United States District Court, E.D. Pennsylvania
July 13, 2004.
MAURICE REVELS, Petitioner
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
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 Opinion (1994) at p.13. The
trial court would not allow petitioner to admit Ms. Griffin's
testimony for purposes of impeaching and/or contradicting Mr.
Perrin's preliminary hearing testimony.
Petitioner claims that the trial court error of refusing to
admit the testimony of Ms. Griffin, attorney for the deceased
witness Christopher Perrin, for purposes of impeaching Mr.
Perrin's testimony was a violation of his right to a "fair trial
and due process."*fn1 According to petitioner, Ms. Griffin was prepared to testify that Mr. Perrin informed her,
while giving his preliminary hearing testimony, that he had in
fact stolen the gun from petitioner's girlfriend and was himself
involved in Moore's murder.
The trial court found that Ms. Griffin's testimony was not
legally admissible, based on Commonwealth v. Sandutch,
449 A.2d 566 (Pa. 1982), a Pennsylvania Supreme Court case, which held
that subsequent recorded statements by an unavailable witness
were inadmissible to repudiate previous statements incriminating
the defendant. Trial Court Opinion (1994) at p. 13-15. The state
court also stated in a footnote that it did not find Ms. Griffin
to be a credible witness, given the conflict of interest that
arose from her representation of petitioner's girlfriend. Trial
Court Opinion (1994) at p. 14. While we defer to the trial
court's interpretation of state law, the decision to exclude Ms.
Griffin's testimony was contrary to and an unreasonable
application of federal law, as follows.
State court evidentiary decisions are usually not cognizable on
federal habeas review. However, when the state court error rises
to a level of constitutional proportion it is proper for a
federal court to review the evidentiary decision. Biasaccia v.
The Attorney General of the State of N.J., 623 F.2d 307 (3d Cir.
1980). For example, in Biasaccia, the Third Circuit found that
the prosecution's improper use of a co-conspirator's guilty plea
rises to a level of constitutional proportion, such that the
claim of trial court error was federally cognizable. Id.
Biasaccia based its conclusion on "the concept of fundamental
fairness inherently required in every criminal trial." Id. at
312 (citing U.S. v. Toner, 173 F.2d 140, 142 (3d Cir. 1949)).
In applying the fundamental fairness standard, the Third Circuit explained, "a
reviewing court must examine the relative probative and
prejudicial value of evidence to determine whether its admission
violated defendant's right to a fair trial." Lesko v. Owens,
881 F.2d 44, 51 (3d Cir. 1989), reh'g denied (1989).
In this case, the Court must decide whether the exclusion of
Ms. Griffin's testimony was fundamentally unfair, such that it
violated petitioner's due process rights. In a factually similar
case, Wallace v. Price held that a state court decision to
prohibit the testimony of a co-defendant's girlfriend was a
violation of due process under Chambers v. Mississippi,
410 U.S. 284, 93 S.Ct. 1038 (1973), stating that "the Chambers
court held that state evidentiary law did not trump the dictates
of due process." Wallace v. Price, 265 F. Supp.2d 545, 553 (W.D.
Pa. 2003). Wallace stated, "[w]hen a court excludes
`competent,' `reliable' evidence, that is `critical to [the
defendant's] defense,' it runs a grave risk of violating the
guarantee of fundamental fairness implicit in the due process
clause." Wallace, 265 F. Supp.2d at 553 (quoting Crane v.
Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142 and Chambers, 410
U.S. at 302, 93 S.Ct. 1038). While we do not yet conclude that
petitioner's due process rights were violated, the state court's
decision to exclude Ms. Griffin's testimony without ever
conducting an evidentiary hearing to make a determination
regarding the reliability of the proffered evidence as required
by Chambers, warrants further inquiry and justifies this
Court's order for an evidentiary hearing. Even if the
circumstances surrounding Ms. Griffin's testimony did not meet
the requirements of competence and reliability required by
Chambers, the Sixth Amendment to the United States Constitution
provides an accused criminal defendant the right "to have
compulsory process for obtaining witnesses in his favor." U.S.
Const. Amend. VI. At a minimum, it guarantees that "criminal defendants have the right to the government's
assistance in compelling the attendance of favorable witnesses at
trial and the right to put before a jury evidence that might
influence the determination of guilt." Pennsylvania v. Ritchie,
480 U.S. 39, 56, 107 S.Ct. 989, 1000 (1987). This constitutional
right is, "in plain terms the right to present a defense, the
right to present the defendant's version of the facts as well as
the prosecution's to the jury so it may decide where the truth
lies." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,
1923 (1967). The right of the accused to present witnesses in his
defense is a fundamental element of due process of law. Taylor
v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653 (1988),
reh'g denied, 485 U.S. 983, 108 S.Ct. 1283 (1988).
Repeatedly, the Compulsory Process clause has been found
violated when the government arbitrarily interfered with the
defendant's presentation of his case. In Taylor v. Illinois,
supra, the Supreme Court held that the Sixth Amendment may be
violated by imposition of a discovery sanction that entirely
excludes testimony of a material defense witness. See, e.g.,
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967) (Texas
statute rendering principals, accomplices, or accessories in the
same crime incompetent to testify as witnesses for each other
violated Compulsory Process clause); Anderson v. Groose,
106 F.3d 242 (8th Cir. 1997), cert. denied, 521 U.S. 1108, 117 So.
Ct. 2488 (1997) (preclusion of alibi witness' testimony as
discovery sanction violated Sixth Amendment's compulsory process
clause); Government of the Virgin Islands v. Mills,
956 F.2d 443 (3d Cir. 1992) (defendant's Sixth Amendment right to
Compulsory Process was violated when the district court refused
to allow a material witness to testify at trial); Dickerson v.
State of Alabama, 667 F.2d 1364 (11th Cir. 1982), cert.
denied, 459 U.S. 878, 103 S.Ct. 173 (1982) (failure by trial
court to grant a continuance to allow defendant the opportunity to compel the presence of a credible alibi
witness violated Sixth Amendment rights to compulsory process).
The Third Circuit, in Government of the Virgin Islands v.
Mills, 956 F.2d 443 (3d Cir. 1992), set forth three elements
required to establish a violation of Sixth Amendment compulsory
process rights. First, the defendant must prove that he was
deprived of the opportunity to present evidence in his favor.
Id. at 446. Second, he must demonstrate that the excluded
testimony would have been material and favorable to his defense.
Under the standard promulgated by the Supreme Court, evidence is
material "only if there is a reasonable likelihood*fn2 that
the testimony could have affected the judgment of the trier of
fact." United States v. Valenzuela-Bernal, 458 U.S. 858, 874,
102 S.Ct. 3440, 3450 (1982). Finally, the defendant must show
that "the deprivation was arbitrary or disproportionate to any
legitimate evidentiary or procedural purpose." Mills,
956 F.2d 443, 446.
The record clearly demonstrates that petitioner satisfies the
first element, as he was denied the opportunity to present Ms.
Griffin's testimony as evidence in his favor at trial. As the
trial court noted, petitioner raised several objections and
issues during trial that were preserved for appeal, including the
trial court's refusal to permit Ms. Griffin's testimony. Trial
Court Opinion (1994) at p. 3. Furthermore, petitioner appealed
this decision in a post-trial motion, on direct appeal, and on
collateral review. In each instance, the state court denied
petitioner's attempt to present Ms. Griffin's testimony as
evidence in his favor. Trial Court Opinion (1994) at p. 14-15; Commonwealth v. Revels, 667 A.2d 423 (Pa. Super. 1995) (Table);
Commonwealth v. Revels, 758 A.2d 724 (Pa. Super. 2000) (Table).
Under the second element, petitioner must show that the
excluded evidence was material and favorable to his defense. Ms.
Griffin's proffered testimony, if true and credible, not only
serves to impeach Mr. Perrin's preliminary hearing testimony, but
also serves as exculpatory evidence in petitioner's favor. If
admitted, the jury may have discredited Mr. Perrin's preliminary
hearing testimony and determined that Ms. Griffin's testimony was
highly credible. Regardless of the jury's credibility
determinations, the excluded testimony reasonably could have
affected the judgment of the trier of fact had petitioner been
given the opportunity to present it.
Petitioner also satisfies the third element whether the
deprivation was arbitrary or disproportionate to any legitimate
evidentiary or procedural purpose. As the state court's decision
to exclude Ms. Griffin's testimony was based on its
interpretation of Pennsylvania Supreme Court precedent, it cannot
be deemed an arbitrary decision. Trial Court Opinion (1994) at p.
13. The trial court's decision was based on Commonwealth v.
Sandutch, 449 A.2d 566 (Pa. 1982), which sought to avoid turning
the trial into "a contest of hearsay tapes, memoranda, and legal
pleadings, none of which were ever subject to cross-examination."
Sandutch, 449 A.2d at 568. The trial court concluded that Ms.
Griffin's testimony "is comparable to the created inadmissible
tapes and pretrial applications in Sandutch since Perrin
allegedly uttered his statements to Ms. Griffin after his
preliminary hearing testimony against defendants." Trial Court
Opinion (1994) at p. 14. Notwithstanding our traditional
deference accorded to state court interpretations of state law,
this Court questions the trial court's reliance on Commonwealth
v. Sandutch given the important factual distinction between
Sandutch and the present case. Rather than seeking to admit recorded statements by Mr. Perrin, as was
the case in Sandutch, petitioner sought to admit the testimony
of Ms. Griffin. As such, Ms. Griffin's testimony would be subject
to cross-examination, alleviating the primary concern of the
Sandutch court. Furthermore, under the Pennsylvania Rules of
Evidence, Ms. Griffin's testimony is admissible as an exception
to the hearsay rule because Mr. Perrin's statements are against
his interest.*fn3 Pa.R.E. 804(b)(3). Moreover, the probative
value of Ms. Griffin's testimony to petitioner's case is great
and the exclusion of Ms. Griffin's testimony deprives petitioner
of a fair opportunity to present a complete defense. While
credibility concerns may be a legitimate purpose for excluding
Ms. Griffin's testimony, the trial court's failure to hold an
evidentiary hearing on the matter to make an adequate factual
finding negates our traditional deference to the trial court's
credibility determination.*fn4 In addition, the court failed
to take into consideration the countervailing benefit of Ms.
Griffin's testimony to petitioner's case. Further, the trial
court ignored the fact that Ms. Griffin's testimony would be
subject to cross-examination, allowing the jury to make their own decision about the reliability of this evidence. As such, the
deprivation of petitioner's right to present Ms. Griffin's
testimony was disproportionate to the trial court's reason for
excluding it. Given that the refusal to admit Ms. Griffin's
testimony was a violation of petitioner's right to compulsory
process, the state court decision was fundamentally unfair. As
such, it is federally cognizable on habeas review as an error
that rises to a level of constitutional proportion.*fn5
Having found the state court error to rise to a level of
constitutional proportion, we must now subject it to harmless
error analysis. "An error is harmless if it is highly probable
that the error did not contribute to the judgment." United
States v. Saada, 212 F.3d 210, 222 (3d Cir. 2000) (quoting
United States v. Gibbs, 190 F.3d 188 (3d. Cir. 1999), cert.
denied, 528 U.S. 1131, 120 S.Ct. 969 (2000)). As stated by the
Third Circuit, "in the case of a federal judge in a habeas
proceeding, `a constitutional trial error is not harmless if the
court is in `grave doubt' as to whether the error had a
substantial and injurious effect or influence in determining the
jury's verdict.'" Porter v. Horn, 276 F. Supp.2d 278, 345 (E.D.
Pa. 2003) (quoting Hassine v. Zimmerman, 160 F.3d 941, 955 (3d
Cir. 1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456
Even in light of the evidence presented against petitioner at
trial, there is a reasonable probability that the refusal to
admit Ms. Griffin's testimony contributed to petitioner's
conviction. As noted previously, if admitted, Ms. Griffin's
testimony could serve, not only to impeach Mr. Perrin's testimony
incriminating petitioner, but also as substantive evidence that
exculpates petitioner of Moore's murder. Consequently, it was not merely cumulative of
other testimony offered at trial. Moreover, some of the other
evidence presented against petitioner was contested. For example,
petitioner claimed that his confession to police was coerced.
Further, he claimed that Leatrice Jones, whose prior police
statement was admitted to implicate petitioner in Moore's murder,
did not make or adopt as her own some of the statements in her
prior police statement. Therefore, if petitioner had successfully
impeached Mr. Perrin's preliminary hearing testimony with Ms.
Griffin's testimony, the jury could have judged the credibility
of the remaining evidence and found that the weight of evidence
was not enough to find against petitioner. Therefore, there is
grave doubt as to whether the state court's error in refusing to
admit Ms. Griffin's testimony had a substantial and injurious
effect or influence in determining the jury's verdict. As such,
we cannot deem the trial court decision to be harmless error.
Given the constitutional proportion of the trial court's error
and the inability of this court to determine that the decision
constituted harmless error, the state court's decision to deny
this claim without ever hearing the testimony of Attorney Griffin
was contrary to and an unreasonable application of federal law.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA)
and case law interpreting it, a habeas court is not precluded
from granting an evidentiary hearing to a petitioner who has
"diligently sought to develop the factual basis of a claim for
habeas relief but has been denied the opportunity to do so by the
state court." Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001)
(quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998),
cert. denied, 525 U.S. 1037, 119 S.Ct. 587 (1998)) (internal
quotations omitted). Rather, federal courts have discretion in
granting an evidentiary hearing, and should focus on whether "a new evidentiary hearing would be meaningful,
in that a new hearing would have the potential to advance the
petitioner's claim." Campbell, 209 F.3d at 287.
In the present case, petitioner repeatedly sought to admit Ms.
Griffin's testimony and the state courts never conducted an
evidentiary hearing on this matter. Therefore, this Court is not
precluded from granting an evidentiary hearing to make findings
of fact regarding Ms. Griffin's proffered testimony. For all of
the above reasons, this Court believes that an evidentiary
hearing is warranted on the claim that the trial court erred in
refusing to admit the testimony of Deborah Griffin. ORDER
AND NOW, this day of July, 2004, upon consideration of the
Petition for Writ of Habeas and the Response thereto, it is
hereby ORDERED that an Evidentiary Hearing on petitioner's claim
that the trial court erred in refusing to admit the testimony of
Deborah Griffin shall be held on August 5th, 2004 at 1:30
p.m., in a courtroom to be announced.
It is so ORDERED.