Kuhn v. Gillmore

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL A. KUHN, :

Petitioner : CIVIL ACTION NO. 3:15-0015

v. : (JUDGE MANNION)

ROBERT GILLMORE, et al., :

Respondents :

MEMORANDUM

Petitioner, Michael A. Kuhn, an inmate confined in the Greene State

Correctional Institution, Waynesburg, Pennsylvania, filed the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He

challenges his conviction and sentence imposed in the Court of Common

Pleas of Centre County. Id. The petition is ripe for disposition. For the

reasons outlined below, the petition will be denied.

I. Factual and Procedural Background

The facts underlying Kuhn’s conviction are contained in the trial court’s

March 20, 2010 Opinion in response to matters complained of on appeal.

(Doc. 17-4 at 202). These facts are as follows:

In the early hours of July 4, 2007, Lisa Hundley returned home

to her second floor apartment located on 164 East McCormick

Avenue in downtown State College. Ms. Hundley had been out

with her friends that night and left the fire escape door open to

let in some fresh air. Her sleep was cut short by a man who stood

over her and growled, “Don’t fuckin’ move. I’m going to rob you.

I have a knife.” The man pushed Ms. Hundley’s face down on the

mattress and tied both her hands behind her head with tape and

electrical cord he severed from a nearby nightstand lamp. When

he was done securing Ms. Hundley’s arms he tied her ankles

together so that she could not move. Lying face down on the

mattress Ms. Hundley noticed for the first time that her pillow and

mattress had blood on them while the back of her head felt warm

and sticky. She could hear the man roaming her apartment while

speaking causally about what he was going to take. Ms. Hundley

pleaded with the man to take what he needed and to leave her

alone.

As she was pleading and crying the man came back into the

bedroom, pulled off the comforter covering Ms. Hundley and

asked, “Are you naked under there?” “Can I get a feel?” The man

inserted his fingers into her vagina. Ms. Hundley was able to

convince the man that she had to use the bathroom. The man

agreed to let her use the bathroom but refused to untie her. As

Lisa Hundley hobbled towards the bathroom she looked at the

man and saw his face. He appeared to be in his mid to late

twenties. He was white, dark brown hair, slight build and a

goatee. He was wearing wire-rim glasses, dark shirt, and a

baseball hat on backwards. Of particular importance were his

teeth. Ms. Hundley testified that his teeth were misshapen, and

yellow, crooked and it looked like some were missing. Ms.

Hundley’s description of the man’s teeth would later lead to Mr.

Kuhn’s arrest and the matching of his DNA which was collected

from Ms. Hundley after a rape kit was taken.

After Lisa Hundley finished in the bathroom Mr. Kuhn followed

her back to her bed and pushed her into the same position she

had been in and raped her. After raping Ms. Hundley, Mr. Kuhn

got up from the bed and started pacing the rooms of the

apartment saying, “What to steal? What to steal?” Ms. Hundley

testified that Mr. Kuhn repeated this behavior, raping her three

times by penetrating her vagina with his penis and also once

penetrating her anus with his penis. Before each rape Mr. Kuhn

would remove the cord around her legs and then retie the cord

when he was finished. He also checked to make sure her hands

were still tightly bound.

After the final rape Ms. Hundley was blindfolded with her own

shirt. Ms. Hundley was able to hear Mr. Kuhn rummaging through

a bag of metal tools he had brought with him. As Ms. Hundley

was face down on her mattress, with her hands bound and

unable to protect herself, Mr. Kuhn approached the bed and told

her, “Don’t fucking move, bitch.” Mr. Kuhn then struck Ms.

Hundley’s skull four or five times with what Ms. Hundley testified

felt like a steal two-by-four. When she regained consciousness,

she awoke in a puddle of her own blood which had saturated the

mattress to the point that it had started to pool. Ms. Hundley was

able to untie herself and get to her neighbor’s apartment and call

the police.

Id.

The following procedural background has been set forth in the

Pennsylvania Superior Court’s April 30, 2014, Memorandum Opinion,

affirming the denial of Petitioner’s Post Conviction Relief Act petition:

Following a jury trial on June 26, 2009, Kuhn was convicted of

criminal attempt – murder of the first degree, rape, involuntary

deviate sexual intercourse, burglary, aggravated assault,

terroristic threats, and false imprisonment. Kuhn was

subsequently sentenced on September 17, 2009, to an

aggregate term of 48 to 96 years’ imprisonment. Kuhn appealed

his judgment of sentence, which was affirmed by this Court on

December 20, 2010. Kuhn’s petition for allowance of appeal to

the Pennsylvania Supreme Court was denied on June 22, 2011.

On March 16, 2012, Kuhn filed a pro se PCRA petition. The

PCRA court appointed counsel and counsel then filed an

amended PCRA petition. Thereafter, PCRA counsel filed a

petition for leave to withdraw and a “no-merit” brief pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988)(en banc).

After review of the “no-merit” brief, on June 6, 2013, the PCRA

court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to

dismiss Kuhn’s petition without a hearing. On that same date, the

PCRA court issued an order granting counsel’s petition to

withdraw.

Kuhn filed a response to the PCRA court’s Rule 907 notice. The

PCRA court subsequently dismissed Kuhn’s petition without a

hearing. This pro se appeal followed.

Kuhn raises the following issues for our review:

A. WHETHER THE LOWER COURT ERRED IN GRANTING

APPELLANT’S PRIOR PCRA COUNSEL LEAVE TO

WITHDRAW?

B. WHETHER THE LOWER COURT FAILED TO

APPROPRIATELY CONSIDER APPELLANT’S ISSUES

WHEN IT CONDUCTED ITS “INDEPENDENT REVIEW”

AND ALSO FOLLOWING APPELLANT’S PRO SE

RESPONSE TO THE COURTS NOTICE TO DISMISS?1

C. WHETHER THE LOWER COURT ERRED IN

DETERMINING THAT APPELLANT WAS NOT ENTITLED

TO RELIEF WITH REGARDS TO TRIAL COUNSEL’S

INEFFECTIVENESS?

D. WHETHER THE LOWER COURT ERRED IN

DETERMINING THAT APPELLANT’S SUPPRESSION

1 We can summarily dispose of this issue. In rendering its decision, the PCRA court,

conducted an independent review of Kuhn’s issues. It reviewed the entirety of the certified

record, including Kuhn’s PCRA petition, PCRA counsel’s no-merit brief, and Kuhn’s

responses filed thereto. See Order, 7/16/13. As such, this issue clearly lacks arguable

merit.

(footnote continued on next page)

ISSUES WERE NOT ENTITLED TO POST-CONVICTION

RELIEF?2

(Doc. 17-4 at 315-317, Pennsylvania Superior Court Memorandum Opinion).

On April 30, 2014, the Pennsylvania Superior Court affirmed the PCRA

court’s order dismissing Kuhn’s PCRA petition, finding that Kuhn’s issues

unmistakably lacked arguable merit. Id.

On January 6, 2015, Petitioner filed the instant petition for writ of

habeas corpus, in which he raises the following four issues for review:

1. Trial counsel was ineffective for failing to secure and/or utilize

a DNA expert during trial.

2. Trial counsel was ineffective for failing to order sentencing

transcripts from lower court on direct appeal, so appellate

court could not hear issue of excessive sentence on appeal.

3. Violation of Petitioner’s Fourth Amendment right against

illegal seizure when Petitioner’s illegal arrest in companion

case was used to hold him to investigate the instant case.

4. Trial counsel was ineffective for failing to object to Detective

Aston’s testimony during trial.

(Doc. 1, petition).

2 Kuhn’s suppression issue has been previously litigated and, as such, it is not eligible for

review under the PCRA. See 42 Pa.Cons.Stat.Ann. §9544(a)(2). On direct appeal, this

Court reviewed the propriety of the trial court’s denial of Kuhn’s suppression motion and

aptly determined that the police had sufficient probable cause to arrest Kuhn. See

Commonwealth v. Kuhn, 23 A.3d 587 (Pa. Super. 2010)(unpublished memorandum).

II. Legal Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. §2254 is the proper

mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). 28 U.S.C.

§2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States

....

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the 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. Section 2254 sets limits on the power of a federal court to

grant an application for a writ of habeas corpus on behalf of a state prisoner.

Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d

402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed

by a state prisoner only “on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a).

This limitation places a high threshold on the courts. Typically, habeas relief

will only be granted to state prisoners in those instances where the conduct

of state proceedings resulted in “a fundamental defect which inherently

results in a complete miscarriage of justice [or] an omission inconsistent with

the rudimentary demands of fair procedure.” Reed v. Farley, 512 U.S. 339,

348 (1994) (citations omitted).

Kuhn’s case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996

(“AEDPA”).

III. Discussion

Under the AEDPA, federal courts reviewing a state prisoner’s

application for a writ of habeas corpus may not grant relief “with respect to

any claim that was adjudicated on the merits in State court proceedings”

unless 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).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas

relief functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction,” Greene v. Fisher,

565 U.S. 34, 38 (2011) (internal quotations and citations omitted), “[t]his is a

difficult to meet and highly deferential standard . . . which demands that state-

court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181

(internal quotation marks and citation omitted). The burden is on petitioner

to prove entitlement to the writ. Id.

Under 28 U.S.C. §2254(d)(1), a decision is “contrary to” federal law if

“the state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court] precedent.”

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The test for §2254(d)(1)’s

“unreasonable application of” clause is as follows: “[a]n ‘unreasonable

application’ occurs when a state court ‘identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts’ of petitioner’s case.” Rompilla v. Beard, 545 U.S. 374,

380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520 (2003)). “It is

not enough that a federal habeas court, in its independent review of the legal

question, is left with a firm conviction that the state court was erroneous.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal quotations omitted).

“Under §2254(d)(1)’s ‘unreasonable application’ clause ... a federal habeas

court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 75–76 (quoting

Williams, 529 U.S. at 411). Rather, “[t]he state court’s application of clearly

established law must be objectively unreasonable” before a federal court

may grant the writ. Andrade, 538 U.S. at 75.

The test for §2254(d)(2)’s “unreasonable determination of facts” clause

is whether the petitioner has demonstrated by “clear and convincing

evidence,” §2254(e)(1), that the state court’s determination of the facts was

unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338–

339 (2006) (“State-court factual findings, moreover, are presumed correct;

the petitioner has the burden of rebutting the presumption by ‘clear and

convincing evidence.’ ”) (quoting §2254(e)(1)) (citing Miller–El v. Dretke, 545

U.S. 231, 240, (2005)). Importantly, the evidence against which a federal

court measures the reasonableness of the state court’s factual findings is the

record evidence at the time of the state court’s adjudication. Cullen, 563 U.S

at 185.

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by

an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual issue shall be

presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§2254(e)(1).

Petitioner’s first three claims are based on trial counsel’s alleged

ineffectiveness and have been fully adjudicated on the merits during the state

court proceedings.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

explained that there are two components to demonstrating a violation of the

right to effective assistance of counsel. First, the petitioner must show that

counsel’s performance was deficient. This requires showing that “counsel’s

representation fell below an objective standard of reasonableness.” See id.

at 688; see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). Second,

under Strickland, the petitioner must show that he was prejudiced by the

deficient performance. “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.” Strickland, 466 U.S. at 687. To establish prejudice, the defendant

“must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” See id. at 694. The Strickland test is conjunctive and a

habeas petitioner must establish both the deficiency in the performance

prong and the prejudice prong. See Strickland, 466 U.S. at 687; Dooley v.

Petsock, 816 F.2d 885, 889 (3d Cir. 1987). As a result, if a petitioner fails on

either prong, he loses. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000) (“Because both parts of the test must be satisfied in order to show

a violation of the Sixth Amendment, the court need not address the

performance prong if the defendant cannot meet the prejudice prong, or vice

versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.

1999) (“This court may address the performance and prejudice components

in any order, but need not address both if Mr. Foster fails to make a sufficient

showing of one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly

established Federal law’ ” for purposes of the AEDPA. See Rainey v. Varner,

603 F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362,

391 (2000)). Therefore, under §2254(d)(1), the relevant inquiry in assessing

ineffectiveness claims that have been adjudicated on the merits is whether

the state court’s decision involved an unreasonable application of Strickland

or are based on an unreasonable determination of the facts. See Jacobs v.

Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005). Moreover, Pennsylvania’s three-

pronged test for ineffective assistance claims, see Commonwealth v Pierce,

515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not contrary to Strickland,

see Jacobs, 395 F.3d at 107 n.9.

A. “Trial counsel was ineffective for failing to secure and/or

utilize a DNA expert during trial.”

Petitioner claims that the trial court provided funds to hire a DNA

expert, and that “first counsel found an expert to help prepare the defense”3,

however, “when trial counsel took over, he was made aware of said expert”

and “trial counsel never spoke/used this expert.”4 (Doc. 1 at 5). Specifically,

3 In support of this, Petitioner relies on a May 19, 2014 letter from the Centre County

Chief Public Defender explaining that his case was being reassigned from Attorney

McGraw to Attorney Blanarik and that in going through Attorney McGraw’s notes and

calendar, he determined that on July 31, 2008, Attorney McGraw met with a Dr. Holland

from Penn State at his office to discuss the PSP Lab results of the DNA testing and

Attorney McGraw made the following note:

7-31-08 – met w/Dr. Mitchell Holland @ PSU – DNA is not exact

match, however, most likely due to abundance of caution @ PSP

lab – need raw data from lab.

(Doc. 21 at 56).

4 The Court notes that although Petitioner was initially represented by Attorney Sean P.

McGraw, once Mr. McGraw was no longer employed as a public defender, Petitioner’s

(footnote continued on next page)

he claims “[a] DNA expert would have helped Petitioner’s defense

preparation and testimony of things which were never brought up at trial such

as:

1) Why the Pennsylvania State Police DNA Report states

‘Genetic locus D13S317 was inconclusive due to an

insufficient amount of DNA’ or why ‘Genetic loci D13S317 and

Amelogenin were not used in the statistical calculations?5

2) Sperm degradation. At trial testimony was given that sperm

degrades after 26 hours (the head detached from the tail)(see

Trial Transcripts (T.T.), 6/25/09, pg. 335). So how could a

case was turned over to Attorney Edward S. Blanarik on September 10, 2008. (Doc. 21

at 56).

5 The portion of the DNA report that Petitioner challenges reads as follows:

The DNA profile obtained from the sperm fraction of the rectal swabs

(H07-07387-2, Item Q1M) is consistent with a mixture. Lisa Hundley

(H07-07387-2, Item K1) and Michael Kuhn (Item K3) cannot be

excluded as contributors to this DNA mixture profile in genetic loci

CSF1PO, D3S1358, D5S818, D7S820, D8S1179, D16S539, D18S51,

D21S11, FGA, Penta D, Penta E, TH01, TPOX, vWA, and Amelogenin.

Genetic locus D13S317 was inconclusive due to an insufficient amount

of DNA.

This combination of DNA types is 1 in 177 trillion more likely to have

originated from Lisa Hundley (H07-07387-2, Item K1) and Michael Kuhn

(Item K3) than from Lisa Hundley (H07-07387-2, Item K1) and another

individual in the unrelated Caucasian population; 1 in 3.8 quadrillion

times more likely than another individual in the unrelated African

American population; and 1 in 490 trillion times more likely than another

individual in the unrelated Hispanic population.

Genetic loci D13S317 and Amelogenin were not used in the statistical

calculations.

(Doc. 21 at 59).

sample taken within a few hours of the incident only have a

few sperm with tails?

3) Or how the characteristics in a body fluid mixture used by the

Commonwealth’s expert at trial to narrow the donor

population could have come from the victim which, was part

of the mixture, and thus be incorrectly used to suggest that

Petitioner was part of a donor population such as had

happened in Miller v. Anderson, 162 F. Supp.2d 1057 (D.C.

7th Cir. 2000), vac’d on other grounds, 255 F.3d 455 (7th Cir.

2001).”

(Doc. 21 at 13). Thus, Petitioner concludes that his due process was violated

when he was denied his right to an expert at his trial. Id.

In his No Merit Brief, addressed to the PCRA court, Petitioner’s PCRA

counsel claims that although funds were secured from the Court to enlist the

services of a DNA expert for the defense, trial counsel did not call such an

expert. (Doc. 17-4 at 222). He states that due to trial counsel’s unexpected

death, PCRA counsel was unable to consult with him. (Doc. 17-4 at 226).

However, PCRA counsel did have conversations with attendees of a DNA

evidence seminar, in an attempt to secure an expert, and was unable to find

an expert that would be willing to rebut the claims of those called by the

Commonwealth at trial, as the overwhelming response was that it would have

been a fruitless endeavor and thus, the decision not to call an expert was a

trial strategy on the part of trial counsel. Id.

By Order dated July 16, 2013, the PCRA court , after a thorough review

of the record and finding no genuine issues of fact, found that Petitioner was

not entitled to post-conviction relief and dismissed the PCRA petition. (Doc.

17-4 at 266).

The Pennsylvania Superior Court affirmed the PCRA Court’s rejection

of Petitioner’s claim, finding the following:

To obtain relief under the PCRA premised on a claim that

counsel was ineffective, a petitioner must establish by a

preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth-determining

process that no reliable adjudication of guilt or innocence

could have taken place. See Johnson, 600 Pa. at 346, 966

A.2d at 533. “Generally, counsel’s performance is

presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by

the petitioner.” Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for his

or her action or inaction; and (3) petitioner was prejudiced

by counsel’s act or omission. See id. A finding of

“prejudice” requires the petitioner to show “that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Id. Counsel cannot be deemed

ineffective for failing to pursue a meritless claim. See

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc). Likewise, a failure to satisfy any prong of

the test for ineffectiveness will require rejection of the

claim. Commonwealth of Washington, 592 Pa. 698, 712

927 A.2d 586, 594 (2007).

Moreover, in determining whether counsel’s actions was

reasonable, the court does not consider whether there

were other more logical actions counsel could have

pursued, but simply examines whether counsel’s decision

had any reasonable basis. See id. As our Supreme Court

emphasized, “[a] fair assessment of attorney performance

requires that every effort be made 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” under the

law in existence at the time of counsel’s act or omission.

See Commonwealth v. Daniels, 600 Pa. 1, 34, 963 A.2d

409, 429 (2009). “[A] defendant is not entitled to relief

simply because the strategy is unsuccessful.”

Commonwealth v. Tippens, 598 A.2d 553, 556 (Pa.

Super. 1991) (en banc). “[I]neffectiveness occurs only

where the alternative not selected ‘offered a potential for

success substantially greater than the tactics used’.”

Commonwealth v. Clemmons, 505 Pa. 356, 361 479

A.2d 955, 957 (1984).

Here, PCRA counsel aptly sought leave from the PCRA

court to withdraw from representation of Kuhn as he

deemed Kuhn’s issues related to the ineffectiveness of trial

counsel lacked arguable merit. PCRA counsel

methodically reviewed the record and filed a proper

Turner/Finley brief after which the PCRA court

independently reviewed the issues Kuhn wished to raise

and suitably determined them to be without any merit. As

such, we can find no error in the PCRA court’s grant of

counsel’s petition to withdraw as we are in agreement that

Kuhn’s claims lack arguable merit.

Kuhn’s ineffectiveness claims are predicated upon

counsel’s trial strategy with respect to the calling of

witnesses, evidentiary challenges and trial stipulations.

Kuhn first argues that trial counsel was ineffective in failing

to call a DNA expert to rebut the Commonwealth’s DNA

evidence. To prevail on a claim of trial counsel’s

ineffectiveness for failure to call a witness, the defendant

must show: (1) that the witness existed; (2) that the witness

was available; (3) that counsel was informed of the

existence of the witness or should have known of the

witness’s existence; (4) that the witness was prepared to

cooperate and would have testified on appellant’s behalf;

and (5) that the absence of the testimony prejudiced

appellant. See Commonwealth v. Pursell, 555 Pa. 233,

258, 724 A.2d 293, 306 (1999). Kuhn must demonstrate

than an expert witness was available who would have

offered testimony designed to advance his cause. See

Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456,

470-471 (Pa. 1998). “The mere failure to obtain an expert

rebuttal witness is not ineffectiveness.” Id. Additionally, trial

counsel will not be deemed ineffective for failing to call a

scientific expert merely to critically evaluate expert

testimony presented by the Commonwealth. See

Commonwealth v. Chmiel, 612 Pa. 333, 388, 30 A.3d

1111, 1143 (Pa. 2011).

Here, while the trial court allocated funds to defense

counsel to pay an expert to assist with Kuhn’s defense,

counsel was unable to find an expert willing to rebut the

Commonwealth’s claims as to the DNA evidence. Thus, it

is evidence that an expert witness was unavailable to

testify on Kuhn’s behalf. As such, trial counsel cannot be

deemed ineffective.

(Doc. 17-4 at 317-320, Superior Court Memorandum Opinion).

The Superior Court’s adjudication of this claim was neither an

unreasonable application of, nor contrary to, Strickland. The Superior Court

reasonably concluded that Petitioner’s claim failed because no expert would

be willing to rebut the Commonwealth’s claims as to the DNA evidence.

Defense attorneys do not always have to employ expert testimony; rather, “it

depends on the specific circumstances of the case.” Showers v. Beard, 635

F.3d 625, 633 (3d Cir. 2011). Prejudice resulting from counsel’s

ineffectiveness “cannot be based on mere speculation about the possibility

of finding an expert witness, nor can it be based on mere speculation about

the possible testimony.” Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir.

2001).

Moreover, Petitioner has failed to identify an expert witness or the

purported witness’ availability, which is fatal to his claim under governing

Pennsylvania law. Cf. Day v. Mahally, 230 F. Supp. 3d 420, 426 (E.D. Pa.

2017) (upholding state court’s rejection of ineffectiveness claim when, inter

alia, petitioner failed to identify an expert); Oliver v. Santiago, No. 14-1334,

2017 WL 2735409, at *13-*14 (D.N.J. June 23, 2017) (state court reasonably

rejected petitioner’s ineffectiveness claim when, inter alia, petitioner

“produced no report, certification, or affidavit from a potential expert who

would have testified [to what petitioner alleged]. It is sheer conjecture that

such an expert witness exists.”); Johnson v. United States, 759 F. Supp. 2d

534, 544 (D. Del. 2011).

B. “Trial counsel ineffective for failing to order sentencing

transcripts from lower court on direct appeal, so

appellate court could not hear issue of excessive

sentence on appeal.”

Petitioner states that “following trial sentencing, trial counsel failed to

order sentencing transcripts from the lower court on direct appeal so even

though trial counsel raised the excessiveness of Mr. Kuhn’s 48 to 96 year

sentence on direct appeal, by rule, the Appellate courts could not even hear

the issue due to trial counsel’s failure to order the needed transcripts for the

court to hear the appeal.” (Doc. 1 at 6).

The Superior Court found Petitioner’s claim waived, based on the

following:

Appellant’s final issue challenges his sentence as

manifestly excessive. Upon review, however, we conclude

that this issue is not reviewable. Appellate review is limited

to those facts which are contained in the certified record;

what is not contained in the certified record “does not exist

for purposes of our review.” Commonwealth v. O’Black,

897 A.2d 1234, 1240 (Pa. Super. 2006). As this Court

thoroughly summarized in Commonwealth v. Preston,

904 A.2d 1 (Pa. Super. 2006) (en banc), appeal denied,

591 Pa. 663, 916 A.2d 632 (2007):

The fundamental tool for appellate review is the

official record of the events that occurred in the trial

court.

***

This Court cannot meaningfully review claims

raised on appeal unless we are provided with a full

and complete certified record. This requirement is

not a mere ‘technicality’ nor is this a question of

whether we are empowered to complain sua

sponte of lacunae in the record. In the absence of

an adequate certified record, there is no support

for an appellant’s arguments and, thus, there is no

basis on which relief can be granted.

***

[T]he ultimate responsibility of ensuing that the

transmitted record is complete rests squarely upon

the appellant and not upon the appellate courts.

Pa.R.A.P.1931.

***

With regard to missing transcripts, the Rules of

Appellate Procedure require an appellant to order

and pay for any transcript necessary to permit

resolution of the issues raised on appeal.

Pa.R.A.P.1911(a). . . . When the appellant or

cross-appellant fails to conform to the

requirements of Rule 1911, any claims that cannot

be resolved in the absence of the necessary

transcript or transcripts must be deemed waived

for purpose of appellate review. It is not proper for

either the Pennsylvania Supreme Court or the

Superior Court to order transcripts nor is it the

responsibility of the appellate courts to obtain the

necessary transcripts.

Preston, 904 A.2d at 6-7 (some internal citations omitted).

An appellant’s failure to provide the reviewing court with a

complete record results in waiver of the claim. See

Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216

(2009) (“We decline to review this issue with an incomplete

record and consider the issue to be waived.”).

Here the Commonwealth and trial court point out, and a

review of the certified record confirms, that Appellant did

not request a transcript of the sentencing hearing. See

Certified Record No. 2 (“SPECIFIC HEARING DATE(S)

REQUESTED: June 25 & 26, 2009”). We acknowledge the

trial court’s efforts in reviewing “the audio tapes of the

sentencing hearing and transcrib[ing] the pertinent portions

of the sentencing hearing” in order to “fully address

[Appellant’s sentencing issues] and assist the Honorable

Superior Court.” Trial Court Opinion, 3/25/10, at 6. In doing

so, the trial court provided the reasons that it stated on the

record for its sentence on each count. Id. at 6-8 (quoting

transcribed statement of reasons for each sentence

imposed). Nevertheless, as the Commonwealth posits,

omission of the sentencing transcript deprives us of “a

complete account of everything that happened during

sentencing.” Commonwealth’s Brief at 37. Under such

circumstances, we are unable to conduct a thorough

review of Appellant’s sentencing claims. Therefore, they

are waived.

(Doc. 17-4 at 58-60, Superior Court Memorandum Opinion).

A federal court on a habeas petition will not address a claim under

federal law if, when the claim was presented to the state court, the court

rejected the claim on a ground that was both “independent” of the federal

issues and was “adequate” to support the state court's disposition. A state

court’s refusal to address a prisoner’s federal claims because he has not met

a state procedural requirement is both independent and adequate. See

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991); Lambrix v. Singletary,

520 U.S. 518, 523 (1997) (“We have nonetheless held that the doctrine

applies to bar consideration on federal habeas of federal claims that have

been defaulted under state law.”). Thus, even though a prisoner may have

exhausted his federal claims in the state court without obtaining a decision

on the merits, he may be unable to obtain a decision on the merits in the

federal courts.

In this case, Kuhn failed to comply with Pa.R.A.P.1911(a), requiring an

appellant to order and pay for any transcript necessary to permit resolution

of the issues raised on appeal. As a result, the Superior Court found that

Petitioner’s failure to assume the responsibility of transmitting a complete

record to the appellate court, in accordance with Pa.R.A.P.1931, deemed his

issue of excessive sentence waived. The Superior Court’s sole reliance on

these two rules to dismiss Kuhn’s claim is adequate and independent of any

federal claim and bars this Court’s review of Kuhn’s excessive sentence

claim. See Tuten v. Tennis, Civ. No. 06-1872, 2007 WL 2221419, at *3 (E.D.

Pa. July 31, 2007) (Report & Recommendation, Restrepo, M.J.) (approved

and adopted Shapiro, J., Aug. 14, 2008) (failure to provide necessary

transcripts results in waiver in state court and default in federal court); Bowen

v. Blaine, 243 F. Supp.2d 296, 318 (E.D. Pa. Robreno, J. adopting Report &

Recommendation of Scuderi, M.J.) (rule requiring appellant to provide court

with transcripts consistently followed). Because Kuhn has failed to establish

cause and prejudice, his excessive sentence claim is procedurally defaulted.

The federal court may excuse a procedural default if the petitioner

establishes either cause for the default and prejudice resulting therefrom or

that a failure to consider the claim will result in a fundamental miscarriage of

justice. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Here, Kuhn offers

no basis to excuse his defaults. Similarly, he does not claim nor does he offer

any evidence to suggest his actual innocence, nor is there any basis which

can be gleaned from the record.

Regardless of Petitioner’s default, Petitioner’s excessive sentence

claim is not cognizable on federal habeas review.

A writ of habeas corpus is available under 28 U.S.C. §2254(a) only on

the basis of some transgression of federal law binding on the state courts.

Engle v. Isaac, 456 U.S. 107, 119 (1982). Violations of state law, standing

alone, will not entitle a petitioner to federal habeas relief, absent a showing

that those violations are so great as to be of a constitutional dimension.

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (federal habeas courts are

not permitted to review questions of state law); Wainwright v. Sykes, 433

U.S. 72, 81 (1977) (questions of state substantive law not cognizable on

federal habeas review); Priester v. Vaughn, 382 F.3d 394, 401–02 (3d Cir.

2004) (same).

Kuhn’s claim that his sentence of 46 to 96 years of imprisonment was

unreasonable, given Pennsylvania’s applicable guideline range, does not

implicate the laws or the Constitution of the United States. In fact, habeas

challenges to a state court’s sentencing discretion are unreviewable by a

federal court provided that the sentence lies within the statutory guidelines,

is not based upon arbitrary considerations, and the defendant’s constitutional

rights were not violated. See Estelle, 502 U.S. at 67–68 (explaining that

federal habeas courts are not permitted to review questions of state law);

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (same); Wainwright v. Sykes, 433

U.S. 72, 81 (1977) (indicating that questions of state substantive law are not

cognizable on federal habeas review); Townsend v. Burke, 334 U.S. 736,

741 (1948) (stating that when a state “sentence [is] within the limits set by

the statute, its severity would not be grounds for [habeas] relief”); see also

Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42–43 (3d

Cir. 1984) (finding that court’s sentencing discretion was not cognizable in

federal habeas petition); Smith v. Kerestes, Civ. A. No. 08–0061, 2009 WL

1676136, at *16 (E.D. Pa. June 15, 2009) (rejecting petitioner’s claim that his

state sentence was excessive because “absent a Constitutional violation, a

federal court has no power to review a sentence in a habeas corpus

proceeding unless it exceeds statutory limits”).

Kuhn’s sentence falls squarely within the applicable state sentencing

guidelines and was based upon facts specific to the offenses for which he

was convicted. Accordingly, his sentence was applied within the broad limits

established by the Constitution, and his claim concerning either the length,

or discretionary imposition, of his sentence fails to raise a cognizable claim

for federal habeas relief.

C. “Violation of Petitioner’s Fourth Amendment right

against illegal seizure when Petitioner’s illegal arrest in

companion case was used to hold him to investigate the

instant case.”

Petitioner claims that his “illegal arrest in a companion case is ‘fruit of

the poisonous tree” in the instant case” and a violation of his Due Process

and Fourth Amendment, “as this illegal arrest in the companion case was

found to violate PA law (due process) and a question remains for a 4th Amend

violation.” (Doc. 1 at 8).

The Pennsylvania Superior Court rejected this claim as follows:

Appellant first contends that the trial court erred in denying his

motion to suppress on the basis that his arrest had been

unlawful. Appellant’s Brief at 12. We note that Appellant is

resurrecting an issue recently disposed of by a panel of this Court

in the companion case of Commonwealth v. Kuhn, 820 MDA

2009, unpublished memorandum (Pa. Super. filed August 18,

2010):

Our standard of review in addressing a challenge to

the denial of a suppression motion is limited to

determining whether the suppression court’s factual

findings are supported by the record and whether the

legal conclusions drawn from those facts are correct.

Because the Commonwealth prevailed before the

suppression court, we may consider only the

evidence of the Commonwealth and so much of the

evidence for the defense as remains uncontradicted

when read in the context of the record as a whole.

Where the suppression court’s factual findings are

supported by the record, we are bound by these

findings and may reverse only if the court’s legal

conclusions are erroneous. Commonwealth v.

Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003),

Where, as here, the appeal of the determination of

the suppression court turns on allegations of legal

error, the suppression court’s legal conclusions are

not binding on an appellate court, “whose duty it is to

determine if the suppression court properly applied

the law to the facts.” Commonwealth v. Mistler, 590

Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting

Commonwealth v. Nester, 551 Pa. 157, 709 A.2d

879, 881 (1998)). Thus, the conclusions of law of the

court’s below are subject to our plenary review.

Mistler, supra; Commonwealth v. Morley, 545 Pa.

420, 681 A.2d 1254, 1256 n.2 (1996).

Commonwealth v. Jones, ___Pa.____, ____, 988

A.2d 649, 654 (2010), petition for certiorari filed, 78

USLW 3702 (May 17, 2010).

Appellant contends that the various items seized

from his person,6 his subsequent statements to

police, and the DNA swab performed on him, all

should have been suppressed as the fruit of the

poisonous tree,7 as they were all derived from an

unlawful arrest made without probable cause. We

disagree.

“Probable cause to arrest exists when the facts and

circumstances within the police officer’s knowledge

and of which the officer had reasonably trustworthy

information are sufficient in themselves to warrant a

person of reasonable caution in the belief that an

offense has been committed by the person to be

arrested.” Commonwealth v. Dommel, 885 A.2d

998, 1002 (Pa. Super. 2005), appeal denied, 591

Pa. 722, 920 A.2d 831 (2007) (quoting In re C.C.J.,

6 These items included a digital camera, an IPOD, a pair of glasses, a pack of

cigarettes, and a lighter. Appellant also complains that the search of his person also

revealed that the lining of his front pants pockets had been removed, which fact was

used against him at trial.

7 See Wong Sun v. U.S., 371 U.S. 471, 487-488 (1963).

799 A.2d 116, 121 (Pa. Super. 2002)). “Probable

cause justifying a warrantless arrest is determined by

the ‘totality of the circumstances’.” Id. (quoting

Commonwealth v. Myers, 728 A.2d 960, 962 (Pa.

Super. 1999)). Furthermore, “probable cause does

not involve certainties, but rather ‘the factual and

practical considerations of everyday life on which

reasonable and prudent [persons] act.’” Id. (quoting

Commonwealth v. Wright, 867 A.2d 1265, 1268

(Pa. Super. 2005), appeal denied, 583 Pa. 695, 879

A.2d 783 (2005), cert. denied, 546 U.S. 1104, 126

S.Ct. 1047, 163 L.Ed.2d 879 (2006)).

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa.

Super. 2008).

The police had sufficient probable cause to arrest

appellant. The police had a report from a named

individual who indicated that a man was observed

peeking into her bedroom window in the early

morning hours. Where the informant is a named

person, as opposed to either a confidential informant

or a tip from an anonymous source, the information

is assumed to be trustworthy because the informant

risks prosecution for making false reports.

Commonwealth v. Barber, 889 A.2d 587, 593-594

(Pa. Super. 2005). The informant gave police a

detailed description of the suspect, which included

the fact that he was wearing a backward-fitting

Virginia Teck baseball cap and a long-sleeved shirt,

and was fleeing, headed in the direction of Pugh

Street. Less than a minute after the report, appellant

was seen by police emerging onto Pugh Street, from

bushes along the perimeter of the property that abuts

the victim’s residence.8 Appellant matched the

description of the suspect completely, including the

backward-fitting Virginia Teck baseball cap and the

long-sleeved shirt. Appellant was then taken into

8 Notes of testimony, 3/30/09 at 94 (Pugh Street property abuts victim’s residence).

custody. Under the totality of these circumstances,

we find that the police had adequate probable cause

to arrest appellant for loitering and prowling at night

time.

Finally, as a sub-issue, appellant also contends that

a warrantless arrest for a misdemeanor is only proper

where the offense is committed in the presence of the

police officer. Simply stated, in Commonwealth v.

Elliott, 599 A.2d 1335 (Pa. Super. 1991), this court

held that pursuant to 42 Pa.C.S.A. §8952,9 a police

officer can make a warrantless arrest for any offense,

including misdemeanors and summaries, even if not

committed in the officer’s presence, so long as the

officer has probable cause to believe that the offense

was committed in his or her jurisdiction. Thus, there

is no merit to appellant’s claim.

Kuhn, 820 MDA 2009, unpublished memorandum,

slip. op. at 5-8.

Upon review, we conclude that Appellant is estopped from

reasserting his suppression claim. See Commonwealth v.

Gant, 945 A.2d 228, 229 (Pa. Super. 2008) (instructing that

collateral estoppel applies when “(1) the issue decided in the

prior adjudication must be identical to the issue presented later;

(2) the party against whom estoppel is asserted must be a party,

or in privity with a party, to the prior adjudication; and (3) the party

against whom estoppel is asserted must have had a fair and full

opportunity to litigate the issue in the prior action.”). Here,

Appellant raises the same sufficiency challenge that was decided

9 §8952. Primary municipal police jurisdiction

Any duly employed municipal police officer shall have the power and authority to enforce

the laws of this Commonwealth or otherwise perform the functions of that office shall have

the power and authority to enforce the laws of this Commonwealth or otherwise perform

the functions of that office anywhere within this primary jurisdiction as to:

(1) Any offense which the officer views or otherwise has probable cause to

believe was committed within his jurisdiction.

42 Pa.C.S.A. §8952 (in pertinent part).

in the companion case and affirmed by this Court. Trial Court

Order, 5/14/09; Kuhn, 820 MDA 2009, unpublished

memorandum, slip op. at 5-8. Appellant had a fair and full

opportunity to litigate the issue in the prior suppression hearing

and does not present any new evidence or argument here.

Therefore, we decline further review.

(Doc. 17-4 at 48-53, Superior Court Memorandum Opinion).

The Supreme Court has held that a federal habeas court cannot review

a Fourth Amendment claim unless the petitioner was denied a full and fair

opportunity to litigate it in the state courts. See Stone v. Powell, 428 U.S.

465, 494 (1976). Generally, a petitioner has received a full and fair

opportunity to litigate a Fourth Amendment claim if the state has made

available a mechanism for requesting the suppression of evidence,

irrespective of whether the petitioner actually availed himself of that

mechanism. See Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980). A

petitioner has also had a full and fair opportunity to litigate his claim

regardless of whether the state courts properly resolved the claim. See

Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). On the other hand, a

petitioner has not received a full and fair opportunity if the state’s system

contains a structural defect that prevented the state from fully and fairly

hearing the Fourth Amendment claim. See id.

Rules 578 and 581 of the Pennsylvania Rules of Criminal Procedure

permit a defendant to file a pre-trial motion to suppress evidence, thereby

providing a mechanism for presenting Fourth Amendment issues in the

Pennsylvania state courts. See Pa. R. Crim. P. 578, 581. Petitioner availed

himself of that mechanism. Moreover, as noted above, Petitioner raised his

claim in his direct appeal. The Superior Court, finding that Petitioner had a

full and fair opportunity to litigate his claim in the suppression hearing

conducted in his companion case, as well as on direct appeal, determined

that Petitioner was estopped from raising the claim again. Consequently, the

Superior Court declined further review.

Nothing in the record before this Court suggests that Petitioner did not

receive a full and fair litigation of his Fourth Amendment claim. See, e.g.,

Marshall, 307 F.3d at 82 (noting that whether a state court incorrectly

decided a petitioner’s Fourth Amendment claim is immaterial to the full and

fair opportunity analysis). Thus, the Court will deny Petitioner’s third ground

for relief as barred by Stone. See, e.g., Goins v. Warren, No. 13-4057 (DRD),

2015 WL 1292528, at *3-4 (D.N.J. Mar. 20, 2015) (concluding that habeas

petitioner’s challenge to the arrest warrant, based on a belief that police

officer forged the judge’s signature, was barred by Stone).

D. “Trial counsel was ineffective for failing to object to Detective

Aston’s testimony during trial.”

Petitioner claims that Detective Aston’s testimony at trial commented

on Petitioner’s criminal history, by using the word “pattern” and “no objection

was made” by Petitioner’s counsel. (Doc. 1 at 10).

Petitioner’s final issue of ineffective assistant of counsel, which was

raised in his PCRA petition, was argued by PCRA counsel as meritless, in

his “No Merit” brief as follows:

Petitioner claims his trial was prejudiced when Detective

Aston mentioned a link between the crime scene and the

Defendant was the “pattern” that he used although

Petitioner’s criminal history was not to be introduced to the

jury. (N.T. 274).

Specifically, Detective Aston was asked on cross-

examination by Petitioner’s attorney is there was anything

to link the Petitioner to the crime scene. In response,

Detective Aston stated the “manner of operation of how

that person performed in that apartment.” (N.T. 274). On

redirect, the Commonwealth asked Detective Aston to

elaborate on that comment which prompted him to say

“things that were done in that apartment by the suspect that

would link that suspect to a pattern that he used.” (N.T.

274).

Reference to the “pattern” is not admitting to the jury proof

of Petitioner’s criminal history. Furthermore, it was

Petitioner’s counsel who opened the door by asking if there

was anything that linked the crime scene to the Petitioner.

Lastly, if Petitioner’s trial counsel was ineffective for

opening the door, it is considered harmless error that did

not so undermine the truth telling process as to warrant a

new trial.

(Doc. 17-4 at 228). The PCRA court, after giving Petitioner an

opportunity to respond to counsel’s “No Merit” brief, (Doc. 17-4 at 242),

conducted a thorough review of the record, and found Petitioner was not

entitled to post-conviction collateral relief. (Doc. 17-4 at 266). The

Pennsylvania Superior Court subsequently found no error in the PCRA

court’s grant of counsels’ petition to withdraw and agreed that Kuhn’s claims

lacked arguable merit. (Doc. 17-4 at 319).

Petitioner has failed to show that the state courts’ rulings resulted in a

decision that was contrary to or, involved an unreasonable application of

clearly established federal law 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 proceedings.

The transcript reveals that Petitioner’s counsel initiated the questioning

linking Petitioner to the scene, to which the Commonwealth followed up on

redirect by asking Detective Aston to elaborate on the comment. While,

Defendant Aston stated that “things were done in that apartment by suspect

that would link that suspect to a pattern that he used,” there was no mention

or reference to Petitioner’s criminal record. Thus, there existed no

reasonable basis for counsel to object. As such, counsel’s performance did

not fall below an objective level of reasonableness, and Petitioner’s final

claim of ineffectiveness is meritless. Accordingly, the state court’s

determination that Petitioner’s underlying claim lacked arguable merit, and

that he failed to demonstrate that he was prejudiced by defense counsel’s

failure to object to Detective Aston’s testimony, is not contrary to, or an

unreasonable application of Strickland.

IV. Certificate of Appealability

Pursuant to 28 U.S.C. §2253(c), unless a circuit justice or judge issues

a certificate of appealability (“COA”), an appeal may not be taken from a final

order in a proceeding under 28 U.S.C. §2254. A COA may issue only if the

applicant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. §2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322 (2003). Petitioner fails to demonstrate that

a COA should issue.

The denial of a certificate of appealability does not prevent Kuhn from

appealing the order denying his petition so long as he seeks, and obtains, a

certificate of appealability from the Third Circuit Court of Appeals. See Fed.

R. App. P. 22(b)(1).

V. Conclusion

For the reasons set forth above, the petition for writ of habeas corpus

pursuant to 28 U.S.C. §2254 will be denied.

An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 3, 2020

15-0015-01