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Perry v. Varano

July 19, 2010

ADMIRAL PERRY, PETITIONER,
v.
DAVID VARANO, ET. AL., RESPONDENTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Petitioner, Admiral Perry, is serving a life term for first-degree murder followed by thirty to sixty years for kidnaping, involuntary deviate sexual intercourse, and rape.*fn1 He seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 based on alleged constitutional violations that resulted in his conviction. Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred his petition to United States Magistrate Judge Carol Sandra Moore Wellsfor a Report and Recommendation. The Magistrate Judge recommended that all of Perry's habeas claims be dismissed or denied without an evidentiary hearing. Perry has filed objections to portions of the Report and Recommendation, chiefly with regard to his claims concerning the admissibility of evidence obtained through a search warrant and affidavit of probable cause. After conducting a de novo review of the Report and Recommendation, the court will overrule Perry's objections, adopt the report in substantial part, and approve the recommendation. Perry's claims are either factually wrong, procedurally defaulted, or lacking in merit based on long-standing Supreme Court precedent.

I. Factual and Procedural Background

The Pennsylvania Superior Court summarized the facts of the crime for which Perry was convicted as follows:

[On June 26, 1980], between 10:30 p.m. and 11:00 p.m., Mary Totor dropped off Kay Aisenstein (the victim) at her home located at 7661 Overbrook Avenue in the City of Philadelphia. Ms. Aisenstein then proceeded to take her nightly walk with her dog. She did not return home.

At approximately 10:50 p.m., Joseph Frio was standing near 77th and Overbrook Avenue in the City of Philadelphia when he heard someone screaming from the driveway behind the 7700 block of Overbrook Avenue. When he looked down the driveway in the direction of the screams, he saw a car with its lights off and the passenger door open creeping down the driveway.

That same night, around 11:00 p.m., Richard Sussman observed a 1974 or 1975 vehicle which he believed to be a Chevy Chevelle with its lights off speeding in the area of Ashurst and Sherwood Roads. Mr. Sussman was able to see the driver's face. He also observed the driver was almost sitting in the middle of the front seat and was driving with his left hand and holding his right hand behind him as if he were holding something down in the back seat of the car. Mr. Sussman gave chase but could not catch up to the vehicle. When Mr. Sussman arrived home, he found his neighbors outside speaking with a man (Mr. Aisenstein) who was looking for his daughter whose dog had returned home without her. Subsequently, Mr. Sussman went to the police station with his father[, Charles Sussman,] and gave a description of the driver to the police and a sketch artist....

On June 27, 1980, the victim's body was found behind St. James Church located on Myrtle Avenue in Haverford, Delaware County. The victim was nude and had a multi-colored shirt tied around her face. A bloody tissue and a button were found near the body and submitted to the crime lab for analysis. Forensic pathologist and Delaware County Examiner, Dr. Dmitri Contostavlos[,] ruled the victim's death a homicide. He determined that the victim suffered facial lacerations and blunt force trauma to the head consistent with manual battery. The victim's neck injuries were also consistent with strangulation. The victim also suffered lacerations to her vagina, with one piercing through the abdominal cavity, consistent with injury from a rod-like object. Dr. Contostavlos conducted a rape kit [sic] and collected a hair sample from the victim and submitted the evidence to Bi-County Crime Laboratory, which is located in Middleto[w]n Township, Delaware County.

On June 28, 1980, the police located [a] Chevy Malibu in the Wynnefield section of Philadelphia. Herman Levin, who was a criminal evidence technician with the Philadelphia Police Department, processed the Malibu and collected evidence including a red stained tissue, a fine gold watch, a small pink and gold elephant charm, a tan and black cushion with blood spatter on the tan side, and a button, which still had the thread attached. Blood spatter was also observed on the vinyl roof interior of the vehicle, on the interior rear passenger door, and on the molding for the metal step into the rear of the vehicle. Testing on this evidence as well as the evidence from the medical examiner was conducted by a serologist from Bi-County Crime Laboratory. It was determined that the blood of two individuals, including the victim, was present in the car. The evidence was then turned over to the evidence custodian of the Haverford Police Department.

Commonwealth v. Perry, No. 907 EDA 2004, slip op. at 1-4, 881 A.2d 888 (Pa. Super. Ct. June 23, 2005) (table) ("2005 Super. Ct. Op.").

A. The Affidavit of Probable Cause

According to an affidavit of probable cause dated December 9, 1994, and signed by Sgt. John Miller ("Detective Miller"), the investigation made no progress after 1980 until the Haverford Township Police Department received a letter on March 13, 1992, from Reid Evans. (Aff. Probable Cause at 5.) The affidavit states that Evans said he had shared a cell with Perry for a week in February 1984 when the two were both incarcerated at Huntingdon State Correctional Institution for other matters. (Id. at 5-6.) According to the affidavit, Evans claimed in the letter that Perry had admitted the abduction, rape, and murder of Aisenstein. (Id.)

The affidavit further states that on March 21, 1992, Detective Miller interviewed Richard Sussman, who identified Perry from a photo array as the individual he saw driving the Chevrolet Malibu on the night of the abduction. (Id. at 6.) The affidavit states that the photo used in the array was "similar to the composite drawing done by Philadelphia Police based on description given by Charles Sussman in 1980." (Id. (emphasis added).)

The affidavit further states that on March 27 and April 8, 1992, Detective Miller requested that evidence from the case be resubmitted to two police laboratories for scientific analysis. (Id. at 7.) According to the affidavit, one laboratory reported on January 20, 1993, that DNA analysis revealed that an individual other than Aisenstein bled in the Chevrolet Malibu, and the other laboratory reported on July 8, 1993, that 13 hairs from the resubmitted samples were not consistent with hairs from Aisenstein. (Id.)

The affidavit also states that on December 1, 1993, Detective Miller interviewed Evans. (Id. at 5-6, 7-8.) According to the affidavit, Evans confirmed the statements he had made in his March 13, 1992, letter implicating Perry. (Id. at 7-8.)*fn2 The affidavit states that on June 23, 1994, Detective Miller and another investigator interviewed Perry. (Id. at 8.) According to the affidavit, when Aisenstein's name was mentioned "Perry's demeanor changed from calm to anxious and nervous and his breathing became shallow and labored," but Perry returned to normal after a minute and a half and then denied any knowledge of the crime in this matter. (Id.) "He volunteered to give samples of his blood and hair, but later said he wanted to have a lawyer give him advice about giving us these samples." (Id.)*fn3

B. The Search Warrant and Suppression Hearing

Based on the affidavit, police obtained a sealed search warrant to withdraw a blood sample from Perry. Perry, 959 A.2d at 934. In 1995, forensic DNA technology unavailable in 1980 enabled police to compare the blood sample from Perry with the preserved blood evidence taken from the Chevrolet Malibu. Id. The DNA testing determined that the blood on the items taken from the vehicle came from two different people: the first was identified as Aisenstein, and the second was identified as Perry. Id. The trial court described the DNA testing, based on the testimony of Dr. Edward Blake, an expert in forensic serology, as follows:

Dr. Blake testified that the frequency of the occurrence of the victim's DNA [profile] in the population is 1 in 82 trillion people... and the frequency of the occurrence of the [defendant]'s DNA [profile] in the population was 1 in 370 million trillion. Finally, Dr. Blake testified that the current world population is 6 billion and that in the history of mankind only 8 billion people have inhabited the earth.

Commonwealth v. Perry, No. 1239-01, slip. op. at 14, 91 Del. Co. Rep. 515 (Pa. Ct. Com. Pl. Sept. 14, 2004) ("2004 Trial Ct. Op.").

On September 5 and December 18, 2002, the Court of Common Pleas of Delaware County held a suppression hearing concerning the search warrant. Detective Miller, who had signed the affidavit, had died two years prior to the hearing. (9/5/02 Suppression Tr. 40:19-20.) In support of its arguments in favor of the admissibility of the evidence obtained based on the search warrant, the Commonwealth relied on the testimony of Richard Sussman, Reid Evans, and Detective David McDonald.*fn4 Neither the Commonwealth nor Perry called as witnesses Charles Sussman or the police sketch artist who had drawn the composite sketch of the driver of the Chevrolet Malibu in 1980.

Richard Sussman testified at the suppression hearing regarding: (1) his encounter with the suspect in 1980; (2) his interview with the police that night; (3) his description of the suspect to the police sketch artist; and (4) his identification of Perry in 1992. On direct examination, he testified that he saw the suspect's face as the suspect drove out of the alley. (Id. at 11:25-12:2.) He testified that later that night he provided the description on which the composite sketch of the suspect was based. (Id. at 15:2-4.) He testified that the police sketch artist asked him questions concerning the suspect's features, he described how the suspect appeared, and the police sketch artist drew it. (Id. at 15:12-16:5.) He testified that afterward the police sketch artist showed him a composite sketch and he agreed it was "what the man looked like." (Id. at 16:3-5, 18:7-11.)

Perry's counsel then cross-examined him concerning the written record of his police interview. (12/18/02 Suppression Tr. at 6-11.) In response to a question regarding whether he recalled the interview, he testified that he did, and he added that "[i]t was me and my father that was interviewed at the same time." (Id. at 6:20-24.) When asked if the report of the interview stated that he had seen the back of the suspect's head, he testified that "they interviewed me and my father jointly" and "my father said that he had saw from the back." (Id. at 7:21-22.) He later reiterated that it was a "joint interview" and stated that "[t]he officer who took this did not discern who was saying what." (Id. at 9:16-20.) He then explained the differences between what he and his father had seen:

It was my father that had seen the back -- earlier where it says, in the paragraph portion of this where it says it was seen from the back, that was actually my father describing what he saw. I saw, when we were window -- car window to car window, [the suspect] holding down something with his right arm, sitting towards the middle of the seat. And then went -- when we looked toward each other for those few seconds. (Id. at 10:1-8.)

On re-direct examination, the prosecutor read to Richard Sussman a portion of the record of the interview that said "description of male, parentheses, I saw male from the rear, possibly wearing a white t-shirt, race unknown." (Id. at 11:14-15.) The prosecutor asked him, "Who said those words?" and he replied, "My father." (Id. at 11:15.) He then explained how he knew that his father had said those words, not him:

Q: And how do you know that you didn't say those words?

A: Because I -- I remember saying during the questioning and answering part, and I remember my father telling me what he saw. You know comparing what each other had witnessed.

Q: So those words that are typed there aren't yours?

A: Correct.

Q: Even though it says Richard Sussman, 19.

A: Yes. (Id. at 11:18-23.) He then testified that, after he had been unable to identify Perry in a mug book, he "sat down with the Philadelphia Police Sketch Artist" and "described to the sketch artist, the person who [he] had seen driving the Malibu." (Id. at 12:9-11, 13:13-18.)

On re-cross, Perry's counsel focused on the discrepancy between Richard Sussman's description of the suspect as having a "very light goatee" and the copy of the composite sketch that had been entered as an exhibit at the suppression hearing. (Id. at 13:23-14:20.) Richard Sussman did not know why the light goatee he thought he had described did not "show up" on that copy: "I couldn't tell you why it's not on that particular copy that I'm looking at right there." (Id. at 14:18-20.)

Perry's counsel then questioned Reid Evans, who admitted to having written the 1992 letter that implicated Perry in the abduction, rape, and murder of Aisenstein. (12/8/02 Suppression Tr. at 16:5-10.) Evans testified that he did not sign the letter but did not know why he did not sign it. (Id. at 16:24-17:2.) He testified that, after he sent the letter to Detective Frederick Westerman in Philadelphia, he was interviewed two times by Detective Miller in connection with the letter and once by another person. (Id. at 17:3-10, 18:14-15.) He testified, however, that after he provided a statement to Detective Miller, he attempted to recant the statement by claiming that he might have been confusing the Aisenstein case with the "original case" for which Perry was incarcerated. (Id. at 19:14-20:13.) In response to the question from Perry's counsel, "Why did you write the letter in the first place if it wasn't the truth?" Evans responded, "Because at first I thought I was, you know, I thought I was doing a good deed and second, I didn't like Perry because he stole something out of my cell." (Id. at 23:21-24:1.)

On cross examination by the prosecutor, Evans testified that he was currently incarcerated in Graterford prison with Perry and that he had been transported to the courthouse with Perry that day. (Id. at 30:4-31:13.) Evans also testified that before he wrote the letter implicating Perry in the abduction, rape, and murder of Aisenstein, he had not had any contact with Detective Miller. (Id. at 31:24-32:12.) Evans admitted that the letter named Aisenstein and that in it Evans described how he questioned Perry about the Aisenstein case because Evans had recognized at the time that the Aisenstein case was "very similar" to the case for which Perry was incarcerated. (Id. at 33:20-34:11.) Evans admitted that in the letter he stated that Perry asked him, "how did I know about his case and said that police could not prove how he got from San Diego, California Naval Base to the Philadelphia area, and he said that he took a plane back." (Id. at 34:12-15.) Evans further admitted that when he was first interviewed by Detective Miller, he told Detective Miller that he had written the letter and that it was true. (Id. at 35:6-15.) He also admitted telling Detective McDonald in September 2000 that he had written the letter, but testified that he told Detective McDonald that he was mixing up the two cases. (Id. at 36:5-37:5.)

Detective McDonald was then called to the stand by the prosecutor and testified that Evans told him in a September 28, 2000, interview that he did not wish to discuss the letter because "he didn't want to be labeled as a snitch":

He stated he did not wish to discuss this letter because he did not want to focus on it at this time due to the fact that he and his brother had to live in prison and he didn't want to be labeled as a snitch. I asked him, did you write this letter and he said, yes. I said, these are your words and he said, yes. I said, how about if you sign it and he said, I'm not going to sign it because me and my brother have to live here.

(Id. at 39:10-18.) Detective McDonald testified that Evans never told him that what was in the letter was false. (Id. at 39:19-21, 40:13-15.) Detective McDonald also testified that in his discussions with Detective Miller about the case, Detective Miller never told him that Evans had said that what was in the letter was false. (Id. at 40:6-12.) The prosecutor then examined Detective McDonald regarding Detective Miller's report of a December 9, 1993, interview of Evans. (Id. at 40:16-43:10.) Detective McDonald testified that there was nothing in the report stating that what was in the letter was false. (Id. at 40:23-41:1.) Detective McDonald testified that, in fact, according to the report Evans stated as follows: "[Perry] said he done it and the police can't prove it. He was in the Navy at the time and he got back to Philadelphia by Navy airplane. I'm not sure if it was a Navy airplane hop or a regular airplane." (Id. at 43:5-8.) On cross-examination, Perry's counsel asked Detective McDonald, "Mr. Evans never told you that he was declining to verify the contents of that letter?" to which Detective McDonald responded, "Absolutely not." (Id. at 43:17-20.)

On January 6, 2003, Perry filed a memorandum of law in support of his Omnibus Pre-Trial Motion with regard to his claim that the DNA evidence should be suppressed because there was a lack of probable cause for the search warrant. Perry argued that Evans had "repudiated his written and spoken allegations about Perry's culpability," but that the affidavit of probable cause nevertheless omitted references to Evans's repudiation. (Mem. in Supp. of Omnibus Pre-Trial Mot. 2-3.) Perry argued that this omission "allowed the issuing authority to overlook the flawed nature of Richard Sussman's photo identification" of Perry, when Richard Sussman "demonstrated the miraculous recall" of Perry's face in a photo array "shown to him almost twelve years after he allegedly viewed the defendant [face] to face for about three seconds" when the defendant was allegedly driving a car at night at a high rate of speed. (Id. at 3-4.) Perry further argued that the photo array was unduly suggestive and that the affidavit of probable cause failed to mention that on the night of the abduction Richard Sussman was unable to identify Perry from a mug book. (Id. at 4.)

On February 5, 2003, the suppression court denied Perry's motion to suppress the DNA evidence obtained through the search warrant, it appearing that Defendant has not proved that Detective Miller made a misstatement of fact that was both deliberate or material in either the Affidavit of Probable Cause or in the Application for the Search Warrant, and it also appearing that under the totality of the circumstances the Search Warrant was supported by probable cause, and it appearing that this Court does not credit the recantation testimony of Reid Evans, and it further appearing that this Court has determined that the photo array shown to Richard Sussman was not suggestive.

Commonwealth v. Perry, No. 1239-01, Order 1-2 (Pa. Ct. Com. Pl. Feb. 5, 2003) ("Feb. 5, 2003 Suppression Ct. Order").

C. Perry's Trial and Appeals in State Court

1. Perry's Trial and Direct Appeal

At trial, the Commonwealth built its case largely on (1) the 1992 photographic identification of Perry by Richard Sussman, (2) similarities between a 1980 photograph of Perry and the composite sketch prepared by the police sketch artist, and (3) the DNA evidence. Perry, 959 A.2d at 934.*fn5 On September 25, 2003, Perry was convicted of first-degree murder, kidnaping, involuntary deviate sexual intercourse, and rape in connection with the death of Aisenstein. Perry, 959 A.2d at 934. On September 30, 2003, Perry was sentenced to life in prison without parole on the murder charge, and an aggregate sentence of thirty to sixty years' ...


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