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Branch v. Tennis

April 21, 2009

DARNELL BRANCH, PETITIONER,
v.
FRANKLIN J. TENNIS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum and Order

Presently before the court is petitioner Darnell Branch's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Branch is currently serving an aggregate term of twenty-six to sixty years' imprisonment for three aggravated assault convictions and a conspiracy conviction. After conducting a de novo review of the Report and Recommendation of the late United States Magistrate Judge Peter B. Scuderi, and upon consideration of petitioner's objections thereto, the court will overrule petitioner's objections, adopt in substantial part the Report, and approve the Recommendation.

I. Factual and Procedural Background

The Pennsylvania Superior Court, in reviewing Branch's direct appeal, summarized the factual backdrop to Branch's convictions:

The charges arose out of a gunfight which occurred on the street in broad daylight between [Branch], Bruce Burdine, and Timothy Davis on one side and Shawn Price, James Price and Woodrow Lawson on the other. Shawn Price and Woodrow Lawson were injured as was Jermaine Lipscomb, a four-year-old bystander.

Commonwealth v. Branch, 863 A.2d 1219 (Pa. Super. Ct. 2004) (unpublished table decision). A jury convicted Branch on June 14, 1999 of three counts of aggravated assault and one count of conspiracy. On July 27, 1999, Judge Greenspan sentenced Branch to ten to twenty years' imprisonment for the first count of aggravated assault, eight to sixteen years' imprisonment for the second count of aggravated assault, seven and one-half to sixteen years' imprisonment for the third count of aggravated assault, and six months' to eight years' imprisonment for the conspiracy count. All terms of imprisonment were to run consecutively.

On August 4, 1999, Branch filed a timely notice of appeal in the Superior Court of Pennsylvania. The Superior Court dismissed Branch's direct appeal on April 17, 2000 for failure to file a brief. OnFebruary 21, 2001, Branch filed his first Pennsylvania Post Conviction Relief Act ("PCRA") petition pursuant to 42 Pa. Con. Stat. §§ 9451 et seq. In his petition, Branch argued that his direct appeal counsel was ineffective for failing to file a brief in Branch's direct appeal. The PCRA court appointed counsel, and counsel subsequently filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988),*fn1 certifying that she had reviewed the record and concluded there were no meritorious issues to advance before the PCRA court. On September 9, 2001, the PCRA court permitted counsel to withdraw and dismissed the case. Branch appealed, and on July 10, 2002, the Superior Court reversed the PCRA court's dismissal and reinstated Branch's direct appeal rights nunc pro tunc.

Counsel was appointed, and on October 28, 2003, Branch filed a second direct appeal, raising ten claims:

(1) the Commonwealth committed prosecutorial misconduct when it introduced into evidence the appellant's involvement with the penal system;

(2) the Commonwealth improperly bolstered the testimony of James Price, one of the Commonwealth's witnesses, by stating to the jury that he was given immunity in exchange for his truthful testimony;

(3) trial counsel was ineffective for failing to object to evidence of appellant's other crimes being introduced into evidence and to the several instances of prosecutorial misconduct;

(4) the trial court erred in its failure to correctly charge the jury on the mere presence doctrine;

(5) trial counsel was ineffective for failing to object to the judge's instructions to the jury on mere presence;

(6) trial counsel was ineffective for failing to file a post-verdict motion that the verdict was against the weight of the evidence;

(7) the verdict was against the weight of the evidence;

(8) the verdict was contrary to law;

(9) the trial court should have granted appellant's request for a mistrial when the prosecution attacked the credibility of a witness;

(10) counsel was ineffective for not filing a motion to reconsider the sentence in that the sentence was unduly harsh. (Pet.'s Obj. Rep. & Rec. Ex. A, Pet.'s Direct App. Br. at 5-6.) On September 22, 2004, the Superior Court affirmed the judgment of sentence. Branch did not seek an allowance of appeal to the Pennsylvania Supreme Court. Thus, petitioner's judgment of sentence became final thirty days later, on October 22, 2004. See 42 Pa. Con. Stat. § 9545(b)(3); Pa. R. App. P. 1113(a).

On November 10, 2004, Branch filed a second PCRA petition. His second PCRA petition raised four ineffective assistance of counsel claims:

(1) defendant was denied his constitutional right to effective assistance of trial counsel, in that counsel failed to object when the Commonwealth unduly bolstered the trial testimony of Commonwealth witness James Price;

(2) defendant was denied his constitutional right to effective assistance of trial counsel, in that counsel failed to object and request mistrial and/or curative instructions, when the Commonwealth presented and/or elicited in two areas Defendant's involvement in prior unrelated criminal activity;

(3) defendant was denied his constitutional right to effective assistance of trial counsel, in that counsel failed to motion for judgment of acquittal to the charge of criminal conspiracy;

(4) defendant was denied his constitutional right to effective assistance of trial counsel, in that counsel failed to object to the trial court's inadequate jury instruction on mere presence. (Id. Ex. G, Pet.'s 2d PCRA Pet. at 5, 8, 11, 14.) On March 7, 2006, Branch's appointed counsel filed a no-merit letter pursuant to Finley. The PCRA court dismissed Branch's second PCRA petition on April 26, 2006 without holding a hearing. Branch appealed this dismissal to the Superior Court, raising eleven issues for review:

(1) the verdict was contrary to law;

(2) it was prosecutorial misconduct when the district attorney introduced evidence of Appellant's involvement with the penal system;

(3) the Commonwealth (district attorney) improperly bolstered the testimony of witness James Price by stating to the jury that he was given ...


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