The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge
On March 26, 2003, an Erie County jury found Petitioner Corinne Wilcott guilty of several crimes, including Third Degree Murder Of an Unborn Child, in violation of 18 PA.CONS.STAT.ANN. §§ 2603-04, and Aggravated Assault of an Unborn Child, in violation of 18 PA.CONS.STAT.ANN. § 2606. The charges against her stemmed from a fight she had with Sheena Carson, her husband's pregnant mistress, during which she kicked Carson in the abdomen.
Pending before this Court is Petitioner's Amended Petition For a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. [Document No. 25]. She claims that her Sixth Amendment right to effective counsel was violated because her trial attorney did not present the testimony of an Obstetrician/Gynecologist ("OB/GYN") in order to support the defense theory that Carson's fetus died from an unrelated infection, and also to support the theory that fetal demise occurred before the fight. Had her trial attorney retained a qualified OB/GYN, Petitioner argues, there is a reasonable probability that the jury would have acquitted her on the homicide and aggravated assault of an unborn child charges.
II. Relevant Background*fn2
On May 8, 2002, Carson had a sonogram after which the gestational age of her was estimated to be 14-15 weeks. (Day Four Trial Tr. at 84, 173). OB/GYN Andrea Tolson Jeffress, M.D., testified at Petitioner's trial that the age estimation made from a second trimester sonogram is just that -- an estimation -- and may be off seven to ten days. (Id. at 46-47).
Carson testified that she had not experienced any problems with her pregnancy and had no cramping or abdominal pain until Petitioner kicked her in the abdomen during their fight, which occurred around 1:30 a.m. on June 8, 2002. (Day Three Trial Tr. at 61-62). Carson said that when Petitioner kicked her, she said "I hope the bastard die[s]." (Id. at 57). A short time afterwards, Carson started to experience mild pain and cramping and went to the emergency room. (Id. at 61-62). The emergency room physician was unable to find a fetal heartbeat using a fetal doppler machine and advised Carson to see her OB/GYN. (Id. at 175-76). Carson went to her OB/GYN several days later, on Wednesday, June 12, 2002. A sonogram taken on that date revealed that her fetus was dead. (Day Four Trial Tr. at 64). From the fetal measurements provided by that sonogram, the estimated age of the fetus was 17.1 weeks. (Id. at 45, 172-76).
Dr. Jeffress delivered Carson's stillborn fetus on June 13, 2002. Petitioner was charged with one count of Criminal Homicide Of an Unborn Child, one count of Aggravated Assault Of an Unborn Child, one count of Aggravated Assault against Carson, one count of Simple Assault against Carson, and one count of making Terroristic Threats against Carson.
Petitioner retained Timothy J. Lucas, Esq. Her trial commenced on March 21, 2003. The Commonwealth's theory of the case was that Petitioner's kicks to Carson's abdomen caused a placental abruption that caused the death of the fetus.*fn3 To support the theory, the Commonwealth called Dr. Jeffress and Eric Vey, M.D., the forensic pathologist who performed the autopsy of the fetus. Dr. Jeffress testified that when she delivered Carson's fetus stillborn on June 13, 2002, she noticed a number of small blood clots on the placenta. She swabbed both sides of the placenta so that the swabs could be cultured to check for infection. The cultures grown from the swabs grew prevotella disiens, an anaerobic bacteria, and two aerobic bacteria, lactobacillus and yeast. There was no growth of streptococcus B, which is one of the causes of chorioamnionitis, a condition that causes premature delivery. (Day Four Trial Tr. at 31-45).
In her delivery notes, Dr. Jeffress listed the cause of fetal death as "possible abruption." Dr. Jeffress testified that she listed it as such because Carson had suffered a trauma (the kicks to the abdomen), she observed blood clots on the placenta, and she did not observe indications of another cause, such as signs of infection (Carson had no fever, no high white blood cell count prior to the delivery, and there was no foul discharge or odor). (Id. at 41-43).
On June 25, 2002 -- twelve days after delivery of the fetus -- Dr. Vey performed the autopsy.*fn4 He testified at trial that the fetus died from "traumatic placental abruption" as a result of "blunt force trauma." (Id. at 124, 140). Dr. Vey explained how he reached this conclusion. He stated that his examination of the placenta revealed a contusion or bruise caused from trauma force. (Id. at 119-124). He also noted that a microscopic examination of the placenta revealed an inflammatory reaction associated with the presence of a blood clot, indicating that there had been an abruption. (Id. at 133-36).
Dr. Vey acknowledged that the microscopic examination of the placenta also revealed a proliferation of bacterial colonies. (Id. at 136-137). The proliferation of bacterial colonies, in his opinion, were the result of post-mortem bacteria growth. According to Dr. Vey, because of the twelve-day delay between the delivery and the autopsy, during which time the fetus and placenta were stored in an unsterile morgue cooler, "[t]he presence of the bacteria is not a surprise, and is entirely expected." (Id.) Dr. Vey stressed that "[w]hat is important to remember, there is no associated inflammatory response in association with the bacteria present in this case." (Id. at 137-138). This fact was important because "the absence of inflammation in the presence of the bacteria, indicates that the bacteria occurred post-mortem" because dead tissue cannot become inflamed. (Id.)
Lucas cross-examined Dr. Jeffress and Dr. Vey in an attempt to show that the Commonwealth could not meet its burdens of proof. He also presented the testimony of Miles J. Jones, M.D., a board certified forensic pathologist who had served for two years in the department of gynecology and obstetrics in the Armed Forces Institute of Pathology ("AFIP"). (Day Five Trial Tr. at 40-42). Dr. Jones testified that in his opinion Carson did not suffer an abruption. He noted a lack of any finding of hemosiderin, a breakdown product of hemoglobin, on the placenta:
Dr. Jones: The lack of hemosiderin means there was no body reaction to cleaning up blood. It means there was no significant bleeding at the time from when an abruption supposedly occurred, to when delivery occurred, and the body was still active. The metabolary processes were still present. No hemosiderin means no hematoma, no blood loss.
Lucas: If there's no hematoma and no blood loss, what does that mean relative to placental abruption?
Dr. Jones: There was no abruption. (Id. at 54).
Dr. Jones also testified that, if Petitioner kicked Carson, she did not cause sufficient trauma to cause an abruption. He emphasized that Carson did not complain of severe pain, which is usually a symptom of a placental abruption, nor did she have any bruising on her abdomen, which he said she should have had if, as the Commonwealth contended, she had sustained trauma sufficient enough to cause bruising on the placenta. (Id. at 75, 131-132, 182). Also, Dr. Jones disagreed with Dr. Vey's opinion that there was evidence of a bruise or a contusion on the placenta. (Id. at 72).
Dr. Jones also opined that "the fetus died from an intrauterine infection, and that that infection as documented in the medical records, was from pretotella disiens." (Id. at 69). He explained that his review of the autopsy records revealed microscopic evidence of bacteria in the placenta. (Id. at 56). He said that prevotella disiens is an anaerobic bacteria that should not be present in the placenta, and also that the placenta is located next to the endometrium or decidua, where he observed inflammation. (Id. at 63-65). Dr. Jones explained that if you have tissue that should not have bacteria in it and if there is inflammation in the endometrium or decidua, that is evidence that the bacteria was present in the tissue before the ...