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[[COURTLISTENER_SUBOPINION {"id":"10412494","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LAQUINCEY A. WATSON, :
Petitioner : CIVIL ACTION NO. 3:18-1718
v. : (JUDGE MANNION)
ROBERT MARSH, :
Respondent :
MEMORANDUM
Petitioner, LaQuincey A. Watson, an inmate confined in the Benner
State Correctional Institution, Bellefonte, Pennsylvania, filed the instant
petition for writ of habeas corpus pursuant to
28 U.S.C. §2254
. (Doc. 1). He
challenges his conviction and sentence imposed in the Court of Common
Pleas of Dauphin County.
Id.
The petition is ripe for disposition. For the
reasons outlined below, the petition will be denied.
I. Background
The factual background, extracted from the Pennsylvania Superior
Courtâs August 11, 2014 Memorandum Opinion, affirming Petitionerâs
conviction and sentence, is as follows:
The trial court has set forth an extensive recitation of the
underlying facts in its Opinion, which we adopt for the purpose of
this appeal. See Trial Court Opinion, 10/28/13, at 1-12.
Relevantly, Detective James Glucksman (âGlucksmanâ) worked
as a police officer for eleven years and investigated between 600
and 1,000 burglaries, including serial burglary cases.
Glucksman became involved with this case on March 5, 2010,
when he was ordered to investigate the third burglary in Lower
Paxton Township that weekend.1 Glucksman determined that a
witness had encountered the burglar and, based on the
information and description provided, assembled a photo array
for review by the witness, which ultimately led to the identification
of Watson as a suspect. The burglaries that occurred in
Glucksmanâs patrol zone, and surrounding areas, fit a pattern of
burglaries wherein the modus operandi involved parking a car in
the homeâs driveway and kicking in a door in order to gain access
during daylight hours. Watson was subsequently arrested and
Glucksman obtained a search warrant for Watsonâs residence.
Glucksman searched for, inter alia, a pair of sneakers that had a
tread pattern consistent with marks recovered from the door of a
home that had been robbed. While conducting the search,
Glucksman seized two pairs of sneakers matching the tread
pattern and photographed a gun holster, cameras, jewelry,
laptop, coins, and radios. Glucksman subsequently received an
anonymous tip that Watsonâs girlfriend had removed the
photographed items from Watsonâs residence and was tempting
to sell them on the internet. Glucksman contacted her, and, after
observing the items in her apartment and confirming they were
in fact reported as stolen, seized the items with her consent.
Watson was charged with more than twenty crimes,
predominantly burglaries, which took place over the course of
approximately four months (November 2009-March 2010) in four
counties.2 The stolen items included household electronics,
jewelry, collectible coins, and other cash or coins. Watson moved
1 See 18 Pa.C.S.A. §§3502, 3701(a)(1)(ii), 3925, 6105(a)(1).
2 The Commonwealth dropped eleven of the charges, leaving Watson to face
charges for 5 burglaries that occurred in Dauphin County, 5 burglaries that
occurred in York County, 5 burglaries that occurred in Cumberland County,
and 2 burglaries that occurred in Lancaster County.
to suppress this evidence at one of the pretrial hearings, but his
Motion was denied.
Watson also filed a Motion to Sever Charges, a Motion for
Severance of Charges Or, In The Alternative, A Bifurcated Trial
(âMotion for Severanceâ), and a Motion to Exclude Admission of
Cellular Telephone Tower âPingâ Evidence and Accompanying
Expert Testimony (âMotion to Excludeâ), all of which were
denied.3
Watsonâs charges were consolidated, and a jury trial was held in
Dauphin County in September 2012. Watson was found guilty of
the abovementioned crimes and acquitted on three counts of
burglary. On December 17, 2012, Watson was sentenced to an
aggregate sentence of 33½-67 years in prison. Watson filed a
timely Post-Sentence Motion. On April 23, 2012, the trial court
granted Watsonâs Post-Sentence Motion and issued an
Amended Sentencing Order, stating that Watson was to serve
22-44½ years in prison. Watson filed a timely Notice of Appeal
and a Concise Statement of Matters Complained of on Appeal,
pursuant to Pa.R.A.P. 1925(b).
On appeal, Watson raises the following questions for our review:
I. Whether the trial court erred in denying [Watsonâs] [M]otion to
[S]uppress physical evidence and identification of evidence
where the search exceeded the scope of the warrant and the
plain view exception was [] inapplicable in violation of Article 1,
Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution?
II. Whether the trial court erred in denying [Watsonâs] [P]retrial
[M]otion for [S]everance where the crimes were not part of a
single criminal episode?
III. Whether the trial court erred in denying [Watsonâs] [P]retrial
[M]otion to [E]xclude Commonwealthâs [C]ellular [T]elephone
3 The other Motions made in Watsonâs Omnibus and Amended Omnibus
Pretrial Motions are not relevant to this appeal.
[T]ower â[P]ingâ [E]vidence and [A]ccompanying [E]xpert
[T]estimony where such is not generally accepted in the field of
cell phone technology?
IV. Whether the trial court erred in denying [Watsonâs] [M]otions
for [M]istrial after the Commonwealthâs witness repeatedly
violated a pre[]trial order forbidding opinion testimony regarding
the cellular phone records?
Brief for Appellant at 8.
(Doc. 10 at 92, Commonwealth v. Watson, No. 900 MDA 2013,
2014 WL
10803077
(Pa. Super. filed March 21, 2014) (unpublished memorandum).
By Memorandum Opinion dated August 11, 2014, the Superior Court
affirmed Petitionerâs judgment and sentence.
Id.
By Order dated February
25, 2015, the Pennsylvania Supreme Court denied Watsonâs petition for
allowance of appeal. (Doc. 10 at 182, Commonwealth v. Watson, No. 651
MAL 2014,
112 A.3d 652
(Pa. 2015) (Table).
On April 25, 2016, Watson filed a pro se petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§9541-9546 and on August 31,
2016, filed an amended counseled PCRA petition raising the following issues
for relief:
1. Trial counsel rendered ineffective assistance for failing to
request a Kloiber instruction on faulty identification testimony.
2. Trial counsel rendered ineffective assistance where he failed
to request an accomplice-corrupt source jury charge where the
testimony of Latoya Craighead qualified.
3. The Commonwealth violated Brady by failing to disclose
Latoya Craigheadâs criminal record and any information
regarding charges pending against her, and counsel was
ineffective for failing to request this impeachment evidence.
4. Trial counsel rendered ineffective assistance when he failed
to object to expert testimony provided by Jessica Sauder on the
grounds it violated Petitionerâs Sixth Amendment rights to
confrontation enunciated by Crawford, Melendez-Diaz and
Bullcoming.
5. Trial counsel rendered ineffective assistance when he failed to
brief the trial court committed an error of law by admitting prior
bad acts, and counsel failed to renew his objection when it
occurred.
6. Trial counsel rendered ineffective assistance where he failed
to object on the grounds the Commonwealth lacked jurisdiction
to prosecute Petitioner on the Maryland offense.
7. Trial counsel rendered ineffective assistance when he failed to
object where Petitionerâs Constitutional rights to trial by an
impartial jury were violated when the Commonwealth struck all
African Americans during voir dire.
8. Trial counsel rendered ineffective assistance when he failed to
object when initial counsel, Korey Leslie was allowed to testify at
Petitionerâs pretrial hearing where no colloquy was conducted to
waive attorney client privilege.
9. Trial counsel rendered ineffective assistance when he failed to
argue on direct appeal Petitionerâs sentence was illegal and
unconstitutional in light of Alleyne.
(Doc. 10 at 361-362). By Order dated March 30, 2017, the PCRA court
dismissed Watsonâs PCRA petition for the reasons set forth in their
Memorandum Order dated November 17, 2016. (Doc. 10 at 375, 400).
On April 20, 2017 Watson filed a notice of appeal from the dismissal of
his PCRA petition to the Pennsylvania Superior Court. (Doc. 10 at 410). He
raised the following issues for review:
1. Trial counsel was ineffective for failing to object to pretrial
counsel, Korey Leslie, testifying at the Appellantâs pretrial
hearing when there was no colloquy given to the Appellant
waiving this attorney/client privilege.
2. Trial counsel was ineffective for failing to object to the
Commonwealth striking all African American jurors in violation of
Batson.
3. Trial counsel was ineffective for failing to request a Kloiber
instruction on faulty identification testimony.
4. Trial counsel was ineffective for failing to request an
accomplice-corrupt source jury instruction where the testimony
of Latoya Craighead qualified for such instruction.
(Doc. 10 at 474).
By Memorandum Opinion dated February 1, 2018, the Pennsylvania
Superior Court affirmed the PCRA courtâs denial of Watsonâs PCRA petition.
(Doc. 10 at 503, Commonwealth v. Watson, No. 687 MDA 2017,
2018 WL
652925
(Pa. Super. filed Feb 1, 2018) (unpublished memorandum).
By Order dated July 17, 2018, the Pennsylvania Supreme Court denied
Watsonâs petition for allowance of appeal. Commonwealth v. Watson, No.
153 MAL 2018,
189 A.3d 388
(Pa. 2018) (Table).
On August 29, 2018, Petitioner filed the instant petition for writ of
habeas corpus. (Doc. 1). He raises the following seven grounds for relief:
1. Trial counsel was ineffective for failing to request a Kloiber
instruction.
2. Trial counsel was ineffective for failing to request a corrupt
source charge in regards to the testimony of Latoya Craighead.
3. Collateral counsel provided ineffective assistance for failing to
raise in the initial collateral review petition that trial counsel was
ineffective for failing to object to expert testimony provided by
Jessica Sunder on the grounds it violated his sixth amendment
rights to confrontation as enunciated by Crawford, Melendez-
Diaz and Bullcoming.
4. Pretrial counsel was ineffective for testifying to confident[ial]
information in violation of attorney client privilege.
5. Collateral counsel provided ineffective assistance for failing to
raise in the initial collateral review petition that trial counsel was
ineffective for failing to argue on direct appeal that the trial court
committed an error of law by admitting prior bad acts in which
counsel failed to renew his objection when it occurred.
6. Petitionerâs due process rights were violated when the state
courts found cellular telephone tower pings were admissible
evidence and collateral counsel was ineffective for failing to raise
in the initial collateral review petition that trail counsel was
ineffective for failing to move to suppress this evidence.
7. Collateral counsel provided ineffective assistance for failing to
raise in the initial collateral review petition that trial counsel was
ineffective for failing to argue on direct review that Petitionerâs
sentence violated Alleyne.
(Doc. 2, Memorandum of Law).
II. Legal Standards of Review
A habeas corpus petition pursuant to
28 U.S.C. §2254
is the proper
mechanism for a prisoner to challenge the âfact or durationâ of his
confinement. Preiser v. Rodriguez,
411 U.S. 475, 498-99
(1973).
28 U.S.C.
§2254
, provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States
....
(d) 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 claimâ
(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; or
(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
. Section 2254 sets 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); Glenn v. Wynder,
743 F.3d
402, 406
(3d Cir. 2014). A federal court may consider a habeas petition filed
by a state prisoner only âon the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.â
28 U.S.C. §2254
(a).
This limitation places a high threshold on the courts. Typically, habeas relief
will only be granted to state prisoners in those instances where the conduct
of state proceedings resulted in âa fundamental defect which inherently
results in a complete miscarriage of justice [or] an omission inconsistent with
the rudimentary demands of fair procedure.â Reed v. Farley,
512 U.S. 339,
348
(1994) (citations omitted).
Watsonâs case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L.No. 104-132,
110 Stat. 1214
, April 24, 1996
(âAEDPAâ).
III. Discussion
A. Exhaustion and Procedural Default
Before considering the merits of Watsonâs grounds for relief, the Court
must address Respondentâs contention that four of the claims raised are
unexhausted and procedurally defaulted. Specifically, Respondent asserts
that Petitionerâs third, fifth, sixth and seventh grounds raised are
unexhausted and procedurally defaulted. (Doc. 10 at 5-18).
Absent unusual circumstances, a federal court should not entertain a
petition for writ of habeas corpus, unless the petitioner has first satisfied the
exhaustion requirement articulated in
28 U.S.C. §2254
(b). Specifically,
habeas relief âshall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State.â
28 U.S.C.
§2254
(b)(1)(A); see also OâSullivan v. Boerckel,
526 U.S. 838, 845
(1999).
The exhaustion requirement is grounded on principles of comity to ensure
that state courts have the initial opportunity to review federal constitutional
challenges to state convictions. See Werts v. Vaughn,
228 F.3d 178, 192
(3d
Cir. 2000); Picard v. Connor,
404 U.S. 270
, 275â76 (1971). The habeas
statute codifies this principle by requiring that a petitioner exhaust the
remedies available in the courts of the State,
28 U.S.C. §2254
(b)(1)(A),
meaning a state prisoner must âfairly presentâ his claims in âone complete
round of the stateâs established appellate review process,â before bringing
them in federal court. OâSullivan,
526 U.S. at 845
(stating â[b]ecause the
exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts, . . . state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one
complete round of the Stateâs established review process.â); see also
Duncan v. Henry,
513 U.S. 364, 365
(1995); Picard,
404 U.S. at 275
(1971);
Lambert v. Blackwell,
134 F.3d 506, 513
(3d Cir. 1997). This requires that
the claim brought in federal court be the substantial equivalent of that
presented to the state courts. Picard,
404 U.S. at 278
; see also McCandless
v. Vaughn,
172 F.3d 255, 261
(3d Cir. 1999) (holding that petitioner must
present both âfactual and legal substanceâ of claim to state courts). Mere
reliance of state and federal claims on the same constitutional provision does
not render the two claims substantially equivalent. See Brown v. Cuyler,
669
F.2d 155
(3d Cir. 1982); Zicarelli v. Gray,
543 F.2d 466
(3d Cir. 1976). Both
the legal theory and the facts on which a federal claim rests must have been
presented to the state courts. See Picard,
404 U.S. at 277
; Brown, 669 F.2d
at 158â61. âWhen a claim is not exhausted because it has not been âfairly
presentedâ to the state courts, but state procedural rules bar the applicant
from seeking further relief in state courts, the exhaustion requirement is
satisfied because there is âan absence of available State corrective process.â
28 U.S.C. §2254
(b). In such cases, however, applicants are considered to
have procedurally defaulted their claims and federal courts may not consider
the merits of such claims unless the applicant establishes âcause and
prejudiceâ or a âfundamental miscarriage of justiceâ to excuse his or her
default. See Coleman v. Thompson,
501 U.S. 722, 750
,
111 S.Ct. 2546
,
115
L.Ed.2d 640
(1991).â McCandless,
172 F.3d at 260
. To demonstrate âcauseâ
for a procedural default, a petitioner must point to some objective external
factor which impeded his efforts to comply with the stateâs procedural rule.
See Murray v. Carrier,
477 U.S. 478, 488
(1986). âPrejudiceâ will be satisfied
only if he can demonstrate that the outcome of the state proceeding was
âunreliable or fundamentally unfairâ as a result of a violation of federal law.
See Lockhart v. Fretwell,
506 U.S. 364, 366
(1993).
Alternatively, if a petitioner demonstrates that a âconstitutional violation
has probably resulted in the conviction of one who is actually innocent,â
Murray,
477 U.S. at 496
, then a federal court can excuse the procedural
default and review the claim in order to prevent a fundamental miscarriage
of justice. Edwards v. Carpenter,
529 U.S. 446, 451
(2000); Wenger v. Frank,
266 F.3d 218, 224
(3d Cir. 2001). The miscarriage of justice exception
applies only in extraordinary cases, and actual innocence means factual
innocence, not legal insufficiency. Bousley v. United States,
523 U.S. 614,
623
(1998); Murray,
477 U.S. at 496
. A petitioner establishes actual
innocence by asserting ânew reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidenceâthat was not presented at trial,â showing that no reasonable juror
would have voted to find the petitioner guilty beyond a reasonable doubt.
Hubbard v. Pinchak,
378 F.3d 333, 339-40
(3d Cir. 2004).
It is Respondentâs position that Petitionerâs arguments that (1) trial
counsel was ineffective for failing to object to expert testimony provided by
Jessica Sunder on the grounds it violated his sixth amendment rights to
confrontation as enunciated by Crawford, Melendez-Diaz and Bullcoming;
(2) Pretrial counsel was ineffective for testifying to confident[ial] information
in violation of attorney client privilege; trial counsel was ineffective for failing
to argue on direct appeal that the trial court committed an error of law by
admitting prior bad acts in which counsel failed to renew his objection when
it occurred; (3) trial counsel was ineffective for failing to move to suppress
Petitionerâs cellular telephone tower pings as admissible evidence; and (4)
that trial counsel was ineffective for failing to argue on direct review that
Petitionerâs sentence violated Alleyne have never been presented to a state
court, and, consequently, are procedurally defaulted. (Doc. 10). Petitioner
argues that he can overcome the procedural default of this claim under the
authority of Martinez v. Ryan,
566 U.S. 1
(2010), claiming that his PCRA
counsel was ineffective because he failed to raise trial counselâs
ineffectiveness for not raising these claims. (Doc. 2).
Martinez v. Ryan,
566 U.S. 1
(2010), recognized a ânarrow exceptionâ
to the general rule that attorney errors in collateral proceedings do not
establish cause to excuse a procedural default. Specifically, Martinez holds
that â[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisonerâs procedural default of a
claim of ineffective assistance at trial.â
Id. at 9
. To successfully invoke the
Martinez exception, a petitioner must satisfy two factors: that the underlying,
otherwise defaulted, claim of ineffective assistance of trial counsel is
âsubstantial,â meaning that it has âsome merit,â
id. at 14
; and that petitioner
had âno counselâ or âineffectiveâ counsel during the initial phase of the state
collateral review proceeding.
Id. at 17
; see also Glenn v. Wynder,
743 F.3d
402, 410
(3d Cir. 2014).
A petitioner demonstrates that the underlying ineffective assistance of
trial counsel claim has âsomeâ merit by âshow[ing] that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.â Workman v.
Superintendent Albion SCI,
915 F.3d 928, 937-38
(3d Cir. 2019); see also
Martinez,
566 U.S. at 13-14
. A petitioner demonstrates that post-conviction
counselâs ineffectiveness caused the procedural default by showing that
post-conviction counselâs performance was deficient under the first prong of
the Strickland v. Washington,
466 U.S. 668
(1984) standard. See Preston v.
Supât Graterford, SCI,
902 F.3d 365, 376
(3d Cir. 2018); see also Workman,
915 F.3d at 937â38. Satisfaction of the first Strickland prong requires a
petitioner to demonstrate that âcounselâs representation fell below an
objective standard of reasonableness,â with reasonableness being judged
under professional norms prevailing at the time counsel rendered
assistance. Strickland,
466 U.S. at 688
. We will first address Respondentâs
argument concerning the exhaustion and procedural default of Petitionerâs
third, fifth, sixth and seventh claims.
i. Claim Three
In Claim Three, Petitioner states that âcollateral counsel provided
ineffective assistance for failing to raise in the initial collateral review petition
that trial counsel was ineffective for failing to object to expert testimony
provided by Jessica Sauder on the grounds that it violated his Sixth
Amendment rights to confrontation as enunciated by Crawford, Melendez-
Diaz and Bullcoming.â (Doc. 2 at 10). Specifically, Petitioner claims that âthe
analyst who created them did not testify and Sauder specifically testified the
historical cell phone data used in this case would be more suitably testified
to by a custodial records employee, not her.â Id. at 11.
Petitioner states that âSauderâs testimony encompassed how cell
phone towers work indicating it provides coverage of three (3) miles which
ultimately can place a cell phone user of a specific number in an approximate
locationâ and that âto heighten this testimony, hence prejudicing Petitioner,
the Commonwealth admitted into evidence, Exhibits 1 & 2 consisting of cell
tower locations and calls allegedly made by Petitionerâ and âDetective
Glucksman was able to utilize these records to place Petitioner in the
burglarized area.â Id. Petitioner claims that although âthe Commonwealth
continuously maintained these records were kept in the regular course of
business,â Petitioner claims that âthe analyst who created them did not
testifyâ and âthis document was made in aid of a police investigation ranks of
testimonial, resulted in this conviction without confrontation,â in violation of
Bullcoming. Id.
In support of his argument that trial counsel was ineffective for failing
to object to expert testimony provided by Jessica Sauder on the grounds that
it violated his Sixth Amendment rights to confrontation, Petitioner relies on
the following Supreme Court cases: Crawford v. Washington,
541 U.S. 36
(2004), Bullcoming v. New Mexico, âââ U.S. ââââ,
131 S.Ct. 2705
,
180
L.Ed.2d 610
(2011), and MelendezâDiaz v. Massachusetts,
557 U.S. 305
(2009).
Having thoroughly reviewed the three decisions Petitioner citedâ
Crawford, Bullcoming, and MelendezâDiaz, this Court holds that Watsonâs
Sixth Amendment confrontation rights have not been violated by the
Governmentâs failure to call the âanalystâ who created the historical cell
phone data.
In Crawford, the Supreme Court held that a criminal defendantâs Sixth
Amendment confrontation rights are violated if testimonial statements of
absent witnesses are admitted into evidence, unless it is established that the
absent witness is unavailable âand the defendant has had a prior opportunity
to cross-examine.â Crawford,
541 U.S. at 59
. Statements âmade under
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trialâ are testimonial.
See id; see also MelendezâDiaz v. Massachusetts,
557 U.S. at 311
.
In Bullcoming, the Supreme Court overturned a defendantâs conviction
of driving while intoxicated. Bullcoming, 131 S.Ct. at 2710. Specifically, the
Court applied Crawford in holding that prosecutorsâ failure to call the analyst
who signed a lab report certifying that the defendantâs blood alcohol content
was above the legal limit violated the defendantâs Sixth Amendment
confrontation rights because the lab report amounted to testimonial
evidence. Bullcoming, 131 S.Ct. at 2717. The Court noted that although
another analyst who was familiar with the labâs testing procedures provided
live testimony, such live testimony was insufficient to comply with the
requirements of the Sixth Amendment because the prosecution failed to
produce the live testimony of the actual analyst who prepared the report. Id.
In MelendezâDiaz, a defendant was charged with distributing and
trafficking cocaine. The prosecution placed into evidence notarized analyst
reports showing that the substance seized by the police was, in fact, cocaine,
but did not present the live testimony of the analysts who authored the
reports. MelendezâDiaz,
557 U.S. at 308
. The Supreme Court held that the
failure to present the analystsâ live testimony violated the defendant's
confrontation rights because the reports were testimonial, as they had been
made âunder circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.â
Id. at 311
.
The instant case is distinguishable from the three cases cited by
Watson. The overarching principal in Crawford and its progeny is that a
defendantâs confrontation rights are implicated only when out-of-court
testimonial statements of a non-testifying declarant are admitted into
evidence. Here, no statement of the individual who created the historical cell
phone data was admitted into evidence. Furthermore, when expert witness
Sauder was asked if the purpose of historical cell phone data was to pinpoint
where a call was placed from, a question beyond the realm of her cell phone
tower expertise, she responded âI am not sure if it is kept for that exact
purpose. That would be more of a custodial records testify. I think we are
mandated to keep records for a certain amount of time by the FCC but I canât
testify on what that isâ (Doc. 10 at 609, N.T. Pretrial, 9/10/12 at 53-54).
Finally, the record reveals that Petitionerâs counsel stated on the record
that he had no objection to Ms. Sauder being tendered as an expert in cell
phone technology and clarified that the evidence he wanted to be excluded
was the expert testimony relative to where any phone was located at a time
when a call was placed. (N.T. Pretrial, 9/10/12 at 66â67). The
Commonwealth stated that it planned to have Ms. Sauder testify to
essentially the same facts presented at the pretrial hearing, and, more
specifically, the technological functions of the cellular phones and towers and
that it did not intend to call Ms. Sauder to render an expert opinion as to the
exact location of a person because a cell phone call was made at a certain
time or date, and utilizing a particular cell tower because it was the closest
cell tower. (N.T. Pretrial, 9/10/12 at 67â71). Thus, the Court finds no violation
of the Confrontation clause and, as such, counsel was under no obligation
to make a meritless objection to expert testimony based on the Confrontation
clause. Consequently, the underlying, otherwise defaulted, ineffective
assistance of counsel claim does not meet the âsome meritâ threshold, and
Martinez is unavailable to excuse Watsonâs procedural default of this claim.
To the extent that Petitioner attempts to establish cause for his default
by claiming that collateral counsel provided ineffective assistance for failing
to raise in the initial collateral review petition that trial counsel was ineffective
for failing to object to expert testimony provided by Jessica Sauder, the
narrow exception articulated in Martinez only applies to allegations
concerning trial counselâs ineffectiveness, not claims alleging the
ineffectiveness of appellate counsel or PCRA counsel. Davila v. Davis,
137
S. Ct. 2058, 2063
(2017) (declining to extend Martinez to allow a federal
court to hear a substantial, but procedurally defaulted, claim of ineffective
assistance of appellate counsel or PCRA counsel).
ii. Claim Five
Petitioner claims that âcollateral counsel provided ineffective
assistance for failing to raise in the initial collateral review petition that trial
counsel was ineffective for failing to argue on direct appeal that the court
committed an error of law by admitting prior bad acts in which counsel failed
to renew his objection when it occurred.â (Doc. 2 at 13). Specifically,
Petitioner states that âcounsel did not renew his objection when the Adams
County incident was introduced,â and âalthough the trial court suggests the
probative value outweighed the prejudicial impact, the charging document
holds the opposite; petitioner was charged numerously for the same crime
on different occasions and the Commonwealth paraded witness after witness
testifying to identical events.â Id. at 14. This claim is procedurally defaulted.
While Watson brought a state law claim challenging the admission of prior
bad acts evidence, he did not âfairly presentâ the federal due process claim
to the state courts. He claims, however, that his ineffective assistance of
counsel for failing to object to the admission of bad acts is âa substantial one
and review is appropriate under Martinez.â The Court finds otherwise.
The Superior Court, adopting the trial courtâs reasoning as its own,
addressed this evidentiary challenge only as a state law claim under the
Pennsylvania Rules of Evidence and Pennsylvania state court decisions as
follows:
The fifth and final issue raised on appeal is that this Court erred
by denying Appellantâs pretrial Motion In Limine to preclude the
Commonwealth from introducing evidence of Appellantâs prior
bad acts during its case in chief. In his Motion and at the
suppression hearings Appellant averred that the Commonwealth
had notified Appellant of its intent to present evidence of the facts
underlying a December 7, 2009 burglary in which he pleaded
nolo contendere. In his Motion, Appellant argued that such
evidence should not be introduced pursuant to Pa.R.E. 404(b)
because the introduction of his prior criminal record would be
more prejudicial than probative. Appellant cited the case of
Commonwealth v. Lockuff [
813 A.2d 857
(Pa. Super. 2002)] to
assert that Appellant's conduct in the Adams County incident is
not so distinctive to be viewed as a signature of a perpetrator.
Appellant requested that the Court exclude such evidence from
trial.
In its Answer to Appellantâs Motion, the Commonwealth specified
that it would seek to introduce facts underlying Appellant's
Adams County burglary conviction to show that it was part of a
common plan of burglarizing homes in Central Pennsylvania and
to prove his identity as the perpetrator of the scheme.
Appellant pleaded nolo contendere to a burglary charge brought
in Adams County relating to an incident which occurred on
December 7, 2009. During the first suppression hearing, the
Commonwealth made a proffer to this Court as to why the facts
underlying the Adams County case were relevant and admissible
as part of the Commonwealth's case in chief in Dauphin County.4
(N.T. Pretrial, 6/28/12 at 81â82). The Commonwealthâs position
was that the underlying facts of the Adams County incident were
admissible under the exception provided in Pa.R.E. 404(b) to
prove identity and modus operendi. (N.T. Pretrial, 6/28/12 at 82).
The Commonwealth argued that it would support its position by
having witnesses who were part of the Adams County case
testify to Watsonâs identity, the red truck he fled the scene in, how
the owner of the truck permitted Watson to use it, how the truck
is connected to other burglaries, how, chronologically, the
burglary occurred within the string of burglaries that resulted in
the instant charges, and how the manner in which he broke into
the victimâs house was very similar to several of the other
burglaries. (Id.; N.T. Pretrial, 9/10/12 at 8â9).
Appellantâs position before this Court is that for Rule 404(b) to
apply and permit the evidence to be admitted to show identity
and common scheme or plan, the facts must establish that the
circumstances are so distinctive and nearly identical as to
become a signature of a perpetrator. (N.T. Pretrial 6/28/12 at 82â
4 The Commonwealth agreed on the record that because he pleaded nolo
contendere, evidence of the conviction itself is inadmissible. (N.T. Pretrial,
6/28/12 at 81; N.T. Pretrial, 9/10/12 at 7-8).
83). Appellant cited Lockcuff to argue that some of the similarities
that the Commonwealth is relying upon, such as kicking in a door
to gain access to a house are not very distinctive because there
are only a few ways to break into a houseâ through a window or
a door. (Id.) Appellant added that the Adams County break in
occurred through a garage door when other residences were
entered through a front or back door, that the red truck was not
used in all the charged burglaries, there were not eyewitnesses
at each house, and he did not always flee the scene. (N.T.
Pretrial 6/28/12 at 85â86; N.T. Pretrial, 9/10/12 at 11â12.
The Superior Court in the case of Commonwealth v. Weakley,
[
972 A.2d 1182, 1188-89
(Pa. Super. 2009)] provided a clear
recitation of the analysis to be undertaken when a challenge
concerning the admissibility of evidence, specifically evidence of
other crimes or bad acts by a defendant is asserted on appeal:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision
shall be reversed only upon a showing that the trial
court abused its discretion. In determining whether
evidence should be admitted, the trial court must weigh
the relevant and probative value of the evidence
against the prejudicial impact of that evidence.
Evidence is relevant if it logically tends to establish a
material fact in the case or tends to support a
reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
Commonwealth v. Reid,
571 Pa. 1, 34
,
811 A.2d 530,
550
(2002) (citations omitted). An abuse of discretion is
not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record. Commonwealth v. Weakley,
972 A.2d 1182
, 1188â89 (Pa.Super.2009) (internal
citations and quotations omitted).
Jurisprudence regarding the admission of other crimes and bad
acts is as follows:
Evidence of distinct crimes is not admissible against a
defendant being prosecuted for another crime solely to
show his bad character and his propensity for
committing criminal acts [See Pa.R.E. 404(b)(1)].
However, evidence of other crimes and/or violent acts
may be admissible in special circumstances where the
evidence is relevant for some other legitimate purpose
and not merely to prejudice the defendant by showing
him to be a person of bad character. These other
purposes include, inter alia, proving the identity of the
person charged with the commission of the crime on
trial. Identity as to the charged crime may be proven
with evidence of another crime where the separate
crimes share a method so distinctive and
circumstances so nearly identical as to constitute the
virtual signature of the defendant. Required, therefore,
âis such a high correlation in the details of the crimes
that proof that a person committed one of them makes
it very unlikely that anyone else committed the others.â
In comparing the methods and circumstances of
separate crimes, a court must necessarily look for
similarities in a number of factors, including: (1) the
manner in which the crimes were committed; (2)
weapons used; (3) ostensible purpose of the crime; (4)
location; and (5) type of victims. Remoteness in time
between the crimes is also factored, although its
probative value has been held inversely proportional to
the degree of similarity between crimes.
Id.
Additionally, when prior bad act evidence is admitted against a
defendant to prove something aside from action in conformity
therewith, the defendant is entitled to an appropriate limiting
instruction. Commonwealth v. Henkel,
2007 PA Super 333
,
938
A.2d 433, 444
(Pa.Super.2007) citing Commonwealth v.
Hutchinson,
571 Pa. 45
,
811 A.2d 556, 561
(2002);
Commonwealth v. Billa,
521 Pa. 168
,
555 A.2d 835, 842
(1989).
Upon examination of the way in which the burglaries for which
Appellant was being tried were perpetrated, a clear pattern
emerged. The burglaries took place at residences during daylight
hours from roughly mid-morning until noon. The perpetrator
entered the residence by kicking in a door whether it be back,
front or garage door, and the items stolen were TVs, small
electronics, jewelry and coins.
The Commonwealth represented to this Court that it intended to
present witnesses involved with the Adams County incident that
caught Appellant in the act of burglarizing a house, during
daylight hours, where the victim came face to face with the
perpetrator. A strange vehicle was in the driveway, a garage door
had been kicked in and a TV lay in the garage. Appellant fled the
scene in a red pickup truck that he later abandoned. Other
evidence proffered was the testimony of a State Police Officer
who was stationed out of the Gettysburg Barracks and
determined that the red pickup truck belonged to Appellant's
girlfriend Angela Greene. The Commonwealth also intended to
present the testimony of Ms. Green that verified the truck was
bought for the use of Appellant. Appellant was unable to explain
to the State Police why the truck was abandoned; he said it had
been stolen but never made a report or claimed it. Additionally,
the Commonwealth planned to present testimony that showed
usage of Appellant's cellular phone at the time of the Adams
County incident and in the same vicinity.
Even though Appellant pointed out that some of the burglaries
involved two other cars, a gold car and a gray car, the
Commonwealth argued that the method by which the burglaries
were perpetrated was the same and evidence would be
presented to link Appellant to the use of those cars through other
girlfriends.
This Court found the evidence sought to be admitted was
overwhelmingly probative. The facts of the Adams County
incident fit within the template that had emerged from the other
charged burglaries. Coupled with eyewitnesses being able to
testify to a physical description, the vehicle which was common
to other burglaries and the link between Appellant and the vehicle
supports this Court's finding. At the pretrial hearing, Detective
Glucksman also testified to investigating a string of daylight
residential burglaries because of an emerging pattern and
Appellant was a suspect. (N.T. Pretrial, 6/28/12 at 91-95; C-Exh.
2).
When ruling upon Appellantâs motion, this Court recognized the
possible prejudicial impact of admitting the evidence of the facts
underlying the Adams County case, however we found that the
probative value of proving identity of the perpetrator and a
common scheme or modus operendi present in the burglaries for
which he was on trial outweighed any prejudice. To that point,
the Court emphasized to the Commonwealth that there would
be âno reference as to this Adams County episode that he was
arrested charged or convicted of ...â the crime. (N.T. Pretrial,
9/10/12 at 12â13). Of further import in this case is this Courtâs
explicit limiting instruction given to the jury prior to deliberation
regarding the evidence presented about the Adams County
incident. This Court explained that the evidence was presented
to the jury for a very limited purpose, more specifically:
This evidence is for the purpose of tending to show the
type of conduct that this defendant may have been
engaged in. This evidence must not be considered by
you in any other way other than the purpose I just
stated.
You must not regard this evidence as showing the
defendant is a person of bad character or criminal
tendencies which you might be inclined to infer guilt.
You can consider that testimony if it sheds any light as
to a link to the automobile in question in this case, I
believe the Commonwealthâs contention is it was the
pickup truck and the method of operation that the
defendant may have allegedly used in some of these
other incidents. It is for that limited purpose. (N.T. Trial,
9/14/12 at 14â15).
This Court properly exercised its discretion by admitting
evidence of the factual basis underlying the Adams County
incident for the purpose of proving identity and method or modus
operendi in the Dauphin County cases.
This Court concludes that Appellantâs claims of error are without
merit.
(Doc. 10 at 109-111, Commonwealth v. Watson, No. 900 MDA 2013,
2014
WL 10803077
(Pa. Super. filed March 21, 2014) (unpublished
memorandum).
Generally, claims alleging state court error in the admission of
evidence are not cognizable in a federal habeas proceeding. See Keller v.
Larkins,
251 F.3d 408
, 416 n.2 (3d Cir. 2001) (âA federal habeas court,
however, cannot decide whether the evidence in question was properly
allowed under the state law of evidence.â). Rather, â[a] federal habeas court
is limited to deciding whether the admission of the evidence rose to the level
of a due process violation.â
Id.
âAccordingly, a reviewing court must examine
the relative probative and prejudicial value of evidence to determine whether
its admission violated defendantâs right to a fair trial.â Lesko v. Owens,
881
F.2d 44, 51
(3d Cir. 1989). To the extent Watson alleges a state evidentiary
error, rather than a due process violation, his claim is non-cognizable. See
Estelle v. McGuire,
502 U.S. 62, 67-68
(1991).
Watson argues that the probative value of the evidence of his prior bad
acts was outweighed by its prejudicial impact on the jury, leading to a
violation of due process. (Doc. 2 at 13). The trial court rejected this argument,
finding not only that the evidence was admissible under Pa. R. Evid. 404(b),
but also that it was âoverwhelmingly probativeâ in proving the identity of the
perpetrator and a common scheme or modus operendi. During the pretrial
hearing and at trial, the trial judge explained that evidence of Watsonâs prior
bad acts was not only relevant, but essential in determining a clear pattern
of burglaries, and thus had probative value that outweighed any potential
prejudice. The trial judge is given considerable deference in his or her
evidentiary determinations, and this Court only reviews such determinations
for federal due process violations. Keller,
251 F.3d at 416
n.2. â[I]n order to
show that an evidentiary error of this type rose to the level of a due process
violation,â Carter must contend âthat it was of such magnitude as to
undermine the fundamental fair ness [sic] of the entire trial.â
Id.
at 413 (citing
McCandless,
172 F.3d at 262
; Lesko,
881 F.2d at 51-52
). Here, the
admittance of the evidence does not rise to such a constitutional violation;
Watsonâs prior bad acts, namely the Adams County burglary conviction was
relevant to show that it was part of a common plan of burglarizing homes in
Central Pennsylvania and to prove his identity as the perpetrator of the
scheme. Therefore, without a showing that this evidence undermined the
fundamental fairness of his trial, Watson claim is meritless. Accordingly, the
Court finds that the underlying, otherwise defaulted, claim of ineffective
assistance of trial counsel for failing to renew his objection to the introduction
of such evidence, lacks merit, and Martinez does not excuse this procedural
default.
To the extent that Petitioner attempts to establish cause for his default
by setting forth a layered ineffective assistance claim blaming PCRA counsel
for failing to raise appellate counselâs ineffectiveness for failing to raise the
issue of prior bad acts on appeal, the narrow exception articulated in
Martinez only applies to allegations concerning trial counsel's
ineffectiveness, not claims alleging the ineffectiveness of appellate counsel
or PCRA counsel. Davila v. Davis,
137 S. Ct. 2058, 2063
(2017) (declining
to extend Martinez to allow a federal court to hear a substantial, but
procedurally defaulted, claim of ineffective assistance of appellate counsel
or PCRA counsel).
iii. Claim Six
Petitionerâs Claim Six states that âPetitionerâs due process rights were
violated when the state courts found cellular telephone tower pings were
admissible evidence and collateral counsel was ineffective for failing to raise
in the initial collateral review petition that trial counsel was ineffective for
failing to move to suppress this evidence.â (Doc. 2 at 14). He also claims that
Petitioner claims that the police did not first obtain a warrant to review this
information in violation of Riley v. California,
573 U.S. 373
(2014) and that
ârecently, the Supreme Court in Carpenter v. United States, 2018 U.S. Lexis
3844 held that, when the government accessed an accused cell-site location
information, it invaded a reasonable expectation of privacy and thus, violates
Fourth Amendment protection.â (Doc. 2 at 15-16). Finally, Petitioner claims
that he was âhighly prejudiced as he was convicted on evidence that was
admissible in violation of Frye and was illegally obtained in violation of his
constitutional rights.
Id.
Petitioner concedes that none of the issues in Claim Six have ever
been presented to the state courts in terms of ineffective assistance of
counsel claims and are procedurally defaulted, unless Petitioner can prove
that the claims are âsubstantial,â meaning that they have âsome merit.â
Martinez v. Ryan,
566 U.S. at 14
. He cannot.
Initially, with respect to Claim Six, the Court notes that trial counsel did
move to suppress the cellphone ping evidence and the state courts held this
issue meritless. (Doc. 10 at 92, Commonwealth v. Watson, No. 900 MDA
2013,
2014 WL 10803077
(Pa. Super. filed March 21, 2014) (unpublished
memorandum). Thus, Petitionerâs claim of ineffective assistance of counsel
for failure to move to suppress the telephone tower pings is meritless on its
face.
To the extent that Petitioner argues that he was pursuing his direct
appeal when Riley v. California,
573 U.S. 373
(2014)5 was decided and
âcounsel should have petitioned the court for reconsideration based upon the
Riley decision,â (Doc. 2 at 15), and that collateral counsel was ineffective
because he âdid not raise this claim in Petitionerâs initial collateral review
petition,â
Id. at 16
, Martinez only applies to allegations concerning trial
counselâs ineffectiveness, not claims alleging the ineffectiveness of appellate
counsel or PCRA counsel. Davila v. Davis,
137 S. Ct. 2058, 2063
(2017)
(declining to extend Martinez to allow a federal court to hear a substantial,
but procedurally defaulted, claim of ineffective assistance of appellate
counsel or PCRA counsel). Thus, Petitionerâs alleged ineffective assistance
of counsel regarding his Riley claim remains procedurally defaulted.
The Court further observes that it was not until 2018âsix years after
Watsonâs trialâthat the Supreme Court of the United States held that cell-
site location information is generally protected under the Fourth Amendment
and requires a warrant supported by probable cause. See generally
5 In Riley, the Supreme Court determined that a warrantless search of a
personâs cell phone is presumptively unreasonable.
Carpenter v. United States, âââ U.S. ââââ,
138 S. Ct. 2206
,
201 L.Ed.2d
507
(2018). It can hardly be said that Watsonâs trial counsel was deficient for
failing to raise a Fourth Amendment suppression argument for a right that
had yet to be established. To the extent that Petitioner does not rely on
Carpenter to excuse the procedural default but raises it as a free standing
claim that the Governmentâs use of historical cell-site location information
(âCSLIâ) violated his Fourth Amendment rights, Carpenter does not apply
retroactively to cases on collateral review. United States v. Davis, No. 13-cr-
28,
2019 WL 1584634
, at *2 (M.D. Pa. April 12, 2019).
Petitionerâs final claim is that trial counsel was ineffective for failing to
object to the Commonwealthâs expert witness and type of cellular phone
evidence as it did not meet the Frye requirements for admissibility. This claim
of trial counsel ineffective has not been presented to any state court.
On appeal, the Superior Court adopted the sound reasoning of the trial
court who addressed Petitionerâs Frye claim as a state evidentiary matter
under Pennsylvania law as follows:
Appellantâs third and fourth issues raised on appeal both assert
claims of error with respect to the admission of evidence relating
to what it terms as cellular telephone âpingâ evidence. First,
Appellant contends that this Court erred by denying its pretrial
motion to exclude such evidence and accompanying expert
testimony. Appellant also claims that this Court erred by denying
his motions for mistrial when a Commonwealth witness
ârepeatedly violated a pretrial order forbidding opinion testimony
regarding the cellular phone records.â
Appellantâs pretrial motion to have the cellular phone records
evidence excluded from admission at trial is premised upon the
argument that this type of evidence has not received general
acceptance within the relevant scientific community as required
by Frye v. United States,
293 F. 1013
(D.C.Cir.1923). He argues
that pursuant to Rule of Evidence 703, the facts that an expert
witness bases an opinion upon must be of a type reasonably
relied upon by experts in the particular field, and the type of
cellular phone evidence the Commonwealth planned to present
at trial does not meet the Frye requirements for admissibility;
therefore, it should have been excluded. Appellant also argued
that to allow such evidence to be presented to a jury without the
benefit of expert testimony to testify to the proximity of the cell
phone to the cell tower would be more prejudicial than probative
in violation of Rule of Evidence 403.
The Commonwealth responded to the pretrial motion by denying
that cellular phone tower evidence has not received general
acceptance in the relevant scientific community. Additionally, the
Commonwealth argued that the evidence it planned to present is
fact testimony, not expert testimony, about cell phone records to
show when Mr. Watsonâs cell phone was used and which cell
phone tower was utilized for the service, which testimony would
not constitute an opinion. Based on this assertion, the
Commonwealth argued that Frye is not implicated with respect
to this testimony.
*****
Pennsylvania Courts apply the abuse of discretion standard to a
Courtâs determination of the admissibility of expert scientific
testimony. Grady v. FritoâLay, Inc.,
576 Pa. 546
,
839 A.2d 1038
(2003). The test that a court must apply in ruling upon the
admissibility of expert scientific testimony was announced in
Frye v. United States,
293 F. 1013
(D.C.Cir.1923) and requires
that ânovel scientific evidence is admissible if the methodology
that underlies the evidence has general acceptance in the
relevant scientific community.â Grady v. FritoâLay, Inc., 839 A.2d
at 1043â44 (2003) citing Commonwealth v. Blasioli,
552 Pa. 149
,
713 A.2d 1117, 1119
(1998). In Grady v. FritoâLay, Inc., the
Pennsylvania Supreme Court clearly emphasized that the Frye
test continues to be the applicable test in determining the
admissibility of expert scientific testimony.
As part of the pretrial proceedings in this matter, this Court held
a Frye hearing to resolve Appellantâs Motion and permitted
counsel to present argument to address Appellantâs position that
the cellular phone historical data evidence is novel scientific
evidence that does not pass the Frye test for admissibility. (N.T.
Pretrial, 9/10/12 at 14â71).
*****
After considering all testimony and argument, this Court ruled
that the cellular telephone technology to which Ms. Sauder
testified was not ânovelâ science which should be excluded under
the Frye standard. (N.T. Pretrial, 9/10/12 at 71). The Supreme
has stated that âFrye is not implicated every time science comes
into the courtroom; rather, it applies only to proffered expert
testimony involving novel science. What constitutes novel
scientific evidence has historically been decided on a case-by-
case basis, and there is some fluidity in the analysis; indeed,
science deemed novel at the outset may lose its novelty and
become generally accepted in the scientific community at a later
date, or the strength of the proponentâs proffer may affect the
Frye determination.â Commonwealth v. Dengler,
586 Pa. 54
, 69â
70,
890 A.2d 372, 382
(2005) citing Commonwealth v. Delbridge,
580 Pa. 68
,
859 A.2d 1254, 1260
(2004) (plurality opinion); See
also Pa.R.E. 702 and Grady,
839 A.2d at 1044
.
Review of the record clearly reveals that Ms. Sauder, with her
ample education and experience, credibly confirmed that cellular
telephone technology has been the same for at least 20 years.
There was nothing presented in the testimony to dispute that the
functioning of the cell phone in relation to the cell tower and the
resulting data recorded by TâMobile is novel in the cellular
service provider community or the electronics community
generally. As this Court determined that Detective Glucksman
was not going to testify as [an] expert or render an opinion about
the precise location of Appellant or his cell phone when calls
were made, he is merely a fact witness to which Rule of Evidence
702 would not apply. Therefore, this Court properly exercised its
discretion in denying Appellantâs Motion and admitting the
evidence Appellant sought to exclude.
(Doc. 10 at 105-108, Commonwealth v. Watson, No. 900 MDA 2013,
2014
WL 10803077
(Pa. Super. filed March 21, 2014) (unpublished
memorandum).
The purpose of a Frye hearing is only to determine whether expert
testimony and evidence has gained general acceptance in the scientific
community and is therefore admissible under Pennsylvania law. See
Commonwealth v. Walker,
92 A.3d 766, 780
(Pa. 2014); Perez v. Graham,
No. 13-CV-1428,
2014 WL 523409
, at *9 (S.D.N.Y. Feb. 5, 2014), report and
recommendation adopted,
2014 WL 805958
(S.D.N.Y. Feb. 28, 2014).
Petitionerâs Claim Six, challenging the state courtâs finding that cellular
telephone tower pings were admissible evidence, is a state evidentiary
matter wholly separate from the question of whether the admission of such
evidence violates the federal Constitution.
Generally, mere errors of state evidentiary law are not cognizable on
habeas review. See
28 U.S.C. §2254
(a); see also Estelle v. McGuire,
502
U.S. 62, 68
(1991) (âIn conducting habeas review, a federal court is limited
to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.â (citations omitted)). For this claim to be cognizable in
this habeas proceeding, Petitioner would have to demonstrate that his Frye
hearing violated an identifiable constitutional right and deprived him of a
âfundamentally fair trial.â See Zarvela v. Artuz,
364 F.3d 415, 418
(2d Cir.
2004) (quoting Rosario v. Kuhlman,
839 F.2d 918, 925
(2d Cir. 1988)).
Petitioner has done neither. Because Watson fails to identify any federal
constitutional right that was violated during the trial courtâs Frye hearing, the
alleged state-law error is not cognizable on federal habeas review. The state
courtâs conclusion that the evidence was admissible is binding on this Court.
Estelle v. McGuire,
502 U.S. at 67-68
. The fact that this conclusion of state
law is a subsidiary point in an overall ineffectiveness analysis does not make
the conclusion any less binding. Priester v. Vaughn,
382 F.3d 394, 402
(3d
Cir. 2004). As such, counsel was not ineffective for failing to raise this
meritless claim. Ross v. District Attorney,
672 F.3d 198
, 221 n.9 (3d Cir.
2012). Accordingly, the Court finds that the underlying, otherwise defaulted,
claim of ineffective assistance of trial counsel failure to move to suppress this
evidence lacks merit, and Martinez does not excuse this procedural default.
iv. Claim Seven
Petitioner claims that âcollateral counsel provided ineffective
assistance for failing to raise in the initial collateral review petition that trial
counsel was ineffective for failing to argue on direct review that Petitionerâs
sentence violates Alleyne v. United States,
570 U.S. 99
(2013).â6 (Doc. 2 at
16). Specifically, Petitioner states that under Commonwealth v. Newman,
99
A.3d 86
(Pa. Super. 2014), he âwas not required to preserve an issue relative
to the legality of sentence to be entitled to retroactive application.â He claims
that â[he] was on direct appeal when Alleyne was decided,â and âcounsel was
ineffective for failing to raise this claim on direct appeal and collateral counsel
was ineffective for failing to raise this claim in Petitionerâs PCRA petition.â Id.
at 17.
The Third Circuit has determined that Alleyne announced a ânew rule
of law,â which under Supreme Court jurisprudence âgenerally applies to
cases still on direct reviewâ but will only apply in limited circumstances to
cases in which the conviction is already finalized.â United States v. Reyes,
755 F.3d 210, 212
(3d Cir. 2014). The Third Circuit has determined that
6 In Alleyne, the Supreme Court of the United States determined that any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable
doubt.
Alleyne at 99
.
Alleyne does not apply retroactively to cases on collateral review.
Id.
However, as Watson argues, his conviction had not yet become final when
the Supreme Court issued its decision in Alleyne. See United States v.
LaPrade,
2016 WL 7338416
(3d Cir. 2016) (finding Alleyne applicable where
it was decided during the 90 day period in which defendant could have filed
a petition for writ of certiorari in the United States Supreme Court), citing
Griffith v. Kentucky,
479 U.S. 314, 321-22
(â[R]etroactivity analysis for
convictions that have become final must be different from the analysis for
convictions that are not final at the time the new decision is issued.â).
On February 25, 2015, the Pennsylvania Supreme Court denied
Watsonâs petition for allowance of appeal. (Doc. 10 at 182, Commonwealth
v. Watson, No. 651 MAL 2014,
112 A.3d 652
(Pa. 2015) (Table). His
conviction therefore did not become final until 90 days later, on May 26,
2015, when his time for seeking review by the United States Supreme Court
expired. See U.S. Sup. Ct. Rule 13; see also Kapral v. United States,
166
F.3d 565, 575
(3d Cir. 1999) (judgment becomes final at the conclusion of
direct review or the expiration of time for filing such review, including the time
for filing a petition for writ of certiorari in the United States Supreme Court).
The Supreme Court issued its decision in Alleyne on June 17, 2013, before
Watsonâs time for filing a petition for certiorari with the Supreme Court had
expired. Since Petitionerâs conviction was not yet final when the Supreme
Court issued its decision in Alleyne, he would have been able to seek relief
pursuant to its holding regardless of the fact that it has been determined not
retroactively applicable to cases on collateral review.
In this case, Watson did raise his Alleyne claim in his initial PCRA
petition, where it was denied for lack of merit as follows:
The last allegation states that counsel was ineffective for failing
to argue on direct appeal that defendantâs sentence was illegal
under the Alleyne case. This Court agrees with PCRA counsel
that his claim lacks merit. This Court refers to the following
exchange occurred during sentencing:
THE COURT: Count 19 is the persons not to possess,
thatâs the firearm charge. That has a mandatory five
years, correct?
MR. ZAWISKY7: No, itâs not a mandatory.
THE COURT: What is it?
MR. ZAWISKY: It is just five years.
MR. DELP8: It has 60 to 60 guidelines.
THE COURT: Itâs not a mandatory but it has a 60 to 60
guidelines.9
7 Attorney for the Commonwealth.
8 Defendantâs trial counsel.
9 Transcript of Proceedings, Sentencing Hearing, page 23, December 17,
2012. Defendant was sentenced on the firearms count of not less than 60
months nor more than 120 months.
(Doc. 10 at 374). Thus, the PCRA court dismissed Petitionerâs Alleyne claim
on the grounds that the trial court sentenced the Petitioner within the
guidelines, not the mandatory minimum. Petitioner abandoned this claim on
appeal to the Superior Court. (Doc. 10 at 503, Commonwealth v. Watson,
687 MDA 2017,
2018 WL 652925
, at *3 (Pa. Super. 2018).
Acknowledging that the claim is procedurally defaulted, Petitioner now
alleges a layered claim of ineffective assistance of counsel, stating that his
âcollateral counsel provided ineffective assistance for failing to raise in the
initial collateral review petition that trial counsel was ineffective for failing to
argue on direct review that Petitionerâs sentence violates Alleyne.â (Doc. 2 at
16).
Generally, ineffective assistance of PCRA counsel cannot serve as
cause to excuse the procedural default of the claim. See Coleman v.
Thompson,
501 U.S. 722, 752-53
(1991) (âBecause Coleman had no right to
counsel to pursue his appeal in state habeas, any attorney error that led to
the default of Colemanâs claims in state court cannot constitute cause to
excuse the default in federal habeas.â); Pennsylvania v. Finley,
481 U.S. 551,
554-55
(1987) (there is no constitutional right to counsel on state collateral
review); Cristin v. Brennan,
281 F.3d 404, 420
(3d Cir. 2002) (ineffectiveness
of PCRA counsel is not viable claim because there is no right to counsel on
PCRA review). Thus, because there is no federal constitutional right to
counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counselâs
ineffectiveness to establish the âcauseâ necessary to overcome the default
of a federal habeas claim. Davila,
137 S. Ct. at 2062
(2017). Furthermore,
Martinez would not be applicable to his layered claim of ineffective
assistance of appellate counsel for failing to preserve the claim on direct
appeal, as Martinez excuses the procedural default only of errors committed
at the trial level, not errors committed on direct appeal. Davila,
137 S. Ct. at
2063
. Consequently, the Court finds this issue meritless based on the PCRA
courtâs decision and unable to be revived as an ineffective assistance of
counsel claim under Martinez.
B. Claims Adjudicated on the Merits
Under the AEDPA, federal courts reviewing a state prisonerâs
application for a writ of habeas corpus may not grant relief âwith respect to
any claim that was adjudicated on the merits in State court proceedingsâ
unless the claim (1) âresulted 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 Statesâ or (2) âresulted in a
decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.â
28 U.S.C.
§2254
(d).
â[B]ecause the purpose of AEDPA is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in the state criminal
justice systems, and not as a means of error correction,â Greene v. Fisher,
565 U.S. 34, 38
(2011) (internal quotations and citations omitted), â[t]his is a
difficult to meet and highly deferential standard . . . which demands that state-
court decisions be given the benefit of the doubt.â Cullen, 563 U.S. at 181
(internal quotation marks and citation omitted). The burden is on Watson to
prove entitlement to the writ. Id.
Under
28 U.S.C. §2254
(d)(1), a decision is âcontrary toâ federal law if
âthe state court applies a rule that contradicts the governing law set forth in
[Supreme Court] casesâ or âif the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court] precedent.â
Williams v. Taylor,
529 U.S. 362, 405-06
(2000). The test for §2254(d)(1)âs
âunreasonable application ofâ clause is as follows: â[a]n âunreasonable
applicationâ occurs when a state court âidentifies the correct governing legal
principle from [the Supreme] Courtâs decisions but unreasonably applies that
principle to the factsâ of petitionerâs case.â Rompilla v. Beard,
545 U.S. 374,
380
(2005) (quoting Wiggins v. Smith,
539 U.S. 510, 519, 520
(2003)). âIt is
not enough that a federal habeas court, in its independent review of the legal
question, is left with a firm conviction that the state court was erroneous.â
Lockyer v. Andrade,
538 U.S. 63, 75
(2003) (internal quotations omitted).
âUnder §2254(d)(1)âs âunreasonable applicationâ clause ... a federal habeas
court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.â Id. at 75â76 (quoting
Williams,
529 U.S. at 411
). Rather, â[t]he state courtâs application of clearly
established law must be objectively unreasonableâ before a federal court
may grant the writ. Andrade,
538 U.S. at 75
.
The test for §2254(d)(2)âs âunreasonable determination of factsâ clause
is whether the petitioner has demonstrated by âclear and convincing
evidence,â §2254(e)(1), that the state courtâs determination of the facts was
unreasonable in light of the record. See Rice v. Collins,
546 U.S. 333
, 338â
339 (2006) (âState-court factual findings, moreover, are presumed correct;
the petitioner has the burden of rebutting the presumption by âclear and
convincing evidence.â â) (quoting §2254(e)(1)) (citing MillerâEl v. Dretke,
545
U.S. 231, 240
, (2005)). Importantly, the evidence against which a federal
court measures the reasonableness of the state courtâs factual findings is the
record evidence at the time of the state courtâs adjudication. Cullen, 563 U.S
at 185.
Finally, Section 2254(e) provides that â[i]n a proceeding instituted by
an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court, a determination of a factual issue shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.â
28 U.S.C.
§2254
(e)(1). Petitionerâs three remaining ineffective assistant of counsel
claims have been fully adjudicated on the merits during the state court
proceedings and will be addressed below.
In Strickland v. Washington,
466 U.S. 668
(1984), the Supreme Court
explained that there are two components to demonstrating a violation of the
right to effective assistance of counsel. First, the petitioner must show that
counselâs performance was deficient. This requires showing that âcounselâs
representation fell below an objective standard of reasonableness.â See
id.
at 688
; see also Williams v. Taylor,
529 U.S. 362, 390-91
(2000). Second,
under Strickland, the petitioner must show that he was prejudiced by the
deficient performance. âThis requires showing that counselâs errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.â Strickland,
466 U.S. at 687
. To establish prejudice, the defendant
âmust show that there is a reasonable probability that, but for counselâs
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence
in the outcome.â See
id. at 694
. The Strickland test is conjunctive, and a
habeas petitioner must establish both the deficiency in the performance
prong and the prejudice prong. See Strickland,
466 U.S. at 687
; Dooley v.
Petsock,
816 F.2d 885, 889
(3d Cir. 1987). As a result, if a petitioner fails on
either prong, he loses. See Holladay v. Haley,
209 F.3d 1243, 1248
(11th
Cir. 2000) (âBecause both parts of the test must be satisfied in order to show
a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, or vice
versa.â) (citation omitted); Foster v. Ward,
182 F.3d 1177, 1184
(10th Cir.
1999) (âThis court may address the performance and prejudice components
in any order but need not address both if Mr. Foster fails to make a sufficient
showing of one.â).
The two-pronged test established in Strickland âqualifies as âclearly
established Federal lawâ â for purposes of the AEDPA. See Rainey v. Varner,
603 F.3d 189, 197
(3d Cir. 2010) (quoting Williams v. Taylor,
529 U.S. 362,
391
(2000)). Therefore, under §2254(d)(1), the relevant inquiry in assessing
ineffectiveness claims that have been adjudicated on the merits is whether
the state courtâs decision involved an unreasonable application of Strickland
or are based on an unreasonable determination of the facts. See Jacobs v.
Horn,
395 F.3d 92
, 107 n.9 (3d Cir. 2005). Moreover, Pennsylvaniaâs three-
pronged test for ineffective assistance claims, see Commonwealth v Pierce,
515 Pa. 153
,
527 A.2d 973, 975-77
(Pa. 1987), is not contrary to Strickland,
see Jacobs,
395 F.3d at 107
n.9.
i. Claim One
Petitioner claims that trial counsel was ineffective for failing to request
a Kloiber instruction pursuant to Commonwealth v. Kloiber,
106 A.2d 820
(1954).
In addressing Petitionerâs claim, the Superior Court, in affirming the
PCRA courtâs denial of relief, found the following:
Watson argues trial counsel provided ineffective assistance
when he failed to request a Kloiber instruction.
A Kloiber instruction informs the jury that an eyewitness
identification should be viewed with caution when either
the witness did not have an opportunity to view the
defendant clearly, equivocated on the identification of
the defendant, or has had difficulties identifying the
defendant on prior occasions.
Commonwealth v. Sanders,
42 A.3d 325, 332
(Pa. Super. 2012)
(citation and footnote omitted). See also Pa. SSJI (Crim) §4.07B
Identification TestimonyâAccuracy in Doubt.
At trial, Pamela Heinbaugh testified Watson broke into her home
and she identified him directly. See N.T., Jury Trial, 9/11/12, at
57â60, 67. But she also admitted that approximately five months
after the burglary she was unable to identify Watson in a
Pennsylvania State Police photo array. See id., at 66â67.10 Trial
counsel extensively cross-examined Heinbaugh about
inconsistencies in her trial testimony and preliminary hearing
testimony and about her failure to identify Watson in the photo
array. See id., at 68â80.
But trial counsel did not request a Kloiber instruction. And such
an instruction was clearly warranted, as Heinbaugh equivocated
in her identification between the photo array and trial testimony.11
Thus, this issue has arguable merit. We proceed to the prejudice
prong.
Watson did not plead prejudice in his PCRA petition. See
Amended PCRA Petition, filed 8/31/16, at Âś 17. That alone is fatal
to his claim. He did, however, assert prejudice in his brief. Even
accepting that, Watsonâs entire argument on that prong is as
follows: âBecause it [i.e., the Kloiber instruction] was not [given
to the jury], the Appellant suffered prejudice and counsel was
ineffective.â Appellantâs Brief, at 17. How? Saying it does not
make it so. âClaims of ineffective assistance of counsel are not
self-proving [.]â Commonwealth v. Wharton,
811 A.2d 978, 986
(Pa. 2002) (citations omitted).
10 On cross-examination, she explained the photo array provided to her âwas
a terrible copy.â N.T., Jury Trial, 9/11/12, at 79.
11 The Commonwealth maintains no Kloiber charge was necessary as
Heinbaugh testified she had a clear opportunity to observe Watson. See
Commonwealthâs Brief, at 12-13 The Commonwealth cites cases for the
proposition that âonce the opportunity to observe is established it becomes
defense counselâs cross-examination, not the courtâs Kloiber charge, which
must highlight any problems with the quality of a witnessâs observation.â
Commonwealth v. Cleveland,
703 A.2d 1046, 1049
(Pa. Super. 1997). That
is certainly correct. But we are not dealing with opportunity to observe here;
we are dealing with equivocation in the two identifications. Heinbaugh
identified Watson at trial, but not in the photo array. Cleveland is inapposite.
See Pa. SSJI (Crim) §4.07B 2.
âIn order to meet the prejudice prong of the ineffectiveness
standard, a defendant must show that there is a reasonable
probability that but for counselâs unprofessional errors, the result
of the proceeding would have been different.â Commonwealth v.
Reed,
42 A.3d 314, 319
(Pa. Super. 2012) (internal quotation
marks omitted; citations omitted). The PCRA ârequires that the
prejudice prong of an ineffectiveness claim be âplead and
prove[n] by a preponderance of the evidence.â â Commonwealth
v. Lassiter,
722 A.2d 657
, 663 n.8 (Pa. 1998) (opinion
announcing the judgment of the court) (quoting 42 Pa.C.S.A.
§9543(a) ) (emphasis and brackets in original). Watsonâs blunt
conclusion in his brief does not establish a reasonable
probability.
(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017,
2018 WL
652925
, at *3 (Pa. Super., 2018).
The Superior Courtâs decision that Petitioner failed to alleged prejudice
as a result of counselâs failure to request a Kloiber instruction under
Pennsylvania law is a state law determination that is not subject to review by
this Court. See, e.g., Priester v. Vaughn,
382 F.3d 394, 402
(3d Cir. 2004)
(âFederal courts reviewing habeas claims cannot âreexamine state court
determinations on state-law questions.â â) (quoting Estelle, 502 U.S at 67-
68); see also Real v. Shannon,
600 F.3d 302, 309-10
(3d Cir. 2010). For this
reason alone Petitionerâs claim that trial counsel was ineffective for not
requesting a Kloiber instruction fails. See, e.g.,
id.
(since the federal habeas
court was bound by the state courtâs determination that the instruction given
at his trial comported with state law, the petitioner cannot satisfy the
Strickland standard).
The claim also fails because Petitioner has not met the burden
imposed on him by AEDPAâs standard of review at §2254(d)(1), which is the
applicable provision that applies to this Court review of this claim. The
Superior Court applied the correct Strickland analysis when it evaluated this
claim. Thus, Petitioner cannot establish that the Superior Courtâs
adjudication was âcontrary toâ Strickland. Williams, 529 U.S. at 406. Nor has
Petitioner shown that the Superior Courtâs adjudication was an
âunreasonable application ofâ Strickland. The Superior Court determined that
Petitioner failed to show, prejudice under Strickland, as well as failed to show
that had the trial counsel requested a Kloiber instruction for Pamela
Heinbaughâs testimony, the outcome of the case would have been different.
Unlike other cases where courts have found failure to request a Kloiber
instruction prejudicial, in this case, Ms. Heinbaughâs testimony was not the
only evidence connecting the defendant to the case, as the PCRA court
stated, âthere were multiple witnesses over the course of the trialâ and that
âthere was ample evidence presented to the jury to find the Defendant guilty.â
(Doc. 10 at 365). See Simmons, 647 A.2d at 570 (holding failure to request
Kloiber instruction was âclearly prejudicialâ where the witness was âthe only
witness who tied the defendant to the sceneâ).
Based on the above, Petitionerâs claim that trial counsel was
ineffective for not requesting a Kloiber instruction is denied because this
Court is bound by the Superior Courtâs state law determination that Petitioner
was not prejudiced by any lack of instruction and also because its decision
withstands review under AEDPA at §2254(d)(1).
ii. Claim Two
Petitioner claims that âtrial counsel was ineffective for failing to request
a corrupt source charge in regards to the testimony of Latoya Craighead.â
(Doc. 2 at 9). Specifically, he claims that Latoya Craighead should have been
viewed as an accomplice and âcharged and punished for the crimes in which
Petitioner was charged.â Id.
The PCRA court reviewed this claim and denied it, explaining the
following:
The next claim is counsel was ineffective for failure to request an
accomplice-corrupt source jury instruction where the testimony
of Latoya Craighead qualified for such instruction. Amended
PCRA, paragraph 20. In support of this contention, Defendant
relies on testimony from the pretrial hearing held in which
Defendantâs preliminary hearing counsel testified she believed
that Ms. Craighead was facing charges of her own and that she
had counsel to represent her. N.T. Pretrial Hearing 13. Again,
Defendant relies on testimony from the pretrial hearing from
Detective Glucksman testifying, in essence, that Ms. Craighead
was selling items on Facebook and did not want to get charged
with stolen property. N.T. Pretrial Hearing 103-116. We find that
there is no evidence to support that counsel was ineffective for
failure to request an accomplice-corrupt source jury instruction.
â[I]t âis well established that, in any case in which an accomplice
implicates the defendant, the [judge] should instruct the jury that
the accomplice is a corrupt and polluted source whose testimony
should be considered with caution.â Commonwealth v. Hanible,
612 Pa. 183
,
30 A.3d 426, 462
(2011) (citation omitted). A
corrupt-source instruction is warranted where sufficient evidence
is presented as to whether the witness is an accomplice.
Commonwealth v. Williams,
557 Pa. 207
,
732 A.2d 1167, 1181
(1999). An individual is an accomplice if, with intent to promote
or facilitate the commission of the offense, he solicits, aids,
agrees, or attempts to aid another person in planning or
committing the offense. 18 Pa. C.S. §306(c)(1).â Commonwealth
v. Treiber,
121 A.3d 435, 459
(Pa. 2015).
Instantly, Ms. Craighead was not Defendantâs accomplice.
Defendant mistakenly interprets Detective Glucksmanâs
testimony at the preliminary hearing. Detective Glucksman
indicated that Ms. Craighead was upset and did not believe that
Defendant was capable of committing the crimes. N.T. Pretrial
Hearing 115. However, Detective Glucksman also testified that
Ms. Craighead consented to us [law enforcement] taking the
stolen property. Id. at 116. Ms. Craighead was fully cooperative
during the investigation and testified on behalf of the
Commonwealth at Defendantâs jury trial. N.T. Jury Trial
September 12, 2012, 4-22. The record is devoid of any intent by
Ms. Craighead to âpromote or facilitate the commission of the
offense.â There was no evidence presented at trial from which
the jury could have reasonably inferred that Ms. Craighead was
Defendantâs accomplice. Instead, the evidence shows that Ms.
Craighead was cooperative and testified on behalf of the
Commonwealth. As such, trial counsel properly refrained from
objecting to the jury instructions as an accomplice-corrupt jury
instruction was not warranted. Additionally, assuming arguendo
that defendant was entitled to an accomplice-corrupt source jury
instruction, Defendant set forth no facts or argument that would
satisfy prong (3) in that âbut for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.â There was ample
evidence and testimony, from a number of witnesses that
implicated the Defendant in the commission of these crimes.
Even with the jury instruction, there is nothing in the record to
suggest that the outcome would have been different. In sum, trial
counsel cannot be found ineffective for failure to request an
accomplice-corrupt jury instruction and an evidentiary hearing is
not necessary.
(Doc. 10 at 365-367). In affirming the PCRA courtâs dismissal of this claim,
the Superior Court found the following:
Lastly, Watson argues trial counsel provided ineffective
assistance when he failed to request a corrupt source charge in
regards to the testimony of Watsonâs girlfriend, Latoya
Craighead, who testified as a Commonwealth witness.
Craighead testified Watson instructed her to go to his apartment
and remove his possessions. See N.T., Jury Trial, 9/12/12, at
13â14. She went there and took âeverythingâ out of his
apartment, including âelectronics.â Id., at 14. She further testified
Watson instructed her to try to sell two televisions and a radio.
See id., at 17.
Watson maintains Craighead was an accomplice. âA person is
an accomplice of another person in the commission of an offense
if ... with the intent of promoting or facilitating the commission of
the offense, [s]he ... aids or agrees or attempts to aid such other
person in planning or committing it [.]â 18 Pa.C.S.A.
§306(c)(1)(ii). âAn accomplice charge is necessitated not only
when the evidence requires an inference that the witness was an
accomplice, but also when it permits that inference.â
Commonwealth v. Watts,
501 A.2d 1152, 1154
(Pa. Super. 1985)
(citation omitted). See also Hanible,
30 A.3d at 462
(âThe charge
is warranted where the evidence is sufficient to present a jury
question with respect to whether the Commonwealthâs witness is
an accomplice.â) The motivation behind the instruction is that an
accomplice witness will implicate others to gain leniency. See
Watts,
501 A.2d at 1154
. The instruction can be found at Pa.
SSJI (Crim) §4.01 Accomplice Testimony.
The Commonwealth never charged Craighead with any crime,
nor was she facing charges. But the jury was unaware of this.
From the jurorsâ perspective, her actions in removing
âeverythingâ from Watsonâs apartment and then her complying
with his directive for her to try to sell two televisions and a radio,
in the context of this case, permits a reasonable inference that
she was an accomplice to the crime of receipt of stolen property.
The PCRA court relies on the fact that âMrs. Craighead was
cooperative and testified on behalf of the Commonwealthâ to
support its finding that Craighead was not an accomplice. PCRA
Court Opinion, at 7. As does the Commonwealth. See
Commonwealthâs Brief, at 14 (stating Craighead âwas fully
cooperative with the investigationâ). The witnessâs cooperation
and testimony on the Commonwealthâs behalf is the impetus
behind the instruction. Accordingly, we find this issue has
arguable merit. But is there prejudice?
Watsonâs argument founders, once more, on the prejudice
prong. He did not plead prejudice in his PCRA petition. See
Amended PCRA Petition, filed 8/31/16, at Âś 20. As noted, by itself
that is fatal to his claim. See 42 Pa.C.S.A. §9543(a). And even
looking past the failure to plead, in his brief Watson merely
claims, âthe testimony of Mrs. Craighead was crucial to the
Commonwealthâs caseâ and then simply concludes he âsuffered
prejudice, as the outcome of the trial could have been different if
the correct jury instruction was given.â Appellantâs Brief, at 19.
Again, one cannot but wonder how, exactly?
As mentioned, â[t]o demonstrate prejudice, a petitioner must
show that there is a reasonable probability that, but for counselâs
actions or inactions, the result of the proceeding would have
been different.â Commonwealth v. Mason,
130 A.3d 601, 618
(Pa. 2015) (citations omitted). Watsonâs terse conclusion falls far
short of this standard.
Even if the jury disbelieved Craigheadâs testimony, the
Commonwealth presented a plethora of evidence to establish
beyond a reasonable doubt that Watson was the perpetrator of
the burglaries and related crimes. For instance: Heinbaughâs
identification of Watson at trial, see N.T., Jury Trial, 9/11/12, at
57â60, 67; Anthony Valentiâs testimony of catching Watson trying
to kick his homeâs door down, see N.T., Jury Trial, 9/11/12, at
106â107, 109; Detective James Glucksmanâs testimony, see
N.T., Jury Trial, 9/11/12, at 126â191; and the testimony
throughout trial concerning the technological ability to place
Watson in close proximity to the burglaries through cellphone
âpings.â
(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017,
2018 WL
652925
, at *3 (Pa.Super., 2018).
Considering the state courtâs well-reasoned analysis, we find that the
state courtâs rejection of this claim does not amount to an unreasonable
application of Strickland, nor was the state courtâs ruling based upon an
unreasonable interpretation of the facts in light of the evidence of record.
Because the PCRA court found that there was no evidence to present to the
jury that Ms. Craighead was an accomplice of petitioner, they determined
that Petitioner was not prejudiced by counselâs decision not to request a
corrupt source jury instruction. However, the Superior Court found that even
giving arguable merit to the claim, Petitioner failed to establish any prejudice
in not providing a corrupt source jury instruction or that the outcome of the
case would have been different with the instruction. This Court finds that the
state courtsâ analysis is a reasonable application of Strickland. Accordingly,
Petitioner is not entitled to habeas relief on this claim.
iii. Claim Four
Petitioner claims that âpretrial counsel was ineffective for testifying to
confident[ial] information in violation of attorney client privilege.â (Doc. 2 at
12). Specifically, Petitioner states that âinitial counsel, Korey Leslie, was
called to testify at Petitionerâs pretrial hearing on June 28, 2012,â and that
â[d]uring this proceeding Leslie provided testimony concerning his strategy
and matters discussed with Petitioner, protected by attorney client privilege.â
Id.
The Superior Court found this claim without merit based on the
following:
Watson first argues that Korey Leslie, Esquire, his preliminary
hearing counsel, provided ineffective assistance by providing
âconfidential informationâ to the Commonwealth at a pretrial
hearing. Appellantâs Brief, at 12.
Prior to trial, Watson filed a petition for writ of habeas corpus,
alleging the Commonwealth failed to present a prima facie case
at the preliminary hearing. Attorney Leslie testified at the hearing
held on the habeas petition. Watson claims he never waived his
attorney-client privilege.12 And according to Watson, Attorney
Leslieâs testimony âprovided the Commonwealth with information
on how the Appellant was going to proceed during the trialâ and
that his testimony explicitly disclosed âwhat the trial strategy
would be [.]â
Id.
In support of this argument, Watson provides a
12 Watsonâs trial counsel lodged no objection to Attorney Leslieâs testimony.
single citation to the notes of testimony. The record, however,
does not support his assertions as to any revelation of trial
strategy.
At the hearing, Attorney Leslie testified only as to the strategy he
employed at the preliminary hearing. See N.T., PreâTrial
Hearing, 6/28/12, at 11â12. There were 45 witnesses at the
preliminary hearing ready to testify for the Commonwealth. See
id., at 10
. The Commonwealth called Attorney Leslie as a witness
to explain his reasoning behind waiving the requirement of the
Commonwealth calling all 45 witnesses to testify. Attorney Leslie
explained that â[u]p to that point there had only been maybe one
or two identificationsâ and he âdidnât want to run the risk of
everyone getting on the stand and saying that they remembered
him from somewhere.â
Id., at 12
. At that stage of the
proceedings, the defense, not surprisingly, was that Watson was
not the perpetrator of the burglaries. See
id., at 13, 23
. So, to
avoid potential identifications from the 45 witnesses assembled
and ready to testify, Attorney Leslie entered into an agreement
with the Commonwealth permitting them to proceed at the
preliminary hearing without putting all of those witnesses on the
stand. See
id., at 15
.
Attorney Leslie never disclosed anything about trial strategy. His
testimony focused exclusively on the strategy employed at the
preliminary hearing. See
id.,
at 7â26. Thus, Watsonâs assertion
he was prejudiced by Attorney Leslieâs âreciting what the trial
strategy would beâ is simply baseless. Appellantâs Brief, at 12.
(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017,
2018 WL
652925
, at *3 (Pa.Super. 2018).
Thus, the Court finds that the state courtsâ review of Petitionerâs Claim
Four did not involve an unreasonable application of Strickland or was based
on an unreasonable determination of the facts in light of the evidence. To the
extent that Petitioner is attempting to argue that trial counsel should have
objected to the preliminary hearing counsel testifying at a pretrial hearing in
regard to whether or not the Commonwealth established a prima facie case,
the prejudicial prong under Strickland has not been satisfied. Thus, the
Superior Courtâs decision, was not âcontrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States.â Yarborough v. Gentry,
540 U.S. 1, 5
(2003). Consequently, Petitionerâs Claim Four provides no basis for habeas
relief and his petition for writ of habeas corpus will be denied.
V. Certificate of Appealability
âUnder the Antiterrorism and Effective Death Penalty Act of 1996
(âAEDPAâ), a âcircuit justice or judgeâ may issue a COA [certificate of
appealability] only if the petitioner âhas made a substantial showing of the
denial of a constitutional right.ââ Tomlin v. Britton,
448 Fed.Appx. 224, 227
(3d Cir. 2011) (citing
28 U.S.C. §2253
(c)). âWhere a district court has
rejected the constitutional claims on the merits, ... the petitioner must
demonstrate that reasonable jurists would find the district courtâs
assessment of the constitutional claims debatable or wrong.â Slack v.
McDaniel,
529 U.S. 473, 484
(2000).
For the reasons set forth herein, Petitioner has not made a substantial
showing of the denial of a constitutional right or that jurists of reason would
find it debatable that Courtâs assessment of the claims debatable or wrong.
Accordingly, a COA will not issue.
VI. Conclusion
For the reasons set forth above, the Court will deny the petition for writ
of habeas corpus. A separate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: November 14, 2022
18-1718-01Case Information
- Court
- M.D. Penn.
- Decision Date
- November 14, 2022
- Status
- Precedential