ii. Failure to Adequately Cross-Examine Three Prosecution Witnesses
Petitioner also contends that his trial counsel failed to adequately cross-examine three prosecution witnesses: Zeb Liverman, Charles Russell, and Robert Henderson.
Zeb Liverman
Petitioner claims that counsel failed to adequately cross-examine Zeb Liverman, one of the prosecutions witnesses who claimed to be present at the shooting gallery on October 13-14, 1980, about his drug use and prior convictions. The Pennsylvania Supreme Court, however, reasonably concluded that this claim has no merit, stating that:
This assertion is belied by the record. Defense counsel aggressively cross-examined Liverman about his lengthy criminal history, including twenty prior arrests, six convictions, and several parole violations. N.T., 3/11/85, at 139-42. Defense counsel also elicited testimony regarding Livermans activities as a drug dealer and his drug use on the night in question, including the large quantity of cocaine he consumed. Id. at 142-50, 159. Thus, there is no merit to the contention that defense counsel failed to inquire into Livermans drug use or criminal history.
The state court also noted that defense counsel forcefully cross-examined Liverman, portraying him as a habitual criminal who was high on drugs at the time of the murder. This determination was not contrary to or an unreasonable application of federal law. Consequently, this claim fails.
Petitioner also claims that counsel failed to cross-examine Liverman on his initial statement made to police. Petitioner argues that counsel should have cross-examined Liverman with his initial statement that: I could have been [at the garage at 17th and Kater] but I dont remember[;] I was doing heavy drugs at the time, I was doing Heroin, Cocaine, Meth, anything I could get my hands on[,] so I dont really remember. Petitioner omits that immediately after Liverman made this statement, he stated [w]ait a minute let me tell you the truth about this dude, and then proceeded to describe the events surrounding the shooting, implicating Petitioner. As the Pennsylvania Supreme Court noted, [i]f counsel had questioned Liverman about the initial comment, the Commonwealth could have rehabilitated him with the remainder of the statement discussing the truth about what Liverman remembered of the Hawkins shooting. The state court reasonably concluded that counsel was not ineffective in failing to cross-examine Liverman on this initial comment. Instead, counsel made a reasonable strategic decision designed to effectuate [Petitioners] interests. The state courts determination was not contrary to or an unreasonable application of federal law, as counsels failure to use this statement did not fall below an objective standard of reasonableness and did not prejudice Petitioner. This claim lacks merit.
Charles Russell
Petitioner asserts that counsel failed to adequately cross-examine Charles Russell with his initial statement made to police just a few hours after the murder in which he denied any knowledge of the events. Russell ran the shooting gallery at 17th and Kater Streets and was picked up by police shortly after the shooting in the early morning hours of October 14, 1980.
Contrary to Petitioners assertion that counsel failed to cross-examine Russell about his initial statement, the Pennsylvania Supreme Court explained that:
Once again, a review of the record belies this claim. Indeed, defense counsel thoroughly queried Russell about his initial statement, his motives for denying knowledge of the crime, subsequent false statements he made to the police, and his eventual accurate recitation of the events surrounding the murder.
Counsel not only cross-examined Russell about his initial statement to police, but also extensively questioned Russell about his repeated lies to the police. The state court reasonably concluded that counsels purported failure to cross-examine Russell was not supported by the record, and does not show that counsel was ineffective. This determination was not contrary to or an unreasonable application of Strickland . Accordingly, the claim that counsel failed to adequately cross-examine Russell with his initial statement fails.
Petitioner also contends that counsel was ineffective for failing to cross-examine Russell on his substantial cooperation with police over the years. Again, an examination of the record demonstrates that counsel cross-examined Russell, eliciting testimony that he had spoken to police about different cases and that he eventually told the police the truth about this case in an effort to get the police to stop hassling him. Counsel repeatedly questioned Russell on this point, suggesting that Russell made a deal with police that they would stop picking him up if he implicated Petitioner in this case. Since counsel did in fact cross-examine Russell on this point, and Petitioner has failed to show how counsels cross-examination fell below an objective standard of reasonableness, counsels performance was not deficient during his cross-examination of Russell. This claim does not provide a basis for relief.
Robert Henderson
Petitioner claims that counsel failed to adequately impeach Robert Henderson about his criminal background and history. Petitioner also alleges that counsel failed to effectively cross-examine Henderson on the point that, aside from Liverman, Henderson was the only witness who could place [Petitioner] at the garage that night.
The Pennsylvania Supreme Court explained, however, that these contentions were without merit. It wrote:
Also baseless are Appellants allegations of ineffectiveness founded upon the cross-examination of Robert Henderson (Henderson). Appellant does not explicate the precise grounds for his claim of ineffectiveness other than to state that counsel failed to adequately impeach Henderson regarding his criminal background. Appellant intimates that this failure was particularly egregious since Henderson was the only witness who could place Appellant near the crime scene. We find these contentions to be completely devoid of merit. Defense counsels first question to Henderson concerned his arrest record, which elicited testimony that Henderson had been arrested at least fifteen times for numerous robberies and burglaries. N.T., 3/12/85, at 36. Counsels cross-examination also exposed Hendersons drug use, his failure to report the murder, and numerous inconsistencies in his testimony. Id. at 37-90. Consequently, Appellant has failed to demonstrate that counsel did not adequately cross-examine Henderson.
The Pennsylvania Supreme Courts determination that counsel was not ineffective in his cross-examination of Henderson was not contrary to or an unreasonable application of Strickland . Counsel made strategic decisions in how to cross-examine Henderson about his criminal history, drug use, and inconsistencies in his testimony. This performance was not deficient. Moreover, Petitioner was not prejudiced by counsels cross-examination of Henderson, as he has not shown that the outcome of the proceeding would have been different if counsel had approached cross-examination differently. Consequently, the ineffectiveness claims on counsels cross-examination of Henderson are without merit and do not provide a basis for relief.
iii. Failure to Call Three Potential Defense Witnesses
Petitioner asserts that trial counsel was ineffective for failing to call three potential defense witnesses-David Paris, Natalie Dickerson, and Dewitt Poindexter-who, according to Petitioner, would have testified that he was not present at the shooting gallery on the night in question.
In accordance with Strickland , while counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, his or her decision on whether to call a witness is an inherently strategic one. Counsel, therefore, is not bound by an inflexible constitutional command to interview every possible witness. Rather, he is simply required to exercise reasonable professional judgment in deciding whether to interview the witness.
The Pennsylvania Supreme Court concluded that counsel made a reasonable investigation into the statements Paris, Dickerson, and Poindexter gave to police, and made a strategic decision, after consulting with Petitioner, not to call these witnesses at trial. The state court explained that [w]hen raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies .... Strickland ... by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. To demonstrate Strickland prejudice, the petitioner must show how the uncalled witnesses testimony would have been beneficial under the circumstances of the case. It found that:
Appellant has not-and cannot-show that the testimony of these witnesses would have been helpful to the defense. The statements on which Appellant relies are not exculpatory; rather, they demonstrate only that the witnesses in question possessed no knowledge about the shooting. Indeed, the prosecutor stated before the court:
[T]here are copies of statements by other people that were inside the garage at 17th and Kater on the night that the event[s] surrounding the shooting began. Specifically, there are statements attributable to [David Paris, Natalie Dickerson, and Dewitt Poindexter]. All of them gave information saying that they didnt know anything. However, if [defense counsel] needs any of them to be present during his trial or during his part of the case ... I will of course make them available.
N.T., 3/13/85, at 9-10 (emphasis added). Defense counsel responded, I have reviewed those copies of the statements ... and as part of our defense, we agreed that they would not be necessary to be introduced. Id. at 11. Counsel clarified that we referred to me and my client. Id.
Since the statements do not exculpate Appellant, he has failed to show that the testimony of the uncalled witnesses would have been beneficial under the circumstances of the case. Gibson , 951 A.2d at 1134. Thus, Appellant has not demonstrated prejudice. As such, counsel cannot be deemed ineffective, and the PCRA court did not err in denying this claim without a hearing.
The Pennsylvania Supreme Courts decision was not contrary to or an unreasonable application of Strickland . The state court concluded that Petitioner could not show that counsels failure to call these witnesses constituted deficient performance because the record demonstrates that counsel made a reasonable investigation into the statements these witnesses provided to police, conferred with Petitioner, and made a strategic decision not to call these witnesses because they stated that they did not know anything about the shooting.
Additionally, Petitioner cannot demonstrate that he was prejudiced by counsels failure to call these witnesses. To demonstrate prejudice, Petitioner must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Although the witnesses statements made to police suggest that Petitioner was not at the garage, the statements also suggest that the witnesses did not know anything about the shooting. Furthermore, the record indicates that at least one of these potential witnesses, Dickerson, failed a polygraph test shortly after giving the statement to police, which would have cast doubt on her credibility had she testified at trial. The statements alone, therefore, do not exculpate Petitioner. Rather, these statements demonstrate that these witnesses lacked useful information about the shooting. Since Petitioner also cannot demonstrate prejudice, this claim fails.
C. Petitioners Claim that the Prosecutor Engaged in Misconduct During Closing Arguments and that Counsel Was Ineffective in Failing to Object to the Prosecutors Remarks, Request Curative Instructions, Request a Mistrial, or Litigate these Issues on Appeal Provides No Basis for Relief
Third, Petitioner argues that his conviction should be vacated because the prosecutor engaged in misconduct during closing arguments and in the examination of a witness in violation of his due process rights under the Fourteenth Amendment. Prosecutorial comments made at trial amount to a constitutional violation if the Petitioner demonstrates that the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. The touchstone of this analysis is the fairness of the trial, not the culpability of the prosecutor. In evaluating whether alleged misconduct rose to the level of a constitutional violation, courts examine the prosecutors conduct in the context of the trial as a whole, and assess[ ] the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant. It is important to keep in mind that although an individual remark may not create a due process violation, the cumulative effect of several such remarks may.
Here, the Pennsylvania Supreme Court held that all six claims of prosecutorial misconduct raised by Petitioner were meritless because the prosecutors remarks did not prejudice the jurors, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. The state standard applied by the state court, the unavoidable prejudice test, is consistent with and materially indistinguishable from the federal standard articulated by the Supreme Court in Donnelly, Darden , and their progeny. As discussed more fully below, the state courts decision was not contrary to or an unreasonable application of clearly established federal law.
i. Petitioners Claim that the Prosecutor Improperly Suggested that the Jurors Were Employees of the Commonwealth
Petitioner first claims that the prosecutor improperly suggested to the jurors that they were employees of the Commonwealth by stating:
Ladies and Gentlemen, it is common practice for criminal lawyers on both sides, when they first stand up to address the jury at the end of the case to thank you for your participation in the trial. I am not a subscriber to that particular practice because I firmly believe, as I told you when I opened a few days ago, that jury service is a job and it is a job that you havent yet completed. I am quite sure that none of your employers pat you on the back until you finish the job, and I dont want to do that either. I will reserve my thanks until you have done what you have to do in this case, based upon the evidence, and that is to find Willie Sneed guilty, and I will be glad to thank each and every one of you, but I am going to hold my thanks for the time being.
So now, ladies and gentlemen, it is time for you to do your duty. Now is the time for you to do the hard part of your job. Now is the time for you to go out and deliberate and return a verdict of guilty in this case[.]
Petitioner argues that these comments clearly suggested to jurors that they were employees of the Commonwealth rather than impartial finders of fact and that the prosecutor, as the jurors boss would not thank them, as employees, until they had done what he asked, that is, find Petitioner guilty of the offenses charged.
The Pennsylvania Supreme Court found this claim meritless. It explained that defense counsel began his closing argument by saying [f]irst of all, I would like to thank you for your attention the past couple of days and last week. With this context, the state court observed it is apparent that the prosecutor was responding to defense counsels argument by reminding the jurors that their job or duty was not yet complete; that they still had to reach a verdict, and that, unlike defense counsel, he would not thank them until they had done so. Additionally, the state court examined the prosecutors entire closing argument and found that he never indicated he was the jurors boss, or that it was their job to find Petitioner guilty. Later in his closing argument, the prosecutor stated You [the jury] draw whatever inferences you see appropriate, Ladies and Gentlemen, thats your job. Therefore, the Pennsylvania Supreme Court reasonably concluded that when his comments are examined within the context of the full closing argument, the comments did not impermissibly direct the jury to find Petitioner guilty, but instead echoed the argument of defense counsel and reminded the jurors that they had yet to fulfill their obligations. The state courts determination was not contrary to or an unreasonable application of Supreme Court precedent. This claim will be denied.
ii. Petitioners Claim that the Prosecutor Misstated the Law on the Role of the Jury
Petitioner next claims that the prosecutor misstated the law on the role of the jury when he said in his closing argument:
You may not care for the lifestyles that Henderson and Russell and Liverman lead; I dont either, but that doesnt make any difference as far as the guilt or innocence of Mr. Sneed is concerned. You are not here to judge the witnesses; you are here to judge the defendant, so lets keep that in mind.
Petitioner alleges this statement was tantamount to telling the jurors that they had no obligation to assess the credibility of the witnesses, which conflicts with Pennsylvanias standard jury instructions explaining that a jurors role is to judge the credibility and the weight of the testimony ... including the credibility of the witnesses. Petitioner claims this statement was particularly harmful because the testimony from these witnesses was the only evidence connecting him to the crime.
However, as the state court accurately determined, when viewed in the context of the entire closing argument, the comment was not out of bounds. Immediately prior to the challenged comment, the prosecutor said:
You have to focus in this case upon what you did hear from the witnesses, the two main ones of which are Robert Henderson and Zeb Liverman. They are the key witnesses in this case. And the operative word here ... is witnesses. They are not defendants ... they are not on trial here. [Petitioner] is on trial here.
As the state court noted, this context shows that the prosecutor was suggesting that the jury should look beyond the character flaws of the Commonwealths witnesses when judging their credibility. In other words, the jury should not base their judgments on any disapproval of the witnesses lifestyles. Other statements made during the closing argument demonstrate that the prosecutor acknowledged that the jury should judge the credibility of the witnesses. For example, he stated if you believe [the witness] ... that is entirely up to you to decide, as well as, you have to apply all of the factors that [defense counsel] suggested are critical and the ones that Judge Ivins will give you at the end of this case in order to determine whether these men were telling you the truth.
Furthermore, the trial court correctly instructed the jurors that they had the sole responsibility of deciding whether the testimony of each witness in the case is truthful and accurate and is to be believed or disbelieved in whole or in part. Jurors are presumed to have followed the trial courts instructions. Therefore, even if the prosecutors statements were perceived improperly by the jury, the trial courts instructions were sufficient to cure this confusion and clarify the jurors role.
The state courts determination was not contrary to or an objectively unreasonable application of Supreme Court precedent. Prosecutors are given great latitude, especially during closing arguments, to ask the jury to draw inferences based on the evidence presented at trial. Considering the full context of the prosecutors closing argument, the defense counsels closing argument, and the instructions from the trial court, it was not objectively unreasonable for the state court to conclude that the prosecutor did not misstate the law on the role of the jury. This claim will be denied.
iii. Petitioners Claim that the Prosecutor Improperly Told the Jury that it Had a Duty to Convict
Petitioner next claims that the prosecutor improperly told the jury that they had a duty to convict, rather than to weigh the evidence impartially, in order to make South Philadelphia safer. To support his claim, Petitioner strings together two unrelated statements made by the prosecution:
So now, Ladies and gentlemen, it is time to do your duty. Now is the time for you to do the hard part of your job. Now is the time for you to go out and deliberate and return a verdict of guilty in this case.
Petitioner links this statement to a comment found over twenty pages earlier in the transcript:
Murder is a street crime. Street crimes happen in the street and not usually in places like Chestnut Hill or Roxoborough[sic ] or the far Northeast, but in the section of South Philadelphia where you heard about in this case where it is not very safe for a person to raise a family anymore.
Petitioner claims that through these remarks, the prosecutor suggested to the jury that they had a duty to find petitioner guilty to make Philadelphia safer. Petitioner, however, takes both remarks out of context. Consistent with clearly established federal law, the state court analyzed these remarks within the context of the full closing argument and concluded Petitioners claim is a post hoc argument, crafted by taking isolated statements out of context. Further, the state court found that the arguments were not improper even when each is viewed in isolation.
In regards to the duty comment, the Pennsylvania Supreme Court relied on Commonwealth v. Kemp , which established that there is no error in a prosecutor asking a jury to render a verdict favorable to his position, to conclude there was no error in making this statement as to make the comment a denial of due process. This conclusion was not contrary to, nor an unreasonable application of, clearly established federal law. The comments did not infect[ ] the trial with unfairness. On their face, the comments suggest that the jury had a duty to deliberate, which properly instructs the jurors to weigh the evidence. Additionally, the prosecutor explicitly instructed the jury to weigh the evidence at other points in his closing argument, and suggested that the jury had a duty to convict only if they believed the evidence showed Petitioners guilt beyond a reasonable doubt.
Regarding the comment about crime in South Philadelphia, the Pennsylvania Supreme Court concluded [t]he prosecutor was merely attempting to convey to the jury that since the murder occurred in a high-crime area, it was not surprising that the witnesses had criminal histories. This is demonstrated by the statement in context:
Street crimes happen in the street and not usually in places like Chestnut Hill of Roxborough[sic ] or the far Northeast, but in the section of South Philadelphia where you heard about in this case where it is not very safe to raise a family anymore. And if you accept as true the fact that crime is going to happen in this type of area, you have to also understand that the type of people like Charlie Russell and Robert Henderson and Zeb Liverman are going to be the witnesses that come in and testify.
The state courts analysis is consistent with federal law. In Howard v. Horn , this Court concluded that similar comments made by a prosecutor about protecting those who lived in a decent neighborhood did not so infect the trial with prejudice as to amount to prosecutorial misconduct. The state court had reasoned that the prosecutors comments did not encourage the jury to decide the case on an illegitimate basis, and even if they did, the trial court instructed the jury to decide the case on the testimony and evidence in the record, eliminating any impropriety.
Similarly here, the prosecutors comments about crime in South Philadelphia did not so infect the trial with prejudice, as the comments were in part an invited response to defense counsels attacks on the credibility of the witnesses. Through the comments, the prosecutor was attempting to point out that because the crime took place in a high-crime area, the witnesses unsurprisingly had criminal backgrounds. Moreover, the trial court directed the jury to decide the case on the evidence presented, which was adequate to cure any possible defects.
Overall, both comments, either taken together or viewed separately, were not so improper as to undermine the fairness of the trial. In denying Petitioners claim that the prosecutor told the jury they had a duty to convict, the state courts analysis was not objectively unreasonable and deserves deference. Thus, habeas relief will be denied on this claim.
iv. Petitioners Claim that the Prosecutor Improperly Commented on Petitioners Silence and Shifted the Burden of Proof
Petitioner next claims that the prosecutor violated the Fifth Amendment right against self-incrimination when he said: Mr. Sneed didnt say anything because he has an absolute and constitutional right not to open his mouth for the entire length of the trial, but he is still on trial because other people said he did it. Petitioner claims that this language was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify and was improper.
The Fifth Amendment privilege against self-incrimination prohibits the prosecutor from commenting on a defendants failure to testify at trial. The prosecutors comments violate the Fifth Amendment when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. However, if the prosecutors reference to the defendants opportunity to testify is a fair response to a claim made by [the] defendant or his counsel, ... there is no violation of the privilege. In making this determination, the prosecutors remark must be viewed in its trial context.
The Pennsylvania Supreme Court found this claim to be frivolous, holding that the prosecutors statement was merely an accurate summary of the law. It held that the comment did not encourage the jury to draw an inference of guilt from Petitioners failure to testify. This determination was not contrary to or an unreasonable application of clearly established federal law. Defense counsel, in his closing argument, had already pointed out to the jury that Petitioner exercised his Fifth Amendment right to remain silent. He said, [t]he defendant is under no obligation to stand up and say, whatever .... He doesnt have to take the stand. He doesnt have to present any evidence. Our laws say we dont have to prove our innocence. Since defense counsel first commented on Petitioners Fifth Amendment right to remain silent, the prosecutor did not prejudice the jury by simply restating the law at a later point.
Additionally, when viewed in context, the prosecutor was not improperly commenting on Petitioners failure to testify, but instead was responding to defense counsels insinuation that one or more of the Commonwealths witnesses shot Hawkins and then framed Petitioner. When viewed as a whole, it is clear that the prosecutor was responding to this insinuation, and was explaining to the jury that one of the Commonwealths witnesses, Zeb Liverman, was given use immunity. The prosecutor stated:
And as far as the use immunity is concerned, dont get too carried away with the term immunity. Some of you may be intimidated by that and think it is more than it is. It is not as [defense counsel] suggests a promise that Mr. Liverman will not be prosecuted for this crime. That is not what use immunity is. Use immunity means nothing that the witness says will be used against him. That is why it is called use immunity. Nothing that Mr. Liverman testifies to can be used against him for the purposes of prosecuting him in this particular case for this particular crime. Thats all it means. It does not mean that evidence that has been developed independently of Mr. Liverman connecting him with this crime, that he wouldnt be over there next to [Petitioner] because he would.
The best example you can have of that is the testimony that you heard in this case. [Petitioner] didnt say anything because he has an absolute and constitutional right to not open his mouth for the entire length of this trial, but he is still on trial because other people came in and said he did it. The same would be true in the case of Zeb Liverman. Although we cant use what he said, we certainly use what everybody else said about his involvement to try him, but there is nothing there, folks.
Once placed in context, the prosecutors remarks are not reasonably construed as an improper comment on Petitioners guilt by refusing to testify; therefore, the remark did not violate Petitioners Fifth Amendment rights.
Petitioner additionally claims that the prosecutor shif[ed] to Petitioner the burden of proving his innocence when he said:
[Defense Counsel] suggested to you that [the witnesses] had three years to get their acts together and that they are covering for somebody, although he doesnt give you the slightest hint who it is they are covering for.
Petitioner claims this statement impermissibly shifted the burden of proof to Petitioner. However, the Pennsylvania Supreme Court found no merit to this purported burden-shifting claim because [t]he prosecutors remark was in response to the theory espoused by the defense: that one of the Commonwealths witnesses committed the murder since [Petitioner] was the perfect patsy. Additionally, questions about the absence of facts in the record need not be taken as comment on [the petitioners] failure to testify.
When placed in context, the prosecutors remark reads as follows:
Wouldnt you be suspicious if everybody remembered something exactly the same way from beginning to end? Wouldnt you be a lot more suspicious if there were no discrepancies, that a conspiracy in fact had taken place here and all of these guys had gotten together and let the testimony fit perfectly. Of course you would. The fact that it doesnt fit together perfectly shows that each of those guys were trying to tell you what he could remember from his own recollection as opposed to getting together and cooking up a story.
And I will tell you something else, Ladies and gentlemen. If these guys were involved in cooking up a story to get Willie Sneed and save their own hides, they really did a pretty poor job. [Defense counsel] suggested to you that they had three years to get their acts together and that they are covering for somebody, although he doesnt give you the slightest hint who it is they are covering for. But if they had three years to get their act together, dont you think the testimony would have been better ....
The Pennsylvania Supreme Court correctly noted that the prosecutor was merely responding to defense counsels theory, not attempting to shift the burden of proof. That decision is consistent with clearly established federal law, as [t]here is nothing improper about a prosecutor attempt[ing] to focus the jurys attention on holes in the defenses theory ... [and] such a comment does not implicate any ... burden-shifting concerns. The state court also explained that, even if this statement was improper, the trial court cured any error in its charge to the jury:
Now I have told you before that it is entirely up to the defendant in every criminal trial, and that includes this one, whether or not to testify. The defendant has an absolute right, founded on the constitution, to remain silent. Since that occurred in this case, I now tell you unequivocally, that you must not, you may not draw any inferences adverse to the defendant from the fact that he did not testify nor did he present testimony on his own behalf.
As noted above, a jury is presumed to follow the courts instructions. Any harm resulting from possible improper references to Petitioners failure to testify or shifting the burden of proof to Petitioner was cured by this instruction. For these reasons, Petitioners claim based on the prosecutors alleged improper references to Petitioners failure to testify and improper burden-shifting will be denied.
v. Petitioners Claim that the Prosecutor Made Inflammatory or Vindictive Remarks
Petitioner challenges the following remarks from the prosecutors closing argument, claiming that they were inflammatory, vindictive, and designed to destroy the impartiality of the jurors:
But maybe, maybe we ought to give [Petitioner] a break. Maybe we ought to show him a little mercy and maybe we ought to give him a second chance. But when you get to that point, ladies and gentlemen, you recall the testimony in this case because that is what is important here, and you give him the same break he gave to [the victim] when he lured him, lured him back to south Philadelphia to the garage where he knew his gun was so that he could shoot him and kill him.
You show him the same mercy he showed Calvin Hawkins when he chased him down the street shooting at him, hitting him in the lung and severing a major artery, and hitting him in both arms. You give him the same second chance he gave to [the victim] who, lying on the street already suffering from a mortal wound, looked up at [Petitioner] ... only to receive ... a bullet to the brain.
He is not entitled to anymore chances, ladies and gentlemen. He is entitled to a fair trial by the jury of his peers. That is the thirteen of you. And that is a lot more than [the victim] got. [The victim] died because he had the audacity to steal $50.00 from [Petitioner]. I have tried a lot of theft cases in my career, ... but never saw one yet where the death penalty was appropriate.
You people are here to judge [Petitioner]. [Petitioner] did the judging on [the victim] himself. He tried him and he convicted him and he executed him.
The Pennsylvania Supreme Court examined the record to determine if these remarks deprived Petitioner of a fair trial. It concluded, however, that the remarks were based solely on the evidence. As Respondents note, [t]his argument, telling the jury not to be swayed by misguided sympathy in reaching a verdict, but rather to judge the case solely on what the evidence showed, was perfectly permissible. The Pennsylvania Supreme Court also noted that a prosecutor is free to present his or her arguments with logical force and vigor and some oratorical flair woven into a fact-based description does not give rise to a finding of misconduct. The Pennsylvania Supreme Courts analysis is consistent with established federal law, and the state court did not unreasonably apply federal law. Relief is not warranted on this claim.
vi. Petitioners Claim that the Prosecutor Improperly Bolstered the Credibility of a Commonwealth Witness
Petitioner claims that the prosecutor engaged in unconstitutional vouching for one of the governments witnesses, Charles Russell. Vouching constitutes an assurance by [a] prosecuting attorney of credibility of [a] government witness through personal knowledge, or by other information outside of the testimony before the jury. While a prosecutor may not vouch for a witness, he or she may argue in the negative that the assertions made by defense counsel that a witness is lying are not supported by the testimony in the record. In determining whether the prosecutor improperly vouched for a witnesss credibility, the allegedly improper statement must be considered in context of the whole record.
During the murder investigation, Charles Russell gave the police two statements. He gave the first statement on October 14, 1980, shortly after the murder took place, and claimed that he did not know anything about the crime. However, he subsequently failed a polygraph test. He gave his second statement nearly four years later on February 7, 1984, instead stating that on the day of the murder, he saw Petitioner return to the garage, take his coat, and bolt outside. Russell passed a second polygraph test after giving his second statement. Petitioner contends that the prosecutor improperly bolstered Russells credibility when the following exchange took place during re-direct examination:
Q: Is this the statement that you are talking about that you gave last year in which you told them the truth?
A: Yes.
Q: You didnt flunk a polygraph test after you gave them that statement, did you?
A: No.
Trial Counsel: I object.
The Court: I am going to overrule it, but please, sir, you are getting out of the purposes of this examination. I dont want that again, sir.
Petitioner alleges that this line of questioning was improper in light of the prosecutors suggestion that Russells statement must be true because he passed a polygraph. At trial, the defense objected to this line of questioning.
The Pennsylvania Supreme Court examined the full trial record and noted that, on cross-examination, defense counsel questioned Russell about his first statement to police and his first, failed polygraph test. The exchange is as follows:
Q: So you lied to the police, is that right?
A: Yes, I did.
Q: Now the police asked you, tell me what you know about the above incident and you said nothing?
A: Right.
Q: That was your answer, nothing. They asked you who was present inside the garage. Do you remember that?
A: Yes, I remember because I had to take a polygraph test.
The cross-examination continued as:
Q: There is no mention here about Boobie (i.e. Liverman); there is no mention in here -
A: Thats why I failed the polygraph test.
Q: Oh, thats why you failed the polygraph test?
A: Yes.
Q: In other words, you went out there and lied?
A: Yes.
These passages demonstrate that on re-direct, the prosecutor questioned Russell about the polygraph to correct the false impression created by defense counsel on cross-examination that Russell lied on both polygraph tests. The prosecutor did not offer his own opinion based on facts not before the jury. Rather, he asked if Russell passed the second test because the defense elicited testimony that made it seem as if Russell never passed a polygraph test. Since defense counsel raised the issue of the polygraph testing on cross-examination, it was permissible for the prosecutor to follow up on this topic.
Thus, the state courts finding that Petitioners claim is without merit because he fails to acknowledge that the exchange occurred on re-direct after [Petitioner] himself broached the subject, [the polygraph], on cross-examination, was not an unreasonable application of federal law.
Additionally, the trial courts jury instructions emphasized that the arguments of counsel were not evidence, that the jurors were the sole judges of the facts, and that it was up to them to resolve any issues of credibility. The jury is presumed to follow the trial courts instructions. Therefore, the state courts analysis was neither contrary to, nor an unreasonable application of, clearly established federal law. This claim will be denied.
vii. Petitioners Claim that the Cumulative Effect of the Allegedly Improper Remarks Denied Him a Fair Trial
Petitioner argues that the above comments had a cumulative effect on the trial that violated his right to due process. The cumulative effect of prosecutorial misconduct ... can rise to the level of a constitutional violation even if the individual instances of misconduct, standing alone, do not. Petitioner has not established that the cumulative effect of the prosecutors statements so infected the trial with unfairness as to make [his] conviction a denial of due process. To the extent any of the prosecutors statements were improper, the prosecutors own subsequent arguments to the jury and the trial courts jury instructions cured any potential defects. Accordingly, the Court will deny habeas relief on this basis, as the cumulative effect of the prosecutors comments did not deprive Petitioner of his right to a fair trial.
viii. Petitioners Claim of Ineffective Assistance of Counsel for Failure to Object to, Request a Curative Instruction, Request a Mistrial, or Litigate these Issues on Appeal Provides No Basis for Relief
As previously discussed, under the Strickland standard, counsel is presumed to have acted reasonably and effectively unless a petitioner demonstrates (1) counsels performance was deficient, and (2) the deficient performance prejudiced the petitioner. Petitioner argues that his trial counsel was ineffective for failing to object to the prosecutors remarks, failing to request curative instructions, failing to request a mistrial, and failing to raise these issues on appeal. The Pennsylvania Supreme Court carefully reviewed these claims under the Strickland standard and concluded that they were meritless.
The state courts analysis was not contrary to or an unreasonable application of clearly established federal law. Petitioner fails to satisfy both prongs of Strickland . As discussed above, the underlying claims of prosecutorial misconduct during closing argument and re-direct examination are without merit, and counsel is not ineffective in failing to raise meritless claims. Moreover, Petitioner has not shown that he was prejudiced by counsels failure to object to the prosecutors comments, or request curative instructions or a mistrial, as he has not shown that the outcome of the proceeding would have been different had counsel done so. Since the state court properly concluded that Petitioners counsel was not ineffective on this basis, this claim will be denied.
D. Petitioners Claim that His Conviction Must be Vacated Due to Improper Interference with the Jury Provides No Basis for Relief
Petitioner also seeks to vacate his conviction because of improper interference with the jury. A few weeks before Petitioners trial for the shooting of Hawkins, Petitioner stood trial in connection with another shooting and was convicted of second degree murder for the death of Anthony DAmore. Mr. DAmores widow attended the trial in this case. On the second day of trial, outside the presence of the jury, defense counsel raised the issue of Mrs. DAmores presence on the record. The following exchange occurred:
Defense counsel: I would like to raise a point for the record .... as the court is well aware, Mrs. DAmore who was the victims wife in the last Sneed case is present in the courtroom with either her husband or her paramour or something.
The Court: I am puzzled about why she is here. I assume she is not a witness.
Prosecutor: She called me to see if she could come down to see what happens in the second case.
Defense counsel: I am not particularly crazy about it, but I have no reason to say anything with regard to that.
The Court: Wait a minute. Is she doing anything with the jury other than sitting there?
Defense counsel: I dont know. When your honor gave the jury permission to go to the ladies room-
The Court: They were accompanied by [a court officer].
Defense counsel: Thats correct, and I understand that M[r]s. DAmore tried to go into the ladies room, and rightfully so, ...the court officer told M[r]s. DAmore you cannot go in there. I assume [another court officer] took them into the mens room but [Mrs.] DAmores husband, or paramour or whatever, was walking in the hall-what I dont need is for somebody to do some talking out loud-and Im only presupposing at this point-saying I would like to see this guy get what he deserves.
The Court: Please, sir, dont add anything you dont know. I see no reason for them to be here, but I have no way in the law to keep them away. The only thing I can do is keep them away from the jury.
Two days later, prior to the start of closing arguments, defense counsel informed the court that one of the jurors, Alberta McCool, was approached by a woman in the bathroom. The trial court held a colloquy with Ms. McCool, during which she informed the court that the woman asked her about the wind and her hairdo. Ms. McCool also stated that she did not respond to the woman, did not know who she was, and did not inform anyone but the court. Thereafter, the trial court informed Mrs. DAmore and her partner that they were no longer permitted in the courtroom. Based on these events, Petitioner alleges that Mrs. DAmores actions infected the trial proceedings, interfered with the jury, and deprived him of his right to a trial by a fair and impartial jury.
In all criminal prosecutions, the accused shall enjoy the right to a ... public trial, by an impartial jury. The integrity of jury proceedings must not be jeopardized by unauthorized invasions. When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant.
In this case, after learning of the contact Mrs. DAmore made with Ms. McCool in the bathroom, the trial court spoke with Ms. McCool in the presence of trial counsel, and determined that Ms. McCool did not know who Mrs. DAmore was, did not respond to her innocuous comments about Ms. McCools hair, and did not inform anyone of the interaction but the trial court. The trial court did not find that this interaction interfered with Ms. McCools ability to remain on the jury. However, it also ordered that Mrs. DAmore and her companion be prohibited from entering the courtroom for the remainder of the trial.
Based on this record, the Pennsylvania Supreme Court reasonably rejected Petitioners claim of juror interference. It stated:
While the contact was improper, [Petitioner] has failed to demonstrate that there was a reasonable likelihood that he suffered prejudice. Mrs. DAmores remarks bore no relation to the case and were innocuous. Moreover, her comments were ambiguous and not of such a nature that it can be said without hesitation that the speaker intended to influence a decision adverse to [Petitioner]. Commonwealth v. Laird , [555 Pa. 629] 726 A.2d 346, 357 (Pa. 1999).
Further, [Petitioners] claim is entirely speculative. [Petitioner] made no proffer as to what trial counsel would say in response to this claim. Counsel was at the scene, he noticed the prospect of some supposed improper contact, the issue was explored, and nothing was developed that supports a claim on appeal that [Petitioner] was somehow denied a fair trial because of innocuous remarks by a person who may have been related to another of [Petitioners] murder victims and who had as much right as any member of the public to attend [Petitioners] trial.
Based on the record, we cannot conclude that Mrs. DAmores comments compromised the integrity of the jury. Consequently, this claim lacks arguable merit. Counsel will not be deemed ineffective for failing to raise a meritless claim.
This determination by the Pennsylvania Supreme Court was not contrary to or an unreasonable application of clearly established federal law. Although Mrs. DAmores contact with the juror was improper, there was no evidence in the record supporting the conclusion that the contact tainted the jurors ability to render a fair and impartial verdict. Thus, this claim does not provide a basis for relief.
E. Petitioners Claim that the Commonwealth Withheld Material and Exculpatory Evidence Provides No Basis for Relief
Fifth, Petitioner asserts that the Commonwealth withheld material and exculpatory evidence in violation of his due process rights. In Brady v. Maryland , the Supreme Court held that a prosecutor has a duty to disclose evidence which is exculpatory and favorable to the accused on issues of guilt and punishment. To prove a Brady violation, the petitioner must show that the evidence was: (1) favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) suppressed by the State, either willfully or inadvertently, and (3) material such that prejudice resulted from its suppression. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In this case, Petitioner argues that the Commonwealth withheld information concerning prior cooperation between Charles Russell and the Philadelphia Police, gave favorable treatment to witnesses, and also threatened witnesses for favorable testimony. Petitioner also argues that his counsel was ineffective at trial and on direct appeal for failing to raise these Brady issues.
The Pennsylvania Supreme Court ruled that Petitioners Brady claims were without merit because they were conjecture and Petitioner failed to prove the existence of the allegedly exculpatory evidence. It wrote:
The burden rests with [Petitioner] to prove, by reference to the record , that evidence was withheld or suppressed by the prosecution. Commonwealth v. Porter , [556 Pa. 301] 728 A.2d 890, 898 (Pa. 1999) (citations omitted) (emphasis added). [Petitioner] has failed to prove the existence of the allegedly exculpatory evidence, let alone that it was material and deprived him of a fair trial. See [Com v. ] Paddy , [609 Pa. 272] 15 A.3d [431] at 450 [ (2011) ]. Likewise, [Petitioner] does not identify the witnesses who received this supposed favorable treatment. [Petitioners] bald assertions are insufficient to establish a viable Brady claim.
[Petitioner] cannot circumvent his pleading requirement by requesting an evidentiary hearing to determine whether counsel was ineffective for failing to develop the purported exculpatory evidence. An evidentiary hearing ... is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness. Commonwealth v. Scott , [561 Pa. 617,] 52 [752] A.2d 871, 877 n. 8 (Pa. 2000) ; Commonwealth v. Edmiston , [578 Pa. 284] 851 A.2d 883, 887 n. 3 (Pa. 2004).
In light of [Petitioners] complete failure to meet his burden of proving the Brady claim and counsels ineffectiveness, he is not entitled to relief.
The Pennsylvania Supreme Court reasonably concluded that Petitioners speculative references to allegedly withheld Brady material about purported cooperation between Charles Russell and the Philadelphia Police were insufficient to prove, by reference to the record, that evidence was withheld or suppressed by the prosecution. The state courts conclusion was consistent with Supreme Court precedent on Brady , is entitled to AEDPA deference, and does not provide a basis for relief.
Petitioner also argues that counsel was ineffective for failing to raise these purported Brady issues at trial or on direct appeal. However, this claim does not provide a basis for the relief Petitioner seeks. As previously noted, [a]n attorney cannot be ineffective for failing to raise a claim that lacks merit, and in this case, counsels failure to raise a meritless Brady claim without credible contentions of the existence of exculpatory evidence was not deficient, and would not have affected the outcome of the proceeding. This claim will be dismissed.
F. Petitioners Cumulative Error Claim Provides No Basis for Relief
Sixth, Petitioner urges the Court to vacate his conviction and sentence in light of the prejudicial effects of the cumulative errors in this case. The cumulative error doctrine allows a petitioner to raise a standalone claim asserting that the cumulative effect of errors at trial so undermined the verdict as to constitute a denial of his constitutional right to due process. Individual errors that do not entitle [the] petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial and denied him his constitutional right to due process. Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jurys verdict, which means that the petitioner is not entitled to relief based on cumulative errors unless he can establish actual prejudice. The petitioner must present his claim of cumulative error in the state courts before it may provide a basis for federal habeas relief.
Here, the Pennsylvania Supreme Court reasonably rejected Petitioners claim of cumulative error. Petitioner is unable to show that any of his present claims involved a violation of his constitutional rights. Even if the Court were to combine all of these alleged errors that occurred at trial and on direct appeal, there is still weighty evidence of Petitioners guilt in the record. Petitioner therefore has not shown that the cumulative prejudice resulting from the alleged errors undermined the reliability of the verdict. Petitioners claim of cumulative error lacks merit.
IV. PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY HEARING
Federal courts are not permitted to provide habeas relief for claims that were previously adjudicated on the merits in state-court proceedings unless one of the exceptions in 28 U.S.C. § 2254(d) applies. Furthermore, federal habeas courts are permitted to grant evidentiary hearings only if the requirements of § 2254(e)(2) are satisfied. When a habeas claim is subject to § 2254(d) but does not satisfy either of the exceptions therein, it is unnecessary to reach the question of whether § 2254(e)(2) would permit a federal hearing on that claim. In other words, when the state-court record precludes habeas relief under the limitations of § 2254(d), a district court is not required to hold an evidentiary hearing.
Most of the claims for which Petitioner requests an evidentiary hearing were adjudicated on the merits in state court. The PCRA court rejected those claims without holding a hearing because they lacked merit on their face. As discussed, this Court concluded that those claims failed to satisfy either of § 2254(d)s exceptions. Accordingly, an evidentiary hearing is not warranted.
V. CONCLUSION
In conclusion, the amended petition will be denied without an evidentiary hearing. Petitioner has not made a substantial showing of the denial of a constitutional right, and a certificate of appealability should not issue. There is no basis to conclude that reasonable jurists could debate whether ... the [amended] petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. An appropriate order follows.
Sneed-3 , 45 A.3d at 1107.
Id. at 1108.
Trial Ex. C-8.
Id. In this initial statement, Liverman also told the police about the murder of Anthony DAmore, which Petitioner was convicted of committing prior to this trial. Although the statements about the DAmore murder would not have been admitted if counsel attempted to cross-examine Liverman with this statement, the remainder of his statement recalling the truth about the shooting of Hawkins may have been recounted to the jury, and would not have elicited helpful testimony for the defense.
Sneed-3 , 45 A.3d at 1108.
Id.
Porter v. McCollum , 558 U.S. 30, 38, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ).
In fact, when Liverman was asked about giving a statement to police on re-direct examination, counsel repeatedly objected, presumably to prevent the contents of the statement from being revealed to the jury. The statement was instead used only for the purpose of showing that Liverman had provided it prior to making a deal with the prosecution to testify in the case against Petitioner. N.T. 3/11/85, 182-85.
Sneed-3 , 45 A.3d at 1108.
N.T. 3/11/85, 86-91. Petitioner also ignores that fact that Russell explained on direct examination that he had initially lied to police because he was scared and did not want to get involved. N.T. 3/11/85, 73-74.
Am. Pet. at 29.
N.T. 3/11/85, 91, 94-95, 98-100, 104-05.
Porter , 558 U.S. at 38, 130 S.Ct. 447 (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ).
Am. Pet. at 30 (emphasis omitted). Despite this assertion, Charles Russell also testified that Petitioner was in the garage on the night of October 13-14, 1980. See N.T. 3/11/85, 66-67.
Sneed-3 , 45 A.3d at 1108.
Moore v. DiGuglielmo , 489 F. Appx 618, 625 (3d Cir. 2012) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ) (internal quotation marks and brackets omitted).
Id. at 625 (quoting Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir. 1990) ) (internal quotation marks omitted).
Id.
Sneed-3 , 45 A.3d at 1108-09 (citing Commonwealth v. Johnson , 600 Pa. 329, 966 A.2d 523, 526 (2009) ; Commonwealth v. Clark , 599 Pa. 204, 961 A.2d 80, 90 (2008) ). The Third Circuit has explained that the Pennsylvania test is not contrary to Strickland. The five requirements set forth by the Pennsylvania Supreme Court would necessarily need to be shown to prevail under Strickland on a claim of this nature. Moore v. DiGuglielmo , 489 F. Appx 618, 625 (3d Cir. 2012).
Sneed-3 , 45 A.3d at 1109 (quoting Commonwealth v. Gibson , 597 Pa. 402, 951 A.2d 1110, 1134 (2008) ) (internal quotation marks omitted).
Sneed-3 , 45 A.3d at 1109.
Albrecht v. Horn , 485 F.3d 103, 127 (3d Cir. 2007) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).
Darden v. Wainwright , 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) ).
Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
Greer v. Miller , 483 U.S. 756, 766, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987).
Reid v. Beard , 420 F. Appx 156, 159 (3d Cir. 2011) (quoting Moore v. Morton , 255 F.3d 95, 107 (3d Cir. 2001) ).
See Marshall v. Hendricks , 307 F.3d 36, 63-64 (3d Cir. 2002).
Sneed-3 , 45 A.3d at 1110.
Reid v. Beard , 420 F. Appx at 160 (citing Gee v. Kerestes , 722 F.Supp.2d 617, 624 (E.D. Pa. 2010) ; see also Corredor v. Coleman, No. 09-1817, 2010 WL 391413, at *8, n.7 (E.D. Pa. Jan. 26, 2010) (internal quotation marks and citations omitted) (The state and federal tests for prosecutorial misconduct claims are substantively identical .... Both focus on the fundamental fairness of the trial based on potential prejudice from the alleged prosecutorial misconduct) (internal citations and quotations omitted); Young v. Klem, No. 04-0843, 2006 WL 487139, at *2 (E.D. Pa. Feb. 28, 2006) (finding the state standard for prosecutorial misconduct to be consistent with Supreme Court law).
N.T. 3/13/85, at 34 (emphasis added).
Id. at 66.
Am. Pet. at 42.
N.T. 3/13/85, at 12.
Sneed-3 , 45 A.3d at 1110.
See, e.g. , United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (holding that the prosecutor may make fair response to an argument made by defense counsel in closing).
Sneed-3 , 45 A.3d at 1110.
N.T. 3/13/85, at 63.
Sneed-3 , 45 A.3d at 1110
N.T. 3/13/85, at 40.
Am. Pet. at 44 (quoting Pa. Standard Jury Instructions § 2.04).
N.T. 3/13/85, at 40.
Sneed-3 , 45 A.3d at 1111.
Id.
N.T. 3/13/85, at 43.
N.T. 3/13/85, at 77-78.
See Greer v. Miller , 483 U.S. 756, 765-66, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (holding that the jury will normally be presumed to follow the courts instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury would be unable to follow the courts instructions and a strong likelihood that the effect of the evidence would be devastating to the defendant).
Becker v. Tennis , No. 08-5274, 2011 WL 2550380, at *8 (E.D. Pa. Apr. 26, 2011), report and recommendation adopted , No. 08-05274, 2011 WL 2550544 (E.D. Pa. June 23, 2011).
N.T. 3/13/85, at 66.
N.T. 3/13/85, at 41.
Sneed-3 , 45 A.3d at 1111.
562 Pa. 154, 753 A.2d 1278, 1284 (2000), abrogated on other grounds by Commonwealth v. Freeman , 573 Pa. 532, 827 A.2d 385 (2003).
Sneed-3 , 45 A.3d at 1111 (quoting Kemp , 753 A.2d at 1284 ) (internal quotation marks omitted).
Darden , 477 U.S. at 181, 106 S.Ct. 2464 (citation omitted).
N.T. 3/13/85, at 63 (you draw whatever inferences you see appropriate, Ladies and Gentlemen, that is your job).
Sneed-3 , 45 A.3d at 1111.
N.T. 3/13/85, at 41 (emphasis added).
See Darden , 477 U.S. at 181, 106 S.Ct. 2464 ; see also Donnelly , 416 U.S. at 643, 94 S.Ct. 1868.
Howard v. Horn , 56 F.Supp.3d 709, 730 (E.D. Pa. 2014).
Id .
See Walker v. Palakovich , 280 F. Appx 212, 216 (3d Cir. 2008) (discussing the prosecutors remark about the high crime rate in Philadelphia and holding that the remark was not improper and did not deprive the petitioner of a fair trial).
During closing arguments the defense counsel stated:
These people have all been arrested twenty times a piece. They will put a gun to your head faster than [you] can blink your eye ....They rob you, they rape you, they kill you. These are the type of people that are coming in now and saying youve got to believe me. N.T. 3/13/85, at 32.
See Weeks v. Angelone , 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (A jury is presumed to follow its instructions).
Darden, 477 U.S. at 181, 106 S.Ct. 2464 (citation omitted).
N.T. 3/13/85, at 49.
Am. Pet. at 47.
Griffin v. California , 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
Bontempo v. Fenton , 692 F.2d 954, 959 (3d Cir. 1982).
Beneshunas v. Klem , 137 F. Appx 510, 515 (3d Cir. 2005) (quoting United States v. Robinson , 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988) ).
Sneed-3 , 45 A.3d at 1112.
Id.
N.T. 3/13/85, at 13.
See Beneshunas , 137 F. Appx at 515.
Specifically, defense counsel said: And if it was one of them that did it, they are not going to admit to it, so they picked a perfect patsy. N.T. 3/13/85, at 28.
N.T. 3/13/85, at 48-49 (emphasis added).
N.T. 3/13/85, at 56.
Sneed-3 , 45 A.3d at 1112 (quoting N.T. 3/13/85, at 28).
Bontempo , 692 F.2d at 959.
N.T. 3/13/85, at 56-57 (emphasis added).
Sneed-3 , 45 A.3d at 1112.
United States v. Lore, 430 F.3d 190, 213 (3d Cir. 2005) ; see also Labrake v. Stowitzky , No. 07-0212, 2009 WL 2924808, at *7 (E.D. Pa. Jan. 30, 2009) (finding that the prosecutor was entitled to highlight [the petitioners] lack of injury from the supposed struggle and that this comment did not improperly shift the burden to petitioner or implicate his right to remain silent).
N.T. 3/13/18, at 79.
See Weeks, 528 U.S. at 234, 120 S.Ct. 727.
Am. Pet. at 47, 50.
N.T. 3/13/85, at 66-68.
Sneed-3 , 45 A.3d at 1113.
Response to Am. Pet. at 83.
Sneed-3 , 45 A.3d at 1113 (citation omitted).
See Corredor v. Coleman, No. 09-1817, 2010 WL 391413, at *8 n.7 (E.D. Pa. Jan. 26, 2010) (The state and federal tests for prosecutorial misconduct claims are substantively identical") (citations omitted).
See Darden , 477 U.S. at 181, 106 S.Ct. 2464 ; see also Henry v. Horn, 218 F.Supp.2d 671, 704-05 (E.D. Pa. 2002) (holding that the standard employed by the Pennsylvania Supreme Court to assess the petitioners claim of improper prosecutorial remarks was not contrary to the standard laid out in Darden , and that the state court did not unreasonably apply Darden in finding that the petitioners claim regarding the prosecutors improper remarks did not entitle him to habeas relief).
United States v. Walker , 155 F.3d 180, 184 (3d Cir. 1998).
United States v. Brennan , 326 F.3d 176, 186 (3d Cir. 2003).
Id. (citing Young , 470 U.S. at 11-12, 105 S.Ct. 1038 ).
N.T. 3/11/85, at 102-03.
Am. Pet. at 49.
N.T. 3/11/85, at 87.
N.T. 3/11/85 at 89.
Petitioner has not raised an ineffective assistance of counsel claim based on his trial counsels decision to cross-examine Russell on his first, failed polygraph, and even if he had, such a claim would not entitle him to habeas relief, as Petitioner cannot show that he was prejudiced by his counsels questioning Russell in this way.
Sneed-3 , 45 A.3d at 1112.
N.T. 3/13/85 at 74-79, 103-104.
See Weeks, 528 U.S. at 234, 120 S.Ct. 727.
Howard v. Horn , 56 F.Supp.3d 709, 730 (E.D. Pa. 2014) (internal quotation marks and citation omitted).
Darden , 477 U.S. at 181, 106 S.Ct. 2464 (internal quotation marks and citation omitted).
See Howard , 56 F.Supp.3d at 730 (finding no cumulative prosecutorial misconduct and holding that [t]o the extent that any of prosecutors statements were improper, the prosecutors own subsequent statements or the trial courts instructions cured any potential prejudice).
Strickland , 466 U.S. at 687, 104 S.Ct. 2052.
Sneed-3 , 45 A.3d at 1113 (since all of [Petitioners] allegations of prosecutorial misconduct lack merit, counsel was not ineffective for failing to raise them).
See Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir. 1998) (counsels failure to raise a claim is not unreasonable if the underlying claim is meritless).
N.T., 3/11/85, at 61-62.
It is not clear from the record how counsel or the trial court concluded that the woman in the bathroom was Mrs. DAmore.
N.T., 3/13/85, at 4.
Am. Pet. at 62.
U.S. Const. amend. VI.
Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954).
Stouffer v. Trammell , 738 F.3d 1205, 1214 (10th Cir. 2013).
Sneed-3 , 45 A.3d at 1115.
Petitioner also cites to a colloquy that occurred during the penalty phase of his trial concerning allegations that Mrs. DAmore and her companion were outside the courtroom and had a full view of the jurors as they exited and entered the courtroom. Am. Pet. at 61. Petitioners citation to the penalty phase, however, does not provide a basis for a new trial at the guilt phase. Particularly where, as in Petitioners case, he has already received penalty phase relief in the form of a life sentence.
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Dennis v. Secretary, Pa. Dept of Corrs. , 834 F.3d 263, 284-85 (3d Cir. 2016) (internal quotation marks and citations omitted).
Id. at 309.
United States v. Bagley , 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Am. Pet. at 63.
Sneed-3, 45 A.3d at 1116.
Id. (emphasis in original).
Commonwealth v. Porter , 556 Pa. 301, 728 A.2d 890, 898 (1999) (citations omitted).
The Commonwealth contends that this ineffectiveness claim is procedurally defaulted because it was not raised before the state courts. According to the Commonwealth, because Petitioner raised only a pro forma claim that counsel was ineffective, this claim is procedurally defaulted. Comm. Br. at 93. However, the PCRA court expressly noted that Petitioner raised an ineffectiveness claim based upon the purported Brady issues. Comm. Ex. 5 at 10. With respect to the ineffectiveness of trial and direct appeal counsel for failure to raise these Brady issues, Petitioners PRCA petition states [t]o the extent that previous counsel could have uncovered this information and litigated this issue in the trial court and on direct appeal, counsel was ineffective. Comm. Ex. 14 at ¶ 178. It wrote: Sneed also alleges that because trial counsel failed to uncover this information and litigate it at trial and on direct appeal, counsel was ineffective. Comm. Ex. 13 at 39. Petitioner also raised this ineffectiveness claim in his appeal of the PCRA courts decision. Pet.s Reply at 5. Thus, this ineffectiveness claim is not procedurally defaulted.
Singletary v. Blaine , 89 F. Appx 790, 794 (3d Cir. 2004).
Collins v. Secretary of Pa. Dept of Corrs. , 742 F.3d 528, 542 (3d Cir. 2014).
Fahy v. Horn , 516 F.3d 169, 205 (3d Cir. 2008) (internal quotation marks and citations omitted).
Id.
Collins , 742 F.3d at 543.
See Sneed-3 , 45 A.3d at 1117.
Fahy , 516 F.3d at 205.
Cullen v. Pinholster , 563 U.S. 170, 184, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Williams v. Taylor , 529 U.S. 420, 444, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (internal quotations marks omitted) ).
Pinholster , 563 U.S. at 183, 131 S.Ct. 1388 (quoting Schriro v. Landrigan , 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (internal quotation marks omitted) ).
Pinholster , 563 U.S. at 184, 131 S.Ct. 1388.
See 28 U.S.C. § 2253(c)(2).
Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation and citation omitted).