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REVELS v. DIGUGLIELMO

July 13, 2004.

MAURICE REVELS, Petitioner
v.
DAVID DIGUGLIELMO, AND THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.



The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge

MEMORANDUM AND ORDER

I. PROCEDURAL HISTORY

This is a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by a state prisoner currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania.

  On March 4, 1994, following a jury trial presided over by the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, petitioner and his co-defendant, Alan Presbury, were convicted of first-degree murder, criminal conspiracy, possession of an instrument of crime, and violation of the Uniform Firearms Act. Judge Greenspan sentenced petitioner to life imprisonment on the murder charge, with consecutive terms of five to ten years for aggravated assault and eighteen months to five years for violation of the Uniform Firearms Act. No penalty was imposed for the remaining conviction.

  After his post-sentence motions were denied, petitioner filed a direct appeal with the Pennsylvania Superior Court. In his appeal, petitioner claimed that: 1) the trial court erred in admitting the prior inconsistent statement of Leatrice Jones for impeachment purposes; 2) the trial court erred in admitting the prior inconsistent statement of Leatrice Jones as substantive evidence; and 3) the trial court erred in refusing to admit the testimony of Deborah Griffin, the attorney for an unavailable witness whose preliminary hearing testimony was introduced at trial. The Superior Court affirmed the judgment of sentence on July 12, 1995, finding that petitioner's claims lacked merit. Commonwealth v. Revels, 667 A.2d 423 (Pa. Super. 1995) (Table). Subsequently, the Pennsylvania Supreme Court denied petitioner's request for allocatur on March 12, 1996. Commonwealth v. Revels, 674 A.2d 1069 (Pa. 1996) (Table).

  On December 16, 1996, petitioner sought collateral relief by filing a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. The PCRA court appointed counsel to argue on petitioner's behalf and ultimately dismissed the petition on November 13, 1997. Thereafter, petitioner filed a timely notice of appeal. However, on September 30, 1998, the Pennsylvania Superior Court dismissed the appeal without prejudice because petitioner's court-appointed counsel failed to file an appellate brief.

  Petitioner filed a second pro se PCRA petition on October 14, 1998. The court appointed new counsel, but petitioner chose not to file an amended PCRA petition. Rather, petitioner sought nunc pro tunc relief, filing a "Petition for Reinstatement of Appellate Rights." The PCRA court denied this petition on March 12, 1999. However, the Pennsylvania Superior Court reversed and remanded the PCRA court order, reinstating petitioner's right to appeal his first PCRA petition. Commonwealth v. Revels, 758 A.2d 724 (Pa. Super. 2000) (Table).

  Accordingly, the Pennsylvania Superior Court reviewed petitioner's appeal of the first PCRA decision. Specifically, the court reviewed two claims raised by petitioner's counsel: 1) that trial counsel was ineffective for failure to call, at an unavailability hearing, counsel of a deceased witness in order to impeach that witness; and 2) that trial counsel was ineffective for failure to cross-examine a Commonwealth witness about a criminal case in which she was involved. The court also addressed four claims raised by petitioner in his pro se brief, which alleged that 1) the Commonwealth committed prosecutorial misconduct in its opening statement by referring to a pretrial newspaper article; 2) the trial court improperly failed to charge the jury on accomplice liability; 3) the trial court improperly failed to charge the jury on involuntary manslaughter; and 4) the trial court improperly charged the jury on the degrees of murder with which petitioner was charged, thus leading to an impermissible verdict. The Superior Court affirmed the order of the PCRA court on February 4, 2003, finding that petitioner's claims lacked merit. Commonwealth v. Revels, 821 A.2d 136 (Pa. Super. 2003) (Table). On September 5, 2003, the Pennsylvania Supreme Court denied petitioner's request for allocatur. Commonwealth v. Revels, 834 A.2d 1142 (Pa. 2003) (Table).

  Petitioner filed the current petition seeking a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on September 26, 2003, setting forth the following claims: 1) counsel was ineffective for failure to object to the jury instruction on the degrees of murder; 2) counsel was ineffective for failure to request a jury instruction on accomplice liability; 3) counsel was ineffective for failure to seek a cautionary instruction; 4) counsel was ineffective for failure to preserve the issue of petitioner's allegedly coerced confession and other suppression issues; 5) counsel was ineffective for failure to object to the prosecutor's use of a pretrial newspaper article in her opening statement; 6) the trial court erred in admitting the prior inconsistent statements of Leatrice Jones for impeachment purposes; 7) the trial court erred in admitting the prior inconsistent statements of Leatrice Jones for substantive purposes; 8) the erroneous admission of Leatrice Jones' statements warrants a new trial; and 9) the trial court erred in denying the defense's request to admit the testimony of Deborah Griffin for impeachment of an unavailable witness. Of particular interest to this Court is petitioner's last claim — that the trial court erred in refusing to admit the testimony of Ms. Griffin.

  II. FACTUAL BACKGROUND

  The facts of the case, as found by the trial court, are as follows:
On the morning of January 17, 1993, at around 9:00 a.m., the decedent, Brian Moore, walked down the 2200 block of Sergeant Street in North Philadelphia with a fifteen-year old girlfriend. Unbeknownst to Moore, defendant Presbury and defendant Revels — disguised in black ski masks and armed with semi-automatic firearms — waited nearby in a stolen van for Moore to leave his home. Upon seeing Moore, defendants immediately rode along-side the couple, stopped the van, and emerged with their guns drawn. Moore, believing that he was the intended victim of a robbery, offered defendants his gold chain. Instead of accepting the chain, defendants told Moore that they wanted him.
Defendants pushed the girl aside and pursued Moore as he fled the scene. Although defendants shot Moore in the back, Moore continued running toward the neighborhood community center. Upon reaching the community center, Moore broke the center's door off its hinges and bolted up a flight of stairs to the second floor. Defendants tracked the terrified Moore to the second-floor front room of the community center and shot at Moore when they found him. With nowhere else to run, Moore jumped from the second floor window. As Moore lay immobile on the ground, defendant Presbury came to the second floor window that Moore had just leapt from and proceeded to shoot down at Moore. Meanwhile, having seen Moore jump, defendant Revels ran down the stairs and also fired at the prone Moore. Defendant Presbury soon joined defendant Revels at street-level in shooting Moore.
Trial Court Opinion (1994), at p. 3-4 (emphasis in original).

  Christopher Perrin testified at a preliminary hearing as a witness for the Commonwealth. In his preliminary hearing testimony, Mr. Perrin stated that both petitioner and co-defendant Presbury admitted to him that they had shot and killed Brian Moore. Mr. Perrin testified that petitioner and co-defendant Presbury told him of the circumstances surrounding Moore's death, as described in the trial court's findings of fact above. Ms. Deborah Griffin was appointed as Mr. Perrin's attorney in this matter, after the testimony he offered at the preliminary hearing tended to implicate him in Moore's murder.

  At trial, the Commonwealth introduced the preliminary hearing testimony of Christopher Perrin, then deceased, by reading into the record the portion of that testimony that implicated petitioner and co-defendant Presbury in Moore's murder. Petitioner then sought to introduce the testimony of Mr. Perrin's attorney, Ms. Griffin, regarding a subsequent conversation between Mr. Perrin and Ms. Griffin. According to petitioner, Ms. Griffin was prepared to testify that Mr. Perrin contradicted his preliminary hearing statement and admitted to her that he had murdered Moore. Ms. Griffin also was prepared to testify that Mr. Perrin admitted stealing the gun used to murder Moore from petitioner's girlfriend. Trial Court ...


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