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Wimbush v. Beard

October 8, 2009


The opinion of the court was delivered by: Chief Judge Kane


Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Henry Ford Wimbush ("Wimbush"), an inmate at the State Correctional Institution at Mahanoy, Pennsylvania. In the petition, Wimbush challenges his state conviction and sentence for robbery, theft and simple assault. He alleges the denial of due process of law when testimony was introduced at trial regarding other criminal activity, thereby prejudicing his right to a fair trial. (Doc. No. 1, Pet.) The petition is ripe for consideration and, for the reasons that follow, will be denied.

I. Background & Procedural History

The following relevant facts are extracted from the opinion issued on December 1, 2000, by the Cumberland County Court of Common Pleas pursuant to Pennsylvania Rule of Appellate Procedure 1925. (Doc. No. 18-4.)

On September 15, 1999, at approximately 1:45 p.m., defendant entered a Pennsylvania liquor store in Silver Spring Commons, Silver Spring Township, Cumberland County. He displayed a small handgun to the store clerk, Delores Fleischman, and demanded that she get him money from the store safe. She did as she was told. Defendant stole $695 from the store. Fleischman described the robber to the police as a black man weighing 350-400 pounds, and being approximately six feet tall. She said he was very smelly. He was wearing a black jogging suit with a stripe.

He had on a dark, "fishing type" hat. Fleischman testified at trial and identified defendant as the person who robbed the State store.

The robbery was investigated by both the Silver Spring Township police and the Pennsylvania State Police. Chief Gerald Steigleman of Silver Spring Township testified that defendant became a suspect on September 17, 1999. On that day, the Chief showed a photo array to Delores Fleischman, who had been confronted in the State store by the robber. The clerk identified the robber from one of eight photos. That photo was of defendant. Trooper Sally Worst of the Pennsylvania State Police testified that Chief Steigleman told her that the store clerk had identified Wimbush as the robber. Trooper Worst learned where defendant was staying from Harrisburg Police Officer Gary Jones. As a result, on September 17th, Worst obtained a search warrant for that location, the apartment of Greta McAllister in Harrisburg, Dauphin County. The search was conducted on September 17th. Troopers seized evidence that included a black duffel bag in which there was a small black plastic toy gun and a Pennsylvania Liquor Control Board merchandise bag. They also seized a dark blue, fisherman type hat and a sweat suit. The top half of the sweatshirt was black and the bottom half was white. It had red and black sleeves. The sweatpants had a large red stripe and a small red stripe on both legs. All of these items were admitted into evidence at trial. Greta McAllister testified at trial that defendant had been sleeping in a room in her apartment where he kept all of his "stuff." She said his clothes "stunk." The items that the troopers seized were defendant's.

Officer Gary Jones of the Harrisburg police testified that on September 16th, he was attempting to locate Henry Wimbush and found him in the apartment of Greta McAllister in Harrisburg.

Wimbush was in a room inside the apartment. In response to a question, "What did you do," Officer Jones stated:

I knocked on the door. I said, Henry, come on out. I attempted to open the door. The door was being held from the inside, at which time I pulled again to look inside to see who was there, and I told the subject he was under arrest. Jones further testified that he took Wimbush with him that day. He testified that he then told Trooper Worst that he had found Wimbush at the apartment in Harrisburg. On September 17th, Jones led the state police to the apartment where the state police executed their search warrant.

Trooper Steven Strawser, of the Pennsylvania State Police, participated in the search of McAllister's apartment on September 17th. After testifying about the seizures made during the search, the following exchange occurred between the assistant district attorney and the witness:

Q: Now, with the information that you had, the items of clothing that you found in the residence where Mr. Wimbush had been and the identification of Miss Fleischman, did you prepare an arrest warrant to place Mr. Wimbush under arrest for this particular robbery in Silver Spring Township:

A: Yes, I did.

Q: Were you - I apologize to the court reporter. Let me rephrase that. On what day did you go to place Mr. Wimbush under arrest for this crime?

A: That was on the 22nd of September.

Trooper Strawser further testified that on the day he arrested defendant, September 22nd, defendant stated that he would like to ask him a "professional question: if you rob a place with a toy gun, should you get a recklessly endangering charge." Trooper Strawser had not told defendant that a toy gun had been recovered from his room when defendant made the statement. Defendant also told Trooper Strawser that drugs had taken control of his life and he was sorry for what had happened and that ...

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