Searching over 5,500,000 cases.

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.

McMullen v. Tennis

April 1, 2009


On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 06-cv-00183) District Judge: Hon. Christopher C. Conner.

The opinion of the court was delivered by: Cowen, Circuit Judge.


Argued January 27, 2009

BEFORE: SMITH and COWEN , Circuit Judges and THOMPSON*fn1, District Judge.


Appellant Kim McMullen appeals from the order of the United States District Court for the Middle District of Pennsylvania denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We will affirm.


A burglary occurred at a food store in Orbisonia, Pennsylvania in the late evening or early morning hours of February 23-24, 1985. On March 4, 1985, the body of Dominic Barcelona was recovered from a nearby creek. The body was about 300 yards downstream from a railroad bridge and approximately 400 to 500 yards downstream from a highway bridge. Barcelona, a 30-year old man suffering from schizophrenia, was well known throughout the community for his habit of taking extensive walks. At the time, the police made no connection between the burglary and Barcelona's death, and the death was ruled an accidental drowning following an autopsy.

Rumors surfaced in the community that the incidents were in fact related, and the Pennsylvania State Police reopened both investigations in 1989. McMullen, who was then incarcerated on other charges, gave a statement to the police.

He admitted that he committed the burglary with another man named Adam Wiser. According to McMullen, the two men fled from the scene and then encountered Barcelona on a nearby bridge. McMullen stated that it was Wiser who actually threw Barcelona into the creek after knocking him to the ground. The investigators ultimately cleared Wiser of any involvement in either the burglary or Barcelona's death, and the Commonwealth of Pennsylvania charged McMullen with burglary and criminal homicide.

Barcelona's mother testified at trial that her son would not have voluntarily walked on either the railroad or highway bridge because he was afraid of both heights and water. On cross-examination, she acknowledged that it was possible that Barcelona might cross a bridge under certain circumstances and that she was uncertain as to what her son actually did during his walks. Barcelona's psychiatrist told the jury that his patient heard voices and suffered from delusions. Refusing both medication and hospitalization, Barcelona occasionally walked into roadways without regard to traffic. He also walked with a limp as a result of being hit by a car during one of his walks in 1983. Witnesses interviewed at the time of his death stated that they saw Barcelona in the vicinity of the town bridge on the night of his disappearance. Finally, a witness testified that she saw an unidentified male carrying a box away from the site of the burglary and toward the railroad bridge at approximately 5 a.m. on February 24.

McMullen objected to the admission of his police statement on corpus delicti grounds. The trial court denied his objections and allowed the statement into evidence. However, the jury also heard testimony from the pathologist who autopsied Barcelona in 1985. The pathologist reiterated his finding of accidental drowning based on the condition of the body and the fact that neither the body nor the location of the drowning showed signs of a struggle. He acknowledged the existence of bruising and lacerations on Barcelona's forehead, adding that such injuries could not have been caused by the impact of falling from the bridge. Nevertheless, he stated that the head injuries could have occurred after the fall and prior to drowning. He finally commented that no additional evidence had come to light since 1985 that would have a bearing on his original autopsy report.

In December 1990, the jury found McMullen guilty of both burglary and second degree murder. The trial court sentenced him to life imprisonment for the murder conviction and eleven months to five years of imprisonment for the burglary conviction. On appeal, the Pennsylvania Superior Court vacated both convictions and remanded for a new trial ("McMullen I"). Commonwealth v. McMullen, 616 A.2d 14, 17 (Pa. Super. Ct. 1992). It specifically held that the Commonwealth failed to establish the requisite corpus delicti for the homicide charge and that the trial court accordingly committed reversible error by admitting McMullen's statement to the police into evidence. Id.

The Commonwealth appealed. According to the Pennsylvania Supreme Court ("McMullen II"), the Pennsylvania Superior Court properly applied the corpus delicti rule with respect to the homicide charge. Commonwealth v. McMullen, 681 A.2d 717, 720-23 (Pa. 1996). On the other hand, the McMullen II court found that "the Superior Court offered no explanation as to why it also vacated Appellee's burglary conviction," even though the Commonwealth clearly established the corpus delicti for this charge. Id. at 723. The Pennsylvania Supreme Court ultimately "affirm[ed] that portion of the Superior Court's Order vacating Appellee's conviction for second degree murder, but reverse[d] that portion of the Superior Court's Order vacating Appellee's conviction for burglary." Id.

The Commonwealth then received permission to exhume Barcelona's body and conduct a second autopsy. Following the second autopsy, the cause of death was ruled to be homicide. McMullen filed a motion to dismiss the homicide charge on double jeopardy grounds. The trial court denied this motion, and the Pennsylvania Superior Court affirmed its ruling on interlocutory appeal ("McMullen III"). Commonwealth v. McMullen, 721 A.2d 370, 372 (Pa. Super. Ct. 1998). The Pennsylvania Superior Court held that a retrial was permissible because the evidence admitted at the first trial, including McMullen's statement to the police, was sufficient to sustain a murder conviction. Id. at 371-72. It further determined that the Commonwealth should be given an opportunity to present its entire case before a ruling on the corpus delicti issue. Id. at 372. Judge Tamilia dissented, concluding that the double jeopardy doctrine barred a retrial. Id. at 372-75 (Tamilia, J., dissenting). McMullen, however, did not seek review of the McMullen III decision in the Pennsylvania Supreme Court.

The Commonwealth then retried McMullen. Over his objections, it used the second autopsy as well as the testimony of the forensic pathologist who conducted this autopsy to demonstrate the requisite corpus delicti for the admission of his statement to the police. In February 1999, a jury again found McMullen guilty of second degree murder, and the trial court sentenced him to life in prison.

On direct appeal, McMullen argued, inter alia, that the admission of the second autopsy evidence violated his double jeopardy rights. The Pennsylvania Superior Court affirmed the second degree murder conviction ("McMullen IV"). Commonwealth v. McMullen, 745 A.2d 683, 685, 689 (Pa. Super. Ct. 2000). It held that this matter did not fall under the Double Jeopardy Clause's "evidentiary insufficiency exception" barring retrial and that the Commonwealth was also allowed to gather and present additional evidence at the second trial to establish the requisite corpus delicti for the admission of McMullen's statement to the police. Id. at 686-89. The Pennsylvania Supreme Court denied McMullen's request for allocatur. He then filed a petition under the Pennsylvania Post Conviction Relief Act, raising, among other things, the double jeopardy issue. The trial court denied his petition, the Pennsylvania Superior Court affirmed in an unpublished opinion finding that the double jeopardy issue had already been litigated, and the Pennsylvania Supreme Court denied McMullen's application for allowance of appeal.

McMullen filed the current 28 U.S.C. § 2254 petition with the District Court. Acting pro se, he claimed, inter alia, that the Double Jeopardy Clause barred both his retrial as well as the admission of evidence from the second autopsy. The District Court denied McMullen's double jeopardy claims because he failed to establish that the respective state court rulings were contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. McMullen filed a timely notice of appeal, and this Court granted a certificate of appealability with respect to the claim that his retrial was barred by the Double Jeopardy Clause.


The District Court had jurisdiction over the habeas petition pursuant to 28 U.S.C. §§ 2241 and 2254, and we possess appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the District Court ruled on the petition without conducting an evidentiary hearing, this Court conducts a plenary review. See, e.g., Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005).

In order to obtain habeas relief from his state court conviction and sentence, McMullen must satisfy the standards established by the Antiterrorism and Effective Death ...

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.