Opinion
Civil Action No. 03-6299.
August 10, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution in Pittsburgh, Pennsylvania. For the reasons stated below, this court recommends that the petition be denied.
I. BACKGROUND
On July 18, 1987, a jury sitting before the late Honorable Robert A. Latrone in the Court of Common Pleas for Philadelphia County convicted petitioner of second-degree murder, robbery and criminal conspiracy. (July Term, 1986, Nos. 2624, 2626, 2627.) On January 11, 1988, Judge Latrone sentenced petitioner to a mandatory term of life imprisonment for the second-degree murder conviction, a consecutive two to four year term of imprisonment for the criminal conspiracy conviction, and a suspended sentence for the robbery conviction. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 1-2 (Comm. Pl. Phila. Aug. 31, 1990) (Resp. Ex. B).
Petitioner's convictions arose out of an incident which occurred on June 3, 1986 in Philadelphia. On that date, at approximately 10:50 p.m., petitioner, accompanied by his convicted co-defendants, Ishmael Tisdell and Richard Houston, assaulted, robbed and fatally stabbed Rodney Williams, the deceased. The deceased is unrelated to petitioner. The subject matter of the robbery was a large radio. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 1-2 (Comm. Pl. Phila. Aug. 31, 1990).
Petitioner appealed to the Pennsylvania Superior Court. He raised the following four claims for relief:
1. Was the evidence produced by the Commonwealth at trial sufficient to sustain a verdict of guilty of second degree murder, robbery and criminal conspiracy?
2. Did the suppression court err in refusing to suppress oral statements made by appellant at the time of his arrest?
3. Did the trial court commit errors such that appellant was deprived of a fair trial?
4. Was appellant denied effective assistance of counsel?See Commonwealth v. Williams, No. 0377 Phila. 1989, slip op. at 1 (Pa.Super.Ct. April 3, 1991) (Resp. Ex. A). The Superior Court affirmed the judgments of sentence on April 3, 1991.Commonwealth v. Williams, 594 A.2d 786 (Pa.Super.Ct. 1991) (Table). The Pennsylvania Supreme Court denied petitioner's request for review. Commonwealth v. Williams, 600 A.2d 536 (Pa. 1991) (Table).
On January 14, 1997, petitioner filed a pro se petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Appointed counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988). The PCRA court dismissed the petition as frivolous.
On August 30, 1999, after the time for filing an appeal had expired, petitioner filed an "Application to File Appeal Nunc Pro Tunc" in the Pennsylvania Superior Court. On October 4, 1999, the Superior Court denied petitioner's application without prejudice to petitioner's right to seek the requested relief in the trial court. On December 30, 1999, petitioner filed the application in the Court of Common Pleas for Philadelphia County. The Honorable Kathryn L. Lewis treated it as a second PCRA petition. On August 18, 2000, Judge Lewis dismissed the petition as time-barred and meritless. See Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 3 (Pa.Super.Ct. Oct. 9, 2002).
Petitioner appealed the PCRA court's dismissal of his petition to the Superior Court. Petitioner raised six issues on appeal:
1. Did the instant, second PCRA court err in denying appellant nunc pro tunc filing approval, dismissing his second PCRA petition seeking reinstatement of first PCRA appeal rights lost through a breakdown in the court system?
2. Did not the instant, second PCRA court err in incorporating its findings into the first PCRA court's findings and opinion, when the first PCRA court erred in its findings that were without record support, based on PCRA counsel'[s] deficient Finley "no merit" letter?
3. Did all counsel below, on direct appeal, and in appellant's first PCRA proceeding render appellant ineffective assistance of counsel in failing to challenge pretrial, and trial counsel's effectiveness in failing to move to suppress appellant's involuntary, inadmissible inculpatory statements used at trial against appellant, in violation of his sixth, fifth, and fourteenth amendments to the U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution?
4. Did not all counsel below, on direct appeal, and in appellant's first PCRA proceedings render appellant ineffective assistance of counsel in failing to challenge the legality of appellant's illegal arrest?
5. Did all counsel below, on direct appeal, and in appellant's first PCRA proceeding render appellant ineffective assistance of counsel in failing to challenge trial counsel's effectiveness in failing to object to numerous instances of inadmissible hearsay evidence being admitted into evidence against appellant?
6. Did all counsel below, on direct appeal and in the first PCRA proceeding render appellant ineffective assistance of counsel in failing to object, and raise, brief, argue or pursue the issue of the introduction into evidence against appellant at trial the inadmissible confession of [a] non-testifying co-defendant?Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 5-6 (Pa.Super.Ct. Oct. 9, 2002), reported at, Commonwealth v. Williams, 815 A.2d 1133 (Pa.Super.Ct. 2002) (Table). (Resp. Ex. C). The Superior Court held that while the second petition was not time-barred, as it was an extension of the first PCRA petition, petitioner's claims were meritless. Id. at 7-8, 22. The Supreme Court denied petitioner's request for review.Commonwealth v. Williams, 834 A.2d 1143 (Pa. 2003) (Table).
On November 18, 2003, petitioner filed this pro se petition for a writ of habeas corpus raising the following seven claims:
1. The evidence presented by the Commonwealth at trial was insufficient to sustain the verdict of guilty of second-degree murder, robbery, and criminal conspiracy, and the affirmance of . . . petitioner's conviction would violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
2. Appellate counsel rendered Petitioner ineffective assistance of counsel for failing to pursue the issue on direct appeal, that pretrial and trial counsel rendered Petitioner ineffective assistance of counsel in not moving to suppress Petitioner's alleged inculpatory statements to the police which were used as evidence against Petitioner at trial in violation of his right under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.
3. Appellate counsel rendered petitioner ineffective assistance of counsel for failing to pursue the issue on direct appeal, that pretrial and trial counsel rendered petitioner ineffective assistance of counsel for failing to pursue the issue that Petitioner is illegally arrested, in that, the Commonwealth failed to produce at the suppression of evidence hearing the actual arrest warrant and its required affidavit of probable cause, or any witnesses subject to cross-examination as to the contents of the affidavit of probable cause in violation of Petitioner's right under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.
4. Appellate counsel rendered Petitioner ineffective assistance of counsel for failing to pursue the issue on direct appeal, that trial counsel rendered Petitioner ineffective assistance of counsel for failing to object at trial to numerous instances of inadmissible hearsay evidence being introduced into evidence by the Commonwealth in violation of Petitioner's right under the Sixth and Fourteenth Amendments to the U.S. Constitution, depriving Petitioner of a fair trial and due process of the law.
5. Appellate counsel rendered Petitioner ineffective assistance of counsel for failing to pursue the issue on direct appeal that trial counsel rendered Petitioner ineffective assistance of counsel for failing to object at trial to the introduction of a non-testifying co-defendant's confession being admitted into evidence at trial against Petitioner in violation of his right under the Sixth and Fourteenth Amendments to the U.S. Constitution.
6. The trial court erred when it refused to suppress oral statements made by Petitioner at the time of his arrest on June 17, 1986 when questioned by the police in violation of his right under the Fifth and Sixth Amendments to the U.S. Constitution, and used as evidence against Petitioner at trial, depriving Petitioner of a fair trial.
7. Trial counsel rendered Petitioner ineffective assistance of counsel for failing to interview petitioner, correspond with petitioner, read and consider a letter(s)/notes given to trial counsel by Petitioner, interview and call potential witnesses whose identities and locations were made available to trial counsel by petitioner, and to discuss trial strategy with petitioner, depriving Petitioner of a fair trial and due process of law, in violation of his right under the Sixth and Fourteenth Amendments to the U.S. Constitution.
(Petition ¶ 12.)
On March 10, 2004, the District Attorney for Philadelphia County responded to the petition. She argues that the claims were not exhausted in the state courts as required by 28 U.S.C. § 2254(b)(1)(A), not cognizable under the federal habeas corpus statute, and/or meritless.
II. DISCUSSION A. Habeas Corpus Standards
Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows:
(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 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; 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(d)(1) and (2). With respect to Section 2254(d)(1), a federal habeas petitioner is entitled to relief under the "contrary to" clause only if "the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08. See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.) (en banc) (to prove entitled to relief under "contrary to" clause, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; . . . petitioner must demonstrate that Supreme Court precedent requires the contrary outcome") (emphasis in original), cert. denied, 528 U.S. 824 (1999).
Under the "unreasonable application" clause, a federal habeas court may not issue the writ simply because that court concludes "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision is also objectively unreasonable. Id. See Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (federal habeas court should not grant the petition unless "the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent") (quotingMatteo, 171 F.3d at 890), cert. denied, 532 U.S. 980 (2001).
With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state court, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Standard for Ineffective Assistance Claims
Petitioner's second through fifth claims, as well as his seventh claim, allege ineffective assistance of counsel. Before the court addresses the specifics of these claims, the court will review the standards used to evaluate an ineffective assistance claim.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide effective assistance. Under the Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there exists a reasonable probability that, barring counsel's ineffectiveness, the result of the proceeding would have been different. Id. at 688-96. To satisfy the first prong of the Strickland test, a petitioner is required to show that "counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In evaluating counsel's performance, a reviewing court should be "highly deferential" and must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Moreover, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (citation omitted).
To satisfy the second prong of the Strickland test, a petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. It follows that counsel cannot be ineffective for failing to pursue meritless claims or objections.United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999);United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987). In such a situation, the second prong of the Strickland test has not been satisfied. Furthermore, counsel is not ineffective for failing to raise all possible claims of trial court error on appeal. Counsel may exercise his or her professional judgment as to which claims to pursue. See Jones v. Barnes, 463 U.S. 745, 750-54 (1983) (decision of what issues to raise on appeal is charged to counsel; counsel need not assert every non-frivolous issue to guard against subsequent claim of ineffectiveness). Thus, it is not inappropriate for counsel, after consultation with his client, to override the client's wishes when exercising professional judgment regarding which issues to pursue on appeal. Sistrunk v. Vaughn, 96 F.3d at 670.
Additionally, there is no constitutional right to counsel in a state post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). Consequently, there is no Sixth Amendment right to effective assistance of counsel in state post-conviction proceedings. Tillet v. Freeman, 868 F.2d 106, 108 (3d Cir. 1989); David v. Price, 1998 WL 404546, at *3 (E.D. Pa. July 15, 1998). Hence a petitioner's ineffective assistance of PCRA counsel claim does not arise under the Constitution or laws of the United States, and is not cognizable under 28 U.S.C. § 2254.
C. Petitioner's Claims 1. Claim No. 1: The Evidence Was Insufficient to Support Petitioner's Convictions
Petitioner's first argument is that the evidence was insufficient to sustain his convictions for second-degree murder, robbery and criminal conspiracy. The federal constitutional standard for evaluating a due process claim based upon the sufficiency of the evidence is found in Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, the federal court is to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. A habeas petitioner is entitled to relief only "if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. See Orban v. Vaughn, 123 F.3d 727 (3d Cir. 1997) (applying Jackson standard to sufficiency of evidence claim). Federal review of a sufficiency of the evidence claim under Jackson must be based upon state law, that is, the substantive elements of the crime must be as defined by applicable state law. Jackson, 443 U.S. at 324 n. 16. The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of reasonable inferences from proven facts all fall within the exclusive province of the factfinder and, therefore, are beyond the scope of federal habeas sufficiency review. Id. at 319.
Here, the trial court rejected this claim on post verdict motions. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 17-44 (Comm. Pl. Phila. Aug. 31, 1990). The Superior Court of Pennsylvania also rejected this claim on direct appeal.Commonwealth v. Williams, No. 0377 Phila. 89, slip op. at 2 (Pa.Super.Ct. April 3, 1991). In a detailed ninety-eight page opinion, the trial court, while reviewing plaintiff's sufficiency of the evidence challenge to his conviction for criminal conspiracy, reviewed the following facts which formed the basis of all of petitioner's convictions:
[T]here can be no doubt that Williams had full knowledge of the commission of this robbery-murder. Indeed, he was both present and participated in its successful consummation on the public highway. In addition, his admissions to the police at the time of his arrest corroborated that he possessed such knowledge.
Furthermore, Williams cannot complain that he was implicated in this robbery-murder because of his mere presence at the crime scene. The evidence in this record established his participative acts in this robbery-murder and proved that he was not a mere bystander but one who shared a common criminal intent with his two co-defendants.
Finally, Williams performed an abundance of acts which directly established his participative efforts aimed at accomplishing the objectives of this criminal conspiracy. Williams' assertion inside the laundromat that "I want that radio" constituted the genesis of the criminal purposes of this conspiracy. Williams led the way by being the first to exit the laundromat. Williams was the first of the three co-defendants to throw a punch at the deceased. As a finale, Williams, while at 2040 Morton Street, requested his cut of the money, if and when the deceased's stolen radio was sold to another by his two co-defendants.Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 29 (Comm. Pl. Phila. Aug. 31, 1990). The Superior Court affirmed the convictions concluding that "the trial court has adequately addressed and properly disposed of [petitioner's] arguments in its thorough and well-reasoned opinion." Commonwealth v. Williams, No. 0377 Phila. 89, slip op. at 1-2 (Pa.Super.Ct. April 13, 1991).
As to specific factual issues, petitioner contends that the prosecution failed to prove, through the testimony of two witnesses, Sonja Clark and Derrick Houston, that petitioner stated "I want that radio" prior to the commission of the criminal acts, that petitioner had punched decedent, or that petitioner tried to grab the radio. (Petition at Back of 10.) The trial court addressed these issues in its opinion. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 19-23 (Comm. Pl. Phila. Aug. 31, 1990). The trial court cited specific pages of the witnesses' testimony and explained the vantage points of these eyewitnesses, establishing their ability to observe the criminal events of that night. Id. at 19-22. Ms. Clark testified that petitioner stated, "I want that radio." Id. Mr. Houston also testified that petitioner made this statement. Id. The trial court found that the evidence showed that "[decedent] was simultaneously rushed, attacked, and surrounded by all three co-defendants. [Petitioner] threw the first punch at decedent. [The co-defendants] all joined in this attack and threw punches."Id. at 22. And see id. at 38, 41. The trial court acknowledged that neither witness could identify which of the three attackers grabbed the radio. Id. at 23, 32. The trial court explained, however, that the "absence of proof of the identity of the actual confiscator of [the radio] was not fatal to the Commonwealth's proof of a robbery since here whichever co-defendant was not the . . . taker of the radio would be equally responsible as an accomplice." Id. at 32.
Considering the record as a whole in the light most favorable to the prosecution, including the testimony of the witnesses and petitioner's own inculpatory statements, a rational fact finder could have found the essential elements of the crimes for which petitioner was convicted beyond a reasonable doubt. Hence, petitioner's first claim should be denied as meritless.
Petitioner contends that "at no time did trial counsel put petitioner on the stand to testify regarding the facts and circumstances surrounding his statements." (Petition at Back of 11.) Petitioner did not raise this issue as a separate claim in his habeas petition which included numerous claims of ineffective assistance of counsel. Additionally, plaintiff did not raise this issue in the state courts either on direct appeal or in his PCRA petition. Hence, the issue is not exhausted and now would be procedurally defaulted since the time to file a new PCRA petition has passed. The court cannot review this issue. In any event, the evidence shows that petitioner elected not to testify at his trial. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 92-93 (Comm. Pl. Phila. Aug. 31, 1990).
2. Claim 2: Appellate Counsel Was Ineffective for Failing to Raise on Direct Appeal Pretrial and Trial Counsel's Ineffectiveness in Not Moving to Suppress Petitioner's Inculpatory Statements to the Police Which Statements Were Used as Evidence Against Petitioner
Petitioner voluntarily went to the police to provide witness testimony regarding the criminal incident at issue here. Petitioner contends that on June 5, 1986, prior to arriving at the Police Administration Building, he was "up all night and day and was highly intoxicated" impairing his abilities to respond to Detective Robert Kane's questions. (Petition at 10.) Petitioner additionally claims that he was intoxicated when he made certain statements on June 11, 1986. (Petition at Back of 12.) Petitioner asserts that he never was read his Miranda rights. (Petition at Back of 11.) The trial court held a six day suppression hearing addressing these and other issues. See N.T., (Suppression Hearing) 3/23/87, 3/24/87, 3/25/87, 3/26/87, 3/27/87, 3/30/87.
In Miranda v. Arizona, 384 U.S. 436 (1966), as applied inRhode Island v. Innis, 446 U.S. 291 (1982), the Supreme Court established procedural safeguards to protect individuals against self-incrimination as a result of interrogation or its functional equivalent. Miranda requires that warnings regarding the right to remain silent be issued prior to any custodial interrogation. Implicit in this requirement are two conditions: custody and interrogation. See United States v. Granero, 1992 WL 59151, at *6 (E.D. Pa. March 19, 1992) (discussing Miranda).
The Commonwealth argues that the "only claim petitioner properly exhausted in state court based upon these facts was a layered claim of PCRA counsel ineffectiveness." (Resp. at 14 (citing Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 5-6, 10 (Pa.Super.Ct. Oct. 9, 2000) (court affirmed denial of PCRA petition)). Therefore, the Commonwealth argues that this claim cannot be reviewed by this court. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999) (A prisoner must present all of his claims to a state's intermediate court, as well as its supreme court, before a district court may entertain a federal petition for habeas relief.). In his PCRA petition, petitioner claimed that "all prior counsel were ineffective for failing to secure suppression of certain statements he gave to police on June 5, 1986, and June 11, 1986, while he allegedly was under the influence of `pancakes and syrup' (street terminology for Ambynal cough syrup and Doriden amphetamine tablets)." Id. at 11. However, the court need not decide this issue as 28 U.S.C. § 2254(b)(2) permits this court to deny the claim on the merits even though it is not exhausted.
Reviewing the merits of petitioner's claim that pretrial and trial counsel were ineffective in failing to secure suppression of certain statements, the court finds that it is meritless. The trial court held a six day suppression hearing addressing,inter alia, petitioner's statements on the dates in question. Consequently, petitioner's claim that counsel did not move to suppress his statements is factually incorrect and meritless.
Additionally, the PCRA court and the Superior Court of Pennsylvania, affirming the denial of petitioner's PCRA petition, addressed this issue. The Superior Court on PCRA review noted that the suppression issue petitioner raised on direct appeal did not concern petitioner's alleged drug induced state.Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 11-12 (Pa.Super.Ct. Oct. 9, 2002). The Superior Court proceeded to consider the merits of the instant claim and found "nothing in the record to indicate that this is a meritorious claim." Id. at 12. The PCRA court summarized the facts surrounding petitioner's statements to police on June 5 and 11, 1986 and its rejection of this claim as follows:
Because the petitioner's police statement of June 5, 1986 was given under completely voluntary, uncoerced, and noncustodial conditions, and with no evidence of intoxication from any source, noted by Detective Kane, this petitioner's claim of being high on "pancakes and syrup" at that time is meritless. Therefore, his voluntary police statement given on that date was properly admissible at trial.
On June 11, 1986, the petitioner, once again, contacted the Philadelphia Police Department and offered to give a statement to Detective Kane. Petitioner was picked up by a police cruiser at his own request and was transported to the PAB [Police Administration Building] where Detective Kane again promptly administered his Miranda rights which he again validly waived. Remarkably, the petitioner now claims for the first time in his pro se PCRA petition that he was not read his Miranda rights and that he was high on "pancakes and syrup" on June 11, 1986. To the contrary, Detective Kane testified that the petitioner appeared sober, alert, and responsive to his Miranda warnings and that he did not, at any time, have the odor of alcohol about his breath or his person. During this interview of the petitioner which was unplanned and uncoerced by the Police Department, Detective Kane asked the petitioner seven augmenting questions based on the petitioner's prior June 5, 1986 statement. At the conclusion of the interview the petitioner departed the PAB at the time of his own free choice and will. Again, even though the petitioner was administered his Miranda warnings which he waived, those warnings were not required, and the petitioner's argument that he did not waive any constitutional rights is meritless.Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 14 (Pa.Super.Ct. Oct. 9, 2002) (citing PCRA court opinion at 13-14 (Comm. Pl. Phila. Dec. 30, 1998) (footnote and citations omitted)).
The Superior Court affirmed the PCRA court's conclusion stating as follows:
On both of the . . . dates, Appellant [petitioner] contacted the police on his own initiative and asked to speak to them as a witness to the robbery and murder of the victim. Appellant requested to speak to the police, the police officers did not seek out Appellant. (N.T., Suppression Hearing, 3/24/87, at 115-16, 129.) Appellant was not under arrest, nor was he in custody for the purpose of an interrogation. He was not even a suspect on these dates. Id. at 115-121. The investigating officer testified that he observed Appellant's behavior on June 5th and saw no indication the Appellant was under the influence of alcohol other than the fact he had bad breath. Id. at 122. The witness stated, "I'd say due to just his odor, from sitting next to him talking to him, I would say he had been drinking but he was definitely not intoxicated." Id. The investigating officer also stated that Appellant appeared to him to be sober on June 11th. Id. at 124.
The suppression court filed a lengthy opinion in which, inter alia, Judge Latrone found the officer's testimony to be credible. The suppression court accepted the officer's statement that Appellant gave no indication of being under the influence of any substance on June 5th and 11th when the statements were volunteered to police. Suppression Court Findings of Fact and Conclusions of Law, 8/31/90, at 4, 6-7. Despite the fact that Appellant was not under suspicion and had not been arrested when he talked to the investigating officer, but merely was providing a "witness statement," Detective Robert Kane gave Appellant his Miranda rights on both June 5 and June 11. (N.T., Suppression Hearing, 3/23/87, at 95-97; N.T., Suppression Hearing, 3/24/87, at 121-22.) The suppression court concluded that there was no basis to suppress Appellant's voluntary, non-custodial statements to the police. Suppression Court Findings of Fact and Conclusions of Law, 8/31/90. at 8-18.Commonwealth v. Williams, No. 2662 EDA 2000, slip op. at 12-13 (Pa.Super.Ct. Oct. 9, 2002).
While Miranda warnings are required for the admission of a petitioner's statements made in response to custodial interrogation, Miranda warnings are not required for the admission of statements volunteered spontaneously. See United States v. Patane, 124 S.Ct. 2620, 2630 (2004) (police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements); United States v. Benton, 996 F.2d 642, 644 (3d Cir. 1993) (gratuitous statement by arrestee not suppressed for lack of Miranda warnings); United States v. Phillips, 2000 WL 1201378, at *1 (E.D. Pa. Aug. 8, 2000) (voluntary and spontaneous statements made by defendant not part of an official interrogation or its functional equivalent, do not implicate Miranda). Here, the evidence shows that petitioner went to the police voluntarily and offered noncustodial statements. The evidence also shows that petitioner was read hisMiranda rights. Moreover, even if petitioner were not read hisMiranda rights, his constitutional rights were not violated since it was not required under the circumstances that he be read these rights.
This court finds no reason to question the findings of the PCRA and the Superior courts regrading the suppression of petitioner's statements. Their conclusions are neither contrary to nor an unreasonable application of controlling federal law, nor are they unreasonable determinations of the facts in light of the evidence presented at the state court proceedings. Petitioner's suppression of the evidence claim is meritless. Counsel cannot be found ineffective for failing to raise this meritless claim.See Werts, 228 F.3d at 203 ("Counsel cannot be deemed ineffective for failing to raise a meritless claim."). Petitioner's second claim should be denied.
3. Claim 3: Appellate Counsel Was Ineffective for Failing to Raise on Direct Appeal Pretrial and Trial Counsel's Ineffectiveness For Failing to Pursue the Issue that Petitioner was Illegally Arrested in that the Commonwealth Failed to Produce at the Suppression Hearing the Actual Arrest Warrant and Affidavit of Probable Cause
In support of his third claim, petitioner alleges that appellate counsel was ineffective for failing to pursue on direct appeal pretrial and trial counsel's ineffectiveness for their failure to pursue the issue that petitioner was illegally arrested. (Petition at 10.) In support of this claim, petitioner contends that the "Commonwealth never produced an arrest warrant nor its required accompanying Affidavit of probable cause to support the warrant illegally confining Petitioner in prison, and using any and all evidence of the fruit of the poisonous tree against petitioner." Id.
As with petitioner's second claim, the Commonwealth argues that the "only claim petitioner properly exhausted in state court based upon these facts was a layered claim of PCRA counsel ineffectiveness." (Resp. at 14, 15.) In his PCRA petition, petitioner claimed that "all counsel were ineffective for failing to raise and preserve the claim that the Commonwealth never produced an arrest warrant with an affidavit of probable cause in this case, thus demonstrating that the arrest was illegal."Commonwealth v. Williams, No. 2662 EDA 2000, at 15 (Pa.Super.Ct. Oct. 9, 2002). This court need not decide whether petitioner's third claim has been exhausted, since petitioner's third claim is meritless.
The Superior Court, affirming the PCRA court's denial of petitioner's PCRA petition, stated as follows with respect to this issue:
Judge Latrone explained that, through inadvertence, the prosecutor did not present the actual warrant and the supporting affidavit of probable cause at the suppression hearing. PCRA Court Opinion, 12/30/98, at 16. However, the warrant and its supporting affidavit do exist and were incorporated properly into the Quarter Sessions file prepared in this case. Id. (citing the Findings of Fact and Conclusions of Law filed on 8/31/90). The certified record supports the PCRA court's findings. Furthermore, Appellant has not explained how he was prejudiced within the meaning of the PCRA by the fact that the prosecutor forgot to present the arrest warrant and affidavit of probable cause at the suppression hearing. See Commonwealth v. Cox, 556 Pa. 368, 382-83, 728 A.2d 923, 929-30 (1999), cert. denied, 533 U.S. 904 (2001) (holding that, to prove prejudice, a defendant must show that counsel's default was of such magnitude that the verdict would have been different absent the alleged ineffectiveness). We agree with the PCRA court that this claim is meritless.Commonwealth v. Williams, No. 2662 EDA 2000, at 15-16 (Pa.Super.Ct. Oct. 9, 2002).
This court finds no reason to question the findings of the PCRA and the Superior courts. Their conclusions are neither contrary to nor an unreasonable application of controlling federal law, nor are they unreasonable determinations of the facts in light of the evidence presented at the state court proceedings. Petitioner's claim regarding his allegedly illegal arrest is meritless. Counsel cannot be found ineffective for failing to raise this meritless claim. Petitioner's third claim should be denied.
4. Claim 4: Appellate Counsel was Ineffective for Failing to Raise on Direct Appeal Trial Counsel's Ineffectiveness For Failing to Object at Trial to Numerous Instances of Inadmissable Hearsay Evidence
In support of his fourth claim, petitioner avers as follows:
At trial, without trial counsel interposing any objections, the Commonwealth through its witness, Detective Kane, was permitted to present highly prejudicial hearsay testimony that, Detective Kane went to the A.V.I. Electronics Store to take a picture of a radio like or similar to the radio taken from the decedent, and when he [Det. Kane] entered the store, he testified that he was approached by a sales clerk who ultimately remembered the receipt and the person [the decedent] who purchased it. [Trial, ((N.T., at p.p. 971, Lines 8-24; 972, Lines 1-20]. Trial counsel interposed no objections at this point, and appellate counsel failed to pursue this issue on direct appeal. Petitioner avers that the Detective's testimony only worked to bolster the Commonwealth's case, and deprived hin [sic] of the right to confront the witnesses against him.
(Petition at 10-Back of 13.)
In his PCRA petition, petitioner contended that "all prior counsel were ineffective for failing to raise and preserve trial counsel's default in neglecting to object to hearsay evidence adduced by the Commonwealth from Detective Kane." Commonwealth v. Williams, No. 2662 EDA 2000, at 16 (Pa.Super.Ct. Oct. 9, 2002). The Commonwealth argues that petitioner's fourth claim is unexhausted in the state courts. This court need not decide this issue. Considering the merits of the underlying claim, i.e., trial counsel was ineffective in failing to object to certain hearsay testimony, the court finds that the claim is meritless. The Superior Court, affirming the PCRA court's denial of petitioner's PCRA petition, stated as follows with respect to this issue:
This witness [Detective Kane] laid the foundation for the admission of a photograph of a radio of the same type as the one stolen from the victim by testifying that the police found a receipt for the radio among the victim's belongings. Detective Kane stated that he showed the receipt to a store clerk and asked for a similar radio so he could take a picture of it. The witness then volunteered the information that the store clerk stated he remembered the individual who purchased that particular radio. N.T., Trial, 6/29/87, at 971-72. Counsel for one of Appellant's co-defendants immediately objected. Id. at 972. The trial court denied the objection. Id. However, the Commonwealth did not pursue the matter further. We note that at no time did Detective Kane indicate that the store clerk either provided the name of the person who purchased the radio or described the purchaser.
Judge Latrone has provided an extensive analysis of this claim by Appellant. PCRA Opinion, 12/30/98, at 17-23. As Judge Latrone correctly noted, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Id. at 20. Because the Detective was not asserting the statement to prove the truth of the matter asserted therein, i.e., that the clerk remembered who bought the radio, Judge Latrone concluded that the statement was not hearsay. Id. Furthermore, as Judge Latrone correctly found, even if the statement were to be deemed hearsay, it would fall within the "course of conduct" exception to the hearsay rule. Id. (citing cases). Finally, Judge Latrone concluded that even if the statement should have been excluded, it constituted at most "harmless error." Id. at 21-22.
We agree with Judge Latrone's reasoning. In particular, we agree with his conclusion that the admission of Detective Kane's brief reference to the fact that the radio store sales clerk remembered the identity of the person who purchased the radio was harmless error in this case. The victim's name was not mentioned and nothing in this statement indicated that it was, in fact, the victim whom the store clerk remembered. Because there was no merit to co-counsel's objection to this testimony, it would have been a useless act for Appellant's counsel to lodge a duplicate objection. We cannot find counsel ineffective for failing to raise a meritless claim. Rivera, 565 Pa. at 304, 773 A.2d at 140.Commonwealth v. Williams, No. 2662 EDA 2000, at 16-17 (Pa.Super.Ct. Oct. 9, 2002).
This court finds no reason to question the findings of the PCRA and the Superior courts. Their conclusions are neither contrary to nor an unreasonable application of controlling federal law, nor are they unreasonable determinations of the facts in light of the evidence presented at the state court proceedings. While petitioner's counsel did not object to Detective Kane's testimony, counsel for one of his co-defendants did pose an objection which the trial court denied. Id. Petitioner has failed to show that the same objection raised by his counsel would have generated a different result. Petitioner's claim regarding his trial counsel's failure to object to certain testimony as hearsay is meritless. Counsel cannot be found ineffective for failing to raise a meritless claim. Petitioner's fourth claim should be denied.
5. Claim 5: Appellate Counsel was Ineffective for Failing to Pursue on Direct Appeal Trial Counsel's Ineffectiveness for Failing to Object at Trial to the Introduction of a Non-Testifying Co-Defendant's Confession Into Evidence
In support of his fifth claim, petitioner stated as follows in his petition:
At trial, the Commonwealth introduced the confession/statement of co-defendant, Richard Houston into evidence implicating Petitioner in the robbery and homicide of [the decedent]. [Trial, ((N.T., at p.p. 905-906]. The trial court did not give any limiting instructions to the jury that co-defendant, Richard Houston's statement can only be used as evidence against him alone. The trial court instructed the jury in regards to Richard Houston's statement that: "You believe all [sic] part or none of the statement of any defendant. Evaluate the other five statements by applying those principles that you could believe all, part or none." [Trial, ((N.T., Charge to the Jury, at p.p. 1804-1818]. Thus, petitioner was deprived of the right to confront witnesses against him and a fair trial, since co-defendant Richard Houston did not testify at trial, and the trial court did not give the limiting jury instructions.
(Petition at Back of 13-Back of 14.)
In his PCRA petition, petitioner challenged "the effectiveness of all counsel for failure to timely raise and preserve an objection to the admission of a non-testifying co-defendant's confession at their joint trial." Commonwealth v. Williams, No. 2662 EDA 2000, at 17 (Pa.Super.Ct. Oct. 9, 2002). This court need not decide whether this claim is exhausted because the claim is meritless.
The Superior Court, affirming the PCRA court's denial of petitioner's PCRA petition, stated as follows with respect to this issue:
The testimony at issue concerns the confession given to the police by co-defendant Richard Houston. The confession was redacted to remove Appellant's name and that of the third co-defendant, replacing the names with "Y" and "Z" or "the second person" and "the third person."
. . .
At the time of Appellant's trial, the law controlling the redaction of a non-testifying co-defendant's confession provided that it was proper to replace names with a word or phrase so that no explicit reference to the other co-defendant occurred. See, e.g., Commonwealth v. Chestnut, 511 Pa. 169, 173-74, 512 A.2d 603, 605 (1986) (approving the use of the phrase "the other person"); Commonwealth v. Johnson, 474 Pa. 410, 412, 378 A.2d 859, 860 (1977) (determining that so long as a redacted confession makes no specific reference to a co-defendant, it is admissible under Bruton [v. United States, 391 U.S. 123 (1968)]. In this case, alphabetic designators such as "Y" and "Z" were employed and no specific mention of Appellant's name occurred. We agree with Judge Latrone's extensive analysis and find that he reached the proper result on holding that the redaction of Mr. Houston's confession accorded with the law as it existed on the date of Appellant's trial. See PCRA Court Opinion, 12/30/98, at 27-31. Thus, we also agree with Judge Latrone's conclusion that this is a meritless claim.Commonwealth v. Williams, No. 2662 EDA 2000, at 17-20 (Pa.Super.Ct. Oct. 9, 2002).
This court finds no reason to question the findings of the PCRA and the Superior courts. Their conclusions are neither contrary to nor an unreasonable application of controlling federal law, nor are they unreasonable determinations of the facts in light of the evidence presented at the state court proceedings. Petitioner's claim regarding his trial counsel's failure to object to the introduction of a co-defendant's confession into evidence is meritless. Counsel cannot be found ineffective for failing to raise this meritless claim. Petitioner's fifth claim should be denied.
6. Claim 6: The Trial Court Erred When it Refused to Suppress Statements Made by Petitioner to Police at the Time of His Arrest
Petitioner raised this issue on direct appeal. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 10-16 (Comm. Pl. Phila. Aug. 31, 1990). The trial court stated as follows with respect to this claim:
[Police Officer] Anderson knew this defendant because of direct prior contacts with him. Thus, Anderson immediately recognized this defendant after his early morning entry into the Broad Street Diner where Anderson was already seated and eating. Anderson first exited the diner to retrieve a computer printout from his police car and to verify the fact that there was an outstanding warrant for Williams' arrest. Upon his return to the diner, Anderson confronted Williams and asked him questions relating to his birth date, address, and social security number. These questions were properly asked to acquire the information necessary to establish Williams' identity as the person named in the outstanding warrant. After Williams' identity was correctly established, Anderson advised Williams that he was under arrest and placed handcuffs on him. At this juncture, Williams blurtedout the statements which were sought to be suppressed. (S.H. at p.p. 339-347; N.T., at p.p. 995-997, 1005-1007, 1022-1034) As previously concluded as a matter of law, this defendant was under arrest before making these statements to Anderson.
Miranda requires both custody and interrogation before the warnings of 5th and 6th Amendment rights prescribed therein are required to be given to a defendant. Miranda warnings need be given only when one is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966); Berkemer v. McCarty, 468 U.S. 420 (1984). Interrogation consists of police conduct reasonably calculated to, expected to, or likely to evoke an accused's admission, confession, or other incriminating statements. Rhode Island v. Innis, 100 S.Ct. 1682 (1980); . . . Since Anderson maintained complete silence prior to Williams' statements to him, these statements were not the fruits of police interrogation. Indeed, Williams' statements were voluntary and spontaneous following his arrest. Spontaneous statements made upon and in response to arrest, without prior questioning or interrogation, are considered volunteered statements which are not rendered constitutionally inadmissible in the absence of the warnings of the 5th and 6th Amendment rights under Miranda. Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608 (1973); Commonwealth v. Ross, 452 Pa. 500, 307 A.2d 898 (1973). In conclusion, Williams had no legal cause for complaint that his police statements, constitutionally challenged at the pretrial stage, were thereafter presented as evidence at trial.Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 15-16 (Comm. Pl. Phila. Aug. 31, 1990), aff'd, No. 0377 Phila. 89 (Pa.Super.Ct. April 3, 1991).
This is a reasonable application of clearly established federal law. As the state court properly stated, Miranda warnings are required for the admission of a defendant's statements made in response to custodial interrogation; they are not required for the admission of a defendant's statements made spontaneously and voluntarily of his own accord. See United States v. Benton, 996 F.3d 642, 643-644 (3d Cir. 1993) (voluntary and spontaneous statements made by arrestee at time of arrest, prior to which police officer informed arrestee, in response to the arrestee's question, that he was being arrested and that the officer had seen the arrestee bend over where a gun was found, do not implicate Miranda). The state court correctly focused on whether the petitioner in this case made his statements in response to "custodial interrogation." The United States Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way." Miranda, 384 U.S. at 444.
As addressed above, the trial court, during a suppression hearing, determined that petitioner made the complained of statements while Officer Anderson "maintained complete silence."Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 16 (Comm. Pl. Phila. Aug. 31, 1990). Officer Anderson asked petitioner some questions merely to establish his identity. Once petitioner's identity was established, the Officer's questions ceased. Id. Petitioner's spontaneous statements were not the product of custodial interrogation. See, e.g., Benton, 996 F.3d at 643-644 (voluntary and spontaneous statements made by arrestee at time of arrest do not implicate Miranda);Commonwealth v. Avondet, 654 A.2d 587, 589-90 (Pa.Super.Ct. 1994) (a defendant's statements when a police officer arrested him for rape were not subject to suppression for lack ofMiranda warnings despite fact that he was in custody, where petitioner, without interrogation, spontaneously stated that he had not raped the victim but had had consensual sex).
This court must presume that the factual findings of the state court are correct. 28 U.S.C. § 2254(e)(1). The legal conclusion, that there was no Miranda violation, flows directly from the factual findings. The state court applied well established federal law in a reasonable manner. Hence, petitioner's sixth claim should be denied.
7. Claim 7: Trial Counsel was Ineffective for Failing to Interview Petitioner, Correspond with Petitioner, Read and Consider Letters/Notes from Petitioner, Interview Potential Witnesses and Discuss Trial Strategy with Petitioner
In his final claim, petitioner asserts that he provided trial counsel, Louis S. Konowal, Esquire, with a letter surrounding the circumstances of his arrest but that counsel was ineffective in that he never personally interviewed him or provided him with discovery materials which would enable petitioner to make "sound choices in the matter at trial." (Petition at Back of 16.) Petitioner also argues that trial counsel erred when he failed to call Robert Smith as a witness during trial. Petitioner contends that Mr. Smith would have testified that only two individuals were involved in the crimes, neither of which was petitioner. (Petition at Back of 15.) Petitioner urges that trial counsel could have had no rational or strategic reason not to call Mr. Smith as a witness. (Petition at Back of 16.) The trial court addressed these issues and found them to be meritless.Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 84-97 (Comm. Pl. Phila. Aug. 31, 1990), aff'd, No. 0377 Phila. 89 (Pa.Super.Ct. April 3, 1991).
A. Failure to Interview Petitioner
The trial court held an evidentiary hearing on October 19, 1988 at which Attorney Konowal testified regarding his representation of petitioner. The court addressed this issue in great detail in its opinion as follows:
Here, Konowal had no independent recollection of having discussed this case with Williams either at his place of incarceration or at the cell block facilities located at Philadelphia City Hall; however, Konowal did vividly recall and testify that he had constant conversations with Williams for "hours on end" while present with him in the courtroom during the entire course of this trial. (E.H. at p.p. 46, 50, 52, 57, 59-60) These conversations were conducted at the preliminary hearing in this case, during several status listings before the calendar judge, at the evidentiary hearings on pretrial suppression motions, at the time of jury selection, and at the trial proceedings. (E.H. at p.p. 45-48) Konowal stated that he had talked to this defendant "every single time I was in the courtroom" and that he had discussed this case with him "at least a hundred hours . . . in the courtroom." (E.H. at p.p. 46-47) Of course, this Court can take judicial notice of the time utilized by any single case tried before it. In light of the time consumed in the actual trial of this case from the disposition of pretrial motions to the return of jury verdicts, it is quite possible that Konowal and Williams had spent one hundred hours in the discussion of this case in the courtroom. . . .
Moreover, these discussions related to the following matters crucial to the defendant's 6th Amendment right to effective representation of counsel: (1) the decision whether to accept or reject a guilty plea pursuant to a tentative plea bargain with the prosecution; (2) the decision respecting whether or not this defendant should waive his 5th Amendment rights and testify in his own behalf at trial; (3) the defendant's disclosure of his knowledge of potential witnesses and the strategic wisdom of presenting all or none of these witnesses at trial; (4) the defendant's disclosure of his knowledge concerning the facts and circumstances of these crimes and his degree of participation therein; and (5) the discussion of trial strategy and what defense or defenses were to be pursued. (E.H. at p.p. 47-50, 51-54, 56-59)Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 89-91 (Comm. Pl. Phila. Aug. 31, 1990). The trial court specifically found that Konowal provided Williams with a complete copy of the discovery materials provided by the prosecutor, and that Konowal "continually questioned" petitioner about his version of the facts. Id. at 91.
The trial court also found that Williams provided his counsel with two written statements explaining his version of the events relating to the crimes. The court concluded, however, that "the oral and written descriptions of events supplied by Williams were inculpatory in nature and provided no possible successful defense or defenses to the instant criminal charges. (E.H. at P.P. 50-52, 56-57)." Id. at 92.
The trial court detailed that petitioner's own testimony supported the court's conclusion that trial counsel provided effective representation.
Clearly, the testimony of trial counsel Konowal in behalf of the Commonwealth at the post-verdict evidentiary hearing supported the legal conclusion that he had competently and effectively represented this defendant during his entire tenure as appointed counsel in this case. Furthermore, after the extraction of evasive and nonresponsive answers from the post-verdict hearing testimony from Williams, we must conclude that his testimony was not contradictory to, but supportive of, the legal conclusion that Konowal had effectively represented him at all times. Williams testified that Konowal had not visited or corresponded with him at the prison at which he was housed. (E.H. at p.p. 4-5) However, Williams did admit that, at Konowal's request, he had prepared and furnished Konowal with two separate written statements describing his personal versions of the facts and circumstances surrounding the instant crimes. (E.H. at P.P. 5-6, 16-20, 29-30) . . . Williams further acknowledged that Konowal had supplied him with complete copies of the written discovery materials furnished by the prosecutor in this case. (E.H. at p.p. 26-30) . . . Williams likewise confessed that matters relevant to the identity, availability, and presentation of potential defense witnesses were also adequately discussed by him and Konowal. (E.H. at p.p. 6-8, 22-31)Id. at 93-94. Based on the evidence presented at the evidentiary hearing and its observation of the trial, the court concluded that petitioner's "ineffectiveness of counsel claim must be rejected since it was egregiously frivolous in nature."Id. at 95. The Superior Court of Pennsylvania agreed.Commonwealth v. Williams, No. 0377 Phila. 89 (Pa.Super.Ct. April 3, 1991).
This court finds that the trial court reasonably applied well established federal law. Petitioner's ineffective assistance of counsel claim should be denied as meritless.
B. Failure to Call Witness Robert Smith
The second part of petitioner's ineffective assistance of trial counsel claim involves trial counsel's failure to call Robert Smith as a defense witness. The trial court addressed this issue after an evidentiary hearing at which Attorney Konowal testified.Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 95-97 (Comm. Pl. Phila. Aug. 31, 1990).
In post-verdict motions, petitioner complained that trial counsel was ineffective for failing to interview and present four witnesses at trial: Dewayne Turner, Trina Turner, Lou Ferraro, and Robert Smith. Commonwealth v. Williams, Nos. 2624, 2626, 2627, slip op. at 95 (Comm. Pl. Phila. Aug. 31, 1990.)
The United States Constitution does not require counsel to call each and every witness who is suggested to him by his client.Bowen v. Blaine, 243 F. Supp. 2d 296, 311 (E.D. Pa. 2003). A decision not to use certain witnesses does not constitute ineffective assistance of counsel if it "amounted to a tactical decision within the parameters of reasonable professional judgment." Duncan v. Morton, 256 F.3d 189, 201 (3d Cir.),cert. denied, 534 U.S. 919 (2001). Furthermore, even if counsel should have called a witness to testify, in order to show ineffective assistance of counsel, petitioner must show "a reasonable likelihood that . . . information [not presented] would have dictated a different trial strategy or led to a different result at trial." Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990). As the Third Circuit stated in another habeas corpus case:
We recognize that Zettlemoyer maintains that counsel failed to call some other witness who might have presented testimony crucial to his defense of diminished capacity; however, he neither alleges nor offers evidence that any such testimony was forthcoming or available upon reasonable investigation. A witness cannot be produced out of a hat. Zettlemoyer cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense. Rather, he must set forth facts to support his contention. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir.) (petitioner's vague and general allegations and supporting materials fail to make sufficient showing to justify relief), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987).Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991).
The state courts concluded that "[s]ince the four-named potential witnesses were not presented to testify at the post-verdict evidentiary hearing conducted in this case, this defendant failed to establish that they existed, that they were available, and that they were prepared to cooperate and testify in his behalf at this trial." Id. at 96. The trial court also concluded as follows:
In any event, Williams' testimony at the post-verdict evidentiary hearing failed to establish how the testimony of these four witnesses might have been helpful to his cause. Furthermore, Konowal related that he knew the identity of all four of these witnesses, that he fully discussed their possible presentation at trial, and that Williams agreed with his strategic decisions not to present them since they would not be helpful to his defense. (E.H. at p.p. 6-9, 15, 20-21, 24-26, 31-32, 52-56, 60-62)Id. at 97.
The trial court reasonably applied well established federal law in concluding that trial counsel was not ineffective. Petitioner continues to fail to establish the availability of these witnesses and the materiality of their testimony. Specifically, in the instant petition, petitioner does not provide an affidavit from Mr. Smith proving that he was ready, willing and available to testify on petitioner's behalf and that his testimony would have assisted the defense. Accordingly, petitioner has not shown that trial counsel was ineffective for failing to interview and call Mr. Smith as a witness at trial. Petitioner's claim should be denied.
III. CONCLUSION
Accordingly, for all of the above reasons, the court makes the following
RECOMMENDATION
AND NOW, this 10th day of August, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).