Appendix — Rainey v. Di Guglielmo (No. 07-514)

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APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT DATED MAY 18, 2007

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

C.A. No. 06-4347

(E.D. Pa. Civ. No. 05-cv-01334)

KARL RAINEY,

Appellant

DAVID DIGUGLIELMO, et al.,

Present: SLOVITER, CHAGARES AND

GREENBERG, CIRCUIT JUDGES

ORDER

The foregoing motion by Appellant for an

enlargement of the page limitation for an application for

certificate of appealability is granted. Appellant’s

application for a certificate of appealability is denied.

See 28 U.S.C. § 2253(c)(2). For essentially the reasons

discussed by the District Court, jurists of reason would

not debate the correctness of the District Court’s

decision to deny Appellant’s petition filed pursuant to

28 U.S.C. § 2254. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). Appellant has failed to make a substantial

Appendix A

showing of the denial of a constitutional right, and a

certificate of appealability will not issue. See 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003).

By the Court,

\ /s/ Morton !. Greenberg

Circuit Judge

Dated: May 18, 2007

APPENDIX B MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

FILED SEPTEMBER 7, 2006

IN THE THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

CIVIL ACTION

NO. 05-1334

KARL RAINEY

DAVID DIGUGLIELMO, et al.

MEMORANDUM

Presently before the Court is Karl Rainey’s

counseled Petition for Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2254. On January 12, 2006, Magistrate

Judge Peter B. Scuderi filed a Report and

Recommendation (“R & R”) recommending that we deny

the Petition in its entirety. On April 5, 2006, Petitioner

filed timely Objections to the R & R. For the reasons

that follow, we overrule Petitioner’s Objections, adopt

the R & R as amplified by this Memorandum, and deny

the Petition in its entirety.

Appendix B

I. BACKGROUND

On August 10, 1995, following a jury trial before the

Honorable Paul Ribner of the Philadelphia County Court

of Common Pleas, Petitioner was found guilty of the first

degree murder of Kenneth White, aggravated assault

upon Ervin Boyd, and carrying a firearm on the public

street. The Pennsylvania Superior Court (“Superior

Court”) set forth the relevant facts as follows:

[Petitioner] and the Decedent Kenneth White

had several verbal confrontations prior to the

night of the murder. On the night in question,

[Petitioner] was leaving a bar when Decedent

and his friend Ervin Boyd were entering the

bar. [Petitioner] and Decedent began to argue

as [Petitioner] walked to his car. Boyd followed

along. Upon arriving at his car, [Petitioner]

pulled a gun from his jacket and shot Decedent

several times. [Petitioner] then shot Boyd who

hid behind a parked car. [Petitioner] cleared a

j am in his gun, returned to Decedent’s body

and fired three more shots into Decedent’s

back. Then, [Petitioner] found Boyd and shot

him three more times. As [Petitioner] fled

from the scene, he ran over Boyd and dragged

him one block from the scene. Boyd survived

and Decedent bled to death. No weapon was

found on or near Decedent’s body.

1. The state court’s factual findings are accepted as correct,

absent clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e). Petitioner argues that the Commonwealth’s own

(Cont'd)

Appendix B

Commonwealth v. Rainey, 698 A.2d 110

(Pa.Super.Ct.1997) (table); No. 4275 PHL 1995, slip op.

at 2-3 (Pa.Super.Ct. Jan. 16, 1997).

Petitioner was sentenced to life imprisonment for the

murder and received concurrent sentences of 5-10 years

on the assault charge and 1-2 years on the firearms

violation. Petitioner appealed to the Superior Court,

which affirmed his judgment of conviction on January

16, 1997. Jd. at 4. Petitioner sought discretionary review

by the Pennsylvania Supreme Court, but the Supreme

Court denied allowance of appeal on November 3, 1997.

Commonwealth v. Rainey, 704 A.2d 637 (Pa.1997) (table).

On October 30, 1998, Petitioner filed apro se petition

for state collateral review pursuant to the Pennsylvania

Post Conviction Relief Act (“PCRA”), 42 Pa. Con. Stat.

Ann. § 9541. The PCRA court appointed counsel who,

on June 8, 2000, filed an amended PCRA petition. The

amended petition contended that Petitioner received

ineffective assistance of counsel because, among other

reasons: (1) trial counsel failed to call Petitioner’s

brother, Kurtis Rainey, as a witness; (2) trial counsel

failed to object to the testimony of the Commonwealth’s

ballistics expert and failed to obtain a defense ballistics

(Cont'd)

evidence at trial was that the Petitioner and the Decedent had

only one confrontation prior to the night of the shooting, and

that Petitioner attempted to peaceably leave the bar and proceed

to his car, whereas the Decedent persisted in following Petitioner

and haranguing him in a threatening manner. Such factual

distinctions are not material to this Memorandum.

Appendix B

expert; and (3) appellate counsel failed to raise the issue

of jury recantation. Commonwealth v. Rainey, No. 0710,

slip op. at 2 (Phila.Ct.Com.P1. Nov. 17, 2003). On June 4,

2002, after a hearing, the PCRA court dismissed the

amended petition as being without merit. /d. Petitioner

appealed to the Superior Court, asserting his ineffective

assistance of counsel claims and contending as well that

the PCRA court improperly denied his request to retain

the state-funded services of an independent expert

ballistics examiner. Commonwealth v. Rainey, 863 A.2d

1229 (Pa.Super.Ct.2004) (table); No. 2861 EDA 2002, slip

op. at 2 (Pa. Super Ct. Sept. 9, 2004). On September 9,

2004, the Superior Court affirmed the PCRA court’s

decision, id., and on February 22, 2005, the Pennsylvania

Supreme Court denied Petitioner’s request for allowance

of appeal. Commonwealth v. Rainey, 868 A.2d 1199

(Pa.2005) (table).

On March 25, 2005, Petitioner filed the instant

Petition for Writ of Habeas Corpus, raising the claims

that Petitioner had previously asserted before the PCRA

court and before the Superior Court on appeal. The

Magistrate Judge issued a Report and Recommendation

(“R & R”) advising that the Petition be denied in its

entirety because it fails on the merits. Petitioner’s

Objections to the R & R present no new issues or

arguments; Petitioner primarily contends that the

Magistrate Judge failed to appreciate the extent to which

evidence that there was a second gunman could have

exonerated Petitioner and, as a consequence, incorrectly

analyzed the claims presented in the instant Habeas

Petition.

Appendix B

II. STANDARD OF REVIEW

Where a habeas petition has been referred to a

magistrate judge for an R & R, the district court “shall

make a de novo determination of those portions of the

report or specified proposed findings or

recommendations to which objection is made.... [The

court] may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the

magistrate.” 28 U.S.C. § 636(b).

The instant Petition was filed pursuant to 28 U.S.C.

§ 2254, which allows federal courts to grant habeas

corpus relief to prisoners “in custody pursuant to the

judgment of a State court only on the ground that he is

in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C.A. § 2254(a).

Since it was filed after April 24, 1996, this Petition is

governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), PL. 104-132, 110 Stat.

1214; see Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

Section 2254(d)(1), as amended by the AEDPA, provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was

contrary to, or involved an

unreasonable application of, clearly

Appendix B

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.A. § 2254(d)(1). Under the AEDPA, a state

court’s legal determinations may only be tested against

“clearly established Federal law, as determined by the

Supreme Court of the United States .” See 28 U.S.C.A.

§ 2254(d)(1). This phrase refers to the “holdings, as

opposed to the dicta” of the United States Supreme

Court’s decisions as of the time of the relevant state court

decision. Williams v. Taylor, 529 U.S. 362, 412 (2000).

To apply the AEDPA standards to pure questions of

law or mixed questions of law and fact, federal habeas

courts initially must determine whether the state court

decision regarding each claim was contrary to clearly

established Supreme Court precedent. Werts v. Vaughn,

228 F3d 178, 197 (3d Cir.2000). A state court decision

may be contrary to clearly established federal law as

determined by the United States Supreme Court in two

ways. See Williams, 529 U.S. at 405. First, a state court

decision is contrary to Supreme Court precedent where

the court applies a rule that contradicts the governing

law set forth in United States Supreme Court cases. /d.

Alternatively, a state court decision is contrary to

Appendix B

Supreme Court precedent where the state court

confronts a case with facts that are materially

indistinguishable from a relevant United States Supreme

Court precedent and arrives at an opposite result. /d. at

406. If relevant United States Supreme Court precedent

requires an outcome contrary to that reached by the

state court, the federal habeas court may grant relief at

this juncture. Matteo v. Superintendent S.C.I. Albion,

171 F.3d 877, 890 (3d Cir.1999).

If the state court decision is not contrary to

precedent, the court must evaluate whether the state

court decision was based on an unreasonable application

of Supreme Court precedent. Jd. A state court decision

can involve an “unreasonable application” of Supreme

Court precedent if the state court identifies the correct

governing legal rule but unreasonably applies it to the

facts of the particular state prisoner’s case. Williams,

529 U.S. at 407. To grant a writ of habeas corpus under

the unreasonable application prong, the federal court

must determine that the state court’s application of

clearly established federal law was objectively

unreasonable. /d. at 409; Werts, 228 F3d at 197. A federal

court cannot grant a writ of habeas corpus simply by

concluding in its independent judgment that the state

court applied clearly established federal law erroneously

or incorrectly; mere disagreement with a state court’s

conclusions is insufficient to justify relief. Williams, 529

U.S. at 411; Matteo, 171 F3d at 891. In determining

whether the state court’s application of the Supreme

Court precedent is objectively unreasonable, habeas

courts may consider the decisions of inferior federal

courts. Matteo, 171 F3d at 890.

10a

Appendix B

Section 2254 further mandates heightened deference

to state court factual determinations by imposing a

presumption of correctness. 28 U.S.C.A. § 2254(e)(1).

The presumption of correctness is rebuttable only

through clear and convincing evidence. /d. Clear and

convincing evidence is evidence that is “so clear, direct,

weighty and convincing as to enable the jury to come to

a clear conviction, without hesitancy, of the truth of the

precise facts in issue.” United States Fire Ins. Co. v.

Royal Ins. Co., 759 F2d 306, 309 (3d Cir.1985).

III. DISCUSSION

A. Ineffective Assistance of Counsel

Petitioner accepts the standard of review the

Superior Court identified as governing ineffective

assistance of counsel claims but argues that the Superior

Court unreasonably applied it to the facts of his case.

The Superior Court used the following standard in

analyzing Petitioner’s claims of ineffective assistance of

counsel in his PCRA petition:

[t]o prevail on a claim that counsel was

constitutionally ineffective, the [Petitioner]

must overcome the presumption of

competence by showing that: (1) the

underlying claim is of arguable merit; (2) the

particular course of conduct pursued by

counsel did not have some reasonable basis

designed to effectuate [Petitioner’s] interests;

and (3) but for counsel’s ineffectiveness, there

lla

Appendix B

is a reasonable probability that the outcome

of the challenged proceeding would have been

different. A failure to satisfy any one prong of

the test for ineffectiveness will require

rejection of the claim.

Commonwealth v. Rainey, No. 2861 EDA 2002, slip op.

at 3 (citing Commonwealth v. Wharton, 811 A.2d 978

(Pa.2002)). The Pennsylvania Supreme Court has

determined that this standard is the same as that set

forth by the United States Supreme Court inStrickland

v. Washington, 466 U.S. 668 (1984). Young v. Vaughn,

Civ. A. No. 00-3512, 2002 U.S. Dist. LEXIS 4094, at * 18

(Mar. 6, 2002) (citing Commonwealth v. Pierce, 527 A.2d

973, 975-76 (Pa.1987)). The United States Court of

Appeals for the Third Circuit has also examined this

standard and has determined that its application does

not contradict the Supreme Court’s holding in Strickland

and, therefore, is not contrary to established Supreme

Court precedent. Werts, 228 F3d at 204,

In Strickland, the Supreme Court held that criminal

defendants have a Sixth Amendment right to

“reasonably effective” legal assistance, 466 U.S. at 687,

and set forth a two-prong test for determining ineffective

assistance of counsel. A defendant first must show that

counsel’s performance was so deficient that it fell below

an objective standard of reasonableness under prevailing

professional norms. /d. at 688. “This requires showing

that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” /d. at 687. “In evaluating counsel’s

12a

Appendix B

performance, (the court is} ‘highly deferential’ and

‘indulge[s] a strong presumption’ that, under the

circumstances, counsel’s challenged actions ‘might be

considered sound ... strategy.’ ” Buehl v. Vaughn, 166

F3d 163, 169 (3d Cir.1999) (quoting Strickland, 466 U.S.

at 689). “Because counsel is afforded a wide range within

which to make decisions without fear of judicial second-

guessing, [ ] it is ‘only the rare claim of ineffectiveness

of counsel that should succeed under the properly

deferential standard to be applied in scrutinizing

counsel’s performance.’ “ /d. (citing United States v.

Gray, 878 F:2d 702, 711 (3d Cir.1989)).

If a defendant shows that counsel’s performance was

deficient, he then must show that the deficient

performance prejudiced the defense. Strickland, 466

U.S. at 687. “This requires showing that counsel’s errors

were So serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.” /d. Defendant 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.” /d. at 694. “[A] court need

not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.” /d. at

697. “If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice ... that

course should be followed.” /d.

l3a

Appendix B

1. Failure to present the testimony of Kurtis

Rainey

In his first objection, Petitioner contends that his

trial counsel’s failure to present his brother Kurtis

Rainey’s testimony constitutes ineffective assistance

under any reasonable application of Supreme Court

precedent. Petitioner maintains that his brother’s

testimony would have significantly supported his

contention at trial that he acted in self defense in the

death of Kenneth White. Indeed, Petitioner does not

dispute that he fired at least two shots from a. 380 caliber

pistol at White, but he insists that he fired the shots only

upon the legitimate belief that White was reaching inside

his coat for a gun. (8/9/95 N.T. at 52-58, 95, 97-99.) At

Petitioner’s trial, the medical examiner, Dr. Stephanie

Mills, testified that the Decedent suffered eight gunshot

wounds to the chest, the abdomen, and the back. (8/8/95

N.T. at 113, 127.) The Decedent’s wounds were created

by both .380 caliber and 9 millimeter caliber bullets. (8/

8/95 N.T. at 83-84.) The Commonwealth put on evidence

by a ballistics experts, Lieutenant Mark Stephan, who

testified that 9 millimeter ammunition can be fired from

a .380 caliber firearm. (8/8/95 N.T. at 88-89, 103.) The

Commonwealth relied on that testimony to argue at trial

that all of the shots to the Decedent originated with the

Petitioner. (8/9/95 N.T. at 111-12, 119-120.) The

Commonwealth further asserted that, since the

Decedent was shot through the back, Petitioner could

not possibly have been acting in self defense. (8/9/95 N.T.

at 106-07, 113-16, 119-120.) Petitioner, in contrast,

testified at trial that, although he was responsible for

14a

Appendix B

frontal wounds to the Decedent, having shot the

Decedent in fear for his life, he was not responsible for

the additional wounds to the Decedent’s back. (8/9/95

N.T. 58-61, 100-02). Petitioner maintained that there was

a second gunman-his friend, Kevin Williams-who was

present at the scene, armed with a 9 millimeter pistol,

and who, without Petitioner’s consent or prior

agreement, fired the final, ultimately fatal, shots into

the Decedent’s back while the Decedent was already

disabled. (8/9/95 N.T. at 58-61, 78-79, 100-102.) Petitioner

argues that such a scenario militates in favor of self-

defense and that corroborating testimony from his

brother was critical to its believability.

Petitioner attached an affidavit from his brother to

his PCRA petition, and Kurtis Rainey testified at

Petitioner’s PCRA hearing. At the time of the hearing,

Kurtis Rainey was an officer with the West Whiteland

Township, Pennsylvania police department. (6/21/2001

N.T. at 31, 34.) In his affidavit and hearing testimony,

Kurtis Rainey stated that on the day of the shooting,

Petitioner and Williams visited him and related a version

of what had happened that was consistent with

Petitioner’s trial testimony. (Kurtis Rainey Aff. 1% 3;

6/21/2001 N.T. at 32.) In the process of describing the

events of the early morning, Williams told Kurtis Rainey

that “the motherfucker tried to get your brother. . . . Your

brother shot them and then I finished it.” (Kurtis Rainey

Aff. 1 4; 6/21/2001 N.T. at 32.) Kurtis Rainey observed

that Williams was carrying a silver-plated 9 millimeter

pistol. (Kurtis Rainey Aff. 1 4; 6/21/2001 N.T. at 33.)

Kurtis Rainey informed Petitioner’s trial counsel of these

lSa

Appendix B

facts, indicated a willingness to testify on Petitioner’s

behalf, and was present and available at trial. (Kurtis

Rainey Aff. 11 6-7; 6/21/2001 N.T. at 33.)

On post-conviction review, the Superior Court found

under the equivalent of Strickland’s prejudice prong that

Petitioner’s trial counsel was not ineffective for failing

to present Kurtis Rainey’s testimony. The Superior

Court wrote that

[iJn light of [Petitioner’s] admission at trial

that he intended to shoot the victims, and the

evidence that the cause of death was the result

of multiple gunshot wounds and not any one

isolated wound, the introduction of testimony

by [Petitioner’s] brother which referenced a

second gunman would not have exonerated

[Petitioner]. As such, [Petitioner’s] accusation

of ineffective assistance of counsel fails

because the underlying argument is without

merit.” ”

2. The Superior Court also noted that, at Petitioner’s PCRA

hearing, his trial counsel testified that he met and discussed with

Kurtis Rainey the alleged confession by Williams and that he

investigated it extensively, interviewing a “number of other

witnesses prior to trial to in connection with determining that

alleged confession, its existence, non-existence, validity.” (9/21/

01 N.T. at 6.) Upon failing to locate Williams or to find anyone

who could verify the alleged confession, trial counsel elected not

to present the testimony fearing that “the bias of Kurtis Rainey

would be harmful to his brother Karl given the fact that they

were brothers.” (9/21/01 N.T. at 7.) The Superior Court wrote

(Cont'd)

l6a

Appendix B

Commonwealth v. Rainey, No. 2861 EDA 2002, slip op.

at 5.

Petitioner argues that this conclusion is

unreasonable based on the evidence at trial. Petitioner

maintains that his brother’s testimony would have

confirmed that he had not fabricated the existence of a

second gunman with a 9 millimeter handgun, and that

he did not have the intent to kill associated with shooting

an incapacitated man through the back. Petitioner

contends that he had a credible claim of self-defense,

based in part on the reputations of White and Boyd for

carrying guns and shooting people (8/9/95 N.T. at 46-47,

51-53), and it was essential to that defense to introduce

all available evidence that it was Williams who, in the

heat of the moment or for reasons of his own, decided to

execute White.

We agree with the Magistrate Judge that the

Superior Court’s application of the federal law set forth

in Strickland was not objectively unreasonable;

Petitioner cannot demonstrate the requisite probability

that the outcome of his proceeding would have been

different if the jury had heard his brother’s testimony

regarding the existence a second shooter. “In considering

whether a petitioner suffered prejudice, the effect of

counsel’s inadequate performance must be evaluated in

(Cont'd)

that “it is well established that ineffective assistance of counsel

will not be found where there is a reasonable basis for counsel’s

decision based on a matter of trial strategy.” Commonwealth v.

Rainey, No. 2861 EDA 2002, slip op. at 5.

17a

Appendix B

light of the totality of the evidence at trial: a verdict or

conclusion only weakly supported by the record is more

likely to have been affected by errors than one with

overwhelming record support.” Rolan v. Vaughn, 445

F.3d 671, 681-82 (3d Cir.2006) (quotation omitted).

Petitioner testified that he saw Williams stand over

White and shoot him, and his lawyer argued the existence

of asecond gunman in his closing statements. (8/9/95 N.T.

at 58-61, 100-102.) Even if Kurtis Rainey had been

allowed to bolster the second gunman theory through

his own testimony, the jury might have rejected his

account based upon the conflicting testimony of Boyd.

Boyd stated at trial that, although he admittedly did not

see the face of the person who shot White in the back,

from what heard while lying injured underneath a car,

he believed Petitioner was responsible. (8/7/95 N.T. at

96-99, 122-124.) In addition, the Commonwealth called

as a witness Kevin White, a disc jockey on the scene of

no relation to the Decedent, who testified that the same

person, identifiable by his quarter-length black leather

jacket, fired all of the shots to White. (8/8/95 N.T. at 21-

25.) Even if the jury had believed that there had been a

second shooter, the undisputed fact that Petitioner shot

an unarmed man at least two times and the testimony of

Dr. Mills that “(t]he cause of death was multiple gunshot

wounds to the chest and the abdomen and the back,”

could have led the jury to conclude that Petitioner

committed first degree murder. (8/8/95 N.T. at 73, 127.)

Accordingly, we find that the Superior Court’s decision

to affirm that trial counsel was not ineffective for failing

to introduce testimony from Petitioner’s brother was not

contrary to Supreme Court precedent.

18a

Appendix B

2. Failure to object to and present

independent ballistics evidence

Petitioner asserts that his trial counsel was

ineffective for failing to object to the testimony of the

Commonwealth’s ballistics expert, Lieutenant Stephan,

that both the .380 caliber and the 9 millimeter bullets

that penetrated the Decedent’s chest, abdomen, and back

could have been fired from the same .380 caliber firearm.

(8/8/95 N.T. at 88-89.) Petitioner asserts that this

evidence was highly conjectural given that its scientific

basis was that the expert had fired 9 millimeter bullets

from a. 380 caliber firearm on a single occasion and that

two live 9 millimeter rounds found on the street in the

vicinity of the shooting had deformities that might have

been indicative of a feed problem. (8/8/95 N.T. at 89-94,

104-05.) Petitioner contends that his trial counsel should

have challenged Lieutenant Stephan’s testimony as

inadmissible on the ground that it ran afoul of

Pennsylvania’s evidentiary prohibition against the

admission of expert testimony based on “conjecture or

guesswork.” See Commonwealth v. Britcher, 563 A.2d

502, 508 (Pa.Super.Ct.1989).

Petitioner also contends that his trial counsel was

ineffective for failing to undermine the Commonwealth’s

single gunman theory by presenting countervailing

expert testimony. Petitioner has submitted a detailed

report from Gerald Styers, a forensic consultant, which

indicates that the firing of 9 millimeter ammunition from

a. 380 caliber weapon is highly unlikely, and that if such

a firing had taken place at the crime scene, there should

19a

Appendix B

have also been distortions on the fired cartridge cases,

something Lieutenant Stephan never addressed.

(Pet.Obj.Ex.O.) The report additionally explains that

numerous factors may have caused the deformities on

the live ammunition observed by Lieutenant Stephan,

including dirt in the firearm. ( /d.) Petitioner asserts that

such independent expert information could have been

used effectively in cross examination, could have been

the subject of affirmative defense testimony, and might

even have been used in limine to support the exclusion

of Lieutenant Stephan’s testimony. According to

Petitioner, the Commonwealth was only able to argue

with any authority that Petitioner was the only shooter

because of trial counsel’s failures.

The Superior Court held, with respect to trial

counsel’s handling of the ballistics evidence, that there

was no reason to disturb the PCRA court’s ruling that

“trial counsel had a reasonable basis designed to

effectuate [Petitioner’s] interests under the given

circumstances,” and therefore, that trial counsel’s

performance was not outside the range of reasonable

professional judgment. Commonwealth v. Rainey, No.

2861 EDA 2002, slip op. at 7. The Superior Court relied

upon trial counsel’s testimony at Petitioner’s PCRA

hearing. Trial counsel testified, regarding his failure to

make objections, as follows:

“(Lieutenant Stephan’s] testimony was

basically I wouldn’t say worthless but it had

no weight to it given the fact that he conceded

it could have been fired from the same firearm

20a

Appendix B

or could have been fired from two or not, he

didn’t know. So as a practical matter I don’t

know if his testimony really carried much

weight. ... When he testified and made it plain

that he could not say one way or another

whether [the bullets] were fired from one [1]

gun or two [2] guns or more than two [2] guns,

as a practical matter objecting to it really

would not have served the purpose for a couple

of reasons. Number one is that the jury

already heard it. Two, I didn’t want to

emphasize it for the jury. And three is if I could

save it for argument and say, listen, he wasn’t

able to say definitively one way or the other,

his testimony has no weight and no

significance.

(6/21/01 N.T. at 17, 20.) Regarding his failure to hire an

independent ballistics expert, trial counsel said that he

did not need an expert to refute what he thought was

simply the inference that the cartridges might have been

fired from the same gun. (6/21/01 N.T. at 8.) He added

that, because no guns had been recovered (Petitioner

threw his weapon into the Schuylkill River), he knew

that it was impossible for any ballistics expert to connect

the bullets recovered from the crime scene to a specific

firearm. (6/21/01 N.T. at 17, 20.) Based upon trial

counsel’s testimony, we conclude that the Superior Court

was not objectively unreasonable in finding that the

PCRA court correctly decided that counsel’s ballistics-

related decisions were strategically defensible. See

Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir.2006)

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Appendix B

(“Strickland and its progeny make clear that counsel’s

strategic choices will not be second-guessed by post hoc

determinations that a different trial strategy would have

fared better.” (internal citations omitted)).

Moreover, with respect to trial counsel’s failure to obtain

a ballistics expert for the defense, we agree with the

Magistrate Judge that Petitioner has not established that

there is a reasonable probability that the results of his

trial would have been different if a defense expert had

been made available. The testimony of the defense expert

could have indicated that it was more, rather than less,

likely that the bullets collected from the crime scene

were produced from two separate firearms, but

Lieutenant Stephan also allowed for the possibility of

two gunmen in his testimony. (8/8/95 N.T. 94-95, 99 (“I

am not certain-scientifically certain, .. . that [the fired

cartridge cases] came from the same firearm. So I am

saying, it is my opinion that it’s possible that they did,

but I can’t be sure.”).) Trial counsel emphasized on cross

examination that Lieutenant Stephan believed that there

could have been two gunmen:

Q. But you are not excluding the possibility

that they [the fired cartridge cases] could have

come from two firearms; is that correct?

A. No, I can’t. Not scientifically, no.

Q. You can’t exclude the possibility that the

.380s came from a .380 or a9 millimeter came

from a 9 millimeter, can you?

22a

Appendix B

A. Correct.

(8/8/95 N.T. at 106.) In addition, we have already found

that the Superior Court was not unreasonable in deciding

that even if Petitioner had conclusively established the

existence of a second shooter, such evidence might not

have influenced the outcome of the trial. Accordingly,

we conclude that the Superior Court’s decision, to affirm

that trial counsel’s failure to object to the testimony of

the Commonwealth’s ballistics expert and failure to

produce a defense ballistics expert was not ineffective

assistance, did not reflect an unreasonable application

of Supreme Court precedent.

3. Failure to raise issue of juror recantation

of appeal

Petitioner maintains that his appellate counsel was

ineffective for failing to raise the issue of juror

recantation on direct appeal. The relevant facts, as set

forth by the Superior Court, are as follows:

the jury submitted its verdict in open court;

the jury was polled upon the request of

[Petitioner] whereby all members concurred;

the verdict was recorded; the jury

acknowledged in the affirmative the verdict

as recorded; and the jury was discharged to

reconvene the following day for sentencing.

The following day, prior to the sentencing

hearing beginning, one juror recanted his

verdict on his own volition.

23a

Appendix B

Commonwealth v. Rainey, No. 2861 EDA 2002, slip op.

at 8. The Superior Court found that appellate counsel’s

failure to argue juror recantation did not fall outside the

range of reasonable professional assistance because the

underlying issue was without merit, and it thereby

denied this claim of counsel ineffectiveness under the

equivalent of Strickland’s performance prong. /d. at 9.

It is well-settled that an attorney cannot be found

ineffective for failing to raise a meritless claim. See

Strickland, 466 U.S. at 691 (1984); United States v.

Sanders, 165 F3d 248, 253 (8rd Cir.1999). Petitioner

contends that his claim is not meritless because, while

the rule in Pennsylvania is that “after a verdict is

recorded, and after the jury has been separated and

discharged, jurors may not invalidate or impeach a

verdict by their testimony,” Commonwealth v. Patrick,

206 A.2d 295, 297 (1965), his jury was not discharged at

the time of the impeachment, as it had yet to convene

for sentencing. The Superior Court addressed this

contention directly and concluded that “even though the

same members of the jury were to reconvene for

sentencing the following day, they were effectively

discharged from the guilt phase of the trial. The law is

clear, that after a jury verdict is duly recorded and the

jury has been discharged, individual jurors may not

invalidate or impeach their verdict by their own

testimony without claiming outside influence.”

Commonwealth v. Rainey, No. 2861 EDA 2002,

slip op. at 9 (citing Patrick, 206 A.2d at 295;

Commonwealth v. Spencer, 393 A.2d 895

(Pa.Super.Ct.1978); Commonwealth v. Stark, 526 A.2d

24a

Appendix B

383 (Pa.Super.Ct.1987)). The Third Circuit instructs that

“it is not the province of a federal habeas court to

reexamine state-court determinations on state-law

questions....’” Warren v. Kyler, 422 F.3d 132, 136 (3d

Cir.2005) (quoting Estelle v. McGuire, 502 U.S. 62, 67-

68 (1991)); cf Williams v. Price, 343 F3d 223, 235 (3d

Cir.2003) (noting that enforcement of Pennsylvania’s “no

impeachment rule” is a matter for Pennsylvania courts).

Accordingly, we assume that the Superior Court’s

interpretation of Commonwealth law governing juror

recantation is correct. We conclude, therefore, that

appellate counsel was not ineffective for failing to raise

juror recantation when the juror in question was not

permitted to impeach his own verdict. We further

conclude that the Superior Court did not unreasonably

apply Supreme Court precedent in affirming the PCRA

court’s decision in this regard.

B. PCRA Court Error

Petitioner argues that the PCRA court violated his

due process and equal protection rights when it denied

his request for a ballistics expert at state expense.

Petitioner argues that he was entitled to an expert under

the Supreme Court precedent established by Ake v.

Oklahoma, 470 U.S. 68 (1985). Ake addressed the rights

of indigent criminal defendants, whose sanity is in issue,

to state-sponsored psychiatric assistance in preparing

their defenses. The Supreme Court identified three

factors to be used in determining whether the state must

fund access to such expertise:

25a

Appendix B

The first is the private interest that will be

affected by the action of the State. The second

is the governmental interest that will be

affected if the safeguard is to be provided. The

third is the probable value of the additional or

substitute procedural safeguards that are

sought, and the risk of an erroneous

deprivation if those safeguards are not

provided.

Id. at 77. The Superior Court upheld the PCRA court’s

decision not to provide Petitioner with a state-sponsored

ballistics expert based on its finding that Petitioner

offered “no reasonable support as to how a ballistics

expert would further [his] argument regarding a second

gunman.” Commonwealth v. Rainey, No. 2861 EDA

2002, slip op. at 7. Petitioner contends that the Superior

Court’s conclusion is unreasonable. Petitioner asserts

that the Commonwealth’s use of its own ballistics expert

at trial demonstrates that the issue of whether there

were one or two gunmen was clearly important and that

it was nonsensical for the Superior Court to conclude

that countervailing expert testimony would not have

contributed to Petitioner’s ability to rebut the one

gunman theory.

We assume—for argument purposes only-that Ake

is applicable outside the context of a psychiatric defense

at the trial court level. See Caldwell v. Mississippi, 472

U.S. 320, 323 n. 1 (1985) (stating that Ake did not require

the appointment of a criminal investigator, a fingerprint

expert, and a ballistics expert, where the defendant

26a

Appendix B

offered “little more than undeveloped assertions t.iat the

requested assistance would be beneficial,” and refusing

to reach the question of “what if any showing would have

entitled a defendant to assistance of the type here

sought”). Although the Superior Court did not explicitly

rely on Ake, its rationale for denying Petitioner’s request

coincides with Ake’s third prong, and we will, therefore,

give its decision deference. See Matteo, 171 F.3d at 890.

Petitioner acknowledges that on collateral review he was

able to represent to the PCRA court how he thought an

independent ballistics expert would have helped his

defense. For example, Petitioner provided the PCRA

court with an offer of proof from a forensic consultant

stating that determination of whether the .380 and 9

millimeter caliber cartridges were fired from the same

firearm required microscopic examination.

(Pet.Obj.Ex.L.) Petitioner also submitted an offer of

proof from the manufacturer of his .380 pistol, which

stated that only early models could be forced to function

with 9 millimeter ammunition. (Pet.Obj.Ex.M.) We find

that, with respect to Petitioner’s claims on collateral

review, a full-length independent report by a state-

funded ballistics expert would have added little probative

value. Accordingly, we decide that the Superior Court

was not in error in affirming the PCRA court’s decision

to deny Petitioner the appointment of a ballistics expert.

IV. CONCLUSION

For the foregoing reasons, we conclude that the

instant Petition is without merit. Accordingly, the

Petition is denied. Moreover, as Petitioner has failed to

27a

Appendix B

make a substantial showing of the denial of a

constitutional right, the Court further concludes that

there is no basis for the issuance of a certificate of

appealability pursuant to 28 U.S.C. § 2253(c)(2). An

appropriate order follows.

28a

Appendix B

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 05-1334

KARL RAINEY

DAVID DIGUGLIELMO, et al.

ORDER

AND NOW, this 6th day of September, 2006, upon

careful and independent consideration of the Petition for

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

all attendant and responsive briefing, after review of the

Report and Recommendation of United States

Magistrate Judge Peter B. Scuderi, and in consideration

of Petitioner’s Objections to the Report and

Recommendation and all submissions filed in response

thereto, IT IS HEREBY ORDERED THAT:

1. Petitioner’s Objections to the Report and

Recommendation are OVERRULED;

2. The Report and Recommendation is

APPROVED and ADOPTED to the extent that

it is not inconsistent with the accompanying

Memorandum;

29a

Appendix B

The Petition for Writ of Habeas Corpus filed

pursuant to 28 U.S.C. § 2254 is DENIED;

A certificate of appealability pursuant to 28

U.S.C. § 2253(c)(2) is DENIED; and

The Clerk shall CLOSE this case statistically.

BY THE COURT:

s/ John R. Padova

John R. Padova, J.

30a

APPENDIX C — REPORT AND

RECOMMENDATION OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA FILED JANUARY 12, 2006

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

No. 05-1334

KARL RAINEY

DAVID DIGUGLIELMO, et al.

REPORT AND RECOMMENDATION

This is a counseled petition for writ of habeas corpus

filed pursuant to 28 U.S.C. § 2254 by Karl Rainey

(“Petitioner”), an individual currently incarcerated in the

Graterford State Correctional Institution. For the

reasons that follow, I recommend that the petition be

denied.

FACTS AND PROCED(URAL HISTORY:

The relevant facts, set forth by the Pennsylvania

Superior Court, are as follows:

[Petitioner] and the Decedent Kenneth White

had several verbal confrontations prior to the

3la

Appendix C

night of the murder. On the night in question,

[Petitioner] was leaving a bar when Decedent

and his friend Ervin Boyd were entering the

bar. [Petitioner] and Decedent began to argue

as [Petitioner] walked to his car. Boyd followed

along. Upon arriving at his car, [Petitioner]

pulled a gun from his jacket and shot Decedent

several times. [Petitioner] then shot Boyd who

hid behind a parked car. [Petitioner] cleared a

jam in his gun, returned to Decedent’s body

and fired three [3] more shots into Decedent’s

back. Then, [Petitioner] found Boyd and shot

him three [3] more times. As [Petitioner] fled

from the scene, he ran over Boyd and dragged

him one [1] block from the scene. Boyd

survived and Decedent bled to death. No

weapon was found on or near Decedent’s body.

Commonwealth v. Rainey, 698 A.2d 110 (Pa.Super.1997)

(table); No. 4275 PHL 1995, at 2-3 (Pa.Super.Jan.16,

1997) (unpublished memorandum), attached to Resp’t

Answer as Ex. “A.”

On August 10, 1995, a jury sitting before the

Honorable Paul Ribner, Court of Common Pleas of

Philadelphia County, found Petitioner guilty of first

degree murder, aggravated assault, and possession of

an instrument of crime. The jury reached a verdict of

life imprisonment for the murder conviction. The court

sentenced Petitioner to concurrent terms of five (5) to

ten (10) years of imprisonment for the assault charge

and six (6) to twelve (12) months of imprisonment for

the weapons charge.

32a

Appendix C

Petitioner filed a direct appeal in the Pennsylvania

Superior Court claiming:

(1) there was insufficient evidence to prove

first degree murder, specifically that the

Commonwealth failed to prove beyond a

reasonable doubt that he did not act in self

defense; and

(2) the verdict was against the weight of the

evidence.

On January 16, 1997, the Superior Court affirmed the

judgment of sentence. Commonwealth v. Rainey, supra.

The Pennsylvania Supreme Court denied allocatur on

November 3, 1997. Commonwealth v.. Rainey, 704 A.2d

637 (Pa.1997) (table).

On October 30, 1998, Petitioner sought relief under

Pennsylvania’s Post Conviction Relief Act (““PCRA”), 42

Pa. Con. Stat. § 9541, et seg. Counsel was appointed to

file an amended PCRA petition. An evidentiary hearing

was held on June 21, 2001, before the Honorable William

J. Mazzola, Court of Common Pleas of Philadelphia

County. On June 4, 2002, Judge Mazzola dismissed

Petitioner’s PCRA petition, Commonwealth v. Rainey,

No. 0710 (Phila.Ct.Com.Pl. Nov. 17, 2003) attached to

Resp’t Answer as Ex. “B.”

33a

Appendix C

Petitioner filed an appeal in the Pennsylvania

Superior Court claiming:

(1) ineffective assistance of trial counsel for

failing to:

(a) present the testimony of Kurtis

Rainey;

(b) obtain a ballistics expert for the

defense;

Commonwealth’s ballistics expert;

(2) ineffective assistance of appellate counsel

for failing to raise on appeal his motion for

mistrial after one juror recanted his verdict

after the verdict had been recorded, but before

the jury was discharged; and

(3) PCRA court error for dismissing

Petitioner’s PCRA petition without appointing

a ballistics expert to render a report.

The Superior Court affirmed the denial of PCRA relief

on September 8, 2004. Commonwealth v. Rainey, No.

2861 EDA 2002 (Pa.Super.Sept.8, 2004) (unpublished

memorandum). On February 22, 2005, the Pennsylvania

Supreme Court denied Petitioner’s petition for allowance

of appeal. Commonwealth v. Rainey, 499 E.D. Allocatur

Docket 2004.

34a

Appendix C

On March 23, 2005, Petitioner filed the instant

petition for writ of habeas corpus advancing the claims

he presented on collateral appeal. Respondents have

filed an answer arguing that Petitioner is not entitled to

habeas corpus relief because his claims are meritless.

DISCUSSION

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”), which became effective on April 24, 1996,

amended the standards for reviewing state court

judgments in federal habeas petitions filed under 28

U.S.C. § 2254. Werts v. Vaughn, 228 F3d 178, 195 (3d

Cir.2000). The AEDPA increases the deference federal

courts must give to the factual findings and legal

determinations of the state courts. Werts at 196 (citing

Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996)).

Pursuant to 28 U.S.C. § 2254(d), as amended by the

AEDPA, a petition for habeas corpus may only be

granted if (1) the state court’s adjudication of the claim

resulted in a decision contrary to, or involved an

unreasonable application of, “clearly established Federal

law, as determined by the Supreme Court of United

States;” or if (2) the adjudication 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)(1)-(2). Factual

issues determined by a state court are presumed to be

correct and the petitioner bears the burden of rebutting

this presumption by clear and convincing evidence.

Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).

35a

Appendix C

The Supreme Court expounded upon this language

in Williams v. Taylor, 529 U.S. 362 (2000). In Williams,

the Court explained that “[uJnder 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

[the Supreme] Court on a question of law or if the state

court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Hameen v. State of Delaware, 212 F.3d 226, 235 (3d

Cir.2000) (citing Williams, 529 U.S. at 389-390). The

Court in Williams further stated that “[u]nder the

‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct

legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.” ! Jd.

1. Ineffective Assistance of Trial Counsel for Failing

to Present the Testimony of Kurtis Rainey

In his first (1st) claim, Petitioner contends that trial

counsel was ineffective for failing to present the

1. The “unreasonable application” inquiry requires the

habeas court to “ask whether the state court’s application of

clearly established federal law was objectively unreasonable.”

Hameen, 212 F.3d at 235 (citing Williams, 529 U.S. at 388-389).

“In further delineating the ‘unreasonable application of’

component, the Supreme Court stressed that an unreasonable

application of federal law is different from an incorrect

application of such law and a federal habeas court may not grant

relief unless that court determines that a state court’s incorrect

or erroneous application of clearly established federal law was

also unreasonable.” Werts, 228 F.3d at 196 (citing Williams, 529

U.S. at 389).

36a

Appendix C

testimony of Petitioner’s brother, Kurtis Rainey, at trial.

Claims of ineffective assistance of counsel are governed

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

Strickland, the United States Supreme Court set forth

the standard for a petitioner seeking habeas relief on

the grounds of ineffective assistance of counsel:

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant

must show that the deficient performance

prejudiced the defense. This requires showing

that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial

whose result is reliable.

Id. at 687.

Because “it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable,” a court must be “highly deferential” to

counsel’s performance and “indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland,

466 U.S. at 689. In determining prejudice, “the question

is whether there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable

doubt respecting guilt.” /d. at 695. “[A] court need not

37a

Appendix C

determine whether counsel’s performance was deficient

before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.” /d. at

697. “If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice ... that

course should be followed.” Jd.

“It is past question that the rule set forth in

Strickland qualifies as ‘clearly established Federal law,

as determined by the Supreme Court of the United

States.’ ” Williams, 529 U.S. at 391. Thus, Petitioner is

entitled to relief if the Pennsylvania courts’ decision

rejecting his claims of ineffective assistance of counsel

was either “contrary to, or involved an unreasonable

application of,” that established law. /d. In finding that

trial counsel’s failure to call Kurtis Rainey was a

reasonable, strategic decision, the Superior court stated,

“Trial counsel testified he was aware of and investigated

the allegations made by [Petitioner’s] brother, and that

counsel made a strategic decision not to present the

brother’s testimony without further support believing

it would be harmful to [Petitioner’s] case.”

Commonwealth v. Rainey, No. 2861 EDA 2002 at 6.

Petitioner argues that Kurtis Rainey’s possible

testimony involved a potential second gunman, Kevin

Williams. Petitioner asserts that his brother Kurtis was

prepared to testify that Kevin Williams admitted to also

shooting Kenneth White, and that Mr. Williams was in

possession of a nine (9) millimeter firearm. During

38a

Appendix c

Petitioner’s PCRA hearing, counsel defended his

decision not to call Kurtis Rainey as a witness:

I tried to locate Kevin Williams, was

unsuccessful. I thought there was a hearsay

problem. I also thought that the bias of Kurtis

Rainey would be harmful to his brother Karl

given the fact that they were brothers.

N.T. 6/21/01 at 8. Clearly, counsel’s decision not to call

Kurtis Rainey was trial strategy. See Hess v.

Mazurkiewicz, 135 F.3d 905, 908-909 (38d Cir.1998)

(finding counsel not ineffective for failing to call witness

because counsel reasonably could have believed that the

prejudicial effect of testimony outweighed benefit to be

gained).

Even assuming, however, that co-insel’s failure to call

Kurtis Rainey was deficient, Petitioner presents no

persuasive evidence that Kurtis Rainey’s testimony

would have changed the result of the trial. Strickland,

466 U.S. at 694 (to satisfy the prejudice requirement, a

petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different).

As the Superior Court noted:

In light of [| Petitioner’s] admission at trial that

he intended to shoot the victims, and the

evidence that the cause of death was the result

of multiple gunshot wounds and not any one

isolated wound; the introduction of testimony

39a

Appendix C

by [Petitioner’s] brother which referenced a

second gunman would not have exonerated

[Petitioner].

Commonwealth v. Rainey, No 2861 EDA 2002 at 5; see

also Commonwealth v. Rainey, No. 0717 at 4 (“This court

finds that further attempts by the trial counsel, as

Petitioner contends the counsel should have taken, to

establish the existence of the second shooter would not

have made a difference in the outcome of the trial.”) In

light of the fact that testimony implicating Kevin

Williams as the second shooter would not have changed

the result of the trial, I find that the state court decision

on this matter did not result in an unreasonable

apnlication of federal law as established by the United

States Supreme Court. Accordingly, this claim must be

denied.

2. Ineffective Assistance of Trial Counsel for

Failing to Object to the Testimony of the

Commonwealth’s Ballistics Expert or to Obtain

a Ballistics Expert for the Defense

In his second (2nd) claim, Petitioner contends that

trial counsel was ineffective for for failing to object to

the testimony of the Commonwealth’s ballistics expert

who stated that both the .380 and 9 mm bullets recovered

at the crime scene could have been shot with the same

handgun. Petitioner also argues that trial counsel was

ineffective for failing to obtain a ballistics expert for the

defense. Petitioner asserts that ballistics evidence could

have established the existence of a second shooter.

40a

Appendix C

Petitioner raised these issues on PCRA review and it

was the subject of extensive testimony at the PCRA

hearing. See N.T. 6/21/01, at 11-30. As discussed, supra,

the PCRA court found that even if the existence of a

second shooter had been established, it would have been

irrelevant to the outcome of the trial, as the court

established that Petitioner shot the unarmed victim

multiple times. Commonwealth v. Rainey, No. 0717

at 4.

I find that Petitioner has not established that trial

counsel was ineffective for not objecting to the testimony

of the Commonwealth’s ballistics expert or for failing to

obtain a ballistics expert for the defense. In support

thereof, I note that in regard to objecting to the

testimony of the Commonwealth’s ballistics expert, trial

counsel testified:

When [Commonwealth’s ballistics expert]

testified and made it plain that he could not

2. When Petitioner raised this issue on appeal, the Superior

Court found that the claim was improperly developed, and

deemed it waived. Although it is arguable that this claim is

unexhausted because it was not properly presented to the state

court, see O'Sullivan v. Boerckle, 526 U.S. 838, 845 (1999) (to

satisfy exhaustion requirement, habeas applicant must present

federal claim to all segments of state appellate system in

procedurally correct manner, so as to facilitate substantive

review on state level); 28 U.S.C. 2254(b) (habeas relief is

unavailable unless applicant exhausts state remedies first), I find

it unnecessary to address the exhaustion argument as

Petitioner’s underlying claim is without merit.

4la

Appendix C

say one way or another whether [the bullets]

were fired from one [1] gun or two [2] guns or

more than two [2] guns, as a practical matter

objecting to it really would not have served

the purpose for a couple of reasons. Number

one is that the jury already heard it. Two, I

didn’t want to emphasize it for the jury. And

three is if I could save it for argument and say,

listen, he wasn’t able to say definitively one

way or the other, his testimony has no weight

and no significance.

See N.T. 6/21/01, at 20. Based on counsel’s testimony, the

decision not to object to the testimony could reasonably

be considered sound trial strategy. Strickland, 466 U.S.

at 689.

As to hiring a ballistics expert for the defense, trial

counsel testified at Petitioner’s PCRA hearing that

because no guns had been recovered, it was impossible

for any ballistics expert to connect the bullets taken from

the crime scene to any specific firearm. See N.T. 6/21/

01; at 8. Again, under the circumstances, it was

objectively reasonable for trial counsel to decide not to

hire a ballistics expert for the defense. Nevertheless,

even if trial counsel’s representation was found to be

objectively unreasonable, Strickland further requires

that Petitioner establish how the results of the trial would

have been different. Jd. at 694. Petitioner has not

asserted that an independent ballistics expert could offer

any more information than the Commonwealth’s expert.

Petitioner argues that an independent ballistics expert

42a

Appendix C

would testify that the shells and bullets collected from

the crime scene could have been produced by two (2)

separate firearms. See Pet’r Br., at 30. However, this is

the same testimony that was offered at trial by the

Commonwealth’s ballistics expert. See N.T. 8/8/95, at 94.

In light thereof, I find that Petitioner has not produced

any evidence that would enable the court to conclude that

there is a reasonable possibility that the outcome of the

trial would have been different if trial counsel had

engaged a ballistics expert for the defense. Accordingly,

this claim must be denied.

3. PCRA Court Violated Petitioner’s Due Process

and Equal Protection Rights by Denying his

Request for a Ballistics Expert

In his third (8rd) claim, Petitioner argues that the

PCRA Court violated his due process and equal

protection rights when it denied his request for a

ballistics expert. The Superior Court found that the

PCRA court did not abuse its discretion in denying

Petitioner’s request for a ballistics expert because

Petitioner failed to offer reasonable support “as to how

a ballistics expert would further [Petitioner’s] argument

regarding a second gunman.” /d. Petitioner argues that

the decision in Ake v. Oklahoma, 470 U.S. 68, 76 (1985),

requires a different finding. I disagree. The Supreme

Court in Ake outlined three (3) factors to be used in

determining whether the State must provide an indigent

defendant with access to psychiatric assistance in

preparing a defense. /d. Those three (3) factors are: the

private interest that will be affected by the action of the

43a

Appendix C

State; the governmental interest that will be affected if

the safeguard is to be provided; and the probative value

of the additional safeguards and the risk of an erroneous

deprivation of the affected interest if those safeguards

are not provided. /d. (emphasis added). As set forth in

my review of Petitioner’s second claim, Petitioner has

failed to show the probative value of the additional

safeguard, specifically the value of hiring an independent

ballistics expert.’ Therefore, I am in agreement with the

state court that the denial of an appointment of a

ballistics expert for the defense was not an abuse of the

PCRA’s court discretion. Accordingly, I find that

Petitioner’s Due Process and Equal Protection rights

were not violated.

3. I need not address whether Ake even applies outside the

realm of trial court level psychiatric defense, as Petitioner fails

to satisfy the three (3) part test.

44a

APPENDIX D — MEMORANDUM OF THE

SUPERIOR COURT OF PENNSYLVANIA

FILED SEPTEMBER 9, 2004

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2861 EDA 2002

COMMONWEALTH OF PENNSYLVANIA,

Appellee

KARL RAINEY,

Appellant

Appeal from the PCRA Order entered June 4, 2002

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No. 9412-0717

BEFORE: DEL SOLE, PJ., PANELLA and BECK, JJ.

MEMORANDUM: FILED SEPTEMBER 9, 2004

This is an appeal from the order denying Appellants

petition under the Post Conviction Relief Act (PCRA).

Appellant was convicted by a jury of first degree murder,

aggravated assault and carrying a firearm on a public

street. Appellant was sentenced to life in prison for first

degree murder, and concurrent sentences of five to ten

years for aggravated assault, and one to two years for

45a

Appendix D

carrying a firearm on a public street. Appeilant filed a

direct appeal which resulted in an affirmance of his

judgment of sentence. Following the denial of his petition

for allowance of appeal with our Supreme Court, he filed

a PCRA petition. Supplemental petitions were filed,

followed by an evidentiary hearing after which the PCRA

court denied Appellant relief. This appeal followed. We

affirm.

Appellant raises four issues for our review. Appellant

claims that the PCRA court erred when it failed to find

counsel ineffective for failing to present the testimony

of Kurtis Rainey and failing to challenge the

Commonwealth’s ballistics experts or retain an expert.

Also, Appellant claims the PCRA court abused its

discretion in not permitting him to retain the services

of an expert ballistics examiner. Finally, he alleges the

PCRA court erred in concluding that trial counsel’s

failure to raise on appeal the issue of a juror’s recantation

of the verdict was not ineffective assistance of counsel.

Prior to addressing these issues, we will first address

Appellant’s response to this Court’s order to show cause

why this appeal should not be quashed as untimely. The

deadline for Appellant to file his notice of appeal was

July 4, 2002. Appellant’s notice of appeal was post-

marked on July 5, 2002, and received by the court on

July 8, 2002. Appellant asserts that because July 4 was

a holiday, he had until July 5 to file his notice of appeal.

We agree.

46a

Appendix D

As stated in 1 Pa.C.S.A. § 1908; “[w]hen any period

of time is referred to in any statute ... [and] the last

day of any such period shall fall on Saturday or Sunday,

or on any day made a legal holiday by the laws of this

Commonwealth ... such day shall be omitted from

computation.” Further under the “prisoner mailbox rule”

Appellant’s appeal is deemed filed on the date he placed

his notice of appeal in the institutional mailbox, or

delivered it to prison authorities. Commonwealth v.

Jones, 700 A.2d 423 (Pa. 1997). Accordingly, since the

record indicates Appellant’s notice of appeal was post-

marked July 5, 2002, it is therefore deemed timely and

we will address the merits of Appellant’s appeal.

Appellant first asserts that the PCRA court erred

by not finding his trial counsel provided ineffective

assistance when he failed to present testimony from

Kurtis Rainey, Appellant’s brother, describing

admissions made by Kevin Williams regarding the

victim’s death.

It is generally accepted that to prevail on a claim

that counsel was constitutionally ineffective, the

appellant must overcome the presumption of competence

by showing that: (1) the underlying claim is of arguable

merit; (2) the particular course of conduct pursued by

counsel did not. have some reasonable basis designed to

effectuate appellant’s interests; and (3) but for counsel’s

ineffectiveness, there is a reasonable probability that the

outcome of the challenged proceeding would have been

different. A failure to satisfy any one prong of the test

for ineffectiveness will require rejection of the claim.

47a

Appendix D

Commonwealth v. Wharton, 811 A.2d 978 (Pa. 2002)

(citations omitted).

Appellant testified he intended to fire several shots

from a .380 caliber pistol at the decedent and his friend

Ervin Boyd, the victim of the aggravated assault, but

that he did not fire the final shots at either victim. The

medical examiner identified eight gunshot wounds on the

decedent, and the hospital treated three gunshot wounds

on Mr. Boyd. The medical examiner testified that “(t]he

cause of death was multiple gunshot wounds to the chest

and the abdomen and the back.” N.T., 8/8/95, at 127. The

Commonwealth presented testimony by an expert

ballistics examiner that although both .380 and 9mm

caliber bullets were recovered from the victims, it was

possible for both types of bullets to be fired from the

same gun.

Appellant asserts that it was a second gunman, Kevin

Williams, who fired the 9mm shots into the victims.

Appellant claims he was prejudiced when his counsel

failed to present Kurtis Rainey’s testimony that he

observed Williams with a silver-plated 9mm pistol, and

that Williams admitted to Rainey after the incident that

“{yjour brother shot them and then I finished it.” N.T.,

6/21/01, at 32. The Commonwealth argues that the

presence of a second gunman, if true, is irrelevant and

could not exonerate Appellant of his crimes, but only

create the inference of shared criminal intent that would

have no bearing on the outcome of the case.

48a

Appendix D

“In order to make a claim of ineffectiveness for

failure to interview or present a witness, a petitioner

must demonstrate: (1) the existence and availability of

the witness; (2) counsel’s awareness of, or duty to know

of, the witness; (3) the willingness and ability of the

witness to cooperate and appear on behalf of the

defendant; and (4) the necessity of the proposed

testimony in order to avoid prejudice.” Commonwealth

v. Priovolos, 715 A.2d 420, 422 (Pa. 1998) (citing

Commonwealth v. Morales, 701 A.2d 516 (Pa. 1997)).

Appellants trial attorney testified at the PCRA

hearing that he did meet and discuss with Kurtis Rainey

the alleged confession by Kevin Williams, and that he

investigated the allegation extensively. Upon failing to

either locate Mr. Williams or to verify the validity of the

confession, trial counsel elected not to present the

testimony fearing the bias of Appellant’s brother might

harm the case.

Our standard of review of a post conviction court’s

denial of relief is limited to whether the lower court’s

determination is supported by the evidence of record

and whether it is free of legal error. Commonwealth v.

Harmon, 738 A.2d 1023 (Pa. Super. 1999). We find

Appellant is unable to demonstrate he was prejudiced

by counsel’s actions in failing to present Kurtis Rainey

as a witness. In light of Appellants admission at trial

that he intended to shoot the victims, and the evidence

that the cause of death was the result of multiple gunshot

wounds and not any one isolated wound; the introduction

of testimony by Appellant’s brother which referenced a

49a

Appendix D

second gunman would not have exonerated Appellant.

As such, Appellant’s accusation of ineffective assistance

of counsel fails because the underlying argument is

without merit. Furthermore, it is well established that

ineffective assistance of counsel will not be found where

there is a reasonable basis for counsel’s decision based

on a matter of trial strategy. Commonwealth v. Rivera,

454 A.2d 1067 (Pa. Super. 1982). Trial counsel testified

he was aware of and investigated the allegations made

by Appellant’s brother, and that counsel made a strategic

decision not to present the brother’s testimony without

further support believing it would be harmful to

Appellant’s case. We find the evidence supports the

PCRA court’s decision, and the decision is without legal

error.

Appellant further contends that trial counsel

wrongly failed to challenge the Commonwealth’s

ballistics expert testimony and failed to retain an expert

on Appellant’s behalf.

In reviewing Appellant’s brief in support of this

challenge, we find the argument presented to be

improperly developed as it offers no basis as to how an

expert would testify in support of Appellant’s case. The

core of the argument states merely that an expert “could

have offered testimony designed to advance his cause.”

Where an issue has been identified on appeal but is

unsupported by a properly developed argument in

Appellant’s brief it can be considered waived.

Commonwealth v. Rodgers, 605 A.2d 1228 (Pa. Super.

1992); Commonwealth v. Nelson, 567 A.2d 673 (Pa. Super.

1989).

50a

Appendix D

Nevertheless, we find the claim, even if further

developed, to be without merit. The Commonwealth’s

ballistics expert testified at trial that a single gun, or

any number of guns, could have fired the .380 and 9mm

bullets; the scientific evidence was insufficient to make

a conclusion. During the PCRA hearing, Appellant’s trial

counsel testified he believed the ballistics testimony

carried no weight, and because no gun or guns were ever

recovered, it was not possible to positively compare the

bullets retrieved from the victims to any gun. In counsel’s

opinion, it was in Appellants best interest not challenge

this testimony so as not to re-emphasize it to the jury,

and instead he chose to address it in his closing argument

where he could point out its lack of significance. The

PCRA court found trial counsel had a reasonable basis

designed to effectuate Appellant’s interests under the

given circumstances, and Appellants trial counsel did not

provide ineffective assistance. We find no basis to disturb

this ruling.

Appellant next contends the PCRA court abused its

discretion by not permitting him to retain the services

of a ballistics expert. Appellant argues that without

public funding to hire an expert, he is unable to support

his theory of a second gunman. We disagree.

The appointment of an expert witness or an

investigator to assist in the preparation of a defense is

vested in the sound discretion of the trial court and denial

thereof will not be disturbed without a finding that the

court abused its discretion. Commonwealth v. Gelormo,

475 A.2d 765 (Pa. Super. 1984). Based on our review of

Sla

Appendix D

Appellant’s previous issue, we find there is no reasonable

support as to how a ballistics expert would further

Appellant’s argument regarding a second gunman. As

such, the PCRA court did not abuse its discretion in

denying Appellants request to retain a ballistics expert.

Finally, Appellant contends the PCRA court erred

by not finding his trial counsel ineffective for failing to

raise the issue of a juror’s recantation of the verdict on

direct appeal. The order of events at trial were as follows:

the jury submitted its verdict in open court; the jury

was polled upon the request of Appellant whereby all

members concurred; the verdict was recorded; the jury

acknowledged in the affirmative the verdict as recorded;

and the jury was discharged to reconvene the following

day for sentencing. The following day, prior to the

sentencing hearing beginning, one juror recanted his

verdict on his own volition. Appellant contends that even

though the verdict was duly recorded, it may still be

challenged until the jury has been separated and

dispersed.

Appellant relies on the Supreme Court case of

Commonwealth v. Downey that held ‘[a] motion to poll,

be it made at the moment the verdict is first announced

in court, or even if made after the verdict is affirmed

and ‘entered’ of record, is still timely so long as it is

made before the jury has dispersed.” Commonwealth v.

Downey, 732. A.2d 593, 595 (Pa. 1999). Appellant’s

argument is not relevant in the instant case because

unlike the cases relied upon in his brief, the jury was

polled and all members concurred with the guilty verdict

prior to their discharge.

52a

Appendix D

Further, as noted by the PCRA court, even though

the same members of the jury were to reconvene for

sentencing the following day, they were effectively

discharged from the guilt phase of the trial. The law is

clear, that after a jury verdict is duly recorded and the

jury has been discharged, individual jurors may not

invalidate or impeach their verdict by their own

testimony without claiming outside influence.

Commonwealth v. Patrick, 206 A.2d 295 (Pa. 1965);

Commonwealth v. Spencer, 393 A.2d 895 (Pa. Super.

1978); Commonwealth v. Stark, 526 A.2d 383 (Pa. Super.

1987).

Accordingly, as the underlying claim was without

merit, the PCRA court properly ruled Appellant’s

counsel was not ineffective for failing to present it on

direct appeal.

Order affirmed.

Judgment Entered

s/ [illegible]

Prothonotary

Date: September 9, 2004

53a

APPENDIX E — OPINION OF THE COURT OF

COMMON PLEAS, FIRST JUDICIAL DISTRICT OF

PENNSYLVANIA, TRIAL DIVISION, CRIMINAL

SECTION DATED NOVEMBER 17, 2003

IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF

PENNSYLVANIA, TRIAL DIVISION -

CRIMINAL SECTION

C.P 9412

NO. 0717

COMMONWEALTH OF PENNSYLVANIA

KARL RAINEY

OPINION

MAZZOLA, J.

The facts established at trial are as follows.

Petitioner, Karl Rainey, and the decedent, Kenneth

White, had a prior history of confrontations. On

November 19, 1994, White followed Petitioner out from

a bar and attempted to provoke a confrontation. When

Petitioner had reached his parked vehicle, he pulled out

his gun and shot White multiple times. Petitioner then

shot White’s friend Ervin Boyd who tried to intervene.

Petitioner then returned to shoot at the back of White

54a

Appendix E

who had fallen to the ground. Petitioner then shot at

Boyd multiple times, and got into his car and drove off,

dragging Boyd’s body approximately one city block.

Boyd survived his wounds.

At trial, Petitioner contended that he had shot White

and Boyd in self defense, but that another gunman then

jumped in to shoot White and Boyd multiple times.

On August 10, 1995, Petitioner was convicted of first

degree murder, aggravated assault, and possession of

an instrument of crime. The next day, the jury imposed

a sentence of life imprisonment on the murder conviction,

and the court imposed concurrent sentences of five to

ten years for the aggravated assault conviction and six

to twelve months for possessing an instrument of crime.

Superior Court affirmed trial court’s judgment of

sentence on January 16, 1997, and the Supreme Court

denied allocatur on November 3, 1997.

On October 30, 1998, Petitioner filed apro se petition

pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. The PCRA court appointed

counsel, Harvey L. Anderson, Esq., and he filed an

amended petition on June 8, 2000. Petitioner now appeals

the dismissal, on June 4, 2002, of his amended petition.

Petitioner, in his amended petition and supplements

thereto, alleged that he was provided ineffective

assistance of counsel for the following reasons: (1) trial

counsel failed to call his brother, Kurtis Rainey, as a

5Sa

Appendix E

witness; (2) trial counsel failed to obtain a ballistics

expert; (3) trial counsel failed to object to the testimony

of the Commonwealth’s ballistic expert; (4) appellate

counsel failed to raise on appeal trial court’s refusal to

grant a bench trial; (5) appellate counsel failed to raise

on appeal the issue of jury recantation;

(6) trial counsel failed to object to prosecutor’s improper

remarks during closing argument.

LEGAL ANALYSIS

To prevail on a claim of ineffective assistance of

counsel, a defendant must demonstrate: (1) that the

underlying claim is of arguable merit; (2) that counsel’s

course of conduct was without a reasonable basis

designed to effectuate his client’s interest; and (3) that

he was prejudiced by counsel’s ineffectiveness.

Commonwealth v. Green, 551 Pa. 88, 93 (1998).

Having failed on his appeal where he challenged the

verdict on self defense grounds, Petitioner now contends

that he cannot be guilty of first degree murder because

White died due to multiple gunshot wounds inflicted by

him and an alleged second shooter. It seems that

Petitioner is claiming that his actions were not the “but

for” cause of White’s death, and therefore he cannot be

guilty of first degree murder. Yet while the two gunmen

theory could only go to causation, and not the mental

state, Petitioner inexplicably says that he could at best

be convicted of voluntary manslaughter. Since the mental

state, and not causation, differentiates first degree

murder from voluntary manslaughter, this court cannot

56a

Appendix E

see the logic behind Petitioner’s argument. It seems that

Petitioner is attempting to say, through his reliance on

the two gunmen theory, that the evidence was insufficient

to establish first degree murder. However, Petitioner

challenged the sufficiency of the evidence on appeal, and

thus he cannot raise this issue again. See 42 Pa.C.S. §

9543(a)(3) (stating that to be eligible for relief under the

PCRA, the allegation of error must not have been

previously litigated or waived). Accordingly, this claim

was properly dismissed.

Moreover, it was established at trial that Petitioner

shot White multiple times, therefore the existence of a

second shooter who also shot White multiple times would

not have made a difference to Petitioner’s murder

conviction. Further, because no witnesses testified that

White was armed, the existence of the second shooter

would not have made a difference to Petitioner’s self

defense claim. This court finds that further attempts by

the trial counsel, as Petitioner contends the counsel

should have taken, to establish the existence of the

second shooter would not have made a difference in the

outcome of the trial. Accordingly, Petitioner’s claims

related to the possible existence of the second shooter

were properly dismissed. See Green, supra.

Petitioner contends that the trial judge abused his

discretion in denying Petitioner’s request for a bench

trial. However, a defendant does not have an absolute

right to a bench trial. See Commonwealth v. Sorrell, 500

Pa. 355, 359 (1982) (“[T ]he decision whether to permit a

non-jury trial is to be made by the court, taking into

S7a

Appendix E

account all relevant considerations.”). After reviewing

the trial record, this court finds that the trial court

considered the proposed evidence and the proposed

defense, and decided that a jury trial would serve

Petitioner’s interests better than a bench trial.

Therefore, the trial court did not abuse it’s discretion in

denying the request for a bench trial. See

Commonwealth v. Boyd, 320 Pa. Super. 560, 563 (1983)

(Stating that trial judge has discretion to decide whether

to approve request for a waiver trial.).

Petitioner, nevertheless, claims that he is entitled to

a new trial since the trial judge did not state on the

record the reason for denying his waiver request. The

trial court should state its reason for the denial of waiver

so that an appellate court can decide whether trial court

abused its discretion. See Boyd, 320 Pa. Super. at 563

(“If the court decides to disapprove the waiver, it should

state the reasons for its decision, so that on any further

appeal we may decide whether it has acted within its

discretion.”). In the instant case, the reason for denying

the waiver is discernable from the record. Therefore,

Petitioner’s claim is without merit, and properly

dismissed.

Petitioner also asserts that the appellate counsel

should have raised on appeal the trial court’s denial of

Petitioner’s motion for a mistrial based on a juror’s

attempt to impeach the verdict after it was recorded.

Petitioner contends that a juror can impeach the verdict,

even after the verdict has been recorded, if it is before

the jury is discharged. However, this Court finds

58a

Appendix E

persuasive the Commonwealth’s argument that if

Petitioner’s argument is accepted, then in any case where

the jury is retained for a separate penalty phase, the

recorded verdict would be impeachable until the penalty

phase is over and the jury is physically discharged. Such

a result would be absurd.

In the instant case, a juror tried to impeach the

verdict, the day after the verdict had been recorded,

without claiming any outside influence. The Supreme

Court in Commonwealth v. Patrick, 416 Pa. 437, 442

(1965), stated that, “Our Courts have repeatedly held

for over 150 years that after a verdict is recorded, and

after the jury has separated and been discharged, jurors

may not invalidate or impeach a verdict by their own

testimony.” In the instant case, when the verdict was

recorded and the jury dismissed for the day with the

penalty phase set to begin the next day, the jury had

effectively been discharged from the trial phase.

Therefore, the trial court acted properly in denying the

juror’s attempt to impeach the verdict. Accordingly,

Petitioner’s claim with regard to this matter was

properly dismissed.

Next, Petitioner asserts that the prosecutor engaged

in misconduct in his closing argument by stating that if

Petitioner’s gun were to be found, then the jury would

know that the Petitioner shot all the bullets. However,

the prosecutor is entitled to respond fairly to a

defendant’s closing argument. See Commonwealth v.

Hawkins, 549 Pa. 352, 393 (1997) (“[T]he prosecutor is

entitled to fairly respond to evidence presented by the

59a

Appendix E

defendant or to closing remarks made by defendant’s

counsel.”). This court finds that the prosecutor’s

comments were a fair response to Petitioner’s closing

argument where the trial counsel stated that Petitioner

discarded his weapon not because he was afraid of the

possibility of ballistics examination si.owing that he fired

all the shots, but because he was simply afraid. Moreover,

a prosecutor’s comments do not constitute reversible

error “unless the unavoidable effect of such comments

would be to prejudice the jury, forming in their minds

fixed bias and hostility toward the defendant so that they

could not weigh the evidence objectively and render a

true verdict.” Jd. at 373. Since the prosecutor’s

comments were a fair response to the Petitioner’s closing

argument, and since Petitioner failed to show the

requisite prejudice, Petitioner’s claim with respect to the

prosecutor’s comments was properly dismissed.

CONCLUSION

After thorough consideration, none of the claims

raised by the Petitioner warranted granting of relief.

Accordingly, this court’s dismissal of Petitioner’s

amended PCRA petition should be affirmed.

BY THE COURT:

s/ [illegible]

60a

APPENDIX F — MEMORANDUM OF THE

SUPERIOR COURT OF PENNSYLVANIA

FILED JANUARY 16, 1997

IN THE SUPERIOR COURT OF PENNSYLVANIA

NO. 4275 PHILADELPHIA 1995

COMMONWEALTH OF PENNSYLVANIA

KARL RAINEY,

APPELLANT

Appeal from the Order entering Judgment of

Sentence December 8, 1995 in the Court of

Common Pleas of Philadelphia County,

Criminal Division, at No. C.P 94-12-0717.

BEFORE: DEL SOLE, SCHILLER AND

CERCONE, JJ.

MEMORANDUM:

Appellant Karl Rainey was convicted by a jury of

first degree murder, aggravated assault and possession

of an instrument of crime. He received a sentence of life

imprisonment for the murder conviction, and concurrent

sentences of five to ten years for the aggravated assault

conviction and six to twelve months for PIC. Appellant’s

post-sentence motions were denied. This appeal

followed. We affirm.

6la

Appendix F

Appellant presents the following issues for our

review: (1) whether there was sufficient evidence to

prove first degree murder; and (2) whether the verdict

was against the weight of the evidence.

In advancing his sufficiency of the evidence claim,

Appellant argues specifically that the Commonwealth

failed to prove beyond a reasonable doubt that he did

not act in self-defense.

The test for determining the sufficiency of the

evidence is to view the evidence in the light most

favorable to the verdict winner to determine whether

the fact finder reasonably could have concluded that all

of the elements of the crime were established beyond a

reasonable doubt. Commonwealth v. Chambers, 528 Pa.

558, 599 A.2d 630 (1991).

When a self-defense claim is raised at trial, the

Commonwealth, in order to negate the claim, is required

to prove beyond a reasonable doubt at least one of the

following: either that a defendant’s belief that it was

necessary to kill the victim in order to protect himself

from death or serious bodily harm was unreasonable,

that the defendant provoked the use of force, or that the

defendant had a duty to retreat and could safely do so.

Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90

(1982), Commonwealth v. Gonzales, 415 Pa.Super. 564,

609 A.2d 1368 (1992).

Self-defense issues of whether a defendant acted out

of an honest, bona fide belief that he was imminent

62a

Appendix F

danger and whether such belief was reasonable are

questions properly resolved by the finder of fact.

Commonwealth v. Hill, 427 Pa.Super. 440, 629 A.2d 949

(1993).

The facts establish that Appellant and the Decedent

Kenneth White had several verbal confrontations prior

to the night of the murder. On the night in question,

Appellant was leaving a bar when Decedent and his

friend Ervin Boyd were entering the bar. Appellant and

Decedent began to argue as Appellant walked to his car.

Boyd followed along. Upon arriving at his car, Appellant

pulled a gun from his jacket and shot Decedent several

times. Appellant then shot Boyd who hid behind a parked

car. Appellant cleared a jam in his gun, returned to

Decedent’s body and fired three more shots into

Decedent’s back. Then, Appellant found Boyd and shot

him three more times. As Appellant fled from the scene,

he ran over Boyd and dragged him one block from the

scene. Boyd survived and Decedent bled to death. No

weapon was found on or near Decedent’s body.

Appellant claims that he was in fear of his life.

However at trial, Appellant admitted shooting the victim

even though he knew the victim was unarmed.

Furthermore, once the Decedent was helpless on the

ground, Appellant returned to shoot him several more

times. This evidence is more than sufficient for the jury

to find that it was unreasonable for Appellant to believe

that it was necessary to kill Decedent to protect himself

from death or serious bodily harm. Therefore, this issue

is meritless.

63a

Appendix F

Next, Appellant questions whether the verdict was

against the weight of the evidence. In reviewing such a

claim, a new trial will not be warranted unless the verdict

was so contrary to the evidence as to shock one’s sense

of justice. Commonwealth v. Whitney, 511 Pa. 232, 512

A.2d 1152 (1986). Also, the finder of fact is free to believe

all, part, or none of the evidence. Commonwealth v. Fahy,

512 Pa. 298, 516 A.2d 689 (1986).

The jury, as fact finder, chose to believe the evidence

presented by the Commonwealth, as was its right. This

evidence, although contradicted, was weighty enough for

the jury to issue the guilty verdicts and Appellant’s

argument to the contrary is meritless.

Judgment of sentence affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.