MUMMA v. CAMERON et al

Filing 29

MEMORANDUM/OPINION THAT THIS COURT ADOPTS THE FINDINGS AND CONCLUSIONS IN THE REPORT AND RECOMMENDATION AND FOLLOWS THE RECOMMENDATION TO DENY THE HABEAS PETITION. A SEPARATE ORDER WILL BE ISSUED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/18/17. 9/20/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________
:
JOSEPH MUMMA,
:
:
Petitioner,
:
:
v.
:
No. 2:14-cv-02326
:
SUPERINTENDENT KENNETH CAMERON
:
and THE ATTORNEY GENERAL OF
:
THE STATE OF PENNSYLVANIA,
:
:
Respondents.
:
_______________________________________
:
OPINION
Report and Recommendation, ECF No. 17 – Adopted
JOSEPH F. LEESON, JR.
United States District Judge
I.

September 18, 2017

INTRODUCTION
Joseph Mumma filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

alleging prosecutorial misconduct, ineffective assistance of counsel, denial of severance from
Mumma’s codefendant, and violation of Mumma’s Miranda rights with respect to his 2006
criminal trial and conviction in the Philadelphia County Court of Common Pleas. ECF No. 1.
Magistrate Judge Timothy R. Rice has issued a Report and Recommendation (“R&R”)
recommending that the habeas corpus petition be denied. ECF No. 17. Mumma timely filed
objections to the R&R, ECF No. 19, to which Respondents filed a response, ECF No. 22. After
de novo review and for the reasons set for below, the R&R is adopted and the habeas petition is
dismissed as procedurally defaulted and meritless.

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II.

FACTUAL AND PROCEDURAL HISTORY
Mumma was tried in November 2006 together with Joseph Romanelli for various crimes

related to the home invasion robbery, sexual assault, and murder of Mumma’s 84-year-old
neighbor, Marie Lindgren. ECF No. 16-1, at 1.
Trial testimony established that around 3:00 a.m. on November 13, 2004, Mumma and
Romanelli went to Ms. Lindgren’s house to rob her. Id. at 6. When Ms. Lindgren was found dead
the following morning by a neighbor, her body displayed extensive bruising, a laceration below
the jaw that penetrated halfway through her neck, an amputated left earlobe, broken neck bones
from strangulation, defensive wounds on her arms, a large tear on the back of her left hand
exposing tendons, tissue missing from the left little finger, fractured ribs, bruising and abrasions
to the vaginal area, and hemorrhaging in the brain. Id. at 4-5. An autopsy determined the cause of
death as both sharp and blunt force injuries. Id. at 5.
On the morning that Ms. Lindgren’s body was found, Mumma helped another neighbor
enter Ms. Lindgren’s house to check on her. Id. at 2. However, police later identified him as a
suspect when he went to give a witness statement at the police station and a detective observed
red and green paint stains on his shoes that matched paint used to graffiti the walls of Ms.
Lindgren’s house. Id. at 5-6. After receiving Miranda warnings, Mumma told police that he did
participate in the robbery, but that Romanelli had killed Ms. Lindgren. Following a jury trial,
Mumma was found guilty of second-degree murder, robbery, aggravated indecent assault,
burglary, and criminal conspiracy, and sentenced to life imprisonment plus ten to twenty years.
Id. at 5.
Mumma appealed his conviction, but the Pennsylvania Superior Court ultimately
affirmed the conviction on November 11, 2010. ECF No. 16-3. The Pennsylvania Supreme Court
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denied Mumma’s petition for allowance of appeal on June 8, 2011. 1 Mumma filed a pro se PostConviction Relief Act Petition on March 28, 2012, which was dismissed as meritless on
November 30, 2012. ECF No. 16-6. The Pennsylvania Superior Court affirmed the denial on
August 21, 2013. ECF No. 16-7. The Pennsylvania Supreme Court denied allowance of appeal
on February 20, 2014. See state court docket sheet for Commonwealth v. Mumma, CP-51-CR0300421-2005 (Phila. C.P. filed March 11, 2005).
The instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was timely
filed on April 21, 2014. Mumma seeks relief on the grounds of: (1) prosecutorial misconduct at
trial through the prosecutor’s characterization of the murder as “torture” and “using [Mumma’s]
co-defendant’s statement against [him];” 2 (2) ineffective assistance of counsel at trial based upon
defense counsel’s failures to attend a hearing to suppress a statement made by Romanelli, to
preserve issues for appeal, and to introduce evidence of Mumma’s mental health background and

1

See state court docket sheet for Commonwealth v. Mumma, CP-51-CR-0300421-2005
(Phila. C.P. filed March 11, 2005). This Court may take judicial notice of state court docket
sheets. See Bennett v. Walsh, No. 3:CV-11-2286, 2014 U.S. Dist. LEXIS 135314, at *3 n.1
(M.D. Pa. Sept. 22, 2014) (“The Court takes judicial notice of the various state docket sheets
cited within which are viewable via the Pennsylvania’s Judiciary Web Portal at
http://ujsportal.pacourts.us/.”). The Superior Court initially dismissed Mumma’s appeal on July
11, 2007, for failure to comply with Pennsylvania Rule of Appellate Procedure 3517. Mumma
then filed a petition under the Pennsylvania Post-Conviction Relief Act, which the trial judge
granted on May 29, 2009, reinstating Mumma’s appeal rights. Id.
2
Mumma’s co-defendant, Romanelli, told police that he had participated in the robbery,
but that Mumma had killed Ms. Lindgren. ECF 16-1 at 10. Romanelli said the two, drunk and
high after leaving a party, entered Ms. Lindgren’s house with a key Mumma had. Id. at 10-11.
Once inside, Romanelli went upstairs to look for money while Mumma pulled Ms. Lindgren into
the dining room, demanding to know where the money was. Id. at 11. When Romanelli came
downstairs, he saw Ms. Lindgren on the floor and saw Mumma slash her throat twice with a
silver knife. Id. At trial, this statement was redacted to replace all references to Mumma with the
phrase “the other guy.” Id. at 12.
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I.Q. early in the trial and at sentencing; (3) denial of severance from his co-defendant; 3 and (4)
introduction at trial of Mumma’s statement obtained in violation of his Miranda rights.
Magistrate Judge Rice reviewed Mumma’s claims and found them meritless, and some
barred by procedural default. With respect to the claim for prosecutorial misconduct, Magistrate
Judge Rice found that the prosecutor’s characterization of the murder as “torture” fell within the
acceptable range of the prosecutor’s discretion and had a basis in the evidence presented.
Additionally, the prosecutor’s use of Romanelli’s statement blaming “the other guy” did not
affect the jury’s decision: in convicting Mumma of second-degree murder, the jury found that
Mumma and Romanelli had acted together in the commission of the crimes, a conclusion which
the exclusion of Romanelli’s statement would not have changed.
Magistrate Judge Rice concluded that the procedural default rule bars Mumma’s
ineffective assistance of counsel claim because Mumma did not present the claim to the state
appellate courts. Additionally, none of Mumma’s three allegations of ineffective assistance has
merit. First, Mumma complains that his counsel did not attend a suppression hearing; however,
this hearing ruled on Romanelli’s motion to suppress. Second, Mumma alleges his trial counsel

3

Although Mumma’s petition styles this argument as “Severance,” his arguments and
supporting cases in both the petition and his objection to the R&R suggest that Mumma intends
to state a claim under the Confrontation Clause of the Sixth Amendment. For example,
Mumma’s petition states that the “severance” issue warrants habeas relief “[b]ecause my CoDefendant had a statement that I could not cross-exam because he would not get on stand and he
was 17 years old at the time he made the statement which means he was a child.” ECF 1, at 9. In
his objections to the R&R, Mumma argues that “[t]he Prosecutor using my non-testifying
juvenile co-defendants (sic) statement against me obviously denied my confrontation clause (sic)
because I never had a chance to confront the witness against me just because the statement was
redacted its (sic) very clear who the “OTHER GUY” is the only other person sitting behind the
panel of Attorneys.” ECF 19, at 2 (emphasis in original). Therefore, this Court will analyze
Mumma’s severance issue as a Confrontation Clause claim in light of his objections to the R&R.
To the extent that Mumma’s denial of severance claim implicates other issues, he has not raised
any objections to the R&R and this Court adopts Magistrate Judge Rice’s findings and
conclusions in this regard.
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failed to preserve issues for appeal but does not specify which issues his attorney failed to
preserve. Third, Mumma alleges that trial counsel did not bring up his mental health background
or low I.Q. until late in the trial and at sentencing, but makes no argument that doing so would
have resulted in a lesser sentence.
Magistrate Judge Rice also found that procedural default bars Mumma’s severance claim
because he did not raise this claim in state court and that regardless, the claim is meritless.
Magistrate Judge Rice reasoned that Mumma has not explained how failure to sever his trial
from Romanelli’s led to prejudice so great as to deny him a fair trial, the standard required to
prevail on a failure-to-sever claim. Although Mumma seeks to challenge the admission of
Romanelli’s statement because Romanelli was only seventeen when he made the statement,
Mumma has no standing to do so. The Magistrate Judge observed that, in conjunction with the
severance issue, Mumma seems to argue that because he could not cross-examine Romanelli, the
use of Romanelli’s statement at trial violated Mumma’s rights under the Confrontation Clause.
However, Romanelli’s statement resulted in, at worst, harmless error: the jury rejected the
defendants’ attempts to blame one another for the homicide and convicted them both of seconddegree murder.
Lastly, Magistrate Judge Rice evaluated Mumma’s claim that the trial court should have
suppressed his statement because he made it involuntarily. The Magistrate Judge concluded that
the state courts considered this claim on the merits and rejected it based upon a reasonable
application of federal law and a reasonable determination of the facts.
Mumma filed objections to the R&R, ECF No. 19, on April 8, 2015. Mumma’s
objections contain very little explicit argument and consist largely of quotations from caselaw,

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many duplicative of his Petition. However, he takes particular issue with the R&R’s finding that
his Confrontation Clause argument does not justify relief.
III.

STANDARD OF REVIEW
When objections to a report and recommendation have been filed under 28 U.S.C. §

636(b)(1)(C), the district court must make a de novo review of those portions of the report to
which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“providing a complete de novo determination
where only a general objection to the report is offered would undermine the efficiency the
magistrate system was meant to contribute to the judicial process”). “District Courts, however,
are not required to make any separate findings or conclusions when reviewing a Magistrate
Judge’s recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x.
142, 147 (3d Cir. 2016). The district “court may accept, reject, or modify, in whole or in part, the
findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C) (2009).
IV.

ANALYSIS
This Court has considered Mumma’s Objections to the R&R and conducted a de novo

review of his habeas corpus petition. This Court writes separately to provide additional
explanation of the Confrontation Clause issue. As to Mumma’s additional grounds for habeas
relief, this Court agrees with Magistrate Judge Rice’s reasoning and sees no need to make any
separate findings or conclusions in this regard. See Hill, 655 F. App’x. at 147.
Even assuming for the sake of argument that Mumma can establish a violation of his
Confrontation Clause rights based upon the use of Romanelli’s statement incriminating him, the
doctrines of procedural default and harmless error preclude the relief Mumma seeks. In his
objections to the R&R, Mumma reiterates his assertion that the prosecutor’s use of Romanelli’s
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statement identifying Mumma as the killer, which was redacted to refer to Mumma only as “the
other guy” violated Mumma’s right to confront the witnesses against him. ECF No. 19, at 2.
However, Magistrate Judge Rice correctly found that procedural default bars this
argument, regardless of its merits. 4 The Superior Court recognized on appeal of Mumma’s
PCRA Petition that Mumma did not raise any Confrontation Clause issues on direct appeal. ECF
No. 16-7, at 6 n.6. Therefore, Mumma did not “fairly present his claim in each appropriate state
court,” and his argument is procedurally defaulted. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
Mumma has alleged neither a legitimate cause for his default and actual prejudice from the
alleged Confrontation Clause violation nor new reliable evidence of his actual innocence that
would make this Court’s failure to review his claim a fundamental miscarriage of justice;
therefore, he cannot excuse his procedural default. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Schlup v. Delo, 513 U.S. 298, 323-324 (1995). 5 Mumma’s Confrontation Clause claim is
properly dismissed on this basis.
Regardless, as Magistrate Judge Rice recognized, any violation of Mumma’s
Confrontation Clause right would have been harmless error. See Harvey v. Meyers, No. 934

In his objections, Mumma appears to challenge this conclusion, or at least to assert that
this Court should excuse any procedural default, writing, “[p]rocedrual default rules are enforced
out of respect; no disrespect is shown when the states [sic] own rules are not enforced; district
courts have disregarded the default and proceeded directly to the merits of the particular claim.”
ECF No. 19 at 2. However, the cases Mumma cites do not support his position. Barcey v.
Gramley involved the issue of “good cause” for discovery on a habeas corpus petition, not cause
for excusing procedural default. 520 U.S. 899 (1997). In Deputy v. Taylor, the Court of Appeals
excused procedural default where the state did not properly raise procedural default as bar in
state court proceedings seeking postconviction relief as to capital murder conviction, but
ultimately concluded that the claim had no merit. 19 F.3d 1485 (3d Cir. 1994).
5
The Supreme Court held that ineffective assistance of counsel can be cause for excusing
procedural default in Martinez v. Ryan. 566 U.S. 1 (2012). However, Martinez does not excuse
Mumma’s default: in his case, counsel raised the Confrontation Clause issue during the PCRA
proceedings, but Mumma, acting pro se, failed to raise the issue on direct appeal. Thus, it was
Mumma’s failure to raise the issue, not counsel’s, that caused the procedural default, and
Martinez offers no relief.
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15680, 1994 U.S. App. LEXIS 18889, at *8 (9th Cir. 1994) (holding that any violation of the
Confrontation Clause was harmless because “the jury necessarily rejected the evidence” that the
defendant was responsible by convicting the defendant of second-degree and not first-degree
murder). For purposes of federal habeas review, a constitutional error that implicates trial
procedures is harmless if it did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986) (applying harmless error analysis to Confrontation Clause
claim).
Here, the alleged error Mumma complains about did not have the required effect on the
jury’s verdict. Mumma contends that Romanelli’s statement that “the other guy” killed Ms.
Lindgren unfairly implicated him as the killer; for his part, Mumma tried to blame Romanelli.
Whether the jury believed Mumma or Romanelli did not matter to their ultimate determination of
Mumma’s guilt because they did not have to find that Mumma actually killed Ms. Lindgren to
convict him of second-degree murder. Under Pennsylvania law, second-degree murder requires
only (1) that the defendant be “engaged as a principal or an accomplice in the perpetration of a
felony” and (2) that a homicide occur during that felony. 18 Pa. Stat. and Cons. Stat. Ann. §
2502. Even if the jury had not heard Romanelli’s statement identifying “the other guy” as the
killer and had concluded that Romanelli killed Ms. Lindgren, they still heard substantial
evidence sufficient to convict Mumma of second-degree murder. Mumma admitted that he and
Romanelli agreed to break into Ms. Lindgren’s home to rob her, and Ms. Lindgren’s homicide
occurred during the perpetration of this felony. These facts suffice to convict Mumma of seconddegree murder, so any violation of Mumma’s Confrontation Clause rights had no “substantial
and injurious effect” on the jury’s verdict. See Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008),
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as amended (Oct. 17, 2008) (finding Confrontation Clause violation was harmless error because
of extensive additional evidence of defendant’s guilt). Mumma complains, at best, of harmless
error, but he cannot obtain habeas relief on that basis.
V.

CONCLUSION
Magistrate Judge Rice correctly concludes that the instant petition for writ of habeas

corpus is meritless and that many of the claims have been procedurally defaulted. This Court
therefore adopts the findings and conclusions in the Report and Recommendation and follows
the recommendation to deny the habeas petition.
A separate Order will be issued.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.____________
JOSEPH F. LEESON, JR.
United States District Judge

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