F.3d at 325; Bronshtein,
2001 WL 767593, at *4. However, a careful review of the facts demonstrates that the procedural
grounds upon which the Pennsylvania Supreme Court relied are not
adequate. "A procedural rule is adequate only if it is firmly
established, readily ascertainable, and regularly followed." Szuchon, 273
F.3d at 325. citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Harris
v. Reed, 489 U.S. 255, 262 (1989). This standard is met where "(1) the
state procedural rule speaks in unmistakable terms; (2) all appellate
courts refused to review the petitioner's claims on the merits; and (3)
the state courts' refusal in this instance is consistent with other
decisions." Doctor v. Walters, 96 F.3d at 683-84. See also Dugger v.
Adams, 489 U.S. 401, 410 n.6 (1989) (a state must demonstrate that in the
"vast majority of cases" the rule is applied in a "consistent and
regular" manner); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) (a state
rule should be applied "evenhandedly to all similar claims"). The first
two conditions are clearly met in this case. The state rule speaks in
absolute terms and the Pennsylvania Supreme Court denied the petition on
the grounds of procedural bar, which is considered a determination on the
merits. See Harris v. Reed, 489 U.S. at 261-63.*fn5
However, "[t]he Court of Appeals for the Third Circuit has [held] that
the relevant moment for determining the adequacy of a state rule is `not
. . . when the [Pennsylvania court] relied on it, but rather . . . the
date of the waiver that allegedly occurred." Bronshtein, 2001 WL 767593
at *5, quoting Doctor, 96 F.3d at 684. See also Reynolds v.
Ellingsworth, 843 F.2d 712, 725 (3d Cir. 1988) ("procedural default is
determined by the waiver law in effect at the time of the asserted
waiver") (internal quotations omitted). Thus, in cases where the waiver
upon which the Pennsylvania Supreme Court based its decision predated the decision
in Albrecht II, that Court's decision is not adequate to establish a
procedural bar to federal examination of those claims on habeas review.
Szuchon, 273 F.3d at 327 ("[S]uch a precedent setting use of a procedural
bar indicates that the bar was not firmly established, readily
ascertainable, and regularly followed at the time of the purported
defaults."). Because Petitioner's was the first capital case since 1978
in which the Supreme Court enforced the PCRA waiver rules, it follows
that the Supreme Court's consistent application of the PCRA waiver rules
did not begin until after Petitioner had waived his arguments.
Accordingly, this Court is not barred from considering Petitioner's
claims on the merits despite the Pennsylvania Supreme Court's finding
that they were procedurally waived.*fn6
Thus, the Court will address Counts II, V, VI, VII, VIII, IX, and X on
the merits. Because there is no decision of the Pennsylvania Supreme
Court to which this court must defer for legal conclusions, the Court
will review these claims de novo. Appel v. Horn, 250 F.3d 203, 210 (3d
In Count I, Petitioner complains both that he is actually innocent and
that the Pennsylvania courts wrongly denied him access to the funds
necessary to hire an expert to prove this contention. The Commonwealth
argues that the substantive aspect of Count I, that Petitioner is
actually innocent, was waived, and that only Petitioner's claim that he
should have been given funds to hire an expert was addressed on the
merits by the Pennsylvania Supreme Court. However, the Court finds that
no waiver occurred. Petitioner brought before the Pennsylvania Supreme Court the limited issue of whether he was improperly denied funds
to retain a fire expert. Generally, this would operate as a waiver to the
broader claim of actual innocence, as a Petitioner must fairly present
his claims to the highest state court for its review. Whitney v. Horn,
280 F.3d 240, 250 (3d Cir. 2002). citing O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). However, the procedural bar will not be
enforced where Petitioner can demonstrate cause and prejudice. Coleman,
501 U.S. at 750 ("In all cases in which a state prisoner has defaulted
his federal claims in state court . . . federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice"). Here, Petitioner could
not reasonably prove his case without expert testimony. Thus, by refusing
Petitioner the funds to hire such an expert, the Pennsylvania courts
prevented him from substantiating his claim that the Commonwealth's fire
science evidence was erroneous. This Court is unwilling to enforce the
"catch-22" of defaulting Petitioner for failing to make the case that an
expert is needed while denying the funds necessary to hire one.
Petitioner cannot reasonably be said to have waived his substantive
argument simply because the state courts refused him the means of making
it. Having eventually acquired the services of a competent expert and
having demonstrated that fire science has indeed changed as he alleges,
Petitioner will not be procedurally barred on this question.
Accordingly, the Court will review Count I on the merits, de novo.*fn7 III. Legal Standard
A. Federal Court Review of State Court Decisions
"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; or (2) 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).
In Williams v. Taylor, 529 U.S. 362, 404-05 (2000), the Supreme Court
explained the two-part analysis set forth in 28 U.S.C. § 2254(d). Under
the first part of the review, the federal habeas court must determine
whether the state court decision was "contrary to . . . clearly
established federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d). A state court decision can be contrary to
Supreme Court precedent in two ways: (1) "if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question
of law," or (2) "if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at
a result opposite to that reached by [the Supreme Court]." Williams, 529
U.S. at 404-05.
A state court decision involves an unreasonable application of Supreme
Court precedent: (1) "if the state court identifies the correct governing
legal rule from the Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case," or (2) "if the state
court either unreasonably extends a legal principle . . . to a new
context where it should not apply or unreasonably refuses to extend that principle to a new context where it
should apply." Williams, 529 U.S. at 407-08.*fn8
The Court's role is not akin to that of an appellate court, reviewing
errors. Bousely v. U.S., 523 U.S. 614, 621 (1998) ("[h]abeas review is an
extraordinary remedy and `will not be allowed to do service for an
appeal,'" quoting Reed v. Farley, 512 U.S. 339, 354 (1994) and Sunal v.
Large, 332 U.S. 174, 178 (1947)); 39 Am.Jur.2d Habeas Corpus and
Postconviction Remedies § 6. Likewise, the Court's purpose "is not to
determine guilt or innocence of prisoner of crime charged." Id. This was
made especially clear by the Anti-Terrorism and Effective Death Penalty
Act of 1996 (AEDPA). See Bell v. Cone, 535 U.S. 685, 693 (2002) ("[AEDPA]
modified a federal habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas `retrials' and to ensure
that state-court convictions are given effect to the extent possible
Because this is not an appellate review of the Pennsylvania Supreme
Court's decision, the Court must defer to the findings of fact reached by
that Court whenever they are supported by probative evidence. Wright v.
West, 505 U.S. 277, 302 (1992); Marshall v. Lonberger, 459 U.S. 422, 432
(1983); Riley v. Taylor, 277 F.3d 261, 285 (3d Cir. 2001). This deference
is not extended to questions of federal law or to mixed questions of
federal law and fact. Thompson v. Keohane, 516 U.S. 99, 109-111 (1995).
With respect to these latter questions, the Court may issue a writ of
habeas corpus only if the Pennsylvania Supreme Court's decision is
contrary to or an unreasonable application of federal law as determined by United States
Supreme Court precedent. 28 U.S.C. § 2254(d); Mitchell v. Esparza,
124 S.Ct. 7, 10 (2003); Williams v. Taylor, 529 U.S. 362, 379 (2000);
Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir. 2002).
B. Ineffective Assistance of Counsel
The standard for ineffective assistance claims was established by the
Supreme Court in Strickland v. Washington, 466 U.S. 668, 689 (1984).
Under Strickland, a Petitioner claiming ineffective assistance of counsel
must demonstrate (1) that counsel's performance was deficient, i.e.,
falling below an objective standard of reasonableness, and (2) that
counsel's deficient performance prejudiced his client. Id., 466 U.S. at
689-92. In examining the question of deficiency, "[j]udicial scrutiny of
an attorney's performance must be highly deferential." Id., 466 U.S. at
A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, 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.'
"[I]n considering claims of ineffective assistance of counsel, `[w]e
address not what is prudent or appropriate, but only what is
constitutionally compelled.'" Burger v. Kemp, 483 U.S. 776, 794 (1987).
citing U.S. v. Cronic, 466 U.S. 648 665, n.38 (1984). "To establish
deficient performance, a petitioner must demonstrate that counsel's
representation `fell below an objective standard for reasonableness.'"
Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003), quoting Strickland, 466 U.S. at 688. Reasonableness is considered within the
context of "prevailing professional norms." Wiggins, 123 S.Ct. at 2536,
quoting Strickland, 466 U.S. at 688.
However, even constitutionally deficient performance by counsel does
not mandate the issuance of a writ of habeas corpus unless prejudice is
shown. In order to demonstrate prejudice, the defendant must also show
that counsel's alleged 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. This in turn requires a showing 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.
"It is firmly established that a court must consider the strength of
the evidence in deciding whether the Strickland prejudice prong has been
satisfied. In Strickland, the Supreme Court emphasized that a court
hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury." Bruel v. Vaughn, 166 F.3d 163, 173
(3d Cir. 1999).
The Pennsylvania Supreme Court's determination as to whether there was
prejudice from counsel's deficiency is a decision on a mixed question of
fact and law to which the Court must defer unless it is contrary to or an
unreasonable application of United States Supreme Court precedent.
28 U.S.C. § 2254(d); Kane v. Kyler, 201 F. Supp.2d 392, 397, n. 9 (E.D.
IV. Claims of Error During the Guilt Phase
Petitioner's complaints can be divided into two categories: those
alleging error at the guilt phase and those alleging error at the
sentencing phase. The Court will address the former first, taking the
Counts in order and then cumulatively. A. Count I
In Count I, Petitioner argues that new developments in fire science
prove his claim of actual innocence. Petition at ¶¶ 15-16. Particularly, he
avers that the fire science evidence presented at his trial, introduced
to show that arson could be the only cause of the fire, has since been
shown to be inaccurate.
It is axiomatic that the execution of an innocent person is
constitutionally intolerable. According to Herrera v. Collins,
506 U.S. 390, 417 (1993):
[I]n a capital case a truly persuasive demonstration
of "actual innocence" made after trial would render
the execution of a defendant unconstitutional, and
warrant federal habeas relief if there were no state
avenue open to process such a claim. But because of
the very disruptive effect that entertaining claims of
actual innocence would have on the need for finality
in capital cases, and the enormous burden that having
to retry cases based on often stale evidence would
place on the States, the threshold showing for such an
assumed right would necessarily be extraordinarily
Although Herrera does not specify the burden of proof that a petitioner
must carry in order to meet the threshold showing, id. at 421 (O'Connor,
J., concurring), it was suggested that "petitioner would at the very
least be required to show that based on proffered newly discovered
evidence and the entire record before the jury that convicted him, `no
rational trier of fact could [find] proof of guilt beyond a reasonable
doubt.'" Id. at 429 (White, J., concurring in the judgment) (citing
Jackson v. Virginia, 443 U.S. 307
, 324 (1979)). "If the petitioner
asserts his actual innocence of the underlying crime, he must show `it is
more likely than not that no reasonable juror would have convicted him in
light of the new evidence.'" Calderon v. Thompson, 523 U.S. 538
(1998), quoting Schlup v. Delo, 513 U.S. 298, 324 (1995); U.S. v. Garth, 188 F.3d 99
(3d Cir. 1999); Douglas v. Beard, 2002 WL 550474
(E.D. Pa. 2002); Woods v. Brennan, 2001 WL 1428343 (E.D. Pa. 2001). "In
other words, the habeas petitioner must show that there probably would be
a reasonable doubt." Herrera, 506 U.S. at 882 (Blackmun, J.,
dissenting). In order to meet this burden, the new evidence must
foreclose the possibility of guilt, or at least of a guilty verdict.
Woods, 2001 WL 1428343 at *3.
Notably, the Court is not required to weigh the evidence:
[T]his inquiry does not require a court to `ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.'
Instead, the relevant question is whether, after
viewing 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. This familiar standard gives full
play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic
facts to ultimate facts.
Herrera, 506 U.S. at 401-02, quoting Jackson v. Virginia, 443 U.S. at
Moreover, "[this] exception is concerned with actual as compared to
legal innocence." Woods, 2001 WL 1428343 at *2, quoting Calderon, 523
U.S. at 559. "`Actual innocence' means factual innocence, not mere legal
insufficiency." Garth, 188 F.3d at 107. "Simply stated, `actual
innocence' means that the person did not commit the crime.'" Id., citing
Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir. 1992). The Supreme Court
has often emphasized the narrow scope of the exception. See, e.g.
Calderon, 523 U.S. at 559. "To be credible, a claim of actual innocence
must be based on reliable evidence not presented at trial." Id. (internal
The New Evidence
Petitioner has convincingly shown that the fire science evidence
presented by the Commonwealth at his trial has since been discredited. At
the evidentiary hearing before this Court on March 24, 2003, Petitioner called a qualified expert in fire
science investigation. Transcript of Evidentiary Hearing, March 24, 2003
("E.H.T. 3/24"), 25. He presented evidence that modern fire science
considers the Commonwealth's trial evidence to be an unreliable basis
upon which to conclude that a liquid accelerant necessarily was involved
and that the fire could have been caused only by arson. In short,
Petitioner's expert testified that the fire science evidence in this case
was as consistent with an accidental fire started in an upholstered
chair in the living room as claimed by Petitioner as with an accelerant
fire intentionally started in either the kitchen or the living room.
E.H.T. 3/24, 83. The Commonwealth offered no rebuttal witnesses.
Accordingly, having heard and considered the testimony of Petitioner's
expert, the Court finds it credible and accepts that the fire could have
been caused either intentionally or by accident.
The question, however, is whether this new evidence is legally
sufficient to prove that Petitioner is actually innocent. The Court
concludes that it is not.*fn9 The critical fact in the Court's analysis
is that the newly-discovered evidence demonstrates only that the fire
might have been accidental; it does not foreclose the possibility that
the fire was started by an arsonist using a liquid accelerant. E.H.T. 3/24, 84 and 94-96. Absent prosecutorial
misconduct, which is not alleged, the only issue is whether the new
evidence is sufficient to conclude that "no rational trier of fact could
[find] proof of guilt beyond a reasonable doubt." Herrera, 506 U.S. at
429.*fn10 Here, sufficient circumstantial evidence exists to support a
rational inference that the fire was caused by arson and that
Petitioner's conduct was deliberate. First, there was evidence that
Petitioner had the means to commit the arson. A gas can was found in the
trunk of his car. His fingerprints were on the can, which was covered in
soot. Based on this evidence, a rational trier of fact could conclude
that Petitioner intentionally started the fire with the gasoline, getting
soot and his fingerprints on the gas can, then carried it out of the
burning house and put it in the trunk of his car.
Second, from the evidence that Petitioner repeatedly abused his wife
just before her death, a reasonable juror could conclude that he intended
to harm her.*fn11 There was also evidence that Petitioner had threatened
to burn down the house on several previous occasions and on the night in
question. Answer at 5-6 (citing trial testimony of Larry Wimmer, John
Wheeler, Valerie Cullingford, and Carol Kuhns). Furthermore, the evidence
demonstrated that Petitioner had been drinking on the night before the
fire, which would allow a rational juror to infer that he might have
taken his violent behavior further than he had in the past. From this
evidence, a reasonable juror could have inferred that Petitioner
purposefully set the fire. If a chain of reasonable inferences exists that would allow a rational
trier of fact to conclude beyond a reasonable doubt that Petitioner was
guilty of the crime of which he was convicted, actual innocence has not
been shown. Garth, 188 F.3d at 107 ("Simply stated, `actual innocence'
means that the person did not commit the crime"). The test is not whether
the Court would have found Petitioner guilty or whether the Court
believes that Petitioner is guilty beyond a reasonable doubt. Jackson,
443 U.S. at 320, n. 13 ("[T]he standard announced . . . does not permit a
court to make its own subjective determination of guilt or innocence");
Herrera, 506 U.S. at 400 ("[F]ederal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution-not to
correct errors of fact"). Absent more definitive proof that the fire was
of accidental origin, there was sufficient evidence for a rational juror
to conclude that the fire was caused by arson and that Petitioner was the
Accordingly, Petitioner has not demonstrated actual innocence and the
claims asserted in Count I must be denied.
B. Count II
Count II of the habeas petition claims a denial of due process,
specifically denial of the right to a meaningful appeal, based on the
absence of transcripts for significant portions of the trial. Only a
small portion of the juror voir dire was transcribed, the testimony of
seven defense character witnesses was not transcribed at all, and the
direct examination of the defense expert was not transcribed. Thus,
Petitioner argues that he was unable meaningfully to perfect an appeal
based on potentially improper questions or rulings in those portions of
the trial. The Pennsylvania Supreme Court held that these claims had been
waived by the failure to raise them in the earlier stages of PCRA appeal. Albrecht II, 720 A.2d at 701.
Because that Court did not address the claims on the merits, this Court's
review is de novo. Appel, 250 F.3d at 210.
A more complete record, particularly with respect to the fire science
testimony, undeniably would have been preferable. The law is clear,
however, that Petitioner bears the burden of demonstrating harm from the
missing transcripts. The Court cannot award relief on the suggestion that
the transcript might show prejudice. "A criminal defendant must first
show a `colorable need' for a complete transcript" before the state must
respond. Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir. 1985). quoting
Mayer v. City of Chicago, 404 U.S. 189, 195(1971). "To warrant reversal,
the defendant must further make a specific showing of prejudice as a
result of the failure to produce the entire transcript." Kindler v.
Horn, 2003 WL 22221208 (E.D. Pa. 2003). citing U.S. v. Sierra 981 F.2d 123,
125 (3d Cir. 1992).
Petitioner has also presented evidence to support his allegation that
the Commonwealth attorney engaged in cross-examination of Petitioner's
character witnesses that might not have been proper.*fn12 However,
although Petitioner directs the Court's attention to several possible
violations that might have occurred, both during voir dire and during the
trial, he does not aver that any actually did occur. "Petitioner's burden
could have been met by introducing affidavits by petitioner, trial counsel, or both, of specific acts of prosecutorial
misconduct or ineffective assistance that they believe would be reflected
if a transcript existed." Sulecki v. Zimmerman, 1988 U.S. Dist. LEXIS
6421 (E.D. Pa. 1988). No such affidavits were introduced with respect to
any of the aforementioned allegations. Absent evidence of this type, the
Court cannot conclude that inappropriate questions actually were asked.
The Court recognizes the risk of creating a "catch-22" whereby the
absence of the transcripts precludes any attempt to obtain reversal.
However, the alternative overturning a jury verdict twice affirmed by
the Pennsylvania Supreme Court without a supported allegation of
impropriety defies both common sense and the "colorable need" standard
established in Mayer and Karabin, Accordingly, the petition must be
denied with respect to the claims asserted in Count II.
C. Count III
Count III alleges that the method of juror recruitment resulted in an
unconstitutional jury panel. This allegation was addressed on the merits
by the Pennsylvania Supreme Court on Petitioner's direct appeal, where
that Court held that the methods used by the sheriffs at the trial
court's direction were proper. Albrecht I, 511 A.2d at 771.
The Sixth Amendment does not mandate that every jury panel represent a
fair cross-section of the community, but only that the jury venire does.
See United States v. Guy, 924 F.2d 702 (7th Cir. 1991) (Defendant's
observation that no African-Americans were on jury panel insufficient to
establish systematic exclusion); United States v. Diaz, 1993 WL 85764
(E.D.Pa. 1993) (finding that "the defendant's sole observation [that no
Hispanics were on the jury panel] fails to show a systematic
exclusion"). "In order to establish a prima facie violation of the
fair-cross-section requirement, the defendant must show (1) that the
group alleged to be excluded is a `distinctive' group in the community;
(2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process." Duren
v. Missouri, 439 U.S. 357, 364 (1979): see also Henry v. Horn,
218 F. Supp.2d 671, 691-92 (E.D. Pa. 2002) ("Initially, the defendant
must demonstrate the percentage of the community made up of the group
alleged to be underrepresented, for this is the conceptual benchmark for
the Sixth Amendment fair-cross-section requirement").
The Supreme Court has not clarified the meaning of the term
"distinctive" in the context of the Duren analysis. Henry, 218 F. Supp.2d
at 694. It is clear that shared ideas alone are not enough. U.S. v.
Salamone, 800 F.2d 1216, 1220 (3d Cir. 1986). Although the Third Circuit
has not issued a comprehensive test to determine distinctiveness, courts
in at least four Circuits, including this one, have applied the Eleventh
Circuit's three-part test for distinctiveness: (1) that the group is
defined and limited by some factor (i.e., that the group has a definite
composition such as race or sex); (2) that a common thread or basic
similarity in attitude, ideas, or experience runs through the group; and
(3) that there is a community of interests among members of the group
such that the group's interest cannot be adequately represented if the
group is excluded from the jury selection process. See Willis v. Zant,
720 F.2d 1212, 1220 (11th Cir. 1983); see also U.S. v. Fletcher,
965 F.2d 781, 782 (9th Cir. 1992); Ford v. Seabold, 841 F.2d 677, 682
(6th Cir. 1988); Barber v. Ponte, 772 F.2d 982, 987 (1st Cir. 1985);
Henry, 218 F. Supp.2d at 695.
Accordingly, the Court will apply that standard in this case. Petitioner complains that the sheriff's deputies went to various area
shopping malls and gave jury summonses to people they found there.
Petition at ¶ 58. Some allegedly gave them principally to people that
they knew. Id. at ¶ 59. Petitioner claims that presence at a particular
mall or being an acquaintance of a deputy became de facto qualifications
for the jury panel. Id. at ¶ 62. He argues that this, in turn, excluded
two basic groups: (1) races other than those of the deputies and (2)
those who were not at the malls on that day. This argument is legally
insufficient to merit reversal.
With respect to his race claim, Petitioner has not provided even the
most basic facts showing how many of the summoned jurors were of minority
background and how that number compared to the population from which the
jury pool was drawn. This Court cannot reasonably determine whether there
was a racially disparate impact of the method of jury selection absent
this information. Furthermore, Petitioner's speculative argument that
some jurors may have been excluded on racial or other prohibited grounds
or that jurors in general were challenged on prohibited grounds is
unsupported by facts and therefore fails.*fn13
With respect to the claim that individuals who were not shopping on the
day in question or who were shopping elsewhere were systematically
excluded, the Court turns to the first prong of the Duren analysis,
i.e., that the group allegedly excluded be "distinctive." Petitioner has
not attempted to prove that the class of persons defined by not shopping
at a particular mall or not knowing a deputy sheriff are defined or
limited by any particular factor, that they have common attitudes,
ideas, or experiences, or that they share any meaningful community of
interest. See Willis, 720 F.2d at 1220. Thus, Petitioner has not even presented prima
facie evidence that his panel was unfair, much less that this unfairness
In light of the foregoing, it cannot be said that the Pennsylvania
Supreme Court's determination that the methods used by the sheriffs'
deputies comported with the Duren standards was contrary to or a
misapplication of existing Supreme Court precedent. Accordingly, the
Petition must be denied with regard to the claims asserted in Count III.
D. Count IV
Count IV claims that trial counsel was ineffective for failing to
object to evidence of prior bad acts. Petitioner avers that the
Commonwealth introduced evidence that had been specifically excluded by a
pre-trial ruling and evidence of a prior conviction that was nearly
eighteen years old.*fn14 On PCRA appeal, the Pennsylvania Supreme Court
denied these claims, holding that Petitioner had not shown sufficient
prejudice to merit reversal. Albrecht II, 720 A.2d at 703. It also held
that "the evidence in question was not of such a nature that its
admission would result in the denial of a fair trial." Id. This Court's
review is limited to the question of whether the Pennsylvania Supreme
Court's decision was contrary to or an unreasonable application of United
States Supreme Court precedent.
"The erroneous admission of evidence that is relevant, but excessively
inflammatory, might rise to the level of a constitutional violation."
Lesko v. Owens, 881 F.2d 44, 51 (3d Cir. 1989). Where the evidence "so
infuse[s] the trial with unfairness as to deny due process of law," the
verdict must be overturned. Estelle v. McGuire, 502 U.S. 62, 75 (1991),
citing Lisenba v. California, 314 U.S. 219, 228 (1941); Dowling v. U.S., 493 U.S. 342
(1990). However, "Judges are not free, in defining `due process,' to
impose on law enforcement officials [their] personal and private notions
of fairness and to disregard the limits that bind judges in their
judicial function. [They] are to determine only whether the 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 decency." Dowling, 493
U.S. at 353 (internal citations and quotations omitted). Furthermore, in
deciding whether Petitioner was denied due process of law, this Court
must consider the evidence in light of any limiting instructions given at
Petitioner contends that the prosecutor violated the trial court's
order by examining him on alleged acts of infidelity that occurred more
than seven months before the death of his wife. Defense counsel timely
objected, although some allegations of infidelity had already been
heard. Petition at ¶ 74-75. The trial judge denied a request for a
mistrial, but instructed the jury to disregard the questions. Petitioner
has presented no evidence that the jury disobeyed this instruction or
that the evidence of remote acts of infidelity was a significant part of
the Commonwealth's case. Furthermore, even if the jury disregarded the
limiting instruction, it is difficult to perceive how the evidence of
remote acts of infidelity could be so inflammatory as to deny due process
when the jury had before it evidence of acts of infidelity within months
of the fire. See Albrecht II, 720 A.2d at 703. Accordingly, the Court
agrees with the Supreme Court of Pennsylvania that no prejudice accrued
from the jury's limited exposure to this evidence.
Petitioner next objects to the Commonwealth's cross-examination, in
which the prosecutor questioned him about instances of alleged spousal
abuse that occurred more than seven months before his wife's death. The Pennsylvania Supreme Court,
however, noted that these questions were put to Petitioner in response to
his assertion that he had hit his wife only four or five times and only
within a few months of the fire. Albrecht II, 720 A.2d at 703.*fn15 The
trial court had ruled out admission of remote instances of spousal abuse
as improper evidence of bad character and prior bad acts. However, once
Petitioner denied having beaten his wife until shortly before the fire,
the Commonwealth was entitled to impeach his assertion. Thus, as the
Pennsylvania Supreme Court held, trial counsel could not have expected to
succeed on an objection, id., and therefore counsel was not ineffective
for failing to object. Finally, in light of the wealth of evidence of
serious abuse in the months prior to Petitioner's wife's death, evidence
of remote acts of spousal abuse would not be sufficiently prejudicial to
merit reversal. Accordingly, the failure to object was not ineffective
assistance and the admission of this evidence was not a due process
Finally, Petitioner claims that the Commonwealth improperly challenged
the opinions of his character witnesses by inquiring into their knowledge
of his 1962 assault conviction.*fn17 The Pennsylvania Supreme Court
addressed this question on PCRA appeal, and held that under Pennsylvania law the evidence of the older conviction was admissible to
impeach a reputation for peacefulness and that its admission was not so
prejudicial as to violate due process. Albrecht II, 720 A.2d at 702, n.
10, and 703. Because this Court's review is limited to matters of federal
constitutional law, the only question is whether the Pennsylvania Supreme
Court's decision on the question of due process was contrary to or an
unreasonable application of United States Supreme Court precedent. The
Supreme Court has never directly addressed this question and this Court
finds it highly unlikely that the mere allegation that Petitioner had
some undefined criminal record substantially swayed the jurors in this
case.*fn18 Therefore, this Court defers to the finding of the
Pennsylvania Supreme Court that Petitioner's due process rights were not
violated and his trial counsel was not ineffective for failing to
Whether taken separately or together, the admission of the
aforementioned evidence did not render Petitioner's trial unfair or
violate the community's fundamental conceptions of justice. Accordingly,
the claims asserted in Count IV must be denied.
E. Count V
Petitioner's fifth claim is that his trial counsel was ineffective for
failing to request a limiting instruction with respect to the
Commonwealth's evidence of spousal abuse, both recent and remote. On
direct appeal, the Supreme Court of Pennsylvania held that "evidence
regarding ill-will toward a victim in a homicide case is admissible" and that "when
the deceased victim's spouse is the defendant, evidence concerning the
marital relationship will be admissible for the purpose of illustrating
ill-will, motive, or malice. Evidence regarding hostility and strain in a
marriage is also admissible." Albrecht I, 511 A.2d at 772 (internal
On PCRA appeal, Petitioner raised the issue of ineffectiveness of
counsel, alleging constitutional error in counsel's failure to request a
limiting instruction explaining the purposes for which the evidence of
abuse could be used. In addressing this issue, the Pennsylvania Supreme
Court, apparently misunderstanding Petitioner's claim, declined to
revisit the question of admissibility. Albrecht II, 720 A.2d at 702-03.
The fact that evidence is admissible, however, does not necessarily
eliminate the need for a limiting instruction. Where prejudicial evidence
is admissible for some purposes, but not for others, such an instruction
would be appropriate.*fn19 See Commonwealth v. Billa, 555 A.2d 835, 841
(Pa. 1989). Thus, the Supreme Court's holding that the evidence was
admissible does not decide the question whether a limiting instruction
should have been requested by counsel. See 28 U.S.C. § 2254(d). Because
there are no findings with respect to this particular question, this
Court's review is de novo. Appel, 250 F.3d at 210.
Trial counsel is not constitutionally required to request a limiting
instruction any time that one could or would be given. Bruel, 166 F.3d at
170 ("In some circumstances, such an instruction may be strongly
advisable; in others, counsel may reasonably conclude that it is
strategically preferable to omit such a request since the instruction
might have the undesired effect of highlighting the other crimes evidence"). However, the Court
cannot find any valid strategic reason that trial counsel could have
chosen not to request a limiting instruction in this case. The evidence
of abuse was not briefly or fleetingly presented, but rather was a
substantial portion of the Commonwealth's case. The Commonwealth's
closing focused on the evidence of abuse, reviewed the violation of the
state court order, and invited the jury to "carry it to its logical
conclusion" and decide "what type of man is Al Albrecht." Petition at ¶
99 (quoting the trial transcript from August 7, 1980). Once the
Commonwealth had so forcefully focused on the prior bad acts, the danger
of highlighting them had passed. Instead, in the absence of a limiting
instruction, the jury was permitted to make the very character-propensity
inference that the Pennsylvania Rules of Evidence prohibit and the
prosecutor all but invited.*fn20 See Pa. R. of Evid. 404(b) and Petition
at ¶ 99.
In Billa, supra, 555 A.2d at 841-43, the Pennsylvania Supreme Court
held that counsel was deficient when he failed to request an appropriate
limiting instruction relating to inflammatory evidence of prior bad
acts. Where "it is apparent on this record that appellant's underlying
claim had arguable merit," the Court held, "the court's failure to give
such an instruction, upon request, would have been reversible error." 555
A.2d at 842. The court found "counsel to have been constitutionally
ineffective in failing to request an appropriate limiting instruction."
555 A.2d at 843. This Court agrees with the logic of Billa, and holds
that the failure to request a limiting instruction was deficient
assistance of counsel. In order to find counsel ineffective, the Court must also find that
Petitioner was prejudiced by this deficiency. There is no way of knowing
whether the jury made the improper character-propensity inference.
However, had the jury considered the prior bad acts evidence only for the
permissible purpose of demonstrating ill will, malice, or motive, a
reasonable juror could still have found Petitioner guilty.*fn21 Thus,
Petitioner has presented the Court with no reason to believe that the
jury made a character-propensity inference or would have to do so. The
Court's confidence in the jury's verdict is unshaken. See Strickland, 466
U.S. at 694. Accordingly, the claims asserted in Count V of the Petition
must be denied.
F. Count VI
Petitioner alleges that the admission of hearsay statements against him
violated his rights under the Confrontation Clause of the Sixth
Amendment. Petition at ¶ 109. Alternatively, he alleges that these
statements were inadmissible hearsay under state law and that his
attorney's failure to object to them constitutes ineffective assistance
of counsel. Petition at ¶ 109 and ¶ 235.
"In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him." U.S. Const., Amend VI.
Admission of hearsay statements against a criminal defendant violates the
Confrontation Clause unless the statement is admitted pursuant to a
"firmly rooted hearsay exception" or exhibits "particularized guarantees
of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Where a declarant testifies at trial, the Confrontation Clause
generally does not apply to statements purportedly made by that
declarant, even if they were introduced into evidence prior to declarant's testimony. See California v. Green, 399 U.S. 149, 158
(1969). However, if these statements are also inadmissible under the
state rules of evidence, the failure to object to them can constitute
ineffective assistance of counsel if their admission was prejudicial to
the defendant. See Carpenter v. Vaughn, 296 F.3d 138, 159 (3d Cir. 2002)
("the failure of . . . trial counsel to object based on state law
constituted ineffective assistance of counsel." The Circuit even
emphasized that its "holding is not based on any other federal
A state court's determination of prejudice is a decision on a mixed
question of fact and law to which the Court must defer on habeas review
unless it is contrary to or an unreasonable application of United States
Supreme Court precedent. 28 U.S.C. § 2254(d); Kane v. Kyler, 201 F.
Supp.2d at 397, n. 9.
Statements by Petitioner's Wife to Her Physician, Her Attorney, and Her
At trial, numerous statements made by Petitioner's wife to her
physician, her attorney, and her neighbor were admitted to show the
pattern of abuse. On direct appeal, the Pennsylvania Supreme Court held
that these conversations were admissible under the hearsay exception for
statements showing a course of conduct.*fn22 Albrecht I, 511 A.2d at
776, citing Commonwealth v. Cruz, 414 A.2d 1032 (Pa. 1980). Because the
Court finds that the statements had particularized indicia of
reliability, it need not reach the issue of whether this exception is
There is overwhelming evidence that Petitioner abused his wife.
Numerous witnesses, including her physician, testified to the physical
manifestations of abuse, including bruising and cigarette burns. Answer
at 3-5. Petitioner's son stated that his father hit his mother on the
night before the fire. Petitioner's Post-Hearing Memorandum of Law, Exhibit 1,
at 27. Police reports from the night before the fire suggest a domestic
disturbance. Even standing alone, the restraining order entered against
Petitioner in his wife's Protection from Abuse Act case represents a
judicial finding that abuse was occurring. Furthermore, the Petition does
not contest the fact that Petitioner abused his wife. See Petition at ¶
122; Albrecht II, 720 A.2d at 703. Accordingly, there can be no doubt
that Petitioner abused his wife on multiple occasions. This imbues the
statements made by his wife to her physician, her attorney, and her
neighbor with indicia of trustworthiness.
Particularly with respect to the conversation with her physician, the
context of the statements also indicates reliability.*fn23 The theory
that Petitioner's wife was falsely complaining of abuse to her
physician, her attorney, and her close friends while the abuse was
admittedly occurring strains credulity. Accordingly, the Court finds that
the statements admitted had particularized guarantees of trustworthiness
sufficient to satisfy the standard set forth in Roberts. Since the
Pennsylvania Supreme Court ruled that the evidence was admissible under
Pennsylvania law, counsel cannot be faulted for failing to object to its
Furthermore, even assuming arguendo that the admission of the
statements violated the Confrontation Clause, at most they were a small
part of the Commonwealth's compelling proof of abuse. Accordingly, admission of these statements was not
prejudicial. For both reasons, their admission was not a violation of the
Confrontation Clause and the claims in Count VI based upon them must be
Statements by Petitioner's Wife to Her Acquaintances
Petitioner also challenges the testimony of two of his wife's
acquaintances, who provided additional evidence of abuse. On PCRA
appeal, the Pennsylvania Supreme Court rejected this argument, holding
that the statements and observations to which these witnesses testified
was merely cumulative of the other evidence of abuse and was therefore
not prejudicial. Albrecht II, 720 A.2d at 705. As described above, the
evidence of abuse was overwhelming and the fact of abuse is not contested
by Petitioner. Accordingly, this Court agrees with the determination of
the Pennsylvania Supreme Court that no additional prejudice accrued from
the admission of these statements and observations and will therefore
deny the claims raised in Count VI based on them.
Statements by Petitioner's Son
Petitioner claims that the admission of hearsay statements made by his
son to their neighbors on the night before the fire was improper.
Petitioner's neighbors testified at trial that on the night before the
fire, Petitioner's son came to their house and told them that Petitioner
was beating his wife and threatening to burn the family house down.*fn24
Over objection, the trial court admitted these statements as excited
utterances.*fn25 See Pa. R. Evid. 803(2). On PCRA appeal, the Supreme Court of Pennsylvania disagreed, finding that the statements were
inadmissible hearsay. Albrecht II, 720 A.2d at 704-05.
The neighbors' testimony includes two separate assertions of fact
first that Petitioner was beating his wife and second that Petitioner had
threatened to burn down the house. The admission of the first of these
does not violate the Confrontation Clause, since it was supported both by
the observations of a police officer who went to the house that evening
and by the testimony of Petitioner's son. Furthermore, as noted above,
Petitioner's history of spousal abuse vests the statements with
significant indicia of reliability.
However, evidence of the alleged threat to burn down the house is not
supported by any indicia of reliability. Indeed, it was expressly
disavowed by the alleged declarant, who testified that Petitioner
threatened to burn his wife's dress, not the house. The Pennsylvania
Supreme Court addressed this claim as a hearsay claim and found that,
while the admission of the statement of Petitioner's son was improper,
the error was not prejudicial. See Albrecht II, 720 A.2d at 704-05.
Accordingly, it also found that Petitioner's counsel's failure to object
to it was deficient, but that counsel's performance was not ineffective
since the error was not prejudicial. Albrecht II, 720 A.2d at 705.
Although the improper admission of Petitioner's alleged threat to burn
down the house is troubling, the Court is unable to find that, standing
alone, it was so prejudicial that the Pennsylvania Supreme Court's
decision is contrary to or an unreasonable application of existing United
States Supreme Court precedent. See generally Estelle v. McGuire, 502
U.S. at 75 (only when admission of evidence "so infused the trial with
unfairness as to deny due process of law" does its admission violate due
process). Petitioner's son expressly denied making this statement during his testimony at trial. Furthermore, even if the jury credited the
neighbors' version of events, there was ample evidence on which to base a
conviction entirely divorced from this alleged threat. See infra, pp.
53-56. Accordingly, the claims in Count VI with respect to this statement
will be denied.
The Court finds that none of the foregoing alleged violations of the
Confrontation Clause or alleged instances of ineffective assistance of
counsel merits the issuance of a writ of habeas corpus. Accordingly, the
claims raised in Count VI will be denied.
G. Count VII
Count VII alleges the ineffective assistance of trial counsel in
failing to object to the trial court's instructions regarding
attorney-client contact during recesses.*fn26 The Pennsylvania Supreme
Court held that this claim had been waived by the failure to raise it in
the earlier stages of PCRA appeal. Albrecht II, 720 A.2d at 704. Because
that Court did not address the claim on the merits, this Court's review
is de novo. Appel, 250 F.3d at 210.
Petitioner is not offering an independent federal constitutional
challenge to the trial court's instruction, but rather is asserting that
the failure to protect his state law rights was ineffective assistance of counsel under the federal constitution.
Response at 56. The failure to object based on state law may form the
basis for an ineffective assistance of counsel claim. See Carpenter, 296
F.3d at 159.
The question then is whether Petitioner had a state law right to confer
with counsel during recesses occurring while he was testifying.
Petitioner avers that Pennsylvania law forbids courts from denying the
right to counsel during recesses. See Petition at ¶¶ 129-130, citing
Commonwealth v. Werner, 214 A.2d 276, 277 (Pa.Super. 1965), and
Commonwealth v. Vivian, 426 Pa. 192 (1967). This contention is not
without merit. For many years, the Pennsylvania Supreme Court
consistently held that no limitation of consultation was permissible.
Vivian, 231 A.2d at 304 ("there is no justification for imposing a
restriction of silence between accused and counsel during a trial
recess") (internal quotations omitted); Commonwealth v. Barber,
378 A.2d 1011, 1012-13 (Pa.Super. 1977). Indeed, the Pennsylvania Supreme
Court has never officially overruled those decisions.
However, the Vivian line of cases was based on the Pennsylvania Supreme
Court's interpretation of the United States Constitution. See Vivian, 231
A.2d at 303-04 ("This case also poses the serious question of whether or
not Vivian's right to the assistance of counsel, as guaranteed by the
Sixth Amendment to the United States Constitution, was illegally
restricted") (emphasis added). While Petitioner is correct that the
United States Supreme Court cannot overrule the Pennsylvania Supreme
Court's interpretations of Pennsylvania law, which may extend the bounds
of the right to counsel beyond those established by the United States
Constitution, the United States Supreme Court remains the final arbiter
of the bounds established by the federal Constitution. The Vivian line of
cases is explicitly based on an interpretation of the Sixth Amendment to the federal Constitution. Thus, decisions of the
United States Supreme Court interpreting the Sixth Amendment may overrule
or supplant Vivian and its progeny.
In 1989, the United States Supreme Court decided Perry v. Leeke,
488 U.S. 272 (1989), which clarified the effect of the Sixth Amendment
right to counsel on court recesses. Although it declined to overturn the
decision in Geders v. United States, 425 U.S. 80 (1976), which held that
a defendant cannot be precluded from consulting with counsel during
overnight recesses, the Perry Court also declined to hold that the right
to counsel is absolute during all recesses. Instead, the Court held that
a defendant may be completely precluded from consultation with his
attorney during a 15-minute recess between direct and cross
examinations. Perry, 488 U.S. at 282-84. Accordingly, the Court finds no
constitutional error in the trial court's instruction preventing
Petitioner from consulting with counsel during the recess between direct
and cross examinations.
Petitioner also raises a Sixth Amendment challenge to the trial judge's
order preventing him from consulting with his attorney during a two-hour
recess in the middle of the Commonwealth's cross examination of him. This
issue is one of first impression in this Circuit. According to Perry, "in
a short recess in which it is appropriate to presume that nothing but the
testimony will be discussed, the testifying defendant does not have a
constitutional right to advice." 488 U.S. at 284. The Court finds that in
the context of an ongoing cross-examination, a recess of an hour or two
is more akin to the 15-minute recess in Perry than the overnight recess
in Geders. During such a short period, the Court is convinced that the
sole relevant topics of discussion would be either the testimony itself
or issues which directly bear on it.*fn27 Accordingly, the Court finds that Petitioner was not denied his Sixth
Amendment right to counsel and that trial counsel therefore was not
ineffective for failing to object to the trial court's instructions.*fn28
Thus, the claims asserted in Count VII must be denied.
H. Count VIII
Count VIII claims ineffective assistance of counsel for failure
adequately to investigate and address Petitioner's mental condition and
the effect of medications that he was taking on his demeanor and
competence to testify. This claim raises questions that affect both the
propriety of the guilt phase and of the sentence. Because the Court will
vacate the sentence of death on other grounds, see pp. 53-56, infra, only
those issues affecting the question of guilt, the competence to stand
trial, or the capacity to testify will be addressed in this section. The
Pennsylvania Supreme Court held that these claims had been waived by the
failure to raise them in the earlier stages of PCRA appeal. Albrecht II,
720 A.2d at 705-06. Because that Court did not address the claims on the
merits, this Court's review is de novo. Appel, 250 F.3d at 210.
Petitioner has produced substantial evidence that at the time of trial,
he suffered from significant mental impairments.*fn29 However, the
touchstone question for ineffective assistance is whether counsel acted reasonably within professional standards when
researching and evaluating these questions at trial, not whether another
course of conduct appears appropriate now, after other testing has been
done and post hoc opinions given. Strickland, 466 U.S. at 689 (The Court
must consider the challenged conduct "from counsel's perspective at the
Two mental evaluations of Petitioner were performed prior to his trial
in 1980. The first was performed by Gerald Cooke, a clinical
psychologist. Dr. Cooke concluded that, while Petitioner "showed no
obvious disorder of thought or affect" and "presents as an uneducated
man, but one of average intelligence," he is a person "of rather limited
intelligence." Petition, Exhibit 8, at 1, 3. In tests conducted by Dr.
Cooke, Petitioner demonstrated an IQ of 80, which puts him in the bottom
10% of the population, at the lowest limit of the Dull Normal Range. Id.
at 3. Individual topic areas demonstrated an even lower IQ, particularly
in short term memory, where Petitioner's demonstrated IQ of 64 placed him
"well into the retarded range" and at the bottom 1% of the population. Id. Subjectively, Petitioner demonstrated a
tendency to bluff or rationalize where he did not know the correct
answer, often firmly asserting obviously incorrect answers. Id. Dr. Cooke
made no explicit finding with respect to Petitioner's competency to
testify or to stand trial.
Petitioner's trial counsel also requested a competency evaluation from
Robert Sadoff, M.D. Dr. Sadoff favorably cited Dr. Cooke's report,
joining in its conclusion that Petitioner was not the victim of a serious
psychiatric disorder, in need of hospitalization, or suicidal. Petition,
Exhibit 9, at 2. However, Dr. Sadoff expressly concluded that Petitioner
"is currently mentally competent to proceed legally," that he "knows the
nature and consequences of his current legal situation," and that he "can
work with counsel in preparing a rational defense." Id.
Petitioner argues that his counsel could not have acted effectively
because counsel's investigation was incomplete, in that it did not
discover the organic brain damage or dysthymia. Even assuming, arguendo,
that the investigation was incomplete, "strategic choices made after less
than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation." Wiggins, 123 S.Ct. at 2539, quoting Strickland, 466 U.S.
at 690-91. The Court must therefore evaluate the strategic choice to call
the Petitioner to the stand in light of the allegedly incomplete
investigation by determining to what precise extent the limitation on
investigation was reasonable.
Counsel's investigation into competence issues seems to have ended with
Dr. Sadoff's conclusion that Petitioner was competent. Given that the
crime did not necessarily implicate Petitioner's sanity, that Petitioner
"showed no obvious disorder of thought or affect," "present[ed] as an
uneducated man, but one of average intelligence," and that Petitioner's
own expert had determined that Petitioner was competent to be tried, the
Court cannot conclude that terminating the investigation at this point
Finally, while Petitioner avers that trial counsel failed adequately to
advise him against testifying at trial, he has introduced no evidence of
Petitioner also claims ineffective assistance due to counsel's alleged
failure to investigate the medications that Petitioner was taking at the
time of trial, specifically Sinequan and Serax. Petitioner claims that
these medications affected his demeanor at trial, making him appear
sedated and limiting his capacity to demonstrate emotion, with the effect
of prejudicing the jury's opinion of him. Petition at ¶¶ 147-48.
Petitioner avers that trial counsel should have informed the jury about
Petititioner's medications, requested an instruction to inform the jury
of those medications, and requested that the jury be allowed to see
Petitioner in his unmedicated state. Petition at ¶¶ 148. While the
concerns that Petitioner raises are echoed in Justice Kennedy's
concurrence in Riggins v. Nevada, 504 U.S. 127, 142 (1992), which
Petitioner cites, Riggins dealt with the forced medication of a defendant
before trial. There is no evidence that Petitioner's medication was
involuntary or was designed to make him competent to be tried.
Petitioner asserts that counsel unreasonably failed to request that the
jury be allowed to see him in his "undrugged, anxious, and depressed
state." Petition at ¶ 148, citing Commonwealth v. Holland, 518 Pa. 405,
423 (1988). However, Holland deals with demeanor during sentencing, where
perceptions of a defendant's emotional state are particularly important,
not trial. This section deals only with errors in the guilt phase.
Petitioner has failed to demonstrate that had the jury seen him
unmedicated, this could be expected to have any effect on their
determination of guilt. Furthermore, the choice not to bring the medication to the jury's
attention during the guilt phase was well within the range of sound trial
strategy. Petitioner's counsel might reasonably have concluded that
highlighting his client's depression and anxiety to the jury would have
led them to conclude that he was more likely to have the mental state
required to commit the crimes charged. Alternately, counsel might have
been concerned that they would conclude that the anxiety and depression
were the result of having committed the crime. Either way, since
Petitioner's own expert had concluded that he was competent to stand
trial and that he would have known the "nature and quality of his acts
had he started the fire, Petitioner's counsel might reasonably have
concluded that informing the jury that Petitioner was medicated would do
more harm than good, at least during the guilt phase. Accordingly, the
Court finds no deficiency in counsel's failure to inform the jury of
Petitioner's medication during the trial phase or to request a jury
instruction about it at that time.
It is also not clear that Petitioner's testimony was substantially
affected by his medication. Although Petitioner describes his testimony
at trial as "rambling, incoherent, and full of irrelevant details,"
Petition ¶ 149, Dr. Crown's report suggests that this is a symptom as
likely to be related to his personality or his personality disorders as
to his medication. Similarly, Petitioner's failures of recollection seem
as likely to be related to the memory deficiencies noted in Dr. Crown's
report than to his medication. Petition, Exhibit 6, at 1-2. At the time
of trial, Dr. Sadoff said that Petitioner slept and ate well and was not
having difficulty in prison. Petition, Exhibit 9, at 2. Dr. Cooke noted
that Petitioner seemed less depressed that he actually was. Petition,
Exhibit 8, at 4. Both of these comments suggest that the effect of the
medication may not have been immediately perceptible to trial counsel.
Furthermore, there remains the possibility that the medication actually allowed Petitioner to be more
expressive, if it allowed him to function more normally and to appear
less depressed than he was. Id. Given the high level of deference that
must be given to counsel's trial strategies, the Court cannot find that
counsel was deficient in addressing the issue of Petitioner's
Finally, Petitioner has not suggested that his sleepy or sedated
demeanor was ever commented upon by the Commonwealth or brought to the
jury's attention. Given that Petitioner has not demonstrated that the
medications actually had a significant, perceptible negative effect on
his testimony, he has failed to demonstrate prejudice.
The claims asserted in Count VIII will therefore be denied.
I. Brady Violations
Although no claims pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
were included in the original Petition, the Court has agreed to hear
those Brady claims which derive from evidence first disclosed pursuant to
this Court's Order of January 26, 2001. See Order of January 10, 2003
(docket no. 47).*fn30 Petitioner's Brady claims are based on the alleged failure timely to
disclose two distinct groups of statements. The first group consists of
the statements of Alien Doelp, Thomas Jacob, Carol Frick, Elwood Steich,
and Valeric Cullingford, all Commonwealth witnesses who testified at
trial. Petitioner concedes that the statements of Doelp, Frick, Steich,
and Cullingford were provided at the outset of cross-examination. He does
not concede that Mr. Jacob's statement ever was disclosed. The second
group of statements consists of the statements of Jeffrey Doelp and Nancy
Mohr, who did not testify at trial. With respect to those statements
disclosed at trial, Petitioner's Brady claim is based on dilatory
disclosure. With respect to those not disclosed at trial, his Brady claim
is based on non-disclosure.
The threshold question, both with respect to whether the Court can hear
Brady claims and with respect to whether those claims will succeed, is
whether the materials actually were disclosed to Petitioner's trial
counsel at the time of trial. Kyles v. Whitley, 514 U.S. 419, 433
(1995). At the evidentiary hearing on March 24, 2003, there was
considerable discussion about whether the materials were disclosed at the
time of trial.
The sum total of the evidence presented by Petitioner in favor of his
claim that the materials were not timely disclosed is the Declaration of
Stanford Shmukler, Esq., Petitioner's trial counsel ("Declaration").*fn31
In short, the Declaration states that: (1) Attorney Shmukler has no
independent recollection of whether or not he received the materials in
question; (2) during the PCRA proceedings, Attorney Shmukler provided his
trial preparation materials to David Shenkle, Petitioner's attorney at the time; (3) Attoney Shmukler has
reviewed the trial preparation materials and the remainder of the file in
Petitioner's case with Petitioner's current counsel, but such review has
not refreshed Attorney Shmukler's recollection; and (4) any witness
statements that were provided to Attorney Shmukler would normally be
included in his trial preparation file. See Declaration ¶¶ 3-5.*fn32
Petitioner also called the prosecuting attorney, Robert Goldman, Esq.,
at the evidentiary hearing. Attorney Goldman, now an Assistant United
States Attorney, testified at length about his general disclosure
practices in criminal cases, although he noted that, "thinking back 22
years, it's difficult to say exactly what I gave at any given time." T.E.
3/25/03, at 20. Goldman's normal practice was to make the disclosures
required by law before trial, but otherwise to provide witness statements
to defense counsel at the end of the direct examination of those
witnesses. T.E. 3/25/03 at 19-25, 28.
Petitioner asks the Court to conclude that the absence of the
statements of Jeffrey Doelp, Nancy Mohr, and Thomas Jacob from Attorney
Shmukler's case file indicates that these statements were never
disclosed. Attorney Goldman's general practice was not to disclose the
statements of witnesses who did not testify. This supports the inference
that the statements of Doelp and Mohr were never disclosed. Accordingly, the Court concludes for
the purposes of this Petition that the statements of Doelp and Mohr
(hereinafter the "Undisclosed Statements") were not disclosed to
Petitioner's counsel at trial.
With respect to the statement of Mr. Jacob, however, the Court would
have to conclude that Attorney Goldman deviated from his practice,
without any evidence for this proposition beyond the statement's absence
from the trial folder, which, under the circumstances recited above, is
insufficient. Experience demonstrates that even well-kept files may not
remain entirely intact over the course of two decades. Indeed, it was
suggested at the evidentiary hearing that some trial materials that are
known to have been disclosed were not present in the file as it now
exists. T.E. 3/25/03, at 28 (Attorney Goldman's statement that "[N]ot all
the correspondence I sent [Attorney Shmukler] is in the file"). The
evidence thus suggests, and the Court concludes for the purposes of
ruling on this Petition, that the statements of Alien Doelp, Thomas
Jacob, Carol Frick, Elwood Steich, and Valerie Cullingford (the
"Disclosed Statements") were disclosed no later than the beginning of
This Court granted leave to argue the Brady claims for materials that
were never disclosed to Petitioner and to which he therefore had no
access during direct or collateral appeal. The Disclosed Statements have
been in Petitioner's possession since trial. Accordingly, those
statements were available to Petitioner during his direct and PCRA
appeals and he has procedurally defaulted on any Brady claims based on
them by failing to bring the claims at any point prior to this
Petition.*fn33 With respect to the Undisclosed Statements, the analysis necessarily
differs. The Court has already excused the procedural default caused by
Petitioner's failure to raise Brady claims based on statements that were
not disclosed at trial. See Court's Order of Jan. 10, 2003. Accordingly,
the Court will consider these claims on the merits. Evidence is
exculpatory if "there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different." Kyles, 514 U.S. at 434. A reasonable probability is one
"sufficient to undermine confidence in the outcome." U.S. v. Bagley,
473 U.S. 667, 682 and 685 (1985).
Petitioner contends that several of the Commonwealth's other witnesses
had changed their pre-trial statements that the two were equally sooty to
observations at trial that Petitioner had less soot on him than his son.
Petitioner's Post-Hearing Memorandum of Law at 30-32. This latter
version, Petitioner claims, implies that Petitioner and his son were not
similarly situated (i.e. in bed inside the house) when the fire started.
Petitioner's Reply to Respondent's Post-Hearing Memorandum at 18.
Petitioner argues that the Undisclosed Statements show the presence of
soot on Petitioner following the fire.
Petitioner's argument is without merit. The presence or absence of soot
was not a significant portion of the Commonwealth's case. In fact, the
Commonwealth never mentioned soot in its closing argument. Attorney
Goldman explained this omission at the evidentiary hearing. When asked
whether soot was a key part of the Commonwealth theory of guilt, he
replied "It certainly wasn't, and the reason being well, simply
the first point is that the witnesses we found were all over the place on
that. We had witnesses some witnesses said he was covered with
soot, some said he had some soot, some said he had little soot, and some
saw no soot. . . ." T.E. 3/25/03, at 38-39. Furthermore, Goldman noted that one
of the Commonwealth's key witnesses, Trooper Donald Gloria, said
Petitioner was covered in soot. Id. Given the contradictory accounts, the
Commonwealth specifically refrained from using evidence of soot.
Finally, it is clear that Petitioner's son was still in the house, on
the second floor, when Petitioner exited. Commonwealth's Post-Hearing
Memorandum of Law at 2, citing T.T.s 7/22/80, at 148; 7/30/80 at 210-11;
8/1/80 at 98. Thus, the jury could have determined that Petitioner's son
had greater exposure to the rising, black smoke over a longer period than
did Petitioner. From this, the jury might reasonably have concluded
that, regardless of how or where the fire started, Petitioner's son would
have had more soot on him than his father, who was on the ground level.
Given the foregoing, the Court does not conclude that the content of
the Undisclosed Statements was material to the case or that the failure
to disclose them was prejudicially harmful to Petitioner. Accordingly, no
writ shall issue based on the Brady claims.
J. Count XIV
Count XIV alleges that, even if none of the errors cited above was
sufficiently prejudicial to warrant relief, their cumulative effect
requires reversal of Petitioner's conviction on grounds of ineffective
assistance of counsel.*fn34 Because the Pennsylvania Supreme Court did
not address the issue of cumulative prejudice, this Court's review is
de novo. Appel, 250 F.3d at 210. Cumulative prejudice is evaluated under the two-step process described
in Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d Cir. 1996). See Wallace
v. Price, 2002 WL 31180963 (W.D. Pa. 2002). First, the Court must decide
whether counsel's conduct was deficient. Here, the Court found that
counsel was deficient in failing to request a limiting instruction on the
use of the evidence of spousal abuse and in failing to object when
Petitioner's neighbor introduced the alleged out of court statement of
Petitioner's son. The second step in the Berryman process is to determine
whether, taken together, these errors prejudiced Petitioner. The relevant
standard is the same as that for individual errors.*fn35
This Court may not independently examine whether Petitioner is guilty.
Disregarding the evidence that might not have been admitted had counsel
objected, there was ample basis on which a reasonable jury could have
convicted Petitioner.*fn36 First, it is undisputed that when the fire
started, Petitioner was on the floor where it ignited. It is also clear
that he was the only person on that floor at the time the fire began.
Second, even considering the evidence of abuse in light of the limiting
instruction that should have been requested, that evidence does establish
motive. While there is a significant difference between abuse and murder, the jury was entitled to conclude
that a pattern of abuse gave rise to a motive to kill. This is
particularly true when, as here, a restraining order had been entered
against the abuser. At the time of his wife's death, Petitioner was
living in his home and abusing his wife, both violations of the court
order. Answer at 3, citing T.T. 7/30/80, pp. 161-72. Even absent the
strong history of abuse, a reasonable trier of fact could conclude from
these violations that Petitioner had a motive to kill his wife.
The physical evidence against Petitioner is significant. Of this
evidence, most compelling is the presence of an empty gasoline can in the
trunk of his car. In his statement to the police after the fire,
Petitioner's son indicated that the family did not store gasoline in the
house, either for their lawn mower or for Petitioner's business.
Petitioner's Post-Hearing Memorandum of Law, Exhibit 1, at 12. The empty
can had soot on it, and Petitioner's fingerprints were in the soot.
Testimony established that Petitioner had tried to purchase gasoline,
using the same can, the day before the fire. It cannot be said that no
reasonable juror could connect these pieces of evidence and conclude that
they demonstrated arson.
Finally, several of Petitioner's statements were introduced against
him. Testimony established that before the fire, Petitioner had said that
if he could not get back into his house he would kill his wife, that he
was going to "go home and shoot the old lady and burn the house down,"
that he was going to "burn the house down," that he would rather see the
house burn down than let his wife have it, and that he "would sooner burn
the god-damn thing down" than let his wife have it. Answer at 5-7,
citing T.T.s 7/30/80 and 7/31/80. After his wife's death, he was said to
have referred to the fire as "one of those things" and was alleged to
have said that he was glad it was over and that he had a good lawyer and
could get away with it. Id. These statements, while of limited probative value, taken together could
reasonably be combined with other evidence to support the conclusion that
Petitioner had a motive, had considered committing the crime, and had an
emotional state consistent with the perpetrator of the crime.
In sum, even if the improperly-admitted statement by Petitioner's son
is disregarded and the proof of abuse is limited to demonstrating motive,
there was ample evidence from which reasonable jurors could find
Petitioner guilty beyond a reasonable doubt. This Court must not weigh
the evidence anew, particularly in light of the strong presumption of
reliability given to a jury verdict.
In light of the weight of the evidence against Petitioner, counsel's
errors, even aggregated, did not materially prejudice Petitioner's case.
Given the wealth of evidence introduced at trial, the Court cannot
conclude that there is a reasonable likelihood that no reasonable juror
would have found guilt beyond a reasonable doubt.
Accordingly, the claims asserted in Count XIV of the Petition must be
V. Claims of Error During Penalty Phase
Because the Court will grant the writ of habeas corpus on the grounds
alleged in Count XI, it is unnecessary to reach the remaining penalty
phase claims asserted by Petitioner.
Count XI alleges that the sentencing instructions given to the jury
were constitutionally defective because of their ambiguity with respect
to whether mitigating factors must be found unanimously. In Mills v.
Maryland, 486 U.S. 367 (1988), the Supreme Court held that "[i]f
under the sentencing scheme it is possible for jurors to agree that
mitigating circumstances exist, but, because of a lack of unanimity as to
which mitigating circumstances exist, to conclude that they may not consider those circumstances, the sentencing scheme is
unconstitutional." Banks v. Horn, 271 F.3d 527 (3d Cir. 2001), rev'd on
other grounds, Horn v. Banks, 536 U.S. 266 (2002) ("Banks II"),*fn37
citing Mills, 486 U.S. at 374. The instructions need not express this
erroneous understanding of the law of mitigating circumstances; ambiguous
instructions are equally fatal. Banks II, 271 F.3d at 544, citing Mills,
486 U.S. at 375-76 ("[T]he critical question is not whether a
constitutional construction is possible, but whether a reasonable jury
could have interpreted the instructions in an unconstitutional manner,
that is, as restricting them to finding only those mitigating
circumstances as to which all can agree"). A court examining these
instructions must therefore focus on the potential for or risk of jury
confusion as to its role. Banks II, 271 F.3d at 545.
In Banks II, the Third Circuit examined instructions very similar to
those in this case.*fn38 The instructions in this case provided in
The Crimes Code provides that the verdict must be a
sentence of death if the jury unanimously finds at
least one aggravating circumstance and no mitigating
circumstance or if the jury unanimously finds more
aggravating circumstances which outweigh any and all
mitigating circumstances. In all other cases, the
verdict must be a sentence of life imprisonment. . .
Remember that your verdict must be a sentence of death
if you unanimously find at least one aggravating
circumstance and no mitigating circumstances or if you
unanimously find one or more aggravating
circumstances, and there is only one in this case, one
submitted to you which outweighs any and all
mitigating circumstances. In all other cases, your verdict must be a sentence of
With insignificant grammatical differences, the language of the first
paragraph of the instructions in this case is identical to the
corresponding language of the instructions in Banks II; Frey; Henry; Fahy
v. Horn, 2003 WL 22017231 (E.D. Pa. Aug. 26, 2003); and Kindler, In each
of these cases, the sentence was overturned on the grounds that the
quoted instruction was ambiguous and therefore violated the Mills rule.
"The recent decision in Banks v. Horn virtually compels the conclusion"
that the instructions given in this case were unconstitutionally
ambiguous. Henry, 218 F. Supp.2d. at 687, citing Banks I. As in Henry,
"the precedents that the Pennsylvania Supreme Court relied on to make
[the Mills] determination essentially concluded that the jury instruction
was constitutional because it quoted from the language in the death
penalty statute." Id. at 687-88. By so doing, "the Pennsylvania Supreme
Court ruled that there was no Mills violation without ever really
applying the teachings of Mills." Banks I, 271 F.3d at 545. This
constitutes an unreasonable application of Mills. Id. As in Henry, "the
Pennsylvania Supreme Court failed to quote any of the jury instructions."
Henry, 218 F. Supp.2d at 688.
In its analysis in Banks I, the Third Circuit found two elements likely
to create confusion in a juror's mind. First, it found that the jury
instruction emphasized jury unanimity in close proximity to the
mitigating circumstances clause. Banks I, 271 F.3d at 547-48 (referring
to the phrase "if the jury unanimously finds at least one aggravating
circumstance and no mitigating circumstance"). Identical language was
used in this case. Second, the Third Circuit found that the instructions
at issue in Banks emphasized the difference between the relative burdens
of proof for showing aggravating and mitigating circumstances but did not
mention the difference in the unanimity requirements. This case also
presents that problem. Petition at ¶ 195, citing T.T. 8/8/80 at 78-79.
To repeat, the trial court's instructions in this case were virtually
identical to those in Henry, Kindler, and Fahy, In each of those cases,
the death sentences were overturned on Mills grounds. See Henry, 218 F.
Supp.2d at 688-89; Kindler, 2003 WL 22221208 at *11-*14; Fahy, 2003 WL
22017231 at *41. The Court finds that the ambiguity inherent in the
instructions is sufficient to create confusion among jurors about whether
unanimity was necessary to find mitigating factors. Confusion of this
type renders the enhancement of a sentence unconstitutional under the
rule announced in Mills and Banks I, Accordingly, the Court joins the
reasoning of Henry, Kindler, and Fahy in finding the instruction in
question unconstitutionally ambiguous. See Henry, 218 F. Supp.2d at
688-89; Kindler, 2003 WL 22221208 at *11-*14; Fahy, 2003 WL 22017231 at
In Banks v. Horn, 316 F.3d 228, 235 (3d Cir. 2003) ("Banks III"), the
Third Circuit held that Mills did not introduce a "new rule" for purposes
of the analysis required by Teague v. Lane, 489 U.S. 288 (1989). Thus,
although Petitioner's conviction became final before the decision in
Mills, the constitutional rules it announced apply retroactively to this
Accordingly, the Court finds that Petitioner's sentence was enhanced in
an unconstitutional manner and that the enhancement must therefore be
vacated. VI. Conclusion
The Court finds insufficient prejudicial error to support vacating
Petitioner's conviction. However, the instructions given to the jury at
sentencing were unconstitutionally ambiguous. Accordingly, a writ of
habeas corpus shall issue, directing that Petitioner either be given a
new sentencing hearing or be sentenced to life imprisonment.