United States District Court, Eastern District of Pennsylvania
REPORT AND RECOMMENDATION
LINDA K. CARACAPPA UNITED STATES MAGISTRATE JUDGE
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution Coal Township, in Coal Township, Pennsylvania. For the reasons which follow, it is recommended that the petition be DISMISSED.
I. PROCEDURAL HISTORY
On August 16, 2005, following a jury trial before the Honorable Rose Marie DeFino-Nastasi of the Philadelphia County Court of Common Pleas, petitioner was found guilty of attempted murder, aggravate assault, possessing an instrument of crime, possession with intent to deliver a controlled substance, and violation of the firearms act. As set forth by the trial court, the following facts were established at petitioner’s trial:
On April 1, 2003, at approximately 9:15 A.M., Michael Hyrnko was driving his truck on Old York Road in Philadelphia. His mother, [Louise] Hyrnko, was in the passanger seat. As Mr. Hyrnko approached a stop sign at the intersection of Old York Road and Germantown Avenue, a tan car hit the rear of his truck. Mr. Hyrnko got out and walked to the rear of his truck to check for damage. At the same time, the driver of the tan car, later identified as [petitioner], got out of the tan car and had words with Mr. Hyrnko. [Petitioner] started coming toward Mr. Hyrnko with his hands up like he was ready to hit Mr. Hyrnko. Mr. Hyrnko hit [petitioner] and knocked him to the ground.
Mr. Hyrnko then walked back to his truck. As he was getting back into his truck, [petitioner] came up behind him, put a gun to Mr. Hyrnko’s neck, said, “[W]hat now, pussy[?]”, and pulled the trigger of the gun.
Mr. Hyrnko was taken to Temple University Hospital. He was at Temple for two (2) weeks before getting transferred to Jefferson Hospital. He was in Jefferson Hospital for two (2) months before getting transferred to Magee Rehabilitation. He was in Magee Rehabilitation for four (4) months. As a result of the shooting, Mr. Hyrnko is a quadriplegic. He is only able to move his head, neck and shoulders.
Mr. Joseph Farley and Ms. Andrea Yorro were standing on the corner of Old York Road and Ontario Street having a conversation. Mr. Farley, an eyewitness to the traffic accident and the shooting, placed a 911 call. Ms. Yorro, a crossing guard, saw the traffic accident and wrote down the license tag of the shooter’s car. She did not see the shooting, but she heard it. The license plate number was EKF 9797, and she described the car as being a beige Chevrolet Malibu. She testified that there was only one (1) person in the car but she made no identification.
Mr. Farley and Ms. Yorro were both at East Detectives Division giving statements concerning the incident when they were taken to the Enterprise car lot at Delaware Ave[nue] and Spring Garden Street to make an identification of a car that was there. As Mr. Farley was telling the police that the car that was involved in the incident was there, Mr. Farley saw [petitioner] and told the police that the shooter was right there in front of them. Ms. Yorro identified the car as the shooter’s car.
Mr. Louise Hyrnko gave a statement to the police at approximately 10:00A.M. on the day of the incident. She was later transferred to the Enterprise car lot on Delaware Avenue and Spring Garden Street where she identified [petitioner] as the person who shot her son.
On the date of the incident, Corporal James Keenan received a radio call reporting a man down because of a shooting. He received flash information to be on the lookout for a beige Chevy or Nissan Altima with license number EKF-9797 and for a light skinned black male in his later forties. He received information from police radio that the car was rented out of Enterprise Leasing. He called the corporate headquarters of Enterprise Leasing and found out that the car was leased to [petitioner]. At approximately 10:35 A.M., that same day, Enterprise Leasing contacted Corporal Keenan. Based on the information received, Corporal Keenan and Police Officers Drew Oldrati and [Christopher] Sarris went to the Enterprise car lot. When Corporal Keenan arrived at the Enterprise car lot at approximately 11:00 A.M., he saw [petitioner] and another man taking boxes of clothing out of a beige Chevy Malibu and putting the boxes of clothing into a blue Chevy Cavalier. Corporal Keenan and Police Officers Oldrati and Sarris stopped [petitioner] and the other man and took them in to custody.
Detective Frank Green, assigned detective to the case, obtained a search warrant for the beige Chevy Malibu and the blue Chevy Cavalier. Detective Green and Sergeant Brosnan executed the search warrant on the cars at the police garage at approximately 9:35 P.M. From inside the Chevy Malibu, a brown paper bag was recovered that contained two gray vitamin jars with GNC labels. The jars contained 96 tinted packets of cocaine. Also recovered from that vehicle were samples of paint from the bumper and black bomber jacket.
(Trial Court Opinion, 8/25/06, at 9-11.)
On November 3, 2005, petitioner was sentenced to an aggregate term of twenty to forty years’ incarceration.
Petitioner filed a direct appeal to the Superior Court. On June 15, 2007, the Superior Court affirmed petitioner’s judgment of sentence. On May 28, 2008, the Pennsylvania Supreme Court denied petitioner’s petition for allowance of appeal.
On December 15, 2008, petitioner filed a timely pro se petition under the Post Conviction Relief Act (PCRA) § 9541, et seq. Counsel was appointed to represent petitioner, and subsequently submitted a no-merit letter pursuant to Commonwealth v. Finely, 379 Pa. Super. 390, 550 A.2d 213 (1988) (en banc), with a petition to withdraw. The PCRA court dismissed the PCRA petition without a hearing. On March 28, 2011, the Superior Court affirmed the PCRA court dismissal of the petition. On November 1, 2011, the Pennsylvania Supreme Court denied petitioner’s request for allocatur.
Petitioner filed the instant timely petition for Writ of Habeas Corpus on November 21, 2011. Petitioner supplemented the instant habeas petition on February 16, 2012. Petitioner claims:
(1) Trial Court erred in denying petitioner’s motion to suppress the identification evidence of Joseph Farley;
(2) Trial Court erred in admitting evidence of the 911 telephone call, over petitioner’s counsel’s objection;
(3) Trial Court erred in overruling petitioner’s counsel’s objection to the Commonwealth’s reference, during closing argument, to petitioner’s pre-arrest silence; and
(4) Ineffective assistance of trial counsel for failing to investigate adequately the criminal record of ...