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Robert Mcfarlane v. Frank D. Gillis et al

January 14, 2011

ROBERT MCFARLANE, PETITIONER,
v.
FRANK D. GILLIS ET AL., RESPONDENTS.



The opinion of the court was delivered by: Diamond J.

MEMORANDUM

The Third Circuit has remanded this matter for a ruling on the timeliness of the Habeas Petition filed by state prisoner Robert McFarlane. 28 U.S.C. ' 2254. I will deny McFarlane's Petition because I conclude that it is time-barred.

I. PROCEDURAL HISTORY

A. Trial

On February 17, 1993, Philadelphia Police discovered the body of Sharon Halterman in a crawlspace at 1815 East Lippincott Street, an abandoned house occupied by Petitioner and Edward Sparango. On April 23, 1993, Sparango pled guilty to the third degree murder of Ms. Halterman, to conspiracy, and to abuse of a corpse. 18 PA. CONS. STAT. ANN. -§-§ 2502, 903, and 5510. Sparango agreed to testify for the Commonwealth at Petitioner's June 1994 trial in the Philadelphia Common Pleas Court. By the time of trial, however, Sparango, who was dying of AIDS, was too weak to testify in court, and so appeared via videotape.

According to Sparango, on the evening of February 16, 1993, he and Petitioner were together at a bar near 1815 Lippincott. (Trial Tr. June 10, 1994 at 45.) McFarlane said-as he had repeatedly said in previous weeks-that he wanted to kill his wife. At about midnight, McFarlane announced that he would instead murder Eileen Parris, who resembled his wife. Ms. Parris refused to accompany McFarlane and Sparango to their house. Minutes later, Petitioner ordered Sparango to lure Sharon Halterman to the abandoned house by offering her phony vials of crack cocaine that were actually talcum powder. (Trial Tr. June 10, 1994 at 50-52.)

Once inside 1815 Lippincott, Ms. Halterman proceeded to the second-floor middle bedroom Petitioner occupied. (Trial Tr. June 14, 1994 at 30.) She refused Sparango's demand for sex. According to Sparango, this angered McFarlane, who instructed her to disrobe, sit on the floor, and watch television. Petitioner approached Ms. Halterman from behind and wrapped a clothesline around her neck, causing her face to turn purple and strangling her. (Id. at 55-56, 58, 65-66.) Sparango left to use the bathroom. (Id. at 56.) When Sparango returned, Ms. Halterman was dead. (Id. at 55, 57.) Petitioner ordered Sparango to place Ms. Halterman's pants back on her and help him cram the body into a crawlspace. (Id. at 72.) The two then watched television and fell asleep.

Sparango, a homeless drug addict, was described as sickly, diminutive, and of limited intelligence. (Trial Tr. June 8, 1994 at 30, 47; June 14, 1994 at 68.) According to Sparango and Richard Lewis (a former occupant of 1815 Lippincott), Petitioner-who was 6'2" and weighed 240 pounds-kept Sparango in a state of subservience through continual torture. McFarlane set Sparango on fire while he slept, beat him, burned his genitals with an electric hot plate, and cut his thumbs and hung him upside down as he bled. (Trial Tr. June 8, 1993 at 14, 47; June 10, 1994 at 56-57, 69-70, 81-83; June 14, 1994 at 77.) In his post-arrest statements to the police, during his guilty plea colloquy, and in his trial testimony, Sparango acknowledged that he helped McFarlane kill Ms. Halterman for fear of his own life. ("I was scared that if I didn't [help McFarlane kill Ms. Halterman] he would kill me." Statement March 28, 1993; Guilty Plea Colloquy April 23, 1993 at 46; "I was scared because I thought he was going to kill me." Trial Tr. June 10, 1994 at 56.)

Included in the Commonwealth's evidence was Ms. Parris's testimony that on the night of February 16, 1993, Petitioner and Sparango tried to lure her to their house with the lie that her friend George Wolf was waiting for her. Ms. Parris refused because Petitioner frightened her. ("Bobby McFarlane was very intimidating, asking me why I had not come the night before, and he was very upset, and he scared me." Trial Tr. June 9, 1994 at 27.) McFarlane admitted that when he heard police arrive at 1815 Lippincott on February 17, 1993, he immediately fled, wearing only shorts and socks. (Trial Tr. June 14, 1994 at 71.) McFarlane also acknowledged that he had been friends with Sparango for twelve years, and that in 1990, the two had committed a burglary together. (Trial Tr. June 14, 1994 at 30-31, 97.)

Police testified that in Petitioner's bedroom-where Ms. Halterman was strangled-they found McFarlane's wallet, the clothesline used to strangle her, vials of talcum powder made to look like crack cocaine, and a disability application that McFarlane admitted he had filled out. ("I was trying to get money for nothing." Trial Tr. June 14, 1994 at 38.) That application was dated February 17, 1993 (the day of the Halterman murder). (Trial Tr. June 8, 1994 at 108.) It included the following "question and answer" written in Petitioner's hand:

What is your disabling condition?

Answer: Violent outbursts when talked to loud or yelled at, and tried to hurt or kill you. ****

Depending on what happened to make me angry, I would take it out on anyone, anywhere including working. ****

I can no longer concentrate on work. My mind starts wandering and I think about what happened to me in the past and if anyone tried to do anything against me, I would think of ways of hurting them and involve other people. (Trial Tr. June 13, 1994 at 119.)

Blood evidence-which has become the focus of post-trial litigation-did not figure prominently at trial. As the trial judge observed: "There is no evidence that there was any blood at all [shed during the murder] in this case." (Trial Tr. June 13, 1994 at 132.) Police testified to collecting blood samples from 1815 Lippincott, primarily from the first-floor walls and floors. (Trial Tr. June 10, 1994, 53-56; June 7, 1994 at 76-77, 109-10.) None of the samples was taken from Petitioner's second-story middle bedroom, where the murder occurred. (Doc. No. 4 at 9-10 "Physical Evidence.") Petitioner testified at suppression that the bloodstains were on the first floor when he moved into 1815 Lippincott weeks before the Halterman murder. (Suppression Hr'g April 20, 1994 at 37-38.) Sparango and Mr. Lewis testified at trial, however, that after McFarlane had cut Sparango's thumbs and hung him upside down on the first floor, McFarlane smeared Sparango's pooling blood on the first-floor walls. (Trial Tr. June 10, 1994 at 69-70, 81-83; June 8, 1993 at 47.) Although police had sought to conduct DNA tests on the blood found under the victim's fingernails, the sample proved insufficient for then-existing technology.

At trial, McFarlane sought to convince the jury that Sparango alone had committed the murder. Petitioner testified that he and Sparango had parted soon after leaving the bar, so that McFarlane was not in the house when Ms. Halterman was killed. (Trial Tr. June 14, 1994 at 47-48.) McFarlane denied that he had tortured Sparango, testifying that George Wolf had cut Sparango's thumbs and hung him upside down. (Trial Tr. June 14, 1994 at 59, 95.)

Defense counsel Jack Myers-an extremely experienced lawyer-attacked Sparango's credibility as a "polluted source" and vigorously challenged the credibility of the Commonwealth's witnesses. (Trial Tr. Closing Arguments June 14, 1994 at 4-13, 19.)

The two-week trial concluded on June 15, 1994, when the jury convicted Petitioner of first degree murder, conspiracy, and abuse of a corpse. The court sentenced Petitioner to life imprisonment for the murder and a consecutive sentence of five to ten years on the conspiracy charge. In December of 1994, Sparango died of AIDS. (Doc. No. 87 at 3 n.3.)

B. Post-Trial

After Petitioner's conviction, the court appointed new counsel, Brian McMonagle-also an extremely experienced lawyer-who contended in Petitioner's post-verdict motions, inter alia, that Mr. Myers was ineffective for failing to investigate and test the blood evidence recovered from 1815 Lippincott. Mr. Myers testified at post-trial that although he had sought to test blood found on the victim's nail clippings, he saw no reason to DNA test any other blood evidence:

[MR. MYERS:] Where am I going? For what reason? The person was strangled. There was no blood, no nothing on the person to compare. The only area that I went, I'm trying to tell you, was the [attempted] DNA testing [of blood from the victim's fingernail clippings].

(Evidentiary Hr'g June 28, 1995 at 80.)

Although the trial court stated that "Defense counsel should have had the blood at the scene tested," (Post-Sentence Motions August 22, 1995 at 6) it denied ineffectiveness relief:

Defendant has failed to meet his burden of proving that the claim possesses arguable merit because he has failed to show that if such tests had been conducted, it would have resulted in the discovery of exculpatory evidence or evidence useful for impeachment purposes. Moreover, because defendant has failed to provide this Court with his own analysis of the blood demonstrating that a test would have yielded evidence beneficial to the defense he has failed to establish that counsel's inaction prejudiced him. This claim for these reasons is meritless and should be denied.

(Doc. No. 22, Ex. 7 at 14.) The Pennsylvania Superior Court affirmed Petitioner's judgment of sentence, basing its decision entirely on the trial court's opinion, thus rejecting, inter alia, Petitioner's ineffectiveness claim. (Doc. No. 22, Ex. 8.) On March 4, 1998, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. McFarland [sic], 723 A.2d 670 (Pa. 1998) (per curiam). Petitioner's conviction became final 90 days later, on June 2, 1998. See Whitney v. Horn, 280 F.3d 240, 252 n.13 (3d Cir. 2002).

C. Habeas Proceeding

On April 4, 2001 McFarlane, now represented by Christina Rainville, filed a -§ 2254 Petition and supporting papers in this Court. (Doc. Nos. 1-4.) McFarlane also filed and supplemented a Discovery Motion, through which he sought an astonishingly wide array of evidence, including:

 blood or DNA evidence from Mr. Sparango (who had died almost seven years before

 blood and DNA evidence from bloodstains found at the crime scene, on the victim's pants, and under her fingernails

 blood samples or other DNA evidence from six other men  "all records relating to the autopsies" of several Philadelphia murder victims killed in 1995 or 1996  all autopsy, blood, or DNA evidence in every murder after the death of Sharon

Halterman "where the victim was female, found naked or naked from the waist down and strangled," and  DNA from every rape or murder case in Philadelphia since 1993.

(Doc. No. 13, Ex. B at 1-2.)

As I have described, Petitioner testified at suppression and Sparango testified at trial that the crime scene blood had nothing to do with the Halterman murder. (Suppression Hr'g April 20, 1994 at 37-38; Trial Tr. June 10, 1994 at 69-70, 81-83.) That testimony notwithstanding, McFarlane asserted his "actual innocence" based on recently conducted tests revealing that the crime scene blood was type B and matched neither Ms. Halterman's type A blood, nor McFarlane's type O blood. Petitioner again alleged Mr. Myers's ineffectiveness for failure to test blood evidence from Ms. Halterman's fingernails and pants. Petitioner also argued evidentiary insufficiency based on Sparango's unreliability as a witness. Finally, Petitioner argued that no reasonable jury would have convicted him in light of a pattern of purportedly similar murders that occurred years after the Halterman murder. (Doc. No. 1.)

The matter was referred to a Magistrate Judge, who heard oral argument on McFarlane's discovery demands. (Doc. Nos. 14, 15.) The Commonwealth argued, inter alia, that: 1) because his Petition-filed almost three years after his conviction became final-was time-barred, McFarlane was not entitled to take discovery in support of that Petition; and 2) the discovery McFarlane sought could not establish his innocence. (Doc. No. 12 at 4-7.) Petitioner responded, inter alia, that the limitation clock had been equitably tolled. (Doc. No. 13.) The Magistrate Judge did not conduct an evidentiary hearing on the tolling issue, and failed to rule on the Commonwealth's timeliness contention. (Doc. No. 18 at 10-11.) Rather, on February 19, 2002, she partially granted the Discovery Motion, ordering the Commonwealth to provide Petitioner with the following:

(1) All records relating to Edward Sparango's blood type and DNA typing. If the Commonwealth possesses blood samples from Sparango but does not have blood type or DNA records for that blood, the Commonwealth shall produce Mr. Sparango's blood samples.

(2) All records relating to DNA test results and blood type test results of the blood found on the pants of Sharon Halterman. If the Commonwealth has not performed blood or DNA typing on the blood found on the pants of Sharon Halterman's pants [sic], the Commonwealth shall produce the victim's pants.

(3) All records relating to DNA test results and blood type test results of the blood found underneath the fingernails of Sharon Halterman. If the Commonwealth has not performed blood or DNA typing on the blood found underneath the victim's fingernails, the Commonwealth shall produce the victim's fingernail scrapings. (Doc. No. 18 at 18.)

Appealing the Discovery Order to this Court, the Commonwealth submitted objections on March 6, 2002 and moved to stay discovery on March 7, 2002. (Doc. Nos. 19, 20.) After granting the Stay on April 15, 2002, this Court on April 23, 2003 nonetheless ordered Episcopal Hospital (where Sparango had been repeatedly treated) to provide Petitioner with Sparango's medical records. (Doc. Nos. 24, 34.) In retrieving those records (which disclosed that Sparango's blood type was B, matching the blood found at 1815 Lippincott), Petitioner's counsel spoke on May 21, 2003 with Carolyn Nicolardi, the Hospital's Director of Quality and Risk Management. In 1993-94, Ms. Nicolardi was working as a nurse and treated Sparango when he was a patient in the Hospital's Prison Unit. (Doc. No. 82, Ex. A at 2.) Ms. Nicolardi provided Petitioner with an affidavit in which she averred:

While I was changing the dressing [on his wound], Sparango said, without any prompting from me, words to the effect that he wanted to explain to me why he was not such a bad guy.

Sparango then proceeded to state, in words that I recall vividly: "You know, I had to kill her because my buddy said, if you don't kill her, I'll kill you."

Sparango did not identify his "buddy," and to this day, I do not know the identity of the person to whom he was referring.

(Id. at 2-3.)

Arguing that Ms. Nicolardi's affidavit constituted newly discovered evidence of innocence, on July 14, 2003, McFarlane amended the Habeas Petition pending in this Court, adding the Nicolardi claim and withdrawing the contention respecting "pattern" or similar murders. (Doc. No. 37.) Proceeding under the Post Conviction Relief Act, McFarlane also sought relief in state court with respect to the Nicolardi evidence. (Id.); 42 PA. CONS. STAT. ANN. -§ 9541 et seq. Because the Amended Habeas Petition was now "mixed," on August 29, 2003, this Court stayed its proceedings pending McFarlane's exhaustion of the Nicolardi contention in state court. (Doc. No. 41.)

D. PCRA

McFarlane filed his first and only PCRA petition on July 14, 2003, alleging, inter alia, that Ms. Nicolardi's affidavit was newly discovered evidence of innocence. (Doc. No. 70, Ex. at 4.) The trial court denied Petitioner's request for an evidentiary hearing and rejected his claims without explanation on July 26, 2005. Commonwealth v. McFarlane, No. 0984 Philadelphia 1993 (filed July 27, 2005); Notice of Intent to Dismiss Pursuant to Pennsylvania Rule of Criminal Procedure 907 (June 17, 2004). In affirming, the Superior Court stated that it would "not reach the merits" of McFarlane's claims, concluding that his 2003 "petition is time-barred." (Doc. No. 70, Ex. at 4); 42 PA. CONS. STAT. ANN. -§ 9545(b) (obligating McFarlane to seek PCRA relief by June 2, 1999-one year after his conviction became final). The Post Conviction Relief Act provides a narrow exception to its one-year limitation clock for certain after-discovered evidence claims. 42 PA. CONS. STAT. ANN. -§ 9545(b)(1)(iii). The Superior Court ruled that McFarlane had not shown that this exception applied, finding that Ms. Nicolardi's affidavit was not "after-discovered" because it could have been "discovered" through trial counsel's exercise of due diligence. (Doc. No. 70, Ex. at 7.) The Superior Court also found that had Sparango's statement to Ms. Nicolardi-"I had to kill her because my buddy said, if you don't kill her, I'll kill you"-been presented at trial, it would not have changed the verdict:

At no time did Sparango mention who the "her" he killed was, nor did he ever clarify who "his buddy" was. McFarlane has not proven that this statement even applies to his case. Such a vague statement that does not implicate McFarlane's case, cannot reasonably be believed to result in a different verdict, especially when the verdict was supported by additional evidence. (Id. at 8.)

Finally, the Superior Court observed that even if Sparango had referred to McFarlane and Ms. Halterman, Petitioner would remain liable for the murder regardless of whether he had actually strangled Ms. Halterman or ordered his "buddy" Sparango to do so. (Id. at 8-9) (citing Commonwealth v. Smith, 861 A.2d 892, 895 (Pa. 2004)). The Superior Court thus reiterated the explanation of conspirator liability that Sparango admitted during his guilty plea colloquy:

COURT: So, you realize that you are just as criminally responsible for the [Halterman] homicide as if you had perpetrated it with your own hands. Even though you were not the ...


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