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Tedford v. Beard

September 28, 2010

DON TEDFORD, PETITIONER,
v.
JEFFREY BEARD, SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL.,



MEMORANDUM OPINION AND ORDER

In his motion for discovery [ECF No. 32], Petitioner Don Tedford seeks the production of twenty-six categories of documents and other evidence, which he lists at ¶¶ 7(a) through 7(z).*fn1

Petitioner also requests at ¶ 8 an Order from this Court directing Respondents to allow him to inspect and photograph all physical evidence collected during the course of the police investigation in his criminal case. For the reasons stated below, the Court will GRANT Petitioner's motion with respect to his request in ¶ 7(x) for any previously undisclosed police reports regarding the "further investigation" referenced in the affidavit of probable cause, and will DENY his motion in all other respects.

I. Relevant Background*fn2

The victim in this case, Jeanine Revak, was raped and murdered on January 10, 1986.

Petitioner was tried for those crimes in February of 1987, in the Court of Common Pleas of Butler County. He was represented by Charles A. Schwartz, Esq. The jury found him guilty of first-degree murder and rape. Following a separate sentencing hearing, that same jury sentenced him to death on the first-degree murder charge.

Petitioner did not timely file post-trial motions. However, he later received permission to file such motions nunc pro tunc, which he did on April 27, 1987. The trial court appointed Peter Shaffer, Esq., of the Butler County Public Defender's Office, to represent him and amended post-trial motions were filed. (See SCR Nos. 63 and 95). The motions raised multiple issues of trial court error and over 80 claims of ineffectiveness of trial counsel.

On February 1-3, 1988, the trial court presided over an evidentiary hearing on Petitioner's post-trial motions. A number of witnesses testified at the hearing, including Petitioner's trial counsel, Charles Schwartz, and Robert Sintz, a UPS delivery man. Petitioner also introduced many exhibits, which included, inter alia, numerous police reports.*fn3

On April 29, 1988, the trial court issued a Memorandum Opinion and Order which denied Petitioner's post-trial motions. (SCR No. 98, Commonwealth v. Tedford, C.A. No. 241 of 1986, slip op. (C.P. Butler, April, 29, 1988)). Petitioner appealed and on December 13, 1989, the Supreme Court of Pennsylvania affirmed his judgment of sentence. Commonwealth v. Tedford, 567 A.2d 610 (Pa. 1989).

On or around July 12, 1995, Petitioner filed a pro se motion for post-conviction relief ("PCRA"). The PCRA Court appointed Victor Vouga, Esq., to represent him. Matthew C. Lawry, Esq., with the Center for Legal Education, Advocacy and Defense Assistance (LEADA), began assisting Vouga in 1996.

In January 1997, Billy H. Nolas, Esq., and Robert Brett Dunham, Esq. (also with LEADA)*fn4 entered an appearance on Petitioner's behalf and filed an amended PCRA petition raising, inter alia, claims of prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963) and claims of ineffective assistance of trial counsel (Schwartz) and post-trial and direct appeal counsel (Shaffer). (SCR No. 119).*fn5

On October 2, 1997, Petitioner filed a motion for PCRA discovery. (SCR No. 126). The Commonwealth opposed discovery on a number of bases, including that the documents requested would normally be contained in the file of trial counsel. The Commonwealth asserted that it was Petitioner's current counsels' responsibility to first attempt to obtain Attorney Schwartz's file for themselves. (SCR No. 128). The PCRA Court heard argument on the motion on January 13, 1998. On May 18, 1998, it issued an Order instructing that "Petitioner shall direct a final demand for discovery materials upon prior counsel. If prior counsel does not respond, or does not have said materials, Petitioner is directed to file a Motion to Schedule Hearing with this Court such that the Court may utilize its subpoena powers if necessary and/or the court may further consider the Petitioner's request." (SCR No. 131).

On September 3, 1998, Petitioner filed a motion to schedule a hearing on his discovery requests. (SCR No. 132). On December 7, 1998, he filed an Unopposed Motion For Order Compelling Delivery of Trial Counsel's Files, which the PCRA Court granted. (SCR No. 134). The Commonwealth next filed a Motion To Deny Discovery Motion and Dismiss PCRA Petition Without a Hearing. (SCR No. 135). The PCRA Court then issued an Order which denied Petitioner's motion for discovery and notified him that it intended to grant the Commonwealth's motion to dismiss. (Id.) Petitioner filed a brief in opposition (SCR No. 136) and argument was heard on September 17, 1999.

On January 28, 2000, the PCRA Court issued a Memorandum Opinion and Order in which it denied the PCRA petition as untimely. (SCR No. 144). The Supreme Court of Pennsylvania reversed on October 18, 2001, and remanded the case to the PCRA Court to consider the merits of the claims raised by Petitioner. Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001).

After remand, Petitioner filed with the PCRA Court a Consolidated Renewed Motion For Discovery and Motion for Leave To File Amended Petition. (SCR No. 160). Petitioner set forth his discovery requests at ¶ 13 of that motion:

13. ... trial counsel did finally provide his file to undersigned counsel. Counsel has reviewed the file and determined that it does not contain the materials set forth below. Accordingly, Petitioner renews his request for discovery of the following materials:

a. Any and all photographs taken during the investigation of this case, including but not limited to, any and all photographs and contact sheets of film exposed i) at the scene where the victim's body was found, ii) of the victim's body, iii) inside or in the vicinity of the Finishing Touch, iv) of the victim's automobile or the site where said automobile was found, or v) of clothing belonging to or seized from the defendant;

b. Any and all scene drawings of i) the scene where the victim's body was found, ii) the inside of or the vicinity of the Finishing Touch, or iii) the site where the victim's automobile was found;

c. Any and all audiotapes of witness interviews, including but not limited to i) the interviews of James Revak [the victim's husband] conducted by the Pennsylvania State Police and the Cranberry Township police, ii) any audiotapes of telephone calls made by Mr. Tedford, and iii) any audiotapes of interviews of Elizabeth Manuel;

d. Any logs or copies of logs obtained by law enforcement agencies from UPS, reflecting deliveries to the Finishing Touch;

e. Any and all crime lab reports, including i) all drawings made by the laboratories or by criminalists, ii) any and all fiber analysis, and iii) any reports concerning an analysis of striation patterns that was conducted in an attempt to match the purported murder weapon with twine seized from the Finishing Touch. If no report was prepared, Petitioner requests a copy of all materials used to make the comparison and any results from the comparison;

f. Any fingerprints taken and the results of any fingerprint comparisons that were performed;

g. Any and all polygraph examination results; and

h. All property seized from the [Petitioner]. (Id. at ¶ 13).

The discovery requests that Petitioner made to the PCRA Court in his renewed discovery motion at ¶ 13 coincide with the requests he makes in the instant motion before this Court [ECF No. 32] at ¶ 7 as follows:

-- the requests made at ¶ 13(a) are the same as those he makes in the instant motion at ¶ 7(a)(i)-(v);

-- the requests made at ¶ 13(b) are the same as those he makes in the instant motion at ¶ 7(b) (i)-(iii);

-- the requests he made at ¶ 13(c) are the same as those he makes in the instant motion at ¶ 7(c)(i)-(iv) only to the extent that he requests audiotapes of interviews conducted by state or local law enforcement of him and of witnesses, including James Revak and Elizabeth Manuel;

-- the requests that he made at ¶ 13(d) are the same as those he makes in the instant motion at ¶ 7(d);

-- the requests he made at ¶ 13(e) are the same as those he makes in the instant motion at ¶ 7(e)(i)-(ii) and (iv) only to the extent that he seeks crime lab reports and drawings;

-- the requests he made at ¶ 13(f) are the same as those he makes in the instant motion at ¶ 7(m) only to the extent that he seeks any prints collected during the police investigation and the results of any print comparisons that were performed;

-- the request he made at ¶ 13(g) is the same as the one he makes in the instant motion at ¶ 7(p) only to the extent that he seeks all polygraph examination results;

-- the request he made at ¶ 13(h) is the same as the one he makes in the instant motion at ¶ 7(z).

Petitioner did not request in his renewed motion for discovery before the PCRA Court that which he now seeks from this Court in the instant motion at ¶ 7(a)(vi)-(ix), ¶ 7(b)(iv), ¶ 7(c)(v)-(vi), ¶ 7(e)(iii) and (vi), ¶¶ 7(f)-(l); ¶¶ 7(n)-(o), ¶¶ 7(q)-(y), and ¶ 8.

On February 26, 2002, the PCRA Court heard argument on Petitioner's motion for discovery.*fn6 On June 12, 2002, it issued a Memorandum Opinion and Order which denied Petitioner's motion. (SCR No. 163, Commonwealth v. Tedford, C.A. No. 241 of 1986, slip op. (C.P. Butler, June 12, 2002), hereinafter "6/12/02 Op."). The court explained that pursuant to Pennsylvania Rule of Criminal Procedure 902(E)(2), which applies to first counseled petitions in death penalty cases, discovery is permitted only upon leave of court for good cause shown. (Id. at 2). See also Commonwealth v. Bryant, 855 A.2d 726, 749-50 (Pa. 2004) ("A showing of good cause requires more than just a generic demand for potentially exculpatory evidence." quoting Commonwealth v. Carson, 913 A.2d 220, 261 (Pa. 2006)); Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008) (PCRA court did not err in denying petitioner's discovery requests, which were premised on the mere speculation that possible trial court errors or potential exculpatory evidence could be discovered). The PCRA Court reviewed each request Petitioner made and concluded that with respect to each request he failed to show that good cause existed to justify a grant of discovery. (Id. at 3-16).

On March 5, 2004, by Memorandum Opinion and Order the PCRA Court dismissed all of Plaintiff's post-conviction claims except for the claim that his post-trial and appellate counsel (Shaffer) had labored under a conflict of interest. (SCR No. 193). The PCRA Court held an evidentiary hearing limited to that remaining claim on May 18, 2004. On July 16, 2004, it issued a Memorandum Opinion and Order which denied that claim. (SCR No. 208).

Petitioner appealed to the Supreme Court of Pennsylvania. On November 18, 2008, it affirmed the orders of the PCRA Court. Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008). It expressly held that "the PCRA court did not err in dismissing all but one of Petitioner's claims without discovery or a hearing." Id. at 55. It denied reargument on January 26, 2009.

On April 8, 2009, Petitioner commenced habeas proceedings in this Court by filing a pro se motion for appointment of counsel, for in forma pauperis status, and for a stay of execution. The Court granted Petitioner's requests and appointed Lawry and Amy ...


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