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Luster v. Commonwealth

United States District Court, W.D. Pennsylvania

February 14, 2017

AARON LUSTER, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          OPINION

          Maureen P. Kelly Chief United States Magistrate Judge

         Aaron 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.

         Petitioner 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.

         I. FACTUAL HISTORY

         The 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 190.
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 previous night.
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 401-402.
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 trauma. Id.

Pa. Superior Court slip op., ECF No. 12-10 at 1 - 9.

         II. PROCEDURAL HISTORY

         A. State Court Procedural History

         The Superior Court summarized the state court procedural history as follows:

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.

         B. Federal Court Procedural History

         Petitioner 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 Dr. ...

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