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Krol v. Collins

United States District Court, W.D. Pennsylvania

June 26, 2015

ROBERT KROL, JR., Petitioner,
ROBERT COLLINS, et al., Respondents.


LISA PUPO LENIHAN, Magistrate Judge.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Robert Krol, Jr. ("Krol"), pursuant to 28 U.S.C. ยง 2254. Petitioner challenges his judgment of sentence of twenty to forty years imprisonment imposed following his conviction by a jury of third degree murder and carrying a firearm without a license. For the following reasons, the Petition will be denied.

I. Background

The relevant facts and procedural history of this case, as summarized by the Superior Court on direct appeal, are as follows:

On April 18, 2006, at approximately 2:46 a.m., Ambridge police officers found Miguel Ogbara shot to death in an empty lot in Ambridge, Pennsylvania, after an eyewitness reported the crime and described the assailant. Police broadcast the suspect's description, and at approximately 4:40 a.m., Economy Borough Police Officer Daniel Viscuso observed Appellant, who matched the description, less than one-fourth mile of the crime scene. Officer Viscuso approached Appellant, asked for identification, and relayed information about the stop to Ambridge police. Ambridge Police Officers Zadock Dismuke and Michael Slawianowski and Sergeant Rick Bufalini, who were at the crime scene, responded to Officer Viscuso's call within minutes. Appellant was taken to the Ambridge Police Department where he was detained for parole violations and the homicide investigation.
Appellant ultimately was charged with homicide and carrying a firearm without a license. Prior to trial, Appellant litigated a pretrial motion to suppress, which the trial court denied on May 11, 2007. At trial, Appellant testified that he had known Mr. Ogbara for twelve years, and he admitted to having an intimate relationship with the victim's wife, Melissa. The Ogbaras, who were separated, lived within one block of each other. Three or four days before the murder, when the victim discovered Appellant sleeping on Mrs. Ogbara's sofa, he beat Appellant and stole his necklace, gun, and $200. Without further explanation, Appellant stated that a day or two later, Dwayne Corrigan returned the gun Mr. Ogbara had taken. Appellant subsequently learned that he was on Mr. Ogbara's "hit list."
On the evening of April 17, 2006, Appellant went to a friend's apartment at about 8:00 p.m. and started drinking. Appellant, who was armed with his gun and baseball bat, decided to confront Mr. Ogbara. Accompanied by his friend Sam McCracken, Appellant went to the victim's street and hid alongside a neighbor's house. Appellant called Mr. Ogbara from McCracken's cellular telephone and told the victim that he was nearby at the First Street Apartments. When the victim exited his house and began walking toward the First Street Apartments, Appellant tossed away the baseball bat and started after Mr. Ogbara. As he walked across the vacant lot, Mr. Ogbara realized that Appellant was behind him, and the two men walked toward each other. Appellant said that he heard gun shots when the men were within a few feet of each other, and "[I] pulled out my gun and just started shooting." The victim was unarmed.
Eyewitness Michelle Keally observed the shooting from her bedroom window at 2:30 or 2:45 a.m. and described Appellant standing over the prone victim and firing multiple times at him. When Appellant fled the scene, Ms. Keally telephoned 911 and gave a description of the shooter. She testified that she never took her eyes from the victim while waiting for police and paramedics to arrive. Appellant said that he ran to the apartment building of Von McCraken, Sam's brother, [FN2] threw the gun in a storage area of the basement, and ran to Von's apartment.
[FN2] Appellant testified that he did not see Sam McCracken after Appellant used McCracken's telephone to call the victim.
Von McCracken testified that Appellant knocked on his door in the early morning hours of April 18, 2006, and appeared winded and nervous. Mr. McCracken stated that Appellant told him he had just shot Mr. Ogbara, that he threw his gun "by the creek, " and he asked for a place to stay to avoid police. Initially, Mr. McCracken permitted Appellant to remain in the apartment, but when Mr. McCracken's girlfriend, Charmine Caracter, became upset, Mr. McCracken asked Appellant to leave. Appellant asked for a change of clothes,
[FN3] which Mr. McCracken provided, whereupon Appellant left the apartment. Ms. Caracter testified similarly, explaining that Appellant, who was extremely nervous and who looked out the window every "couple of minutes, " stayed in the apartment about an hour until she and Mr. McCracken gave him a change of clothes and made him leave. It was at that point that Officer Viscuso stopped Appellant at 4:45 a.m. Beaver County Detective Timothy J. Straub found Appellant's gun across from the Big Sewickley Creek in Ambridge Borough.
[FN3] The clothes Von McCracken provided Appellant were nearly identical to the clothes Appellant wore when he shot the victim and matched the description of the clothing that Ms. Keally told police. Additionally, Appellant admitted that he changed his clothes in McCracken's apartment and left them behind when he was forced to leave. Eventually, as noted infra, police confiscated the clothing and tested it for gunshot residue.
A jury acquitted Appellant of first degree murder and voluntary manslaughter and convicted him of third degree murder and the firearms violation. On June 6, 2007, the court sentenced Appellant to twenty to forty years imprisonment, consecutive to the sentence for which Appellant was on parole at the time of the ...

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