WATTS v. MAHALLY et al

Filing 29

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 3/27/17. 3/28/17 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN G. WATTS,
Petitioner,
v.
LAWRENCE MAHALLY, et al.,
Respondents.
Jones, II

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CIVIL ACTION
NO. 15-3740

J.

March 27, 2017
MEMORANDUM

Petitioner John G. Watts seeks habeas relief, alleging violations of his
constitutional rights in the course of a state trial that ended in a prison sentence of 24.5 to fifty
years and two months for convictions stemming from a $100 robbery. After careful
consideration of the state court record, this Court finds that the trial judge’s decision to instruct
the jury with an obviously irrelevant, inadmissible and highly prejudicial fact dehors the record,
over defense counsel’s objection and in deprecation of his proper closing argument, deprived
Petitioner of his Sixth Amendment right to a fair trial and effective assistance of counsel.
Because the trial court’s error is per se prejudicial under clearly established federal law and, in
any event, had a substantial and injurious effect or influence on the jury’s verdict, this Court
grants the writ of habeas corpus and directs the Commonwealth to release Petitioner from
custody unless the state court holds a new trial within the next six months.
RELEVANT BACKGROUND
According to the state court record, Watts and his alleged co-conspirator, Dontay
Hughes, robbed Nicholas Harris of $100 at a train station in the Germantown section of
Philadelphia around 4:15 p.m. on July 28, 2007. Harris testified the robbery involved two
separate encounters. The first time Watts and Hughes approached Harris, Watts demanded $20,

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took Harris’ cell phone and made a phone call. Harris asked whether he would be left alone if he
complied, and Watts responded “yes.” Harris gave Watts $20 and Watts returned the cell phone.
The assailants left to a different area of the station. N.T. 11/13/08 at 38:1-40:3.
A few minutes passed. Watts and Hughes approached Harris again, each placing
a hand on one of Harris’ shoulders. Watts demanded the rest of Harris’ belongings, and Harris
complied by turning over his wallet. Watts took the remaining $80 and returned the wallet.
Initially, Harris claimed Watts and Hughes left after taking the money. Harris went home
without further incident and called the police. He said nothing about a gun or any threats of
harm. Id. at 42:22-44:2. However, after the prosecutor asked Harris whether the assailants were
armed, Harris testified he saw a bulge on Hughes’ hip, which he believed was a handgun. And,
after the prosecutor asked if the assailants had said anything about a gun, Harris testified that
Hughes claimed to have a “burner” on the side of his hip and threatened to shoot him “in front of
everybody” if he made a scene. Id. at 44:2-51:6. On cross-examination, Harris confirmed
bystanders had witnessed the incident without fleeing. Id. at 77:9-78:15. He also admitted he
never saw a firearm. Id. at 82:25-84:2.
Two police officers responded to Harris’ call and, with his assistance in the police
vehicle, they located the alleged perpetrators about two blocks from the scene of the incident.
Upon seeing Harris in the back of the police car, Watts and Hughes fled in separate directions.
Id. at 56:12-61:4. The officer pursued Watts who entered an abandoned building and jumped out
of a second story window. After a brief struggle, the officer subdued Watts and transported him
to a hospital and then to the local police station for arraignment. Commonwealth v. Watts, 619
EDA 2009, slip op. at 2-3 (Pa. Super. Ct. Apr. 21, 2010). Hughes was purportedly apprehended
at a later date. No handgun was ever recovered from either assailant. See id. at 21.

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Once in custody, Watts called Harris’ cell phone. Harris recognized Watt’s voice.
He identified himself as “the boy that robbed you,” and twice said, “[Y]oung boy, you don’t
want to do this.” N.T. 11/13/08 at 65:6-66:12. Watts changed his tone and added, “I can get
your money back, but, actually, from the bottom of my heart, please don’t do this, I got ten years
back time.” Id. at 66:18-22. According to phone records, Watts tried to call Harris two more
times from county prison but the calls failed. Watts, 619 EDA 2009, at 2-3.
Watts was charged with first-degree robbery, criminal conspiracy, terroristic
threats, intimidating a witness, criminal use of a communication facility, carrying a firearm
without a license and possession of an instrument of crime. The district attorney offered Watts a
negotiated plea, including a recommended sentence of seven to twenty years, but Watts rejected
it and proceeded to trial. See Commonwealth v. Watts, No. 3157 EDA 2013, 2015 WL 7454021,
at *1 (Pa. Super. Ct. Mar. 4, 2015).
The Honorable Chris R. Wogan of Philadelphia’s Court of Common Pleas
presided over the jury trial. During closing argument, defense counsel focused on whether the
prosecution could establish beyond a reasonable doubt that Watts “threaten[ed] to cause serious
bodily injury” as required for first-degree robbery since there had been no actual bodily injury in
this case. 1 N.T. 11/14/08 at 37:13-25. Defense counsel questioned Harris’ credibility and
reminded the jury that Harris’ testimony had a “tremendous inconsistency” insofar as he had said
“nothing” about the “bulge” until after the prosecutor “rehabilite[d] . . . or prompt[ed]” him, as if
that recollection was merely an “afterthought.” Id. at 38:12-39:5. Defense counsel argued:
“This is what reasonable doubt consists of; inconsistencies in the testimony of the witnesses.”

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Robbery in the first degree occurs when “in the course of committing a theft,” a person “(i) inflicts serious bodily
injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
or (iii) commits or threatens immediately to commit any felony of the first or second degree.” 18 Pa. Stat. and Cons.
Stat. Ann. § 3701(a)(1)(i)-(iii), (b)(1) (West).

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Id. at 39:1-4. Counsel pointed out that none of the bystanders appeared in court to corroborate
Harris’ testimony, and that Harris’ own recollection suggested they had not been frightened by
the incident. Id. at 39:16-40:20. He argued, “What does that tell you as to what was going on?
That, basically, again, is a reasonable doubt as to whether there was even a bulge or there was
even anything said about the shooting, because those people would have moved away.” Id. at
40:15-20. Counsel then questioned whether Harris had ever felt “threatened” since he did not
call the police until after calling his brother and going home first. He argued, “If you were just
threatened, you would be calling the police there . . . but [Harris] doesn’t act like you would
think a reasonable victim or complainant would.” Id. at 41:2-12. Lastly, counsel emphasized
that there “was never any gun found in this case; none, none, none.” Id. at 46:6-7 (emphasis
added). He argued, “Don’t you think if they would have found a gun from Dante Hughes [sic]
. . . that the gun would have been here today?” Id. at 45:19-46:3. He contended this was
“another reason to believe that there is no gun in this case; that a bulge is a bulge.” Id. at 46:7-9
(emphasis added).
At sidebar, the prosecutor complained that defense counsel had “made a big deal
about the fact that no gun was recovered from Dante Hughes [sic].” Id. at 54:25-55:10. The
prosecutor claimed that statement “[was] not true” because a .22 caliber rifle had been recovered
from Hughes pursuant to his arrest for a “second robbery where a riffle was used.” Id. The
prosecutor believed she should be allowed to disclose that information to the jury during her
summation although she had chosen not to introduce the rifle into evidence. Id. at 55:12-23.
Neither defense counsel nor the court was aware of the alleged rifle. Id. at 55:24-56:10.
Instead of overruling the prosecutor’s objection, Judge Wogan offered to instruct
the jury as to the existence of the rifle in an attempt to “keep this as neutral as possible.” Id. at

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56:12. Defense counsel objected, “That is going to be extremely prejudicial. There is a bulge.”
Id. at 56:18-19. The court disagreed, “I don’t think it hurts your client, but we can’t leave [the
jury] with an impression that is not true.” Id. at 56:22-24. Defense counsel argued his statement
was true insofar “as the evidence that came in” did not include any reference to a rifle. Id. at
56:25-57:2. Judge Wogan acknowledged as much: “It doesn’t sound like a rifle was used by
Dante Hughes [sic] in this courtroom committing this crime.” Id. at 58:20-22 (emphasis added).
Nevertheless, believing “no one [was] going to think a rifle was used in this crime,” he overruled
defense counsel’s objection and instructed the jury as follows:
Ladies and gentlemen, you remember what I told you, that closings
and even questions by attorneys may be helpful guides, but they
don’t constitute evidence.
In this case – I should say in this situation, the co-defendant, Dante
Hughes [sic], there was no handgun recovered from Dante Hughes,
that is determined that way and that is correct. There was, however,
a rifle that was recovered from Dante Hughes. Dante Hughes is
not on trial here, but you heard him mentioned as a co-defendant
in this case. So I think I have an obligation to make sure that you
know that there are no misimpressions left with you. And no one
consciously is misleading you. These things happen during trials.
Id. at 59:4-61:23 (emphasis added). Defense counsel was not afforded the opportunity to
comment on the instruction. Id. at 60:22-61:6. After the prosecution’s closing argument,
defense counsel moved for a mistrial due to the rifle instruction, but Judge Wogan denied the
motion. Id. at 85:21-23. Defense counsel also moved for a charge of second-degree robbery, 2
but that motion was denied as well. Id. at 115:21-116:8. The jury convicted Watts of all charges

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Robbery in the second degree occurs when “in the course of committing a theft,” a person “inflicts bodily injury
upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.” 18 Pa. Stat.
and Cons. Stat. Ann. § 3701(a)(1)(iv), (b)(1) (West).

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except carrying a firearm without a license and possession of an instrument of crime. Id. at
120:10-121:15.
On January 20, 2009, Judge Wogan sentenced Watts to 24.5 years to fifty years
and two months in prison. N.T. Sentencing Hr’g 1/20/09 at 49:10-11. In computing the sentence
for the robbery and criminal conspiracy, the court added a deadly weapon enhancement. Id. at
44:4-6; 45:4-6. The court reasoned that the enhancement applied in cases where a defendant was
in close proximity to a co-conspirator carrying a gun. Id. at 23:4-10. And, even though there
was never a finding that either of the alleged perpetrators possessed a gun during the robbery, the
court deduced “there was a gun used in this case” because “there was a bulge.” Id. at 29:6-10.
Furthermore, the court found it relevant that Watts had been “convicted of a robbery with fear of
serious bodily injury,” even though he had been acquitted of the firearm charges. Id. at 23:1721. The weapon enhancement did not impact the sentence for robbery. Because this robbery
was a second strike against Watts, the second strike rule mandated a minimum of ten to twenty
years, far above the guideline range for the robbery even with a weapon enhancement. Id. at
44:2-17. The second strike rule did not apply to the other convictions. Thus, the weapon
enhancement affected the sentence for criminal conspiracy, putting the guidelines range at fortyfive to fifty-seven months (3.75 to 4.75 years), plus or minus twelve months, due to Watts’
offense gravity score of nine and prior record score of four. Id. at 45:3-8. Judge Wogan
imposed a “slightly” aggravated sentence of sixty-six to 132 months (or 5.5 to eleven years) for
criminal conspiracy, because of Watts’ prior juvenile offenses. Id. at 45:8-22. Although the
mandatory minimum was ten to twenty years, Judge Wogan ultimately sentenced Watts to more
than double that time based on the attendant convictions. Id. at 45:23-46:23.

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Watts appealed from the judgment. He filed a 1925(b) statement listing several
errors to be raised, including the following:
1) The trial court erred in telling the jury after the evidence in the
case was closed and after the defense counsel closing
argument, that a rifle was recovered from Dontay Hughes, who
was a co-defendant of the defendant who was not on trial.
There was no allegation or evidence that a rifle was used in this
case. Also evidence is to come from witnesses not the trial
court. The trial court also erred in not allowing defense
counsel to comment upon this evidence that the trial court
stated to the jury and further erred by not granting the defense
motion for mistrial. The trial court denied the defendant his
State and Federal Constitutional Rights to confront the
witnesses and evidence against him.
2) The trial court erred in applying the deadly weapon
enhancement provision of the sentence guidelines because the
defendant was acquitted of all weapons charges in the case and
the evidence in the case did not show beyond a reasonable
doubt that a deadly weapon was used during the incident.
Def’s 1925(b) Direct App. Statement at pp. 1-2 (Apr. 6, 2009).
In an opinion, filed August 12, 2009, Judge Wogan addressed these claims. With
respect to the rifle instruction, he found no harm because Petitioner had been acquitted of the
firearm charges. Commonwealth v. Watts, CP-51-CR-9464-2007, CP-51-CR-10470-2007, slip
op. at 11 (Ct. Comm. Pl. Aug. 12, 2009). He explained, “[T]his correction did not harm
defendant nor deprive him of a fair trial, but simply corrected defense counsel’s misstatement of
facts pertaining to a codefendant.” Id. (emphasis added). In determining the weapon
enhancement applied, Judge Wogan added, “[T]hese guidelines were proper where defendant
was in close proximity to the codefendant, whom the jury believed to be carrying a firearm, since
they found defendant guilty of conspiracy and first degree felony robbery.” Id. at 14 (emphasis
added).

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On direct review, the Superior Court of Pennsylvania affirmed the judgment.
Watts, 619 EDA 2009, slip op. at 1. In the court’s opinion, the trial judge abused his discretion
when he offered the “cautionary instruction,” rather than overrule the prosecutor’s objection. Id.
at 22. The court noted it was “clear that defense counsel was referring to the firearm purported
to have been responsible for the bulge in Hughes [sic] clothing, the presence of which was a
disputed fact at trial.” Id. at 21-22. The court nevertheless concluded the error was “harmless
beyond a reasonable doubt” under Commonwealth v. Wood, 637 A.2d 1335, 1351 (Pa. Super.
1994), because Watts had been acquitted of the firearm charges and the robbery and conspiracy
convictions were not “dependent upon the actual presence of a firearm.” Id. at 22-23. It also
affirmed the weapon enhancement because the trial court could have independently found, under
a “preponderance of the evidence” standard at sentencing, that a weapon had been used. Id. 2829. Watts appealed the Superior Court’s decision, but Pennsylvania’s Supreme Court denied the
appeal. Commonwealth v. Watts, 17 A.3d 1254 (Pa. 2011). He sought post-conviction relief on
other grounds, but his efforts failed. See Watts, 2015 WL 7454021, at *1.
On July 5, 2016, after the conclusion of the state court proceedings, Watts timely
filed a pro se habeas petition pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d). He raised four claims: (1) the trial court violated his
constitutional due process rights when it rejected his request to charge the jury on the lesserincluded offense of second-degree robbery; (2) the trial court erred when it applied the deadly
weapon enhancement without making an independent factual finding under the proper standard
or submitting the question to the jury; (3) the trial court erred when it instructed the jury that an
unrelated rifle had been recovered from his alleged co-conspirator; and (4) the trial court
committed cumulative error. Pet. 10-25, ECF No. 1. This Court referred the petition to the

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Honorable Richard Lloret, U.S. Magistrate Judge, for a report and recommendation (“R&R”).
Judge Lloret recommended the petition be denied and dismissed with prejudice. R&R 16, ECF
No. 11. Petitioner timely objected to the R&R. ECF. No. 13.
On de novo review, this Court adopted the R&R with respect to Claims I and IV,
but granted a hearing with regards to Claims II and III. ECF No. 16. Because Petitioner had
been acting pro se and these issues presented difficult questions of law, this Court appointed
counsel for Petitioner. Counsel filed supplementary briefs and a hearing was held on March 1,
2017. Petitioner attended via videoconference.
STANDARD OF REVIEW
Under the AEDPA, habeas relief is proper only if the state court’s adjudication of
the claims “resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceedings.” 28 U.S.C. § 2254(d).
When a state court has found harmless error, a “federal court may not award
habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.”
Johnson v. Lamas, __ F.3d __, 2017 WL 835180, at *10 (3d Cir. Mar. 3, 2017) (citing to Davis
v. Ayala, 135 S. Ct. 2187, 2199 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)))
(emphasis in original). To be unreasonable, the state court’s decision must be “so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fair-minded disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 86,
103 (2011)).

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DISCUSSION
None of the reviewing courts disagree the trial judge erred when instructing the
jury as to the existence of the rifle. However, because the jury acquitted Petitioner of the firearm
charges, the courts below were satisfied the error was harmless. This Court respectfully differs
and finds the trial court’s erroneous instruction was per se prejudicial and the Superior Court’s
harmlessness determination was unreasonable and contrary to clearly established federal law.
In the context of habeas review, the U.S. Supreme Court has placed constitutional
errors on two ends of a spectrum. Brecht v. Abrahamson, 507 U.S. 619, 629 (1993). On one
end, there are “errors of the trial type” that are “amenable to harmless-error analysis” because
they may “be quantitatively assessed in the context of other evidence presented in order to
determine” their effect on the trial. Id. In those cases, the conviction is reversible only if the
error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at
623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). On the other end, there are
“structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmlesserror’ standards.” Id. at 629 (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)). “The
existence of such defects . . . requires automatic reversal of the conviction because they infect the
entire trial process.” Id. at 629-30 (citing to Fulminante, 499 U.S.at 309-10). The Third Circuit
considers structural errors to be “per se prejudicial,” Hassine v. Zimmerman, 160 F.3d 941, 949
(3d Cir. 1998), and “per se reversible even in habeas cases,” Palmer v. Hendricks, 592 F.3d 386,
397 n.6 (3d Cir. 2010) (citing to Brecht, 507 U.S. at 629-30).
Although the Supreme Court has not squarely addressed the precise situation
presented in this case, relevant principles are readily discernible in its jurisprudence. See White
v. Coplan, 399 F.3d 18, 25 (1st Cir. 2005) (“There is no Supreme Court case directly on all fours,

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but AEDPA requires no such thing.”). The Sixth Amendment guarantees a jury verdict based
solely on evidence presented at trial “from the witness stand in a public courtroom where there is
full judicial protection of the defendant’s right of confrontation, of cross-examination, and of
counsel.” Turner v. Louisiana, 379 U.S. 466, 473 (1965) (emphasis added). Where a trial judge
“assume[s] the role of a witness” and instructs the jury with extraneous evidence in repudiation
of the defendant’s testimony, the Court “cannot doubt” the error “was highly prejudicial.”
Quercia v. United States, 289 U.S. 466, 470-72 (1933). Likewise, when an erroneous jury
instruction deprives a defendant of the right to a verdict of guilt beyond a reasonable doubt, it is
per se prejudicial because it “vitiates all the jury’s findings” and its effects “are necessarily
unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)
(emphasis in original); see also Bihn v. United States, 328 U.S. 633, 637 (1946) (jury instruction
shifting the burden of proof onto defendant was prejudicial error, even though there was
uncertainty as to actual harm, because “the probabilities of confusion in the minds of the jurors
seem[ed] so great, and the charge was so important to the vital issue in the case”).
This “per se rule of prejudice” exists in other “Sixth Amendment contexts,” such
as “various kinds of state interference with counsel’s assistance.” Strickland v. Washington, 466
U.S. 668, 692 (1984). In those situations, harm “is so likely that case-by-case inquiry into
prejudice is not worth the cost.” Id. Judicial interference with defense counsel’s summation is
especially troubling, because “closing argument is the last clear chance to persuade the trier of
fact that there may be reasonable doubt of the defendant’s guilt.” See Herring v. New York, 422
U.S. 853, 862 (1975) (total denial of opportunity to make closing argument was per se
reversible). The Seventh Circuit’s decision in United States v. Spears, 558 F.2d 1296 (7th Cir.
1977), is highly instructive. There, the trial judge interrupted defense counsel’s closing

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argument and criticized him in front of the jury for making an improper and purportedly false
statement, which, as it turned out, was “basically correct.” 558 F.2d at 1297. The court of
appeals found the trial judge’s disparaging remarks “made a fair consideration of the case by the
jury most difficult, if not impossible.” Id. The judge’s interjection also “seriously prejudiced the
defense” because it “went far beyond the correction of an alleged misstatement” and, instead,
had the effect of undermining counsel’s ability to be an effective advocate for the defendant. Id.
at 1298.
Similarly, Petitioner argues that Judge Wogan’s erroneous instruction was per se
prejudicial because it undermined his right to effective assistance of counsel and made a fair
consideration of his case by the jury improbable. Hr’g 03/01/17. This Court agrees. Petitioner’s
trial was irreversibly compromised after the trial judge not only offered the jury an irrelevant and
highly prejudicial fact from outside the record after close of evidence and in contradiction of
defense counsel’s proper characterization of the evidence, see Quercia, 289 U.S. at 470 (a trial
judge “may analyze and dissect the evidence, but he may not either distort it or add to it.”), but
also, inadvertently or willfully, undermined defense counsel’s credibility by incorrectly
insinuating that he had “consciously” misled (in effect, lied to) the jury without giving him any
opportunity to rectify his statement, see Spears, 558 F.2d at 1298 (“the devastating impact of the
judge’s gratuitous remark is readily apparent.”). An error of this magnitude is properly
understood as per se prejudicial because the effect on everything that happened after the
erroneous instruction is “necessarily unquantifiable and indeterminate.” Sullivan, 508 U.S. at
281-82. There is simply no way to get into the jurors’ minds to ascertain the erroneous
instruction’s full sting.

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Even so, this is not a case in which the prejudicial effect is merely theoretical.
The rifle instruction was not a happenstance mistake that could be subsumed into everything else
that happened at trial, but instead proved to be “important to the vital issue in the case,” Bihn,
328 U.S. at 637, i.e., whether the jury could find beyond a reasonable doubt that Petitioner or his
alleged co-conspirator was armed or put the victim in fear of serious bodily injury. Prior to the
rifle instruction, the only evidence the jury had for making that determination was the victim’s
uncorroborated testimony about the bulge and “burner” threat. If the jury had disbelieved that
part of the victim’s testimony – which had been put into question by the victim’s arguably
diverging accounts of the incident – the jury would have had to acquit Petitioner of first-degree
robbery and criminal conspiracy unless there was something else that would suggest the victim’s
testimony was credible. Enter the trial judge, who “assum[ing] the role of a witness,” Quercia,
289 U.S. at 471, averred that a rifle had been recovered from Petitioner’s alleged co-conspirator
without even clarifying that it had been recovered pursuant to a subsequent, unrelated arrest. To
hear the trial judge declare, as a matter of fact, that Petitioner’s alleged co-conspirator was
someone who possessed at least one firearm certainly weighed in favor of the victim’s testimony
as to the bulge and “burner” threat. See id., 289 U.S. at 470 (“The influence of the trial judge on
the jury is necessarily and properly of great weight and his lightest word or intimation is received
with deference, and may prove controlling.”) (quoting Starr v. United States, 153 U.S. 614, 626
(1894)) (internal quotation marks omitted). The trial judge’s declaration opened the door to all
sorts of inferences about the alleged co-conspirator’s propensity to be armed and the nature and
character of the threat he posed, as well as Petitioner’s criminality based upon the company he
kept. Those inferences alone could have accounted for the first-degree robbery and conspiracy
convictions, and could have also influenced the intimidation and terroristic threat convictions,

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even without factoring in the defamatory impact of hearing that the instruction was being offered
to correct a “misrepresentation” in the defense’s version of events and to ensure “no one
consciously is misleading you.” N.T. 11/14/08 at 59:4-61:23. When considered in light of the
record as a whole, the trial judge’s erroneous instruction “made a fair consideration of the case
by the jury most difficult, if not impossible.” Spears, 558 F.2d at 1297; see also Quercia, 289
U.S. at 470 (trial judge’s opinion that defendant had lied “was of a sort most likely to remain
firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair
and dispassionate consideration of the evidence.”).
Judge Wogan’s contemporaneous statements offer strong evidence of the error’s
prejudicial effect on the jury’s verdict and the subsequent proceedings. At sentencing, Judge
Wogan imposed a deadly weapon enhancement on the understanding that “the jury believed” a
firearm had been used in this case “since they found defendant guilty of conspiracy and first
degree felony robbery,” Watts, CP-51-CR-9464-2007, CP-51-CR-10470-2007, at 14, as if the
existence of a firearm necessarily followed from those convictions, or more damaging yet, as if
the existence of a firearm made those convictions more probable. The record does not shed any
additional light as to how Judge Wogan came to his conclusion about what “the jury believed.”
Regardless, Judge Wogan’s twisted logic exemplifies the likelihood of confusion that could
ensue from introducing extraneous evidence of an unrelated firearm in this case. If the learned
trial judge believed the robbery and conspiracy convictions were causally linked to the existence
of a firearm, then who is to say the jury was not similarly confused as to the implications of the
rifle instruction? Cf. Bihn, 328 U.S. at 637 (“We assume that the charge might not be misleading
or confusing to lawyers. But the probabilities of confusion to a jury are so likely that we
conclude that the charge was prejudicially erroneous.”) (internal citation omitted). Furthermore,

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Judge Wogan’s decision to apply the weapon enhancement based on his understanding of the
jury’s beliefs underscores how the rifle instruction was more than “simply an error of the trial
type” and instead was a “structural defect affecting the framework within which the trial
proceed[ed].” Fulminante, 499 U.S. at 310. 3
The Honorable Superior Court did not engage in this structural analysis even
though it was Petitioner’s only argument on direct appeal and the facts of this case cried out for
application of this clearly established standard. With regards to the erroneous instruction, Watts’
state appellate brief cited only to Commonwealth v. Johnson, a case that involved “a complete, if
temporary, denial of counsel by the trial court during reiterative jury instructions, a critical stage
of appellant’s trial.” 828 A.2d 1009, 1015 (Pa. 2003). In that case, the Supreme Court of
Pennsylvania declined to adopt the harmless-error standard and concluded the error was
presumptively prejudicial and warranted a new trial. Id. at 15-16 (citing to Geders v. United
States, 425 U.S. 80 (1976) (finding per se violation of right to counsel), and quoting Brecht, 507
U.S. at 629–30 (“The existence of such defects-deprivation of the right to counsel, for
example—requires automatic reversal of the conviction because they infect the entire trial
process.”)). The Superior Court’s opinion does not address Johnson, a noticeable omission since
the court seemed to understand the gravity of the trial judge’s mistake: “Far from correcting a
misrepresentation, the trial court injected into the case an extraneous, unproven and irrelevant
fact that had the potential to confuse the jury and undermine the defense counsel’s closing
argument relative to the absence of a weapon in this case.” Watts, 619 EDA 2009, slip op. at 22

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Even if the erroneous instruction is not a structural defect, the trial court’s error also falls squarely within the
“deliberate and especially egregious error of the trial type” that, as contemplated by the Supreme Court, “might so
infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence
the jury’s verdict.” Brecht, 507 U.S. at 638 n. 9 (citing to Greer v. Miller, 483 U.S. 756, 769 (1987) (Stevens, J.,
concurring in judgment)) (emphasis added). The conviction is per se reversible under this standard for the same
reasons set forth in this Court’s structural analysis.

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(emphasis in original). These considerations, along with Petitioner’s citation to Johnson, should
have alerted the court to the possibility of finding prejudice per se, but it proceeded instead
directly to a harmless-error analysis at the Commonwealth’s invitation. Id. at 23. Disregarding
Petitioner’s only argument was unreasonable and resulted in a decision that contradicts clearly
established federal law.
But even if the harmless-error standard applies, as Respondents insist, the
harmlessness analysis in this case requires a divining beyond the level undertaken by the
Superior Court. While it is true that the first-degree robbery and conspiracy convictions could be
legally sustained without a firearm, the proper question is whether exposing the jury to a
judicially-endorsed extraneous fact about an unrelated rifle, in direct contradiction of defense
counsel’s closing argument, tipped the scale in favor of the convictions. The court did not
consider that distinction. Moreover, the prosecution’s case for first-degree robbery and criminal
conspiracy was not as “clear, direct, and uncontradicted” as the Superior Court’s opinion
suggests, but instead was based solely on the victim’s uncorroborated and arguably inconsistent
testimony. That the jury acquitted Petitioner of the firearm charges only accentuates the
tenuousness of the prosecution’s case. Lastly, the court did not factor in the trial judge’s
contemporaneous understanding of what the jury supposedly believed, or the cumulative and
detrimental effect of the trial judge’s disapproval of defense counsel’s closing argument, which
effectively instructed the jury that defense counsel lied to them (an indirect accusation that he
was not permitted to refute), on bolstering the victim’s testimony. Had the court delved a little
deeper into the record and connected all the dots, it would have discerned the error’s harm.
Failure to do so was unreasonable. Gregg v. Rockview, 596 F. App’x 72, 78 n.5 (3d Cir. 2015)

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(failure to consider relevant facts contributed to unreasonable application of federal law under
AEDPA).
Respondents argue retrospectively that “the strength of the prosecution’s case
relative to Watts’s defense,” in combination with the firearm acquittals, sufficiently shows the
jury verdict would not have been different “but for the judge’s fleeting reference to Hughes’s
possession of a rifle.” Resps.’ Suppl. Br. 23, ECF No. 23. Respondents believe the trial judge
inoculated the jury against any prejudicial inferences by couching the rifle instruction with
sufficient disclaimers. See, e.g., id. at 12 and n.6. Judicial antidotes may be effective in cases
where a witness or counsel offers unfairly prejudicial statements, but their curative effect
diminishes when the misinformation comes straight from the bench. See Quercia, 289 U.S. at
472 (“Nor do we think that the error was cured by the statement of the trial judge that his opinion
of the evidence was not binding on the jury”). Indeed, none of the harmless-error cases cited by
Respondents involve judicial derogation of defense counsel’s closing argument or usurpation of
the jury’s fact-finding role, much less a combination of the two. 4 In any event, Judge Wogan’s
qualifications, such as confirming “there was no handgun recovered from Dante Hughes,” did
little if anything to erase the existence of the rifle from the jurors’ minds. He should have never
introduced that information to begin with and, at the very least, he should have withdrawn it,
which he did not. See id. (finding the trial judge’s interference had been “highly prejudicial,”
and observing that “[h]is definite and concrete assertion of fact, which he had made with all the
persuasiveness of judicial utterance . . . was not withdrawn.”).
In the end, Respondents urge affirmance of the Superior Court’s decision unless
this Court “is in grave doubt about whether or not that error is harmless.” O’Neal v. McAninch,
4

Respondents cite to United States v. Morosco, but that case dealt with a trial judge’s inadvertent disclosure of the
co-defendant’s plea to potential jurors “before the seven-day trial began,” and “well before jury deliberations,” and
therefore does not reach the concerns raised in this case. 822 F.3d 1, 14, 16 (1st Cir.) (emphasis in original).

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513 U.S. 432, 435 (1995) (emphasis in original). This argument collapses under its own weight.
O’Neal, like this case, involved “possible jury ‘confusion’ arising out of a trial court instruction.”
Id. The district court found constitutional error and granted habeas relief. The court of appeals
reversed because it found the error was harmless. The Supreme Court granted certiorari because
it appeared as though the court of appeals had put the burden of establishing prejudice on the
habeas petitioner, which could have meant the petitioner had lost, “not because the judges
concluded that the error was harmless, but because the record of the trial left them in grave doubt
about the effect of the error.” Id. at 436 (emphasis in original). “Grave doubt” exists when, “in
the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to
the harmlessness of the error.” Id. at 435. In that situation, the Supreme Court counseled “the
uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict”
in a substantial and injurious way. Id. at 435.
The Supreme Court’s advice notwithstanding, this Court is not merely in “grave
doubt” as to the error’s harmlessness in this case, but actually has no doubt the erroneous
instruction had, at the very least, a “substantial and injurious effect or influence in determining
the jury’s verdict.” Id. (citing to Brecht, 507 U.S. at 623). Not often does this Court encounter a
more devastatingly prejudicial error than the one presented in this case; an error that lies beneath
a prison sentence of 24.5 to fifty years and two months for convictions stemming from a $100
robbery. To be clear, this Court does not condone Petitioner’s prior conduct, nor does it
disregard the seriousness of the allegations against him. But “[n]o matter how compelling the
evidence of guilt, there is a point at which unfairness in the trial requires reversal.” Spears, 558
F.2d at 1298. The trial judge crossed that point in this case. To allow Petitioner’s conviction to
stand, in the face of the trial court’s irrefutable errors, would be a dereliction of this Court’s duty

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to “guard against extreme malfunctions in the state criminal justice systems[.]” Harrington, 562
U.S. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring)).
As Petitioner’s brief undeniably established, this is not the first time Judge Wogan
exceeded his powers to the detriment of a criminal defendant. Pet’r’s Supp. Br. 21, ECF No. 24.
In Commonwealth v. McNeal, the Superior Court censured Judge Wogan for his “unapologetic
admission that he considered evidence dehors the record when deliberating upon and rendering a
verdict.” 120 A.3d 313, 328 (2015). There, Judge Wogan convicted the defendant of criminal
mischief based on evidence contained in a letter that the Commonwealth never introduced at
trial, “notwithstanding an apparent glimmer of recognition that it was improper for him to do
so.” Id. Judge Wogan attempted to shift the blame onto defense counsel for supposedly
allowing his client to send him the letter, but the Superior Court confirmed it was Judge Wogan
who had made a “stark and fundamental error” in relying on the correspondence. Id. The court
vacated the conviction. Likewise, in Commonwealth v. Williams, the Superior Court chastised
Judge Wogan for an “accumulation of inappropriate remarks” that evidenced “partiality,
prejudice, bias or ill will” at sentencing. 69 A.3d 735, 744 (2013). In that case, Judge Wogan
struck “a tone of advocacy rather than dispassionate reflection” when expressing his views as to
the defendant’s gender, mental health and religious “animus.” Id. at 744-49. The Superior Court
concluded “the overwhelming appearance of bias on the part of the trial court rendered
Appellant’s sentence an abuse of discretion.” Id. at 749. The court remanded for resentencing.
Those same concerns are not entirely absent from this case. Judge Wogan had the
opportunity to correct his error, but declined to do so. Instead of acknowledging his mistake,
Judge Wogan mischaracterized his erroneous instruction as a mere “correction” of defense

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counsel’s “misstatement” even though counsel had accurately represented the facts as they
appeared in the record and it was Judge Wogan who had injected irrelevant and unfairly
prejudicial evidence into the case. Such oblivious disregard for the facts also infected sentencing
through the imposition of the weapon enhancement without proper justification. In sum, his
conduct skirted the edges of impartiality. Justice John M. Harlan II once noted, with respect to
the doctrine of per se reversible errors, “[C]ertain types of official misbehavior require reversal
simply because society cannot tolerate giving final effect to a judgment tainted with such
intentional misconduct.” Chapman v. California, 386 U.S. 18, 52 n.7 (1967) (Harlan II, J.,
dissenting). His words ring true today. 5
CONCLUSION
For the foregoing reasons, this Court grants the writ of habeas corpus and orders
the Commonwealth to release Petitioner unless the state court holds a new trial within the next
six months in a manner not inconsistent with this Memorandum. An appropriate order follows.

BY THE COURT:

/s/ C. Darnell Jones, II
C. Darnell Jones, II J.

5

Because this Court is satisfied that the proper remedy in this case is a new trial or Petitioner’s release, it is
unnecessary to address the separate sentencing claim any further. This decision notwithstanding, this Court
continues to hold the view that the Superior Court’s ex post justification for the weapon enhancement “was based on
an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28
U.S.C. § 2254(d), as determined in this Court’s September 30, 2016 Opinion. ECF No. 16. Even if the sentencing
claim were procedurally defaulted, this Court would nonetheless remand for resentencing because to do otherwise
would “result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

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