Appendix — Rompilla v. Beard

NO. oY -S¥Oe

IN THE SUPREME COURT OF THE UNITED STATES

RONALD ROMPILLA,

Petitioner,

Vv.

MARTIN HORN, Commissioner, Pennsylvania Department of Corrections,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

BILLY H. NOLAS, ESQ.

Assistant Federal Defender

MAUREEN KEARNEY ROWLEY, ESQ.

Chief Federal Defender

Defender Association of Philadelphia

Federal Court Division

The Curtis Center — Suite 545 West

Independence Square West

Philadelphia, PA 19106

(215) 928-0520

Counsel for Petitioner, Ronald Rompilla

Dated: July 23, 2004

653 A.2d 626

(Cite as: 539 Pa: 499, 653 A.2d 626)

>

Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,

.

Ronald ROMPILLA, Appellant.

Argued Oct. 20, 1994.

Decided Jan. 23. 1995.

Defendant was convicted in the Common Pleas

Court, Lehigh County, Criminal Division, No. 682 of

1988, David E. Mellenberg, J.. of murder in the first

degree, burglary, criminal trespass, robbery, theft,

and receiving stolen property and was sentenced to

death, and he appealed. The Supreme Court, No. 53

Capital Appeal Docket. Nix, C.J., held that: (1)

evidence supported conviction for first-degree

murder, and (2) during sentencing phase,

Commonwealth's reading of rape victim's testimony

that, after defendant stole money, he raped victim at

kmifepoimt was necessary to support aggravating

circumstance that defendant had significant history of

felony convictions involving use of violence to the

person.

Affirmed

West Headnotes

{1} Criminal Law @= 1 134(3)

110k1134(3)

Supreme Court would not specifically address any of

the issues raised in capital murder defendant's pro se

bnef which was appended to his counsel's brief and

which focused on sufficiency of the evidence and mal

counsels’ ineffectiveness because Court was obligated

to undertake independent review of sufficiency of the

evidence supporting defendant's conviction and

because defendant was free to raise ineffectiveness of

any of his prior counsel! in a subsequent proceeding.

{2} Criminal Law @= 1134(3)

110k1134(3)

Although capital murder defendant did not

specifically challenge sufficiency of the evidence

supporting his conviction, Supreme Court would

nevertheless undertake such review.

[3] Crumnal Law @= 1 144.13(3)

110k1144.13(3)

Page 1

[3] Criminal Law @> 1159.2(7)

110k1159.2(7)

In reviewing sufiiciency of the evidence, Supreme

Court must view evidence and all reasonable

inferences derived therefrom in light most favorable

to Commonwealth as verdict winner, to determine

whether all elements of offense have been established

beyond reasonable doubt.

[4] Homicide C1184

203k1184

(Formerly 203k234(11))

[4] Homicide G 1187

203k1187

(Formerly 203k234(11))

Evidence supported defendant's conviction for first-

degree murder; in paying for motel room, defendant

paid $121 in cash and flashed large amount of cash,

defendant used false name when he checked in,

defendant's sneakers matched footprint in blood that

was discovered near victim's body, blood found on

sneakers matched victim's blood type, victim's wallet

was found in bushes outside defendant's motel room,

defendant's fingerprint was found on one of the

knives used to commit murder, and there were

numerous inconsistencies between what defendant

had told police concerning his activities on the nights

in question and testimony of other witnesses.

[5] Criminal Law @438(5.1)

110k438(5.1)

In determining admissibility of photograph of corpse

in homicide trial, court must determine whether

photograph is inflammatory and, if not, photograph

may be admitted if it has relevance and can assist

jury's understanding of the facts; if photograph is

inflammatory, court must decide whether photograph

is of such essential evidentiary value that its need

clearly outweighs likelihood of inflaming minds and

passions of jurors.

[6] Criminal Law @438(5.1)

110k438(5.1)

Photograph showing body of victim lying face down

behind his bar among a number of broken bottles was

not inflammatory so as to preclude its admissibility in

homicide trial; distance from body and angle from

which photograph was taken tended to diminish

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653 A.2d 626

(Cite as: 539 Pa. 499, 653 A.2d 626)

inflammatory nature of the subject matter and number

of broken bottles surrounding victim made it difficult,

if not impossible, to discern whether substance beside

victim was alcohol or blood.

[7] Criminal Law @438(6)

110k438(6)

Photograph showing body of victim lying face down

behind his bar among a number of broken bottles was

admissible in homicide trial based on its evidentiary

value, even if photograph was inflammatory;

photograph was introduced by the Commonwealth to

demonstrate the state of disarray of the bar and

severity of struggle between victim and his attacker.

[8] Criminal Law @823(16)

110k823(16)

In first-degree murder prosecution, any error which

might have resulted from trial court's instruction on

accomplice liability was cured by its subsequent

admonition to jury that it should not consider such a

theory because there was no evidence presented

during trial to support such a finding. 18 Pa.C.S.A. §

306.

[9] Criminal Law @=863(1)

110k863(1)

In first-degree murder prosecution, trial court's denial

of defendant's request that culpability portion of

accomplice liability statute be read to jury was well

within court's discretion because jury had been

specifically instructed that it was not to consider

accomplice liability in its deliberations. 18 Pa.C.S.A.

§ 306.

[10] Criminal Law @641.13(1)

110k641.13(1)

Counsel can never be considered ineffective for

failing to raise meritless claim. U.S.C.A.

Const.Amend. 6.

[11] Criminal Law @641.13(6)

110k641.13(6)

Objections.

Defense counsel was not ineffective for failing to file

request for bill of particulars so that defense counsel

could limit Commonwealth to the single theory that

defendant was the actor and not accomplice because

Commonwealth never asserted or attempted to prove

Page 2

that defendant's role in murder and robbery was

anything other than that of the actor, US.C.A.

Const.Amend. 6.

[12] Criminal Law @=874

110k874

Trial court did not err when it refused to poll jurors in

order to ascertain whether defendant was convicted as

an accomplice or actor since trial judge clearly and

adequately explained to jury that there was no

evidence offered to prove that defendant acted as

accomplice and that it should not inject such

considerations into its deliberations.

[13] Searches and Seizures 113.1

349k113.1

In determining validity of search warrant,

Pennsylvania Supreme Court follows totality of the

circumstances test articulated by United States

Supreme Court in //linois v. Gates.

[14] Searches and Seizures @ 113.1

349k113.1

Finding of probability of criminal activity 1s sufficient

to support probable cause requirement of search

warrant; prima facie showing of such activity is not

required.

[15] Searches and Seizures @> 114

349k114

Probable cause existed to support search warrant

executed on defendant's hotel room; detective

sergeant observed bloody footprint tread near

location of victim's body which pattern of tread was

recognized to be similar to the one on sneakers worn

by defendant when police officer had interviewed him

and defendant had checked into hotel room sought to

be searched by using fictitious name at time when

defendant had told police that he was at a different

location.

[16] Sentencing and Punishment = 1762

350Hk1762

(Formerly 203k357(5))

During capital sentencing phase of first-degree

murder prosecution, Commonwealth's reading of rape

victim's testimony that defendant raped victim at

knifepoint after stealing money was necessary to

support aggravating circumstance that defendant had

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653 A.2d 626

(Cite as: 539 Pa. 499, 653 A.2d 626)

significant history of felony convictions involving use

of violence to the person: rape conviction was the

only felony for which defendant was convicted that

clearly involved use of violence; in order to show

that threat of violence was used in commission of

burglary so as to establish a felony history, rape

victim's testimony was read into the record because

burglary was part of the same episode; and by having

assistant district attorney read from transcript.

Commonwealth presented facts of defendant's prior

crime in way that minimized inflammatory impact of

his prior crimes to jury. 42 Pa.C.S.A. § 9711(d)(9).

[17] Sentencing and Punishment @> 1788(5)

350HK1788(5)

(Formerly 110k1208.1(6))

In death penalty case, it 1s Supreme Court's statutory

duty to insure that jury's sentence 1s based upon facts

presented at sentencing-hearing. 42 PaCS.A. §

9711(h).

[18] Sentencing and Punishment © 1681

3S0Hk1681

(Formerly 203k357(7))

In first-degree murder prosecution, evidence dunng

the sentencing phase supported jury's finding of

aggravating circumstance that defendant commutted

killing while in perpetraton of a felony; defendant

killed his victum during commission of burglary and

robbery of victim's tavern. 42 Pa.C.S.A. § 9711(d)(6)

[19] Sentencing and Punishment C= 1684

350Hk1684

(Formerly 203k357(11))

In capital murder prosecution, evidence during the

sentencing phase supported jury's finding of

aggravating circumstance that offense was committed

by means of torture: forensic pathologist testified

that victim was alive during infliction of almost all of

the injuries that he received, which included multiple

stab wounds. and number and location of wounds on

victum's body were indicative of injuries that were

inflicted with intent of causing pain. 42 Pa.C.S.A. §

9711(d 8)

[20] Sentencing and Punishment @= 1705

350Hk1705

(Formerly 203k357(5))

In first-degree murder prosecution, evidence during

Page 3

the sentencing phase supported jury's finding of

aggravating circumstance that defendant had

significant history of felony convictions involving use

of violence to the person; in addition to rape

conviction, defendant had been convicted of burglary

in which he brandished and used knife to harm

victim. 42 Pa.C.S.A. § 9711(d)(9).

**628 *503 Albert V.F. Nelthropp, for R. Rompilla.

Robert Steinnberg, Douglas G. Reichley, for Com.

Robert A. Graci, for Atty. General's Office.

Before NIX, C.J.. and FLAHERTY, ZAPPALA,

PAPADAKOS, CAPPY, CASTILLE and

MONTEMURO, JJ.

*§04 OPINION

NIX, Chief Justice.

This is an automatic appeal [FN1] from the

imposition of a death sentence following a trial by

jury in the Court of Common Pleas of Lehigh County.

Appellant, Ronald Rompilla, was convicted of

murder of the first degree, [FN2] burglary, [FN3]

criminal trespass, [FN4] robbery, [FNS] two counts

of theft, [FN6] and two counts of receiving stolen

property. [FN7] Pursuant to 42 PaCS. §

9711(c\1\iv), the jury sentenced Appellant to death

on November 1, 1988, after it found three aggravating

circumstances which outweighed the one mitigating

circumstance presented by Appellant.

FN1. 42 PaCS. § 971 1(h)\(1).

FN2. 18 Pa.C.S. § 2502(a).

FN3. 18 Pa.C.S. § 3502(a).

FN4. 18 PaCS. § 350MaK 10).

FNS. 18 PaCS. § 3701(aX1 Ki).

FN6. 18 PaCS. § 3921(a).

FN7. 18 PaCS. § 3925(a).

{1}{2}{3] Although Appellant has not specifically

challenged the sufficiency of the evidence supporting

his conviction, we will nevertheless undertake such a

review in accordance with the standard set forth in

Commonwealth **629 v. Zettlemoyer, 500 Pa. 16,

26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert

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653 A.2d 626

(Cite as: 539 Pa. 499, *504, 653 A.2d 626, **629 )

denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d

1327 (1983). [FN8] In *S05 reviewing the

sufficiency of the evidence, we must view the

evidence and all reasonable inferences derived

therefrom in the light most favorable to the

Commonwealth as verdict winner, to determine

whether all the elements of the offense have been

established beyond a _ reasonable doubt.

Commonwealth v. Carpenter, 511 Pa. 429, 435, 515

A.2d 531, 533-34 (1986).

FN8. Appellant has apparently had a

contentious history with court-appointed

counsel during his trial and appeal.

Appellant's discontent with his attorneys

has caused him to file a number of pro se

motions and briefs in addition to those filed

by court-appointed counsel. Present

counsel has appended to the Brief for

Appellant what is represented to be

Appellant's own brief alleging other issues

not included in counsel's brief. This

appended brief authored by Appellant is

addressed to the trial court and is intended

to be a supplemental brief in support of

Appellant's post-trial motions.

This Court recently addressed the issue of

an appellant's right to file pro se

supplemental briefs while that appellant is

by counsel. In Commonwealth

v. Rogers, 537 Pa. 581, 645 A.2d 223

(1994), we held that although an appellant

has a clear right to terminate representation

prior to the filing of an appeal, there is no

concomitant right to file a separate pro se

brief once appellate counsel has filed briefs.

Id. at 583-84, 645 A.2d at 224. Thus, we

refused to allow the appellant in Rogers to

terminate appellate counsel and proceed pro

se on amended and supplemented briefs

once counsel had filed briefs. It was our

belief that the appellant would "confuse and

overburden the court by his own pro se

filing of briefs at the same time his counsel

is filing briefs on his behalf." /d (quoting

Commonwealth v. Ellis, 534 Pa 176,

183-84, 626 Add 1137, L141 (1993)

(emphasis omuitted)). A review of the issues

raised in Appellant's pro se brief reveals

that Appellant's claims are focused on the

sufficiency of the evidence and trial

counsels’ ineffectiveness. As noted above,

we are obligated to undertake an

independent review of the sufficiency of the

evidence supporting Appellant's conviction.

We also hasten to point out that Appellant is

free to raise the ineffectiveness of any of his

prior counsel in a subsequent proceeding

Accordingly, we will not specifically

Page 4

address any of the issues raised in

Appellant's pro se brief.

In the early morning hours of January 14, 1988, the

victim, James Scanlon, was murdered in his bar, the

Cozy Corner Cafe, located in Allentown,

Pennsylvania. At approximately 6:30 a.m. on that

same morning, the victim's son discovered the body

of his father lying behind the bar in a pool of blood.

The victim had been stabbed repeatedly and set on

fire. The victim's wallet had been stolen and

approximately $500 to $1,000 had been stolen from

the bar.

The Commonwealth's case consisted almost entirely

of circumstantial evidence as there were no

eyewitnesses to this killing Appellant was seen in

the Cozy Corner Cafe on January 14, 1988, from

approximately 1:00 a.m. to 2:00 a.m During that

time, he was observed going to the bathroom

approximately ten times. A subsequent police

investigation determined that the window in the men’s

bathroom was used as the point of entry into the bar

after it had closed.

When questioned by an investigating detective from

the Allentown Police Department, Appellant stated

that he had been in the Cozy Corner Cafe on the night

of the murder and *506 left between 2:00 a.m. and

2:30 a.m. because he had no money. He stated that

he had only $2.00 to buy breakfast at a local diner.

A cab driver testified that he picked up Appellant at

the diner and drove him to two different hotels where

Appellant was unable to rent a room. The driver then

took Appellant to the George Washington Motor

Lodge where he was able to rent a room. Appellant

paid the cab fare of $9.10.

[4] Appellant rented a room for two nights at the

George Washington Motor Lodge. In doing so, he

paid $121.00 in cash and flashed a large amount of

cash to the desk clerks. Appellant also used a false

name when he checked in.

The police secured a search warrant for Appellant's

motel room and seized several items, including

Appellant's sneakers. These sneakers matched a

footprint in blood that was discovered near the

victim's body. In addition, the blood found on the

sneakers matched the victim's blood type.

The Commonwealth also presented other

curcumstannal evidence that linked Appellant with the

robbery and murder of James Scanlon. First, Mr.

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653 A.2d 626

(Cite as: 539 Pa. 499, *506, 653 A.2d 626, **629)

Scanlon's wallet was found by a groundskeeper in the

bushes, six to eight feet outside the room that

Appellant **630 had rented at the George

Washington Motor Lodge. Second, Appellant's

fingerprint was found on one of the two knives that

was used to commut the murder. Finally, there were

numerous inconsistencies between what Appellant

had told police concerning his activities on January

14 and 15, 1988, and the testimony of other

witnesses.

When viewed in the light most favorable to the

Commonwealth as verdict winner, the evidence

clearly supports Appellant's conviction for first

degree murder. Accordingly, we will now proceed to

address Appellant's seven allegations of error relating

to the tal underlying his convictron and sentence.

— Appellant first contends that the tnal court erred in

allowing the Commonwealth to introduce a

photograph of the victim in this case. The

photograph in question, Commonwealth's Exhibit

Number 5. shows the body of the victim lying face

down behind the bar among a number of broken

bottles. Appellant argues that the inflammatory nature

of this photograph*S07 outweighs any evidentiary

value that 1 may have had) The Commonwealth

responds that the photograph 1s not inflammatory, and

even if this Court were to find otherwise, its

introducnhon was necessary to capture the disarray of

the bar and to show the severity of the struggle

between the victim and Appellant.

[5] “We have consistently held that the question of

admussibility of photographs in homucide cases is a

matter within the discretion of the tnal judge, and

only an abuse of that discretion will constitute

reversible error." Commonwealth v. Duffey. 519 Pa.

348. 359, 548 A.2d 1178, 1183 (1988) (citing

Commonwealth v Petrakovich. 459 Pa. 511, 329

A.2d 844 (1974). Commonwealth v Woods. 454 Pa.

250, 311 A.2d S82 (1973)). In determining the

admussibility of photographs of a corpse in a

hormecide tnal. this Court utilizes a two-part analysis.

Commonwealth v. Chester, 526 Pa. 578, 591, 587

A.2d 1367, 1373, cert denied, 502 U.S. 849, 112

S.Ct. 1§2, 116 L.Ed.2d 117 (1991)

First a court must determine whether the

photograph is inflammatory. If not, it may be

admutted if has relevance and can assist the

jury's understanding of the facts If the

photograph 1s inflammatory, the trial court must

decide whether or not the photographs are of such

essential evidentiary value that their need clearly

Page 5

outweighs the likelihood of inflamung the minds

and passions of the jurors.

Id. $26 Pa. at 591-92, $87 A.2d at 1373-74 (citation

omutted).

[6] Based on our review of the photograph, we find

that, although unpleasant, it does not rise to the level

of what we consider to be inflammatory. The

distance from the body and the angle from which the

photograph was taken tend to diminish the

inflammatory nature of the subject matter.

Moreover, the number of broken bottles surrounding

the victim makes it difficult, if not impossible, to

discern whether the substance beside the victim is

alcohol or blood.

[7] In addition, we agree with the Commonwealth

and the en banc trial court that even if we were to find

the photograph inflammatory, it would still be

admussible based on its evidentiary *508 value. The

photograph was introduced by the Commonwealth to

demonstrate the state of disarray of the bar and the

severity of the struggle between the victim and his

attacker. Accordingly, we conclude that the trial

judge did not abuse his discretion in admitting this

photograph into evidence.

Appellant next argues that the trial court erred in

answering the jury's question regarding accomplice

hability. Shortly after deliberations began, the jury

presented a note to the court in which it asked the

following: “If Defendant was an accomplice to the

Charge of CnntinattHomucide, can he be charged with

Murder in the First Degree?" (N.T. 10/31/88, 166).

In response, the trial judge read 18 Pa.C.S. § 306(a),

which defines the general rule for liability for conduct

of another, [FN9] and briefly explained the concept

of complicity to the jury. (N.T. 10/31/88, 167-68).

The trial judge then cautioned the jury:

FN9. 18 PaCS. § 306(a) provides that "[a]

person is guilty of an offense if i is

committed by his own conduct or by the

a conduct of another »erson for which he is

legally accountable, or both.”

I can only say this to you, that you should

determine this case based on the Charge of **631

the Court as it had given [sic] you originally.

There was no evidence in this case with regard to

the question as posed but a sunple clear answer to

the question is yes, you could be charged with,

and you could be convicted of Murder in the First

Degree if, indeed, you're an accomplice, but it

requires other proof or findings on your part that

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7

653 A.2d 626

(Cite as: 539 Pa. 499, *508, 653 A.2d 626, **631)

were not apart [sic] of this case nor were they

made a part of this case....

(N.T. 10/31/88, 168-69). Appellant argues that by

being instructed on an accomplice theory and then

being told to disregard it, the jury might have been

confused and convicted Appellant as an accomplice.

[8] Appellant's claim is analogous to an issue that

this Court addressed in Commonwealth v. Edwards,

521 Pa. 134, 555 A.2d 818 (1989). In Edwards, the

jury asked the trial judge whether it had the option to

condition a verdict of life imprisonment on the

defendant's ineligibility for parole. In his initial

response to the jury, the trial judge deviated from

*509 the standard that we had previously prescribed

when the jury asked such a question. We concluded

that despite this error, the curative instruction and

proper charge that were subsequently given were

sufficient to leave the jury's death sentence

undisturbed. /d at 158-59, 555 A.2d at 830-31.

Likewise in the instant case, we are satisfied that any

error which might have resulted from the tnal judge's

instruction on accomplice liability was cured by the

subsequent admonition to the jury that it should not

consider such a theory because there was no evidence

presented during trial to support such a finding.

[9] Additionally, we reyect Appellant's argument that

the trial court erred in failing to grant defense

counsel's request that the culpability portion of

section 306 be read to the jury. As noted above, the

jury was specifically instructed that it was not to

consider accomplice liability in its deliberations.

Therefore, the denial of Appellant's request was weil

within the trial judge's discretion. See

Commonwealth v. Perkins, 473 Pa. 116, 132, 373

A.2d 1076, 1084 (1977) ("when the court provides

supplemental instructions at the jury's request, it may

confine those instructions to the particular questions

asked by the jury, even though requested by the

defendant to give yet additional instructions").

[10}{11] Appellant next contends that trial counsel

was ineffective for failing to file a request for a bill of

particulars. By requesting a bill of particulars,

Appellant argues that defense counsel could have

limited the Commonwealth to the single theory that

Appellant was the actor and not an accomplice. “A

bill of particulars is intended to give notice to the

accused of the offenses charged in the indictment so

that he may prepare a defense, avoid a surprise, or

intelligently raise pleas of double jeopardy and the

statute of limitations." Commonwealth v. Chambers.

528 Pa. 558, 580, 599 A.2d 630, 641 (1991), cert.

Page 6

denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d

214 (1992). In the instant case, the Commonwealth

never asserted nor attempted to prove that Appellant's

role in the murder and robbery was anything other

than that of the actor. ~ *510 Thus, Appellant's

argument is plainly without merit. Because counsel

can never be considered ineffective for failing to raise

a meritless claim, Appellant's claim of ineffectiveness

must be rejected. See Commonwealth v. Pettus, 492

Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

[12] In a related argument, Appellant contends that

the trial court erred in refusing his request to poll the

jury in order to ascertain whether he was convicted as

an accomplice or actor. The record indicates that the

jury was polled as to their individual verdicts, but the

trial judge refused to question each juror as to

whether they found Appellant guilty as an actor or

accomplice. (N.T. 11/1/88, 5-7). Appellant again

relies on the erroneous premise that the jury failed to

heed the trial court's warning that it was not to

“tonsider an accomplice theory of liability. Our

review of the record satisfies us that the trial judge

clearly and adequately explained to the jury that there

was no evidence offered to prove that Appellant acted

as an accomplice and that it should not inject such

considerations into its deliberations.

The purpose of the poll is to give any juror, who

may possibly have been under **632 pressure

from other members of the jury to acquiesce in

the verdict, an opportunity to speak out and

declare to the court that the verdict as announced

by the foreman was not voluntarily joined in by

Commonwealth ex rel. Ryan v Banmiller, 400 Pa.

326, 328, 162 A.2d 354, 355, cert. denied, 364 US.

852, 81 S.Ct. 99, 5 L.Ed.2d 76 (1960). In the instant

case, Appellant has not alleged lack of unanimity of

the verdict or that it was the product of undue

pressure placed on one or more of the jurors.

Accordingly, we conclude that the trial court did not

err when it refused to poll the jurors on the theory

upon which they convicted Appellant.

In his next allegation of error, Appellant asserts that

the search warrant used to obtain evidence to link him

to the crime was not supported by probable cause.

The en banc *S11 Court of Common Pleas

considered Appellant's challenge to the search

warrant and found that

[t}he affidavit in the present case, sworn to by a

detective sergeant of the Allentown Police

Department, contained sufficient averments

supporting that there was a fair probability that

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653 A.2d 626

(Cite as: 539 Pa. 499, *511, 653 A.2d 626, **632)

evidence of a crime would be found in the

defendant's room. The averments in the affidavit

contained a general description and location of

the crime and victim, as well as the fruits from

what was properly believed to be a burglary and/

or robbery, as well as the criminal homicide.

The affids vit placed the defendant not only at the

scene of the crime earlier that evening but also

sets forth the fact that entry into the premises was

gained by opening a window in the bathroom of

the premises from the inside and that the

defendant was seen going into the bathroom on a

number of occasions that evening. Moreover,

the detective sergeant observed a bloody footprint

tread near the location of the victim's body, whieli

pattern of tread was recognized to be simular to

the one on the sneakers worn by the defendant

when the police officer had interviewed him a

short time pnor to the execution of the affidavit.

Lastly, the affidavit revealed that the defendant

had checked into the room sought to be searched

by using a fictitious name at a time when the

defendant had told the police officer that he was

at a different location. Lastly [sic], the affidavit

set forth that, approximately two months’ [sic]

before the criminal homicide, the defendant had

been hiding 1n the victim's bar after hours.

Commonwealth» Rompilia, No. 682/1988, slip op.

at 8-9 (CP. Lehigh County March 12, 1993) (en

banc)

[13}{14}[15] Im determuning the validity of a search

warrant, this Court has adopted the totality of the

circumstances test articulated by the United States

Supreme Court in /Ilimois y Gates, 462 U.S. 213, 103

S.Ct. 2317, 76 L.Ed.26 527 (1983)

The task of the isSuing magistrate is simply to

make a practical, common-sense decision

whether, given ail t.e circumstances set forth in

the affidavit before him. including the “veracity”

and “basis of knowledge” of persons supplying

*S12 hearsay information, there is a fair

probability that contraband or evidence of a crime

will be found in a particular place. And the duty

of a reviewing court is simply to ensure that the

magistrate had a “substantial basis for

conclud| ing} that probable cause existed.”

Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d

921, 925 (1985) (quoting /Ilinois v Gates, 462 US.

at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548

(1983)) (citation omutted); see also Rule 2003(a) of

the Pennsylvania Rules of Crumunal Procedure ("[njo

search warrant shal] issue but upon probable cause

supported by one or more affidavits sworn to before

Page 7

the issuing authority. The issuing authority, in

determining whether probable cause has been

established, may not consider any evidence outside

the affidavits"). A finding of probability of criminal

activity is sufficient to support the probable cause

requirement of a search warrant; a prima facie

showing of such activity is not required.

Commonwealth v. Baker, 532 Pa. 121, 126-27, 615

A.2d 23, 25 (1992). After reviewing the affidavit

underlying the warrant and giving due deference to

the conclusions of the issuing magistrate, we find that

probable cause existed to support the search warrant

executed on Appellant's hotel room. Commonwealth

**633 v. Council, 491 Pa. 434, 444, 421 A.2d 623,

628 (1980). Accordingly, Appellant's argument must

be reyected as meritless. [FN10]

FNIO. When police entered Appellant's

hotel room armed with the aforementioned

search warrant, they were accompanied by a

parole officer who held a parole detainer.

This detainer was based on the fact that

Appellant was observed drinking alcohol in

violation of one of his conditions of parole.

Appellant maintains that the presence of the

parole officer was a pretext because the

search warrant executed on his hotel room

was not based on probable cause. Based on

our finding that the search warrant was

supported by probable cause, we need not

address this issue. We note, however, that

parole officers may arrest a parolee without

a warrant for violating any of the terms of

his parole. See 61 P.S. § 331.27

Appellant argues lastly that the trial court erred in

allowing a transcript of a rape victim's testimony to

be read to the jury during the sentencing phase.

Appellant claims that the Commonwealth was

appealing to the passions of the jury and could have

utilized a different method to describe what had

happened. *513 The Commonwealth responds that it

was necessary to prove that Appellant had a history of

convictions for felonies involving violence and that

reading the transcript of the victim's testimony was

the most efficient way to present the facts of one of

the prior convictions.

{16} Our review of the record affirms the

Commonwealth's contention that the reading of the

victim's testimony was necessary to support the

aggravating circumstance found under 42 Pa.C.S. §

9711(d9). [FN11} Appellant had previously been

convicted of theft, burglary, and rape. Prior to the

sentencing hearing, defense counsel attempted to

have the burglary conviction excluded from the jury's

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gee ve

653 A.2d 626

(Cite as: 539 Pa. 499, *513, 653 A.2d 626, **633)

consideration based upon this Court's decision in

Commonwealth v. Christy, 511 Pa. 490, 515 A.2d

832 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct.

2202, 95 L.Ed.2d 857 (1987). In Christy, this Court

held that the trial court had erred in submitting a

burglary conviction to the jury for purposes of 42

Pa.C.S. § 9711(d)(9) because the Commonwealth

failed to present evidence that the conviction

involved the threat or use of violence. /d. 511 Pa. at

507-08, 515 A.2d at 840-41. We concluded that

"[ijn order for a felony to be includable under 42

PaCS. § 9711(d)(9), the Commonwealth must

present evidence that the defendant actually

threatened another with violence or actually used

violence on another." /d. at 508, 515 A.2d at 841.

FNII. 42 PaCS. § 9711(d\9) provides

that an aggravating circumstance can be

found by the jury where “[t}he defendant

has a significant history of felony

convictions involving the use or threat of

violence to the person.”

In Commonwealth v. Goins, 508 Pa. 270, 495 A.2d

527 (1985), this Court held that a single felony

conviction for a crime of violence does not suffice to

establish a significant history under 42 Pa.C.S. §

9711(d)(9). In the instant case, a rape conviction

was the only felony for which Appellant was

convicted that clearly involved the use of violence.

Thus, the Commonwealth had to show that a threat of

violence or actual violence was used in the

commission of the burglary in order to establish a

felony history under 42 Pa.C.S. § 9711(d)(9). In

order to achieve that end, the Commonwealth had the

testimony *514 of the rape victim read into the record

because the burglary involving the use of violence

was part of the same episode. [FN12] By having an

assistant district attorney read from a transcript, we

believe that the Commonwealth presented the facts of

Appellant's prior crime in a way that minimized the

inflammatory impact of his prior crimes to the jury.

Accordingly, we conclude that the trial court did not

err in allowing the Commonwealth to present

evidence of Appellant's prior crime through the

reading of the victim's testimony.

FNi2. Appellant had broken into the

victim's apartment which was located above

a bar. According to the victim's testimony,

Appellant initially entered the apartment in

the belief that she kept a large sum of

money there. (N.T. 11/1/88, 75-76). After

discovering that the money was located in

the bar's cash register, Appellant and the

Page 8

victim proceeded downstairs where he stole

the money from the register. (N.T. 11/1/88,

78- 80). Appellant then brought the victim

back up to the apartment and raped her at

knifepoint. (N.T. 11/1/88, 82-90).

{17}{18]}{19}(20] Finally, it is our statutory duty to

insure that the jury's sentence is based upon **634

the facts presented at the sentencing hearing. See 42

Pa.C.S. § 9711(h). Our review of the record in this

case satisfies us that the sentence imposed by the jury

was not the product of passion, prejudice, or any

other arbitrary factor. The record also supports the

jury's finding of the aggravating circumstances set

forth in 42 Pa.C.S. § 9711(d)(6), (8) and (9). [FN13]

Appellant killed his victim during the commission of

the burglary and robbery of the victim's tavern.

Moreover, the manner in which Appellant carried out

this brutal murder is sufficient to support a finding

that the killing was committed by means of torture.

"In order to establish the aggravating circumstance of

torture, the Commonwealth must prove that the

defendant had a specific intent to inflict ‘a

considerable amount of pain and suffering on a victim

which is unnecessarily heinous, atrocious, or cruel

manifesting exceptional depravity.’ " Commomwealth

v. Daniels, 537 Pa. 464, 473, 644 A.2d 1175, 1180

(1994) (quoting Commonwealth *515 v. Thomas, 522

Pa. 256, 277, 561 A.2d 699, 709 (1989);

Commonwealth v. Pursell, 508 Pa. 212, 239, 495

A.2d 183, 196 (1985)). In the instant case, Dr.

Isidore Mihalakis, a forensic pathologist, testified at

during the infliction of almost all of the injuries that

he received. (N.T. 11/1/88, 101). -These injuries

included abrasions, lacerations, blunt force injuries, a

fractured nose, and multiple stab wounds. (N.T. 11/

1/88, 102). Dr. Mihalakis further testified that the

number and location of the virious wounds on the

victim's body were indicative of injuries that were

inflicted with the intent of causing pain. (N.Y. 11/1/

88, 110). Thus, there is ample evidence on the

record to support the jury's finding of torture in this

case. Lastly, with respect to Appellant's history of

felony convictions involving the use of violence, the

record fully supports the jury's finding. In addition

to a rape conviction, Appellant was convicted of

burglary in which he brandished and used a knife to

FN13. The aggravating circumstances found

by the jury were that “[t}]he defendant

committed a killing while in the

perpetration of a felony,” that “[t}he offense

was committed by means of torture,” and

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653 A.2d 626

(Cite as: 539 Pa. 499, *515, 653 A.2d 626, **634)

that “(t]he defendant has a significant

history of felony convictions involving the

use or threat of violence to the person.” 42

PaCS. § 9711(dK6), (8) and (9),

respectively

The information compiled by the Admunistrative

Office of Pennsylvamia Courts indicates that the

sentenc$mposed in this case 1s not disproportionate

to the sentence imposed in simular cases.

Accordingly, the judgment of sentence 1s affirmed.

Page 9

(FN14]

FN1I4. The prothonotary of the Supreme

Court is directed to transmit the full and

complete record in this case to the Governor

pursuant to 42 Pa.C.S. § 9711(1)

MONTEMURO, J., is sitting by designation.

653 A.?d 626, 539 Pa. 499

END OF DOCUMENT

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ee ee

721 A.2d 786

(Cite as: 554 Pa. 378, 721 A.2d 786)

>

Briefs and Other Related Documents

Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,

v.

Ronald ROMPILLA, Appellant.

Submitted Aug. 5, 1997.

Decided Dec. 10, 1998.

Reargument Denied Jan. 19, 1999.

After defendant's murder conviction and death

sentence were affirmed, 539 Pa. 499, 653 A.2d 626,

defendant petitioned for postconviction relief. The

Court of Common Pleas, Lehigh County, No. 682 of

1988, Thomas A. Wallitsch, J., denied relief.

Defendant appealed. The Supreme Court, No. 152

Capital Appeal Docket, Nigro, J., held that: (1)

counsel was effective with respect to investigation

and presentation of mitigation evidence during

penalty phase; (2) prosecutor's penalty phase

summation did not contain improper argument that

violated defendant's right to due process and fair

capital sentencing proceeding; (3) trial court's

apparent discussion with counsel about proceedings

outside of defendant's presence did not violate

defendant's right to be present at all stages of trial;

(4) Commonwealth could introduce facts surrounding

prior burglary conviction to establish aggravating

factor of significant history of felony convictions

involving violence or threat of violence the person;

and (5) defendant was not entitled to penalty phase

instruction that life meant life without parole.

Affirmed.

Cappy and Newman, JJ., concurred in result.

Flaherty, C.J., dissented and filed opinion.

West Headnotes

[1] Criminal Law @= 15194)

110k1519(4)

(Formerly 110k998(8))

To establish claim of ineffective assistance of counsel

under Post Conviction Relief Act (PCRA), defendant

must show that (1) underlying claim is of arguable

merit; (2) counsel had no reasonable basis for act or

omission in question; and (3) but for counsel's act or

omission, outcome of proceedings would have been

Page 1

different. U.S.C.A. Const.Amend. 6; 42 Pa.C.S.A. §

§ 9541-9546.

[2] Criminal Law @641.13(7)

110k641.13(7)

Trial counsel was effective with respect to

investigation of defendant's mental health for

purposes of presenting mitigation evidence during

penalty phase of capital murder prosecution, where

counsel employed three experts to evaluate defendant

but, based upon their testing, experts found nothing

helpful to defendant's case and diagnosed him as

sociopath. U.S.C.A. Const.Amend. 6; 42 Pa.C.S.A. §

§ 9541-9546.

[3] Criminal Law @641.13(7)

110k641.13(7)

Trial counsel was effective with respect to

investigation of defendant's background for purposes

of presenting mitigation evidence during penalty

phase of capital murder prosecution, where counsel —

spoke to family before trial, but no family members

revealed abuse or other circumstances that could be

used as mitigation evidence. U.S.C.A. Const.Amend.

6; 42 Pa.C.S.A. §§ 9541-9546.

[4] Criminal Law @= 1171.1(2.1)

110k1171.1(2.1)

Prosecutor's comments do not constitute reversible

error unless their unavoidable effect would be to

prejudice jury and form in their minds fixed bias and

hostility toward defendant such that they could not

weigh evidence objectively and render true penalty

, ae

[5] Criminal Law @=713

110k713

At penalty phase, prosecutor has more latitude in

presenting argument, as presumption of innocence is

no longer applicable.

[6] Sentencing and Punishment > 1780(2)

350Hk1780(2)

(Formerly 110k723(1))

should impose death penalty when prosecutor stated,

during penalty phase, that it was “not easy for me to

argue for the death penalty.”

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721 A.2d 786

(Cite as: 554 Pa. 378, 721 A.2d 786)

[7] Sentencing and Punishment G= 1780(2)

3SOHk1780(2)

(Formerly 110k723(1))

Prosecutor argued with permissible oratorical flair

that jury should impose death sentence, when

prosecutor stated, during penalty phase, that "if you

don't do it in this case, when are you going to do it?

This is the most appropriate case for the death penalty

and that's all I'm asking for."

[8] Sentencing and Punishment @= 1780/2)

3S0HkK1780(2)

(Formerly 110k723(1))

Prosecutor could ask jury, during penalty phase of

capital murder prosecution, to show defendant the

same mercy that defendant showed victim.

[9] Sentencing and Punishment @= 1780(2)

3S50Hk1780(2)

(Formerly 110k723(1))

Prosecutor's argument, during penalty phase of capital

murder prosecution. that defendant killed victim to

eliminate any witnesses to burglary did not have

unavoidable effect of prejudicing jurors and forming

in their minds fixed bias and hostility towards

defendant so as to prevent them from weighing

evidence and returning true verdict.

[10] Sentencing and Pumshment G= 1780(2)

350Hk1780(2)

(Formerly 110k723(1))

Prosecutor did not improperly comment during

penalty phase on murder victim's famuly's inability to

testify as to their feelings about victim's death as

compared to defendant's family's ability to share their

feelings with jury: comments served to respond to

defendant's farmly's testrmony, and jury was able to

infer victim's famuly’s feelings

{11} Crumnal Law @= 1550

110k1550

(Formerly 110k998(6.1))

While Supreme Court did not condone prosecutor's

penalty phase comments that murder victim's son

mussed his father. unavoidable effect of comments did

not arouse jury's emotions or prejudice jury so they

could not fairly weigh evidence, and thus did not

warrant postconviction rehef

Page 2

[12] Sentencing and Punishment @> 1780(3)

3S0Hk1780(3)

(Formerly 203k311)

Trial court's instruction on death penalty aggravating

circumstance that offense was committed by means of

torture was not unconstitutionally vague. 42

Pa.C.S.A. § 9711(d)(8).

[13] Sentencing and Punishment C= 1617

350Hk1617

(Formerly 110k1206.1(2))

In evaluating vagueness challenge, Supreme Court

considers whether death penalty statute adequately

channels sentencing jury's discretion so that death

penalty is not imposed on arbitrary or capricious

grounds.

[14] Sentencing and Punishment @=> 1625

350Hk1625

(Formerly 110k1206.1(2))

Statute setting forth as death penalty aggravating

factor that defendant has significant history of felony

convictions involving use or threat of violence to the

person is not unconstitutionally vague. 42 Pa.C.S.A.

§ 9711(d)(9).

[15] Criminal Law @636(1)

110k636(1)

Defendant has constitutional right to be present in

court at every stage of criminal tral. U.S.C.A.

Const.Amend. 6; Const. Art. 1, § 9.

[16] Criminal Law @636(3)

110k636(3)

[16] Criminal Law @ 662.70

110k662.70

Tnal court's apparent discussion with counsel about

proceedings outside of defendant's presence did not

implicate defendant's confrontation rights, and

defendant's right to be present at all stages of trial was

not violated. U.S.C.A. Const.Amend. 6; Const. Art.

1, § 9; Rules Crim Proc., Rule 1117(a), 42 Pa.C.S.A.

[17] Criminal Law @= 1440(1)

110k1440(1)

(Formerly 110k998(13))

Postconviction review of claim already litigated on

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721 A.2d 786

(Cite as: 554 Pa. 378, 721 A.2d 786)

appeal cannot be obtained by alleging ineffective

assistance of prior counsel and presenting new

theories of relief. U.S.C.A. Const.Amend. 6; 42

Pa.C.S.A. § 9543(a)(3).

[18] Sentencing and Punishment @= 1762

350Hk1762

(Formerly 203k358(1))

Commonwealth may place underlying facts of prior

convictions before jury during penalty phase of

capital murder prosecution so that jury is able to

assess weight to be given to aggravating factor that

defendant has significant history of felony

convictions involving use or threat of violence to the

person. 42 Pa.C.S.A. § 9711(d)(9).

[19] Sentencing and Punishment €= 1780(3)

350Hk1780(3)

(Formerly 110k796)

Jury must be told during capital sentencing

proceeding that life means life without parole only

when defendant's future dangerousness is at issue.

[20] Sentencing and Punishment @= 1780(3)

350Hk1780(3)

(Formerly 203k311)

Defendant was not entitled to instruction, during

penalty phase of capital murder prosecution, that life

meant life without parole, based on Commonwealth's

argument for aggravating circumstance that defendant

had significant history of felony convictions involving

use or threat of violence to the person; aggravating

circumstance only addressed defendant's past

conduct, not his future dangerousnes:. 42 Pa.C.S.A.

§ 9711(d)(9).

{21} Criminal Law @= 1042

110k1042

Defendant waived claim that trial court erred in

failing to excuse juror for cause and that trial counsel

failed to challenge him for cause, where claim was

not raised in defendant's postconviction petition or in

proceedings before postconviction court. 42

Pa.C.S.A. §§ 9541-9546.

[22] Criminal Law @= 1453

110k1453

(Formerly 110k998(6.1))

No prejudicial cumulative error existed which would

Page 3

entitle defendant to new trial and sentencing

proceeding on petition for postconviction relief,

where defendant's individual claims of error failed for

lack of merit.

**788 *382 Billy H. Nolas, Philadelphia, for R.

Rompilla, appellant.

*383 Michael P. McIntyre, Allentown, Robert A.

Graci, Harrisburg, for the Com., appellee.

**789 Before FLAHERTY, C.J.. and ZAPPALA,

CAPPY, CASTILLE, NIGRO. NEWMAN and

SAYLOR, JJ.

~ OPINION

NIGRO, Justice.

In this capital case, Appellant Ronald Rompilla

appeals from the Order of the Lehigh County Court of

Common Pleas, which denied his petition for relief

under the Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546. For the reasons set forth below, we

affirm.

On November 1, 1988, Appellant was convicted of

murdering James Scanlon on January 14, 1988 in

Scanlon's bar, the Cozy Corner Cafe, in Allentown,

Pennsylvania. Scanlon's son discovered his father’s

body lying behind the bar in a pool of blood.

Scanlon had been stabbed repeatedly and set on fire.

His wallet had been stolen and about $500 to $1000

had been stolen from the bar. [FN1] On November

3, 1988, after a penalty hearing, the jury found three

and sentenced Appellant to death. [FN2] This Court

affirmed the judgment of sentence on direct appeal.

Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d

626 (1995).

FNI. Appellant was convicted of murder in

the first degree, 18 PaCS. § 2502(a);

burglary, id § 3502(a), criminal trespass,

id =§ 3503(aX1Mii); robbery, id = §

3701(aX 1X i); two counts of theft, id §

3921(a), and two counts of recerving stolen

property, id § 3925S(a).

killing in the perpetration of a felony, 42

PaC.S. § 9711(d\6), that the offense was

committed by means of torture, id

9711(d8), and that Appellant has

significant history of felony con

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721 A.2d 786

(Cite as: 554 Pa. 378, *383, 721 A.2d 786, **789)

involving the use or threat of violence, id §

9711(d9). The jury found as a mitigating

circumstance other evidence of mitigation

under 42 Pa.C.S. § 971 (eM 8).

Following a stay of execution, on December 5, 1995,

Appellant filed a petition for relief pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. On March 28 and 29, 1996, the PCRA

“court held hearings on the petition. By Order dated

August 21, 1996, the PCRA court denied *384

Appellant's petition for relief. Appellant then

appealed to this Court. He raises twelve claims.

Appellant first argues that his trial counsel was

ineffective in the penalty phase for failing to

investigate, develop and present evidence of

mitigation related to his childhood upbringing,

alcoholism, mental retardation, cognitive impairment

and organic brain defects, which may have caused the

jury to impose a life sentence. Appellant specifically

maintains that counsel did not obtain records that

would have aided the mental health experts who

evaluated him, including school records reflecting a

low IQ, a hospital record reflecting a fever at age two,

and Department of Corrections records reflecting in

part low achievement test scores and alcohol abuse.

Appellant also argues that counsel failed to learn

about Appellant's abusive childhood from his family.

[1] To establish a claim of ineffective assistance of

counsel under the PCRA,a defendant must show that

(1) the underlying claim is of arguable merit; (2)

counsel had no reasonable basis for the act or

omussion in question; and (3) but for counsel's act or _

omission, the outcome of the proceedings would have

been different. Commonwealth v. Henry, 550 Pa.

346, 706 A.2d 313, 323 (Pa.1997). [FN3] At the

PCRA hearings, Appellant questioned former trial

and appellate counsel about their representation and

three of his siblings testified about his childhood.

Appellant subsequently submitted depositions of a

psychologist and neuropsychologist who evaluated

him in 1995 and 1996 respectively. The parties also

submitted depositions of the mental health experts

who evaluated-Appellant in 1988 and the deposition

of a psychologist who reviewed Appellant's 1995 and

1996 evaluations.

FN3. While the Court is currently

considering the stringency of the prejudice

requirement applicable to ineffective

assistance claims under the PCRA in

Commonwealth v Kimball, No. 38 MD

Appeal Dkt.1997, as shown below. this

Page 4

requirement 1s not implicated in this case.

After the hearings, the PCRA court concluded that

Appellant's claim has arguable merit because

Appellant was entitled to have relevant information of

mental infirmity presented to the jury. However, the

court found that counsel had a *385 reasonable basis

for **790 proceeding as they did. It explained that

trial counsel employed two recognized experts in the

field of psychiatry and psychology who administered

tests, evaluated Appellant, and reported that there was

nothing that could be used as mitigation evidence.

Rather, the experts told counsel that Appellant was a

sociopath. Counsel also obtained an evaluation by

another psychiatrist who after evaluating Appellant,

found nothing that would be beneficial in the penalty

phase. Although counsel did not obtain the records

identified above, the PCRA court found them not

entirely helpful to Appellant and further found that

counsel gave the experts whatever information they

requested.

With respect to Appellant's siblings’ testimony about

his childhood, the PCRA court accepted trial

counsel's testimony that when they questioned

Appellant and his family before trial, they did not

reveal the information that they now claim should

have been told to the jury. The court rejected the

siblings’ testimony to the contrary. The court also

stated that Appellant made contradictory statements

to counsel during his representation and that counsel

was reasonable in believing that their only avenue

was to ask the jury to have mercy on him.

[2] We agree withthe PCRA court that trial counsel

was effective with respect to their investigation and

presentation of mitigation evidence. In addition to

concluding that counsel acted reasonably, we further

find that Appellant's claim lacks arguable merit. As

recognized by the PCRA court, trial counsel

employed three experts to evaluate Appellant. N.T.,

3/28/96 at 68-69, 120-21. Based upon their testing,

the experts found nothing helpful to Appellant's case

and diagnosed him as a sociopath. /d. at 122-23.

The fact that Appellant now has found two experts

who conclude that he has brain damage does not

negate the fact that trial counsel investigated

Appellant's cognitive abilities with other experts. In

addition, we agree with the PCRA court that under

the facts of this case, counsel reasonably relied upon

their discussions with Appellant and upon their

experts to determine the records needed to evaluate

his mental health and other potential *386 mitigating

circumstances. See N.T., 3/29/96 at 27-28, 33,

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Dut AE RE

721 A.2d 786

(Cite as: 554 Pa. 378, *386, 721 A.2d 786, **790)

38-39. Thus, Appellant's claim that trial counsel

failed to investigate his mental health is without

arguable merit.

{7} With respect to the mitigation evidence brought

forth by Appellant's siblings, the PCRA court

accepted as credible trial counsels’ testimony that

when they spoke to the family before trial, none of the

family members revealed abuse or other

circumstances that could be used as mitigation

evidence. See N.T., 3/28/96 at 46-51, 109, 118-19,

133, 143; N.T., 3/29/96 at 111. Thus, Appellant's

claim that trial counsel failed to investigate his family

background also lacks arguable merit.

Related to this claim, Appellant next argues that

because trial counsel failed to investigate his

background, he received inadequate evaluations by

mental health professionals in violation of his

constitutional rights. Having found above that trial

counsel did not fail to investigate, this claim similarly

has no merit.

[4}[S] Appellant next argues that the prosecutor's

penalty phase summation contained improper

argument that violated his right to due process and a

fair capital sentencing proceeding. We disagree. A

prosecutor's comments do not constitute reversible

error unless their unavoidable effect would be to

prejudice the jury and form in their minds a fixed bias

and hostility toward the defendant such that they

could not weigh the evidence objectively and render a

true penalty determination. Commonwealth v.

Johnson, 542 Pa. 384, 404, 668 A.2d 97, 107 (1995).

At the penalty phase, the prosecutor has more latitude

in presenting argument since the presumption of

innocence is no longer applicable. Commonwealth v.

Washington, 549 Pa. 12, 700 A.2d 400, 414

(Pa.1997).

In his closing argument, the prosecutor said "[iJt's

not easy for me to argue for the death penalty...”

N.T., 11/2/88 at 45. The prosecutor also ended his

argument by stating “if you don't do it in this case,

when are you going to jo it? This is the most

appropriate case for the death penalty and that's all

I'm asking for....". N.T., 11/2/88 at 53. Appellant

maintains *387 that in making these **791

statements, the prosecutor personally vouched for the

propriety of imposing the death penalty.

[6}{7] Appellant muisconstrues the first statement.

The prosecutor did not inject a personal opinion that

the jury should impose the death penalty but rather

Page 5

stated that it is a difficult penalty to ask for. With

respect to his second statement, the prosecutor argued

with permissible oratorical flair that the jury should

impose a death sentence. See Commonwealth v.

Jones, 546 Pa. 161, 206, 683 A.2d 1181, 1203 (1996)

(statement that “this is just the kind of case that the

legislature had in mind [for the imposition of the

death penalty}" found proper).

[8] In addition, Appellant challenges the following

statements by the prosecutor:

[Defense counsel] gave you a very inspired, a

very emotional speech and that is her job, there's

nothing wrong with that. And what the main

touchstone of that speech was mercy ... [B]ut ask

yourselves this, ladies and gentlemen of Jury.

Did Ronald Rompilla show any mercy to Jimmy

Scanlon, any mercy whatsoever? I submit to

you, he did not. He did not show one bit of

mercy on January 14, 1988.

Did he show Jimmy Scanlon any mercy, any

mercy whatsoever? I submit to you, he didn't.

... I'm only asking you to show the same mercy to

him that he showed to Jimmy Scanlon.

N.T., 11/2/88 at 47, 49, 50. This Court, however,

has held that it is permissible during the penalty phase

for a prosecutor to ask the jury to show the defendant

the same mercy he showed the victim. See

Commonwealth v. Washington, 549 Pa. 12, 700 A.2d

400, 415 (Pa.1997) (rejecting a similar challenge).

Thus, no relief is warranted on this claim.

[9] Appellant also argues that the prosecutor

improperly stated that he killed the victim in order to

eliminate any witnesses to his burglary of the bar.

See N.T., 11/2/88 at 51-52. Appellant asserts that

there is no evidence_supporting this argument. The

Commonwealth concedes that the argument *388 was

not strong given the facts of this case but maintains

that it was fair as it related to the aggravating

circumstance that the killing took place during the

perpetration of a felony. We agree with the

Commonwealth that whatever its purpose, the

argument did not have the unavoidable effect of

prejudicing the jury and forming in their minds fixed

bias and hostility towards Appellant so as to prevent

them from weighing the evidence and returning a true

verdict.

{10}[11} Lastly with respect to prosecutorial

misconduct, Appellant maintains that the prosecutor

improperly commented upon the victim's family's

inability to testify as to their feelings about the

victim's death as compared to Appellant's family's

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ability to share their feelings with the jury. See N.T.,

11/2/88 at 52-53. The Court rejected a similar

argument in Commonwealth v. Jones, 546 Pa. 161,

206, 683 A.2d 1181, 1203 (1996), where the

prosecution stated that the jury did not have an

opportunity to hear from the victim's family and

friends, who would feel exactly the opposite of the

defendant's family members. As in Jones, these

comments served to respond to Appellant's family's

testimony and the jury was able to infer the victim's

family's feelings. While we do not condone the

prosecutor's additional comments that the victim's son

misses his father, we cannot conclude that the

unavoidable effect of these comments was to arouse

the jury's emotions or prejudice the jury so they could

not fairly weigh the evidence. [FN4]

FN4. This claim and most of Appellant's

remaining claims were not raised on direct

appeal. Appellant primarily argues the

merits of each claim and notes that trial and

appellate counsel were ineffective in

handling the issues. The PCRA court ruled

on the merits of Appellant's claims. We

have also addressed the merits. Since we

conclude that the claims do not have merit,

it 1s unnecessary to address the other prongs

of the test applicable to ineffective

assistance of counsel claims, which is set

forth on page three above.

[12] Next, Appellant claims that the trial court's

instruction on the aggravating circumstance that the

offense was committed by means of torture, 42

Pa.C.S. § 9711(d)(8), was unconstitutionally vague.

The court's instruction was as follows:

**792 *389 The second aggravat{ing]

circumstance advanced by the Commonwealth

was that the ... offense was committed by means

of torture. The word “torture” is generally

understood as the infliction of a considerable

amount of pain and suffering on a victim which is

unnecessarily h{einous], atrocious or cruel,

manifesting exceptional depravity. There must

of necessity be more than a mere intent to kill to

be an aggravating circumstance, the law requires

an intent to cause pain and suffering in addition

to the intent to kill. There must be an indication

that the killing is not--the killer is not satisfied

with the killing alone.

N.T., 11/2/88 at 55. This Court has previously

found this instruction proper and has held that the

aggravating circumstance that an offense was

committed by means of torture is not

unconstitutionally vague. In Commonwealth v

Page 6

Pursell, 508 Pa. 212, 238-39, 495 A.2d 183, 196-97

(1985), the Court explained that this aggravating

circumstance is sufficiently specific because the

meaning of torture is a matter of common knowledge

and an ordinary man would not have to guess what

was intended. Thus, the jury will not impose the

death penalty in an arbitrary manner. The trial

court's instruction defining torture in this case is

essentially the same as that given in Pursell. See id.

at 239 n. 13, 495 A.2d at 197 n. 13.

Appellant appears to concede that the trial court gave

an instruction defining torture that comports with

Pursell and its progeny. [FNS] Nonetheless,

Appellant argues that the definition employed by the

court is unconstitutionally vague under Maynard v.

Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100

L.Ed.2d 372 (1988). Maynard, however, found

vague an aggravating circumstance in the Oklahoma

death penalty statute that provided that the murder

was “especially heinous, atrocious, or cruel." 486

U.S. at 363-64, 108 S.Ct. 1853. The Court explained

that these words alone did not guide the jury as

almost every murder could be characterized as

especially heinous, atrocious, or cruel. /d. Maynard

did not involve an *390 aggravating circumstance

that an offense was committed by means of torture.

In addition, the Court in Maynard agreed that a

limiting instruction that the aggravating circumstance

at issue required torture would be constitutionally

acceptable. /d. at 364-65, 108 S.Ct. 1853. Thus,

Maynard does not preclude defining torture as the

infliction of pain that is unnecessarily heinous,

atrocious or cruel, with the intent to cause pain and

suffering in addition to the intent to kill. Appellant's

claim is without merit.

FNS. See, e.g, Commonwealth v. Wharton,

530 Pa 127, 607 A2d 710 (1992)

(requiring instruction that defines the term

torture); Commonwealth v. Nelson, 514 Pa.

262, $23 A.2d 728 (1987) (same).

Appellant next argues that 42 Pa.C.S. § 9711(d)(9),

which sets forth as an aggravating factor that the

defendant has “a significant history of felony

convictions involving the use or threat of violence to

the person,” is unconstitutionally vague. § While

acknowledging that the Court has consistently

rejected this argument, see, e.g, Commonwealth v.

Rivers, 537 Pa. 394, 644 A.2d 710 (1994);

Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689

(1986), Appellant contends that the Court wrongly

decided the issue.

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721 A.2d 786

(Cite as: 554 Pa. 378, *390, 721 A.2d 786, **792)

Appellant maintains that in Rivers and Fahy the

Court improperly relied upon Commonwealth v

Beasley, 504 Pa. 485, 475. A.2d 730 (1984), which

held that the mitigating circumstance that a defendant

has “no significant history of prior criminal

convictions” is not vague. Beasley relied upon

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976), where the defendant challenged

a similar mitigating circumstance under the Florida

death penalty statute. The United States Supreme

Court found that the death penalty statute presented

questions that required no more line-drawing than is

commonly required of a factfinder and held that the

mitigating circumstance is not unconstitutionally

vague. /d. at 257, 96 S.Ct. 2960.

{13}[14] In evaluating a vagueness challenge, the

Court considers whether the death penalty statute

adequately channels the sentencing jury's discretion

so that the death penalty is not imposed on arbitrary

or capricious grounds. See Commonwealth v.

Holcomb, 508 Pa. 425, 463, 498 A.2d 833, 852- 53

(1985). While Beasley involved a mitigating

circumstance and *391 thus did not present the **793

identical issue that was before the Court in Rivers and

Fahy, the Court looked to that decision because the

statutory language challenged as vague was the same.

A finding that a mitigating circumstance adequately

channels the sentencing jury's discretion supports that

an aggravating circumstance with the same language

also passes constitutional muster. Thus, Appellant's

claim is without merit. [FN6]

FN6. Appellant also argues that three other

states have found similar aggravating

circumstances unconstitutionally vague.

See State v. David, 468 So2d 1126

(La.1984); Gall v. Commonwealth, 607

S.W.2d 97 (Ky.1980); Arnold v. State, 236

Ga. 534, 224 S.E.2d 386 (1976). This

Court distinguished these decisions in

Commonwealth v. Holcomb, 508 Pa. 425,

463-64, 498 A.2d 833, 853 (1985), and we

shall not revisit this issu

Appellant next argues that the trial court and counedt

improperly discussed outside of his presence whether

an instruction on voluntary manslaughter wou!d be

provided to the jury. He maintains that this

discussion violated his right to be present during all

critical phases of the trial. Appellant relies upon a

discussion in the record that references an agreement

made on an earlier date on whether the instruction

would be given. See N.T., 10/31/88 at 92. Present

counsel reviewed the record for the referenced date

Page 7

and found no discussion of the issue. Appellant thus

claims a discussion was improperly held outside of

his presence.

[15] Defendants have a constitutional might to be

present in court at every stage of a criminal trial.

Commonwealth v. Ford, 539 Pa. 85, 100-01, 650

A.2d 433, 440 (1994). This right is based in part on

the defendant's right to confront his witnesses under

the Sixth Amendment of the United States

Constitution and Article I, § 9 of the Pennsylvania

Constitution. See id In addition, the Pennsylvania

Rules of Criminal Procedure provide:

The defendant shall be present at the arraignment,

at every stage of the trial including the

impaneling of the jury and the return of the

verdict, and at the imposition of sentence, except

as otherwise provided by this rule. The *392

defendant's absence without cause shall not

preclude proceeding with the trial including the

return of the verdict.

Pa. R.Crim. P. 1117(a).

[16] The trial court explained that its discussions

with counsel essentially involved housekeeping

matters and that Appellant's presence would not

contribute to the fairness of the trial. Appellant does

not develop his constitutional argument in his brief to

this Court. We conclude that the trial court's

apparent- discussion with counsel about the

proceedings outside of Appellant's presence did not

implicate his confrontation rights and his right to be

present at all stages of the trial was not violated.

[17] Appellant next argues that the trial court erred

in answering the jury's question about accomplice

liability. This Court ruled on this claim on direct

appeal. See Rompilla, 539 Pa. at 508-09, 653 A.2d

at 630-31. Appellant may not obtain relief under the

PCRA on a claim that has already been litigated. 42

Pa.C.S. § 9543(a)(3). While Appellant contends in a

footnote that appellate counsei did not adequately

pursue this claim on direct appeal, post-conviction

review of a claim already litigated on appeal cannot

be obtained by alleging ineffective assistance of prior

counsel and presenting new theories of relief.

Commonwealth v. Peterkin, 538 Pa. 455, 460-61, 649

A.2d 121, 123 (1994).

Appellant next argues that the trial court improperly

allowed the prosecutor to read to the jury the

testimony of the victim of a prior rape during the

penalty phase. Appellant was convicted of rape and

burglary arising from a single incident in 1974.

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(Cite as: 554 Pa. 378, *392, 721 A.2d 786, **793)

When Appellant objected to the introduction of the

testimony, the prosecutor argued in part that it was

necessary to establish that the related burglary

conviction was violent for purposes of the

aggravating circumstance that Appellant has a

significant history of felony convictions involving the

use or threat of violence, 42 Pa.C.S. § 9711(d)(9).

See N.T., 11/1/88 at 33-38. The trial court admitted

the testimony. /d

*393 On direct appeal, Appellant's former counsel

argued that the trial court erred in admitting the rape

victim's testimony because it **794 appealed to the

passions of the jury. The Commonwealth again

maintained that it was necessary to establish the

aggravating factor and that reading the transcript was

the most efficient wey to present the facts. This

Court held that the trial court did not err in allowing

the testimony to be read to the jury. Rompilla, 539

Pa. at 512-14, 653 A.2d at 633 (1995). Relying upon

Commonwealth v. Christy, 511 Pa. 490, 515 A.2d

832 (1986), the Court stated that the Commonwealth

had to show a threat or use of violence in the

commission of the burglary to establish a significant

history of felonies under 42 Pa.C.S. § 9711(d)(9). /d.

{[FN7] The Court also concluded that by reading the

transcript, the Commonwealth presented the facts in a

way that minimized the inflammatory impact.

FN7. In Christy, the Commonwealth

introduced evidence of the defendant's prior

burglary conviction to establish the

aggravating factor. The Commonwealth did

not introduce evidence showing that the

burglary involved the threat or use of

violence. On appeal, the Court stated that

the Commonwealth must present evidence

that the defendant actually threatened or

used violence to include a felony under 42

PaCS. § 9711(dX9). Sil Pa. at 507-08,

515 A2d at 840-41. However, since the

jury did not find the aggravating factor, the

Court held that the error was not prejudicial

Id

The Court has thus already decided on direct appeal

that the rape victim's testimony was admissible.

Nonetheless, Appellant now argues that prior counsel

was ineffective for not bringing Commonwealth v.

Rolan, 520 Pa. 1, 549 A.2d 553 (1988), to the

attention of the trial court and this Court on direct

appeal. Appellant maintains that under Rolan, it was

only necessary to introduce evidence of his burglary

conviction to establish a felony involving the threat or

use of violence. [FN8}

Page 8

FN8. In Rolan, the Commonwealth

introduced evidence of the defendant's prior

burglary convictions in order to establish

the aggravating factor. Appellate counsel

argued that trial counsel was ineffective in

allowing the evidence since burglaries are

not felonies involving the use or threat of

violence. The Court held that burglary is a

crime involving the use or threat of violence

- and found counsel effective. 520 Pa. at 15,

549 A.2d at 559-60. It stated that the

discussion in Christy as to the evidence

necessary to establish the aggravating factor

was dicta since the jury did not find the

aggravating factor. /d n. 5.

[18] *394 As stated above, a claim that has already

been litigated cannot be revisited by alleging

ineffective assistance of prior counsel and presenting

new theories of relief. Commonwealth v. Peterkin,

538 Pa. 455, 460-61, 649 A.2d 121, 123 (1994).

Even if it could, Appellant's claim does not have

arguable merit. Regardless of the applicability of

Rolan, the Commonwealth was entitled to introduce

facts surrounding the burglary conviction. See

Commonwealth v. Jones, 542 Pa. 464, 523-24, 668

A.2d 491, 520 (1995); Commonwealth v. Beasley,

505 Pa. 279, 288, 479 A.2d 460, 465 (1984). The

Commonwealth may place the underlying facts of

prior convictions before the jury so that it is able to

assess the weight to be given to the aggravating

factor. Jones, 542 Pa. at 523-24, 668 A.2d at 520.

Here, when Appellant's trial counsel objected to the

testimony and then offered to stipulate that the

burglary is a crime of violence, the Commonwealth

properly argued that the jury was entitled to know the

underlying facts. See N.T., 11/1/88 at 33-38. Thus,

no relief is due on this claim. [FN9]

FN9. To the extent the Court's decision on

direct appeal in this case departs from

Rolan, this Court has since affirmed the

principles in Rolan. See, eg,

Commonwealth v. Gibson, 720 A.2d 473

(Pa. 1998).

Appellant next argues that his due process rights

were violated because the trial court did not answer

the jury's question about his parole eligibility.

During jury deliberations in the penalty phase, the

jury asked, “If a life sentence is imposed, is there any

possibility of the Defendant ever being paroled?”

N.T., 11/2/88 at 73. The trial court responded:

I'm sorry to say, I can't answer that question.

That's not before you as such. The only matter

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721 A.2d 786

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that you can consider in the Sentencing Hearing

is the evidence that was brought out in the course

of the Hearing and the Law with respect to the

Court's Charge. That's the only consideration

you have, I'm sorry to say. 1--if there were other

alternatives that you should consider, we would

have outlined them in the Charge, all mght. Are

there any other questions?

**795 /d. at 73-74. Appellant argues that the jurors

should have been told that a life sentence means life

without parole under *395 Simmons v. South

Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d

133 (1994), which mandates such an instruction when

a defendant requests it and his future dangerousness

is at issue.

[19}[20] Under the current state of the law in

Pennsylvania, the jury must be told that life means

life without parole only when the defendant's future

is at issue. Commonwealth v. Clark,

551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998).

Appellant argues that his future dangerousness was at

issue because the Commonwealth argued the

aggravating circumstance that he has a significant

history of felony convictions involving the use or

threat of violence. The Court rejected this argument

in Commonwealth v. May, 551 Pa. 286, 710 A.2d 44,

47 (Pa.1998). As stated in that case, this aggravating

circumstance only addresses Appellant's past conduct,

not his future dangerousness. See id Thus, no

relief is due. [FN10]}

FN10. This author agrees with the dissent's

position that a Simmons instruction should

be given in all cases and has previously so

stated. See Clerk, 710 Add at 43-44

(Nigro, J., concurring, joined by Flaherty, J.

and joined in relevant part by Zappala, J.),

May, 710 A.2d at 49 (Nigro, J., concurring,

joined by Zappala, J.). Under the current

state of the law, however, Appellant's

argument that he was entitled to the

instruction because the Commonwealth

argued the aggravating circumstance

identified above, is without merit. See

May, 710 A.2d at 47.

{21} Next, Appellant argues that the trial court erred

in failing to excuse a juror for cause and that tial

counsel failed to challenge him for cause. This

argument was not raised in Appellant's PCRA petition

or in the proceedings before the PCRA court. Thus,

Appellant has waived this claim. See

Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998)

Page 9

Appellant next argues that this case should be

remanded to the Court of Common Pleas for a

hearing on recently discovered claims related to

alleged violations of Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This issue has

already been litigated. Appellant filed a remand

motion in this Court on March 10, 1997 alleging the

possibility of misconduct by the Federal Bureau of

Investigation in the handling of evidence in this case.

This Court entered an *39%6 order denying the motion

for remand on May 20, 1997. Appellant now

summarizes his remand motion and offers no reason

why this Court should reconsider its earlier ruling.

No relief is due on this claim.

[22] Lastly, Appellant argues that he is entitled to a

new trial and sentencing proceeding because the

prejudicial effects of the cumulative errors in this

case undermine confidence in the outcome at both

stages of the trial. The Court rejected a similar

in Commonwealth v. McGill, 545 Pa. 180,

680 A.2d 1131 (Pa.1996). In that case, the

defendant's individual claims of error failed for lack

of merit. As such, there could be no prejudicial

cumulative effect when there was no harm in the first

place. /d. 680 A.2d at 1136. The same is true here.

Having found that none of Appellant's claims

warrants relief, the order of the Court of Common

Pleas is affirmed.

Chief Justice FLAHERTY files a Dissenting

Opini

Justice ZAPPALA and Justice NEWMAN concur in

the result.

FLAHERTY, Chief Justice, dissenting.

I believe the majority is in error in its treatment of

the issue pertaining to the jury's question about the

defendant's parole eligibility. | Under Simmons v.

South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129

L.Ed.2d 133 (1994) and Commonwealth v. Clark,

551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998), the court

must tell a jury that a life sentence means life without

parole, if the defendant requests the instruction and

his future dangerousness is at issue. Here, during

deliberations in the penalty phase, the jury asked, "If

a life sentence is imposed, is there any possibility of

the Defendant ever being paroled?" I view this

question as a clear expression of the jury's concern

about the defendant's future dangerousness. | would

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721 A.2d 786

(Cite as: 554 Pa. 378, *396, 721 A.2d 786, **795)

therefore hold that the tnal court's refusal to explain

the meaning of life without **796 parole constituted

error under Commonwealth v. Clark, supra. | would

therefore reverse the order of the *397 court of

common pleas and remand for proceedings consistent

with this opimon.

I would go further and require an explanation of the

meaning of a life sentence in all capital cases. There

can be no harm in instructing juries that in

Pennsylvania appellant would be statutorily ineligible

for parole if sentenced to life in prison, but that a life

sentence might nonetheless be commuted by the

governor. On the other hand, if we do not so

struct, a jury, erroneously believing that a prisoner

sentenced to life may be paroled within a period of

years, may impose the death penalty for reasons

which are not based in law. :

Page 10

721 A.2d 786, 554 Pa. 378

Briefs and Other Related Documents (Back to top)

. 1997 WL 33544694T2 (Appellate Brief) Reply

Brief of Appellant (Aug. 08, 1997)Original Image of

this Document (PDF)

. 1997 WL 33544693T2 (Appellate Brief) Initial

Brief of Appellant (Jun. 03, 1997)Original Image of

this Document with Appendix (PDF)

1996 WL 33418286T2 (Appellate Brief)

Commonwealth's Brief in Opposition to Initial Bnef

of Appellant (1996)Original Image of this Document

(PDF)

END OF DOCUMENT

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Not Reported in F Supp.2d

(Cite as: 2000 WL 964750 (E.D.Pa.))

>

Only the Westlaw citation is currently available.

United States District Court, E.D. Pennsylvania.

Ronald ROMPILLA, Petitioner,

Vv.

Martin HORN, Commissioner, Pennsylvania

Department of Corrections; Philip L.

Johnson, Superintendent of the State Correctional

Institution at Greene, and

Joseph P. Mazurkiewicz, Superintendent of the State

Correctional Institution at

Rockview, Respondents.

No. CIV.A.99-737.

July 11, 2000.

MEMORANDUM

BUCKWALTER

*1 On February 12, 1999, Ronald Rompilla

(Petitioner) filed a Motion to Proceed /n Forma

Pauperis; For Stay of Execution; For Appointment of

Federal Habeas Corpus Counsel; and for 120 days to

This motion was granted and uitimately, all briefs,

exhibits and records necessary to render this decision

were filed no later than February 8, 2000. [FN1]

FNI. The court also received a letter dated

February 3, 2000 from counsel for petitioner

which follows:

We are writing to address the issue

discussed in the telephone conference

convened by the Court on January 21, 2000.

In that conference, your Honor alerted the

parties that the son of the Lehigh County

District Attorney who was in office at the

time of Mr. Rompilla’s tral is presently one

of your law clerks. The Court also indicated

that this clerk has not had, and will not

have, any involvement with Mr. Rompilla's

case. Finally, the Court requested that we

discuss these circumstances with Mr.

Rompilla to determine whether a recusal

motion. or a similar application, would be

appropriate.

We discussed these facts with Mr. Rompulla

by telephone on January 27, 2000. Based

upon the telephone conference with the

Court and our discussion with Mr.

Rompilia, Petitioner 1s satisfied with the

Page I

Court keeping this matter and will make no

application for recusal or related relief.

NOTE: The clerk referred to has had no

the court in Williams v. Taylor, supra and

the ABA Standards.

Before proceeding with my review of this case, |

awaited a decision then pending before the United

States Supreme Court in Terry Williams v. Taylor,

120 S.Ct. 1495 (2000), which was decided April 18,

2000. This case will be referred to both in the

Standard of Review and the Claim I discussion. In

light of Williams, supra, 1 accepted additional

briefing and held oral argument on July 10, 2000.

I. BACKGROUND

Petitioner, represented by court-appointed counsel,

was convicted of first degree murder and

in

County Court of Common Pleas, No.

(Honorable David E. Mellenberg, J.). The conviction

and sentence were affirmed on direct appeal to the

Pennsylvania Supreme Court. Commonwealth v.

Rompilla, 539 Pa. 499, 653 A.2d 626 (1995).

Petitioner's post-conviction claims. Further evidence

was taken (with the consent of the parties and the

court's permission) by way of depositions, which

were filed with the Court. See Deposition of Carol

Armstrong, Ph.D. (April 2, 1996) (Exhibit 3);

Deposition of Barry Crown, Ph.D. (April 2, 1996)

(Exhibit 4); Deposition of Paul K. Gross, M.D. (April

1, 1996) (Exhibit 5); Deposition of Gerald Cooke,

Ph.D. (April 3, 1996) (Exhibit 7); Deposition of

Robert Sadoff, M.D. (April 23, 1996) (Exhibit 8);

Deposition of Frank M. Dattilio, M.D. (May 7, 1996)

(Exhubit 9). Numerous exhibits were introduced.

On August 21, 1996, Judge Wallitsch issued an

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Not Reported in F.Supp.2d

(Cite as: 2000 WL 964750, *1 (E.D.Pa.))

Opimon and Order denying Petitioner's claims for

post-conviction relief. The Pennsylvania Supreme

Court affirmed on December 10, 1998 and denied

reargument on January 19, 1999. Commonwealth v

Rompilla, 554 Pa. 378, 721 A.2d 786 (1998).

Pennsylvama Governor Thomas Ridge issued a death

warrant, scheduling Petitioner's execution for March

16, 1999, after which the February 12, 1999 petition

referred to above was filed.

The date of petitioner's murder conviction was

November 1, 1988. ["N2] The Supreme Court of

Pennsylvania. in petitioner's direct appeal, wrote this

about the evidence in the case:

FN2. In all, petitioner was convicted of

murder im the first degree, burglary,

criminal trespass, two counts of theft and

two counts of receiving stolen property.

*2 In the early morning hours of January 14.

1988, the victim, James Scanlon, was murdered

in his bar, the Cozy Corner Cafe, located in

Allentown, Pennsylvania. At approximately 6:30

a.m. on that same morning, the victim's son

discovered the body of his father lying behind the

bar in a pool of blood. The victim -had been

stabbed repeatedly and set on fire. The victim's

wallet had been stolen and approximately $500 to

$1,000 had been stolen from the bar.

The Commonwealth's case consisted almost

entirely of circumstantial evidence as there were

no eyewitnesses to this killing. Appellant was

seen in the Cozy Comer Cafe on January 14,

1988, from approximately 1:00 a.m. to 2:00 a.m.

During that time, he was observed going to the

bathroom approximately ten times. A subsequent

police investigation determined that the window

in the men's bathroom was used as the point of

entry into the bar after it had closed.

When questioned by an investigating “detective

from the Allentown Police Department, Appellant

stated that he had been in the Cozy Corner Cafe

on the mght of the murder and left between 2:00

a.m. and 2.30 a.m. because he had no money. He

stated that he had only $2.00 to buy breakfast at a

local diner. A cab driver testified that he picked

up Appellant at the diner and drove him to two

different hotels where Appellant was unable to

rent a room. The diver then took Appellant to the

George Washington Motor Lodge where he was

able to rent a room. Appellant paid the cab fare of

$9.10

Page 2

Appellant rented a room for two nights at the

George Washington Motor Lodge. In doing so, he

paid $121.00 in cash and flashed a large amount

of cash to the desk clerks. Appellant also used a

false name when he checked in.

The police secured a search warrant for

Appellant's motel room and seized several items,

including Appellant's sneakers. These sneakers

matched a footprint in blood that was discovered

near the victim's body. In addition, the blood

found on the sneakers matched the victim's blood

type.

The Commonwealth also presented other

circumstantial evidence that linked Appellant

with the robbery and murder of James Scanlon.

First, Mr. Scanlion's wallet was found by a

grounds keeper in the bushes, six to eight feet

outside the room that Appellant had rented at the

George Washington Motor Lodge. Second,

Appellant's fingerprint was found on one of the

two knives that was used to commit the murder.

Finally, there were mumerous inconsistencies

between what Appellant had told police

concerning his activities on January 14 and 15,

1988, and the testimony of other witnesses.

When viewed in the light most favorable to the

Commonwealth as verdict winner, the evidence

clearly supports Appellant's conviction for first

degree murder.

Petitioner now makes 11 claims which he contends

merit habeas corpus relief.

Il. STANDARD OF REVIEW

Before undertaking an analysis of petitioner's claim,

it 's appropriate to set forth the standard of review for

§ 2254 petitions:

*3 (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 that 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.

28 U.S.C. § 2254(d) (West Supp. 1998).

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Moreover, “a determination of a factual issue made

by a State court shall be presumed correct. The

applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing

evidence." 28 U.S.C. § 2254(e(1).

In accordance with Matteo v. Superintendent S.C./.

Albion, 171 F.3d 877 (3d Cir.1999), cert. denied.

120 S.Ct. 73 (1999), this court should first review a

State court decision to determine if it was contrary to

Supreme Court precedent governing the claim for

relief, such that a contrary outcome is required. If the

initial review finds that the State court decision is not

contrary to the precedent, then no habeas relief

should be granted “unless the State court decision,

evaluated objectively and on the merits, resulted in an

outcome that cannot be reasonably justified under

existing Supreme Court precedent.” The court went

on to say in Matteo that even if the federal habeas

court disagrees with the State court dec ‘sion, relief is

not appropriate. Thus, we must uncc:take a two-step

review under the “contrary to” clause and the

“unreasonable application” clause. Matteo further

warns that although a reviewing court may consider

"the decisions of inferior federal courts" when

deciding whether the State court reasonably applied

Supreme Court precedent, "federal courts may not

grant habeas corpus relief based on the State court's

failure to adhere to the precedent of a lower federal

court in an issue that the United States Supreme Court

has not addressed.” ~

Finally, § 2254(d) refers to “any claim that was

adjudicated on the merits in State court proceedings.”

If a claim was disposed of by a State court without an

explanation as to the legal or factual basis for its

disposition, my view is that a habeas court may then

undertake a de novo review.

In Williams, Justice O'Connor, delivering the opinion

of the court as to Part II, summed up the above, as

follows:

In sum, § 2254(d)(1) places a new constraint on

the power of a federal habeas court to grant a

state prisoner's application for a writ of habeas

corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ

may issue only if one of the following two

conditions is satisfied--the —state-court

adjudication resulted in a decision that (1) “was

contrary to ... clearly established Federal law, as

determined by the Supreme Court of the United

States,” or (2) “involved an _ unreasonable

application of ... clearly established Federal law,

Page 3

as determined by the Supreme Court of the

United States.” Under the “contrary to” clause, a

federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that

reached by this Court on a question of law or if

the state court decides a case differently than this

Court has on a set of materially indistinguishable

facts. Under the “unreasonable application”

clause, a federal habeas court may grant the writ

if the state court identifies the correct governing

legal principle from this Court's decisions but

unreasonably applies that principle to the facts of

the prisoner's case.

*4 1 wil! now discuss each claim in order.

CLAIM IL TRIAL COUNSEL WERE

INEFFECTIVE AT THE CAPITAL SENTENCING

PHASE FOR FAILING TO INVESTIGATE,

DEVELOP AND PRESENT SIGNIFICANT

MITIGATING EVIDENCE RELATED TO

PETITIONER'S TRAUMATIC CHILDHOOD,

ALCOHOLISM, MENTAL RETARDATION,

COGNITIVE IMPAIRMENT AND ORGANIC

BRAIN DAMAGE.

For purposes of analyzing Claim I, it is important to

produce at the sentencing hearing. The record reveals

that Petitioner's counsel called five witnesses on his

behalf at that hearing: Darlene Rompilla, his sister-in-

law; Nicholas Rompilla, Junior, an older brother;

Robert Rompilla, a younger brother; Sandy Whitby, a

sister; and Aaron Rompilla, a son who was 14 at that

time. The total examination of those witnesses is

encompassed in about 26 pages of Notes of

Testimony, Volume VII. Not one witness discussed

Petitioner's traumatic childhood, his alcoholism,

mental retardation, cognitive impairment or organic

brain disorder. What they did say were, "He was a

good family member"; "We never had a problem"; I

don't think my brother did it"; “Have mercy off him";

"I was close to him, he loved my family, he just didn't

have a chance"; “They didn't give him no

rehabilitation” ; "Why can't he get help like all the rest

of the people get help"; “I love him very much"

(crying); "I've never seen the bad side of my brother,

never”; “He just loves us like we love him.”

The testimony was apparently presented to engender

sympathy for the Petitioner. From the record, it

appears that it may have been uncomfortable for all

involved. A person identified on the record as Ms.

Hass says (referring to the jury, apparently), “They

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said they need a break. They said that they can't take

no more of this mght now.” At side bar, the court said,

"They wanted a break” to which trial counsel replied,

"Me too.”

The recitation above is to explain the nature of the

sentencing hearing. It seemed to be designed

primarily as an emotional appeal to the jury to show

mercy to Petitioner--he wasn't as bad as he seemed

and his family loved him. On its face at least, the

hearing seems unreasonably bref and lacking in real

substance considering the nature of the proceedings.

Indeed, in an opinion written after a PCRA hearing,

the Honorable Thomas A. Wallitsch, Judge of the

Court of Common Pleas of Lehigh County, presiding

over that hearing in place of his late colleague, The

Honorable David E. Mellenberg, the tal judge,

found that the Petitioner was entitled to have relevant

information of mental infirmity presented to a jury. In

applying Pennsylvama law, Commonwealth v. Buehl.

450 Pa. 493, 658 A.2d 771 (1995), he nevertheless

found that counsel had a reasonable basis for

proceeding as they did. In affirming Judge Wallitsch,

the Supreme Court of Pennsylvania stated as follows:

“It [the PCRA court] explained that trial counsel

employed two recognized experts in the field of

psychiatry and psychology who administered

tests, evaluated Appellant, and reported that there

was nothing that could be used as mitigation

evidence. Rather. the experts told counsel that

Appellant was a sociopath. Counsel also obtained

an evaluation by another psychiatrist who after

evaluating Appellant. found nothing that would

be beneficial in the penalty phase. Although

counse] did not obtain the records identified

above [records that Petitioner maintains would

have aided the mental health experts, including

school records reflecting a low IQ, a hospital

record reflecting a fever at age two, and

Department of Corrections records reflecting low

achievement test scores and alcohol abuse}, the

PCRA court found them not entirely helpful to

Appellant and further found that counsel gave the

experts whatever information they requested.

*5 With respect to Appellant's siblings’ testumony

about his childhood, the PCRA court accepted

tial counsel's testumony that when they

questioned Appellant and his family before tal,

they did not reveal the information that they now

claim should have been told to the jury. The court

rejected the siblings’ testuumony to the contrary.

The court also stated that Appellant made

contradictory statements to counsel during his

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representation and that counsel was reasonable in

believing that their only avenue was to ask the

jury to have mercy on him.

We agree with the PCRA court that trial counsel

was effective with respect to their investigation

and presentation of mitigation evidence. In

addition to concluding that counsel acted

reasonably, we further find that Appellant's claim

lacks arguable merit. As recognized by the PCRA

court, trial counsel employed three experts to

evaluate Appellant. N.T., 3/28/96 at 68-69,

120-21. Based upon their testing, the experts

found nothing helpful to Appellant's case and

diagnosed him as a sociopath. /d. at 122-23. The

fact that Appellant now has found two experts

who conclude that he has brain damage does not

negate the fact that trial counsel investigated

Appellant's cognitive abilities with other experts.

In addition, we agree with the PCRA court that

under the facts of this case, counsel reasonably

relied upon their discussions with Appellant and

upon theii experts to determine the records

needed to evaluate his mental health and other

potential mitigating circumstances. See N.T., 3/

29/96 at 27-28, 33, 38- 39. Thus, Appellant's

claim that trial counsel failed to investigate his

mental health is without arguable ment.

With respect to the mitigation evidence brought ~

forth by Appellant's siblings, the PCRA court

accepted as credible trial counsels’ testimony that

when they spoke to the family before trial, none

of the family members revealed abuse or other

circumstances that could be used as mitigation

evidence. See N.T., 3/28/96 at 46-51, 109,

118-19, 133, 143; N.T., 3/29/96 at 111. Thus,

Appellant's claim that trial counsel failed to

investigate his family background also lacks

arguable merit.

Related to this claim, Appellant next argues that

because trial counsel failed to investigate his

background, he received inadequate evaluations

by mental health professionals in violation of his

constitutional rights. Having found above that

trial counsel did not fail to investigate, this claim

sumilarly has no merit.

In testimony at the PCRA hearing, Maria Dantos,

Esquire, who handled the sentencing hearing (penalty

phase), testified that she graduated from law school in

1985, was then employed by the Lehigh County

Office of the Public Defender and undertook

representation of Petitioner (together with Chief

Public Defender Frederick Charles) sometime after

his arrest in January of 1988. She described her role

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as handling the penalty phase including making the

arguments and presenting witnesses. Attorney

Charles, as her supervisor, was involved in all of the

decisions and the discussions on how to proceed. This

was Ms. Dantos’ first capital case, and first homicide

tnal. She contacted three mental health professionals;

Drs. Cooke, Sadoff and Gross prior to the trial to

initially see if there was any issue of mental infirmity

or mental insanity for the guilt phase and, mental

infirmity for the penalty phase if the jury returned a

first degree verdict. Apparently, she did not get

Petitioner's school records and those records were

never furnished to the three doctors aforesaid. The

school records revealed, among other things, that

Petitioner was in special education class and that his

1.Q. was below the mentally retarded range at certain

ages. The medical records of Petitioner were not

obtained by trial counsel either. Those records

revealed that at age 2, Petitioner was admitted to the

hospital with a 105<<degrees>> fever and diarrhea.

Finally, the Department of Corrections records,

discussed at page 18, were not obtained by counsel.

*6 Ms. Dantos did talk to family members, but

nothing exceptional was presented to her about

alcoholism within the family. Also, it was never

indicated that there was any sort of abuse within the

family. Ms. Dantos did agree that if someone were an

alcoholic, that might be potentially mitigating value.

Chief Public Defender Frederick E. Charles was also

examined at great length at the PCRA hearing before

Judge Wallitsch. My examination of his testimony

leads me to conclude that he was a veteran attorney

with significant criminal trial experience as a defense

lawyer at the time of Petitioner's trial; that he was

knowledgeable with regard to the law and savvy with

regard to trial techniques and strategy. While not

dispositive of the ineffectiveness issue, a letter sent

by Sandra Whitby to Maria Dantos shows the

impression the representation of Mr. Charles and Ms.

Dantos made upon someone close to the case.

"Dear Maria. It is the next day, and the pain and

word “death” is still alive in my mind, but I had

to take the time and write and tell Fred and you

what supurb [sic] human beings you both are.

You fought and felt everything our family did,

and when we cried you cried along with us. You

left a feeling in me | can't explain, and | want to

thank you both for caring and for being there with

us all the way. I'm sure | speak for all my family.

I only hope that some day, as Fred promised, the

word “death” can be erased from the sentence so

we can live in peace that Ron will be there to

Page 5

wre, visit and talk with. If he should die, a part

of us will, too, cause in our hearts we feel he is

innocent, and nothing will change that.

Maria, I know at this point you want to put this

matter aside and get on with your work, but |

hope you don't give up on Ron, cause he called

me and said you woke up feelings in him, and he

trusts you with all his heart. We both know that

was hard for him to say.

I can't say it enough that Fred and you are both

wonderful, caring people. Thank you again for

everything, and please, please help us, and don't

forget us.

Love, Sandra Whitby.”

The following excerpt from the lengthy testimony of

Mr. Charles puts into perspective what was done on

behalf of Petitioner compared to what Petitioner

claims should have been done:

Q. Okay. That's fine. Just so I fully understand--

getting back to the penalty phase, just so I

upon what your client tells you?

A. No, that's not my position. Okay. | know how

you want to simplify this. But--and so I don't

know if I can answer you in the terms of your

question. But I'll try. We investigate the evidence

that we have, the evidence that's given in a

preliminary hearing. We look at the probable

cause affidavit. We look at the examination that

we took in this case from the preliminary hearing.

We looked at the evidence that came forth during

the suppression hearing. We looked at the

evidence that--

*7 Q. I'm talking about the penalty phase.

A. But whatever came, we--you know, you den't--

we don't sit and separate it. It's an investigation.

The penalty phase is something that we keep an

eye on. But I have to tell you in this case you had

a very, very objecting client. Whenever we tried

to talk penalty phase and death penalty with him,

he was resistant to that.

Q. Let's discuss that.

A. Sure.

Q. Let's discuss that. What | thought you said just

before was that you sit down with your chent and

you say, "Tell me how you schooling was,” and

your client would say, “I did okay in school.”

We're talking hypothetically. All might? If you

have a client who is reluctant to discuss how his

schooling was because he doesn't really want to

talk about the penalty phase, do you, as counsel,

have a duty to go further than just talking to your

chent about it?

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A. It depends

Q Depends on what’

A. It depends on what evidence you have in the

case It depends on what he's told you.

Q You--

A. Let me fimsh, Mr. Wiseman. He didn't tell us,

"Tm not willing to talk to you about my

schooling. I'm reluctant to talk about my this.” He

said there was nothing wrong. “Is there anything

that happened’ What was it like growing up” Is

there anything you can tell us that could help us’

And he said, “No, there was nothing wrong.” He

was very, very. very smooth about it. It wasn't

that he was reluctant to talk about anything. He

said, "Your conversations about the possibility of

the death penalty bore me.” He said, “I have

home box in my room that | can watch, and I'm

bored being here listening to it, and I'm going to

go watch home box,” and he walked out. That's

why, when we tned to go through the death

penalty phase with him and he left, we wrote it in

that letter. And | said, “Since you won't hear it

when we sit there, it bores you, | want you to at

least read it." His reluctance wasn't an overall

reluctance where he said, "I don't want to talk

about my childhood. because it's too painful.”

There was no indicator from anything he told us

that would send us searching for elementary

school records, high school records, any kind of

records. He said everything was fine. He had a

normal childhood. There was nothing there. And

so no. we didn't go beyond that. And my

professional opimon is that, given what Ron

Rompilla told us during the numerous discussions

we had with him and the countless discussions

that John Whuspell, our deceased investigator,

had with him and was over to see him constantly,

there was nothing that came across our table that

would make us go looking for his elementary

schoo! records. his home life records or anything.

And if he knew of anything or his family knew of

anything, they never told us. And | know most

certainly that we asked. and I know Miss Dantos

asked

Q. Asked what?’

A. “What can you tell me about Ron? What was it

like for hum’? What was huis life like? What was it

like growing up’ What was his relationship?

What kind of a brother was he? What kind of a

brother-in-law was he’ What do you know?"

The response was they hardly know him. | mean

one said, "He was in a reformatory. He's been

away the whole tume. We didn't know him that

well.” Things of that nature. But | remember her

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specifically going one by one and talking to him.

“Is there anything you can tell me? Tell me about

yourself. Tell me about your background.” She

was, you know, meticulous to cover points. And

she had a way of doing that, because she was

legitimately concerned. And | thought it was

disarming. They engaged in numerous what |

considered to be cordial conversations. Some of

the times I felt like | was in the way even being in

the room, and I'd go get coffee. And she would sit

down, and so would John Whispell. John

Whispell was like a buddy with them, and they

would go over and talk. "Tell me about yourself."

We undertook to try and determine from him and

his family whatever information we could.

Nothing came across to us that made us do what

you're asking about.

*8 Q. All mght. Are you aware of the dynamics

that exist among people who are subject to child

abuse, that they don't readily like to talk about

those kinds of things? Is that something that you--

A. Sure.

Q. --see in your experience?

A. Sure.

Q. So you go to an adult--well, let's say--well,

you go to an adult who may have had an abusive

childhood, and you say, “How was your

childhoc4?" and the person says it was fine.

Would you agree that, given your awareness of

the abuse dynamics, that maybe it would be more

prudent to go beyond the client and beyond those

who may have abused the client to lock for other

indications of abuse?

A. It may in a vacuum. But, my goodness, you

have--with 2,000 defendants you have over 50

percent that tell you, "Yes, I've been beaten. I've

been raped. I've been molested.” | mean, what's

the difference? It's hard to determine when

someone says, “No, | had a great childhood. I had

no problems,” the difference between that and

being in denial. | mean we talked to him more

than once, and we believed that there was nothing

outstanding. His family didn't tell us anything. |

mean maybe the family would say, “Hey, you

know don't believe him, because he was one heck

of an abused kid." That never was volunteered. It

~ was never told during any of the times that we

talked to them. You know, even if Ron denied it,

I mean, somebody in the family would have

known it. His wife would have known it.

Somebody would know it to tell us. And I don't

think that it's looking back and | really think it's

classic. | don't want to say that. You're looking

back at it in a vacuum. Because when he says,

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“No, there's nothing there,” you know, what's the

difference between the truth, there was nothing

there, and classic denial. I'm not an expert. That's

why I send them to an expert.

Q. All right.

A. And I figure that Dr. Cooke or Dr. Sadoff or

Dr. Gross, who do this for a living, might be able

to say, "There's something in the way he denied

this that shows it's classic denial syndrome, and

we ought to explore it a little bit." So I get him

away from me making that call. I'm a lawyer. I'm

not a psychiatrist or a psychologist. And so I get

him to a pro, and then | get on with the business

of preparing the rest of my case. And that's what

we did with Ron Rompilla's case.

Petitioner argues now that this investigation did not

fulfill counsel's obligation to conduct a thorough

investigation of Petitioner's background. More

specifically, trial counsel for Petitioner, his present

counsel argue, should have obtained his school,

medical, court and prison records as part of their

investigation. The school records would have shown

he was in special education and mentally retarded or

borderline mentally retarded; the medical records

would have revealed his early hospitalization at age

2; and the prison records would have shown scores on

other tests, as well as other background information.

There is reason to believe, from my reading of the

depositions of Drs. Cooke, Sadoff and Gross, that

information from those records may have been

important in their respective diagnoses.

*9 At the beginning of this analysis, | said <nat the

penalty hearing appeared to be unreasonably short

and lacking in substantive evidence. The explanation

of trial counsels’ conduct is two-fold, it seems to me.

First and foremost, Petitioner himself was not

forthcoming; he just was of virtually no help in the

penalty stage (see testimony of Attorney Charles at

pp. 10-13 of this opinion). Second, despite the lack of

cooperation of the Petitioner and his family members’

failure to reveal anything about his life other than he

was a good guy, trial counsel had three doctors

examine Petitioner. None of these experts were able

to offer any mitigating factors and one even

concluded the Petitioner was a sociopath; hardly

something counsel could use.

My review of the record reveals that trial counsel

were intelligent, diligent and devoted to their task of

representing Petitioner. But, did trial counsel comply

with their obligation to conduct a thorough

investigation? We know that they did sot develop and

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present any mutigating evidence about Petitioner's

childhood, alcoholism, mental! retardation or possible

organic brain damage.

Certainly, with regard to the first two, Petitioner

himself and his relatives simply did not supply

counsel with any meaningful information prior to the

penalty hearing. As to the mental retardation and

organic brain damage, counsels’ response is that the

three experts never requested this information and

therefore they never sought it. Judge Wallitsch

concluded in this regard that, "Given the fact that

three health care professionals, all of whom were

experienced forensic experts, had provided opinions

to defense counsel, and none of them asked for more

information, it was hardly unreasonable or ineffective

for defense counsel to have relied upon their

opinions.” (Opinion of Thomas A. Wallitsch, J., p. 8).

In affirming Judge Wallitsch, the Supreme Court of

Pennsylvania stated, "We agree with the PCRA court

that trial counsel was effective with respect to their

investigation and presentation of mitigation

evidence.... In addition, we agree with the PCRA

court that under the facts of this case, counsel

reasonably relied upon their discussions with

Appellant (Petitioner) and upon their experts to

determine the records needed to evaluate the mental

health and other potential mitigating circumstances.”

The Pennsylvania Supreme Court concluded that tri!

counsel did not fail to investigate.

What is missing from the court opinions in this case

is at least two matters of concern. First, there is no in

depth analysis of what the duty to investigate consists

of in a case of this nature; and second, there is a lack

of discussion of alcoholism as pertaining to the

Petitioner. [FN3] A discussion of the duty to

investigate should include reference to the ABA

Standards for Criminal Justice. These standards were

cited in Williams v. Taylor, supra. Writing for the

majority on the particular issue of imeffective

assistance of counsel, Justice Stevens said, referring

to certain conduct of defense counsel:

FN3. The overall analysis of this Claim |

involves clearly established federal law,

namely Strickland v. Washington, injra.

Justice Kennedy explained that rules of law

may be sufficiently clear for habeas

purposes even if it 1s a generalized standard.

He said:

“If the rule in question is one which of

necessity requires a case-by-case

examination of the evidence, then we can

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tolerate a number of specific applications

without saying that those applications

themselves create a new rule Where the

beginning point is a rule of this general

application, a rule designed for the specific

purpose of evaluating a myriad of factual

contexts, it will be the infrequent case that

vields a result so novel that it forges a new

rule. one not dictated by precedent " Wright

» West, SOS US 277, WS-309, 112 SCt

2482, 120 LEd 2d 225 (1992) (opimon

concurring in judgment)

*10 Whether or not those omissions were

sufficiently prejudicial to have affected the

outcome of the sentencing. they clearly

demonstrate that tral counsel did not fulfill their

obligation to conduct a thorough investigation of

the defendant's background See | ABA

Standards for Criminal Justice 4-4 1, commentary

p. 4 SS (2d ed 1980)

The ABA Standards for Crmunal Justice 4-4.1, Duty

to Investigate, and commentary 4.55 (2d ed.1980)

provides as follows

Standard 4-41. Duty to investigate

It 1s the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case and

to explore all avenues leading to facts relevant to

the merits of the case and the penalty in the event

of convicuon. The investigation should always

include efforts to secure information in the

possession of the prosecution and law

enforcement authorities. The duty to investigate

exists regardless of the accused's admissions or

Statements to the lawyer of facts constituting guilt

or the accused's stated desire to plead guilty.

The commentary to Wie-ebovre-standard includes the

following

The lawyer also has a substantial and important

role to perform in raising mutigating factors both

to the prosecutor initially and to the court at

sentencing This cannot effectively be done on

the basis of broad general emotional appeals or

on the strength of statements made to the lawyer

by the defendant. Information concerning the

defendant's background, education, employment

record, mental and emotional stability, family

relationships, and the like, will be relevant, as

will mutugating circumstances surrounding the

commission of the offense itself. Investigation 1s

essential to fulfillment of these functions

As early as Strickland v Washington, 466 US. 688,

Page 8

104 S$ Ct. 2052 (1984), the Supreme Court referred to

ABA guidelines when it said

Prevailing norms of practice as reflected in

American Bar Association standards and the like,

eg. ABA Standards for Criminal Justice 4-1.1 to

4- 86 (2d ed 1980) ("The Defense Function"),

are guides to determning what 1s reasonable, but

they are only guides

Clearly in the Williams case, supra, that duty was

breached. In Williams, evidence not presented at the

sentencing hearing included:

(1) documents prepared in connection with

Willams’ commutment when he was |! years old

that dramatically described mustreatment, abuse

and neglect during his early childhood,

(2) testimony that he was “borderline mentally

retarded”; and

(3) had suffered repeated head injuries and might

have mental impairments organic in nature.

Trial counsel in the Williams case failed to ascertain

the social service records regarding number (1) above

because he erroneously believed that the state law

didn't permut it. Counsel also “failed to introduce

available evidence that Williams was ‘borderline

mentally retarded’ and did not advance beyond sixth

grade in school.” Williams at p. 30. The court said

*11 It is undisputed that Williams had a right--

indeed, a constitutionally protected mght--to

provide the jury with mitigating evidence that his

trial counsel either failed to discover or failed to

offer, id at p. 29.

Was Petitioner denied that mght in this case because

counsel was ineffective in performing thew duty to

investigate”

I am not sure why counsel did not seek out school or

prison records in this case. It appears that they

thought they could rely on the experts to determine

Petitioner's general mental ability or capacity. Also

bothersome is the apparent ignoring of Dr. Gross’

advice (Exhibit 6 to Petition for Writ of Habeas

Corpus) at the end of his letter:

The possibility does remain, however, that Mr.

Rompilla while under the influence of alcohol,

can become prone to violent behavior, although

he himself strongly denies this. My

recommendation is that this area should be

further evaluated before any definite conclusions

are drawn

While acknowledging some potential mutigating

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value in one's being an alcoholic (NT. 3/28/96, p.

54), counsel did nothing to further explore it

Petitioner was, however, sent to Drs. Cooke and

Sadoff. Counsel was also aware that Petitioner had

spent quite a lot of time in jail (about 14 years prior

to being released, three months before his arrest on

this charge) (N.T. 3/28/96, pp. 47, 48), but never

sought prison records, some of which would have

alerted counsel to possible mitigating evidence.

For example, Exhibit 12 of Petitioner's Exhibits to

Petition for Habeas Corpus, in an_ Initial

Classification Summary dated March 3, 1976

identifies alcohol as a past or present problem area.

This summary was prepared by the Bureau of

Corrections, Commonwealth of Pennsylvama in

connection with Petitioner's incarceration for rape. In

Petitioners Legal History Prior to Present

Confinement and Offense Pattern, alcohol is also

checked.

In a Program Planning and Expectations dated

March 11, 1976 concerning his initial classification,

under Other Programs, the following appears:

Because of his abuse of alcohol, regular

participation in the Alcoholic Anonymous

program 1s strongly recommended.

The counselor's evaluation in that same report

concludes:

This 28 year old married non-veteran was the 6th

of mine children reared in the slum environment

of Allentown, Pa. vicinity. He early came to

attention of juvenile authomties, quit school at 16,

started a series of incarcerations in and out Penna.

often of assaultive nature and commonly related

to over-indulgence in alcoholic beverages.

A summary prepared November 27, 1964 in

connection with charges against Petitioner as a

juvenile revealed the following family background:

HOME AND FAMILY: In 1945 the City Health

Department of Allentown, Pennsylvania became

interested in this family then residing at 203

Green Street, Allentown, Pennsylvania.

Following this, the Probation Office was alerted

of neglected children. At this me, Miss Hahner

of the Catholic Children's Bureau was interested

in the family group and pleaded with the

Probation Office that the family be given an

opportunity to correct its home condition.

*12 September 6, 1945 the mother was picked up

by the police in a drunken condition at which

tume the Probation Office was obliged to enter

Page 9

into the home and family, the children were

placed in a hospital and the home of relatives at

that time, at this time the husband and father of

this farmly was in the United States Army.

June 27, 1946 the children were returned to the

mother were they resided in a basement

apartment at 11 No. Fourth Street, Allentown;

upon the husband's return home, upon discharge

from the U.S. Army, things improved slightly.

Over a period of years the mother was mussing

from home frequently for a period of one or

several weeks at a time; reports came to the

Probation Office that she would be picked up by

some man and would leave town with him during

that period. Always upon return home the

husband took her back into the house even though

he complained about her absence, there was

never any prosecution for her desertion of the

family for her moral episodes. She has been

reported over a period of years to be frequently

under the influence of alcoholic beverages, with

the result that the children have always been

poorly kept and on the filthy side which was also

the condition of the home at all umes.

PROBATION OFFICER'S NOTE: Ronald comes

from the Notorious Rompilla Farmly which has

been known to the Lehigh County Courts on

many occasions. The parents appeared to be

cooperative but thei past record indicates failure

of handling there off-spring.

This court is aware that Petitioner was born on Apnil

14, 1948. Nevertheless, this information would have

certainly been of assistance to trial counsel, had they

known it, in evaluating Petitioner's background.

Once again, an answer from Mr. Charles puts in

perspective the dilemma of public defenders, at least

in 1988, when this case was tried:

Q. Let me ask my question. What--leaving aside

your resource question, do you have any reason

why you wouldn't investigate whether your client

was raised as a homeless child?

A. | would investigate by asking my client, "How

was your childhood? Were there any problems

that you suffered? Any kind of abuse? Tell me

something about--is there anything you can tell

me from your youth ull now that can help us?

Tell me, is there anything that sticks out? Don't

think whether it's umportant or not. You just tell

us, and then we'll determine whether or not we

can use it.” Investigate it that way. Would | send

somebody to the person's elementary school to

talk to the teacher to see if they remember him

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from 25 years or 40 years before’ No. I didn't

have those resources in the office. So | would do

an mvestigation. But again, “investigate” 1s a

subjective term. Investigate given what your

resources are in light of the office. | had two

investigators and 2,000 cases. And I'm sure you

know the difficulties with budgeting caseloads

and having to get investigations done given the

resource you have. | will talk to the chent, talk to

the family, and see if anything developed from

there. If something did, we would then amplify on

it and develop it. If it didn't, we would go from

there. There's a certain point in time when you

have two or three thousand cases in a year that

you have to deal with some of the things your

chent tells you and give that some full faith and

credit and rely on it.

*13 Acknowledging the difficulues of a public

defender as explained by Mr. Charles, it seems to me

on balance that they were obliged to go a bit farther

to fulfill their duty to investigate. It is true, as the U.S.

Supreme Cour: acknowledged in Williams that a lot

of information they would discover would not be

helpful to their client. It is also true that Strickland

reminds us:

Judicial scrutiny of counsel's performance must

be highly deferential. It is all too tempting for a

defendant to second-guess counsel's assistance

after conviction or adverse sentence, and it is all

too easy for a court, examining counsel's defense

after 1t has proved unsuccessful, to conclude that

a particular act or omission of counsel was

unreasonable. Cf. Engle v. Isaac, 456 U.S. 107,

133-134 (1982). A fair assessment of attorney

performance requires that every effort be made to

eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct

from counsel's perspective at the tume. Because of

the difficulties inherent in making the evaluation,

a court must indulge a strong presumption that

counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the

defendant must overcome the presumption that,

under the circumstances, the challenged action

“mught be considered sound tral strategy.”

In this case, however, there were pretty obvious

signs, at least superficially from what counsel knew

of Petitioner's cruminal past, including his rape

conviction, that Petitioner may have had a drinking

problem, may have had a poor school record, and

probably had a_ difficult childhood. More

investigation into those areas would have uncovered

Page 10

information that at least counsel should have

considered relative to mitigation, ie. his possible

alcoholic problem, his family past, his borderline

mental retardation. Obviously, we cannot consider the

question of sound tnal strategy when counsel did not

have the information before it upon which to

strategically decide how it should or should not be

used.

It is a very close call in this case because tral

counsel performed so admirably according to my

review of the record. But, I think they had reason to

know of Petitioner's past and should not have relied

on defendant alone or his family to reveal the true

nature of his background. Case law referred to in

Petitioner's brief support his argument that in a capital

case, courts have recognized a particular duty of

counsel to thoroughly investigate defendant's

background for any possible mitigating

circumstances.

Even if counsel did not pass muster with regard to

the first prong of the Strickland test in that their

representation fell below an objective standard of

reasonableness in regard to thew duty to investigate

Petitioner's background in preparation for the penalty

phase, Petitioner must still show prejudice. To

establish this, he “must show that there is a

reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding

would have been different. A reasonable probability

is a probability sufficient to undermine confidence in

the outcome.” Strickland v. Washington, 466 U.S.

688, 104 S.Ct. 2052 (1984).

*14 The penalty phase of a first degree murder trial,

it seems to me, is in many respects the same as a

sentencing hearing in a non-capital case except the

jury ts for all practical purposes doing the sentencing

in a capital case. To the extent the sentencing

authority (whether judge or jury) does not have

essential background information, the sentencing may

be influenced one way or another. In this case, what

the sentencing authority (the jury) lacked was the

background history involving Petitioner's mental

capacity and possible alcoholism. It also lacked

information about his possible abusive childhood,

although counsel was somewhat misled in this regard.

The lack of information about these items is sufficient

to undermine the confidence in a decision which was

made in the absence of arguably important mitigation

evidence.

Because | believe the correct governing legal

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principle (i.e., Strickland ) was clearly established but

unreasonably applied, Petitioner is entitled to rehef

on this claim.

CLAIM Il. PETITIONER IS ENTITLED TO

RELIEF FROM HIS CONVICTION AND DEATH

SENTENCE BECAUSE OF THE TRIAL COURT'S

IMPROPER INSTRUCTION ON ACCOMPLICE

LIABILITY.

Sometime after the jury began it deliberations, it

forwarded the following question to the tral court:

If defendant was an accomplice to the charge of

Criminal Homicide, can he be charged with

Murder in the First Degree?

Defense counsel, Mr. Charles, properly objected to

the giving of the charge because accomplice liability

was never part of the case and defendant therefore

was neither alerted to address it through cross

examination or otherwise. The tral court felt the jury

was entitled to an answer and thus gave an answer

including an incomplete charge on accomplice

liability. He began his charge with this:

Well, preliminarily, let me say this. If you recall,

the Court, in it's Charge, at no time referred to

any theory of accomplice in this case. It is not the

Commonwealth's theory in this case that the

Defendant was an accomplice.

and concluded with this:

I can only say this to you, that you should

determine this case based on the Charge of the

Court as it had given you originally. There was

no evidence in this case with regard to the

question as posed but a simple clear answer to the

question is yes, you could be charged with, and

you could be convicted of Murder in the First

Degree if, indeed, you're an accomplice. but it

requires other proof or findings on your part that

were not a part of this case nor were they made a

part of this case.

As previously stated, | agree with Petitioner that the

accomplice instruction was incomplete, but it did not,

as Petitioner suggests, prevent the jury from

considering and giving effect to exculpatory and

mitigation evidence. Moreover, the incompleteness of

the charge was cured by the admonition that it did not

apply. Petitioner's argument that there was evidence

of an accomplice is not supported by a careful

reading of the record. His reférence to the forensic

evidence at p. 37 footnote 18 of his reply bnef do not

support an accomplice theory because:

Page 11

*15 (1) Consistent with the location of the murder

being a public bar, finding lots of hair and fibers not

being identified as Petitioners is not unusual (Vol. I,

11/25/88 N.T., p. 111);

(2) Moreover, while Petitioner's blood was not found

at the scene, the only blood that was found there was

the victim's, nobody elses; id., p. 146; and

(3) The finding of other shoe impressions at a crime

scene other than the alleged defendant's is normal

(Vol. Ill, 11/28/88 N.T., p. 50).

CLAIM III. THE TRIAL COURT'S FAILURE TO

INSTRUCT THE JURY THAT “LIFE

IMPRISONMENT" MEANS LIFE WITHOUT

POSSIBILITY OF PAROLE, EVEN AFTER THE

JURY REPEATEDLY ASKED ABOUT PAROLE

ELIGIBILITY; AND THE TRIAL COURT'S

PROVISION, INSTEAD, OF INACCURATE AND

MISLEADING INFORMATION, VIOLATED

PETITIONER'S SIXTH, EIGHTH AND

FOURTEENTH AMENDMENT RIGHTS.

This claim evolves around the following occurrence.

Shortly after the jury had retired to consider the

penalty, it requested the court to answer this question:

If a life sentence is imposed, is there any possibility

of the defendant ever being paroled? The court's

response follows:

I'm sorry to say, | can't answer that question.

That's not before you as such. The only matter

that you can consider in the Sentencing Hearing

is the evidence that was brought out in the course

of the Hearing and the Law with respect to the

Court's Charge. That's the only consideration you

have, I'm sorry to say. I-if there were other

alternatives that you should consider, we would

have outlined them in the Charge, all right. Are

there any other questions? .

Petitioner argues that under Simmons v. South

Carolina, 512 U S. 154, 114 S.Ct. 2187 (1994),

where the state secured the death sentence, at least in

part, based upon defendant's future dangeruusness,

failing to instruct the jury that under South Carolina

law, life imprisonment meant no possibility of parole,

denied defendant due process.

The prosecutor's summation in this case covers 16

pages of the notes of testimony and a fair reading of it

leads to the conclusion that the state's reasoning for

the death penalty was not based upon future

dangerousness but on the despicable, savage and

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cowardly beating the Petitioner inflicted upon his

victim. This is a close issue, however, but the

Supreme Court of Pennsylvama's decision in the

PCRA case was not an unreasonable application of

federal law

CLAIM IV. PETITIONER IS ENTITLED TO

RELIEF FROM HIS DEATH SENTENCE

BECAUSE THE (dX8) AGGRAVATING

CIRCUMSTANCE WAS

UNCONSTITUTIONALLY OBTAINED.

Petitioner in this claim asserts that the following

instruction on torture was unconstitutionally vague:

The second aggravated circumstance advanced by

the Commonwealth was that the a--the offense

was committed by means of torture. The word

“torture” is generally understood as the infliction

of a considerable amount of pain and suffering on

a victim which is unnecessarily heinous, atrocious

or cruel, manifesting exceptional depravity. There

must of necessity be more than a mere intent to

kill to be an aggravating circumstance, the law

requires an intent to cause pain and suffering in

addition to the intent to kill. There must be an

indication that the killing is not--the killer is not

satisfied with the killing alone.

*16 Petitioner relies on Maynard v. Cartwright, 486

U.S. 356, 108 S.Ct. 1853 (1988) which the Supreme

Court of Pennsylvania reasoned was not applicable to

this case. The court wrote:

Appellant appears to concede that the tnal court

gave an instruction defining torture that comports

with Pursell and its progeny. Nonetheless,

Appellant argues that the definition employed by

the court is unconstitutionally vague under

Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct.

1853, 100 L.Ed2d 372 (1988). Maynard,

however, found vague an aggravating

circumstance in the Oklahoma death penalty

statute that provided that the murder was

“especially heinous, atrocious, or cruel." 486 U.S.

at 363-64, 108 S.Ct. 1853. The Court explained

that these words alone did not guide the jury as

almost every murder could be characterized as

especially heinous, atrocious, or cruel. /d

Maynard did not imvolve an aggravating

circumstance that an offense was committed by

means of torture. In addition, the Court in

Maynard agreed that a limiting instruction that

the aggravating circumstance at issue required

torture would be constitutionally acceptable. /d.

at 364-6, 108 S.Ct. 1853. Thus, Maynard does

Page 12

not preclude defining torture as the infliction of

pain that 1s unnecessarily heinous, atrocious or

cruel, with the intent to cause pain and suffering

in addition to the intent to kill. Appellant's claim

is without ment.

I agree.

CLAIM V. PETITIONER IS ENTITLED TO

RELIEF FROM HIS DEATH SENTENCE

BECAUSE THE (d)(9) "SIGNIFICANT HISTORY"

OF FELONY CONVICTIONS AGGRAVATING

CIRCUMSTANCE IS UNCONSTITUTIONALLY

VAGUE; THE JURY INSTRUCTIONS DID NOT

CURE THIS VAGUENESS; AND THE JURY

INSTRUCTIONS, TO THE EXTENT THEY

PROVIDED GUIDANCE AT ALL, DIRECTED A

FINDING OF THIS AGGRAVATING

CIRCUMSTANCE.

The jury instruction involving this claim follows:

And the third aggravating circumstance appointed

to, by the Commonwealth, is that the Defendant

has a significance history of felony convictions

involving the use or threat of violence to the

person. And in this regard, a significant history of

prior criminal convictions involving the use or

threat of violence to the person means one--more

than one prior conviction. In other words, at least

two prior convictions before that can become an

aggravating circumstance.

Petitioner's claim of unconstitutionally vague must be

viewed, as Petitioner agrees, by the standard, "did the

adjudication by the state court result in a decision that

involved an unreasonable application of clearly

established federal law as determined by the Supreme

Court of the United States?" The thrust of Petitioner's

argument is that in finding that the aggravating factor

in question, namely; "The defendant has a significant

history of felony convictions involving the use or

threat of violence to the person", was not

unconstitutionally vague, the Supreme Court of

Pennsylvania relied on a U.S. Supreme Court case

which dealt with a mitigating factor. See Proffitt v.

Florida, 428 U.S. 242, 96 S.Ct. 2960 (1976).

Petitioner is correct that Proffitt dealt with a

mitigating factor. Specifically, Petitioner in Proffitt

argued that neither a judge or jury was capable of

determining whether he had a “significant history of

prior criminal activity.”

*17 In answering this and similar objections, the

Supreme Court said

While these questions and decisions may be hard,

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they require no more line drawing than is

commonly required of a fact finder in a lawsuit.

For example, jures have traditionally evaluated

the validity of defenses such as imsanity or

reduced capacity, both of which involve the same

considerations as some of the above-mentioned

mitigating circumstances. While the various

factors to be considered by the sentencing

authorities do not have numerical weights

assigned to them, the requirements of Furman are

satisfied when the sentencing authority's

discretion 1s guided and channeled by requiring

examunation of specific factors that argue in favor

of or against umposition of the death penalty, thus

elumunating total arbitrariness and capriciousness

in its Mposition.

The directions given to judge and jury by the

Florida statute are sufficiently clear and precise to

enable the various aggravating circumstances to

be weighed against the mitigating ones. As a

result, the trial court's sentencing discretion is

guided and channeled by a system that focuses on

the circumstances of each individual homicide

and individual defendant in deciding whether the

death penalty is to be imposed. /d. at 257-58.

Again, | do not find an unreasonable application of

the law on the vagueness issue.

More problematical is the actual charge of the court.

While I have found that it was reasonable to conclude

that the phrase “significant history” was not

unconstitutionally vague and thus, there was in effect

no vagueness for the jury instruction to cure, the

charge of the court quoted above, when read alone,

might support Petitioner's third argument in this

claum. But | think that the entire charge makes it clear

that the court is not in any way directing a finding on

this issue. The charge makes the burden of proof on

issues of aggravation quite clear.

CLAIM VI. PETITIONER IS ENTITLED TO

RELIEF FROM HIS DEATH SENTENCE

BECAUSE OF IMPROPER PROSECUTORIAL

ARGUMENT AT THE PENALTY PHASE.

As mentioned in Lesko v. Lehman, 925 F.2d 1527

(3d Cir.1991), Justice Sutherland's oft-quoted phrase

about the role of a United States Attorney is a good

Starting point for review of Claim VI. Justice

Sutherland said

The United States Attorney is the representative

not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern

impartially is as compelling as its obligation to

Page 13

govern at all; and whose interest, therefore, in a

criminal prosecution ts not that it shall win a case,

but that justice shall be done .. He may prosecute

with earnestness and vigor--indeed, he should do

so. But, while he may strike hard blows, he is not

at liberty to strike foul ones. It is as much his duty

to refrain from umproper methods calculated to

produce a wrongful conviction as it is to use

every legitimate means to bring about a just one.

awe United States, 295 U.S. 78, 88, 55 S.Ct.

629, 633, 79 L.Ed. 1314 (1935).

*18 In reviewing the 16-page closing of the

sentencing phase arguments. | did not find any such

notation but in fact found the court's opimon to have

ee

necessarily supported by the record, ic¢.,

Petitioner killed the victim so that there would be no

witness and speculation on the umpact on the victim's

famuly. As | stated earher, counsel should suck to the

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Supreme Court's finding of no prejudice ts a

reasonable application of the law

CLAIM VIL PETITIONER IS ENTITLED TO

RELIEF FROM HIS DEATH SENTENCE

BECAUSE THE TRIAL COURT IMPROPERLY

ALLOWED THE PROSECUTOR TO READ TO

THE JURY THE INFLAMMATORY AND

PREJUDICIAL TESTIMONY OF THE VICTIM OF

A PRIOR RAPE AND COUNSEL WERE

INEFFECTIVE FOR FAILING TO CITE

CONTROLLING AUTHORITY THAT WOULD

HAVE PREVENTED THE INTRODUCTION OF

THE INFLAMMATORY AND PREJUDICIAL

EVIDENCE.

The second part of this claim is not correct. Indeed,

tnal counsel attempted to stipulate that burglary was

mherently a violent crime in order to prevent a

reading of the record, but the prosecutor insisted upon

wt and the tal judge permitted it. Petitioner argues

that tal counsel! should have been aware of and cited

to the tna! court the case of Commonwealth v. Rolan.

520 Pa. 1, 549 A.2d 553 (1988) decided October 18,

1988, roughly two weeks before his trial. The Rolan

case declared that burglary was a violent crime. It did

not go on to say that therefore, the prosecutor could

not reveal to a jury the underlying facts of the crime

during the penalty phase. It was not umproper to

permut the reading of the testimony of the victim.

Defense counsel approprnately argued strenuously

against its use.

CLAIM VIIl THE SEATING OF THE JUROR

WHO VISITED THE SCENE OF THE CRIME TEN

TIMES, INCLUDING, DURING THE TRIAL

PROCEEDINGS, WHO KNEW THE VICTIM OF

THE OFFENSE AND THE VICTIM'S SON, WHO

KNEW AN EMPLOYEE OF THE PROSECUTOR'S

OFFICE AND WHO EXPRESSED SUBSTANTIAL

DOUBTS REGARDING THE PRESUMPTION OF

INNOCENCE, AND TRIAL COUNSEL'S

FAILURE TO CHALLENGE THIS JUROR FOR

CAUSE, VIOLATED PETITIONER'S SIXTH,

EIGHTH AND FOURTEENTH AMENDMENT

RIGHTS

*19 The claim as worded is somewhat of a distortion

of the examunation of the juror in question. It also

doesn't mention the fact that this particular juror

apparently got a ticket from a police officer and was

found guilty The police officer was from the

Allentown Police Department, the same department

of which the detective prosecuting the case belonged.

Page 14

Moreover, the following exchange took place during

vou dire:

Q. Okay. Now the judge told you this is going to

last about two weeks starting tomorrow,

probably. Say that you're in the end of the second

week, you've been here for a long time, you've

been deliberating and you are in the minority in

your view. Okay? Your one view differs from the

eleven others. Would you change your opinion

simply because of the pressure from the other

jurors on the lateness of the hour or would you

hold firm to your belhefs?

A. | would stick to my belief.

Q. Okay. Are you sure about that?

A. | don't think time would have anything to do

with it.

Q. Okay. Good. Because I'm sure that you realize

this is a serious case. We want your mind focused

on the evidence, okay, and not on the lateness of

the hour or other pressures. So can | have your

word that you'll hold firm?

A. Yes ma’‘am.

The entire examination of this particular juror

appearing at pages 220 to 247, Notes of Jury Vou

Dire 10/24/88, makes it clear that the concerns raised

in this claum are exaggerated. It appeared that he had

been in the bar owned by the victim about 10 umes

over the last eight years (N.T. 222). About one week

before his vou dire examination, he stopped in the

bar for a six pack. He hadn't sat down and had a drink

in the bar since about three years before the homucide

(N.T. 225). He barely knew the owner, had no

relationship with him other than to say hi (N.T. 226),

and didn't think he ever met the owner's son except

maybe one time (N.T. 226). He also said he knew an

Emil Cantro (apparently an Assistant D.A.). The juror

said, “I don't know who he is, | just met him one

time” (N.T. 231). This juror did express a lack of

understanding of the presumption of imnocence

initially, but his examination makes it clear that he

understood it and could apply it after it was explained

to him (N.T. 241- 246). This claim is without merit.

CLAIM IX. PETITIONER'S DEATH SENTENCE

SHOULD BE VACATED BECAUSE THE

ARBITRARY “PROPORTIONALITY REVIEW"

PERFORMED BY THE PENNSYLVANIA

SUPREME COURT VIOLATED HIS EIGHTH

AMENDMENT AND FOURTEENTH

AMENDMENT RIGHTS.

The Petitioner points to no federal case law in

support of this argument. As pointed out by the

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Supreme Court of Pennsylvania in Commonwealth v.

Gribble, 550 Pa. 62, 703 A.2d 426 (1997), the United

States Supreme Court has held that the Eighth

Amendment as applied to the states through the

Fourteenth Amendment does not require that a state

death penalty statute contain proportionality review.

The state court's decision in Gribble was not an

unreasonable application of Pulley v. Harris, 465

U.S. 37, 104 S Ct. 871 (1984). Referring to Gregg v

Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976); Proffitt

v. Florida, 428 U.S. 242, 96 S.Ct. 2690 (1976); Jurek

v. Texas, 428 U.S. 262, 96 S.Ct. 2950, the court in

Pulley said, "... Exarmunation of our 1976 cases makes

clear that they do not establish proportionality review

as a constitutional requirement.” Pulley at 44-45, 876.

CLAIM X. PETITIONER IS ENTITLED TO AN

EVIDENTIARY HEARING ON HIS CLAIM THAT

THE PROSECUTION VIOLATED HIS DUE

PROCESS BY INTRODUCING FALSE AND

MISLEADING EVIDENCE.

*20 This claim, according to counsel for Petitioner,

is described in the Petition itself in numbers 503-511.

What Petitioner is arguing is that the knife the

Auentown police located broken in two in a snow

bank outside the bar, had a brown handle according

to testumony at the preluminary hearing. At the mal

itself, the knife recovered at the scene had a black

handle, according to testimony. Thus, Petitioner

concludes that the knife identified at the tnal was not

the same one that was found in the snow bank.

The Notes of Testimony reveal that more than one

knife was found at the scene and the identity of one of

them as a black-handled knife found in the snow bank

is acknowledged by the victim's son as one of the

knives used at the bar (N.T. 10/25/88, p. 45). Another

knife found at the scene was described by the victim's

son as having “like a burned-orange type color”

handle (N.T. 10/25/88, p. 57). Since the fingerprints

of Petitioner were found on evidence that was not

recovered at the scene (the black-handled knife), false

1s totally unsupported by a reading of the Notes of

Testimony and appears to be based entirely on

paragraphs 507 through 510 which follow:

507. In addition to the above-descnbed fingerprint

evidence, the FBI had extensive involvement in the

investigation and prosecution of this case. Recent

revelations of possible malfeasance and incompetence

in the FBI labs raise the possibility that other false

509. In addition to the lab work done in this case,

five FBI agents testified for the prosecution. Paul A.

Bennett, employed in the FBI's Laboratory Division,

testified as to analysis of fibers found on some of the

evidence gathered in this case. NT 10/25/88 at 96,

if

itt

rift

if

BE

i

1

ij

ris

i

uy

|

|

:

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Such broad sweeping allegations form no grounds

for an evidentiary hearing much less rehef from

conviction

CLAIM XI. PETITIONER IS ENTITLED TO

RELIEF BECAUSE OF CUMULATIVE

PREJUDICIAL EFFECTS OF ERRORS IN THIS

CASE.

This case im terms of having a fair if not perfect trial

1s almost error free. Only im the sentencing phase

does the concept of a fair hearing come up somewhat

short

Ill. CONCLUSION

None of Petitioner's claims entitle him to rehef from

the jury's verdict of guilty of murder in the first

degree. None of his claims make a substantial

showing of the demal of any constitutional nght with

regard to the guilt determining phase of his tral.

Those claims are

(1) Improper instruction of accomplice lability

(Claum Il),

(2) Improper seating of a juror (Claim VIII),

(3) Introduction of false and musleading evidence

(Clamm X); and

(4) Cumulative effect of errors (Claum X]).

With regard to Claim Ill, the court believes that

Petitioner has made a substantial showing relative to

the tnal court's failure to instruct the jury that life

imprisonment means life without the possibility of

Page 16

parole, and therefore would grant a certificate of

appealability with regard to that claim only Clam III,

together with Claims I, IV, V, VI, VII and IX deal

with defects in the sentencing procedure. The relief

hereafter granted may make the granting of a

certificate of appealability as to Claim Ill

superfluous.

ORDER

AND NOW, this 11th day of July, 2000, to the extent

that the Petition addresses the guilt-determining phase

of the tnal, and the verdict convicting Petitioner of

Murder in the First Degree, the Petition is DENIED;

to the extent that the Petition addresses the penalty

phase of the trial, and the death sentence imposed

upon Petitioner, the Petition is GRANTED. The

death sentence imposed upon Petitioner is

VACATED, without prejudice, to the right of the

Commonwealth of Pennsylvania to sentence the

Petitioner to life imprisonment, or to conduct such

further proceedings as may be appropriate under state

law (including a new sentencing hearing), if initiated

within 270 days of this order.

A certificate of appealability will issue to Petitioner

(Appellant) under 28 US.C.A. 2253(cK2) as to

Claim Ill.

2000 WL 964750 (E.D.Pa.)

END OF DOCUMENT

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355 F.3d 233

(Cite as: 355 F.3d 233)

u

Briefs and Other Related Documents

United States Court of Appeals,

Third Circuit.

Argued May 22, 2002.

Filed Jan. 13, 2004.

Background: Cross-appeals were taken from an order

of the United States District Court for the Eastern

District of Pennsylvania, Ronald L. Buckwalter, J.,

2000 WL 964750, granting the petition for a writ of

habeas corpus that was filed by a Pennsylvania

prisoner who was sentenced to death.

Holdings: The Court of Appeals, Alito, Circuit

Judge, held that:

(1) mm penalty phase of capital tal, defense counsel

of petinoner's background of in failing to provide

certain background information to the psychologist

and the two psychiatrists whom they retained to

(2) even if trial judge's comments about accomplice

cured by the judge's admonition to the jury that it

should not consider that theory of liability; and

(3) Pennsylvamia Supreme Court was reasonable in

concluding that prosecutor, who attempted to

establish the aggravating factor in capital murder tal

that petitioner had a “significant history of felony

convictions,” did not argue that petitioner would

present a future danger if not sentenced to death and

therefore Simmons did not apply so as to require jury

to be informed of petitioner's parole wneligibility upon

a sentence of life imprisonment.

Affirmed in part and reversed in part.

West Headnotes

[1] Habeas Corpus @ 766

197k766

Page |

For purposes of habeas statute, a state court's

“adjudication on the merits” means a decision finally

effect, that is based on the substance of the claim

advanced, rather than on a procedural, or other,

ground. 28 U.S.C.A. § 2254.

[2] Habeas Corpus @773

197k773

Although Pennsylvania Supreme Court referred to its

own three-pronged ineffective assistance test, which it

regarded as the same as Strickland. rather than the

two-pronged Strickland test, Pennsylvania Supreme

claim on the merits, and therefore restrictive

standards of review set out habeas statute applied.

U.S.C.A. Const.Amend. 6; 28 U.S.C.A. § 2254(d)(1).

[3] Habeas Corpus = 486( 1)

197k486(1)

Strickland because it did not identify and apply actual

by the state supreme court, whether trial counsel had

a reasonable basis for the acts or omissions in

was entirely consistent with Smrickland. US.C.A.

Const.Amend. 6; 28 U.S.C.A. § 2254(d\1).

[4] Criminal Law @=641.13(7)

110k641.13(7)

Copr. © West 2004 No Claim to Orig. U.S. Govt. Works

355 F.3d 233

(Cite as: 355 F.3d 233)

[S] Habeas Corpus G42!

197k421

Under habeas statute, a state may not be deemed to

have waived exhaustion or be estopped from relying

on exhaustion unless the State, through counsel,

expressly waives the requirement. 28 US.C.A. §

2254(b){3).

[6] Habeas Corpus @= 382

197k382

In order to exhaust state remedies, a habeas petitioner

must present the petitioner's federal claim in the state

courts; it is not enough for a petitioner to advance a

similar state-law claim, rather, 4 petitioner must

present a federal claim's factual and legal substance to

the state courts in a manner that puts them on notice

that a federal claim is being asserted. 28 U.S.C.A. §

2254(b\( 1).

[7] Habeas Corpus @=499

197k499

Even if trial judge's comments about accomplice

hability were constitutionally flawed, any error was

cured by the judge's admonition to the jury that it

should not consider that theory of liability in murder

tral, and thus, federal habeas relief was not

warranted, furthermore, nothing that the judge said

foreclosed consideration of exculpatory or mitigating

evidence.

[8] Habeas Corpus 508

197kS08

Pennsylvania Supreme Court was reasonable in

concluding that prosecutor, who attempted to

establish the aggravating factor in capital murder tral

that petitioner had a “significant history of felony

convictions,” did not argue that petitioner would

present a future danger if not sentenced to death and

therefore Simmo.:s did not apply so as to require jury

to be informed of petitioner's parole ineligibility upon

a sentence of life imprisonment, and thus, habeas

relief was not warranted; even if prosecutor's

comments were meant to imply that petitoner would

present a future danger if he was ever released from

prison, prosecutor never actually argued that

petitioner presented a future threat.

*235 Amy Zapp (Argued), Semor Deputy Attorney

General, Office of Attorney General, Harrisburg, PA,

for Appellant/Cross-Appellee.

Page 2

Billy H. Nolas (Argued), David W. Wycoff, Michael

Wiseman, Defender Association of Philadelphia,

Federal Court Division, Philadelphia, PA, for

Appellee Cross-Appellant.

Before SLOVITER, ALITO, and STAPLETON,

Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

The Commissioner of the Pennsylvania Department

of Corrections (hereinafter "the Commonwealth")

appeals from a District Court order granting the

petition for a writ of habeas corpus that was filed by

Ronald Rompilla, a Pennsylvania prisoner who was

sentenced to death. The District Court ordered that

Rompilla be released unless he ts either resentenced

to life imprisonment or a new penalty phase trial is

held. Rompilla cross-appeals from the demal of his

petition insofar as it challenged his conviction. We

conclude that the Pennsylvania Swpreme Court's

decision regarding Rompilla's sentencing proceeding

was not contrary to and did not involve an

unreasonable application of clearly established

Supreme Court precedent, and therefore we reverse

the decision of the District Court with respect to

Rompilla's sentence. We affirm the decision of the

District Court with respect to his conviction. By

separate order, however, we have granted Rompilla's

application to file a successive petition for a writ of

habeas corpus so that he will be able to assert his

claim that, under Atkins v. Virginia, 536 U.S. 304,

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), he may not

be executed because of mental retardation.

*236 I.

In 1988, Rompilla was tned for the murder of James

Scanlon. Scanlon's body was found lying in a pool of

blood in his bar, the Cozy Corner Cafe in Allentown,

Pennsylvania. Scanlon had been stabbed repeatedly

and set on fire. There were no eyewitnesses to the

killing, but the Commonwealth introduced substantial

circumstantial evidence of Rompilla's guilt. In its

opinion on direct appeal, the state supreme court

summanized the prosecution's evidence as follows:

Appellant was seen in the Cozy Corner Cafe on

January 14, 1988, from approximately 1:00 a.m.

to 2:00 a.m. During that time, he was observed

going to the bathroom approximately ten times.

A subsequent police investigation determined that

the window in the men's bathroom was used as

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355 F.3d 233

(Cite as: 355 F.3d 233, *236)

the point of entry into the bar after « had closed.

When questioned by an investigating detective

from the Allentown Police Department, Appellant

stated that he had been in the Cozy Corner Cafe

on the night of the murder and left between 2:00

a.m. and 2:30 a.m. because he had no money. He

stated that he had only $2:00 to buy breakfast at a

local diner. A cab driver testified that he picked

up Appellant at the diner and drove him to two

different hotels where Appellant was unable to

rent a room. The driver then took Appellant to

the George Washington Motor Lodge where he

was able to rent a room. Appellant paid the cab

fare of $9.10.

Appellant rented a room for two nights at the

George Washington Motor Lodge. In doing so, he

paid $121.00 in cash and flashed a large amount

of cash to the desk clerks. Appellant also used a

false name when he checked in.

The police secured a search warrant for

Appellant's motel room and seized several items,

including Appellant's sneakers. These sneakers

matched a footprint in blood that was discovered

near the victim's body. In addition, the blood

found on the sneakers matched the victim's blood

type.

The Commonwealth also presented other

with the robbery and murder of James Scanlon.

First, Mr. Scanion's wallet was found by a

groundskeeper in the bushes, six to eight feet

outside the room that Appellant had rented at the

George Washington Motor Lodge. Second,

Appellant's

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