Cooke v. Oberlander

                 UNITED STATES DISTRICT COURT                            
               MIDDLE DISTRICT OF PENNSYLVANIA                           
MILES COOKE,                                                             

               Petitioner,        CIVIL ACTION NO. 3:22-CV-00022         

     v.                                (MEHALCHICK, M.J.)                

DERRICK E. OBERLANDER, et al.,                                           

               Respondents.                                              

                        MEMORANDUM                                       

    Petitioner Miles Cooke (“Cooke”) initiated this action on January 5, 2022, by filing a 
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Respondents 
Superintendent Derrick E. Oberlander, District Attorney of Dauphin County, and the 
Pennsylvania Attorney General’s Office (collectively, “Respondents”). (Doc. 1). Cooke is an 
inmate of the State Correction Institute at Forest, Pennsylvania (“SCI-Forest”). (Doc. 1). The 
parties have consented to proceed before the undersigned United States Magistrate Judge 
pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). (Doc. 5). For the following reasons, 
the petition will be dismissed.                                           
I.   BACKGROUND AND PROCEDURAL HISTORY                                    
    On May 30, 2014, Cooke and his brother, Justin Cooke, shot and killed the victim, 
Ronald McGruder (the “decedent”), near the corner of Hanover and Cameron Streets in 
Harrisburg, Pennsylvania. (Doc. 1, ¶ 1). Two nights before the murder, Justin Cooke and the 
decedent had gotten into a heated argument when the decedent blamed Justin Cooke for 
killing the decedent’s friend Warren Beasley in 2013. (Doc. 1, ¶ 2). On the night of May 29, 
2014, the decedent went out drinking with his friend James Moffitt and surveillance video at 
the bar showed that both Cooke and Justin Cooke were at the same bar. (Doc. 1, ¶ 3). The 
video also showed Cooke, Justin Cooke, and the decedent leave together in a tan Audi at 1:46 
a.m. on May 30, 2014. (Doc. 1, ¶ 3). Cooke and Justin Cooke provided identical voluntary 
statements to police shortly after the murder, confirming the clothing they were wearing, the 
precise route they took after leaving the bar with the decedent, and that they were driving a 

tan Audi owned by Cooke’s girlfriend. (Doc. 1, ¶ 6). Police arrested Cooke on October 2, 
2014, the day police obtained arrest warrants for both Cooke and Justin Cooke. (Doc. 1, ¶ 7). 
Cooke was charged with Murder, 18 Pa. C.S.A. § 2502, and Conspiracy – Murder, 18 Pa. 
C.S.A. § 903, under a theory of accomplice liability pursuant to the docked CP-22-CR-
0000932-2015 for offenses alleged to have occurred on May 30, 2014. (Doc. 3-2, at 37). 
    At trial, Courtney Williams testified for the Commonwealth that the decedent had 
been staying with him for a couple of months until his death. (Doc. 3, at 2). Williams testified 
that Justin Cooke and Cooke’s girlfriend, Shavon Gillespie, came over to his house and got 
into an argument over the killing of Warren Beasley. (Doc. 3, at 2). Williams testified that he 
heard the decedent tell Justin Cooke: “[I]f you want to kill me, if you feel some type of way 

and you want to do something to me, my heart is on my sleeve. So if you got to take a shot, 
take a shot.” (Doc. 1, ¶ 2; Doc. 3, at 2). Next, James Moffit, who was with the decedent on 
the night of his murder, testified for the Commonwealth. (Doc. 3, at 2). Moffit testified that 
on the evening the decedent died, they had been out together drinking at local bars and that 
Cooke and Justin Cooke were both present. (Doc. 3, at 2-3).               
    Jasmine Bullock, an eyewitness to the murder who resided on Hanover Street, also 
testified for the Commonwealth. (Doc. 3, at 3). Bullock testified that she awoke to screaming 
from the street and looked out her window to see Cooke and Justin Cooke standing over the 
decedent on the ground and shoot him twice in the head. (Doc. 1, ¶ 4; Doc. 2, at 3). Bullock 
called 911 at 1:58 a.m. an provided clothing descriptions matching Justin Cooke as the 
shooter and Cooke nearby. (Doc. 1, ¶ 4, Doc. 3, at 3). After the shooting, Cooke and Justin 
Cooke ran toward their car, entered the vehicle, and drove away. (Doc. 1, ¶ 5; Doc. 3, at 3). 
Next,  the  Commonwealth called  William  Kimmick, a  forensics  investigator with the 

Harrisburg Bureau of Police, who provided testimony as to video surveillance that showed a 
light colored vehicle with a sunroof traveling north on 13th Street. (Doc. 3, at 3). Chief John 
Goshert of the Criminal Investigation Division of the Dauphine County District Attorney’s 
Office testified as to the scene reenactment that he performed using the vehicle believed to 
have been involved in the incident, a light colored Audi. (Doc. 3, at 3). Detective Lachini and 
Detective James Glucksman of the Harrisburg Bureau of Police testified as to Cooke’s cell 
phone records on the night of the murder. (Doc. 3, at 4).                 
    On October 15, 2015, a jury convicted Cooke of First Degree Murder and Criminal 
Conspiracy, and Cooke was sentenced to the statutorily mandated term of life in prison. (Doc. 
1, ¶ 8; Doc. 3-2, at 346). Cooke filed a timely post-sentence motion, which was denied by 

operation of law on February 23, 2016. (Doc. 1, ¶ 9). Cooke filed a timely notice of appeal 
and the Supreme Superior Court affirmed the judgment of sentence on September 27, 2017. 
(Doc. 1, ¶ 9). On May 14, 2018, Cooke filed a timely pro se Post-Conviction Relief Act 
(“PCRA”) petition for which the court appointed counsel. (Doc. 1, ¶ 10). On December 27, 
2018, the PCRA counsel filed a petition to withdraw with an attached “no-merit” letter 
pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. 
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). (Doc. 1, ¶ 10). On April 4, 2019, Cooke filed 
an amended PCRA petition, which was dismissed on December 17, 2019. (Doc. 1, at 7). On 
January 13, 2020, Cooke filed an appeal to the Superior Court of Pennsylvania, which the 
court dismissed on February 24, 2021. (Doc. 1, at 7). On May 17, 2021, Cooke filed a petition 
for allowance of appeal to the Pennsylvania Supreme Court. (Doc. 1, at 7). 
    On January 5, 2022, Cooke filed the instant petition for writ of habeas corpus. (Doc. 
1, at 7). On February 3, 2022, Respondents filed a response to the petition. (Doc. 3). Having 

been fully briefed, this petition is now ripe for disposition.            
II.  HABEAS CLAIMS PRESENTED                                              
    Cooke presents the following grounds for relief in his federal habeas petition: 
    1)  That defense counsel provided ineffective assistance by failing to introduce 
      video surveillance  demonstrating that  Cooke did not murder Warren 
      Beasley. (Doc. 1, at 12);                                          

    2)  That defense counsel provided ineffective assistance by failing to inform 
      Cooke that a plea offer was available. (Doc. 1, at 14);            

    3)  The defense counsel provided ineffective assistance by failing to object to 
      the admission of a reenactment video. (Doc. 1, at 16);             

    4)  The defense counsel provided ineffective assistance by failing to raise a 
      Brady violation for the Commonwealth’s failure to disclose that witness 
      James Moffitt was an informant. (Doc. 1, at 17); and               

    5)  That the trial court abused its discretion by admitting inadmissible hearsay 
      testimony by Courtney Williams regarding declarations by the decedent. 
      (Doc. 1, at 19).                                                   

    The Court addresses each of these grounds below.                     

III.  STANDARDS OF LAW                                                    
    Cooke brings his petition pursuant to 28 U.S.C. § 2254, which permits federal courts 
to issue habeas corpus relief for persons in state custody. While a prisoner may properly 
challenge the “fact or duration” of his confinement through a § 2254 petition, see Preiser v. 
Rodriguez, 411 U.S. 475 498-99 (1973), the statute sets “several limits on the power of a federal 
court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen 
v. Pinholster, 563 U.S. 170, 181 (2011). Further, “it is not the province of a federal habeas court 
to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 
62, 67-68 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not 
issue the writ on the basis of a perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 

n.19 (1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply 
inapplicable.”). Rather, federal habeas review is limited to claims based “on the ground that 
[petitioner] is in custody in violation of the Constitution or laws or treaties of the United 
States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. As such, a writ of habeas corpus is an 
“ ‘extraordinary remedy’ reserved for defendants who were ‘grievously wronged’ by the 
criminal proceedings.” See Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon 
v. Coleman, 525 U.S. 141, 146 (1998)).                                    
    The  statutory text  of  §  2254  additionally requires  that  federal  courts  give  the 
appropriate deference to the legal rulings and factual findings of state courts made during 

criminal proceedings, and provides in pertinent part:                     
    An application for a writ of habeas corpus on behalf of a person in custody 
    pursuant to the judgment of a State court shall not be granted with respect to 
    any claim that was adjudicated on the merits in State court proceedings unless 
    the adjudication of the claim –                                      

    (1) resulted in a decision that was contrary to, or involved an unreasonable 
      application of,  clearly  established  Federal  law,  as  determined by  the 
      Supreme Court of the United States;1 or                            

    1 A state court decision is “contrary” to clearly established federal law if “the state 
court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question 
of law or if the state court decides a case differently than th[e Supreme] Court has on a set of 
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). 
    A state court decision is an “unreasonable application” of clearly established federal 
law if “(1) ‘the state court identifies the correct governing legal rule from [the] Court's cases 
but unreasonably applies it to the facts of the particular . . . case;’ or (2) ‘the state court either 
unreasonably extends a legal principle from our precedent to a new context where it should 
    (2) resulted in a decision that was based on an unreasonable determination of 
      the facts in light of the evidence presented in the State court proceeding. 

    28 U.S.C. § 2254(d).                                                 
Thus, given these deferential standards of review, federal courts frequently decline invitations 
by habeas petitioners to disturb the considered views of state courts. See Rice v. Collins, 546 
U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. 
Snyder, 278 F.3d 222, 228 (3d Cir. 2002).                                 
    Nonetheless,  with  respect  to  §  2254(d)(1),  the  Supreme Court defines  “clearly 
established federal law” as “holdings, as opposed to the dicta, of [the Supreme] Court's 
decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. 
Further, to warrant relief under § 2254(d)(1), a state court’s “unreasonable application of those 
holdings must be objectively unreasonable, not merely wrong; even clear error will not 
suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Regarding 28 U.S.C. § 2254(d)(2), “a 
determination of a factual issue made by a State court shall be presumed to be correct” unless 
a petitioner can show, by clear and convincing evidence, that the finding was erroneous. 28 
U.S.C. § 2254(e)(1); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 
2254 standard, a district court is bound to presume that the state court's factual findings are 
correct, with the burden on the petitioner to rebut those findings by clear and convincing 
evidence.”). Moreover, habeas relief  will not be  granted pursuant to § 2254(d)(2)  if a 
reasonable basis existed for the state court to make its factual finding. See Burt v. Titlow, 571 
U.S. 12, 18 (2013).                                                       


not apply or unreasonably refuses to extend that principle to a new context where it should 
apply.’” Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) (quoting Williams, 529 U.S. at 407). 
IV.  DISCUSSION                                                           
    A.  INEFFECTIVE ASSISTANCE OF COUNSEL                                
         1.   Standard of Review                                         
    The Sixth Amendment right to counsel is the right to the effective assistance of 
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to effective assistance 
of counsel also extends to the first appeal. Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). 
In Strickland, the Supreme Court articulated a two-prong test in assessing whether a petitioner 
has been denied the effective assistance of counsel. Strickland, 466 U.S. at 687-88. A petitioner 

must demonstrate: (1) that his counsel's representation “fell below an objective standard of 
reasonableness” and (2) that such defective performance caused the petitioner prejudice. See 
Strickland, 466 U.S. at 687-88.                                           
    In  evaluating the  first prong of  the  Strickland test, the  court  must be  “highly 
deferential”  toward counsel's  conduct. Strickland, 466  U.S. at  680.  There  is  a  strong 
presumption that counsel's conduct fell within the wide range of reasonable professional 
assistance. Strickland, 466 U.S. at 689. (“It is all too tempting for a defendant to second-guess 
counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, 
examining counsel's defense after it has proved unsuccessful, to conclude that a particular act 

or omission of counsel was unreasonable.”). “Strickland and its progeny make clear that 
counsel's strategic choices will not be second-guessed by post-hoc determinations that a 
different trial strategy would have fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d 
Cir. 2006)  (citing Strickland, 446  U.S. at 689).  Notably, courts will  not deem counsel 
ineffective for failing to raise a meritless argument. Strickland, 466 U.S. at 691; United States v. 
Saunders, 165 F.3d 248, 253 (3d Cir. 1999).                               
    To satisfy the prejudice prong, the petitioner must show that there is a reasonable 
probability that, but for counsel's deficient performance, the outcome of the proceeding would 
have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a probability 
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover, 

the petitioner must show that he or she had a reasonable likelihood of prevailing on the 
motion at issue, and having prevailed on the motion, it was also reasonably likely that the 
result of the trial would have been different. See Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 
2005).                                                                    
    To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy 
both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002). The 
inquiry may begin with either the deficient performance or prejudice prong, and the court is 
not required to consider the second prong of the test if the petitioner is unable to satisfy the 
first one. Strickland, 466 U.S. at 697.                                   

         2.   Counsel  was  not  ineffective  of  by  failing  to  introduce  video 
              surveillance of Beasley’s murder.                          
    Cooke asserts that trial counsel and/or PCRA counsel was ineffective in failing to 
introduce video surveillance of the murder of Beasley to demonstrate that he was not involved 
in Beasley’s homicide, thereby exculpating him from the homicide of the decedent, for which 
Cooke received the life sentence at issue. (Doc. 1, at 12-14). Cooke avers that defense counsel 
failed to rebut the Commonwealth’s theory that the decedent was murdered because he 
presented a threat to Cooke. (Doc. 1, at 14). Respondents submit that Cooke’s claims are 
procedurally defaulted to the extent that he raises new arguments in the instant petition 
beyond the contours of his appeal of the denial of his PCRA petition. (Doc. 3, at 6). Further, 
Respondents contend the Commonwealth’s theory at trial was that Justin Cooke and the 
decedent fought and the decedent had accused Justin Cooke of murder, so the fact that Cooke 
did not commit the Beasley murder is not relevant. (Doc. 3, at 7-8).      
    In the “no-merit” letter filed with the PCRA court, PCRA counsel explained that 
Cooke sought to raise various ineffectiveness claims based upon the existence of a video that 

“would demonstrate that [Cooke] was not involved in Mr. Beasley's  homicide thereby 
somehow exculpating [Cooke] from the homicide of” the decedent. (Doc. 3-3, at 89-90). 
PCRA counsel argued that Appellant's “non-involvement” in Beasley's homicide would not 
provide a basis for relief:                                               
    Evidence existed from various other sources to include both witness testimony 
    and surveillance video that placed you and the vehicle you were operating in 
    the  direct vicinity of  the victim at  the time the  homicide occurred. The 
    Commonwealth's theory of the case attributed Mr. McGruder's murder to a 
    desire to silence him since he had been implicating you in Mr. Beasley's 
    homicide however the Commonwealth never attempted to directly implicate 
    you in the Beasley homicide. Thus, a video that demonstrates that you did not 
    kill Mr. Beasley  is not and would not have been  exculpatory as...to Mr. 
    McGruder's murder. Since the video in question would not, on its face, [have] 
    been exculpatory in your case, failure of counsel to attempt its introduction was 
    not ineffective . . . .                                              

    (Doc. 3-3, at 90).                                                   

    The PCRA court denied relief, finding that Cooke failed to establish any allegations 
of error by trial counsel. Commonwealth v. Cooke, 249 A.3d 1182 (Pa. Super. Ct.), reargument 
denied (Apr. 27, 2021), appeal denied, 267 A.3d 486 (Pa. 2021). Appealing the decision to 
dismiss his PCRA petition, Cooke set forth the following ground for relief: “The [PCRA] 
court erred  by  denying [Appellant]'s  PCRA  claim of PCRA  counsel's  failure to  raise 
ineffective assistance of trial counsel for failing to present the videotape of Warren Beasley's 
murder, that would have shown that Ronald McGruder knew that [Appellant] did not kill 
Beasley.” Cooke, 249 A.3d 1182. Upon consideration of the record, the Superior Court of 
Pennsylvania affirmed the PCRA court’s order denying PCRA and found that Cooke’s claim 
of ineffective assistance of counsel for failure to introduce video surveillance of Beasley’s 
death was meritless. Cooke, 249 A.3d 1182. Adopting the reasons stated in the opinion entered 
by Judge Richard A. Lewis on February 12, 2020, the Superior Court explained: 

    Specifically, Judge Lewis noted that Appellant was charged with the murder of 
    Mr. McGruder, and neither Appellant nor his brother were charged with the 
    murder of Mr. Beasley. Any evidence regarding the murder of Mr. Beasley was 
    irrelevant to the issue of whether Appellant killed Mr. McGruder. As such, 
    there was no merit to Appellant's claim that trial counsel was ineffective for 
    failure to introduce such evidence. (See PCRA Court Opinion at 5). Moreover, 
    any mention of Mr. Beasley's murder was used to establish motive and did not 
    constitute direct evidence in the instant case. (Id. at 7).          

    Cooke, 249 A.3d 1182.                                                
    Upon review of the instant petition and the Superior Court’s determination, the Court 
finds that Cooke has not developed or substantiated his bald statements to demonstrate that 
the issues underlying his ineffectiveness claims have merit. While Cooke argues the video 
surveillance of the murder of Beasley  would rebut the Commonwealth’s theory that the 
decedent was murdered because he presented a threat to Justin Cooke by accusing Justin 
Cooke of murdering Beasley, Cooke has failed to present evidence that the Superior Court’s 
determinations were  contrary to clearly  established  case  law  or were  “based  upon an 
unreasonable determination of the facts.” See 28 U.S.C. § 2254(d)(2). Therefore, the Court 
finds that this claim has failed to meet the standards required for habeas relief and recommend 
that Cooke's requested relief be denied on this claim.                    
         3.   Counsel was not ineffective by failing to inform Cooke that a plea 
              offer was available.                                       
    Cooke asserts that trial counsel failed to offer Cooke appropriate advice concerning 
the Commonwealth’s plea offer by not offering professional advice on the decision whether 
to accept the plea bargain offer. (Doc. 1, at 14-16). Respondents argue “although trial 
counsel’s alleged advice given to [Cooke] could have been more thorough, it does not rise to 
the level of ineffective assistance of counsel.” (Doc. 3, at 10). Further, Respondents state 
Cooke has not shown a reasonably probability that he would have accepted the plea offer has 
defense counsel acted differently. (Doc. 1, at 10-11).                    

    Upon appeal of the PCRA court’s unfavorable determination, Cooke argued the 
PCRA court erred by denying Cook’s claim of PCRA counsel’s ineffectiveness for failing to 
advise him concerning a plea offer that was available. Cooke, 249 A.3d 1182. The Superior 
Court affirmed the PCRA court’s decision to deny relief and found that Cooke’s claim of 
ineffective assistance of counsel for failure to inform Cooke that a plea offer was available is 
meritless. Cooke, 249 A.3d 1182. Adopting the PCRA court’s reasoning, the Superior Court 
explained that “[r]egarding the plea offer, Judge Lewis observed that there is no evidence of 
record that the Commonwealth ever made an offer, and Appellant failed to develop his claim 
in a manner warranting an evidentiary hearing. (Id. at 6).” Cooke, 249 A.3d 1182.  

    Cooke has not developed or substantiated his bald statements to demonstrate that the 
issues underlying his ineffectiveness claims have merit. Cooke argues “counsel chose to 
neglect his duty to give [Cooke] the benefit of his professional advice on [the] crucial decision 
whether to accept the plea bargain offer; his offhand presentation , made for reasons that was 
contrary to his client’s interests, failed to make clear to [Cook] the risks, hazards or prospects 
of the case.” (Doc. 1, at 15-16). However, Cooke has failed to present evidence that the 
Superior Court’s determinations were contrary to clearly established case law or were “based 
upon an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d)(2). The Court 
agrees with the Superior Court’s analysis on this issue as there is no evidence in the record 
the Commonwealth ever made a plea offer. Therefore, the Court finds that this claim has 
failed to meet the standards required for habeas relief.                  
         4.   Counsel was not ineffective by failing to object to the admission of a 
              reenactment video.                                         
    Cooke argues that trial counsel was remiss in failing to object to the admission of a 
reenactment video and Detective Goshert’s testimony. (Doc. 1, at 16-17). Cooke claims the 
reenactment video, which was created by Detective Goshert using a vehicle that was allegedly 
the same vehicle used on the night of the underlying incident, was misleading because the 
poor quality of the original video surveillance and distorted image of the vehicle used in the 
crime misled the jury to believe that the vehicle in the reenactment was actually the same 
vehicle in the original video. (Doc. 1, at 16). Cooke submits that the jury was left to infer that 
the vehicles were the same. (Doc. 1, at 16). In response, Respondents state “[Cooke] raises 

no issue regarding the authentication of the video, as such the Commonwealth will simply 
note that the parties entered into a stipulation regarding the foundational requirements for all 
videos admitted at trial.” (Doc. 3, at 11). Further, Respondents argue the demonstrative 
reenactment video was necessary for the legitimate purpose of clarification “to render more 
comprehensible the raw footage of the vehicle traveling along the same road.” (Doc. 3, at 11). 
Respondents contend “defense counsel had ample reason not to object where admission of 
the demonstration was proper.” (Doc. 3, at 12).                           
    Appealing the decision to dismiss his PCRA petition, Cooke set forth the following 
ground for relief: “The [PCRA] court erred by denying [Appellant's claim of PCRA counsel's 

failure to request a limited admissibility instruction and/or failing to object to the admission 
of the Commonwealth's car reenactment on the basis that it was not offered to illustrate any 
scientific principles but rather then to depict the Commonwealth's version of events in which 
the reenactment video was dissimilar and outweighed the probative value of the reenactment 
evidence.” Cooke, 249 A.3d 1182. Adopting the PCRA court’s reasoning, the Superior Court 
explained that “[r]egarding the admission of the “car reenactment” video, the trial court 
properly admitted this demonstrative evidence, the jury was free to assess its weight, and 

Appellant  did not  suffer  prejudice  due  to  trial  counsel's  failure  to  request  a  limited 
admissibility instruction. (Id. at 7).” Cooke, 249 A.3d 1182.             
    Here, since Cooke has failed to allege that the outcome would have been different if 
counsel had objected to the prosecutor’s admission of a reenactment video, or that the 
Superior Court committed any error in evaluating this evidence against established legal 
standards, the Court finds that Cooke has failed to set forth this claim for habeas relief.  
         5.   Counsel was not ineffective by failing to raise a Brady violation. 
    Cooke submits that his PCRA counsel was ineffective in failing to raise a Brady 
violation for the Commonwealth’s failure to disclose James Moffitt, the Commonwealth’s 
witness,  had  supplied the  Harrisburg Police  Department with information on  several 
occasions about criminal activity in the area. (Doc. 1, at 18). Respondents state that Cooke 
failed to provide any evidence to support his assertion that Moffitt worked as an informant. 

(Doc. 3, at 12).                                                          
    At the onset, the Court notes that while Cooke has raised the issue of prosecutorial 
misconduct related to the presentation of Commonwealth witness, Moffit, as an ineffective 
assistance of counsel claim, Cooke failed to fully develop the issue as a Brady violation in any 
state court proceedings. See Cooke, 249 A.3d 1182; Commonwealth v. Cooke, No. 516 MDA 
2016, 2017 WL 3484136, at *1 (Pa. Super. Ct. Aug. 15, 2017). Rather, appealing the decision 
to dismiss his PCRA petition, Cooke set forth the following ground for relief: “The [PCRA] 
court abused its discretion by denying [Appellant's PCRA petition arguing trial counsel was 
ineffective for failing to raise prosecutorial misconduct for the  suppression of material 
impeachment evidence that James Moffitt is an informant for the Harrisburg Police District 
and/or District Attorney's Office.” Cooke, 249  A.3d 1182. Adopting the PCRA court’s 
reasoning, the Superior Court explained that “[r]egarding prosecutorial misconduct related to 

the presentation of Commonwealth witness James Moffitt, Appellant provided no evidence 
to support his assertion that Mr. Moffitt worked as an informant. (Id. at 9).” Cooke, 249 A.3d 
1182.                                                                     
    Accordingly, the claim is procedurally defaulted and this Court cannot consider the 
claim unless Cooke establishes cause and prejudice or a fundamental miscarriage of justice 
sufficient to excuse the default. Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d 
Cir. 2018) (stating that federal courts may not consider the merits of a procedurally defaulted 
claim unless the petitioner can demonstrate “cause”  to excuse  the default and “actual 
prejudice” resulting from the alleged  constitutional violation.). Cooke has not met this 

burden. As a result, this due process claim will be denied as it is procedurally defaulted and 
federal review is barred.                                                 
    Even if Cooke did fully develop this claim before the instant petition, it would still fail 
on the merits. Cooke argues that:                                         
    Mr. Goode’s Brady claim has been stymied throughout his post-conviction 
    proceedings by the prosecutions assertions that no deal existed between James 
    Moffitt and the Commonwealth for favorable treatment in return for trial 
    testimony. Commonwealth witness Detective Iachini revealed for the first time 
    at trial that Mr. Moffitt, the Commonwealth’s witness, had supplied the 
    Harrisburg Police Department with information on several occasions about 
    criminal activity in the area. Mr. Moffitt had been denied that he was an 
    informant and only came forward in [Cooke]’s case because it was rumored 
    that he had something to do with McGruder’s murder. This information given 
    to police by Mr. Moffitt impinges on his bias, credibility and motive to give 
    false testimony.                                                     
    (Doc. 1, at 18).                                                     
    Under Brady v. Maryland, a violation of due process occurs when the prosecution 
withholds favorable evidence from the accused and the evidence is material to the accused's 
guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence is material when 

“there is a reasonable probability that, had the evidence been disclosed to the defense, the 
result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 
105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). As Brady pertains to lost or destroyed evidence, failing 
to preserve “potentially useful evidence” does not violate due process unless the defendant 
shows that the police acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 
102 L.Ed.2d 281 (1988). “To establish a Brady violation, an appellant must prove three 
elements:  (1)  the  evidence  at  issue was  favorable  to the  accused,  either because  it is 
exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, 
either willfully or inadvertently; and (3) prejudice ensued.” Commonwealth v. Roney, 79 A.3d 

595, 607 (2013). When the Commonwealth fails to preserve “potentially useful” evidence, as 
opposed to “materially exculpatory” evidence, no due process violation occurs unless the 
defendant can prove the Commonwealth acted in bad faith. Commonwealth v. Chamberlain, 30 
A.3d 381, 402 (2011), cert. denied, 566 U.S. 986 (2012). “Potentially useful evidence is that of 
which no more can be said than that it could have been subjected to tests, the results of which 
might have exonerated the defendant.” Chamberlain, 30 A.3d at 402 (internal quotation marks 
omitted).                                                                 
    Cooke has not presented any evidence to establish prejudice or support his assertion 
that Moffitt worked as an informant in the underlying criminal matter, or that such evidence 
would have affected the outcome of the trial. Accordingly, to the extent that it is not 
procedurally defaulted, Cooke’s due process claim will be dismissed as it is without merit. 
    B.  TRIAL COURT ERROR                                                
         1.   Admitting testimony of Courtney Williams was not  an abuse of 
              discretion.                                                
    Cooke  argues  the  trial  court  erred  by  allowing  the  Commonwealth to  admit 
testimonial hearsay at trial, in violation of his Sixth Amendment right to confront the 
witnesses  against him. (Doc.  1, at 19).  Cooke claims the testimony by  Williams was 
inadmissible hearsay because it was testimonial in nature and Cooke had no prior opportunity 
to cross examine. (Doc. 1, at 21). In response, Respondents aver that Cooke failed to cite any 
relevant United States Supreme Court precedent that he claims the state court failed to 
properly apply. (Doc. 3, at 12). Further, Respondents argue the Commonwealth offered the 
testimony of Williams to establish motive and the testimony establishing motive is simply 

that the statement was made, which is not hearsay under either state or federal rules of 
evidence as it was not offered for the truth of the matter asserted by the statement. (Doc. 3, at 
13).                                                                      
    Here, Cooke “faces an exacting burden in advancing such a claim, attacking an 
evidentiary ruling as a petitioner who challenges a state court evidentiary ruling is not entitled 
to habeas relief unless the error of the state court ‘undermined the fundamental fairness of the 
entire trial.” Kunkle v. Pennsylvania, No. 4:17-CV-898, 2019 WL 2341630, at *6 (M.D. Pa. 
Apr. 18, 2019), report and recommendation adopted sub nom. Kunkle v. Commonwealth, No. 4:17-
CV-00898, 2019 WL 2324508 (M.D. Pa. May 31, 2019) (citation omitted). Accordingly, after 

a review of the record, the Court concludes that the relevant statement was not erroneously 
admitted.                                                                 
    In his PCRA petition, Cooke raised the argument that the trial court erred by denying 
his pre-trial motion in limine to preclude the testimony of Williams with respect to 404(b) 
evidence  of Cook’s prior bad acts through hearsay testimony regarding the decedent’s 

statements to co-defendant Justin Cooke regarding decedent’s belief that Justin Cooke was 
involved in another murder. Cooke, 2017 WL 3484136, at *2. Upon review, the Superior Court 
of Pennsylvania discerned no abuse of discretion or error of law by the trial court. Cooke, 2017 
WL 3484136, at *7. In rejecting Cooke’s claim that William’s testimony violated his right of 
confrontation and affirming the judgment of sentence, the Superior Court explained: 
    As described above, Williams overheard Justin arguing with McGruder two 
    nights before McGruder's murder. McGruder blamed Appellant for killing 
    McGruder's friend Warren Beasley in 2013. McGruder told Justin that, “if you 
    want to kill me, if you feel some type of way and you want to do something to 
    me, my heart is on my sleeve. So if you got to take a shot, take a shot.” Trial 
    Court Opinion, dated 7/19/16, at 3 n.6.                              

    Hearsay is an out-of-court statement offered for the truth of the matter asserted. 
    Pa.R.E. 801(c). It is generally inadmissible unless it falls within one of the 
    exceptions  to  the  hearsay  rule  delineated  in  the  Rules  of  Evidence. 
    Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An out-of-court statement 
    is not hearsay when it has a purpose other than to convince the fact finder of 
    the truth of the statement[,]” such as motive or the effect on the listener. Id. See 
    also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 
    801.11[1] et seq. (2017 ed. LexisNexis Matthew Bender).              

    The trial court addressed Appellant's hearsay challenge as follows:  

      Appellant  argues  that  the  statements  made  by  Courtney  Williams 
      constituted hearsay. As discussed below, Appellant's argument lacks merit. 

      Contrary to Appellant's assertions, Ms. Williams' statements were  not 
      hearsay. Hearsay is an out-of-court statement offered to prove the truth of 
      the matter asserted. Commonwealth v. Griffin, [ ] 515 A.2d 865, 870 ( [Pa.] 
      1986). When an extrajudicial statement is offered for a purpose other than 
      providing the truth of its contents, it is not hearsay and is not excludable 
      under the hearsay rule. Id. Thus, statements are admissible to establish ill-
      will or motive where they are not being offered for the truth of the matter 
 asserted. See Commonwealth v. Brown, [ ] 648 A.2d 1177, 1182 ( [Pa.] 1994) 
 ( [o]ut-of-court statement, which was not offered for its truth, but only for 
 the fact that it was made, was not inadmissible hearsay).          

 In the instant matter, the Commonwealth attempted to establish motive for 
 killing Mr. McGruder by showing that there was  ill-will between  Mr. 
 McGruder and Justin Cooke. The Commonwealth did not offer Ms.      
 Williams' testimony to prove that Justin Cooke actually committed the 
 killing of Mr. McGruder [or that Appellant actually killed Beasley in 2013], 
 but  to  supply  a  motive for  killing  Mr. McGruder. Accordingly, this 
 statement  (that  Mr. McGruder  and  Justin  Cooke  got  into  a  heated 
 discussion over the killing of Warren Beasley) was admissible, since it was 
 not offered to prove the truth of the matter asserted, but rather to establish 
 a motive for the killing[ ].                                       

 Additionally, we gave the following jury instructions in regards to motive: 

    Motive is not a part of the definition of [M]urder or any other crime. 
    The  Commonwealth  is  not  required  to  prove  a  motive  for  the 
    commission of the crime charged. However, you should consider the 
    evidence of motive or the lack of motive.... You should weigh and 
    consider the evidence tending to show motive, along with all other 
    evidence in deciding whether the defendant is guilty or not guilty of the 
    crime charged. It is entirely up to you to determine what weight should 
    be given to the evidence concerning motive.                     

    Now, of course there was the testimony, I believe it was the very first 
    witness, Courtney Williams and that testimony was  offered to show 
    motive. She had testified about a certain conversation she heard or 
    overheard and so forth and that evidence was not offered to prove the truth or 
    falsity of what happened with Mr. Beasle[y]'s killing. It was only offered to show 
    a possible motive in the killing of Mr. McGruder. You are to accept that evidence 
    only for that limited purpose.                                  

 Accordingly, Ms. Williams' testimony was not hearsay and it was properly 
 admitted as evidence.                                              

Trial Court Opinion, dated 7/19/16, at 11–12 (footnote omitted; emphasis in 
original). We agree with the trial court's assessment.               

As noted by the Commonwealth and the trial court, the Commonwealth did 
not present McGruder's statement to demonstrate that Appellant actually shot 
and killed Beasley in 2013. Rather, the Commonwealth presented the statement 
because it demonstrated that McGruder told Justin this information, and such 
information  served  as  the  motive  for  the  McGruder's  murder.  See 
Commonwealth v. Fisher, 681 A.2d 130, 140 (Pa. 1996), superseded on other grounds 
    by  42  Pa.C.S. §  9711(a)  (holding that  the  victim's statements  about the 
    defendant that were communicated to the defendant were not hearsay when 
    the statements were offered to prove the defendant's motive for killing the 
    victim). We discern no abuse of discretion or error of law.          

    Cooke, 2017 WL 3484136, at *5-6.                                     

Cooke did not raise this issue on appeal to the Superior Court. See Cooke, 249 A.3d 1182.  
    The Sixth Amendment's Confrontation Clause guarantees that “[i]n all  criminal 
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against 
him.” Pointer v. Texas, 380 U.S. 400, 403 (1965). The Confrontation Clause is applicable to 
the States through the Fourteenth Amendment. See Monachelli v. Warden, SCI-Graterford, 884 
F.2d 749, 751 (3d Cir. 1989) (citing Pointer, 380 U.S. at 404). It does not guarantee criminal 
defendants “the absolute right to a face-to-face meeting with witnesses against them at trial.” 
Maryland v. Craig, 497 U.S. 836, 844 (1990). The Clause's “central concern . . . is to ensure the 
reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in 
the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845. This 
right applies only to testimonial statements offered for their truth. Crawford v. Washington, 541 
U.S. 36, 50-51, 59-60 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985) ). If a 
witness is unavailable, hearsay testimony of that person is not admissible unless the defendant 
had a prior opportunity for cross-examination. Crawford, 541  U.S. at 68. However, the 
Confrontation Clause does not apply to non-testimonial statements or testimony that is not 
used for a hearsay purpose. Davis v. Washington, 547 U.S. 813, 823-24 (2006). 
    Federal Rule of Evidence 801(c) defines hearsay as “a statement that the declarant 
does not make while testifying at the current trial or hearing; and a party offers in evidence to 
prove the  truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(1), (2). 
Pennsylvania Rule of Evidence 801(c), which is identical to its federal counterpart, defines 
hearsay as “a statement that the declarant does not make while testifying at the current trial 
or hearing; and a party offers in evidence to prove the truth of the matter asserted in the 
statement.” Pa.R.E. 801(c). Generally, statements that are hearsay are not admissible, unless 
the statement falls into one of the enumerated exceptions in the rule. Pa. R. Evid. 802. One 

such exception is a statement of the declarant's then-existing state of mind. Rule 803(3) 
provides an exception to hearsay for:                                     
    A statement of the declarant's then-existing state of mind (such as motive, intent 
    or plan) or emotional, sensory, or physical condition (such as mental feeling, 
    pain, or bodily health), but not including a statement of memory or belief to 
    prove the fact remembered or believed unless it relates to the validity or terms 
    of the declarant's will.                                             

    Pa. R. Evid. 803(3).                                                 
When the prosecution seeks to introduce an unavailable declarant's out-of-court statement 
against an accused, courts must decide whether the offered statement is permissible under the 
Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 123-24 (1999). In Lilly, the Court 
recognized that testimony admitted pursuant to “a firmly rooted hearsay exception” did not 
violate the Confrontation Clause. 527 U.S. at 124.                        
    Under Pennsylvania state law, “a witness may testify to statements made by another 
to the witness or to a third person when the purpose of this testimony is to evidence the effect 
the statement had upon the listener.” Commonwealth v. Wright, 317 A..2d 271, 273 (Pa. 1974); 
see also Commonwealth v. Smith, 492 A.2d 9, 13 (Pa. Super. 1985) (statement made to or 
overheard by a witness is admissible when the purpose of the testimony is to evidence the 
effect which the statement had upon the listener). A determination as to whether a challenged 
statement is inadmissible hearsay “turns on the purpose for which it is offered.” United States 
v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993). Testimony offered for the purpose of showing its 
effect on the listener is a non-hearsay use and therefore admissible. United States v. Lambinus, 
747 F.2d 592, 597 (10th Cir. 1984) (testimony offered for its effect on the listener is a non-
hearsay use).                                                             
    Here, the challenged hearsay was not offered to prove the truth of the matter asserted. 

Rather, it was offered to establish a motive for the killing. Cooke, 2017 WL 3484136, at *6. 
Specifically, it was admitted to establish motive for killing for the decedent by showing that 
there was ill-will between the decedent and Justin Cooke. Cooke, 2017 WL 3484136, at *6. 
The trial court further gave jury instructions in regards to motive and emphasized that 
Williams’ testimony about the conversation she overheard between the decedent and Justin 
Cooke “was not offered to prove the truth or falsity of what happened with Mr. Beasle[y]’s 
killing. It was only offered to show a possible motive in the killing of Mr. McGruder. You are 
to accept that evidence only for that limited purpose.” Cooke, 2017 WL 3484136, at *6 
(quoting Trial Court Opinion, dated 7/19/16, at 11-12). Thus, the state courts found that this 

claim of trial counsel’s ineffectiveness was not an abuse of discretion or error of law. Cooke, 
2017 WL 3484136, at *7.                                                   
    Because the state courts did not unreasonably apply clearly established federal and 
state law in rejecting Cooke’s claim that Williams’ testimony was inadmissible hearsay and 
because the testimony by Williams as to the conversation she overheard between the decedent 
and Justin Cooke falls under one of the well-settled  exceptions to the hearsay rule, its 
admission did not implicate Sixth Amendment confrontation rights. See Lilly, 527 U.S. at 124; 
Brown v. Burns, No. 4:CV-13-1495, 2015 WL 7273320, at *8 (M.D. Pa. Nov. 18, 2015) 
(challenged hearsay not offered to prove truth of matter asserted but rather to show effect it 
had on petitioner and, thus, did not implicate confrontation rights). Accordingly, denial of 
relief with respect to Cooke’s hearsay argument is appropriate.           
V.   CERTIFICATE OF APPEALABILITY                                         
    Pursuant to 28 U.S.C. § 2253(c)(1)(A),  unless a circuit justice or judge issues a 
certificate of appealability, an appeal may not be taken from a final order in a proceeding 

under 28 U.S.C. § 2254. A certificate of appealability may issue only if the applicant has made 
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A 
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with 
the district court's resolution of his constitutional claims or that jurists could conclude the 
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 
Cockrell, 537  U.S. 322  (2003).  Because  reasonable  jurists could not disagree with the 
resolution of this petition, there is no basis for the issuance of a certificate of appealability.  
VI.  CONCLUSION                                                           
    Based on the foregoing reasons, Cooke’s petition for a writ of habeas corpus (Doc. 1) 
is DENIED, and no certificate of appealability shall issue, as Cooke has not demonstrated “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C § 2253(c)(2).  
    An appropriate Order follows.                                        
                                    BY THE COURT:                        

                                    s/ Karoline Mehalchick               
Dated: December 28, 2022                                                  
                                    KAROLINE MEHALCHICK                  
                                    Chief United States Magistrate Judge