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Hoffman v. Kresevig

March 17, 2010

TIMOTHY PAUL HOFFMAN, JR., PETITIONER,
v.
MARK KRESEVIG, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER*fn1

I. Introduction

In June 2003, a jury empaneled by the Court of Common Pleas of Erie County found Petitioner Timothy Paul Hoffman, Jr., ("Petitioner" or "Hoffman") guilty of third-degree murder, aggravated assault, endangering the welfare of children, and recklessly endangering another person. The victim was fourteen-year-old Ryan Ross King, who was in the custody and care of Petitioner and his partner, Jeff Condor. Pending before this Court is his Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus and supplement thereto [Document Nos. 4 & 6]. Petitioner claims that his due process rights were violated because the evidence introduced at his trial was insufficient as a matter of law to establish that King's injuries were inflicted upon him by another person, as opposed to resulting from another cause, such as an accidental fall. He also claims that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorneys: (a) would not allow him to testify on his own behalf; and, (b) did not call Condor to testify as a defense witness. Lastly, Petitioner claims that his five-year probation sentence for endangering the welfare of children is illegal because it should have merged with his sentence for third-degree murder.

II. Relevant Background*fn2

King was a special needs individual who functioned at the level of a one-year-old child. He required extensive personal care. King also had several physical ailments, including respiratory problems, chronic ear infections, and severe scoliosis that required an interior/anterior spinal fusion to enable him to stand. In June 2001, when his mother, Kathleen King, was unable to provide the necessary care for him, he moved into Petitioner and Condor's home. They shared the responsibilities of his care.

In the late afternoon of February 21, 2002, Petitioner and King were at home together and Condor was at work. Around 5:50 p.m., Petitioner called the paramedics and told them that King was having a seizure. When the paramedics arrived, King was lying on the floor in a fetal position. He was not breathing and the paramedics administered advanced life support procedures. (6/3/03 Trial Tr. at 47-49). The paramedics that attended the scene later testified at Petitioner's trial that they observed no physical signs of a seizure. (Id. at 51, 74-75). The paramedics transported King to Hamot Medical Center and he had brain surgery that day. He died on February 23, 2002.

Forensic pathologist, Eric L. Vey, M.D., performed the autopsy. He testified at Petitioner's trial that King died as a result of complications from blunt force trauma to the head. (6/4/03 Trial Tr. at 178). In January 2003, the Commonwealth charged Petitioner with criminal homicide, aggravated assault, endangering the welfare of children, and recklessly endangering another person. He retained J. Timothy George, Esq., and Timothy Lucas, Esq., to represent him.

Petitioner's six-day trial commenced on Monday, June 2, 2003, with the selection of the jury and argument on the defense motion in limine. The next day, counsel gave their opening statements and the Commonwealth began presentation of its case. Its theory was that Petitioner had become overwhelmed with the burdens presented by caring for King, that he at times physically abused him, and that on February 21, 2002, he inflicted the injuries upon King (perhaps by shaking him) that caused the head trauma that led to his death. In support of its theory, the prosecution called Dr. Vey. He testified that King suffered severe brain trauma. (Id. at 178-208). Dr. Vey explained that although King had no external evidence of trauma to the head, "there was a plethora of internal trauma to the head[.]" (Id. at 171). He said that King had a closed-head injury, which is an injury sustained within the confines of the skull. (Id. at 166). According to Dr. Vey, this type of injury can occur without any contact between an object and a person's head. (Id. at 167-69). With respect to King's brain, Dr. Vey testified that he observed a subdural hematoma or blood clots and a subdural hemorrhage or bleeding on the left side as well as diffuse axonal injury ("D.A.I."). (Id. at 178-80). D.A.I. is a "traumatic brain injury that results in immediate loss of consciousness" and it occurs when "accelertion forces or deceleration forces are exerted on the head, causing shearing stresses and strains within the brain as the brain moves within the head." (Id. at 181). Additionally, Dr. Vey testified that King had hemorrhages or bleeding on both of his retinas (id. at 191), and stated that this condition results from a "rotational force that's applied through an axis that causes turning about the axis." (Id. at 185).

Based upon the presence of the subdural hematoma, D.A.I., and two retinal hemorrhages, Dr. Vey concluded that the injuries to King's brain were not caused by natural disease process, a seizure, a fall from a couch or from the standing position, or as a result of an accident. The basis for his opinion was his review of periodicals and textbooks in which he looked for cases in which those types of injuries had been found and the circumstances under which those injuries had been inflicted. For example, in one article Dr. Vey noted that there had been 76 cases in which a child had suffered an accidental injury to the head and only four percent of those cases involved subdural hematomas. (Id. at 213). Dr. Vey also cited studies in which D.A.I. was found present in seven out of 10 cases where the injury had been non-accidental but was not observed in cases in which the injury was inflicted accidentally. (Id. at 215). Using a similar methodology for the retinal hemorrhages, Dr. Vey cited a study in which it was found that the "frequency of retinal hemorrhages in the inflicted, intentional injury group was 397 times higher than the frequency of retinal hemorrhages in the accidental group." (Id. at 216). Since his research suggested that the odds of subdural hematoma, D.A.I. and retinal hemorrhages being present in the case of an accidental trauma were remote, Dr. Vey opined that the injuries to King's brain were not the result of an accident and hence were inflicted upon him. (Id. at 217-18).

The Commonwealth also presented testimony from Petitioner's friends and co-workers to show that he had become overwhelmed with the duties associated with caring for King, and that he was dismayed at the strain those duties placed on his relationship with Condor. Kim Lagana testified that in the months leading up to King's death, Petitioner had become increasingly frustrated with all of the challenges he faced in caring for King. She also said that King hit Petitioner on occasion, which angered Petitioner. (Id. at 42-67). She testified that once Petitioner had stated to her that he did not want King to die "but it would be the answer to my problems." (Id. at 54).

Lagana drove to work with Petitioner on the day King sustained his injuries. Petitioner told her that "he had been up crying all night long and this morning because he was so upset....

[H]e was upset because...he couldn't get out of the situation that he was in with Ryan and he couldn't deal with taking care of Ryan anymore." (Id. at 59). After work that day, she was with Petitioner when he met Condor and King at a parking lot so that Petitioner could take King home. During the exchange, King hit Petitioner again. (Id. at 67). When Petitioner got back into the car with Lagana, he was very upset and told her three times that he was "losing it" and that "I don't know what I'm going to do." (Id. at 69-70). Petitioner then drove Lagana to her home. He and King went to their home and it was not long thereafter that King sustained his injuries. When King died, Lagana contacted the hospital and reported that she believed that Petitioner may have caused King's injuries and that his death may not have been an accident. (Id. at 74). She gave a statement to the police and they began investigating the case as a possible homicide. (Id. at 74-75).

Another Commonwealth witness, Douglas Hart, testified that he spoke with Petitioner on the day that King was injured and that Petitioner said that "if he could do something and get away with it, he would." (Id. at 119). Hart also testified that Petitioner told him that he spanked King with a hairbrush and that he learned to hit him in the head because King bruised too easily elsewhere. (Id. at 115-16). Two other co-workers, Sandra Buccigrossi and Wendy Barwell, testified that Petitioner told them that he had left welts on King's buttocks after he was disciplined for hitting Petitioner in the face. (6/3/03 Trial Tr. at 216, 241). They also testified that during the week leading up to King's death, Petitioner's demeanor reflected frustration and despair. (Id. at 221-22, 245).

The defense contended that King had a seizure and/or suffered from other heath issues that had caused him to fall, and that he had sustained his injuries when he fell. It introduced testimony to support a finding that King had been experiencing health issues that affected his balance. The defense also presented the testimony of numerous friends and family members who testified in general that Petitioner was a devoted and loving caregiver to King. Kathleen King testified that Petitioner "love[d] on [her son Ryan] and took care of him." (6/5/03 Trial Tr. at 195). In response to a question on cross-examination, she testified "I don't know if I can say this comment, but [Petitioner]... took care of my Ryan Ross, and he took my place. He loved my son, and he took care of him just like a mother would." (Id. at 218-19).

The defense also called three expert witnesses -- a board certified pathologist, a board certified neurosurgeon, and a biomedical and a biomechanical engineer. The pathologist, Dr. Karl William, found that it was significant that as early as three years of age King was "diagnosed on a CT Scan and an M.R.I.... of having a shrinkage of the brain, a cerebral atrophy of the brain." (6/6/03 Trial Tr. at 16). This condition "predisposes people to subdural hematomas" which, when coupled with the evidence that in the days immediately preceding the injuries King was experiencing dizziness and falling, convinced Dr. Williams "that there was some traumatic event that resulted in bleeding around the brain" and that "the totality of the information indicates that that was most likely accidental." (Id. at 18-19). Dr. Williams further noted that in cases in which there is brain shrinkage "we find those subdural hematomas frequently from relatively minor falls" and that King's difficulty walking in the days that preceded his injury made him "particularly susceptible to falling." (Id. at 20). According to Dr. Williams, "[a] simple fall from a height, from a standing height, would be sufficient in this case to explain" the subdural hematoma. (Id. at 30).

From a clinical standpoint, Dr. Williams stated that the absence of any notation in medical records or the autopsy report of external evidence of trauma supported his conclusion that King's injuries had been sustained accidentally. (Id. at 22). The lack of such evidence was significant because in "a lot of cases of trauma, especially that are inflicted or intentional, there's some other bruising, there's some other marker, there's some other evidence of either earlier prior trauma or something that would indicate why there is the subdural hematoma." (Id.) With respect to Dr. Vey's testimony regarding the presence of retinal hemorrhages, Dr. Williams noted that this finding was not made by the neurosurgeon who examined King on the night of the injury and performed the surgery. (Id. at 33). Nor were these injuries detected in the CT scan that was taken prior to the surgery which, in turn, prompted Dr. Williams to conclude that they resulted from factors other than the trauma that caused the subdural hematoma. These factors included subdural bleeding, which Dr. Williams testified is associated with retinal hemorrhages and the brain swelling that the neurosurgeon observed during the operation. (Id. at 34-35). Dr. Williams also reviewed the microscopic slides that Dr. Vey testified revealed D.A.I. and noted that of the 40 to 45 total slides used, only one had been labeled as indicative of axonal injury and it concerned "an extraordinarily small area of the total volume of the brain." (Id. at 42). This fact led Dr. Williams to conclude that there was no evidence that King suffered axonal injuries to the extent claimed by Dr. Vey because "[t]hey were relatively few in number, and they were associated with other changes in the brain tissue[.]" (Id. at 46).

The neurosurgeon, Dr. William Diefenbach, testified that King's medical records indicated that he suffered from Noonan's Syndrome, which he stated was a condition that can cause "some type of bleeding dyscrasia or bleeding abnormality that... needs to be addressed, especially if one undergoes surgery." (6/9/03 Trial Tr. at 12-13). Because Noonan's Syndrome makes an individual more prone to bleeding, Dr. Diefenbach stated that the existence of this condition was significant because of the relationship that it might have to the subdural bleeding that ultimately caused King's death. (Id. at 13-14). Dr. Diefenbach also viewed as significant the fact that during the afternoon of February 21, 2002, King was lethargic, had a vomiting episode, was observed holding his head, and had in the days preceding the injury experienced bouts of dizziness and falling. (Id. at 15). These factors suggested that King was suffering from raised intracranial pressure and prompted Dr. Diefenbach to conclude that death "was a result of the malignant brain swelling and edema that took place from the pressure placed upon it from the acute subdural hematoma that had developed late that afternoon." (Id. at 16). Dr. Diefenbach stated that the force which initiated this process "was a low impact type of injury to [King's] head" and based this conclusion on "the lack of any findings at the time of his hospitalization at Hamot or from the autopsy report of any significant scalp injuries, bruising, lacerations, and also the lack of a fracture of the skull." (Id. at 16-17).

The defense also called Dr. Richard Collins as an expert in the fields of biomechanical engineering and biophysical engineering. These fields of study focus upon the application of classical engineering principles "to the very complicated phenomena that takes place in the body[.]" (6/6/03 Trial Tr. at 86). Dr. Collins examined King's medical history, the autopsy report, and police reports. (Id. at 98-100). He testified that the injuries to King's brain that caused his death were sustained when "he fell almost like a match-stick type of fall into his left side and hit his head on the floor." (Id. at 101-02). After stating his opinion, Dr. Collins explained for the jury the engineering analysis that he employed to reach his conclusions. He first explained that the brain shrinkage that was noted in King when he was three-years-old made his brain more mobile inside the skull and hence more prone to rotation during a sudden fall. (Id. at 114-15). Dr. Collins then calculated the speed at which King would have been moving just before impact as 12 miles per hour and stated that a "huge acceleration, angular acceleration" would have occurred. (Id. at 117). Using King's physical characteristics, Dr. Collins next calculated the angular acceleration that King's head would have experienced just prior to impact with the floor and concluded it was well within the range established in the medical journals for causing traumatic brain injury. (Id. at 119-20). Dr. Collins then went on to explain how the angular acceleration of the head at impact accounted for the presence of the subdural hematoma, D.A.I., and retinal hemorrhages that provided the sole basis for Dr. Vey's opinion that King's death was not the result of an accident. (Id. at 121-28).

On June 9, 2003, the jury convicted Petitioner of third-degree murder*fn3 and the other crimes as charged. Afterwards, defense counsel George and Lucas withdrew and Christopher D. Warren, Esq., entered his appearance as counsel of record for Petitioner.

On July 29, 2003, the trial court sentenced Petitioner to 10-20 years incarceration for third-degree murder. The convictions for aggravated assault and recklessly endangering another person merged for sentencing purposes with the murder conviction. Petitioner received five years of probation for endangering the welfare of children, consecutive to his term of imprisonment.

The trial court denied Petitioner's post-sentencing motion. (SCR Nos. 41-42). Petitioner then filed a Notice of Appeal and his Statement Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). (SCR No. 46). He contended, as he does in the instant federal habeas petition, that the evidence presented at trial was insufficient to sustain his conviction for third-degree murder. On November 23, 2003, the trial court issued its Rule 1925 Opinion, in which it held that Petitioner's appeal was without merit. (SCR No. 48, Commonwealth v. Hoffman, No. 3487A & B of 2002, slip op. (C.P. Erie Nov. 3, 2003)).

On September 10, 2004, the Superior Court issued a Memorandum denying Petitioner's direct appeal. (SCR No. 50, Commonwealth v. Hoffman, No. 1683 WDA 2003, slip op. (Pa.Super. Sept. 10, 2004)). It denied the sufficiency of the evidence claim on the merits. (Id. at 3-7). On February 2, 2004, the Supreme Court of Pennsylvania denied a petition for allowance of appeal.

Next, on or around January 31, 2006, Petitioner filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA.CONS.STAT. § 9541, et seq. (SCR No. 52). Petitioner claimed, as he does in the instant federal habeas petition, that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel (George and Lucas) did not allow him to testify on his own behalf and did not call Condor to testify as a defense witness. The PCRA Court appointed William J. Hathaway, Esq., to represent Petitioner, and on April 7, 2006, he filed a supplemental PCRA motion. (SCR No. 54)

The PCRA Court presided over an evidentiary hearing on September 25, 2006. (See PCRA Hr'g Tr.) Petitioner testified at the hearing, as did his father, Timothy Paul Hoffman, Sr., and Condor, George, and Lucas.

On October 10, 2006, the PCRA Court issued an Opinion and Order denying PCRA relief. (SCR No. 59, Commonwealth v. Hoffman, No. 3487A & B of 2002, slip op. (C.P. Erie Oct. 10, 2006)). It rejected Petitioner's ineffective assistance claims on the merits. On August 7, 2007, the Superior Court issued a Memorandum affirming the PCRA Court's decision. (SCR No. 63, Commonwealth v. Hoffman, No. 2107 WDA 2006, slip op. (Pa. Super. Aug. 7, 2007)). It adopted the PCRA Court's adjudication in full. (Id. at 3).

III. Discussion

A. Standard of Review

This Court's review of Petitioner's first three habeas claims is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132 § 104, 110 Stat. 1214. AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). It "requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts' legal and factual determinations." Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004).

As codified at 28 U.S.C. § 2254(d)(1), AEDPA restricts a federal court's authority to grant relief when, as is the case here, the state court has "adjudicated on the merits" the petitioner's federal constitutional claims. Under § 2254(d)(1), an application for a writ of habeas corpus "shall not be granted with respect to any claim that was 'adjudicated on the merits'" by a state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as ...


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