United States District Court, Eastern District of Pennsylvania
William H. Yohn Jr., Judge
Wilfredo Santiago, an inmate at the State Correctional Institution at Frackville, has filed a petition for a writ of habeas corpus. Santiago was convicted of aggravated assault, attempted burglary, and resisting arrest in the Court of Common Pleas of Philadelphia, and sentenced thereafter to a total of 21-42 years incarceration. The magistrate judge issued a report and recommendation recommending the writ be granted with respect to the aggravated assault conviction, with remand to the Court of Common Pleas for retrial. After conducting a de novo review of the magistrate judge’s report and recommendation, and upon careful consideration of the petitioner and the respondents’ objections to the report and recommendation and the parties’ replies thereto, I will sustain the respondents’ objections and deny the petition for relief.
I. Factual and Procedural Background
A. Conduct and Arrest
The Pennsylvania Superior Court, in reviewing Santiago’s direct appeal, summarized the events which led to his arrest:
In the late hours of January 17, 2003, [Santiago] met his estranged wife, Jeannette Rodriguez, in the kitchen at the Snapperhead Bar at 2126 East Lehigh Avenue in Philadelphia, where Ms. Rodriguez worked as a cook. The two began to argue. The argument grew loud enough to attract the attention of the bar’s owner who asked [Santiago] to leave. [Santiago] asked the owner for more time to speak with his wife, and the owner obliged him. After a few minutes, the argument again became heated, and several people including the bar owner ran to the kitchen. They found [Santiago] with Ms. Rodriguez, who was crying and had a fresh visible cut near her eye. The owner again asked [Santiago] to leave, and [Santiago] said he was sorry and again asked for time to speak to his wife. Again he was allowed to remain. Finally, after another ten minutes, [Santiago] again fought physically with Ms. Rodriguez. This time several people were needed to pull [Santiago] away from Ms. Rodriguez while he swung at her, and Ms. Rodriguez left the premises soon thereafter. Police arrived at the bar and spoke with [Santiago], but they did not arrest him and he thereafter left.
Approximately 45 minutes later, two police officers were dispatched to 6607 Souder Street, a house owned by Ms. Rodriguez and located approximately 5.4 miles from the bar. They were responding to three emergency calls reporting, respectively, a domestic incident, an act of vandalism in progress, and a break in. Upon arrival at Ms. Rodriguez’s house, police observed [Santiago] banging on the front door and yelling. After exiting their vehicle and approaching [Santiago] on foot, the police heard further yelling inside of the house, including a loud female voice screaming “he’s trying to break in” and “he just beat the s*** out of me.” They also observed that, of three or four panes of glass on the door, one had been broken and another was missing. Approaching closer, the police saw the screaming woman through the door, and noticed that she had injuries to her face. At this time, the police observed blood on [Santiago]’s shirt and right arm. The police also observed broken glass on the top landing where [Santiago] was standing and fresh blood on the door with the broken window pane.
… The police moved [Santiago] away from the door by grabbing him by his arms and telling him that they wanted him to sit in the police car while they assessed the situation. [Santiago] complied until he sat down in the back seat of the police car with his legs still out the door, and the officers asked him to lift his legs into the car so they could shut him inside. [Santiago] repeatedly refused to lift his legs into the vehicle, and then leapt from the car onto one of the officers and began wrestling with him in an effort to break free and run. The officers called for backup, but after briefly wrestling [Santiago], the two police officers were able to handcuff him. The police found that [Santiago] had no keys to 6607 Souder Street.
During the officers’ struggle with [Santiago], Ms. Rodriguez stayed inside the house. Her daughter and her daughter’s boyfriend were present during the incident and remained in the house as well. The police attempted to speak with Ms. Rodriguez after they secured [Santiago] in the squad car. She was too upset to speak. After five minutes, she regained sufficient composure to continue. She then related to police that [Santiago] did not live at the house and that he had beaten her earlier that night. The police took Ms. Rodriguez to the emergency room. They arrested [Santiago] and charged him with aggravated assault, attempted burglary, and resisting arrest.
(internal quotations to trial court summary omitted)
B. Trial and Conviction
The Pennsylvania Superior Court also summarized the circumstances of Santiago’s conviction:
Ms. Rodriguez did not testify at trial. The arresting officers testified she appeared frightened and upset when they arrived, and screamed through the door at them that [Santiago] was “trying to break in” and had “just beat the s*** out of me.” The court denied [Santiago]’s hearsay objection to this testimony, concluding the statements were admissible under the excited utterance exception. The court concluded Ms. Rodriguez’s subsequent statements to police at the scene were admissible on the same basis.
Additionally, the Commonwealth introduced a medical chart detailing Ms. Rodriguez’s emergency room treatment. The medical record showed she suffered swelling, bruising, and lacerations to her right jaw and left eye. She suffered an accumulation of blood inside her left eye and an abrasion of her left cornea. X-rays of her right jaw revealed no broken bones. She also had a laceration on her right hand which required seven stitches. The treating physician prescribed pain medication, antibiotics, and an eye patch. … The jury convicted [Santiago] of aggravated assault, attempted burglary, and resisting arrest. . . . On January 20, 2004, the court sentenced [Santiago] to 10-20 years imprisonment for aggravated assault, 10-20 years for attempted burglary, and 1-2 years for resisting arrest. The court imposed the sentences consecutively for an aggregate sentence of 21-42 years’ incarceration.
(internal quotations to trial court summary omitted).
C. Appeals and State Post-Conviction Process
On direct appeal to the Pennsylvania Superior Court, Santiago raised four claims: (1) the admission of Rodriguez’s statements at trial violated his right to cross-examine witnesses under the confrontation clause; (2) there was insufficient evidence to support his conviction for aggravated assault; (3) there was insufficient evidence to support his conviction for attempted burglary; and (4) the sentence was an abuse of the trial court’s discretion. The Superior Court affirmed Santiago’s conviction on July 12, 2005. The Pennsylvania Supreme Court denied Santiago’s petition for allowance of appeal on April 18, 2006, and the United States Supreme Court denied Santiago’s petition for certiorari on October 10, 2006.
On January 8, 2007, Santiago filed a Pennsylvania Post-Conviction Relief Act (“PCRA”) petition pursuant to 42 Pa. C.S.A. §§ 9541 et seq. Substantive review was based on Santiago’s second amended PCRA petition, which he filed on February 11, 2009. In it, Santiago raised six claims: (1) ineffective assistance of counsel for failing to preserve a challenge that his conviction for aggravated assault was against the weight of the evidence; (2) ineffective assistance of counsel for failing to preserve a challenge that his conviction for attempted burglary was against the weight of the evidence; (3) ineffective assistance of counsel for failing to call Rodriguez as a witness; (4) ineffective assistance of counsel for failing to call Rodriguez’s daughter, Desiree Garcia, as a witness; (5) prosecutorial interference with Santiago’s right to call witnesses due to the prosecutor’s alleged intimidation of Rodriguez; and (6) prosecutorial misconduct for referring at sentencing to an alleged statement by Santiago potentially inculpating him in a homicide.
In support of his PCRA petition, Santiago provided signed affidavits from Rodriguez and Garcia. According to Rodriguez, had she been called to the stand, she would have testified that Santiago had never hit her; that her injuries resulted from slipping on the kitchen floor of the Snapperhead Bar during her argument with Santiago; and that, while Santiago broke a glass panel on the front door of her home, he did so without intent to enter the home. According to Garcia, had she been called to the stand, she would have testified that she observed Santiago slip on the floor during his argument with Rodriguez in the restaurant kitchen, resulting in him falling on Rodriguez and injuring her. Garcia says she did not see Santiago strike Rodriguez, though she does not say how much of the altercation she observed.
On December 18, 2009, the PCRA court dismissed Santiago’s petition, a decision which it affirmed in an opinion dated April 26, 2010. Santiago appealed this dismissal to the Pennsylvania Superior Court, raising the following issues for review: (1) ineffective assistance of counsel for failing to preserve a challenge to the sufficiency of the evidence for his aggravated assault conviction; (2) ineffective assistance of counsel for failing to preserve a challenge to the sufficiency of the evidence for his attempted burglary conviction; (3) ineffective assistance of counsel for failing to call Rodriguez as a witness; and (4) ineffective assistance of counsel for failing to call Garcia as a witness. The Rodriguez and Garcia affidavits were again before the court. The Superior Court denied PCRA relief on June 15, 2011. The Pennsylvania Supreme Court denied discretionary review on January 25, 2012.
On May 14, 2012, Santiago filed the instant habeas petition pursuant to 28 U.S.C. § 2254. In it, Santiago raises the following claims: (1) the evidence was insufficient to support his aggravated assault conviction; (2) the evidence was insufficient to support his attempted burglary conviction; (3) ineffective assistance of counsel for failing to call Rodriguez as a witness; (4) ineffective assistance of counsel for failing to call Garcia as a witness; (5) hearsay evidence was admitted in violation of the confrontation clause; and (6) the government interfered with his right to call witnesses on his behalf by intimidating Rodriguez.
On July 9, 2013, Magistrate Judge Jacob P. Hart issued a report and recommendation recommending the district court grant the writ as to Santiago’s claim of ineffective assistance of counsel for failure to call Garcia as a witness, with remand to the Pennsylvania courts to vacate Santiago’s conviction for aggravated assault and retrial on that charge. The report and recommendation otherwise recommended the district court deny Santiago’s petition. Thereafter, respondents filed objections to those portions of the report and recommendation recommending I grant the writ, and Santiago filed ...