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Lesko v. Wetzel

United States District Court, W.D. Pennsylvania

January 20, 2015

JOHN C. LESKO, Petitioner,
v.
JOHN E. WETZEL, et al., Respondents.

MEMORANDUM AND ORDER

CATHY BISSOON, District Judge.

I. MEMORANDUM

John C. Lesko's Petition for a Writ of Habeas Corpus (Doc. 12) will be denied, and a certificate of appealability will be granted only as to Claims I and II.

A. Introduction

At the end of December 1979, the petitioner, John Lesko, and his co-defendant, Michael Travaglia, went on multi-day killing spree, which the media later dubbed the "kill for thrill murders, " that took them through several Pennsylvania counties. By the time the police apprehended them in downtown Pittsburgh the evening of January 3, 1980, they had murdered four people.

Their first victim was Peter Levato. On December 27, 1979, Lesko and Travaglia abducted him in downtown Pittsburgh near the Edison Hotel. They drove him to a remote area in Westmoreland County where they robbed him and then threw him off a bridge. When Levato did not die as a result of the fall, Travaglia shot him in the back of the head with a.22 caliber gun.

Their second victim was Marlene Sue Newcomer. In the early morning hours of January 1, 1980, Lesko and Travaglia were hitchhiking when Newcomer, who was returning home from a New Year's Eve party, offered them a ride. They took control of her vehicle, tied her up, and robbed her. Several tortuous hours later, Lesko shot and killed her with the same.22 caliber gun that had been used to kill Levato. Newcomer's killing also occurred in Westmoreland County. Later that same day, Lesko and Travaglia abandoned her vehicle, with her body in it, in the Gimbel's parking lot in downtown Pittsburgh.

Their third victim was William Nicholls. On January 2, 1980, Lesko and Travaglia were back in the Edison Hotel area of downtown Pittsburgh. Fifteen-year-old Ricky Rutherford was with them. They abducted Nicholls and took him and his car, which was a silver-colored Fiat Lancia, to Indiana County. At the beginning of their trip, Travaglia shot Nicholls in the arm with the same.22 caliber handgun that they had used to kill Levato and Newcomer. Lesko and Rutherford handcuffed Nicholls, stuffed cigarette butts down his throat and gagged him with a scarf. Lesko and Travaglia eventually tied a large rock to Nicholls's body and threw him into Blue Spruce Lake. At some point during this horrific ordeal, Nicholls died. They kept his car, which had the wallet they stole from him in it, and drove to Travaglia's father's house, where they stole a.38 caliber Colt Cobra snub-nose revolver. After Lesko discovered that they did not have the right bullets for the gun, they went back to Travaglia's father's house and stole those too.

Their fourth victim was Officer Leonard Miller. After they stole the.38 caliber handgun and bullets, Lesko, Travaglia and Rutherford traveled to Apollo, in Armstrong County. By this point, Travaglia was driving them in Nicholls's Fiat Lancia. At around 4:45 a.m., they saw a police car parked outside a Stop-N-Go. Although they were driving in a car they had stolen from a man they had just murdered, they decided to goad the officer into chasing them. Leonard Miller was the police officer. He was working the midnight to 8:00 a.m. shift. He was 21 years old and had been employed as a full-time Apollo police officer for only three days. The first time the Fiat Lancia sped past him, Office Miller did not pursue it. When it came speeding by him at least one more time, Officer Miller gave chase and eventually pulled the car over. As he approached it, Travaglia shot him twice with the.38 caliber handgun they had stolen from his father's house. Officer Miller radioed into police headquarters that he had been shot. Back-up officers quickly arrived at the scene, but it was too late. Officer Miller was lying on the highway, dead from two bullets wounds.

Officer Miller returned fire before he was killed and he shot out at least one of the windows of the Fiat Lancia. Lesko, Travaglia and Rutherford decided to abandon the damaged vehicle. They eventually made their way back to downtown Pittsburgh, where the police apprehended them later that evening. Lesko and Travaglia were individually interrogated. Both gave statements implicating themselves in the murders of Levato, Newcomer, Nicholls and Officer Miller.

This case concerns Lesko and Travaglia's murder of Officer Miller. Following various delays due to two changes of venue and a mistrial, they were tried in a consolidated trial in January 1981 in the Court of Common Pleas of Westmoreland County on charges of murder and conspiracy to commit murder of Officer Miller. Rutherford, who was 16-years-old at the time of the trial, had an agreement with the District Attorney of Westmoreland County and testified as a witness for the prosecution. The jury (which had been selected from Berks County) found that both defendants were guilty of first-degree murder. There was no dispute that Travaglia was the one who fired the shots that killed Officer Miller (he had admitted that fact in his statement to the police). The jury determined that Lesko was equally culpable for Officer Miller's murder as Travaglia's accomplice.

Following a subsequent penalty trial, the same jury sentenced both defendants to death. As a result of a federal habeas proceeding that concluded in 1992, Lesko had another sentencing hearing in the court of common pleas in February 1995. The jury at this proceeding once again sentenced Lesko to death.

Before this Court is Lesko's Petition for a Writ of Habeas Corpus [ECF No. 12], filed pursuant to 28 U.S.C. § 2254. Lesko asserts that he is entitled to a new trial or, at a minimum, another sentencing hearing. He raises six guilt-phase claims (Claims I, II, III, IV, XX, and part of Claim XXII) and numerous sentencing-phase claims (part of Claim I and Claims V-XIX and XXI-XXII). After careful consideration, this Court concludes that Lesko is not entitled to federal habeas relief on any of his claims.

This case has a lengthy and complex factual and procedural history that spans more than 30 years. Only that which is pertinent to the evaluation of the claims that Lesko raises in his habeas petition will be discussed. There have been over 13 court decisions issued in Lesko's lengthy state and federal proceedings, and he cites them in his brief as Lesko I through Lesko XIII. [ECF No. 30, Brief at i]. In order to remain consistent with his method of citation, the Court will use it herein.

B. The 1981 Guilt-Phase Trial[1]

The court of common pleas appointed Rabe F. Marsh, Esq., to represent Lesko at his trial.[2] Marsh was a local attorney with a private practice. The court appointed the Westmoreland County Public Defender, Dante G. Bertani, Esq., to be Travaglia's counsel. Bertani was Travaglia's lead counsel and Timothy J. McCormick, Esq., who worked in the Public Defender's Office, was co-counsel.

Lesko's and Travaglia's interests coincided to a large extent during the pre-trial and trial proceedings and defense counsel worked together in many ways when appropriate, including cross-examining the prosecution's witnesses. From 1999 through 2002, several hearings were held in the court of common pleas during the litigation of Lesko's state petition for collateral relief, which he filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"). At the PCRA hearing conducted in 2002, Bertani explained that he did "the bulk of the cross examination for all of the witnesses" and Marsh, who typically would cross-examine a witnesses after Bertani, followed up to the extent that Bertani missed something, or if there was something particular that applied to Lesko's defense. (Apr. 2002 PCRA Hr'g Tr. at 155-56).

At the trial, the prosecution wanted to introduce evidence of the three other murders that the defendants committed during their multi-day crime spree. (Vol. I, Trial Tr. at 3). The court ruled that evidence related to Levato's and Newcomer's murders was inadmissible. It held, however, that the events surrounding Nicholls's murder, about which Rutherford would testify, was admissible as evidence of motive and intent. The trial court explained that it was admitting the evidence because it was probative of the prosecution's theory that Officer Miller, whom the defendants intentionally had provoked into chasing them, was killed because he had approached perpetrators of murder and theft in possession of incriminating evidence, namely, Nicholls's stolen car and wallet, and the gun used to shoot him in the arm when he was first abducted. Both defendants moved to limit Rutherford's testimony, but the trial judge denied their motion, ruling that the details of the Nicholls murder were relevant to each defendant's state of mind. The court explained that the severity of the Nicholls murder, and its temporal proximity, made it more likely than not that the defendants would attempt to avoid apprehension at any costs, going so far as to murder a police officer. (Vol. I, Trial Tr. at 298-99, 309-11, 330, 332).

Rutherford testified that in the late hours of January 2, 1980, he was at hotdog shop in downtown Pittsburgh. Lesko and Travaglia were there too. (Id. at 345-46). They asked Rutherford if he "wanted to go and do some partying." (Id. at 347). Rutherford told them that he did, and he and Lesko walked outside and waited in an alleyway by the Edison Hotel. (Id. at 347-49). After about five to ten minutes, Travaglia and another man drove into the alleyway in a "silver sports car." (Id. at 350). The other man was Nicholls, and he was driving his silver Fiat Lancia. Travaglia was in the front passenger's side seat and he told Rutherford and Lesko to get into the car. (Id.)

Rutherford testified that Travaglia pulled out a gun and pointed it at Nicholls and shot him in the arm. (Id. at 351). Nicholls was not critically injured, and Travaglia forced him to continue to drive them. They traveled for approximately 45 minutes. (Id. at 353). Rutherford testified that Nicholls was "real nervous and worried about what was going to happen to him." (Id.) Eventually, Nicholls was directed to stop the car. Travaglia took over the driving duties and Nicholls was forced into the back seat. Lesko got into the back seat of the car also, and he gave Rutherford a pair of handcuffs and told him to cuff Nicholls's arms behind his back, which Rutherford did. (Id. at 354-55). According to Rutherford, Nicholls kept asking them: "what are you going to do to me?" (Id. at 354).

By this point, Rutherford testified, the group was outside the city limits and driving in a wooded area. Lesko began to punch Nicholls with his closed fist and called him a "queer" and asked him if he wanted to perform oral sex on him. (Id. at 356). Lesko pulled out a knife and called Nicholls a "sissy." (Id.) Nicholls begged Lesko to stop but, Rutherford testified, Lesko and Travaglia both just laughed and Lesko hit him again. (Id. at 357). Eventually, Lesko took Nicholls's scarf and told Rutherford to gag Nicholls with part of it and then tie the rest of it around his mouth. Rutherford followed Lesko's instructions. By this point, Rutherford stated, Nicholls was unconscious. (Id. at 358).

Rutherford testified that Lesko stole from Nicholls "his belongings, a wallet, and extra set of keys and some other stuff, " and those items were put into the glove compartment of the car. (Id. at 359). The wallet had several items of identification for Nicholls, including a driver's license and credit cards. (Id. at 502).

Rutherford testified that Travaglia drove to a lake. Travaglia told him to go and get a rock, which Rutherford did. Nicholls's hands were still cuffed, and Lesko and Travaglia bound his legs with a belt. Rutherford stated that Travaglia broke a hole into the iced-over lake and Travaglia and Lesko dragged Nicholls down to it. Travaglia and Lesko returned to the car without Nicholls. (Id. at 360-67). They had thrown Nicholls into the lake, and told Rutherford that Nicholls "came back up out of the water one time" and "he coughed and he went back down." (Id. at 367).

Next, Rutherford testified, he, Lesko and Travaglia drove to Travaglia's father's home. Lesko and Travaglia exited the car and came back after two or three minutes with a.38 caliber handgun. As Travaglia started driving away, Lesko "was looking at the gun, and he said that there was only birdshot in it." (Id. at 370). Travaglia turned around and drove back to his father's house. Lesko and Rutherford got out of the car this time, and Lesko stood guard while Rutherford went into the garage to steal a box of bullets. Rutherford testified that before he went into the garage, Lesko gave him a gun and told him that if someone came in that he "had six shots to get out." (Id.)

Rutherford and Lesko returned to the car with the bullets for the.38 caliber handgun. It was that gun and those bullets that would be used to kill Officer Miller a short time later. At this point in time, Lesko was seated in the front passenger seat, Travaglia was driving, and Rutherford was in the back seat. Eventually, as they were driving down a hill they saw a police car parked on the side of the road. Rutherford testified that Travaglia said "[l]et's have some fun with this cop. And he went speeding past him, and beeped the horn, but the cop, he just sat there." (Id. at 371). Rutherford described what happened next:

He [Officer Miller] just sat there, and [Travaglia] turned around after he went over - like it was a bridge. And he turned around and he went back up, on the other side of the road, and the cop just still stayed there. And so he [Travaglia] turned around again and came back down the road, and this time he [Travaglia] ran a red light or - and he beeped the horn again and he ran a red light, and the cop, he turned on his lights and started coming after us. John [Lesko], he told me to lay down in the back, because it might turn into a shooting gallery.
-
I laid down in the back, with my head toward the driver's side of the car. And about maybe ten seconds after that, Mike pulled off the side of the road, or stopped, and I was laying down in the back, and I could see the lights from the police car behind me. And then the window - Mike rolled the window down, and then the cop, he come up to the door, and Mike shot him.

(Id. at 371-72). Rutherford stated that Officer Miller returned fire and one of his shots broke a window of the Fiat Lancia. Nobody in the car was hit by a bullet, and after Officer Miller fell, Travaglia drove from the scene. Eventually, the three of them abandoned the car and left on foot. (Id. at 373-74).

Lesko, Travaglia and Rutherford made their way back to Pittsburgh and by around 7:30 p.m. on January 3, 1980, they were in the area of the Edison Hotel again. They ran into another acquaintance, Daniel Montgomery, a frequent cohort of theirs, who in fact the police initially suspected of having been involved in Officer Miller's murder. Montgomery testified at the trial that he was in a hotel room with Travaglia and Lesko that evening when Travaglia stated "I shot a cop[, ]" and Lesko stated "I wanted to." (Id. at 481-82). He testified that Travaglia gave him the gun he used to kill Officer Miller. (Id. at 482, 486). On cross-examination by Bertani, Montgomery admitted that Travaglia also told him when they were in the hotel room that the shooting of Officer Miller had been an accident. (Id. at 491). After Montgomery left the hotel room, he went to the hotdog shop across the street, and soon thereafter plainclothes police came in, questioned him, found the.38 caliber handgun on him, and arrested him. The police soon located Lesko, Travaglia and Rutherford and arrested them as well.

Lesko and Travaglia each gave tape-recorded interviews to the police. During his testimony at the 1981 trial, Detective Frank Amity, with the City of Pittsburgh Police, read Lesko's heavily-redacted statement. Lesko's interview started at 1:16 a.m. on January 4, 1980. At the beginning of the transcribed interview, Detective Amity asked him if he understood that he will be charged with murder for the killing of Officer Miller. Lesko stated that he understood. (Id. at 611). Lesko told the police that he was seated in the front passenger's side of Nicholls's car when they saw Officer Miller. He stated that they ran through a red light and sped by Officer Miller at about 85 to 90 miles an hour. (Id. at 611-17). In response to Detective Amity inquiry about why they would have sped by a police officer, Lesko replied: "I guess to draw the cop's attention." (Id. at 615). When asked why they wanted the officer to chase them, Lesko replied: "So he'd be chasing us, ... and the car was fast and that - we'd lose him and could go and knock off the Stop-N-Go." (Id. at 617). Detective Amity testified that during the interview Lesko did not express any remorse, regret or sorrow that Officer Miller had been killed. (Id. at 622).

Detective Ronald B. Freeman, also with the City of Pittsburgh Police, conducted Travaglia's tape-recorded interview, which, like Lesko's, took place early in the morning of January 4, 1980. During his trial testimony, Detective Freeman read Travaglia's heavily-redacted statement. Travaglia acknowledged that he has been charged in the death of Officer Miller. (Vol. II, Trial Tr. at 679). When asked to explain what occurred, Travaglia admitted that he purposely ran a red light and sped by Officer Miller in order to provoke the officer into chasing them. (Id. at 683). He stated that it was his intent to "aggravate" the officer. (Id. at 682). Travaglia stated that he pointed his gun at Officer Miller thinking that he (Officer Miller) would toss his gun aside and "I could get away and I wouldn't get caught with anything." (Id. at 687-88. See also id. at 682). Travaglia told the officers that "[i]n the process of pulling the gun on him, the hammer slipped and the shot discharged." (Id. at 682). He explained that Officer Miller "stumbled backwards, and he fell down on one knee, and he started to get back up; that's when I fired the second [shot]." (Id. at 690). Detective Freeman asked Travaglia during the interview why he decided to "aggravate" Officer Miller, and Travaglia replied: "I don't know. I was just - like I said, I - drinking and drugs and stuff like that, a loose night, that's all.... Trying to play games with him was what I was doing." (Id. at 684).

Lesko's and Travaglia's defense to the charge of first-degree murder was that they lacked the requisite intent to kill. Neither defendant testified at trial. However, the statements they made to the police, which the prosecution had introduced into evidence, were relied on by defense counsel in support of their respective defense theories. Referring back to Lesko's statement that in instigating the police chase, the defendants planned to first divert Officer Miller from the Stop-N-Go store, and then return to rob it, Marsh urged the jury to find Lesko guilty of second-degree (felony) murder, not first-degree murder. He argued that the killing of Officer Miller was not premeditated, but was the unintended result of a botched robbery attempt. (Vol. II, Trial Tr. at 1175-91). Travaglia's defense was that, as he told the officers during his initial interview, he accidentally shot Officer Miller. In addition, he raised a diminished capacity defense in which he claimed that his heavy drug use and mental infirmities resulted in the inability to form the requisite specific intent to kill. Travaglia introduced several witness to support that defense. (Id. at 1194-1220).

The prosecutor noted in his closing argument that Lesko's and Travaglia's statements to the police gave in part inconsistent versions of what occurred the morning that Officer Miller was shot, as did Rutherford's trial testimony. For example, neither Travaglia nor Rutherford mentioned anything about the group's intent to rob the Stop-N-Go, as Lesko had in his statement. The prosecutor explained that the Commonwealth was "under no obligation to dovetail all of the statements that were made by all of the witnesses[, ]" and told the jurors that they must use their common sense to evaluate the evidence. (Id. at 1223). The prosecutor pointed out that notwithstanding the inconsistencies in some of the testimony, the evidence established the necessary facts to convict both Travaglia and Lesko of first-degree murder. That the defendants intentionally provoked Officer Miller to chase them was beyond dispute. They sped by him once, and when he failed to pursue them they sped by him at least one more time. The defendants did all of this knowing full well that they could not allow Officer Miller to apprehend them because they were driving in a stolen car. A car inside which they had just shot and beat Nicholls before dumping his body in a lake. A car that would easily link them to being Nicholls's murderers. Thus, when they goaded Officer Miller into chasing them, the prosecutor argued, they did so as part of a plan and with the intent to kill him. They had the gun and the bullets that they had stolen from Travaglia's father shortly beforehand to do just that. (Id. at 1221-39).

The prosecutor discussed the statement that Rutherford said that Lesko made to him right before Officer Miller was murdered (you better get down "because it might turn into a shooting gallery") (id. at 1227, 1236), and the statement that Montgomery testified Lesko made to him several hours after the murder ("I wanted to [kill the cop]") (id. at 1228, 1237), but those statements were just one of the many pieces of evidence that the prosecution relied upon to make the first-degree murder case against Lesko.

At the conclusion of the trial, the jury convicted both defendants of first-degree murder and conspiracy for the killing of Officer Miller. Because the Commonwealth was seeking the death penalty against both defendants, their trial was followed by a hearing before the same jury to determine the sentence to be imposed. The jury decided that each defendant should be sentenced to death.

In 1983, the Pennsylvania Supreme Court affirmed Lesko's and Travaglia's sentences of death. Commonwealth v. Travaglia, 467 A.2d 288 (Pa. 1983) (consolidated direct appeal), cert. denied, 467 U.S. 1256 (1984). Two years later, the Pennsylvania Supreme Court affirmed the common pleas court's decision to deny Lesko's motion for collateral relief, which he had filed pursuant to Pennsylvania's Post Conviction Hearing Act (the predecessor to the PCRA). Commonwealth v. Lesko, 501 A.2d 200 (Pa. 1985) ("Lesko III").

In 1986, Lesko filed with this Court his first petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254.[3] He raised claims challenging both the guilt phase and the sentencing phase of his 1981 trial, and contended that he was entitled to a new trial altogether or, at a minimum, a new sentencing hearing. One of the guilt-phase claims in Lesko's 1986 habeas petition was that the trial court erred in permitted Rutherford's testimony discussing the details of Nicholls's murder, and that that error violated his Fourteenth Amendment right to a fair trial. This Court originally granted Lesko relief on that claim, but the United States Court of Appeals for the Third Circuit reversed. One of the more preposterous contentions that Lesko makes throughout this current habeas case is that his participation in Officer Miller's murder was "relatively minor."[4] He also contends that the key pieces of evidence the prosecution relied upon to secure a first-degree murder conviction were the two statements that Rutherford (you better get down "because it might turn into a shooting gallery") and Montgomery ("I wanted to [kill the cop]") attributed to him. Therefore, it is worth repeating the Third Circuit's decision that the trial court did not err in allowing Rutherford's testimony, because it shows that it was Lesko's actions in the hours and minutes leading up to the murder of Officer Miller, not merely the two statements he made to Rutherford and Montgomery, that evidenced his intent to kill, and that his participation in the murder was anything but "relatively minor":

We find that just as the occurrence of the Nicholls murder was relevant, the Nicholls incident as a whole was relevant to a central issue in the case - the motive and state of mind of Lesko and Travaglia. As we have discussed, the Commonwealth sought to demonstrate that both the trigger-man Travaglia and passenger Lesko, if approached by a law enforcement officer, intended to go to any length to hide the facts of their prior crime and, moreover, had motive to take such a drastic approach. Where the motive of a killing is interference with law enforcement - in this case the most extreme example, killing a policeman - the severity and circumstances of the crime being hidden is highly probative. If, for example, the Nicholls killing had been accidental, or in self-defense, Lesko arguably would have been less likely to take such extreme measures to avoid apprehension. On the other hand, apprehension and prosecution for a murder as deliberate as the Nicholls homicide, could have dire consequences in the event of a conviction. Furthermore, Rutherford's account of the events leading to the Miller homicide conveys the temporal proximity of the Nicholls homicide, which reinforces the Commonwealth's theory that the Nicholls murder figured prominently in defendants' minds as Officer Miller approached the stolen sports car.
As we have already suggested, Rutherford's testimony is also probative to rebut Lesko's defense regarding his state of mind during the Miller incident. First, by stressing that the incident was best characterized as "felony murder, " Lesko was essentially urging the jury to believe that while he admittedly agreed to instigate the car chase, he had no knowledge from the surrounding circumstances that the chase would culminate in murder, and played no role in promoting such an outcome. During his summation, Lesko's counsel argued that Lesko's remark that "this place might turn into a shooting gallery" was "the statement of any would-be robber in a car driven by a man with a gun...." In other words, Lesko was asserting that he had participated in a crime - but that crime was attempted burglary or robbery, not first degree murder. To view the Miller incident in isolation would render Lesko's claim plausible. On the other hand, Lesko's assertion that in the moments before the Miller killing, he had promoted only the commission of robbery and burglary (but not murder) appears less credible if one learns that just a few hours before, both he and Travaglia had deliberately and fully participated in the Nicholls homicide. In this context, this evidence was probative to show that in participating in the instigation of the police chase and through his talk about a "shooting gallery, " Lesko shared Travaglia's intent to open fire and encouraged Travaglia to do so.11
11 We note that under Pennsylvania law, the least degree of concert or collusion is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).
In a second and related aspect of his defense, Lesko portrayed himself as a passive observer of Travaglia's allegedly unilateral decision to open fire on Officer Miller. Lesko's lawyer argued in summation that "John Lesko was sitting in the car as Ricky Rutherford was.... He was a passenger. He didn't shoot Officer Miller. Ricky Rutherford didn't shoot Officer Miller. Mike Travaglia shot Officer Miller." Similarly, during summation, Lesko's lawyer read from Lesko's statement to the police, in which Lesko explained that, "[the officer] put on his lights and started chasing us. The police officer went down, and that there. I heard six shots come through the window beside me, and when I looked up, it was all busted out...." Thus, the in limine motion offered by defendants was sparse and, from an evidentiary point of view, sterile. The motion proposed to stipulate only that Nicholls had been killed and that Lesko possessed items tying him to the crime, including a gun, a wallet, and a stolen car. The jury would not have learned that Lesko had willingly and fully participated in all of the evening's activities, which included a prior homicide.
In summary, the central issue in the Commonwealth's case against Lesko was whether he deliberately supported Travaglia in a premeditated killing of Miller or whether he was guilty only of participating in an abortive attempt at robbery. Members of the jury could not have determined what was in Lesko's mind based solely on the events immediately preceding Miller's death. The jury could only have fairly evaluated the Commonwealth's theory regarding Lesko's state of mind by hearing evidence tending to show that Travaglia and Lesko had jointly embarked that evening on a crime spree, that they had already committed a homicide likely to command the death penalty, and that they had in their possession powerful evidence of their guilt of that homicide. Moreover, to be in a position to evaluate Lesko's state of mind during the critical moments during the Miller encounter, the jury needed to hear sufficient details about these matters to be able to appreciate the nature of the evening's joint undertaking, the relationship and mood of the participants, and the extent of the criminal exposure of those participants in the event of their apprehension by Miller. If one views Rutherford's testimony as furnishing the overall context in which Travaglia and Lesko acted in the few minutes preceding Miller's death, then this testimony plays a critical role in enabling the jury to evaluate the Commonwealth's proposed scenario as compared with the defendants' alternative explanation of events.

Lesko v. Owens, 881 F.2d 44, 53-55 (3d Cir. 1989) ("Lesko VI") (additional footnotes omitted).

The ultimate outcome of Lesko's first habeas case was that his guilt-phase claims were denied, but he was granting sentencing-phase relief. The Third Circuit held that he was entitled to such relief because in closing arguments at the 1981 sentencing hearing, the prosecutor: (1) commented upon Lesko's failure to testify concerning the merits of the charges against him, in violation of his Fifth Amendment privilege against self-incrimination and the rule set forth in Griffin v. California, 380 U.S. 609 (1965); and (2) exceeded the bounds of permissible advocacy by imploring the jury to make its death penalty determination in the cruel and malevolent manner shown by the defendants when they tortured and drowned Nicholls and shot Officer Miller. Lesko VIII, 925 F.2d at 1540-46.

The Third Circuit also remanded the case to the district court with the additional instruction that, before the district court issued the writ, it conduct an evidentiary hearing on the issue of whether the guilty plea that Lesko had entered in the Nicholls's criminal case in Indiana County was voluntary. If the district court determined that it was not, the Third Circuit instructed, the writ was to issue to the extent that Lesko sought relief from the sentencing phase of his 1981 trial "subject to the additional requirement that evidence of the guilty plea not be introduced at the resentencing proceeding." Id. at 1555.

Upon remand, the magistrate judge to whom the case was referred presided over the evidentiary hearing. It was determined that the guilty plea that Lesko had entered in the Indiana County case was involuntary and, therefore, could not be used in the subsequent resentencing hearing. The magistrate judge's report and recommendation was adopted as the opinion of the district court on February 20, 1992. Lesko v. Lehman, No. 86-cv-1238, 1992 WL 717815 (W.D. Pa. Feb. 20, 1992) ("Lesko IX"). As a result of this, the fact that Lesko had been convicted of murdering Nicholls could not be used by the prosecution as an aggravating circumstance at his resentencing hearing.

In February of 1995, the court of common pleas presided over a seven-day sentencing hearing, at the conclusion of which the jury returned a verdict of death. (CP Doc. 207). The Pennsylvania Supreme Court affirmed Lesko's sentence on direct review in 1998. Commonwealth v. Lesko, 719 A.2d 217 (Pa. 1998) ("Lesko X"), cert. denied, 525 U.S. 1108 (1999).

Next, Lesko filed a petition for collateral relief under the PCRA. In that proceeding, he challenged both his 1981 convictions and his 1995 sentence of death. On August 7, 2006, the PCRA court issued a decision in which it granted Lesko relief on certain of his guilt-phase and sentencing-phase claims and held that Lesko was entitled to be completely retried for his role in the 1980 murder of Officer Miller. Commonwealth v. Lesko, No. 681 C 1980, slip op. (C.P. Westmoreland Co. Aug. 7, 2006) ("Lesko XII") (CP Doc. 389). See also Commonwealth v. Lesko, No. 681 C 1980, slip op. (C.P. Westmoreland Co. Nov. 22, 2000) ("Lesko XI") (CP Doc. 310). The claims that the PCRA granted relief upon coincide with the claims that Lesko raises in his current habeas petition as Claims I, II, and V. It denied relief with respect to all other claims. The Commonwealth appealed, and Lesko filed a protective cross appeal as to those claims that the PCRA court denied.

In 2011, the Pennsylvania Supreme Court reversed the PCRA court's decision with respect to those claims upon which it had ruled in Lesko's favor. Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) ("Lesko XIII"). It held that, aside from one portion of a Brady claim, all of Lesko's guilt-phase claims were untimely under the PCRA's jurisdictional time limitations, set forth at 42 Pa. Cons. Stat. § 9545(b)(1). Lesko XIII, 15 A.3d at 359-73. The Pennsylvania Supreme Court held that the one part of the guilt-phase Brady claim that was timely filed lacked merit, as did all of Lesko's sentencing-phase claims. Id. at 371-417.

In 2012, Lesko filed the instant petition. [ECF No. 12]. After considering substantial briefing from both sides on the issue, this Court determined that Lesko's petition is not "second or successive" and, therefore, is not subject to the requirements of 28 U.S.C. § 2244(b). [ECF No. 24]. After the Court issued that decision, Lesko filed his brief in support of his petition. [ECF No. 30]. Thereafter, the Commonwealth filed its answer [ECF No. 35], Lesko filed his reply [ECF No. 37], and the Commonwealth filed its final response [ECF No. 39].

C. Guilt-Phase Claims

Lesko's Guilt-Phase Claims Are Not Procedurally Defaulted

The Pennsylvania Supreme Court denied all but one of Lesko's guilt-phase claims on procedural grounds. As just mentioned, except for a portion of a Brady claim that was based upon evidence first disclosed during the PCRA proceeding (a January 8, 1980 police report, referred to herein as the "Steffee report"), Lesko's guilt-phase claims were untimely under the PCRA's statute of limitations.[5] Lesko XIII, 15 A.3d at 359-73. The court concluded that Lesko's guilt-phase claims became untimely after January 16, 1996, the effective date of the PCRA's provision addressing timeliness and successive collateral petitions. Id. at 366.

The Commonwealth argues that this Court must conclude that all of the guilt-phase claims that the Pennsylvania Supreme Court dismissed as untimely are procedurally defaulted for the purposes of federal habeas review. A petitioner may be barred from federal habeas relief for a "procedural default" when a state court has denied his claim based upon a state procedural rule that is both "independent" and "adequate." See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "adequate" if it is "firmly established and regularly followed" at the time that the alleged procedural default occurred - which in this case was on or before January 16, 1996 (the effective date of the PCRA). Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir. 2007) ("Whether a procedural rule was firmly established and regularly applied is determined as of the date the default occurred, and not as of the date the state court relied on it, because a petitioner is entitled to notice of how to present a claim in state court.") (internal citations and quotations omitted). This Court, of course, has no authority to review the Pennsylvania Supreme Court's decision on the purely state law issue of whether Lesko's guilt-phase claims are timely under the PCRA. A federal court's investigation of the adequacy of a state rule is not akin to appellate review of a state court's procedural decision and, thus, the question before this Court in this case is not whether the state court erred in dismissing Lesko's guilt-phase claims on procedural grounds. The question whether a state procedural ruling is "adequate" to bar federal habeas review is a separate question of federal law. See, e.g., Beard v. Kindler, 558 U.S. 53, 60 (2009). Thus, the issue here is whether, under federal law, the application of the state procedural rule was "adequate" at the time the alleged default occurred.

Lesko contends, inter alia, that the Pennsylvania Supreme Court's procedural ruling was not based on an "adequate" state law grounds sufficient to establish federal procedural default for at least two reasons. First, he points out that the Pennsylvania Supreme Court acknowledged in its decision that the "terms of the PCRA do not specifically address the scenario presented here" and that the court thus faced a "novel question." Lesko XIII, 15 A.3d at 360. For this reason alone, Lesko argues, the "novel" rule the Pennsylvania Supreme Court first announced and applied to his guilt-phase claims cannot qualify as "adequate" to bar federal habeas review of his guilt-phase claims. Since the rule was first announced in the Pennsylvania Supreme Court's February 24, 2011, decision, Lesko's argument goes, it could not have been firmly established on January 16, 1996 the date the court determined his default occurred. Second, Lesko argues that Pennsylvania's prior "relaxed waiver" practice in capital cases precludes any finding of adequacy. See, e.g., Lark v. Sec'y Pennsylvania Dept. of Corr., 645 F.3d 596, 612 (3d Cir. 2011) (describing the "relaxed waiver" rule; holding that it was not firmly established on January 16, 1996 that the PCRA's statute of limitations would be enforced against petitioners in capital cases). See, e.g., Morris v. Beard, 633 F.3d 185, 191 (3d Cir. 2011).

The Commonwealth does not provide any convincing arguments to counter Lesko's. The one argument that the Commonwealth does make is that in light of the Supreme Court's more recent decisions in Walker v. Martin, 562 U.S. 307 (2011) and Beard v. Kindler, 558 U.S. 53 (2009), Pennsylvania's "relaxed waiver rule" in capital cases no longer precludes a finding of procedural adequacy. As Lesko points out, however, the Third Circuit has rejected the Commonwealth's argument regarding the impact of Walker and Kindler. Lark, 645 F.3d at 611-613.

Based upon all of the foregoing, this Court is not precluded under the procedural default doctrine from considering Lesko's guilt-phase claims on the merits.

Standard of Review of Lesko's Guilt-Phase Claims

Lesko's petition is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under this statute, "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors of state law are not cognizable in a federal habeas action. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot reexamine state court determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).

In describing the role of federal habeas proceedings, the United States Supreme Court noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

In 1996, several years after Lesko's first federal habeas proceeding concluded, Congress enacted AEDPA, which "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). AEDPA "requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts' legal and factual determinations." Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); see also Lewis v. Horn, 581 F.3d 92, 109-18 (3d Cir. 2009). AEDPA reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).

AEDPA's standard of review is codified at 28 U.S.C. § 2254(d) and it provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added). Thus, AEDPA circumscribes a federal habeas court's review of a state prisoner's constitutional claim when the state court adjudicated that claim on the merits and denied it. For the purposes of § 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 131 S.Ct. at 784-785; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014). "Section 2254(d) applies even where there has been a summary denial." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1402 (2011) (citing Richter, 131 S.Ct. at 786).

Because the Pennsylvania Supreme Court did not adjudicate Lesko's guilt-phase claims on the merits, AEDPA's standard of review set forth at § 2254(d) does not apply and this Court must review them de novo .[6]

Claim I

The Brady Claim

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. The precepts of Brady are premised upon the most basic of constitutional guarantees to a person accused of a crime: a right to due process of law and a fair trial. In our system of criminal justice, the government is not entitled to send a person to prison while it conceals from him favorable evidence that would tend to reasonably call into question his guilt. Impeachment evidence falls within the category of evidence that must be disclosed because "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence." Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 153-54 (1972); see also United States v. Bagley, 473 U.S. 667 (1985).

To prevail on his Brady claim, Lesko has the burden of demonstrating: 1) favorable evidence was suppressed by the prosecution; and 2) the suppressed evidence was material. See e.g., Slutzker v. Johnson, 393 F.3d 373, 386 (3d Cir. 2004); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Lesko claims that the prosecution violated its obligations under Brady when it suppressed the following information:

1. A copy of the "Agreement and Statement of Intent" signed by Daniel Montgomery and the District Attorney of Westmoreland County on March 26, 1980 (Def.'s PCRA Ex. GG);
2. The police report prepared by Trooper Michael K. Steffee of the Pennsylvania State Police on January 8, 1980 (the "Steffee report") (Def.'s PCRA Ex. KK); and,
3. Information from Richard Rutherford's juvenile file that Lesko contends could have been used to impeach Rutherford at trial. (Def.'s PCRA Ex. RR).

The Commonwealth does not contest that the documents listed in items 2 and 3 were not disclosed to Lesko. As for the document listed in the item 1 (the "Agreement and Statement of Intent"), the Commonwealth argues that Lesko has not established that the prosecution did not give it to defense counsel. For the reasons discussed below, this Court has serious doubts that the prosecution actually failed to disclose the written document. However, Lesko contends that the PCRA court made a finding of fact that a copy of the "Agreement and Statement of Intent" was not provided to defense counsel and that this Court is bound by that factual determination. Assuming that is true, the record nevertheless shows that Marsh was aware at the time of the 1981 trial about the agreement between Montgomery and the District Attorney and what the relevant terms of that agreement were.

Ultimately, Lesko's Brady claim is denied because, even if this Court accepts that the prosecution suppressed all of the documents listed in the items numbered 1 through 3 above, Lesko has failed to prove that the cumulative impact of the suppressed documents was material. To understand why, it is necessary to go beyond the facts as presented by Lesko, and set forth a more detailed description of the undisclosed items, the other information defense counsel had available to them, and the other relevant facts.

Background Relevant to Montgomery

The police arrested Montgomery on the evening of January 3, 1980, around the same time that Lesko and Travaglia were being arrested. Shortly afterward, at approximately 12:15 a.m. on January 4, 1980, Officers Hennigan and Serifini interviewed him. Their report (the "January 4, 1980 police report, " Def.'s PCRA Ex. HH), shows that Montgomery told the officers that he had been in a room at the Edison Hotel with Lesko and Travaglia and that Travaglia had given him the.38 caliber handgun. Montgomery told the officers that Travaglia gave him the gun because he (Montgomery) had been robbed recently and wanted a gun for protection. Montgomery did not state that he knew anything about Officer Miller's murder. In fact, he told the officers that before he left the hotel room "Lesko had mention[ed] that they had been working on a sheep farm that day." (Def.'s PCRA Ex. HH at 2). Lesko admits that Marsh had in his possession the January 4, 1980 police report at the time of the 1981 trial. [ECF No. 30, Brief at 36].

The next day, on January 5, 1980, Officers Condemi, Amity and Liberi interviewed Montgomery again. Their report (the "January 5, 1980 police report, " Def.'s PCRA Ex. II) shows that Montgomery once again stated that the gun that he had on him when he was arrested was Travaglia's. The report reflects that Montgomery "would not admit to any criminal activities and doesn't know anything about the murders." (Def.'s PCRA Ex. II at 2 (emphasis added)). Lesko admits that Marsh had in his possession the January 5, 1980 police report at the time of the 1981 trial. [ECF No. 30, Brief at 36].

On January 8, 1980, Trooper Michael Steffee, with the State Police's Indiana County station, interviewed Montgomery once again. In the Steffee report, Trooper Steffee wrote that Montgomery acknowledged meeting with Lesko and Travaglia at the Edison Hotel on the evening of January 3, 1980, but said that they "never told me about killing anyone" and that he "don't know anything about the cop getting shot or any armed robberies." (Def.'s PCRA Ex. KK). There is no dispute that the prosecution failed to disclose the Steffee report.

By March 26, 1980, Montgomery was ready to cooperate with the prosecution. On that date, he arrived at the Westmoreland County District Attorney's Office in order to give a statement. Montgomery's attorney, Richard Pohl, Esq., accompanied him. Also present were Assistant District Attorney Henry Martin, Esq., Assistant County Detective Harry DelleDonne, two deputy sheriffs, and a court reporter who transcribed the proceeding. The 51-page transcription of the meeting was admitted at the PCRA hearing as Def.'s PCRA Ex. D. There is no dispute that the prosecution provided to defense counsel a copy of the transcript of the March 26, 1980 meeting prior to the 1981 trial.

During the proceeding conducted on March 26, 1980, Montgomery gave a statement that implicated Lesko and Travaglia in the murder of Officer Miller, among many other crimes. Prior to giving his statement, Montgomery and the District Attorney signed the "Agreement and Statement of Intent." That document shows that the District Attorney agreed not to prosecute Montgomery for any "offenses against property (burglary, robbery and theft)" he committed in Westmoreland County during November and December 1979 and January 1980. In exchange, Montgomery agreed to "freely, completely, truthfully and candidly advise and provide the District Attorney of Westmoreland County, and any investigators... with a full and complete statement of his knowledge concerning the deaths of Leonard C. Miller, Marlene Sue Newcomer, and Peter A. Levato and shall testify as a witness for the Commonwealth of Pennsylvania, if requested to do so" by the District Attorney. (Def.'s PCRA Ex. GG at 1-2).

The transcript of the March 26, 1980 meeting indicates that Montgomery entered into the agreement with the District Attorney in exchange for his cooperation and truthful statements, and that the agreement pertained "to crimes and offenses generically described as offenses against property, such as burglary, robbery and theft and similar crimes[.]" (Def.'s PCRA Ex. D at 11-12). The transcription also reveals that the agreement was contingent upon the District Attorney of Indiana County entering into a similar agreement with Montgomery and the District Attorney of Allegheny County "nol prossing a charge of a violation of a section of the Pennsylvania Firearms Act." (Id. at 10).

After the discussion of the agreement concluded, DelleDonne questioned Montgomery about how he knew Lesko and Travaglia and the relevant events. It was during this interview that Montgomery explained that when he was with Lesko and Travaglia in a room at the Edison Hotel on the evening of January 3, 1980, Travaglia told him "[g]oddamn, I shot a cop" and Lesko said "I wanted to[.]" (Id. at 29, 31). Montgomery also stated that on January 2, 1980, the day before Officer Miller was shot, Lesko told him that they had a contract to kill a cop and stated "we're going to get that cop." Montgomery said that he remembered what Lesko told him because it "scar[ed] the hell out of" him. (Id. at 29; see also id. at 27-30).

Montgomery testified at the suppression hearing, which was held over the course of six days in September 1980. During his testimony, there was a discussion about the agreement he had entered into with the District Attorney. A review of the suppression hearing transcript establishes that Marsh and Bertani knew about the agreement and had received from the prosecution the transcript of the March 26, 1980 proceeding in which the agreement was discussed. (Supp. Hr'g Tr. at 414-15, 439-42). Bertani stated that although the prosecution had given them the transcription of the March 26, 1980 proceeding, they had not received the written "Agreement and Statement of Intent." (Id. at 414-15, 400). The prosecutor stated that to his knowledge that document "was disclosed sometime ago to both defense counsel." (Id. at 414). He also stated that he had "asked [Bertani] if there was anything they thought we might have and didn't get and received no response." (Id. at 440). The prosecutor then stated: "I'll get them a copy this afternoon. Again, if they don't have it, it's due to inadvert[e]ncy." (Id.)[7]

When Montgomery testified at the 1980 trial, neither Marsh nor Bertani asked him a single question about the agreement he had with the District Attorney. Nor did either attorney question Montgomery about the fact that the statements he gave to the police in the days following his arrest were so different from the testimony he gave at trial. Although defense counsel did not have a copy of the Steffee report, they had the January 4, 1980 and the January 5, 1980 police reports, but did not ask Montgomery to explain the discrepancy between what he had told the police on those dates and his trial testimony.

Background Relevant to Rutherford

Rutherford was the prosecution's key witness at the January 1981 trial. Although the prosecution introduced other evidence to show that Lesko and Travaglia intentionally provoked Officer Miller into chasing them, and that Travaglia shot Officer Miller twice after he pulled them over, it was through Rutherford's testimony that the prosecution was able to paint the full and horrific picture of what Lesko and Travaglia did on January 2 and 3, 1980, and that the killing of Officer Miller was part of an ongoing crime spree that began the day before when they abducted Nicholls.

Rutherford had an agreement with the prosecution that in exchange for his testimony, his criminal charges would be disposed of in juvenile court. As set forth below, defense counsel was fully informed about the agreement and cross-examined Rutherford about it. Also, at defense counsel's request, prior to Rutherford's testimony the court instructed the jury that he was an accomplice and his testimony, therefore, "should be looked upon with disfavor because it comes from a corrupt and polluted source." (Vol. I, Trial Tr. at 349-44).

Before Rutherford testified, the jury learned through Bertani's cross-examination of Trooper Robert G. Luniewski that Rutherford faced the very same charges of murder and conspiracy to commit murder as Lesko and Travaglia were being tried for, and that those charges were still pending against Rutherford at the time of the trial. (Id. at 53-54). Bertani cross-examined Rutherford first. He was able to make the point through his cross-examination that Rutherford participated in the crimes against Nicholls and was not just "along for the ride." (Id. at 390-93). Bertani asked Rutherford if he had an agreement with the "district attorney's office over your testimony here in court?" Rutherford replied: "Yes." Rutherford explained that in exchange for his testimony, it was agreed that his case would be handled in juvenile court and that nothing he testified to could be used against him unless he gave testimony that was not truthful. (Id. at 394. See also id. at 406, "for my testifying, my case will be handled in juvenile, and that nothing I say here in court will be used against me unless I lie."). Bertani asked Rutherford: "Remember one of the parts of that agreement is that the deal you have with the D.A.'s office doesn't conclude until after you testify in court?.... [That] [a]nything that is done with your deal doesn't happen until you testify in court against other people[?]" (Id. at 401). Rutherford responded: "Yes." (Id.)

In his cross-examination, Marsh also questioned Rutherford about his agreement with the prosecution. Rutherford admitted that he spent a number of hours talking with the District Attorney about the testimony that he was going to give at the trial. (Id. at 405). Marsh rhetorically asked Rutherford whether he knew that the alternative "to spending a year in the Juvenile Detention Center" was "being tried as an adult for criminal homicide." Rutherford responded: "Yes." (Id.)

During the PCRA proceeding, Lesko obtained in discovery a copy of documents from Rutherford's juvenile case file. Those documents were admitted at the PCRA hearing as Def.'s PCRA Ex. RR. As mentioned above, the Commonwealth does not contest Lesko's contention that the documents in the juvenile file should have been disclosed to defense counsel prior to the 1981 trial. The juvenile file contains three documents that Lesko argues provide a "tremendous amount to impeachment material." The three documents are:

1. A printout of the docket for Rutherford's case, which contains two entries that show that he was released from detention in the company of a law enforcement officer to be transported to his home to visit with his family for approximately five hours on November 27, 1980 and December 29, 1980. (Def.'s PCRA Ex. RR at 2);
2. The "Application to Transfer Case to Juvenile Court, " which was filed by Rutherford's attorney and in which it was stated that one of the four reasons Rutherford's case should be transferred is that:
(b) The applicant's medical and psychiatric condition require that, if convicted, he not be confined to custody along with adults and that he be given adequate opportunity for medical and psychiatric treatment[.]
(Id. at 21);[8] and,
3. A letter dated October 17, 1980, from one of the prosecutors (Timothy J. Geary, Esq.) to Rutherford's attorney, in which Geary wrote: "[i]t is my feeling that a disposition of this case prior to the completion" of Lesko and Travaglia's trial "would be too risky from a prosecution standpoint.... The trial in the matter of the homicide of Leonard Miller will commence on 5 January 1981... Hopefully, this time the trial will be completed and afterwards we can dispose of Ricky's case." (Id. at 14).

Discussion

The task before this Court is to consider whether the cumulative impact of the above-described suppressed evidence was material. Kyles v. Whitley, 514 U.S. 419, 436 (1995) (the materiality of suppressed evidence must be "considered collectively, not item by item.") Evidence is material if there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed to the defense. See, e.g., Bagley, 473 U.S. at 678. The Supreme Court has explained:

Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). [The] touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678[.]

Kyles, 514 U.S. at 434 (additional internal citations omitted).

Lesko has not met his burden of demonstrating that the non-disclosure of the evidence at issue was material. His argument that the documents from Rutherford's juvenile file contain "a tremendous amount of impeachment evidence that the jury did not hear" is a vast overstatement of the import of the documents. He maintains that the application to transfer Rutherford's case to juvenile court would have provided a factual basis to ask Rutherford about his "psychiatric condition" in order to undermine Rutherford's credibility, but he has not shown that the statement in the application was anything more than boilerplate language. In any event, at most, as Marsh testified at the PCRA hearing, if Marsh had seen the application to transfer prior to the trial he would have made a further inquiry into whether in fact Rutherford actually had a "psychiatric condition." (Apr. 2002 PCRA Hr'g Tr. at 27; see also id. at 166). As Bertani acknowledged when he testified at the PCRA hearing, the mere statement made in the application to transfer would not have been enough to question Rutherford about any psychiatric condition. (Id. at 166). Lesko did not develop any additional evidence to show that Rutherford actually had a psychiatric condition. Therefore, Lesko has not demonstrated that any further inquiries by Marsh, if he had seen the application to transfer, would have yielded mental health evidence about Rutherford that could have been used to impeach his testimony.

As for the docket entries in Rutherford's juvenile files that show that he received two five-hour furloughs in November and December 1980, the Court finds that the fact that the jury did not learn that information is insignificant in light of the other information that was presented to it regarding the benefit that Rutherford received in exchange for his cooperation with the prosecution and for his trial testimony.

Finally, the letter that Geary wrote to Rutherford's attorney, which Lesko contends "graphically show[s] how the Commonwealth was using a carrot and a stick to get [Rutherford] to testify, " revealed nothing that was not already known or obvious to defense counsel at the time of the 1981 trial.[9] Marsh acknowledged as much during his PCRA testimony. (Apr. 2002 PCRA Hr'g Tr. at 31-32). Moreover, the jury learned that Rutherford faced the very same charges of murder and conspiracy to commit murder as Lesko and Travaglia were being tried for, that those charges were still pending against him when he testified against Lesko and Travaglia, and that he had an agreement with the District Attorney that his case would be adjudicated in juvenile court in exchange for testifying "truthfully" as a prosecution witness at the trial. Thus, the jury was aware that Rutherford had murder and conspiracy charges hanging over his head at the time he testified, that his ability to escape being tried as an adult for the very serious crimes he faced was contingent upon the testimony he gave at the trial, and that his deal would not be "done" until he testified against Lesko and Travaglia. Lesko has failed to convince this Court that any additional or more compelling points could have been made to the jury if Geary's letter to Rutherford's attorney had been disclosed to the defense prior to the trial.

Lesko also overstates the significance of the two suppressed documents related to Montgomery. The impeachment material available in the Steffee report was cumulative of that which was contained in the January 4 and January 5, 1980 police reports, which defense counsel had prior to the trial. Lesko's efforts to downplay the significance of the January 4 and January 5, 1980 police reports after the Commonwealth pointed out their significance in its answer are completely unavailing. Those two police reports could have been used to impeach Montgomery about the discrepancy between his initial statements to the police and his trial testimony, since they show that when the police initially interviewed Montgomery, he did not indicate that he knew anything about the murders Lesko and Travaglia were suspected of committing. Those police reports also could have been used to demonstrate that Montgomery did not reveal the incriminating statements that, in his trial testimony, he attributed to Lesko and Travaglia until after he entered into his agreement with the District Attorney. As discussed below, it may have been that defense counsel deliberately steered clear of discussing certain topics with Montgomery, even when that meant not utilizing available impeachment evidence. Neither Marsh nor Bertani used the January 4, 1980 or January 5, 1980 police reports to impeach Montgomery's trial testimony about the discrepancy between his initial statements to the police and his trial testimony. Since defense counsel did not utilize those police reports to show that Montgomery's initial statements to police were different from his trial testimony, Lesko has not convinced this Court that he would have utilized the Steffee report if it had been disclosed to him.

Similarly, assuming that the prosecution did not provide to defense counsel Montgomery's "Agreement and Statement of Intent, " the information contained in that document was cumulative of information defense counsel possessed. Marsh had the information he needed to ask Montgomery about his deal with the District Attorney but did not do so. The agreement was discussed at the suppression hearing and also at the March 26, 1980 proceeding, which had been transcribed and given to defense counsel. Under these circumstances, Marsh did not require a physical copy of the "Agreement and Statement of Intent" in order to ask Montgomery about his deal. There is no reason for this Court to conclude that if defense counsel had asked Montgomery about his agreement that Montgomery would have denied its existence or what its terms were. As discussed previously, he was asked about the agreement at the suppression hearing and testified about it. Lesko simply has not demonstrated why the fact that defense counsel may not have had a physical copy of the written "Agreement and Statement of Intent" had a material impact on his trial. The issue with respect to Montgomery's agreement with the District Attorney is not whether Marsh possessed the information he needed to ask Montgomery about it. He clearly did. The real issue is whether Marsh provided Lesko with constitutionally deficient representation for failing to ask Montgomery about it. That issue will be discussed in Lesko's related ineffective assistance of counsel claim.

The Court also concludes that Lesko has not shown that the suppression of either the Steffee report or Montgomery's "Agreement and Statement of Intent" was material for the alternative reason that Montgomery's testimony for the prosecution was not as central to the prosecution's first-degree murder case as Lesko argues it was. The statement that Lesko made to Montgomery hours after Officer Miller was killed was just one of the many pieces of evidence that the prosecution relied upon to show that Lesko possessed the intent to kill. It was not the key or even one of the most important pieces of evidence, and the other evidence of intent to kill was not dependent on Montgomery's testimony. Therefore, if defense counsel had been able to impeach Montgomery's testimony, the remainder of the evidence presented to show that Lesko had the intent to kill Officer Miller would have remained unaltered.

Based upon all of the foregoing, the Court concludes that Lesko has not met his burden of demonstrating that the suppression of the evidence in question in Claim I was material. He has not shown that there is a reasonable probability that the outcome of the trial would have been different had the documents at issue been disclosed to the defense. Therefore, Lesko's Brady claim is denied.

Ineffective Assistance of Counsel Claim

In the related Sixth Amendment claim, Lesko contends that Marsh provided him with ineffective assistance because he did not uncover other evidence or pursue other testimony that would have impeached Montgomery's trial testimony. First, Lesko faults Marsh with failing to cross-examine Montgomery about the fact that he was suspected to have committed robberies with the defendants and that he avoided prosecution on them by entering into his agreement with the District Attorney. Second, Lesko contends that if Marsh had secured Montgomery's testimony about the agreement, he could have requested and received the standard instruction advising the jury to consider whether a "witness ha[s] any interest in the outcome of the case, bias prejudice or other motive that might affect his testimony." Third, Lesko contends that Marsh did not interview Montgomery and if he had, he would have learned and elicited testimony from him that Travaglia knew and did not like Officer Miller, which could have been used to show that Travaglia had a distinct motive to shoot him.

This portion of Claim I claim calls for a straightforward application of the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland recognized that the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence" entails that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence.[10] Id. at 685-87. "[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]" Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690, 687).

To prevail on a claim of ineffective assistance under Strickland, Lesko has the burden of establishing that his defense counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688. "This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment." Id. at 687. Importantly, the Supreme Court has emphasized that "counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'" Titlow, 134 S.Ct. at 17 (quoting Strickland, 466 U.S. at 690). As the Supreme Court observed in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel's was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

466 U.S. at 689 (internal citations and quotations omitted). Richter, 131 S.Ct. at 787 ("A court considering a claim of ineffective assistance must apply a strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance.") (quoting Strickland, 466 U.S. at 689).

The Supreme Court also has instructed that "[i]t should go without saying that the absence of evidence cannot overcome the strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'" Titlow, 134 S.Ct. at 17 (quoting Strickland, 466 U.S. at 689). It also has advised:

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.

Richter, 131 S.Ct. at 788.

Strickland also requires that Lesko demonstrate that he was prejudiced by his defense counsel's alleged deficient performance.[11] This places the burden on him to establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. As the Third Circuit has explained:

[The petitioner] "need not show that counsel's deficient performance more likely than not altered the outcome of the case' - rather, he must show only a probability sufficient to undermine confidence in the outcome.'" Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 693-94). On the other hand, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Harrington [v. Richter], 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel's errors must be "so serious as to deprive the defendant of a fair trial." Id. at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be substantial, not just conceivable. Id.

Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).

Of the three things that Lesko faults Marsh for not doing, the only one that gives pause is his failure to cross-examine Montgomery on the agreement he had with the District Attorney. Marsh was aware of the agreement. By not asking Montgomery about it, as defense counsel had cross-examined Rutherford about his, Marsh lost an opportunity to show that Montgomery avoided potential prosecution for multiple robberies in exchange for his testimony. When Marsh testified at the PCRA hearing, approximately 20 years had passed since Lesko's 1981 trial. He understandably could not remember things about the trial, even important things. Although Marsh acknowledged that the agreement could have been "helpful" for impeachment purposes (Dec. 1999 PCRA Hr'g Tr. at 24), he could not recall the scope of his cross-examination of Montgomery, let alone whether he had a strategic reason for not utilizing the agreement. (Id. at 386 (Marsh: "Not only have I forgotten things, my memory's been distorted by the passage of time on some things."); id. at 398-99 (Marsh: "I can't tell you what I thought at the time. I don't remember.... I can't tell you what was on my mind at the time."); Mar. 2001 PCRA Hr'g Tr. at 83 (Marsh: "I can't remember specifically my thought at the time[.]")).

As set forth above, the Court must begin its analysis of this claim with the "strong presumption that [Marsh's] conduct fell within the wide range of reasonable professional assistance, " Strickland, 466 U.S. at 689, and it is Lesko burden to prove that Marsh's performance was objectively unreasonable. Under the circumstances presented here, Lesko has not met his burden. Marsh could not recall what, if any, reason he may have had to avoid discussing the agreement with Montgomery. But Bertani did not ask Montgomery a single question about the agreement either. Since both Bertani and Marsh knew about the agreement and that it protected Montgomery from being prosecuted for robberies he may have committed, the fact the neither of them utilized such obviously impeaching material suggests to the Court that there was a reason defense counsel was avoiding the topic.[12]

The Court is "required not simply to give [Marsh] the benefit of the doubt, but to affirmatively entertain the range of possible reasons [Marsh] may have had for proceeding as [he] did." Cullen, 131 S.Ct. at 1407 (internal quotations and citations omitted). See also Richter, 131 S.Ct. at 790 ("Strickland... calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.") Did Marsh limit his cross-examination of Montgomery for fear that Montgomery might testify about how Lesko had told him prior to Officer Miller's murder that they had a contract to kill a police officer? (Mar. 2001 PCRA Hr'g Tr. at 83 (Marsh: "I can't remember specifically my thoughts on it at the time, but I certainly wouldn't have wanted that [Lesko had told Montgomery that there was a contract to kill a cop] to come in under any circumstances.")).[13] Was he fearful that Montgomery might reveal some other piece of harmful information?[14] Did he avoid the issue because Lesko may have been a suspect in at least some of the robberies in which Montgomery also had been a suspect? (Id. (Marsh: "there were plenty of reasons to limit my cross-examination of Mr. Montgomery, his participation in robberies with the Defendants.")). Or, did Marsh decide that he did not want to impeach Montgomery because he provided testimony favorable to each defendant's contention that there was no intent to kill Officer Miller? After all, Montgomery testified that when he met Travaglia and Lesko in the Edison Hotel after Officer Miller's murder, Travaglia told him that the shooting had been an accident. (Vol. I, Trial Tr. at 489-91). Montgomery also testified that when he saw Travaglia after Officer Miller's killing, Travaglia was high. (Id. at 498). When Bertani called Montgomery as a witness during the presentation of Travaglia's case, Montgomery testified that Travaglia was a heavy and constant drug user. (Vol. II, Trial Tr. at 796-99). Montgomery's testimony was relied upon by Travaglia to support his diminished capacity defense, and it would have worked to Lesko's benefit if the jury accepted that defense.

Once again, it is Lesko's burden to show that Marsh's performance was objectively unreasonable. He has not met his burden here. Reasonable counsel may have concluded that the harm that might occur by exploring the topic of the agreement with Montgomery outweighed the benefits that would have been gained by attempting to impeach him with it. Therefore, Lesko's claim that Marsh was ineffective for failing to question Montgomery about the fact that he avoided prosecution for robberies he was suspected of having committed by entering into his agreement with the prosecution is denied. Because Lesko has not established that Marsh was objectively unreasonable for failing to ask Montgomery about his agreement, his related claim that, if counsel had cross-examined him about the subject he also could have requested the standard jury instruction regarding the "bias, prejudice or other motive" of a witness, must fail too.

Lesko also has not met his burden of demonstrating that Marsh was deficient for failing to elicit testimony from Montgomery that Travaglia knew and disliked Officer Miller and, therefore, had a personal and distinct motive to shoot him. Lesko has not shown that Marsh was not aware of that fact at the time of trial or that it was objectively unreasonable to avoid discussing the topic. As previously noted, Montgomery testified at trial that Travaglia told him that he shot Officer Miller accidentally, and that testimony was helpful to each defendant's case. Montgomery's testimony on that point was also consistent with Lesko's defense that there was no intent to kill and that Officer Miller was shot during a botched robbery attempt. Because it would have been objectively reasonable for counsel to avoid undercutting that beneficial part of Montgomery's testimony by attempting to make the conflicting point that Travaglia deliberately shot Officer Miller because he did not like him, this claim is denied.[15]

The three ineffective assistance of counsel claims that Lesko raises in Claim I also fail for the alternative reason that he has not met his burden of establishing Strickland's prejudice prong. Even if Marsh had done all the things Lesko contends he should have done, Lesko has failed to establish that there is a reasonable probability that his trial would have had a different outcome. Strickland, 466 U.S. at 694. As explained above, Montgomery's testimony was just one of the many pieces of evidence that the prosecution introduced in its case against Lesko, and the discrediting of his testimony would not have affected the other evidence that showed he had the intent to kill.

Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." Where the district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Because the PCRA court granted Lesko relief on Claim I, this Court grants him a certificate of appealability on it. This Court respectfully disagrees with the PCRA court's determination that Claim I entitles Lesko to a new trial. It did not consider that the information in the suppressed evidence was cumulative of information the defense possessed prior to the 1981 trial. Also, in this Court's opinion, the PCRA court too often faulted Marsh for failing to provide a strategic reason for his actions when he testified at the PCRA hearing decades after the 1981 trial and simply could not recall details about it. That is inconsistent with the commands of the Strickland test, which presumes that counsel was effective and which places the burden on the petitioner to prove otherwise. Finally, in contrast to the PCRA court, this Court believes that Lesko places far too much significance on the two statements that Rutherford and Montgomery attributed to Lesko when they testified at the trial. Those statements were part of the prosecution's case against him, but they were not the most compelling or significant part. Focusing too much on the two statements loses sight of the much bigger picture that the prosecution presented to prove to the jury that Lesko had the intent to kill. That case consisted of the following evidence, which was not dependent upon the two statements Montgomery and Rutherford attributed to Lesko: in the hours leading up to Officer Miller's murder, Lesko and Travaglia embarked on a crime spree in which they abducted, shot, beat, and killed Nicholls, but kept his silver sports car, in which they continued to travel; after they killed Nicholls they drove to Travaglia's father's home and stole a.38 caliber handgun; when Lesko discovered that the handgun only had birdshot in it, they returned to Travaglia's father's house and stole bullets for the ...


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