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Edward Constant v. Pennsylvania Department of

December 10, 2012

EDWARD CONSTANT,
PETITIONER
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MICHAEL WENEROWICZ (SUPERINTENDENT), WENDY SHAYLOR (SUPERINTENDENT'S ASSISTANT), RESPONDENTS



The opinion of the court was delivered by: Magistrate Judge Cynthia Reed Eddy

MEMORANDUM OPINION

I.INTRODUCTION

For the reasons set forth below, Edward Constant's Petition for Writ of Habeas Corpus will be denied in part and granted in part.

A.Double Jeopardy And Ineffective Assistance Of Counsel

Federal habeas relief is not warranted on petitioner's claim that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for waiving a Double Jeopardy challenge to his retrial. After a guilty verdict but before sentencing, trial counsel successfully moved for a new trial based upon after discovered evidence that the tipstaff had improper and prejudicial communications with the jury during its deliberations. Petitioner now asserts that the tipstaff's conduct amounted to "quasi-judicial misconduct" serious enough to invoke the protections of the Double Jeopardy Clause and to bar retrial, and that effective counsel would have moved to dismiss the charges, rather than for a new trial.

The Court of Common Pleas of Allegheny County found counsel was not ineffective because a new trial, not dismissal of charges, was the appropriate remedy for the tipstaff's improper communication with the jury, and the Superior Court of Pennsylvania affirmed. The decision of the state courts was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, and was based upon a reasonable determination of the facts in light of the evidence presented in the state court proceedings. The Petition for Writ of Habeas Corpus will therefore be denied on this ground.

B. Right to a Public Trial -- Jury Selection

Petitioner also claims that the trial Court's closure of voir dire to his wife and the general public violated his Sixth Amendment right to a public trial. Jury selection is an integral and critical component of any criminal proceeding which must, presumptively, be open to the public and the press; while the Sixth Amendment right to public trial is not absolute and inflexible, closure is and should be the rare exception, and may not be ordered absent careful balancing of competing interests, consideration of alternatives to closure, and articulation of findings. See Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 724 (2010).

The Court of Common Pleas prohibited petitioner's wife and the general public from attending his jury selection, although "the media" were permitted to attend, and the Superior Court endorsed the prohibition. Neither the trial Court nor Superior Court identified an overriding interest or a substantial reason that would suffice to justify their categorical exclusion of a spouse and the general public from jury selection, and their stated reason for closure is affirmatively contradicted by the state court records.

Because the Courts did not follow the substantive or procedural imperatives prescribed by the United States Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court of California ("Press-Enterprise I"), 464 U.S. 501 (1984), the closure of voir dire to petitioner's wife and the public violated petitioner's Sixth Amendment right to a public trial. The decision of the Pennsylvania courts is contrary to, or an unreasonable application of, clearly established, long standing federal law, and, additionally, is based upon an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The Petition for Writ of Habeas Corpus will therefore be granted on this ground.

II. BACKGROUND

A.The Offenses, Convictions and Sentence

At his second trial, petitioner was tried and convicted on February 2, 2005, by a jury in the Court of Common Pleas of Allegheny County, Pennsylvania, of two (2) counts of Criminal Attempt-Homicide, two (2) counts of Aggravated Assault-Serious Bodily Injury, one (1) count of Aggravated Assault-Causing Bodily Injury, and one (1) count of Recklessly Endangering Another Person. Petitioner was sentenced in the aggregate to a term of imprisonment of not less than 141/2 years nor more than 29 years, and a ten year term of probation. The facts underlying the convictions are as follows.*fn1

On May 26, 2002, Municipality of Mt. Lebanon Police Officers Daniel Rieg and Jeffrey Kite responded to a domestic disturbance at the residence of Edward and Susan Constant. When the police officers knocked on the door, petitioner answered; he was visibly angry, belligerent and hostile. Mrs. Constant joined the conversation in the doorway; she was also angry, and she told the officers to leave.

Before she could shut the door, petitioner reappeared and grabbed his wife from behind, causing her to fall to the floor. In the ensuing tumult, petitioner Constant left the front hallway, but soon returned with a .44 caliber magnum revolver, pointed the weapon directly at Officer Rieg and pulled the trigger. The bullet struck Officer Rieg in the chest, knocking him back through the doorway, onto the front porch and over the railing into the front yard. Fortunately, Officer Rieg's protective vest prevented the bullet from entering his body.

Officer Kite scrambled for cover as petitioner fired several more shots and advanced off the porch. Officer Rieg was able to pull his own weapon and fire twelve rounds, one of which struck Constant in his buttocks, causing him to fall to the ground, whereupon police officers subdued and arrested him. Petitioner's handgun contained six spent cartridges, indicating that it had been fired six times.

B.State Court Proceedings and Decisions

1.Trial Proceedings in the Court of Common Pleas of Allegheny County

a.First trial

Petitioner's first trial ended with convictions on all charges except Simple Assault against his wife, on which he was acquitted. Following the verdict but prior to sentencing, a juror contacted trial counsel anonymously and informed him that the court's tipstaff had initiated and engaged in improper communications with the jury during its deliberations. Interviews with other jurors confirmed that improper communications between the jury and the tipstaff had taken place during deliberations.

Petitioner filed a motion for a new trial and motion for recusal of the presiding judge. After a flurry of motions, briefs and an evidentiary hearing before the Administrative Judge of Criminal Division, the Court agreed that the tipstaff had engaged in improper and prejudicial conversation with the jury, and granted the motion for new trial. The motion to recuse the presiding judge was denied.

In granting the motion for a new trial, the Administrative Judge found that, although the tipstaff's comments to the jury were "not emotional or inflammatory in nature" and were not intended to prejudice petitioner, nevertheless her remarks were sufficiently prejudicial to petitioner to warrant a new trial. Prior to retrial, trial counsel filed a motion to dismiss the charges on Double Jeopardy grounds, and a motion to recuse the trial judge. That judge denied the motion to dismiss but eventually recused himself, and the case was then reassigned to another judge of the Court of Common Pleas. After an unsuccessful interlocutory appeal to the Superior Court of Pennsylvania from denial of the motion to dismiss, the Court scheduled the retrial.

b. Second trial

Jury selection began on January 21, 2005, and lasted two (2) days. As is the customary practice in the Court of Common Pleas of Allegheny County, jury selection was by individual voir dire conducted by counsel in a common jury selection room, without the presiding judge. See Commonwealth's Answer to Petition for Writ of Habeas Corpus, (ECF No. 5), at 25.

Trial counsel's affidavit from state court post-conviction proceedings avers the following: Sometime during the mid-afternoon on the first day of jury selection, the presiding trial judge

entered the anteroom immediately adjacent to the common jury selection room. Upon observing trial counsel speaking to Mrs. Constant, the judge ordered her to leave the jury selection room, stating that neither she nor the general public were permitted to be present, although members of the media could attend. At the end of the first day, trial counsel objected to Mrs. Constant's exclusion on the record. The Court affirmed its decision to exclude Mrs. Constant, and all members of the general public, from jury selection. No member of the public and no representative from the media were present on the second day. Petition for Writ of Habeas Corpus (docketed as Motion Under 28 U.S.C. § 2254 To Vacate And Set Aside Sentence By A Person In State Custody, (ECF No. 1) ("Section 2254 Motion")), Trial Counsel's Affidavit, Exhibit 6 (ECF No. 1-6) at ¶¶ 8, 10-11, 14; Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1-7) at 165-172.

Counsel's affidavit describes the jury selection room as accommodating approximately 200 people, with many chairs and at least two tables, and a row of chairs against the wall to the right of the public doorway. Trial counsel further attests that, other than the prospective jurors, on the first day of jury selection only one local reporter and petitioner's wife were present and seated in the common jury selection room, and the "remaining chairs were unoccupied." Trial Counsel's Affidavit, Exhibit 6 (ECF No. 1-6) at ¶ 6.

The Commonwealth*fn2 concedes that Mrs. Constant had been excluded from jury selection, and does not dispute trial counsel's averments. Commonwealth's Answer to Petition for Writ of Habeas Corpus (ECF No. 5), at 24-27, 29-30. The description of jury selection set forth in the Commonwealth's Answer is consistent with counsel's affidavit, as is the transcript from voir dire, including the following exchange:

TRIAL COUNSEL: Earlier I asked -- my client's wife, Mrs. Constant, asked me is it okay to sit in the jury room, and I said the following to her --

THE COURT: . . . I am not concerned about that. I understand what you did and why you did it. The bottom line is based on what has been going on. Unless they have specific approval and there is a reason for them to be there, they are not going to be there, and of course the press can come in, but members of the general public are not permitted in jury selection.

TRIAL COUNSEL: Can I get your approval to have the wife sit in there?

THE COURT: No.

TRIAL COUNSEL: I said don't talk to anybody, just sit there and listen and don't say a word to anybody.

THE COURT: Then what purpose is there for her being there? What purpose? If she is not going to participate in jury selection, which she isn't allowed there anyway, what purpose is there for her to be there?

TRIAL COUNSEL: Because she loves her husband and wants to be there.

THE COURT: I understand that.

TRIAL COUNSEL: I want you to know that I told her that it is all right.

THE COURT: Don't worry about that. And I am not concerned about the fact that you told her that it was all right. Nobody asked me. If they had asked me I would have said no.

TRIAL COUNSEL: I thought it was a public thing.

THE COURT: It is public to the extent that the media is generally allowed to participate, but unless, which we do often as whole individual voir dire in an open courtroom where anyone can walk in, the public aspect of it is pretty much eliminated. We don't have space. All right. See you tomorrow.

Commonwealth's Answer to Petition for Writ of Habeas Corpus (ECF No. 5), at 25-26.*fn3

The next day, trial counsel "note[d] for the record that Susan Constant is not in the room today because the judge, as he pointed out yesterday, and as we interacted in [the trial court's] courtroom, didn't let her in and the media isn't in here today either, although yesterday there was a reporter in there. So there is nobody here today." Id. at 26; Section 2254 Motion, Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1-7).

On January 25, 2005, Mr. Constant's retrial commenced on the same charges as in his initial trial, save for the Simple Assault charge on which he had been acquitted. On February 2, 2005, the jury once again found Mr. Constant guilty of two (2) counts of Attempted Murder, two (2) counts of Aggravated Assault - Serious Bodily Injury, one (1) count of Aggravated Assault - Causing Bodily Injury and one (1) count of Recklessly Endangering Another Person. The trial Court denied Constant's post trial motion for a new trial. On the issue of exclusion of the public from jury selection, including Mrs. Constant, in violation of petitioner's right to a public trial, the trial Court stated in its Opinion denying post-trial motions:

[T]he defendant's claim that he was somehow prejudiced because his wife was barred from appearing at voir dire is without merit. First, the record does not reflect that his wife was not permitted in the courtroom during jury selection. Nor does the record reflect that he ever raised with this Court the issue of his wife's presence. Accordingly, any claim concerning his wife's presence in the Courtroom during voir dire is waived. Moreover, the defendant has failed to indicate how he could possibly have been prejudiced if, as he contends, his wife was not permitted in to be present during jury selection. In the absence of any prejudice, the defendant would not be entitled to a new trial on the basis of any error in the selection of the jury.

Commonwealth's Answer to Petition for Writ of Habeas Corpus, Appendix, Vol. III, (ECF No. 7-8) at 9 of 29.

2. Superior Court's Decision on Direct Appeal

The Superior Court of Pennsylvania affirmed the conviction and judgment of sentence. On the Double Jeopardy issue, Superior Court held that "because Constant was granted a new trial on his own Motion, he has waived his claim that the constitutional protection against double jeopardy bars his retrial." Id. at 816. The Pennsylvania Supreme Court "has allowed no exceptions under this procedural scenario, and we are bound by its holdings." Id.

With respect to exclusion of Mrs. Constant and the public in general from jury selection, the Superior Court affirmed "albeit on different grounds": (1) "the trial court permitted the media to attend voir dire proceedings"; (2) the proceedings were transcribed by a court reporter"; and (3) in light of "the trial court's assessment of the space limitations, we cannot conclude that Constant was denied his right to a public trial because of the exclusion of a member of the general public, [his wife], from the proceedings. Accordingly, Constant is not entitled to relief on this claim." Id. at 817 and n.2.

Additionally, Superior Court explicitly declined to follow the "federal court decisions regarding the attendance of family members at court proceedings" upon which petitioner relied in his Brief for Appellant, which featured controlling United States Supreme Court precedent: Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court of California ("Press-Enterprise I"), 464 U.S. 501 (1984).*fn4 Despite Mr. Constant's proffer of Waller and Press-Enterprise Co. I as the principal controlling precedent in his Brief for Appellant, Superior Court stated:

Constant directs this Court's attention to several federal court decisions regarding the attendance of family members at court proceedings. Constant cited no Pennsylvania state court decisions supporting his contention. See Commonwealth v. Giffin, 407 Pa. Super. 15, 595 A.2d 101, 107 (1991) (stating that in the absence of a ruling on a particular question by the United States Supreme Court, the decision of a federal intermediate appellate panel or a federal district court is not binding on Pennsylvania courts). We decline to apply the federal court's holdings under the circumstances presented in this case.

Constant, 925 Pa. Super. at 817, n.3.

On June 13, 2007, Mr. Constant filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on September 25, 2007. The time to petition the United States Supreme Court for a writ of certiorari expired on December 26, 2007.

3. Post-Conviction Relief Act ("PCRA") Proceedings and PCRA Court Decision Mr. Constant filed a timely PCRA Petition raising two claims: trial counsel was ineffective because the effect of filing and pursuing a motion for a new trial was to waive his claim that the Double Jeopardy Clause bars retrial; and the Pennsylvania trial and Superior Courts violated clearly established federal law which guarantees a defendant's right to a public trial, including jury selection. Section 2254 Motion, PCRA Petition, Exhibit 8 (ECF No. 1-8).

On January 15, 2010, the PCRA Court filed a Memorandum Opinion and Notice of Intention to Dismiss the PCRA Petition. Section 2254 Motion, Memorandum Opinion and Notice, Exhibit 9 (ECF No. 1-9). According to the Notice, the Court intended to deny PCRA relief on the Double Jeopardy claim because "the underlying claim does not have arguable merit. The charges would not have been dismissed had counsel sought dismissal because retrial was the proper remedy . . . [and counsel] was, therefore, not ineffective ...


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