United States District Court, W.D. Pennsylvania
Pupo Lenihan United States Magistrate Judge.
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. 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.
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
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
Commonwealth v. Tielsch, 934 A.2d 81, 83-84 (Pa.
Super. 2007) (footnotes omitted).
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,
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.)
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.
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.)
Standard of Review
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).
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
Vickers v. Superintendent Graterford SCI, 858 F.3d
841, 848-89 (3d Cir. 2017) (internal footnote omitted).
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).
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.
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
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.
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.” 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.
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.
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. 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.
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. Id. at p.35.
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.
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,
(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,