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Lowry v. Weneronicz

United States District Court, W.D. Pennsylvania

February 13, 2014

ANDRE C. LOWRY, Petitioner,
v.
MICHALE WENERONICZ; the ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA; and the DISTRICT ATTORNEY OF ALLEGNEY COUNTY, Respondents.

MEMORANDUM ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

LISA PUPO LENIHAN, Chief District Judge.

I. CONCLUSION

For the reasons stated herein, the Petition for Writ of Habeas Corpus (ECF No. 4) will be denied and a certificate of appealability will also be denied.

II. FACTUAL AND PROCEDURAL HISTORY

Petitioner, Andre Lowry (hereinafter referred to as "Lowry" or "Petitioner"), a state prisoner currently incarcerated in Graterford, Pennsylvania under an April, 1998 sentence of life imprisonment for first degree murder, has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Even affording Petitioner all pro se consideration, each of his claims is meritless for reasons apparent in the documents of record before this Court.

The facts of the crimes as set forth by the State Court[1] are as follows:

On December 20, 1996, Petitioner was involved in an altercation with the murder victim, Jouron Miller ("Miller"), at Gene and Eileen's Bar in Braddock, Allegheny County, Pennsylvania. Earlier that evening Miller was at the bar with David Hawes ("Hawes") but they left and walked to the house of Lyon Tinsley ("Tinsley"), Miller's cousin. There, Miller related that Petitioner had pulled a gun on him in the men's room. The three men returned to the bar, as Miller wanted to confront Petitioner. Miller approached Petitioner and a verbal argument escalated to mutual pushing. An escalating fight amongst several additional patrons in the crowded bar then continued into the street. Hawes testified that once outside he walked around the corner from the bar and after hearing gunshots saw officers apprehend Petitioner and order him to the ground. Tinsley testified that he was pushed out of the bar by the crowd and Miller came out shortly thereafter with a bloody nose and followed by Petitioner. Miller and Petitioner continued to exchange words and, according to Tinsley, Petitioner fired a gun five or six times at Miller, who fell to the ground.

At the time of the shooting, approximately 1:25 a.m., Officer Dominic DiLeo ("Officer DiLeo") of the Braddock Borough Police Department was on duty in his police vehicle at a red light at an intersection next to the bar, just down the street from the Braddock Police Station. Nothing was obstructing his view. He observed six to ten people rapidly exit the bar. He also saw a group of several black males standing on the sidewalk with the one in the middle - later identified as Petitioner - wearing a Pittsburgh Steeler jersey with white lettering and the number "10" on it. Officer DiLeo heard five or six shots and his attention was drawn to Petitioner because his knees were bent and his body made several "jerking" motions, moving repeatedly in a manner consistent with absorbing recoil from firing a gun. Petitioner was about ten feet away from Miller. Officer DiLeo observed Miller fall backwards and someone then holding him. Officer DiLeo saw Petitioner leave the area quickly.

Officer DiLeo immediately radioed dispatch, advised that shots were fired, and gave a description of Petitioner and his attire, as identifying the suspected shooter. Officer DiLeo then immediately went to the victim and noticed two gunshot wounds to Miller's trunk; Miller was transported to the hospital and died of his wounds. Officer DiLeo heard over the radio that Petitioner had been apprehended right around the corner, near the police station. An officer working in the station heard the call and headed down the street, and saw Petitioner "slowing down from a run to a fast walk" near a jitney stand. He ordered Petitioner to the ground. Petitioner was unarmed.[2] Officer DiLeo ran up and identified Petitioner as the suspect. Officer DiLeo patted Petitioner down, handcuffed him and read him his Miranda rights.

The person Officer DiLeo saw holding the victim after the shooting was Lyon Tinsley. Tinsley estimated he was approximately twelve feet away from Petitioner, whom he knew by name, when the shooting began. Tinsley testified that he saw Petitioner shoot the victim. He stated that the area was lit well enough for him to see and identified Petitioner as wearing a Steeler's jersey with the number "10" on it. Four hours later, at 5:28 a.m., county detectives drove Tinsley past the police station while Petitioner was standing in the doorway of the police station, cuffed, and flanked by two police detectives. Tinsley identified Petitioner and stated there was no doubt in his mind that Petitioner was the man who shot the victim.

In an initial interview by Officer James Morton ("Officer Morton") at the Braddock police station around the corner from the bar, Petitioner denied having shot Miller. But he gave a different statement during another interview after he was transferred to the homicide office. In an interview with Allegheny County Police Officers Kevin Paul ("Officer Paul") and Jim Cvetic ("Officer Cvetic"), at which Officer Cvetic took notation of Petitioner's responses, Petitioner gave a statement (transcribed from Officer Cvetic's notes but unsigned) that Miller was involved in an altercation at the bar, but left and returned, and came up to Petitioner and begin "pointing at" him. He asserted that a fight broke out in the bar, that he tried to leave, and was hit several times and forced out of the bar. He said he heard gunshots and thought he'd been hit while still inside the bar. Id. at 15. Petitioner asserted that he grabbed a handgun from someone (David Lyons) as he was leaving the bar and believed the safety was on. When Miller and two others were making aggressive gestures at him outside the bar, Petitioner told them he had a gun and pointed it in the air, but as he lowered the gun, he heard someone firing shots and the gun in his hand "just started going off", which surprised him. Petitioner remembered the gun going off and shooting the victim in the midsection. Petitioner said he dropped the gun and walked around the corner to a jitney station, and that the shooting was unintentional. Id. at 16.[3] At trial, however, Petitioner again denied shooting Miller, or having a gun in his possession that night, or being in a continuing altercation with Miller or others outside the bar. He asserted that "some guy named Rob" shot Miller and that, on his way to his car which was parked near the jitney stand, Petitioner saw Rob running up the hill immediately before the officer stopped Petitioner instead.

In July, 1997, Petitioner was charged with one count of criminal homicide and two counts of uniform firearm violations (former convict not to possess firearms, 18 Pa. Cons. Stat. Ann. § 6105, and firearms not to be carried without a license, 18 Pa. Cons. Stat. Ann. § 6106 - the violation of Uniform Firearms Act charge under Section 6105 was severed from the other charges prior to trial). See Commonwealth's Answer at 2.

On September 26, 1997, Petitioner's counsel filed an Omnibus Pretrial Motion asserting that the on-scene identification of Petitioner by Tinsley should be suppressed and that there was no probable cause for the arrest. See id. at 2 (citing Omnibus Pretrial Motion attached as Ex. 3). After a multiple-day hearing that Fall, the suppression motion was denied by Order of January 20, 1998.

A jury trial was held from January 20-26, 1998. Petitioner was found guilty of murder in the first degree and of the remaining firearms violation (not to be carried without a license). In April, 1998, Petitioner was sentenced to a mandatory term of life imprisonment on the first degree murder conviction, and a consecutive term of 3-1/2 to 7 years incarceration for the firearms conviction. See id. at 3.

In April 24, 1998 Petitioner's counsel filed a post-sentence motion (the "April 1998 Post-Sentence Motion") which was denied by operation of law on August 31, 1998. Said Motion alleged that:

(1) The trial court erred by failing to suppress statements obtained from the defendant which were the fruit of an arrest unsupported by probable cause;
(2) The trial court erred in failing to suppress the in-court identification by Tinsley, which was tainted by an unduly suggestive identification procedure and fruit of the arrest without probable cause;
(3) The trial court erred by allowing impeachment based on adjudications of delinquency made when defendant was 13 years old;
(4) The evidence of record was insufficient to support the verdict of first degree murder; and
(5) The verdict was against the weight of the evidence.

See Commonwealth's Answer in Response to Petitioner's Supplemental Brief at 3.

In May, 1998 Petitioner filed his Notice of Appeal and in July, 1999, Petitioner, represented by counsel, properly filed a Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) and the Court issued its Opinion on the Concise Statements on July 29, 1999. See Commonwealth Exhibit 8.

On October 4, 1999 Petitioner's counsel filed a Brief for Appellant with the Pennsylvania Superior Court raising the following claims:

1. Identification of Tinsley was improperly admitted in light of uncounseled and suggestive one-on-one confrontation.
2. Juvenile delinquency adjudication was improperly admitted where it occurred eight years prior to trial when Lowry was 13.

On April 13, 2000, the Pennsylvania Superior Court affirmed the judgment of sentence. See id. at 5 (citing Opinion attached as Ex. 11) (hereafter "April 13, 2000 Superior Court Opinion on Direct Appeal"). Petitioner's Petition for Allowance of Appeal to the Pennsylvania Supreme Court on these two issues was filed on May 19, 2000 and denied on August 30, 2000. The Petitioner did not file a Petition for Writ of Certiorari with the Supreme Court of the United States.

On January 24, 2001, Petitioner filed a timely pro se Petition for Post Conviction Relief pursuant to the Pennsylvania Post Conviction Relief Act (the "PCRA"), 42 Pa. Const. Stat. § 9541, et seq. Counsel was then appointed to represent Petitioner, but on January 13, 2003 the Trial Court dismissed the Petition due to counsel's failure to file an amended petition. See Commonwealth's Answer at 6 (citing Ex. 16). On February 5, 2003, Petitioner filed a pro se Notice of Appeal regarding the dismissal, and the trial court's opinion was dated April 28, 2003. See id. (citing Ex. 19). On September 23, 2003 Petitioner filed a pro se brief on appeal to the Pennsylvania Superior Court asserting that (1) the lower court erred by dismissing his PCRA Petition without appointing a substitute counsel to file an amended petition or a Finley letter, (2) he had been provided ineffective assistance of counsel in repeated respects, and (3) the trial court erred in not declaring a mistrial following the admission of hearsay evidence. See id. at 6-7 (citing Ex. 42). On March 15, 2004, the Superior Court vacated the trial court's January 13, 2003 dismissal and remanded the matter to the Court of Common Pleas for the appointment of new counsel, who - on July 18, 2007 - filed an Amended PCRA Petition (the "2007 Amended PCRA Petition").

The 2007 Amended PCRA Petition raised the claim that "Petitioner's appellate counsel was ineffective for failing to raise that the Commonwealth did not prove beyond a reasonable doubt that Petitioner was guilty of First Degree Murder." Id. at 8 (citing Ex. 22 at 13). An evidentiary hearing was held on September 25, 2007 and following further filings by counsel the Petition was denied by the PCRA Court's order dated December 19, 2008 (Machen, J.). On February 12, 2009, Petitioner filed a Concise Statement of Matters Complained of on Appeal regarding the post-conviction court's dismissal of his PCRA Petition, and on April 24, 2009 the trial court filed an Opinion addressing the issue. See id. (citing Ex. 28). Petitioner's counsel submitted his Superior Court appeal brief on June 22, 2009, raising the same issue and the Superior Court issued its Memorandum Opinion on January 14, 2010 affirming the judgment of sentence. See id. at 9 (citing Ex. 30-31). Petitioner filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania which was denied on August 12, 2010.

On September 30, 2010 Petitioner filed a Motion for Post Conviction Relief which was dismissed by the Court on November 23, 2010, on grounds that it was his second PCRA Petition, that no exceptions applied, and the court was therefore without jurisdiction. See Commonwealth's Answer in Response to Petitioner's Supplemental Brief at 8 (citing Commonwealth Ex. 35-36). Petitioner then filed his Notice of Appeal and Concise Statement in January, 2011 and the Trial Court addressed them by Opinion of March 11, 2011. See Commonwealth Ex. 40. On May 26, 2011, Petitioner filed a pro se Brief to the Pennsylvania Superior Court alleging numerous claims of ineffectiveness of counsel. See id. at 9-10. The Superior Court affirmed by Memorandum Opinion of September 13, 2011, which noted the claims to be untimely. See Commonwealth Ex. 46).

Meanwhile, in February, 2011, Petitioner filed his Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. (ECF No. 4.)[4] Petitioner also filed a Motion to Stay which was denied on March 29, 2011. The Petition raises the following:

1. Identification of Petitioner by Lyon Tinsley was improperly admitted in light of the uncounseled and suggestive one-on-on confrontation at the Braddock police station, as well as the subsequent in court identification where Tinsley testified on cross-examination during a September 30, 1997 suppression hearing that he was told by police officers they "got the guy that did it" and Tinsley was supposed to "identify him".
2. Petitioner's trial and appellate counsel provided ineffective assistance for failure to challenge the competency of the court's jurisdiction due to lack of probable cause in that the magistrate judge's actions, leading to Petitioner's detention, were based on Affidavits by police detectives that contained material, deliberately-misleading misstatements ( i.e., reporting time of death as 1:41 a.m. instead of 2:00 a.m.; stating that there were witnesses available to testify against Petitioner at future court proceedings; stating that Petitioner was taken back to crime scene and was identified by an eyewitness (reiterating unlawfulness of identification by Tinsely and asserting "no independent basis to establish Petitioner's ...

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