Watson v. Marsh

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LAQUINCEY A. WATSON, :

Petitioner : CIVIL ACTION NO. 3:18-1718

v. : (JUDGE MANNION)

ROBERT MARSH, :

Respondent :

MEMORANDUM

Petitioner, LaQuincey A. Watson, an inmate confined in the Benner

State Correctional Institution, Bellefonte, Pennsylvania, filed the instant

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

challenges his conviction and sentence imposed in the Court of Common

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

reasons outlined below, the petition will be denied.

I. Background

The factual background, extracted from the Pennsylvania Superior

Court’s August 11, 2014 Memorandum Opinion, affirming Petitioner’s

conviction and sentence, is as follows:

The trial court has set forth an extensive recitation of the

underlying facts in its Opinion, which we adopt for the purpose of

this appeal. See Trial Court Opinion, 10/28/13, at 1-12.

Relevantly, Detective James Glucksman (“Glucksman”) worked

as a police officer for eleven years and investigated between 600

and 1,000 burglaries, including serial burglary cases.

Glucksman became involved with this case on March 5, 2010,

when he was ordered to investigate the third burglary in Lower

Paxton Township that weekend.1 Glucksman determined that a

witness had encountered the burglar and, based on the

information and description provided, assembled a photo array

for review by the witness, which ultimately led to the identification

of Watson as a suspect. The burglaries that occurred in

Glucksman’s patrol zone, and surrounding areas, fit a pattern of

burglaries wherein the modus operandi involved parking a car in

the home’s driveway and kicking in a door in order to gain access

during daylight hours. Watson was subsequently arrested and

Glucksman obtained a search warrant for Watson’s residence.

Glucksman searched for, inter alia, a pair of sneakers that had a

tread pattern consistent with marks recovered from the door of a

home that had been robbed. While conducting the search,

Glucksman seized two pairs of sneakers matching the tread

pattern and photographed a gun holster, cameras, jewelry,

laptop, coins, and radios. Glucksman subsequently received an

anonymous tip that Watson’s girlfriend had removed the

photographed items from Watson’s residence and was tempting

to sell them on the internet. Glucksman contacted her, and, after

observing the items in her apartment and confirming they were

in fact reported as stolen, seized the items with her consent.

Watson was charged with more than twenty crimes,

predominantly burglaries, which took place over the course of

approximately four months (November 2009-March 2010) in four

counties.2 The stolen items included household electronics,

jewelry, collectible coins, and other cash or coins. Watson moved

1 See 18 Pa.C.S.A. §§3502, 3701(a)(1)(ii), 3925, 6105(a)(1).

2 The Commonwealth dropped eleven of the charges, leaving Watson to face

charges for 5 burglaries that occurred in Dauphin County, 5 burglaries that

occurred in York County, 5 burglaries that occurred in Cumberland County,

and 2 burglaries that occurred in Lancaster County.

to suppress this evidence at one of the pretrial hearings, but his

Motion was denied.

Watson also filed a Motion to Sever Charges, a Motion for

Severance of Charges Or, In The Alternative, A Bifurcated Trial

(“Motion for Severance”), and a Motion to Exclude Admission of

Cellular Telephone Tower “Ping” Evidence and Accompanying

Expert Testimony (“Motion to Exclude”), all of which were

denied.3

Watson’s charges were consolidated, and a jury trial was held in

Dauphin County in September 2012. Watson was found guilty of

the abovementioned crimes and acquitted on three counts of

burglary. On December 17, 2012, Watson was sentenced to an

aggregate sentence of 33½-67 years in prison. Watson filed a

timely Post-Sentence Motion. On April 23, 2012, the trial court

granted Watson’s Post-Sentence Motion and issued an

Amended Sentencing Order, stating that Watson was to serve

22-44½ years in prison. Watson filed a timely Notice of Appeal

and a Concise Statement of Matters Complained of on Appeal,

pursuant to Pa.R.A.P. 1925(b).

On appeal, Watson raises the following questions for our review:

I. Whether the trial court erred in denying [Watson’s] [M]otion to

[S]uppress physical evidence and identification of evidence

where the search exceeded the scope of the warrant and the

plain view exception was [] inapplicable in violation of Article 1,

Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution?

II. Whether the trial court erred in denying [Watson’s] [P]retrial

[M]otion for [S]everance where the crimes were not part of a

single criminal episode?

III. Whether the trial court erred in denying [Watson’s] [P]retrial

[M]otion to [E]xclude Commonwealth’s [C]ellular [T]elephone

3 The other Motions made in Watson’s Omnibus and Amended Omnibus

Pretrial Motions are not relevant to this appeal.

[T]ower “[P]ing” [E]vidence and [A]ccompanying [E]xpert

[T]estimony where such is not generally accepted in the field of

cell phone technology?

IV. Whether the trial court erred in denying [Watson’s] [M]otions

for [M]istrial after the Commonwealth’s witness repeatedly

violated a pre[]trial order forbidding opinion testimony regarding

the cellular phone records?

Brief for Appellant at 8.

(Doc. 10 at 92, Commonwealth v. Watson, No. 900 MDA 2013, 2014 WL

10803077 (Pa. Super. filed March 21, 2014) (unpublished memorandum).

By Memorandum Opinion dated August 11, 2014, the Superior Court

affirmed Petitioner’s judgment and sentence. Id. By Order dated February

25, 2015, the Pennsylvania Supreme Court denied Watson’s petition for

allowance of appeal. (Doc. 10 at 182, Commonwealth v. Watson, No. 651

MAL 2014, 112 A.3d 652 (Pa. 2015) (Table).

On April 25, 2016, Watson filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§9541-9546 and on August 31,

2016, filed an amended counseled PCRA petition raising the following issues

for relief:

1. Trial counsel rendered ineffective assistance for failing to

request a Kloiber instruction on faulty identification testimony.

2. Trial counsel rendered ineffective assistance where he failed

to request an accomplice-corrupt source jury charge where the

testimony of Latoya Craighead qualified.

3. The Commonwealth violated Brady by failing to disclose

Latoya Craighead’s criminal record and any information

regarding charges pending against her, and counsel was

ineffective for failing to request this impeachment evidence.

4. Trial counsel rendered ineffective assistance when he failed

to object to expert testimony provided by Jessica Sauder on the

grounds it violated Petitioner’s Sixth Amendment rights to

confrontation enunciated by Crawford, Melendez-Diaz and

Bullcoming.

5. Trial counsel rendered ineffective assistance when he failed to

brief the trial court committed an error of law by admitting prior

bad acts, and counsel failed to renew his objection when it

occurred.

6. Trial counsel rendered ineffective assistance where he failed

to object on the grounds the Commonwealth lacked jurisdiction

to prosecute Petitioner on the Maryland offense.

7. Trial counsel rendered ineffective assistance when he failed to

object where Petitioner’s Constitutional rights to trial by an

impartial jury were violated when the Commonwealth struck all

African Americans during voir dire.

8. Trial counsel rendered ineffective assistance when he failed to

object when initial counsel, Korey Leslie was allowed to testify at

Petitioner’s pretrial hearing where no colloquy was conducted to

waive attorney client privilege.

9. Trial counsel rendered ineffective assistance when he failed to

argue on direct appeal Petitioner’s sentence was illegal and

unconstitutional in light of Alleyne.

(Doc. 10 at 361-362). By Order dated March 30, 2017, the PCRA court

dismissed Watson’s PCRA petition for the reasons set forth in their

Memorandum Order dated November 17, 2016. (Doc. 10 at 375, 400).

On April 20, 2017 Watson filed a notice of appeal from the dismissal of

his PCRA petition to the Pennsylvania Superior Court. (Doc. 10 at 410). He

raised the following issues for review:

1. Trial counsel was ineffective for failing to object to pretrial

counsel, Korey Leslie, testifying at the Appellant’s pretrial

hearing when there was no colloquy given to the Appellant

waiving this attorney/client privilege.

2. Trial counsel was ineffective for failing to object to the

Commonwealth striking all African American jurors in violation of

Batson.

3. Trial counsel was ineffective for failing to request a Kloiber

instruction on faulty identification testimony.

4. Trial counsel was ineffective for failing to request an

accomplice-corrupt source jury instruction where the testimony

of Latoya Craighead qualified for such instruction.

(Doc. 10 at 474).

By Memorandum Opinion dated February 1, 2018, the Pennsylvania

Superior Court affirmed the PCRA court’s denial of Watson’s PCRA petition.

(Doc. 10 at 503, Commonwealth v. Watson, No. 687 MDA 2017, 2018 WL

652925 (Pa. Super. filed Feb 1, 2018) (unpublished memorandum).

By Order dated July 17, 2018, the Pennsylvania Supreme Court denied

Watson’s petition for allowance of appeal. Commonwealth v. Watson, No.

153 MAL 2018, 189 A.3d 388 (Pa. 2018) (Table).

On August 29, 2018, Petitioner filed the instant petition for writ of

habeas corpus. (Doc. 1). He raises the following seven grounds for relief:

1. Trial counsel was ineffective for failing to request a Kloiber

instruction.

2. Trial counsel was ineffective for failing to request a corrupt

source charge in regards to the testimony of Latoya Craighead.

3. Collateral counsel provided ineffective assistance for failing to

raise in the initial collateral review petition that trial counsel was

ineffective for failing to object to expert testimony provided by

Jessica Sunder on the grounds it violated his sixth amendment

rights to confrontation as enunciated by Crawford, Melendez-

Diaz and Bullcoming.

4. Pretrial counsel was ineffective for testifying to confident[ial]

information in violation of attorney client privilege.

5. Collateral counsel provided ineffective assistance for failing to

raise in the initial collateral review petition that trial counsel was

ineffective for failing to argue on direct appeal that the trial court

committed an error of law by admitting prior bad acts in which

counsel failed to renew his objection when it occurred.

6. Petitioner’s due process rights were violated when the state

courts found cellular telephone tower pings were admissible

evidence and collateral counsel was ineffective for failing to raise

in the initial collateral review petition that trail counsel was

ineffective for failing to move to suppress this evidence.

7. Collateral counsel provided ineffective assistance for failing to

raise in the initial collateral review petition that trial counsel was

ineffective for failing to argue on direct review that Petitioner’s

sentence violated Alleyne.

(Doc. 2, Memorandum of Law).

II. Legal Standards of Review

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

mechanism for a prisoner to challenge the “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).

Watson’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

A. Exhaustion and Procedural Default

Before considering the merits of Watson’s grounds for relief, the Court

must address Respondent’s contention that four of the claims raised are

unexhausted and procedurally defaulted. Specifically, Respondent asserts

that Petitioner’s third, fifth, sixth and seventh grounds raised are

unexhausted and procedurally defaulted. (Doc. 10 at 5-18).

Absent unusual circumstances, a federal court should not entertain a

petition for writ of habeas corpus, unless the petitioner has first satisfied the

exhaustion requirement articulated in 28 U.S.C. §2254(b). Specifically,

habeas relief “shall not be granted unless it appears that . . . the applicant

has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

The exhaustion requirement is grounded on principles of comity to ensure

that state courts have the initial opportunity to review federal constitutional

challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d

Cir. 2000); Picard v. Connor, 404 U.S. 270, 275–76 (1971). The habeas

statute codifies this principle by requiring that a petitioner exhaust the

remedies available in the courts of the State, 28 U.S.C. §2254(b)(1)(A),

meaning a state prisoner must “fairly present” his claims in “one complete

round of the state’s established appellate review process,” before bringing

them in federal court. O’Sullivan, 526 U.S. at 845 (stating “[b]ecause the

exhaustion doctrine is designed to give the state courts a full and fair

opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts, . . . state prisoners must give the state courts

one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established review process.”); see also

Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971);

Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). This requires that

the claim brought in federal court be the substantial equivalent of that

presented to the state courts. Picard, 404 U.S. at 278; see also McCandless

v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must

present both “factual and legal substance” of claim to state courts). Mere

reliance of state and federal claims on the same constitutional provision does

not render the two claims substantially equivalent. See Brown v. Cuyler, 669

F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). Both

the legal theory and the facts on which a federal claim rests must have been

presented to the state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d

at 158–61. “When a claim is not exhausted because it has not been ‘fairly

presented’ to the state courts, but state procedural rules bar the applicant

from seeking further relief in state courts, the exhaustion requirement is

satisfied because there is ‘an absence of available State corrective process.’

28 U.S.C. §2254(b). In such cases, however, applicants are considered to

have procedurally defaulted their claims and federal courts may not consider

the merits of such claims unless the applicant establishes ‘cause and

prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).” McCandless, 172 F.3d at 260. To demonstrate “cause”

for a procedural default, a petitioner must point to some objective external

factor which impeded his efforts to comply with the state’s procedural rule.

See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice” will be satisfied

only if he can demonstrate that the outcome of the state proceeding was

“unreliable or fundamentally unfair” as a result of a violation of federal law.

See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation

has probably resulted in the conviction of one who is actually innocent,”

Murray, 477 U.S. at 496, then a federal court can excuse the procedural

default and review the claim in order to prevent a fundamental miscarriage

of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank,

266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception

applies only in extraordinary cases, and actual innocence means factual

innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614,

623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual

innocence by asserting “new reliable evidence--whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial,” showing that no reasonable juror

would have voted to find the petitioner guilty beyond a reasonable doubt.

Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

It is Respondent’s position that Petitioner’s arguments that (1) trial

counsel was ineffective for failing to object to expert testimony provided by

Jessica Sunder on the grounds it violated his sixth amendment rights to

confrontation as enunciated by Crawford, Melendez-Diaz and Bullcoming;

(2) Pretrial counsel was ineffective for testifying to confident[ial] information

in violation of attorney client privilege; trial counsel was ineffective for failing

to argue on direct appeal that the trial court committed an error of law by

admitting prior bad acts in which counsel failed to renew his objection when

it occurred; (3) trial counsel was ineffective for failing to move to suppress

Petitioner’s cellular telephone tower pings as admissible evidence; and (4)

that trial counsel was ineffective for failing to argue on direct review that

Petitioner’s sentence violated Alleyne have never been presented to a state

court, and, consequently, are procedurally defaulted. (Doc. 10). Petitioner

argues that he can overcome the procedural default of this claim under the

authority of Martinez v. Ryan, 566 U.S. 1 (2010), claiming that his PCRA

counsel was ineffective because he failed to raise trial counsel’s

ineffectiveness for not raising these claims. (Doc. 2).

Martinez v. Ryan, 566 U.S. 1 (2010), recognized a “narrow exception”

to the general rule that attorney errors in collateral proceedings do not

establish cause to excuse a procedural default. Specifically, Martinez holds

that “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a

claim of ineffective assistance at trial.” Id. at 9. To successfully invoke the

Martinez exception, a petitioner must satisfy two factors: that the underlying,

otherwise defaulted, claim of ineffective assistance of trial counsel is

“substantial,” meaning that it has “some merit,” id. at 14; and that petitioner

had “no counsel” or “ineffective” counsel during the initial phase of the state

collateral review proceeding. Id. at 17; see also Glenn v. Wynder, 743 F.3d

402, 410 (3d Cir. 2014).

A petitioner demonstrates that the underlying ineffective assistance of

trial counsel claim has “some” merit by “show[ing] that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Workman v.

Superintendent Albion SCI, 915 F.3d 928, 937-38 (3d Cir. 2019); see also

Martinez, 566 U.S. at 13-14. A petitioner demonstrates that post-conviction

counsel’s ineffectiveness caused the procedural default by showing that

post-conviction counsel’s performance was deficient under the first prong of

the Strickland v. Washington, 466 U.S. 668 (1984) standard. See Preston v.

Sup’t Graterford, SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also Workman,

915 F.3d at 937–38. Satisfaction of the first Strickland prong requires a

petitioner to demonstrate that “counsel’s representation fell below an

objective standard of reasonableness,” with reasonableness being judged

under professional norms prevailing at the time counsel rendered

assistance. Strickland, 466 U.S. at 688. We will first address Respondent’s

argument concerning the exhaustion and procedural default of Petitioner’s

third, fifth, sixth and seventh claims.

i. Claim Three

In Claim Three, Petitioner states that “collateral counsel provided

ineffective assistance for failing to raise in the initial collateral review petition

that trial counsel was ineffective for failing to object to expert testimony

provided by Jessica Sauder on the grounds that it violated his Sixth

Amendment rights to confrontation as enunciated by Crawford, Melendez-

Diaz and Bullcoming.” (Doc. 2 at 10). Specifically, Petitioner claims that “the

analyst who created them did not testify and Sauder specifically testified the

historical cell phone data used in this case would be more suitably testified

to by a custodial records employee, not her.” Id. at 11.

Petitioner states that “Sauder’s testimony encompassed how cell

phone towers work indicating it provides coverage of three (3) miles which

ultimately can place a cell phone user of a specific number in an approximate

location” and that “to heighten this testimony, hence prejudicing Petitioner,

the Commonwealth admitted into evidence, Exhibits 1 & 2 consisting of cell

tower locations and calls allegedly made by Petitioner” and “Detective

Glucksman was able to utilize these records to place Petitioner in the

burglarized area.” Id. Petitioner claims that although “the Commonwealth

continuously maintained these records were kept in the regular course of

business,” Petitioner claims that “the analyst who created them did not

testify” and “this document was made in aid of a police investigation ranks of

testimonial, resulted in this conviction without confrontation,” in violation of

Bullcoming. Id.

In support of his argument that trial counsel was ineffective for failing

to object to expert testimony provided by Jessica Sauder on the grounds that

it violated his Sixth Amendment rights to confrontation, Petitioner relies on

the following Supreme Court cases: Crawford v. Washington, 541 U.S. 36

(2004), Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180

L.Ed.2d 610 (2011), and Melendez–Diaz v. Massachusetts, 557 U.S. 305

(2009).

Having thoroughly reviewed the three decisions Petitioner cited—

Crawford, Bullcoming, and Melendez–Diaz, this Court holds that Watson’s

Sixth Amendment confrontation rights have not been violated by the

Government’s failure to call the “analyst” who created the historical cell

phone data.

In Crawford, the Supreme Court held that a criminal defendant’s Sixth

Amendment confrontation rights are violated if testimonial statements of

absent witnesses are admitted into evidence, unless it is established that the

absent witness is unavailable “and the defendant has had a prior opportunity

to cross-examine.” Crawford, 541 U.S. at 59. Statements “made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial” are testimonial.

See id; see also Melendez–Diaz v. Massachusetts, 557 U.S. at 311.

In Bullcoming, the Supreme Court overturned a defendant’s conviction

of driving while intoxicated. Bullcoming, 131 S.Ct. at 2710. Specifically, the

Court applied Crawford in holding that prosecutors’ failure to call the analyst

who signed a lab report certifying that the defendant’s blood alcohol content

was above the legal limit violated the defendant’s Sixth Amendment

confrontation rights because the lab report amounted to testimonial

evidence. Bullcoming, 131 S.Ct. at 2717. The Court noted that although

another analyst who was familiar with the lab’s testing procedures provided

live testimony, such live testimony was insufficient to comply with the

requirements of the Sixth Amendment because the prosecution failed to

produce the live testimony of the actual analyst who prepared the report. Id.

In Melendez–Diaz, a defendant was charged with distributing and

trafficking cocaine. The prosecution placed into evidence notarized analyst

reports showing that the substance seized by the police was, in fact, cocaine,

but did not present the live testimony of the analysts who authored the

reports. Melendez–Diaz, 557 U.S. at 308. The Supreme Court held that the

failure to present the analysts’ live testimony violated the defendant's

confrontation rights because the reports were testimonial, as they had been

made “under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial.” Id. at 311.

The instant case is distinguishable from the three cases cited by

Watson. The overarching principal in Crawford and its progeny is that a

defendant’s confrontation rights are implicated only when out-of-court

testimonial statements of a non-testifying declarant are admitted into

evidence. Here, no statement of the individual who created the historical cell

phone data was admitted into evidence. Furthermore, when expert witness

Sauder was asked if the purpose of historical cell phone data was to pinpoint

where a call was placed from, a question beyond the realm of her cell phone

tower expertise, she responded “I am not sure if it is kept for that exact

purpose. That would be more of a custodial records testify. I think we are

mandated to keep records for a certain amount of time by the FCC but I can’t

testify on what that is” (Doc. 10 at 609, N.T. Pretrial, 9/10/12 at 53-54).

Finally, the record reveals that Petitioner’s counsel stated on the record

that he had no objection to Ms. Sauder being tendered as an expert in cell

phone technology and clarified that the evidence he wanted to be excluded

was the expert testimony relative to where any phone was located at a time

when a call was placed. (N.T. Pretrial, 9/10/12 at 66–67). The

Commonwealth stated that it planned to have Ms. Sauder testify to

essentially the same facts presented at the pretrial hearing, and, more

specifically, the technological functions of the cellular phones and towers and

that it did not intend to call Ms. Sauder to render an expert opinion as to the

exact location of a person because a cell phone call was made at a certain

time or date, and utilizing a particular cell tower because it was the closest

cell tower. (N.T. Pretrial, 9/10/12 at 67–71). Thus, the Court finds no violation

of the Confrontation clause and, as such, counsel was under no obligation

to make a meritless objection to expert testimony based on the Confrontation

clause. Consequently, the underlying, otherwise defaulted, ineffective

assistance of counsel claim does not meet the “some merit” threshold, and

Martinez is unavailable to excuse Watson’s procedural default of this claim.

To the extent that Petitioner attempts to establish cause for his default

by claiming that collateral counsel provided ineffective assistance for failing

to raise in the initial collateral review petition that trial counsel was ineffective

for failing to object to expert testimony provided by Jessica Sauder, the

narrow exception articulated in Martinez only applies to allegations

concerning trial counsel’s ineffectiveness, not claims alleging the

ineffectiveness of appellate counsel or PCRA counsel. Davila v. Davis, 137

S. Ct. 2058, 2063 (2017) (declining to extend Martinez to allow a federal

court to hear a substantial, but procedurally defaulted, claim of ineffective

assistance of appellate counsel or PCRA counsel).

ii. Claim Five

Petitioner claims that “collateral counsel provided ineffective

assistance for failing to raise in the initial collateral review petition that trial

counsel was ineffective for failing to argue on direct appeal that the court

committed an error of law by admitting prior bad acts in which counsel failed

to renew his objection when it occurred.” (Doc. 2 at 13). Specifically,

Petitioner states that “counsel did not renew his objection when the Adams

County incident was introduced,” and “although the trial court suggests the

probative value outweighed the prejudicial impact, the charging document

holds the opposite; petitioner was charged numerously for the same crime

on different occasions and the Commonwealth paraded witness after witness

testifying to identical events.” Id. at 14. This claim is procedurally defaulted.

While Watson brought a state law claim challenging the admission of prior

bad acts evidence, he did not “fairly present” the federal due process claim

to the state courts. He claims, however, that his ineffective assistance of

counsel for failing to object to the admission of bad acts is “a substantial one

and review is appropriate under Martinez.” The Court finds otherwise.

The Superior Court, adopting the trial court’s reasoning as its own,

addressed this evidentiary challenge only as a state law claim under the

Pennsylvania Rules of Evidence and Pennsylvania state court decisions as

follows:

The fifth and final issue raised on appeal is that this Court erred

by denying Appellant’s pretrial Motion In Limine to preclude the

Commonwealth from introducing evidence of Appellant’s prior

bad acts during its case in chief. In his Motion and at the

suppression hearings Appellant averred that the Commonwealth

had notified Appellant of its intent to present evidence of the facts

underlying a December 7, 2009 burglary in which he pleaded

nolo contendere. In his Motion, Appellant argued that such

evidence should not be introduced pursuant to Pa.R.E. 404(b)

because the introduction of his prior criminal record would be

more prejudicial than probative. Appellant cited the case of

Commonwealth v. Lockuff [813 A.2d 857 (Pa. Super. 2002)] to

assert that Appellant's conduct in the Adams County incident is

not so distinctive to be viewed as a signature of a perpetrator.

Appellant requested that the Court exclude such evidence from

trial.

In its Answer to Appellant’s Motion, the Commonwealth specified

that it would seek to introduce facts underlying Appellant's

Adams County burglary conviction to show that it was part of a

common plan of burglarizing homes in Central Pennsylvania and

to prove his identity as the perpetrator of the scheme.

Appellant pleaded nolo contendere to a burglary charge brought

in Adams County relating to an incident which occurred on

December 7, 2009. During the first suppression hearing, the

Commonwealth made a proffer to this Court as to why the facts

underlying the Adams County case were relevant and admissible

as part of the Commonwealth's case in chief in Dauphin County.4

(N.T. Pretrial, 6/28/12 at 81–82). The Commonwealth’s position

was that the underlying facts of the Adams County incident were

admissible under the exception provided in Pa.R.E. 404(b) to

prove identity and modus operendi. (N.T. Pretrial, 6/28/12 at 82).

The Commonwealth argued that it would support its position by

having witnesses who were part of the Adams County case

testify to Watson’s identity, the red truck he fled the scene in, how

the owner of the truck permitted Watson to use it, how the truck

is connected to other burglaries, how, chronologically, the

burglary occurred within the string of burglaries that resulted in

the instant charges, and how the manner in which he broke into

the victim’s house was very similar to several of the other

burglaries. (Id.; N.T. Pretrial, 9/10/12 at 8–9).

Appellant’s position before this Court is that for Rule 404(b) to

apply and permit the evidence to be admitted to show identity

and common scheme or plan, the facts must establish that the

circumstances are so distinctive and nearly identical as to

become a signature of a perpetrator. (N.T. Pretrial 6/28/12 at 82–

4 The Commonwealth agreed on the record that because he pleaded nolo

contendere, evidence of the conviction itself is inadmissible. (N.T. Pretrial,

6/28/12 at 81; N.T. Pretrial, 9/10/12 at 7-8).

83). Appellant cited Lockcuff to argue that some of the similarities

that the Commonwealth is relying upon, such as kicking in a door

to gain access to a house are not very distinctive because there

are only a few ways to break into a house— through a window or

a door. (Id.) Appellant added that the Adams County break in

occurred through a garage door when other residences were

entered through a front or back door, that the red truck was not

used in all the charged burglaries, there were not eyewitnesses

at each house, and he did not always flee the scene. (N.T.

Pretrial 6/28/12 at 85–86; N.T. Pretrial, 9/10/12 at 11–12.

The Superior Court in the case of Commonwealth v. Weakley,

[972 A.2d 1182, 1188-89 (Pa. Super. 2009)] provided a clear

recitation of the analysis to be undertaken when a challenge

concerning the admissibility of evidence, specifically evidence of

other crimes or bad acts by a defendant is asserted on appeal:

The admission of evidence is a matter vested within the

sound discretion of the trial court, and such a decision

shall be reversed only upon a showing that the trial

court abused its discretion. In determining whether

evidence should be admitted, the trial court must weigh

the relevant and probative value of the evidence

against the prejudicial impact of that evidence.

Evidence is relevant if it logically tends to establish a

material fact in the case or tends to support a

reasonable inference regarding a material fact.

Although a court may find that evidence is relevant, the

court may nevertheless conclude that such evidence is

inadmissible on account of its prejudicial impact.

Commonwealth v. Reid, 571 Pa. 1, 34, 811 A.2d 530,

550 (2002) (citations omitted). An abuse of discretion is

not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise

of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by

the evidence of record. Commonwealth v. Weakley,

972 A.2d 1182, 1188–89 (Pa.Super.2009) (internal

citations and quotations omitted).

Jurisprudence regarding the admission of other crimes and bad

acts is as follows:

Evidence of distinct crimes is not admissible against a

defendant being prosecuted for another crime solely to

show his bad character and his propensity for

committing criminal acts [See Pa.R.E. 404(b)(1)].

However, evidence of other crimes and/or violent acts

may be admissible in special circumstances where the

evidence is relevant for some other legitimate purpose

and not merely to prejudice the defendant by showing

him to be a person of bad character. These other

purposes include, inter alia, proving the identity of the

person charged with the commission of the crime on

trial. Identity as to the charged crime may be proven

with evidence of another crime where the separate

crimes share a method so distinctive and

circumstances so nearly identical as to constitute the

virtual signature of the defendant. Required, therefore,

“is such a high correlation in the details of the crimes

that proof that a person committed one of them makes

it very unlikely that anyone else committed the others.”

In comparing the methods and circumstances of

separate crimes, a court must necessarily look for

similarities in a number of factors, including: (1) the

manner in which the crimes were committed; (2)

weapons used; (3) ostensible purpose of the crime; (4)

location; and (5) type of victims. Remoteness in time

between the crimes is also factored, although its

probative value has been held inversely proportional to

the degree of similarity between crimes. Id.

Additionally, when prior bad act evidence is admitted against a

defendant to prove something aside from action in conformity

therewith, the defendant is entitled to an appropriate limiting

instruction. Commonwealth v. Henkel, 2007 PA Super 333, 938

A.2d 433, 444 (Pa.Super.2007) citing Commonwealth v.

Hutchinson, 571 Pa. 45, 811 A.2d 556, 561 (2002);

Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 842 (1989).

Upon examination of the way in which the burglaries for which

Appellant was being tried were perpetrated, a clear pattern

emerged. The burglaries took place at residences during daylight

hours from roughly mid-morning until noon. The perpetrator

entered the residence by kicking in a door whether it be back,

front or garage door, and the items stolen were TVs, small

electronics, jewelry and coins.

The Commonwealth represented to this Court that it intended to

present witnesses involved with the Adams County incident that

caught Appellant in the act of burglarizing a house, during

daylight hours, where the victim came face to face with the

perpetrator. A strange vehicle was in the driveway, a garage door

had been kicked in and a TV lay in the garage. Appellant fled the

scene in a red pickup truck that he later abandoned. Other

evidence proffered was the testimony of a State Police Officer

who was stationed out of the Gettysburg Barracks and

determined that the red pickup truck belonged to Appellant's

girlfriend Angela Greene. The Commonwealth also intended to

present the testimony of Ms. Green that verified the truck was

bought for the use of Appellant. Appellant was unable to explain

to the State Police why the truck was abandoned; he said it had

been stolen but never made a report or claimed it. Additionally,

the Commonwealth planned to present testimony that showed

usage of Appellant's cellular phone at the time of the Adams

County incident and in the same vicinity.

Even though Appellant pointed out that some of the burglaries

involved two other cars, a gold car and a gray car, the

Commonwealth argued that the method by which the burglaries

were perpetrated was the same and evidence would be

presented to link Appellant to the use of those cars through other

girlfriends.

This Court found the evidence sought to be admitted was

overwhelmingly probative. The facts of the Adams County

incident fit within the template that had emerged from the other

charged burglaries. Coupled with eyewitnesses being able to

testify to a physical description, the vehicle which was common

to other burglaries and the link between Appellant and the vehicle

supports this Court's finding. At the pretrial hearing, Detective

Glucksman also testified to investigating a string of daylight

residential burglaries because of an emerging pattern and

Appellant was a suspect. (N.T. Pretrial, 6/28/12 at 91-95; C-Exh.

2).

When ruling upon Appellant’s motion, this Court recognized the

possible prejudicial impact of admitting the evidence of the facts

underlying the Adams County case, however we found that the

probative value of proving identity of the perpetrator and a

common scheme or modus operendi present in the burglaries for

which he was on trial outweighed any prejudice. To that point,

the Court emphasized to the Commonwealth that there would

be “no reference as to this Adams County episode that he was

arrested charged or convicted of ...” the crime. (N.T. Pretrial,

9/10/12 at 12–13). Of further import in this case is this Court’s

explicit limiting instruction given to the jury prior to deliberation

regarding the evidence presented about the Adams County

incident. This Court explained that the evidence was presented

to the jury for a very limited purpose, more specifically:

This evidence is for the purpose of tending to show the

type of conduct that this defendant may have been

engaged in. This evidence must not be considered by

you in any other way other than the purpose I just

stated.

You must not regard this evidence as showing the

defendant is a person of bad character or criminal

tendencies which you might be inclined to infer guilt.

You can consider that testimony if it sheds any light as

to a link to the automobile in question in this case, I

believe the Commonwealth’s contention is it was the

pickup truck and the method of operation that the

defendant may have allegedly used in some of these

other incidents. It is for that limited purpose. (N.T. Trial,

9/14/12 at 14–15).

This Court properly exercised its discretion by admitting

evidence of the factual basis underlying the Adams County

incident for the purpose of proving identity and method or modus

operendi in the Dauphin County cases.

This Court concludes that Appellant’s claims of error are without

merit.

(Doc. 10 at 109-111, Commonwealth v. Watson, No. 900 MDA 2013, 2014

WL 10803077 (Pa. Super. filed March 21, 2014) (unpublished

memorandum).

Generally, claims alleging state court error in the admission of

evidence are not cognizable in a federal habeas proceeding. See Keller v.

Larkins, 251 F.3d 408, 416 n.2 (3d Cir. 2001) (“A federal habeas court,

however, cannot decide whether the evidence in question was properly

allowed under the state law of evidence.”). Rather, “[a] federal habeas court

is limited to deciding whether the admission of the evidence rose to the level

of a due process violation.” Id. “Accordingly, a reviewing court must examine

the relative probative and prejudicial value of evidence to determine whether

its admission violated defendant’s right to a fair trial.” Lesko v. Owens, 881

F.2d 44, 51 (3d Cir. 1989). To the extent Watson alleges a state evidentiary

error, rather than a due process violation, his claim is non-cognizable. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Watson argues that the probative value of the evidence of his prior bad

acts was outweighed by its prejudicial impact on the jury, leading to a

violation of due process. (Doc. 2 at 13). The trial court rejected this argument,

finding not only that the evidence was admissible under Pa. R. Evid. 404(b),

but also that it was “overwhelmingly probative” in proving the identity of the

perpetrator and a common scheme or modus operendi. During the pretrial

hearing and at trial, the trial judge explained that evidence of Watson’s prior

bad acts was not only relevant, but essential in determining a clear pattern

of burglaries, and thus had probative value that outweighed any potential

prejudice. The trial judge is given considerable deference in his or her

evidentiary determinations, and this Court only reviews such determinations

for federal due process violations. Keller, 251 F.3d at 416 n.2. “[I]n order to

show that an evidentiary error of this type rose to the level of a due process

violation,” Carter must contend “that it was of such magnitude as to

undermine the fundamental fair ness [sic] of the entire trial.” Id. at 413 (citing

McCandless, 172 F.3d at 262; Lesko, 881 F.2d at 51-52). Here, the

admittance of the evidence does not rise to such a constitutional violation;

Watson’s prior bad acts, namely the Adams County burglary conviction was

relevant to show that it was part of a common plan of burglarizing homes in

Central Pennsylvania and to prove his identity as the perpetrator of the

scheme. Therefore, without a showing that this evidence undermined the

fundamental fairness of his trial, Watson claim is meritless. Accordingly, the

Court finds that the underlying, otherwise defaulted, claim of ineffective

assistance of trial counsel for failing to renew his objection to the introduction

of such evidence, lacks merit, and Martinez does not excuse this procedural

default.

To the extent that Petitioner attempts to establish cause for his default

by setting forth a layered ineffective assistance claim blaming PCRA counsel

for failing to raise appellate counsel’s ineffectiveness for failing to raise the

issue of prior bad acts on appeal, the narrow exception articulated in

Martinez only applies to allegations concerning trial counsel's

ineffectiveness, not claims alleging the ineffectiveness of appellate counsel

or PCRA counsel. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (declining

to extend Martinez to allow a federal court to hear a substantial, but

procedurally defaulted, claim of ineffective assistance of appellate counsel

or PCRA counsel).

iii. Claim Six

Petitioner’s Claim Six states that “Petitioner’s due process rights were

violated when the state courts found cellular telephone tower pings were

admissible evidence and collateral counsel was ineffective for failing to raise

in the initial collateral review petition that trial counsel was ineffective for

failing to move to suppress this evidence.” (Doc. 2 at 14). He also claims that

Petitioner claims that the police did not first obtain a warrant to review this

information in violation of Riley v. California, 573 U.S. 373 (2014) and that

“recently, the Supreme Court in Carpenter v. United States, 2018 U.S. Lexis

3844 held that, when the government accessed an accused cell-site location

information, it invaded a reasonable expectation of privacy and thus, violates

Fourth Amendment protection.” (Doc. 2 at 15-16). Finally, Petitioner claims

that he was “highly prejudiced as he was convicted on evidence that was

admissible in violation of Frye and was illegally obtained in violation of his

constitutional rights. Id.

Petitioner concedes that none of the issues in Claim Six have ever

been presented to the state courts in terms of ineffective assistance of

counsel claims and are procedurally defaulted, unless Petitioner can prove

that the claims are “substantial,” meaning that they have “some merit.”

Martinez v. Ryan, 566 U.S. at 14. He cannot.

Initially, with respect to Claim Six, the Court notes that trial counsel did

move to suppress the cellphone ping evidence and the state courts held this

issue meritless. (Doc. 10 at 92, Commonwealth v. Watson, No. 900 MDA

2013, 2014 WL 10803077 (Pa. Super. filed March 21, 2014) (unpublished

memorandum). Thus, Petitioner’s claim of ineffective assistance of counsel

for failure to move to suppress the telephone tower pings is meritless on its

face.

To the extent that Petitioner argues that he was pursuing his direct

appeal when Riley v. California, 573 U.S. 373 (2014)5 was decided and

“counsel should have petitioned the court for reconsideration based upon the

Riley decision,” (Doc. 2 at 15), and that collateral counsel was ineffective

because he “did not raise this claim in Petitioner’s initial collateral review

petition,” Id. at 16, Martinez only applies to allegations concerning trial

counsel’s ineffectiveness, not claims alleging the ineffectiveness of appellate

counsel or PCRA counsel. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017)

(declining to extend Martinez to allow a federal court to hear a substantial,

but procedurally defaulted, claim of ineffective assistance of appellate

counsel or PCRA counsel). Thus, Petitioner’s alleged ineffective assistance

of counsel regarding his Riley claim remains procedurally defaulted.

The Court further observes that it was not until 2018—six years after

Watson’s trial—that the Supreme Court of the United States held that cell-

site location information is generally protected under the Fourth Amendment

and requires a warrant supported by probable cause. See generally

5 In Riley, the Supreme Court determined that a warrantless search of a

person’s cell phone is presumptively unreasonable.

Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d

507 (2018). It can hardly be said that Watson’s trial counsel was deficient for

failing to raise a Fourth Amendment suppression argument for a right that

had yet to be established. To the extent that Petitioner does not rely on

Carpenter to excuse the procedural default but raises it as a free standing

claim that the Government’s use of historical cell-site location information

(“CSLI”) violated his Fourth Amendment rights, Carpenter does not apply

retroactively to cases on collateral review. United States v. Davis, No. 13-cr-

28, 2019 WL 1584634, at *2 (M.D. Pa. April 12, 2019).

Petitioner’s final claim is that trial counsel was ineffective for failing to

object to the Commonwealth’s expert witness and type of cellular phone

evidence as it did not meet the Frye requirements for admissibility. This claim

of trial counsel ineffective has not been presented to any state court.

On appeal, the Superior Court adopted the sound reasoning of the trial

court who addressed Petitioner’s Frye claim as a state evidentiary matter

under Pennsylvania law as follows:

Appellant’s third and fourth issues raised on appeal both assert

claims of error with respect to the admission of evidence relating

to what it terms as cellular telephone “ping” evidence. First,

Appellant contends that this Court erred by denying its pretrial

motion to exclude such evidence and accompanying expert

testimony. Appellant also claims that this Court erred by denying

his motions for mistrial when a Commonwealth witness

“repeatedly violated a pretrial order forbidding opinion testimony

regarding the cellular phone records.”

Appellant’s pretrial motion to have the cellular phone records

evidence excluded from admission at trial is premised upon the

argument that this type of evidence has not received general

acceptance within the relevant scientific community as required

by Frye v. United States, 293 F. 1013 (D.C.Cir.1923). He argues

that pursuant to Rule of Evidence 703, the facts that an expert

witness bases an opinion upon must be of a type reasonably

relied upon by experts in the particular field, and the type of

cellular phone evidence the Commonwealth planned to present

at trial does not meet the Frye requirements for admissibility;

therefore, it should have been excluded. Appellant also argued

that to allow such evidence to be presented to a jury without the

benefit of expert testimony to testify to the proximity of the cell

phone to the cell tower would be more prejudicial than probative

in violation of Rule of Evidence 403.

The Commonwealth responded to the pretrial motion by denying

that cellular phone tower evidence has not received general

acceptance in the relevant scientific community. Additionally, the

Commonwealth argued that the evidence it planned to present is

fact testimony, not expert testimony, about cell phone records to

show when Mr. Watson’s cell phone was used and which cell

phone tower was utilized for the service, which testimony would

not constitute an opinion. Based on this assertion, the

Commonwealth argued that Frye is not implicated with respect

to this testimony.

*****

Pennsylvania Courts apply the abuse of discretion standard to a

Court’s determination of the admissibility of expert scientific

testimony. Grady v. Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038

(2003). The test that a court must apply in ruling upon the

admissibility of expert scientific testimony was announced in

Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and requires

that “novel scientific evidence is admissible if the methodology

that underlies the evidence has general acceptance in the

relevant scientific community.” Grady v. Frito–Lay, Inc., 839 A.2d

at 1043–44 (2003) citing Commonwealth v. Blasioli, 552 Pa. 149,

713 A.2d 1117, 1119 (1998). In Grady v. Frito–Lay, Inc., the

Pennsylvania Supreme Court clearly emphasized that the Frye

test continues to be the applicable test in determining the

admissibility of expert scientific testimony.

As part of the pretrial proceedings in this matter, this Court held

a Frye hearing to resolve Appellant’s Motion and permitted

counsel to present argument to address Appellant’s position that

the cellular phone historical data evidence is novel scientific

evidence that does not pass the Frye test for admissibility. (N.T.

Pretrial, 9/10/12 at 14–71).

*****

After considering all testimony and argument, this Court ruled

that the cellular telephone technology to which Ms. Sauder

testified was not “novel” science which should be excluded under

the Frye standard. (N.T. Pretrial, 9/10/12 at 71). The Supreme

has stated that “Frye is not implicated every time science comes

into the courtroom; rather, it applies only to proffered expert

testimony involving novel science. What constitutes novel

scientific evidence has historically been decided on a case-by-

case basis, and there is some fluidity in the analysis; indeed,

science deemed novel at the outset may lose its novelty and

become generally accepted in the scientific community at a later

date, or the strength of the proponent’s proffer may affect the

Frye determination.” Commonwealth v. Dengler, 586 Pa. 54, 69–

70, 890 A.2d 372, 382 (2005) citing Commonwealth v. Delbridge,

580 Pa. 68, 859 A.2d 1254, 1260 (2004) (plurality opinion); See

also Pa.R.E. 702 and Grady, 839 A.2d at 1044.

Review of the record clearly reveals that Ms. Sauder, with her

ample education and experience, credibly confirmed that cellular

telephone technology has been the same for at least 20 years.

There was nothing presented in the testimony to dispute that the

functioning of the cell phone in relation to the cell tower and the

resulting data recorded by T–Mobile is novel in the cellular

service provider community or the electronics community

generally. As this Court determined that Detective Glucksman

was not going to testify as [an] expert or render an opinion about

the precise location of Appellant or his cell phone when calls

were made, he is merely a fact witness to which Rule of Evidence

702 would not apply. Therefore, this Court properly exercised its

discretion in denying Appellant’s Motion and admitting the

evidence Appellant sought to exclude.

(Doc. 10 at 105-108, Commonwealth v. Watson, No. 900 MDA 2013, 2014

WL 10803077 (Pa. Super. filed March 21, 2014) (unpublished

memorandum).

The purpose of a Frye hearing is only to determine whether expert

testimony and evidence has gained general acceptance in the scientific

community and is therefore admissible under Pennsylvania law. See

Commonwealth v. Walker, 92 A.3d 766, 780 (Pa. 2014); Perez v. Graham,

No. 13-CV-1428, 2014 WL 523409, at *9 (S.D.N.Y. Feb. 5, 2014), report and

recommendation adopted, 2014 WL 805958 (S.D.N.Y. Feb. 28, 2014).

Petitioner’s Claim Six, challenging the state court’s finding that cellular

telephone tower pings were admissible evidence, is a state evidentiary

matter wholly separate from the question of whether the admission of such

evidence violates the federal Constitution.

Generally, mere errors of state evidentiary law are not cognizable on

habeas review. See 28 U.S.C. §2254(a); see also Estelle v. McGuire, 502

U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” (citations omitted)). For this claim to be cognizable in

this habeas proceeding, Petitioner would have to demonstrate that his Frye

hearing violated an identifiable constitutional right and deprived him of a

“fundamentally fair trial.” See Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir.

2004) (quoting Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988)).

Petitioner has done neither. Because Watson fails to identify any federal

constitutional right that was violated during the trial court’s Frye hearing, the

alleged state-law error is not cognizable on federal habeas review. The state

court’s conclusion that the evidence was admissible is binding on this Court.

Estelle v. McGuire, 502 U.S. at 67-68. The fact that this conclusion of state

law is a subsidiary point in an overall ineffectiveness analysis does not make

the conclusion any less binding. Priester v. Vaughn, 382 F.3d 394, 402 (3d

Cir. 2004). As such, counsel was not ineffective for failing to raise this

meritless claim. Ross v. District Attorney, 672 F.3d 198, 221 n.9 (3d Cir.

2012). Accordingly, the Court finds that the underlying, otherwise defaulted,

claim of ineffective assistance of trial counsel failure to move to suppress this

evidence lacks merit, and Martinez does not excuse this procedural default.

iv. Claim Seven

Petitioner claims that “collateral counsel provided ineffective

assistance for failing to raise in the initial collateral review petition that trial

counsel was ineffective for failing to argue on direct review that Petitioner’s

sentence violates Alleyne v. United States, 570 U.S. 99 (2013).”6 (Doc. 2 at

16). Specifically, Petitioner states that under Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014), he “was not required to preserve an issue relative

to the legality of sentence to be entitled to retroactive application.” He claims

that “[he] was on direct appeal when Alleyne was decided,” and “counsel was

ineffective for failing to raise this claim on direct appeal and collateral counsel

was ineffective for failing to raise this claim in Petitioner’s PCRA petition.” Id.

at 17.

The Third Circuit has determined that Alleyne announced a “new rule

of law,” which under Supreme Court jurisprudence “generally applies to

cases still on direct review” but will only apply in limited circumstances to

cases in which the conviction is already finalized.” United States v. Reyes,

755 F.3d 210, 212 (3d Cir. 2014). The Third Circuit has determined that

6 In Alleyne, the Supreme Court of the United States determined that any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and proved beyond a reasonable

doubt. Alleyne at 99.

Alleyne does not apply retroactively to cases on collateral review. Id.

However, as Watson argues, his conviction had not yet become final when

the Supreme Court issued its decision in Alleyne. See United States v.

LaPrade, 2016 WL 7338416 (3d Cir. 2016) (finding Alleyne applicable where

it was decided during the 90 day period in which defendant could have filed

a petition for writ of certiorari in the United States Supreme Court), citing

Griffith v. Kentucky, 479 U.S. 314, 321-22 (“[R]etroactivity analysis for

convictions that have become final must be different from the analysis for

convictions that are not final at the time the new decision is issued.”).

On February 25, 2015, the Pennsylvania Supreme Court denied

Watson’s petition for allowance of appeal. (Doc. 10 at 182, Commonwealth

v. Watson, No. 651 MAL 2014, 112 A.3d 652 (Pa. 2015) (Table). His

conviction therefore did not become final until 90 days later, on May 26,

2015, when his time for seeking review by the United States Supreme Court

expired. See U.S. Sup. Ct. Rule 13; see also Kapral v. United States, 166

F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of

direct review or the expiration of time for filing such review, including the time

for filing a petition for writ of certiorari in the United States Supreme Court).

The Supreme Court issued its decision in Alleyne on June 17, 2013, before

Watson’s time for filing a petition for certiorari with the Supreme Court had

expired. Since Petitioner’s conviction was not yet final when the Supreme

Court issued its decision in Alleyne, he would have been able to seek relief

pursuant to its holding regardless of the fact that it has been determined not

retroactively applicable to cases on collateral review.

In this case, Watson did raise his Alleyne claim in his initial PCRA

petition, where it was denied for lack of merit as follows:

The last allegation states that counsel was ineffective for failing

to argue on direct appeal that defendant’s sentence was illegal

under the Alleyne case. This Court agrees with PCRA counsel

that his claim lacks merit. This Court refers to the following

exchange occurred during sentencing:

THE COURT: Count 19 is the persons not to possess,

that’s the firearm charge. That has a mandatory five

years, correct?

MR. ZAWISKY7: No, it’s not a mandatory.

THE COURT: What is it?

MR. ZAWISKY: It is just five years.

MR. DELP8: It has 60 to 60 guidelines.

THE COURT: It’s not a mandatory but it has a 60 to 60

guidelines.9

7 Attorney for the Commonwealth.

8 Defendant’s trial counsel.

9 Transcript of Proceedings, Sentencing Hearing, page 23, December 17,

2012. Defendant was sentenced on the firearms count of not less than 60

months nor more than 120 months.

(Doc. 10 at 374). Thus, the PCRA court dismissed Petitioner’s Alleyne claim

on the grounds that the trial court sentenced the Petitioner within the

guidelines, not the mandatory minimum. Petitioner abandoned this claim on

appeal to the Superior Court. (Doc. 10 at 503, Commonwealth v. Watson,

687 MDA 2017, 2018 WL 652925, at *3 (Pa. Super. 2018).

Acknowledging that the claim is procedurally defaulted, Petitioner now

alleges a layered claim of ineffective assistance of counsel, stating that his

“collateral counsel provided ineffective assistance for failing to raise in the

initial collateral review petition that trial counsel was ineffective for failing to

argue on direct review that Petitioner’s sentence violates Alleyne.” (Doc. 2 at

16).

Generally, ineffective assistance of PCRA counsel cannot serve as

cause to excuse the procedural default of the claim. See Coleman v.

Thompson, 501 U.S. 722, 752-53 (1991) (“Because Coleman had no right to

counsel to pursue his appeal in state habeas, any attorney error that led to

the default of Coleman’s claims in state court cannot constitute cause to

excuse the default in federal habeas.”); Pennsylvania v. Finley, 481 U.S. 551,

554-55 (1987) (there is no constitutional right to counsel on state collateral

review); Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002) (ineffectiveness

of PCRA counsel is not viable claim because there is no right to counsel on

PCRA review). Thus, because there is no federal constitutional right to

counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counsel’s

ineffectiveness to establish the “cause” necessary to overcome the default

of a federal habeas claim. Davila, 137 S. Ct. at 2062 (2017). Furthermore,

Martinez would not be applicable to his layered claim of ineffective

assistance of appellate counsel for failing to preserve the claim on direct

appeal, as Martinez excuses the procedural default only of errors committed

at the trial level, not errors committed on direct appeal. Davila, 137 S. Ct. at

2063. Consequently, the Court finds this issue meritless based on the PCRA

court’s decision and unable to be revived as an ineffective assistance of

counsel claim under Martinez.

B. Claims Adjudicated on the Merits

Under the AEDPA, federal courts reviewing a state 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 Watson 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 three remaining ineffective assistant of counsel

claims have been fully adjudicated on the merits during the state court

proceedings and will be addressed below.

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

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

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

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.

i. Claim One

Petitioner claims that trial counsel was ineffective for failing to request

a Kloiber instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820

(1954).

In addressing Petitioner’s claim, the Superior Court, in affirming the

PCRA court’s denial of relief, found the following:

Watson argues trial counsel provided ineffective assistance

when he failed to request a Kloiber instruction.

A Kloiber instruction informs the jury that an eyewitness

identification should be viewed with caution when either

the witness did not have an opportunity to view the

defendant clearly, equivocated on the identification of

the defendant, or has had difficulties identifying the

defendant on prior occasions.

Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa. Super. 2012)

(citation and footnote omitted). See also Pa. SSJI (Crim) §4.07B

Identification Testimony—Accuracy in Doubt.

At trial, Pamela Heinbaugh testified Watson broke into her home

and she identified him directly. See N.T., Jury Trial, 9/11/12, at

57–60, 67. But she also admitted that approximately five months

after the burglary she was unable to identify Watson in a

Pennsylvania State Police photo array. See id., at 66–67.10 Trial

counsel extensively cross-examined Heinbaugh about

inconsistencies in her trial testimony and preliminary hearing

testimony and about her failure to identify Watson in the photo

array. See id., at 68–80.

But trial counsel did not request a Kloiber instruction. And such

an instruction was clearly warranted, as Heinbaugh equivocated

in her identification between the photo array and trial testimony.11

Thus, this issue has arguable merit. We proceed to the prejudice

prong.

Watson did not plead prejudice in his PCRA petition. See

Amended PCRA Petition, filed 8/31/16, at ¶ 17. That alone is fatal

to his claim. He did, however, assert prejudice in his brief. Even

accepting that, Watson’s entire argument on that prong is as

follows: “Because it [i.e., the Kloiber instruction] was not [given

to the jury], the Appellant suffered prejudice and counsel was

ineffective.” Appellant’s Brief, at 17. How? Saying it does not

make it so. “Claims of ineffective assistance of counsel are not

self-proving [.]” Commonwealth v. Wharton, 811 A.2d 978, 986

(Pa. 2002) (citations omitted).

10 On cross-examination, she explained the photo array provided to her “was

a terrible copy.” N.T., Jury Trial, 9/11/12, at 79.

11 The Commonwealth maintains no Kloiber charge was necessary as

Heinbaugh testified she had a clear opportunity to observe Watson. See

Commonwealth’s Brief, at 12-13 The Commonwealth cites cases for the

proposition that “once the opportunity to observe is established it becomes

defense counsel’s cross-examination, not the court’s Kloiber charge, which

must highlight any problems with the quality of a witness’s observation.”

Commonwealth v. Cleveland, 703 A.2d 1046, 1049 (Pa. Super. 1997). That

is certainly correct. But we are not dealing with opportunity to observe here;

we are dealing with equivocation in the two identifications. Heinbaugh

identified Watson at trial, but not in the photo array. Cleveland is inapposite.

See Pa. SSJI (Crim) §4.07B 2.

“In order to meet the prejudice prong of the ineffectiveness

standard, a 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.” Commonwealth v.

Reed, 42 A.3d 314, 319 (Pa. Super. 2012) (internal quotation

marks omitted; citations omitted). The PCRA “requires that the

prejudice prong of an ineffectiveness claim be ‘plead and

prove[n] by a preponderance of the evidence.’ ” Commonwealth

v. Lassiter, 722 A.2d 657, 663 n.8 (Pa. 1998) (opinion

announcing the judgment of the court) (quoting 42 Pa.C.S.A.

§9543(a) ) (emphasis and brackets in original). Watson’s blunt

conclusion in his brief does not establish a reasonable

probability.

(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017, 2018 WL

652925, at *3 (Pa. Super., 2018).

The Superior Court’s decision that Petitioner failed to alleged prejudice

as a result of counsel’s failure to request a Kloiber instruction under

Pennsylvania law is a state law determination that is not subject to review by

this Court. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004)

(“Federal courts reviewing habeas claims cannot ‘reexamine state court

determinations on state-law questions.’ ”) (quoting Estelle, 502 U.S at 67-

68); see also Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir. 2010). For this

reason alone Petitioner’s claim that trial counsel was ineffective for not

requesting a Kloiber instruction fails. See, e.g., id. (since the federal habeas

court was bound by the state court’s determination that the instruction given

at his trial comported with state law, the petitioner cannot satisfy the

Strickland standard).

The claim also fails because Petitioner has not met the burden

imposed on him by AEDPA’s standard of review at §2254(d)(1), which is the

applicable provision that applies to this Court review of this claim. The

Superior Court applied the correct Strickland analysis when it evaluated this

claim. Thus, Petitioner cannot establish that the Superior Court’s

adjudication was “contrary to” Strickland. Williams, 529 U.S. at 406. Nor has

Petitioner shown that the Superior Court’s adjudication was an

“unreasonable application of” Strickland. The Superior Court determined that

Petitioner failed to show, prejudice under Strickland, as well as failed to show

that had the trial counsel requested a Kloiber instruction for Pamela

Heinbaugh’s testimony, the outcome of the case would have been different.

Unlike other cases where courts have found failure to request a Kloiber

instruction prejudicial, in this case, Ms. Heinbaugh’s testimony was not the

only evidence connecting the defendant to the case, as the PCRA court

stated, “there were multiple witnesses over the course of the trial” and that

“there was ample evidence presented to the jury to find the Defendant guilty.”

(Doc. 10 at 365). See Simmons, 647 A.2d at 570 (holding failure to request

Kloiber instruction was “clearly prejudicial” where the witness was “the only

witness who tied the defendant to the scene”).

Based on the above, Petitioner’s claim that trial counsel was

ineffective for not requesting a Kloiber instruction is denied because this

Court is bound by the Superior Court’s state law determination that Petitioner

was not prejudiced by any lack of instruction and also because its decision

withstands review under AEDPA at §2254(d)(1).

ii. Claim Two

Petitioner claims that “trial counsel was ineffective for failing to request

a corrupt source charge in regards to the testimony of Latoya Craighead.”

(Doc. 2 at 9). Specifically, he claims that Latoya Craighead should have been

viewed as an accomplice and “charged and punished for the crimes in which

Petitioner was charged.” Id.

The PCRA court reviewed this claim and denied it, explaining the

following:

The next claim is counsel was ineffective for failure to request an

accomplice-corrupt source jury instruction where the testimony

of Latoya Craighead qualified for such instruction. Amended

PCRA, paragraph 20. In support of this contention, Defendant

relies on testimony from the pretrial hearing held in which

Defendant’s preliminary hearing counsel testified she believed

that Ms. Craighead was facing charges of her own and that she

had counsel to represent her. N.T. Pretrial Hearing 13. Again,

Defendant relies on testimony from the pretrial hearing from

Detective Glucksman testifying, in essence, that Ms. Craighead

was selling items on Facebook and did not want to get charged

with stolen property. N.T. Pretrial Hearing 103-116. We find that

there is no evidence to support that counsel was ineffective for

failure to request an accomplice-corrupt source jury instruction.

“[I]t ‘is well established that, in any case in which an accomplice

implicates the defendant, the [judge] should instruct the jury that

the accomplice is a corrupt and polluted source whose testimony

should be considered with caution.’ Commonwealth v. Hanible,

612 Pa. 183, 30 A.3d 426, 462 (2011) (citation omitted). A

corrupt-source instruction is warranted where sufficient evidence

is presented as to whether the witness is an accomplice.

Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1181

(1999). An individual is an accomplice if, with intent to promote

or facilitate the commission of the offense, he solicits, aids,

agrees, or attempts to aid another person in planning or

committing the offense. 18 Pa. C.S. §306(c)(1).” Commonwealth

v. Treiber, 121 A.3d 435, 459 (Pa. 2015).

Instantly, Ms. Craighead was not Defendant’s accomplice.

Defendant mistakenly interprets Detective Glucksman’s

testimony at the preliminary hearing. Detective Glucksman

indicated that Ms. Craighead was upset and did not believe that

Defendant was capable of committing the crimes. N.T. Pretrial

Hearing 115. However, Detective Glucksman also testified that

Ms. Craighead consented to us [law enforcement] taking the

stolen property. Id. at 116. Ms. Craighead was fully cooperative

during the investigation and testified on behalf of the

Commonwealth at Defendant’s jury trial. N.T. Jury Trial

September 12, 2012, 4-22. The record is devoid of any intent by

Ms. Craighead to “promote or facilitate the commission of the

offense.” There was no evidence presented at trial from which

the jury could have reasonably inferred that Ms. Craighead was

Defendant’s accomplice. Instead, the evidence shows that Ms.

Craighead was cooperative and testified on behalf of the

Commonwealth. As such, trial counsel properly refrained from

objecting to the jury instructions as an accomplice-corrupt jury

instruction was not warranted. Additionally, assuming arguendo

that defendant was entitled to an accomplice-corrupt source jury

instruction, Defendant set forth no facts or argument that would

satisfy prong (3) in that “but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.” There was ample

evidence and testimony, from a number of witnesses that

implicated the Defendant in the commission of these crimes.

Even with the jury instruction, there is nothing in the record to

suggest that the outcome would have been different. In sum, trial

counsel cannot be found ineffective for failure to request an

accomplice-corrupt jury instruction and an evidentiary hearing is

not necessary.

(Doc. 10 at 365-367). In affirming the PCRA court’s dismissal of this claim,

the Superior Court found the following:

Lastly, Watson argues trial counsel provided ineffective

assistance when he failed to request a corrupt source charge in

regards to the testimony of Watson’s girlfriend, Latoya

Craighead, who testified as a Commonwealth witness.

Craighead testified Watson instructed her to go to his apartment

and remove his possessions. See N.T., Jury Trial, 9/12/12, at

13–14. She went there and took “everything” out of his

apartment, including “electronics.” Id., at 14. She further testified

Watson instructed her to try to sell two televisions and a radio.

See id., at 17.

Watson maintains Craighead was an accomplice. “A person is

an accomplice of another person in the commission of an offense

if ... with the intent of promoting or facilitating the commission of

the offense, [s]he ... aids or agrees or attempts to aid such other

person in planning or committing it [.]” 18 Pa.C.S.A.

§306(c)(1)(ii). “An accomplice charge is necessitated not only

when the evidence requires an inference that the witness was an

accomplice, but also when it permits that inference.”

Commonwealth v. Watts, 501 A.2d 1152, 1154 (Pa. Super. 1985)

(citation omitted). See also Hanible, 30 A.3d at 462 (“The charge

is warranted where the evidence is sufficient to present a jury

question with respect to whether the Commonwealth’s witness is

an accomplice.”) The motivation behind the instruction is that an

accomplice witness will implicate others to gain leniency. See

Watts, 501 A.2d at 1154. The instruction can be found at Pa.

SSJI (Crim) §4.01 Accomplice Testimony.

The Commonwealth never charged Craighead with any crime,

nor was she facing charges. But the jury was unaware of this.

From the jurors’ perspective, her actions in removing

“everything” from Watson’s apartment and then her complying

with his directive for her to try to sell two televisions and a radio,

in the context of this case, permits a reasonable inference that

she was an accomplice to the crime of receipt of stolen property.

The PCRA court relies on the fact that “Mrs. Craighead was

cooperative and testified on behalf of the Commonwealth” to

support its finding that Craighead was not an accomplice. PCRA

Court Opinion, at 7. As does the Commonwealth. See

Commonwealth’s Brief, at 14 (stating Craighead “was fully

cooperative with the investigation”). The witness’s cooperation

and testimony on the Commonwealth’s behalf is the impetus

behind the instruction. Accordingly, we find this issue has

arguable merit. But is there prejudice?

Watson’s argument founders, once more, on the prejudice

prong. He did not plead prejudice in his PCRA petition. See

Amended PCRA Petition, filed 8/31/16, at ¶ 20. As noted, by itself

that is fatal to his claim. See 42 Pa.C.S.A. §9543(a). And even

looking past the failure to plead, in his brief Watson merely

claims, “the testimony of Mrs. Craighead was crucial to the

Commonwealth’s case” and then simply concludes he “suffered

prejudice, as the outcome of the trial could have been different if

the correct jury instruction was given.” Appellant’s Brief, at 19.

Again, one cannot but wonder how, exactly?

As mentioned, “[t]o demonstrate prejudice, a petitioner must

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

actions or inactions, the result of the proceeding would have

been different.” Commonwealth v. Mason, 130 A.3d 601, 618

(Pa. 2015) (citations omitted). Watson’s terse conclusion falls far

short of this standard.

Even if the jury disbelieved Craighead’s testimony, the

Commonwealth presented a plethora of evidence to establish

beyond a reasonable doubt that Watson was the perpetrator of

the burglaries and related crimes. For instance: Heinbaugh’s

identification of Watson at trial, see N.T., Jury Trial, 9/11/12, at

57–60, 67; Anthony Valenti’s testimony of catching Watson trying

to kick his home’s door down, see N.T., Jury Trial, 9/11/12, at

106–107, 109; Detective James Glucksman’s testimony, see

N.T., Jury Trial, 9/11/12, at 126–191; and the testimony

throughout trial concerning the technological ability to place

Watson in close proximity to the burglaries through cellphone

“pings.”

(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017, 2018 WL

652925, at *3 (Pa.Super., 2018).

Considering the state court’s well-reasoned analysis, we find that the

state court’s rejection of this claim does not amount to an unreasonable

application of Strickland, nor was the state court’s ruling based upon an

unreasonable interpretation of the facts in light of the evidence of record.

Because the PCRA court found that there was no evidence to present to the

jury that Ms. Craighead was an accomplice of petitioner, they determined

that Petitioner was not prejudiced by counsel’s decision not to request a

corrupt source jury instruction. However, the Superior Court found that even

giving arguable merit to the claim, Petitioner failed to establish any prejudice

in not providing a corrupt source jury instruction or that the outcome of the

case would have been different with the instruction. This Court finds that the

state courts’ analysis is a reasonable application of Strickland. Accordingly,

Petitioner is not entitled to habeas relief on this claim.

iii. Claim Four

Petitioner claims that “pretrial counsel was ineffective for testifying to

confident[ial] information in violation of attorney client privilege.” (Doc. 2 at

12). Specifically, Petitioner states that “initial counsel, Korey Leslie, was

called to testify at Petitioner’s pretrial hearing on June 28, 2012,” and that

“[d]uring this proceeding Leslie provided testimony concerning his strategy

and matters discussed with Petitioner, protected by attorney client privilege.”

Id.

The Superior Court found this claim without merit based on the

following:

Watson first argues that Korey Leslie, Esquire, his preliminary

hearing counsel, provided ineffective assistance by providing

“confidential information” to the Commonwealth at a pretrial

hearing. Appellant’s Brief, at 12.

Prior to trial, Watson filed a petition for writ of habeas corpus,

alleging the Commonwealth failed to present a prima facie case

at the preliminary hearing. Attorney Leslie testified at the hearing

held on the habeas petition. Watson claims he never waived his

attorney-client privilege.12 And according to Watson, Attorney

Leslie’s testimony “provided the Commonwealth with information

on how the Appellant was going to proceed during the trial” and

that his testimony explicitly disclosed “what the trial strategy

would be [.]” Id. In support of this argument, Watson provides a

12 Watson’s trial counsel lodged no objection to Attorney Leslie’s testimony.

single citation to the notes of testimony. The record, however,

does not support his assertions as to any revelation of trial

strategy.

At the hearing, Attorney Leslie testified only as to the strategy he

employed at the preliminary hearing. See N.T., Pre–Trial

Hearing, 6/28/12, at 11–12. There were 45 witnesses at the

preliminary hearing ready to testify for the Commonwealth. See

id., at 10. The Commonwealth called Attorney Leslie as a witness

to explain his reasoning behind waiving the requirement of the

Commonwealth calling all 45 witnesses to testify. Attorney Leslie

explained that “[u]p to that point there had only been maybe one

or two identifications” and he “didn’t want to run the risk of

everyone getting on the stand and saying that they remembered

him from somewhere.” Id., at 12. At that stage of the

proceedings, the defense, not surprisingly, was that Watson was

not the perpetrator of the burglaries. See id., at 13, 23. So, to

avoid potential identifications from the 45 witnesses assembled

and ready to testify, Attorney Leslie entered into an agreement

with the Commonwealth permitting them to proceed at the

preliminary hearing without putting all of those witnesses on the

stand. See id., at 15.

Attorney Leslie never disclosed anything about trial strategy. His

testimony focused exclusively on the strategy employed at the

preliminary hearing. See id., at 7–26. Thus, Watson’s assertion

he was prejudiced by Attorney Leslie’s “reciting what the trial

strategy would be” is simply baseless. Appellant’s Brief, at 12.

(Doc. 10 at 503, Commonwealth v. Watson, 687 MDA 2017, 2018 WL

652925, at *3 (Pa.Super. 2018).

Thus, the Court finds that the state courts’ review of Petitioner’s Claim

Four did not involve an unreasonable application of Strickland or was based

on an unreasonable determination of the facts in light of the evidence. To the

extent that Petitioner is attempting to argue that trial counsel should have

objected to the preliminary hearing counsel testifying at a pretrial hearing in

regard to whether or not the Commonwealth established a prima facie case,

the prejudicial prong under Strickland has not been satisfied. Thus, the

Superior Court’s decision, was not “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” Yarborough v. Gentry, 540 U.S. 1, 5

(2003). Consequently, Petitioner’s Claim Four provides no basis for habeas

relief and his petition for writ of habeas corpus will be denied.

V. Certificate of Appealability

“Under the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), a ‘circuit justice or judge’ may issue a COA [certificate of

appealability] only if the petitioner ‘has made a substantial showing of the

denial of a constitutional right.’” Tomlin v. Britton, 448 Fed.Appx. 224, 227

(3d Cir. 2011) (citing 28 U.S.C. §2253(c)). “Where a district court has

rejected the constitutional claims on the merits, ... the petitioner must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

For the reasons set forth herein, Petitioner has not made a substantial

showing of the denial of a constitutional right or that jurists of reason would

find it debatable that Court’s assessment of the claims debatable or wrong.

Accordingly, a COA will not issue.

VI. Conclusion

For the reasons set forth above, the Court will deny the petition for writ

of habeas corpus. A separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: November 14, 2022

18-1718-01