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Tielsch v. Capozza

United States District Court, W.D. Pennsylvania

September 25, 2019



          Lisa Pupo Lenihan United States Magistrate Judge.

         Pending before the Court is a Petition for Writ of Habeas Corpus (“Habeas Petition”) filed by Petitioner Steven Michael Tielsch (“Petitioner” or “Tielsch”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his judgment of conviction for third-degree murder and his sentence of ten to twenty years imprisonment entered by the Court of Common Pleas of Allegheny County on November 13, 2002.[1] For the following reasons, the Petition and Petitioner’s request for an evidentiary hearing will be denied. A certificate of appealability will also be denied.

         A. Factual and Procedural Background

On April 17, 1986, Tielsch and Kevin Ohm were driving around the Squirrel Hill section of Pittsburgh in a black Corvette. At approximately 9:15 p.m., the victim, Neil S. Rosenbaum, a rabbinical student from Canada, was walking toward the intersection of Phillips and Pittcock Avenues when Tielsch and Ohm pulled up in the Corvette. The pair asked the victim for directions. As the victim approached the vehicle, Tielsch opened fire and shot the victim four to five times. Immediately after the shooting, Tielsch and Ohm drove off. Shortly thereafter, before he passed away, the victim told Officer Albert Stegena that a black Corvette had pulled up to him and that two white males had been in the vehicle.
The victim had bullet wounds to his chest, right elbow, right buttock, left buttock, and right wrist. Leon Rozin, M.D., the chief of forensic pathologist for Allegheny County, testified that it was possible that the bullet which entered the victim’s chest also caused the wound to the elbow. See N.T., Trial 4, 9/4/02, at 218-219.
Although an intensive investigation took place, little was learned as to the killer’s identify until early 1988 when representatives from the District Attorney’s Office and the local police department met with Sanford Gordon. Gordon told the police that Tielsch had bragged about the killing while the two had been housed at the Allegheny County Jail.
Additional evidence came to the Commonwealth’s attention through Michael Starr. While Starr was under federal indictment, he related to the authorities that he was involved in an incident in the summer of 1991. Starr had been at a nightclub in the Strip District of Pittsburgh when he got into an altercation with Tielsch. According to Starr, Tielsch eventually pulled his jacket to the side and exposed the butt of a gun to Starr, and said: “I wacked some Jew f-k and I would have no trouble doing you too.”
Tielsch was subsequently arrested for the victim’s murder on February 17, 2000, On January 23, 2001, the first jury trial commenced. On February 13, 2001, the jury informed the trial court that it was hopelessly deadlocked; a mistrial was eventually declared. On November 26, 2001, the second jury trial began, but again the result was a mistrial due to a deadlocked jury. On May 13, 2002, the third jury trial began, but once again, the jury informed the trial court that it was deadlocked without hope for a unanimous verdict.
As stated above, this appeal is a result of the fourth jury trial, which began on August 27, 2002, and ended on September 13, 2002, when the jury returned its verdict finding Tielsch guilty of third-degree murder.
Following his conviction at the fourth trial, Tielsch was sentenced, on November 13, 2002, to a term of imprisonment of ten to twenty years on the conviction for third-degree murder.

Commonwealth v. Tielsch, 934 A.2d 81, 83-84 (Pa. Super. 2007) (footnotes omitted).

         The Superior Court of Pennsylvania affirmed Petitioner’s judgement of sentence in a published opinion dated August 23, 2007, and denied his Application for Reargument on November 1, 2007. (Resp’t Ex. 2, ECF No. 20-1, p.38); (Resp’t Ex. 5, ECF No. 20-4, pp.1-39.) The Supreme Court of Pennsylvania denied Petitioner’s Petition for Allowance of Appeal (“PAA”) on May 30, 2008. (Pet’s Ex. 6, ECF No. 20-4, pp.41-43.) Petitioner’s direct appeal proceeding concluded when a Writ of Certiorari was denied by the Supreme Court of the United States on December 8, 2008. (Resp’t Ex. 8, ECF No. 20-5, pp.1-2); (Res’t Ex. 9, ECF No. 20-5, pp.3-40.)

         On December 16, 2008, Petitioner filed a pro se Petition pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”) and the case was declared complex. (Pet’r Ex. T, ECF No. 1-24.) Petitioner was appointed an attorney and the trial court granted his request for the appointment of a private investigator. Through counsel, Petitioner filed an two Amended PCRA Petitions and two Supplements thereto (“PCRA petition”). (Pet’s Exs. U, W, X, Y, Z, AA, ECF Nos. 1-25, 1-27, 1-28, 1-29, 1-30, 1-31.) The PCRA Petition was dismissed on November 16, 2012. (Resp’t Ex. 1, ECF No. 20-1, p.35.)

         Petitioner appealed the dismissal of his PCRA Petition and the Superior Court affirmed the dismissal in a Memorandum Opinion dated May 15, 2015. (Resp’t. Exh. 15, ECF No. 20-9.) The Superior Court found that Petitioner’s Brief did not comply with Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure and also found several of the claims waived. Id. Reargument was denied on July 20, 2015, and no PAA was filed with the Pennsylvania Supreme Court.

         Through counsel, Petitioner filed his Habeas Petition in this Court on May 10, 2016. (ECF No. 1.) Respondents filed their Answer on September 15, 2016, and Petitioner filed a Response on October 1, 2017. (ECF Nos. 20, 44.)

         B. Standard of Review

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court’s resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law, ” as the term is used in Section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000).

         If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 F. App’x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[, ] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third Circuit recently explained that,

[w]hile a determination that a state court’s analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is “firmly convinced that a federal constitutional right has been violated, ” Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner’s claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).

         The AEDPA further provides for relief if an adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state court decision is based on an “unreasonable determination of the facts” if the state court’s factual findings are “objectively unreasonable in light of the evidence presented in the state-court proceeding, ” which requires review of whether there was sufficient evidence to support the state court’s factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court’s determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).

         C. Discussion

         Petitioner raises four claims in his Habeas Petition. First, Petitioner claims that he was denied his due process to present a defense by the exclusion of testimony from two proffered defense witnesses. Second, Petitioner claims that he was denied the effective assistance of counsel because his counsel failed to argue, on direct appeal, that Musselwhite’s statement was an excited utterance. Third, Petitioner alleges misconduct on the part of the prosecutor. Fourth, Petitioner alleges another claim of ineffective assistance of counsel for advising him not to testify at trial.

         1. Claim one

         Petitioner first claims that the trial court’s application of Pennsylvania’s Rules of Evidence violated his due process right to present a defense when it ruled that the testimony of Charles Musselwhite (“Musselwhite”) and Stephanie Maddich (“Maddich”) was inadmissible. The following background is relevant to this claim.

         a. Trial court[2]

         On December 4, 2001, during Petitioner’s second trial, Petitioner’s trial counsel (“trial counsel”) stated that he had received discovery of a detective’s report dated April 23, 1986, indicating that Crime Stoppers had been contacted the day after the murder by a female who claimed that Musselwhite had called her frantic and upset at approximately two to three in the morning and “wanted to talk to somebody about the [shooting of Mr. Rosenblum]”. N.T., Trial 2, 12/4/01, pp.1140-41. She said that Musselwhite told her that “he was a passenger in a car where his friend went beserk and shot a kid in Squirrel Hill.” Id at p.1141. Trial counsel said that after relentless attempts to discover the identity of the female who called Crime Stoppers, he finally learned that her name was Stephanie Maddich, Musselwhite’s ex-girlfriend who was married and residing in New Jersey at the time of the crime. Id. at pp.1141-42, 1144.

         When asked to proffer the testimony of Maddich, trial counsel said that she would testify that she received a phone call from Musselwhite around two or three in the morning and he was very upset and crying. Id. at pp.1144-45. He told her that he was in the back seat of a car when the individual in the front seat shot some kid in Squirrel Hill. Id. at p.1145. He frantically asked her what he should do and Maddich told him to “call the police.” Id. Maddich would also recall reading about the Rosenblum murder in the newspaper the following day and calling Crime Stoppers, whose number was listed in the story. Id. at p.1146. As to Musselwhite, who had consistently denied calling Maddich when he was questioned by detectives in the weeks following the murder, trial counsel proffered that on December 2, 2001, Musselwhite was interviewed by Detective Hitchings and admitted to calling Maddich a few days after the murder and telling her that “he did it.”[3] Id. at pp.1142-43, 1156. However, Musselwhite claimed that he was drunk when he called her and only said that he did it “to impress her and make her believe he was a big guy on campus.” Id. at p.1142.

         The prosecutor objected to the proffered testimony as irrelevant, id. at pp.1146-48, and Judge O’Brien (“the trial court”) questioned as to whether there was also a hearsay problem with the testimony, id. at p.1152. Trial counsel, however, argued that Musselwhite’s statement to Maddich was admissible as a statement against penal interest and as an excited utterance. Id. at pp.1154-55. Trial counsel also argued in the alternative that the statement was not hearsay because it was not being offered to prove the truth of the matter asserted, but rather lack of a proper investigation by the police. Id. at pp.1198-91.

         After returning from a recess to review case law on the matter and receiving additional argument from the parties, id. at pp.1163-92, the trial court ruled that Musselwhite’s statement was not an excited utterance because he said that he did it in order to impress Maddich, which, in his opinion, demonstrated deliberation. Id. at p.1194. The court also ruled that Musselwhite’s statement was hearsay because it was being offered for the truth of the matter asserted, that another Musselwhite, and not Petitioner, had shot the victim, and that it did not meet the requirements for the statement against interest exception to the hearsay rule.[4] Id. at p.1195. Specifically, the rule required the declarant to be unavailable and the presence of corroborating circumstances that demonstrated the statement’s trustworthiness. In this case, however, the declarant himself, Musselwhite, was the witness and he would testify that, not only was he drunk when he made the statement, but it was not true and he only said it to impress Maddich, who had a completely different recollection of the phone call. Id. at pp.1195-98. Despite trial counsel’s argument that the admission of Musselwhite’s statement was supported by Chambers v. Mississippi, 410 U.S. 284 (1973), the court concluded that, unlike the third-party confessions at issue in Chambers, it was not “made under circumstances showing trustworthiness, ” and, if admitted, could lead the jury to conclude that Musselwhite was the killer “based on absolutely almost zero evidence . . . except his own drunken statement to an old girlfriend in the middle of the night.” Id. at pp.1198-99. The court also found that even if the statement was offered not to prove the truth of the matter asserted but to show that the police did not conduct a proper investigation, the prejudice of the statement would still greatly outweigh any probative value. Id. at p.1199.

         On May 13, 2002, just as the third trial was to begin, trial counsel made a request to put on the evidence from Maddich and Musselwhite saying, “It was very critical for the defense.” N.T., Trial 3, 5/13/02, pp.29-36. Trial counsel explained the prior ruling by Judge O’Brien and offered a “reproffer.” Id. at pp.31-35. Counsel stated that he would put Musselwhite on the stand and ask him directly whether he was in the car when “a man was shot in Squirrel Hill” and “let him answer how he wants to answer” because any denial would be impeached by Maddich, whose testimony would be admissible as a prior inconsistent statement. Id. at p.31. The prosecutor contended that the information trial counsel just provided was the same as that presented to Judge O’Brien, id. at p.33, and Judge O’Toole stated that he could not change Judge O’Brien’s earlier ruling on the issue.[5] Id. at p.35.

         On August 30, 2002, prior to the fourth trial, the defense filed a petition to reconsider the order denying the defense’s request to produce the testimony of Musselwhite and Maddich, and raised the issue again on September 3, 2002, just as the fourth trial began. N.T., Trial 4, 9/3/02, pp.43-46. The attempts to have the testimony admitted were unsuccessful.

         b. Direct appeal

         On direct appeal, Petitioner claimed that he was denied his due process right to present a defense when the trial court prevented him from disclosing to the jury Musselwhite’s statement to Maddich. In its Opinion filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court stated the following:

During the second trial in this matter, outside of the presence of the jury, there was a lengthy discussion between counsel and Judge O’Brien with regard to the defense request to present the testimony of Charles Musselwhite and Stephanie Maddich. Defense counsel made the following offers of proof: Mr. Musselwhite would testify that while drunk shortly [after] the shooting, he called his [ex]girlfriend and told her that he had done it; however, he was lying and he told her that he had committed the murder to impress her and be “the big man on campus”. Ms. Maddich, who was living in New Jersey at the time, would testify that she received a telephone call from Mr. Musselwhite in the middle of the night and he was frantic. He told her that he was in the back seat of a car and his friend, who was in the front seat, went beserk and “shot some kid in Squirrel Hill”. She told him to call the police and she called Crime Stoppers the next day after she heard news reports about the shooting of a rabbinical student in the Pittsburgh area. At the conclusion of the discussion, Judge O’Brien ruled as follows, which ruling is adopted herein: The testimony of Mr. Musselwhite was inadmissible hearsay because it was an out-of-court statement being introduced to prove the truth of the matter asserted and it did not fall into one of the exceptions to the hearsay rule. The testimony of Stephanie Maddich was inadmissible under the excited utterance exception to the hearsay rule because there was no independent corroboration from another source that Mr. Musselwhite actually witnessed the shooting that he claimed to have witnessed, which Judge O’Brien found to be required pursuant to Commonwealth v. Upshur, 764 A.2d 60 (Pa. Super. 69). (N.T. 11/26/01, pp. 1140-2101, 1429-1443).

(Resp’t Ex. 3, ECF No. 20-1, pp.51-52.) Relying on Chambers v. Mississippi, 410 U.S. 284 (1973) and Green v. Georgia, 442 U.S. 95 (1979), Petitioner argued in his appellate brief that he had a fundamental right to present testimony regarding the telephone call Maddich received from Musselwhite and Musselwhite’s statement that “he did it” even though some of the proffered testimony was hearsay. (Resp’t Ex. 4, ECF No. 20-3, pp.30-34.) In reviewing the claim, the Superior Court summarized the unique factual circumstances presented in both Chambers and Green, which led to the Supreme Court’s holding that the mechanistic application of the hearsay rule in both of those cases had denied the defendants their right to due process. See (Resp’t Ex. 5, ECF No. 20-4, pp.15-17.) However, the Superior Court found that, unlike the situations presented in Chambers and Green, ...

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