The opinion of the court was delivered by: Conti, District Judge.
Franklin Joseph Weimer ("Petitioner"), brings the instant petition for writ of habeas corpus (ECF No. 1) pursuant to 28 U.S.C. § 2254, attacking his 2002 convictions in the Court of Common Pleas of Fayette County, Pennsylvania. Petitioner was found guilty by a jury of third degree murder, 18 Pa. Cons. Stat. § 2502(c), and endangering the welfare of children, 18 Pa. Cons. Stat. § 4304, with respect to the death of his girlfriend's two-year-old son. Petitioner was sentenced to an aggregate term of imprisonment of 22 1/2 to 45 years imprisonment on November 15, 2002.*fn1 (ECF No. 10-42 at 5-8, 27, 29). The sole claim raised in this counseled petition is the following:
Ineffective assistance of trial counsel in violation of the Sixth Amendment to the Constitution of the United States for failing to request a continuance during trial to enable his expert witness in the field of pathology to examine the table, which was the crucial piece of evidence in the case, to determine whether the table leg size and dimensions comported with the child's fatal injuries.
(ECF No. 1 at 5-6) (internal capitalization removed to improve ease of
reading). Respondents filed an answer on December 22, 2008.*fn2
(ECF No. 10). For the reasons stated below, this petition
will be denied.
The facts presented at trial were summarized by the state trial court as follows (with citations to the record omitted):
On January 24, 1998, around 11:00 p.m., Julie Rose Johnson left for work from her residence in Hopwood, Pennsylvania, leaving her sleeping two-year old son, Zachary Ronald Johnson, the victim, in the care of her boyfriend, the Defendant, Franklin Joseph Weimer. The Defendant and Zachary were the only persons present in the residence after Ms. Johnson's departure. Approximately one half hour later, the Defendant contacted Ms. Johnson at work and informed her that Zachary had fallen down the stairs, whereupon she instructed him to call 911 and then immediately left work and drove home.
The Defendant called Fayette County 911 at 11:37 p.m. and spoke with dispatcher Pritts. When Pritts asked if there was an emergency, the Defendant stated that his son was playing with the phone and dialed the number by mistake. Approximately two minutes later, at 11:39 p.m., the Defendant again called 911, this time requesting an ambulance for a child who had fallen down three steps and was now unconscious. The dispatcher asked the Defendant for directions to the residence and inquired about the child's condition. The Defendant said that Zachary looked as though he had been knocked out and had several bumps and bruises on his head.
Upon arrival, paramedics treated Zachary at the scene and then took him to the Uniontown Hospital helipad, from which he was flown to Children's Hospital in Pittsburgh, Pennsylvania, where he was admitted to the intensive care unit with severe head trauma.
On January 25, 1998, while Zachary was in intensive care, the Defendant was interviewed by Trooper Wayne Burkes and Corporal Don Johnson of the Pennsylvania State Police. When he was asked what had occurred, the Defendant indicated that the child had fallen down some stairs. He stated he found Zachary at the bottom of the steps whimpering, and he saw marks on his head. He admitted that when he called 911, he told the dispatcher that the child had been playing with the phone. He stated that following the call, Zachary became rigid and started vomiting and foaming at the mouth and he then made the second phone call to 911. Zachary died on January 26, 1998, at 4:00 a.m. An autopsy was performed and revealed that the cause of death was blunt force trauma to the head. Dr. Cyril Wecht, Allegheny County Coroner, indicated that the manner of death was homicide.
On that same day, after Zachary's death, the Defendant voluntarily went to the Pennsylvania State Police barracks in Uniontown. After signing a form waiving his Miranda rights, he was interviewed by Troopers David W. Simpson and Donald S. Lucas. Initially, the Defendant recounted the same story he had given the state police while at Children's Hospital, maintaining that Zachary's injuries apparently had been caused by a fall down a set of stairs. However, when the Defendant was shown autopsy photographs of the child, and a wooden shower brush the police had found at the residence, the Defendant changed his story. The Defendant's new version of what had occurred was that the child woke up and came into the living room. He began playing with the child and held him by one arm and one foot, swinging him around like an airplane. The Defendant stated that he became dizzy and hit Zachary's head into the corner of the wall between the living room and kitchen, dropped the child, and then fell on him. It was at this point that the Defendant called the child's mother.
At trial, Dr. Cyril Wecht, testifying within a reasonable degree of medical certainty, stated that Zachary's injuries could not have been sustained in a fall down three steps, as the Defendant had initially maintained. Dr. Wecht further testified that Zachary's injuries could not have been caused by the Defendant swinging him into the corner of the wall and falling on top of him, which was the Defendant's second version of the incident. Dr. Wecht also testified that Zachary's injuries could not have been caused by striking the table leg in the living room, which was a third version offered by the Defendant's expert at trial as to how the child was injured. According to Dr. Wecht, the shower brush found at the scene, or something very similar to the brush, was consistent with the kind of instrumentality that could have produced Zachary's head injuries, and that a minimum of four blows had been landed by an instrumentality consistent with the brush. Additionally, Dr. Wecht testified that other injuries to Zachary's head were consistent with a human hand.
(ECF No. 10-19 at 19-23).
Petitioner's expert at trial, Dr. Wayne Ross, testified that the victim's injuries were consistent with the victim having been swung counter-clockwise into a table located at the scene of the crimes. (ECF No. 10-27 at 79-80). Using the photographs of the table available to him, Dr. Ross indicated that he was able, within a reasonable degree of medical certainty, to match a pattern of bruises on ...