The opinion of the court was delivered by: Louis H. Pollak, J.
On March 11, 2008, United States Chief Magistrate Judge Thomas J. Rueter filed a Report and Recommendation ("R&R") (Doc. No. 9) recommending denial of petitioner Christopher Scott Curley's counseled Petition for Writ of Habeas Corpus, which was filed pursuant to 28 U.S.C. § 2254. On March 28, 2008, petitioner filed objections to the R&R (Doc. No. 10). Upon consideration of the record, the R&R, and petitioner's objections, this court will approve and adopt the R&R and deny and dismiss the petition.
The relevant facts are set out in detail in the R&R. On April 19, 2004, a jury sitting in the Court of Common Pleas of Montgomery County convicted petitioner of rape and other related crimes against A.L., his six-year-old stepdaughter. Commonwealth v. Curley, Nos. 3334-03, 4763-03, slip op. at 1 (Ct. Comm. Pl. Montgomery County Nov. 30, 2005). The jury also convicted petitioner of several crimes committed against C.R., the twelve-year-old daughter of petitioner's family friend. Specifically, the jury found petitioner guilty of (1) criminal attempt to commit involuntary deviate sexual intercourse ("IDSI"), (2) criminal attempt to commit indecent assault, and (3) criminal solicitation with the intention of promoting or facilitating IDSI and indecent assault. Id.
Petitioner raises five objections to Chief Magistrate Judge Rueter's R&R. First, he argues that the evidence at his trial was insufficient to convict him of the attempt crimes against C.R. Pet.'s's Objections at 1-2. Petitioner next asserts that his trial counsel was constitutionally ineffective because counsel (1) failed to request a "specific unanimity instruction" telling the jury that it must unanimously agree on the specific criminal act or acts that constitute the offenses for which Curley was charged, (2) failed to object to comments by the prosecutor during closing arguments that vouched for the credibility of the victims, and (3) failed to object to the testimonies of Wendy Demchick-Alloy, the prosecutor at the preliminary hearing in this case, and Elizabeth Siegfried, a witness from the Montgomery Office of Children and Youth, both of whom petitioner believes further bolstered the credibility of the minor complainants. Id. at 2-3. Finally, petitioner argues that this court should issue a Certificate of Appealability ("COA") because jurists of reason could debate whether or not the petition could be resolved in a different manner and because the issues presented in the petition "deserve encouragement to proceed further." Id. at 3.
As a threshold matter, this court agrees with petitioner and with Chief Magistrate Judge Rueter that petitioner's sufficiency-of-the-evidence claim was properly exhausted in the state courts, as required by 28 U.S.C. § 2254(b)(1)(A) (2006). In order to comply with this statutory exhaustion requirement, a habeas petitioner "must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted).
"A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts." Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007). Thus, where the petitioner presents a claim to the state courts in some form, and the "method of analy[zing that claim] is the same under both Pennsylvania and federal law," the exhaustion requirement is satisfied. Evans v. Court of Common Pleas, 959 F.2d 1227, 1232 (3d Cir. 1992).
In Evans, as in this case, the petitioner argued that the evidence was constitutionally insufficient to sustain a conviction but failed to express that claim in terms of federal law until filing a petition with the Pennsylvania Supreme Court. See id. at 1231; Pet.'s Objections at 3 n.1. The Evans court held that the claim was nonetheless properly exhausted, because the state and federal standards governing claims that the evidence was insufficient to sustain a conviction are identical. See Evans, 959 F.2d at 1232 & n.6 (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. Ct. 2003). Those standards remain identical, and Evans therefore directs the conclusion that petitioner exhausted the insufficiency claim in the state courts.
As petitioner notes, Jackson v. Virginia, 443 U.S. 307 (1979), providesthe federal constitutional standard for evaluating due process challenges to the sufficiency of the evidence at trial. Under Jackson, a petitioner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n.16.
Petitioner challenges his convictions for criminal attempt to commit IDSI and indecent assault against C.R. Under Pennsylvania law, petitioner is guilty of criminal attempt to commit IDSI if he took "any . . . substantial step," 18 Pa. Cons. Stat. § 901, toward -- among other things -- engaging in deviate sexual intercourse, including oral sexual intercourse, with a child under the age of thirteen, see id. §§ 3101, 3123. Similarly, petitioner is guilty of an attempt to commit indecent assault if he took a substantial step toward "indecent contact" with C.R. Id. § 3126. Indecent contact encompasses "any touching of the sexual or other intimate part of the [complainant] for the purpose of arousing or gratifying sexual desire, in either person." Id. § 3101.
The facts recounted in Chief Magistrate Judge Rueter's R&R amply support petitioner's conviction. Petitioner held C.R. on his knee with his arm around her while A.L. performed oral sex and masturbation on him in petitioner's basement. He then "invit[ed C.R.] to do the same." R&R at 7 (internal quotation omitted). Under the circumstances, both petitioner's physical hold on C.R. and his verbal invitation to her constituted substantial steps towards IDSI and indecent assault. Additionally, petitioner's argument that he cannot be held guilty of criminal attempt because he did not use force against C.R., who escaped to an upstairs bathroom, is not supported by Pennsylvania law. See, e.g., Commonwealth v. Andrulewicz, 911 A.2d 162, 167 (Pa. Super. 2006) (upholding a conviction for attempt to commit IDSI where the defendant "removed his penis from his pants, approached [the minor victim], put his penis near her face, and asked her to lick him"). Petitioner's first claim is accordingly dismissed.
Petitioner's ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, petitioner must show that (1) his attorney's representation "fell below an objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. In assessing petitioner's claims, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
As Chief Magistrate Judge Rueter noted, a trial judge "has broad discretion in framing the form and language of the charge to the jury." United States v. Traintz, 871 F.2d 368, 383 (3d Cir. 1989) (internal quotation omitted). Thus, trial counsel's failure to request a specific unanimity instruction was not constitutionally ineffective if the instructions given to the jury were merely "'undesirable, erroneous, or even universally condemned.'" Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). Rather, petitioner's claim may only succeed if counsel's failure to request the unanimity language resulted in an "'instruction [that] by itself so infected the entire trial that the resulting conviction violates due process.'" Henderson, 431 U.S. at 154 (quoting Cupp, 414 U.S. at 147).
Petitioner correctly notes that the trial judge is required to give a specific unanimity instruction to the jury in some circumstances. United States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987). However, "[t]he Beros rule comes into play only when the circumstances are such that the jury is likely to be confused as to whether it is required to be unanimous on an essential element." United States v. Cusumano, 943 F.2d 305, 312 (1991). By contrast, "[i]n the routine case, a general unanimity instruction will ensure that the jury is unanimous on the factual basis for the conviction, even where an indictment alleges numerous factual bases for criminal liability." Beros, 833 F.2d at 460.
This case falls on the routine side of the line. Crucially, unlike in Beros, the prosecution did not "allege different sets of facts" to support the charges of criminal attempt on and criminal solicitation of C.R. Cusumano, 943 F.2d at 312. The charges were instead based solely on the incident described above in which petitioner held C.R. on his knee and invited her to perform oral sex on him. As such, the jury verdict slip and instructions -- each of which discussed criminal attempt and solicitation in the context of IDSI "and/or" criminal assault, see R&R at 14; Pet.'s Objections at 10 -- were not likely to confuse the jury, especially as the Pennsylvania statutes at issue are not particularly complex. Nor does the jury's behavior demonstrate any confusion. It convicted petitioner of criminal attempt and solicitation of both crimes -- a result entirely consistent with the fact that indecent assault is a lesser included offense of IDSI. See Commonwealth v. Hawkins, 614 A.2d 1198, 1199-1200 (Pa. Super. Ct. 1992). For these reasons, and because the trial court properly issued a general unanimity instruction and explained the verdict form to the jury, see R&R at 14-15, no specific ...