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Robertson v. Klem

August 28, 2009


On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 06-cv-00467) District Judge: Hon. Terrence F. McVerry.

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


Argued April 22, 2009

Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges


Petitioner David Robertson was convicted by a jury in Pennsylvania state court of two counts of conspiracy to commit murder arising out of the deaths of Edward and Karen Povlik, although he was acquitted of the murders by the same jury. He was sentenced to a five-to-ten-year term of imprisonment on each of the two counts, which were to run consecutively. After exhausting his direct and collateral appeals in the Pennsylvania courts, Robertson filed a petition for federal habeas relief, alleging as relevant here that the evidence was insufficient to support his conviction for two conspiracies. That is, Robertson contends that the evidence produced at trial proved at most one conspiracy that encompassed the killings of both Povliks.

The District Court adopted the findings and recommendations of the Magistrate Judge and denied the petition. However, we conclude that the evidence was insufficient to allow a rational trier of fact to find that Robertson participated in two conspiracies and that the Pennsylvania courts' contrary conclusion was an unreasonable application of clearly established Supreme Court precedent. Therefore, we will reverse.

I. Background

A. The Murders

This case arises out of the murders of Edward and Karen Povlik, both drug dealers, who were killed sometime during the late night of December 31, 1994, or early morning of January 1, 1995, at their home outside of Connellsville, Pennsylvania. After several years of investigation, Robertson was charged with two counts of first and third degree murder and two counts of conspiracy to commit criminal homicide. The Commonwealth's theory of the case was that Robertson obtained the murder weapon and provided it to Gerald Powell, who was the triggerman.*fn1

The evidence at trial established that the Povliks illegally sold prescription drugs, such as morphine, out of their residence and that Robertson was one of their customers. On December 31, 1994, Robertson went to the Povliks' home with his friend John Mongell to purchase morphine. According to Mongell, when they arrived at the Povliks' home, Robertson "folded his knees down... and sat like on the floor of my car," apparently hiding from the Povliks. App. at 316. Mongell purchased morphine and then left with Robertson.

Later that day, Robertson, his girlfriend (Donna Jo Mathews), and her two children were at a New Year's Eve Party at the home of another friend, Greg Rosensteel. Robertson asked to borrow a.22 caliber, nine-shot revolver from Rosensteel, ostensibly in order to do some target practice. Rosensteel lent him the gun.

Subsequently, at about eight or nine o'clock that evening, Robertson called Mongell and stated that "he was going to go down to the Povliks" and that "he was going to do something that he didn't want to do" and "cause some trouble." App. at 319. Robertson left Rosensteel's house between ten and eleven P.M. to take Mathews' son to the home of Mathews' mother. Robertson returned to Rosensteel's house sometime before midnight and then left with Mathews and her daughter at around one in the morning of January 1, 1995. When Mathews woke up later on January 1, Robertson was gone and did not return until about eleven or eleven-thirty A.M. Later that day or the next, Robertson returned the revolver to Rosensteel. They did not discuss whether Robertson had used the gun, but Robertson stated that he had cleaned it.

At trial, the Commonwealth introduced testimony from several witnesses that Robertson made inculpating statements in the months following the Povliks' murder. In either February or March 1995, Robertson was traveling with Rosensteel and Robertson's cousin Tina Stockman. They happened to drive by a man working on a car alongside the road; Robertson stopped the car and got out and spoke to the man. According to Rosensteel, when Robertson re-entered the car, "he made a statement about that that was the guy that pulled the trigger, and I asked him what he was talking about, and he made reference to the people that got killed in the trailer [the Povliks]." App. at 261. Robertson also stated at that time that "he [Robertson] got the gun, but that [Powell] was the guy who pulled the trigger." App. at 261.

Further, Stockman testified that she heard Robertson refer to the murders on another occasion. Specifically, Robertson stated that "I might have got the gun, but I didn't pull the trigger" and that Powell was the shooter. App. at 51. Stockman also testified that Robertson was able to describe the position of the Povliks' bodies at the murder scene.*fn2 Finally, another friend, Mary Ann Kraynak, testified that she heard Robertson state that ...

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