The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge
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.
The facts of the case, as found by the trial court, are as
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 ...