Luther Glenn v. District Attorney Allegheny Co

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4333

_____________

LUTHER GLENN,

Appellant

v.

SUPT. JAMES T. WYNDER;

DISTRICT ATTORNEY OF THE COUNTY OF

ALLEGHENY;

ATTORNEY GENERAL OF THE COMMONWEALTH

OF PENNSYLVANIA

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-06-cv-00513

Chief Magistrate Judge: The Honorable Lisa P. Lenihan

Argued November 21, 2013

Before: AMBRO, SMITH, and CHAGARES,

Circuit Judges

(Filed: February 20, 2014)

Adam B. Cogan [ARGUED]

Suite A

218 West Main Street

Ligonier, PA 15658

Counsel for Appellant

Rusheen Pettit [ARGUED]

Rebecca D. Spangler

Allegheny County Office of

District Attorney

436 Grant Street

303 Courthouse

Pittsburgh, PA 15219

Counsel for Appellees

________________

OPINION

________________

SMITH, Circuit Judge.

Appellant Luther Glenn was tried and convicted of

the murder of William Anthony Griffin in the Court of

2

Common Pleas of Allegheny County (“Court of Common

Pleas”) and is currently a prisoner of the Commonwealth

of Pennsylvania. Glenn appeals the ruling of the United

States District Court for the Western District of

Pennsylvania (“District Court”) denying his Petition for a

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He

argues that (1) the Court of Common Pleas violated his

rights under the Due Process Clause of the Fourteenth

Amendment by refusing to grant his motion for a mistrial

after an eyewitness proffered contradictory testimony,

opting instead to strike the entirety of this testimony and

provide cautionary jury instructions, and (2) after the

Court of Common Pleas struck this testimony, his trial

counsel was ineffective in not moving to strike other

evidence in the record that referred to this witness’s

identification of Glenn as the murderer. For the reasons

that follow, we will affirm the judgment of the District

Court.

I.

On December 17, 1997, William Anthony Griffin

was shot and killed on Sterrett Street in the Homewood

neighborhood of Pittsburgh, Pennsylvania. Days later,

on December 22, 1997, Glenn was arrested after fleeing

from the police in a stolen vehicle. He was subsequently

charged with Griffin’s murder.

Glenn’s trial in the Court of Common Pleas took

place in June of 1999. During that trial, Georgianna

3

Cotton testified that she witnessed Glenn murder Griffin.

Cotton originally testified that after leaving a bar at 5:00

AM, intoxicated to the point of staggering,1 she

encountered Griffin on Sterrett Street and engaged in a

brief conversation with him. As she made her way into a

nearby partially abandoned building to smoke marijuana

and crack cocaine, she saw Glenn standing on the corner

of Sterrett Street and Kelly Street, talking with some of

his friends. Cotton entered the building, climbed the

stairs to the second floor, and began smoking crack

cocaine on a balcony that overlooked the street.2 She

soon heard (and possibly saw) Glenn and Griffin arguing,

and then heard Glenn tell Griffin he was going to kill

him.3 Id. Shortly thereafter, Cotton saw Glenn walk

around the corner onto Kelly Street and saw Griffin enter

the first floor of the building she was in. Within a few

seconds, she saw Glenn return in a blue station wagon,

pull up in front of the building, and jump out of the car

brandishing a pistol sideways. She saw Glenn pull a

1

Cotton originally testified that she drank “7 or 8”

Budweisers. She later testified that she drank four

Budweisers, seven cans of St. Ides (malt liquor), and three

shots of Hennessy between 2:30 AM and 5:00 AM.

2

Cotton admitted that she had used crack cocaine for

seven years prior to the night of the murder. She also

admitted that she was on probation for theft and other charges

at the time.

3

Cotton first testified that she could not see the two men

arguing, but shortly thereafter testified she could see them.

4

hoodie over his head, run towards Griffin—who was then

standing in the doorway of the building—and shoot him

six times. She then saw Glenn return to the car and

leave. Finally, Cotton testified that, as she was running

down to check on Griffin, she encountered Dwayne

Youngblood (“Youngblood”), the occupant of a first-

floor apartment in the building in which Griffin was shot,

who told her not to say anything about the murder she

had just witnessed.

On cross-examination, Cotton began to contradict

herself. She testified that she had not actually seen the

shooter’s face, but was able to identify Glenn based on

what people told her on the streets. On redirect, she

testified that she was present during the murder, but that

she “was also threatened.” At that point, the judge

declared a recess to address Cotton’s contradictory

testimony in his chambers. During this in camera

proceeding, Cotton at first told the judge that she had

indeed witnessed the murder, but that she had been

threatened “[b]y the defendant’s people on the street.”

After receiving promises that she would not be

prosecuted for perjury, she then said that she did not see

the murder, but that people told her Glenn was the

murderer. She went on to equivocate about whether

Youngblood (the first-floor resident) had asked her to

testify against Glenn or specifically asked her not to

5

testify against Glenn.4 Thereafter, the judge adjourned

the trial until the following day to provide the prosecutor

with an opportunity to assess his case and decide how to

proceed. In the interim, the Commonwealth granted

Cotton immunity from any potential perjury charges and

she received a court-appointed attorney.

The next day, Cotton again took the stand. On

redirect-examination, she testified that during the

previous day’s in camera proceeding she had told the

attorneys and the trial judge that she had not seen Glenn

kill Griffin. When the Commonwealth asked her to

provide a truthful account of what, if anything, she saw

or heard, she claimed that she heard arguing and

gunshots, but did not see anything until after the

shooting, when she witnessed Glenn and “a couple other

guys” running away from the crime scene and jumping

into a car. When asked why she changed her story, she

claimed that she “was scared for somebody else’s life

that knew what happened.” On recross-examination,

however, Cotton testified that she did see shots being

4

This testimony was a source of confusion between the

attorneys and the trial judge. See, e.g., J.A. 612 (Glenn’s trial

counsel explaining to the trial judge that “I really didn’t

understand what [Cotton] said yesterday in chambers even.

That’s why I asked you to have the court reporter transcribe

it. Maybe I’m stupid, but I couldn’t figure out what she was

saying.”).

6

fired, at which point Glenn’s counsel moved for a

mistrial. In response, the judge declared a recess.

After some discussion between the court and

counsel, the judge denied the motion for a mistrial but

invited defense counsel to move to strike Cotton’s entire

testimony from the record. Glenn’s counsel promptly did

so. Thereafter, the judge returned the jury to the

courtroom and issued the following instructions:

THE COURT: Good afternoon, ladies and

gentlemen. The Court has made the

following ruling on its own motion: You are

to completely [and] totally disregard the

testimony of Ms. Cotton. Her testimony is

not to play any part in your determination as

to the facts in this case. It is as if she has not

testified. Do you understand that, ladies and

gentlemen?

THE JURY: Yes.

J.A. 645.

Cotton’s testimony was not the only incriminating

evidence offered at trial. The Commonwealth also

presented testimony from Jerry Pratt, an inmate who

shared a cell with Glenn in the Allegheny County Jail

after Glenn’s arrest. Pratt testified that, on January 28,

1998, Glenn told him that he had murdered Griffin in the

7

Homewood neighborhood of Pittsburgh, Pennsylvania

following an argument over “a bad drug deal.” Glenn

also told him that a female had witnessed the crime from

the balcony of an apartment building, but that her

testimony would not hold up in court because she was a

crack addict and because her view was obscured. When

Pratt opined that this testimony could still be damaging,

Glenn responded “I’m really not worried about it,

because I have a person out there who can take care of

her for me.” J.A. 706. Glenn identified that person as

Monte Blair.

The Commonwealth then offered evidence that

two days before the alleged conversation between Glenn

and Pratt police had engaged in a vehicle pursuit of Blair,

in which Blair had crashed his vehicle but escaped on

foot. When police searched Blair’s wrecked vehicle,

they recovered a .45 caliber Glock semi-automatic

handgun loaded with 13 rounds of ammunition and

equipped with a laser sight. During summation, the

Commonwealth argued that when police engaged Blair’s

vehicle he was en route to murder Cotton in order to

prevent her from testifying.

The Commonwealth also presented testimony from

Charina Johnson, who was involved in a sexual

relationship with Glenn prior to Griffin’s murder.

Johnson told the jury that Glenn had asked her to testify

that he was at her house at the time of the murder but that

she had refused to do so. She went on to testify that she

8

could not remember if he was there, though she was

impeached with a prior statement that Glenn was not

there and had asked her to lie.5

Finally, the Commonwealth presented testimony

from Youngblood that Glenn had been at his residence

(located in the apartment building where Griffin was

shot) six to seven hours before the shooting occurred.

At the close of the trial, the judge reiterated his

earlier instruction to disregard Cotton’s testimony:

THE COURT: [Y]ou must not consider any

testimony . . . which I have ordered stricken

from the record. So that it is clear, Ladies

and Gentlemen, I ordered st[r]icken from the

record the testimony of Ms. Cotton. You

must not, I repeat, must not, consider that

testimony for any reason whatsoever. It

should be as if that witness never took the

stand.

J.A. 884.

On June 11, 1999, the jury convicted Glenn of

first-degree murder and the judge sentenced him to life

imprisonment. Glenn then filed post-sentencing motions,

5

Johnson signed this prior statement during an August

10, 1998 interview with the prosecutor in the presence of a

police officer.

9

which were denied on October 25, 1999. Thereafter, the

Pennsylvania Superior Court (“Superior Court”) affirmed

his conviction and the Supreme Court of Pennsylvania

denied his Petition for Allowance of Appeal.

After unsuccessfully pursuing collateral relief in

the Pennsylvania courts, Glenn timely filed a Petition for

a Writ of Habeas Corpus with the District Court on April

18, 2006. On September 19, 2012, the District Court

denied his petition, but later granted a certificate of

appealability on the following issues: (1) whether the

Court of Common pleas violated Glenn’s due process

rights when it refused to grant a mistrial, opting instead

to strike Cotton’s testimony, and (2) whether, after

Cotton’s testimony was stricken, trial counsel was

ineffective in not moving to strike other evidence

referring to Cotton’s identification of Glenn as the

shooter. Glenn timely appealed.

II.

We have jurisdiction over Glenn’s claims by virtue

of the District Court’s certificate of appealability and 28

U.S.C. §§ 1291 and 2253. The District Court had

jurisdiction pursuant to 28 U.S.C. §§ 1331, 2241, and

2254. We review the District Court’s decision de novo,

as it did not conduct an evidentiary hearing on these

claims. Duncan v. Morgan, 256 F.3d 189, 196 (3d Cir.

2001).

10

Our review of Glenn’s habeas petition is governed

by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254, which provides:

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted . . . unless the

adjudication of the claim [raised] –

(1) resulted in a decision that was

contrary to, or involved an

unreasonable application of, clearly

established Federal law, as

determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was

based on an unreasonable

determination of the facts in light of

the evidence presented in the State

court proceeding.

Glenn pursues both of his present claims under

subsection (d)(1), and argues that the Superior Court’s

decision finding neither a due process violation nor a

Sixth Amendment violation involved “unreasonable

application[s]” of “clearly established Federal law.” Id.

11

III.

Glenn’s first claim is that the Court of Common

Pleas violated his rights under the Due Process Clause of

the Fourteenth Amendment when it denied his motion for

a mistrial based on Cotton’s inconsistent testimony.

Importantly, this claim requires more than a showing that

the Court of Common Pleas erred under Pennsylvania

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

(“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law

questions.”). Rather, the scope of our review is “the

narrow one of due process, and not the broad exercise of

supervisory power [we] would possess in regard to [our]

own trial court.” Donnelly v. DeChristoforo, 416 U.S.

637, 642 (1974).

To prevail on his due process claim, Glenn must

prove that he was deprived of “fundamental elements of

fairness in [his] criminal trial.” Riggins v. Nevada, 504

U.S. 127, 149 (1992) (internal quotation marks and

citation omitted). Glenn must tread a steep hill. The

Supreme Court has “defined the category of infractions

that violate ‘fundamental fairness’ very narrowly, based

on the recognition that, beyond the specific guarantees

enumerated in the Bill of Rights, the Due Process Clause

has limited operation.” Medina v. California, 505 U.S.

437, 443 (1992). In order to satisfy due process, Glenn’s

trial must have been fair; it need not have been perfect.

See United States v. Hasting, 461 U.S. 499, 508 (1983).

12

Glenn argues that Cotton’s unreliable testimony

rendered his trial fundamentally unfair. He insists that

the trial judge’s curative instructions could not purge the

record of the taint from this testimony and that a mistrial

was the only constitutionally adequate remedy. It is well

established that, absent extraordinary circumstances,

jurors are presumed to follow the instructions given them

by the court. See Greer v. Miller, 483 U.S. 756, 766 n.8

(1987); Richardson v. Marsh, 481 U.S. 200, 211 (1987);

United States v. Bornman, 559 F.3d 150, 156 (3d Cir.

2009). Glenn, however, urges us to abandon that

presumption because, in his view, most of the remaining

evidence in his case “directly or tangentially related to

Cotton’s identification of Glenn as the shooter” and,

accordingly, “no jury could render an impartial verdict

. . . without Cotton’s trial testimony on some level

seeping into the deliberations.” Appellant’s Br. 30.

In support of this argument, Glenn relies upon

three cases wherein we concluded that curative

instructions were insufficient to purge the record of

inadmissible evidence because that evidence was too

difficult for the jury to ignore. Each of these cases is

distinguishable.

In United States v. Lee, 573 F.3d 155, 160 (3d

Cir. 2009), the jury, during deliberations, discovered

handwriting on the back of a hotel room registration card

indicating that the defendant had extended his stay

through the date on which police found illegal narcotics

13

in his room. This information, which had never been

disclosed to the defense, “had much of the credibility of

properly admitted evidence” and “entirely defeat[ed]” the

defendant’s argument that he had checked out of the

room days earlier. Id. at 163. Though the jury was

instructed to ignore this evidence, on appeal we held that

“[u]nder these highly unusual circumstances” we would

not assume that the jury was able to ignore “the elephant

in the deliberation room.” Id. at 163-64. In contrast, the

jury in Glenn’s case was repeatedly instructed to ignore

testimony that had already been cast into doubt by

defense counsel’s successful cross-examination. This

testimony would have been far easier for Glenn’s jury to

disregard than the veritable smoking gun discovered by

Lee’s jury in the eleventh hour of his trial.

We view Vazquez v. Wilson, 550 F.3d 270 (3d Cir.

2008), as similarly distinguishable. In Vazquez, the jury

was asked to ignore a non-testifying co-defendant’s

statement implicating the defendant in a murder because

the statement violated the defendant’s Sixth Amendment

Confrontation Clause rights under Bruton v. United

States, 391 U.S. 123 (1968). 550 F.3d at 272-75. The

statement there had not been revealed until closing

arguments and therefore had not been discredited in any

way. Here, Cotton’s testimony had been severely

discredited during cross-examination. Further, in

Vazquez, the jury, after receiving instructions to ignore

the co-defendant’s statement, asked the judge during

14

deliberations whether it was “supposed to not consider

[the co-defendant’s] statement that Vazquez was the

shooter,” which we considered to be direct evidence that

the original instruction “was not completely effective, if

effective at all.” Id. at 275. The jury in Glenn’s case

never suggested any such misunderstanding.

Finally, Glenn’s reliance on Moore v. Morton, 255

F.3d 95 (3d Cir. 2001), is likewise unavailing. In Moore,

we found curative instructions to be inadequate to purge

the record of three wildly inappropriate arguments made

by the prosecutor during summation that “asked the jury

to decide the case on bias and emotion rather than on the

evidence presented.” Id. at 118. Moore involved

prosecutorial misconduct, while no such issue is before

us in this case. Moreover, we relied heavily in Moore on

the weakness of the remaining evidence against the

defendant, which consisted primarily of testimony based

on hypnotically enhanced memory. See id. at 111-13,

119. Here, the Commonwealth offered ample evidence

of Glenn’s guilt, including, inter alia, evidence that he

had admitted guilt to a fellow inmate. Moore is simply

not analogous.6

6

The District Court also held that Moore was not

“clearly established Federal law determined by the Supreme

Court” for purposes of AEDPA because it was decided by a

lower federal court and was decided after the Superior

Court’s judgment. This analysis is wrong. Glenn does not

15

Because we presume that Glenn’s jury was able to

follow the instructions to disregard Cotton’s unreliable

testimony, this testimony did not render Glenn’s trial

“fundamentally unfair.” Accordingly, the Superior

Court’s decision affirming his conviction was not error,

much less an “unreasonable application” of “clearly

established Federal law.” 28 U.S.C. § 2254(d)(1).

IV.

Glenn also argues that his trial counsel was

ineffective in not moving to strike lingering references to

Cotton’s identification of the shooter after the trial judge

struck her testimony from the record. Glenn argues that

because of this failure “the trial court’s remedy of

striking Cotton’s testimony was largely meaningless.”

Appellant’s Br. 45.

argue that the Superior Court unreasonably applied Moore

itself, but that Moore, as factually analogous precedent, is

evidence that the Superior Court unreasonably applied

Supreme Court precedent concerning broader principles of

due process. See Matteo v. Superintendent, SCI Albion, 171

F.3d 877, 890 (3d Cir. 1999) (en banc) (“[W]e do not believe

federal habeas courts are precluded from considering the

decisions of inferior federal courts when evaluating whether

the state court’s application of the law was reasonable . . . .

[I]n certain cases it may be appropriate to consider [these

decisions] as helpful amplifications of Supreme Court

precedent.”).

16

To prove ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984), Glenn

must prove (1) that his trial counsel’s performance was

“deficient, that is, it fell below an objective standard of

reasonableness,” and (2) “that counsel’s deficient

performance prejudiced” him, i.e., that “there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Albrecht v. Horn, 485 F.3d 103,

127 (3d Cir. 2007) (citing Strickland, 466 U.S. at 689-92

(1984)). We have previously referred to these as the

“performance” and “prejudice” prongs of the Strickland

test. See, e.g., United States v. Booth, 432 F.3d 542, 546

(3d Cir. 2005).

Glenn identifies six pieces of evidence that his

trial counsel should have moved to strike. With respect

to five of these pieces of evidence, Glenn’s claim is

procedurally defaulted. With respect to the remaining

piece of evidence, his claim lacks merit.

A.

In his habeas proceeding in the District Court,

Glenn identified, for the first time, five pieces of

evidence that his trial counsel should have moved to

strike:

1) The Commonwealth’s opening discussing

[sic] the testimony of Cotton,

17

2) Police testimony that Glenn’s photo was

shown to Cotton because a confidential

informant had identified Petitioner as the

shooter,

3) Police testimony that Cotton had identified

the shooter as “Ray-Ray,” Glenn having

been identified at trial as going by the name

“Ray-Ray,”

4) Police testimony that Cotton had identified

the shooter as having short hair at the time

of the shooting, Glenn having been

identified at trial as having short hair a few

days after the shooting, and

5) Police testimony that the shooter was

identified by Cotton as having worn a blue

jacket with yellow letters on it, Glenn

having been identified at trial as having

worn a blue jacket with yellow letters on it

close to the time of the Griffin homicide.

J.A. 63-64.

Because Glenn failed to identify these claims in his

Post Conviction Relief Act (“PCRA”) petition, he is now

time-barred from raising them in the Pennsylvania courts.

See 42 PA. CONS. STAT. § 9545(b). Ordinarily, this

procedural default would constitute an independent and

18

adequate state law ground for the Superior Court’s

decision and would bar our review. See Coleman v.

Thompson, 501 U.S. 722, 732 (1991). Glenn, however,

urges us to excuse this default under Martinez v. Ryan,

__ U.S. __, 132 S. Ct. 1309 (2012), because his PCRA

counsel’s failure to raise these claims itself constituted

ineffective assistance of counsel.

Procedural default may be excused when the

petitioner can prove both “cause” for the default and

“actual prejudice” that resulted from the failure of the

state court to hear the claim. Coleman, 501 U.S. at 750.

Under Martinez, the failure of collateral attack counsel to

raise an ineffective assistance of trial counsel claim in an

initial-review collateral proceeding7 can constitute

“cause” if (1) collateral attack counsel’s failure itself

constituted ineffective assistance of counsel under

Strickland and (2) the underlying ineffective assistance of

7

Martinez applies only to “initial-review” collateral

proceedings—collateral proceedings that provide the first

opportunity for a petitioner to pursue his ineffective

assistance of trial counsel claim. Id. at 1315. Because Glenn

was represented by the same attorney at trial and on direct

appeal, his PCRA proceeding provided the first opportunity to

pursue his ineffective assistance of trial counsel claim. See

Com. v. Williams, 732 A.2d 1167, 1177 n.6 (Pa. 1999)

(“[W]here a petitioner’s trial and appellate counsel are the

same, counsel would not generally be permitted to claim his

own ineffectiveness in . . . direct appeal proceedings.”).

19

trial counsel claim is “a substantial one,” which is to say

“the claim has some merit.” 132 S. Ct. at 1319.

Because Glenn’s underlying ineffective assistance

of trial counsel claims are not “substantial,” we conclude

that default was not excused.

1.

In four of Glenn’s five procedurally defaulted

claims, he argues that his trial counsel should have

moved to strike police testimony that referred to Cotton’s

identification of Glenn in order to explain the course of

Griffin’s homicide investigation. We hold that these

claims are not “substantial” and, therefore, that the

District Court correctly refused to excuse their default.

First, any failure by Glenn’s trial counsel to move

to strike this evidence from the record was not

“objectively unreasonable” under Strickland because this

evidence was at least arguably admissible. In

Pennsylvania, “certain out-of-court statements offered to

explain the course of police conduct are admissible on

the basis that they are offered not for the truth of the

matters asserted but rather to show the information upon

which police acted.” Commonwealth v. Jones, 658 A.2d

746, 751 (Pa. 1995). While Glenn is correct that not all

such statements are admissible, and that Pennsylvania

courts are required to “balance the prosecution’s need for

the statements against any prejudice arising therefrom,”

20

id., it is not clear that the Court of Common Pleas would

have assessed this balance in favor of Glenn, given the

minimal prejudicial value of this evidence, as discussed

below. Because a reasonable attorney could have

concluded that this testimony was admissible, we cannot

say that trial counsel’s failure to move to strike it from

the record was “objectively unreasonable” under

Strickland.

Second, trial counsel’s failure to move to strike

this evidence was not prejudicial because the jury was

not likely to have attributed much, if any, weight to it.

The jury had little reason to trust Cotton after being

exposed to the various contradictions in her testimony,

defense counsel’s successful impeachment of her, and the

instructions from the trial judge to disregard her

testimony entirely. In fact, the police testimony referring

to Cotton’s identification of Glenn may well have been

prejudicial to the Commonwealth, insofar as it suggested

that the police investigation against Glenn was based in

part upon information received from an unreliable

informant. The other evidence presented, including

Pratt’s detailed and independently corroborated

testimony regarding Glenn’s jailhouse confession,

provided an ample basis for the jury’s verdict.

Accordingly, any lingering references to Cotton’s

identification of Glenn as the shooter were unlikely to

have a material effect on the jury’s ultimate finding of

guilt.

21

Because there is no merit to Glenn’s underlying

ineffective assistance of trial counsel claims, we agree

with the District Court that the procedural default of

these claims is not excused under Martinez.

2.

Glenn’s fifth procedurally defaulted claim is that

his trial counsel should have moved to strike references

to Cotton’s testimony in the prosecutor’s opening

statements. This claim, too, is insubstantial. These

statements were not prejudicial to Glenn because the jury

was repeatedly instructed not to consider the arguments

of counsel as evidence. In fact, considering that the

prosecution failed to produce the testimony it had

promised, these statements most likely prejudiced the

prosecution, not the defense. See McAleese v.

Mazurkiewicz, 1 F.3d 159, 166-67 (3d Cir. 1993) (“The

failure of counsel to produce evidence which [sic] he

promised the jury during his opening statement that he

would produce is indeed a damaging failure . . . .”).

Accordingly, we agree with the District Court that the

procedural default of this claim is not excused under

Martinez.

B.

Finally, we address Glenn’s claim that his trial

counsel should have moved to strike evidence “regarding

photo arrays in which the defendant’s photo was

22

identified by Georgina Cotton.” While this claim, unlike

the previous five claims, was preserved in Glenn’s PCRA

petition, we conclude that it lacks merit. We cannot say

that the failure of Glenn’s trial counsel to move to strike

this evidence was “objectively unreasonable” given that

the photo arrays, like the police testimony discussed

above, were arguably admissible to explain the course of

the investigation into Griffin’s death. Further, this

evidence was not prejudicial to Glenn given the vigorous

attack by the defense on Cotton’s credibility and the

strength of the other evidence against Glenn, including

Pratt’s testimony about the jailhouse confession.

V.

For the foregoing reasons, we will affirm the District

Court’s judgment and deny Glenn’s Petition for a

Writ of Habeas Corpus.

23