United States District Court, W.D. Pennsylvania
Maureen P. Kelly Chief United States Magistrate Judge
Luster (“Petitioner”) was convicted of third
degree murder of his seven month pregnant girlfriend and
third degree murder of their unborn child in connection with
an incident where he left the girlfriend on the side of a
highway road, in a compromised condition, after assaulting
her. Thereafter, a passenger car struck and killed the
girlfriend and the unborn baby was also killed.
raises twelve Grounds for Relief in the instant Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (the “Petition”). Because
none of the Grounds merits the grant of federal habeas
relief, the Petition will be denied. Because jurists of
reason would not find denial of the Petition debatable, a
Certificate of Appealability will also be denied.
Pennsylvania Superior Court, sitting en banc, summarized the
evidence presented in this case as follows in its July 23,
2013 Majority Opinion:
On January 28, 2003, at approximately 2:30 a.m., the corpse
of Christine Karcher, (“victim”), was discovered
by police on Route 60 in the Moon Township/Coraopolis area of
Allegheny County. At that time, the victim was approximately
seven months pregnant. She was romantically involved with
Appellant, but lived with Chester Bell. Bell had been the
victim's boyfriend for ten years. She had informed Bell
that Appellant was the father of her unborn child.
On January 27, 2003, at approximately 9:00 p.m., Bell had a
drink with the victim at a Coraopolis bar known as the Black
Stones. The victim was a drug user and a heavy drinker. The
victim left the bar stating that she was going to play cards
with some friends. About one hour later, Bell went home and
fell asleep. At approximately 3:30 a.m. on January 28, 2003,
Bell awoke and discovered that the door to his residence was
open, and that his Dodge Dynasty, cell phone, and a red
Toyota Camry belonging to his employer were missing. Bell
assumed that the victim had borrowed the missing items and
went back to sleep. When he awoke the following morning, the
items were still missing. Bell was unable to reach the victim
on the cell phone. Bell contacted his employer, and the red
Toyota Camry was reported as stolen. Later that day, Bell
learned that the police wanted to speak with him in
connection with the victim's death.
At approximately 10:30 p.m., on January 27, 2003, Eric
Branaugh, the victim's friend, was walking home after
work when he encountered the victim driving the Dodge
Dynasty. The victim appeared drunk, nervous, and afraid. The
victim explained to Branaugh that she and Appellant had
argued, and that she feared Appellant was planning to harm
her. Although Branaugh refused the victim's request to
accompany her to a bar, he gave her his telephone number and
told her that she could call him.
Between 10:00 p.m. and 11:00 p.m. on January 27, 2003,
Michael Smith arrived at Chez Lounge, a bar near the Black
Stones. Smith knew the victim and Appellant. Smith saw the
victim drinking at Chez Lounge. Sometime before 1:00 a.m. on
January 28, 2003, Smith accompanied the victim to a nearby
bar named Wayne's Lounge, and then back to Chez Lounge.
During their return drive to Chez Lounge, the victim's
cell phone “kept ringing, ” but she “kept
… turning it off.” N.T., 3/15-19/04, at 109.
Smith and the victim encountered Appellant when they arrived
at the parking lot of Chez Lounge between 1:00 a.m. and 2:00
a.m. on January 28, 2003. Appellant appeared to be angry with
Smith and the victim. Appellant approached Smith with
clenched fists and accused Smith of having sex with the
victim. Smith explained to Appellant that they were merely
friends. Appellant then said to the victim, “[G]et the
f out of the car, now, you bitch.” Id. at 111.
Smith described Appellant as “real angry” and
reported that Appellant also said “get the F out of the
car, are you F'ing my girlfriend, what the hell, I've
been calling you, what the F.” Id. at 112.
Smith entered the bar after being assured by the victim that
she was “okay.” Id. at 111. Smith exited
the bar approximately five minutes later and noted that
Appellant and the victim had left. Smith observed that the
Dodge Dynasty that the victim had been driving was in the
parking lot, while the red Toyota Camry that Appellant had
been driving was gone.
Following her departure with Appellant, the victim made
several calls to 911 with Bell's cell phone. The
conversations with the 911 operator began at 1:52 a.m. on
January 28, 2003. During the 911 calls, the victim was either
moaning and crying, or desperately pleading for help while a
male voice was heard in the background. The recordings of
those 911 calls were played for the jury and they lasted
twelve to fifteen minutes. Bell listened to the 911 calls and
identified the male voice as belonging to Appellant.
Id. at 377. On January 28, 2003 at 2:09 a.m., state
police in the area of Route 60 were advised “to be on
the lookout for a red Toyota Camry with a female possibly
being assaulted on the interstate.” Id. at
The victim also telephoned Branaugh. In that telephone
conversation, the victim told Branaugh that Appellant was
trying to kill her. Branaugh overheard Appellant in the
background threatening to kill the victim. Branaugh was
unable to ascertain where the victim was calling from and he
did not obtain help for her.
At approximately 2:15 a.m. on January 28, 2003, the victim
was lying prone on Route 60 when she was struck by a vehicle
driven by James Caleffi. Caleffi had a few beers prior to the
incident and thought that he had hit a deer or other object.
He stopped his vehicle in a hotel parking lot nearby. Caleffi
phoned 911 to report that there was an obstruction on the
road. Police discovered the victim's corpse on Route 60
at approximately 2:30 a.m. Most of the victim's brain was
on the road next to her body. Her unborn child had died as
well. A police accident reconstructionist was immediately
dispatched to the scene, and his subsequent investigation
included a review of the accident scene, Caleffi's car,
and the red Toyota Camry. He concluded that Caleffi ran over
the victim's head while she was lying on the road.
Sometime in the early morning hours of January 28, 2003,
Appellant gave the red Toyota Camry to James Dixon in
exchange for crack cocaine. During the same time frame,
Appellant used Bell's cell phone to call his wife,
Cherryl Ann Luster (“Wife”). Appellant asked his
wife, “will you love me no matter what I did[?]”
Id. at 132. Wife answered affirmatively, but
Appellant refused to tell her what he had done. Later in the
day on January 28, 2003, Wife saw Appellant at his
mother's home. Wife testified that she observed Appellant
kneeling over a bed with his hands on his face. Appellant
would not respond to Wife's inquiries about why he
appeared upset. Police then arrived at the residence.
Appellant gave two statements to police. On January 28, 2003,
at approximately 5:00 p.m, State Trooper Kevin S. Scott went
to Appellant's home. Appellant agreed to accompany
Trooper Scott to the police station. Trooper Scott testified
that during the trip, Appellant asked Trooper Scott whether
the investigation was “about the girl that got hit on
60 last night.” Id. at 399. Trooper Scott
responded affirmatively and said that police were attempting
to ascertain a timeline of the victim's whereabouts the
Trooper Scott further testified that Appellant stated he had
been “partying in Coraopolis” with the victim,
that they had gone to Bell's home “to get some
money for crack, ” and that the victim had left
Appellant at Bell's home. Id.
Appellant reported to Trooper Scott that following the
victim's departure, Appellant took the keys to the red
Toyota Camry and Bell's cell phone and began looking for
her. Id. at 399-400. Appellant told Trooper Scott
that Appellant found the victim with another man.
Id. at 400. Trooper Scott testified that Appellant
explained that “there was an argument” and
Appellant “put [the victim] into the Camry and said
we're going to go to Carnegie [where Appellant and the
victim had an apartment together] to try to work things
out.” Id. Appellant explained to Trooper Scott
that the “fighting intensified” while they were
on the way to Carnegie. Id. According to Trooper
Scott, Appellant “said that [the victim] didn't
want to go to Carnegie so he was going to put her out of the
car.” Id. Trooper Scott stated that
Appellant's exact words were that he planned to
“put her out of the car.” Id. Appellant
relayed that at that point, Appellant and the victim observed
a police car and “the fighting relaxed, ” but as
soon as they “passed the police car, the fighting got
more intense.” Id. at 400-401. Appellant
“said that is when he put her out of the car. Slammed
the gear shift into park and put her out of the car.”
Id. Appellant offered to show Trooper Scott
“where he put her out of the car.” Id.
at 401. “After [Appellant] told [Trooper Scott] that he
put her out of the car four times, then he showed [Trooper
Scott] where it occurred.” Id. at 401.
Appellant showed Trooper Scott that Appellant removed the
victim from the Camry at the point where the victim's
body was found. Id. Appellant concluded his
conversation with Trooper Scott by relating that after he
removed the victim from the car, he went to another section
of Pittsburgh to purchase crack cocaine. Id. at
State Trooper Pierre Wilson testified that Appellant agreed
to speak with police once Appellant arrived at the police
station. A tape recording of this interview was played for
the jury at trial. Id. at 379. That interview was
not placed in the trial transcript, but trial counsel's
closing arguments indicate that Appellant told police that
Appellant and the victim were arguing while they were
traveling along Route 60 in the red Toyota Camry.
Id. at 455. According to Appellant, the victim
“threw the car into park, ” propelling Appellant
and the victim “forward.” Id. at 455.
The victim “banged her face into [the]
dashboard.” Id. Appellant reported that the
victim then left the car of her own accord and ran away.
Id. at 453.
In the course of their investigation, police found the
victim's blood on Appellant's clothing and on three
different locations inside the red Toyota Camry. A hair
matching the victim's DNA was discovered wrapped around a
bar located on the rear passenger side of the undercarriage
of the Toyota.
Dr. Leon Rozin, chief forensic pathologist with the Allegheny
County Coroner's Office, autopsied the victim's body.
Dr. Rozin testified that the victim was severely intoxicated
and had a blood alcohol content of .35%. Id. at 329.
According to Dr. Rozin, the victim had cocaine metabolites in
her urine. Id. The unborn child was normally
developed and died from cessation of blood flow due to the
victim's death. Id. at 331. The majority of the
trauma was located on the victim's head and the upper
portion of her chest, while the abdomen and baby were intact.
The victim's head had been squeezed between a tire and
the surface of the road such that her skull was totally
disfigured and the brain was located on the road. Dr. Rozin
concluded that the skull disfigurement was consistent with
the victim lying on the ground and having been run over by
“at least one tire of a motor vehicle.”
Id. at 333. Her right shoulder also sustained a
“huge laceration.” Id. at 334. As to her
upper torso, her ribs were fractured and her heart had been
crushed. Both of the victim's bones in her right forearm
were fractured. Id. at 340. Several bruises and
abrasions were found on the victim's chest and abdominal
areas, and two bruises were located on the inner surface of
her right arm. The victim's hands and left arm were
bruised and she had a strangulation injury around her neck.
None of these injuries were inflicted by a car, but rather,
were the result of a manual assault. Id. at 337-39,
343. Dr. Rozin concluded that the victim died from being run
over by a car while lying on the highway, and that the
manually-inflicted injuries, coupled with the level of
intoxication, would have “compromised” the
victim. Id. at 353. Dr. Rozin stated that the victim
would not have been “incapacitated” by the manual
Pa. Superior Court slip op., ECF No. 12-10 at 1 - 9.
State Court Procedural History
Superior Court summarized the state court procedural history
Appellant was charged with the aforementioned murder crimes.
On March 19, 2004, following a weeklong trial, a jury found
Appellant guilty of third degree murder in both the death of
the victim and her unborn child. Two months later, Appellant
was sentenced to two consecutive terms of imprisonment of
seven to 14 years, for an aggregate term of imprisonment of
14 to 28 years. Appellant filed a timely direct appeal
challenging the sufficiency of the evidence, the trial
court's jury instructions on causation and the trial
court's ruling which permitted the Commonwealth to play
the 911 tape recording to the jury. On April 17, 2006, this
Court affirmed the judgment of sentence. Commonwealth v.
Luster, 902 A.2d 979 (Pa. Super. 2006) (unpublished
memorandum). On February 27, 2007, the Pennsylvania Supreme
Court denied Appellant's petition for allowance of
appeal. Commonwealth v. Luster, 917 A.2d 313 (Pa.
2007). Appellant filed a timely pro se PCRA petition
on July 5, 2007. Counsel was appointed, but on February [sic]
11, 2008, counsel filed a petition to withdraw his
appearance, and a no-merit letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). Two days later, the PCRA court granted counsel's
petition to withdraw. On April 4, 2008, the trial court
denied Appellant's PCRA petition without holding an
evidentiary hearing. Appellant filed a pro se appeal
to this Court. On September 21, 2009, a panel of this Court
concluded that at least seven of the issues raised by
Appellant in his PCRA petition were, potentially, of arguable
merit. Thus, we reversed the order of the PCRA court and
remanded the case “with directions for the trial court
to reinstate [Appellant's] PCRA petition, and appoint new
counsel to assist him in his pursuit of PCRA relief.”
Commonwealth v. Luster, 986 A.2d 1259 (Pa. Super.
2009) (unpublished memorandum at 31).
Upon remand, the PCRA court appointed Scott Coffey, Esquire,
to represent Appellant. Mr. Coffey filed an amended PCRA
petition on March 2, 2010. However, Appellant refused to sign
a verification for the petition since he asserted that he
wished to raise several more issues in his PCRA petition.
Following a brief hearing on October 27, 2010, Mr. Coffey
filed a second amended PCRA petition in which he included the
additional issues Appellant wished to raise. The PCRA court
conducted a hearing on January 11, 2011, at which both trial
and direct appeal counsel testified. On February 28, 2011,
the PCRA court entered an order, with an accompanying
opinion, again dismissing Appellant's petition for PCRA
relief. This timely appeal followed.
Pa. Superior Court slip op., ECF No. 12-10 at 9 - 10. A panel
of the Superior Court reversed and remanded. ECF No. 12-8 at
11. The Commonwealth petitioned for reargument en banc, which
was granted. The Superior Court en banc then affirmed, with
one judge concurring in the result and three judges
concurring and dissenting. Majority slip op., ECF No. 12-10
at 1 - 45; Concurring and Dissenting slip op., ECF No. 12-11
at 1 - 22. On December 27, 2013, the Pennsylvania Supreme
Court denied Petitioner's Petition for Allowance of
Appeal. ECF No. 12-11 at 21 - 22.
Federal Court Procedural History
filed the instant Petition in this Court, raising the
following twelve Grounds for Relief:
GROUND ONE: Superior Court erred and abused its' [sic]
discretion in reversing their decision of a new trial and
affirming the trial court order since trial counsel was
ineffective for failing to cross-examine Eric Branaugh
regarding trial testimony that was inconsistent with the
statement that he had given to the police.
ECF No. 1 at 5
GROUND TWO: Superior Court erred and abused its' [sic]
discretion in reversing their decision of a new trial and
affirming the trial court order since trial court erred in
letting Defendants' [sic] wife testify and Appellate
Counsel was ineffective for failing to challenge testimony
given by Defendants' [sic] wife on redirect.
Id. at 7.
GROUND THREE: Superior Court erred and abused its' [sic]
discretion in affirming the trial court order since trial
counsel was ineffective for failing to impeach the coroner