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Etka v. Smith

United States District Court, M.D. Pennsylvania

December 2, 2019

ZACHERY ETKA, Petitioner
v.
BARRY SMITH Respondents

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Zachery Etka, an inmate formerly confined in the State Correctional Institution, Houtzdale, Pennsylvania, [1] filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1, petition). He attacks a conviction imposed by the Court of Common Pleas for Bradford County, Pennsylvania. Id. For the reasons that follow, the Court will deny the petition.

         I. Background

         The following background has been extracted from the Pennsylvania Superior Court's January 10, 2017 Memorandum Opinion affirming the trial court's judgment. (Doc. 11-7 at 8-32, Commonwealth v. Etka, No. 1919 MDA 2015).

Appellant, Zachary Chance Etka, appeals pro se [2] from the judgment of sentence entered in the Court of Common Pleas of Bradford County following his conviction by a jury on three counts of robbery, three counts of conspiracy, two counts of terroristic threats, and one count of receiving stolen property.[3]After a careful review, we affirm.

         Following Appellant's arrest in connection with the robbery of a bank, Appellant, who was represented by counsel, proceeded to a jury trial on November 20, 2014. The trial court has aptly summarized the testimony and evidence presented during the trial as follows:

On May 15, 2014[, ] at approximately 1:00 p.m., [Appellant] and [his co-conspirator, ] Chaz Talada parked in the parking lot in front of Citizens and Northern Bank located in East Smithfield, Bradford County, Pennsylvania. A bank teller on duty noticed the vehicle and [that] the individuals inside seemed to be looking around. [N.T. 11/20/14 at 20.] A male exited the vehicle wearing a white baseball cap, sunglasses, and a heavy winter coat, which [seemed] unusual [to the teller] because it was not cold that day. [Id.] The individual was carrying a backpack. [Id.] The individual entered the bank, approached a teller window, showed a hand gun, passed over the bag[, ] and demanded money. [Id. at 22.] The teller placed the money from her drawer and the next teller [‘s] drawer into the bag. [Id. at 23.] Included in the money was “bait money, ” [for] which the serial numbers ha[d] been recorded. [Id.] [The teller] handed the bag back to the individual[, ] and he left the building. [Id. at 24.] The teller then hit the bank alarm and went to the window to get the license plate number of the vehicle, but there was no plate on the car. [Id.] The second teller identified the vehicle as a green Subaru with a black gas tank cover. [Id. at 28.]
New York State Trooper Mary Carsen, upon learning of the robbery over a radio transmission and the direction the vehicle was heading, drove to the town of Wellsburg, New York in hopes of locating the vehicle. She did locate a green Subaru[, which was] pulled up against the back of a minimart. [Id. at 36.] [Prior to Trooper Carsen's arrival upon the scene, ] [Appellant] had entered the minimart and purchased a pack of cigarettes. This was shown on the video surveillance from the minimart. [Subsequently, ] [a] Pennsylvania State Trooper [, Michael Adams, ] [also] arrived at the scene[, ] and [Appellant and Talada] exited their vehicle. [Id. at 37.]
[After frisking the two men for weapons, the troopers placed the men in separate vehicles. Trooper Adams questioned Talada and then, after reading him his Miranda rights, questioned Appellant. Id. at 55-56.] [Trooper Adams] testified that [Appellant told him] the vehicle belonged [to him.] [Id. at 56.] [Appellant] said he did nothing wrong. [Id.] [Appellant] told [the] trooper that when [Talada] went into [the] bank, he couldn't drive away because he did not have a driver['s] license; that he didn't walk away because [Talada] was his friend; and that he did not attempt to call [the] police or anyone [else]. [Id.] [Appellant] did tell [the] trooper that he and [Talada] had planned the robbery earlier that day[, ] and that upon arriving at the bank, he told [Talada] not to commit the robbery. [Id. at 62.]
[Pennsylvania State Corporal Douglas Smith testified that the vehicle was impounded and he searched it pursuant to a search warrant. Id. at 64.] [He] testified that a backpack was in the vehicle on the floorboard of the driver's side and the cash from the bank was inside [of] the backpack[. Id. at 65.] [The backpack also contained] a pistol pellet gun ... a jacket with a hood on it, ... and a white baseball cap. [Id. at 65-87.] The cash totaled $3, 342.00 [, which] was the amount reported stolen. [Id. at 71, 76, 89.] Also in the vehicle were improvised smoking devices and marijuana. [Id. at 75.]
[Pennsylvania State Corporal Norman Strauss, III, testified that after Appellant's arrest he gave him his Miranda rights and transported him to the police station. Id. at 77-78.] [Appellant] [ ] told him that he thought about robbing the bank two days prior; it was his idea; he planted the seed in his friend's (Talada's) head; and he did a 30 second Google research on the topic of successful bank robberies. [Id. at 79, 83.] Further, [he told the corporal] that he waited in the vehicle while [Talada] entered [the] bank and then traveled to the minimart where they were picked up by [the] state police. [Id. at 80.] Also, there were times when [Appellant] [told the corporal that] the conversation about the robbery with [Talada] was a joke. [Id. at 83.] Finally, [ ] [Appellant] [told Corporal Strauss that he] wouldn't commit the robbery but [Talada] had his mind set on it. Annetta Lewis testified that she was an employee of the minimart where [Appellant] was [apprehended]. When she left work [on] the day of the robbery, she noticed two men in a vehicle with cash in their hands. [Id. at 92.] The passenger was the only one she could see and he had a lot of cash in his hand. [Id. at 91-92.]
[Pennsylvania State Trooper Nathan Lewis] testified that he [advised Appellant of his Miranda rights and] interviewed him at the police barracks. [Id. at 96-97.] [Appellant] indicated that he and [Talada] had been together for two days and had been using mind altering substances. [Id. at 97.] He told Trooper [Lewis] that they discussed a bank robbery and that the original plan was for him to go into the bank. [Id.] [Appellant] stated that they proceeded to the bank and along the way stopped to remove the license plate from a vehicle. [Id.] [Appellant indicated] they parked near the bank[, ] discussed the robbery for approximately fifteen minutes[, ] and [Appellant] tried to talk [Talada] out of the robbery. [Id. at 98.] They then drove to the bank. [Appellant stated] he then advised [Talada] that he did not want to go into the bank. [Id.] [Talada] entered [the] bank and came out[, ] and they [then] fled [in the vehicle.] [Id.] [Appellant told the trooper] that while he and [Talada] were talking about [the robbery, ] it was a joke. [Id. at 105.] Trooper Lewis also testified that he determined that [Appellant] did not have a valid driver [‘s] license. [Id. at 109.]
[The] [d]efense presented the testimony of [Talada, who] admitted to the robbery of the bank.[4] He admitted that he drove to the bank and he went into the bank wearing a coat, gloves[, ] and sunglasses, [ which were] all his. [Id. at 115-16.] He also admitted that he was wearing a backpack that belonged to [Appellant, and it was Appellant's idea to use the backpack during the robbery. Id. at 116, 130.] [Talada testified Appellant] gave him the backpack when they went to the bank. [Id. at 130.] [He testified the] pellet gun was not loaded [but he] pointed the gun at the tellers. [Id. at 116.] [Talada testified that, prior to robbing the bank, he and Appellant sat in the car near the bank and talked about the robbery. Id. at 117.] [Appellant] told him he did not want to do it and suggested that he should do it. [Id.] They had conversations about robbing the bank [in the days leading up to the robbery, including] the day before[, at which time] they had been smoking marijuana. [Id. at 117-18.] He had also been taking Percocet and heroin. [After being apprehended, Talada] told the state troopers that he needed money for rent and to get his car repaired. [Id. at 124.] He testified that he [was] addicted to heroin and needed money to purchase more. [Id. at 123.] [Talada] testified that [Appellant] was too scared to commit the robbery and wanted [Talada] to do so. [Prior to the robbery, Appellant] took the license plate off the car. [Id. at 131.] [Talada testified that, when they left the house to commit the robbery, Appellant knew the robbery was going to happen. Id.] [At this time, Appellant] was wearing gloves ... and [a] jacket[.] [Id.] [After Appellant decided not to go into the bank, the men discussed Appellant getting a portion of the money. Id. at 132.] [Appellant] was going to use the money towards his business. [Talada] testified that [Appellant] did not tell him to not go in the bank. [Id. at 135.] [After the robbery, the men] began counting the money at the minimart[, and Talada gave Appellant a “handful.”] [Id.] After [Talada] came out of [the] bank, he handed all the “stuff”-clothing, etc., to [Appellant] because he removed it as he was driving[, ] and [Appellant] put it in the back [, as well as] hid the gun. [Id. at 136.]
[Appellant] testified as follows: That he and [Talada] were watching a movie, smoking marijuana[, ] and talking about the robbery hypothetically. [Id. at 145.] The day of the robbery, there were a lot of clothes and items in his car, so he did not notice anything out of the ordinary. [Id. at 149.] [He and Talada] drove around. Periodically, they would stop and [Talada] would get some marijuana out of the trunk of the car. [Id. at 150.] [Talada was driving Appellant's car on the day of the robbery. Id. at 149.] [Appellant testified that he] never knew [Talada] was going to rob the bank. [Id. at 151.] [When the men got close to the bank, Talada brought up robbing the bank[, ] and [Appellant] [tried to] talk[ ] him out of it. [Id. at 152.] [Talada] agreed to go home, but he pulled into the bank[. Id.] [Talada] went into the bank and was out in twenty some seconds, so [Appellant] did not jump to conclusions. [Id. at 152-53.] [Talada] put [the] bag by his leg on [the] driver[‘s] side. Upon arriving at the minimart, [Talada had] money in his hand and that was the first time [Appellant] realized that [Talada] had robbed the bank. [Id. at 154.] [Appellant took] $5.00 from [Talada] and went inside the minimart to buy cigarettes. [Id.] If the police had not [arrived, ] he would have called them. He was not aware that [the] license plate [had been] removed. [Id. at 157.]
The pellet gun was not processed for fingerprints or other trace evidence. [Id. at 88.] [T]here was no evidence from [Appellant's] cellphone regarding a Google search. [Id.]
Trial Court Opinion, filed 3/11/16, at 2-5 (footnote added).
At the conclusion of all evidence, the jury convicted Appellant of the offenses indicated supra, and he was sentenced to an aggregate of forty-six months to ninety-six months in jail. Appellant filed a timely, counseled post-sentence motion, which was denied by operation of law on October 19, 2015. On October 29, 2015, counsel simultaneously filed on behalf of Appellant a notice of appeal and a Concise Statement pursuant to Pa.R.A.P. 1925(b). Thereafter, on March 11, 2016, the trial court entered its Pa.R.A.P. 1925(a) order.
Subsequently, as indicated supra, following a Grazier hearing, Appellant was granted permission to proceed pro se on appeal. Appellant filed a petition seeking permission to amend his Pa.R.A.P. 1925(b) statement, which had been filed by counsel, and this Court directed the trial court to rule on the motion. On August 22, 2016, the trial court granted Appellant permission to file an amended Pa.R.A.P. 1925(b) statement, and on August 31, 2016, Appellant filed an amended pro se Pa.R.A.P. 1925(b) statement. The trial court filed a supplemental opinion on September 21, 2016.

(Doc. 11-7 at 8-32, Commonwealth v. Etka, No. 1919 MDA 2015, Superior Court Opinion). Etka raised the following issues on direct appeal:

1. The Court erred in denying Appellant's motion for arrest of judgment based on insufficient evidence.
2. The Court erred in denying the motion for a new trial based on the weight of the evidence claim.
3. The Court erred in denying the motion for a new trial based on late disclosure of eyewitness.
4. The Appellant alleges that the prosecutorial misconduct undertaken in bad faith intentionally prejudice and harass the Appellant denied the Appellant a fair trial.
5. The Court erred in denying the motion for new trial or dismissal of all charges based on the disqualification of district attorney motion.
6. The Court erred in denying the motion for dismissal of amended charges based on the amendment of information rule violation.

(Doc. 11-6, Appellant's Brief).

         By Memorandum Opinion dated January 10, 2017, the Pennsylvania Superior Court affirmed the Petitioner's conviction. (Doc. 11-7 at 8-32, Commonwealth v. ...


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