GIBSON v. BEARD et al

Filing 88

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 2/29/16. 2/29/16 ENTERED AND COPIES MAILED, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEROME GIBSON
v.
JEFFREY BEARD, et al.

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CIVIL ACTION

NO. 10-445

MEMORANDUM
Dalzell, J.
I.

February 29, 2016

Introduction
We consider here petitioner’s objections to the Report and Recommendation (“R & R”)

issued by the Honorable Carol Sandra Moore Wells.
Jerome Gibson filed this counseled petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 against Jeffrey Beard, the former Secretary of the Pennsylvania Department of
Corrections, and Louis Folino, the Superintendent of the State Correctional Institution at Greene.
Judge Wells found Gibson’s claims to lack merit. Gibson now objects to the R & R, stating that
Judge Wells erred when analyzing his Brady claims, ineffective assistance of counsel claims,
challenge to the reasonable doubt instructions, prosecutorial misconduct claims relating to the
testimony of Michael Segal, claims related to testimony regarding Gibson’s hypothetical
question to police, and cumulative error claim.
Gibson also objects to Judge Wells’s denial of his final motion for discovery and requests
an evidentiary hearing to develop facts in support of his claims. Finally, he asks in the
alternative that we grant a certificate of appealability even if we approve and adopt the R & R.
For the reasons set forth below, we will overrule Gibson's objections to the R & R, deny
his request for an evidentiary hearing, and decline to issue a certificate of appealability.

II.

Standard of Review
Gibson objects to the R & R pursuant to Local R. Civ. P. 72.1 IV(b), which provides that

“[a]ny party may object to a magistrate judge’s proposed findings, recommendations or report
under 28 U.S.C. 636(b)(1)(B) … within fourteen (14) days after being served with a copy
thereof” by filing “written objections which shall specifically identify the portions of the
proposed findings, recommendations or report to which objection is made and the basis for such
objections.” We make de novo determinations on those portions of the R & R and specific
proposed findings or recommendations to which the petitioner objects. See 28 U.S.C. § 636.

III.

Factual and Procedural History
We recite the facts and procedural history as evidenced by the record and Judge Wells’s

R & R.1
On the morning of September 29, 1994, Gibson sought to obtain an
automobile, as his car had recently broken down. He asked a
friend, Sean Hess, for $200 so that he could purchase a new
vehicle. When Hess refused, Gibson spoke of “making a move,”
meaning that he would commit a robbery.
At approximately noon on that same day, Gibson went to an
automobile dealership in Bristol Township to look for a
replacement vehicle. Although he expressed an interest in
purchasing a vehicle that was shown to him by salesman Glen
Kashdan, he did not have the necessary funds. He told Kashdan,
however, that his mother maintained sufficient funds in a bank
account in Bristol Borough to pay for the vehicle. After Kashdan
drove Gibson to the bank in a fruitless effort to withdraw the nonexistent funds, he dropped Gibson off at a shopping center in
Bristol Township, about one mile from the eventual scene of the
crime. Gibson was wearing a dark hooded sweatshirt and jeans.
Melissa Paolini, who worked at the bank where Kashdan had taken
Gibson, observed the two men enter the bank at approximately
1

We may properly reference Judge Wells’s factual and procedural history because
Gibson did not object to this portion of the R & R. Moreover, our thorough review of the record
confirms that Judge Wells’s recitation of the factual and procedural history in this case is
accurate.
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1:15 p.m. Gibson's picture was taken by the bank's monitor camera
and was later identified by Paolini at trial. The picture clearly
depicted Gibson wearing a dark hooded sweatshirt.
Shortly before 2:00 p.m., Gibson met Paulinda Moore, a long-time
acquaintance, in the shopping center. Gibson showed Moore a
handgun that was tucked into the waistband of his pants and stated
that he needed money and was going to rob somebody. He added
that if his prospective victim saw his face, he would shoot him.
Gibson and Moore then parted company and Gibson continued on
foot to Bristol Borough.
Kevin Jones, another acquaintance, encountered Gibson a little
while later. Gibson informed Jones that he knew “a guy that had
money,” whom he was going to rob, killing him if necessary.
At approximately 2:00 p.m., Vera DuBois, Gibson's aunt, saw
Gibson on foot in Bristol Borough and noticed that he was wearing
a dark hooded sweatshirt. At 2:20 p.m., Gibson entered a jewelry
store. Leonard Wilson, the store's proprietor, became suspicious of
Gibson when he noticed that Gibson appeared to be observing the
store itself, rather than looking at jewelry. After a brief
conversation with Wilson, Gibson left the store.
Between 2:30 and 3:00 p.m., Kimberly Rankins, another
acquaintance, nearly hit Gibson with her car as he was crossing
Mill Street in the direction of the Ascher Health Care Center
(“Ascher Health”) in Bristol Borough. The last time that Rankins
observed Gibson that day, he was wearing a dark blue sweatshirt
and was approximately twenty-five feet away from the entrance of
Ascher Health, walking towards it.
Shortly before 3:00 p.m., Michael Segal, a shopkeeper at a store
directly across the street from Ascher Health, heard a gunshot from
inside Ascher Health. Segal looked across the street and saw
Robert Berger, the proprietor of Ascher Health, struggling with an
assailant behind the store counter. When Segal observed that the
assailant had a gun, he dialed “911.” While on the telephone, he
heard two more gunshots. He looked across the street and saw
Berger lying on the floor while the assailant rifled through the cash
register drawers. Segal then observed the assailant leave the store,
stuffing items into his pants, and walk up Mill Street towards an
apartment building. Segal was unable to see the assailant's face,
but he did observe that the man was wearing a dark blue hooded
sweatshirt. Segal later testified at trial that the man's size, build and
complexion matched those of Gibson.

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Alfonso Colon, who was in a second floor apartment above Ascher
Health that afternoon, walked downstairs and went outside after
hearing the three gunshots. He saw Gibson, whom he positively
identified at trial, leaving Ascher Health and walking toward him
while stuffing an object that appeared to be a handgun into his
pants. Upon seeing Colon, Gibson crossed Mill Street and headed
in a different direction.
At 2:58 p.m., the police responded to Segal's call. They entered
Ascher Health and found Berger lying dead on the floor from
gunshot wounds. A cash drawer was open and there was an empty
gun holster on the floor. Berger was pronounced dead upon arrival
at the hospital at approximately 3:45 p.m. An autopsy revealed that
he had suffered three gunshot wounds: a fatal wound to the left
chest, a wound to the upper right chest, and a wound to the upper
left arm. Two .32 caliber projectiles were removed from the body.
It was later determined that approximately $1,400 in cash had been
stolen during the robbery, along with a .38 caliber handgun
belonging to Berger. There was no evidence that Berger's gun had
been fired during the robbery.
Shortly after 3:00 p.m. on the day of the shooting, Gibson arrived
at the home of his cousin, Pamela Harrison. When Harrison
responded to Gibson's knock on her door, she observed that he was
wearing a dark hooded sweatshirt and was sweating. Harrison also
heard police sirens. Gibson asked to come into the house and
Harrison admitted him, noticing that he was carrying a handgun.
After hiding his sweatshirt in Harrison's basement, Gibson left the
house. He returned later that evening and retrieved the sweatshirt
without Harrison's permission.
After leaving Harrison's house, Gibson met his friend, Sean Hess,
in the shopping center where Gibson had been earlier that day.
Gibson told Hess that he had shot a man three times and taken his
money. Gibson also stated that the victim had a gun, but that he
had used his own gun.
The following day, while at a bar, Gibson admitted to Bernard
McClean that he had shot the old man in Bristol three times,
explaining that he had been broke and needed the man's money. He
later told his friends, Herman Carroll and Eddie Jones, that he had
robbed and killed the victim. He also told Edward Gilbert, another
friend, that he had killed the victim to obtain money with which to
purchase a vehicle. He gave Gilbert the .32 caliber handgun, along
with Berger's .38 caliber handgun, to keep for him. Berger's gun

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was later recovered at a motel in Bristol Township, but Gibson's
gun was never located.
On October 2, 1994, three days after the murder, two detectives
from the Bucks County District Attorney's Office, who had
received information implicating Gibson in the murder, went to the
apartment where Gibson was staying and waited outside in their
car. Shortly thereafter, Gibson and some other individuals came
out of the apartment. Gibson approached the detectives and asked
them if they wished to speak with him. In response to Gibson's
inquiry, the detectives told him that they wished to talk to him
about a murder that had occurred on Mill Street on September 29,
1994. Gibson asked if he was under arrest and the officers replied
that he was not. They suggested, however, that Gibson speak with
them at the Bristol Borough Police Station, since there were other
people nearby. The detectives made it clear that Gibson could
proceed to the station by his own transportation, that he would be
free to leave the station at any time, and that he could terminate the
conversation whenever he wished. Gibson acquiesced and
followed them to the police station in his own vehicle, which he
had purchased the day after the shooting.
Upon arriving at the police station, the detectives led Gibson to an
interview room, where another detective and a Bristol Borough
police officer joined them. Gibson was again advised that he was
not under arrest and could leave the station at any time. When the
detectives told Gibson that they wanted to discuss the robbery and
murder of Berger, he indicated that he wanted to clear the matter
up and would speak with them. The interview lasted for a little
over two hours, during which Gibson not only denied any
culpability for the shooting, but also denied having been in Bristol
Borough at any time after August 2, 1994. Following the
interview, Gibson agreed to a search of his vehicle and signed a
consent form. During the search, Gibson initiated a conversation
with one of the detectives, asking him a hypothetical question
regarding what would happen if someone were attacked by a man
with a gun and shot and killed his attacker. Gibson then left the
police station in his vehicle.
On October 6, 1994, Gibson was arrested and charged with the
robbery and murder of Berger, as well as possession of instruments
of crime. Bail was denied, and while Gibson was incarcerated
pending trial, he admitted to inmates Glenn Pollard, Kenneth
Johnson and Kevin Jones that he had committed the crimes. Prior
to trial, Gibson moved to suppress his statements to the police
during the October 2, 1994 interview, as well as the statement that
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he made to the detective during the search of his car. The motion
was denied following a hearing, and the case proceeded to trial.
During the guilt phase of trial, the Commonwealth presented the
testimony of the numerous witnesses who had seen or spoken with
Gibson either immediately before or after the shooting, including
the testimony of those witnesses to whom Gibson had inculpated
himself. Additionally, several detectives and police officers
testified for the Commonwealth concerning their observations of
the crime scene, the collection of evidence, and the statements that
Gibson made during the course of his interview, as well as his
hypothetical question concerning the shooting.
Gibson presented five witnesses whose testimony supported his
alibi defense and contradicted the testimony of certain inmates
who had testified concerning his inculpatory statements. Gibson
also took the stand and testified that he was not on Mill Street on
the afternoon of the murder, but did admit that he had been with
Kashdan, the car salesman, at the bank in Bristol Borough earlier
that day. Gibson further admitted that he had lied to the police
concerning his whereabouts on the day of the murder.
At the conclusion of the guilt phase, the jury found Gibson guilty
of first-degree murder, robbery and possession of instruments of
crime.
Commonwealth v. Gibson, 720 A.2d 473, 476-79 (Pa. 1998).
At the penalty phase, the jury determined that Gibson should be sentenced to death. Id. at
478. The Pennsylvania Supreme Court affirmed the verdict and sentence after Gibson appealed.
Id. at 485. The Supreme Court of the United States denied certiorari in 1999. Gibson v.
Pennsylvania, 528 U.S. 852 (1999).
Gibson then sought relief under the Post Conviction Relief Act (“PCRA”) 42 Pa.C.S.A. §
9541, et seq. The PCRA court denied guilt-phase relief but awarded a new sentencing hearing.
Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007). The Pennsylvania Supreme Court
affirmed this conclusion and transferred Gibson’s appeal to the Superior Court for appellate
review of the trial court’s guilt-phase rulings. Id. at 171. The Pennsylvania Superior Court
found Gibson’s claims to be either waived or without merit. Commonwealth v. Gibson, Nos.
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1778 & 1779 EDA 2007, slip op. at 1-35 (Pa. Super. Ct. July 8, 2008). The Pennsylvania
Supreme Court denied allowance of appeal in February of 2009.
Gibson filed the petition before us on January 29, 2010. Judge Wells issued her R & R
on July 28, 2015, and Gibson timely filed his objections on October 27, 2015. We consider
those objections here.

IV.

Discussion
Gibson objects to Judge Wells’s findings on his Brady claims, ineffective assistance of

counsel claims, challenge to the reasonable doubt instructions, prosecutorial misconduct claims
relating to the testimony of Michael Segal, claims related to testimony regarding Petitioner’s
hypothetical question to police, and cumulative error claim. We will analyze each objection
separately and pursuant to the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

A.

AEDPA Standard

The standards from AEDPA govern our de novo review. AEDPA permits one in state
custody to file a petition in federal court seeking a writ of habeas corpus, 28 U.S.C. § 2254(a),
but mandates great deference to the state court’s factual findings and legal determinations. See
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (explaining Section 2254(d)’s highly deferential
standard for evaluating state court rulings); see also Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.
2000) (explaining that AEDPA increased the deference federal courts must give to the state
court’s factual findings and legal determinations). In fact, AEDPA only permits a federal court
to grant habeas relief when it finds that a state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or that the state court decision 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).
7

Moreover, we must presume that the findings of fact made by the state court are correct, and the
petitioner bears the burden of rebutting that presumption by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
A state court’s finding is “contrary to” Supreme Court precedent if the state court “arrives
at a conclusion opposite to that reached by this Court on a question of law,” or “confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to ours.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision
can be considered an “unreasonable application” in two circumstances. First, a state court
decision is unreasonable when a court “identifies the correct governing legal rule…but
unreasonably applies it to the facts” of a particular case. Id. at 407. Second, a decision can be
considered unreasonable when a state court extends a legal principle espoused by the Supreme
Court to a new context or, conversely, refuses to extend that principle to a new context where it
should indeed apply. Id.
A state court decision is considered an unreasonable determination of the facts only when
the factual findings are “objectively unreasonable in light of the evidence presented in the statecourt proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Moreover, “[f]actual
determinations by state courts are presumed correct absent clear and convincing evidence to the
contrary.” Id. But, “deference does not imply abandonment or abdication of judicial review
[or]…by definition preclude relief.” Id.
A petitioner must exhaust his state court remedies before obtaining habeas relief. 28
U.S.C. § 2254(b)(1)(A). In Pennsylvania, an inmate exhausts his state court remedies by fairly
presenting his claims to the state court and then the Pennsylvania Superior Court, and he need
not seek allocatur from the Pennsylvania Supreme Court. Lambert v. Blackwell, 387 F.3d 210,

8

233-34 (3d Cir. 2004) (examining the effect of the Pennsylvania Supreme Court’s May 9, 2009
Order regarding appeals from criminal convictions and post-conviction relief matters).
If a petitioner fairly presented his claim to the state court, but the state court declined to
review the claim on the merits because of a failure to comply with a state procedural rule, then
the claim is procedurally defaulted. Harris v. Reed, 489 U.S. 255, 262-63 (1989). If a lower
state court has declined to review a claim based on a procedural default, and the claim is not later
addressed on the merits by a higher state court, then a federal habeas court must presume that the
higher state court’s decision was founded upon a procedural default identified by the lower state
court. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (explaining also that if a lower state court
comes to a reasoned judgment rejecting a federal claim and a higher court upholds that judgment
without explanation, then the habeas court must assume that the higher court rested upon the
same grounds as the lower state court). If a petitioner fails to exhaust a claim and it is clear that
the state court did not consider the claim because of a state procedural rule, then the claim is
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 (1991). For example, a state
court might not review a claim that had not been previously presented because of a state rule
establishing a statute of limitations for state collateral review of a conviction. See, e.g., Keller v.
Larkin, 251 F.3d 408, 415 (3d Cir. 2001) (citing 42 Pa. C.S. § 9545(b)(1), Pennsylvania’s statute
of limitations for filing PCRA petitions).
We also may not review procedurally defaulted claims unless the petitioner can
demonstrate a requisite cause for the default and that actual prejudice exists as a result of the
alleged violation of federal law, or that failure to consider the claims will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750. To demonstrate the requisite cause for a
petitioner's default, he must show that some objective factor external to the defense impeded his

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efforts to comply with the state’s procedural rules. Id. at 753. Such cause may include showing
that (1) the factual or legal basis for a claim was not reasonably available, (2) some interference
by state officials made compliance with the state procedural rules impracticable, or (3) there was
ineffective assistance of counsel from attorney error. Id.

B.

Brady Claims

Gibson first objects to the R & R’s disposition of his Brady claims. The Supreme Court
held in Brady v. Maryland that a prosecutor’s suppression of material evidence that was
favorable to the accused violated due process. 373 U.S. 83, 87 (1963). It later clarified that the
Brady rule applied to both exculpatory evidence and evidence that could be used to impeach
witnesses. See United States v. Bagley, 473 U.S. 667, 676 (1985). The failure to disclose
favorable evidence alone is not sufficient to establish a constitutional violation. See Johnson v.
Folino, 705 F.3d 117, 128 (3d Cir. 2013). A habeas petitioner is only entitled to relief when:
“(1) the evidence at issue is favorable to the accused; (2) the evidence was suppressed by the
state; and (3) the evidence is material.” Id.
Prosecutors have an affirmative duty to disclose evidence favorable to the accused, even
if the accused makes no disclosure request. See Strickler v. Greene, 527 U.S. 263, 280 (1999).
This duty extends to “any favorable evidence known to the others acting on the government’s
behalf…including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Those working on
the government’s behalf include the police officers and police departments working on the
specific case in question, but do not include “other government agencies that have no
involvement in the investigation or prosecution at issue.” United States v. Merlino, 349 F.3d
144, 154 (3d Cir. 2003) (quoting United States v. Morris, 80 F.3d 1151, 1169 (7th Cir. 1996)).

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Evidence is material under Brady when there is “a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”
Simmons v. Beard, 590 F.3d 223, 234 (3d Cir. 2009) (quoting Bagley, 473 U.S. at 682). Brady
materiality is relative, as it “depends almost entirely on the value of the evidence relative to the
other evidence mustered by the state.” Johnson, 705 F.3d at 129 (quoting Rocha v. Thaler, 619
F.3d 387, 396 (5th Cir. 2010)). As our Court of Appeals has noted, “[s]uppressed evidence that
would be cumulative of other evidence or would be used to impeach testimony of a witness
whose account is strongly corroborated is generally not considered material…however,
undisclosed evidence that would seriously undermine the testimony of a key witness may be
considered material.” Id. (internal citations omitted). In a case, such as this one, where there are
potentially multiple Brady violations, the effect of those violations must be “considered
collectively, not item by item.” Kyles, 514 U.S. at 436. We must therefore review each Brady
claim brought by the petitioner, identify which claims are actual examples of the prosecution
suppressing favorable evidence, and then analyze the cumulative effect of those identified
violations on the trial. See Simmons, 590 F.3d at 234 (stating that a court must “first review
each individual Brady claim, and then discuss their collective effect on [the petitioner’s] trial”).

1.

Edward Jones

Gibson first brings a Brady claim with regard to Edward Jones, claiming that the
Commonwealth failed to disclose that Jones was an informant who was provided cash, auto
repairs, and an apartment by the Drug Enforcement Administration (“DEA”) and the Bristol
Township Police Department.

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At Gibson’s trial, Jones testified that Gibson had spoken to him about committing
robberies and recruited him to commit further robberies. Notes of Testimony (“N.T.”), March 9,
1995 at 346-348. Jones further stated that Gibson told him that he was going to rob a store in
Bristol Borough, and then later told Jones that he had killed a storekeeper in Bristol Borough. Id.
Finally, Jones testified that Gibson called the victim a “white devil,” or “cracker.” Id.
During the course of the post-conviction proceedings it was revealed that Jones had been
a paid informant for the DEA after being recruited by Detective R.J. Miles of the Bristol
Township Police. See N.T. April 7, 2001 at 264-265. Specifically, Jones received nearly
$10,000 in payments from the DEA, including $1,500 the day after he gave his statement against
Gibson. See PCRA1 Ex. D-69 (Jones Decl.) and PCRAR1 Ex. D-66B. Jones was also provided
with an apartment and payment for auto repairs. N.T. May 29, 2001 at 38-61.
Moreover, Jones retracted his trial testimony before the PCRA court, and testified in
2001 that Detective Mills had provided him with the story he gave during his initial interview
with the prosecution team working on Gibson’s case. Id. at 268. Notably, Detective Mills and
two DEA agents were in the room when Jones gave his initial statement incriminating Gibson to
Detective Robert Gergal, the lead Bucks County detective on the case.
We find that the evidence proffered by Gibson satisfies the first two prongs of Brady with
respect to the payments and favors provided to Jones. The defense team could easily have used
evidence that Jones was a paid informant to impeach his credibility, and thus this evidence was
favorable to Gibson. Further, we disagree with Judge Wells’s finding that the prosecution did
not suppress this evidence because the DEA and Bristol Township Police were not part of the
prosecution team. Agents from both entities were not only in the room while Jones gave his
initial statement, but they brought him to the meeting with Gergal. The Commonwealth’s

12

argument that the DEA and Bristol Township Police were not part of the prosecution team
because Gergal never asked Detective Mills or the DEA agents whether Jones was a paid
informant is unpersuasive. If we accept the idea that the lead detective on a case can simply turn
his head when a potential witness comes in accompanied by other law enforcement personnel,
we would set a terrible precedent that would incentivize active ignorance on the part of
investigative and prosecution teams. Gergal cannot in good faith claim that he had no idea or
was not in the least curious as to whether Jones was a paid informant. Moreover, Mills admitted
that he worked on the case, as he “prepared a report and referred it to the people who had
jurisdiction.” N.T. May 29, 2001, at 47.
We find that the evidence surrounding Jones’s status as a paid informant was “known…
to others acting on the government’s behalf.” Kyles, 514 U.S. at 437. We find it impossible that
a Detective who wrote reports for the prosecution team and personally accompanied a witness to
give his statement in a homicide case can be considered to be working for another government
agency that has “no involvement in the investigation or prosecution at issue.” Merlino, 349 F.3d
at 154. We will consider this claim when we cumulatively analyze the violations for materiality.

2.

Glenn Pollard

Gibson next brings a Brady claim on evidence as to Glenn Pollard. Pollard testified at
trial that Gibson had confessed to the murder of Berger when he overheard him talking to
another person. N.T. March 10, 1997 at 398. But the prosecution did not disclose that Pollard
frequently testified on behalf of the Commonwealth or that Pollard wrote to the Bucks County
District Attorney’s Office offering to testify in a separate case. N.T. May 29, 2001 at 89. Pollard
also wrote a letter to Bucks County Detective John Mullin requesting assistance in his criminal
matter from Mullin and the prosecutor, something that Gibson claims could have been used to
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impeach Pollard on cross-examination. Id. Finally, Pollard provided a statement concerning
drug dealings in a separate matter to the Bristol Township Police Department in 1991. Id.
Judge Wells found that the letter to the Bucks County District Attorney and the letter to
Detective Mullin satisfied the first two prongs of Brady, and thus considered them in her
materiality analysis. But, she found that Pollard’s statement to the Bristol Township Police in
1991 did not satisfy the first two prongs of Brady since the Bristol Township Police were not on
the prosecution team in Gibson's case. Gibson objects to this finding and we overrule his
objection. While we have found that Detective Mills of the Bristol Township Police was part of
the investigation team, and thus the prosecution had the duty to disclose information known to
the Bristol Township Police, providing a statement in a different case does not by itself create
impeachment evidence favorable to Gibson. We will consider only Pollard’s letters to Detective
Mullin and the Bucks County District Attorney in our materiality analysis.

3.

Cyril Thomas

Gibson also brings Brady claims regarding evidence allegedly suppressed relating to
Cyril Thomas, who testified at trial that he had received a gun from Eddie Gilbert, who in turn
testified that he received said gun from Gibson. N.T. March 9, 1995, 303. Gibson avers that the
prosecution suppressed evidence that Thomas possessed crack cocaine and a weapon when he
was arrested in 1994, and that he was threatened with prosecution in order to secure his trial
testimony. Obj. at 23. Judge Wells found that the claim relating to Thomas having crack
cocaine and a weapon in his possession was time barred, and that there was no evidence that
Thomas was actually threatened with prosecution to secure his testimony. Gibson objects and
we will overrule his objection.

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Gibson had actual possession of these documents since 2001 and yet never raised a claim
regarding them in the PCRA Court or his original habeas petition. N.T. April 27, 2001 at 27-28,
N.T. May 29, 2001 at 33. Gibson maintains that his challenge is timely, as it relates back to the
averments in the Petition that the Commonwealth was using charges against Thomas in order to
gain his cooperation. But, this claim is, in fact, different from the ones in Gibson’s original
Petition, and thus the claim is untimely under AEDPA’s one-year statute of limitations. See 28
U.S.C. § 2244(d)(1)(D).
We agree with Judge Wells’s finding that there is no evidence that the prosecution
offered Thomas a deal concerning his pending charges in exchange for his testimony against
Gibson. The only evidence Gibson points to is a notation in Thomas’s Juvenile Probation file
that Detective Mullin said he was going to threaten Thomas with prosecution if he did not
cooperate, something Detective Mullin denied. See Petition ¶¶ 42-45 and N.T. May 29, 2001 at
83-88. This does not suffice to show that this evidence exists, let alone that it was suppressed.
The Brady claims Gibson brought in relation to Cyril Thomas will not factor in our materiality
analysis.

4.

Paulinda Moore

Gibson next claims that the prosecution withheld evidence of Paulinda Moore’s mental
health. Moore testified at trial that Gibson had told her he was going to Bristol Borough to rob
someone and that he showed her a gun. N.T. March 9, 1995 at 253-54. Judge Wells found that
evidence of Moore’s mental health issues, most notably an Order for Moore to undergo a mental
health evaluation, see Order for Mental Evaluation, November 11, 1994, did not constitute Brady
material because the prosecution team was not aware of her medical records or the court order
(for that matter). Gibson objects to this finding. But the prosecution should have known of the
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Order for Moore to undergo a mental health evaluation because it had prosecuted her in the
criminal matter. This evidence further could have been used to impeach Moore on cross
examination, and therefore it satisfies the first two prongs of Brady. We will consider this order
in our materiality analysis.

5.

Kevin Jones

Gibson next asserts a Brady claim based upon the testimony of Kevin Jones, who at trial
testified that Gibson had said he was going to rob “an old guy” with a “lot of money” in Bristol
Borough, and then later confessed to the killing while the two were in jail together. N.T. March
9, 1995 at 267-72. Gibson avers that the prosecution withheld evidence favorable to his case
when it failed to disclose a report showing that Kevin’s twin brother, Eric Jones, had spoken with
police looking for help in two robbery cases in return for information on the Berger homicide,
Mot. to Expand, Ex. B, and that Kevin was allowed to avoid prison even though he was not
reporting to his parole agent. PCRA1 Ex. D-60. Judge Wells found that this evidence was not
favorable to Gibson, as it is not indicative of Jones striking a deal with the prosecution in order
to secure his testimony at trial, and Gibson objects to this finding. We agree with Judge Wells
that a conversation with Jones’s brother, Eric, and evidence that Jones was not reporting to his
parole officer would not have been useful to the defense in its cross-examination of Jones. We
therefore overrule Gibson’s objection, and the Brady claims brought by Gibson in relation to
Kevin Jones will not be considered in our materiality analysis.

6.

Eddie Gilbert

Gibson further adds a Brady claim on evidence relating to Eddie Gilbert’s testimony.
Gilbert testified at trial that Gibson had given him two handguns after the Berger shooting -- one

16

of which was Berger’s .38 caliber handgun. N.T. March 9, 1995 at 291. Gibson asserts that the
prosecution withheld evidence that Gilbert participated in a September 15, 1994 drug sale and
September 23, 1994 drug sale, Pet. App’x Vol. III at 628-30, withheld documentary evidence
showing that Gilbert failed to appear as requested for an interview during an investigation into a
separate homicide, Mot. to Expand, Ex. B; PCRA2 Ex. D19, and withheld evidence that Gilbert
had lied to police when he denied dealing drugs in 1995. PCRA2 Ex. D20. Gibson objects to
Judge Wells’s findings that none of the evidence related to Gilbert was Brady material. We will
sustain the objection relating to the evidence that Gilbert participated in drug sales only in the
sense that we will consider it as part of our materiality analysis. But we will overrule Gibson’s
objection in regards to the evidence of Gilbert allegedly lying to police about drug sales and
refusing to cooperate in a separate murder trial.
We have found that Judge Wells erred when she held that the Bristol Township Police
were not involved in the prosecution of Gibson. Therefore, the prosecution should have known
about Gilbert’s participation in drug sales in 1994. This would have been helpful to Gibson
when cross-examining Gilbert, even if Gibson was present at one of the drug sales. We therefore
find that this evidence satisfies the first two prongs of Brady, and we will consider it in our
materiality analysis.
The same cannot be said for the evidence Gilbert allegedly lied to police about dealing
drugs or failing to appear for an interview during an investigation into a separate homicide. The
latter item of evidence is not helpful in any way to Gibson’s case, as simply failing to appear for
an interview with police does not impact Gilbert’s credibility. The document containing
Gilbert’s statement where he allegedly lied about past drug sales did not exist at the time of trial,

17

so the prosecution could not have suppressed it. This evidence thus will not weigh in our
materiality analysis.

7.

Sean Hess

Gibson also avers that evidence related to Sean Hess’s testimony constitutes Brady
material. Hess testified at trial that Gibson told him that he was going to rob a store, and Gibson
later told Hess that he had completed the act. N.T. March 8, 1995 at 209-214. Gibson maintains
that the prosecution withheld evidence that Hess was pressured by the police to testify against
Gibson, and prior to trial police had kicked in the door of Hess’s mother’s home and caused
damage to the house, something that Detective Gergal was aware of. N.T. May 29, 2001 at 164.
Hess testified at a hearing in front of the PCRA court that he had fabricated his testimony after
the police threatened him in many ways. See, e.g., N.T. April 27, 2001 at 130-136. The PCRA
court did not believe Hess’s testimony. 2002 PCRA Ct. Op. at 15.
We agree with Judge Wells’s conclusion that Gibson has failed to rebut the PCRA court’s
finding that Hess’s PCRA testimony was untruthful -- as AEDPA requires. See 28 U.S.C. §
2254(e) (1). But, we find that the prosecution did withhold evidence of coercion when it failed
to disclose that police had broken into the home of Hess’s mother, causing extensive damage,
since Detective Gergal of the prosecution team was aware of this incident. Further, a jury could
have interpreted this act as intimidation, and thus the evidence would have been useful to
Gibson’s case. We therefore find that the evidence of damage to Hess’s mother’s home meets
the first two prongs of Brady, and we will consider them in our materiality analysis.

18

8.

Corey Jones

Gibson additionally adds a Brady claim regarding Corey Jones. Jones did not testify at
Gibson’s trial, but he testified at Gibson's 2001 PCRA hearing that he had been harassed and
pressured by police to make a statement against Gibson in the Berger murder. N.T. April 27,
2001 at 189-210. Jones claimed that police questioned him for five hours without food or drink,
told him he was not free to leave the police station, and threatened to charge him as an accessory
to murder without his cooperation. Id. at 193-198. Judge Wells found that the evidence related
to Jones’s interrogation was not Brady material and Gibson objects. We will overrule Gibson’s
objection.
Jones did not testify at trial, so the evidence cited by Gibson would not have been helpful
as impeachment evidence. It also would not be exculpatory since nothing Jones testified to at the
PCRA hearing was materially related to the evidence which served as the basis for Gibson’s
conviction. Finally, the PCRA court found that Jones was not credible, 2002 PCRA Ct. Op. at
15, and Gibson has failed to rebut the statutory presumption of that finding by clear and
convincing evidence, and we will thus not consider it in our materiality analysis.

9.

Hermann Carroll

Gibson next claims that evidence relating to Hermann Carroll's testimony also constitutes
Brady material. Carroll testified that Gibson had confessed to Berger’s murder. N.T. March 9,
1995 at 371. But the prosecution did not disclose evidence that Detective Gergal had offered to
testify at Carroll's sentencing hearing if Carroll assisted with the Gibson case, N.T. May 29, 2001
at 125-26, or that Bucks County Detective John L. Ziemba told Carroll to contact the prosecutor
to come to an arrangement when Carroll approached Ziemba and said that he was hesitant to
testify against Gibson. Mot. to Expand at Ex. B25. Judge Wells found that both of these items
19

met the first two prongs of Brady, and we will consider this evidence as part of our materiality
analysis.

10.

Bernard McLean

Lastly, Gibson asserts both Brady and Napue claims regarding Bernard McLean.
McLean testified at trial that Gibson had confessed to the murder. N.T. March 9, 1995 at 23233. Gibson states that the prosecution failed to correct McLean’s testimony at trial relating to
assistance he received regarding his outstanding warrants in exchange for McLean's testimony
against Gibson. Gibson also avers that the Commonwealth suppressed evidence that Bernard
McLean had used a false name when speaking to Bristol Township Police. See Mot. to Expand
at Ex. B; see also PCRA2 Ex. D22. Judge Wells found both the Brady and Napue claims
without merit, and Gibson objects.
Our thorough review of the record leads us to agree with Judge Wells. As to the Napue
claim, McLean testified at trial that the police said they would assist him with his outstanding
warrants if he provided a statement against Gibson. N.T. March 9, 1995 at 244.2 Gibson has not
provided evidence that McLean committed perjury, and without such proof it cannot be claimed
that the prosecutor had a duty to correct McLean's statement. The Brady claims similarly lack
merit. The prosecution team did have two reports, one from September 1994 and one from April
1995 in its possession. But neither item of evidence meet the first two prongs of Brady. The
April 1995 report did not exist at the time of trial, so it could not have been suppressed. As for
the September 1994 report, McLean had already been cross-examined about his criminal past
and cooperation with the prosecution. The fact that he had used a false name in an interview
2

The Supreme Court held in Napue v. Illinois, 360 U.S. 264, 269 (1959) that the
prosecution violated due process when it failed to correct testimony it knew to be false. See also
Giglio v. United States, 405 U.S. 150, 154 (1972). We undertake a much deeper discussion of
Napue later in our Opinion.
20

with Bristol Township Police for a different murder would not have helped the defense impeach
him in this matter. We will overrule Gibson’s objections with regard to Bernard McLean and
will not consider this evidence in our materiality analysis.

11.

Materiality Analysis

We must now evaluate the items of evidence that were favorable to Gibson and that the
prosecution suppressed and determine whether there is “a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different,”
with "reasonable probability" defined as “a probability sufficient to undermine confidence in the
outcome.” Simmons, 590 F.3d at 234. The evidence we must evaluate includes: (1) Edward
Jones being a paid informant for the DEA and Bristol Township Police, see PCRA1 Ex. D-69
(Jones Decl.) and PCRAR1 Ex. D-66B; (2) Glenn Pollard’s letter to Detective Mullin requesting
assistance, N.T. May 29, 2001 at 89; (3) Pollard’s letter to the Bucks County District Attorney's
Office requesting the same, id.; (4) the court order for Moore to undergo a mental health
evaluation, see Order for Mental Evaluation, November 11, 1994; (5) Eddie Gilbert’s
involvement in a September, 1994 drug sale, see Pet. App’x Vol. III at 628-30; (6) police
damaging the home of Sean Hess’s mother while searching for him, see N.T. May 29, 2001 at
164; (7) Hermann Carroll’s discussions with Detective Gergal who offered to testify at Carroll's
sentencing, see N.T. May 29, 2001 at 125-26; and (8) Carroll’s letter to Detective Ziemba
requesting assistance, see Mot. to Expand Ex. B25. We conclude that these eight items of
evidence, considered cumulatively, are not material since there is no reasonable probability that
the result of Gibson’s trial would have been different if this evidence had been turned over to his
defense team.

21

First, even if the suppressed evidence would have completely discredited each of the
witnesses above, there were corroborating witnesses for all but one item of the testimony now in
question. Edward Jones testified that Gibson told him that he was going to rob a store and then
later admitted to the crime. Kevin Jones, whose testimony is not affected by the Brady claims,
testified Gibson told him the same thing. Glenn Pollard’s testimony that Gibson confessed to the
murder while in jail was similarly corroborated by the testimony of Kevin Jones and Kenneth
Johnson. Likewise, Paulinda Moore’s testimony was largely congruent with Kevin Jones's, who
testified that he encountered Gibson a short time after Gibson spoke with Moore and that Gibson
informed him that he was going to rob and possibly kill a man. Hermann Carroll testified that
Gibson had confessed to the killing, something echoed by Bernard McLean. Sean Hess testified
to both Gibson’s motive and eventual confession to the crime. The confession, as we’ve stated,
was corroborated by Kevin Jones, Kenneth Johnson, and Bernard McLean, among others. And,
while Gibson did not ask anyone else for money to buy a car, as he did with Hess, that day he
visited an automobile dealership and tried to purchase a car, as evidenced by Glen Kashdan’s
testimony.
Second, the only testimony affected by Brady material and not corroborated by other
evidence is Eddie Gilbert’s testimony about receiving the guns from Gibson. But the only
impeachment evidence the prosecution suppressed relating to Gilbert was the fact that he
participated in a drug sale in 1994. Given that Gilbert testified at trial about a prior conviction
for drugs, we find that the suppressed evidence would not have impacted the jury’s assessment of
Gilbert’s credibility.
Third, and most importantly, the case against Gibson was very strong, even when
completely discounting all of the testimony from witnesses who could have been impeached with

22

the Brady material. Multiple people, including Gibson’s aunt, testified to seeing Gibson that
day, before the murder, wearing a dark hooded sweatshirt. Security footage at a bank Gibson
visited that day confirmed he was wearing this apparel. Michael Segal, a shopkeeper across the
street from the building where Berger was killed, saw Berger struggling with an assailant in a
dark hooded sweatshirt who matched Gibson’s size, build, and complexion. Alfonso Colon, who
lived above the store where Berger was shot, heard gunshots and saw Gibson leaving the scene
while stuffing what appeared to be a handgun into his waistband.

Gibson’s cousin, Pamela

Harrison, saw Gibson later that day after he visited her home. She said he was wearing a dark
hooded sweatshirt and carrying a handgun. Finally, Gibson confessed to the murder to Bernard
McLean, Kenneth Johnson, and Kevin Jones, among others. The evidence overwhelmingly
supported the conclusion that it was Gibson who killed Berger.
The corroboration of the testimony affected by the Brady material, coupled with the
mountain of other evidence against Gibson, makes clear that the evidence suppressed by the
prosecution was not material. We will overrule Gibson’s objection to Judge Wells’s finding that
the suppressed evidence was not material.

C.

Ineffective Assistance of Counsel Claims

Gibson next objects to the R & R’s disposition of his ineffective assistance of counsel
claims, but we will overrule his objections. The Sixth Amendment guarantees every criminal
defendant the assistance of counsel. U.S. CONST. amend. VI. This assistance must not only be
perfunctory, but effective. See Saranchak v. Sec’y Pa. Dep’t of Corr., 802 F.3d 579, 588 (3d Cir.
2015) (stating that defendants are entitled to the effective assistance of counsel). The right to
effective assistance of counsel protects the fundamental right to a fair trial afforded to criminal
defendants. Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)).
23

The Supreme Court has laid out a two-prong test for determining whether a criminal
defendant has suffered a violation of his constitutional rights by having ineffective assistance of
counsel.
First, a habeas petitioner must show that his counsel’s performance was deficient,
meaning that the representation failed to meet an objective standard of reasonableness “as
defined by prevailing professional norms.” Id. (quoting Outten v. Kearney, 464 F.3d 401, 414
(3d Cir. 2006)) (internal quotations omitted). More specifically, “we must ‘judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, reviewed as of
the time of counsel’s conduct.’” Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998) (quoting
Strickland, 466 U.S. at 690). But, we must be highly deferential to counsel’s performance and
not “second-guess counsel’s assistance after conviction.” Id. (quoting Strickland, 466 U.S. at
689).
Second, a petitioner must show prejudice, meaning that he must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. This standard does not require the
petitioner to prove that the evidence presented against him would have been insufficient if not
for counsel’s errors, nor must the petitioner show “that counsel’s deficient conduct more likely
than not altered the outcome.” Id. at 693. But it does require the petitioner to go further than
simply demonstrating “that the errors had some conceivable effect on the outcome of the
proceeding.” Id.; see also Saranchak, 802 F.3d at 588.

1.

Edward Jones

Gibson first claims that his counsel was ineffective for failing to cross-examine Edward
Jones on his status as a DEA informant. Judge Wells found that Gibson had not rebutted the
24

PCRA court’s finding that Jones’s recantation of his account was untruthful and, by extension,
that Jones’s trial testimony must have therefore been truthful. Gibson objects to this finding.
We agree with Gibson insofar as we believe Judge Wells erred when she made the
aforementioned inference about the truthfulness of Jones’s trial testimony and concluded that the
ineffective assistance of counsel claim was without merit for that reason alone. Trial counsel
still had the responsibility to cross-examine Jones to the fullest extent possible, and it appears
this did not happen.
But, we do not find any prejudice for the same reasons we articulated when analyzing
Gibson’s Brady claim as to Jones. Like the materiality standard in Brady, a petitioner under
Strickland must show prejudice, defined as “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. Jones’s testimony was corroborated by Kevin Jones, among others, and many other
witnesses testified to Gibson's motive for committing the crime and his subsequent confessions.
There is no reasonable probability that the proceeding would have been different had Jones been
effectively cross-examined. While we do not find any prejudice when analyzing Gibson’s claim
against Jones individually, we will consider it in our cumulative error analysis.3

2.

Bernard McLean

Gibson also asserts an ineffective assistance of counsel claim related to the testimony of
Bernard McLean. Gibson maintains that trial counsel failed to adequately impeach McLean,
since McLean was not questioned about his preliminary hearing testimony where he stated that

3

We are well aware that ineffective assistance of counsel claims must be reviewed
cumulatively. We will analyze Gibson’s ineffective assistance of counsel claims cumulatively
with his Brady claims, as it stands to reason that if these claims are not found to be prejudicial in
conjunction with Brady errors they cannot be found to have prejudiced Gibson on their own.
25

the prosecutor had offered to help him with a criminal matter in exchange for his testimony. But
trial counsel did impeach McLean by getting him to admit that the police told him they would
“take care” of his outstanding warrants. N.T. March 9, 1995 at 244. This fact undermines
Gibson’s claim under both prongs of Strickland.
First, trial counsel’s decision not to pursue on cross-examination McLean’s preliminary
hearing testimony regarding the prosecutor was reasonable given McLean had already admitted
that the police had offered to help him in exchange for his testimony. Second, there is no
prejudice since McLean had already been impeached on cross-examination when discussing his
conversation with the police, and thus there is no reasonable probability that the outcome of the
case would have been different had counsel cross-examined McLean on his preliminary hearing
testimony. While failing only one of the Strickland prongs would have defeated this claim, it is
illustrative of this claim’s weakness that it fails each prong. We will overrule Gibson’s
objection.

3.

Michael Segal

Gibson next avers an ineffective assistance of counsel claim related to the testimony of
Michael Segal. Trial counsel failed to impeach Segal by having him reiterate that he could not
identify Gibson’s face or pick him out in a pre-trial lineup. N.T. March 8, 1995 at 80. Instead,
Segal could only testify that Gibson had the same height, weight, build, complexion, and hair
color as the assailant. Id. at 79. Judge Wells found that trial counsel’s failure was not
prejudicial. Gibson objects, but we will overrule his objection.
We disagree with Gibson’s assertion that it was unreasonable for trial counsel to have
Segal reiterate that he could not identify Gibson in a pre-trial lineup. First, Segal never testified
that he could identify Gibson; he simply stated that the perpetrator matched many of Gibson’s
26

characteristics. The jury knew Segal could not identify Gibson by his face. Second, Segal was
thoroughly cross-examined on the inconsistencies of his identifications to police. Id. at 90-98. It
could easily be construed as a tactical choice for counsel to have focused on the inconsistencies
of his identification to keep the jury’s attention instead of highlighting the fact that Segal could
not identify Gibson by his face -- something the jury already knew. Gibson’s objection therefore
lacks merit and we will overrule it.

4.

Sean Hess

Gibson asserts that trial counsel was ineffective for failing to impeach Sean Hess based
on Hess's differing testimony at the trial and preliminary hearing as to whether Gibson had
referred to Berger as a “white devil” or simply a white man. Judge Wells found that this claim
was procedurally defaulted because Gibson failed to raise the claim in his PCRA appeal, and we
agree. It is a requirement of AEDPA that a petitioner exhaust his claim in state court before
seeking federal relief. 28 U.S.C § 2254(b)(1). Moreover, the PCRA statute of limitations has
expired for this claim and thus it cannot be exhausted, precluding habeas review. See Lines v.
Larkins, 208 F.3d 153, 165. We will overrule Gibson’s objection on this claim.

5.

Glenn Pollard

Gibson next claims that counsel was ineffective for failing to impeach Glenn Pollard with
a letter Pollard wrote to the prosecutor that was then forwarded to defense counsel. Both the
Superior Court and Judge Wells found counsel’s decision not to use the letter for crossexamination purposes was reasonable given that the letter contained damaging information about
Gibson. We agree and will overrule Gibson’s objection.

27

Trial counsel testified that he decided not to use the letter to cross-examine Pollard
because the letter contained information about Gibson’s involvement in another shooting. N.T.
April 27, 2001 at 221. Gibson counters that trial counsel did not even ask that the letter be
redacted, and thus the assistance was ineffective, and that counsel could have cross-examined
Pollard with the information in the letter without showing the letter to Pollard. This argument
fails on both counts. First, we cannot believe that the trial court would have allowed the letter to
be redacted when defense counsel would have been the one trying to use the letter as evidence,
thereby opening up the contents of the letter to the prosecution. Second, it also stresses credulity
to believe that the prosecution would have failed to notice defense counsel cross-examining
Pollard on the contents of the letter, which likewise could have opened up the possibility of the
prosecution trying to admit the contents of the whole letter. We find it eminently reasonable that
defense counsel would choose not to use this letter during Pollard’s cross-examination and thus
will overrule Gibson’s objection.

6.

Paulinda Moore

Gibson also contends that trial counsel was ineffective for failing to cross-examine
Paulinda Moore on her mental illness and that both Judge Wells and the Superior Court erred
when finding that the actions of trial counsel did not prejudice Gibson. Gibson objects to these
findings. We agree with Gibson that prejudice is established by considering claims
cumulatively. But, we also agree with the finding of Judge Wells that Moore was a minor
witness whose testimony was corroborated by other witnesses. We will thus sustain Gibson’s
objection only in the sense that we will consider trial counsel’s ineffective assistance with
relation to Moore when we analyze the cumulative effects of all errors as part of our decision on
Gibson’s final claim.
28

7.

Cyril Thomas, Kevin Jones, Kenneth Johnson, and Diane Hess

Finally, Gibson asserts ineffective assistance of counsel claims relating to the testimony
of Cyril Thomas, Kevin Jones, Kenneth Johnson, and Diane Hess. Judge Wells found that
Gibson’s claims relating to these witnesses were procedurally defaulted since he failed to include
them in his PCRA petition. Gibson objects, noting that the evidence supporting these claims was
admitted to the PCRA court, the parties briefed the merits, and the Commonwealth never
asserted that the claims were waived when before the PCRA court. The law does not support
Gibson’s objection. The Pennsylvania Supreme Court in Commonwealth v. Kenney, 732 A.2d
1161, 1164 (Pa. 1999), amongst other cases, found that, “[i]n order to preserve claims of
ineffectiveness of counsel under the PCRA, the claims must be raised at the earliest stage in the
proceedings at which the allegedly ineffective counsel is no longer representing the claimant.”
Id. (quoting Commonwealth v. Griffin, 644 A.2d 1167, 1170 (1994). The ineffective assistance
of counsel claims were not included in his PCRA petition, and therefore are procedurally
defaulted.

D.

Reasonable Doubt Jury Instruction Claims

Gibson next objects to Judge Wells’s finding that the trial court’s jury instructions
correctly conveyed the concept of reasonable doubt, alleging that the instructions “suggested a
higher degree of doubt than is actually required for acquittal.” Obj. at 43. The Supreme Court
has found that jury instructions, “taken as a whole…[must] correctly conve[y] the concept of
reasonable doubt to the jury.” Holland v. United States, 348 U.S. 121, 140 (1954). Moreover,
the Supreme Court has approved jury instructions defining reasonable doubt as “a doubt that
would cause a reasonable person to hesitate to act.” Victor v. Nebraska, 511 U.S. 1, 20 (1994)

29

(citing Holland, 348 U.S. at 140). The Court in Victor further found that jury instructions
describing reasonable doubt as “substantial doubt” were constitutional since the trial court had
explicitly laid out a distinction between “substantial” doubt and “doubt arising from mere
possibility, from bare imagination, or from fanciful conjecture.” 511 U.S. at 19-20 (internal
citations and quotations omitted).
Here, the trial court defined reasonable doubt as:
[W]ell-founded in reason and common sense…being one that
springs from a fair, thoughtful and careful consideration of the
evidence in this case or the lack thereof. It is not merely a passing
fancy…that might come into your minds or a doubt conjured up
for the purpose of avoiding an unpleasant duty. It should be such a
doubt as would cause a reasonable person in the conduct of his or
her own affairs to stop, hesitate and seriously consider as to
whether or not he or she would do a certain thing before finally
acting.
N.T. March 13, 1995 at 73.
We find these instructions almost perfectly analogous to the ones the Court upheld in
Victor. The trial judge here described reasonable doubt as one that would make a reasonable
person “stop, hesitate and seriously consider” whether the person should be found guilty, and
also gave the jury an explicit instruction as to the distinction between reasonable doubt and “a
passing fancy,” -- all but identical to the difference between substantial doubt and fanciful
conjecture approved by the Court in Victor. We find that the jury instructions comport with the
standards set by the Supreme Court and thus will overrule Gibson’s objection on this claim.

30

E.

Prosecution’s Failure to Correct the Testimony of
Michael Segal and The Related Ineffective Assistance of Counsel Claim

Gibson next brings a Napue claim stating that the prosecution violated his constitutional
rights when it failed to correct the testimony of Michael Segal.4 Both the Superior Court and
Judge Wells both found Gibson’s Napue and ineffective assistance of counsel claims meritless,
with Judge Wells stating “the fact that a prosecution witness’ trial testimony varies from his
previous statements does not necessarily mean that the prosecution knowingly presented false
testimony.” R & R at 70. Gibson objects to these findings, but we overrule his objections.
As rehearsed, the Supreme Court held in Napue v. Illinois, 360 U.S. 264, 269 (1959) that
the prosecution violated due process when it failed to correct testimony it knew to be false. See
also Giglio v. United States, 405 U.S. 150, 154 (1972). Simply put, the prosecution may not
knowingly use false evidence, including false testimony, in its case against a criminal defendant.
If the petitioner proves that the prosecution knowingly used false evidence when it failed to
correct a witness’s testimony, a court must then determine whether this error was material. The
standard for this materiality analysis is set out in United States v. Bagley, 473 U.S. 667, 680
(1985), where the Court held that “the fact that testimony is perjured is considered material
unless failure to disclose it would be harmless beyond a reasonable doubt.” Id. Our Court of
Appeals has held that, in order to prove a constitutional violation relating to false testimony
under Napue, a petitioner must show that: (1) the witness in question committed perjury; (2) the
Government knew or should have known the witness committed perjury; (3) the testimony went
uncorrected; and (4) there is any reasonable likelihood that the false testimony could have
affected the verdict. Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). Of particular
import to the first prong of this test, our Court of Appeals has noted that, even if the witness’s
4

Gibson also brings an ineffective assistance of counsel claim, stating that trial counsel
failed to effectively cross examine Michael Segal.
31

testimony is made in good faith, the Government has an obligation to correct the statement when
it should be obvious that the testimony is untrue. See United States v. Harris, 498 F.2d 1164,
1169 (3d Cir. 1974).
Here, Gibson fails to sustain his claim because he has not shown that Segal committed
perjury or that the Commonwealth should have known he might be doing so. The only evidence
to support this claim is that Segal’s statements changed over the course of the investigation and
trial. In each subsequent statement after his original one, Segal’s description of the attacker
came to more closely resemble Gibson. Obj. at 45 (citing N.T. March 8, 1995 at 91, id. at 7879). Moreover, Segal changed his testimony significantly when he first stated that he had not
seen a gun and later testified at trial that the attacker was in fact holding a gun. Compare N.T.
November 18, 1994, with N.T. March 8, 1995 at 73. But, these significant changes alone do not
suffice to show that Segal committed perjury or that the Commonwealth should have known he
might be doing so.
As our Court of Appeals has held, “[t]here are many reasons testimony may be
inconsistent; perjury is only one possible reason.” Lambert, 387 F.3d at 249. This case is
analogous to Lambert. There, our Court of Appeals held that “[d]iscrepancy is not enough to
prove perjury,” and that a factual determination by the PCRA Court that the petitioner had failed
to prove a witness perjured himself with inconsistent testimony alone was reasonable. Id. Here,
the PCRA Court similarly found no proof that Segal perjured himself, as the only evidence
offered by Gibson is the discrepancy between Segal’s statements and his testimony. Further,
because we find no merit in Gibson’s Napue claim, and since counsel did cross-examine Segal
about his prior inconsistent statements, we similarly reject Gibson’s ineffective assistance of

32

counsel claim as it relates to Segal. We will overrule Gibson’s objections as to both of his
claims related to Segal’s testimony.

F.

Prosecutorial Misconduct, Brady, and Ineffective
Assistance of Counsel Claims Related to Detective Morris’s Notes

Gibson also asserts claims related to Detective Randy Morris’s notes, which he relied on
when testifying at trial regarding a hypothetical question Gibson asked Detective Stephen
Battershell about shooting someone in self-defense. First, Gibson brings a claim for
prosecutorial misconduct, stating that the prosecution improperly elicited this testimony.
Second, Gibson avers that the prosecution’s failure to provide defense counsel with Detective
Morris’s notes constituted a Brady violation. Third, Gibson argues that counsel was ineffective
for failing to obtain Detective Morris’s notes from the prosecution. Judge Wells resolved each
claim in favor of the Commonwealth, and Gibson objects. We will overrule his objections on the
prosecutorial misconduct and Brady claims, but will consider his ineffective assistance of
counsel claim cumulatively as part of his final claim.

1.

Prosecutorial Misconduct

We interpret Gibson’s prosecutorial misconduct claim related to Detective Morris as a
Napue claim and will analyze it accordingly. The Napue line of cases holds that a prosecutor
may not knowingly use false evidence, including false testimony, in its case against a criminal
defendant. 360 U.S. at 269. Here, Gibson has presented no evidence that the prosecutor
committed a Napue violation when eliciting this testimony from Detective Morris because he
cannot show that Detective Morris perjured himself at trial. Moreover, Detective Morris’s
testimony was echoed by Detective Battershell, providing further evidence that it was true. We
will overrule Gibson’s objection to the R & R’s resolution of this claim.
33

2.

Brady Claim

Gibson next asserts a Brady claim in relation to Detective Morris’s notes. The
prosecution failed to provide defense counsel with a copy of the notes Detective Morris used
when he testified at trial. The Supreme Court held in Brady that a prosecution’s suppression of
material evidence favorable to the accused violates due process. 373 U.S. at 87. It later clarified
that Brady applied to both exculpatory evidence and evidence that could be used to impeach
witnesses. See Bagley, 473 U.S. at 676. The failure to disclose favorable evidence alone is not
sufficient to establish a constitutional violation. See Johnson, 705 F.3d at 128. A habeas
petitioner is only entitled to relief when: “(1) the evidence at issue is favorable to the accused;
(2) the evidence was suppressed by the state; and (3) the evidence is material.” Id.
Here, Gibson has not shown that Detective Morris’s notes would have helped him at trial,
and thus his Brady claims necessarily fail. The discrepancies between Detective Morris’s
different descriptions of what exactly constituted his “notes” that he used during trial -- ranging
from his own personal notes taken during the questioning of Gibson to a report authored by
Detective Battershell -- do not establish that the contents of the notes themselves were favorable.
As Judge Wells accurately noted, the contents of the notes may have corroborated Detective
Morris’s story, and thus would have been unfavorable to Gibson. We will overrule Gibson’s
objection to Judge Wells’s finding on this claim.

3.

Ineffective Assistance of Counsel Claim

Finally, we turn to Gibson’s ineffective assistance of counsel claim. As earlier rehearsed,
the right to effective assistance of counsel protects the fundamental right to a fair trial afforded to
criminal defendants. Strickland, 466 U.S. at 685. The Supreme Court has laid out a two-prong

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test for determining whether a criminal defendant suffered a violation of his constitutional rights
by having ineffective counsel. First, a habeas petitioner must show that his counsel’s
performance was deficient, meaning that the representation failed to meet an objective standard
of reasonableness as defined by “prevailing professional norms.” Id. at 688. But, we must be
highly deferential to counsel’s performance and not “second-guess counsel’s assistance after
conviction.” Id. at 689.
Second, a petitioner must show prejudice, meaning that he must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. This standard does not require the petitioner to prove
that the evidence presented against him would have been insufficient if not for counsel’s errors,
nor must the petitioner show “that counsel’s deficient conduct more likely than not altered the
outcome.” Id. at 693. But it does require the petitioner to go further than simply demonstrating
“that the errors had some conceivable effect on the outcome of the proceeding.” Id.; see also
Saranchak, 802 F.3d at 588.
We agree with Gibson that it was objectively unreasonable for trial counsel in a capital
case to fail to inquire about, and eventually acquire, Detective Morris’s notes. Had the notes
contained information corroborating Morris’s testimony, counsel would have been free not to use
them on cross-examination. But, if they were helpful, counsel could have used them to more
effectively impeach Morris. The fact that the Superior Court and Judge Wells found that trial
counsel did attempt to impeach Morris does not excuse counsel’s failure with regard to the notes.
We do not find this failure to be prejudicial on its own, as Detective Battershell also testified that
Gibson asked a hypothetical question about shooting someone during questioning. We will,
however, include this claim in our cumulative analysis.

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G.

Cumulative Error

Finally, Gibson brings a claim for cumulative error, stating that the many errors taken
individually may not warrant habeas relief but, when considered together, can be found to have
affected the trial in a way that would undermine the verdict. Judge Wells found Gibson’s
cumulative error claim to have no merit, and Gibson objects. While we have disagreed with
some of Judge Wells’s analysis, we will overrule Gibson’s objection because the cumulative
effect of the errors Gibson identified did not prejudice him at his trial.
Our Court of Appeals has stated that the cumulative error doctrine “allows a petitioner to
present a standalone claim asserting the cumulative effect of errors at trial that so undermined the
verdict as to constitute a denial of his constitutional right to due process.” Collins v. Sec’y of Pa.
Dep’t of Corr., 742 F.3d 528, 542 (3d Cir. 2014). The Third Circuit has also recognized that
“errors that individually do not warrant habeas relief may do so when combined.” Albrecht v.
Horn, 485 F.3d 103, 139 (3d Cir. 2007) (citing Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir.
2002)). Cumulative errors warrant habeas relief “if they had a substantial and injurious effect or
influence in determining the jury’s verdict.” Id. (citing Brecht v. Abrahamson, 507 U.S 619
(1993)). When performing a cumulative error analysis, a court “aggregates all the errors that
individually have been found to be harmless, and therefore not reversible, and it analyzes
whether their cumulative effect on the outcome of the trial is such that collectively they can no
longer be determined to be harmless.” Id. (quoting Darks v. Mullin, 327 F.3d 1001, 1018 (10th
Cir. 2003)). While we understand that our Court of Appeals has not resolved whether
cumulative error claims “constitute clearly established federal law as determined by the Supreme
Court for the purposes of deference under AEDPA,” Saranchak 802 F.3d at 590, we will perform
a de novo analysis of Gibson’s claim in an effort to fully resolve his objections.
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We have previously found that the following items constitute harmless error that did not
prejudice Gibson at his trial: (1) evidence the Edward Jones was a paid informant for the DEA
and the Bristol Township Police Department, see PCRA1 Ex. D-69 (Jones Decl.) and PCRAR1
Ex. D-66B; (2) Glenn Pollard’s letter to Detective Mullin requesting assistance, N.T. May 29,
2001 at 89; (3) Pollard’s letter to the Bucks County District Attorney's Office requesting the
same, id.; (4) the court order for Moore to undergo a mental health evaluation, see Order for
Mental Evaluation, November 11, 1994; (5) evidence of Eddie Gilbert’s involvement in a
September 1994 drug sale, see Pet. App’x Vol. III at 628-30; (6) evidence that police damaged
the home of Sean Hess’s mother while searching for him, see N.T. May 29, 2001 at 164; (7)
Hermann Carroll’s letter to Detective Gergal offering to testify, see N.T. May 29, 2001 at 12526; (8) Carroll’s letter to Detective Ziemba stating the same, see Mot. to Expand Ex. B25; (9)
trial counsel’s failure to cross-examine Edward Jones on his status as a DEA informant; (10) trial
counsel’s failure to cross-examine Paulinda Moore regarding her mental illness; and (11) trail
counsel’s failure to obtain Detective Morris’s notes used to refresh his memory during his trial
testimony.
We find that the cumulative effect of the errors did not have a substantial or injurious
effect on the jury’s verdict. First, nearly all of the evidence tainted by errors was either
corroborated in some way or supported by other, untainted evidence. Edward Jones testified that
Gibson first told him that he was going to rob a store and then later admitted to committing the
crime. Kevin Jones, whose testimony is not affected by the Brady claims, testified to the same
thing. Glenn Pollard’s testimony that Gibson confessed to the murder while in jail was similarly
corroborated by the testimony of Kevin Jones and Kenneth Johnson. Likewise, Paulinda
Moore’s testimony was substantially matched by Kevin Jones, who testified that he encountered

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Gibson a short time after Gibson spoke with Moore and that Gibson informed him that Gibson
was going to rob and possibly kill a man. Hermann Carroll testified that Gibson had confessed
to the killing, something echoed by Bernard McLean. Sean Hess testified to both Gibson’s
motive and eventual confession to the crime. The confession, as we’ve stated, was corroborated
by Kevin Jones, Kenneth Johnson, and Bernard McLean, among others. And, while Gibson did
not ask anyone else for money to get a new car, as he did with Hess, that day he visited an
automobile dealership and tried to purchase a car, as evidenced by Glen Kashdan’s testimony.
Finally, Detective Morris’s testimony regarding Gibson's hypothetical question posed to police
during questioning was matched by the testimony of Detective Battershell, to whom Gibson was
actually speaking. As we stated earlier, the sole exception to this pattern of corroboration was
Eddie Gilbert, who testified to receiving the guns involved in the murder from Gibson. But,
Gilbert was cross-examined extensively at trial and his testimony in no way affected the
evidence related to Gibson’s motive, the eye-witness accounts of the murder and its aftermath,
and the numerous confessions made by Gibson.
On this last point, it is clear that the cumulative effect of the errors did not substantially
affect the jury’s verdict because the case against Gibson was strong. The prosecution presented
evidence establishing motive, illustrating Gibson’s plans to rob Ascher Health, placed Gibson at
the scene of the crime, and showed that he confessed the murder to numerous associates. Before
the murder, multiple people, including Gibson’s aunt, testified to seeing Gibson that day wearing
a dark hooded sweatshirt. Security footage at a bank Gibson visited that same day confirmed he
was wearing this apparel. Michael Segal, a shopkeeper across the street from the building where
Berger was killed, saw Berger struggling with an assailant in a dark hooded sweatshirt who
matched Gibson’s size, build, and complexion. Alfonso Colon, who lived above the store where

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Berger was shot, heard gunshots and saw Gibson leaving the scene while stuffing what appeared
to be a handgun into his waistband. Gibson’s cousin, Pamela Harrison, saw Gibson later that day
when he visited her home. She said he was wearing a dark hooded sweatshirt and carrying a
handgun. Finally, Gibson confessed to the murder to Bernard McLean, Kenneth Johnson, and
Kevin Jones, among others. The evidence overwhelmingly supported the conclusion that it was
Gibson who killed Berger.
We do not take lightly Gibson’s argument that the jury may have seen the evidence
presented at trial differently had the prosecution not suppressed evidence favorable to the
defense and had defense counsel not committed several unreasonable errors. It is certainly
possible that in a case where evidence tainted by errors is not corroborated by other evidence,
and where the prosecution’s case is not so overwhelming that these errors would constitute a
constitutional violation, would warrant a grant of habeas relief. But that hypothetical case is not
before us here. Instead, much of the testimony Gibson claims to be tainted by constitutional
violations is corroborated by untainted evidence, and the overall case the Commonwealth
presented was quite strong. Gibson’s cumulative error claim fails even on de novo review and
we will overrule his objection to the R & R.

H.

Request for Discovery

Gibson also objects to Judge Wells’s decision denying his supplemental motion for
discovery. See docket entries nos. 69 and 72. We do not find that Judge Wells abused her
discretion when denying this motion. A habeas petitioner needs to show good cause for
requested discovery. See RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES
DISTRICT COURTS 6(a). A petitioner shows good cause when “specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully developed, be able to
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demonstrate that he is…entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)
(internal citations and quotations omitted).
Gibson’s objection fails for two reasons. First, the facts are fully developed. This case
has been ongoing in the state and federal court systems for twenty years. Judge Wells allowed
for extensive discovery in this matter, and this discovery yielded information that was the basis
for many of the claims discussed in this petition. Additional discovery into case files within
three separate government entities in the nineteenth year of proceedings is the very definition of
a fishing expedition. Second, even if the facts were not fully developed, there is no reason to
believe that Gibson would have been able to demonstrate that he was entitled to relief had he
obtained those files. As we have demonstrated with our analysis of the errors committed at
Gibson’s trial, even if discovery had yielded evidence that would have further impeached the
witnesses listed in Gibson’s objections, the remaining evidence overwhelmingly supported a
guilty verdict. We will thus deny Gibson’s objection to Judge Wells’s denial of his supplemental
motion for discovery.

I.

Request for Hearing

Gibson next requests an evidentiary hearing to more fully develop the facts in this case.
As we previously stated, we find that it risks understatement to note the facts in this case are
fully developed. Moreover, the record does not support Gibson’s assertion that he was denied a
full and fair hearing in the state courts. We will deny Gibson’s request for an evidentiary hearing.

J.

Certificate of Appealability

Finally, Gibson requests that we issue a certificate of appealability even if we approve
and adopt the R & R. We decline to do so. A petitioner who seeks to appeal a final order of a

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district court must obtain a certificate of appealability for each claim he wishes to present to the
Court of Appeals, see 28 U.S.C. § 2253 and Fed. R. App. P. 22(b), and the petitioner must make
“a substantial showing of the denial of a constitutional right” to obtain a COA. 28 U.S.C. §
2253(c)(2). The Supreme Court has held that a certificate of appealability should be granted
only when jurists of reason could debate procedural or substantive dispositions of a petitioner’s
claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). It further summarized this standard in
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), stating that a petitioner must show that
“reasonable jurists could debate whether…the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”
(quoting Barefoot v. Estelle, 463 U.S. 880 (1983)) (internal citations omitted). A petitioner need
not, however, demonstrate that the appeal will succeed. Id.
We find that reasonable jurists could not debate whether this petition should have been
resolved in a different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. This is highlighted by the fact that, when performing our
cumulative Brady and error analyses, we did so de novo without giving any deference to the
decisions made by the state courts. Of course, AEDPA mandates that we uphold the state court’s
resolution of any claims so long as the resolution is reasonable. Since we came to the same
conclusion as the state court without any hesitation, it is obvious that its disposition of the case
was reasonable. Reasonable jurists could not disagree with our resolution of this matter, and we
will therefore decline to issue a certificate of appealability.

V.

Conclusion
We find that Gibson’s objections to the substantive findings of Judge Wells’s R & R lack

merit. Moreover, Judge Wells did not abuse her discretion when denying Gibson’s motion for
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supplemental discovery. We will therefore approve and adopt Judge Wells’s R & R, dismiss
Gibson’s petition with prejudice and without holding an evidentiary hearing, and decline to issue
a certificate of appealability.

BY THE COURT:

_/s/ Stewart Dalzell, J.
Stewart Dalzell, J.

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