United States District Court, E.D. Pennsylvania
JOHN G. WATTS, Petitioner,
LAWRENCE MAHALLY, et al., Respondents.
Darnell Jones, II J.
John G. Watts seeks habeas relief, alleging
violations of his constitutional rights in the course of a
state trial that ended in a prison sentence of 24.5 to fifty
years and two months for convictions stemming from a $100
robbery. After careful consideration of the state court
record, this Court finds that the trial judge's decision
to instruct the jury with an obviously irrelevant,
inadmissible and highly prejudicial fact dehors the
record, over defense counsel's objection and in
deprecation of his proper closing argument, deprived
Petitioner of his Sixth Amendment right to a fair trial and
effective assistance of counsel. Because the trial
court's error is per se prejudicial under
clearly established federal law and, in any event, had a
substantial and injurious effect or influence on the
jury's verdict, this Court grants the writ of habeas
corpus and directs the Commonwealth to release
Petitioner from custody unless the state court holds a new
trial within the next six months.
to the state court record, Watts and his alleged
co-conspirator, Dontay Hughes, robbed Nicholas Harris of $100
at a train station in the Germantown section of Philadelphia
around 4:15 p.m. on July 28, 2007. Harris testified the
robbery involved two separate encounters. The first time
Watts and Hughes approached Harris, Watts demanded $20, took
Harris' cell phone and made a phone call. Harris asked
whether he would be left alone if he complied, and Watts
responded “yes.” Harris gave Watts $20 and Watts
returned the cell phone. The assailants left to a different
area of the station. N.T. 11/13/08 at 38:1-40:3.
minutes passed. Watts and Hughes approached Harris again,
each placing a hand on one of Harris' shoulders. Watts
demanded the rest of Harris' belongings, and Harris
complied by turning over his wallet. Watts took the remaining
$80 and returned the wallet. Initially, Harris claimed Watts
and Hughes left after taking the money. Harris went home
without further incident and called the police. He said
nothing about a gun or any threats of harm. Id. at
42:22-44:2. However, after the prosecutor asked Harris
whether the assailants were armed, Harris testified he saw a
bulge on Hughes' hip, which he believed was a handgun.
And, after the prosecutor asked if the assailants had said
anything about a gun, Harris testified that Hughes claimed to
have a “burner” on the side of his hip and
threatened to shoot him “in front of everybody”
if he made a scene. Id. at 44:2-51:6. On
cross-examination, Harris confirmed bystanders had witnessed
the incident without fleeing. Id. at 77:9-78:15. He
also admitted he never saw a firearm. Id. at
police officers responded to Harris' call and, with his
assistance in the police vehicle, they located the alleged
perpetrators about two blocks from the scene of the incident.
Upon seeing Harris in the back of the police car, Watts and
Hughes fled in separate directions. Id. at
56:12-61:4. The officer pursued Watts who entered an
abandoned building and jumped out of a second story window.
After a brief struggle, the officer subdued Watts and
transported him to a hospital and then to the local police
station for arraignment. Commonwealth v. Watts, 619
EDA 2009, slip op. at 2-3 (Pa. Super. Ct. Apr. 21, 2010).
Hughes was purportedly apprehended at a later date. No
handgun was ever recovered from either assailant. See
id. at 21.
custody, Watts called Harris' cell phone. Harris
recognized Watt's voice. He identified himself as
“the boy that robbed you, ” and twice said,
“[Y]oung boy, you don't want to do this.”
N.T. 11/13/08 at 65:6-66:12. Watts changed his tone and
added, “I can get your money back, but, actually, from
the bottom of my heart, please don't do this, I got ten
years back time.” Id. at 66:18-22. According
to phone records, Watts tried to call Harris two more times
from county prison but the calls failed. Watts, 619
EDA 2009, at 2-3.
was charged with first-degree robbery, criminal conspiracy,
terroristic threats, intimidating a witness, criminal use of
a communication facility, carrying a firearm without a
license and possession of an instrument of crime. The
district attorney offered Watts a negotiated plea, including
a recommended sentence of seven to twenty years, but Watts
rejected it and proceeded to trial. See Commonwealth v.
Watts, No. 3157 EDA 2013, 2015 WL 7454021, at *1 (Pa.
Super. Ct. Mar. 4, 2015).
Honorable Chris R. Wogan of Philadelphia's Court of
Common Pleas presided over the jury trial. During closing
argument, defense counsel focused on whether the prosecution
could establish beyond a reasonable doubt that Watts
“threaten[ed] to cause serious bodily injury” as
required for first-degree robbery since there had been no
actual bodily injury in this case. N.T. 11/14/08 at 37:13-25.
Defense counsel questioned Harris' credibility and
reminded the jury that Harris' testimony had a
“tremendous inconsistency” insofar as he had said
“nothing” about the “bulge” until
after the prosecutor “rehabilite[d] . . . or
prompt[ed]” him, as if that recollection was merely an
“afterthought.” Id. at 38:12-39:5.
Defense counsel argued: “This is what reasonable doubt
consists of; inconsistencies in the testimony of the
witnesses.” Id. at 39:1-4. Counsel pointed out
that none of the bystanders appeared in court to corroborate
Harris' testimony, and that Harris' own recollection
suggested they had not been frightened by the incident.
Id. at 39:16-40:20. He argued, “What does that
tell you as to what was going on? That, basically, again, is
a reasonable doubt as to whether there was even a bulge or
there was even anything said about the shooting, because
those people would have moved away.” Id. at
40:15-20. Counsel then questioned whether Harris had ever
felt “threatened” since he did not call the
police until after calling his brother and going home first.
He argued, “If you were just threatened, you would be
calling the police there . . . but [Harris] doesn't act
like you would think a reasonable victim or complainant
would.” Id. at 41:2-12. Lastly, counsel
emphasized that there “was never any gun found in
this case; none, none, none.” Id. at
46:6-7 (emphasis added). He argued, “Don't you
think if they would have found a gun from Dante Hughes
[sic] . . . that the gun would have been here
today?” Id. at 45:19-46:3. He contended this
was “another reason to believe that there is no gun
in this case; that a bulge is a bulge.”
Id. at 46:7-9 (emphasis added).
sidebar, the prosecutor complained that defense counsel had
“made a big deal about the fact that no gun was
recovered from Dante Hughes [sic].”
Id. at 54:25-55:10. The prosecutor claimed that
statement “[was] not true” because a .22 caliber
rifle had been recovered from Hughes pursuant to his arrest
for a “second robbery where a riffle was
used.” Id. The prosecutor believed she
should be allowed to disclose that information to the jury
during her summation although she had chosen not to introduce
the rifle into evidence. Id. at 55:12-23. Neither
defense counsel nor the court was aware of the alleged rifle.
Id. at 55:24-56:10.
of overruling the prosecutor's objection, Judge Wogan
offered to instruct the jury as to the existence of the rifle
in an attempt to “keep this as neutral as
possible.” Id. at 56:12. Defense counsel
objected, “That is going to be extremely prejudicial.
There is a bulge.” Id. at 56:18-19. The court
disagreed, “I don't think it hurts your client, but
we can't leave [the jury] with an impression that is not
true.” Id. at 56:22-24. Defense counsel argued
his statement was true insofar “as the evidence that
came in” did not include any reference to a rifle.
Id. at 56:25-57:2. Judge Wogan acknowledged as much:
“It doesn't sound like a rifle was used by Dante
Hughes [sic] in this courtroom committing this
crime.” Id. at 58:20-22 (emphasis added).
Nevertheless, believing “no one [was] going to think a
rifle was used in this crime, ” he overruled defense
counsel's objection and instructed the jury as follows:
Ladies and gentlemen, you remember what I told you, that
closings and even questions by attorneys may be helpful
guides, but they don't constitute evidence.
In this case - I should say in this situation, the
co-defendant, Dante Hughes [sic], there was no
handgun recovered from Dante Hughes, that is determined that
way and that is correct. There was, however, a rifle that
was recovered from Dante Hughes. Dante Hughes is not on trial
here, but you heard him mentioned as a co-defendant in this
case. So I think I have an obligation to make sure that you
know that there are no misimpressions left with you. And no
one consciously is misleading you. These things happen during
Id. at 59:4-61:23 (emphasis added). Defense counsel
was not afforded the opportunity to comment on the
instruction. Id. at 60:22-61:6. After the
prosecution's closing argument, defense counsel moved for
a mistrial due to the rifle instruction, but Judge Wogan
denied the motion. Id. at 85:21-23. Defense counsel
also moved for a charge of second-degree robbery,
that motion was denied as well. Id. at 115:21-116:8.
The jury convicted Watts of all charges except carrying a
firearm without a license and possession of an instrument of
crime. Id. at 120:10-121:15.
January 20, 2009, Judge Wogan sentenced Watts to 24.5 years
to fifty years and two months in prison. N.T. Sentencing
Hr'g 1/20/09 at 49:10-11. In computing the sentence for
the robbery and criminal conspiracy, the court added a deadly
weapon enhancement. Id. at 44:4-6; 45:4-6. The court
reasoned that the enhancement applied in cases where a
defendant was in close proximity to a co-conspirator carrying
a gun. Id. at 23:4-10. And, even though there was
never a finding that either of the alleged perpetrators
possessed a gun during the robbery, the court deduced
“there was a gun used in this case” because
“there was a bulge.” Id. at 29:6-10.
Furthermore, the court found it relevant that Watts had been
“convicted of a robbery with fear of serious bodily
injury, ” even though he had been acquitted of the
firearm charges. Id. at 23:17-21. The weapon
enhancement did not impact the sentence for robbery. Because
this robbery was a second strike against Watts, the second
strike rule mandated a minimum of ten to twenty years, far
above the guideline range for the robbery even with a weapon
enhancement. Id. at 44:2-17. The second strike rule
did not apply to the other convictions. Thus, the
weapon enhancement affected the sentence for criminal
conspiracy, putting the guidelines range at forty-five to
fifty-seven months (3.75 to 4.75 years), plus or minus twelve
months, due to Watts' offense gravity score of nine and
prior record score of four. Id. at ...