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Lockhart v. Patrick

United States District Court, M.D. Pennsylvania

August 26, 2014



A. RICHARD CAPUTO, District Judge.

I. Introduction

Petitioner Emmett Lockhart, a state prisoner confined at the Houtzdale State Correctional Institution in Houtzdale, Pennsylvania, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. Mr. Lockhart, proceeding pro se , challenges his 2001 Cumberland County Court of Common Pleas, Carlisle, Pennsylvania, convictions for first degree murder, kidnapping, arson, robbery, theft by unlawful taking, abuse of a corpse, criminal conspiracy homicide, criminal conspiracy arson, criminal conspiracy robbery, criminal conspiracy theft by unlawful taking, and criminal conspiracy abuse of corpse. On July 23, 2001, Mr. Lockhart was sentenced to life imprisonment without the possibility of parole on the homicide conviction, and to a concurrent aggregate term of ten to twenty years' incarceration on the remaining counts.[1]

Mr. Lockhart presents seven grounds for relief. (Doc. 2, ECF pp. 2-3, Pet.'s Mem. in Supp. Habeas Pet.) Respondent has filed a response to the petition, supporting memorandum of law and exhibits. (Docs. 22, 23 and 24.) Mr. Lockhart did not file a response to Respondent's filing.

After a thorough review of the entire state court record, the pleadings made available to the court, and the applicable law, the court finds that, for the reasons set forth below, Mr. Lockhart's petition for writ of habeas corpus is denied.

II. Background & Procedural History

A. The Murder, Investigation and Trial Issues

Due to the issues raised by Mr. Lockhart, a detailed discussion of the facts that led to his conviction is required.

In 2000, the victim, Sydney Bull, was a senior at Shippensburg University. (Doc. 24-2, ECF p. 50). On the morning of Monday, April 24, 2000, he had just returned to Shippensburg University after spending Easter weekend with his family in Norristown, Pennsylvania. ( Id ., ECF p. 46.) He spent most of the day with his cousin, Lance Cpl. William Gant, who was visiting the area after completing Marine Corps Basic training. (Doc. 24-3, ECF p. 102.) The two cousins had breakfast together and then planned to lift weights. ( Id ., ECF p. 7.) When leaving Sydney Bull's apartment for the gym, the cousins encountered Mr. Lockhart, who was known to Lance Corporal Gant as "Hassan". ( Id .) After speaking to the victim, Mr. Lockhart got back into his car and left. ( Id ., ECF p. 9.)

After weight lifting, the two cousins returned to Mr. Bull's apartment. Their plan was for Mr. Bull to drop off his cousin around 4:00 p.m., so he could catch a 5:00 p.m. bus. ( Id ., ECF pp. 13 and 41.) However, they were still in the apartment around 3:30 p.m. or 3:45 p.m. because Mr. Bull was waiting for Hassan to return. ( Id ., ECF p. 14.) At this point Lance Corporal Gant grew concerned that he would miss his bus. ( Id .) Finally, Mr. Bull agreed to drop his cousin off at his girlfriend's house so that she could take him to the bus. ( Id ., ECF p. 15.) On the way, they passed Hassan in his car. Both cars pulled over, Mr. Bull got out of his car and went over to speak with Hassan. ( Id .) After a brief conversation, Mr. Bull returned to his car and told Lance Corporal Gant that he was going to meet up with Hassan later that evening. ( Id ., ECF p. 16.)

The evening of April 24, 2000, Sydney Bull had a meeting at a classmate's apartment to work on a group project that was due the following day. ( Id ., ECF p. 51-53; Doc. 24-11, ECF p. 90.) At approximately 9:30 p.m., Mr. Bull looked at something in his bookbag and then asked to use the phone. (Doc. 24-3, ECF p. 54-55.) He told his study group he had to take care of something and would be back in 10 minutes to finish his part of the presentation. ( Id ., ECF p. 55.) He did not take his bookbag with him. ( Id ., ECF p. 63.) He never returned to the study group that evening or class the next day. ( Id ., ECF p. 56.)

On the first day of trial Dontae Chambers testified. (Doc. 24-3, ECF pp. 74-99; Doc. 24-4, ECF pp. 1-45; Doc. 24-5, ECF pp. 1-84.) While he admitted he had been arrested and charged for his involvement in the death of Sydney Bull, he testified, and his counsel (Attorney Abeln) confirmed, that he had not been offered or promised any deals by the Cumberland County District Attorney's office in exchange for his testimony. (Doc. 24-3, ECF pp. 71-73 and 76-77.) He hoped that by testifying he would receive some leniency with respect to his sentencing, but was not guaranteed anything. ( Id .) He then proceeded to testify on direct examination August 7, 2014 as to the victim, Sydney Bull's, last hours of life. (Doc. 24-3, ECF pp. 74-99; Doc. 24-4, ECF pp. 1-45; Doc. 24-5, ECF pp. 1-84.)

Mr. Chambers testified that on the evening of April 24, 2000, he, Mr. Lockhart, [2] and Mr. Norris (co-defendant)[3] were smoking marijuana at the Chi Gamma Iota (XGI) Fraternity House near Shippensburg University where Mr. Norris resided. (Doc. 24-3, ECF pp. 85-88.) Mr. Chambers knew Mr. Lockhart and Mr. Norris by their nicknames, Hassan and Smokey. ( Id ., ECF p. 87.) While there, Mr. Norris asked Mr. Chambers to help them rob someone. Dontae Chambers agreed. ( Id ., ECF pp. 88-89.) The three men got into a blue Ford Probe. ( Id ., ECF pp. 89, 90-91.) Emmett Lockhart drove co-defendant Matthew Norris and Dontae Chambers to the Heiges Field House parking lot at Shippensburg University where they picked up Sydney Bull. ( Id ., ECF pp. 87, 96, 99 and 192.) Mr. Norris then gave Mr. Lockhart directions to the mountains near Shippensburg, or an area called "the wall." ( Id ., ECF p. 99; Doc. 24-4, ECF p. 3.) During the car ride, Mr. Norris pointed a pistol grip shotgun at Mr. Bull. (Doc. 24-3, ECF p. 99; Doc. 24-4, ECF p. 6.) Upon arriving at their destination, Mr. Lockhart let Sydney Bull out of the back seat of the car while Mr. Norris and Mr. Chambers got out on the right side of the car. (Doc. 24-3, ECF p. 99.) As Mr. Norris started walking Sydney Bull at gunpoint into the woods, Mr. Lockhart retrieved a red gas can out of the trunk of the car. (Doc. 24-4, ECF p. 7.) After joining Mr. Norris, Mr. Chambers and Mr. Bull, Mr. Lockhart put down the gas can and rushed at the victim and they started to wrestle. ( Id ., ECF p. 8.) When Mr. Bull escaped Mr. Lockhart's clutches, Mr. Norris pointed the shotgun at Sydney Bull. ( Id ., ECF p. 9.) Mr. Bull begged Mr. Norris for two or three minutes not to shoot him. ( Id ., ECF p. 10.) Mr. Norris then shot Sydney Bull in the face, specifically in the nose and mouth area. ( Id ., ECF p. 11.) The shotgun blast propelled Sydney Bull backward landing on his back. ( Id .) Mr. Norris grabbed the victim's duffel bag and threw it to the side of the victim and then proceeded digging through Sydney Bull's pockets removing money, his pager and other things. ( Id ., ECF p. 12.) In the interim, Mr. Lockhart poured gasoline on the body from head to toe. ( Id ., ECF p. 13-14.) Mr. Lockhart placed the gas can down approximately 10 to 20 feet from the victim's head and lit the gas can on fire. ( Id ., ECF pp. 15-16.) Mr. Norris lit a matchbook and tossed it on the victim's torso. ( Id ., ECF p. 14.) The fire engulfed the body and the surrounding ground. ( Id ., ECF p. 15.) Mr. Lockhart then drove Mr. Norris and Mr. Chambers back to Shippensburg. ( Id ., ECF pp. 19-21.) Mr. Lockhart and Mr. Norris instructed Dontae Chambers that if anyone asked, he had not seen either of them that day, didn't know where they were, and had not met with them. ( Id ., ECF p. 20.)

During the murder investigation, Dontae Chambers told the police the story of what happened to Sydney Bull, as set forth above. (Doc. 24-4, ECF pp. 30-41 and 58.) He testified that the Pennsylvania State Police (PSP) investigators did not provide him with any details of the crime scene or the crime itself. ( Id ., ECF p. 34.) Although he denied any involvement in the victim's death numerous times when interviewed by the police, he did so because he was scared, knew he could be facing the death penalty or life imprisonment. ( Id ., ECF p. 35.)

Toward the end of Mr. Chambers' direct testimony, the prosecution asked him if he told the police that an individual by the name of Bernard Adams was up on the mountain the day of the murder. He responded "Yes, " that he did give the police Bernard Adams' name, but further testified that, in fact, Bernard Adams was not up on the mountain. ( Id .) Mr. Chambers stated he did not know why he gave the police Bernard Adams' name except for the fact that he had his "little brother selling drugs for him." ( Id ., ECF pp. 35-36.) The trial court rested for the day upon the conclusion of Mr. Chambers' direct testimony. ( Id ., ECF p. 39.) Mr. Norris' counsel immediately requested a mistrial based the Commonwealth's failure to disclose exculpatory evidence. Defense counsel learned for the first time during Mr. Chambers' direct examination that he had previously implicated Bernard Adams as a person involved in the murder. Mr. Lockhart's counsel joined in the motion. ( Id ., ECF pp. 41-42; Doc. 24-5, ECF pp. 10-12.) Ultimately the Commonwealth conceded that Mr. Chambers' statement concerning Bernard Adams "was not given to the defense, ... [i]t was inadvertent on [the Commonwealth's] part." (Doc. 24-5, ECF p. 7.) Without the jury present, the Commonwealth explained that the PSP Trooper who interviewed Mr. Chambers reported that he "claimed to be up at the wall with Bernard Adams waiting for Sydney Bull to come up with some other individuals." ( Id ., ECF p. 8.) This information does not appear in any notes or reports related to the case. ( Id ., ECF p. 18.) However, the Troopers who interviewed Mr. Chambers and were present at the time of this declaration were available for defense counsel to interview. ( Id ., ECF pp. 12-13.) The Commonwealth stressed that although Mr. Chambers had identified Bernard Adams as being on the mountain, he did not implicate Bernard Adams in the shooting. ( Id ., ECF p. 8.) The trial court held that

based upon what I heard from the prosecutor, that this was not a bad faith attempt to submarine anybody. He brought it out himself in direct examination. It was, at most, inadvertent.

( Id ., ECF pp. 9-10.) The trial court denied the motion for a mistrial. ( Id ., ECF p. 19.)

I have had the opportunity to review the cases that both sides have provided to this Court. I am going to deny the mistrial; although Mr. Costopoulos, Mr. Russo, I will give you the opportunity to choose whether you want to cross-examine Mr. Chambers now or after you have had the opportunity to review the circumstances regarding the statement with the troopers that took the statement.
I am directing the Commonwealth to make those troopers available to the defense to be interviewed at length and to tell all the circumstances surrounding the giving of that statement.
As I indicated before, Mr. Costopoulos and Mr. Russo, if you feel that a continuance in this trial is necessary before you call Mr. Chambers back, we would be prepared to do that also.

( Id .) Both defense counsel elected not to take a recess or continuance, but to move forward with the cross-examination of Mr. Chambers.[4] ( Id ., ECF p. 22.)

When the trial resumed, Mr. Norris' counsel commenced his cross-examination of Mr. Chambers. ( Id ., ECF p. 25.) When asked what he had told the police about Bernard Adams' involvement in the murder, Mr. Chambers responded "Really nothing." ( Id ., ECF pp. 27-28.) Mr. Norris' defense counsel then proceeded to go over every statement Mr. Chambers made to police and during his direct testimony. ( Id ., ECF pp. 25-41.) At that point, Mr. Norris' counsel asked Mr. Chambers, "Were you even up there, Dontae? Because if you weren't, I want you to tell this judge and this jury because if you weren't, the most they can do to you is charge you with perjury." ( Id ., ECF p. 41.) At that point, Mr. Chambers asked, "[m]ay I speak with my attorney?" and a recess was immediately taken, the jury excused, and a discussion was held on the record. ( Id ., ECF pp. 41-56.)

Mr. Abeln, Dontae Chambers' attorney, advised the court that his client wished to invoke his Fifth Amendment rights. Counsel for the defense wanted him to do so in front of the jury. ( Id ., ECF pp. 43-44.) The trial court disagreed and noted that if Mr. Chambers did invoke his Fifth Amendment rights he would advise the jury that Mr. Chambers "has elected to exercise his right not to incriminate himself and refused to testify any further." ( Id ., ECF p. 44.) When defense counsel continued to object, the trial court invited counsel to provide case law in support of their argument. ( Id ., ECF pp. 44 and 46.)

Following a brief recess, Mr. Chambers was placed on the stand without the jury present. ( Id ., ECF pp. 49-54.) The trial judge asked Mr. Chambers for his reasons for invoking the Fifth Amendment. ( Id ., ECF p. 50.) Mr. Chambers responded "[d]ue to the fact that there was false testimony, I no longer wish to answer any questions that would further incriminate myself." ( Id .) The trial court verified with Mr. Abeln and Mr. Chambers that his request was only related to false testimony given and not some other reason.[5] ( Id ., ECF pp. 50-51.)

The prosecution argued that Mr. Chambers' prior testimony was not perjured, but truthful, and that the recantation was false. ( Id ., ECF P. 52.) The Commonwealth petitioned the trial court to grant Mr. Chambers immunity from perjury charges stemming from his testimony at the preliminary hearing and his trial testimony to that point. ( Id ., ECF pp. 52-54.) The court accepted the resolution and Mr. Chambers was granted transactional immunity for any perjury charges emanating from his prior preliminary hearing and trial testimony up to the point that the questioning began anew. ( Id .) However, he was not given immunity with respect to the murder charge he was facing as a result of his involvement in Sydney Bull's murder. ( Id ., ECF p. 54.) Mr. Abeln and Mr. Chambers both confirmed that Mr. Chambers was willing and prepared to continue to testify under these terms of transactional immunity on perjury related exclusively to his earlier testimony. ( Id ., ECF p. 54.)

When Mr. Chambers' cross-examination resumed, he denied being present when Sydney Bull was murdered, ever seeing Matthew Norris or Emmett Lockhart the day of the murder, or knowing of their involvement in the murder. ( Id ., ECF p. 57.) Mr. Lockhart's counsel then had the opportunity to cross-examine Mr. Chambers. ( Id ., ECF pp. 59-60.) On redirect, Mr. Chambers denied telling the police that Mr. Bull was murdered near the wall, or that Mr. Lockhart doused his body with gasoline. ( Id ., ECF pp. 62-63.) He confirmed that he told the police that Mr. Bull was shot, in the head, with a pistol grip shotgun, and then his body was doused with gasoline and then burned. He also admitted that the police did not show him any pictures of Mr. Bull after he was shot or diagrams from his autopsy. ( Id ., ECF pp. 64-68.) Mr. Chambers confirmed that the police "didn't tell me anything." ( Id ., ECF p. 71.) Mr. Chambers' testimony following his receipt of transactional immunity on the perjury charges was consistent with the instructions he previously claimed the defendants gave him in the car on their way back from murdering Sydney Bull, i.e. he did not know where they were that fateful day. ( Id ., ECF pp. 83-84.)

While Mr. Chambers recanted much of his earlier testimony, many of the details of Mr. Chamber's story were consistent with physical evidence found at the scene or otherwise corroborated by information never released to the public. These details included: the victim was shot once with a 12-gauge shotgun fatally injuring him; he was shot at a close distance, 12 inches or less; he was shot on the left side of his face near the corner of his mouth, the upper and lower lip; he fell backward after being shot; his corpse was doused with gasoline and burned; his body was found approximately 50 feet from the pull off area along a mountain road; a melted plastic gas container was found several feet from the victim's head. ( Id ., ECF pp. 92-93; Doc. 24-6, ECF pp. 2-4, 7, 9, 14, 33 and 65-66.) Also that someone rummaged through the victims front pockets, where he was known to keep his drugs, and that coins, keys, a frame for a pair of glasses, the remains of a pager and wallet were found near the body. (Doc. 24-7, ECF pp. 3-4 and 11-12; Doc. 24-11, ECF pp. 85-86.)

Various members of the Pennsylvania State Police (PSP) testified about their investigation into Sydney Bull's murder on April 26, 2000, which started by questioning co-defendant Mr. Norris, as they learned he was a friend of the victim and may have seen him the day of the murder. (Doc. 24-18, ECF pp. 19-20; Doc. 24-20, ECF p. 25; Doc. 24-13, ECF p. 74.) Later it was learned that Mr. Norris sold drugs and the victim was his supplier. (Doc. 24-20, ECF p. 35.) Mr. Norris admitted to owning a 12 gauge shotgun. (Doc. 24-18, ECF p. 34; Doc. 24-13, ECF p. 78; ECF 24-14, ECF pp. 1-3.) Mr. Norris purchased Number 8 Shot a couple of days prior to the murder, the same type of ammunition used to kill the victim. (Doc. 24-18, ECF p. 82.) The area where Mr. Bull's body was found was specific to the XGI fraternity for some of their functions, including target shooting. ( Id .) Mr. Norris gave inconsistent statements about his whereabouts at the time of the murder. ( Id ., ECF p. 41, 43-44, 49-50, 55-56; Doc. 24-14, ECF pp. 94-100.) Mr. Norris' telephone records and his girlfriend's testimony contradicted many aspects of Mr. Norris' testimony. (Doc. 24-14, ECF pp. 18-24; Doc. 24-16, ECF pp. 21-22, pp. 28-29, p. 57, p. 79 and p. 86.) Finally, Sydney Bull's DNA was found within five inches from the end of Mr. Norris' shotgun. (Doc. 24-21, ECF p. 44, p. 88; Doc. 24-22, ECF pp. 26-27.)

Petitioner, Emmett Lockhart, also known as Hassan, was interviewed by the PSP in June 2000. He told the police he was a Shippensburg University student but did not attend class on Monday, April 24, 2000, because he was not prepared to turn in a school project that was due. (Doc. 24-11, ECF p. 8.) He stated he knew the victim, Sydney Bull, as he had cut his hair on one or two occasions but only saw him occasionally at school. ( Id ., ECF p. 9.) He denied knowing the victim's telephone or pager number. ( Id ., ECF p. 9-10.) He also denied knowing anyone from the Shippensburg fraternities or anyone named "Smokey". ( Id ., ECF p. 10.) Mr. Lockhart additionally advised the PSP that he did not know or have any relationship with "any white males." ( Id ., ECF pp. 10-11, p. 38.) Mr. Lockhart provided the PSP with his cellphone and pager number. ( Id ., ECF pp. 11-12.) When asked about his vehicles, he stated his girlfriend had a Ford Probe. ( Id ., ECF p. 19.) He denied being a drug dealer or being involved in the death of Sydney Bull. ( Id ., ECF p. 32 and p. 38.)

At trial, James Lovell Carey, Mr. Bull's sophomore year roommate, testified. ( Id ., ECF p. 41.) He stated that the victim sold drugs and cocaine on campus. ( Id ., ECF p. 43.) He also testified that he sold drugs for a period of time during his career at Shippensburg University. ( Id ., ECF pp. 45-46.) He testified that Emmett Lockhart supplied both him and the victim with drugs. ( Id ., ECF pp. 43 and 51.) Mr. Carey was present when Mr. Bull would page Mr. Lockhart, who would then come to their apartment with the drugs. ( Id ., ECF pp. 43 and 69.) He further testified that Mr. Lockhart had the victim's phone number based on the fact that when Mr. Bull paged him, Mr. Lockhart would call Mr. Bull back. ( Id ., ECF p. 79.)

Mr. Carey also testified that he knew Mr. Norris prior to April of 2000. Every time he met Mr. Norris, he was in the victim's company. ( Id ., ECF p. 46.) In April 2000, Mr. Carey lived in the same apartment building, directly above the victim. ( Id ., ECF pp. 46-47 and 77.) The afternoon of April 24, 2000, Mr. Carey looked down from his balcony and saw the victim and Mr. Norris sitting and talking. ( Id ., ECF p. 47.) He briefly spoke to Mr. Bull. ( Id .)

Jacquin Ortiz, an inmate at the State Correctional Institution at Camp Hill testified that he shared a cell with Mr. Lockhart at the Franklin County Prison. (Doc. 24-12, ECF p. 12 and p. 29.) He asked Mr. Lockhart "why did you boys shoot the brother?" to which he responded "[h]e should have gave it up. They had to do what they had to do." ( Id ., ECF p. 13.) He believed Mr. Lockhart was talking about cocaine and money. ( Id .) He also stated that Mr. Lockhart knew the police were coming for him and his girlfriend's car, which "he had to clean it up." ( Id .)

Brenda Varner, who knew both Mr. Norris and Mr. Lockhart, testified at trial. ( Id ., ECF pp. 80-81.) Approximately two weeks before Mr. Bull's murder, while working at the Shippensburg Food Lion grocery store, Mr. Lockhart and Mr. Norris came into the store together. ( Id ., ECF pp. 82-83 and p. 89.) She also observed them together on another occasion at a local Sheetz gas station where Mr. Norris was standing outside of Mr. Lockhart's vehicle. ( Id ., ECF p. 86.) The day after the murder, she saw Mr. Lockhart at a neighbor's house and observed his hands were scratched up. ( Id ., ECF p. 85.) In the week following Mr. Bull's death, Ms. Varner saw Mr. Lockhart driving a blue Ford Probe. ( Id ., ECF p. 88 and 98.)

William Gardiner, a white male, testified to knowing Emmett Lockhart through mutual friends, the Gutshall brothers, who were also white. (Doc. 24-13, ECF pp. 4-5.) They met fishing. ( Id ., ECF p. 21.) Mr. Gardiner testified to purchasing marijuana from Mr. Lockhart. ( Id ., ECF p. 5.) He would page Mr. Lockhart who would then contact him. ( Id ., ECF p. 6.) Mr. Gardiner also knew Dontae Chambers and Mr. Norris. ( Id ., ECF p. 7.) On April 25, 2000, Mr. Garner recalls contacting Mr. Lockhart to make a drug purchase. When they spoke, Mr. Lockhart said he would come see him that afternoon, but never showed up that day. ( Id ., ECF pp. 10-11.)

The Commonwealth offered testimony that upon executing a search warrant for Sydney Bull's apartment, a phone list was found which contained Mr. Lockhart's pager number as well as Mr. Norris' number. ( Id ., ECF pp. 26-27.) Following a search of another car Mr. Lockhart frequently drove, a white Maxima, a piece of paper was found in the center console that had the name Sydney on it and a telephone number. ( Id ., ECF p. 42.) Between the time frame of January 2000 and April 2000, the victim's phone number appeared on Mr. Lockhart's phone records seven times. ( Id ., ECF p. 59.) The records also verified that Mr. Lockhart called Mr. Gardiner on April 24, 2000 at approximately 6:04 p.m. ( Id ., ECF pp. 59-60.)

Mr. Norris testified at trial. (Doc. 24-24, ECF pp. 51-97; Doc. 24-25, ECF pp. 1-69.) He testified that he was involved in selling small amounts of marijuana and cocaine. (Doc. 24-24, ECF p. 53.) He testified that he knew Mr. Bull and never had a falling out with him. ( Id ., ECF p. 55.) Mr. Norris testified he had never met Mr. Lockhart or "seen that man before in my life, " prior to him being arrested for his involvement in Sydney Bull's murder. ( Id ., ECF p. 61.)

The morning of the last day of trial, the court met with counsel to discuss the points for charge. (Doc. 24-27, ECF p. 4.) The court stated that "[a]ll of Defendant Lockhart's points for charge will be covered, " to which his counsel replied "[t]hank you." ( Id .) The Commonwealth also withdrew its intention of seeking the death penalty. ( Id .) The jury was then brought in and closing statements were presented. The trial court then delivered the points of charge. ( Id ., ECF pp. 90 - 99; Doc. 24-28, ECF pp. 1-30.) At the conclusion of the charge, the trial judge asked "counsel if they had any additions or corrections to [his] charge." ( Id ., ECF p. 29.) All counsel responded "No." ( Id ., ECF p. 30.)

The jury eventually found Mr. Lockhart guilty of first-degree murder, kidnapping, arson, robbery, theft by unlawful taking, abuse of corpse, and five counts of criminal conspiracy. ( See 24-32, Commonwealth v. Lockhart , 839 A.2d 1157 (Pa.Super. Oct. 7, 2003)(Table, No. 484 MDA 2002)(unpublished op.).)

On May 12, 2001, Mr. Lockhart was convicted as indicated above. He was sentenced to life imprisonment without the possibility of parole for the homicide conviction and directed to serve a concurrent aggregate term of ten to twenty years' imprisonment on the remaining counts. (Doc. 24-29, Sentencing Hr'g. Tr.) On December 18, 2001, Mr. Lockhart filed post-sentence motions. On March 6, 2002, the trial court denied Mr. Lockhart's post-trial motions.

B. Direct Appeal

On March 26, 2002, Mr. Lockhart filed a Notice of Appeal to the Pennsylvania Superior Court from the trial court's order of March 6, 2002. On May 24, 2002, following Mr. Lockhart's filing of a Rule 1925(b) statement, the trial court filed a full opinion. (Doc. 24-33, Cumberland Ct. Com. Pl., Op. re: Pa. R. A. P. 1925.)

The Pennsylvania Superior Court defined Mr. Lockhart's issues on appeal as follows:

(1) whether the evidence was sufficient to support the convictions; (2) whether the verdicts were against the weight of the evidence; (3) whether the trial court erred in refusing to declare a mistrial after it disclosed during the trial that the Commonwealth had failed to provide exculpatory evidence during discovery; and (4) whether the trial court erred in refusing to inform the jury that a Commonwealth witness invoked his Fifth Amendment privilege during [Mr. Lockhart's] trial.

(Doc. 24-32, Commonwealth v. Lockhart , 839 A.2d 1157 (Pa.Super. Oct. 7, 2003)(Table, No. 484 MDA 2002)(unpublished op.).) On October 7, 2003, the Superior Court affirmed Mr. Lockhart's judgment of sentence. ( Id .)

On November 12, 2003, Mr. Lockhart filed a Petition for Allowance of Appeal Nunc Pro Tunc . On April 13, 2004, the Pennsylvania Supreme Court denied his request. See Commonwealth v. Lockhart , 186 MM 2003 (Pa.Super. Apr. 13, 2004)(unpublished).[6] However, Mr. Lockhart was subsequently granted permission to file a Petition for Allowance of Appeal Nunc Pro Tunc when the trial court resolved his petition for collateral relief on January 13, 2005. ( See Doc. 24-34, PCRA Order.)

His Petition for Allowance of Appeal raised the following issues:

1. Whether the evidence adduced at trial was insufficient as a matter of law to prove beyond a reasonable doubt that the defendant engaged in any of the conduct that was the subject of the criminal information;
2. Whether the verdict was against the weight of the evidence in that the testimony of the prosecution's key witness, Dontae Chambers, was patently unreliable and contradictory so that any verdict derived therefrom was based on pure conjecture and speculation;
3. Whether the trial court erred in failing to declare a mistrial after it was disclosed that the Commonwealth had failed to provide the defense with exculpatory evidence that someone other than the defendant had been identified by the key prosecution witness, Dontae Chambers, as the murderer, such exculpatory evidence would have changed the defense strategy and failure to grant a mistrial unfairly prejudiced the defendant; and
4. Whether the trial court erred in refusing to allow Dontae Chambers to invoke his constitutional privilege against self-incrimination before the jury and informing them that he had been granted immunity at the Commonwealth's requirement when such evidence would have placed Mr. Chambers' testimony in the proper context for the jury to weigh his testimony and properly evaluate his credibility.

(Doc. 24-31, Mr. Lockhart's Pet. for Allowance of Appeal.) On August 1, 2005, the Pennsylvania Supreme Court denied Mr. Lockhart's Petition. ( See Doc. 2-6, ECF p. 2, Commonwealth v. Lockhart , 584 Pa. 674, 880 A.2d 1237 (Pa. 2005)(Table No. 124 MAL 2005).) ...

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