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Jones v. Diguglielmo

June 19, 2009

KEVIN JONES
v.
DAVID DIGUGLIELMO, ET AL.



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

MEMORANDUM AND ORDER

This case comes before me on a habeas corpus petitioner's objections to the proposed findings, recommendations, and report of a magistrate judge. Concluding that those proposed findings are amply supported by the record and that the learned magistrate judge carefully and accurately applied the law, I will adopt and approve her report and recommendations but will add additional reasons why the petition must be dismissed.

The petitioner has exhausted his state remedies, first by direct appeal and then by proceeding under the Pennsylvania Post Conviction Relief Act. The Superior Court of Pennsylvania rejected his claims by an opinion dated November 14, 2002, and the Supreme Court of Pennsylvania denied review.

The petitioner was found guilty by a jury of first degree murder and of lesser offenses arising out of his possession of a firearm. He contends that he was denied effective assistance of counsel, that there was prosecutorial misconduct, and that the cumulative effect was constitutional error.

These contentions are best viewed in the evidence produced at the petitioner's trial -- and particularly from his own testimony.

I. FACTUAL BACKGROUND

At approximately nine o'clock on the night of January 15, 1999, the petitioner, Kevin Jones, then nineteen, was selling cocaine from an apartment in Pottstown, Montgomery County. He was approached by Anthony Gibbons to whom he had previously sold cocaine. Gibbons asked him for cocaine but apparently had no money and so Jones refused his request. A few minutes later, Gibbons and three other men came to the apartment, two of them put guns to Jones' head, and the four robbed him of money, drugs, and articles of his clothing.

After the robbery, Jones left the apartment -- he was scared, nervous, upset, real angry. He wanted his "stuff back." (Trial Tr. 21, Nov. 8, 1999.) He went to the home of a woman he knew and called friends in Philadelphia. It was agreed they would come to Pottstown the next day to help him recover his stolen property. Jones drank, took pills, smoked marijuana, and then fell asleep. The following day he awoke around four in the afternoon and three of his Philadelphia friends arrived around six. In their car, guns were distributed -- the petitioner receiving an automatic handgun which he assumed was loaded. Although nothing about guns had previously been said, Jones knew that his friends probably would have them.

They drove to an alley, parked the car, and the four men got out and walked toward a bar where they expected to find Gibbons. He was spotted at a nearby corner, and when he saw Jones and the other three, he ran into the bar. They pursued him, but Gibbons escaped even though shots were fired at him. At some point, shots were fired at Jones and his friends. They returned to the car -- Jones was still mad -- and he was thinking that he wanted to get his stuff back.

As they were driving, Jones saw a man whom he believed to have been one of the robbers. "It looked like him, exactly like him." (Trial Tr. 33, Nov. 8, 1999.) He was about a car length away. Jones was upset. He was mad when he thought about having been robbed and shot at. Jones testified to the events that followed:

Q: What did you do?

A: Got out of the car.

Q: Where did you go?

A: On the sidewalk.

Q: When you went to he sidewalk, what did you do?

A: I shot him.

Q: Do you remember where you shot him?

A: I guess in his back.

Q: Do you remember how many times you shot him?

A: I don't remember how many, but from the reports and stuff, it was seven. (Trial Tr. 35, Nov. 8, 1999.)

Jones was quickly apprehended and the gun, which he had attempted to hide, was found. After admitting on cross examination that in an effort to get out of trouble he had lied to the police in each of five statements he made, Jones testified:

Q: And you knew, because you knew these guys, that they were going to come to Pottstown with guns; right?

A: I assumed. I didn't know. I assumed they would.

Q: And you assumed they would bring one along for you; right?

A: I assumed, yes. (Trial Tr. 57-58.)

Q: So you saw Kevin Cornish*fn1 walking down the street; right?

A: Yes.

Q: What went through your mind when you first saw him?

A: He looks like one of the guys who robbed me.

Q: What were you going to do?

A: I just at first wanted to make sure ...


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