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Cleland v. Grace

October 24, 2007


The opinion of the court was delivered by: Judge Munley


Before the court are petitioner's objections (Doc. 23) to the report and recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 20), which proposes that we deny the instant petition for a writ of habeas corpus. Having been briefed, the matter is ripe for disposition.


Petitioner is an inmate at the State Correctional Institution at Huntingdon in Huntingdon, Pennsylvania. This case grows out of petitioner's conviction in November 2004 in the Carbon County, Pennsylvania, Court of Common Pleas for burglary, criminal trespass, receiving stolen property, theft by unlawful taking and conspiracy to commit burglary. Petitioner's claim centers on whether the state courts improperly permitted evidence to be introduced at trial because the chain of custody surrounding that evidence was insufficient and the search warrant used to obtain it was granted without cause.

The Superior Court of Pennsylvania offered a factual summary of the case. Since petitioner does not dispute the essence of these facts and does not provide any alternate iteration of them, we will recount them from the court's decision:

The charges against Appellant arose from a burglary that occurred at Boyer's Supermarket in Lansford, Carbon County, on February 25, 2003, at approximately 3:37 a.m. A store surveillance camera recorded the theft of the store's portable safe by a thin, white male between six feet, one inch and six feet, three inches in height, wearing a gray hooded sweatshirt, tight jeans, and cowboy boots. The man entered the store, side-stepped an electronic floor mat, which avoided triggering an alarm, and proceeded through two separate half doors into the manager's office. He then removed a safe from beneath the office counter and ran from the store carrying the safe.

Although the store was open to the public for business at the time, the theft was not detected until several hours after the incident. Police viewed the security tape and noted the perpetrator seemed familiar with the store layout, as demonstrated by the avoidance of the front mat and knowledge of the safe's location. While interviewing store employees, the police learned a former employee, Stacey Conrad, dated Appellant [Petitioner], and Appellant matched the general description of the man on the security tape. Police, who were unable to contact Conrad, reviewed past store security tapes. The tape of February 10, 2003 depicted Conrad and Appellant in the store at approximately 3:00 a.m. In this tape, Appellant fit the description of the unknown perpetrator, and was wearing tight jeans and cowboy boots, while Conrad wore a gray hooded sweatshirt similar in size and appearance to the one worn by the perpetrator during the crime.

On February 27, 2003, the police responded to a domestic disturbance at Conrad's mother's home in Lansford, where Conrad and Appellant were both present. Upon arrival, police arrested Conrad on an unrelated charge and noticed Appellant's clothes were the same as those of the perpetrator's from the store security tape. Appellant was arrested, and a search incident to that arrest revealed $258.00 on his person. Appellant claimed the money came from the sale of his truck, but the buyer identified by Appellant denied purchasing the truck or giving him money.

At the time of the theft, Appellant and Conrad lived with Michael Whah, Appellant's co-defendant, in Whah's home. When interviewed in prison, Conrad told investigators she was present during several conversations in which Appellant and Whah discussed stealing money from Boyer's. She stated that on February 25, 2003, Appellant and Whah left Whah's home together at approximately 2:45 a.m. and returned at 5:00 a.m., and Appellant was wearing a gray hooded sweatshirt, blue jeans, and brown boots. She further stated that the following morning, Whah told Appellant that the Money was in Whah's room. Conrad identified the location within Whah's home where tools used to open the safe were kept and stated Whah told her he needed money to pay for his home. Conrad admitted to investigators she advised Appellant of how to bypass the entrance alarm, but denied other involvement in the crime.

At a subsequent police interview, however, Conrad informed police of the following: she was actually with Appellant and Whah when they drove from Whah's home to Boyer's on February 25, 2003; Whah was the driver and parked his vehicle in front of Boyer's while Appellant entered the store; Appellant exited the store with the safe and placed it in the back seat; the three of them returned to Whah's home; in the basement of the home, Appellant and Whah used various tools to cut a hole in the bottom of the safe; Conrad put her hand through the hole and withdrew approximately $13,000 in cash and checks from the safe, as well as a pair of keys and Appellant took the money and hid it in a location unknown to her.

Based on Conrad's statement to police prior to admitting her own involvement, her knowledge of Appellant's arrest, and a confidential informant's claim he was present in Whah's home and observed large quantities of drugs, the police secured a search warrant of Whah's home to obtain evidence related to theft, as well as evidence of drug trafficking. The search warrant was executed on March 6, 2003, and no evidence of drug activity or theft was discovered in Whah's home. The police, however, discovered keys to Boyer's in a black duffle bag located in the room Appellant shared with Conrad. The Boyer's store manager identified the keys as those kept in the stolen place. Police also found a gray hooded sweatshirt in Appellant's room.

Appellant filed an omnibus pre-trial motion for suppression of the evidence, claiming probable cause did not exist for the issuance of the search warrant and the Commonwealth failed to establish a proper chain of custody of the evidence. The trial court found that although the information derived from the confidential informant and Appellant's illegal arrest did not create probable cause, the search warrant was nonetheless valid based on Conrad's statements. Additionally, the trial court held the alleged flaws in the chain of custody did not warrant suppression of any evidence. (Doc. 10 Ex. 5 at 2-5).

A jury found petitioner guilty of burglary, criminal trespass, receiving stolen property, theft by unlawful taking and conspiracy to commit burglary on November 3, 2004. (Petition for Writ of Habeas Corpus (Doc. 1-2) (hereinafter "petition") at 4). The Carbon County Court of Common Pleas on December 21, 2004 sentenced petitioner to an aggregate sentence of eighteen months to ten years incarceration. (Id.). Petitioner appealed this judgment and sentence to the Superior Court of Pennsylvania on January 18, 2005. (Doc. 10, Ex. 1). After briefing and argument, the Superior Court on September 9, 2005 affirmed the decision. (Response to Petition for Writ of Habeas Corpus (Doc. 10) (hereinafter "response") Ex. 4). The Superior Court denied petitioner's motion for reargument and/or reconsideration on November 17, 2005. (Id., Ex. 6). The Pennsylvania Supreme Court denied petitioner's petition for allowance of appeal on May 9, 2006. (Id., Ex. 7).

Petitioner filed his claim in the United States District Court for the Eastern District of Pennsylvania on July 3, 2006. The case was transferred to this court on August 21, 2006 (Doc. 1). In his filing, petitioner argued that he had been arrested improperly, that searches of two residences had not been conducted after a showing of probable cause and that evidence used against ...

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