Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WEBER v. WARDEN

July 29, 2004.

MICHAEL PAUL WEBER, Petitioner,
v.
WARDEN, SCI WAYMART, et al., Respondents.



The opinion of the court was delivered by: ARNOLD RAPOPORT, Magistrate Judge

REPORT AND RECOMMENDATION

Presently before the Court is a counseled pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Michael Paul Weber ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the State Correctional Institution, Waymart. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.

I. PROCEDURAL HISTORY.*fn1

  On January 17, 1994, Petitioner was charged with multiple counts of rape, statutory rape, involuntary deviate sexual intercourse, and simple assault. On May 11, 1995, following a jury trial in the Court of Common Pleas of Northampton County before the Honorable Jack A. Panella, Petitioner was convicted of rape, statutory rape, simple assault, and involuntary deviate sexual intercourse. Evidence at trial established that Petitioner sexually assaulted and physically abused his daughter, Tiffany Weber, for ten years beginning when she was eight years old. Petitioner received a sentence of twenty to sixty-four years in prison on May 25, 1995.

  Petitioner filed a direct appeal with the Pennsylvania Superior Court, with the following claims: (1) that the trial court erred in not allowing defense counsel to offer evidence of and argue that the victim fabricated the charges against her father because she feared he would find out about an abortion she had; (2) that trial counsel was ineffective for failing to object to the trial judge's sidebar statement that mentioned "perjury" and "perjured testimony"; and (3) that trial counsel was ineffective for failing to object to the victim's testimony about Weber's statements of intent to have sex with another young girl. The Superior Court held that the trial court should have permitted counsel to offer additional testimony about the pregnancy and its termination notwithstanding the Rape Shield Law, but found the error harmless because the victim herself testified that she feared her father's retribution if he learned of her abortion. Commonwealth v. Weber, 675 A.2d 295, 298 (Pa. Super. 1996). The majority concluded that the trial court committed reversible error when it refused to allow counsel to argue that the victim's fear of a beating for the abortion was a motive to fabricate the charges against her father. Therefore, the majority granted Petitioner a new trial. Id. Because the Superior Court granted Petitioner relief on his first claim, it did not examine Petitioner's remaining claims. Justice Eakin, who was a Superior Court Judge at that time, dissented, believing Petitioner's testimony denying the beatings precluded him from seeking an exception to the Rape Shield Law based on the victim's fear of beatings.

  The Commonwealth filed a petition for allowance of appeal, which was granted. Commonwealth v. Weber, 682 A.2d 310 ( Pa. 1996). On September 18, 1997, the Supreme Court of Pennsylvania reversed the Superior Court and reinstated the judgments of sentence. Commonwealth v. Weber, 701 A.2d 531 (Pa. 1997). The unanimous Supreme Court held that:
By denying the foundation for his defense of bias or fabrication of the charges, Weber failed to demonstrate that the evidence was admissible notwithstanding the Rape Shield Law. As the proponent of the evidence, Weber bore the burden of establishing the admissibility and relevancy of his daughter's abortion.
Commonwealth v. Weber, 701 A.2d 531, 535 (Pa. 1997). The Supreme Court reinstated Petitioner's judgments of sentence.

  On July 31, 1998, Petitioner filed a counseled petition for collateral review pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), claiming three grounds for relief, two of which had been raised but not addressed in his direct appeal to the Superior Court. The claims were: (1) counsel was ineffective for failing to object to the trial judge's sidebar remark about "perjury"; (2) counsel was ineffective for failing to object to evidence offered about his "alleged advances or statements of untoward intentions . . . about other female children"; and (3) counsel was ineffective for informing the jury that Petitioner was a "strict disciplinarian who administered corporal punishment" on his daughter. See 42 Pa. C.S.A. § 9541. The PCRA court held evidentiary hearings on both April 12, 1999, and April 16, 1999. At those hearings, Petitioner and Mark Sigmon, one of his trial counsel, testified. The PCRA court ruled that the parties could present argument based on an affidavit that was attached to the PCRA motion and provided by Mark Medvesky, Esquire, Petitioner's other trial attorney. At the beginning of the hearing, the PCRA court accepted into the record all proceedings in connection with this case, from the date of the filing of the complaint until the present time, including all trial transcripts, pretrial motions, motion hearing transcripts, and appellate opinions. The parties requested several continuances, and there were delays in the resolution of the PCRA petition. Petitioner retained new counsel,*fn2 who petitioned the court to reopen the record to allow additional testimony on the issue of sidebar comments. On October 30, 2001, the Commonwealth filed a response to the Motion to Reopen and a brief opposing Petitioner's request for PCRA relief, and on November 13, 2001, Petitioner filed a reply to the Commonwealth's briefs.

  On December 21, 2001, the PCRA court denied and dismissed both the PCRA motion and the motion to reopen the evidentiary hearing, ultimately ruling that Petitioner was not entitled to collateral relief on any of the issues he raised. Petitioner appealed to the Superior Court on January 17, 2002, raising only the issue of whether trial counsel was ineffective for failing to object to the trial judge's allegedly audible sidebar comments. On August 15, 2003, the Superior Court affirmed the PCRA court. See Commonwealth v. Weber, 833 A.2d 1152 (Pa. Super. 2003) (table). Petitioner signed the instant Petition for Writ of Habeas Corpus on December 17, 2003. Petitioner's counsel signed it on December 22, 2003, and it was filed with the Clerk of Court for the United States District Court for the Middle District of Pennsylvania on December 24, 2003. On January 5, 2004, the Middle District transferred the case to this Court and it was assigned to the Honorable Harvey Bartle, III. Judge Bartle referred the case to me for preparation of a Report and Recommendation on January 14, 2004.

  Petitioner makes the following claims in his Petition: (1) his conviction and sentence were imposed in violation of his Sixth Amendment right to constitutionally effective assistance of counsel at all critical stages of the criminal proceedings including pretrial investigation, trial, and appeal; and (2) his conviction was obtained and his sentence was imposed in violation of his Fifth and Fourteenth Amendment rights to due process, specifically, the right to make a closing argument directing the jury's attention to the fact that his daughter who alleged the abuse may have concocted her story to avoid a beating by her father for getting pregnant and planning an abortion.*fn3 (Pet. at 3-4.) Respondents filed their Response on April 21, 2004, claiming that the Petition was time-barred under the AEDPA and that Petitioner failed to show that the state court decisions regarding ineffective assistance of counsel violated Strickland. In correspondence dated April 23, 2004, Respondents withdrew their time-bar argument. Petitioner filed a Traverse to the Response on April 23, 2004.

  II. DISCUSSION.

  A. Whether Petitioner's Conviction and Sentence Were Imposed In Violation of His Sixth Amendment Right to Effective Assistance of Counsel.

  Petitioner first claims that his conviction and sentence were obtained and imposed in violation of his Sixth Amendment right to effective assistance of counsel at all critical stages of the proceedings, including pretrial investigation, trial, and appeal. At trial, Petitioner was represented by attorney Mark Sigmon, who acted as lead counsel, and attorney Mark Medvesky. Under the umbrella of ineffective assistance of counsel, Petitioner presents two claims: (1) trial counsel was ineffective for taking a position inconsistent with the not guilty plea without Petitioner's consent; (2) trial counsel was ineffective for not making an appropriate and timely objection and requesting a mistrial where the trial judge made references to perjury and perjured testimony while Petitioner was on the witness stand Each argument is hereafter examined.

  1. Whether Trial Counsel Was Ineffective For Taking A Position Inconsistent With The Not Guilty Plea Without Petitioner's Consent.*fn4 Petitioner alleges that his trial attorney did not discuss his opening statement with Petitioner in advance, and was ineffective for taking a position inconsistent with Petitioner's not guilty plea.*fn5 He alleges that trial counsel made statements in the opening argument without his consent which were the functional equivalent of a guilty plea to the simple assault charges for which he was being tried. Petitioner contends that these admissions were not objectively reasonable, and defeated his right to have a jury determine his guilt. In support of this contention, Petitioner cites case law from the 6th, 8th, 11th and D.C. Circuit Courts of Appeal.

  Petitioner does not disclose the history of this argument in the Petition and Memorandum of Law attached to the Petition. Petitioner first presented a form of this claim to the PCRA court in his July 31, 1998 PCRA petition. The PCRA court held a conference to frame the issues before it on August 28, 1998, attended by Petitioner's counsel and counsel for the Commonwealth. The version of the instant claim which was actually before the PCRA court was "counsel was ineffective for informing the jury that Weber was a `strict disciplinarian who administered corporal punishment' on his daughter." See Commonwealth v. Weber, 432 EDA 2002, Pa. Super., 8/15/03, p. 4. In the PCRA court decision dated December 21, 2001, the court stated at page 48 in footnote 25 that:
Earlier in this PCRA proceeding, the petitioner argued that his trial counsel, Mark Sigmon, Esq., should not have informed the jury in his opening statement that the petitioner indeed used to physically discipline his daughter in a harsh way, and that attorney Sigmon should not have developed the trial strategy that the victim fabricated her allegations of sexual abuse because she feared these physical assaults. Interestingly, after attorney Sigmon testified that these incidents were verified by the petitioner and his family members prior to trial, and that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.