The opinion of the court was delivered by: Judge Kosik
Derrick Douglass, an inmate at the State Correctional Institution at Rockview, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 5, 2005. Douglass challenges his 2002 conviction by the York County Court of Common Pleas on two (2) counts of Robbery which resulted in an aggregate sentence of 81/2 to 17 years. In the instant petition, he raises four (4) grounds of ineffective assistance of trial counsel.*fn1 On February 1, 2005, service of the petition was directed on the Respondent Franklin J. Tennis, Superintendent at SCI-Rockview; the Attorney General of Pennsylvania; and the District Attorney of York County. Following the grant of an enlargement of time, a response to the petition and supporting exhibits were thereafter filed on April 26, 2005. (Docs. 13-17.) A traverse and supplement thereto have also been filed by Douglass.*fn2 (Docs. 24, 26.) The petition is now ripe for consideration.
The following facts have been extracted from the Pennsylvania Superior Court's Opinion dated October 23, 2003, affirming the denial of PCRA relief.
This case involves two robberies which occurred within minutes of each other. The first victim, Dorothy Kreiner ("Kreiner"), resided in a senior citizen apartment complex. As Kreiner was getting into the elevator of her building, she was followed by appellant. He pushed her to the ground and forcibly took her purse which she was hanging around her neck. He pulled the strap of her purse until it broke and then ran.
Approximately 20 minutes later, Betty Jane Sawmiller ("Sawmiller") walked past appellant as she proceeded down Duke Street carrying a black pocketbook. As she passed appellant, she said hello and he returned her greeting. As she walked ahead, she heard someone running behind her; Sawmiller turned and a struggle ensued as appellant grabbed her purse. Sawmiller yelled out and the people around her called the police. Sawmiller testified that appellant was in her sight for approximately five minutes.
Lieutenant David J. Arnold was on duty the day of the robberies. He testified that he was aware of the first robbery and received a transmission concerning the second robbery. He went to the area where the second robbery was reported and subsequently saw appellant, who fit the description of the assailant. He called other units to respond to the area and a chase ensued. Appellant was eventually apprehended in a creek; he was in possession of the black purse taken from Sawmiller.
At the trial, Debra Krebbs, the manager of the apartment building where Kreiner lived, also testified. Krebbs heard screaming and went to see what was going on; she then realized that Kreiner had been robbed. Krebbs informed the police that she had video camera security in the lobby of the building, and she was going to rewind the tape to see if she could identify the perpetrator. The police later reviewed the video tape. The tape depicted appellant entering the vestibule of the building behind Kreiner and subsequently leaving the building.
Appellant took the stand and denied that he was involved in the robberies. He claimed that the police arrested the wrong person and never had an accurate description of the robber. Appellant testified that he was at Kreiner's apartment building because he was visiting a friend who also lived there. He also explained that he was in possession of the purse because he was chasing the man who stole it and this person threw the purse at him. His defense relied heavily on the fact that everyone's description of the assailant differed. He also relied on the fact that the property record of what he had on when he initially arrived at the York County Prison had an item crossed off. Following a jury trial, appellant was convicted of two counts of robbery. At the October 21, 2002 sentencing hearing, appellant addressed the trial court and requested that his appointed attorney, Heather Z. Reynosa, Esq., be removed as his counsel . Appellant alleged that she failed to represent him effectively. Attorney Reynosa did not object, and noted to the court that appellant would not be able to raise such an issue on direct appeal if new counsel was not appointed. The trial court refused to appoint new counsel for appellant. (Notes of testimony, 10/ 21/02 at 4-5.) Appellant received an aggregate sentence of 81/2 to 17 years imprisonment. (Doc. 28, Pa. Super. Ct. Opinion dated 8/12/04.)*fn3
On October 31, 2002, Douglass filed a post-trial motion for removal of trial counsel. A direct appeal was filed to the Pennsylvania Superior Court on November 18, 2002. On November 20, 2002, the trial court deemed the post-trial motion outside of its jurisdiction. On March 12, 2003, Douglass filed a petition for the appointment of new counsel. On April 25, 2003, the Pennsylvania Superior Court denied Douglass' request and directed that he file his brief in support of his direct appeal by May 27, 2003. On May 20, 2003, counsel for Douglass filed another petition for remand for the appointment of new counsel with the Pennsylvania Superior Court. Meanwhile, on June 11, 2003, a different public defender entered an appearance on behalf of Douglass.
On June 18, 2003, the Pennsylvania Superior Court issued an order directing the York County Court of Common Pleas to hold a record inquiry to determine how to proceed in light of the fact that Douglass was currently being represented by one public defender while another public defender from the same office was arguing the ineffectiveness of the current public defender who happened to work in the same office.
On July 14, 2003, a hearing was conducted with regard to the counsel issue. At this time, Douglass made clear that he wished to discontinue his direct appeal filed with the Superior Court, and only proceed with a PCRA petition. On July 23, 2003, the Superior Court discontinued Douglass' direct appeal pursuant to a praecipe to discontinue he had previously filed.
Douglass filed a PCRA petition in the York County Court of Common Pleas on September 3, 2003. Following an evidentiary hearing, the PCRA petition was denied on October 23, 2003. This denial of PCRA relief was affirmed by the Pennsylvania Superior Court on August 12, 2004. (Doc. 17, R.R. at 509a.)
On October 4, 2004, a second PCRA petition was filed by Douglass. On October 22, 2004, the petition was dismissed on the basis that it presented no legally valid issues which the first PCRA counsel failed to raise. The instant habeas petition was thereafter filed on January 5, 2005. In the petition, Douglass raises the following ineffective assistance of counsel grounds: (1) failure to file pre-trial motion to suppress victims' identification of defendant during preliminary hearing which was illegally obtained; (2) failure to file pre-trial motion in limine to preclude prosecutor's prejudicial use of surveillance tape and photographs; (3) failure to call material witness Alexander Harris to establish basis of why ...