Opposition Brief — Fletcher v. Pennsylvania

Supreme Court, U.S.

FILED

NO. 00-258

NOV 22000

IN THE | | )

SUPREME COURT OF THE U D-STATES

ANTHONY FLETCHER,

Petitioner

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

On Petition for Writ of Certiorari to the

Supreme Court of Pennsylvania

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5700

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

ANTHONY V. POMERANZ

Assistant District Attorney

CATHERINE MARSHALL

Chief, Appeals Unit

ARNOLD H. GORDON

First Asst. District Attorney

LYNNE ABRAHAM

District Attorney

\

QUESTIONS PRESENTED

l. Was petitioner's claim that the trial court

unconstitutionally restricted his testimony at the penalty hear-

ing presented to or passed on by the court below?

(Not raised or considered in the court below.)

ya Where the trial court did not prevent petitioner

from testifying that the murder was not drug related, was

petitioner denied his right to testify?

(Not raised or considered in the court below.)

x Was petitioner's claim that the trial court vio-

lated the confrontation clause-by admitting Ronald Williams’

Statement presented to or passed on by the court below.)

(Not raised or considered in the court below.)

4. Where Ronald Williams' statement was

admissible under two hearsay exceptions, did the court err in

admitting the statement?

(Not raised or considered in the court below.)

>. Was petitioner's claim that the prosecutor

unconstitutionally argued for a capital sentence presented to

or passed on by the court below?

(Not raised or considered in the court below.)

6. Where the prosecutor did not criticize peti-

tioner for failing to present his version of the offense; prop-

erly challenged the credibility of petitioner's testimony; and

did not improperly seek a capital sentence based on venge-

ance, were those remarks constitutionally impermissible?

(Not raised or considered in the court below.)

iil

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Counter-Statement of the Case

Reasons for Denying the Writ

I. Petitioner's claim that the court

erroneously restricted his testi-

mony at the penalty hearing is

waived; it also fails to present

a meritorious federal question.

II. Petitioner's claim that the trial

court improperly admitted an

alleged hearsay statement is

waived; it also fails to present

a meritorious federal question.

Ill. _ Petitioner's claim that the prose-

cutor committed misconduct in

his penalty hearing closing

argument is waived; it also fails

5-10

10-19

iV

to present a meritorious federal

question. - 20-25

Conclusion 26

TABLE OF AUTHORITIES

Federal Cases

Adams v. Robertson, 520 U.S. 83, 117 S. Ct.

1028 (1997)

Barber v. Scully, 731 F.2d 1073 (2d Cir.

1984)

Barker v. Morris, 761 F.2d 1396 (9th Cir.

1985), cert. denied, 474 U.S. 1063

(1986)

Board of Dirs. of Rotary Int'l v. Rotary Club

of Duarte, 481 U.S. 537 (1987)

California v. Brown, 479 U.S. 538 (1987)

California v. Green, 380 U.S. 149 (1970)

Crane v. Kentucky, 476 U.S. 682 (1986)

Crawford v. United States, 212 U.S. 202

(1909)

Doyle v. Ohio, 426 U.S. 610 (1976)

Drake v. Kemp, 762 F.2d 1449 (11th Cir.

1985), cert. denied, 478 U.S. 1020

(1986)

Dutton v. Evans, 400 U.S. 74 (1970)

23

25

vi

Duvall v. Reynolds, 139 F.3d 768 (10th Cir.),

cert. denied, 525 U.S. 933 (1998)

Gregg v. Georgia, 428 U.S. 153 (1976)

Hanson v. Denckla, 357 U.S. 235 (1958)

Howard v. Moore, 131 F.3d 399 (4th Cir.

1997)

Illinois v. Gates, 462 U.S. 213 (1983)

Lilly v. Virginia, 527 U.S. 116 (1999)

Moore v. Reynolds, 153 F.3d 1086 (10th Cir.

1998), cert. denied, 526 U.S. 1025 (1999)

Ohio v. Roberts, 448 U.S. 56 (1980)

Portuondo v. Agard, 120 S. Ct. 1119 (U.S.

2000)

Rock v. Arkansas, 483 U.S. 44 (1987)

Shepard v. United States, 290 U.S. 96 (1933)

United States v. Barone, 114 F.3d 1284 (lst

Cir.), cert. denied, 522 U.S. 1021 (1997)

United States v. Brennan, 994 F.2d 918 (ist

Cir. 1993)

PAGE

25

25

12

24

11,20,21

12,15,16

17

14

24

14

24

Vii

United States v. Cabrera, 201 F.3d 1243 (9th

Cir. 2000) |

United States v. Chappell, 698 F.2d 308 (7th

Cir.), cert. denied, 461 U.S. 931 (1983)

United States v. Gignac, 119 F.3d 67 (1st

Cir.), cert. denied, 522 U.S. 975 (1997)

United States v. Matthews, 20 F.3d 538 (2d

Cir. 1994)

United States v. McManaman, 653 F.2d.458

(10th Cir. 1981)

United States v. Ortiz, 422 U.S. 891 (1975)

United States v. Sasso, 59 F.3d 341 (2nd Cir.

1995)

United States v. Shukri, 207 F.3d 412 (7th

Cir. 2000)

United States v. Vretta, 790 F.2d 651 (7th

Cir.), cert. denied, 479 U.S. 851 (1986)

United States v. Williams, 504 U.S. 36 (1992)

PAGE

24

15

6,19,20

14,15,16

15

11,20,21

14,15,16

14

17

11,20,21

Vili

State Cases

Commonwealth v. Chandler, 554 Pa. 401, 721

A.2d 1040 (1998)

Commonwealth v. Collins, 550 Pa. 46, 703

A.2d 418, cert. denied, 525 U.S. 1015

(1998)

Commonwealth v. Fletcher, 561 Pa. 266, 750

A.2d 261 (2000)

Commonwealth v. Goldblum, 498 Pa. 455,

447 A.2d 234 (1982)

Commonwealth v. Puksar, 559 Pa. 358, 740

A.2d 219 (1999), cert. denied (U.S. 10/2/00)

Federal Statutes

28 U.S.C. § 1257(a)

State Statutes

42 Pa.C.S.A. § 9711 (d) (7)

PAGE

18

19

4,8,

11,20

18

18

ix

3,4

1X

OPINION BELOW

The opinion of the Supreme Court of Pennsylvania is

reproduced at petitioner's Appendix A and is also reported at

561 Pa. 266, 750 A.2d 261 (2000).

JURISDICTION

This Court has jurisdiction to consider the petition

pursuant to 28 U.S.C. § 1257(a).

COUNTER-STATEMENT OF THE CASE

Petitioner shot a man to death on a street corner for

his failure to pay drug-trafficking proceeds. A Pennsylvania

jury convicted petitioner of murder of the first degree and

possessing an instrument of crime (Biils Nos. 6001, 6003,

March Term, 1992). The jury sentenced petitioner to death.

It found that in committing the offense petitioner knowingly

created a grave risk of death to another person in addition to

the victim of the murder; and that petitioner committed the

murder to promote his drug activities.’ Petitioner seeks

certiorari.

Petitioner was a drug dealer in Southwest Philadel-

phia in March, 1992. At the beginning of that month, he con-

signed a package of crack cocaine to Vaughn Christopher, the

victim, to sell. Christopher either smoked the crack himself

or spent the money from the sale of the drugs; he failed to

pay petitioner the proceeds. Sometime after midnight on

March 2, 1992, Christopher was standing on a sidewalk in

the 2000 block of South 60th Street talking to Ronald "Skeet"

Williams and Natalie "Ne Ne" Grant. Petitioner approached

the group and asked Christopher for the proceeds of the crack

sale (N.T. 1/20/93, 22, 31; 1/21/93, 10-11; 1/22/93, 6-9;

2/1/93, 27-31, 57).

Before Christopher could respond, petitioner drew a

silver .380 caliber semi-automatic pistol from beneath his

jacket and fired a shot at Christopher's feet while Christopher

stood next to Williams and Grant. Christopher began to flee;

petitioner pursued. Petitioner aimed at Christopher and fired

two more shots. One bullet struck the victim in the right

flank and perforated his right kidney, liver and chest wall.

The jurors found two mitigating circumstances.

The second bullet passed through the victim's right thigh.

Christopher fell against a parked car. He called out to Wil-

liams for help; Williams declined to intervene (N.T. 1/19/93,

116; 1/20/93, 4; 1/21/93, 10-13, 57; 1/25/93, 90-94; 1/26/93,

12-15; 2/1/93, 25, 32-33).

Christopher careened down the street, turned the cor-

ner and stumbled down the 5900 block of Greenway Street,

where he collapsed against a fence. Several minutes later,

the police found him there, unconscious. Emergency person-

nel were summoned and rushed him to the hospital, where he

was pronounced dead (N.T. 1/19/93, 63-69; 1/21/93, 11).

Petitioner left the murder scene, changed his clothes,

and returned. Upon encountering Williams and Grant, he

told them, "You all better tell that boy he better not tell who

shot him." He then left the scene. Six days later, petitioner

encountered Grant on a street corner. Referring to the mur-

der, he said that he had been told that Grant was planning to

"snitch" on him. Grant denied that she had spoken to the

police. Petitioner told her that "Skeet" had told him he

should kill her. Grant promised petitioner that she would not

tell the police what she knew about the murder (N.T. 1/22/93,

13-17).

Several days later, petitioner came to Grant's home.

Instead of threatening her again, he gave her money. A few

days later, however, Grant heard that petitioner's friends were

looking for her and that there was a planned "hit" on her,

which she understood to mean a plan to murder her (N.T.

1/22/93, 17, 117; 1/25/93, 15).

After receiving information from witnesses to the

murder, the police arrested petitioner. Petitioner waived his

Miranda rights and gave a statement. He declared that he had

an altercation with the victim on the night of the murder.

Petitioner, a former professional boxer, claimed that he

punched the victim in the face in retaliation for the victim's

robbery of him several days earlier. According to petitioner,

the victim then drew a handgun, and petitioner grabbed him.

During the struggle, the victim allegedly shot himself with

his own gun (N.T. 1/25/93, 65-80).’

Petitioner was tried by a Pennsylvania jury sitting

before the Honorable Robert A. Latrone. On January 29,

1993, the jury found petitioner guilty of murder of the first

degree and possessing an instrument of crime. At the penalty

hearing, the Commonwealth established the aggravating cir-

cumstances that in committing the offense petitioner know-

ingly created a grave risk of death to another person in

addition to the victim of the offense;’ and that petitioner

committed the murder to promote his drug activities.* Peti-

tioner sought to prove mitigation with evidence of his charac-

ter and the circumstances of his offense;’ and that he was

under the influence of extreme mental or emotional

: Petitioner attempts to minimize the evidence of the drug-

related nature of the murder (Petition at 3). However, as he notes

in the Statement of the Case, further evidence that petitioner killed

the victim for using petitioner's crack instead of selling it is pro-

vided by the fact that the victim had recently-ingested cocaine in

his system at the time of his death (Petition at 2).

4 42 Pa.C.S.A. § 9711 (d) (7).

’ 42 Pa.C.S.A. § 9711 (d) (14).

5 _ 42 Pa.C.S.A. § 9711 (e) (8).

disturbance.° The jury found two aggravating and two miti-

gating circumstances. On February 5, 1993, the jury unani-

mously found that the aggravating circumstances outweighed

the mitigating circumstances, and returned a verdict of death.

Post-verdict motions were filed. New counsel was appointed

and filed supplemental post-verdict motions. On December

26, 1995, after 2 hearing, the judge denied petitioner's post-

verdict motions. On February 21, 1996, the judge formally

reimposed petitioner's death sentence and imposed a concur-

rent two and one half to five year sentence for possessing an

instrument of crime.

On appeal to the Pennsylvania Supreme Court, peti-

tioner raised twenty-seven claims of error, including asser-

tions that he was deprived of his right under Pennsylvania

law to demonstrate that the murder was not drug related; that

trial counsel was ineffective, under Pennsylvania law, for

failing to object to the cross-examination of Ronald Williams

with an alleged hearsay statement; and that trial counsel was

ineffective, under Pennsylvania law, for failing to object to

the prosecutor's assertion at the penalty hearing that the mur-

der was drug related.

On March 24, 2000, the Pennsylvania Supreme Court

affirmed petitioner's judgments of sentence. Commonwealth

v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000). Petitioner

filed an Application for Reargument, which was denied on

May 15, 2000.

In this Court, petitioner claims, for the first time, that

he was deprived of constitutional rights when he wz. alleg-

edly prevented from testifying that the murder was not drug-

related. Additionally, he changes his previous claim -- that

. 42 Pa.C.S.A. § 9711 (e) (2).

EE Ne a ee NES NN ee SR See ee

counsel was ineffective for failing to object to the examina-

tion of Ronald Williams with his alleged hearsay statement --

and instead argues that the Pennsylvania Supreme Court

erred in approving the use of the statement. Finally, peti-

tioner transforms another prior claim -- that trial counsel was

ineffective for failing to object to the prosecutor's assertion at

the penalty hearing that the murder was drug related -- into a

claim that the prosecutor committed misconduct by com-

menting on petitioner's failure to explain the circumstances of

the murder when he testified at the sentencing hearing; by

allegedly commenting on petitioner's right to silence when he

argued that petitioner's testimony was not really remorseful;

and by urging the jury not to decide the penalty merely by

exercising mercy on petitioner. Despite petitioner's attempt

to invoke this Court's jurisdiction by re-fashioning his claims,

no such claims were properly raised or preserved below, and

none presents significant issues. Accordingly, review should

be denied.

REASONS FOR DENYING THE WRIT

I. PETITIONER'S CLAIM THAT THE COURT

ERRONEOUSLY RESTRICTED HIS TESTI-

MONY AT THE PENALTY HEARING IS

WAIVED; IT ALSO FAILS TO PRESENT A

MERITORIOUS FEDERAL QUESTION.

Petitioner shot and killed Vaughn Christopher. He

was convicted of murder of the first degree. Petitioner

declined to testify at trial. At the penalty hearing, petitioner

and his witnesses provided extensive testimony in support of

mitigation, and denied that he had any involvement with

drugs. The only limitation placed on his testimony was that

he could not deny committing the murder altogether. Peti-

tioner made no objection to this proper limitation. Instead,

he repeatedly denied any involvement with drugs, but under-

standably chose not to present the specific testimony that he

now claims was excluded: that is, testimony that he really

did murder the victim in cold blood, but that he did not do it

because of drugs. Accordingly, because he did not object to

the only limitation actually imposed by the trial judge, he

may not have review of his claim. See United States v. Gig-

nac, 119 F.3d 67, 69-70 (1st Cir.), cert. denied, 522 U.S. 975

(1997) (defendant's failure to object at trial to evidentiary rul-

ing precludes appellate review).’ -

In any case, the claim does not present a meritorious

federal question. The trial court did not improperly limit

petitioner's testimony, and did not prevent him from conced-

ing first degree murder while offering an alternative motive,

as an examination of the record demonstrates.

At the outset of the penalty hearing, counsel advanced

a series of motions that petitioner had asked him to make.*

; Petitioner makes no attempt to excuse his waiver of his

claim; he simply asserts that the court erred, as if he had objected

at the time. In reality, there was no objection at trial because the

trial court never imposed the limitation petitioner now raises as

error. See infra.

. These included, inter alia, an objection to the court's

refusal to give a voluntary manslaughter instruction; a motion to

reduce petitioner's conviction to murder of the third degree; a

motion to preclude the prosecution from presenting evidence to

support the aggravating circumstance involving endangering oth-

ers in the course of the murder; a motion for a mistrial based on

the introduction of Ronald Williams’ statement; a motion to pre-

clude the prosecution from proving the aggravating circumstance

of a drug-related killing; and a motion for the appointment of new

counsel (N.T. 2/1/93, 3-6).

Counsel then informed the court that he had told petitioner

that he believed the court would not allow him to testify con-

cerning "the facts" of the killing:

I have advised [petitioner] that

preliminarily ... if [petitioner]

testified in this matter about

the facts of the case in terms of

what happened, that the court

would prohibit that

testimony...

N.T. 2/i/93, 7. The court, however, corrected counsel's

assertion, indicating that it would only preclude testimony

that was offered to exculpate defendant for the crimes of

which he was convicted:

The defendant trying to testify

at the penalty stage in exculpa-

tion of his criminal culpability

as to the charge for which he

stands trial is an inappropriate

area of inquiry and inadmissi-

ble evidence...

**e KK HK

He has the right to take the wit-

ness box in his own behalf, but

he cannot testify to exculpate

himself from the verdict of

guilt.

N.T. 2/1/93, 7-9.’ Petitioner then presented a penalty

defense, including his own testimony. He chose not to pre-

sent extensive testimony concerning the circumstances of the

murder. He did, however, deny any involvement with drugs.

He also specifically asserted both that he had turned down an

offer from some Jamaican men to serve as a bouncer at a

drug house and that he had never sold drugs (N.T. 2/2/93,

138-40, 145). Additionally, the jury knew from the admis-

sion at trial of petitioner's statement (which was incorporated

into the record of the penalty hearing), that petitioner claimed

that the murder arose from a prior robbery during a craps

game and not from circumstances relating to drugs (N.T.

1/25/93, 76-80; 2/2/93, 20)."°

Significantly, the only portion of the transcript peti-

tioner cites to support his assertion that the trial court pre-

vented him from testifying that the killing was not drug

related is a colloquy between defense counsel and petitioner

during which the court does not speak at all. During that

: Counsel then stated that he had advised petitioner that, if

petitioner "were to suggest or testify that he was not a person

engaged in drug-related activity, that on rebuttal, the Common-

wealth would be permitted to introduce into evidence [petitioner's]

prior conviction for drugs" (N.T. 2/1/93, 9).

4 Petitioner reads the Pennsylvania Supreme Court's opinion

to support his assertion that he was prevented from testifying that

the murder was not drug-related (Petition at 12). He is mistaken.

The Pennsylvania Supreme Court noted that petitioner's claim was

that he was prevented from testifying that the shooting was not

drug-related. However, the Court properly held that the trial court

only prevented petitioner from testifying that he was not guilty of

the murder. Nowhere did the Pennsylvania Supreme Court hold

that petitioner was prevented from testifying that the shooting was

not drug-related. Commonwealth v. Fletcher, 750 A.2d 261, 277.

colloquy -- in which counsel sought to persuade petitioner

not to testify -- counsel mischaracterizes the nature of the

court's ruling, portraying it as more limiting than it was (N.T.

2/2/93, 105-06). This is hardly support for the proposition

that the court denied petitioner his right to testify. Moreover,

the decision to focus petitioner's testimony on favorable ele-

ments of his character, and not to concede that he had in fact

committed a cold-blooded murder but had done so over of a

robbery during a craps game and not drugs, was well-chosen.

It is unimaginable -- regardless of petitioner's argument that

he could have defeated an aggravating circumstance with tes-

timony that the murder was over gambling and not drugs --

that a jury would have been more sympathetic as a result of

such testimony, and very likely both that the jury would have

retumed a capital sentence and that petitioner would now be

challenging counsel's decision to have him concede commit-

ting the murder but disputing his motive."

Petitioner's cases are factually distinguishable from

this case. The transcript here shows that the trial court did

not improperly restrict his penalty testimony. Thus, Rock v.

Arkansas, 483 U.S. 44 (1987) (finding unconstitutional

Arkansas' categorical prohibition of hypnotically-refreshed

testimony); Crawford v. United States, 212 U.S. 202 (1909)

(non-constitutional decision holding that an accused may tes-

tify at a trial about his motive in taking an action); and Crane

“ Petitioner makes a related meritless assertion that the

prosecutor was improperly permitted to "relitigate" petitioner's

drug-related motive by presenting evidence at the penalty hearing

of his involvement with drugs (Petition at 13). Because the prose-

cutor was seeking the application of the aggravating circumstance

pertaining to a drug-related killing, evidence of petitioner's con-

nection with drugs was relevant and admissible at the penalty

hearing. Petitioner was free to address the issue as well.

10

v. Kentucky, 476 U.S. 682 (1986) (that a confession has been

found voluntary by a judge prior to trial does not preclude a

trial challenge of the reliability of the confession; it is the

jury's role to determine witness credibility), do not avail him.

Petitioner was entitled to testify to the applicability of aggra-

vating and mitigating circumstances, including the circum-

stances of the offense. The court did not prevent him from

doing so; he was free to admit the murder but claim it arose

from a non-drug motivation. He in fact did present evidence

that he was not involved in drug-selling, and the jury had

before it his statement that the killing arose out of a gambling

dispute. That petitioner chose not to do more is in no way

akin to a ruling that prevented him from doing so.

Il. PETITIONER'S CLAIM THAT THE TRIAL

COURT IMPROPERLY ADMITTED AN

ALLEGED HEARSAY STATEMENT IS

WAIVED; IT ALSO FAILS TO PRESENT A

MERITORIOUS FEDERAL QUESTION.

Petitioner asserts that the Pennsylvania Supreme

Court violated the confrontation clause by approving the

admission of the victim's statement to Ronald Williams that

he had smoked some drugs he was supposed to sell for peti-

tioner (Petition at 13-20).'? This claim is unreviewable for

multiple reasons. First, petitioner raised no such claim of

court error below; instead he claimed only that trial counsel

was ineffective for failing to object to the cross-examination

of Williams with the victim's alleged hearsay statement,

thereby explicitly conceding his failure to object to the intro-

duction of the statement at trial. The Pennsylvania Supreme

2 The victim had actually told Williams "that he had f__ed

up a package of dope that belonged to [petitioner]. He smok{ed]

up all the crack in the package[.]”

11

Court reviewed and rejected petitioner's claim as a claim of

ineffective assistance of counsel. Commonwealth v.

Fletcher, 750 A.2d at 275-76. Petitioner's claim that the

Statement's admission constitutes court error is therefore

raised for the first time in this Court and is, therefore,

unreviewable. United States v. Williams, 504 U.S. 36

(1992); Illinois v. Gates, 462 U.S. 213 (1983); United States

v. Ortiz, 422 U.S. 891 (1975).

Moreover, even in the guise of his ineffective

assistance claim, petitioner did not assert a violation of the

confrontation clause below; his claim addressed only

Pennsylvania law.'* For this reason as well, petitioner's claim

is improperly presented to this Court and unreviewable.

United States v. Williams, supra; Illinois v. Gates, supra:

United States v. Ortiz, supra."

= In his brief to the Pennsylvania Supreme Court, referring

to the trial testimony of Ronald Williams at N.T. 1/29/93, 36-44,

petitioner claimed that his "trial counsel was ineffective in failing

to object to hearsay testimony...describing a motive for the shoot-

ing" (emphasis supplied). In his argument, petitioner related that a

statement introduced on cross-examination indicated that the vic-

tim had "received from [defendant] a package of drugs but failed

to account for the proceeds thereof." Petitioner complained that

"Such testimony was clearly hearsay, but defense counsel did not

object thereto.” Petitioner's ineffectiveness claim did not mention

any constitutional theory of denial of confrontation rights. The

sole and very specific basis of the ineffectiveness claim was trial

counsel's failure to object to “hearsay testimony." This invoked

the state law of evidence, not the confrontation theory to which

petitioner now turns in hindsight. Petitioner's brief did not even

mention the word "confrontation."

vi Petitioner's assertion, in a post-appeal petition for

(Continued)

12

That petitioner raised an unsuccessful ineffectiveness

claim based on a hearsay theory on appeal does not entitle

him to raise, on petition to this Court, an entirely new claim

(based in significant part on Lilly v. Virginia, 527 U.S. 116

(1999), handed down years after the supposed ineffectiveness

took place) based on a confrontation theory. As explained by

this Court in California v. Green, 380 U.S. 149 (1970), a

hearsay theory is not a confrontation theory:

While it may be readily con-

ceded that hearsay rules and the

Confrontation Clause are gen-

erally designed to protect simi-

lar values, it is quite a different

(Continued)

reargument, of a Confrontation Clause violation does not preserve

the claim. This Court has repeatedly refused to consider ¢’ims

that are raised for the first time in a petition for rehearing when

the state court has summarily denied the petition, as here. Adams

v. Robertson, 520 U.S. 83, 117 S.Ct. 1028, 1031 n.3 (1997); Board

of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537,

550 (1987); Hanson v. Denckla, 357 U.S. 235, 244 n.4 (1958).

The Pennsylvania Supreme Court did not address the reargument's

newly-asserted federal claims. Petitioner may not have review of

them in this Court.

Petitioner cannot revive his waived claim by asserting

that the Pennsylvania Supreme Court implicitly considered his

claim in its review to determine whether the capital sentence was

the result of "passion, prejudice, or any other arbitrary factor"

(Petition at 8 n.3). The Court considered the claim petitioner

raised. There is absolutely no reason to believe it considered and

silently rejected a federal claim petitioner did not assert, while

simultaneously ignoring the fact that it arose as an ineffectiveness

claim.

13

thing to suggest that the over-

lap is complete and that the

Confrontation Clause is noth-

ing more or less than a codifi-

cation of the rules of hearsay

and their exceptions as they ex-

isted historically at common

law. Our decisions have never

established such a congruence;

indeed, we have more than

once found a violation of con-

frontation values even though

the statements in issue were ad-

mitted under an arguably rec-

ognized hearsay exception ...

the converse is equally true:

merely because evidence is ad-

mitted in violation of a long-

established hearsay rule does

not lead to the automatic con-

clusion that confrontation

rights have been denied.

380 U.S. at 155-56; Dutton v. Evans, 400 U.S. 74, 81-82

(1970).

Petitioner's claim, even had it been preserved, would

not present a meritorious question. The confrontation clause

was not offended by the admission of the victim's statement

to Williams about messing up the drugs under either of two

established exceptions to the hearsay rule, admissions against

interest and state of mind.

The confrontation clause permits the admission of

hearsay statements against a defendant, despite his inability

14

to confront the declarant at trial, where the declarant is

unavailable and the statement bears adequate indicia of reli-

ability. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Where a

declarant makes a statement inculpating both himself and

another, with no attempt to limit his own exposure to crimi-

nal liability, his statement will be regarded as a firmly-rooted

exception for confrontation clause purposes. United States v.

Barone, 114 F.3d 1284, 1302 (1st Cir.), cert. denied, 522

U.S. 1021 (1997). As the Second Circuit has repeatedly held,

a statement incriminating the declarant and another person

possesses adequate reliability if it is made to an ally, rather

than a law enforcement officer, and the circumstances sur-

rounding the inculpation of the other person provide no rea-

son to suspect that that portion is less reliable than the part

that incriminates the declarant. Such reliability is present

where the statement is volunteered by the declarant to a

friend, with no coercive pressures from or attempt to curry

favor with authorities; no reason to expect that his admission

will ever be disclosed to authorities; and no attempt to shift

blame or minimize his own culpability. United States v.

Sasso, 59 F.3d 341, 349 (2nd Cir. 1995), citing United States

v. Matthews, 20 F.3d 538, 546 (2d Cir. 1994)."*

The circumstances justifying the admission of a state-

ment against interest as a firmly-rooted hearsay exception are

present in the declarant's statement to Ronald Williams.

Ronald Williams was friendly with petitioner, whom he

knew as "Ant Man." The declarant's confiding to Williams

that he had messed up a package of crack belonging to peti-

tioner was clearly not made under the desire to curry favor

with authorities or with the expectation that Williams,

1S

The same analysis applies under Federal Rule of Evidence

804(b)(3). United States v. Shukri, 207 F.3d 412, 417 (7th Cir.

2000).

15

petitioner's friend, would disclose it to the authorities. Peti-

tioner was not on trial for drug possession and the declarant

had nothing to gain from implicating him. The statement

was assuredly not made with the knowledge that petitioner

would subsequently murder the declarant. Moreover, the

declarant's statement made no attempt to shift blame or

minimize his responsibility for drug activity; he admitted

possession and use of the crack (N.T. 1/20/93, 22-23;

1/21/93, 10-11). He had no reason to inculpate himself in a

crime if the statement were not true. The deciarant

undoubtedly had personal knowledge of the truth of the

matter he spoke about, he volunteered the statement and there

is no reason to suspect he was not telling the truth. Thus, the

self-incriminating nature of the statement, and the

circumstances under which it was made, enable it to pass

confrontation clause muster as an admission against interest,

both as a firmly-rooted exception and because the statement

contains sufficient indicia of reliability. United States v.

Sasso, supra (declarant's statement to girlfriend implicating

self and defendant admissible under firmly rooted hearsay

exception as admission against interest); United States v.

Matthews, supra (same); United States v. McManaman, 653

F.2d 458, 461 (10th Cir. 1981) (emphasizing importance of

declarant's personal knowledge of events); Barker v. Morris,

761 F.2d 1396, 1402 (9th Cir. 1985), cert. denied, 474 U.S.

1063 (1986) (emphasizing importance of voluntary nature of

statement); United States v. Chappell, 698 F.2d 308, 313 (7th

Cir.), cert. denied, 461 U.S. 931 (1983) (emphasizing

importance of declarant's lack of motivation to lie).'®

—

= In his discussion of the state of mind exception, addressed

infra, petitioner cites Lilly v. Virginia, 527 U.S. 116 (1999), for

the proposition that declarations against interest are not firmly-

rooted exceptions to the rule against the admission of hearsay

(Continued)

16

In addition, the declarant was obviously reporting his

own state of mind. His statement expressed his concern and

apprehension that petitioner had reason-to be angry with him,

because he had "smoked up" drugs he had obtained from

(Continued)

(Petition at 16-17). Petitioner's reliance is misplaced. First, the

portion of the Lilly opinion on which petitioner relied is a plural-

ity opinion and has no precedential value. Second, Lilly was

decided long after petitioner's trial and could not have been antici-

pated. Third, the Lilly plurality discussion does not declare that

all declarations against interest are not firmly-rooted hearsay

exceptions. Instead, it divides declarations against penal interest

into three types: (1) voluntary admissions against the declarant;

(2) as exculpatory evidence offered by a defendant who claims

that the declarant committed, or was involved in, the offense; and

(3) as evidence of the guilt of an alleged accomplice of the declar-

ant. The plurality declares the first type of statement to be a

firmly-rooted exception; that the second type, traditionally offered

by the accused, does not implicate the confrontation clause; and

that the third type - accomplices’ confessions that inculpate a

criminal defendant - is not a firmly rooted exception.

The victim's statement to petitioner's friend is most akin to

a statement of the first type. It was not a confession to police, it

did not attempt to minimize the victim's responsibility for the drug

offense, and it did not attempt to exculpate petitioner. In implicat-

ing himself in a drug offense, the victim could not possibly have

known that his words would later imr*icate defendant in a murder

in which he would be the victim. Moreover, the courts that have

analyzed the specific factual situation presented by the victim's

statement here -- an admission of declarant's and someone else's

criminal wrongdoing to a friend, with no attempt to diminish the

declarant's own responsibility and no expectation that the admis-

sion will be conveyed to the police -- have found that the state-

ment constitutes a firmly-rooted hearsay exception. United States

v. Sasso, supra; United States v. Matthews, supra.

17

petitioner. This qualified the statement under a second,

equally sound hearsay exception, the state of mind exception

to the hearsay rule; his mental state suggested a motive for

petitioner to have killed him. See, e.g., Moore v. Reynolds,

153 F.3d 1086, 1107 (10th Cir. 1998), cert. denied, 526 U.S.

1025 (1999) (victim's statement that he feared appellant

admissible in appellant's trial for his murder under the state

of mind exception to the hearsay rule; and opining that state

of mind is a firmly rooted hearsay exception); Barber v.

Scully, 731 F.2d 1073 (2d Cir. 1984) (victim's statement that

she feared appellant was admissible evidence of her state of

mind on charge of larceny of car by appellant because it

tended to show whether she would have given him

permission to use her car). See also United States v. Vretta,

790 F.2d 651, 660 (7th Cir.), cert. denied, 479 U.S. 851

(1986) (confrontation clause not offended by admission of

victim's reports that the appeilant had been threatening him in

appellant's prosecution for the victim's murder).

Moreover, even if the court had erred in admitting

evidence of the victim's statement to Williams, no relief

would be due. As already explained, petitioner's conviction

was not the product of the victim's statement that he had

messed up a package of drugs for petitioner, but of the

testimony of an eyewitness that petitioner walked up to the

victim, confronted him and shot him repeatedly."’

“i Petitioner asserts that Shepard v. United States, 290 U.S.

96 (1933), defeats the admission of the victim's statement. In

Shepard, a doctor was convicted of poisoning his wife on the basis

of her statement, made to a nurse just before her death, "Dr.

Shepard has poisoned me." The Shepard decision makes no men-

tion of the confrontation clause, for the simple reason that the

confrontation clause was not in issue. The Shepard court held, as

a matter of the law of evidence, that the statement, "Dr. Shepard

(Continued)

18

Indeed, the testimony in question here not only failed

to offend the confrontation clause, the same result would

apply even under Pennsylvania law. The declarant's state-

ment was admissible as both an admission against penal

interest, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d

234 (1982) (declarant's statement that he had conspired with

appellant to commit arson at appellant's trial for murdering

declarant admissible as admission against penal interest), and

under the state of mind exception, Commonwealth v. Puksar,

559 Pa. 358, 368 n.6, 740 A.2d 219, 225 n.6 (1999), cert.

denied, (U.S. 10/2/00) (victim's statement that he did not

trust appellant and that the victim and appellant were

involved in a dispute admissible evidence of state of mind);

Commonwealth v. Chandler, 554 Pa. 401, 411, 721 A.2d

1040, 1045 (1998) (murder victim's statement to her mother

regarding breakdown in relationship with accused admissible

(Continued)

has murdered me" was not admissible under the state of mind

exception, where it was erroneously offered as a dying declara-

tion, and referred to "a past act, and, more than that, to an act by

some one not the speaker." 290 U.S. at 105.

Further, Shepard is factually apposite to this case. Here,

the declarant referred only to his own actions, not past actions of

the defendant. He referred to his own actions, moreover, only to

explain his own contemporaneous state of mind, and in so doing

incriminated himself in a drug crime. The statement here was not

merely admissible, it was unusually reliable.

Petitioner's citation to Shepard for the additional proposi-

tion that the jury's having heard the victim's "voice beyond the

grave" added to the alleged prejudice (Petition at 19), is mis-

placed. Unlike the voice in Shepard, the victim was not heard

posthumously to accuse petitioner of murdering him, but to admit

to drug-dealing with a friend.

19

as state of mind); Commonwealth v. Collins, 550 Pa. 46,

58-60, 703 A.2d 418, 424-25, cert. denied, 525 U.S. 1015

(1998) (victim's statement that appellant had shot her in the

past and would shoot her in the head if she messed up a drug

package admissible as state of mind).

Finally, in addition to the confrontation clause claim,

petitioner also throws in a one-paragraph argument that the

trial judge's jury charge was improper because he allegedly

opined that the testimony concerning the drug deal estab-

lished motive (Petition at 20). Petitioner failed to object to -

the court's instruction at trial, thereby waiving any possible

claim. United States v. Gignac, supra.

Additionally, the court thoroughly and repeatedly

instructed the jurors that they were the finders of fact, not-

withstanding any comments by the court or the attorneys.

The court further instructed the jury to disregard any state-

ment of the court that did not accurately reflect its own recol-

lection (N.T. 1/19/93, 34; 1/29/93, 28, 30-38). Finally, after

summarizing the prosecution's evidence of motive, the court

emphasized that: |

[Y Jou [the jurors] make your

own determination... It is

entirely up to you to determine

what weight, if any, should be

given to the evidence concern-

ing motive in this case.

N.T. 1/29/93, 57-59). Accordingly, there is no merit to peti-

tioner's claim.

20

Ill. PETITIONER'S CLAIM THAT THE PROSECU-

TOR COMMITTED MISCONDUCT IN HIS

PENALTY HEARING CLOSING ARGUMENT

IS WAIVED; IT ALSO FAILS TO PRESENT A

MERITORIOUS FEDERAL QUESTION.

Petitioner claims that the prosecutor committed mis-

conduct of constitutional proportion during his comments at

the penalty hearing (Petition at 20-25). Petitioner's claims

are unreviewable. Petitioner raised no objection at trial to the

remarks he now assails on multiple grounds. Accordingly,

petitioner may not have review of his claims that the prosecu-

tor violated the constitution. United States v. Gignac, supra.

Indeed, petitioner claimed in his state court appeal that trial

counsel was ineffective for failing to object to the prosecu-

tor’s remarks, thereby explicitly conceding his failure to

object to them at trial. The Pennsylvania Supreme Court

reviewed and rejected petitioner's claim as a claim of ineffec-

tive assistance of counsel. Commonwealth v. Fletcher, 750

A.2d at 280. Petitioner's present claim that the remarks were

reversible error in themselves is therefore raised for the first

time in this Court and, therefore, unreviewable. United

States v. Williams, supra; Illinois v. Gates, supra; United

States v. Ortiz, supra.

The claims are unreviewable for an additional reason:

petitioner's ineffective assistance challenge regarding the

remarks was different than his present argument about them.

Petitioner claimed below that trial counsel was ineffective

because the prosecutor's remarks about petitioner's drug

motive were irrelevant and prejudicial, and therefore

improper as a matter of Pennsylvania law. Commonwealth v.

Fletcher, 750 A.2d at 280. Now petitioner is claiming that

the prosecutor violated the federal constitution by comment-

ing that petitioner failed to explain the circumstances of the

21

crime; that petitioner lacked remorse; and that the jury should

exercise vengeance toward petitioner. Thus, even putting

aside petitioner's abandonment of the ineffective assistance

theory that was the only claim preserved below, petitioner's

present constitutional attacks on the prosecutor would still be

new, and are therefore unreviewable. United States v. Wil-

liams, supra; Illinois v. Gates, supra; United States v. Ortiz

supra.

Even if reviewable, petitioner's claims would not pre-

sent a meritorious federal question. Petitioner first asserts

that the prosecutor improperly commented on his failure to

explain the circumstances of the offense, particularly in light

of the trial court's alleged ruling prohibiting him from dis-

cussing those circumstances. That is not what happened. At

the outset of his penalty hearing testimony, petitioner stated

that he wanted to pay his respects to the victim's family. He

returned to that subject at the conclusion of his direct testi-

mony, and explained that he felt "hurt" at the victim's death,

and later declared, "I feel sorry for the family. I know they

wish he was here and I wish personally he was here. [ swear

to God, I wish he was here." Petitioner also denied that he

had any involvement with drugs, denied selling drugs and

asserted that he had declined an offer to serve as a bouncer at

a drug house (N.T. 2/2/93, 115, 128, 138-39, 145).

In that context, it is clear that the prosecutor's remarks

did not:criticize petitioner for failing to explain the circum-

stances of the murder or for exercising his constitutional right

to silence, and did not constitute an appeal to vengeance.

Rather, the prosecutor criticized the testimony petitioner did

offer on those matters as being insincere:

When [petitioner] took the

stand yesterday and had people

22

testify on his behalf, if there

was a real reason for his activi-

ties in dealing drugs and there

was a real sense of honesty and

true remorse about his killing

of [the victim] because of drug

involvement, he would have

told you; he would have admit-

ted it like a man and he would

have, at that time, asked you

for mercy. But, that has never

happened in this case, so, I

submit to you, the time for

mercy is long since past.

N.T. 2/3/93, 7.'°

As previously addressed in response to petitioner's

first claim, the court did not prohibit petitioner from offering

his version of the offense; the court merely held that he could

not attempt to exculpate himself by denying the murder alto-

gether. Additionally, the prosecutor's remarks went not to

petitioner's failure to explain the circumstances relating to the

murder, but rather to the credibility of the explanation he did

offer, namely his assertion that he was not involved with

drugs. Accordingly, the prosecutor's remarks were proper.

The prosecutor concluded by stating:

I'm not here to beg you to do anything or try to

influence you to do anything. I submit to you, if

you follow the law, you will do what's right for all

involved here.

N.T. 2/3/93, 15.

23

Petitioner cites Doyle v. Ohio, 426 U.S. 610 (1976),

for the proposition that a prosecutor cannot prevent a defen-

dant from testifying as to the facts of a case and then criticize

him for not testifying. In that case, the defendant's rights

were found to have been violated where he exercised his

Miranda right to remain silent, then testified at trial that he

had been "framed," and the prosecutor impeached his trial

testimony by asking him why he had not mentioned being

"framed" upon his arrest. Here, the prosecutor did not pre-

vent petitioner from testifying that the murder was not drug-

related. Moreover, his attack was on the testimony petitioner

offered at the penalty hearing. He did not criticize peti-

tioner's failure to give that testimony at an earlier stage.

Nor did the prosecutor's remark implicate petitioner's

right to silence for failing to express remorse. The prosecu-

tor's criticism was directed at the nature of the remorse to

which petitioner testified, and properly anticipated peti-

tioner’s argument for mercy. Defense counsel's closing argu-

ment, in which he explained that the reason petitioner

testified was to express his remorse, precludes the possibility

that the jury would have misinterpreted the prosecutor's re-

marks as a reference to silence based on an alleged failure to

express remorse:

[M]y first question to [peti-

tioner] was "Tell me about

your boxing career," and the

thing that he wanted to say and

the thing that he wanted to tell

you and the thing that he

wanted to tell the victim's fam-

ily was that he was sorry and

was remorseful for what he

did.... So, I submit to you that

24

when [the prosecutor] stands

up and says to you, you learned

a whole lot more [about peti-

tioner's prior crimes], you

learned about that because

[petitioner] wanted to place

before you his remorse for

what he did.

*e EEX *

[Petitioner] wanted to express

his remorse to the victim's fam-

ily. Remorse, in and of itself, I

believe, is in this situation a

mitigating circumstance.

N.T. 2/3/93, 19, 30. A prosecutor may attack the sincerity of

the account of events a defendant provides without thereby

implicating his right to silence. Howard v. Moore, 131 F.3d

399 (4th Cir. 1997) (prosecutor's remark that defendant had

not shown remorse was proper comment on the evidence pre-

sented and fair response to defense counsel's argument that

defendant was indeed remorseful). See Portuondo v. Agard,

120 S.Ct. 1119, 1125 (U.S. 2000) (when a defendant takes

the stand, his credibility may be impeached and his testimony

assailed like that of any witness); United States v. Cabrera,

201 F.3d 1243, 1250 (9th Cir. 2000) (same); United States v.

Brennan, 994 F.2d 918, 926 (1st Cir. 1993) (same). As

explained, the prosecutor criticized the expressions of

remorse petitioner offered; he did not chastise him for failing

to offer any remorse.

Next, petitioner asserts that the prosecutor's assertion

that the time for mercy had passed violated due process. The

25

authority he cites does not support his argument. California

v. Brown, 479 U.S. 538 (1987), holds that an instruction that

the jury must not be swayed by "mere sentiment, conjecture,

sympathy, passion, prejudice, public opinion or public feel-

ing" does not violate the Eighth Amendment. Nor does the

non-precedential plurality opinion in Gregg v. Georgia, 428

U.S. 153 (1976), state that due process is violated by an argu-

ment such as the prosecutor made here. Finally, Drake v.

Kemp, 762 F.2d 1449, 1458 (11th Cir. 1985), cert. denied,

478 U.S. 1020 (1986), is wholly distinguishable from this

case. There, the prosecutor was found to have invoked

vengeance where he read a quote from a century-old state

supreme court case stating in part that "the false humanity

that starts and shudders when the axe of justice is ready to

strike is a dangerous element for the peace of society.... We

have had too much of this mercy."

The prosecutor's argument in this case is readily dis-

tinguishable from that condemned in Drake. The prosecutor

did not invoke the authority of prior supreme court decisions;

his argument was not graphic; he did not argue that mercy

was never appropriate; he simply argued that the jury should

not apply mercy to petitioner.'? Cf. Duvall v. Reynolds, 139

F.3d 768, 795 (10th Cir.), cert. denied, 525 U.S. 933 (1998)

(due process not violated even where prosecutor stated that

the court had spent four days guaranteeing defendant's right

to instructions on mitigation, fairness and mercy and that

defendant was treated "much more fairly, and with much

more mercy than he showed [the victim]...."). Accordingly,

petitioner is not entitled to the grant of certiorari.

19

Moreover, Drake was not a constitutional decision.

PLM Y pes ecw

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26

CONCLUSION

For the foregoing reasons, the Commonwealth of

Pennsylvania respectfully requests that this Court deny the

petition for a writ of certiorari.

Respectfully submitted,

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

ANTHONY V. POMERANZ

Assistant District Attorney

CATHERINE MARSHALL

Chief, Appeals Unit

ARNOLD H. GORDON

First Assistant District Attorney

LYNNE ABRAHAM

District Attorney