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Collins v. Diguglielmo

United States District Court, Third Circuit

July 1, 2013

DAVID DIGUGLIELMO, et al., Respondents.



Before the Court are Petitioner’s Objections to the Report and Recommendation (“R&R”) filed by United States Magistrate Judge Lynne Sitarski. Petitioner objects to Judge Sitarski’s resolution of his claims involving the exclusion of a photograph in his underlying criminal trial. For the reasons that follow, the Court will overrule Petitioner’s Objections, approve and adopt the R&R, and dismiss the Petition.

I. Background[1]

On October 21, 1994, a jury sitting in the Philadelphia County Court of Common Pleas found Petitioner Ronald Collins guilty of two counts of first degree murder, and one count each of aggravated assault, possession of an instrument of a crime, and recklessly endangering another person.[2] After completing post-conviction review in state court, [3] Petitioner filed a pro se Petition for Writ of Habeas Corpus and a motion for appointment of counsel in this Court.[4] The Court granted the motion and appointed counsel, who filed an Amended Petition.[5]

Petitioner was dissatisfied with habeas counsel’s failure to include certain claims in the Amended Petition; he asserted that counsel was not adequately representing his interests and requested that the Court appoint Michael Wiseman (his PCRA counsel) to represent him.[6]Thereafter, Mr. Wiseman filed a Motion for Appointment of Substitute Counsel on Petitioner’s behalf.[7] After a hearing, the Court granted the motion and appointed Mr. Wiseman to represent Petitioner.[8] The Court then ordered newly appointed counsel to file any amendments to the Amended Petition or a supplemental petition within 60 days.[9] Counsel filed a motion to amend the Amended Petition, with a proposed Second Amended Petition attached.[10]

The Second Amended Petition asserts the following claims:

(I) The state trial court violated Pennsylvania evidence law and Petitioner’s right to present a defense secured by the Due Process Clause, when it refused to admit a photograph of Petitioner’s co-defendant holding the murder weapon. The Commonwealth also violated Due Process, and Brady v. Maryland, when it failed to disclose information to the defense that would have resulted in the admission of the photo. State court trial and direct appeal counsel were ineffective for failing to litigate this issue at trial, post-verdict motions[, ] and on direct appeal.
(II) The improper admission of hearsay statements violated Petitioner’s Sixth Amendment right to confrontation.
(III) Petitioner’s right to Due Process of Law was violated by the misjoinder of offenses.[11]

Respondents opposed Petitioner’s request for leave to file a Second Amended Petition.[12]The Magistrate Judge thereafter ordered that Respondents file a supplemental response, addressing each of the claims in the Second Amended Petition, and Respondents timely filed that response.[13] Without making a specific recommendation as to whether the motion to amend should be granted, but finding that the amendment relates back to the original petition and was therefore not untimely, the Magistrate Judge issued the R&R, recommending that the claims in the Second Amended Petition be denied.[14]

A. Facts Relevant to Petitioner’s Objections

The following facts were set forth by the Supreme Court of Pennsylvania:

The events in this case revolve around a second floor apartment at 643 North 60th Street in West Philadelphia, where drugs were regularly sold and consumed. Marc Sisco maintained the apartment and managed the drug trade that occurred on the premises. Marc’s brother, David Sisco, also lived in the apartment. [Petitioner] was a regular visitor to the apartment and often sold cocaine from that location. [Petitioner’s] associates, Shawn Wilson and Dawn Anderson, also frequented the apartment.
Early in the morning on March 28, 1992, [Petitioner] and Marc Sisco were in the apartment and began arguing. [Petitioner] pointed a gun at Marc Sisco and shot him five times. When police arrived at the apartment, they found Marc Sisco lying on the bathroom floor. Medical personnel transported him to a hospital where he recovered from his wounds. Police recovered one bullet from the bathroom floor in the apartment and two bullets from Marc Sisco’s body at the hospital. Two bullets remain inside him.[15] After the shooting, David Sisco assisted the police in their investigation. He discussed the incident with a detective at the police station and accompanied the detective to the apartment, where he described how the shooting occurred.
[About a week later, Petitioner accused a woman of stealing drug money from him. The woman denied the accusation and stated that Dawn Anderson had stolen the money. Three days later, at approximately 8:00 p.m. on April 5, 1992, while leaving a friend’s house for work “around the corner” (Marc Sisco’s apartment), Anderson] told [a friend] that she would bring some drugs back “if they don’t kill me” [and stated] that “they shot her in the elbow one time and they said they were going to shoot her in the head.” [Anderson’s friend testified at trial that she] understood Anderson’s reference to “they” to mean [Petitioner] and Wilson.
Later that evening, Gwendolyn Oliver accompanied [Petitioner] and Shawn Wilson to Marc Sisco’s apartment. After talking and drinking beer for a short time in the apartment, Oliver, [Petitioner] and Wilson decided to go to a hotel. Oliver left the apartment to make a call from a telephone booth before going to the hotel. While at the phone booth, Oliver heard approximately five gun shots come from the apartment. [Petitioner] then ran out of the apartment, called to Oliver, and hailed a cab. Wilson exited the apartment a few moments later and joined [Petitioner] and Oliver in the cab.
While riding in the cab, [Petitioner] boasted that he had “served” someone, which Oliver understood to mean that he had harmed someone. Wilson responded that [Petitioner] had given them what they deserved, and the two men exchanged a “high-five.” [Petitioner] then asked Wilson if he had seen “the blood squirting out” and showed blood stains on his shirt sleeve to Wilson. The trio [then] stopped at a [friend’s house where Petitioner left his gun] for safekeeping. . . .
On the morning of April 6, 1992, police arrived at Marc Sisco’s apartment and discovered David Sisco unconscious and covered with blood on the bed. He had been shot approximately seven times and died at the hospital a few hours later. In another room, police found Dawn Anderson unconscious and covered with blood on a bed. She had been shot once in the head and died the following day. Police recovered two bullets from David Sisco’s body, one bullet from Anderson’s head and several bullets from the apartment. Ballistics evidence showed that a single firearm had fired [the bullets involved in the David Sisco and Dawn Anderson murders, as well as in the Marc Sisco assault].[16]

Sean Wilson was tried separately as a co-conspirator and accomplice to these crimes.[17]During his trial, Petitioner attempted to establish that Wilson was the shooter. To this end, Petitioner sought to introduce an undated photograph found with Dawn Anderson’s body, which showed Wilson holding the murder weapon.[18] The prosecutor immediately requested a sidebar conference and the following discussion took place:

Mr. Cameron: Just to protect the record, Mr. Drost wants to show a single photographer [sic] of Shawn Wilson to the jury. To some extent, that may impact that defendant’s right to the extent you are showing a suggestive photo. I don’t know if there are any I.D. issues. Mr. Wilson has not been tried. He does not have counsel here.
Mr. Drost: Mr. Wilson will have an issue to bring up at a Motion to Suppress identification should he wish one.
The Court: What does of a picture of Shawn Wilson have to do with this testimony?
Mr. Drost: Picture of Shawn Wilson – initially . . .
The Court: What does Shawn Wilson have to do with his testimony?
He said Shawn Wilson was not out there when the shooting took place, he says Shawn Wilson was in the apartment.
Mr. Drost: And the picture is with Shawn Wilson with a gun, which appears to be a revolver, which appears to be blue steel, which appears to be approximately four inches in length.
The Court: So you want to imply that it was Shawn Wilson who shot him and not this defendant?
Mr. Drost: And it also goes – the Commonwealth is bringing up the issue of identity as Mr. ...

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