United States District Court, E.D. Pennsylvania
Darnell Jones, J.
November 19, 2010, Petitioner Anthony Wayne Earls
(“Petitioner”) was convicted in the Delaware
County Court of Common Pleas of first degree murder,
conspiracy to commit first degree murder, carrying a firearm
without a license, and possession of an instrument of crime.
(No. CP-23-CR-0004736-2009; Trial Tr. 82-83, Nov. 19, 2010.)
On February 11, 2011, Petitioner was sentenced to a term of
life imprisonment without the possibility of parole for first
degree murder; as well as a consecutive term of 240 to 480
months' imprisonment for conspiracy; a consecutive term
of 30 to 60 months' imprisonment for carrying firearms
without a license; and, a concurrent term of 9 to 36
months' imprisonment for possession of an instrument of
crime. (Ct. Com. Pl. Crim. Docket 3-4, 11.)
now seeks habeas relief from his state court convictions.
Pursuant to Local Civil Rule 72.1.IV(c), the matter was
referred to United States Magistrate Judge Timothy R. Rice
for a Report and Recommendation (“R&R”).
Judge Rice issued an R&R denying Petitioner's request
for relief (ECF No. 11), in response to which Petitioner
filed Objections. (ECF No. 16.) For the reasons set forth
below, Petitioner's Objections shall be overruled.
following facts are supported by evidence presented at trial:
March 19, 2009, two masked individuals entered Gino's
Pizza in Chester, Pennsylvania and opened fire. (Trial Tr.
55, Nov. 12, 2010.) Fard Simms was shot and killed. (Trial
Tr. 55-56, Nov. 12, 2010.) On August 6, 2009, after a witness
claimed Petitioner had confessed to the crime and another
witness identified him as one of the shooters, a warrant was
issued for Petitioner's arrest. (Trial Tr. vol. 2 186,
214, 234-36, Nov. 16, 2010.) Petitioner was arrested on June
16, 2010 and was charged with murder, conspiracy, carrying a
firearm without a license, and possession of an instrument of
crime via Information filed on September 8, 2010. (App. Vol.
1 at 43, 47-55.)
October 8, 2010, Petitioner motioned to have his case severed
from that of his co-defendant, Charles Smith. (App. Vol. 1 at
57-65.) The Severance Motion was grounded in concerns about
the testimony of Braheem Scott, a witness who alleged that
Smith had confessed to the murder in two separate
conversations between the men. (App. Vol. 1 at 67 n.3.) In
the first conversation, Scott alleged Smith told him that
both he and Petitioner had shot the victim. In the second,
Scott alleged Smith stated he shot the victim and Petitioner
fled the area immediately prior to the shooting. (App. Vol. 1
at 67 n.3.)
Motion for Severance, Petitioner argued that Scott's
statements were inconsistent and only admissible in
Smith's trial because under Pennsylvania law, while any
reference to Petitioner that inculpated him in Scott's
first statement would be subject to redaction, the
references to Petitioner in the second statement
would not. (App. Vol. 1 at 60-61.) As such, Petitioner argued
that he would be prejudiced by the statements, as the
unredacted second statement would serve to reveal that he was
the alleged co-shooter referenced in the first statement.
Petitioner believed this would violate both his right to
confront witnesses and his right to a fair trial. (App. Vol.
1 at 61.) Petitioner's counsel, William Wismer,
subsequently withdrew that Motion after the state agreed to
redact both of Scott's statements to avoid any mention of
Petitioner. (App. Vol. 1 at 67.)
Petitioner's case proceeded to trial, the District
Attorney offered him a plea deal. (Trial Tr. 14, Nov. 15,
2010.) Although Wismer initially misunderstood the applicable
sentencing guidelines and misinformed Petitioner when they
discussed the terms of the plea deal, Wismer subsequently
discussed the accurate sentencing guidelines with Petitioner.
(Trial Tr. 14-17, Nov. 15, 2010.) Petitioner elected to
reject the plea offer, and in so doing, he informed the court
that he believed he had had a “full and fair
opportunity to talk privately to Mr. Wismer” about the
plea offer and its various consequences, and that he was
satisfied with Wismer's representation. (Trial Tr. 15-21,
Nov. 15, 2010.)
the trial, which began in November 2010, the Commonwealth
presented various witnesses who testified to seeing two
shooters enter Gino's Pizza. (Trial Tr. vol. 1, 12,
83-86, 155-57, Nov. 16, 2010) The Commonwealth also presented
Scott as a witness, and he testified that Petitioner's
co-defendant, Smith, said an “other person”
accompanied Smith and “also pulled a gun out and also
started shooting.” (Trial Tr. vol. 1, 89-90, Nov. 16,
2010.) While Scott was cross-examined by Smith's counsel,
Wismer did not cross-examine Scott. (Trial Tr. vol. 1,
95-122, 132, Nov. 16, 2010.)
Dawson, Smith's ex-girlfriend, was also a witness for the
Commonwealth. Dawson testified to separate conversations she
allegedly had with both Smith and Petitioner, wherein they
both confessed to being involved with the shooting at
Gino's. (Trial Tr. vol. 2, 186, 235-41, Nov. 16, 2010.)
Dawson testified that Smith told her he had shot someone at
Gino's. (Trial Tr. vol. 2, 186, Nov. 16, 2010.) Dawson
testified that a few days later, after Smith had been
arrested, she took a car ride with Petitioner and he asked
her why Smith had been arrested. (Trial Tr. vol. 2, 219-220,
Nov. 16, 2010.) During her testimony about her conversation
with Petitioner, Dawson mentioned Smith by name, even though
her testimony was only to be offered against Petitioner.
(Trial Tr. vol. 2, 219-220, Nov. 16, 2010.) The jury was then
excused, and the court directed Dawson as follows:
Ms. Dawson, as I believe you discussed previous[ly] with Mr.
Miller, with regard to certain testimony there's things
you're permitted to say and other things you aren't
permitted to say. . . . In recounting conversations you
supposedly had with Mr. Earles [sic], you are not in any way,
shape or form to refer to Mr. Smith, be it as Mr. Smith, be
it as Charles, be it as Chuck, be it as Gees . . . and any
other way. Do you understand this? . . . If answering
requires you to note mention of another person, you are to
refer to such just as that, the other person. You understand?
(Trial Tr. vol. 2, 228-29, Nov. 16, 2010.) Dawson agreed.
(Trial Tr. vol. 2, 229, Nov. 16, 2010.) She then testified
that Petitioner told her he was at Gino's “with
another individual and that. . . . him and the individual
shot the victim.” (Trial Tr. vol. 2, 235-36, Nov. 16,
2010.) The prosecutor asked how Petitioner was involved in
the murder, and Dawson said that “[h]is involvement was
that he shot the victim because the victim stole his
car.” (Trial Tr. vol. 2, 240-241, Nov. 16, 2010.)
his closing statement, the District Attorney referenced
Dawson's testimony and said: “I don't know why
[Smith and Petitioner] felt the need to get down on their
knees and confess. But just because these two guys are stupid
and they both confessed to [Dawson] doesn't mean
she's lying.” (Trial Tr. 178, Nov. 18, 2010.)
jury ultimately returned a guilty verdict for both Petitioner
and Smith. (Trial Tr. 82-83, Nov. 19, 2010.) Petitioner was
sentenced to life imprisonment in February 2011. (Ct. Com.
Pl. Crim. Docket at 3-4, 11.) Petitioner subsequently moved
for a new trial, as well as Judgment of Acquittal and/or
Arrest of Judgment, arguing the verdict was against the
weight of the evidence and that the court abused its
discretion by: (1) granting the Commonwealth's Motion
in Limine permitting the introduction of evidence
that was related to Petitioner being a victim of robbery;
and, (2) charging the Jury regarding flight as consciousness
of guilt. (App. to Resp't's Br., Vol. 1 at 73-75.)
The court denied his post-trial motion on July 15, 2011.
(App. to Resp't's Br., Vol. 2 at 5-6.)
Direct and Collateral Appeals
filed a direct appeal of his conviction in July 2011, arguing
that the jury's guilty verdicts were against the weight
of the evidence, and that the trial court had abused its
discretion by failing to grant him a new trial.
Commonwealth v. Earls, 1982 EDA 2011, at 6 (Pa.
Super. Ct. Jan. 19, 2012). The Superior Court affirmed his
conviction and the Pennsylvania Supreme Court subsequently
denied review in May 2013. Commonwealth v. Earls, 68
A.3d 907 (Pa. 2013).
January 2014, Petitioner filed a pro se petition for
relief under Pennsylvania's Post-Conviction Relief Act,
42 Pa. C.S. §§ 9541, et seq.
(“PCRA”) raising multiple claims of trial counsel
ineffectiveness. (Ct. Com. Pl. Crim. Docket at 16.) The PCRA
Court appointed counsel to represent Petitioner; however,
appointed counsel ultimately filed a Turner/Finley
“no-merit” letter and sought permission to
withdraw from the case. (App. to Resp't's Br., Vol.
4, ECF 10-5, at 33-50.) Petitioner then sought permission to
proceed pro se and filed an amended petition in
March 2016. (Ct. Com. Pl. Crim. Docket at 18.) In October
2016, the PCRA Court denied the petition, finding all of
Petitioner's claims meritless. (Ct. Com. Pl. Crim. Docket
at 18.) Although Petitioner filed a notice of Appeal, he
failed to file a Statement of Matters Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b) (“1925(b)
Statement”) as ordered by the PCRA Court.
Commonwealth v. Earls, 175 A.3d 375 (Pa. Super. Ct.
2017). In July 2017, the Superior Court affirmed the PCRA
Court's finding that Petitioner waived all his claims
based on his failure to file a 1925(b) Statement.
Commonwealth v. Earls, 3408 EDA 2016, PRCA App. Dkt.
at 4. The Pennsylvania Supreme Court denied Petitioner's
request for review in March 2018. Commonwealth v.
Earls, 182 A.3d 449 (Pa. 2018). In April 2018,
Petitioner timely filed the instant habeas petition. (Habeas
Pet., ECF 1.)
accordance with 28 U.S.C. § 2254, Petitioner timely
filed a pro se habeas action in federal court on
April 12, 2018 (“Petition”), alleging the
following instances of ineffective assistance of counsel:
1. Failure to cross-examine Scott and failure to object to
the redacted testimony offered at trial;
2. Failure to sever Petitioner's trial from that of his
3. Failure to adequately prepare for Petitioner's trial;
4. Failure to inform Petitioner about the details of the plea
deal offered by the District attorney;
5. Failure to move for a mistrial after Dawson broke the
redaction agreement; and,
6. Failure to object to prosecutorial misconduct, or the
prosecution's use of two conflicting theories of the
response, the Delaware County District Attorney argued that
Petitioner's claims were procedurally defaulted by virtue
of Petitioner's failure to file a 1925(b) Statement with
the PCRA Court and by virtue of the Superior Court having
deemed his claims waived on appeal. In addition, the District
Attorney argued that notwithstanding the procedural default,
all of Petitioner's claims were meritless.
review of Petitioner's claims in conjunction with the
record, United States Magistrate Judge Timothy R. Rice issued
an R&R, in which he recommended dismissal of all claims
presented by Petitioner. As referenced above, Petitioner has
objected to Judge Rice's R&R, and the Commonwealth