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Young v. Grace

September 2, 2010

RICHARD YOUNG, PLAINTIFF
v.
JAMES GRACE, SUPERINTENDENT OF SCI-HUNTINGTON, ET AL., DEFENDANTS



JUDGE VANASKIE

MEMORANDUM

Petitioner, Richard Young, brings this habeas corpus petition pursuant to 28 U.S.C. § 2254. In 1995, following a jury trial, Young was convicted of first degree murder and sentenced to death for the 1979 murder of Russel Loomis. (Pet., Dkt. 1, at ¶ 2.)*fn1 The Pennsylvania Supreme Court reversed and remanded Young's conviction in Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999), finding that co-defendants' statements identifying Young as the murderer were improperly admitted. A retrial was held in 2003, and a jury again found Young guilty of first degree murder. Young was immediately sentenced to life imprisonment. (Dkt. 1, at ¶ 3.) Following post-sentencing motions and appeals, Young filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254, asserting that there were twelve errors of constitutional dimension in the 2003 trial, requiring that his conviction be reversed. Careful analysis of the extensive record and the arguments in support of each of Young's claims reveals that the state court findings are not contrary to clearly established federal law, nor are the state court decisions based on an unreasonable application of Supreme Court precedent. Furthermore, those claims entitled to de novo review also do not present a constitutional violation. Accordingly, Young's petition will be denied.

I. BACKGROUND

A. FACTUAL HISTORY

On April 14, 1979, two trout fisherman discovered the body of Russell Loomis in a river on a wooded mountainside. (Dkt. 1, at ¶ 14.) Loomis had been fatally shot and it was the prosecution's theory that on April 11, 1979, Richard Young, William Slick, George Cornell, and Ronald Hull lured Loomis to the area and shot him to prevent him from testifying before a grand jury investigating fraud charges against Young and others. (Id.)

At the time of the shooting, Richard Young owned numerous businesses, including John's Liquidations and John's Automotive, businesses that were the subject of a federal white-collar crime investigation. (Id. at ¶ 18.) FBI Agent Daniel Glasgow's investigation into Young's business practices began with a complaint involving a business known as Brown's Wholesale. (Id. at ¶ 23.) Glasgow's investigation revealed that Brown's Wholesale was part of a "bust out" scheme involving Young, Hull, Cornell, Joseph Brizinski, and "hundreds" of other suppliers. (Id.) The scheme involved the setting up of fraudulent lines of credit at various trade shows which the participants had no intention to pay. (Id. at ¶ 24.)

In April 1979, Loomis was allegedly scheduled to appear before a federal grand jury in connection with this "bust out" scheme. (Id.) The "bust out" scheme was corroborated by Loomis' girlfriend, Theresa Slick Hoffman. Ms. Hoffman testified at Young's trial that on April 11, 1979, Loomis told her he was going with Young to retrieve a Jeep that was stuck in some mud. (Id. at ¶ 27.) The prosecution, over objection, offered evidence from several witnesses that Loomis had planned to help Young get a Jeep that was stuck in the mud, and his fear that "Young might harm his family." (Id. at ¶ 31.)

Ronald Hull worked with Young in his businesses, and testified that a few weeks prior to Loomis's murder, he spoke with Young and Cornell concerning their belief that Loomis was planning to cooperate with federal investigators. (Id. at ¶ 19.) Hull claimed that Young, Cornell, Loomis, and he drove into the woods off Aston Mountain Road to retrieve a Jeep that was stuck in the mud on the mountain. (Id.) Hull explained that the men parked their vehicle fifty (50) yards from where Loomis's body was eventually found, walked into the woods, passed an old foundation (identified by Cornell as Loomis's "grave"), and as Loomis crossed a stream Young took out a handgun and fired two to three times at Loomis's back.

At this point, Hull testified that Loomis turned and started towards the others, yelling and cursing, and Cornell grabbed the gun and fired three more times until Loomis collapsed on a log with one leg extended into the creek. (Id.) Hull stated that he, Young, and Slick were unable to pull the body from the creek and therefore left it and returned to the vehicles. (Id. at ¶ 20.) Hull drove Loomis's vehicle to the Wyoming Valley Mall, where he abandoned it. (Id.)

Young presented testimony from a forensic pathologist, whose opinion was that "Russell Loomis was dead no more than 12 hours when his body was found on April 14, 1979." (Id.) Additionally, Young presented experts who testified that: (a) the April 11, 1979, time of death was wrong because there was no insect infestation of the body; (b) soil samples taken from the bottom of Loomis's vehicle could not have come from the same mountain his body was found on; (c) Loomis's vehicle could not have maneuvered in the remote area described by Hull; and (d) the trajectory of Loomis's wounds did not indicate that the shooter was directly behind Loomis as Hull testified. (Id. at ¶¶ 44 - 46.)

In addition to Hull's testimony, the prosecution presented the testimony of Harold Litts, who resided at the base of the mountain where Loomis's body was found. (Id. at ¶ 28.) Harold testified that on the evening of April 11, 1979, between 7:30 p.m. and 8:00 p.m., he and his brother heard noises that sounded like a woman screaming and fireworks; about thirty minutes later, Harold's brother saw a car parked near their gas storage and saw a truck pull up and then leave. (Id. at ¶ 28.) The brothers, concerned about gas theft, drove past the parked car. (Id.) The parked car was jacked up, the trunk was open, the trunk light was on, and men were standing by the trunk. (Id.) After driving past the parked car, the brothers turned around and one of the men stepped in front of the vehicle, forcing Harold to drive around him. (Id. at ¶ 29.) When later describing the man to police, Harold stated that he was large, like a body builder, but could provide no description of the other man with the car, other than to say that he was also large in nature. (Id.)

Six years later, in 1985, Harold was shown a photo array that included nine (9) photographs. (Id. at ¶ 30.) Of the nine photographs, two pictures were of Young, and there were pictures of Slick, Cornell, Hull, Loomis, and three others. Harold identified the picture of Slick as the man who had stepped in front of the vehicle, but made no further identification. (Id.)

During the course of the next seven (7) years, numerous photographs of Young were published in the local media. In February 1992, Harold, his brother, and his attorney, met with state troopers and reviewed a second photo array, which "included five of the original nine photos, including the same two pictures of Young." (Id.) The photograph of Slick and one of the photographs of Young were mug shots with tape on them. (Id.) After leaving the room to discuss matters with his attorney, Harold returned and identified the mug shot of Young as the man who had been standing by the car trunk thirteen (13) years earlier. (Id.)

Harold's brother never made an identification. (Id.)

It was the prosecution's theory that the motive behind Loomis's homicide was to prevent his cooperation with federal agents. Thus, evidence of Young's "bust out" scheme was introduced at trial. (Id. at ¶ 22.) The prosecution presented Andrew Halupke, a member of the "bust out" scheme, as a witness, but Halupke could not remember the details of statements he made to the police in February of 1981. (Id. at ¶ 32.) Over objection, the prosecution was permitted to read Halupke's police statement into evidence, which revealed that Young had advised him not to testify in front of the grand jury, and that "Young had told Cornell not to worry, that they would get Loomis." (Id.) Moreover, the statement revealed that Halupke, Young, and Hull "spent several hours driving around the area, looking for a place to bury the body." (Id.)

In addition to the testimony of Halupke, Hull, and Litts, the prosecution presented evidence that in 1980 Young left Pennsylvania and, under the name of Todd Devine, moved to Boise, Idaho, where he lived until apprehended in 1988. (Id. at ¶ 34.) The prosecution used Young's flight as consciousness of guilt evidence. (Id.) Moreover, a state police fingerprint expert was allowed to testify that one of Young's fingerprint cards, under the name of Todd Devine, showed scarring, an apparent attempt to obscure his identification as Richard Young. (Id. at ¶ 35.) Christopher Cornell, whose father, George Cornell, was also allegedly involved in the homicide, testified (over objection) that while he was in jail he heard Young tell his father, "that he is not going -- is he [sic] not sinking with this ship alone." (Id. at ¶ 37.) Additionally, evidence supporting Young's conviction and undermining his alibi defense was presented.

B. PROCEDURAL HISTORY

Young was charged with first and third degree murder, and in 1995 was tried with co-Defendant William Slick before the Honorable Jay W. Myers in the Lackawanna County Court of Common Pleas. (Dkt. 1, at ¶ 2.) A jury found him guilty of first degree murder and sentenced him to death. (Id.) The Pennsylvania Supreme Court reversed and remanded, finding that co-defendants' statements identifying Young as the murderer were improperly admitted. Commonwealth v. Young, 748 A.2d 166 (Pa. 1999). A retrial was held before the Honorable Forrest G. Schaeffer, from June 23, 2003, through July 11, 2003. (Id.) The above-stated evidence was presented. Petitioner was convicted of first degree murder, and immediately sentenced to life imprisonment. (Id. at ¶ 3.)

Post-sentence motions were filed on July 16, 2003, and supplemental post-sentence motions were filed on October 9, 2003. (Id. at ¶ 4.) Petitioner's post-sentence motions were denied on December 13, 2003. A timely notice of appeal was filed on January 8, 2004. (Id. at ¶ 6.) Petitioner's supplemental post-sentence motions were denied on January 13, 2004. (Id. at ¶ 7.) "Petitioner filed a Statement of Matters Complained Of on Appeal on January 27, 2004, and a Supplemental Statement of Matters Complained Of on Appeal on January 28, 2004." (Id.) The Lackawanna County Court of Common Pleas filed a comprehensive Rule 1925(a) Opinion on May 10, 2004.*fn2 (Id.)

On February 7, 2005, the Pennsylvania Superior Court issued a Memorandum Opinion. Commonwealth v. Young, 873 A.2d 773 (Pa. Super. 2005). The Superior Court, in addition to explaining its reasons for affirming the conviction, incorporated Judge Schaeffer's 75-page Rule 1925(a) opinion. Young filed a timely Petition for Allowance to Appeal to the Supreme Court of Pennsylvania, which was denied on September 21, 2005. Commonwealth v. Young, 885 A.2d 42 (Pa. 2005). Young's Petition for Writ of Certiorari to the United States Supreme Court was denied on April 17, 2006. Young v. Pennsylvania, 547 U.S. 1080 (2006).

This habeas corpus petition was filed pro se on January 4, 2007, with requests to proceed in forma pauperis and for appointment of counsel. (Dkt. 2). Petitioner's requests were granted, and he is currently represented by counsel. (Dkt. 6.) Respondents have answered the Petition. (Id.) The matter is ripe for review.

II. STANDARD OF REVIEW

"The Antiterrorism and Effective Death Penalty Act of 1996 [("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). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).*fn3 See generally, Knowles v. Mirzayance, 129 S.Ct. 1411, 1418-19 (2009); Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001).

The Supreme Court has held that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Williams v. Taylor, 529 U.S. 362, 404, 405 (2000). As explained in Bell:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable . . . .

Bell, 535 U.S. at 694 (citations omitted).

In a recently announced decision, Renico v. Lett, 130 S.Ct. 1855 (2010), the United States Supreme Court, quoting Williams, explained that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1862. Therefore, a federal court may not grant habeas relief simply because it has concluded in its independent judgment that the state court decision applied clearly established federal law erroneously or incorrectly. (Id.) Rather, the state court application must be objectively unreasonable. Renico added that this distinction creates a substantially higher threshold for obtaining relief under § 2254 and imposes a highly deferential standard for evaluating state court decisions. Simply put, "state court decisions [must] be given the benefit of the doubt." Id. (quoting Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam). Furthermore, resolution of factual issues by the state courts are presumed to be correct unless the petitioner shows by clear and convincing evidence that they are not. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

Young seeks relief pursuant to § 2254 based on twelve alleged errors in his 2003 trial. He requests de novo review of his claims, averring that the Court of Common Pleas and the Pennsylvania Superior Court failed to adjudicate his federal constitutional claims, based in part on his contention that the courts failed to cite to any federal standards and failed to discuss federal constitutional law. The failure to cite to federal standards, however, does not entitle Petitioner to de novo review. As explained in Early v. Packer, 537 U.S. 3, 8 (2002):

A state-court decision is 'contrary to' our clearly established precedents if it 'applies a rule that contradicts the governing law set forth in our cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.' Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Avoiding these pitfalls does not require citation of our cases -- indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contracts them.

In short, "the United States Supreme Court has held that the right to deferential review under AEDPA does not require citations to federal cases -- 'indeed, it does not even require awareness' of federal cases, 'so long as neither the reasoning nor the result of the state court decision contradicts them.'" Armstrong v. Kerester, Civ. 08-1165, 2008 WL 5436015, at *6 (E.D. Pa. Dec. 30, 2008) (quoting Early, 537 U.S. at 8); see Veal v. Myers, 326 F. Supp. 2d 612, 624 (E.D. Pa. 2004). The standard of review will be determined independently for each claim.

A. CLAIM I - PATRICK TIGUE'S TESTIMONY

Young's first claim is that he was deprived his Sixth and Fourteenth Amendment confrontation right when testimony of Patrick Tigue ("Tigue") was admitted. (Pet., Dkt. 1, ¶ 50.) The prosecution was unable to locate Tigue during the 2003 trial, and, as a result, the trial court admitted the testimony given by Tigue in the 1995 trial.*fn4 (Id.) Young contends that the use of Tigue's prior testimony violates the confrontation clause of the Sixth Amendment.

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Court held that the confrontation clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination." See United States v. Jiminez, 513 F.3d 62, 76-77 (3d Cir. 2008).*fn5 Pursuant to Crawford, Tigue's testimony would not violate the rules of evidence or the confrontation clause if Tigue was unavailable to testify and Young had a prior opportunity to cross-examine him.

Substantial evidence was produced showing that Tigue was unavailable during the 2003 trial. Detective Lisa Bauer ("Bauer") was questioned as to the efforts undertaken to produce Tigue. She stated: (1) she went to Tigue's Electric Street address three or four times, but no one was home (Notes of Testimony ("NT"), 12/5/03, at 97); (2) two detectives spoke with Tigue's sister, who indicated that Tigue no longer resided at that address (id.); (3) she contacted the postal inspector and the mail carrier, who indicated that they had not seen or heard from Tigue for about a year (id. at 97-98); and (4) she found no record of Tigue when she contacted domestic relations in Lackawanna County to determine whether Tigue had made any child support payments or had any outstanding warrants. (Id.) Detective Bauer further learned from the Bureau of Motor Vehicles that Tigue's driver's license had been suspended and not renewed (id. at 99), and learned from the District Attorney's Office that charges had been filed against Tigue at the former address. (Id. at 100.) Detective Bauer contacted the Lackawanna County Prison after his release, again determining that the only address on record was his former address. (Id.)

Young had an opportunity to cross-examine Tigue at the 1995 trial. Tigue was called as-on-cross by the prosecution to dispute Young's alibi. Throughout his testimony, Tigue maintained that the receipt, dated April 11, 1979, and signed by Tigue and Young, was proper and did not make any statements against Young. Even after the prosecution attempted to show that Tigue was in jail on April 11, 1979, and could not have signed the receipt, Tigue continued to assert that he did sign the receipt. (NT, 8/24/95, at 23.) Young's counsel, on cross-examination, showed that Tigue was before Judge Walsh on April 11, 1979, because he wanted to observe the arraignment of James Martin and Joseph Bossick, two people with whom Tigue had committed crimes. (NT, 8/24/95, at 27.) Tigue explained that he was not in jail that date and that his records have been mixed up because someone had been using his identification. (Id. at 28.) He said that the signature on the jail record was not his because it was spelled T-I-G-H-E, not T-I-G-U-E. (Id.) Young's counsel clarified that Tigue's records were mixed up with "Tighe's" in the past. (Id. at 28.)

It is Young's position that the Commonwealth did not do enough to locate Tigue and if Detective Bauer had checked, she would have learned that Tigue was arrested on June 8, 2003, by the Scranton Police Department. (Pet., Dkt. 1, at ¶ 55.) Accordingly, he claims it was error for Detective Bauer to not speak with the Clerk of Courts, check the docket, learn the names of the prosecutors, ask when Tigue was released, ask whether he was released on bail, speak to relatives other than Tigue's estranged sister, and delay in obtaining a photograph of Tigue. (Id. at ¶ 57.)

The Lackawanna County Court of Common Pleas found Young's claim of a Sixth Amendment violation to be meritless. The court cited to Ohio v. Roberts, 448 U.S. 56 (1980), and McCandless v. Vaugh, 172 F.3d 255 (3d Cir. 1999), in analyzing the undertakings of Detective Bauer and Tigue's unavailability. The court determined that the prosecution had gone to reasonable lengths to produce the witness, the witness was unavailable, and Young had a full and fair opportunity to cross-examine Tigue at the 1995 proceedings. (Dkt. 10-2, at 8.)*fn6 Aside from requiring a question to be rephrased, the presiding judge at the 1995 trial placed no limitation on Young's examination of Tigue. (Id. at 16.) Furthermore, the record reveals that Young was not precluded from interrogating Tigue on whether he was on bail or incarcerated on April 11, 1979. (Id.) Accordingly, the court concluded that it did not err in allowing Tigue's testimony to be read into the record during the 2003 trial. (Id. at 17.)

The Superior Court relied on the fact that Tigue had maintained several residences during the relevant period and Detective Bauer's extensive attempts to locate him in concluding that Tigue was unavailable and affirming the trial court's decision.*fn7 The Sixth Amendment confrontation issue was properly presented and adjudicated in the state courts. The standards employed by the state courts did not contradict federal law. See Early, 537 U.S. at 8. Accordingly, Petitioner is entitled to relief only if the state court findings are "contrary to, or involved an unreasonable application of, clearly established Federal law," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." 28 U.S.C. § 2254(d).

Young argues that the state court findings are contrary to Barber v. Page, 390 U.S. 719 (1968). (Pet. Br., Dkt. 40-2, at 33.) In Barber, the Court determined that the state had made "absolutely no effort" to obtain the witness other than to ascertain that he was in a federal prison outside the jurisdiction. 390 U.S. at 723. The Court further emphasized that the sole reason why the witness was not present to testify in person was because the state did not attempt to seek his presence. Id. at 725. Here, it cannot be said that the Commonwealth made "absolutely no effort" to locate Tigue. Accordingly, Barber, is distinguishable.

In Ohio v. Roberts, 448 U.S. 56, 75 (1980), also relied upon by Young, the Court concluded that the prosecution made a good faith effort to locate the witness because the prosecutor spoke with the witness' mother and issued a subpoena to the witness on five separate occasions. In recognizing that the prosecutor could have taken additional steps, the Court explained, "[o]ne, in hindsight, may always think of other [steps to take]." Id. at 75-76. The state court rulings do not contradict Roberts as the prosecution undertook reasonable steps to obtain Tigue's presence and conducted an even more thorough investigation than that in Roberts.

Lastly, Petitioner cites United States v. Agurs, 427 U.S. 97 (1976), for the proposition that the prosecution is responsible for knowing the contents of its file and accordingly should have known that Tigue had been recently imprisoned and contacted him during his imprisonment. Agurs, however, is distinguishable. Agurs involved information within the prosecutions' files regarding the case in question, not an entirely different action. Tigue's arrest was unrelated to Young's trial, and accordingly Agurs is distinguishable.

Petitioner also cites to United States v. Mann, 590 F.2d 361, 367 (1st Cir. 1998), McCandless, 172 F.3d 255, Commonwealth v. Faison, 305 A.2d 44 (Pa. 1973), and Corl v. Kacmar, 571 A.2d 417 (Pa. 1990), to support his position that established federal law was violated. These cases, however, are unpersuasive as they are not clearly established federal law as determined by the Supreme Court.

The Supreme Court has stated that "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (citing Ohio v. Roberts, 448 U.S. 56, 73 (1980)). In Roberts, the Court concluded that "[a] holding that every case involving prior testimony requires such an inquiry [an effectiveness inquiry] would frustrate the principal objective of generally validating the prior-testimony exception in the first place -- increasing certainty and consistency in the application of the Confrontation Clause." 448 U.S. at 73. Here, Young was provided with the opportunity to cross-examine Tigue and established that Tigue's records were often mixed up with a person by the name of Tighe.*fn8

Young has failed to offer a Supreme Court case that directly conflicts with the trial court's ruling, nor has independent review uncovered any cases which prove that an "unreasonable application of clearly established Federal law" has occurred. Consequently, for Young to be entitled to relief, the state court decisions must be "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." See 28 U.S.C. § 2254(d)(2).

The state court decisions were not based on an unreasonable determination of the facts in light of the evidence presented. Young fails to point to any misstatements of fact in the state opinions, nor were any facts overlooked or improperly construed. Accordingly, Young's Sixth Amendment claim that Tigue's testimony was improperly admitted is without merit.

B. CLAIM TWO - CORNELL TESTIMONY

Young's second claim is that the prosecution failed to disclose that Young was in an isolation cell at the time Christopher Cornell claims to have overheard him admit to Loomis's murder, and thus, Cornell was allowed to testify falsely. (Dkt. 23, at 46.) At the 2003 trial, Chris Cornell was called as a prosecution witness. (NT, 6/27/03, at 232.) Cornell indicated that he was incarcerated in the Lackawanna County Prison from October of 1989 until September of 1993, and Young had arrived in 1991 during Chris Cornell's incarceration. (Id. at 236.) Cornell knew Young through his father, George Cornell, and prior to March of 1992, he spoke to Young and would sometimes go to Young's holding cell and talk with him. (Id. at 237.) Cornell's father was arrested for murder in March of 1992. (Id. at 239.) Cornell indicated that he had overheard a conversation between his father and Young regarding the pending murder case in which Young said "that he is not going -- [he] is not sinking with this ship alone." (Id. at 240.) On cross-examination, Young's counsel questioned whether Cornell was aware that Young had been put into the "camera cell" on March 6, 1992. (Id. at 242.) Cornell reiterated that he was not good with dates, and could not exactly remember when this conversation occurred:

I'm not sure of the dates, but I'm not a fool and I do remember being in the cell and there should be records that Mr. Young was on the two 400 side at the same time as my father and myself and the conversation took place. I mean, I know it. I was there. I heard it. So whether he is in a camera cell or in another place makes no difference to me because I know what I heard. (Id. at 242-43.) Young contends that Cornell lied and that the prosecution was aware that he was in segregated housing during the alleged conversation.

Young was housed at Lackawanna County Prison beginning in 1991 and was released to the Sheriff for a court appearance on March 6, 1992. (3/6/92 Writ.) A March 6, 1992 Prison Memorandum, from Warden Thomas P. Gilhooley, states:

Mr. Young was arrested today and charged with Murder 1st and 3rd. The D.A.'s office advises me that he will be transferred immediately to SCI -Dallas after processing.

At approximately 12:30 p.m. Mr. Young was brought back to the Prison accompanied by ADA Minora, Defense Atty. Paul Walker and 3 State Policemen.

ADA Minora advised us to prepare Mr. Young for transport. . . . . . . . .

At approximately 1:30 p.m. Mr. Young was transported to SCI-Dallas.

NOTE: Shortly after his departure, I received a telephone call from Judge Richard Conaboy advising me that he was ordering Mr. Young back to the LCP pending a hearing on the legality of transfer to be held on March 9, 1992. (3/6/92 Memo 1, Petitioner's Reproduced Record ("PRR"), at 68a). An Order filed in the Lackawanna County Court of Common Pleas at 10:25 a.m. on March 6, 1992, indicates that Petitioner had "been arrested for Murder in the first degree and related charges," and that "[p]resently incarcerated at the Lackawanna County Prison are several potential witnesses against the Defendant. The potential for witness intimidation and tampering exits [sic]." (3/6/92 Order.)

In a second March 6, 1992 Memorandum from Warden Thomas P. Gilhooley, to Captain Jack Harvey, it was noted:

Mr. Young was arrested today for Murder 1st and 3rd. He will be separated from the prison population until after the transfer hearing ordered by Judge Richard Conaboy today.

Because Mr. Young is considered a threat to potential witnesses in this prison, Mr. George Cornell and possibly his son Chris, I am directing you to hold Mr. Young in the camera cell 803 until the transfer to SCI-Dallas.

The legality of the transfer will be heard by Judge Conaboy on March 9, 1992. . . . .

Please make all officers on the three shifts aware of this memorandum. (3/6/92 Memo. 2, PRR, at 69a.) A March 9, 1992 Memorandum from Deputy Warden Hilborn to the Lower Diamond states: "On March 9, 1992 Judge Conaboy ordered that Richard Young be transferred to the State Correctional Institution at Dallas. His legal work in the cell will be moved from cell 803 by the block runner, Carl Abood, to the wardens [sic] office." (3/9/92 Memo, PRR, at 70a.) A second writ indicated that Young was released to the Sheriff's Department for a hearing on March 11, 1992, at 9:00 a.m. There were no additional documents regarding Young's location or segregation during the pertinent period.

Post-trial, on December 5, 2003, the Court held a hearing on Young's claim that Cornell's testimony was improperly admitted. Young called two witnesses: 1.) Timothy Betti, Records Custodian at the Lackawanna County Prison (12/5/03 Trans., at 8); and 2.) Frank Chiarelli, Lieutenant of Security at Lackawanna County Prison. Betti did not work at the prison in 1992, but indicated that the effect of a separation order is that the individuals "are kept apart from each other." (Id. at 10, 12.) Young's second witness, Chiarelli, was responsible for "the daily activities at the prison . . . ." (Id. at 15.) Chiarelli did not hold this position in 1992, but did work in the prison in 1992 as a sergeant handling the daily activities of inmates and officers in a certain section of the prison. (Id. at 16-17.) When discussing in-camera cell 803, where Young was allegedly confined, Chiarelli initially indicated that only security staff had access to the cell and that the general population prisoners would not be able to visit or have conversations with a prisoner there. (Id. at 17.) In describing a separation order, Chiarelli indicated that the officers "put [the inmates] in different places at the prison. . . . We had limited space then. They are pretty well separated, not as good as we'd like [them] to be." (Id. at 18.) Chiarelli stated that if ...


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