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Roland Steele v. Jeffrey Beard

November 16, 2011


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Judge Arthur J. Schwab


I. Introduction

In June of 1985, Roland Steele was charged with murdering Lucille Horner, age 88, Minnie Warrick, age 86, and Sarah Kuntz, age 85. The following year, in the Court of Common Pleas of Washington County, a jury convicted him of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. Following a penalty hearing, the jury sentenced him to death on each murder conviction.

Before this Court is Steele's petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2254. He raises 15 claims and numerous subclaims. He contends that he is entitled to a new trial or, at a minimum, a new sentencing hearing. After careful consideration, I conclude that Steele is not entitled to relief on any of the claims in which he challenges his convictions. Therefore, I will deny his request for a new trial.

I must, however, grant him a conditional writ of habeas corpus with respect to his request for a new sentencing hearing because the U.S. Court of Appeals for the Third Circuit has held that the jury instructions and verdict form employed in Steele's sentencing hearing violated the Eighth Amendment, pursuant to Mills v. Maryland, 486 U.S. 367 (1988). Under the terms of the writ, the Commonwealth may conduct a new sentencing hearing, at which a jury will once again decide whether Steele should be sentenced to death or to life imprisonment without the possibility of parole. If the Commonwealth does not conduct a new hearing, it must resentence Steele to a term of life imprisonment without the possibility of parole.

My disposition of the Mills claim and the conclusion that a writ of habeas corpus is issued with respect to Steele's capital sentence renders it unnecessary to address his remaining sentencing-phase claims; any relief he could obtain on those claims would be cumulative.

Steele's guilt-phase claims and his sentencing-phase Mills claim are:

Claim 3 He was denied a fair trial and due process when the Commonwealth introduced the false and unreliable testimony of F.B.I. Special Agent Andrew Podolak, who stated that hair samples taken from Steele's clothing were Minnie Warrick's hairs

Claim 4 His counsel was rendered ineffective due to the Commonwealth's discovery violations regarding Agent Podolak's testimony; and, were ineffective for failing to protect him from those discovery violations, for failing to adequately cross-examine, impeach, and rebut Agent Podolak's testimony, and, for failing to retain a defense expert to conduct hair comparison analysis

Claim 5 He was denied due process, an impartial jury, reliable sentencing and the effective assistance of counsel because venire members were not subjected to adequate voir dire during jury selection regarding racial bias

Claim 6 He was denied due process, a meaningful appeal and post-conviction hearing, and the effective assistance of counsel because he did not receive a complete set of voir dire transcripts

Claim 7 He was denied due process and the effective assistance of counsel because the trial court failed to provide specific instructions regarding the identification testimony provided by Harry Crothers and on cross- racial identification, and counsel failed to object and offer specific points of charge

Claim 8 He was denied due process, a unanimous verdict, and the effective assistance of counsel because the trial court's guilt-phase unanimity instruction improperly coerced a verdict and counsel failed to object to the erroneous instruction

Claim 9 He was denied due process and the effective assistance of counsel because the prosecutor engaged in prejudicial misconduct during closing arguments at the guilt phase of the trial without objection by counsel

Claim 10 He was denied due process and reliable sentencing because the trial court erroneously instructed the jury that it had to unanimously find a mitigating circumstance before giving it effect, in violation of Mills v. Maryland, 486 U.S. 367 (1988)

Claim 13 He was denied due process and an impartial jury because the jury deliberations were infected with racial bias, predisposed opinions regarding his guilt, and external influence, and because the jury engaged in deliberative discussions before hearing the evidence

Claim 14 Counsel were ineffective for failing to raise all of the claims alleged in the habeas petition

Claim 15 He was denied due process and the effective assistance of counsel as a result of the prejudicial effects of the cumulative errors in this case, which undermine confidence in the outcome of his trial

II. Facts and Procedural History

On June 22, 1985, shortly after 6:00 a.m., the badly beaten body of Lucille Horner was

discovered amidst discarded tires and other debris in a secluded wooded location just off Papp Road in Cecil Township, Washington County. While processing the crime scene, a police officer discovered the bodies of Sarah Kuntz and Minnie Warrick under a pile of discarded tires in the same general area where Horner's body was located. Steele had lived near the site when he was a youth and he was familiar with the area. Trial Tr. at 553-55, 1115-20, 1198-99.

The police quickly learned that the day before, on June 21, 1985, the victims had attended together a charitable luncheon at the Club Internationale, which is located in the Millcraft Center in the City of Washington, Pennsylvania. Lucille Horner drove them to the luncheon in her car, which was a beige-colored 1974 Dodge Dart. The luncheon began around 1:00 p.m. and ended around 2:30 p.m. As discussed below, the women were last seen alive with Steele, who was observed driving them, in Lucille Horner's car, out of the Millcraft Center parking lot.

Dr. Earnest L. Abernathy, Chief Pathologist of Washington Hospital, performed the autopsies. His conclusions, coupled with the knowledge of when they were last seen alive, placed the victims' deaths at some time after 2:30 p.m. on June 21, 1985. Id. at 189-90.

Dr. Abernathy testified at Steele's subsequent trial that Lucille Horner's injuries included significant bruising on her chin, chest, and back, damage to her heart, numerous fractures of her ribs, a fracture of her backbone, damage to her liver, and a torn larynx. He concluded that the cause of death was traumatic rupture of the heart. The autopsy of Sarah Kuntz revealed similar injuries, including bruises on her face, chest, and legs, lacerations to the scalp, fractured ribs, and damage to her heart and liver. Dr. Abernathy concluded that the cause of death was asphyxia due to a fracture of the larynx. With regard to Minnie Warrick, Dr. Abernathy testified that she also sustained bruising to the face and chest, fractured ribs, and heart damage, as well as a partially collapsed lung and blowout of the stomach wall. The cause of death for Warrick was traumatic rupture of the heart, with numerous companion injuries.

Dr. Abernathy testified that the pattern of bruising on the victims was similar in all three cases, and was caused by substantial blunt force blows, which, in his opinion, were most likely delivered by human hands. The defense stipulated that Steele knew martial arts, and Commonwealth witnesses testified that he was a black belt in karate and had been employed as a martial arts instructor. Id. at 629-31, 637-38.

On June 23, 1985, the day after the victims' bodies were discovered, the police arrested Steele and charged him with their murders and with robbing them. Public Defender John Liekar, Sr., Esquire, and Assistant Public Defender Paul Tershel, Esquire, represented him. Tershel was lead trial counsel. A jury was selected from a venire in Erie County, and Steele's nine-day trial commenced on January 10, 1986. John C. Pettit, the District Attorney of Washington County, was the prosecutor.

At the trial, Steele did not dispute that he was in the vicinity of the Millcraft Center as late as 12:00 p.m. on the day the victims were murdered. Id. at 1201-02. See also id. at 754-57. Both Steele and William F. Henkel, Esquire, an attorney who was representing him in a civil lawsuit, testified that Steele visited Henkel at his office at approximately 11:15 a.m. on that date, and that Steele left there between around 11:45 a.m. and noon. Id. at 749-52, 1201. Henkel's office was located approximately three blocks from the Millcraft Center. Id. at 754-57.

Steele testified that he traveled to the City of Pittsburgh shortly after he left Henkel's office around noon and did not return to Washington County that day. The Commonwealth presented witnesses that countered Steele's testimony and placed him with the victims at the Millcraft Center after they had left their charity luncheon at around 2:30 p.m. It also introduced evidence to demonstrate that, as late as around 4:30 p.m., Steele was driving Lucille Horner's Dodge Dart in Washington County near where the victims were murdered.

Robert Poland knew Steele. He testified that he saw Steele the day of the murders at around 1:30 p.m. about 10 to 15 blocks from the Millcraft Center. Id. at 226. By the time the victims were leaving their charity luncheon around at 2:30 p.m., the Commonwealth's witnesses placed Steele at the Millcraft Center. Mildred Stitler lived in the Bassettown Manor Apartments, which is located next to the shopping center. From the windows of her fourth floor apartment, she could see into the shopping center's parking lot. She was looking out those windows on June 21, 1985 and saw Steele "wandering" around the parking lot. Id. at 245-46, 252. Stitler testified that she saw Steele approach Lucille Horner, who was sitting in the driver's seat of her car.

Stitler observed Steele talking to Horner and motioning to her in a manner that Stitler interpreted as "trying to show [Horner] that there was something wrong with [one of her car's tires]." Id. at 246. Stitler stated that she saw Horner exit the driver's seat and get into the front passenger's seat. Steele got behind the wheel of Horner's car and he drove over to where Minnie Warrick and Sarah Kuntz were standing. They got into the car and Steele drove the three victims out of the parking lot. Id. at 247-48.

Kimberly Oyler testified that she was in the Millcraft Center's parking lot on the day of the murders at around 2:30 p.m. Her doctor's office was located nearby and she had parked there and was walking towards the office. Id. at 258. As she was doing so, she saw Sarah Kuntz getting into Lucille Horner's car. She testified that Steele was holding open one of the car's back doors for Kuntz. Steele was between "ten and twelve feet" from Oyler and she testified that she had the opportunity to get a good look at him. Id. at 261-62.

Harry Crothers is a locksmith who owned a shop across the street from the Millcraft Center. Id. at 274. On the day of the murders, he was returning to his shop around the same time that Stitler and Oyler had witnessed the events in question. Crothers testified that he saw a vehicle pull out in front of him from the alley behind the shopping center. Id. at 275. He knew Lucille Horner because she went to his church and was the mother-in-law of an acquaintance of his. He testified that "[t]he vehicle went to the stoplight, kind of undecided as to whether it was going to go straight ahead or make a left or right-hand turn and it straddled the two lanes of traffic. That's what called it to my attention because I was late in going from one job to another and being indecisive they didn't seem to know which way they were going." Id. at 275-76. Crothers testified that Steele was driving the car and Lucille Horner was in the front passenger's seat. He also observed two elderly women sitting in thebackseat of the car. Crothers sat behind the car at a traffic light. He testified that he was able to see Steele's face and that there was no question in his mind that Steele was the man he saw driving the car. Id. at 276-78.

Stitler, Crothers, and Oyler were the last people to see the victims alive. The victims left the Millcraft Center with Steele, who was driving them in Lucille Horner's Dodge Dart. Several people would see Steele later that afternoon driving that same car, but Minnie Warrick, Sarah Kuntz, and Lucille Horner were not seen again until their bodies were found the next day.

At the time of the murders, Steele was living with his girlfriend, Joan Whitlock, at her home in McKees Rocks, a borough of Allegheny County, Pennsylvania. Her brother, Duane Jordan, testified that Steele visited him at night on the date of the murders. Jordan lived on Old Orchard Circle, which is in the Broadhead Manor housing project. Id. at 545-47. A few days after Steele had visited him, on or around June 25, 1985, a maintenance worker with the housing authority found a discarded white vinyl purse near Jordan's home. Id. at 536-37. Inside that purse where items that belonged to the victims, including several of their credit and insurance cards. Id. at 539-40.

On the same day of the murders, the home of Dehla Woznicak was robbed. She lived near Hendersonville, which is less than two miles from where the victims' bodies were found. The robbery occurred sometime between around 3:30 p.m. and 4:50 p.m., during which time Woznicak was out of her house visiting her daughter-in-law. Id. at 395-97. Woznicak returned to a home that had been ransacked and was missing several household items, including lamps, bowls, a scales of justice decorative statue, and a Hitachi television set. Id. at 398-406. The intruder had emptied drawers of clothing onto Woznicak's bed, and when Woznicak was cleaning up she found an item of clothing that did not belong to her. The item was later identified as being the bottom portion of the purple dress that Minnie Warrick had been wearing that day. Id. at 407, 416.

Thus, the police soon realized that there was a connection between the Woznicak robbery and the crimes that had been committed against the victims. After Steele was arrested and the police searched his girlfriend Joan Whitlock's home, they found the Woznicak's stolen property there. Steele admitted that it was he who had brought the stolen items into Whitlock's home, and several of Whitlock's neighbors had seen him unloading the items from a car that matched the description of Lucille Horner's Dodge Dart.

Klements Service Station is located about 3/10ths of a mile from the Woznicak residence and about 1 1/2 miles from the scene of the murders. Id. at 462. Through the testimony of its owner, Joseph Klements, his son Victor, and his wife Janice, the Commonwealth presented evidence to demonstrate that Steele visited the service station twice in the afternoon on the date of the murders. Steele first came to the station between around 3:00-3:30 p.m. He was there for approximately five to ten minutes. The second time he was there was between around 4:00-4:30 p.m. Id. at 283-90, 353-55, 364. Both times he came to the station, Steele was driving Lucille Horner's beige Dodge Dart. Id. at 287, 355-58.

Victor Klements had two good opportunities to view and speak with Steele. The first time Steele was at the station, he purchased two cans of soda and Victor waited on him. Steele told him he used to live in the area. Id. at 354. The second time Steele was there, he was having mechanical problems with the Dodge Dart and he coasted into the station. Victor Klements got into the car and was able to get it running in about two minutes. Steele thanked him and got back into the car and drove away. Id. at 355-57.

Willie Scarfanski, age 11, and Mark Hall, age 13, were at Klements Service Station the first time Steele was there. They both testified that Steele was the man they saw come into the service station that afternoon. Id. at 305, 347. Scarfanski stated that he saw Steele buy the two cans of soda. Then, as Steele was about to leave the station, he turned to Scarfanski, took a gold necklace from his pocket, and asked Scarfanski if he wanted it. Scarfanski said yes and Steele gave it to him. Id. at 306. Hall testified that after Steele left, Scarfanski showed him the necklace and told him that Steele had given it to him. Id. at 348-49.

Scarfanski gave the necklace to the police and it was entered as an exhibit at Steele's trial. Joan Lutz is Minnie Warrick's daughter. She testified that the necklace belonged to her mother. Minnie Warrick had originally given it to her as a Christmas gift. Lutz stated that it sat on her dresser for a year and she looked at every day. Because she did not wear it, she gave it back to her mother. Lutz was sure that the necklace that Steele had given to Scarfanski was her mother's necklace. Id. at 373-78. Gaye Warrick testified that she saw her mother-in-law, Minnie Warrick, about once a week and that she always wore the gold necklace. She also testified that she was sure that the necklace that Steele had given to Scarfanski was the one that Minnie Warrick always wore. Id. at 383-85.

When Steele was arrested on June 23, 1985, the police searched his girlfriend Joan Whitlock's home and found the items that had been stolen from the Woznicak's residence. Whitlock told the police that Steele brought the items to her home. Id. at 441-50. Jacob Frazier, Whitlock's neighbor, testified that in the evening of June 21, 1985, he saw Steele in Whitlock's driveway taking items out of a beige-colored Dodge. Frazier stated that the items matched the description of the household items that had been stolen earlier that day from the Woznicak residence. Id. at 482-87. Cathyrn Slusser and Cynthia Williams also lived near Whitlock. They estified that they observed Steele at around 5:30 p.m. on the date of the murders as he was taking the stolen items into Whitlock's home. Id. at 490-95, 499-02. Slusser positively identified Lucille Horner's beige Dodge Dart as the car that Steele was using. Id. at 494. Another neighbor, Anna Frazier, testified that she saw Steele the next day and was driving "a cream-colored Dodge Dart." Id. at 506-07.

The Commonwealth introduced testimony to demonstrate that the victims unfortunately had fallen victim to a tactic that Steele had tried unsuccessfully on at least one, and possibly two, other women that week. Sarah Hair testified that on June 18, 1985 (three days before the victims were murdered) she had gone grocery shopping in the Bridgeville area. Around 6:15 p.m., after she had placed her groceries into her car and had gotten into the driver's seat, Steele approached her and told her that she had a flat tire. Hair got out of her car in order to look at her right rear tire. She told Steele that the tire did not look flat to her, but Steele insisted that it was, and told her that someone had "been fooling with" it and had put a nail in it. For several minutes Hair, who initially thought Steele was trying to help her, stood outside her car and discussed the matter with him as he tried to show her that there was a nail in her tire. When Steele finally told her that he could not dislodge the nail and that he should go with her to a service station, Hair became suspicious. She got back into her car with the intent to leave. Before she could go, Steele asked her to take another look at her tire because he wanted to "show her something." When she did, there was a pair of sharp pointed scissors under her rear wheel, which had not been there before. Hair realized that Steele had just placed the scissors there and that she needed to get away from him. She immediately got into her car and drove straight to the police station to report the incident. Id. at 704-14.

After Steele testified and denied that he had ever approached Hair or had been in the Bridgeville area on June 18, 1985, the trial court permitted the Commonwealth to call Rosalyn Fields as a rebuttal witness. She testified that on June 18, 1985, she was at the Great Southern Shopping Center, which also is located in Bridgeville. Fields stated that at around 7:50 p.m., Steele approached her when she was in her car. Although the trial court would not permit Fields to discuss the substance of their conversation, Fields did testify that she was so disturbed by the incident that she immediately went into a store and reported it to the management, who then called the police. Id. at 1377-81.

Finally, as will be detailed below in the discussion of Claims 3 and 4, the Commonwealth introduced expert testimony from F.B.I. Special Agent Andrew Podolak. He testified that he examined hairs found on two items of Steele's clothing, which the police had obtained when they searched Whitlock's home. Podolak conducted microscopic comparisons between those samples and samples taken from Minnie Warrick. He stated that in his opinion the hairs found on Steele's clothing were Minnie Warrick's. Id. at 583.

Although Steele now is highly critical of his counsel's performance, Tershel did attempt on cross-examination of the Commonwealth's witnesses to point out inconsistencies between their trial testimony and earlier statements that they had made, either to the police or at prior court proceedings. He also called as a defense witness Jean Jones, a neighbor of Dehla Woznicak. She testified that when she went outside to get her mail on June 21, 1985, she spoke briefly with a man who was outside of the Woznicak home. He was driving a car that looked like Lucille Horner's car. Jones stated that this individual had a full head of hair and was not Steele, who was bald.*fn1 Id. at 731-44.

Tershel presented the testimony of Dr. Paul M. Bernstein as an expert in eye-witness identification. Dr. Bernstein discussed research that demonstrated the fallibility of eye-witness identification. Id. at 1018-21, 1027-30. He testified that studies have shown that "white people identify white people" twenty percent better "than they identify black people." Id. at 1031.

Tershel also called as a defense expert forensic pathologist Dr. Cyril Wecht, who challenged Dr. Abernathy's certainty that the deadly blows to the victims had been inflicted by bare hands. Dr. Wecht testified that it was not possible to precisely identify the mechanism or instrumentality that produced the victims' injuries. Id. at 867. He also disputed Agent Podolak's testimony by explaining that hair comparison testing cannot yield the definitive conclusions such as that offered by Podolak. Id. at 858-60.

To further counter the Commonwealth's theory that Steele killed the victims using his marital arts skills, Tershel introduced testimony from a police investigator who stated that Steele had no marks on his hands when he was arrested two days after the murders. Id. at 920. Tershel also called a martial arts instructor, who testified that Steele's hands would have been bruised if he had committed the murders by striking blows with them. Id. at 925-30.

Steele chose to testify, thereby placing his own credibility before the jury. He denied murdering and robbing the victims. He then gave an explanation as to his whereabouts the day of the murders that likely did his defense no favors.

Steele testified that after he left Attorney Henkle's office around noon on the day of the murders, he began walking toward the transit terminal so that he could catch a bus to Pittsburgh. As he was walking down the street, a man driving an Oldsmobile or Buick stopped him and called him over to his car. Steele did not know the man. He went by the nickname "PI," and he never told Steele his real name. Id. at 1202-03.

According to Steele, PI drove him to Pittsburgh, and they arrived there around 12:45 p.m. They agreed to meet again at around 5:00 p.m. in downtown Pittsburgh at a bar called The Purgatory. Steele said that after he left PI, he walked around downtown. At some point in the afternoon, he met a man named Larry Wallace at the bus station (which was near The Purgatory) for about 30 minutes. After their meeting, he went to The Purgatory. PI eventually met him there. PI then took him to another location in town and showed him some cars. Id. at 1204-10.

Steele testified that PI gave him a light yellowish-colored car,*fn2 and said that he could have it for a few days to see if he wanted to buy it. He and PI then drove to a bar located in the Hill District area of Pittsburgh. Steele stayed in the car and PI went inside. When PI came out, he was with a man who took Steele over to a black van. Inside the van were several items, including the items that had been stolen from the Woznicak house earlier that day. Steele stated that he bought all of the items for $50, and that, he explained, was how he came into possession of the Woznicak's stolen property. Around 6:00 p.m., Steele drove the car that PI had given to him to Whitlock's house, and he took the stolen items inside. That, he explained, is why Whitlock's neighbors saw him unloading the stolen items from a cream-colored car. Id. at 1207-15, 1239-46.

Steele did not present a single witness to corroborate his testimony. During cross-examination, he said that he had never been: at the Millcraft Center parking lot (which was where Stitler and Oyler said that they had seen him with the victims, and which was nearby where Crothers said that he had seen him with them); at the Woznicak house (even though the witnesses at Klements Service Station said that they had seen him in the area around the time the Woznicak home was robbed); at the Chartiers Valley Shopping Center (where Sarah Hair said he had approached her); at the Great Southern Shopping Center (where Rosalyn Fields said he had approached her); or, at Klements Service Station (where Joseph, Victor, and Janice Klements, and Willie Scarfanski and Mark Hall said that they had seen him). Id. at 1263-64, 1269. Steele could provide no explanation as to how the victims' credit and insurance cards had ended up outside the house in Broadhead Manor that he had visited the night of June 21, 1985. Id. at 1282-83, 1309.

On January 21, 1986, the jury convicted Steele of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. Following a separate penalty hearing that was conducted the next day, the jury fixed the punishment at death for each murder conviction.

Steele, through Liekar, filed post-trial motions, which the trial court denied in a 72-page Opinion issued on March 3, 1988. Commonwealth v. Steele, Nos. 686, 687 & 688 of 1985, slip op. (C.P. Wash. Mar. 3, 1988) ("Post-Trial Op."). On June 5, 1989, the Pennsylvania Supreme Court affirmed. Commonwealth v. Steele, 559 A.2d 904 (Pa. 1989) ("Steele I").

In 1996, Steele filed in state court a pro se petition for collateral relief pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"). The court appointed him new counsel and on January 11, 2000, an Amended PCRA Petition was filed. Steele raised numerous claims for relief, including the claims that he now raises before this Court. He also filed exhibits and declarations to support the allegations made in the Amended PCRA Petition. See Petitioner's Exhibits and Affidavits, submitted to the PCRA Court on Jan. 24, 2001.

On May 30, 2000, the PCRA Court held an evidentiary hearing during which it permitted the introduction of testimony from two witnesses: Attorney Tershel and Michael Reid, who was the defense investigator for Steele's trial.*fn3 Steele's counsel sought to introduce the testimony of additional witnesses but the PCRA Court denied their request.

On September 26, 2001, the PCRA Court issued a decision in which it denied the Amended PCRA Petition. Commonwealth v. Steele, Nos. 686, 687, and 688 of 1985, slip op. (C.P. Wash. Sept. 26, 2001) ("PCRA Court Op."). The Pennsylvania Supreme Court affirmed on December 18, 2008. Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008) ("Steele II"). It denied reargument on March 6, 2009.

On October 29, 2009, Steele filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn4 [ECF No. 11]. I granted his unopposed motion for discovery. [ECF Nos. 17, 18]. After the completion of discovery, Steele filed a 192-page Memorandum of Law In Support Of Petition For Writ Of Habeas Corpus [ECF No. 22]. An evidentiary hearing was held on January 13, 2011, after which Steele filed supplemental memoranda [ECF Nos. 47-49]. The Commonwealth has filed its Answer [ECF Nos. 25, 49] and Steele has filed a Reply [ECF No. 50].

III. Standard Of Review

Steele's petition is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). Under this statute, habeas relief is only available on the grounds that Steele's convictions or sentences of death were obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 're-examine state court determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). See also Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir. 2010).

In describing the role of federal habeas proceedings, the U.S. Supreme Court, in Barefoot v. Estelle, 463 U.S. 880, 887 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited.

Federal courts are not forums in which to relitigate state trials.

Several years after the Court made this observation, Congress enacted AEDPA, which "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). It "requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts' legal and factual determinations." Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004).

As codified at 28 U.S.C. § 2254(d), AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to,*fn5 or involved an unreasonable application of,*fn6 clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (Emphasis added).

Thus, AEDPA circumscribes a federal court's review of a state prisoner's federal constitutional claim when the state court has adjudicated that claim on the merits. Importantly, review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1398-1401 (2011). See also Roundtree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011).

"[F]or the purposes of [§] 2254(d), a claim has been 'adjudicated on the merits in State court proceedings' when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground." Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009). When the state court has not adjudicated a claim on the merits, AEDPA's standard of review at § 2254(d) does not apply and the federal habeas court's review is de novo. Id. at 124.*fn7

Steele contends that, although he presented Claims 3, 6, 7, 8, 9, 10, and 14 to the Pennsylvania Supreme Court, that court did not adjudicate them on the merits and therefore AEDPA's standard of review at § 2254(d) does not apply to my review of those claims. Because the Commonwealth does not challenge Steele's contention in this regard, I will review all of those claims de novo.*fn8 Steele acknowledges that the Pennsylvania Supreme Court adjudicated on the merits Claims 4,*fn9 5, 13, and 15 and therefore my review of each of those claims is governed by AEDPA's deferential standard of review at § 2254(d).

IV. Guilt-Phase Claims

A. Agent Podolak's Testimony (Claims 3 & 4)

(1) Background

Prior to the trial, the Commonwealth disclosed to the defense a report that had been prepared by the F.B.I. and that contained the results of Agent Podolak's analysis. In relevant part, it was explained in the report that hair samples had been taken from two items of clothing that belonged to Steele, which the police had obtained when they searched his girlfriend Joan Whitlock's home. The items of clothing received the F.B.I. Lab designations of Q117 (a suit coat) and Q121 (pants). The hairs recovered from Q117 and Q121 were compared against control sample hairs from Minnie Warrick, which were designated as K9. Agent Podolak stated the following in the report:

Brown head hairs of Caucasian origin were found on Q117 and Q121. These hairs exhibit the same microscopic characteristics as the hairs found in K9 and, according, are consistent with having originated from MINNIE H. WARRICK.

It is noted that hair comparisons do not constitute a basis for absolute personal identification.

Ex. 6 of Petitioner's Exhibits and Affidavits, submitted to the PCRA Court on Jan. 24, 2001 (emphasis added).

The defense filed a motion in limine, in which it requested that the Commonwealth be precluded from introducing Agent Podolak's testimony because it was inconclusive. Defense Motion In Limine, ¶ 3. The court presided over argument on the motion in chambers on January 10, 1986, just prior to the commencement of the trial. The prosecutor indicated, apparently for the first time, that if Agent Podolak testified, the opinion he would give would be more definitive than the one contained in the report:

Pettit: [Agent Podolak has] made comparisons and in his statement to me, in preparing for this, he has indicated that if perhaps, there were two hundred people in the courtroom and he were to take a hair from each one of those individuals, he could say which hair came from each of the two hundred people. He said that just by the naked eye, if you are to be in a group of people and look at each person's hair without the benefit of a microscope, from years of training and expertise, you can, by just looking at each person in a group, in and of yourself, make certain distinguishments from it and so it's our opinion that it becomes a question of credibility of this witness.

Court: Let me ask you, he said that he can . Is there anyone that can take a hair and match it with a hair from a known person? Is there any expert that can say that is definitely that person's hair . [I]s it like fingerprints where if you say you get eight or nine characteristics on a fingerprint, then you can say that that is the fingerprint and in all probability of "X" or how is it? Is his testimony any more definite than anyones [sic] could be?

- - - . [I]f the answer is no, there are no experts who can come in and say definitely that the separated hair that is found comparing with a known hair, they cannot say with any definiteness that that is the hair, correct?

Liekar: Yes.

Court: And in this case, this expert so says?

Pettit: He so says, yes.

Court: Okay . I'm going to deny [the motion in limine]. It certainly is relevant and it will be a matter of what weight the jury would want to give it.

Tershel: On that same line, I would interject, if the expert cannot say much more than anyone can say, with a naked eye, then I think he's delving into the jury's fact finding process and I don't think it's proper expert testimony, as an expert witness saying that he in fact says that the characteristics are the same and that is going to be giving more weight than someone else and I think that it is also a reason to keep this out.

Court: I understand what you are saying. You're saying that the naked eye, but this guy took it one step further and did make microscopic examinations and found certain characteristics. Is it like fingerprints? We know in fingerprints, that for the testimony to be admissible there has to be a minimum standard; seven, eight or nine characteristics..

Pettit: Your Honor, there is a scientific approach that he uses and I am not at this point, and he will testify to the approach that he does use. I don't have all of that ready. He's been in Alaska for the last week and we had to get him back from going to Guam to be available. Court: Well, I made my ruling and the defense can cross examine on those ...

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