The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFERY MCBRIDE : CIVIL ACTION
:
v. : No. 17-5374
:
BARRY SMITH :
:
MEMORANDUM
Chief Judge Juan R. Sánchez September 15 , 2021
The Commonwealth of Pennsylvania objects to the May 28, 2020 Report and
Recommendation (R & R) of United States Magistrate Judge Carol Sandra Moore Wells. The R
& R recommends that Petitioner Jeffrey McBride's petition for habeas corpus be granted because
his trial counsel rendered ineffective assistance in failing to object to an erroneous reasonable
doubt jury instruction. After the R & R was issued, however, the Third Circuit Court of Appeals
issued a decision in the case of McBride's co-defendant, Armel Baxter. Because the Court of
Appeals’ reasoning applies equally here, the objections to the R & R will be sustained and the
matter remanded to Judge Wells for consideration of those additional claims raised by McBride
which were not previously addressed.
BACKGROUND
Given that the cases are virtually identical, the Court borrows the following summary of
the underlying salient facts as stated by the Third Circuit in Baxter v. Superintendent Coal
Township SCI, 998 F.3d 542 (3d Cir. 2021):
On a warm April 2007 afternoon, Demond Brown was shot and killed at a playground in
Philadelphia. Two eyewitness accounts and a corroborating witness implicated Baxter and
his co-defendant Jeffrey McBride as the shooters. The two eyewitnesses, Hassan Durant
and Anthony Harris, saw Baxter and McBride enter the playground wearing hooded
sweatshirts. Brown noticed the pair and began to run. The pair then shot Brown eight to
ten times and ran away. Durant and Harris knew Baxter from living in the same
neighborhood.
Rachel Marcelis, a friend of Baxter and McBride, confirmed Baxter and McBride's
presence at the playground and their roles in the shooting. On the day of the incident,
Marcelis drove by the playground with McBride and Baxter in her car. Either McBride
or Baxter said they saw someone at the playground and told her to stop to let them out of
the car, and she did so. She thereafter noticed many people running from the playground,
including Baxter and McBride. Baxter and McBride got back into the car and said that
"they got him" and that McBride "didn't have the chance to shoot" because his gun did
not work. McBride later told Marcelis that Brown had killed their good friend. That
weekend, Marcelis drove Baxter and McBride to Wilkes-Barre, Pennsylvania. Marcelis
returned to Philadelphia a few days later, but McBride and Baxter stayed in Wilkes-Barre
until their arrests. …
998 F. 3d at 544-545.
On February 5, 2007, McBride and Baxter were tried and convicted following a jury trial
in the Philadelphia County Court of Common Pleas of first-degree murder, criminal conspiracy to
murder, and possession of an instrument of crime in violation of 18 Pa. C.S. §§ 2502(a), 903(a)(1)
and 907(a). McBride appealed to the Pennsylvania Superior Court, then to the Supreme Court of
Pennsylvania, but his conviction was affirmed by both Courts. On April 14, 2011, McBride
returned to the Court of Common Pleas to assert a claim for ineffective assistance of counsel
pursuant to the Pennsylvania Post Conviction Relief Act, 42 Pa. C.S. § 9541, et. seq. (“PCRA”).
Following an evidentiary hearing on some of his claims, his PCRA petition was dismissed. The
Superior Court affirmed in part and reversed in part and remanded the case for re-sentencing in
accordance with Miller v. Alabama, 567 U.S. 460 (2012). Thereafter the Pennsylvania Supreme
Court denied his petition for allowance of appeal.
McBride filed a pro se habeas corpus petition in November 2017, and filed an amended
petition, also pro se, in February 2018. In May 2018, counsel entered an appearance in McBride’s
case, and a counseled amended petition was filed in September 2018. On December 10, 2018, the
federal habeas proceedings were stayed pending McBride's re-sentencing in state court. He was
subsequently re-sentenced to 25 years to life imprisonment for first-degree murder; no further
penalties were imposed for conspiracy or possession of an instrument of crime.
In December 2019, McBride moved for judgment solely on the claim that trial counsel
rendered ineffective assistance by failing to object to the trial judge’s instruction of what
constitutes reasonable doubt, a claim McBride raised for the first time in these federal habeas
proceedings. On May 22, 2020, Judge Wells granted McBride's unopposed motion to expand the
record to include declarations from his former trial and PCRA attorneys. Both of those attorneys
attested that they had no tactic or strategy for not objecting and that their failure to do so was due
to oversight. A few days later on May 28, 2020, Judge Wells issued the R & R at issue
recommending that habeas relief be granted with respect to the ineffective assistance of counsel
claim.
DISCUSSION
The challenged jury instruction was given in the context of the trial judge's explanation
that the Commonwealth must prove the case “beyond a reasonable doubt,” which is “the highest
standard in the law,” and is “the only standard that supports a verdict of guilty.” Commonwealth
Response to Petition for Writ of Habeas Corpus 47 (ECF 32). The trial judge explained that
reasonable doubt is “a doubt that would cause a reasonably careful and sensible person to pause,
to hesitate, to refrain from acting upon a matter of the highest importance to your own affairs or to
your own interests.” (Id. at 48). The judge then provided the following example for how to think
about reasonable doubt, which McBride contends is unconstitutional:
I find it helpful to think about reasonable doubt in this way: Each
one of you loves someone. Each one of you is blessed to love
someone. A spouse, a significant other, a parent, a child, a niece, a
nephew, each one of you has someone in your life who is precious.
If you were advised by your loved one’s physician that that loved
one had a life-threatening illness and that the only protocol was a
surgery, very likely you would ask for a second opinion. You’d
probably get a third opinion. You’d probably start researching the
illness, what is the protocol, is surgery really the only answer. You’d
probably, if you’re like me, call everybody you know in medicine:
What do you know about this illness? What do you know about this
surgery? Who does this surgery across the country? What is my
option?
At some moment, however, you’re going to be called upon to make
a decision: Do you allow your loved one to go forward? If you go
forward, it’s not because you have moved beyond all doubt. There
are no guarantees. If you go forward, it's because you have moved
beyond all reasonable doubt. Id.
As Judge Wells noted, the trial judge used materially identical instructions in numerous
murder trials over several years, but in 2017, it was successfully challenged on due process grounds
in another case in this District. R & R, p. 2 (citing Brooks v. Gilmore, Civ. A. No. 15-5659, 2017
WL 3475475 (E.D. Pa. Aug. 11, 2017). In 2020, habeas relief was granted on a claim of
ineffective assistance of counsel based on counsel’s failure to object to this same instruction. Id,
(citing McDowell v. Delbalso, Civ. A. No. 18-1466, 2020 U.S. Dist. LEXIS 1806 (E.D. Pa. Jan. 3,
2020)).
McBride obtained affidavits from trial and PCRA counsel which explained they had no
strategic reason for failing to object to the reasonable doubt instruction. (See: Declaration of
Michael E. Wallace, Esq. at 2, Declaration of Elayne Bryn, Esq. at 2, attached as Exhibits 1 and 2
to Defendant's Motion to Dispense with Evidentiary Hearing [ECF No. 36]). Noting the
"Pennsylvania state courts had never addressed Petitioner's ineffective assistance claim," Judge
Wells determined "de novo, not deferential, review is appropriate,"1 and McBride was entitled to
merits review of his defaulted ineffective assistance of counsel claim.2
Under 28 U.S.C. § 636(b)(1)(C), the District Court, when ruling on an R&R, “shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” The Court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The Court may also
recommit the matter to the magistrate with instructions. Id.
Here, the Commonwealth does not defend the reasonable doubt instruction but nevertheless
challenges the R & R for effectively two reasons:
1. Neither trial counsel's failure to object to the reasonable doubt instruction nor
PCRA counsel’s failure to raise an ineffective assistance of counsel claim based on
trial counsel’s failure to object was unreasonable under prevailing professional
norms, and counsel were not ineffective given that the alleged jury instruction error
was not clear or obvious;
2. There was no prejudice as a result of the failure to object in light of the compelling
evidence of guilt in this case.
The first objection lacks merit, as the Court discerns no error in the R & R’s conclusion that
both trial and PCRA counsel were ineffective and that the procedural default was excused.
However, the Commonwealth's prejudice argument is well-taken and has essentially already been
1 "[B]y its own terms, §2254(d) applies only to claims already adjudicated on the merits in State court proceedings."
Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
2 Judge Wells concluded McBride's appointed post-conviction counsel was also admittedly ineffective in failing to
assert the unconstitutionality of the jury instruction at issue in the PCRA proceedings and this error was substantial
given that it had "some merit." (R & R, pp. 4-5) (applying Martinez v. Ryan, 566 U.S. 1, 14 (2012), Preston v.
Superintendent Graterford SCI, 902 F.3d 365, 375, 377 (3d Cir. 2018) and Richardson v. Superintendent Coal
Township SCI, 905 F.3d 750, 762, 764 (3d Cir. 2018)).
adjudicated in its favor in McBride's co-defendant's case. See, Baxter v. Superintendent Coal
Township SCI, 998 F.3d 542 (3d Cir. 2021).
It is of course well-settled law that a convicted defendant's claim that counsel's assistance was
so ineffective as to require reversal of a conviction has two components. Strickland v. Washington,
466 U.S. 668, 687 (1984). First, defendant must show that counsel's performance was deficient,
i.e., that his attorney "made errors so serious that" he or she "was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must show that
the deficient performance prejudiced the defense. Id. "This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. It is
only when both of these elements are demonstrated that the conviction may be overturned.
As noted in Baxter, the Third Circuit addressed an ineffective assistance of counsel claim
identical to the one asserted by McBride – namely that Baxter’s counsel was ineffective for failing
to object to the same reasonable doubt instruction at his and McBride’s joint trial. Rather than
viewing the language utilized in the reasonable doubt instruction in a vacuum, the Third Circuit
examined it under the lens of the rules for evaluating jury instructions generally: "[t]hese rules do
not require that any particular form of words be used in advising the jury of the government's
burden of proof," but instead "require examining the language in its totality and determining
whether the instructions correctly captured the applicable legal concepts.” 998 F.3d at 548 (citing
Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed.2d 583 (1994) and United States v.
Isaac, 134 F.3d 199, 204, 39 V.I. 470 (3d Cir. 1998)). "In the context of an ineffective assistance
of counsel claim, if [the Court] conclude[s] that the instruction contains an error, [it] then
examine[s] whether the instruction resulted in actual prejudice." Id. In applying these rules, the
Third Circuit concluded:
Even if the example used in the instruction improperly cast the reasonable doubt standard,
the surrounding language correctly expressed the standard. Moreover, the evidence against
Baxter shows that even the inapt example did not prejudice him. …Various eyewitnesses
who were in close proximity of and who knew Baxter for years testified that Baxter and
McBride chased Brown and repeatedly shot him. Baxter's friend Marcelis corroborated
the eyewitness accounts with her report of driving Baxter and McBride to the playground,
hearing their incriminating remarks after the shooting and their motive for it, and their
flight to Wilkes-Barre. This flight, together with Baxter's use of false names when he
encountered law enforcement after the murder, provided a basis to infer a consciousness of
guilt. In light of this evidence, Baxter cannot show he was prejudiced by the phrasing of
the example in an otherwise correct reasonable doubt instruction. …Accordingly, Baxter's
counsel's failure to object to the reasonable doubt instruction did not prejudice him, and
thus he cannot show he was deprived of effective assistance of counsel.
Id, at 549 (citations omitted).
The foregoing reasoning applies with equal force in this case. In keeping with the Third
Circuit's findings, this Court likewise finds that McBride also cannot show his counsel's failure to
object to the reasonable doubt instruction caused him prejudice nor that he was deprived of his
Sixth Amendment right to effective counsel. The Commonwealth's objections to the R & R are
therefore sustained and, because Judge Wells did not have occasion to address the other issues
raised in McBride's habeas petition, this matter shall be remanded to her for this purpose.
An appropriate Order follows.
BY THE COURT:
/s/ Juan R. Sanchez
___________________________
Juan R. Sanchez, C.J.