Kemberling v. Capozza

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY LEE KEMBERLING, Civil No. 3:20-cv-1760

Petitioner . (Judge Mariani)

v :

MARK CAPOZZA, et al. .

Respondents □

MEMORANDUM

Petitioner Anthony Lee Kemberling (“Kemberling’) filed the instant petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), seeking relief from an aggregate

sentence of 30 to 60 years’ imprisonment entered in the Court of Common Pleas of

Lebanon County, Pennsylvania, on July 1, 2016, in criminal case CP-38-CR-0000263-2015,

following his February 10, 2016 conviction of rape of a child less than thirteen years of age,

and several related crimes. The petition is ripe for disposition. For the reasons discussed

below, the Court will deny the petition.

I. State Court Factual Background & Procedural History’

On March 13, 2015, Kemberling was charged with rape of a child, involuntary

deviate sexual intercourse with a child, aggravated assault of a child, indecent assault,

4+ A federal habeas court may take judicial notice of state court records. Minney v. Winstead,

2013 WL 3279793, at *2 (W.D. Pa. June 27, 2013): see also Reynolds v. Ellingsworth, 843 F.2d 712, 714

n.1 (3d Cir. 1988). Accordingly, in reviewing this petition, the Court takes judicial notice of the publicly

available dockets in the Court of Common Pleas of Lebanon County, the Pennsylvania Superior Court, and

the Pennsylvania Supreme Court.

endangering the welfare of children, and corruption of minors for sexual acts perpetrated by

Kemberling on his step-granddaughter. Commonwealth v. Kemberling, No. CP-38-CR-

0000263-2015 (Pa. Ct. Com. Pl. Lebanon Cnty.). In February 2016, a jury convicted

Kemberling of all charges. See id. On July 1, 2016, the trial court imposed a sentence of

30 to 60 years of incarceration. See id.

Kemberling filed a timely post-sentence motion. (Docs. 15-15, 15-16). On

November 15, 2016, the trial court denied the motion. (Doc. 15-18).

Kemberling then filed a timely direct appeal. (Doc. 15-19). On October 26, 2017,

the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v.

Kemberling, 2087 MDA 2016, 2017 WL 4861629 (Pa. Super. 2017). Kemberling filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on

April 30, 2018. Commonwealth v. Kemberling, 184 A.3d 940 (Pa. 2018).

On March 13, 2019, Kemberling filed a pro se petition for post-conviction collateral

relief pursuant to the Post Conviction Relief Act ("PCRA”), 42 PA. CONS. STAT. §§ 9541-46.

(Doc. 15-27). Counsel was appointed to represent Kemberling, who filed two amended

petitions and a supplement to the amended petitions. (Docs. 15-28, 15-29, 15-30).

Following a hearing, the PCRA court denied the petition on October 16, 2019. (Doc. 15-31,

15-34).

Kemberling filed a notice of appeal to the Pennsylvania Superior Court. (Doc. 15-

35). On April 13, 2020, the Pennsylvania Superior Court affirmed the decision of the PCRA

court and denied relief. Commonwealth v. Kemberling, 236 A.3d 1091, 2020 WL 1847497

(Pa. Super. 2020). Kemberling filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, which was denied on August 12, 2020. Commonwealth v. Kemberling, 237

A.3d 970 (Pa. 2020).

Kemberling then filed the instant petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. (Doc. 1).

Il. Habeas Claims Presented for Federal Review

Kemberling seeks federal review of the following issues:

e Ground One: Trial counsel was ineffective for failing to request, interview, and

present character witnesses to testify on Kemberling’s behalf at trial

e Ground Two: Denial of due process based on the Commonwealth’s failure to provide

sufficient evidence of Kemberling’s guilt at trial

e Ground Three: Denial of due process because the verdict was against the weight of

the evidence

e Ground Four: Kemberling is actually innocent of the underlying crimes

(Doc. 1).

lll. Legal Standards

A. — Exhaustion and Procedural Default

Before the federal court can consider the merits of a habeas claim, a petitioner must

comply with the exhaustion requirement of section 2254(b), which requires a petitioner to

“give the state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). Exhaustion requires the petitioner to present to the

state courts the same factual and legal theory supporting the claim. Landano v. Rafferty,

897 F.2d 661, 669 (3d Cir. 1990). It also requires the petitioner to preserve each claim at

the state appellate level. See Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004)

(exhaustion satisfied only if claim fairly presented at each level of the state court system)

(citing O'Sullivan, 526 U.S. at 844-45). The habeas petitioner has the burden of proving

exhaustion. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

A petitioner's failure to exhaust his state remedies may be excused in limited

circumstances on the ground that exhaustion would be futile. Lambert, 134 F.3d at 518-19.

Where such futility arises from a procedural bar to relief in state court, the claim is subject to

the rule of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In

addition, if the state court does not address the merits of a claim because the petitioner

failed to comply with the state’s procedural rules in presenting the claim, it is also

procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

If a claim is found defaulted, the federal court may address it only if the petitioner

establishes cause for the default and prejudice resulting therefrom, or that a failure to

consider the claim will result in a fundamental miscarriage of justice. Werts, 228 F.3d at

192. To meet the “cause” requirement to excuse a procedural default, a petitioner must

“show that some objective factor external to the defense impeded counsel's efforts to

comply with the State’s procedural rule.” /d. at 192-93 (quoting and citing Murray v. Carrier,

477 U.S. 478, 488-89 (1986)). Additionally, a petitioner can rely on post-conviction

counsel's ineffectiveness to establish cause to overcome the default of a substantial claim

of ineffective assistance of trial counsel. Martinez v. Ryan, 566 U.S. 1, 14 (2012). To

establish prejudice, a petitioner must prove “‘not merely that the errors at...trial created a

possibility of prejudice, but that they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” Bey v. Sup’t Greene SCI,

856 F.3d 230, 242 (3d Cir. 2017).

For a petitioner to satisfy the fundamental miscarriage of justice exception to the rule

of procedural default, the Supreme Court requires that the petitioner show that a

“constitutional violation has probably resulted in the conviction of one who is actually

innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray, 477 U.S. at 496).

This requires that the petitioner supplement his claim with “a colorable showing of factual

innocence.” McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhimann v. Wilson, 477

U.S. 436, 454 (1986)). In other words, a petitioner must present new, reliable evidence of

factual innocence. Schlup, 513 U.S. at 324.

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore,

that review on the merits of the issues presented in a habeas petition is warranted, the

scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in

pertinent part, that an application for a writ of habeas corpus premised on a claim previously

adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] 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) [the decision] 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). To establish that the decision was contrary to federal law “it is not

sufficient for the petitioner to show merely that his interpretation of Supreme Court

precedent is more plausible than the state court’s; rather, the petitioner must demonstrate

that Supreme Court precedent requires the contrary outcome.” Matteo v. Superintendent,

171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court

decision to be an unreasonable application of federal law if the decision, “evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” /d.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a

state court's findings of fact are correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court's error. Miller-El v. Cockrell, 537 U.S. 322,

341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual

issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual

decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.

2005). This presumption of correctness applies to both explicit and implicit findings of fact.

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner

“must clear a high hurdle before a federal court will set aside any of the state court's factual

findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph (1), a factual determination

should be adjudged “unreasonable” under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C.

§ 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v.

Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316

(1979). “This provision essentially requires the district court to step into the shoes of an

appellate tribunal, examining the record below to ascertain whether sufficient evidence

existed to support the findings of fact material to the conviction.” Breighner v. Chesney, 301

F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)(3)). Mere

disagreement with an inferential leap or credibility judgment of the state court is insufficient

to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362,

408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding

lacks evidentiary support in the state court record or is plainly controverted by evidence

therein should the federal habeas court overturn a state court’s factual determination.

Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.

C. Ineffective Assistance of Counsel Standard

The Sixth Amendment right to counsel is the right to the effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to effective

assistance of counsel also extends to the first appeal. Lewis v. Johnson, 359 F.3d 646, 656

(3d Cir. 2004). In Strickland, the Supreme Court articulated a two-prong test in assessing

whether a petitioner has been denied the effective assistance of counsel. Strickland, 466

U.S. at 687-88. A petitioner must demonstrate: (1) that his counsel’s representation “fell

below an objective standard of reasonableness” and (2) that such defective performance

caused the petitioner prejudice. See id.

In evaluating the first prong of the Strickland test, the court must be “highly

deferential” toward counsel’s conduct. /d. at 689. There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance. /d. (“It is

all too tempting for a defendant to second-guess counsel's assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel's defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.”). “Strickland and its progeny make clear that counsel's strategic choices will

not be second-guessed by post-hoc determinations that a different trial strategy would have

fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing Strickland, 446

U.S. at 689). Notably, courts will not deem counsel ineffective for failing to raise a meritless

argument. Strickland, 466 U.S. at 691; United States v. Saunders, 165 F.3d 248, 253 (3d

Cir. 1999).

To satisfy the prejudice prong, the petitioner must show that there is a reasonable

probability that, but for counsel's deficient performance, the outcome of the proceeding

would have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” /d. Moreover, the petitioner

must show that he or she had a reasonable likelihood of prevailing on the motion at issue,

and having prevailed on the motion, it was also reasonably likely that the result of the trial

would have been different. See Thomas, 428 F.3d at 502.

To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy

both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002).

The inquiry may begin with either the deficient performance or prejudice prong, and the

court is not required to consider the second prong of the test if the petitioner is unable to

satisfy the first one. Strickland, 466 U.S. at 697.

IV. Discussion

A. Ground One—Failure to Present Character Witnesses

Kemberling alleges that trial counsel was ineffective for failing to request, interview,

and present character witnesses to testify on his behalf at trial. (Doc. 1, p. 6; Doc. 2, pp. 1-

3). In considering this claim, the PCRA court set forth the following standard of review: “In

establishing whether defense counsel was ineffective for failing to call witnesses, a

defendant must prove the witnesses existed, the witnesses were ready and willing to testify,

and the absence of the witnesses’ testimony prejudices petitioner and denied him a fair

trial.” (Doc. 15-34, p. 5, citing Commonwealth v. Cox, 603 Pa. 233, 268, 983 A.2d 666, 693

(Pa. 2009)). The PCRA court held a hearing, considered the testimony of the three

potential witnesses, and found that the testimony did not constitute proper character

evidence and that its absence from trial did not prejudice Kemberling. (Doc. 15-34). In

affirming the PCRA court's denial of this claim, the Pennsylvania Superior Court found as

follows:

Appellant raises the following issue on appeal:

Whether...Appellant was denied his constitutionally guaranteed right

to effective representation when [trial [c]ounsel failed to request and

interview any character witnesses to testify on Appellant’s behalf

regarding his character and positive reputation in the community[.]

Appellant’s Br. at 4.

We review an order denying a petition for collateral relief to determine

whether the PCRA court's decision is supported by the evidence of record

and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

Appellant contends that trial counsel was ineffective. We presume counsel is

effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To

overcome this presumption, a petitioner must establish that: (1) the underlying

claim has arguable merit; (2) counsel lacked a reasonable basis for his act or

omission; and (3) petitioner suffered actual prejudice. Commonwealth v.

Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to establish prejudice, a

petitioner must demonstrate “that there is a reasonable probability that, but for

counsel's error or omission, the result of the proceeding would have been

different.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). A claim

will be denied if the petitioner fails to meet any one of these prongs. See

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Jarosz, 152 A.3d at 350 (citing Commonwealth v. Daniels, 963 A.2d 409, 419

(Pa. 2009)).

According to Appellant, trial counsel was ineffective because he failed to

secure testimony from character witnesses willing to testify on Appellant's

behalf. See Appellant's Br. at 7. In support of this assertion, Appellant points

to the testimony adduced from three family members who appeared at his

PCRA hearing. See id. at 8. Appellant does not discuss their testimony in

detail, but he suggests that these witnesses could have provided the jury with

a more accurate assessment of his “work ethic, role in the community[,] and

mannerisms around minors.” /d. at 10.

We have reviewed the testimony of Appellant's relatives. For the following

reasons, we agree with the trial court that this testimony did not constitute

proper character evidence and that its absence from Appellant's trial,

therefore, did not prejudice him. See Trial Ct. Op., 10/16/19, at 7-8.

Generally, evidence of a person’s character is not admissible to prove that the

individual acted in conformity with that character on a particular occasion.

Pa.R.E. 404(a)(1). However, a criminal defendant may offer evidence of his

character traits that are pertinent to the crimes charged. Pa.R.E. 404(a)(2).

Evidence of good character offered by a defendant in a criminal

prosecution must be limited to his general reputation for the particular

trait or traits of character involved in the commission of the crime

charged.... Such evidence must relate to a period at or about the

time the offense was committed, and must be established by

testimony of witnesses as to the community opinion of the individual

in question, not through specific acts or mere rumor.

Commonwealth v. Goodmond, 190 A.3d 1197, 1201-02 (Pa. Super. 2018)

(citations and emphasis omitted).

Where the crimes charged involve sexual violence, “evidence of the character

of the defendant would be limited to presentation of testimony concerning his

general reputation in the community with regard to such traits as non-violence

or peaceableness, quietness, good moral character, chastity, and disposition

to observe good order.” Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.

Super. 2003) (citation omitted).

11

There is no rule precluding relatives of a criminal defendant from providing

character evidence. However, evidence of relatives’ personal observations or

experience with the defendant does not constitute proper character testimony.

Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa. Super. 2002); see also

Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (“[O]nly

reputation evidence may be used to prove character, not the individual’s

opinion of the [a]ppellant’s character.”); Pa.R.E. 405(a).

Appellant faced charges of sexual violence. However, the character evidence

proffered by Appellant did not address his general reputation in the

community for non-violence or chastity, character traits pertinent to the crimes

charged. Rather, for example, Appellant's brothers both testified to his strong

work ethic. See N.T. PCRA at 13-15, 16-18. Thus, the PCRA court was

correct to reject this testimony. Goodmond, supra; Lauro, supra.

Appellant's relatives also testified that they never observed Appellant behave

inappropriately around children. See N.T. PCRA at 14-15, 18, 22. However,

while such evidence may imply the relevant trait of good moral character, see

Lauro, 819 A.2d at 109, his relatives were unable to testify to his reputation in

the community as required. Goodmond, supra. Indeed, as noted by the

PCRA court, Appellant’s aunt did not even reside in Appellant’s community.

See N.T. PCRA at 21, 23. Their personal observations or opinions of

Appellant do not constitute proper character evidence. Van Horn, supra.

Appellant failed to proffer proper character evidence and, therefore, could not

establish that his counsel's decision to forgo introducing the testimony of his

relatives in any way prejudiced him at trial. Treiber, supra. Thus, we discern

no error in the PCRA court's decision to deny Appellant collateral relief.

Jarosz, supra.

Commonwealth v. Kemberling, 2020 WL 1847497, at *2-3.

The state court's analysis can be justified under Strickland. Trial counsel's decision

to refrain from calling character witnesses reflected sound strategic judgments in the factual

context of this case. If offered at trial, the testimony would not have been admissible

because it was improper character evidence. For example, at the PCRA hearing,

Kemberling’s brothers testified regarding their personal observations, which did not meet

12

the standard for character evidence outlined in the Pennsylvania Rules of Evidence. (Doc.

15-31). And, Kemberling’s aunt did not even reside in his community and could not testify

as to his reputation in the community. (/d.).

The United States Court of Appeals for the Third Circuit has held that the precise

choice made here, to forego calling certain witnesses, is an appropriate tactical decision

that does not entitle a petitioner to habeas corpus relief on the grounds of ineffective

assistance of counsel. Alexander v. Shannon, 163 F. App’x 167, 175 (3d Cir. 2006). See

also Sanders v. Trickey, 875 F.2d 205, 212 (8th Cir. 1989) (trial counsel’s failure to call a

witness “is precisely the sort of strategic trial decision that Strickland protects from second-

guessing”). The state court’s determination that counsel’s performance was not deficient is

not an unreasonable application of Strickland. Kemberling is not entitled to relief on this

claim.

B. Ground Two—sufficiency of the Evidence Claim

Kemberling alleges that he was denied due process based upon insufficient

evidence. It is clear that this issue was raised on direct appeal. The Pennsylvania Superior

Court rejected Kemberling’s challenge to the sufficiency of the evidence and affirmed the

judgment of sentence. Commonwealth v. Kemberling, 2017 WL 4861629. Respondent

argues that Kemberling failed to raise this issue in his petition for allowance of appeal to the

Pennsylvania Supreme Court. (Doc. 15-1, pp. 9-10). However, it is not necessary for a

Pennsylvania inmate to petition the state supreme court for allocatur to exhaust state

13

remedies and seek habeas relief in federal court. In 2000, the Pennsylvania Supreme Court

issued Order No. 218, which declared 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.” In re Exhaustion of

State Remedies in Criminal and Post-Conviction Relief Cases, Order No. 218, 30 Pa. Bull.

2582 (Pa. May 9, 2000); see also PA. R. APP. P. 1114 historical notes (Order of May 9,

2000). The Third Circuit has recognized that “Order No. 218 renders review from the

Pennsylvania Supreme Court ‘unavailable’ for purposes of exhausting state court

remedies.” Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004). Thus, a prisoner's

presentation of his claims to the Pennsylvania Superior Court is sufficient to exhaust

available state remedies for federal habeas purposes. See Lambert, 387 F.3d at 233. This

ground for relief will therefore proceed to a merits review.

The “clearly established Federal law” governing sufficiency of the evidence claims is

set forth in the United States Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307

(1979). Under Jackson, evidence is sufficient to support a conviction if, “after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” /d. at 319.

“Jackson leaves juries broad discretion in deciding what inferences to draw from the

evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic

14

facts to ultimate facts.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting Jackson,

443 U.S. at 319).

On direct appeal, Kemberling argued that “the Commonwealth failed to present

sufficient evidence at trial to prove beyond a reasonable doubt that the Defendant had

unlawful sexual contact.” Commonwealth v. Kemberling, 2017 WL 4861629, at *1. In

rejecting Kemberling’s sufficiency of the evidence claim, the Pennsylvania Superior Court

set forth the following:

Appellant's first issue is a challenge to the sufficiency of the evidence of each

of the sexual offenses of which he was found guilty. He maintains that the

Commonwealth failed to offer sufficient evidence “that he penetrated A.C.’s

genitalia with his penis, that his penis touched A.C.’s mouth and/or lips, that

he digitally penetrated A.C.'s genitalia, that he touched any part of A.C.’s

body for anything other than a lawful hygienic purpose, and that he showed

A.C. pornography.” Appellant's brief at 11. In essence, although his

argument is woefully underdeveloped, Appellant is arguing that there was no

evidence of 1) sexual intercourse to support the rape charge; 2) oral or anal

sexual contact to support the IDSI charge; 3) penetration however slight

required for aggravated indecent assault of a child; 4) indecent contact with

person less than thirteen years old; 5) endangering the welfare of a child

under 18 years of age whom he was supervising “by violating a duty of care,

protection, or support; 6) showing the minor victim pornography so as to

sustain his conviction of corrupting the morals of a minor. He concedes,

however, that the uncorroborated testimony of a rape victim, if believed, is

sufficient to support a rape conviction and that no medical testimony is

required.

In reviewing a challenge to the sufficiency of the evidence, we must

determine “whether the evidence admitted at trial, and all the reasonable

inferences derived therefrom viewed in favor of the Commonwealth as verdict

winner, supports the jury’s finding of all the elements of the offense beyond a

reasonable doubt.” Commonwealth v. Packer, 2017 Pa. LEXIS 1942 n.3 (Pa.

2017) (quoting Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa. 2016)()].

Based upon our review of the record, we conclude that the evidence was

15

sufficient to prove beyond a reasonable doubt that Appellant engaged in the

unlawful sexual acts charged. Ten-year-old A.C. testified that, on multiple

occasions, Appellant removed her clothing and touched her private part with

his penis, and that his penis went inside her private part. N.T. Jury Trial,

2/9/16, at 11-12. Thus, he engaged in sexual intercourse with complainant,

then three or four years old. She also testified that he used his penis to touch

her mouth and anus, conduct constituting aggravated indecent assault. /d. at

13-14. Her testimony that his penis penetrated her mouth, and that he also

directed her to put her mouth on his penis, establishes IDSI. A.C. testified to

the presence of seminal fluid, although not in those words, which was

sufficient to sustain a conviction of indecent assault. /d. at 17. A.C.’s account

of Appellant’s use of his grandfatherly relationship to lure her to the trailer for

purposes of engaging in illegal sexual conduct is endangering the welfare of a

child. The victim explained that, in her presence, Appellant would watch

videos of “people having sex,” and she saw the videos as well, which is

sufficient to prove corruption of a minor. /d. at 15. As she testified, A.C.

marked a female anatomical drawing depicting the places on her body where

Appellant touched her, which was admitted into evidence as Commonwealth

Exhibit 3. /d. at 43.

The victim’s testimony alone was sufficient to sustain the convictions of the

charged sexual offenses. See Commonwealth v. Purcell, 589 A.2d 217 (Pa.

Super. 1991). In addition, the Commonwealth offered a January 5, 2015

videotaped interview of the victim by Scott Smith, a child interview specialist

with the Pinnacle Health Children’s Resource Center (“CRC”). The evidence

of the sexual conduct underlying each offense was sufficient to sustain the

convictions of rape, IDSI, aggravated indecent assault, indecent assault,

endangering the welfare of a child, and corruption of minors. Appellant's

claim is meritless.

Commonwealth v. Kemberling, 2017 WL 4861629, at *2-3.

Clearly, the Superior Court applied the Pennsylvania equivalent of the Jackson

standard. See Evans v. Court of Common Pleas, Delaware Cnty., 959 F.2d 1227, 1233 (3d

Cir. 1992) (noting that the test for sufficiency of the evidence is the same under both

Pennsylvania and federal law). Because the Superior Court applied the correct legal

16

standard, its adjudication satisfies review under the “contrary to” clause of § 2254(d)(1).

See, e.g., Williams, 529 U.S. at 405-06.

The Court next considers whether the trial court's decision amounted to an

“unreasonable application” of Jackson.

Jackson claims face a high bar in federal habeas proceedings because they

are subject to two layers of judicial deference. First, on direct appeal, “it is the

responsibility of the jury...to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the [trial court's]

verdict on the ground of insufficient evidence only if no rational trier of fact

could have agreed with the [trial court].”. Cavazos v. Smith, 565 U.S. 1

(2011). And second, on habeas review, “a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge simply

because the federal court disagrees with the state court. The federal court

instead may do so only if the state court decision was ‘objectively

unreasonable.” /bid. (quoting Renico v. Lett, 559 U.S. 766 (2010)).

[T]he only question under Jackson is whether [the state court’s] finding was

so insupportable as to fall below the threshold of bare rationality. The state

court of last review did not think so, and that determination in turn is entitled

to considerable deference under AEDPA, 28 U.S.C. § 2254(d).

Coleman, 566 U.S. at 651, 656.

Kemberling’s sufficiency of the evidence argument raised here echoes the argument

raised in state court. (Doc. 1, p. 7; Doc. 2, p. 3). He essentially argues that there was no

physical, scientific, or forensic evidence to support the convictions. (/d.; /d.).

In considering the issue, the Superior Court found that “the victim’s testimony alone

was sufficient to sustain the convictions of the charged sexual offenses.” Commonwealth v.

Kemberling, 2017 WL 4861629, at *3. The Superior Court noted that the trial testimony, in

conjunction with the videotaped interview of the victim, was sufficient to sustain the

17

convictions of rape, involuntary deviate sexual intercourse, aggravated indecent assault,

indecent assault, endangering the welfare of a child, and corruption of minors. The state

court detailed the victim's testimony and stated that “the evidence was sufficient to prove

beyond a reasonable doubt that Appellant engaged in the unlawful sexual acts charged.”

Id.

Significantly, Kemberling does not argue that the state court's reliance on the above

testimony “was so insupportable as to fall below the threshold of bare rationality.” Coleman,

566 U.S. at 656. Instead, he argues that “there were no third party eye witnesses [sic] or

anything else to support the charges against Petitioner except the testimony of the victim

who was three years old when the alleged acts happened.” (Doc. 2, p. 3).

“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine

credibility of witnesses whose demeanor has been observed by the state trial court, but not

by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Indeed, under the Jackson

standard, “the assessment of the credibility of witnesses is generally beyond the scope of

review.” Schlup, 513 U.S. at 330. The proper question is not whether the witnesses were

credible, but “whether there is sufficient evidence which, if credited, could support the

conviction.” /d. Further, Coleman cautioned courts that Jackson does not permit

“imping[ing] on the jury’s role as factfinder” through “fine-grained factual parsing.” Coleman,

566 U.S. at 655. Rather, “Jackson leaves juries broad discretion in deciding what

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inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw

reasonable inferences from basic facts to ultimate facts.’ [Jackson, 443 U.S.] at 319.” Id.

Taking into consideration all of this evidence as a whole, and viewing the evidence in

the light most favorable to the prosecution, the Court finds that the state court’s conclusion

that there was sufficient evidence at trial to establish the necessary elements for rape of a

child, as well as several related crimes, and to sustain the verdict, is not objectively

unreasonable. Jackson, 443 U.S. at 319. There simply is no possibility that fair-minded

jurists could find that this determination conflicts with applicable Supreme Court precedent.

Nor, based on review of the state court evidence, is it an unreasonable determination of the

facts.

C. Ground Three—Weight of the Evidence Claim

Kemberling next contends that he was denied due process because the verdict was

against the weight of the evidence.

“A claim that a conviction was against the weight of the evidence is non-cognizable

in a habeas corpus case because Federal habeas courts are bound by the factual findings

of the State courts and, accordingly, cannot reassess the weight of the trial evidence which

was before those courts.” Lowry v. Weneronicz, Civ. No. 11-165, 2014 WL 556/91, at *14

(W.D. Pa. Feb. 13, 2014) (citing Marshall, 459 U.S. at 434-35 (federal courts are not

permitted “to redetermine [the] credibility of witnesses whose demeanor has been observed

[only] by the state trial court”)). The credibility of witnesses and the resolution of conflicts of

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evidence fall within the exclusive province of the factfinder and, therefore, are beyond the

scope of federal habeas review. Jackson, 443 U.S. at 319; Lowry, 2014 WL 556191, at *15.

See also Tibbs v. Florida, 457 U.S. 31, 37 (1982) (weight of evidence claim raises questions

of credibility).

In affirming the judgment of sentence, the Pennsylvania Superior Court rejected

Kemberling’s claim that “the jury placed too great a weight on the testimony of the Victim,

A.C.” Commonwealth v. Kemberling, 2017 WL 4861629, at *1. The Superior Court found

as follows:

Next, Appellant alleges that the verdicts were against the weight of the

evidence and a new trial is required. Specifically, he alleges that the jury

placed too great a weight upon A.C.’s testimony in the absence of physical

evidence of injuries. As the Commonwealth correctly notes, “[a] motion for

new trial based on a claim that the verdict is against the weight of the

evidence is addressed to the discretion of the trial court.”. Commonwealth v.

Widmer, 744 A.2d 745, 751-52 (Pa. 2000). A mere conflict in testimony or

evidence is not enough. Rather, “the role of the trial judge is to determine

that ‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” /d. at 752 (citation omitted). It has often been stated that, “a new

trial should be awarded when the jury’s verdict is so contrary to the evidence

as to shock one’s sense of justice and the award of a new trial is imperative

so that right may be given another opportunity to prevail.” Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa. 2013).

This Court's standard of review is not the same as that of the trial court. We

do not step into the shoes of the trial judge and look at whether the verdict

was against the weight of the evidence,

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is

against the weight of the evidence. Because the trial judge has had

the opportunity to hear and see the evidence presented, an appellate

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court will give the gravest consideration to the findings and reasons

advanced by the trial judge when reviewing a trial court’s

determination that the verdict is against the weight of the evidence.

One of the least assailable reasons for granting or denying a new

trial is the lower court's conviction that the verdict was or was not

against the weight of the evidence and that a new trial should be

granted in the interest of justice.

Clay, supra at 1055 (citations omitted) (emphasis in original).

After enunciating the proper legal standard, the trial judge concluded that the

jury's verdict was not “so contrary to the evidence as to shock one’s sense of

justice.” Trial Court Opinion, 11/15/16, at 9. We find no abuse of discretion.

Commonwealth v. Kemberling, 2017 WL 4861629, at *4-5.

Kemberling’s claim that the verdict was against the weight of the evidence provides

no basis for federal habeas review since it requires reassessment of the credibility of the

evidence presented at trial. “[A] claim that the verdict is against the weight of the evidence

requires the reviewing court to reassess the credibility of the evidence presented at trial.”

Lockhart v. Patrick, No. 06-CV-1291, 2014 WL 4231233, at *22 (M.D. Pa. Aug. 26, 2014).

However, federal habeas courts are not permitted to reassess state-court credibility

findings. Id. (citing Marshall, 459 U.S. at 434-35, and Tibbs, 457 U.S. at 37-45); see also

Young v. Kemp, 760 F.2d 1097, 1105 (41th Cir. 1985) (observing that “a federal habeas

court has no power to grant habeas corpus relief because it finds that the state conviction is

against the weight of the evidence”). Consequently, the Court concludes that this claim fails

as it is not cognizable in a federal habeas proceeding.

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D. | Ground Four—Actual Innocence Claim

To qualify for relief under a theory of actual innocence, a petitioner must “support his

allegations of constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was

not presented at trial.” Schlup, 513 U.S. at 324. The limited nature of this exception is

underscored by the court's explicit observation that “claims of actual innocence are rarely

successful.” /d.

In his petition, Kemberling states that he is actually innocent of the underlying

crimes. (Doc. 2). Fatal to the instant petition, actual innocence claims focus on “new”

evidence— “relevant [exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical] evidence that was either excluded or unavailable at trial.” Schlup, 513 U.S.

at 327-28. Kemberling has not produced any new evidence that would persuade this Court

that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. To

the contrary, Kemberling’s arguments focus on the interpretation and rehashing of

arguments and testimony adduced during the state court proceedings. Kemberling failed to

present any new evidence and, instead, claims that Respondents “did not present any

reliable inculpatory scientific evidence, trustworthy eyewitness accounts, nor critical physical

evidence at trial.” (Doc. 18, p. 3). Because Kemberling’s case is not one of those “rare”

cases, which presents new reliable evidence that was not presented at trial, he is not

entitled to relief under a theory of actual innocence.

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V. Certificate of Appealability

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

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

under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

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

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

adequate to deserve encouragement to proceed further.” Miller-E/, 537 U.S. at 327.

Kemberling failed to demonstrate that a certificate of appealability should issue.

VI. Conclusion

The Court will deny the petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. A separate Order shall issue.

3 | | me

G □ | Mid a Nt.

Robert D. Mariani

United States District Judge

Dated: October _2_, 2023

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