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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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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

v.
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

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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

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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
v.
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.

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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)

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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.

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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.

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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

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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

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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.

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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

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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

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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.

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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

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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

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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)

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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.

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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.

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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

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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

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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

V.
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
V.
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;

(c) object to the testimony of the
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
V.
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.
Te

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
V.
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]
J.

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
V.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1591%3A2. Public record. Not legal advice.