Petition for Writ of Certiorari — Tedor Davido, Petitioner v. Laurel Harry, Secretary, Pennsylvania Department of Corrections, et al.
Supreme Court briefAug 6, 2025
Ask Donna
What actually matters in this document.
Text
OCTOBER TERM 2025
No. _____
_______________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________________________
TEDOR DAVIDO,
Petitioner,
v.
LAUREL HARRY, Secretary PA. Dept. of Corrections, et. al.,
Respondent.
______________________________
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
______________________________
PETITION FOR A WRIT OF CERTIORARI
______________________________
--- CAPITAL CASE ---
Jennifer Chiccarino
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
Member of the Bar of the Supreme Court
Counsel for Petitioner
QUESTIONS PRESENTED
1.
In light of this Court’s recent grant of certiorari in Case v. Montana to
resolve the question of whether the emergency aid exception to the warrant
requirement requires probable cause, does an uncorroborated anonymous 911 call
from a payphone regarding a domestic dispute and an officer’s “gut feeling” permit
the warrantless entry and search of a home?
2.
Is a defendant’s request to represent himself at trial equivocal because
it is made in the alternative to a request for the appointment of new counsel?
3.
Given that “a lie is a lie, no matter what its subject,” Glossip v.
Oklahoma, 145 S. Ct. 612, 628 (2025) (internal quotation omitted), could reasonable
jurists debate whether a medical examiner’s false testimony as to the cause of death
constitutes a due process violation?
i
RELATED PROCEEDINGS IN LOWER FEDERAL COURTS
United States District Court for the Eastern District of Pennsylvania:
Davido v. Beard, No. 06-cv-0917, 2021 WL 3051904 (E.D. Pa. July 20, 2021)
(denying habeas relief).
United States Court of Appeals for the Third Circuit:
Davido v. Sec'y Pennsylvania Dep't of Corr., No. 22-9000, 2025 WL 444410 (3d
Cir. Feb. 10, 2025) (affirming denial of habeas relief).
RELATED PROCEEDINGS IN STATE COURT
Pennsylvania Supreme Court:
Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005) (direct appeal review),
Commonwealth v. Davido, 106 A.3d 611 (Pa. 2014) (postconviction review).
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
RELATED PROCEEDINGS IN LOWER FEDERAL COURTS .................................. ii
RELATED PROCEEDINGS IN STATE COURT ......................................................... ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 1
STATEMENT OF THE CASE....................................................................................... 2
A.
State court proceedings ............................................................................ 2
1.
Background relevant to the failure to move to suppress the
warrantless entry and search. ............................................................. 3
2.
Background relevant to Mr. Davido’s request to proceed pro se. ....... 5
3.
Background relevant to the medical examiner’s false testimony....... 7
B.
Federal Habeas Proceedings .................................................................. 11
REASONS FOR GRANTING THE PETITION .......................................................... 14
I.
THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF
OTHER LOWER COURTS ON FOURTH AMENDMENT
QUESTIONS. .................................................................................................... 14
A. This case provides this Court with the opportunity to clarify its Fourth
Amendment precedents. .............................................................................. 17
1.
This Court recently granted certiorari in Case v. Montana to address
the emergency aid exception. ............................................................. 17
2.
Courts are split over whether an anonymous 911 call can justify
warrantless emergency aid entries.................................................... 18
3.
There is confusion regarding whether there is an exception or lower
standard required based on reports of domestic disputes. ............... 19
B. This Court should clarify that probable cause was required in the
circumstances of this case. .......................................................................... 21
II. THE OPINION BELOW CONFLICTS WITH FARETTA AND THE
PREVAILING VIEW OF LOWER COURTS. .................................................. 26
A. This Court dealt with simultaneous requests for new counsel and to
proceed pro se in Faretta itself. ................................................................... 26
B. The opinion below conflicts with the decisions of other lower courts. ........ 27
iii
1.
The First, Second, Sixth, Seventh, Eighth, and Ninth Circuits have
recognized that a conditional request is not inherently equivocal. .. 28
2.
The Fourth Circuit held otherwise over a robust dissent................. 30
3.
The majority of state courts agree that a conditional request is not
inherently equivocal. .......................................................................... 31
C. This Court should summarily reverse the decision below or set the case for
full briefing................................................................................................... 31
III. REASONABLE JURISTS COULD DEBATE THE FALSE
TESTIMONY CLAIM. ...................................................................................... 33
A. The Commonwealth has conceded that the procedural default finding is not
just debatable, but wrong. ............................................................................ 33
B. The district court’s adjudication of the merits of the claim is reasonably
debatable. ...................................................................................................... 34
CONCLUSION............................................................................................................. 40
iv
TABLE OF AUTHORITIES
Federal Cases
Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989) ..................................................... 29
Alabama v. White, 496 U.S. 325 (1990) .................................................................... 22
Alcorta v. Texas, 355 U.S. 28 (1957) ......................................................................... 35
Andrew v. White, 145 S. Ct. 75 (2025) ....................................................................... 36
Brigham City v. Stuart, 547 U.S. 398 (2006) ............................................................ 15
Caniglia v. Strom, 593 U.S. 194 (2001) .............................................................. 16, 21
Carey v. State of Minn., 767 F.2d 440 (8th Cir. 1985) .............................................. 29
Cassano v. Shoop, 1 F.4th 458 (6th Cir. 2021) ................................................... 28, 32
Ceasar v. City of Eunice, 642 F. Appx. 387 (5th Cir. 2016) ...................................... 20
Corrigan v. District of Columbia, 841 F.3d 1022 (D.C. Cir. 2016) ........................... 17
Cost v. Borough of Dickson City, 858 F. Appx. 514 (3d Cir. 2021) ........................... 20
Est. of Chamberlain v. City of White Plains, 960 F.3d 100 (2d Cir. 2020) .............. 17
Faretta v. California, 422 U.S. 806 (1975) ............................................................ 6, 27
Figg v. Schroeder, 312 F.3d 625 (4th Cir. 2002) ....................................................... 17
Finch v. Rapp, 38 F.4th 1234 (10th Cir. 2022) ......................................................... 24
Fletcher v. Town of Clinton, 196 F.3d 41 (1st Cir. 1999) ......................................... 20
Florida v. J.L, 529 U.S. 266 (2000) ............................................................... 16, 22, 23
Florida v. Jardines, 569 U.S. 1 (2013) ...................................................................... 21
Glossip v. Oklahoma, 145 S. Ct. 612 (2025) .............................................................. 37
Hamilton v. Groose, 28 F.3d 859 (8th Cir. 1994) ...................................................... 29
Hill v. Walsh, 884 F.3d 16 (1st Cir. 2018) ................................................................ 17
Hopkins v. Bonivicino, 572 F.3d 752 (9th Cir. 2009) ................................................ 17
Johnstone v. Kelly, 808 F.2d 214 (2nd Cir. 1986) ..................................................... 32
Jordan v. Ficco, 134 F. App’x 452 (1st Cir. 2005) ..................................................... 28
Katz v. United States, 389 U.S. 347 (1967) ............................................................... 21
Kentucky v. King, 563 U.S. 452 (2011) ...................................................................... 21
Kerman v. City of New York, 261 F.3d 229 (2nd Cir. 2001) ..................................... 19
Michigan v. Fisher, 558 U.S. 45 (2009) ......................................................... 13, 14, 15
Miller-El v. Cockrell, 537 U.S. 322 (2003) ................................................................ 33
Mincey v. Arizona, 437 U.S. 385 (1978) .................................................................... 24
v
Mooney v. Holohan, 294 U.S. 103 (1935) .................................................................. 35
Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008) ............................................... 28, 32
Moore v. Sheriff of Seminole County, 748 F. Appx. 229 (11th Cir. 2018) ................ 18
Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 8
Navarette v. California, 572 U.S. .................................................................. 15, 22, 23
Payton v. New York, 445 U.S. 573 (1980) ........................................................... 15, 21
Pleasants v. Town of Louisa, 524 F. Appx. 891 (4th Cir. 2013) ............................... 20
Pyle v. Kansas, 317 U.S. 213 (1942) .......................................................................... 35
Reed v. Campbell County, Kentucky, 80 F.4th 734 (6th Cir. 2023) .................... 19, 20
Richards v. Wisconsin, 520 U.S. 385 (1997) ............................................................. 24
Slack v. McDaniel, 529 U.S. 473 (2000) .................................................................... 33
Storey v. Taylor, 696 F.3d 987 (10th Cir. 2012) ........................................................ 19
Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................ 16
Tierney v. Davidson, 133 F.3d 189 (2nd Cir. 1998) .................................................. 20
United States v. Brooks, 367 F.3d 1128 (9th Cir. 2004) ........................................... 20
United States v. Campbell, 488 F. App’x 152 (7th Cir. 2012) .................................. 29
United States v. Campbell, 659 F.3d 607 (7th Cir. 2011) ......................................... 29
United States v. Clarke, 564 F.3d 949 (8th Cir. 2009) ............................................. 18
United States v. Davis, 290 F.3d 1239 (10th Cir. 2002) ........................................... 20
United States v. Frazier-El, 204 F.3d 553 (4th Cir. 2000) ....................................... 30
Unites States v. Holloway, 290 F.3d 1331 (11th Cir. 2002) ............................... 17, 18
United States v. Mendez-Sanchez, 563 F.3d 935 (9th Cir. 2009) ............................. 29
United States v. Porter, 594 F.3d 1251 (10th Cir. 2010) .......................................... 17
United States v. Quarterman, 877 F.3d 794 (8th Cir. 2017) .................................... 17
United States v. Sokolow, 490 U.S. 1 (1989) .............................................................. 23
Von Moltke v. Gillies, 332 U.S. 708 (1948) ................................................................ 32
Walters v. Freeman, 572 F. Appx. 723 (11th Cir. 2014) ........................................... 20
Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994) ......................................................... 28
Federal Statutes
28 U.S.C. § 1254 ........................................................................................................... 1
28 U.S.C. § 2253 ........................................................................................................... 2
28 U.S.C. § 2254 ................................................................................... 2, 11, 12, 13, 32
vi
State Cases
Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) ................................................. 34
Commonwealth v. Davido, 106 A.3d 611 (Pa. 2014) ........ 3, 4, 9, 10, 11, 36, 38, 39, 40
Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005) ........................... 3, 6, 7, 8, 27, 37
Commonwealth v. Miller, 746 A.2d 592 (Pa. 2000) .................................................. 34
Gallego v. State, 23 P.3d 227 (Nev. 2001) ................................................................. 31
Hinshaw v. State, 515 P.3d 129 (Alaska Ct. App. 2022) .......................................... 31
People v. Michaels, 49 P.3d 1032 (Cal. 2002) ............................................................ 31
People v. Ovieda, 446 P.3d 262 (Cal. 2019) ............................................................... 17
People v. Pate, 71 P.3d 1005–12 (Colo. 2003) (en banc) ............................................ 17
State v. Blom, 682 N.W.2d 578 (Minn. 2004) ............................................................ 31
State v. Curet, 289 A.3d 176 (Conn. 2023) ................................................................ 17
State v. Deneui, 775 N.W.2d 221 (S.D. 2009) ............................................................ 17
State v. Eberly, 716 N.W.2d 671 (Neb. 2006) ............................................................ 17
State v. Fessenden, 333 P.3d 278 (Or. 2014) ............................................................. 17
State v. Greene, 784 P.2d 257 (Ariz. 1989) ................................................................ 20
State v. Hillard, 511 P.3d 883 (Kan. 2022) ............................................................... 17
State v. Jordan, 44 A.3d 794 (Conn. 2012) ............................................................... 31
State v. Macelman, 834 A.2d 322–27 (N.H. 2003) .................................................... 17
State v. Meeks, 262 S.W.3d 710–24 (Tenn. 2008) ..................................................... 17
State v. Stenson, 940 P.2d 1239 (Wash. 1997) .......................................................... 31
State v. Towle, 35 A.3d 490 (N.H. 2011) ................................................................... 31
State Statutes
18 Pa. C.S. § 2502 ...................................................................................................... 38
Other
D. Barrett & N. Haberman, Several Trump Administration Picks Face Bomb
Threats
and “Swatting”, N.Y. Times, Nov. 27, 2024 ............................................................... 23
Michele Richinick, No charges for man who shot police chief in Oklahoma, MSNBC
(Jan. 19, 2015) ............................................................................................................. 24
Richard Luscombe, White House targeted in ‘swatting’ attack while Joe Biden is
away, The Guardian (Jan. 15, 2024, 3:22 P.M.) ........................................................ 24
Serial Swatter Sentenced to Sixty Months in Federal Custody in Connection with
vii
Death of Tennessee Man, U.S. Attorney’s Office W.D. Tennessee (July 27, 2021)... 24
Swatting Calls and Hoax Threats, U.S. Department of Homeland Security 1
(Sept. 30, 2024) ..................................................................................................... 23, 24
viii
PETITION FOR A WRIT OF CERTIORARI
Tedor Davido respectfully petitions that a writ of certiorari issue to review the
decision of the United States Court of Appeals for the Third Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Third Circuit
affirming the district court’s denial of relief (App. A1–A5) is unreported. The Third
Circuit’s prior order partially denying a COA (App. A6–A7) is unreported. The order
of the United States District Court for the Eastern District of Pennsylvania denying
the petition for habeas corpus (App. A8–A127) is unreported.
JURISDICTION
The court of appeals issued its decision and judgment on February 10, 2025,
and denied a petition for rehearing on April 8, 2025. Justice Alito extended the time
to file a petition until August 6, 2025. See No. 24A1271. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The Sixth Amendment provides, in relevant part:
In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense.
The Fourteenth Amendment provides, in relevant part:
1
No State shall . . . deprive any person of life, liberty, or
property, without due process of law.
28 U.S.C. § 2253 provides, in relevant part:
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from— (A) the final order in a habeas corpus
proceeding in which the detention complained of arises out
of the process issued by a State court . . .
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right.
28 U.S.C. § 2254 provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
STATEMENT OF THE CASE
A. State court proceedings
On May 15, 2000, Tedor Davido was arrested and charged with murder
following the death of his girlfriend, Angelina Taylor, in Lancaster County,
Pennsylvania. At trial, Mr. Davido was found guilty of first-degree murder and rape.
The jury found one aggravating circumstance, and Mr. Davido was sentenced to death
2
and a term of 10-20 years for the respective convictions. The convictions and
sentences were affirmed by the Pennsylvania Supreme Court on direct appeal.
Commonwealth v. Davido (Davido I), 868 A.2d 431 (Pa. 2005). Following an
evidentiary hearing, the denial of postconviction relief was affirmed on appeal.
Commonwealth v. Davido (Davido II), 106 A.3d 611 (2014).
1. Background relevant to the failure to move to suppress the
warrantless entry and search.
On May 14, 2000, two Lancaster police officers were dispatched to 26 Hager
Street based on an anonymous 911 call from someone claiming to be a neighbor
reporting “a domestic situation where there was an argument and it was believed
that a man was hitting a woman” in the home. ECF 131-2, at 28. Neither the call nor
dispatch reported any additional detail or corroborating information. Upon arriving
within three minutes, the officers found a silent house. Id. No neighbor was around
to corroborate the 911 call or identify themselves as the caller. The officers requested
dispatch call the 911 caller back to obtain additional information. Id. They learned
that the call was made from a payphone, and no call could be returned. Id. at 28–29.
The officers did not hear or see any kind of disturbance. When they looked in
the window, the officers didn’t see anyone inside and the house seemed “very quiet.”
Id. at 29. They knocked on the door and announced their presence, but no one
responded. Id at 28. One officer went to the back of the house and saw nothing
unusual. Id. The back door was locked, a light inside the house was on, and a phone
rang and went unanswered. Id. at 28–29. Officers noted that an outer door to the
house was locked, and an inner door was “ajar.” Id. at 34. Based on these facts alone,
3
they entered the residence through an unlocked window. Id. Both officers had less
than a year on the job, but testified at trial that they entered the house based on a
“gut feeling” that something was not right. Id. at 28, 34. The officers searched every
room from the main floor up to the third floor, where they discovered Ms. Taylor. Id.
at 30.
During state postconviction proceedings, Mr. Davido raised a claim of
ineffective assistance of counsel based on the failure to move to suppress the fruits of
this illegal entry and search. Neither Mr. Davido’s initially-appointed attorney, John
Kenneff, nor his trial counsel James Gratton and Merrill Spahn moved to suppress
evidence obtained from the warrantless entry. See ECF 131-13, at 79. Gratton
testified that there was no tactical or strategic reason for not challenging the evidence
obtained as a result of the warrantless entry. Id.
Following the postconviction evidentiary hearing, the trial court denied the
ineffectiveness claim on the lack of merit of the underlying Fourth Amendment issue
after finding that both probable cause and exigent circumstances were present. The
Pennsylvania Supreme Court affirmed, determining that the emergency aid
exception applied, and finding, in part, that the entry was justified by a “separate
report” of screaming that never existed. Davido II, 106 A.3d at 621–26. Although the
court disclaimed that it was creating a “per se” rule, the court held that in “reported
domestic conflict situations,” police should be given wider latitude to enter and search
a home without a warrant. Id. at 625.
4
2. Background relevant to Mr. Davido’s request to proceed pro se.
Several weeks before trial, Mr. Davido wrote the trial court a letter in which
he asked for new counsel to be appointed, or, in the alternative, to represent himself
at trial: “[I]f you do not appoint new counsel then I’ll have no other alternative but to
exercise my 6th Amendment [right] to represent myself and have [trial counsel] as
my assistant.” ECF 124, at 15–18 (spelling corrected). In the letter, Mr. Davido
explained that he had irreconcilable differences with his counsel that would deprive
him of a defense and a fair trial. Specifically, Mr. Davido alleged that counsel was not
properly communicating with him and enabling him to assist in his own defense; that
counsel informed him that they might not call any witnesses at trial, a strategy with
which he vehemently disagreed; and, that counsel could not adequately represent him
because they had several other active death penalty cases. This letter was not written
in a vacuum—Mr. Davido also attempted to file multiple pro se motions before and
after sending the letter. See, e.g., ECF 124, at 19–21, 29–31.
The trial court opened the next hearing, held two weeks before trial, by
explicitly denying both requests:
THE COURT:
We have two matters. The first one is, Mr. Davido,
there is a letter requesting appointment of new
counsel.
MR. DAVIDO:
Yes, sir.
THE COURT:
That request is denied. The attorneys that are
appointed for you will be able to represent you
extremely well in my opinion. Any request of yours
to proceed pro se is also denied.
MR. DAVIDO:
Am I allowed to retain private counsel?
5
THE COURT:
To try this case on November 28th, you may retain
them, but there will be no continuances granted. . . .
You can hire private counsel, and they need to be
ready to proceed on this case on November 28th.
We're going forward on November 28th.
ECF 131-1, at 83. Although the trial court allowed Mr. Davido to “air his grievances”
regarding counsel, the court never held a colloquy or otherwise inquired into Mr.
Davido’s request to represent himself at trial. Davido I, 868 A.2d at 440. During this
hearing, the trial court made two things clear: (1) the court believed that it was in
Mr. Davido’s “best interests” to be represented by his appointed attorneys and (2)
trial would commence on the date it was set to begin in two weeks—i.e., even if Mr.
Davido retained private counsel. See ECF 131-1, at 84–97. On the first morning of
trial, the court asked Mr. Davido if he would like to represent himself but he elected
to proceed with counsel. Davido I, 868 A.2d at 440.
On direct appeal, Mr. Davido argued that the trial court’s denial of his selfrepresentation request without holding a colloquy violated his rights under Faretta
v. California, 422 U.S. 806 (1975). The Pennsylvania Supreme Court denied the
claim, finding that Mr. Davido’s request was not clear and unequivocal because his
letter to the trial court “focused” on “his desire for the appointment of new counsel or
permission to retain private counsel” while his request to proceed pro se “was posed
as his only alternative if he was not afforded new counsel. Thus, it was employed as
a bargaining device, rather than as a clear demand for self representation.” Davido
I, 868 A.2d at 439–40. The court also noted that, after the request was denied, Mr.
Davido did not re-urge the motion and when the trial court asked on the first day of
trial whether he wanted to proceed pro se, he declined. Id. at 440. Therefore, the court
6
found that he “never invoked his Sixth Amendment right of self representation, and
the trial court did not err in failing to conduct a colloquy.” Id. Justice Castille
concurred to compare his attorneys to “potted plants” and note that he would have
found that the claim was waived because his attorneys never raised the issue and
remained silent when the request was denied. Id. at 447–48 (Castille, J., concurring).
Justice Saylor concurred in the denial of relief but would have found that the
self-representation request was clear and unequivocal. See id. at 448–49 (Saylor, J.,
concurring). He noted that the majority’s holding that a request in the alternative is
equivocal conflicts with “the prevailing view in other jurisdictions.” Id. at 448–49 &
n.1. Instead, he would have found that declining to proceed pro se on the morning of
trial constituted a waiver of the right. Id. at 449.
3. Background relevant to the medical examiner’s false testimony.
At trial, the Commonwealth’s case was that Mr. Davido physically assaulted
and raped his girlfriend following a fight. The defense conceded that there had been
an altercation and that Mr. Davido hit her, but argued that he neither specifically
intended to kill her nor commit rape. Counsel successfully requested an instruction
on voluntary manslaughter. Given the absence of evidence that he used any kind of
weapon and the nature of her injuries, the Commonwealth’s case for specific intent
to kill rested largely on the testimony of medical examiner Dr. Wayne Ross regarding
the cause of death. He testified that the decedent suffered a “shearing injury” to her
brain that must have been caused by a massive amount of force—i.e., a vicious and
prolonged beating—consistent with a specific intent to kill. ECF 131-2, at 172. He
7
testified that “massive repeated impacts” to the center of the brain cause the brain to
rotate and twist (which he referred to as “twisters”), and that “if you see those
twisters” you know the brain “sustained hundreds of G’s of force,” and “that’s what
caused the injury to her brain.” Id. at 172–73.
Although there was no mention or indication of a “shearing” injury in his
autopsy report, Dr. Ross created the impression that he had nonetheless made firsthand observations of “shearing and twisting” upon which the jury and state courts
relied. See, e.g., Davido I, 868 A.2d at 442 (“Dr. Ross testified as to the cause of the
victim’s death based on his first hand observations. From those first hand
observations, he concluded that the cause of her death was a brain injury as a result
of force being applied to her skull. He was able to reach these conclusions based on
the nature of the injuries to the brain, i.e., the shearing and twisting that the autopsy
revealed[.]”).
This testimony was false, misleading, and unreliable. During state
postconviction, Mr. Davido raised two claims based on this testimony: that it violated
Napue v. Illinois, 360 U.S. 264 (1959), and that trial counsel was ineffective in failing
to challenge it. At the postconviction evidentiary hearing, Dr. Ross admitted that he
did not actually observe the tearing or shearing of blood vessels in the brain to which
he had testified at trial. ECF 131-13, at 225. Rather, he claimed that “they can be
very difficult to find” and even though he did not find any, there might have been
shearing “somewhere.” Id. at 225, 227. Nor did he conduct any procedures which could
have confirmed the existence of shearing or tearing. ECF 116, at 86–88. As to the
8
failure to mention a shearing injury in his autopsy report, Dr. Ross claimed that
“doctors would know” that he meant “shearing” injury when he reported a “traumatic
brain injury.” ECF 131-13, at 227. This is false—TBI is a much broader term. ECF
116, at 85–86. In short, Dr. Ross’s testimony was entirely baseless and speculative.
Mr. Davido presented expert testimony at the evidentiary hearing that a
ruptured aneurism was the more likely cause of death given that there was no
evidence of shearing or any other internal or external injuries consistent with a
violent and sustained beating and because the subarachnoid hemorrhage (SAH)
observed at the base of the decedent’s brain is most often caused by a ruptured
aneurism. Davido II, 106 A.3d at 627–28. As the Pennsylvania Supreme Court
pointed out, this difference is significant: “a shearing injury is typically caused by a
forceful blow or blows to the head, while a pre-existing brain aneurysm can rupture
as the result of little or no outside force.” Id. at 627 n.7.
At the hearing, Dr. Ross testified that he could rule out the possibility of an
aneurism. First, although he conceded that a ruptured aneurism can cause an SAH,
he testified that an SAH is also consistent with a shearing injury. Second, Dr. Ross
testified that he could rule it out because he did not observe evidence of a ruptured
aneurism during his autopsy, despite the fact that the failure to observe shearing did
not cause him to rule out that injury. Third, Dr. Ross testified that the decedent had
diffuse—i.e., throughout the brain—hemorrhaging and swelling which is caused by
blunt force trauma, not an aneurism, which he stated was consistent with the
“eleven” different areas of bruising over the decedent. Id. at 628–29.
9
Additionally, before the hearing but after defense expert reports were provided
to the Commonwealth, Dr. Ross obtained studies of blood flow in the brain and an
additional sheet of CT scans which he heavily relied on in ruling out an aneurism.
Although the Commonwealth prepared demonstrative exhibits from these scans that
were presented at the hearing, the Commonwealth gave no notice of his opinion or
that he was relying on the images to support it, Dr. Ross prepared no report, and the
scans themselves have still never been turned over to the defense. Mr. Davido moved
to compel disclosure of the original scans and for an opportunity to supplement the
hearing testimony with rebuttal evidence. Both requests were denied.
Despite not being allowed a full and fair opportunity for rebuttal, Dr. Ross’s
postconviction testimony was contradicted by the state court record. First, testimony
established that ‘G forces’ and ‘twisters’ are not terms used or generally accepted in
the field of forensic pathology, meaning his trial testimony on this point was entirely
speculative and outside of generally accepted medical standards. ECF 131-13, at 211.
Second, the autopsy photographs show clearly that the hemorrhage did not cover the
entire brain (i.e., it was not diffuse), but rather was located primarily in the base of
the brain and welled up. ECF 116, at 83–84. And any injury to the brain, traumatic
or otherwise, can cause diffuse swelling. Id. at 85–86. Third, autopsy photos also only
show five areas of bruising (at least one of which was caused by medical treatment),
the paramedics did not note any external head injuries, and there is a complete lack
of fractures on the face or head, indicating that the decedent did not receive blunt
10
force trauma strong enough to cause an SAH alone. ECF 94-3, at 35, 94–11, at 10,
131-2, at 39.
The trial court denied the claims relating to Dr. Ross’s false testimony under
Pennsylvania’s ‘previously litigated’ procedural bar given that Mr. Davido had raised
a claim that Dr. Ross’s testimony should have been excluded as impermissibly
speculative on direct appeal. Davido II, 106 A.3d at 627. On postconviction appeal,
the Pennsylvania Supreme Court found that the trial court’s procedural ruling was
in error but only addressed the merits of the ineffectiveness claim (and subclaims).
The court denied the false testimony aspect of the ineffectiveness claim as essentially
a disagreement among medical experts and because Dr. Ross had “considered the
relevant medical factors” in ruling out an aneurism as the cause of death. Id. at 628–
29. The court also affirmed the refusal to present rebuttal testimony, finding that it
would have been “merely cumulative” of previous testimony. Id. at 274.
B. Federal Habeas Proceedings
Following state proceedings, Mr. Davido filed a petition for federal habeas
relief under 28 U.S.C. § 2254 in the Eastern District of Pennsylvania. The court
granted an evidentiary hearing due to the Commonwealth’s discovery violations and
the failure to allow the presentation of rebuttal testimony.
The federal court experts testified that Dr. Ross’s postconviction testimony had
been misleading and “absolutely wrong” that the evidence in the case was
inconsistent with an aneurism. ECF 116, at 97. 1 First, Dr. Ross’s use of brain-flow
1 Including state postconviction and federal habeas, four experts have unanimously agreed
that Dr. Ross’s postconviction testimony was false.
11
studies and CT scans was invalid because it is impossible to tell from a brain flow
study whether or not there is an aneurysm, and likewise it is generally impossible to
tell from a non-contrast CT scan of the kind performed on the decedent whether SAH
is caused by trauma, an aneurysm, or some other kind of vascular disorder. Id. at 14–
16, 21, 23, 30–31, 38, 40. 2 Second, where, as here, the cause of an SAH is at issue, a
competent forensic pathologist would carefully remove the blood at the base of the
brain, dissect the relevant part of the brain, take brain tissue samples, conduct
postmortem imaging, and use staining techniques to document the injury, which Dr.
Ross did not do, further establishing that his trial and postconviction testimony was
pure speculation contrary to generally accepted practice. Id. at 61–62. Dr. Ross did
not document his examination, photographically or otherwise, or conduct postmortem
imaging. The brain tissue slides do not contain any evidence of shearing or tearing,
and Dr. Ross did not use staining techniques that could have detected such injuries.
Following the evidentiary hearing, the district court dismissed the petition and
denied a certificate of appealability. ECF 146; see also App. C. The district court
denied the false testimony claim as procedurally defaulted based on the finding that
Mr. Davido failed to raise it on postconviction appeal. App. A18–A19. This finding
was based on the misunderstanding that Mr. Davido argued that the claim was not
previously litigated because it relied on both new evidence and ineffective assistance
of counsel, and therefore Mr. Davido could not have presented “a stand-alone due
process claim.” App. A19. The district court believed that these two prongs both
2 The brain flow study was also invalid as a diagnostic tool because of the diminished or
non-existent blood flow in the decedent's brain. Id. at 73–74.
12
needed to be satisfied under Pennsylvania law when in fact they are two separate
exceptions to the ‘previously litigated’ bar. In the alternative, the district court found
the claim meritless because Mr. Davido did not seek to prove that Dr. Ross committed
perjury. App. A23 (“Indeed, it is notable that Petitioner does not argue that Dr. Ross’s
testimony is perjured. Rather, he attempts to argue that something less is required.”).
The court characterized the claim as a mere disagreement among experts. Id. 3
On appeal, the Third Circuit denied a COA on the false testimony claim but
granted a COA on two issues: “1) trial counsel provided ineffective assistance by
failing to move to suppress evidence obtained as the result of a warrantless entry and
search, and 2) Appellant was denied his Sixth Amendment right to represent himself
during the guilt phase.” App. A7. Following briefing, the panel denied relief on both
claims.
Regarding the failure to move to suppress claim, the panel solely reviewed
whether the Fourth Amendment issue itself was meritorious. App. A3–A4. Without
acknowledging the difference between the probable cause standard and the lower
threshold of reasonable suspicion, the panel purported to apply Michigan v. Fisher,
558 U.S. 45, 47 (2009), and determined that there was an “objectively reasonable
basis for believing” that a person in the house was “in need of immediate aid” under
the emergency aid exception to the warrant requirement. App. A4. The panel’s finding
that “there is ample evidence of exigencies obviating the need for a warrant,” relied
on facts and inferences that supported the officers’ suspicions: that the officers were
3 Regarding evidence presented in federal court, the court did not resolve its admissibility
under AEDPA because the court found that it would not have changed its findings. App. A20.
13
dispatched to investigate a domestic situation that involved a man hitting a woman
and that the officers had been informed that screaming had been heard from the
house. Id. Although the panel acknowledged that by the time the officers arrived
three minutes after they were dispatched, no one answered the door and the home
was silent except for a telephone ringing, the panel apparently considered this fact
as supportive of the officers’ suspicions (or, to use their own words, gut feeling), and
did not scrutinize the lack of corroborative evidence. Id. Therefore, the panel
concluded that because the warrantless search was justified, Mr. Davido could not
show that his counsel was ineffective in failing to move to suppress its fruits.
As to the Faretta claim, although it is unclear whether the panel reviewed the
claim de novo or applied AEDPA deference, the panel noted that “[n]othing about
Davido’s request was clear or unequivocal.” App. A4–A5. The panel found that the
Pennsylvania Supreme Court “correctly concluded” that the self-representation
request was equivocal “because ‘it was employed as a bargaining device, rather than
as a clear demand for self representation,’ when ‘posed as his only alternative if he
was not afforded new counsel.’” App. A5.
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF
OTHER LOWER COURTS ON FOURTH AMENDMENT QUESTIONS.
This case presents the same question on which this Court recently granted
certiorari in Case v. Montana, No. 24-642: whether the government must demonstrate
both exigency and probable cause to satisfy the emergency aid exception, as Michigan
v. Fisher, 558 U.S. 45 (2009), and this Court’s other precedents have required. If, in
14
the context of Terry stops, “[a] mere ‘hunch’ does not create reasonable suspicion,”
Navarette v. California, 572 U.S. at 397, then an officer’s “gut feeling,” without a
showing of more reliable information, should not justify invading “the sanctity of a
man’s home,” which “has been embedded in our traditions since the origins of the
Republic,” Payton v. New York, 445 U.S. 573, 585, 601 (1980). As this Court has
already recognized the importance of confirming the quantum of proof required for
the emergency aid exception, this Court should either grant certiorari or hold the
petition pending Case, vacate the decision below, and remand for consideration in
light of Case.
Brigham City v. Stuart detailed the emergency aid exception, requiring police
to have “an objectively reasonable basis for believing that an occupant is seriously
injured or imminently threatened with such injury” to conduct a warrantless home
entry. 547 U.S. 398, 400 (2006). After further clarification in Fisher that officers do
not need “ironclad proof of a ‘likely serious, life-threatening’ injury to invoke the
emergency aid exception[,]” 558 U.S. at 49, some lower courts have deviated from the
probable cause requirement. Brigham City held that “[o]ne exigency obviating the
requirement of a warrant is the need to assist persons who are seriously injured or
threatened with such injury.” 547 U.S. at 403. Some lower courts treat the emergency
aid exception as a form of the exigency exception—requiring probable cause and
exigent circumstances. Others treat the emergency aid exception as an independent
exception to the warrant requirement, using Brigham City’s “objectively reasonable
basis” to mean some standard less than probable cause.
15
Here, as in Case, the courts applied a standard less than probable cause to find
that warrantless entry was permitted. The Third Circuit affirmed the district court
decision, which, similar to other circuits, relied solely on cases applying a “reasonable
suspicion” standard to justify the warrantless entry. Reasonable suspicion is the
proper standard for investigative stops and frisks, not for warrantless entry into
homes. See Terry v. Ohio, 392 U.S. 1 (1968); Florida v. J.L, 529 U.S. 266, 270 (2000).
The district court analogized anonymous 911 calls justifying Terry stops in Navarette
and J.L. to the anonymous 911 call here motivating a warrantless home entry.
This Court has the opportunity to confirm not just the standard of suspicion
required for the emergency aid exception, but also to clarify the applicability of the
emergency aid exception when criminal activity is necessarily suspected alongside
the need for emergency aid. Caniglia v. Strom already held that there is no lesser
standard for warrantless entry in the “community caretaking” context. 593 U.S. 194,
1598–1600 (2001). That ruling should be clarified by confirming that any warrantless
entry into a private home requires probable cause. Adopting a reasonable suspicion
or other non-probable cause standard for the emergency aid exception would
essentially obliterate the warrant requirement of the Fourth Amendment and a core
right protected by the Constitution: the right to privacy in one’s home, free from
unreasonable and unwarranted government intrusion.
Beyond the question posed in Case, Mr. Davido’s case offers the opportunity to
clarify the emergency aid exception as applied to cases where both criminal activity
and the need for emergency aid are suspected. Case presents a report of a potential
16
suicide, without a separate criminal element. Here, a domestic disturbance was
alleged, which necessarily includes both suspicion of criminal activity and that
someone may be in need of emergency aid. Lower courts have been left confused in
such cases, which has manifested in circuit splits regarding whether anonymous 911
calls can justify warrantless home entries and in evaluating warrantless home
entries based on the emergency aid exception when a domestic disturbance is alleged.
A. This case provides this Court with the opportunity to clarify its
Fourth Amendment precedents.
1. This Court recently granted certiorari in Case v. Montana to
address the emergency aid exception.
As detailed in the certiorari petition that this Court recently granted, there is
division among the courts regarding the standard of proof required to justify
warrantless home entry under the emergency aid exception. See Petition for a Writ
of Certiorari, at 12–24, Case v. Montana, No. 24-642 (Dec. 4, 2024). Three circuits and
two states explicitly state that probable cause is not required for the emergency aid
exception. 4 The Third Circuit falls in line with two other circuits and four states that
apply a standard lower than probable cause. 5 Three circuits and three states have
held that probable cause is required. 6
4 Hill v. Walsh, 884 F.3d 16, 23 (1st Cir. 2018); United States v. Quarterman, 877 F.3d 794,
800 (8th Cir. 2017); United States v. Porter, 594 F.3d 1251, 1258 (10th Cir. 2010); State v.
Curet, 289 A.3d 176, 190 (Conn. 2023); State v. Hillard, 511 P.3d 883, 894 (Kan. 2022).
5 Hopkins v. Bonivicino, 572 F.3d 752, 763, 766–67 (9th Cir. 2009); Figg v. Schroeder, 312
F.3d 625, 639 (4th Cir. 2002); People v. Ovieda, 446 P.3d 262, 272 (Cal. 2019); State v.
Fessenden, 333 P.3d 278, 282 (Or. 2014); State v. Deneui, 775 N.W.2d 221, 234 (S.D. 2009);
State v. Meeks, 262 S.W.3d 710, 723–24 (Tenn. 2008).
6 Est. of Chamberlain v. City of White Plains, 960 F.3d 100, 105 (2d Cir. 2020); Corrigan
v. District of Columbia, 841 F.3d 1022, 1030 (D.C. Cir. 2016); Unites States v. Holloway, 290
F.3d 1331, 1335, 1337 (11th Cir. 2002); State v. Eberly, 716 N.W.2d 671, 679 (Neb. 2006);
17
2. Courts are split over whether an anonymous 911 call can justify
warrantless emergency aid entries.
The circuits are also split on the reliability of anonymous 911 calls in justifying
warrantless home entry. Three circuits have permitted emergency aid warrantless
entry based on anonymous 911 calls, primarily resting on Terry stop reasonable
suspicion precedent, rather than probable cause warrantless entry precedent.
The Third Circuit joined the Eighth and Eleventh Circuits in permitting a
warrantless home entry based on an anonymous 911 call. See United States v. Clarke,
564 F.3d 949, 952 (8th Cir. 2009) (finding entry based on an anonymous 911 call
reporting the production of methamphetamine in the home and observation of smells
consistent with methamphetamine production justified by emergency aid exception);
United States v. Holloway, 290 F.3d 1331, 1332, 1338–39 (11th Cir. 2002) (permitting
a warrantless entry because there was no reason to doubt veracity of 911 call
reporting gunshots and arguing and a second report of continued gunshots). But see
Moore v. Sheriff of Seminole County, 748 F. Appx. 229, 231, 234 (11th Cir. 2018)
(unpublished) (finding warrantless entry was not justified when an anonymous 911
call reported a fight and officers obtained no corroborating information). The
Eleventh Circuit noted that Moore differed from Holloway because, unlike in
Holloway, there was no report of a deadly weapon and officers on the scene did not
observe signs of a “‘tumultuous’ situation that would demand their immediate entry.”
Id. at 233. Notably, the Third Circuit is the only circuit to permit a warrantless entry
People v. Pate, 71 P.3d 1005, 1011–12 (Colo. 2003) (en banc); State v. Macelman, 834 A.2d
322, 316–27 (N.H. 2003).
18
under the emergency aid exception based on nothing more than an uncorroborated,
anonymous 911 call reporting potential weaponless physical assault.
The Second, Sixth, and Tenth Circuits have all prohibited warrantless entry
based solely upon an anonymous 911 call. Reed v. Campbell County, Kentucky, 80
F.4th 734, 745–46 (6th Cir. 2023) (finding warrantless entry not permitted where
caller identified herself by her first name and claimed to be a neighbor, officers did
not see or hear anything amiss at the scene, but a light was on in the house); Storey
v. Taylor, 696 F.3d 987, 990, 992 (10th Cir. 2012) (finding no exigent circumstances
to justify lack of warrant where an anonymous 911 call reported a loud argument at
plaintiff’s address, officers heard no argument when they arrived, and plaintiff
opened the door to speak with police upon their arrival); Kerman v. City of New York,
261 F.3d 229, 235–37 (2nd Cir. 2001) (finding that warrantless entry was not
permitted when the entry was solely based on an anonymous 911 call without
corroboration despite report that “a mentally ill man was . . . acting crazy and possibly
had a gun”). Reed, in particular, directly conflicts with the decision below:
The officers needed more than just that phone call to make a
warrantless entry into a home. But when they investigated, they did not
find more. When they arrived at the scene, they heard nothing and saw
nothing amiss. The circumstances at the scene therefore contradicted
the 911 caller’s report of the verbal and physical altercation outside.
80 F.4th at 744 (internal citations omitted).
3. There is confusion regarding whether there is an exception or
lower standard required based on reports of domestic disputes.
Finally, lower courts are confused in their analysis of warrantless entry in the
event of alleged domestic disputes. The Sixth, Tenth, and Eleventh Circuits have
19
refused to create a per se categorical exception or apply a lower standard for alleged
domestic disputes. See Reed, 80 F.4th at 739–40 (holding that officers “need
something beyond” a 911 call, whether or not it is anonymous, for a warrantless entry,
even when a domestic disturbance is alleged); Walters v. Freeman, 572 F. Appx. 723,
727–29 (11th Cir. 2014) (unpublished) (finding warrantless entry not justified despite
the fact that Florida’s “robust” domestic abuse investigation-and-reporting statute
imposes mandatory obligations on law enforcement officials); United States v. Davis,
290 F.3d 1239, 1240–44 (10th Cir. 2002) (“Essentially, the government asks for a
special rule for domestic calls because they are inherently violent, and the police,
responding to these calls, are automatically at greater risk. We do not believe this
case justifies a venture into that new territory.”).
Other courts, including the Third Circuit, have opined on the categorically
different nature of domestic disputes and have noted that concerns about domestic
disputes may override Fourth Amendment protections. 7
7 Cost v. Borough of Dickson City, 858 F. Appx. 514, 518–19 (3d Cir. 2021) (unpublished)
(approving warrantless entry based on report of domestic disturbance despite fact that
officers did not hear yelling upon arrival); Ceasar v. City of Eunice, 642 F. Appx. 387, 388–89
(5th Cir. 2016) (unpublished) (finding that “a credible report of domestic violence” based upon
a report of a domestic disturbance justified warrantless entry); Pleasants v. Town of Louisa,
524 F. Appx. 891, 898 (4th Cir. 2013) (unreported) (“Although courts have long held that the
sanctity of the home is ‘[a]t the very core’ of the Fourth Amendment, numerous recent
decisions have shown great concern for domestic violence and for children who may be in
danger.”); United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004) (“[A] 911 call reporting
a domestic emergency, without more, may be enough to support a warrantless search of a
home.”); Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999) (“On the spot reasonable
judgments by officers about risks and dangers are protected. Deference to those judgments
may be particularly warranted in domestic disputes. In those disputes, violence may be
lurking and explode with little warning”); Tierney v. Davidson, 133 F.3d 189, 197 (2nd Cir.
1998) (“Courts have recognized the combustible nature of domestic disputes, and have
accorded great latitude to an officer’s belief that warrantless entry was justified by exigent
20
B. This Court should clarify that probable cause was required in the
circumstances of this case.
The “physical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585–86 (1980)
(internal quotation omitted). The home is the primary concern of the Fourth
Amendment; it is the “first among equals. At the Amendment’s very core stands the
right of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (cleaned up). As
recently as Caniglia, this Court has recognized the fundamental difference between
the home and other privacy interests. 593 U.S. at 199 (“What is reasonable for
vehicles is different from what is reasonable for homes.”).
The “sanctity of a man’s home,” which “has been embedded in our traditions
since the origins of the Republic,” Payton, 445 U.S. at 601, necessitates applying
heightened standards when it comes to warrantless government intrusions. For this
reason, warrantless home entries are presumptively unreasonable. Id. at 585
(quoting Boyd v. United States, 116 U.S. 616, 639 (1886)). This presumption is
“subject only to a few specifically established and well-delineated exceptions,” Katz v.
United States, 389 U.S. 347, 357 (1967), including: pursuit of a fleeing suspect,
preventing imminent destruction of evidence, and the need to provide emergency aid
to an injured occupant or protect an occupant from imminent injury, Kentucky v.
King, 563 U.S. 452, 460 (2011). Probable cause best strikes the balance between the
circumstances when the other had substantial reason to believe that one of the parties to the
dispute was in danger.”). See also State v. Greene, 784 P.2d 257, 259 (Ariz. 1989).
21
“sanctity of a man’s home” and the legitimate need for law enforcement to intervene
in emergency situations.
This is especially so regarding anonymous 911 calls and tips to police.
Anonymous tips may provide police crucial information to follow up on, but these tips
alone are often insufficient to justify warrantless searches or seizures. None of this
Court’s decisions regarding anonymous tips or 911 calls have contemplated
warrantless home entry based on an uncorroborated tip alone. Permitting such entry
on less than probable cause would substantially deteriorate Fourth Amendment
protections. An anonymous, uncorroborated 911 call that does not justify an
investigatory stop could nevertheless be used to justify a warrantless home entry.
“[A]n anonymous tip alone seldom demonstrates the informant’s basis of
knowledge or veracity.” Alabama v. White, 496 U.S. 325, 329 (1990). In J.L., this
Court held that an anonymous tip that a young black male standing at a particular
bus stop wearing a plaid shirt was carrying a gun was insufficient to justify an
investigatory stop. 529 U.S. at 268. While anonymous 911 calls may contain indicia
of reliability that provide reasonable suspicion, Id. at 270, anonymous,
uncorroborated 911 calls do not provide probable cause.
In Navarette, an anonymous 911 call provided an eyewitness account of a car
running the caller off the road, including the make, model, license plate and direction
of travel. 572 U.S. at 395–96. The Court found this call provided reasonable suspicion
in concert with officers’ identification of the vehicle, which was traveling in the proper
direction at a location consistent with the caller’s description. Id. at 398–400.
22
However, Navarette was a “close case.” Id. at 404. Reasonable suspicion is “obviously
less demanding” than probable cause, United States v. Sokolow, 490 U.S. 1, 7 (1989),
and the home has a higher expectation of privacy than a vehicle. If an anonymous
911 call from an eyewitness, presents a borderline case for an investigatory vehicle
stop, an anonymous 911 call cannot provide probable cause for a warrantless home
entry. Confirming the long-standing probable cause standard for the emergency aid
exception will encourage skepticism about uncorroborated, anonymous 911 calls and
would prevent unwarranted intrusion into the home.
Allowing warrantless entry on less than probable cause can also pose more
potentially dangerous interactions for law enforcement and civilians, particularly
with the rise of “swatting.” Swatting calls are hoax 911 calls that report ongoing,
serious emergencies to prompt a substantial police response, intending to cause largescale deployment of Special Weapons and Tactics (SWAT) teams, bomb squads, and
other police resources. 8 This Court has long been aware of the risk of misleading or
false reports to police. See J.L., 529 U.S. at 272 (“Such an exception would enable any
person seeking to harass another to set in motion an intrusive, embarrassing police
search of the targeted person simply by placing an anonymous call falsely reporting
the target’s unlawful carriage of a gun.”). Swatting calls create a “frantic armed police
response to frighten, harass and endanger someone at their home.” 9 False reports
8 Swatting Calls and Hoax Threats, U.S. Department of Homeland Security 1 (Sept. 30,
2024).
9 D. Barrett & N. Haberman, Several Trump Administration Picks Face Bomb Threats
and
“Swatting”,
N.Y.
Times,
Nov.
27,
2024,
https://www/nytimes/com/2024/11/27/us/politics/trump-administration-picks-bombthreats.html.
23
and swatting calls have resulted in victims being killed by police due to the highstress, confusing, and tense situation for all involved. 10 The prevalence of swatting is
on the rise: the Department of Homeland Security reports that swatting calls occur
on a daily basis. 11 Even the White House has been the victim of swatting. 12
Confirming the probable cause standard for the emergency aid exception would
prevent unwarranted intrusion into the home and establish greater protection
against swatting.
Likewise, this case presents the opportunity to clarify this Court’s precedent
to protect against unwarranted intrusions into the home while balancing the need to
protect potential victims from alleged domestic disputes. This Court has repeatedly
rejected categorical exceptions to the warrant requirement based on the crime
alleged. See Richards v. Wisconsin, 520 U.S. 385, 396 (1997) (“[W]e reject the blanket
exception to the knock-and-announce requirement for felony drug investigations.”);
Mincey v. Arizona, 437 U.S. 385, 395 (1978) (rejecting Arizona’s “murder scene
exception” to the warrant requirement). Even when serious crimes are alleged, this
10 See, e.g., Finch v. Rapp, 38 F.4th 1234, 1238 (10th Cir. 2022) (individual killed by police
after fake emergency call to his address); Serial Swatter Sentenced to Sixty Months in Federal
Custody in Connection with Death of Tennessee Man, U.S. Attorney’s Office W.D. Tennessee
(July 27, 2021) https://www.justice.gov/usao-wdtn/pr/serial-swatter-sentenced-sixty-monthsfederal-custody-connection-death-tennessee-man (swatting hoax resulted in elderly victim
suffering a heart attack while approaching police, who had guns drawn); Michele Richinick,
No charges for man who shot police chief in Oklahoma, MSNBC (Jan. 19, 2015)
https://www.msnbc.com/msnbc/no-charges-man-who-shot-police-chief-oklahomamsna508901 (police chief shot by homeowner after police entered home on false report of a
bomb threat when homeowner was unaware the intruders were law enforcement).
11 Swatting Calls and Hoax Threats, supra.
12 See Richard Luscombe, White House targeted in ‘swatting’ attack while Joe Biden is
away, The Guardian (Jan. 15, 2024, 3:22 P.M.) https://www.theguardian.com/usnews/2024/jan/15/white-house-swatting-attack.
24
Court has been clear: the Fourth Amendment is not offense specific. As such, there is
no basis upon which lower courts can categorically reduce the standard for alleged
domestic disputes.
Applying a lower level of suspicion to suspected domestic disputes
unreasonably expands the government’s authority to invade citizens’ right to privacy
in their home. Police can and should discern domestic conflict from domestic violence.
The mere allegation of yelling or arguing should not give law enforcement carte
blanche to enter private homes. Similarly, allegations of domestic arguments may
invade the realm of parental rights. If a mere allegation of yelling warrants police
entry, then parents may be targeted by those who simply dislike them or disagree
with their methods of raising children.
Confirming the probable cause requirement for the emergency aid exception
will permit law enforcement and courts to analyze these situations as they often have,
using the totality of the circumstances and officer experience, without weighing the
seriousness of the potential crime or potential harm against the level of information
known. Having a unified probable cause standard for all exigent circumstances
exceptions to the warrant requirement will avoid situations where criminal activity
is suspected alongside the need for emergency aid, and police take advantage of a
lower suspicion of harm to investigate criminal activity, thus disrupting the balance
mandated by the Fourth Amendment.
This case is a proper vehicle to decide the question of the standard of suspicion
needed for the emergency aid exception because Case will simply apply this Court’s
25
precedent and clearly established federal law. Brigham City described the emergency
aid exception as one exigency exception, and this Court has clearly established that
exigency exceptions require probable cause and exigent circumstances. No lower
court addressed the merits of the ineffective assistance of counsel claim beyond the
underlying Fourth Amendment claim, so only the standard for the emergency aid
exception is determinative of the Third Circuit’s decision.
This Court should grant certiorari to clarify the emergency aid exception when
criminal activity is alleged alongside consideration of the proper standard for
emergency aid in Case, including when the report is based on an anonymous,
uncorroborated 911 call and/or when a domestic dispute is reported. Alternatively,
this Court can hold this case pending the resolution of Case, vacate the judgment of
the Third Circuit, and remand this case for further consideration in light of Case.
II.
THE OPINION BELOW CONFLICTS WITH FARETTA AND THE
PREVAILING VIEW OF LOWER COURTS.
A. This Court dealt with simultaneous requests for new counsel and to
proceed pro se in Faretta itself.
The Third Circuit found that “[n]othing about Davido’s request was clear or
unequivocal” and that the Pennsylvania Supreme Court “correctly concluded” that
the request was equivocal because it was “posed as his only alternative if he was not
afforded new counsel”—i.e., it was a “bargaining device rather than [] a clear demand
for self representation.” App. A5. This was the sole ground upon which the Third
Circuit affirmed the denial of relief on this claim.
26
There is nothing remarkable or ambiguous about a defendant posing these two
requests in the alternative when he is not satisfied with his attorney’s
representation—these are two remedies that address the same underlying problem.
The trial court recognized as much when it explicitly denied Mr. Davido’s selfrepresentation request (albeit without conducting a Faretta inquiry) in addition to
his request for new counsel. Indeed, Faretta, who did not want to be represented by
the local public defender because he believed they were bogged down with a heavy
case load, simultaneously sought to vindicate his right to the counsel of his choice and
his right to represent himself. Faretta, 422 U.S. at 807–11 & n.5. In total, Faretta
unsuccessfully moved for the appointment of substitute counsel three times. Id. at
811 n.5. Despite these alternative requests, this Court found he was entitled to a new
trial because “Faretta clearly and unequivocally declared to the trial judge that he
wanted to represent himself and did not want counsel.” Id. at 806.
The decision below upholding the Pennsylvania Supreme Court’s finding that
Mr. Davido’s request was equivocal because it was made in the alternative clearly
conflicts with Faretta and warrants certiorari review.
B. The opinion below conflicts with the decisions of other lower courts.
As both Justice Saylor and the district court noted, the Pennsylvania Supreme
Court’s holding—and by extension the decision below—conflicts with “the prevailing
view in other jurisdictions.” Davido I, 868 A.2d at 448–49 & n.1 (Saylor, J.,
concurring). See also App. A88 n.27 (acknowledging cases but attempting to
distinguish them).
27
1. The First, Second, Sixth, Seventh, Eighth, and Ninth Circuits have
recognized that a conditional request is not inherently equivocal.
In an unpublished opinion, the First Circuit recognized that a selfrepresentation request is not equivocal due to its conditional nature, but such a
request can become equivocal when the request for new counsel is granted and the
defendant does not renew his alternative request to represent himself. See Jordan v.
Ficco, 134 F. App’x 452 (1st Cir. 2005) (unpublished).
The Second Circuit has long recognized that a conditional request is not
equivocal. See Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994) (“[A] defendant is
not deemed to have equivocated in his desire for self-representation merely because
he expresses that view in the alternative, simultaneously requests the appointment
of new counsel, or uses it as a threat to obtain private counsel.”).
So has the Sixth Circuit. See Cassano v. Shoop, 1 F.4th 458, 467–70 (6th Cir.
2021) (granting habeas relief where trial court failed to conduct Faretta inquiry after
defendant filed simultaneous motions for the substitution and waiver of counsel);
Moore v. Haviland, 531 F.3d 393, 402 (6th Cir. 2008) (“With the trial judge having
failed to grant any of Moore’s first three alternatives, he was duty bound to treat the
letter as a clear request to proceed pro se, written by the accused after the court had
cautioned him against the soundness of that decision. Moore’s request to proceed pro
se was no less voluntary because it was contingent on the denial of other options that
he might also find palatable.”).
The Seventh Circuit. See United States v. Campbell, 659 F.3d 607, 612 (7th
Cir. 2011), vacated on other grounds, 568 U.S. 802 (2012) (“His initial request in the
28
March 19 letter was unequivocal though conditional. He requested that Taylor be
removed from his case, and requested the appointment of another lawyer. He then
stated that if another lawyer would not be appointed, he would like to proceed pro se.
That is sufficient to at least raise the issue of self-representation. At that point, the
district court should have engaged in a colloquy to address that request.”). 13
The Eighth Circuit. See Carey v. State of Minn., 767 F.2d 440, 441–42 (8th Cir.
1985) (finding that the defendant knowingly and intelligently elected to represent
himself where, when asked whether he desired to represent himself, he stated “‘No. I
don’t. I want a different attorney. But since I can’t have one I’ll conduct my own
defense, yes.’”). 14
And the Ninth Circuit. See United States v. Mendez-Sanchez, 563 F.3d 935, 946
(9th Cir. 2009) (“A conditional waiver can be stated unequivocally, as for example
when a defendant says in substance: ‘If I do not get new counsel, I want to represent
myself.’ There is a condition, but the demand is unequivocal.”); Adams v. Carroll, 875
F.2d 1441, 1444–45 (9th Cir. 1989) (“While his [self-representation] requests no doubt
were conditional, they were not equivocal.”).
13 Because the decision was vacated on other grounds, the Faretta portion of the opinion is
still authoritative. See United States v. Campbell, 488 F. App’x 152, 153 (7th Cir. 2012).
14 Although Carey involved the appeal of a grant of the waiver of counsel, the Eighth
Circuit has applied it to cases in which such a waiver was denied. See Hamilton v. Groose, 28
F.3d 859, 862–63 (8th Cir. 1994) (recognizing that a defendant may make a conditional
waiver of his right to counsel but finding it equivocal when the defendant stated that he was
“not very serious about wanting to represent [himself]”) (citing Carey, 767 F.2d at 441).
29
2. The Fourth Circuit held otherwise over a robust dissent.
When confronted with a conditional request, the Fourth Circuit denied relief
without confronting the fact that the request itself was unequivocal. See United
States v. Frazier-El, 204 F.3d 553, 558–61 (4th Cir. 2000) (“[W]e are satisfied that the
district court was justified, when confronted with Frazier-El’s vacillation between his
request for substitute counsel and his request for self-representation, in insisting that
Frazier-El proceed with appointed counsel.”). Instead, the Fourth Circuit endorsed
the reasoning of the district court that a conditional self-representation request can
be categorized as a “manipulative effort” to raise trial defenses that appointed counsel
would not. Id. at 560.
The dissent recognized that the majority opinion was contrary to every other
circuit: “Because such statements are ‘conditional . . . not equivocal,’ every other
federal circuit to consider the question has come to the sensible conclusion that
requesting self-representation as a ‘fallback’ or ‘alternative’ to a primary request for
new appointed counsel does not automatically render the alternative request unclear
or equivocal for purposes of Faretta.” Id. at 566 (Murnaghan, J., dissenting). As the
dissent explained, the majority’s holding was grounded in paternalism and concerns
over competency, rather than Faretta’s regard for autonomy—the defendant, who
was diagnosed with schizophrenia, wanted to replace his attorney based on the
refusal to raise sovereign citizen arguments. Id. at 565–66.
30
3. The majority of state courts agree that a conditional request is not
inherently equivocal.
Contrary to the Pennsylvania Supreme Court, the majority of state courts
faced with this question have held that alternative or conditional requests are not
inherently equivocal. See, e.g., State v. Towle, 35 A.3d 490, 493 (N.H. 2011) (“We adopt
the approach of a number of courts, which have held that a conditional [selfrepresentation] request is not equivocal.”). 15
C. This Court should summarily reverse the decision below or set the
case for full briefing.
Mr. Davido clearly and unequivocally requested either the appointment of new
counsel or to represent himself at trial. The trial court recognized that he had made
an unequivocal self-representation request—“Any request of yours to proceed pro se
is also denied”—but denied it without conducting a colloquy or any inquiry into the
request, instead allowing him to “air his grievances” after it was denied. Although
the court gave no reasons for its denial, elsewhere the court indicated its opinion that
15 See also Hinshaw v. State, 515 P.3d 129, 140 (Alaska Ct. App. 2022) (“[T]hat a defendant
makes a request for self-representation only because the court refuses to appoint substitute
counsel does not make the request equivocal or the waiver of counsel involuntary.”); State v.
Jordan, 44 A.3d 794, 809 (Conn. 2012) (holding that lower court “improperly concluded . . .
that the defendant's expression of his request as an alternative to the appointment of new
counsel constituted vacillation, thereby rendering equivocal his assertion of the right to selfrepresentation”); State v. Blom, 682 N.W.2d 578, 613 (Minn. 2004) (“[A] motion for selfrepresentation is not equivocal simply because it is made as an alternative plan in case the
court does not grant a defendant's motion for a different attorney.”); People v. Michaels, 49
P.3d 1032, 1055 (Cal. 2002) (“There is nothing equivocal in a request that counsel be removed
and, if not removed, that the defendant wants to represent himself.”); Gallego v. State, 23
P.3d 227, 236 (Nev. 2001) (“[T]he district court erred in finding the request equivocal simply
because [the defendant] preferred to have new counsel.”); State v. Stenson, 940 P.2d 1239,
1276 (Wash. 1997) (“The request to represent oneself may be stated in the alternative of a
request for new counsel.”).
31
retaining counsel was in Mr. Davido’s “best interest,” a decision that was not the
court’s to make. This directly contradicts Faretta. Indeed, other circuits have granted
habeas relief through the lens of 28 U.S.C. § 2254(d)(1) in materially similar
circumstances. See, e.g., Cassano, 1 F.4th at 472–79; Moore, 531 F.3d at 401–04.
Likewise, other courts have refused to adopt rules similar to the ‘bargaining device’
logic employed in this case. See, e.g., Johnstone v. Kelly, 808 F.2d 214, 216 & nn.1–2
(2nd Cir. 1986) (rejecting the argument that self-representation request is equivocal
when it is “merely . . . a threat designed to obtain different appointed counsel.”).
This case is worthy of certiorari review. The vast majority of jurisdictions have
clearly understood this Court’s holding in Faretta; the Third and Fourth Circuits and
the Pennsylvania Supreme Court are outliers. This case presents this Court with the
opportunity to provide clarification to lower courts that a conditional or alternative
self-representation request is not inherently equivocal and that the role of the trial
court when confronted with such a request is to conduct an inquiry, rather than
decide whether the request is in the defendant’s “best interests.” Indeed, it is exactly
the point of a Faretta inquiry to determine whether the defendant is competent to
take such action, is truly serious about his request, and understands what he might
be getting himself into. See Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). The failure
to conduct an inquiry cannot be cured by asking a defendant on the morning of trial
if he would like to proceed pro se after being denied the opportunity to litigate pretrial
motions and discovery, study local and constitutional law, intelligently determine
whether to present a defense and which witnesses to call, and generally prepare to
32
go it alone (or with standby counsel) at trial. Therefore, this Court should grant the
petition and summarily reverse the decision below or set the case for full briefing.
III.
REASONABLE JURISTS COULD DEBATE THE FALSE TESTIMONY
CLAIM.
The Third Circuit failed to issue a COA on Mr. Davido’s false testimony claim
that the district court denied under a procedural bar the Commonwealth concedes is
wrong, and based on its erroneous beliefs that Mr. Davido was required to allege
perjury and that Mr. Davido raised a mere disagreement between experts.
The question of whether to grant a COA is a threshold analysis of a petitioner’s
potential arguments on appeal, not on the lower court’s merits rulings. See Buck v.
Davis, 580, U.S. 100, 115 (2017). A district court’s ruling on an issue or claim is
debatable if “reasonable jurists could debate whether the petition should have been
resolved in a different manner.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(cleaned up). Where a petition is denied on a procedural ground, a court must
determine if the procedural issue is debatable and whether the petitioner has made
the substantial showing of a denial of an underlying constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000).
A. The Commonwealth has conceded that the procedural default finding
is not just debatable, but wrong.
Contrary to the district court’s finding that only one false-testimony claim was
presented on postconviction appeal, Mr. Davido clearly presented two distinct claims
for relief. ECF 131-14, at 38–48. The district court’s error was based on the
misunderstanding that Pennsylvania’s ‘previously litigated’ bar requires that a claim
33
be based on both new facts and ineffective assistance of counsel. App. A17–A19 & n.4
(“This was not a statement of two separate reasons that his claim was not previously
litigated. As is clear from the cases relied upon by petitioner, both of these things had
to be true for a claim not to [be] dismissed as previously litigated.”). In actuality, those
constitute two different exceptions to the rule—one legal and one factual. See
Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005); Commonwealth v. Miller,
746 A.2d 592, 602 (Pa. 2000).
The genesis of the district court’s error can be found in the Commonwealth’s
answer to the habeas petition. ECF 134, at 137. The district court adopted the
Commonwealth’s argument and deemed the claim defaulted because it was not
presented to the Pennsylvania Supreme Court on postconviction appeal. By the time
this case reached the Third Circuit, however, the Commonwealth realized its
argument was erroneous and conceded that the claim had not actually been
procedurally defaulted. CA3-ECF 22, at 42–45 & n. 5 (“Respondents acknowledge
that the argument in its response to the habeas petition wherein it was asserted that
Davido’s stand-alone challenges to Dr. Ross with respect to observing a shearing and
finding ligature strangulation were never presented to the state court was in error.”).
The Commonwealth agrees that the district court’s procedural adjudication of this
claim was not just debatable, it was flat wrong.
B. The district court’s adjudication of the merits of the claim is
reasonably debatable.
The district court’s analysis of the merits of this claim fares no better. First,
the court found that this claim failed—under AEDPA deference or de novo review—
34
because Mr. Davido did not argue it was based on perjured testimony. App. A23
(“Petitioner’s repetition of the phrase ‘false, inaccurate or misleading testimony’
throughout his brief seems to imply that Napue required something less than a
showing of perjury to establish a due process violation. But Napue is far more
particular with its requirements.”). But the word ‘perjury’ never appeared in this
Court’s opinion in Napue. While this Court’s first two false testimony decisions used
the word perjury, Pyle v. Kansas, 317 U.S. 213 (1942); Mooney v. Holohan, 294 U.S.
103 (1935), this Court never indicated that the holding of those decisions hinged on
the fact that the false testimony was perjured. And before Napue was even decided,
this Court had made clear that the inquiry was about the impression created in the
eyes of the jury, not whether the testimony constituted perjury in the local
jurisdiction. See Alcorta v. Texas, 355 U.S. 28, 31 (1957) (misrepresentation by
witness violated due process where prosecutor “told him he should not volunteer [the]
information . . . but if specifically asked about it to answer truthfully”). As this Court
noted in Alcorta, “under the general principles laid down” in Mooney and Pyle, it was
the “false impression” given to the jury that violated due process. Id.
By inventing such a requirement, the district court transformed this Court’s
false testimony test into one that places a burden on the defendant to prove the
elements of perjury, which include the witness’s subjective mindset. That is contrary
to 70 years of this Court’s precedent, and the failure to correctly identify the actual
holdings of this Court’s false-testimony test is worthy of a COA under Andrew v.
White, 145 S. Ct. 75 (2025). As the Court emphasized in Andrew, “[w]hen this Court
35
relies on a legal rule or principle to decide a case, that principle is a holding of the
Court for purposes of AEDPA.” Id. at 81 (cleaned up). When a federal court
misconstrues the clearly established federal law, it cannot properly evaluate the state
court’s adjudication of the claim, let alone apply de novo review to a claim not
adjudicated on the merits in state court. Cf. id. at 83 (“Because the Tenth Circuit . . .
held that no relevant clearly established law existed (a ruling this Court reviews de
novo) it never considered whether the state court's application of that law was
reasonable.”). Here, because the district court misidentified the clearly established
law, it could not properly analyze the claim.
Second, the district court improperly adopted the Pennsylvania Supreme
Court’s framing of the issue as a mere disagreement between experts, when in fact
Dr. Ross admitted during postconviction proceedings that core elements of his
testimony were false. App. A23 (“As the state court observed, Petitioner has done
nothing more than produce experts who disagreed with Dr. Ross.”) (citing Davido II,
106 A.3d at 628–29). The jury was led to believe that Dr. Ross actually observed
firsthand shears and tears in the decedent’s brain, which he claimed showed that she
suffered a shearing injury from massive repeated impacts, and that she “sustained
hundreds of G’s of force.” This testimony was essential for the Commonwealth in
establishing the specific intent required for first-degree murder. But it was false. Dr.
Ross did not observe any such injury. This claim is not about expert disagreement; it
is about the acknowledged false impression put into the minds of the jurors by Dr.
Ross that he observed injuries caused by a vicious beating consistent with specific
36
intent to kill. See Glossip v. Oklahoma, 145 S. Ct. 612, 628 (2025) (“‘A lie is a lie, no
matter what its subject.”) (internal quotation omitted).
This claim is additionally worthy of a COA because it is material. Dr. Ross’s
testimony was entirely speculative and would be inadmissible under state law
because he could not testify to his conclusions to a reasonable degree of medical
certainty, the fundamental reliability requirement for expert testimony in
Pennsylvania. See Davido I, 868 A.2d at 441 (citing Commonwealth v. Baez, 720 A.2d
711, 727 (Pa. 1998); Menarde v. Philadelphia Transp. Co., 103 A.2d 681, 684 (Pa.
1954)). Dr. Ross’s postconviction conclusion that there must be tearing or shearing
“somewhere” in the brain was rank speculation and was not based on a reasonable
degree of certainty.
Even if Dr. Ross’s testimony was not excluded as a matter of state law, Glossip
instructs that courts must consider the impact of the falsity’s correction on the jury.
145 S. Ct. at 628. The falsity of his shearing testimony would have given the jury
strong reason to discredit him and his conclusions—he testified falsely about the
cause of death and that he observed firsthand evidence of shearing, and he failed to
conduct readily available procedures that could have confirmed whether there was
such an injury. When challenged during postconviction, he admitted that he had not
made these observations but doubled down on shearing as the cause of death by
inventing more misrepresentations to rule out another possible cause of death.
And whether his testimony was excluded entirely or only severely discredited,
it would have raised a reasonable doubt on a central issue in the case: specific intent,
37
an issue on which the Commonwealth leaned heavily on Dr. Ross. Specific intent
requires far more than causation—it requires proof beyond a reasonable doubt of a
“willful, deliberate and premeditated killing.” 18 Pa. C.S. § 2502. Mr. Davido has
never denied that he and his girlfriend had a physical altercation but has denied
striking her in a manner that would cause life threatening injuries, which formed the
defense strategy at trial. Davido II, 106 A.3d at 631. So, it is true that if Mr. Davido’s
actions resulted in the decedent suffering a burst aneurysm, then he caused her
death. But Dr. Ross’s theory of a prolonged and vicious beating was predicated on the
notion that the decedent suffered a shearing injury. If the decedent died of an
aneurysm, then Dr. Ross’s theory would have gone out of the window. 16
Both the Pennsylvania Supreme Court and the district court have flipped the
Napue inquiry on its head to fault Mr. Davido for failing to exclusively establish that
a ruptured aneurism was the cause of death. See Davido II, 106 A.3d at 628–29. But
it is the Commonwealth’s burden to prove that the false testimony was harmless
beyond a reasonable doubt, not Mr. Davido’s. Dr. Ross said he observed shearing in
the decedent’s brain, which was false, and he did not conduct readily available
procedures consistent with generally accepted standards that could have confirmed
such an injury. As a result, the cause of death cannot be conclusively established.
Unlike Dr. Ross, the defense experts correctly recognized—by adhering to accepted
medical standards and testifying truthfully—that the ultimate cause of death is
16 If evidence of an aneurysm raised a reasonable doubt in the eyes of the jury, other
Commonwealth evidence would be undercut, including the lurid testimony of two jailhouse
informants about Mr. Davido slamming the decedent’s head into the floor.
38
uncertain because of Dr. Ross’s failure to conduct generally accepted procedures.
Instead of acknowledging this, courts have long penalized Mr. Davido. At the very
least, jurists of reason could debate whether Napue requires the Commonwealth to
prove harmlessness beyond a reasonable doubt, rather than Mr. Davido.
Moreover, the exposure of Dr. Ross’s false testimony would have had knock-on
effects. In addition to his conclusion that there was evidence of traumatic brain
injury, Dr. Ross testified that there was evidence of strangulation and rape. He
testified that manual and ligature strangulation contributed to the brain swelling
based on abrasions and hemorrhaging to the neck. ECF 131-2, at 173, 176. But once
again his conclusion was inconsistent with and unsupported by other evidence in the
case: the hyoid bone and thyroid cartilage were intact; there was no blood coming
from her mouth, nose and ears; she had no petechial hemorrhages; and expert
testimony shows that the neck injuries were soft tissue injuries, all of which is
inconsistent with strangulation. Id. at 177–78. Likewise, he testified to vaginal
injuries in support of the Commonwealth’s argument that the decedent was raped
based on bruising and an area of denuded skin in the genital area. Id. at 174. Yet
again, his conclusions were inconsistent with and unsupported by other evidence: as
noted by the paramedics who responded to the scene, there was no direct genital
trauma, and the superficial genital injury was consistent with consensual sex. Id. at
178. A juror who discredits one conclusion because it is false, unreliable, and
speculative, is unlikely to credit other similarly questionable conclusions.
39
The Commonwealth presented the false testimony of the medical examiner to
shore up its case for specific intent. When confronted during postconviction, the
witness again testified falsely. His testimony went to the heart of the case against
Mr. Davido and, at the very least, reasonable jurists could debate how the district
court adjudicated it. This Court should grant the petition, issue a certificate of
appealability, and either consider the district court’s disposition of this claim on the
merits or remand for the Third Circuit to consider it in the first instance.
CONCLUSION
For these reasons this Court should grant the petition for a writ of certiorari
and either set this case for full briefing or vacate the decision below and remand for
further proceedings.
Respectfully submitted,
/s/ Jennifer Chiccarino
JENNIFER CHICARRINO
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
The Curtis – Suite 545-West
601 Walnut Street
Philadelphia, PA 19106
(215) 928-0520
jennifer_chiccarino@fd.org
Member of the Bar of the Supreme Court
Counsel for Petitioner
Dated: August 6, 2025
40
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.