“The firing of a bullet in the general area in which vital organs are located can in and of itself be sufficient to prove specific intent to kill beyond a reasonable doubt.”
How later courts described this case
- “The firing of a bullet in the general area in which vital organs are located can in and of itself be sufficient to prove specific intent to kill beyond a reasonable doubt.”
- “Defense counsel did not act in an objectively unreasonable manner by not objecting to the use of an applicable pattern jury instruction.”
- finding ineffective assistance of counsel where trial counsel took too large of a risk in opening the door to testimony about another homicide where defendant had not been charged
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KEITH WHITMORE, :
Petitioner : CIVIL ACTION
v.
DEREK OBERLANDER, ef al,
Respondents : No. 20-1390
MEMORANDUM
PRATTER, J. JUNE i 2022
Mr. Whitmore petitions this Court for a writ of habeas corpus. He raises seven ineffective-
assistance-of-counsel claims and attempts to add four more such claims through his pro se
objections to the Magistrate Judge’s Report and Recommendation. Mr. Whitmore’s additional
claims are untimely and, even if considered on their merits, do not state any ground for relief. The
other claims were denied by the state courts. Because the state courts’ resolutions of these claims
were not “contrary to” or an “unreasonable application of” clearly established federal law, the
claims are not grounds for habeas relief. After a detailed review, the Court adopts the Magistrate
Judge’s Report and Recommendation and denies Mr. Whitmore’s habeas petition.
BACKGROUND
I. Factual Background
On September 26, 2010, two brothers named Scott and Andrew Sliwinski drove to
Tackawanna Street in Philadelphia looking to purchase drugs.' Upon getting out of their car, Scott
Sliwinski approached the petitioner, Keith Whitmore. An argument erupted and Mr. Whitmore
brandished a firearm. As Scott Sliwinski retreated to the vehicle, Mr. Whitmore shot him in the
! Unless otherwise noted, the facts are drawn from the opinion of the Pennsylvania Superior Court, which
addressed Mr. Whitmore’s direct appeal. Commonwealth v. Whitmore, No. 3318 EDA 2012, 2014 WL
10885748 (Pa. Super. Ct. Aug. 19, 2014) (“Whitmore I’).
face, killing him instantly. Commonwealth v. Whitmore, No. 3148 EDA 2018, 2019 WL 6999940,
at *1 (Pa. Sup. Ct. Dec. 20, 2019) (“Whitmore iP’). After Scott fell, Andrew got out of the vehicle
to approach his brother. Mr. Whitmore then shot Andrew in the chest and leg. Andrew survived
and testified at trial, but had no memory of the night’s events. Oct. 18, 2012 Trial Tr. at 30:18—
257
Two neighborhood children, 12-year-old N.P. and 13-year-old J.C., witnessed the
shootings. The boys had been sitting outside along Hawthorne Street at approximately 11:00 p.m.
when they saw Mr. Whitmore (who they knew by the nickname “Keefy”) and another male walk
past them and up to Scott Sliwinski. N.P., who, at the time of trial, had moved from the
neighborhood, testified that he saw Mr. Whitmore pull out a gun and shoot the Sliwinski brothers.
J.C., who still lived in the same neighborhood, was more equivocal, stating that he thought the
shooter looked like Mr. Whitmore but that he began running after the first brother was shot. Oct.
17, 2012 Trial Tr. at 179:9-184:20, N.P. testified that the gun Mr. Whitmore wielded was silver,
while J.C. testified that the gun was black. Id. at 58:4~-5; 183:17-20.
After the shots were fired, N.P. ran to his friend’s house and informed the friend’s mother
of what had just happened. The friend’s mother testified at trial to hearing the gunshots, treating
N.P.’s skinned knee from his fall on his way to her house, and hearing N.P. tell her that he had just
seen Mr. Whitmore shoot the two men.
Two months later, Mr. Whitmore was arrested when police officers responded to a call
involving gunshots about three blocks from where the Sliwinski brothers were shot. Officer
Dennis Johnson found a Model 1911 .45 caliber semi-automatic pistol with an obliterated serial
2 The trial transcripts in this case also include different volume numbers, but those numbers do not
correspond to the dates and there is only a single volume for each date of trial. Thus, to avoid any confusion,
the Court will only cite to the trial transcripts by date, not volume number.
number in a bush five to ten yards away from Mr. Whitmore. Whitmore IH, 2019 WL 6999940, at
*1. A ballistics examination revealed that the bullet jacket found in Scott Sliwinski’s brain was
the same caliber and that it shared unique projectile markings consistent with the barrel of the
pistol recovered from the bush. The ballistics examiner could not, however, definitively conclude
that the pistol recovered in the bush was the one used in the shooting.
Based on the foregoing evidence, ajury convicted Mr. Whitmore of, infer alia, first-degree
rmurder. On October 19, 2013, Mr. Whitmore was sentenced to life imprisonment without the
possibility of parole.
II. Procedural Background
Mr. Whitmore filed direct and collateral appeals prior to seeking habeas relief. His petition
includes a series of claims advanced by various counsel with whom he has disagreed at cach
juncture.
A. Direct Appeal
On October 23, 2012, Mr. Whitmore, through counsel, filed a post-sentence motion
challenging the weight of the evidence. The trial court denied the motion the next day. Mr.
Whitmore then filed an appeal through newly appointed counsel, Dkt. No. CP-51-CR-0007422-
2011, at 9. He argued, based on the sufficiency and weight of the evidence presented at trial, that
his conviction should be overturned because the prosecution failed to prove the requisite intent
and malice for the first-degree murder conviction. Whitmore I, 2014 WL 10885748, at *2.
The Superior Court affirmed the sentence, finding that Mr. Whitmore’s use of a deadly
weapon on vital parts of a victim’s body sufficiently established the requisite intent for first-degree
murder under Pennsylvania law. /d. at *2-3.
The Pennsylvania Supreme Court denied Mr. Whitmore’s petition for allowance of appeal
on March 17, 2015. Commonwealth v. Whitmore, 112 A.3d 652 (Pa. 2015) (Table).
B. PCRA Petition
Mr. Whitmore then filed a pro se petition under Pennsylvania’s Post-Conviction Relief Act
(PCRA), 42 Pa. Cons. Stat. § 9541 ef seg., on March 1, 2016, followed by an amended pro se
petition, and then, through counsel, another PCRA amended petition. The Court of Common Pleas
dismissed Mr. Whitney’s petition for lack of merit. Mr. Whitmore, through counsel, promptly
appealed.
In December 2018, the Court of Common Pleas filed an opinion supporting its dismissal.
The Court of Common Pleas addressed Mr. Whitmore’s claims that his trial counsel had provided
ineffective assistance for failing to (1) investigate a related case (referred to as the “Lucas case”)
and suppress testimony about the firearm, (2) investigate and impeach the credibility Officer
Johnson, who had discovered the firearm, (3) renew his request to limit the jury instruction about
the firearm, (4) renew his objection to the introduction of the firearm, (5) object to certain
comments by the prosecutor in closing argument about the specter of threats against the witnesses,
and (6) that trial counsel’s cumulative ineffectiveness violated the Sixth and Fourteenth
Amendments of the United States Constitution. Opinion at 2-3, Commonwealth v. Whitmore, No.
CP-51-CR-007422-2011 (Phila. Ct. C.P. Dec. 11, 2018). The Court of Common Pleas denied all
six of Mr. Whitmore’s ineffective-assistance-of-counsel claims on the merits, /d. at 3.
On appeal, addressing the merits of the claims, the Pennsylvania Superior Court affirmed.
Whitmore I, 2019 WL 6999940, at *1-2.
Mr. Whitmore did not seek allowance of appeal to the Pennsylvania Supreme Court.4
3 Such opinions are issued when a PCRA court summarily dismisses a PCRA petition and must support its
summary dismissal after the petitioner files an appeal. 210 Pa, Code §1925(a)(1).
4 Review by the Pennsylvania Supreme Court is discretionary, meaning that “petitioners need not seek
review from the Pennsylvania Supreme Court in order to give the Pennsylvania courts a full opportunity to
resolve any constitutional claims.” Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004) (internal
quotation marks omitted).
C. Federal Habeas Petition
After exhausting both the direct appeal process and the collateral appeal process in the state
courts, Mr. Whitmore sought a writ of habeas corpus in federal court. He filed his petition through
counsel on March 11, 2020.
The Court referred this matter to United States Magistrate Judge Richard A. Lloret for a
report and recommendation. Judge Lloret issued his R&R on February 18, 2021. Mr. Whitmore,
though counsel, objected to Judge Lloret’s R&R. The respondents, through the Attorney General
of Pennsylvania, replied to Mr. Whitmore’s objections.
D. Pro Se Objections
After his counsel filed both the habeas petition and objections to the R&R, Mr. Whitmore
requested that his counsel withdraw. The Court granted the withdrawal on August 30, 2021 and
gave Mr. Whitmore 60 days to file any additional objections to the R&R, which he timely did. In
these pro se objections, Mr. Whitmore asserts that certain of his counseled objections are based on
“totally false facts and arguments,” that his counsel “cited things that weren’t there,” and that his
counsel failed to respond to Mr. Whitmore’s questions and concerns throughout the process.” Doc.
No. 17, at ECF 2.
In addition to these pro se objections, Mr. Whitmore also raised four additional claims
about his PCRA counsel’s purported ineffectiveness for failing to raise certain additional
ineffective-assistance-of-counsel claims based on his trial counsel’s performance.
5 ‘This statement raises an issue with regard to how the Court should approach the two sets of objections,
particularly where they conflict. Because the Court permitted Mr. Whitmore to file additional objections,
Doc. No. 16, and for the sake of thoroughness, the Court will address both sets of objections where relevant
to each of Mr. Whitmore’s claims. Where the two sets of objections conflict, the Court construes the pro
se objections liberally and addresses each side in turn with an independent review of the record.
LEGAL STANDARD
Federal courts can hear habeas petitions from state prisoners, but only in limited
circumstances. The prisoner must first have “exhausted the remedies available in” state court,
usually through a direct appeal and then a post-conviction petition. 28 U.S.C. § 2254(b)(1)(A).
Assuming that a state prisoner has met the exhaustion requirement, a federal district court
“shall not” grant a petition “unless the adjudication of the claim . . . 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 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).
“A state court decision is ‘contrary to’ clearly established federal law if it ‘applies a rule
that contradicts the governing law set forth’ in Supreme Court precedent, or if it ‘confronts a set
of facts that are materially indistinguishable froma decision of [the Supreme] Court and
nevertheless arrives at a result different from that reached by the Supreme Court.’” Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir, 2013) (alteration in original) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). On the other hand, “a state court decision reflects an ‘unreasonable
application of such law’ only ‘where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme] Court’s precedents,’ a standard the Supreme
Court has advised is ‘difficult to meet.’” Mathias v. Superintendent Frackville SCI, 876 F.3d 462,
476 (3d Cir. 2017) (alteration in original) (quoting Harrington y, Richter, 562 U.S. 86, 102
(2011)).
If a party timely objects to a magistrate judge’s report and recommendation, the court must
“make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Regardless of whether
timely objections are made, district courts may accept, reject, or modify—in whole or in part—the
magistrate judge’s findings or recommendations. Id.
DISCUSSION
Because Mr. Whitmore objected to Judge Lloret’s R&R, the court reviews it de novo, 28
U.S.C. § 636(b)(1). For the reasons that follow, the Court adopts the R&R in all substantive
respects. The Court also rejects four new arguments raised by Mr. Whitmore in his pro se
objections because they are procedurally defaulted.
L Mr. Whitmore’s Firearm-Related Ineffective-Assistance-of-Counsel Claims Are
Meritless
In his original petition, Mr. Whitmore raised four ineffective-assistance-of-counsel claims
based on an unrelated arrest and the introduction of a firearm recovered from that arrest at his
subsequent murder trial. In order to address Mr. Whitmore’s firearm-related claims, it is necessary
to provide additional background on Mr. Whitmore’s arrest in that related case, referred to by the
parties as the “Lucas case.”
A. Additional Background Relevant to Firearm-Related Claims from Lucas Case
In November 2010 (two months after the Sliwinski shootings), Mr. Whitmore was arrested
with another man named Kevin Lucas. Officer Stan Galiczysnki was patrolling Hawthorne Street
when he heard six to seven gunshots. Doc. No. 7-3, Dec. 10, 2010 Prelim. H’mg Tr. at □□□□□□□
(Phila. Mun. Ct., Crim. Div.). Officer Galiczysnki saw a large group running from the area where
he believed the gunshots had originated and also observed Mr. Lucas and Mr. Whitmore standing
across from each other on opposite sides of Hawthorme Street. Jd. at 6:1-20.
Officer Johnson was serving as backup to Officer Galiczysnki at the time and responded
to his call for backup. After Officer Johnson helped Officer Galiczysnki handcuff Mr. Lucas, he
took Mr. Lucas a few feet away for a pat-down. Based on Mr. Lucas’s statements to him, Officer
Johnson and another officer searched a bush approximately 20 to 25 feet from Mr. Whitmore and
discovered a gun in the bush. Pursuant to department policy, they protected the scene and waited
until a detective arrived to collect the firearm. Jd. at 20:25-21:3. Detective John Hopkins testified
at Mr. Whitmore’s murder trial that he was the person who recovered the firearm from the bush.
Oct. 16, 2012 Trial Tr. at 132:13-15. Two firearms were recovered from the scene: one on the
even-numbered side of the street, on which Mr. Whitmore had been standing, and one on the odd-
numbered side of the street, on which Mr. Lucas had been standing.
Mr, Whitmore and Mr. Lucas were each charged with unlicensed possession of a firearm,
but Mr. Lucas was granted immunity in exchange for his testimony. At the preliminary hearing
on Mr. Whitmore’s firearm charge, Mr. Lucas testified and recanted the story that appeared to
form the basis for his immunity:
Q: Mr. Lucas, do you know the defendant?
A: Yes.
Q. [Were you at the area of Meadow and Hawthorne Streets on November 23 of
this year?
A: Yes.
Q: That’s the night you got arrested?
A: Yes,
Q: Was the defendant there also?
A: Yes,
Q: Can you tell the Court what happened?
A: Well, we was inside the bar, you know, socializing, whatever. An altercation
had broke out between my girlfriend and my cousin, whatever. And they got into
a verbal dispute. It ended up escalating, going outside and whatever, just a big old
crowd of females coming outside and arguing, fighting. They started to fight. And
myself and also Keith Whitmore and other males that was out there was trying to
break the fight up. And in the midst of that, cops came, whatever, and broke it up,
whatever. They came down on me with their guns raised, whatever, saying that I
had a gun on me, whatever. That was it.
Q: And you did have a gun on you, right?
A: No. They didn’t find no weapon on me.
Q: You threw your gun?
A: They didn’t find no weapon on me.
Q: Did you hear gunshots that night?
A: Yes.
Q: How many?
A: I can’t really say how many. It wasn’t really like in the area.
Q: It wasn’t in the area where you were?
A: It was in that area, but it wasn’t in the area right where I was at, It wasn’t right
where I was at, but it was in the area.
Q: And do you remember telling Officer Johnson that [Mr. Whitmore] shot at you?
A: Negative.
The Court: Do you understand that if it can be established you lied at this
proceeding, that that is all gone, that immunity petition is gone? If you he, what
you say here can be used against you.
A: Right.
Doc. No. 7-3, Dec. 10, 2010 Prelim. H’rng Tr. at 11:2-12:25.
Once Mr. Lucas recanted, Mr. Whitmore argued that Officer Johnson’s testimony as to
what Mr. Lucas told him was hearsay and that there was no admissible evidence to support the
charge for possession of a firearm against Mr. Whitmore. The prosecutor dropped the firearm
possession charge against Mr. Whitmore.
At Mr. Whitmore’s murder trial, only Officer Johnson testified about this prior incident.
The state court prevented the prosecution from calling Mr. Lucas to testify because questions about
what he previously told Officer Johnson “about the gun shoot-out” would not have been relevant
to the murder charges and would have been prejudicial to Mr. Whitmore. Oct. 18, 2012 Trial Tr,
at 9:20-10:4. The scope of Officer Johnson’s testimony about the November 23 arrest was limited
to his discovery of the firearm in the bush near Mr. Whitmore. He testified only that he responded
to a back-up call from other officers and did not testify about the gunshots. Oct. 16, 2012 Trial
Tr, at 117:19-118:7. He testified that he recognized the firearm at the murder trial, which had
already been introduced into evidence, as the one he found in the bush near Mr, Whitmore on
November 23rd.
B. Legal Standard
Based on this related case, Mr. Whitmore raised four ineffective-assistance-of-counsel
claims: (1) trial counsel failed to investigate and develop evidence stemming from the related case
involving Kevin Lucas; (2) trial counsel failed to investigate and introduce certain information into
evidence to impeach Officer Johnson, who had discovered the gun; (3) trial counsel failed to renew
his request for a jury instruction regarding evidence related to the recovery and introduction of the
firearm; and (4) trial counsel! failed to renew his objection to the trial court’s admission of evidence
related to the firearm.° Mr. Whitmore properly exhausted all four claims through his PCRA
petition and appeal. In his R&R, Judge Lloret recommended denying all four claims as lacking
merit. Mr. Whitmore, both through counsel and pro se, objected to the R&R as to all four claims.
The respondents dispute Mr. Whitmore’s objections.
Because Mr. Whitmore objected to the R&R, the Court addresses the state court’s
conclusion as to each of Mr. Whitmore’s firearm-related ineffective-assistance-of-counsel claims
de novo. To succeed on an ineffective-assistance-of-counsel claim, a petitioner must demonstrate
both that his counsel’s performance was deficient and that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that his counsel’s
performance was deficient, a petitioner must show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
id. Assuming a petitioner demonstrates that his counsel’s performance was deficient, he must also
6 Mr. Whitmore also objected that appellate counsel failed to pursue this claim on direct appeal, but the
Superior Court reviewed the claim on the merits at the PCRA stage.
10
show that he was prejudiced, meaning “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Jd. at 694.
Where a state court addressed a petitioner’s claims that his counsel was ineffective and the
state court applied the correct legal standard, a petitioner must show that the state court decision
“applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v.
Visciotti, 537 U.S. 19, 25 (2002), A federal court will not substitute its own judgment for that of
the state court. Jd In other words, a review of ineffectiveness claims in a habeas petition is
“doubly deferential” because the reviewing federal court must give “the benefit of the doubt” to
both the state court and the petitioner’s counsel. Burt v. Titlow, 571 U.S. 12, 15 (2013); accord
Branch vy. Sweeney, 758 F.3d 226, 235 Gd Cir. 2014).
C. Mr. Whitmore’s Four Firearm-Related Ineffective Assistance of Counsel
Claims Lack Merit
For the reasons that follow, the Court adopts Judge Lloret’s R&R in full and denies Mr.
Whitmore’s four exhausted ineffective-assistance-of-counsel claims,
1, Failure to Investigate and Develop Evidence Stemming from the Lucas Case
Mr. Whitmore first argues that his trial counsel failed to investigate and develop certain
evidence from the Lucas case. In particular, Mr. Whitmore argues that his trial counsel failed to
introduce the fact that Mr. Lucas later recanted his statements about the November 23, 2010
shootout and about Mr. Whitmore throwing his firearm into the bush,
The Superior Court found that this claim had no arguable merit because Mr. Lucas’s
testimony at the December 2010 preliminary hearing, at which he recanted some of his earlier
statements, did not address whether Mr. Whitmore possessed a gun.’ Whitmore H, 2019 WL
7 Under Pennsylvania law, the familiar federal two-part Strickland analysis is a three-part test. “[T]o prove
counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel
11
6999940, at *3. Rather, Mr. Lucas testified that he, Mr. Lucas, never had a gun, and that Mr.
Whitmore never shot at him.’ Doc. No. 7-3, Dec. 10, 2010 Prelim. H’rng Tr. at 12:1-4; 13:6-7.
As a result, the Superior Court determined that Mr. Lucas’s prior testimony would not have been
effective in rebutting the Commonwealth’s assertion that Mr. Whitmore had, in fact, possessed the
gun. Thus, the Superior Court determined that Mr. Whitmore’s counsel was not ineffective for
failing to raise a meritless claim. Whitmore IT, 2019 WL 6999940, at *3.
In the R&R, Judge Lloret agreed, noting that the trial court precluded testimony about Mr.
Lucas specifically because questions about the shootout risked prejudice to Mr. Whitmore as prior
bad acts evidence. Jd. As the Commonwealth rightly points out, Mr. Whitmore’s proposed
alternative strategy would “have opened the door to evidence that [Mr. Whitmore] had been
involved in another shooting two months after the murder.” Doc. No. 7, at 11.
This Court agrees for two separate reasons. First, a review of the preliminary hearing
transcript confirms that the Superior Court correctly interpreted the facts adduced at the
preliminary hearing on the firearms charge. The preliminary hearing transcript does not address
whether Mr. Whitmore possessed a gun during the November 23 shootout. Thus, the Superior
Court correctly applied Strickland because a “counsel cannot be deemed ineffective for failing to
raise a meritless claim.” Werts v. Vaughn, 228 F.3d 178, 203 Gd Cir. 2000). Second, under
Strickland, a petitioner asserting ineffective assistance of counsel must “overcome the presumption
that, under the circumstances, the challenged action might be considered sound strategy.”
Strickland, 466 U.S. at 689. Mr. Whitmore’s arguments related to the Lucas case fail to overcome
had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.”
Commonwealth v. Spoiz, 84 A.3d 294, 311 (Pa, 2014).
® Conversely, Mr. Whitmore argues elsewhere that Mr. Lucas did, in fact, have a firearm, See Doc. No.
17, at ECF 3-4 (“Police Off. Galicynski [sic] actually wrestled with Lucas during his arrest, and personally
witnessed him throw the gun he was charged with.”).
12
this presumption because it was sound strategy vor to risk opening the door to additional testimony
about Mr. Whitmore’s involvement in the Lucas case. Cf Berryman v. Morton, 100 F.3d 1089,
1100 (3d Cir. 1996) (finding ineffective assistance of counsel where trial counsel took too large of
a risk in opening the door to testimony about another homicide where defendant had not been
charged). Thus, the state court’s decision was neither contrary to nor an unreasonable application
of clearly established federal law. 28 U.S.C. § 2254.
Mr. Whitmore’s counseled objections simply repeat the same arguments already rejected.
Mr. Whitmore’s pro se objections take issue with certain descriptions of the factual background,”
without showing how the state court “applied Strickland to the facts of his case in an objectively
unreasonable manner.” Woodford, 537 U.S. at 25, Thus, the Court will not address them further.
The Court adopts the R&R and denies Mr. Whitmore’s petition on this issue.
2. Failure to Impeach Officer Johnson
Next, Mr. Whitmore argues that trial counsel failed to investigate and introduce evidence
of the supposed bias Officer Johnson harbored toward Mr. Whitmore. He has raised several
versions of this argument at different junctures.
a. Claims Addressed by State Courts
According to Mr. Whitmore, he informed his trial counsel that Officer Johnson had
attempted to intimidate him on several occasions because Officer Johnson was upset that Mr.
Whitmore was dating Officer Johnson’s niece. Mr. Whitmore argues that this information would
have impeached Officer Johnson’s credibility with regard to his testimony that he found the
firearm in the bush near Mr. Whitmore after the November 23 shootout.
In particular, Mr. Whitmore argues that his trial counsel should have impeached Officer Johnson with
certain alleged factual inconsistencies, but that would not change the risk associated with questioning
Officer Johnson about the November 23 shootout in the first instance.
13
The Superior Court rejected this ineffective-assistance-of-counsel claim because its review
of the record did not support a finding that counsel was even aware of the supposed animosity
between Officer Johnson and Mr. Whitmore and because Mr. Whitmore’s self-serving affidavit
was the only evidence of the supposed animosity. Whitmore H, 2019 WL 6999940, at *4. Judge
Lloret’s R&R further explained that testimony about Officer Johnson’s feelings regarding Mr.
Whitmore dating his niece could have opened the door to information about Mr. Whitmore’s prior
arrests and other prejudicial reasons for Officer Johnson’s disapproval of the relationship. R. & R.
at 22-23. Nonetheless, Mr. Whitmore raises the same issue again in one of his counseled
objections, arguing that his trial counsel “could have . . . asked the officer if he disapproved of the
relationship between [Mr. Whitmore] and [Officer Johnson’s] niece without ever having to go into
why the officer disapproved of it.” Doc. No. 9, at 5,
As the R&R noted, Mr. Whitmore’s trial counsel had good reason to keep this evidence
out of the trial. During a sidebar in which he requested a limiting instruction about Officer
Johnson’s testimony, Mr. Whitmore’s trial counsel specifically noted his concern that he might
open the door to character evidence about Mr. Whitmore. Oct. 16, 2012 Trial Tr. at 127:24—-128:5
(“I didn’t want to possibly open the door to something. I have no prior knowledge of this officer
arresting my client in the past, other than that case, and I would be opening the door to that.”).
As explained in the R&R, Mr. Whitmore’s trial counsel pursued a valid strategy in keeping
out prior Whitmore bad acts evidence that could have come out during examination of Officer
Johnson. Thus, the state court’s determination that Mr. Whitmore’s trial counsel was not
ineffective for failing to pursue a strategy that would have risked the introduction of evidence
regarding Mr. Whitmore’s character was neither contrary to nor an unreasonable application of
federal law. 28 U.S.C. § 2254(d).
14
In his counseled objections to the R&R, Mr. Whitmore also argues that his trial counsel
was ineffective for failing to impeach Officer Johnson’s testimony that he knew Mr, Whitmore
“from the neighborhood.” This is because, according to Mr. Whitmore, Officer Johnson's
comment “left the jury with the impression that Officer Johnson knew [him] either based on his
exposure patrolling that neighborhood or his having previously arrested the Petitioner for
narcotics.” Doc. No. 9, at 8. But trial counsel raised precisely this objection at trial and the trial
court explained during a side bar that Officer Johnson’s “from the neighborhood” testimony was
not prejudicial, See Oct. 16, 2012 Trial Tr. at 126:23-128:8. Because trial counsel did raise this
concern at trial, and the court rejected this concern, an ineffective-assistance -of-counsel claim
based on a failure to raise this objection lacks merit. Cf Gaines v. Superintendent Benner Twp.
SCI, 2022 WL 1494388, at *4—6 (3d Cir. May 12, 2022) (overturning grant of habeas relief where
trial counsel did actually raise the objection at issue).
b. Claim Not Explicitly Addressed by State Courts
Mr. Whitmore also objects both in his counseled objections and pro se objections that
Officer Johnson had previously testified at the December preliminary hearing that the firearm was
black, whereas he testified at trial that the firearm was silver. Doc. No. 9, at 5; Doc. No. 17, at
ECF 9, 23. This was a potential basis for impeachment of Officer Johnson that trial counsel did
not pursue.
The Superior Court did not address this specific argument, although Mr. Whitmore did
raise it in his briefing. Doc. No. 9-2, at ECF 4-5. When a state court rejects a federal claim
without explicitly addressing it, there is a rebuttable presumption that the claim was adjudicated
on the merits and exhausted for § 2254 purposes. Johnson y. Williams, 568 U.S. 289, 301 (2013).
15
Neither party contests this presumption, so the Court will analyze whether the Superior Court
properly rejected this argument.
In order to establish a Sixth Amendment claim of ineffective assistance of trial counsel,
the petitioner must show prejudice. Strickland, 466 U.S. at 687. Here, Mr. Whitmore argues that
the failure to impeach Officer Johnson prejudiced him because the firearm color discrepancy could
have reduced the credibility of Officer Johnson’s firearm identification. But, similar to his other
claims, impeaching Officer Johnson based on his preliminary hearing testimony risked opening
the door to prejudicial testimony regarding the November 23 shootout.
Rather than risking such prejudice, trial counsel actually pursued this strategy through the
two eyewitnesses: N.P. described the firearm as silver and J.C. described the firearm as black.
Compare Oct. 17, 2012 Trial Tr. at 58:4—5, with id, at 183:17-20. Trial counsel emphasized this
color discrepancy in closing argument. See Oct. 18, 2012 Trial Tr. at 104:8-25. The jury was able
to see the firearm itself and conclude whether these two descriptions were contradictory (e.g.,
whether the firearm could be described as both black and silver because it was a dark silver color
or dual-toned). The jury was also able to assess whether this color contradiction, if any, established
reasonable doubt about whether Mr. Whitmore was the shooter.
Additionally, the prosecution introduced the firearm as evidence through Detective
Hopkins, not Officer Johnson. Detective Hopkins was the person who actually recovered the
firearm from the bush at 4682 Hawthorne Street, and he testified that the silver firearm presented.
at the trial was the same firearm he recovered from the bush near Mr. Whitmore. Mr. Whitmore
does not call into question the chain of custedy for the firearm.
Therefore, Mr. Whitmore cannot show that failure to impeach Officer Johnson’s different
color descriptions of the firearm prejudiced him for an ineffective assistance of counsel claim. The
16
Court overrules this objection. The Court adopts the R&R as to this ineffective-assistance-of-
counsel claim and denies Mr. Whitmore’s petition for habeas on this basis.
3. Failure to Renew Request for a Firearm-Related Jury Instruction
Turning to his next ineffective-assistance-of-counsel claim, Mr. Whitmore argues that trial
counsel failed to renew a request he had already made to explain that it was not a proven fact that
the gun found in the bush belonged to Mr. Whitmore. Mr. Whitmore argues that trial counsel
failed to object to the following jury instruction on prior bad acts:
You have heard evidence tending to prove that the Defendant was guilty of an
offense for which he is not on trial here. I am speaking of the testimony to the effect
that the Defendant was dealing drugs, and that the Defendant was in possession of
a gun on a date over one month after this incident. Those are not on trial here. That
evidence is before you in this case for a limited purpose; that is for the purpose of
tending to show motive for the crime; that is, the drugs, and the identity of the
person who committed the crime; that is, the evidence of the gun.
Oct. 18, 2012 Trial Tr. at 196:1-16.
Mr. Whitmore argues that the jury instruction “implied that his possession of the alleged
murder weapon was a proven fact.” Whitmore I, 2019 WL 6999940, at *4. The Superior Court
rejected this claim because the trial court used the phrase “tending to prove,” and the broader
context showed it was clear that the jury’s role was to weigh the evidence and find the facts. id.
As a result, the Superior Court found that Mr. Whitmore’s counsel was not ineffective for failing
to raise a meritless objection. Jd.
The R&R recommended denying Mr. Whitmore’s claim under both prongs of the
Strickland analysis. First, Judge Lloret explained that the Superior Court’s conclusion did not
improperly interpret the facts of the case or contravene any Supreme Court precedent because
“counsel cannot be deemed ineffective for failing to raise a meritless objection to jury
instructions.” Doc. No. 8, at 25 (quoting Hetzel v. Lamas, 630 F. Supp. 2d 563, 573 (E.D. Pa.
2009)). Second, apart from any performance deficiency, the R&R also explained that Mr.
17
Whitmore could not show prejudice for purposes of Strickland because eyewitness testimony
identified him as the shooter regardless of the color of the firearm used. Mr. Whitmore’s counseled
objection reiterates the same arguments.
The Court agrees that Mr. Whitmore has failed to show that the Superior Court incorrectly
interpreted the facts or violated clear Supreme Court precedent in finding that trial counsel was
not ineffective for not renewing his request regarding the firearm jury instruction. As other courts
have noted, under the performance prong of Strickland, trial counsel typically cannot be faulted
for failure to object to use of model jury instructions because the model jury instructions actually
set the prevailing standard of reasonableness. See Smith v. McKee, 598 F.3d 374, 384 (7th Cir.
2010) (“Defense counsel did not act in an objectively unreasonable manner by not objecting to the
use of an applicable pattern jury instruction.”). Here, the use of “tending to prove” is part of
Pennsylvania Standard Jury Instruction 3.08 regarding prior bad acts. Pa. Suggested Standard Jury
Instructions (Crim.) § 3.08 (2019). The prior bad acts jury instruction was appropriate because
Mr. Whitmore was not on trial for the November 23 shootout. Plus, in addressing a petitioner’s
claim based on a similar jury instruction, the Court of Appeals has explained that “the language of
the instruction does not aggravate any prejudicial aspect of the testimony” because “[i]t does not
even refer to the details of the testimony” and properly explained “that the jury ought to use it for
a limited purpose.” Allison v. Superintendent Waymart SCI, 703 F. App’x 91, 100 (3d Cir. 2017).
Thus, this Court agrees that the Superior Court’s decision was neither contrary to nor an
unreasonable application of Strickland and also that the Superior Court’s decision was not an
unreasonable determination in light of the facts presented.
Therefore, the Court adopts the R&R and denies Mr. Whitmore’s ineffective-assistance-
of-counsel claim based on the firearm jury instruction.
18
4. Failure to Renew Objection to Admission of Firearm
Lastly, Mr. Whitmore argues that his trial counsel, who did object to the admission of the
firearm, failed to renew this objection based on the probative value relative to the potential for
prejudice. The Superior Court rejected this claim as a matter of Pennsylvania evidentiary law.
Whitmore IT, 2019 WL 6999940, at *5.
In his R&R, Judge Lloret recommended denying this habeas claim because “federal habeas
corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). The
only scenario in which a federal habeas court can consider a claim based on a state trial court’s
decision to admit evidence under state law rules of evidence is if “the error deprives a defendant
of fundamental fairness in his criminal trial.” Bisaccia v. Att’y Gen. of N.J., 623 F.2d 307, 312 (3d
Cir, 1980). This occurs only when the evidence is “excessively inflammatory” such that “the
evidence’s probative value is so conspicuously outweighed by its inflammatory content, so as to
violate a defendant’s constitutional right to a fair trial.” Lesko v. Owens, 881 F.2d 44, 52 Gd Cir.
1989).
The Superior Court found that the firearm had probative value because it was the alleged
murder weapon, and that the “close factual nexus” between the gun found by Mr, Whitmore and
the gun used in the homicide outweighed any potential for prejudice. Whitmore II, 2019 WL
6999940, at *5, Mr. Whitmore’s trial counsel pursued a theory that the firearm Mr. Whitmore
possessed was not the same firearm used in the Sliwinski shootings based on the ballistic expert’s
inability to definitively confirm a match, as well as the two boys’ conflicting accounts of the color
of the firearm wielded by Mr. Whitmore.
In the R&R, Judge Lloret recommended denying this claim because the Superior Court’s
resolution was neither contrary to nor an unreasonable application of clearly established federal
law. As explained in the R&R, even Mr. Whitmore’s habeas petition conceded that trial counsel
19
made “vigorous attempt[s] prior to and during the trial to exclude and/or minimize the impact of
the gun related evidence.” Doc. No. 8, at 30 (quoting Doc. No. 1, at 47). Thus, the R&R
concluded, like the Superior Court, that Mr. Whitmore’s trial counsel was not ineffective for failing
to renew objections that he previously made and that lacked arguable merit.
This Court agrees. Trial counsel cannot be found ineffective for not raising a meritless
objection. Werts, 228 F.3d at 203.
Now, Mr. Whitmore, through counsel, objects that “the gun was just as, if not more likely
Lucas’|s]” and should have been excluded on that basis as irrelevant evidence. Doc. No. 9, at 4.
But in his pro se objections, Mr. Whitmore criticizes his PCRA counsel for stating this, asserting
that the argument “that one could come to the conclusion that Kevin Lucas threw the gun in the
bushes and that the gun [Mr. Whitmore] was charged with... was more likely Lucas’ [gun]” was
a “crazy argument.” Doc. No. 17, at ECF 34. As noted by Mr. Whitmore, the police found two
guns at the scene: one on Mr. Lucas’s side of the street and one on Mr. Whitmore’s side.
In addition to Mr. Whitmore’s rejection of his own argument, the Court also notes that
none of Mr. Whitmore’s four firearm-based ineffective-assistance-of-counsel claims implicate the
eyewitness testimony from two eyewitnesses. Thus, besides failing to demonstrate that the state
court’s assessment of his ineffective-assistance-of-counsel claims was either contrary to or an
unreasonable application of clearly established Supreme Court precedent, Mr, Whitmore has failed
to show that “but for counsel’s [purported] errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In other words, none of his firearm-related ineffective-
assistance-of-counsel claims demonstrate that he suffered any prejudice.
Thus, the Court adopts the R&R as to Mr. Whitmore’s firearm-related ineffective-
assistance-of-counsei claims.
20
IL. Mr. Whitmore’s Claim Based on the Prosecutor’s Comments Lacks Merit
Mr. Whitmore also asserts that his trial counsel was ineffective for failing to object to the
comments made by the prosecutor during his closing argument and that the comments constituted
prosecutorial misconduct. Mr. Whitmore takes issue with the prosecutor’s comments about the
testifying witnesses’ fears in closing argument:
They survive in that fear. They make every moment of every day what they can, an
eleven-year-old and twelve-year-old, sitting in a little grassy area, talking about
movies, being kids, and no matter what this neighborhood is, or was, or will be, it
will never take that away from them.
[N.P.] knows [Mr. Whitmore]. He knows him. Two feet away from him, no
mistakes. [J.C.], he knows him. [J.C.] came in here and talked to you about fear.
He sat here and said: ‘I am not afraid,’ but he is afraid for his family. He wasn’t
relocated. He is afraid for them.
Counsel talked about how he was at Homicide, and with the protection of the
Homicide Detective, he felt safe and secure. Yes, that’s a lot different than sitting
here, and looking at [Mr. Whitmore], and seeing his family, people that maybe he
recognizes from the neighborhood, people he knows his family is going to
encounter in the neighborhood.
Oct. 18, 2012 Trial Tr. at 118:8-16, 135:3--9, 135:18-136:3.
As Mr. Whitmore concedes, his trial counsel did object to the fear-related comments during
closing arguments. Doc. No. 1, at ECF 49. The trial court overruled this objection. Oct. 18, 2012
Trial Tr. at 136:4-6.'° Counsel cannot be found ineffective for failure to object where they did in
fact raise the objection. United States v. Hampton, No. 15-cr-302, 2021 WL 1088289, at *9 □□□□
Pa. Mar. 22, 2021), certificate of appealability denied, No. 21-1772, 2021 WL 8154937 (Gd Cir.
Aug. 30, 2021).
Mr. Whitmore also argues that the prosecutor’s statements constituted prosecutorial
misconduct. Specifically, he asserts that there was no evidence that Mr. Whitmore or anyone
10 Mr, Whitmore argues in the alternative that his direct appeal counsel was ineffective for not pursuing
this claim. Doc, No. 1, at ECF 49-51. However, the PCRA court addressed this claim.
21
acting on his behalf made threats against the witnesses. Doc. No. 1, at 48-49. The Commonwealth
counters by citing several instances during the trial when witnesses testified that they were afraid
for themselves or their family members. Doc. No. 7, at 21-22. The Superior Court rejected this
claim on PCRA review, explaining that “it is permissible for the prosecutor to summarize the
evidence and offer reasonable deductions and inferences therefrom” and “the Commonwealth’s
statements during closing argument. . . were provoked by defense counsel’s summation.”
Whitmore II, 2019 WL 6999940, at *5 (citing Commonwealth v. Thomas, 54 A.3d 332, 338 (Pa.
2012)). The Superior Court found that the prosecutor’s “argument was reasonably inferred from
the witness’s mother’s testimony that she feared for her son’s safety due to his involvement in the
case.” Id.
The R&R also explained that even if this claim did have merit (which it does not), “federal
habeas corpus relief does not lie for errors of state law.” Estelle, 502 U.S, at 67-68. As the R&R
noted, “the Pennsylvania Superior Court decision in this case cited only to state court cases
discussing the issue of whether the prosecutor’s argument was appropriate under state law.” Doc.
No. 8, at 34. In Mr. Whitmore’s objections, he argues that he presented a federal law claim because
the ineffective assistance of counsel argument relates to the Sixth Amendment. Doc, No, 9, at 14.
But this does not address the prosecutorial misconduct claim alleging denial of a fair trial!
Regardless, the R&R properly concluded that Mr. Whitmore fails to show that the prosecutor’s
comments “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of
't Judge Lloret noted in the R&R that he did not have access to Mr. Whitmore’s PCRA brief to know
whether he “fairly presented” federal case law in arguing this claim to the state court. In his counseled
objections, Mr. Whitmore introduces his PCRA brief and argues that the “state case law cited in support of
being denied a fair trial relies on and discusses federal constitutional law.” Doc. No. 9, at 14. Although
this may just barely satisfy the exhaustion requirement, see McCandless v. Vaughn, 172 F.3d 255, 261 Gd
Cir. 1999), Judge Lloret assumed that the PCRA briefing had raised a federal claim for the sake of his
analysis.
22
due process.” Doc. No. 8, at 35 (quoting Greer y. Miller, 483 U.S. 756, 765 (1987)). The Superior
Court’s conclusion that the prosecutor made reasonable inferences during closing argument
reasonably determined the facts and applied Supreme Court law.
Thus, the Court dismisses Mr. Whitmore’s habeas petition on the basis of his prosecutorial
misconduct claim.
HW. Mr. Whitmore’s Cumulative Error Claim Lacks Merit
Next, Mr. Whitmore argues that his trial counsel’s cumulative ineffectiveness undermined
the fundamental fairness of his trial, This claim was properly exhausted because Mr. Whitmore
raised it in the PCRA proceedings. Whitmore II, 2019 WL 6999940, at *6. But the Superior Court
found that his ineffective-assistance-of-counsel claims failed individually and did not amount to
anything more collectively. Jd. In other words, the whole is not greater than the sum of its parts.
As the R&R explained, a cumulative error claim “aggregates all the errors that individually
have been found to be harmless and therefore not reversible” for a determination as to whether all
errors taken together created prejudice. Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007)
(internal quotation marks omitted). To prevail on the claim, a petitioner must establish “actual
prejudice,” such that the claims of trial error taken together had “a substantial and injurious effect
or influence in determining the jury’s verdict.” fd.
The R&R. concluded that the alleged errors do not “add up to an unreliable verdict.”
R. & R. at 37. The Court agrees because nowhere does Mr. Whitmore undermine the testimony
of the two eyewitnesses, who both knew Mr. Whitmore. Doc. No. 8, at 37, Mr. Whitmore’s
objections only repeat his same previous arguments. Doc. No. 9, at 15.
The Court adopts the R&R and denies Mr. Whitmore’s habeas petition based on his
cumulative error claim.
23
IV. Mr. Whitmore’s Sufficiency of the Evidence Claim Lacks Merit
Lastly, Mr. Whitmore’s habeas petition repeats the claim from his direct appeal that there
was insufficient evidence of specific intent to support his conviction for first-degree murder. Doc.
No. 1, at ECF 53. On direct appeal, the Superior Court found that there was sufficient evidence
of specific intent because the evidence showed that Mr. Whitmore has sufficient time to fashion a
conscious purpose to kill after he brandished his firearm and Mr. Whitmore shot Mr. Sliwinski in
the face. Whitmore I, 2014 WL 10885748, at *3. The Superior Court also found that Mr.
Whitmore’s “use of a deadly weapon upon a vital part of the decedent’s body, i.e., his head,
supplie[d] the requisite intent and malice.” Id.
Mr, Whitmore argues that the state court ruling was based on an unreasonable
determination of the facts, in violation of his due process rights. Specifically, Mr. Whitmore takes
issue with whether N.P.’s testimony consistently established that he saw money exchange hands
in a drug deal, Doc. No. 1, at ECF 55-61. He also asserts that “[pJeople argue without forming a
specific intent to kill all the time.” Jd at ECF 60. As to the use of the gun on Mr. Sliwinski’s
head, Mr. Whitmore argues that N.P. testified that he saw Mr. Whitmore stumble, which, according
to Mr. Whitmore, “shows that the shots were fired ‘wild’” without aim “as [Mr. Whitmore] fought
to steady himself and remain upright.” /d at ECY 60.
The R&R concluded that the Superior Court’s decision on appeal was neither contrary to
nor an unreasonable application on clearly established federal law. Instead, the R&R explained
that Mr. Whitmore’s argument was an improper sufficiency-of-the-evidence claim because each
of Mr. Whitmore’s arguments would require viewing the evidence in the light most favorable to
Mr. Whitmore rather than the prosecution, which is the converse of the standard. As the R&R
correctly explained, “the relevant question is whether, afler viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
24
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
added). Pennsylvania law permits the jury to infer the specific intent to kill based on the use of a
deadly weapon on a vital part of the body. See Whitmore J, 2014 WL 10885748, at *2 (citing
Commonwealth v. Padilla, 80 A.3d 1238, 1244 (Pa. 2013)). Because the evidence introduced at
trial showed that Mr. Whitmore shot Mr. Sliwisnki in the head, there was sufficient evidence for a
reasonable jury to infer that Mr. Whitmore had the requisite specific intent to kill so as to be guilty
of first-degree murder under Pennsylvania law.
Mr. Whitmore objects that “{t]here was no evidence presented that [he] aimed for a vital
part of the body.” Doc. No. 9, at 16. But, under Pennsylvania law, such evidence is not necessary
to establish specific intent. See Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975) (“The
firing of a bullet in the general area in which vital organs are located can in and of itself be
sufficient to prove specific intent to kill beyond a reasonable doubt.”).
The Court adopts the R&R as to the sufficiency of the evidence claim and denies Mr.
Whitmore’s habeas petition on this claim.
Vz Mr. Whitmore’s New Claims Are Procedurally Defaulted
Mr. Whitmore also attempts to raise four new habeas claims in his October 2021 pro se
objections. Mr. Whitmore’s pro se claims are based on PCRA counsel’s purported failure to raise
ineffective-assistance-of-counsel claims about trial counsel’s failure to: (1) request judicial notice
of the fact that prior firearm charges were withdrawn; (2) object and ask for a mistrial related to
Officer Johnson’s purportedly “perjured testimony” about the discovery of the firearm; and (3)
call two other police officers from the firearm arrest to counter Officer Johnson’s purportedly false
testimony, as well as an ineffective-assistance-of-counsel claim about (4) PCRA counsel’s failure
25
to obtain more evidence of his trial counsel’s awareness of Officer Johnson’s animus toward Mr.
Whitmore. Doc. No. 17, at 15, 20-25."
A habeas petitioner cannot raise arguments for the first time in objections to an R&R. See,
e.g., Hawes v. Mahalley, No. 17-5316, 2020 WL 1508267, at *10 (E.D. Pa. Mar. 30,
2020) (collecting cases). To add such claims would typically require leave to amend the habeas
petition. Mr. Whitmore has not sought leave to amend. These new claims are also improper
because they are untimely and procedurally defaulted. A state prisoner must exhaust his claims in
state court before presenting them for habeas review. 28 U.S.C. § 2254(b)(1)(A). Mr. Whitmore
has not presented these claims to any state courts and he would now be time-barred from doing
so.3 Ifa state procedural rule would prevent the prisoner’s claim from being heard on the merits,
this Court cannot “consider claims that a state court refused to hear based on an adequate and
independent state procedural ground.” Davila v, Davis, 1378. Ct. 2058, 2062 (2017).
The Supreme Court has established an exception to default, however, where the petitioner
shows that the procedural default of an ineffective-assistance-of-trial-counsel-claim was based on
appellate counsel’s ineffectiveness and the underlying ineffective-assistance-of-counsel claim is a
“substantial one.” Martinez v. Ryan, 566 U.S. 1, 14 (2012). A “substantia!” claim is one that “has
some merit.” Jd. Mr. Whitmore argues in conclusory fashion that this Court should consider these
new claims on their merits because his procedural default should be excused under the Martinez
12 Mr. Whitmore also argues that his trial counsel was ineffective for failing to move to strike the evidence
of the firearm. But this simply repackages the fourth firearm-related objection based on admission of the
firearm. The Court finds that this claim has already been addressed by the state courts, and that it lacks any
merit for the same reasons discussed above.
'3 The Pennsylvania Post Conviction Relief Act requires a petitioner to file their PCRA petition within one
year of the date the judgment becomes final. See 42 Pa. C.S. 9545(b). Mr. Whitmore’s judgment became
final on March 17, 2015, when the Pennsylvania Supreme Court denied allowance of his direct appeal. Dkt.
No, CP-51-CR-0007422-2011, at 11. If Mr. Whitmore attempted to return to state court to assert these new
claims for collateral review, he would be time-barred from doing so after March 17, 2016.
26
exception because his PCRA counsel was ineffective. Doc. No. 17, at ECF 25. But Martinez does
not provide him relief from his procedural defauit because Mr. Whitmore’s new claims lack merit.
The Court will analyze each of Mr. Whitmore’s untimely claims in turn.
A. Trial Counsel’s Failure to Request Judicial Notice of Withdrawal of Prior Firearm
Charges
Mr. Whitmore argues that his trial counsel was ineffective in failing to request judicial
notice of the fact that the firearm possession charge from his November arrest was withdrawn.
According to Mr. Whitmore, his trial counsel could have used this to argue that “the
Commonwealth itself didn’t even believe that there was enough evidence to show that I possessed
that .45 pistol.” Doc. No. 17, at ECF 21-22.
The Court begins with the presumption that counsel’s conduct was part of a sound strategy,
which “may only be rebutted through a showing that no sound strategy .. . could have supported
the conduct.” Thomas v. Varner, 428 F.3d 491, 500 Gd Cir. 2005). Here, trial counsel’s strategy
was to prevent information about the Lucas case from entering Mr. Whitmore’s murder trial. As
the trial court noted in explaining its reasoning for excluding other information about Mr.
Whitmore’s firearm-related arrest, the trial court kept out this information to avoid prejudice to
Mr, Whitmore.
Had trial counsel sought judicial notice of the fact that the charges were withdrawn, this
would have opened the door to the prosecutor presenting evidence as to why the charges were
withdrawn—namely, Mr. Lucas’s recantation. And as the PCRA court noted, trial counsel worked
to keep out the surrounding circumstances such as the “highly prejudicial” evidence that Mr.
Whitmore shot at Mr. Lucas two months after the Swilisnki shootings. Aug. 21, 2018 PCRA Tr.
at 5:24-6:4,
27
Trial counsel developed evidence that the firearm found in the bush could have belonged
to someone else in the high-crime neighborhood. Based on the risk of prejudice from opening the
door to the events of the November arrest, Mr. Whitmore fails to overcome the presumption that
trial counsel’s strategy was sound. Thus, Mr. Whitmore’s claim on this issue fails under both
prongs of Martinez because he has failed to show that his PCRA counsel was ineffective for failing
fo pursue a meritless ineffective-assistance-of-trial-counsel claim on collateral review and he has
not established that his underlying ineffective-assistance-of-trial-counsel claim is a “substantial”
one. Therefore, Mr. Whitmore procedurally defaulted this claim.
B. Trial Counsel’s Failure to Object and to Request Mistrial for Officer Johnson’s
“Perjured”’ Testimony
Next, Mr. Whitmore claims that his trial counsel should have objected to certain statements
made by Officer Johnson and ask for a mistrial based on his purported “perjured testimony.” Doc.
No. 17, at ECF 22. Specifically, Mr. Whitmore asserts that Officer Johnson testified “that it was
information that he received from other officers that caused him to go specifically to 4682
Hawthorne St.” and that this testimony “led the jury to believe that some other officers led Officer]
Johnson to 4682 Hawthorne St., where it was just [Mr. Whitmore] there stand]ing] some feet away
from the bushes where this gun was found.” Jd. at ECF 23. He also frames this as a prosecutorial
misconduct claim. According to Mr. Whitmore, the prosecutor committed “prosecutorial
misconduct when it knowingly elicited perjured testimony from the officer who claimed he was
the one who discovered the gun presented at trial.” Id. at ECF 22-23. Mr, Whitmore asserts,
without any basis, that the “jury was intentionally lied to and misled by the Commonwealth” and
that this violated his due process rights. Jd.
However, Officer Johnson correctly testified that he went to the location based on
information that he received from other officers because, as he testified at the preliminary hearing
28
related to the November arrest, he was responding to a back-up call from Officer Galiczysnki.
Doc. No. 7-3, Dec. 10, 2010 Prelim, H’rng Tr. at 14:19-15:10. Although Mr. Whitmore frames
the prosecutor’s questioning as intentionally misleading the jury, any more specificity about who
directed Officer Johnson to which portion of the 4600 block of Hawthorne Street at each point in
time, and the fact that a crowd was fleeing, would have required testimony about the shootout with
Mr. Lucas and Mr. Lucas’s subsequent recantation. The trial court kept out such testimony for
Mr. Whitmore’s benefit based on the risk of prejudice. Thus, trial counsel did not object to Officer
Johnson’s statements. Again, Mr. Whitmore fails to overcome the presumption that trial counsel’s
strategy was sound.
Based on this Court’s review of the record, Mr. Whitmore’s additional ineffective-
assistance-of-counsel and prosecutorial misconduct claims based on Officer Johnson’s testimony
lack merit and thus, are procedurally defaulted.
C. Trial Counsel’s Failure to Call Other Officers to Testify
Mr. Whitmore also argues that his trial counsel was ineffective because he failed to call
two other police officers, Officers Hosjood and Galiczynski, to testify about the scene where the
firearm was recovered and how the firearm was found. Mr. Whitmore argues that these two
officers would have testified “that there was a large crowd of people running from the scene where
Kevin Lucas [and him] were located, which is totally opposite of what Off[icer] Johnson and the
Commonwealth had the jury believe.” Doc. No, 17, at ECF 24-25. According to Mr. Whitmore,
his trial counsel should have called these officers to develop the theory that someone from the
dispersing crowd threw the firearm into the bushes.
But again, this strategy would have opened the door to the prejudicial testimony regarding
why the crowd was fleeing: the gunshots, Officer Johnson’s testimony was limited so that he did
not testify that he was specifically providing backup to Officer Galiczysnki because of gunshots.
29
And Officer Galiczysnki testified at the December preliminary hearing that, unlike the dispersing
crowd running from the sound of the gunshots, Mr. Lucas and Mr. Whitmore remained on opposite
sides of the street, near where a firearm was found on each side. See Doc. No. 7-3, Dec. 10, 2010
Prelim. H’mg Tr. at 7:4-8:18. The trial court correctly found that Mr. Whitmore would be
prejudiced by the admission of testimony regarding a shootout in November that was unrelated to
the shootings at issue in the murder trial and, thus, precluded such testimony. It was a reasonable
strategy for trial counsel not to call other officers to introduce prejudicial testimony. Because Mr.
Whitmore’s claim lacks merit, he has not met the Martinez standard to overcome his procedural
default.
D. PCRA Counsel’s Failure to Obtain Evidence of his Trial Counsel’s Awareness of
Officer Johnson’s Animus
Lastly, Mr. Whitmore claims that his PCRA counsel should have obtained more evidence
of his trial counsel’s awareness of Officer Johnson’s animus toward Mr. Whitmore to support his
affidavit, which the Superior Court viewed as self-serving. Doc. No. 17, at ECF 15. Mr. Whitmore
argues that his PCRA counsel should have talked to his trial counsel to obtain evidence about trial
counsel’s awareness of the animus between Mr. Whitmore and Officer Johnson. Doc. No. 17, at
15. But, upon independent review of the record, the Court finds that the Superior Court reasonably
interpreted the facts when it concluded that trial counsel! was not aware of this animus for the
reasons discussed above.
In any case, trial counsel’s concern about opening the door to prior bad act evidence was
sound trial strategy. Indeed, the prosecutor confirmed at side bar that Officer Johnson had arrested
Mr. Whitmore, regardless of whether trial counsel was already aware of this. Oct. 16, 2012 Trial
Tr. at 128:15-128:20. Because the PCRA failure-to-investigate claim does not have merit, Mr.
Whitmore cannot overcome the procedural default.
30
Thus, the Court denies Mr. Whitmore leave to amend his petition to assert the four new
ineffective-assistance-of-counsel claims because they are procedurally barred and meritless.
CONCLUSION
Having considered Judge Lloret’s Report and Recommendation and Mr, Whitmore’s
counseled and pro se objections to it, the Court adopts the Report and Recommendation and denies
Mr. Whitmore’s petition for habeas corpus. Because reasonable jurists would not “find it
debatable” that each of Mr. Whitmore’s claims lack merit, the Court will not issue a certificate of
appealability. Slack v. McDaniel, 529 U.S. 473, 478 (2000). An appropriate order follows.
BY THE COURT:
GENE PRATTER
UNITED STATES DISTRICT JUDGE
31