Rolan v. Coleman

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4547

_____________

FLORENCIO ROLAN,

Appellant

v.

BRIAN V. COLEMAN; THE DISTRICT ATTORNEY OF

THE COUNTY OF PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 08-cv-5438)

District Judge: Honorable Berle M. Schiller

______________

Argued January 23, 2012

______________

Before: FISHER, GREENAWAY, JR., Circuit Judges, and

JONES *, District Judge.

(Opinion Filed: May 17, 2012)

Bruce P. Merenstein, Esq. (argued)

Schnader Harrison Segal & Lewis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellant Florencio Rolan

Marilyn F. Murray, Esq. (argued)

Assistant District Attorney

District Attorney of the County of Philadelphia

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellees Brian V. Coleman, the District

Attorney of the County of Philadelphia and the

Attorney General of the State of Pennsylvania

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Appellant Florencio Rolan appeals the District Court

for the Eastern District of Pennsylvania’s denial of his

petition for habeas corpus. Rolan was convicted of

*

Hon. John E. Jones III, District Judge, United States

District Court for the Middle District of Pennsylvania,

sitting by designation.

2

murdering Paulino Santiago in 1984. His original petition for

habeas corpus sought relief based on his claim of ineffective

assistance of counsel. The District Court granted the petition,

and we affirmed. After a retrial, the jury convicted Rolan of

murder again. He submitted a petition seeking a writ of

habeas corpus. The District Court denied the petition. Rolan

now appeals. For the reasons stated herein, we will affirm the

District Court’s order.

I. BACKGROUND

In 1984, Florencio Rolan was convicted of first degree

murder and possession of an instrument of crime in the 1983

shooting death of Paulino Santiago (“Paulino” or “Santiago”).

The Superior Court summarized the events surrounding the

shooting and leading up to Rolan’s arrest as follows:

On the evening of Friday, May 13, 1983,

the victim, Paulino Santiago, and Robert

Aponte were selling marijuana near 17th and

Wallace Streets in Philadelphia. Paulino’s

brother, Francisco, and [Rolan] were nearby,

among a crowd estimated at thirty to fifty

people. Around 8:30 P.M. a driver pulled up to

buy a “nickel bag,” five dollars worth of

marijuana. Aponte and Paulino Santiago argued

over who should get the money for the sale.

[Rolan] sided with Aponte, his cousin. The

argument continued for about fifteen minutes

until [Rolan] departed for the house of a friend

across the street. Francisco Santiago went to an

abandoned house, at 1629 Wallace Street, a few

doors from the corner, to relieve himself. His

brother followed.

3

It is undisputed that a few minutes later,

inside the abandoned house, [Rolan] killed

Paulino Santiago with a single shot to the chest

from a .22 caliber rifle, then fled out a back

alley and left the neighborhood. Police found

the rifle in the alley about a block away from

the abandoned house. The next day [Rolan] fled

to New York City, and was not apprehended

until the following November, when he returned

to Pennsylvania after waiving extradition.

Commonwealth v. Rolan, 964 A.2d 398, 401 (Pa. Super. Ct. 2008).

During the trial, Francisco Santiago, the victim’s

brother, testified that Rolan argued with Paulino on a street

corner. After arguing outside, Francisco testified that he and

Paulino entered an abandoned house nearby and that Rolan

followed, carrying a rifle. Rolan demanded money from

Paulino. Rolan then shot Paulino and ran out of the house.

Another witness, Edwin Rosado, provided contrasting

testimony. Rosado stated that Paulino entered the abandoned

house after Rolan, not before. Rolan did not testify at trial.

The jury convicted Rolan and sentenced him to death. Rolan

appealed. The Pennsylvania Supreme Court affirmed the

conviction on October 18, 1988.

In 1996, Rolan filed a petition under Pennsylvania’s

Post Conviction Relief Act (“PCRA”). Rolan testified at the

PCRA hearing that Paulino entered the house after he was

already inside, and charged at him with a kitchen knife.

Rolan also testified that he entered the house unarmed, but

found a loaded rifle lying on the floor of the house, picked it

up, and fired at Santiago in self-defense. He also testified that

4

trial counsel, Melvin Goldstein, failed to investigate two

witnesses who would have bolstered a self-defense theory:

Daniel Vargas and Robert Aponte.

Vargas testified at the PCRA hearing. According to

Vargas, Rolan entered the house unarmed, after which

Paulino ran into the house with a kitchen knife in hand

threatening to kill him. The PCRA court held that Goldstein

had been constitutionally ineffective at the penalty phase of

the trial and vacated Rolan’s death sentence. After a penalty

phase retrial, the jury sentenced him to life in prison. The

Superior Court affirmed, and the Pennsylvania Supreme

Court denied allocatur.

In 2001, Rolan filed a 28 U.S.C. § 2254 petition for

writ of habeas corpus in the District Court. 1 The District

Court granted the habeas petition, holding, among other

things, that Goldstein had provided ineffective assistance of

counsel by failing to investigate Vargas’s testimony and

failing to call him as a witness. This Court affirmed the

District Court’s decision granting Rolan’s writ of habeas

corpus. See Rolan v. Vaughn, 445 F.3d 671, 683 (3d Cir.

2006).

The Commonwealth retried Rolan in 2007. By that

time, many of the key witnesses had passed away. The prior

testimony of those now unavailable witnesses was read into

the record. During the prosecutor’s closing argument, he

1

Rolan’s 2001 federal habeas petition was stayed pending the

result of the re-sentencing trial. In May 2004, after the jury

re-sentenced Rolan to life in prison, the District Court

conducted an evidentiary hearing on Rolan’s habeas petition.

5

highlighted Vargas’s absence from the 1984 trial and his

(Vargas’s) failure to testify until the 1996 PCRA hearing.

The trial court instructed the jury that both Rolan and the

Commonwealth knew of Vargas at the first trial, but that

Rolan’s counsel failed to call him as a witness. The trial

court did not explain to the jury that Rolan’s failure to call

Vargas, at the first trial, was due to his trial counsel’s

ineffectiveness, as Rolan had requested. Rolan was convicted

of first degree murder and possession of an instrument of

crime. He received a sentence of life imprisonment.

Rolan appealed the second conviction. The Superior

Court ordered him to file a Concise Statement of Matters

Complained of on Appeal, pursuant to Pennsylvania Rule of

Appellate Procedure 1925(b) (“Rule 1925(b) statement”).

Rolan filed the Rule 1925(b) statement. The Superior Court

rejected all of the claims appearing in his Rule 1925(b)

statement and affirmed the trial court. See Commonwealth v.

Rolan, 964 A.2d 398 (Pa. Super. Ct. 2008). Rolan did not

seek allocatur in the Pennsylvania Supreme Court and did not

file a PCRA petition.

In November 2008, Rolan filed a 28 U.S.C. § 2254

petition for habeas corpus in the District Court. The

Magistrate Judge assigned to the matter recommended in her

Report and Recommendation (“R&R”) that Rolan’s petition

for habeas corpus be denied. Specifically, the Magistrate

Judge (largely referencing the Superior Court’s substantive

analysis) held, inter alia, that: (1) Rolan’s claim of a due

process violation based on the prosecutor’s closing argument,

regarding Vargas’s failure to come forward earlier, was

procedurally defaulted and, in the alternative, adopted the

Superior Court’s merits analysis denying the claim; (2) the

Superior Court’s conclusion that the prosecutor’s comments

6

regarding Rolan’s failure to raise self-defense during the first

trial were not improper was neither contrary to, nor an

unreasonable application of, Supreme Court precedent; (3)

the Superior Court’s rejection of Rolan’s prosecutorial

misconduct claim relating to the prosecutor’s comments about

his post-arrest silence was neither contrary to, nor an

unreasonable application of, Supreme Court precedent; (4)

the Superior Court’s determination that Francisco Santiago’s

prior testimony was properly admitted at trial was neither

contrary to, nor an unreasonable application of, Supreme

Court precedent; and (5) Rolan’s claim regarding the

prosecutor’s alleged misrepresentation of key facts and

impermissible comments on inadmissible evidence was

procedurally defaulted and, therefore, not subject to habeas

review.

The District Court approved and adopted the

Magistrate Judge’s R&R by order dated November 2, 2010.

Rolan filed a timely appeal. We granted a certificate of

appealability only as to the following issues:

(1) Appellant’s arguments arising out of the

prosecutor’s statements regarding Daniel

Vargas’s failure to come forward earlier; (2)

whether the prosecutor’s statements regarding

Appellant’s failure to mount a self-defense case

theory until 1996 constituted prosecutorial

misconduct; (3) whether the prosecutor’s

comments regarding Appellant’s post-arrest

silence (but not his failure to testify at trial)

violated his Fifth Amendment privilege against

self-incrimination; (4) whether the introduction

of Francisco Santiago’s prior testimony was a

violation of Rolan’s Confrontation Clause

7

rights; and (5) whether the prosecutor’s various

alleged misstatements of the evidence in closing

arguments rose to the level of a due process

violation.

App. at 2a.

II. JURISDICTION

The District Court had jurisdiction, pursuant to 28

U.S.C. § 2253. We have jurisdiction over the appeal from the

District Court’s final order denying the petition under 28

U.S.C. § 1291 and § 2253(c)(1)(A).

III. STANDARD OF REVIEW

A. Procedural Default Challenges

Title 28 U.S.C. § 2254 requires that a habeas petitioner

exhaust the remedies available in the state courts before a

federal court can exercise habeas corpus jurisdiction over his

claim. In order for Rolan to fulfill this requirement, he must

have presented both the factual and legal substance of his

claims in the state court’s highest tribunal. See Castille v.

Peoples, 489 U.S. 346, 351 (1989). Procedural default occurs

when a claim has not been fairly presented to the state courts

(i.e., is unexhausted) and there are no additional state

remedies available to pursue, see Wenger v. Frank, 266 F.3d

218, 223-24 (3d Cir. 2001); or, when an issue is properly

asserted in the state system but not addressed on the merits

because of an independent and adequate state procedural rule,

see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

“Ordinarily, violation of firmly established and regularly

followed state rules . . . will be adequate to foreclose review

8

of a federal claim. There are, however, exceptional cases in

which exorbitant application of a generally sound rule renders

the state ground inadequate to stop consideration of a federal

question.” Lee v. Kemna, 534 U.S. 362, 376 (2002) (internal

quotation marks and citations omitted).

B. AEDPA Deference

If the claim was not procedurally defaulted, and was

adjudicated on the merits by the state court, we afford the

state court’s determinations deference under AEDPA. In

doing so, we determine whether the state court’s

determinations,

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or (2)

resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d).

Absent adjudication on the merits, our review of the

claim is de novo. Bond v. Beard, 539 F.3d 256, 263 (3d Cir.

2008).

IV. ANALYSIS

Rolan’s claims before this Court consist of three

prosecutorial misconduct claims, a Fifth Amendment claim

and a Confrontation Clause claim. We will address each of

these claims in turn.

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A. Prosecutorial Misconduct

Rolan argues that his conviction should be vacated

based on (1) the prosecutor’s statements regarding Vargas’s

failure to testify earlier in the case (“Vargas statements

claim”); (2) the prosecutor’s comments about Rolan’s failure

to assert the self-defense theory until 1996 (“self-defense

statements claim”); and (3) the prosecutor’s alleged

misstatements of evidence in his closing argument

(“misstatements of evidence claim”). The District Court,

adopting the Superior Court’s conclusions, held that Rolan’s

claims regarding the prosecutor’s comments about Vargas

and alleged misstatements of evidence were procedurally

defaulted. 2 Rolan now appeals the procedural default

conclusions as well as the District Court’s determination that

his prosecutorial misconduct claims each lack merit.

1. Procedural Default Issues

The District Court held that Rolan’s Vargas statements

claim was waived due to an independent and adequate state

procedural ground—specifically, Pennsylvania Rule of

Appellate Procedure 1925(b), which requires the appellant to

file a concise statement of the matters complained of on

appeal. The Superior Court and District Court both held that

Rolan had not asserted the Vargas statements claim in his

Rule 1925(b) statement, and therefore, waived any relief

based on those claims. See Commonwealth v. Robinson, 931

A.2d 15, 25-26 (Pa. Super. Ct. 2007) (“Where the trial court

2

We do not address procedural default for the self-defense

statements claim as both the Superior Court and the District

Court addressed this issue on the merits.

10

orders an Appellant to file a concise statement of matters

complained of on appeal under Rule 1925(b), any issue not

contained in that statement is waived on appeal”).

Rolan argues that paragraph 2 of his Rule 1925(b)

statement sufficiently conveys his concerns about the

prosecutor’s statements regarding Vargas’s testimony. 3

While we acknowledge that he raises this claim within the

context of a broader argument regarding the trial court’s jury

instructions, we find that his Rule 1925(b) statement was

sufficient to allow the court to identify his claims relating to

the prosecutor’s statements about Vargas in his closing

arguments. See Commonwealth v. Lemon, 804 A.2d 34, 37

(Pa. Super. Ct. 2002) (“Pa. R. A. P. 1925 is intended to aid

trial judges in identifying and focusing upon those issues

which the parties plan to raise on appeal.”); see also

3

Paragraph 2 of Rolan’s Rule 1925(b) statement states,

2. The Court erred in not instructing the jury

that the federal court of appeals had held that

[Petitioner’s] original trial counsel was

ineffective for not calling Daniel Vargas as a

self defense witness at [Petitioner’s] original

trial, after the prosecutor had repeatedly argued

in his closing argument that the jury should

discredit Vargas’s testimony because he did not

testify on [Petitioner’s] behalf until more than

ten years after his original trial. (Id.)

See Commonwealth v. Rolan, No. CP-51-CR-0228931-1984,

slip op. at 5-7 (C.C.P. Phila. Cnty., May 31, 2007).

11

Commonwealth v. Butler, 756 A.2d 55, 57 (Pa. Super. Ct.

2000) (“When the trial court has to guess what issues an

appellant is appealing, that is not enough for meaningful

review.”). Therefore, Rolan “substantially, if imperfectly,”

complied with the requirements of Rule 1925(b). Lee, 534

U.S. at 366-67. Consequently, Rolan’s claim concerning the

Vargas statements was not procedurally defaulted. The

District Court’s procedural default determination on this point

is erroneous; thus, the issue is preserved for our review.

The District Court (adopting the Superior Court’s

rationale) also held that Rolan had waived his misstatement of

evidence claim for failing to comply with Rule 2119(a) of the

Pennsylvania Rules of Appellate Procedure ( “Rule

2119(a)”). Rule 2119(a) states, “[t]he argument shall be

divided into as many parts as there are questions to be argued;

and shall have at the head of each part . . . the particular point

treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.” Here, we must consider

whether the Superior Court’s application of Rule 2119(a) is

appropriate for precluding federal habeas review. See Lee,

534 U.S. at 376.

Rolan’s brief before the Superior Court provided

detailed factual allegations with copious citations to the

record. Rolan explicitly stated that the prosecutor

misrepresented important pieces of evidence in his closing

argument; pointed to fifteen examples of alleged misstated

evidence, with citations to the record; incorporated the

statement of facts into his argument section by reference and

included a nine-page discussion on the issue of prosecutorial

misconduct. In support of his misstatements of evidence

claim, Rolan cited cases where the Pennsylvania Supreme

Court reversed convictions based on an improper remark in

12

closing arguments, see, e.g., Commonwealth v. Smith, 861

A.2d 894, 896-98 (Pa. Super. Ct. 2004); Commonwealth v.

Toth, 314 A.2d 275, 277-78 (Pa. Super. Ct. 1974), and

emphasized the cumulative effect of the numerous statements

identified in the facts section. Although Rolan did not

provide a verbatim recitation of each alleged misstatement in

the argument section of his brief, he did provide ample notice

of the nature of his claims by identifying the specific facts

involved in the misstatements of evidence claim.

Rolan’s discussion sufficiently identified his claim for

the court. Given Rolan’s substantial compliance with Rule

2119(a), procedural default is not appropriate. Therefore, the

Superior Court’s application of Rule 2119(a) should not

preclude our consideration of Rolan’s federal habeas claim.

The District Court’s procedural default determination on this

ground is in error; consequently, this issue is preserved for

our review.

2. Prosecutorial Misconduct Merits Analysis

Before considering the merits of Rolan’s claims, we

must first determine the appropriate standard of deference.

Rolan asserts that AEDPA deference does not apply to the

state court determinations regarding the Vargas statements

claim because the state court never adjudicated the claim on

the merits. Rather, the Superior Court (and later the District

Court adopting the same rationale) dismissed his claim as

defaulted under Rule 1925(b), and then found in the

alternative, that his claim lacked merit. We must now

determine whether AEDPA deference applies when a state

court decides a claim on procedural grounds and,

alternatively, on the merits.

13

The weight of authority of our sister circuits suggests

that the merits analysis is owed AEDPA deference. See

Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009)

(“[W]e agree with our sister circuits that an alternative merits

determination to a procedural bar ruling is entitled to AEDPA

deference.”); Brooks v. Bagley, 513 F.3d 618, 624-25 (6th

Cir. 2008) (“[W]e must consider whether the court’s

alternative merits ruling receives AEDPA deference. We

think that it does. The language of the statute does not draw a

distinction between cases involving alternative rulings; it

refers broadly to any claim that was adjudicated on the merits

in State court proceedings.” (internal quotation marks and

citation omitted)) 4; see also Zarvela v. Artuz, 364 F.3d 415,

4

In Brooks, the Sixth Circuit articulated a thoughtful analysis,

justifying its application of AEDPA deference to alternative

merits decisions:

While the state court of appeals need not have

addressed the claim on the merits once it

identified a procedural bar, it surely had the

authority to do so as an additional ground for

decision-making this additional ground no less

a “claim that was adjudicated on the merits in

State court proceedings” than if the case had not

presented a procedural-bar issue at all. In this

respect, we see no material difference between

this type of alternative ruling and another one –

where a state court offers alternative merits

grounds for rejecting a claim. Here, for

example, the state court ruled that Brooks failed

to satisfy the deficient-performance and

prejudice prongs of an ineffective-assistance

claim, even though it need only have

14

determined that Brooks failed to satisfy just one

of these prongs to resolve the claim. Yet it

would be strange to say that just one of these

contentions was resolved on the merits or,

worse, that neither one was. See Wiggins v.

Smith, 539 U.S. 510, 534, (2003) (applying

AEDPA deference to those prongs of Strickland

that the state courts “reached”).

This interpretation, moreover, would

seem to favor judicial practices that in the main

will benefit both sides in criminal cases. It is the

rare criminal defendant who would prefer that

the state courts not reach the merits of his

constitutional claim. And it is the rare State that

would object to a state court ruling that offers

an additional ground for denying the defendant

relief. Above all, this practice will “show a

prisoner . . . that it was not merely a procedural

technicality that precluded him from obtaining

relief.” Carey v. Saffold, 536 U.S. 214, 226

(2002). Just as a state court wishing to invoke

an independent and adequate state ground to

dispose of a case “need not fear reaching the

merits of a federal claim in an alternative

holding,” Harris v. Reed, 489 U.S. 255, 264

n.10 (1989) (emphasis omitted); see also White

v. Schotten, 201 F.3d 743, 750-51 (6th Cir.

2000), overruled on other grounds by Lopez v.

Wilson, 426 F.3d 339 (6th Cir. 2005) (en banc),

so it need not fear losing the benefit of the

doubt that AEDPA gives to state court rulings

whenever it invokes an independent and

15

417 (2d Cir. 2004); Busby v. Dretke, 359 F.3d 708, 721 n.14

(5th Cir. 2004); Johnson v. McKune, 288 F.3d 1187, 1192

(10th Cir. 2002).

The Supreme Court’s decision in Harris v. Reed, 489

U.S. 255 (1989) provides additional guidance on this point.

In Harris, the Supreme Court considered the application of

the adequate and independent state ground doctrine to claims

on habeas review and held that state courts may both rely on

state procedural bars and reach federal substantive questions

in denying habeas relief:

Moreover, a state court need not fear

reaching the merits of a federal claim in an

alternative holding. By its very definition, the

adequate and independent state ground doctrine

requires the federal court to honor a state

holding that is a sufficient basis for the state

court’s judgment, even when the state court also

relies on federal law. See Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935). Thus, by

applying this doctrine to habeas cases, Sykes

curtails reconsideration of the federal issue on

federal habeas as long as the state court

explicitly invokes a state procedural bar rule as

a separate basis for decision. In this way, a

state court may reach a federal question without

sacrificing its interests in finality, federalism,

adequate state ground as an alternative holding.

Brooks, 513 F.3d at 624.

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and comity.

Harris, 489 U.S. at 264 n.10. This language suggests that

where a holding provides sufficient basis for the state court’s

judgment, it should be upheld by the federal court. The

Supreme Court’s language does not limit the federal court’s

consideration based upon whether such state court

articulations form the primary basis for its decision, or an

alternative and sufficient basis for the decision. 5

We similarly believe that in referencing “adjudication

on the merits,” AEDPA draws no such distinction for

alternative rulings. Rather, it suggests that where a state court

has considered the merits of the claim, and its consideration

provides an alternative and sufficient basis for the decision,

such consideration warrants deference. Consequently, after

considering our sister circuits’ analyses alongside the

Supreme Court’s articulation in Harris, we will apply

AEDPA deference to the Superior Court’s alternative holding

on the merits of Rolan’s claim. 6

5

We note that this is consistent with our decisions in Albrecht

v. Horn, 485 F.3d 103, 116 (3d Cir. 2007), in which we

applied AEDPA’s deferential standard of review to a claim

that the state courts had found waived, but went on to address

in the prejudice prong of an ineffective assistance of counsel

claim, and in Lambert v. Blackwell, 387 F.3d 210, 239-40 (3d

Cir. 2004), in which we applied AEDPA’s deferential

standard of review to a state court decision where the state

court determined that it lacked jurisdiction, but went on to

address the merits.

6

Because the Superior Court considered all three of Rolan’s

17

When analyzing a claim of prosecutorial misconduct,

the key question is whether a state prosecutor’s comments to

the jury “so infec[ted] the trial with unfairness as to make the

resulting conviction a denial of due process.” Greer v. Miller,

483 U.S. 756, 765 (1987) (quotation marks and citation

omitted). More specifically, a “reviewing court must

examine the prosecutor’s offensive actions in context and in

light of the entire trial, assessing the severity of the conduct,

the effect of the curative instructions, and the quantum of

evidence against the defendant.” Moore v. Morton, 255 F.3d

95, 107 (3d Cir. 2001); see also United States v. Rivas, 493

F.3d 131, 140 (3d Cir. 2007) (“A mistrial is not required

where improper remarks were harmless, considering their

scope, their relation to the context of the trial, the

ameliorative effect of any curative instructions and the

strength of the evidence supporting the conviction.” (citations

omitted)). Invoking this standard, we address each

prosecutorial misconduct claim in turn.

In his closing, the prosecutor made the following

statements regarding Vargas’s failure to testify at the previous

trial:

Danny Vargas in 1984, characterized as

an alibi witness, didn’t want to cooperate, didn’t

want to give a statement, didn’t want to testify.

Then thirteen years later, thirteen years

later,—can you imagine this?—in 1996, they

prosecutorial misconduct claims on the merits, we will apply

AEDPA deference in our review of the merit determinations

of each claim.

18

parachute him in out of nowhere to say, oh, this

was self-defense, I saw Paulino Santiago with a

knife. . . . .

....

. . . . And the only thing that was missing

from Danny Vargas’s testimony thirteen years

after the crime were four little words: Once

upon a time. Once upon a time. Because if ever

there was a fairy tale being spun in a court of

law by a witness, it was spun in 1996 by Danny

Vargas. Thirteen years later it was fairy tale

time.

....

Now, the defendant was arrested in . . .

November of ‘83. We have these proceedings

in ‘84. Vargas knows they’re going on because

the DA detective goes out to interview him as a

possible witness for the defendant. And yet he

doesn’t come to court, doesn’t testify, doesn’t

tell the defendant or his family anything about

seeing the victim with a knife. Their witness.

....

. . . . Where has he been for thirteen

years, until he finally takes the stand and

testifies at the proceedings in ‘96?

. . . . [H]ow do they even know thirteen

years later to go speak to Mr. Vargas and take

his affidavit? Are they psychic? Are you guys

19

psychic, that you somehow just know? What

did you find, the phone book and look through

it for all the Hispanic names and say Danny

Vargas, this is a guy that might know

something, let’s go talk to him? . . . .

....

. . . . [Vargas’s 1996 affidavit] was the

very first time anyone ever heard from Danny

Vargas.

The very first time we have anything

from Danny Vargas is in February of 1996

when he completes and signs under oath by a

notary public this affidavit setting forth these

facts, deposing these facts which he testified to

in ‘96 when he testified were true, accurate and

correct to the best of his information and belief.

App. at 1108a-1116a.

These comments were intended to convince the jury

that Vargas’s testimony was unreliable because he did not

immediately come forward. However, Rolan avers that the

comments were misleading because the jury was never told

that this Court had found trial counsel, Goldstein, to be

ineffective for not investigating Vargas as a witness.

According to Vargas, the Commonwealth should not have

been allowed to comment on Vargas’s failure to testify

without attributing the absence to the prior ineffective

assistance of counsel ruling. 7 Vargas also argues that the trial

7

Rolan argues that the trial court infected the second trial

20

court’s failure to provide a sufficient curative instruction

further exacerbated the impact of the prosecutor’s comments. 8

with the errors from the first trial by allowing the prosecutor

to reference Vargas’s failure to come forward earlier. He

suggests that our prior ineffective assistance finding extends

to future proceedings and prohibits any further reference to

the error. Rolan further asks that we grant a retrial to allow

him to be tried without reference to Vargas’s prior failure to

testify. We find no such meaning in our prior decision.

In our 2006 decision, we held that Goldstein’s failure to

conduct a pretrial investigation after Rolan provided him with

Vargas and Aponte’s names, and his subsequent failure to

present a self-defense theory of the case “fell below the

objective standard of reasonableness.” Rolan, 445 F.3d at

682. At the time of the second trial, counsel not only

conducted an investigation, but also presented testimony in

support of a self-defense theory of the case. Additionally, the

alleged improper comments about Vargas were directed at his

decision to come forward years after the shooting, thus

providing information about the sequence of events, not

Goldstein’s prior inadequacies. Therefore, we reject Rolan’s

assertion that our prior findings were so broad that a second

trial with the benefit of Vargas’s testimony and a self-defense

claim would still harbor effects of Goldstein’s prior

ineffectiveness.

8

We note that Rolan did not move for a mistrial when the

Commonwealth referenced Vargas’s absence. Rather, he

only asked for a curative instruction and made no formal

objection to the instruction provided by the trial court. In

light of these facts, we question the extent to which Rolan has

properly preserved this claim.

21

Vargas’s assertion that our prior ineffective assistance of

counsel finding bears any impact on the second trial is

without merit. We will, however, consider his due process

claim, and determine whether the District Court properly

found there to be no constitutional violation.

Considered in the context of the entire trial, the

prosecutor’s statements did not infect the trial with unfairness

so as to constitute a denial of due process. See Greer, 483

U.S. at 765. The prosecutor’s comments focused on the fact

that Vargas failed to come forward with his version of the

events for thirteen years. Although Rolan attempts to ascribe

Vargas’s prior absence solely to Goldstein’s ineffectiveness,

Vargas’s testimony suggests that he made a personal decision

not to provide additional information at the early stages of the

case. When approached by law enforcement in May of 1984

(as a possible alibi witness for Rolan), Vargas did not disclose

that he had information about the case and stated that he was

not willing to provide a statement. He further testified that he

did not tell anyone what he knew about the case until he

spoke to Rolan’s attorney in 1996. He stated that he did not

tell police officers at the scene what he knew and did not

reach out to family members of either Rolan or the victim to

say that he had additional information. It was not until he

saw Rolan in jail, that he decided to reveal his version of the

events to Rolan’s counsel – thirteen years later.

The Commonwealth’s attempts to undermine Vargas’s

testimony were important because Vargas provided testimony

that conflicted with the Commonwealth’s theory of the case.

According to the Commonwealth, his failure to come

forward, or otherwise support Rolan’s self-defense theory at

the initial trial, had adverse implications regarding his

credibility. However, the statements complained of were not

22

the only means by which the prosecution attacked Vargas’s

credibility. In fact, the jury was faced with other evidence

that undermined Vargas’s self-defense testimony (e.g., the

fact that no knife was found at the crime scene despite his

testimony that Paulino came charging in with a knife and the

testimony of other witnesses supporting the Commonwealth’s

theory of the case). See Greer, 483 U.S. at 765-66 (“When a

defendant contends that a prosecutor’s question rendered his

trial fundamentally unfair, it is important as an initial matter

to place the remark in context.” (internal quotation marks,

brackets, and citation omitted)).

The trial court also provided an instruction to cure any

prejudice raised by the prosecutor’s closing arguments. App.

at 1236a (“Ladies and gentlemen, Daniel Vargas was known

to both the Commonwealth and the defense at the time of the

prior proceedings in 1984. However, prior defense counsel

failed to call Daniel Vargas at the earlier proceeding in

1984.”). In light of the other evidence and the court’s

curative instruction, the denial of Rolan’s due process claim

based on the prosecutor’s comments about Vargas was

neither contrary to, nor an unreasonable application of, Greer.

Second, Rolan alleges prosecutorial misconduct based

on the prosecutor’s comments regarding his failure to

previously raise a self-defense theory of the case. The

prosecutor stated:

They claim self defense. Twenty-four

years later they claim self defense. Where was

the self defense in May of 1983? Where was

the self defense for the five months that that

man was a fugitive from the law? Where was

the self defense when he went to Brooklyn and

23

hid out until the police caught him? . . . .

. . . . Self defense? What does he do?

Does he contact the police? Does he call them

on the phone? Does he surrender himself?

Does he get a lawyer? No. He runs and he

hides.

. . . . Where was the self defense in 1984

when these proceedings were going on and the

witnesses were being called to testify? . . . .

. . . . He never contacted the police, never

got a lawyer, never surrendered, never called

911. . . . [A]t some point do you call the police

and tell them, look, I killed somebody, I had to,

he had a knife, I had no choice, he was going to

stab me. That call never came. Never came.

When they did catch the defendant in

November of ‘83, they brought him back to

Philadelphia and they processed him and they

told him multiple times, you are being charged

with the murder of Paulino Santiago, sir, you

are being charged with his murder. And the

only statement he made was, “I know I need

help.” That’s it. That’s it. “I know I need

help.” That’s it.

App. at 1107a-1110a, 1162a. In granting Rolan’s first

petition for habeas corpus, we held that Goldstein’s failure to

investigate and put forward a self-defense theory was

objectively unreasonable. See Rolan, 445 F.3d at 682

(“Although the decision to forgo a self-defense claim is of the

24

type that may be entitled to a presumption of validity,

Goldstein’s decision not to present the defense cannot be

according [sic] the normal deference to strategic choices

because it was uninformed.”).

Rolan now objects to the prosecutor’s comments,

arguing that they implied that Rolan did not assert a self-

defense theory at trial because it was a fabrication, not

because of his ineffective trial counsel. The prosecutor’s

comments about Rolan’s failure to previously assert self-

defense were not so injurious so as to result in a due process

violation under Greer. 9 The statements were a permissible

attack on Rolan’s credibility. The prosecutor discussed

Rolan’s failure to assert self-defense alongside other

evidence, such as his flight to New York after the shooting, to

allow the jury to determine the reliability of his testimony that

he acted in self-defense. Rolan attempts to characterize

Vargas’s unavailability at the initial trial and Rolan’s failure

to assert self-defense as resting solely on Goldstein’s

ineffectiveness. However, it is impossible for us at this

juncture to know what would have happened if Goldstein had

effectively investigated Vargas as a potential witness and

whether or not Vargas’s corroboration had any impact on

Rolan’s failure to otherwise assert self-defense. As the

Superior Court previously stated, our prior determination of

ineffectiveness does not grant Rolan both a new trial and

“virtual immunity from any challenge to the credibility of his

self-defense claim.” Commonwealth v. Rolan, 964 A.2d 398,

410 (Pa. Super. Ct. 2008).

9

We apply AEDPA deference to this claim as it was

adjudicated on the merits by the Superior Court.

25

Because the trial court provided an instruction

explaining why evidence of Rolan’s self-defense theory was

not previously presented and because there is other evidence

in the record to further discredit Rolan’s assertion of self-

defense, the Superior Court’s holding that the prosecutor’s

comments did not result in a due process violation was

neither contrary to, nor an unreasonable application of, Greer.

We will affirm the District Court’s denial of federal habeas

relief on this ground.

Third, Rolan asserts prosecutorial misconduct based on

a number of alleged misstatements of the evidence in the

prosecutor’s closing argument. According to Rolan, the

prosecutor articulated discrepancies between Vargas’s

affidavit and his PCRA testimony that did not exist.

Specifically, Rolan argues that the prosecutor erroneously

claimed that Vargas’s affidavit stated that the Santiago

brothers and Rolan all went into the house together. He also

alleges that the prosecutor misstated evidence by referencing

Vargas’s testimony about Paulino Santiago entering the house

with a knife and then stating that Vargas failed to include

facts about the knife in his original affidavit. Additionally,

Rolan claims that the prosecutor mischaracterized the

following: Rosado’s testimony about if and when he saw

Rolan with the murder weapon; whether the 911 caller saw

Rolan enter the house with a rifle; and the amount of time and

extent of the police’s search of the house. Finally, he avers

that the prosecutor improperly emphasized the consistency of

Francisco Santiago’s statement to the police with his

preliminary hearing and trial testimonies despite the trial

court’s ruling that the police statement was inadmissible. Not

surprisingly, the Commonwealth asserts that the prosecutor’s

statements were fair and proper arguments within the context

26

of the trial.

Considering these statements within the context of the

case, we find no constitutional violation. 10 Rather, the record

indicates that the alleged misstatements were either supported

by other statements in the record or acceptable arguments

based on the trial testimony and the defense’s arguments. 11

10

Although the Superior Court did not specifically address

each alleged misstatement (and alternatively held that these

claims were procedurally defaulted), it concluded that

Rolan’s cumulative impact argument regarding the alleged

misstatements lacked merit. For this reason, we apply

AEDPA deference to this claim.

11

Our review of the record comports with the District Court’s

analysis, which we adopt in affirming its decision to deny

habeas relief based on the prosecutor’s alleged

misrepresentations:

The credibility of Daniel Vargas’[s]

testimony was thoroughly addressed by both

sides. Petitioner asserts that the prosecutor

made several misstatements concerning his

testimony in his closing argument. During his

argument, the prosecutor reviewed Vargas’[s]

testimony and compared it to his affidavit,

pointing out discrepancies. He also argued that

Vargas had opportunity to tell the police what

he knew about the murder of Paulin[o] Santiago

prior to 1996; however, he did not do so. This

was a fair argument.

Mr. Rolan also claims that the prosecutor

27

argued that Edwin Rosado saw Petitioner with

the rifle at the same time of the shooting, and

called it a blatant misrepresentation of the

evidence. The record reveals that that is not

exactly what the prosecutor said; he was

properly commenting on the evidence presented

at trial. It was also a fair response to defense

counsel’s statement of the evidence.

Additionally, Petitioner claims that the

prosecutor misrepresented both the context and

the content of the 911 call. These alleged

misrepresentations were logical arguments and

inferences from the evidence. Moreover, the

911 call was played for the jury during

summation, allowing the jury to make their own

inferences from the call.

Mr. Rolan further complained that the

prosecutor misrepresented the evidence by

saying the house was searched for 3 ½ hours.

The inadequacy of the crime scene was brought

up in the defense closing, to which the

prosecutor appropriately responded.

Francisco Santiago’s statement to police

being mentioned in the prosecution’s closing is

another subject with which Mr. Rolan has taken

issue. Though the statement was mentioned,

the court sustained [Rolan]’s objection made at

the time, and the statement was never admitted

into evidence. The remarks of the prosecutor

concerning Francisco Santiago were in response

28

Further, the trial court provided adequate instruction to cure

any harm caused by the prosecutor’s characterizations of the

evidence. It instructed the jury to rely on the evidence

presented at trial and to form their opinions of the case based

on their independent recollections of the testimony, not the

arguments of counsel. 12 The Superior Court’s holding that

to defense counsel’s comments in his closing

about Mr. Santiago’s credibility.

Rolan v. Coleman, No. 2:08-cv-05438, slip op. at 41 n.20

(D.N.J. July 30, 2010).

12

The trial court provided the following instruction:

As I’ve told you before, what counsel

says is not evidence. But even though these

statements do not constitute evidence, you

should consider them very carefully. In their

closing statements, counsel will call to your

attention the evidence that they consider

material and will ask you to draw certain

inferences from that evidence.

Ladies and gentlemen, please keep in

mind, however, that you’re not bound by

counsel’s recollection of the evidence. It is

your recollection of the evidence and your

recollection alone which must guide you during

your deliberations. If there is a discrepancy

between counsel’s recollection and your

recollection, you’re bound by your own

recollection . . . .

App. at 1043a-44a.

29

the prosecutor’s comments did not result in a due process

violation was neither contrary to, nor an unreasonable

application of, Greer. We will affirm the District Court’s

denial of Rolan’s petition for habeas corpus on the basis of

prosecutorial misconduct.

B. Fifth Amendment Claim

Rolan further avers that the prosecutor’s comments

about his post-arrest silence violated his Fifth Amendment

privilege against self-incrimination. 13 The Fifth Amendment

guarantees “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const.

amend. V. The Supreme Court has recognized that where a

prosecutor, on his own initiative, asks a jury to draw an

adverse inference from a Mirandized criminal defendant’s

post-arrest silence or to treat that defendant’s silence as

substantive evidence of guilt, the defendant’s privilege

against self-incrimination is violated. Doyle v. Ohio, 426

U.S. 610, 620 (1976) (“We hold that the use for impeachment

purposes of petitioners’ silence, at the time of arrest and after

receiving Miranda warnings, violated the Due Process Clause

of the Fourteenth Amendment.”).

13

This claim was adjudicated on the merits; therefore, we

apply AEDPA deference to the Superior Court’s

determinations. See Horn, 570 F.3d at 115.

30

During trial, the prosecutor stated:

When they did catch the defendant in

November of ‘83, they brought him back to

Philadelphia and they processed him and they

told him multiple times, you are being charged

with the murder of Paulino Santiago . . . . And

the only statement he made was, “I know I need

help.” That’s it. That’s it. “I know I need

help.” That’s it.

App. at 1162a. Rolan characterizes this statement as a

comment on his failure to make a specific statement (i.e., the

fact that he was silent on the matter). However, the record

clearly indicates that the prosecutor did not comment on

Rolan’s post-arrest silence, but rather on the substance and

limited nature of what he did say. Neither the Fifth

Amendment nor Doyle shield a defendant from a prosecutor’s

comments about statements made to the police. Therefore,

the Superior Court’s decision to deny Rolan’s claim on this

ground was not contrary to, or an unreasonable application of,

Supreme Court precedent as stated in Doyle. 14 We will

14

We note that the District Court did not apply explicitly

AEDPA deference in reviewing this claim. Rather, it

identified Griffin v. California, 380 U.S. 609 (1965) as the

relevant Supreme Court precedent and reviewed the state

court’s resolution for reasonable application. To that point,

we, first, find Doyle to be more applicable to this case, as the

Griffin analysis most pointedly addresses a prosecutor’s

31

affirm the District Court’s denial of Rolan’s petition for

habeas corpus for violation of the Fifth Amendment.

C. Confrontation Clause

Because Francisco Santiago died before Rolan’s

retrial, the transcript of his testimony from Rolan’s original

trial and his preliminary hearing was read into evidence.

Rolan now argues that the trial court’s decision to admit

Santiago’s testimony violated his rights under the

Confrontation Clause because he was deprived of an adequate

cross-examination of the witness. 15 Because we find no

constitutional error, we reject Rolan’s position that the

Santiago testimony should be struck from the record and a

retrial granted.

In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held that out-of-court testimonial statements

may not be offered against a defendant at trial unless the

declarant of the statement is unavailable and the defendant

had an opportunity to cross-examine the declarant. Id. at 68

(“Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-

adverse comments about a defendant’s failure to testify at

trial. Second, to the extent that the reasonable application

review is separate from AEDPA, we refuse to adopt such a

standard of review in favor of AEDPA deference.

15

This claim was adjudicated on the merits; therefore, we

apply AEDPA deference to the Superior Court’s

determinations. See Horn, 570 F.3d at 115.

32

examination.”). We now must consider whether the Superior

Court’s determination that admitting Francisco Santiago’s

testimony at trial did not violate Rolan’s rights under the

Confrontation Clause is contrary to, or an unreasonable

application of, Crawford. See 28 U.S.C. § 2254(d)(1).

In Rolan’s first habeas corpus proceeding, we held that

his trial counsel had been constitutionally ineffective by

failing to investigate Rolan’s self-defense theory and failing

to call two witnesses in support of that theory. Rolan now

argues that his prior counsel was ineffective in his cross-

examination of Francisco Santiago because prior counsel did

not question him about inconsistent statements or explore a

grant of immunity given by the Commonwealth. The parties

do not dispute the fact that Rolan cross-examined Francisco

Santiago when he testified at the first trial. The issue here is

whether prior counsel’s cross-examination of Francisco

Santiago was adequate under Crawford despite our previous

finding that counsel was ineffective for other reasons. We

hold that it was more than adequate.

Crawford does not provide a specific standard for

determining whether a defendant had an opportunity to cross-

examine a witness, but it does suggest that the prior

opportunity must be adequate. Crawford, 541 U.S. at 57

(“Our later cases conform to [the holding in Mattox v. United

States, 156 U.S. 237 (1895)] that prior trial or preliminary

hearing testimony is admissible only if the defendant had an

adequate opportunity to cross-examine.” ). As the Supreme

Court has previously stated, “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 (1985) (per curiam).

33

In analyzing Rolan’s initial ineffectiveness claim, the

Superior Court found that prior counsel’s cross examination

“established that both Santiago brothers had been drinking

heavily, that the abandoned house was without electricity and

therefore dark, that the victim’s girlfriend had recently left

him for Appellant, and that despite [Francisco] Santiago’s

claim that Appellant demanded money, he did not stop to take

any cash from either brother.” Rolan, 964 A.2d at 409. It

also noted that both Goldstein and the prosecutor asked

whether either Francisco or Paulino Santiago had a weapon.

Id. (“Regarding the self-defense theory, counsel, like the

prosecutor, did ask whether either brother has a weapon”). It

also specifically addressed Rolan’s claim that Francisco

Santiago was not adequately cross-examined by Goldstein

because Goldstein did not fully explore his immunity

agreement with the Commonwealth and concluded that it was

a baseless argument. 16 There is no Supreme Court precedent

to suggest that Goldstein’s cross-examination was inadequate,

and the record does not support such a conclusion.

Consequently, the Superior Court’s finding was not contrary

to, or an unreasonable application of, Crawford. We will

affirm the District Court’s denial of Rolan’s writ of habeas

corpus on this ground.

16

In doing so, the Superior Court noted that Francisco

Santiago’s testimony at the preliminary hearing (before

making the agreement with the Commonwealth) was

consistent with his trial testimony. Those consistencies

combined with the fact that the jury was aware of his criminal

record indicated that additional disclosure of the immunity

agreement would have been of little consequence as

impeachment evidence. Rolan, 964 A.2d at 407.

34

V. CONCLUSION

For the reasons stated above, we will affirm the

District Court’s order denying Rolan’s petition for writ of

habeas corpus.

35