# LARKINS v. BRITTAIN

> District Court, W.D. Pennsylvania · October 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10418242

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** October 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10418242

## How later opinions describe it (automated extraction)

- explaining that the miscarriage of justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.’”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIAN EDWARD LARKINS, )
Civil Action No. 2:19-cv-721
)

)
Petitioner, )
Chief United States Magistrate Judge
) Cynthia Reed Eddy
)
vs. )

)
)
SUPERINTENDENT BRITTAIN,
)
DISTRICT ATTORNEY OF
)
ALLEGHENY COUNTY, ATTORNEY
)
GENERAL OF THE STATE OF
)
PENNSYLVANIA,
)
)
)
Respondents.
)

MEMORANDUM OPINION AND ORDER1
0F
Petitioner, Julian Edward Larkins (“Larkins”), a prisoner at the State Correctional
Institution in Frackville, filed a pro se Petition and counseled Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), challenging the Judgment of Sentence
imposed on him at Criminal Case Nos. CP-02-CR-0015679-2009 (docket number “15679-
2009”) and CP-02-CR-0017394-2009 (docket number “17394-2009”), by the Court of Common
Pleas of Allegheny County, on April 10, 2012. (ECF Nos. 7, 8, 10). For the reasons that follow,
the Petition will be dismissed with prejudice. Furthermore, because jurists of reason would not
find this disposition of the Petition debatable, a certificate of appealability will also be denied.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to jurisdiction by a United States Magistrate Judge, including entry of final judgment.
(ECF Nos. 13 and 21).

1
Factual and Procedural History
This case arises from the shooting death of Stefan Whitfield (“Whitfield”) and the
shooting of Herman Moore (“Moore”) by Larkins on in the early morning hours of October 15,
2009, near the Mac-Can-Do Bar in the Homewood section of the City of Pittsburgh.
Specifically, Larkins was charged at docket number 17394-2009 with criminal attempt to

commit homicide and aggravated assault for shooting and injuring Moore, and at docket number
15679-2009 with criminal homicide and discharging a firearm into an occupied structure for the
death of Whitfield. Larkins was tried by a jury from January 10 to January 17, 2012, and the
following relevant facts were established. See Trial Transcripts Volumes 1 and 2 (“TT1” and
“TT2”).
By way of background, victims Moore and Whitfield were friends who frequented the
Mac-Can-Do Bar, located near the intersection of Brushton Avenue and Kelly Street in
Homewood, Allegheny County, Pennsylvania. Moore arrived alone at the bar between 10:00
p.m. and 11:00 p.m. on October 14, 2009. Whitfield was already at the bar upon Moore’s

arrival. Moore and Whitfield eventually were “smoking a little weed outside” and heard
gunshots. TT1 at 214. After hearing the third shot, both men ran. Moore ran “to the back of the
bar.” Id. at 216. Then, when Moore heard sirens, he went to the front of the bar, saw Whitfield
laying on the ground2 and kept walking. Moore had been shot in the arm while running.
Officer John Shamlin was dispatched to the area near the Mac-Can-Do bar, and he was
the first police officer to arrive. He saw “a male laying down on the sidewalk.” TT2 at 51. The

2 According to Moore, police had arrived, but paramedics had not by that time.

2
male, later identified as Whitfield, was laying “face-up;” his “face was covered in blood;” and he
“appeared to be deceased.” Id. at 52. Whitfield was later pronounced dead.
Meanwhile, Donald Wilson, a former City of Pittsburgh Police Officer who owned a
security firm hired to patrol a housing development in the Homewood area, heard gunshots.
Specifically, he and his partner, Derek Vasser, were in separate vehicles headed from the

housing area they were patrolling to a nearby Sunoco gas station. Wilson testified that after
hearing several gunshots and seeing gun flashes, he backed up his vehicle and saw “a black male
that had on black pants, [and] a gray hooded top.”3 TT1 at 267. According to Wilson, Larkins
“started running across this open field to an alleyway called Formosa Way.” Id. at 267-68.
Wilson also saw “another gentleman that was coming in the opposite direction” who “ran up that
alleyway but he turned and cut off.” Id. at 268. Wilson then tried to maneuver his vehicle to
chase Larkins, and eventually came upon Vasser, who “had his weapon on [Larkins]” while
Larkins was on the ground.4 Id. at 270. Wilson exited his car and approached the individual,
who told Wilson that “he threw something under the car.” Id. at 271. Using his flashlight,

Wilson looked under the car, and saw what “appeared to be a black Glock pistol laying on the
ground.” Id. Wilson and Vasser then handcuffed Larkins.
According to Wilson, Larkins “started struggling as if he wanted to get up to try to run,”
and Larkins told Wilson that “his friend had just been shot.” Id. at 278. Vasser called 911. City
of Pittsburgh Police Officer Daniel Zeltner was the first to arrive at this scene. At that time,

3 This man was later identified as Larkins.
4 Vasser testified that he saw a “gentleman come off of Formosa Way and come underneath a
white SUV parked on the corner.” TT1 at 340. Vasser drew his gun and was trying to pull
Larkins out from under the car when Wilson arrived.

3
Larkins was “handcuffed on his stomach” and lying facedown on the ground. TT2 at 75. Officer
Zeltner testified that Larkins was wearing a “gray hooded sweatshirt and dark pants.” Id.
Larkins was also wearing a “multi-colored hat with some braids.” Id. at 75-76. Officer Zeltner
recognized Wilson and Vasser as “security agents that work in a housing complex in
Homewood.” Id. at 76. After Officer Zeltner arrived, Vasser and Wilson stood Larkins up, and

they searched him. They recognized a cell phone and a hat that was “inside of his hoody jacket.”
Id. at 79. Larkins was then placed in Officer Zeltner’s patrol vehicle. Meanwhile, Wilson and
Vasser told Officer Zeltner about “a gun under the vehicle, and the gun was recovered.” Id. at 82.
Detective Charles Hanlon “took [Larkins] out of the car and performed a gunshot residue
test on his hands.” TT2 at 110. Hanlon transported Larkins back to the homicide office,
packaged Larkins’s sweatshirt as evidence, and processed the gunshot residue test.5 Hanlon also
collected the “Glock 9 mm located underneath the white Buick SUV and a [] multi-colored knit
cap with long hair braids [] attached.”6 Id. at 115.
Based on the foregoing incident, Larkins was charged at the foregoing docket numbers.

Prior to the jury trial, the Commonwealth filed a motion in limine seeking to preclude “evidence
related to the fact that [] Derek Vasser engaged in misconduct while acting in his capacity as a
deputy constable and/or evidence that Mr. Vasser’s appointment as a deputy constable was
revoked due to that misconduct.” Motion in Limine (ECF No. 17-1) at 41. Specifically, the

5 This testing revealed that there was gunshot residue on Larkins. See TT2 at 171.
6 This gun that matched 20 spent cartridges cases found near Whitfield. In addition, Thomas
Meyers, a forensic scientist with the Allegheny County Medical Examiner’s Office, testified that
he examined DNA found on that firearm and compared it samples from Whitfield and Larkins.
Meyers was able to exclude Whitfield as a contributor to the DNA mixture found on the firearm.
TT2 at 290. Meyers was not able to exclude Larkins. Id. at 292.

4
Commonwealth contended that Larkins should be precluded from utilizing this evidence as
impeachment of Vasser pursuant to Pennsylvania Rules of Evidence 403and 608. See Hearing
Transcript, 3/8/2011, at 4-5.
On March 17, 2011, the trial court entered an order barring Larkins from introducing
“evidence in the trial [] related to the fact that Judge Manning found that Derek Vasser engaged

in misconduct while acting in his capacity as a deputy constable and/or evidence that Mr.
Vasser’s appointment as a deputy constable was revoked due to that misconduct and/or evidence
that Judge Jeffrey A. Manning found the testimony of Derek Vasser to be incredible.” Order
(ECF No. 17-1) at 47.
Larkins proceeded to a jury trial at both docket numbers from January 10-17, 2012,
before The Honorable Kathleen A. Durkin, where the aforementioned evidence and testimony
were presented. In addition to the aforementioned evidence and testimony from Moore,
Shamlin, Wilson, Vasser, Zeltner, and Hanlon, the jury heard evidence and testimony from
numerous other witnesses, including Detective Robert Renk. It was the Commonwealth’s theory

of the case that in early 2009 Larkins and Moore were involved in an altercation between their
respective groups at another bar, which provided motive for this shooting.
Prior to Renk’s testimony, which was going to include transcripts from 19 telephone calls
made to and from Larkins in both May and August 2009, counsel for Larkins objected. TT2 at 5.
Larkins contended that the phone calls were “too remote” because they were made months prior
to the October shooting. In addition, Larkins argued that because Moore testified at trial that he
does not go by the name “Fat Herm,” the calls, which referenced Fat Herm, were irrelevant. Id.
at 5-6. According to the Commonwealth, these 19 calls were relevant because Larkins was

5
discussing an “incident that happened at the Trappers Club where people were fighting.” Id. at 7.
Specifically, “Fat Herm was on the other side of that fight.” Id. The Commonwealth contended
that despite Moore’s testimony that he was not Fat Herm, these calls established motive. Id.
Larkins responded that this testimony was essentially the Commonwealth’s way of tying the
shooting to activity related to the Homewood Crips.7 Id. at 9. The trial court permitted the

introduction of these 19 calls, and the explanatory testimony of Renk, but ruled there could not
be a reference to the federal investigation. The trial court anticipated objections during Renk’s
testimony.
At trial, Renk testified that during 2009, he intercepted “a number of different telephone
calls involving [] Larkins, that were either made by him or received by him.” TT2 at 20. He
testified that these interceptions were conducted pursuant to court orders on both May 6, 2009,
and August 25, 2009, and there were 19 calls “that may relate to this matter.” Id. at 21. The
Commonwealth played each of the calls at trial. Id. at 27-43. Relevant at this juncture is the
following.

Call 1 occurred on May 6, 2009, and was an incoming call to Larkins from Asa
Thompkins lasting nearly six minutes. Id. at 26. The two discussed legal troubles, guns, and
gunshot wounds. The relevant portion of the call occurred toward the end, when the two
discussed a fight where Larkins said, “Fat Herm and them jumped me” at the Trappers Club.
Transcript of Call 1 (ECF No. 17-1) at 364.

7 The reason why these intercepts were court ordered in the first place was because there was an
ongoing federal investigation into the Homewood Crips. TT2 at 12. It was for this reason that
Renk was involved in this matter.

6
Calls 3 through 19 all occurred in the late evening of August 23, 2009. Larkins spoke to
“Booter,” Thompkins, Dorian Peebles, Corey Clark, “Tiki,” and Mariah Bey.8 The inference
from these calls was supposed to be that Larkins had previously tried to track down and shoot
Moore near the Mac-Can-Do Bar. See Transcripts of Calls 3-19 (ECF No. 17-1) at 366-382. For
example, Call 15 was a three-minute call from Larkins to “Tiki,” who was standing outside the

Mac-Can-Do Bar, and told Larkins that he did not see “Chubs.” 9 Transcript of Call 15 (ECF No.
17-1) at 378.
On January 17, 2012, the jury found Larkins guilty of all charges, and on January 19,
2012, the Commonwealth filed notice of its intent to seek a mandatory sentence pursuant to 42
Pa.C.S. § 9712, because Larkins visibly possessed a firearm. On April 10, 2012, Judge Durkin
sentenced Larkins to a mandatory term of life imprisonment without parole for first-degree
murder and imposed additional concurrent and consecutive sentences for the other convictions.
Trial counsel, Robert Stewart, Esq., was permitted to withdraw.
On May 10, 2012, Larkins, through Attorney Joshua Russell Roberts, timely filed a

notice of appeal to the Superior Court of Pennsylvania. On January 22, 2014, the appellate court
affirmed Larkins’s judgment of sentence, and Larkins filed a petition for allowance of appeal to
the Supreme Court of Pennsylvania. (ECF No. 17-1 at 224-238, 272-302). On August 21, 2014,
the Supreme Court denied Larkins’s petition for allowance of appeal, and Larkins did not file a

8 Mariah Bey was Larkins’s girlfriend at the time.
9 Renk initially testified that he believed that Chubs was actually Fat Herm. TT2 at 40.
However, in Call 18, Larkins was intercepted saying, “Man naw, cause he said Fat Herm,
Chubbs, he said all them n***s, he said he seen all of them.” Transcript of Call 18 (ECF No. 17-
1) at 381. On cross examination, Renk acknowledged that “it is apparent that Fat Herm and
Chubs are two different people.” TT2 at 44.

7
petition for writ of certiorari to the United States Supreme Court. (ECF No. 17-1 at 304). See
Commonwealth v. Larkins, 96 A.3d 1090 (Pa. Super. 2014), appeal denied, 97 A.3d 1043 (Pa.
2014) (table) (“Larkins I”).
On May 1, 2015, Larkins timely filed pro se his first petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9545. (ECF No. 17-1 at 305-306).

Attorney Christy Foreman was appointed to represent Larkins, and she filed an amended petition
raising claims that Attorney Stewart was ineffective in his representation of Larkins at trial.
(ECF No. 17-1 at 307-334). A hearing on Larkins’s petition was held before Judge Durkin, and
on April 20, 2017, and the PCRA court entered an order concluding that Larkins’s issues did not
merit relief. (ECF No. 17-1 at 397). After the reinstatement of his right to file an appeal nunc pro
tunc, on August 29, 2017, Larkins filed an appeal to the Superior Court of Pennsylvania. (ECF
No. 17-1 at 406-445). On May 8, 2018, the appellate court affirmed the order of the PCRA court.
(ECF No. 17-1 at 534-544). Larkins timely filed a petition for allowance of appeal to the
Supreme Court of Pennsylvania, and on December 5, 2018, the Supreme Court denied Larkins’s

petition. (ECF No. 17-1 at 548-596). Commonwealth v. Larkins, 192 A.3d 229 (Pa. Super. 2018),
appeal denied, 198 A.3d 1053 (Pa. 2018) (table) (“Larkins II”).
Having been denied relief in state court, Larkins pro se filed in this Court a habeas corpus
petition pursuant to 28 U.S.C. § 2254, raising four claims.10 See Amended Petition (ECF No. 10)

10 Larkins initially filed his without the appropriate filing fee. (ECF No. 1). On July 2, 2019,
Larkins filed a petition for leave to proceed in forma pauperis, which was denied pending the
payment of a $5.00 filing fee. (ECF Nos. 3, 4). On July 23, 2019, Larkins submitted the filing
fee, and the habeas petition was filed; however, this Court ordered Larkins to re-submit his
petition as it did not substantially comply with the rules. (ECF Nos. 5-7). On August 28, 2019,
Larkins refiled the petition; however, the petition was not signed, and on August 30, 2019, this

8
at 5-10. On November 15, 2019, Respondents filed an Answer (ECF No. 14), and on November
26, 2019, Larkins filed a brief in support of his petition. (ECF No. 19).11 Subsequently, on
December 1, 2020, counsel for Larkins filed a notice of appearance and moved to file an
Amended Petition. (ECF Nos. 22, 24). This Court granted that motion, and on September 28,
2021, counsel for Larkins filed a brief in support of the Amended Petition.12 (ECF No. 34). On

October 20, 2021, the Commonwealth filed an Amended Answer and Brief. (ECF No. 36).

Court ordered Larkins to submit a signed petition. (ECF Nos. 8-9). On September 18, 2019,
Larkins submitted the signed petition. (ECF No. 10). He set forth the following claims: (1)
“Rights were violated when the trial court did not allow defense an effective cross-examination
of the Commonwealth’s star witness;” (2) “Ineffective assistance of counsel for not protecting
defendant’s rights for not objecting to irrelevant and prejudicial phone recordings;” (3)
“Ineffective assistance of counsel for failure to investigate the Commonwealth’s introduction of
evidence that could have and should have been investigated, specifically the clothes in the form
of a hoodie that was allegedly worn by defendant at the scene of the crime;” and (4) “Ineffective
assistance of counsel for failure to object to evidence prejudicial to defendant, specifically
pictures of the hoodie allegedly worn by defendant at the scene of the crime.” Amended Petition
(ECF No. 10) at 5, 7, 8, 10.
11 In this brief, Larkins raised three separate issues, although one of those issues had subparts. In
his first issue, Larkins contended that the trial court abused its discretion by failing to permit
counsel to cross-examine Vasser on having been removed as a deputy constable. See Larkins’s
Brief (ECF No. 19) at 11-22. In his second issue, Larkins contended that trial counsel was
ineffective for failing to investigate the hoodie the Commonwealth used as evidence and for
failing to object to testimony of Wilson and Renk. Larkins also contended that appellate counsel
was ineffective for failing to raise these issues on appeal. Id. at 23-28. Finally, Larkins contended
that the trial court “abused its discretion by admitting irrelevant telephone conversations.” Id. at
28-36.
12 In this brief, Larkins narrowed his issues and presents only two for this Court’s review. See
Larkins’s Br. (ECF No. 34). In his first issue, Larkins contends that “[t]he trial court violated
Petitioner’s right to confrontation by prohibiting any cross-examination of former deputy
constable Derek Vasser regarding any facts related to him being stripped of his job by the
Honorable Judge Jeffrey A. Manning.” Id. at 32. Larkins also claims that trial counsel was

9
This Court has reviewed the filings of the parties, as well as the state court record,
including the transcripts from the preliminary and pretrial hearings, trial, sentencing hearing, and
PCRA hearing. The matter is fully briefed and ripe for disposition.
The Standard for Habeas Relief under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in

violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing
habeas corpus petitions “must be vigilant and independent . . . a commitment that entails
substantial judicial resources.” Id. However, “[t]he writ of habeas corpus is an extraordinary
remedy that guards only against extreme malfunctions in the state criminal justice systems.”
Shinn v. Ramirez, 142 S. Ct. 1718, 1731 (2022) (internal quotation marks omitted).
The federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “imposes significant procedural
and substantive limitations on the scope” of the Court’s review. Wilkerson v. Superintendent
3F3F
Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017). Under 28 U.S.C. § 2254, federal courts in
habeas cases must give considerable deference to determinations of state trial and appellate
courts. See Renico v. Lett, 599 U.S. 766, 772 (2010). Various standards must be met before the
Court can review the merits of a habeas petition.
Timeliness
Before the Court can address the merits of a habeas petition, it must first decide whether
it was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019).

ineffective for failing to raise specific objections to the wiretapped phone calls introduced by the
Commonwealth at trial. Id. at 48.

10
Pursuant to AEDPA, a state prisoner must file his federal habeas claims within one year of the
date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A).
Exhaustion
Another procedural prerequisite is the requirement that the petitioner “has exhausted the
remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C.

§ 2254(b). An exhausted claim is one that has been “fairly presented” to the state courts “by
invoking one complete round of the State’s established appellate review process,” and which has
been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir. 2002)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568 U.S.
298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present [the]
federal claim’s factual and legal substance to the state courts in a manner that puts them on
notice that a federal claim is being asserted.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir.
2010) (citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits
“when a state court has made a decision that finally resolves the claim on the basis of its

substance, rather than on a procedural, or other, ground.” Collins v. Sec’y of Pa. Dep’t of Corr.,
742 F.3d 528, 545 (3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
Although mandatory, the exhaustion requirement “turns on an inquiry into what
procedures are ‘available’ under state law.” O’Sullivan, 526 U.S. at 847. Under Pennsylvania
law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court,
either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court’s
denial of post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004)

11
(finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not
required, for purposes of exhausting state court remedies).13
4F4F
Procedural Default
If a state prisoner has not fairly presented a claim “to the state courts but state law clearly
forecloses review, exhaustion is excused, but the doctrine of procedural default may come into
play.” Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves
as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to
review a habeas claim. Federal courts may not consider the merits of a procedurally defaulted
claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice
resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI,
902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)
(quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, 139 S. Ct. 1613 (2019).14 The
5F5F

13 Traditionally, under Pennsylvania law, exhaustion meant that a claim must be presented to the
trial court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. See Evans v.
Court of Common Pleas, Delaware County, PA, 959 F.2d 1227, 1230 (3d Cir. 1992). However,
on May 9, 2000, the Pennsylvania Supreme Court issued Judicial Administration Order 218,
which provides that “in all appeals from criminal convictions or post-conviction relief matters, a
litigant shall not be required to petition for rehearing or allowance of appeal following an
adverse decision by the Superior Court in order to be deemed to have exhausted all available
state remedies respecting a claim of error. When a claim has been presented to the Superior
Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the
litigant shall be deemed to have exhausted all available state remedies for purposes of federal
habeas corpus relief. . . . ” In re: Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam).

14 A petitioner, alternatively, can overcome a procedural default by demonstrating that the
court’s failure to review the defaulted claim will result in a “miscarriage of justice.” See
Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260
(3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases
in which new evidence shows ‘it is more likely than not that no reasonable juror would have
convicted [the petitioner]’.” Preston, 902 F.3d at n.11 (quoting McQuiggin v. Perkins, 569 U.S.

12
burden lies with a petitioner to demonstrate circumstances that would serve to excuse a
procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman,
501 U.S. at 750.
“Cause for a procedural default exists where something external to the petitioner,
something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the

State’s procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original)
(citations and internal quotation marks omitted). To establish prejudice, a petitioner must show
not merely that there were errors that created a possibility of prejudice, but that they “worked to
his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court
reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey
v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017) (citation omitted).
Larkins’s Habeas Petition

The petition filed by Larkins, as well as each of his claims, will be reviewed with these
standards in mind.
Timeliness
In this case, Respondents do not contest that the petition was timely filed. Answer (ECF
No. 17) at 20. For the purposes of both the one-year AEDPA and the PCRA limitations period,

383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298, 329
(1995)). Here, the Court concludes that nothing in the record suggests that Larkins could met
the Schlup test. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that the miscarriage of
justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence - that was not presented at
trial.’”).

13
and because Larkins did not file a petition for writ of certiorari to the United States Supreme
Court, Larkins’s judgment of sentence became final on November 19, 2014, which was the
expiration of time to do so.15 When Larkins filed his PCRA petition on May 1, 2015, the one-
year habeas statute was “immediately tolled.” Nelson v. Superintendent of SCI-Retreat, 2019
WL 897296 *2 n.4 (E.D. Pa. Jan. 31, 2019). At that point, only 163 days of the limitations

period had expired. Larkins’s PCRA petition remained pending in the state court system until
December 5, 2018, when the Pennsylvania Supreme Court denied Larkins’s petition for
allowance of appeal. Because Larkins did not seek review by the United States Supreme Court,
the AEDPA statute of limitations began to run again on March 5, 2019. Thus, Larkins had until
September 23, 2019, to file timely a federal habeas petition. The instant Petition was filed on
May 17, 2019.16 Thus, the Court agrees that the instant petition was timely filed.
Having concluded the petition was timely filed, this Court will now consider the merits of
both grounds for relief, after first assessing exhaustion and procedural default.
Ground 1: Cross-Examination of Derek Vasser

15 “A petition for a writ of certiorari seeking review of a judgment of a lower state court that is
subject to discretionary review by the state court of last resort is timely when it is filed with the
Clerk within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13.

16 Pennsylvania and federal courts employ the prisoner mailbox rule, pursuant to which the pro se
petition is deemed filed when it is given to prison officials for mailing. See Perry v. Diguglielmo,
169 F. App’x 134, 136 n.3 (3d Cir. 2006) (citing Commonwealth v. Little, 716 A.2d 1287 (Pa.
Super. 1998)). In this case, Larkins certified that he gave his habeas petition to prison officials on
May 17, 2019, and it will be deemed filed on that date.

Furthermore, in Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562, 2574, 162 L. Ed. 2d
582 (2005), the United States Supreme Court held that “[s]o long as the original and amended
petitions state claims that are tied to a common core of operative facts, relation back will be in
order.” It appears that both of the instant claims relate back to claims Larkins raised in his
original petition.

14
Larkins first contends that the “trial court violated [his] right to confrontation by
prohibiting any cross-examination of former deputy constable Derek Vasser regarding any facts
related to him being stripped of his job by the Honorable Judge Jeffrey A. Manning on October
4, 2010[,] after a three-day hearing initiated by the Allegheny County District Attorney’s
Office.” Amend. Pet. (ECF No. 34) at 32. Respondents concede that this ground “is exhausted

as it was raised and addressed in state court [on direct appeal].” Resp. Br. (ECF No. 36) at 5.
Exhaustion
In his habeas petition, Larkins contends that both the trial court and Superior Court erred,
and their holdings were contrary to the law found in Davis v. Alaska, 415 U.S. 308, 316
(1974).17 Amend. Pet. (ECF No. 34) at 38. Larkins also cites to the transcript Vasser’s hearing
before Judge Manning and the opinion authored by Judge Manning. Id. at 32-37.
As discussed supra, prior to trial, the Commonwealth filed a motion in limine to prevent
Larkins from cross-examining or impeaching Vasser regarding his being removed as a constable
or having been found incredible by Judge Manning. Specifically, the Commonwealth sought to

preclude “evidence related to the fact that [] Derek Vasser engaged in misconduct while acting in
his capacity as a deputy constable and/or evidence that Mr. Vasser’s appointment as a deputy

17 In that case, the United States Supreme Court “granted certiorari [] to consider whether the
Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the
credibility of a prosecution witness by cross-examination directed at possible bias deriving from
the witness’ probationary status as juvenile delinquent when such an impeachment would
conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications
of delinquency.” Davis, 415 U.S. at 309. “[T]he Supreme Court held that the Confrontation
Clause requires that a criminal defendant be permitted to impeach the credibility of a prosecution
witness with that witness’s probation status as a juvenile delinquent, even though the state
asserted a strong and valid interest in preserving the confidentiality of juvenile delinquency
adjudications.” Grant v. Lockett, 709 F.3d 224, 235 (3d Cir. 2013) (abrogated on other grounds).

15
constable was revoked due to that misconduct.” Motion in Limine (ECF No. 17-1) at 41. The
Commonwealth contended that Larkins should be precluded from utilizing this evidence as
impeachment of Vasser pursuant to Pennsylvania Rules of Evidence 40318 and 608.19 See
Hearing Transcript, 3/8/2011, at 4-5.
On March 17, 2011, the trial court entered an order barring Larkins from introducing this

evidence. Order (ECF No. 17-1) at 47. On direct appeal, Larkins contended that “[t]he trial court
erroneously prevented [] Larkins from exploring Vasser’s interests and motives in the outcome
of this matter.” Larkins’s Br. On Direct App. (ECF No. 17-1) at 118. Notably, Larkins
contended that Vasser “could have been trying to save his job, bolster his reputation, or obtain
leniency from Judge Manning.” Id. at 120. Larkins cited to Davis v. Alaska, 415 U.S. 308, 316
(1974).20 Id. at 116.

18 This rule provides that “[t]he court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
19 That Rule provides the following, in relevant part: “(b) Specific Instances of Conduct. Except
as provided in Rule 609 (relating to evidence of conviction of crime), (1) the character of a
witness for truthfulness may not be attacked or supported by cross-examination or extrinsic
evidence concerning specific instances of the witness’ conduct; however, (2) in the discretion of
the court, the credibility of a witness who testifies as to the reputation of another witness for
truthfulness or untruthfulness may be attacked by cross-examination concerning specific
instances of conduct (not including arrests) of the other witness, if they are probative of
truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.” Pa.R.E. 608.
20 In that case, the United States Supreme Court “granted certiorari [] to consider whether the
Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the
credibility of a prosecution witness by cross-examination directed at possible bias deriving from
the witness’ probationary status as juvenile delinquent when such an impeachment would
conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications

16
The Commonwealth responded that this evidence was irrelevant because Larkins’s trial
occurred “after Judge Manning had already removed Vasser as constable,” and moreover, the
other evidence against Larkins was overwhelming, and therefore any error was harmless.
Commonwealth’s Br. on Direct Appeal (ECF No. 17-1) at 180. In considering this issue, the
Superior Court held that it did not “find any merit to appellant’s suggestion that Vasser lied when

identifying appellant as a shooter in an attempt to look like a hero, save his job as a deputy
constable, and bolster his tarnished reputation.” Larkins I (ECF No. 17-1) at 232. The Superior
Court pointed out that it found Larkins’s
logic regarding Vasser’s interests and motive in the outcome of the trial to be
faulty. Rather, it could be argued that the loss of his deputy constable title would
tend to motivate Vasser to be truthful on the witness stand so that he would not
suffer further punishment. He certainly did not need to ingratiate himself to his
superiors with appellant’s conviction as the prior matter of his investigation was
closed. Furthermore, Vasser’s testimony was supported by other witnesses and
with the scientific evidence that established appellant’s identity as the shooter.
Appellant was found underneath the vehicle where the murder weapon was also
found, a fact witnessed not only by Vasser, but by Wilson and Officer Zeltner.
Appellant had gunshot residue on his hands, and his DNA could not be excluded
as a contributor of the DNA found on the Glock .9–mm. Testimony was also
presented that appellant had attempted to disguise himself with a wig. Therefore,
as stated by the Commonwealth, any error in failing to admit evidence of Vasser’s
purported motive to lie would have been harmless. See Commonwealth v. Kouma,
53 A.3d 760, 770-771 (Pa.Super.2012) (in light of overwhelming evidence of
defendant’s guilt, the trial court’s evidentiary ruling was, at most, harmless error).

Id. at 233-34.

of delinquency.” Davis, 415 U.S. at 309. “[T]he Supreme Court held that the Confrontation
Clause requires that a criminal defendant be permitted to impeach the credibility of a prosecution
witness with that witness’s probation status as a juvenile delinquent, even though the state
asserted a strong and valid interest in preserving the confidentiality of juvenile delinquency
adjudications.” Grant v. Lockett, 709 F.3d 224, 235 (3d Cir. 2013) (abrogated on other grounds).

17
Based on the foregoing, because both the trial court and Superior Court considered this
claim on the merits, this Court agrees with the parties that Larkins has adequately exhausted this
claim, and review by this Court is proper.
Standard of Review
When a claim is properly exhausted in the state courts and then raised on federal habeas

review, the level of deference afforded to the state-court decision is substantial. Bey, 856 F.3d at
236. The AEDPA “does not ‘permit federal judges to . . . casually second-guess the decisions of
their state-court colleagues or defense attorneys.’” Collins, 742 F.3d at 543 (quoting Burt v.
Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal habeas relief is unavailable
for exhausted claims unless the state-court adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law . . . or resulted in
a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section

2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with” clearly established Supreme
Court precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner
must show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility of fairminded disagreement.” Id. at 103.
Merits

18
Having concluded that Larkins exhausted this issue, this Court may now turn to the
merits. It is Larkins’s position that his right to “confrontation” was violated because the United
States Supreme Court has held that bias evidence is “always relevant.” Larkins’s Br. (ECF No.
34) at 38. According to Larkins, Vasser, who had been cited for wrongdoing in August 2009,
“had every reason to be biased to curry favor with the prosecutors.” Id. at 40.

The Confrontation Clause of the Sixth Amendment confers a
constitutional right upon the defendant to conduct cross-examination that reveals
any motive that a witness may have to testify falsely; however, that right is not
unlimited:

The Confrontation Clause of the Sixth Amendment guarantees the
right of an accused in a criminal prosecution “to be confronted
with the witnesses against him.” The right of confrontation, which
is secured for defendants in state as well as federal criminal
proceedings, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13
L.Ed.2d 923 (1965), “means more than being allowed to confront
the witness physically.” Davis, [415 U.S. at 315]. Indeed, “‘the
main and essential purpose of confrontation is to secure for the
opponent the opportunity of cross-examination.’” Id., at 315-316,
[] (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)).
Of particular relevance here, “we have recognized that the
exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-
examination.” Davis, supra, at 316-317[] (citing Greene v.
McElroy, 360 U.S. 474, 496[,] [](1959)). It does not follow, of
course, that the Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any limits on defense
counsel’s inquiry into the potential bias of a prosecution witness.
On the contrary, trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, and prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant. And as we observed earlier this Term, “the
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88
L.Ed.2d 15 (1985) (per curiam ).

19
Commonwealth v. Bozyk, 987 A.2d 753, 756-57 (Pa. Super. 2009) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (emphases omitted)).
While cross-examination of a witness regarding bias is relevant, questioning a police
witness about disciplinary matters unrelated to the circumstances of the case is generally not
permitted.
The pertinent case law permits a police witness to be cross-examined
about misconduct as long as the wrongdoing is in some way related to the
defendant's underlying criminal charges and establishes a motive to fabricate.
Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987) (police witness
had been demoted after it was discovered he repeatedly took bribes; defendant
was improperly restricted from impeaching him with this evidence since it
bolstered entrapment defense in defendant’s bribery prosecution); Commonwealth
v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979) (police officer was under
investigation at trial and had been demoted for beating defendant’s co-defendant;
defendant should have been permitted to question officer about the matter since it
provided officer with motive to obtain conviction against defendant as well as to
fabricate fact that defendant had confessed); Commonwealth v. Sullivan, 485 Pa.
392, 402 A.2d 1019 (1979) (police witness faced suspension based upon outcome
at defendant’s trial and defendant should have been allowed to explore that matter
at his trial); Commonwealth v. Shands, 338 Pa.Super. 296, 487 A.2d 973 (1985)
(defendant awarded new trial because he had not been permitted to impeach
officer with fact that he was part of group of police officers who were racially
biased, made false arrests, and perjured themselves in criminal prosecutions).

However, if the prior police behavior is unrelated to the present matter and
irrelevant, the trial court is permitted to restrict questioning on the prior incident.
Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004) (fact that police
witness withheld evidence in prior case was not relevant because there was no
evidence of withholding evidence in case at hand); Commonwealth v. Bright, 279
Pa.Super. 1, 420 A.2d 714 (1980) (defendant could not impeach police officer
with potential disciplinary action for excessive use of force by different officer
since that cross-examination had no relationship to case in question); see also
Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa.Super.2004) (“a witness may
not be contradicted on ‘collateral’ matters, ... and a collateral matter is one which
has no relationship to the case at trial.”).

Bozyk, 987 A.2d at 757 (some citations omitted).

20
Here, the Superior Court also recognized that the circumstances alleged by Larkins are
speculative. Larkins has not set forth any allegation that there is a relationship between Vasser’s
conduct that led to his dismissal as a constable and the conduct in the instant case. Since such
nexus is generally required in Pennsylvania to explore this line of questioning, this Court
concludes that the conclusion is not so “lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility of fairminded
disagreement.” Richter, 562 U.S. at 103.
Moreover, even if the Superior Court erred in concluding the trial court did not err by
excluding this testimony, this Court must still consider whether the Superior Court’s conclusion
that such error was harmless was unreasonable.
[The Pennsylvania Supreme Court] has long held “[w]here a trial error
violates the federal constitution, this Court, at a minimum, must employ the
federal harmless error rule.” Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155,
162 (1978), citing Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). A constitutional error cannot be found harmless unless an
appellate court is convinced beyond a reasonable doubt that the error was
harmless. Id. However, “[i]f there is a reasonable possibility that the error may
have contributed to the verdict, it is not harmless.” Commonwealth v. Mitchell,
576 Pa. 258, 839 A.2d 202, 214 (2003). The Commonwealth bears the burden of
establishing harmlessness beyond a reasonable doubt. Id. at 215. This Court will
find harmless error where:

(1) the error did not prejudice the defendant or the prejudice was de
minimis;

(2) the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the
erroneously admitted evidence; or

(3) the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.

21
Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018) (quoting Commonwealth v. Young, 748
A.2d 166, 193 (Pa. 1999) (citation omitted)).
As discussed supra, the Superior Court concluded that this error was harmless due to the
numerous other witnesses and physical evidence presented. In considering this claim under this
Court’s deferential review, such a conclusion is not unreasonable and Larkins is not entitled to

relief. See Commonwealth v. Culmer, 604 A.2d 1090 (Pa. Super. 1992) (holding that error in
restricting cross-examination of victim on pending criminal charges was ruled harmless when the
victim’s testimony was corroborated in detail by another eye witness and the inference of bias
was extremely tenuous); Johnson v. Lamas, 850 F.3d 119, 134 (3d Cir. 2017) (point out that a
“federal court may not award habeas relief under § 2254 unless the harmlessness determination
itself was unreasonable”).
Ground II: Ineffective Assistance of Counsel
In Larkins’s second ground for relief, he contends that trial counsel was ineffective for
failing to object to the admission of the wiretapped phone calls admitted during the testimony of

Detective Renk. Larkins’s Br. (ECF No. 34) at 52-63. Specifically, it is Larkins’s position that
trial counsel was ineffective for failing to make specific objections to Renk’s testimony, and
PCRA counsel was ineffective for failing to present this issue in a way that would be ruled upon
by the Superior Court. Id. at 48-49.
Exhaustion and Default

22
In considering this issue, both Larkins and the Respondents agree that this claim was not
exhausted and is procedurally defaulted.21 See Larkins’s Br. (ECF No. 34) at 49; Resp. Br. (ECF
No. 36) at 7. However, Larkins contends that this Court may consider this claim pursuant to the
exception set forth in Martinez v. Ryan, 566 U.S. 1 (2012).22 It is Respondent’s position that this
claim does not qualify for a Martinez exception, and therefore it should not be considered by this

Court. Resp. Br. (ECF No. 36) at 7-8.
The United States Supreme Court has recently clarified the narrow nature of the Martinez
exception, recognizing that “a federal court is not required to automatically deny unexhausted or

21 Procedural default occurs when a state remedy is technically exhausted because an issue has
either not been raised in state court or the issue was dismissed in state court on procedural
grounds, and there is no available state remedy remaining.

State prisoners, however, often fail to raise their federal claims in
compliance with state procedures, or even raise those claims in state court at all. If
a state court would dismiss these claims for their procedural failures, such claims
are technically exhausted because, in the habeas context, “state-court remedies are
... ‘exhausted’ when they are no longer available, regardless of the reason for their
unavailability.” Woodford v. Ngo, 548 U.S. 81, 92–93, 126 S.Ct. 2378, 165
L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure
on the way to federal court would defeat the evident goal of the exhaustion rule.
See Coleman, 501 U.S. at 732, 111 S.Ct. 2546. Thus, federal habeas courts must
apply “an important ‘corollary’ to the exhaustion requirement”: the doctrine of
procedural default. Davila, [] 137 S.Ct., at 2064. Under that doctrine, federal
courts generally decline to hear any federal claim that was not presented to the
state courts “consistent with [the State’s] own procedural rules.” Edwards v.
Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

Shinn, 142 S. Ct. at 1732.

22 “When a claim is procedurally defaulted, a federal court can forgive the default and adjudicate
the claim if the prisoner provides an adequate excuse. One common excuse for procedural
default is based on the equitable rule first announced in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct.
1309, 182 L.Ed.2d 272 (2012).” Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 720 (3d
Cir. 2022) (some citations and quotation marks omitted).

23
procedurally defaulted claims.” Shinn, 142 S. Ct. at 1732. “[F]ederal courts may excuse
procedural default only if a prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.” Id. at 1733 (internal quotation marks omitted;
emphasis added). “[I]f the procedural default is the result of ineffective assistance of counsel, the
Sixth Amendment itself requires that responsibility for the default be imputed to the State.” Id.

However, “in proceedings for which the Constitution does not guarantee the assistance of
counsel at all, [such as post-conviction proceedings,] attorney error cannot provide cause to
excuse a default.” Id. Martinez represents a “narrow exception” to this rule, holding “ineffective
assistance of state postconviction counsel may constitute ‘cause’ to forgive procedural default of
a trial-ineffective-assistance claim, but only if the State requires prisoners to raise such claims
for the first time during state collateral proceedings.” Id. Because Pennsylvania requires that
ineffective-assistance-of-trial-counsel claims be raised on collateral review, this Court agrees
with Larkins that the procedural default may be analyzed pursuant to the Martinez exception.
The following background is relevant. In his timely-filed, counseled PCRA petition,

Larkins asserted that trial counsel was ineffective for “failure to raise timely objections to
prejudicial and speculative testimony in these telephone conversations.” Amend. PCRA Petition
(ECF No. 17-1) at 317.23 The PCRA court conducted a hearing on this issue, and concluded that

23 Notably, on direct appeal, Larkins argued “that the trial court abused its discretion in allowing
the Commonwealth to play for the jury a series of telephone conversations between him and
various people intercepted as part of a federal wiretap investigation.” Larkins I at 11. The
Superior Court concluded that this issue was waived because it was “unable to locate any
objection made by the defense concerning the detective’s testimony regarding his interpretation
of various terms.” Id. at 12. Similarly, the Superior Court concluded that trial counsel’s failure
to object “to portions of the calls that he felt were prejudicial” rendered those waived. Id. at 14.
However, the Superior Court addressed other arguments set forth by Larkins on the merits and
rejected them. Specifically, the Superior Court concluded that the evidence was “relevant” and

24
Larkins “has failed to set forth what other ‘specific’ objections should have been made to make
said evidence inadmissible. Therefore, the issue is without merit.”24 PCRA Court Opinion (ECF
No. 17-1) at 456. In his habeas petition, Larkins contends that PCRA counsel was ineffective in
drafting the Amended PCRA Petition. Larkins’s Br. (ECF No. 34) at 49.
“For PCRA counsel’s performance to qualify as constitutionally deficient, it must fall

‘below an objective standard of reasonableness,’ and [petitioner] must be prejudiced thereby.
Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Lambert
v. Warden Greene SCI, 861 F.3d 459, 469 (3d Cir. 2017). “Even if he can meet this standard, he
must also ‘demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has ‘some
merit’.’ Martinez, 132 S.Ct. at 1318-19 (citation omitted).” Id. In these instances, the Third
Circuit Court of Appeals addresses the ineffective-assistance-of-trial-counsel claim first. See id.
(“Because the merit of Lambert’s ineffective-assistance-of-trial-counsel claim informs our
consideration of whether PCRA counsel was ineffective and whether Lambert was prejudiced by

PCRA counsel’s conduct, we address his ineffective-assistance-of-trial-counsel claim first.”).
Thus, this Court will consider Larkins’s ineffective-assistance-of-trial-counsel claim.

that the trial court acted within its discretion “in determining that under the facts of this case, the
conversations were not too remote where they occurred a few months before the murders.” Id. at
13. In addition, the Superior Court concluded that “the evidence presented at trial strongly
suggests that the ‘Fat Herm’ mentioned in the recordings was in fact Herman Moore. Thus, the
Superior Court also concluded that the trial court did not abuse its discretion. Id.

24 On appeal, the Superior Court concluded that Larkins’s entire argument “is a near-verbatim
reproduction of the argument in his amended PCRA petition.” Larkins II (ECF No. 17-1) at 541.
Thus, the PCRA court rejected this issue on the basis that Larkins did not “frame his issue with
respect to any error by the PCRA court.” Id. at 542. Accordingly, the PCRA court denied relief
to Larkins.

25
Clearly established federal law governing ineffectiveness claims is set forth in the two-
prong test of Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore, 562 U.S. 115,
121 (2011). Under the first prong of Strickland, often referred to as the “performance” prong, a
petitioner must show that counsel’s performance fell below an objective standard of
reasonableness. Id. at 688. Under the second prong, often referred to as the “prejudice” prong, a

petitioner must demonstrate that the deficient performance prejudiced him, meaning that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at
692. Although a petitioner must satisfy both prongs to succeed on his ineffectiveness claim, the
Supreme Court noted that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be followed.”
Id. at 697. See also Mathias v. Superintendent Frackville SCI, 876 F.2d 462, 477 (3d Cir.
2017).
The dispute in this case concerns the admission of evidence of prior bad acts, which is
governed by Pennsylvania Rule of Evidence 404. That rule provides that “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Pa.R.E. 404(b)(1). “Evidence of other bad acts may, however,
be admitted if offered for another purpose, such as proof of motive, opportunity, intent,
preparation, plan, or common scheme. Pa.R.E. 404(b)(2).” Commonwealth v. Cook, 597 Pa. 572,
615, 952 A.2d 594, 620 (2008). Furthermore, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

26
cumulative evidence.” Pa.R.E. 403. Instantly, Larkins analyzes each phone call and sets forth
the objection or objections that counsel should have made pursuant to Rule 404.
Call 1
With respect to Phone Call 1, Larkins asserts trial counsel should have objected to the
early portions of the call that contained inadmissible prior bad acts, such as the fact that Larkins

“had his own legal troubles” and that he associated with others who also had legal troubles.25
Larkins’s Br. (ECF No. 34) at 54. It is Larkins’s position that this portion of the call had no
probative value and was “extremely prejudicial.” Id. at 55.
Assuming arguendo that Larkins is correct, that trial counsel should have objected to the
admission of the first part of Call 1, and that objection would have been sustained, Larkins has
still failed to meet the standard to demonstrate prejudice because the result of the trial would not
have been different. Larkins was convicted based upon his presence near the scene, eyewitness
testimony and supporting physical evidence. Even if the jury had not heard these few minutes of
a single phone call, Larkins still would have been convicted. See Commonwealth v. Gamble,

258 A.3d 505 (Pa. Super. 2021) (holding that PCRA counsel failed to establish prejudice
because “even if counsel had objected to this statement, it would not have altered the result of
the trial …. where Appellant's convictions were due to the overwhelming evidence against
him”); United States v. Martin, 262 F. App’x 392, 398 (3d Cir. 2008) (holding that even “if
Martin’s trial counsel’s performance was deficient, Martin did not demonstrate prejudice” where
there was adequate other evidence to support a conviction).

25 Larkins acknowledges that the final part of the call was admissible. See Larkins’s Br. (ECF
No. 34) at 55 (“[T]he only portion of this call that was admissible was the portion on Page 3 that
discussed a dispute between [Larkins] and ‘Fat Herm.’”).

27
Accordingly, Larkins’s underlying claim of ineffective assistance of trial counsel fails,
and therefore PCRA counsel could not have been ineffective for failing to present this argument
properly in the PCRA petition. Thus, Larkins has failed to overcome the procedural default, and
this Court agrees with Respondents that this claim is not properly before this Court. See Cox v.
Horn, 757 F.3d 113, 124 (3d Cir. 2014) (“[T]he Martinez exception to procedural default applies

only where the petitioner demonstrates ineffective assistance by post-conviction counsel[.]”).
Calls 3 through 19
With respect to phone calls 3 through 19, Larkins contends that trial counsel should have
objected to the relevance of these phone calls because they did not establish that Larkins had a
motive to kill Moore. Instead, according to Larkins, admission of these phone calls was
prejudicial error because they “allowed the prosecutor to argue that [Larkins] had previously
attempted to murder someone outside the Mac-Can-Do Bar on a previous occasion.”26 Larkins’s
Br. at 62 (emphasis added).
With respect to these calls, had the Commonwealth been attempting to show merely that

Larkins had previously attempted to kill someone, this Court agrees with Larkins that that
evidence should not have been admitted because it would have only shown that Larkins may
have attempted murder at another time. See Pa.R.E. 404(b)(1) (“Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”). However, at trial, the

26 This is an inaccurate representation of the Commonwealth’s argument at trial. It was the
Commonwealth’s position at trial that these phone calls were admissible because “it is evident
that [Larkins] was essentially trying to kill Fat Herm down at the Mac-Can-Do Bar on” the day
the call was made. TT2 at 9 (emphasis added).

28
Commonwealth offered this evidence to show that Larkins had previously tried to kill Moore.
See TT2 at 9. Such evidence is admissible as evidence of identity. In Pennsylvania,
[t]he identity exception is set forth in Commonwealth v. Shively, 424 A.2d 1257
(Pa. 1981), as follows:

“[ ]Evidence of other crimes is admissible when it tends to prove a
common scheme, plan or design embracing the commission of two
or more crimes so related to each other that proof of one tends to
prove the others or to establish the identity of the person charged
with the commission of the crime on trial, in other words where
there is such a logical connection between the crimes that proof of
one will naturally tend to show that the accused is the person who
committed the other.” Commonwealth v. Wable, 382 Pa. 80, 82,
114 A.2d 334, 336–37 (1955)....

Shively, 424 A.2d at 1259 (emphasis added). Thus, the purpose of the identity
exception is, quite obviously, to prove that the identity of the accused and the
perpetrator of crime are one in the same.

Commonwealth v. Tressler, 2018 WL 2212963, at *6 (Pa. Super. 2018) (unpublished opinion).
In this matter, the Commonwealth was utilizing the August 23, 2009, phone calls to establish
that Larkins had previously tried to shoot Moore by locating him outside the Mac-Can-Do Bar,
and this evidence was admissible for this purpose.
Thus, even if trial counsel had objected on the basis of relevance, that objection would
have been overruled because the evidence was admissible pursuant to the identity exception.
Trial counsel cannot be ineffective for failing to object to evidence that would have been
admitted anyway. See Commonwealth v. Spotz, 587 Pa. 1, 33, 896 A.2d 1191, 1210 (2006)
(“Counsel will not be deemed ineffective for failing to raise a meritless claim.”). Accordingly,
Larkins’s underlying claim of ineffective assistance of trial counsel fails, and therefore PCRA
counsel could not have been ineffective for failing to present this argument properly. Thus,
Larkins has not overcome the procedural default, and this Court agrees with Respondents that

29
this claim is not properly before this Court. See Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014)
(“[T]he Martinez exception to procedural default applies only where the petitioner demonstrates
ineffective assistance by post-conviction counsel[.]”).
Having concluded that Larkins’s claims related to trial counsel’s failure to raise specific
objections to the phone calls that were admitted as evidence at trial are procedurally defaulted,

Larkins is not entitled to relief on this ground.
Conclusion
For all of the above reasons, the Petition and Amended Petition for a Writ of Habeas
Corpus will be denied. Further, as there is no basis upon which to grant a certificate of
appealability, a certificate of appealability likewise will be denied. An appropriate Order
follows.
ORDER OF COURT
AND NOW, this 27th day of October, 2022, for the reasons set forth in the Memorandum
above, it is hereby ORDERED that Larkins’s § 2254 Amended Petition (ECF No. 10) be, and
the same hereby are, DENIED and a certificate of appealability is DENIED.

The Clerk of Court is directed to close this case.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc: Counsel of Record
via ECF notification

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10418242. Public record. Not legal advice.