The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Presently before the Court is a petition for a writ of habeas corpus filed by Antwon Arrington. (ECF No. 7). He is challenging a judgment of sentence imposed by the Court of Common Pleas of Erie County on or around August 3, 2005. He raises four grounds for relief, which he has set forth in his Memorandum of Law In Support of Writ of Habeas Corpus. (ECF No. 8). He claims that his former attorney, Assistant Public Defender Bruce Sandmeyer, Esquire, provided him with ineffective assistance in violation of his Sixth and Fourteenth Amendment rights for:
I. "failing to object to the introduction of the video-taped statement [of Natasha Rosendary, who testified as a hostile witness for the Commonwealth at his trial and who was identified as CI #1 in the affidavit of probable cause that was attached to a request for a search warrant], where no meaningful opportunity exist[ed] to cross-examine [Rosendary], depriving [him] of his Sixth Amendment right to confront;"
II. "failing to challenge the issuance of the search warrant, considering the lack of reliability of the informant [Rosendary, CI #1], in addition to the failure to cause the Commonwealth to identify [and] produce or otherwise confirm the existence of CI #96-04";
III. failing to call alibi witness Rashad McLaurin at both the suppression hearing and the trial;
IV. "failing to raise and brief [on direct appeal] the issues as stated above."
(ECF No. 8 at 4). For the reasons set forth below, Arrington's petition is denied and a certificate of appealability is denied.
A. Relevant Background*fn2
On November 3, 2004, at approximately 1:00 p.m., Officer Michael Nolan of the Erie City Police arrested Natasha Rosendary and her boyfriend, Reese Beason, while they were re-packaging seven ounces of crack cocaine from an "eight-ball" into smaller plastic bags. Rosendary told the police that she had purchased the eight-ball from Arrington approximately one-half hour earlier at 2014 Myrtle Street in Erie. Arrington was under surveillance for suspicion of drug activity at that time and Rosendary agreed to cooperate with the police in their investigation of him. Towards that end, she called Arrington that same day and told him that she wanted to be resupplied with more cocaine. She asked him to meet her on a nearby street corner. (CP Dkt. No. 24, Commonwealth v. Arrington, No. 27 & 28 of 2005, slip op. at 1-2 (CP Erie, Nov. 7, 2005); Pre-Trial Motion Hr'g Tr. at 2-7).
The trial court, in its 1925(b) Opinion, explained what happened next:
Detective Donald Dacus and Officer Michael Nolan fully searched Ms. Rosendary according to the routine practices of the Erie Police Department for preparing a confidential informant for a controlled buy. The officers were satisfied that she did not have any contraband on her before they permitted her to meet with Mr. Arrington.
Ms. Rosendary went to 4th Street and Reed Avenue to meet Mr. Arrington while Detective Dacus, Officer Nolan and Lieutenant Fetterman waited in the unmarked van seventy-five (75) feet away. Detective Dacus' cell phone number was programmed into Ms. Rosendary's cell phone, and she was instructed to hit the "send" button and exit Mr. Arrington's vehicle once she saw drugs. Ms. Rosendary received $300.00 in controlled buy money from the officers and she was kept under surveillance prior to, and during, the buy.
Meanwhile, the surveillance team at 2014 Myrtle Avenue observed Mr. Arrington and another male, Wayne D. Burnett, drive off at approximately 6:28 p.m. in a white Mercury Mountaineer with tinted glass windows, bearing Pennsylvania plate FTS-3241. A mobile survey squad followed Mr. Arrington and his passenger to the corner of 4th Street and Reed Avenue. Ms. Rosendary climbed into Mr. Arrington's Mountaineer and remained there for approximately sixty (60) seconds. Detective Dacus monitored Ms. Rosendary from his unmarked van while Officer Nolan and Lieutenant Fetterman moved into position between some houses close to the Mountaineer. Detective Dacus received the signal from Ms. Rosendary on his cell phone and she then exited the Mountaineer. Officer Nolan and Lieutenant Fetterman approached Mr. Arrington's vehicle on foot as backup units were called in to assist. The two officers attempted to walk in front of the vehicle with their badges displaced and weapons drawn, and asked Mr. Arrington to shut his vehicle off and put his hands up. Mr. Arrington put his vehicle in reverse gear and crashed his Mountaineer into Sergeant Jim Nolan's patrol vehicle. Lieutenant Fetterman and Officer Michael Nolan physically removed Mr. Arrington from the vehicle, restrained him on the ground and placed him in handcuffs. Officer Michael Nolan observed that the buy money was sitting on the front's driver's seat, along with a weapon on the floor where Mr. Arrington's passenger, Wayne D. Burnett, was seated. Approximately one quarter-ounce of crack cocaine (seven (7) grams), packaged in a clear plastic bag, was retrieved from Ms. Rosendary, who said that she purchased it from Mr. Arrington while she was inside his Mountaineer. (CP Dkt. No. 24, Arrington, No. 27 & 28 of 2005, slip op. at 3-4).
Soon after this occurred, Det. Dacus submitted an application for authorization to search Arrington's residence at 2014 Myrtle Street. (The search warrant and affidavit of probable cause is attached as Ex. 1 to the petition, ECF No. 7). In the affidavit of probable cause, Det. Dacus set forth the details of the controlled buy. Rosendary was identified in the affidavit as "CI #1." Det. Dacus also referenced information provided by another confidential informant identified as "CI #96-04." He stated:
On October 22, 2004 Det Dacus and Sgt Nolan did speak with CI #96-04. This CI did tell detectives that he/she learned information through conversation with associates of Antwon Arrington that Arrington was dealing large quantities of crack cocaine in the City of Erie and that he was residing at 2014 Myrtle Street. This CI is believed to be reliable as he/she has cooperated with law enforcement resulting in 12 arrest[s] and convictions for felony drugs within the City of Erie. This CI has also provided information on at least fifty other individuals within the City of Erie involved in the drug trade and this information has been corroborated by other reliable informants, surveillance and information contained within the Erie Police database.
The district judge approved Det. Dacus' application for a search warrant and the police executed the warrant that day. The police entered Arrington's home (where he lived with his mother, Jennifer Hall). In his bedroom, they found 16 grams of crack cocaine and two pounds of marijuana, plus a firearm, money, and other paraphernalia. (CP Dkt. No. 24, Arrington, No. 27 & 28 of 2005, slip op. at 3-4).
The court appointed Attorney Sandmeyer to represent Arrington. On March 22, 2005, Sandmeyer filed a Notice of Alibi Defense in which it was stated that Arrington was in Cleveland, Ohio on November 3, 2004, during the time when Rosendary said she had been with him. (CP Dkt. No. 7). On that same day, Sandmeyer also filed the defense's Omnibus Pre-Trial Motion (CP Dkt. No. 8), in which it was argued that the evidence obtained in the search of Arrington's house should be suppressed because Rosendary was not a reliable source, and because she had not been sufficiently searched prior to the undercover purchase since a male officer had only performed a "rudimentary pat down" of her.
On April 26, 2005, the Honorable William R. Cunningham presided over an evidentiary hearing on Arrington's motion. At the conclusion of the hearing, Judge Cunningham made the following findings of fact:
On November 3, 2004, Natasha Rosendary was arrested while in possession of illegal narcotics. Thereafter, she agreed to cooperate with the police and did so voluntarily and provided information to the police that she could secure cocaine from the defendant.
In corroboration of that, she called the defendant and made arrangements. The defendant agreed to meet her in the area of 4th and Reed on November 3, 2004. In fact, that meeting occurred. The meeting was preceded by a pat down search by members of the Erie Vice Squad. And while they were not of the same gender, the pat down search was such that it satisfied the officers that she was not in possession of any controlled substance. And given the description of the search, I find that to be credible, that at the time she met with the defendant she was not in possession of any controlled substance.
She was in possession of some marked buy money. That, in fact, she entered . the defendant's . vehicle. That she purchased cocaine from him, provided him the buy money, and turned that cocaine over to the police, who then arrested the defendant. And on the front seat, apparently underneath where the defendant was seated, was the marked buy money in question.
All of those facts and circumstances corroborate the information provided by the C.I. which then resulted in a search, a subsequent search, of the defendant's residence which was based on the reliable information provided by the C.I.
I do not find credible the defendant's testimony that he was in Cleveland earlier that day or that she was in Cleveland with him that day. That's completely contrary to what's been testified to at least as to her whereabouts, "her" being Natasha Rosendary's whereabouts as testified to by the police.
So on the basis of those findings of fact I'm going to deny the motion to suppress. (4/26/05 Pre-Trial Motion Hr'g at 31-32).
Arrington's jury trial was held on May 19-20, 2005, before the Honorable Michael E. Dunlavey. The first witness that the Commonwealth called was Rosendary. She immediately indicated that she did not want to testify and the court declared her a hostile witness. (5/19/05 Trial Tr. at 49-50). Rosendary acknowledged that Arrington agreed to bring her crack cocaine at the corner of 4th and Reed Street. (Id. at 50-51, 53-54). Although at points in her testimony she admitted that Arrington sold her crack cocaine (id. at 58-59, 67), at other points she suggested she actually had had drugs on her (which she had hidden in her "privates") when she had met him and that the police had not performed a sufficient search of her person prior to the controlled buy. (Id. at 54-56, 62). The prosecutor questioned Rosendary about the videotaped statement that she had given to the police in which she stated that Arrington sold her crack cocaine for $300 during the controlled buy. (Id. at 66). Rosendary said that she was "led into saying" that because she was scared. (Id.)
During a recess, the court met with counsel. There was agreement to obtain counsel for Rosendary before additional testimony was taken since "she's just implicated herself in a felony drug transaction and she needs to be informed of that." (Id. at 72-73). Counsel met with Rosendary and advised her of her right to take the Fifth Amendment. (Id. at 76). The recess ended and the prosecutor continued the examination of Rosendary. She stated that she wanted to exercise her right against self-incrimination "with regard to the incident with Mr. Arrington at 4th and Reed, where [she] entered the vehicle[.]" (Id. at 78-79).
In order to impeach Rosendary's testimony that it was she, and not Arrington, who had produced the crack cocaine during the controlled buy, the prosecutor played for the jury a redacted version of the videotaped statement that she had given to the police after the buy. (Id. at 80). The defense did not object to the admission of the tape. (Id. at 82). After it was played, Rosendary testified that only some of what she had said to the police on that day had been the truth. (Id. at 81).
Next, Sandmeyer moved for a mistrial "because Mr. Arrington would be unable to exercise his 6th Amendment right in his cross-examination of this witness since she's taken the 5th, and basically everything surrounding the transaction in the vehicle[.]" (Id. at 83). The court denied the motion, stating:
She's already testified that she had the drugs on her, they dropped out of her panties after she got out of the vehicle. She's given at least three versions of what occurred [that] day, and she has a right to invoke the 5th at any time.
Unfortunately for your client, she gave the statement with counsel present. That was videotaped and she is subject to cross-examination, but she has refused to answer the questions of the ...