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WEBER v. WARDEN

United States District Court, E.D. Pennsylvania


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 the petitioner knew and agreed with the aforesaid trial strategy, the petitioner abandoned this argument and did not address it in his briefs.
See Commonwealth v. Weber, 12/21/01, p. 48 n. 25. In his appeal to the Superior Court, Petitioner did not raise this argument. Thus, Petitioner abandoned his claim at the PCRA court level.

  Petitioner must present his claim for every level of state court review in order to exhaust that claim. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard, 404 U.S. at 275). Because Petitioner did not present this claim to all levels of the state court, he precluded those courts from meaningful review of his claim. Thus, the instant claim is defaulted. Coleman, 501 U.S. at 731-732.

  Petitioner also argues that his trial counsel did not deliver on the promises made in his opening statement, citing United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), in which the United States Court of Appeals for the Seventh Circuit stated:

However, when the failure to present the promised testimony cannot be chalked off to unforeseeable events, the attorney's broken promise may be unreasonable, for "little is more damaging than to fail to produce important evidence that has been promised in an opening." Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988).
Id. at 257. Following this citation, Petitioner argues that:
[i]n a case like this one, where the evidence against the defendant consisted of the testimony of one person with a history of making things up, trial counsel may have blown the case in his opening argument by taking a position inconsistent with the not guilty plea, and by making statements with which the client did not agree.
Mem. Law in Supp. Pet. at 31. Petitioner never presented this claim in any state court and it is therefore unexhausted. This claim is also procedurally defaulted because it would be futile for Petitioner to seek review in the state court since any such petition for relief would now likely be denied as untimely.

  Federal courts may review a claim, notwithstanding its procedural default, only where the petitioner "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 would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that petitioner's failure to allege cause for his default precluded federal habeas review of defaulted claim).

  Unfortunately, counsel cannot claim her own ineffectiveness to provide cause to excuse the default.*fn6 Since the default occurred during the time counsel represented Petitioner in the PCRA court and in the PCRA appeal, even counsel's ineffectiveness cannot provide cause for the default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-489 (1986) (stating in order to constitute cause, counsel's ineffectiveness must rise to the level of a constitutional violation); Pennsylvania v. Finley, 481 U.S. 551 (1987) (stating the Sixth Amendment right to counsel does not extend to counsel in state collateral proceedings); 28 U.S.C. § 2254(i) (same)).

  Similarly, Petitioner fails to establish that a failure to consider the claim will result in a fundamental miscarriage of justice. This exception requires that a petitioner supplement his claims with "a colorable showing of factual innocence." McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). The Supreme Court has held that the burden is on the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). That is, "in light of all the evidence, . . . it is more likely than not that no reasonable juror would have convicted him." Id. at 327-328.

  Petitioner, as he did at trial, asserts that he is innocent and his daughter lied. Petitioner specifically argues that the claims he presents in this Petition are not subject to the doctrine of procedural default because a constitutional violation resulted in the conviction of a person who is actually innocent of the crimes for which he was convicted. Mem. Law in Supp. Pet., pp. 24 & 29. However, Petitioner has failed to support this assertion with any evidentiary support. Such a bald assertion will not suffice to excuse Petitioner's default, and these claims must be denied. See Hull v. Freeman, 991 F.2d 86, 91 n. 3 (3d Cir. 1993).

  2. Whether 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.

  Next, Petitioner alleges that while he was testifying, the trial judge at sidebar with the prosecutor and one defense attorney, made audible references to perjury and perjured testimony, and his trial counsel was ineffective for not making an appropriate and timely objection or requesting a mistrial. Petitioner's other defense attorney, seated at counsel table, attested in an affidavit that he heard the trial judge utter the words "perjured testimony" in a voice loud enough to be heard by the jury. Petitioner contends that this evidence "compels the conclusion that such comments prejudiced the jury." See Mem. Law in Supp. Pet. at 36. Petitioner further argues that, because the jury's decision whether to convict or acquit him was totally dependent upon the jury's credibility determination between his testimony and his daughter's testimony, a reasonable probability exists that, except for his defense counsel's alleged errors, he would have been acquitted. Thus, Petitioner opines that he satisfies the prejudice component of Strickland.

  A review of the record reveals that the sidebar conference occurred when the prosecutor requested an offer of proof regarding defense counsel's intent to question Michael Weber, Petitioner's son, and Michelle LeBar, the fiancee of Petitioner's son, about Tiffany's abortion. The trial court ruled that testimony regarding Tiffany's conversation with her brother and his fiancee about her pregnancy and abortion was inadmissible because Petitioner had undermined the foundation for using such information, as stated in his pre-trial motion, by offering evidence that the Petitioner used corporal punishment.

  Petitioner presented this claim in his PCRA petition, and the PCRA court in its December 21, 2001 opinion examined this issue. The court stated:

[t]he crux of Petitioner's argument is that Mr. Sigmon was ineffective for failing to object or move for a mistrial because of the comments made by the court during the sidebar conference, however, counsel can never be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Padden, 783 A.2d 299, 314 (Pa. Super. 2001).
Commonwealth v. Weber, No. 470-1994, Common Pleas Northampton County, 12/21/01, pp. 39-40. The PCRA court noted that this sidebar conference was also closely scrutinized by the Pennsylvania Supreme Court in the direct appeal, reported at Commonwealth v. Weber, 701 A.2d 531 (Pa. 1997). The court noted that the record clearly indicated that at no time while Petitioner was on the witness stand testifying did the court make any comments about Petitioner or any references to the word "perjury" or "perjured." The trial judge also did not make any comments directly to Petitioner. Petitioner, in his brief before the PCRA court and in the instant Petition, made no specific references to the trial transcript in his Memoranda. The words supposedly employed by the trial judge while Petitioner was on the witness stand do not appear in the certified record.

  The PCRA court also noted that the sidebar conference at issue occurred between the court and counsel after Petitioner finished testifying and after he had been excused from the witness stand Petitioner contends that the trial court erred because it did not consider the entire record, i.e., evidence and testimony from the PCRA hearing. This argument is misleading because the PCRA court stated, "[c]onsistent with our responsibility to view only the record facts, we cannot accept the assertions made by the petitioner in his briefs and affidavits. However, our review doesn't end here, because the evidence presented at the PCRA hearings supports our conclusion." Id. at 47. Thus, the PCRA court also examined evidence from the PCRA hearing when it made its decision.

  The PCRA court noted that at the PCRA hearing, it was only after Petitioner's attorney prompted Petitioner about the words "perjurer" and "perjury" that he then testified on redirect that he heard the court use these words. See N.T., 4/12/99, pp. 22-24. Petitioner did not testify that he thought the jury heard the conversation, nor did he say that the trial judge was looking at him when the words were spoken. Id. The PCRA court concluded that the official record was uncontradicted that Mr. Sigmon, Petitioner's trial counsel, had no grounds to object in relation to the sidebar. The court held:

Our research and our review of the certified record leads us to the conclusion that there is no arguable merit to this claim. Therefore, we must conclude that trial counsel was not ineffective for refusing to litigate a meritless claim. See Commonwealth v. Hayes, 755 A.2d 27, 30 (Pa. Super. 2000).
Commonwealth v. Weber, No. 470-1994, Common Pleas Northampton County, 12/21/01, p. 52. The court asked Petitioner to step down from the witness stand prior to the sidebar conference. Moreover, the PCRA court found that on direct examination of Michelle LaBar, the next witness after Petitioner, the word "perjury" was used by Ms. LaBar in two instances in reference to Tiffany Weber, and on cross-examination, LaBar again used the word "perjury" in reference to Tiffany Weber. Id. at 53 n. 27 (citing Trial Transcript, pp. 426-427, 432).

  This evidence would have more of a prejudicial effect, if any, upon the victim's testimony and would support Petitioner's testimony.

  The Superior Court, in its decision dated August 15, 2003, stated:

We can find no abuse of discretion in the court's assessment of Weber's claim. The PCRA hearing testimony simply did not establish his claim of ineffectiveness. Weber insists that the PCRA court should have reopened the hearing to allow other proffered witnesses to testify about the sidebar remarks. Weber's wife, mother, and pastor all filed affidavits claiming that the remarks were likely heard by the jury because they could be heard in the courtroom gallery where the witnesses sat.
Although the court did not permit counsel to reopen the record, it did consider the substance of the affidavits, which were executed some six years after the trial. The court noted that several claims made by Weber's wife and mother were inconsistent with the official transcript. Weber's pastor too made allegations that were contradicted by the record. The PCRA court noted that not even Weber or his attorney claimed that some of the events described by these witnesses had occurred. The court found the additional affidavits "had no basis in the record."
Upon review, we find no error by the PCRA court. Weber is not entitled to keep the evidentiary hearing record open for an infinite amount of time. Here, some of the allegations made by his proposed witnesses were unquestionably contradicted by the record. Thus, the PCRA court did not act unreasonably in deciding not to permit those witnesses to reiterate what Weber himself had already asserted (that the jury may have heard the court's remarks) and what the court had found was simply not credible.
Based on the entire record, particularly the PCRA hearing transcript, as well as our standard of review, we find no error in the PCRA court's denial of relief. The PCRA court's determination is supported by the record and is free from legal error.
Commonwealth v. Weber, 833 A.2d 1152 (Mem. Op. at pp. 9-11) (footnotes omitted). Thus, as the PCRA court held and the Superior Court affirmed, counsel was not ineffective for failing to present an unmeritorious argument, and Petitioner's claim for ineffectiveness of counsel for not making an appropriate and timely objection or requesting a mistrial should be dismissed.

  B. Whether The PCRA Court Erred and Denied Petitioner Due Process for When It Refused to Reopen the Evidentiary Hearing.

  Petitioner's next argument is that the PCRA court erred and violated his due process rights when it refused to reopen the evidentiary hearing to allow other proffered witnesses to testify about the sidebar remarks. The PCRA court denied the request to reopen the hearing because the court found neither Petitioner himself nor the affidavits he submitted to be credible. Petitioner contends that the PCRA court only reviewed the trial transcript, and that the record for PCRA review extends beyond the trial transcript. To hold otherwise, according to Petitioner, would diminish or altogether eliminate the need to hold evidentiary hearings on PCRA motions and there would be no point to the admission of new evidence. See Mem. Law in Supp. Pet. at 37.

  The Superior Court reviewed this claim and held that:

We can find no abuse of discretion in the court's assessment of Weber's claim. The PCRA hearing testimony simply did not establish his claim of ineffectiveness. Weber insists that the PCRA court should have reopened the hearing to allow other proffered witnesses to testify about the sidebar remarks. Weber's wife, mother, and pastor all filed affidavits claiming that the remarks were likely heard by the jury because they could be heard in the courtroom gallery where the witnesses sat.
Although the court did not permit counsel to reopen the record, it did consider the substance of the affidavits, which were executed some six years after the trial. The court noted that several claims made by Weber's wife and mother were inconsistent with the official transcript.fn Weber's pastor too made allegations that were contradicted by the record.fn The PCRA court noted that not even Weber or his attorney claimed that some of the events described by these witnesses had occurred. The court found the additional affidavits "had no basis in the record."
Upon review, we find no error by the PCRA court. Weber is not entitled to keep the PCRA evidentiary hearing record open for an infinite amount of time. Here, some of the allegations made by his proposed witnesses were unquestionably contradicted by the record. Thus, the PCRA court did not act unreasonably in deciding not to permit those witnesses to reiterate what Weber himself had already asserted (that the jury may have heard the court's remarks) and what the court had found was simply not credible.
Based on the entire record, particularly the PCRA hearing transcript, as well as our standard of review, we find no error in the PCRA court's denial of relief. The PCRA court's determination is supported by the record and is free from legal error.
fn Marie Weber, appellant's wife, stated in her affidavit that the judge cut Weber off in the middle of a sentence, looked directly at Weber and stated that Weber perjured himself. Weber's mother, Betty Weber, stated in her affidavit that the judge looked down at Weber while he was testifying and told Weber that he (Weber) was going to perjure himself. These events are not reflected in the record.
fn Pastor James Grimes stated in his affidavit that during the trial the judge looked at Weber who was on the witness stand and said "You are perjuring yourself."
Mem. Law in Supp. Pet., Ex.G, pp. 10-11. This Court's review of the PCRA court's sixty-six page decision reveals that the court not only examined the trial transcript but also the entire transcript of the PCRA evidentiary hearings, contrary to Petitioner's contention that the court only examined the trial transcripts.

  State courts are not required to provide state collateral review. Pennsylvania v. Finley, 107 S.Ct. 1990, 1994 (1987). Therefore, a claim that the state PCRA court erred in its handling of the state-created right to collateral review does not "arise under the Constitution, laws or treaties of the United States" and therefore provides no basis for federal habeas review or relief. See 28 U.S.C. § 2254(a) (stating Petitioner must show that he is in custody in violation of the Constitution, laws, or treaties of the United States). Further, because this was not an unreasonable application of state law, this claim should be denied.

  C. Whether Petitioner's Conviction Was Obtained and His Sentence Imposed in Violation of His Right to a Fair Trial Guaranteed by the Fifth and Fourteenth Amendments.

  Petitioner's final claim is that his conviction was obtained and his sentence imposed in violation of his right to a fair trial guaranteed by the Fifth and Fourteenth Amendments. Specifically, Petitioner claims that the trial judge prohibited the defense from making an argument in his closing that the incest and abuse charges were a pre-emptive strike by the daughter because she was afraid of being beaten by her father once he learned of her pregnancy and planned abortion. Petitioner relies on the Superior Court's April 11, 1996 holding that "the trial court committed a prejudicial error in prohibiting defense counsel from commenting upon Daughter's fear of being beaten once Weber learned of her pregnancy and planned abortion." Commonwealth v. Weber, No. 2264 Philadelphia 1995, p. 17 ( Pa. Super. Apr. 11, 1996). Judge Michael Eakin dissented from this decision, stating:

As such, I would affirm the trial court's decision that appellant not only failed to make out the victim's fear of a beating, he negated its very existence under oath and nullified any probative value in the evidence of abortion. That this evidence came in at all through cross-examination of the victim is more than the defense was entitled to.
My colleagues find the court in error, but find that error to be harmless (a question I need not reach), as the evidence came in despite the ruling, under cross-examination of the victim. They reverse because of the trial court's purported preclusion of closing argument on the issue. Appellant states his issue thusly;
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING DEFENDANT'S REQUEST TO INTRODUCE TESTIMONY CONCERNING A FABRICATION DEFENSE THROUGH A MISAPPLICATION OF THE RAPE SHIELD LAW?
This issue has not been raised before us.fn Appellant has not heretofore complained of preclusion of closing argument, and if he wished us to consider that ruling, he should have raised it timely in his Statement of Matters Complained of on Appeal. Thus he has chosen not to appeal that issue, which is therefore waived. The Commonwealth has not been alerted to address the issue, nor has the trial court had the opportunity to provide its insight into this. As we have answered the issue raised, I would not endeavor to consider matters not complained of.
fn. Even if properly before us, my resolution of the primary issue would make the question of closing argument moot, and my result would still be to affirm conviction.
Id. (dissent, pp. 3-4). The Commonwealth appealed the Superior Court decision granting a new trial, and on appeal, the Pennsylvania Supreme Court reversed the Superior Court and affirmed the trial court. The Supreme Court stated:
At the hearing on the omnibus pre-trial motion, Weber asserted that the evidence of his daughter's abortion was relevant to establish bias and motive to fabricate the charges because she feared that he would beat her. Contrary to this assertion, Weber later denied at trial that he used corporal punishment as a form of discipline and introduced evidence that he had a close, loving relationship with his daughter. 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. When the evidence that he submitted at trial did not conform with the offer of proof as to the admissibility of the evidence given at the earlier hearing, the trial judge did not abuse his discretion in ruling that evidence of the daughter's abortion was inadmissible and in restricting defense counsel's closing argument to the jury.
Commonwealth v. Weber, 701 A.2d 531, 535 (Pa. 1997) (emphasis added).

  To support his contention that the Pennsylvania Supreme Court's decision reversing the Superior Court was incorrect, Petitioner makes the following three arguments which he states "would lead a reasonable person to conclude that the daughter might have concocted the allegations of sexual abuse as a pre-emptive strike against the father in an effort to avoid a beating." (Mem. Law in Supp. Pet. at 38.) First, Petitioner states that every family member testified that they neither witnessed, nor even suspected that Petitioner had a sexual relationship with his daughter Tiffany. Second, Petitioner contends that Tiffany had a history of submitting false reports to the police in order to avoid what she believed would be beatings by her father. For support, Petitioner points to an incident in April of 1990, when Tiffany reported to the Pen Argyl Police that she had been kidnapped by two Puerto Rican men in a black van, and it was not until the next morning that she admitted that she fabricated the story in an effort to avoid her father's anger over her report card. Third, Petitioner claims that the timing of Tiffany's allegations is significant because on September 20, 1993, she called her brother and his girlfriend, stated that she was pregnant and planned to have an abortion, and pleaded with them not to tell Petitioner because she feared that she would be beaten when he learned of these events. Two months later, on November 20, 1993, Tiffany reported the allegations of sexual abuse.

  Petitioner, in making this repeated argument, fails to acknowledge that it was his burden to establish the admissibility and relevancy of Tiffany's abortion. Petitioner filed an omnibus pretrial motion. In support of Petitioner's request to avoid the restrictions of the Rape Shield Law, Petitioner argued at a hearing on the motion, that he exerted "a harsh or perhaps over-strict physical discipline on his daughter and that she was afraid of in fact being over disciplined." N.T., 9/23/94, p. 25. When the court asked the type of discipline administered by Petitioner, his counsel answered that it was "[b]eing struck with an open hand or a closed fist on her arms or perhaps her face." Id. Following a hearing on November 9, 1994, the court entered an order, holding in relation to the request regarding the Rape Shield Law, that:

the motion to permit inquiry into the proof of the abortion is denied without prejudice, to be exercised on defendant's application only if defendant can show the jury will have independent evidence of physical non-sexual assault on the victim which would engender a fabrication by victim in an effort to prevent future assaults.
Thus, when the evidence that Petitioner submitted at trial did not conform with the offer of proof as to the admissibility of the evidence given at the earlier hearing, the trial judge ruled that evidence of the daughter's abortion was inadmissible and defense counsel's closing argument to the jury was restricted. This ruling was reasonable under Pennsylvania law, as found by the Pennsylvania Supreme Court. Accordingly, Petitioner's claim must be denied.

  For all of the above reasons, I make the following:

RECOMMENDATION
  AND NOW, this day of July, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.


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