United States District Court, M.D. Pennsylvania
ERIC J. SMITH, Petitioner,
KENNETH CAMERON, PA ATTORNEY GENERAL, Respondents.
John E. Jones III Judge
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.
FACTUAL AND PROCEDURAL BACKGROUND
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).
Pennsylvania Superior Court summarized the relevant facts as
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.
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
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
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
Id. at 188.
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?
Id. at 217-218.
(Doc. 13-3, 3-8).
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).
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
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).
Smith pursued relief in federal court.
ISSUES PRESENTED IN FEDERAL PETITION
instant petition for federal habeas relief was filed on
August 8, 2015. (Doc. 1). Therein, Smith seeks relief on the
1. “Petitioner's constitutional right to a fair
trial was violated because the district attorney withheld
2. “A new trial should be granted where the trial court
failed to offer a Kloiber ...