United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
Etka, an inmate formerly confined in the State Correctional
Institution, Houtzdale, Pennsylvania,  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
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
 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.After a careful review, we affirm.
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
[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. 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.
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
(Doc. 11-6, Appellant's Brief).
Memorandum Opinion dated January 10, 2017, the Pennsylvania
Superior Court affirmed the Petitioner's conviction.
(Doc. 11-7 at 8-32, Commonwealth v. ...