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David Rodriguez, Petitioner v. Gerald L. Rozum

June 13, 2012

DAVID RODRIGUEZ, PETITIONER,
v.
GERALD L. ROZUM, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION................................................................................................................. 1

II. BACKGROUND-STATE COURT PROCEEDINGS .................................................... 1

A. Proceedings in the Court of Common Pleas of Philadelphia County .................... 1

1. Testimony of Steven MacNamee ........................................................................ 2

i. Drug-Purchasing Relationship with Petitioner ............................................ 3

ii. First Meeting on February 8, 1998, and Aftermath .................................... 5

iii. Second Meeting on February 8, 1998 ............................................................ 6

iv. The Shooting .................................................................................................... 8

v. Investigation of Shooting .............................................................................. 11

2. Testimony of Dr. Ian Hood ............................................................................... 12

3. Testimony of Detective Dominic Mangoni ...................................................... 13

4. Testimony of Detective Robert Konczyk ......................................................... 13

5. Testimony of Philadelphia Police Officers Terrance Lewis, Avon Lewis, and Andrew Little ..................................................................................................... 16

6. Testimony of Pierre Carter .............................................................................. 17

7. Testimony of Donna Marie Gatto .................................................................... 18

8. Testimony of Luis Casiano ............................................................................... 18

i. Relationship with Petitioner, Petitioner's Drug Sales, and Prior Meeting with Steven MacNamee ................................................................................ 19

ii. First Meeting on February 8, 1998, and Aftermath .................................. 19

iii. Second Meeting on February 8, 1998 .......................................................... 21

iv. The Shooting .................................................................................................. 22

9. Testimony of Petitioner ..................................................................................... 24

i. Drug-Selling Relationship with Steven MacNamee ................................... 24

ii. First Meeting on February 8, 1998 .............................................................. 25

iii. Second Meeting on February 8, 1998, and Aftermath .............................. 26

iv. The Shooting .................................................................................................. 27

v. Inconsistencies in Police Statement ............................................................. 28

10. Police Statements ............................................................................................... 29

i. Steven MacNamee's Statement-February 13 and 18, 1998 .................... 29

ii. Petitioner's Statement-February 23, 1998 ............................................... 30

iii. Luis Casiano's Statement-March 12, 1998 .............................................. 31

11. Physical Evidence .............................................................................................. 32

12. Trial Judge's Ruling .......................................................................................... 32

B. Trial Court's January 19, 2001, Opinion................................................................ 35

C. Superior Court Panel Opinions on Direct Appeal ................................................. 36

D. Superior Court En Banc Opinion; Allocatur Denied ............................................ 37

E. Pennsylvania Superior Court Decision in Austin That a Defendant Cannot Be Guilty of Felony-Murder if He Is Acquitted of Predicate Felony ........................ 38

F. Pennsylvania Post-Conviction Relief Act Proceedings .......................................... 38

III. BACKGROUND-FEDERAL COURT PROCEEDINGS ............................................ 39

A. Habeas Petition; Government Response ................................................................. 39

B. Magistrate Judge's Report & Recommendation ................................................... 40

C. Petitioner's Objections to R&R ............................................................................... 41

IV. DISCUSSION

...................................................................................................................... 42

A. Standard of Review-Magistrate Judge's Report & Recommendation .............. 42

B. Standard of Review-Antiterrorism and Effective Death Penalty Act ............... 42

C. Petitioner's Second Objection Is Overruled Because Retroactivity of State Courts' Construction of State Criminal Statutes Is Not Cognizable on Federal Habeas Review .......................................................................................................... 43

D. Petitioner's First and Third Objections-Sufficiency of the Evidence ............... 44

1. Petitioner's Inconsistent-Verdicts Argument Is Properly Construed as a Sufficiency-of-the-Evidence Claim .................................................................. 45

2. Legal Standard-Fourteenth Amendment Due Process-Sufficiency of the Evidence ............................................................................................................. 46

3. Applicable Pennsylvania Law .......................................................................... 46

i. Second-Degree Murder ................................................................................ 46

ii. Robbery .......................................................................................................... 47

iii. Accomplice Liability ..................................................................................... 47

4. The En Banc Pennsylvania Superior Court's Decision Was Objectively Unreasonable ..................................................................................................... 48

i. The State Court Unreasonably Failed to Apply the Requirement That Petitioner Intend to Aid or Promote a Robbery ........................................ 49

ii. The Evidence Does Not Establish Petitioner's Intent for a Robbery to Occur .............................................................................................................. 52

iii. The Trial Court's Verdicts and Rationale For Its Verdicts Support a Finding of Unreasonableness ....................................................................... 58

5. Conclusion .......................................................................................................... 59

E. Petitioner's Aggravated-Assault and Attempted-Murder Convictions Must Also Be Vacated ................................................................................................................. 59

V. CONCLUSION ................................................................................................................... 60

I. INTRODUCTION

This is a habeas case. Petitioner David Rodriguez was convicted of second-degree murder, aggravated assault, and attempted murder in the Court of Common Pleas of Philadelphia County on October 18, 1999. He was sentenced to a mandatory term of life imprisonment on the second-degree murder count, and no further sentence was imposed on the other two counts.

Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2254 on January 21, 2011. On September 29, 2011, United States Magistrate Judge Linda K. Caracappa submitted a Report and Recommendation ("R&R") to the Court, recommending that the Petition be denied. Petitioner filed Objections to the R&R on October 17, 2011. For the reasons that follow, the Court sustains the Objections to the R&R in part. The Petition is granted and petitioner's second-degree murder, aggravated assault, and attempted murder convictions are vacated and set aside without prejudice to the right of the Commonwealth of Pennsylvania to grant petitioner, within 180 days, a new trial and, if petitioner is found guilty, a new sentencing.

II. BACKGROUND-STATE COURT PROCEEDINGS

A. Proceedings in the Court of Common Pleas of Philadelphia County

This case arises from petitioner's involvement in the February 8, 1998, shooting of David and Steven MacNamee by a man known only as "Macho."*fn1 Steven MacNamee recovered from his injuries, but David MacNamee's wounds were fatal. Petitioner and a co-defendant, Luis Casiano, were charged in the Court of Common Pleas of Philadelphia County with nineteen counts including murder, attempted murder, two counts of robbery, two counts of criminal conspiracy, aggravated assault, and various guns and drugs charges. (Ct. Com. Pl. Phila. Cnty. Dockets, Resp. Pet. Writ Habeas Corpus ("Gov't Resp.") Ex. A, at 7.) Petitioner and Casiano waived their right to a jury trial and received a bench trial before the Honorable Renee Cardwell Hughes, which took place in October 1999. Judge Hughes found petitioner guilty of three counts: murder in the second-degree, 18 Pa. Cons. Stat. § 2502(b); aggravated assault, 18 Pa. Cons. Stat. § 2702; and attempted murder, 18 Pa. Cons. Stat. §§ 901, 2502.*fn2 Judge Hughes acquitted petitioner of all other charges and acquitted Casiano on all counts.

As discussed infra, the single issue presented by the Petition is whether the evidence was sufficient to sustain petitioner's convictions-a so-called Jackson claim. See Jackson v. Virginia, 443 U.S. 307 (1979). Central to petitioner's claim is his argument that his conviction for second-degree murder must be vacated because there was insufficient evidence to find that he was guilty of the predicate felony, robbery, on an accomplice-liability theory. In addressing the Jackson claim, the Court must consider "all of the evidence admitted at trial," McDaniel v. Brown, 130 S. Ct. 665, 672 (2010), and it may not engage in "reweighing of the facts" or "second-guessing," Cavazos v. Smith, 132 S. Ct. 2, 7 n. (2011). Accordingly, this Memorandum recounts in full the evidence relevant to whether petitioner was properly convicted of second-degree murder, aggravated assault, and attempted murder, omitting any discussion of evidence that only involved Casiano.

1. Testimony of Steven MacNamee

The Commonwealth called as a witness Steven MacNamee (hereinafter "Steven MacNamee" to avoid confusion with his brother). Steven MacNamee had two older brothers, David (hereinafter "David MacNamee" to avoid confusion with petitioner), and Roy. (October 4, 1999, Trial Tr. ("10/4/99 Tr.") 37, 52; Oct. 6, 1999, Trial Tr. ("10/6/99/Tr.") 82.) Along with a man named Pierre Carter, Steven MacNamee owned a mobile-electronics store located at 6524 Lansdowne Avenue in West Philadelphia. (10/4/99 Tr. 41.) Steven MacNamee, David MacNamee, Roy MacNamee, and their mother lived in the same duplex in West Philadelphia; David, Roy, and their mother lived together upstairs, and Steven MacNamee lived downstairs. (10/6/99 Tr. 26.) Steven MacNamee testified at trial that he owned a properly licensed firearm that he carried at all times in "an outside holder in clear view." (Oct. 5, 1999, Trial Tr. ("10/5/99 Tr.") 34, 61 ("I wear my gun like I wear my clothes. I wear it every single day, everywhere I go.").)

i. Drug-Purchasing Relationship with Petitioner

Steven MacNamee testified that he knew petitioner as "Jose" and that he purchased marijuana from petitioner about "three or four times a month" over "about a five-month period" before the shooting. (10/4/99 Tr. 39--40.) Steven MacNamee claimed that he did not use marijuana and that he made the purchases on behalf of his brother Roy, who did not have a car. (10/6/99 Tr. 9, 29--30.) Steven MacNamee knew a man named "Craig" who introduced him to petitioner. (10/4/99 Tr. 40.) Originally, Craig made purchases from petitioner on Steven MacNamee's behalf, but, eventually, petitioner met Steven MacNamee at Steven MacNamee's store, and petitioner gave Steven MacNamee his pager number. (Id. at 42, 44.) Thereafter, when Steven MacNamee wanted to buy marijuana, he would page petitioner, and petitioner would meet him near the store to complete the transaction. (Id. at 45.) Steven MacNamee testified that petitioner came to the store approximately eight times, all for drug transactions. (Oct. 5, 1999, Trial Tr ("10/5/99 Tr.") 34; 10/6/99 Tr. 10.)

When making a sale to Steven MacNamee, petitioner brought someone with him on "[a]lmost every occasion," but the person was not always the same. (10/4/99 Tr. 45--46.)

Petitioner brought his co-defendant, Luis Casiano, to one transaction about two months prior to February 8, 1998. (Id. at 46--47.) Steven MacNamee stated that, during these meetings, he never saw petitioner with a gun. (10/6/99 Tr. 61.)

Steven MacNamee testified that he only purchased marijuana from petitioner for Roy- usually an ounce of marijuana for $400. (10/4/99 Tr. 39.) He denied selling drugs out of the beeper store. (10/6/99 Tr. 6.) Steven MacNamee admitted on cross-examination that he had heard of marijuana being sold for as little as about "90 to 120" dollars, but he was willing to pay up to $400 because it was "what [his] brother liked and asked for." (Id. at 55.) Roy used marijuana as well as cocaine, although Steven MacNamee only purchased marijuana; Roy would have "teaspoons" of cocaine delivered to the house. (Id. at 84.) Steven MacNamee's testimony was that he himself never sold drugs and that he never inquired as to whether petitioner could sell him cocaine. (Id. at 10; 10/4/99 Tr. 52.)

According to Steven MacNamee, when he purchased marijuana from petitioner, each transaction usually include two meetings so that Steven MacNamee could "look at the product and then go back and get the money." (10/4/99 Tr. 28.) "About three or four" times, Steven MacNamee took a sample to Roy for him to evaluate, although Steven MacNamee testified that could make the decision himself on most occasions based on his knowledge of marijuana quality from "the amount of times that [Steven MacNamee] sat in the room with [his] brother while he smoked it, while they talked about it." (Id. at 29--30; 10/6/99 Tr. 7.) Steven MacNamee further testified that "a couple of times" he had the money ready and was willing to complete the transaction "right then and there." (10/4/99 Tr. 29.) However, during the "last three or four dealings" before February 8, 1998, petitioner was "angry" because Steven MacNamee was not happy with the quality of the marijuana. (10/6/99 Tr. 56.)

ii. First Meeting on February 8, 1998, and Aftermath

Steven MacNamee testified that, on February 8, 1998, he arranged a meeting to complete a drug transaction with petitioner:

I paged [petitioner] . . . around 1 o'clock. He returned my call around 3 o'clock, and I told him the usual, which was an ounce.

He said that he would call me back and tell me if it was going to happen or not, which he did. We prearranged a meeting time which was about 9 o'clock and we met up. It was David Rodriguez, Luis Casiano and a third man, of which I do not know a name or can -- he's not here today. (10/4/99 Tr. 47.) Steven MacNamee stated that he had never seen the third man before.*fn3 (Id. at 47--48.)

Steven MacNamee drove his car to "Atwood Road in front of Cassidy School"-within a few hundred feet of the beeper store-at approximately 9:00 p.m. (10/4/99 Tr. 48.) The three men got out of their car and into Steven MacNamee's car. (Id. at 49.) The "unknown person" handed the marijuana-one ounce, in a sandwich bag-to petitioner, who handed it to Steven MacNamee. (Id. at 50.) Steven MacNamee said that he "didn't like it" based on its "smell, texture and look." (Id. at 51.) According to Steven MacNamee, he said to petitioner that he "would take it under the conditions of bringing [him] back a better product or lower the price $50," and petitioner agreed. (Id. at 52.) Petitioner further agreed that Steven MacNamee could "take a sample" to Roy. (Id.)

Steven MacNamee testified that he brought the marijuana sample to Roy, who said that if petitioner "would lower the price $50, he would take it." (10/6/99 Tr. 20.) Steven MacNamee paged petitioner with a "two," which meant: "I turned it down." (10/4/99 Tr. 52.) Steven MacNamee testified: "[Petitioner] called me back at my house and told me that he wasn't going to make any money off the deal at the 350 price, that he has to get 400 for it. I said it's not acceptable. I will wait until next time. He said there wasn't going to be any for a while, that there wouldn't be any for sometime. [sic] That this is all that he had left. I said that it didn't change anything." (Id. at 52--53.) Petitioner and Steven MacNamee had "somewhat of an argumentative conversation," but they "finally decided to agree to the 350 price" and to meet again to finish the deal. (Id. at 53; 10/6/99 Tr. 21.)

Steven MacNamee testified that he did not use drugs or consume alcohol during the evening of February 8, 1998. (10/5/99 Tr. 31.) However, he gave contradictory testimony as to whether David MacNamee used any narcotics that evening. On direct examination, he stated that he never saw David MacNamee using drugs on February 8, 1998. (Id.) However, on cross-examination, Steven MacNamee stated that he saw David MacNamee use cocaine in his bedroom "right before" Steven MacNamee's second trip to meet petitioner. (10/6/99 Tr. 65, 81.)

iii. Second Meeting on February 8, 1998

Around 10:30 p.m., petitioner paged Steven MacNamee, who drove to the intersection of Lansdowne Avenue and Atwood Road to meet petitioner. (10/4/99 Tr. 54.) Steven MacNamee was accompanied by David MacNamee*fn4 because, according to Steven MacNamee, as he was leaving Steven MacNamee asked David McNamee "if he wanted to take a ride with me. He said sure." (10/6/99 Tr. 25.) When he drove to the meeting, Steven MacNamee had his gun with him. (10/4/99 Tr. 62--63.) Steven MacNamee parked the car "about a quarter of the way" down Atwood Road, and petitioner, Casiano, and the "unknown person" pulled up and parked directly behind him. (10/6/99 Tr. 54--55.) Petitioner, Casiano, and the "unknown person" got out of their car and approached Steven MacNamee's car. (Id. at 55.) Steven MacNamee testified that he was not troubled by the presence of two people with petitioner because it was "common" for petitioner to "bring two other people with him." (Id. at 60--61; see also 10/6/99 Tr. 18--19.) However, "a few times" Steven MacNamee had asked petitioner to get in the car alone, and petitioner complied; Steven MacNamee made such a request during the second meeting on February 8, 1998, because his girlfriend was waiting and he wanted to get back to her. (10/6/99 Tr. 27, 30; see also id. at 28 ("Q: Well, what was your concern? Just wanted to get him in the car, get it over with real fast, and just-then just leave.").) When he "asked [petitioner] if he could get in the car alone," the "doors were already opening," all three men got into the car, and Steven MacNamee "didn't say anything after that." (10/4/99 Tr. 55.) On cross-examination, Steven MacNamee stated that he was not "fearful" of petitioner. (10/5/99 Tr. 69.)

According to Steven MacNamee, "David [Rodriguez] and the unknown person got in on the driver's side and Luis Casiano got in on the passenger side." (Id. at 55.) The arrangement of men in the car, according to Steven MacNamee's testimony, was: Steven MacNamee in the driver's seat; David MacNamee in the front passenger seat; the unknown man in the rear seat behind the driver; David Rodriguez in the rear seat middle; and Luis Casiano in the rear seat behind the passenger. (Id.; see also 10/5/99 Tr. 7--10.) Steven MacNamee testified that he was "positive" about these positions. (10/4/99 Tr. 55.)

iv. The Shooting

Steven MacNamee's testimony as to the events that ensued was as follows:

I looked back to Jose and asked him if he had [the marijuana]. He proceeded to get it from the unknown person sitting behind me who handed it to Jose who then handed it up to my brother, because on the ride over there I handed him the money and asked him to count it to make sure it was right. My brother handed him the money. As soon as he handed him the money [petitioner] turned to Luis Casiano and started speaking in Spanish, I believe. . . . They had some words back and forth. I told [petitioner] that I would probably call him tomorrow.*fn5

(Id. at 56--57.) Casiano's attorney, Jean Purnell, Esquire, established on cross-examination that Steven MacNamee did not mention the Spanish conversation at the preliminary hearing. (10/5/99 Tr. 67). She then asked Steven MacNamee whether he was "concerned" by the conversation, and he responded: "No and yes at the same time. I mean, it's uncomfortable not to know what someone is saying, but it wasn't uncommon for them to speak it, so the concern wasn't there. They spoke Spanish regularly." (Id. at 68.)

Steven MacNamee testified that, after he told petitioner he would call him the next day:

I started to turn. That's when I heard the door open. As soon as I turned and the second I put my hand on the ignition switch, I heard a loud bang, and I immediately turned to my right. Followed by a second, a third . . . . Luis Casiano is standing halfway one foot out, one foot in the car. Just shot my brother. Turned. I seen a hand come up on the center console and grab the marijuana and take it. I said you don't have to do this. Immediately he fired at me again and again.

(10/4/99 Tr. 57--58.) Steven MacNamee was struck in the shoulder and in the face. (Id. at 59-- 60.) One of the bullets shattered the driver's window and the driver's rear-view mirror. (Id. at 62.)

Steven MacNamee testified at trial that he did not know whether the unknown third person was still in the vehicle when Casiano started shooting, or what happened to the third man thereafter. (Id. at 73--74.) On direct examination, the first time he was asked about petitioner's whereabouts during the shooting, Steven MacNamee stated that he saw "David Rodriguez back in the seat like this [per the Court: having his hands crossed, his fists clinched, his hands crossed against his chest with one hand on each shoulder leaning back against the car seat] with the weed in his hand up against the seat." (Id. at 60.) When asked on direct examination a second time, during the second day of his testimony, Steven MacNamee said that after Casiano fired the first shot, "A hand came up from the center, and the only person sitting there was Jose. I turned back again. I seen Jose up against the back seat and he was holding the marijuana in his hand. Luis Casiano shot." (10/5/99 Tr. 17.)

During cross-examination by petitioner's attorney, Steven MacNamee conceded that the trial "was the first time" he "told anybody [he] saw David Rodriguez in the back holding the drugs." (10/6/99 Tr. 45; see also 10/6/99 Tr. 53 ("Q: So are you changing your testimony now? A: Yes.").) Steven MacNamee admitted that, when he gave a statement to the police on February 13, 1998, he said: "One of the males must have took [the marijuana]. It was on the center console when I drove to the hospital." (Id. at 46.) Steven MacNamee also stated that, at the preliminary hearing, he testified that he did not see petitioner or the third man in the car when the shots were fired. (Id. at 49--53.)

After being shot, Steven MacNamee began playing "possum like [he] was dead." (10/4/99 Tr. 62.) Once Casiano got out of the car, Steven MacNamee drew his gun from his right waistband, which was difficult because his right arm was injured and he had to reach around with his left hand. (Id. at 62--63; 10/5/99 Tr. 18.) According to Steven MacNamee, he tried to get out of the car but heard another shot, so he "immediately sat back in the car." (10/4/99 Tr. 63.) He looked at David MacNamee and saw "that he was hit and blood was coming down his face," so he "knew that [he] had to get him to a hospital." (Id.) Steven MacNamee began to pull out of the parking space, and as he did so, the red station wagon passed ahead of Steven MacNamee's car. (Id. at 63--64.) Steven MacNamee testified: "Luis Casiano was in front of a truck that was in front of me. The car pulled in front of me. The person-I only seen his shadow. I can't say who, reached over and opened their rear door of the red station wagon that drove in front of me." (Id. at 64.) Steven MacNamee stopped his car, opened the door, and fired a shot at Casiano, who then "dove into the back seat" of the red station wagon. (Id.) Then petitioner, Casiano, and the unknown person "hit the gas and started driving away." (Id.) As they were doing so, Steven MacNamee fired "about five shots." (Id. at 64--65.)

Once the red station wagon was gone, Steven MacNamee drove his car to Lankenau Hospital. (Id. at 66.) Steven MacNamee's testimony as to what transpired at the hospital became the subject of ...


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