The opinion of the court was delivered by: Judge Kosik
Timothy Patrick McEnany, an inmate currently confined at the State Correctional Institution at Graterford (SCI-Graterford), Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1997 conviction for Second Degree Murder and related offenses in the Dauphin County Court of Common Pleas. Respondent is David DiGuglielmo, Superintendent at SCI-Graterford. The timeliness of the petition is conceded. (Doc. 8.) On January 31, 2006, a response to the petition and voluminous supporting exhibits were submitted by Respondent. (Doc. 12.) A traverse was filed by Petitioner on February 22, 2006 (Doc. 13.) The matter is now ripe for disposition. For the reasons that follow, the petition will be denied.
The facts of this case are extracted from the opinion of the Pennsylvania Superior Court dated November 8, 1995, Commonwealth v. McEnany, No. 0856 Harrisburg 1994 (Pa. Super.), which addressed Petitioner's initial direct appeal from his judgment of sentence, and are as follows:
On March 4, 1993, at 12:45 a.m., eighty-two year old Kathryn Bishop was found dead on the floor of her residence. Wayne K. Ross, a forensic pathologist, determined that Mrs. Bishop had been stomped to death sometime between 9:00 p.m. and 11:30 p.m. on March 3, 1993. Paint chips were found on Mrs. Bishop's hands, and black t-shirt fibers were on her face, neck and clothing. Additionally, Mrs. Bishop's kitchen door window had been smashed, her basement window had been opened and scuff marks were left on her clothes dryer which was located just below the basement window.
Subsequent investigation revealed that the appellant, Timothy McEnany, and his cousin, Andrew Reischman, were at Mrs. Bishop's residence to clean her chimney between the hours of 2:00 p.m. and 5:00 p.m. on March 3, 1993. While appellant and Reischman were cleaning the chimney, Mrs. Bishop and her daughter, Janet Seitz, were discussing Mrs. Bishop's finances. At this time, one of the workers was in the house. There was a large roll of paper money and a basket full of change owned by Mrs. Bishop in plain view. Mrs. Seitz and her husband left Mrs. Bishop at approximately 5:00 p.m. At that time, appellant and Reischman were still present at the house.
During the time period between March 4, 1993 and March 7, 1993, Trooper Jeffrey Stansfield spoke with appellant regarding his contact with Mrs. Bishop on March 3, 1993. Appellant told Trooper Stansfield that he had been to Mrs. Bishop's residence on March 3, 1993 to clean her chimney. Appellant also stated that he was at a bar called Shane's Flight Deck between the hours of 6:30 p.m. and 1:30 a.m. on the evening of the murder. The bar is located about fifteen (15) miles from Mrs. Bishop's residence and over sixty (60) miles from appellant's home. A cook from Shane's saw appellant at the bar around 6:00 p.m. that evening, but not after that time. A bartender from Shane's testified that she saw appellant after midnight that evening and that he was acting in a manner to ensure that his presence was noticed.
Officers then spoke with Mrs. Bishop's neighbor, Dawn Rogers, who stated that she heard the sound of breaking glass between the hours of 10:00 and 10:30 p.m. on March 3, 1993. A couple of minutes later, Mrs. Rogers saw a person running down the street from the direction of Mrs. Bishop's house, carrying a clear bag containing a large envelope. Mrs. Rogers' description of this person matched the general description of Reischman.
On March 7, 1993, at approximately 10:25 a.m., Corporal Lester Freehling and Trooper Stansfield arrived at appellant's house and asked him if he would accompany them to the police station. At that time, Corporal Freehling told appellant that he was not required to go, that he was not under arrest and that the officers would bring him home at any time. Appellant agreed to go with the officers. The officers and appellant arrived at the police station at approximately 11:15 a.m. Then, Corporal Freehling, as a precaution, gave appellant a Miranda form and, once again, told him that he could stop the questioning at any time. Appellant said that he understood his rights and signed the waiver form. Corporal Freehling interviewed Appellant until 1:00 p.m. regarding events surrounding and leading up to the evening of March 3, 1993. At no time was appellant handcuffed or otherwise physically restrained.
At 1:00 p.m., Trooper McElheny met with appellant and requested that he take a polygraph examination. Appellant agreed, and Trooper McElheny then explained the examination to him for about an hour.
Prior to administering the exam, Trooper McElheny obtained appellant's written consent as well as his signature on another Miranda form. The exam lasted from about 2:00 to 5:00 p.m., at which time Trooper McElheny informed appellant that the results of the test indicated that he was not telling the truth. Appellant was not arrested at this time nor was he told that he could not leave.
At 5:10 p.m., Corporal Freehling rejoined the questioning, and, at 5:30 p.m., he proposed the possible scenario to appellant which follows: While appellant and Reischman were working at Mrs. Bishop's house, Reischman had seen a lot of money on the dining room table. Appellant and Reischman had gone to Shane's bar and started drinking. Reischman told appellant about the money and suggested that they rob Mrs. Bishop. The two went back to Mrs. Bishop's house where Reischman was dropped off, and appellant waited nearby in the van. Reischman returned with the money and did not tell appellant that he had killed Mrs. Bishop. Appellant first learned of her death when the two troopers arrived at his house. Corporal Freehling then said, "This may not be actually how it happened, but is pretty close to the truth, isn't it?" Appellant immediate response was, "Yeah, I want to tell you what happened." Corporal Freehling stopped the questioning and left the room. At this time, appellant blurted out to Trooper McElheny, "It's that fucking beer. Every time I drink I get in trouble. I really fucked up this time." Thereafter, Corporal Freehling returned and began to advise appellant of his constitutional rights. Before he could finish, appellant interrupted him and said that he wanted to do the right thing and that he knew what the right thing was. Appellant further stated that he wanted to tell what happened, but he didn't want to do anything "stupid" and wanted an attorney present before he made a statement. All questioning of appellant then ceased.
As the investigation continued, Trooper Stansfield obtained search warrants for appellant's van and residence. From appellant's residence, officers seized the clothes worn by appellant on March 3, 1993. Investigation of appellant's clothing revealed paint chips in the pocket of appellant's jacket. Paint analysis expert, John Evans, testified at trial that the paint chip found in appellant's jacket pocket were consistent with chips found on Mrs. Bishop's hands. The chips found in appellant's jacket and on Mrs. Bishop's hands were also consistent with the peeling paint around the broken basement window. Chemist, Lee Ann Grayson, testified that fibers found on Mrs. Bishop's body matched those of the t-shirt appellant wore on the day of the murder.
Pursuant to the search warrant for the van, officers seized appellant's cellular phone. Investigation of the memory of appellant's phone revealed that the last number dialed was Mrs. Bishop's home telephone number. A subsequent search of appellant's phone records revealed two unanswered calls made to Mrs. Bishop's residence at approximately 10:07 p.m. on the night she was murdered. (Doc. 12, Ex. L at 3-7.)
On October 19, 1993, a jury found Petitioner guilty, but the conviction was reversed on November 8, 1995, by the Pennsylvania Superior Court on direct appeal based on an improper reference to Petitioner's post-arrest silence. (Id.) The Pennsylvania Supreme Court granted in part Petitioner's Petition for Allowance of Appeal, however the appeal was dismissed as improvidently granted.
A second jury found Petitioner guilty of Second Degree Murder and related offenses on September 18, 1997. Petitioner was sentenced to life imprisonment for the second degree murder conviction, with a consecutive aggregate term of 3 - 10 years incarceration for the burglary and criminal conspiracy convictions.. The judgment of sentence was affirmed by the Pennsylvania Superior Court on direct appeal on May 13, 1999. (Doc. 12, Ex. L.) On March 28, 2000, the Supreme Court of Pennsylvania granted appeal "limited to the issue of the admissibility of Petitioner's cellular phone, cellular phone memory chip and cellular phone records." (Doc. 12, Ex. X.) The Court later dismissed the appeal as improvidently granted. (Id., Ex. AA.)
On July 23, 2001, Petitioner, acting pro se, filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541, et seq. (Id., Ex. BB.) The following day, PCRA counsel was appointed. (Id., Ex. CC.) An amended PCRA petition was filed on November 19, 2001. (Id., Ex. DD.) On December 30, 2002, following an evidentiary hearing, the PCRA relief was denied. (Id., Ex. EE.) On June 9, 2004, the Pennsylvania Superior Court ...