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Smith v. Cameron

United States District Court, M.D. Pennsylvania

May 16, 2017

ERIC J. SMITH, Petitioner,


          Hon. John E. Jones III Judge

         Petitioner Eric Smith (“Petitioner” or “Smith”) a prisoner currently confined at the State Correctional Institution at Houtzdale, Pennsylvania, files the instant petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254, following affirmation of his convictions for Robbery and related crimes. For the reasons that follow, the petition for writ of habeas corpus will be denied.


         Following a jury trial in the Court of Common Pleas of Montour County, Pennsylvania, Smith was convicted of robbery, conspiracy to commit robbery and theft, and sentenced to an aggregate term of 10 to 20 years' incarceration. (Doc. 13-3, p. 1). He filed a timely notice of appeal raising the following issues:

1. Did the court err in denying Appellant's Motion for a Mistrial when the Commonwealth presented testimony of a police officer containing an improper comment on [appellant's] constitutional right to remain silent?
2. Was the Appellant denied his right to a fair trial when the District Attorney made an improper demonstration in front of the jury regarding the appearance of the individual who committed the robbery?
3. Was the Appellant denied his right to a fair trial when the District Attorney made an improper appeal to the jury to bring back a verdict of guilty based on being “the conscience of the community” rather than basing the verdict solely on the facts of the case?
4. Did the court err when it imposed an aggravated range sentence using as aggravated factors items which were already included as elements in the underline [sic] offense, and did the court fail to consider all mitigating factors specific to Appellant's case and individualize sentence based upon the characteristics of the Appellant?

(Id. at pp. 2-3).

         The Pennsylvania Superior Court summarized the relevant facts as follows:

On July 14, 2008, at approximately 5:00 p.m., two individuals, a male and a female, were seen entering Ryan's Jewelers in Danville. (Notes of Testimony, 6/10/09 at 25-28). Joseph Ozelek (“Ozelek”), who was standing across the street, noticed that the male was carrying a black bag and wearing a black leather coat, unusual for a warm summer day. (Id. at 26). The female was dressed in a light grey business suit. (Id.)
Ozelek watched them enter the jewelry store, and shortly thereafter heard a scream. (Id. at 28.) Through the store window, Ozelek saw the female walking somebody around the back side of the counter, and the male waving his right hand up by his head. (Id. at 29.) At that time, Ozelek walked up the street to a nearby police station, and informed them that there was a possible robbery in progress at Ryan's Jewelers. (Id. at 29-30, 140.)
Two employees and one customer were in the store at the time of the robbery, and described what happened. Linda Cavanaugh (“Cavanaugh”) testified that she and her co-worker, Margaret Hunsinger (“Hunsinger”), were in the process of closing the store when two African-Americans, one male and one female, entered. (Id. at 38.) Cavanaugh testified that they entered quickly and went straight to the counter. (Id. at 39.) Cavanaugh, Hunsinger, and the customer, Dr. Michelle Olson (“Dr. Olson”), were sprayed with pepper spray. (Id. at 39-40.) Cavanaugh testified that her face was burning and she could not see. (Id. at 40.) The black male told them to “shut up” and repeatedly demanded “where are the Rolexes?” (Id. at 40, 42.)
As Cavanaugh was bent over screaming in pain, she felt something pressing against the back of her neck. (Id. at 40-41.) Cavanaugh testified that she assumed it was a weapon and that “I was done.” (Id. at 41.) In fact, the weapon was a stun gun which the male used to immobilize Cavanaugh. (Id. at 43.) Shortly thereafter, Officer Gerard Zeidler arrived on the scene. (Id. at 44.) After a short confrontation with Officer Zeidler, the intruders left and Cavanaugh called 911. (Id. at 47.)
Cavanaugh testified that the female was wearing sunglasses and the male was wearing a baseball hat and large black sunglasses. (Id. at 46.) The male's baseball hat was worn low, covering his forehead, and his sunglasses concealed a good portion of his face. (Id. at 46-47.) Combined with the fact that she had pepper spray in her eyes, Cavanaugh was unable to make an identification. (Id. at 47.)
Hunsinger also testified that the male had a baseball hat pulled down low over his eyes, preventing her from identifying him. (Id. at 60, 71.) The female was wearing a grey pant suit, a wig, and large sunglasses. (Id. at 60-61.) Hunsinger was sprayed with pepper spray and also stunned with the stun gun. (Id. at 63-64.) Hunsinger was shocked at least five times with the stun gun, and described it as “very painful.” (Id. at 66.) Hunsinger testified that they were all terrified. (Id. at 64.)
Dr. Olson was in Ryan's Jewelers picking up a ring she had sized. (Id. at 82.) Dr. Olson, who is a colorectal surgeon at Geisinger Medical Center, was about to complete the transaction when she was sprayed in the face with pepper spray. (Id. at 81, 84). She started to make her way to the door when a male voice said, “where are you going? Get down.” (Id. at 84, 87.) Dr. Olson testified that her face was burning and she dropped to her knees. (Id. at 88.) At that point, she heard the man saying, “tie them up, ” and her arms and wrists were duct-taped together. (Id. at 88-89.) Dr. Olson testified that her face felt as though it were on fire, and she could not see. (Id. at 89.) She was fearful that she would be permanently blinded. (Id. at 90.) Eventually, she heard another voice saying, “get down or I'll shoot, ” and after a brief scuffle, there was the sound of people running toward the back of the store. (Id. at 91.) As in the case of Cavanaugh and Hunsinger, Dr. Olson testified that she would be unable to identify the perpetrators due to the fact that they were wearing dark sunglasses. (Id. at 95.)
Officer Zeidler testified that at approximately 5:15 p.m. on July 14, 2008, he was informed by the police clerk that “someone thinks there is a robbery going on down the street.” (Id. at 140.) He was told that it was at Ryan's Jewelers, which is only 270 feet from the police station. (Id. at 140-141.) After observing the actions of the two individuals through the store window, Officer Zeidler concluded that there was, in fact, a robbery in progress. (Id. at 142-143.)
Officer Zeidler drew his weapon, opened the door, and shouted, “Police, stop. Show me your hands. Get to the ground.” (Id. at 143, 145.) Officer Zeidler testified that the female suspect stood still behind the counter, near the vault; the male suspect was squatting on the ground and concealing his right hand. (Id. at 144.) Concerned that the male was holding a weapon, Officer Zeidler continued to yell “show me your hands. Get on the floor.” (Id. at 145-146.) Finally, when the male individual continued to refuse to obey Officer Zeidler's commands, Officer Zeidler told him “don't make me shoot you.” (Id. at 146.) The male replied, “you are going to shoot me?” (Id.) Officer Zeidler stated, “not if you show me your hands and get on the floor.” (Id.) At that point, the male suspect knelt down and placed both hands on the floor. (Id.)
As the male slowly went down to the floor, his female accomplice started to walk out the back door. (Id.) Officer Zeidler instructed her to stop but she did not. (Id. at 147.) At that time, the male suspect leapt up and sprinted out the back door of the jewelry store. (Id. at 148.) Officer Zeidler re-holstered his weapon and gave chase. (Id.) Eventually, Officer Zeidler tackled the male suspect and, with backup assistance, was able to handcuff him. (Id. at 151). The male individual, subsequently identified as appellant herein, had a can of pepper spray labeled “Whoop Ass” in his pants pocket. (Id. at 153.) An identical can of “Whoop Ass” red pepper spray was found behind the jewelry store counter. (Id. at 118; Commonwealth's Exhibit 26.)
Officer Zeidler testified that during the chase, he never lost sight of appellant. (Id. at 150, 159.) He also positively identified appellant at trial as the person he saw in the jewelry store and the person he took into custody. (Id. at 159.)
Appellant took the stand in his own defense. According to appellant, he was on his way back to Philadelphia from Williamsport when he and two companions got lost in Danville. (Id. at 179-180.) Appellant decided to run into Ryan's jewelry to buy some hoop earrings for his daughter. (Id. at 180.) Appellant testified that while he was in the store, a woman sprayed him with pepper spray. (Id. at 183.) A male voice told him to “shut up, don't move.” (Id. at184.) Appellant testified that after Officer Zeidler arrived and the unidentified woman walked out the back door, he ran after her in pursuit. (Id. at 187.) Appellant further testified:
And, the last thing I said to the Officer after that was “don't let her get away, don't let her get away.” And a [sic] I ran out the store. I wasn't fleeing from the [sic] Officer Zeidler. I wasn't thinking about [O]fficer [Z]eidler. I chased the woman, and I was screaming and yelling through the streets “help help, help, stop that car, help, stop that car.”

Id. at 187. Appellant testified that he was also a victim of the robbery and that he was trying to apprehend the female suspect:

I just was screaming at the top of my lungs “help, help.” A car pulled up on the side of me and I was screaming, “help, stop that car.” I don't know I don't want to offend nobody [sic], but I am running through the streets. So, they just looked at me crazy.

Id. at 188.

         In rebuttal, the Commonwealth recalled Officer Zeidler. Officer Zeidler testified that he never heard appellant shouting for assistance in apprehending the female suspect:

Q. What assistance did he request from you in going after a third party that he was, according to his testimony, trying to chase or capture?
A. Absolutely none whatsoever.
Q. What did he tell you when you apprehended him about any woman or any person attacking him in the store?
A. Nothing.

Id. at 217-218.

(Doc. 13-3, 3-8).

         In affirming the judgment of sentence, the Superior Court addressed each of Smith's issues on the merits with the exception of his contention that the trial court failed to consider mitigating factors when imposing sentence. (Id. at pp. 8-17; Commonwealth v. Smith, 24 A.3d 451 (Pa. Super. 2011) (unpublished memorandum). Because Smith failed to discuss the mitigating factors in the argument section of his brief, the Superior Court deemed the issue waived pursuant to Pa.R.A.P. 2119(a). He filed a timely petition for allowance of appeal raising all of the above issues to the Supreme Court of Pennsylvania; the petition was denied. Commonwealth v. Smith, 612 Pa. 704, 30 A.3d 1193 (Pa. 2011).

         On July 12, 2012, Smith filed a timely Post Conviction Relief Act (“PCRA”) petition pursuant to 42 Pa.C.S. §§ 9541-9546, which was denied following a June 10, 2013 hearing. (Doc. 13-7). His timely appeal sought review of six issues. First, he argued that his constitutional rights to a fair trial were violated because the Commonwealth withheld exculpatory evidence. (Doc. 13-11, p. 4). Second, he contended that the trial court erred in failing to offer a jury instruction in accordance with Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). (Id. at 4-5). In addressing the first two issues, the Superior Court stated that the issues were “woefully underdeveloped.” (Id. at 5). “Appellant sets forth no coherent argument for either issue; nor, in violation of Pa R.A.P. 2119, does he cite to the testimony from the PCRA hearing. Moreover, Appellant has not presented the issues properly in the context of a claim for ineffective assistance of counsel or another claim otherwise cognizable under the PCRA. Accordingly, we cannot review these issues on appeal.” (Id.) (footnote omitted). The remaining issues were identical to the issues Smith pursued in his direct appeal. (Id. at 5-6). The Superior Court noted the following:

Appellant's next four issues, which include Appellant's post-arrest silence, an improper demonstration to the jury, improper statements in the Commonwealth's closing argument, and the imposition of a sentence in the aggravated range, are a mere recitation of the four issues Appellant raised on direct appeal. All four issues were found to be without merit on direct appeal; thus, those issues have been previously litigated pursuant to 42 Pa.C.S.§ 9544(a)(2), and Appellant is not entitled to re-litigate them at this time.
Because Appellant has not presented any issue which we can review on appeal, we affirm the order of the PCRA court dismissing his PCRA petition.

(Id. at 6). A timely petition for allocator was filed with the Pennsylvania Supreme Court and denied on May 4, 2015. (Doc. 13-14).

         Thereafter, Smith pursued relief in federal court.


         The instant petition for federal habeas relief was filed on August 8, 2015. (Doc. 1). Therein, Smith seeks relief on the following grounds:

1. “Petitioner's constitutional right to a fair trial was violated because the district attorney withheld exculpatory evidence.”
2. “A new trial should be granted where the trial court failed to offer a Kloiber ...

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