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Moore v. Beard

United States District Court, M.D. Pennsylvania

August 26, 2014

TYRONE MOORE, Petitioner
v.
JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections; DAVID DIGUGLIELMO, Superintendent of the State Correctional Institution at Graterford, Respondents

Page 625

For Tyrone Moore, Petitioner: Mary Gibbons, LEAD ATTORNEY, PRO HAC VICE, Toms River, NJ; Billy H. Nolas, Federal Community Defender Office for the EDPA, Philadelphia, PA; Matthew C. Lawry, Defender Assn. of Philadelphia, Capital Habeas Corpus Unit, Fed. Ct. Div, Philadelphia, PA; Peter Walker, Capital Habeas Unit. Federal Community Defender, Eastern District of Pennsylvania, Philadelphia, PA; Tracy Ulstad, Federal Community Defender, Philadelphia, PA.

For Jeffrey Beard, Commissioner, Pennsylvania Department of Corrections, David Diguglielmo, Superintendent of the State Correctional Institution at Graterford, Attorney General of the State of Pennsylvania, Respondents: James L McMonagle, Jr., LEAD ATTORNEY, Luzerne County District Attys. Office, Wilkes-Barre, PA.

Page 626

MEMORANDUM

Christopher C. Conner, Chief United States District Judge.

The instant case demonstrates the myriad problems inherent in delayed analysis of ineffective assistance of counsel claims. Following the retrial and conviction of petitioner Tyrone Moore (" Moore" ) in the Court of Common Pleas of Luzerne County, Pennsylvania, in September 1983, the exhaustion of state court direct appeals and post-conviction collateral review proceedings consumed more than two decades. During that time, memories faded, witnesses recanted crucial trial testimony, and key witnesses passed away. Add nine years that the matter has been pending in

Page 627

federal court and the problems become intractable. Defense counsel's collective recollection of trial strategy is woefully inadequate, and the court thus is unable to reconstruct, beyond pure speculation, any logical rationale for many of defense counsel's decisions during Moore's retrial. Hence, the court is compelled to grant the petition for a writ of habeas corpus filed by Moore on April 27, 2005, pursuant to 28 U.S.C. § 2254.

Initially, on December 11, 2007, the court denied Moore's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 35). On January 9, 2012, the United States Court of Appeals for the Third Circuit issued a judgment affirming in part, reversing in part, and remanding the matter to conduct an evidentiary hearing on the following issues: (1) whether trial counsel was ineffective for failing to (a) impeach Juanita Lancaster (" Lancaster" ) with prior inconsistent statements, (b) present co-defendant Anthony Brad Jones (" Jones" ) as a defense witness to contradict the Commonwealth's case, (c) impeach co-defendant Ricardo Scott (" Scott" ), and (d) investigate Sarah Lancaster as a potential witness; and (2) whether the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on Moore's allegations that the prosecutors and FBI agents pressured two key witnesses (Scott and Lancaster) into giving perjured testimony implicating him in the robbery, and intimidated Willie Rush, an alibi witness, from testifying. Moore v. Sec'y Pa. Dep't of Corr., 457 F.App'x 170, 182 (3d Cir. 2012).[1]

Following completion of discovery, the matter proceeded to an evidentiary hearing on May 1 and May 2, 2014.[2] Post-hearing memoranda (Docs. 106-07) and a supplemental memorandum (Doc. 108) have been filed, and the matter is now ripe for disposition. In light of the hearing testimony and documentary evidence presented, along with the court's credibility determinations, the court concludes that Moore is entitled to relief on the grounds that counsel was indeed ineffective in failing to present Jones as a defense witness to contradict the Commonwealth's case, and in failing to impeach Scott. Because granting relief on these claims necessitates vacatur of Moore's conviction, the court need not address the other remanded claims.

I. Factual Background

" On the evening of October 1, 1982, an armed robbery at the veterinary office of Dr. Joseph Lopotofsky at Forty-Fort Animal Hospital in Luzerne County, Pennsylvania, ('the Forty-Fort robbery') resulted in the death of Mr. Nicholas Romanchick. Two men had entered the clinic where the doctor was examining Mr. and Ms. Romanchick's cat. As the robbers were tying up the doctor, the doctor's assistant, and the Romanchicks, one of the robbers shot Mr. Romanchick in the back. The robbers fled, taking Ms. Romanchick's purse with them. Mr. Romanchick died thirteen days later from the gunshot wound." Moore, 457 F.App'x at 173.

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On January 7, 1983, Moore was arrested for Mr. Romanchick's murder. Id. Prosecutors initially tried Moore in the Court of Common Pleas of Luzerne County, Pennsylvania, in May 1983, on charges of first degree murder, criminal conspiracy, robbery, theft by unlawful taking or disposition, and recklessly endangering another person. Two court-appointed attorneys, Patrick Flannery (" Attorney Flannery" ) and Joseph Yeager (" Attorney Yeager" ), represented Moore. The initial trial ended in a mistrial because photographs used during a suppression hearing, but not introduced into evidence, were inadvertently given to the jury when it commenced deliberations. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119, 1122 n. 2 (Pa. 1993).

The same court-appointed attorneys, Flannery and Yeager, represented Moore during his retrial in September 1983. The second trial resulted in Moore's conviction on all charges, including first degree murder. The Commonwealth identified Moore as the shooter based on testimony from Ms. Romanchick, Lancaster, and co-defendant Scott, but did not present any physical or forensic evidence. See Moore, 457 F.App'x at 174. The core of Moore's defense at the second trial was that he was not at the Forty Fort Animal Hospital in Wyoming, Pennsylvania, on October 1, 1982, but rather was in Philadelphia, Pennsylvania. (Evidentiary Hrg. Tr. (" Hrg. Tr." ) 14:1-24, May 1-2, 2014). To that end, the defense filed a timely notice of alibi defense and called both Moore and Kenneth McGoy (" McGoy" ) as witnesses. (Pet'r's Evidentiary Hrg. Ex. (" Petr.'s Hrg. Ex." ) 1). At Moore's insistence, co-defendant Jones was identified as a material witness by defense counsel and brought to the courthouse to testify on Moore's behalf.[3] (Hrg. Tr. 58:7-59:13; Petr.'s Hrg. Exs. 14, 17). Counsel had a brief conversation with Jones and, despite his offer to testify for Moore, counsel decided not to call him as a witness. (Hrg. Tr. 59:24-61:2). On rebuttal, the Commonwealth introduced Robert Brunson (" Brunson" ) to further establish that Moore was in the Wilkes-Barre area on October 1, 1982.

A. The Commonwealth's Case

1. Ricardo Scott

The Commonwealth's key witness at trial was Scott, whose testimony inculpated Moore in the crime from inception to completion. He " confessed to the FBI that he, Moore, and Jones had driven to the Forty Fort Animal Hospital to rob Dr. Lopotofsky, and that Moore had shot Mr. Romanchick." Moore, 457 F.App'x at 173. At trial, his direct examination opened with the following candid discussion of his motive for testifying:

Q. Mr. Scott, we have talked before, have we not?
A. Yes, we[] have.
Q. In fact, you have talked with myself and Trooper Taylor, Chief Gilligan[,] and Joe Carmody from our office, is that correct?
A. That's correct.
Q. And would it be fair to say, Mr. Scott, that your presence today is only as a result of an agreement that was entered into between you, your attorney, Barbara Kauffman of Philadelphia, this office and the F.B.I.?
A. Yes, it would be fair to say.

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Q. I want to show you what's been marked for identification purposes as Commonwealth Exhibit No. 29, can you identify what that document is, Mr. Scott?
A. It's an agreement between the State and myself.
Q. And who is the letter addressed to?
A. My attorney, Barbara Kauffman, and me, Ricardo Scott.
Q. Is this an agreement that we entered into, Mr. Scott?
A. Yes, it is.
Q. Is this the agreement that the F.B.I. entered into?
A. Yes it is.
* * *
Q. Mr. Scott, what is the only way you can get in trouble with this plea agreement?
A. By not testifying truthfully.

( Trial Transcript (" Trial Tr." ) 428:23-429:21; 432:25-433:2, Sept. 12, 1983 - Sept. 20, 1983). The prosecution read the following pertinent portions of the plea agreement into the record and introduced them into evidence:

(1) Scott was arrested on " an open charge of criminal homicide and related charges, robbery and conspiracy, arising out of the events occurring in Wyoming Borough, Luzerne County, Pennsylvania, on October 1, 1982, and the days subsequent to the shooting which led to the eventual death of Nicholas Romanchick on October 13, 1982." (Id. 430:10-19).
(2) Scott was required to provide the prosecutors, law enforcement, and other representatives of the Luzerne County District Attorney's Office with a truthful and complete statement as to the related events preceding, during, and subsequent to the October 1, 1982 shooting. (Id. 430:21-431:3).
(3) He was to plead guilty to the offense of third degree murder and receive a sentence of " five to ten years . . . concurrent to any federal sentence imposed on him by the federal jurisdiction." (Id. 431:9-19).
(4) The sentence was to be " if . . . possible, served in a federal institution, but in no event at a cost to the Commonwealth of Pennsylvania or any of its political subdivisions. This presuppose[d] an earlier federal sentence being imposed." (Id. 431:15-21).
(5) Scott was required to continue to cooperate with federal authorities. (Id. 432:7-8).

The plea agreement, which was approved by law enforcement officials and the Luzerne County District Attorney's Office and entered into at the request of the federal authorities, was moved into evidence without any objection from defense counsel. (Id. 432:13-20). Defense counsel did not broach the issue of Scott's plea agreement in any manner on cross examination. (Id. 459:14-487:22).

Scott testified that " a week or two" before October 1, 1982, he met Moore through Jones. (Id. 460:11-22). However, Jones introduced him as " Buzzy," not as Tyrone Moore. (Id. 460:24-461:3). Scott did not know him as " Karim" and did not learn that " Buzzy" was Tyrone Moore until he spoke with the FBI. (Id. 461:1-14).

According to Scott, on October 1, 1982, Scott, Jones, and Moore traveled in Moore's car, either a black or blue Oldsmobile, from Philadelphia, Pennsylvania, to Wilkes-Barre, Pennsylvania, for " no specific purpose." (Id. 435:8-437:25). While driving around, a " plan was developed . . . to go in and rob this doctor" based upon

Page 630

Jones' representation that Dr. Lopotofsky (" the doctor" ), a veterinarian at the Forty Fort Animal Hospital, was a " fence" who owed him $3,000. (Id. 438:1-18). According to the plan, Jones would remain in the car and Moore would enter the animal hospital and tie up and blindfold the doctor so that Jones could enter the building and access the money without the doctor recognizing him. (Id. 438:18-25; 472:20-473:4).

Scott further testified that while en route to the animal hospital, Jones, who was driving Moore's vehicle, parked on a side street, so that Moore could exit the vehicle and retrieve a briefcase containing two handguns and adhesive tape from the trunk. (Id. 440:8-23; 447:8-19; 469:20-470:2). He also accessed an automatic gun from a compartment under the ashtray in the driver's side door of the vehicle. (Id. at 440:25-441:1; 470:3-8). Moore kept one handgun, gave the second handgun and the tape to Scott, and gave the automatic weapon to Jones. (Id. 441:3-6; 447:8-19; 470:9). Jones then parked " not too far" from the animal hospital, and Moore said, " [c]ome on, let's get this over with." (Id. at 442:24-443:10).

Scott testified that he and Moore entered through the main entrance of the building which led to an unoccupied reception area. (Id. 443:17-444:10). A door slid open, and they were greeted by the doctor; Moore said, " we hit a dog." (Id. 444:17-21). The doctor instructed them to bring the dog in and slid the door shut. (Id. 445:5-7). Scott testified that Moore pulled his gun out of his pants, cocked it, slid the door back, and walked in the room, and that Scott followed him. (Id. 445:5-12; 474:16-17; 475:21-476:2). Moore ordered the doctor, Mr. and Ms. Romanchick, and the doctor's aide to the floor. (Id. 445:9-12; 445:22-446:23; 477:10-11). Scott testified that he handed his gun to Moore and taped the doctor's hands and feet and, per the plan, he put a sweater over the doctor's face to prevent him from recognizing Jones. (Id. 447:1-448:14; 450:24-451:2; 481:15-19). He then began to tape the aide when he heard " bang, bang, click" and looked up and saw Mr. Romanchick falling to the floor. (Id. 448:25-449:13; 482:8-11; 483:10-12). Scott testified that he did not have a gun in his hand at the time Mr. Romanchick was shot and that Moore possessed both handguns. (Id. 450:12-16). Moore uttered " you move, you die," snatched Ms. Romanchick's purse from the examination table, and ran out of the building. (Id. 450:3-11; 451:14-452:10; 482:24-25; 483:15-17). Scott stated that when Moore reached the vehicle, he said to Jones, " why did you lead me on a wild goose chase, like that there. He said, I probably done plucked a guy back there, or burnt him or something of that nature." (Id. 453:2-5; 484:11-13). Jones responded " I'll get you out of here." (Id. 453:13; 484:10-11).

According to Scott, Jones drove him and Moore to Kenneth " Zip" McGoy's (" McGoy" ) home. (Id. 453:15-16; 483:21-25). A " girl" answered the door and resisted their entry. (Id. 454:18-19). Jones pushed his way in and walked to the bottom of the staircase and said, " [h]ey, Zip, your brother's here." (Id. 454:18-23). McGoy came to the top of the stairway and invited them upstairs. (Id. 454:22-23). Once upstairs, they all proceeded to a back room he described as a den area and began " rifling the purse." (Id. 454:23-455:9-10). They split the money three ways, but Jones gave $25 to McGoy " to get rid of the pocketbook." (Id. 455:23-456:2).

Scott went into the bathroom and completely shaved off his beard. (Id. 456:22-457:3). When he exited the bathroom, Jones, Moore, and McGoy were gone from the residence. (Id. 456:25-457:5). At approximately

Page 631

11:30 p.m. or 12:00 a.m., Jones called McGoy's home and asked Scott if he saw the news, to which Scott replied " no." (Id. 457:17-22). Jones, Moore, and McGoy returned about thirty minutes later, at which time all four of them left the home and went to a club identified by other witnesses as Club Lee. (Id. 458:1-18; 604:10-605:12). They returned to McGoy's home around 2:30 a.m. or 3:00 a.m. (Id. 458:1-18). Jones, Moore, McGoy, and Scott departed the next morning between 7:00 a.m. and 8:00 a.m. (Id. 458:15-459:1).

Scott, who is now deceased, later stated in an affidavit that he had been coerced by the prosecution to testify against Moore and recanted his trial testimony. (Petr.'s Hrg. Ex. 4; Doc. 96-1 at 9).

2. Juanita Lancaster

" In an FBI interview, McGoy's girlfriend, Juanita Lancaster, said that she had been with McGoy and her sister, Sarah, at McGoy's home on the night of October 1. She said that three individuals arrived at McGoy's home, discarded clothing and items from Ms. Romanchick's purse, and left the next morning. She identified two of the visitors as Anthony Jones and 'Rick.' Based on photos . . . she identified Jones, McGoy, and Scott, but not Moore, as the men at McGoy's house." Moore, 457 F.App'x at 173.

At trial, Lancaster testified consistently with the information that she provided to the FBI during her interview. (Trial Tr., 384:22-385:7; 386:3-6; 395:2-397:5). She also testified that the individual she knew as " Rick" later became known to her as Ricardo Scott, that the third person was introduced to her as " Karim," and that she was never introduced to a " Tyrone Moore." (Id. 386:5-6; 389:19-390:2; 391:14-392:4; 407:20-408:5). During the trial, she identified Moore as the individual introduced to her as " Karim" on October 1. (Id. 390:5-14).

Lancaster passed away in 1990. (Petr.'s Hrg. Ex. 7 ¶ 3; Ex. 23 ¶ 1).

3. Ms. Romanchick

Approximately one week after the incident, police met with Ms. Romanchick at Nesbitt Memorial Hospital and presented her with a photo array of potential suspects. (Trial Tr. 377:20-24). She identified a man, in two separate photos, as one of the suspects present at the animal hospital; she was later informed his name was Tyrone Moore. (Id. 377:20-379:10; 380:18-381:2). At a later, unspecified time, she was shown photos by defense counsel and, although she again picked out two pictures, one of the photos was not Moore. (Id. 381:24-382:7).

While on the witness stand, Ms. Romanchick described Moore as " five foot six or seven to five foot nine, a hundred forty, a hundred sixty pounds, dark complected, with small ears, short-cropped Afro, mean eyes, a nose that was wide at the base and is [sic] eyes, his eyes stood out because when I walk [sic] to somebody I usually look in the eyes and he had very mean looking eyes. His nose was wide, not at the top but like at the base and he had like a full jaw, his cheeks were full, they weren't sunken in." (Id. 343:4-12). She identified him in the courtroom and testified that her identification was based on her view of him " when he first came into the room [at the animal hospital] and he motioned for us to get down on the floor and when he was standing over my husband . . . " which, " in total," was maybe a " minute, minute and a half." (Id. 343:11-14; 361:16-21). Ms. Romanchick's description bore discrepancies from Moore's actual appearance. Moore, 457 F.App'x at 174.

4. Robert Brunson

The Commonwealth also introduced Brunson as a rebuttal witness, to establish that Moore was in the Wilkes-Barre area

Page 632

on October 1. Brunson testified that he had known Jones, Moore, and McGoy for years, that he had been in their company " hundreds" of times, and that they were all outside Club Lee on the night of October 1. (Trial Tr. 602:17-603:17; 605:17-22). He recalled that Jones and Moore were together in front of the club and McGoy was across the street in a parking lot. (Id. 605:2-13). He also recalled that he had a three to five minute conversation with Moore, who he knew to be a boxer, about upcoming fights in the area. (Id. 606:1-12). He testified that Moore was known as " Karim." (Id. 606:19-21). Brunson denied knowing Scott and was therefore unable to place him at Club Lee. (Id. 606:17-18; 607:17-23).

B. The Defense's Case

1. Tyrone Moore

Moore took the stand in his own defense and testified that in October 1982, he lived at 1025 South Frazier Street in Southwest Philadelphia, Pennsylvania. (Trial Tr. 568:17-22; 569:16-21). He also worked in Philadelphia, but was laid off at the time. (Id. 570:13-16). He reported owning two vehicles, a Regency and a 1979 Oldsmobile. (Id. 578:13-14). At the end of September 1982, he placed a plate on the front of the 1979 Oldsmobile bearing the phrase " Karim," which, according to Moore, is an Arabic word meaning generous. (Id. 579:8-15; 584:15-585:7; 588:1-6; 590:16-19).

On October 1, 1982, Moore awoke at his Philadelphia home at approximately 11:30 a.m. and had a routine afternoon with his wife. (Id. 571:1-7). He left his home around 4:30 p.m. and traveled forty-five minutes in his 1979 Oldsmobile to the Joe Frazier Gym, located in Northwest Philadelphia, for a scheduled amateur boxing training match. (Id. 571:8-573:13; 584:12-20). He did not meet with or speak to anyone on his way to the gym. (Id. 571:19-21). He departed the gym at approximately 7:50 p.m. and went directly home. (Id. 574:10-19). His evening included sitting on the porch with his wife, walking several blocks to a restaurant for a steak sandwich, returning back home to sit on the porch, and then retiring for the evening. (Id. 575:2-576:2). On October 2, 1982, he awoke at approximately 5:30 a.m. and, as was his routine, ran between five and seven miles and then went to the Joe Frazier Gym where he stayed until around 2:00 p.m. or 2:15 p.m. (Id. at 576:14-577:15).

Moore testified that on October 1 and October 2, 1982, he had no occasion to leave the Philadelphia area, that he did not travel to the Wilkes-Barre area or the Forty Fort Animal Hospital, and that he did not lend his car to anyone. (Id. 577:16-21; 578:22-25; 582:4-22; 588:13-18). He did not know Scott and, to his knowledge, Scott had never been to his home. (Id. 579:23-580:11; 588:23-25; 591:22-23). He also denied meeting or knowing McCoy and stated that McCoy was never in his company or his home. (Id. 582:17-19; 588:18-22). He did not know Lancaster, and he was not introduced to Lancaster as " Karim" on October 1. (Id. 581:19-21; 593:6-25). Moore had never been known as " Karim" by anyone, including his friends in Philadelphia, nor was he known by " Buzzy" or any other nickname. (Id. at 579:16-20; 590:12-15). Although he had known Jones for approximately four years, he testified that he was not in his company on October 1 or October 2, 1982. (Id. at 589:1-25.)

2. Kenneth McGoy

McGoy testified that on the evening of October 1, 1982, Jones, Scott, and a third male (whose name McGoy could not recall) visited him at his Wilkes-Barre apartment between 8:30 p.m. and 9:00 p.m. (Trial Tr. 520:24-522:3; 534:18-19). In the privacy

Page 633

of a spare bedroom, Jones stated that " my boy just robbed this joint or something to that effect." (Id. 537:17-539:15). According to McGoy, Scott reported that their plan to rob a place was " foiled" in that " they went in, him and his friends, and they tied the people up, put them in one room and that as he was holding the guns on the one guy he jumped or moved and he shot him, twice" in the back. (Id. 525:13-526:6; 542:15-16). McGoy recalled seeing a purse and money that he believed came from the robbery but denied receiving any money. (Id. 543-A:3-4; 545:10-23). After about forty minutes, Jones, McGoy, and the third individual left the home, but Scott remained behind " because the lady saw him." (Id. 528:6-19). They eventually returned to McGoy's home, retrieved Scott, and proceeded to Club Lee, where they remained until it closed. (Id. 533:9-534:13). McGoy admitted to dumping the contents of the purse down a drain three days later. (Id. 557:3-24; 559:7-22).

Based on the exchange that took place at his apartment, McGoy believed that Scott was the shooter and that Jones was not present at the robbery and did not know the third individual. (Id. 539:14-15; 559:24-560:25; 562:9-12). When counsel pointed out Moore in the courtroom, McGoy indicated that he was " absolutely sure" that Moore was not at his house on October 1. (Id. 531:18-532:2).

II. Standard of Review

The evidentiary hearing provided Moore with an opportunity to move beyond establishing a prima facie case and prove his asserted entitlement to habeas relief. In remanding the ineffective assistance of counsel claims, the Third Circuit noted that the state court had reached its decision by applying " an outcome determinative standard: that Moore had 'fai[ed] to demonstrate the result at trial would have differed but for counsel's performance.'" Moore, 457 F.App'x at 182-83 (citing Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 96 (Pa. 2004)). The panel concluded that the state court's decision was contrary to and an unreasonable application of the Strickland test and that Moore's allegations made out a prima facie case of ineffective assistance of counsel. See id. (citing Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). District courts review such determinations de novo. See Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011); see also Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (" When a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in ยง 2254(d) is satisfied . . . [and the court] must then resolve the claim without the deference ...


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