Smith v. Cameron et al

Filing 21

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable John E. Jones, III on 5/16/17. (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIC J. SMITH,
Petitioner,
v.
KENNETH CAMERON, PA
ATTORNEY GENERAL,
Respondents.

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1:15-cv-1546
Hon. John E. Jones III

MEMORANDUM
May 16, 2017
Petitioner Eric Smith (“Petitioner” or “Smith”) a prisoner currently confined
at the State Correctional Institution at Houtzdale, Pennsylvania, files the instant
petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254, following
affirmation of his convictions for Robbery and related crimes. For the reasons that
follow, the petition for writ of habeas corpus will be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial in the Court of Common Pleas of Montour County,

Pennsylvania, Smith was convicted of robbery, conspiracy to commit robbery and
theft, and sentenced to an aggregate term of 10 to 20 years’ incarceration. (Doc.
13-3, p. 1). He filed a timely notice of appeal raising the following issues:
1.
Did the court err in denying Appellant’s Motion for a Mistrial
when the Commonwealth presented testimony of a police officer

containing an improper comment on [appellant’s] constitutional right
to remain silent?
2.
Was the Appellant denied his right to a fair trial when the
District Attorney made an improper demonstration in front of the jury
regarding the appearance of the individual who committed the
robbery?
3.
Was the Appellant denied his right to a fair trial when the
District Attorney made an improper appeal to the jury to bring back a
verdict of guilty based on being “the conscience of the community”
rather than basing the verdict solely on the facts of the case?
4.
Did the court err when it imposed an aggravated range sentence
using as aggravated factors items which were already included as
elements in the underline [sic] offense, and did the court fail to
consider all mitigating factors specific to Appellant’s case and
individualize sentence based upon the characteristics of the
Appellant?
(Id. at pp. 2-3).
The Pennsylvania Superior Court summarized the relevant facts as follows:
On July 14, 2008, at approximately 5:00 p.m., two individuals, a male
and a female, were seen entering Ryan’s Jewelers in Danville. (Notes
of Testimony, 6/10/09 at 25-28). Joseph Ozelek (“Ozelek”), who was
standing across the street, noticed that the male was carrying a black
bag and wearing a black leather coat, unusual for a warm summer day.
(Id. at 26). The female was dressed in a light grey business suit. (Id.)
Ozelek watched them enter the jewelry store, and shortly thereafter
heard a scream. (Id. at 28.) Through the store window, Ozelek saw
the female walking somebody around the back side of the counter, and
the male waving his right hand up by his head. (Id. at 29.) At that
time, Ozelek walked up the street to a nearby police station, and
informed them that there was a possible robbery in progress at Ryan’s
Jewelers. (Id. at 29-30, 140.)
2

Two employees and one customer were in the store at the time of the
robbery, and described what happened.
Linda Cavanaugh
(“Cavanaugh”) testified that she and her co-worker, Margaret
Hunsinger (“Hunsinger”), were in the process of closing the store
when two African-Americans, one male and one female, entered. (Id.
at 38.) Cavanaugh testified that they entered quickly and went
straight to the counter. (Id. at 39.) Cavanaugh, Hunsinger, and the
customer, Dr. Michelle Olson (“Dr. Olson”), were sprayed with
pepper spray. (Id. at 39-40.) Cavanaugh testified that her face was
burning and she could not see. (Id. at 40.) The black male told them
to “shut up” and repeatedly demanded “where are the Rolexes?” (Id.
at 40, 42.)
As Cavanaugh was bent over screaming in pain, she felt something
pressing against the back of her neck. (Id. at 40-41.) Cavanaugh
testified that she assumed it was a weapon and that “I was done.” (Id.
at 41.) In fact, the weapon was a stun gun which the male used to
immobilize Cavanaugh. (Id. at 43.) Shortly thereafter, Officer Gerard
Zeidler arrived on the scene. (Id. at 44.) After a short confrontation
with Officer Zeidler, the intruders left and Cavanaugh called 911. (Id.
at 47.)
Cavanaugh testified that the female was wearing sunglasses and the
male was wearing a baseball hat and large black sunglasses. (Id. at
46.) The male’s baseball hat was worn low, covering his forehead,
and his sunglasses concealed a good portion of his face. (Id. at 4647.) Combined with the fact that she had pepper spray in her eyes,
Cavanaugh was unable to make an identification. (Id. at 47.)
Hunsinger also testified that the male had a baseball hat pulled down
low over his eyes, preventing her from identifying him. (Id. at 60,
71.) The female was wearing a grey pant suit, a wig, and large
sunglasses. (Id. at 60-61.) Hunsinger was sprayed with pepper spray
and also stunned with the stun gun. (Id. at 63-64.) Hunsinger was
shocked at least five times with the stun gun, and described it as “very
painful.” (Id. at 66.) Hunsinger testified that they were all terrified.
(Id. at 64.)
3

Dr. Olson was in Ryan’s Jewelers picking up a ring she had sized.
(Id. at 82.) Dr. Olson, who is a colorectal surgeon at Geisinger
Medical Center, was about to complete the transaction when she was
sprayed in the face with pepper spray. (Id. at 81, 84). She started to
make her way to the door when a male voice said, “where are you
going? Get down.” (Id. at 84, 87.) Dr. Olson testified that her face
was burning and she dropped to her knees. (Id. at 88.) At that point,
she heard the man saying, “tie them up,” and her arms and wrists were
duct-taped together. (Id. at 88-89.) Dr. Olson testified that her face
felt as though it were on fire, and she could not see. (Id. at 89.) She
was fearful that she would be permanently blinded. (Id. at 90.)
Eventually, she heard another voice saying, “get down or I’ll shoot,”
and after a brief scuffle, there was the sound of people running toward
the back of the store. (Id. at 91.) As in the case of Cavanaugh and
Hunsinger, Dr. Olson testified that she would be unable to identify the
perpetrators due to the fact that they were wearing dark sunglasses.
(Id. at 95.)
Officer Zeidler testified that at approximately 5:15 p.m. on July 14,
2008, he was informed by the police clerk that “someone thinks there
is a robbery going on down the street.” (Id. at 140.) He was told that
it was at Ryan’s Jewelers, which is only 270 feet from the police
station. (Id. at 140-141.) After observing the actions of the two
individuals through the store window, Officer Zeidler concluded that
there was, in fact, a robbery in progress. (Id. at 142-143.)
Officer Zeidler drew his weapon, opened the door, and shouted,
“Police, stop. Show me your hands. Get to the ground.” (Id. at 143,
145.) Officer Zeidler testified that the female suspect stood still
behind the counter, near the vault; the male suspect was squatting on
the ground and concealing his right hand. (Id. at 144.) Concerned
that the male was holding a weapon, Officer Zeidler continued to yell
“show me your hands. Get on the floor.” (Id. at 145-146.) Finally,
when the male individual continued to refuse to obey Officer Zeidler’s
commands, Officer Zeidler told him “don’t make me shoot you.” (Id.
at 146.) The male replied, “you are going to shoot me?” (Id.) Officer
Zeidler stated, “not if you show me your hands and get on the floor.”
4

(Id.) At that point, the male suspect knelt down and placed both
hands on the floor. (Id.)
As the male slowly went down to the floor, his female accomplice
started to walk out the back door. (Id.) Officer Zeidler instructed her
to stop but she did not. (Id. at 147.) At that time, the male suspect
leapt up and sprinted out the back door of the jewelry store. (Id. at
148.) Officer Zeidler re-holstered his weapon and gave chase. (Id.)
Eventually, Officer Zeidler tackled the male suspect and, with backup assistance, was able to handcuff him. (Id. at 151). The male
individual, subsequently identified as appellant herein, had a can of
pepper spray labeled “Whoop Ass” in his pants pocket. (Id. at 153.)
An identical can of “Whoop Ass” red pepper spray was found behind
the jewelry store counter. (Id. at 118; Commonwealth’s Exhibit 26.)
Officer Zeidler testified that during the chase, he never lost sight of
appellant. (Id. at 150, 159.) He also positively identified appellant at
trial as the person he saw in the jewelry store and the person he took
into custody. (Id. at 159.)
Appellant took the stand in his own defense. According to appellant,
he was on his way back to Philadelphia from Williamsport when he
and two companions got lost in Danville. (Id. at 179-180.) Appellant
decided to run into Ryan’s jewelry to buy some hoop earrings for his
daughter. (Id. at 180.) Appellant testified that while he was in the
store, a woman sprayed him with pepper spray. (Id. at 183.) A male
voice told him to “shut up, don’t move.” (Id. at184.) Appellant
testified that after Officer Zeidler arrived and the unidentified woman
walked out the back door, he ran after her in pursuit. (Id. at 187.)
Appellant further testified:
And, the last thing I said to the Officer after that was
“don’t let her get away, don’t let her get away.” And a
[sic] I ran out the store. I wasn’t fleeing from the [sic]
Officer Zeidler. I wasn’t thinking about [O]fficer
[Z]eidler. I chased the woman, and I was screaming and
yelling through the streets “help help, help, stop that car,
help, stop that car.”
5

Id. at 187. Appellant testified that he was also a victim of the robbery
and that he was trying to apprehend the female suspect:
I just was screaming at the top of my lungs “help, help.”
A car pulled up on the side of me and I was screaming,
“help, stop that car.” I don’t know I don’t want to offend
nobody [sic], but I am running through the streets. So,
they just looked at me crazy.
Id. at 188.
In rebuttal, the Commonwealth recalled Officer Zeidler. Officer
Zeidler testified that he never heard appellant shouting for assistance
in apprehending the female suspect:
Q.
What assistance did he request from you in going
after a third party that he was, according to his testimony,
trying to chase or capture?
A.

Absolutely none whatsoever.

Q.
What did he tell you when you apprehended him
about any woman or any person attacking him in the
store?
A.

Nothing.

Id. at 217-218.
(Doc. 13-3, 3-8).
In affirming the judgment of sentence, the Superior Court addressed each of
Smith’s issues on the merits with the exception of his contention that the trial court
failed to consider mitigating factors when imposing sentence. (Id. at pp. 8-17;
6

Commonwealth v. Smith, 24 A.3d 451 (Pa. Super. 2011) (unpublished
memorandum). Because Smith failed to discuss the mitigating factors in the
argument section of his brief, the Superior Court deemed the issue waived pursuant
to PA.R.A.P. 2119(a). He filed a timely petition for allowance of appeal raising all
of the above issues to the Supreme Court of Pennsylvania; the petition was denied.
Commonwealth v. Smith, 612 Pa. 704, 30 A.3d 1193 (Pa. 2011).
On July 12, 2012, Smith filed a timely Post Conviction Relief Act (“PCRA”)
petition pursuant to 42 PA.C.S. §§ 9541-9546, which was denied following a June
10, 2013 hearing. (Doc. 13-7). His timely appeal sought review of six issues.
First, he argued that his constitutional rights to a fair trial were violated because the
Commonwealth withheld exculpatory evidence. (Doc. 13-11, p. 4). Second, he
contended that the trial court erred in failing to offer a jury instruction in
accordance with Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). (Id. at 4-5).
In addressing the first two issues, the Superior Court stated that the issues were
“woefully underdeveloped.” (Id. at 5). “Appellant sets forth no coherent argument
for either issue; nor, in violation of Pa R.A.P. 2119, does he cite to the testimony
from the PCRA hearing. Moreover, Appellant has not presented the issues
properly in the context of a claim for ineffective assistance of counsel or another
claim otherwise cognizable under the PCRA. Accordingly, we cannot review these
7

issues on appeal.” (Id.) (footnote omitted). The remaining issues were identical to
the issues Smith pursued in his direct appeal. (Id. at 5-6). The Superior Court
noted the following:
Appellant’s next four issues, which include Appellant’s post-arrest
silence, an improper demonstration to the jury, improper statements in
the Commonwealth’s closing argument, and the imposition of a
sentence in the aggravated range, are a mere recitation of the four
issues Appellant raised on direct appeal. All four issues were found to
be without merit on direct appeal; thus, those issues have been
previously litigated pursuant to 42 PA.C.S.§ 9544(a)(2), and Appellant
is not entitled to re-litigate them at this time.
Because Appellant has not presented any issue which we can review
on appeal, we affirm the order of the PCRA court dismissing his
PCRA petition.
(Id. at 6). A timely petition for allocator was filed with the Pennsylvania Supreme
Court and denied on May 4, 2015. (Doc. 13-14).
Thereafter, Smith pursued relief in federal court.
II.

ISSUES PRESENTED IN FEDERAL PETITION
The instant petition for federal habeas relief was filed on August 8, 2015.

(Doc. 1). Therein, Smith seeks relief on the following grounds:
1.

“Petitioner’s constitutional right to a fair trial was violated because the
district attorney withheld exculpatory evidence.”

2.

“A new trial should be granted where the trial court failed to offer a
Kloiber instruction.”

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3.

“Petitioner’s constitutional rights were violated where the trial court
erred when denying Petitioner’s motion for a mistrial when the
Commonwealth presented testimony of a police officer containing an
improper comment on Petitioner’s constitutional right to remain
silent.”

4.

“Petitioner was denied a fair trial when the district attorney made an
improper demonstration in front of the jury regarding the individual
who committed the robbery.”

5.

“Petitioner’s constitutional rights were violated where Petitioner was
denied a fair trial when the district attorney made an improper appeal
to the jury to bring back a guilty verdict based on being ‘The
conscience of the community’ rather than basing the verdict solely on
the facts of the case.”

6.

“Petitioner’s constitutional rights were violated where the honorable
court erred when it imposed an aggravated range sentence using as
aggravating factors, items which were already included as elements in
the underlying offense and the Court failed to consider all mitigating
factors specific to Petitioner’s case and individualized sentence upon
the characteristics of Petitioner.”

(Doc. 1, pp. 7-12).
III.

DISCUSSION
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper

mechanism for a prisoner to challenge the “fact or duration” of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). Petitioner’s case is governed
by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132,
110 Stat. 1214, April 24, 1996 (“AEDPA”). 28 U.S.C. § 2254, provides, in
pertinent part:
9

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
...
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding....
28 U.S.C. § 2254. Section 2254 sets limits on the power of a federal court to grant
an application for a writ of habeas corpus on behalf of a state prisoner. Cullen v.
Pinholster, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir.
2014). A federal court may consider a habeas petition filed by a state prisoner
only “on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a).

10

A.

Exhaustion and Procedural Default

Habeas relief “shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The
state courts must have the first opportunity to redress any claimed violation of a
habeas petitioner’s federal rights. Picard v. Connor, 404 U.S. 270, 275–76 (1971).
The habeas statute codifies this principle by requiring that a petitioner exhaust the
remedies available in the courts of the State, 28 U.S.C. § 2254(b)(1)(A), meaning a
state prisoner must “fairly present” his claims in “one complete round of the state’s
established appellate review process,” before bringing them in federal court.
O’Sullivan, 526 U.S. at 845 (stating “[b]ecause the exhaustion doctrine is designed
to give the state courts a full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal courts, . . . state prisoners
must give the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established review process.”); see
also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971);
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
Relief cannot be granted unless all available state remedies have been
exhausted, or there is an absence of available state corrective process, or
11

circumstances exist that render such process ineffective to protect the rights of the
applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded
on principles of comity in order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to state convictions. See
Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Significantly, federal habeas
courts “ ‘will not review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal
question and adequate to support the judgment.’ ” Lambrix v. Singletary, 520 U.S.
518, 522 (1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
Smith argues in Ground One that his constitutional rights to a fair trial were
violated because the Commonwealth withheld exculpatory evidence. (Doc. 13-11,
p. 4). In Ground Two, he contends that the trial court erred in failing to offer a jury
instruction in accordance with Commonwealth v. Kloiber, 106 A.2d 820 (Pa.
1954). (Id. at 4-5). In Ground Six, in addition to challenging the consideration of
aggravating factors during sentencing, Smith argues that the court “failed to
consider all mitigating factors” and impose an individualized sentence. (Doc. 1, p.
12). With respect to Grounds One and Two, as noted supra, the Superior Court
deemed both issues waived because they were “woefully underdeveloped” and
there was “no coherent argument for either issue.” (Id. at 5). Further, Smith
12

failed to cite to the PCRA hearing testimony as required by PA R.A.P. 2119. (Id.)
Respondents argue that Smith “failed to develop these issues in his appeal to the
Pennsylvania Superior Court and, as a result, the same are procedurally defaulted.”
(Doc. 11, p. 3). Smith counters that the issues should be considered on the merits
for the reasons stated in his petition (Doc. 1) and memorandum (Doc. 2). As
concerns the mitigating factors portion of Ground Six, on appeal, the Superior
Court deemed the claims abandoned stating that “[a] failure to develop meaningful
argument in support of the claims results in waiver. PA.R.A.P. 2119(a).” (Doc. 133, p. 17, n 5).
“A federal habeas court will not review a claim rejected by a state court ‘if
the decision of [the state] court rests on a state law ground that is independent of
the federal question and adequate to support the judgment.’ Kindler, 558 U.S., at –
–––, 130 S.Ct., at 615 (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The state-law ground may be a substantive
rule dispositive of the case, or a procedural barrier to adjudication of the claim on
the merits. See Sykes, 433 U.S., at 81–82, 90, 97 S.Ct. 2497.” Walker v. Martin,
562 U.S. 307, 315 (2011).
A state procedural rule is “independent” if it is “separate from the federal
issue” and is “adequate” if it was “firmly established and regularly followed” at the
13

time it was applied by the state court. Leake v. Dillman, 594 F. App’x 756, 759
(3d Cir. 2014) (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). These
conditions are met when: (1) the rule invoked by the state courts “speaks in
unmistakable terms,” (2) “all state appellate courts refused to review the
petitioner’s claim on the merits,” and (3) “their refusal was consistent with other
decisions.” Xavier v. Supt. Albion SCI, No. 16-1289, 2017 WL 1735244, at *2 (3d
Cir. May 3, 2017) (citing Nara v. Frank, 488 F.3d 187 (2007)).
Grounds One and Two were first presented to the Superior Court on appeal
from the denial of his PCRA petition. The Superior Court determined that Smith
“sets forth no coherent argument for either issue; nor, in violation of PA.R.A.P.
2119, does he cite to the testimony from the PCRA hearing.” (Doc. 13-11, p. 5).
In addressing Smith’s mitigating sentencing claim found in Ground Six, which was
raised on direct appeal, the Superior Court deemed the claim waived based on his
failure to develop meaningful argument in accordance with PA.R.A.P. 2119(a).
(Doc. 13-3, p. 17, n 5).
The Third Circuit Court of Appeals recently recognized that “[t]he
requirement that Petitioner must meaningfully develop his arguments on appeal
and cite to appropriate authorities has been stated in unmistakable terms by the
Pennsylvania Supreme Court, see Commonwealth v. Clayton, 572 Pa. 395, 816
14

A.2d 217, 221 (2002) (‘[I]t is a well settled principle of appellate jurisprudence
that undeveloped claims are waived and unreviewable on appeal’), and is
embodied in the state’s rules of appellate procedure, see PA. R.A.P. 2119(a).”
Xavier, 2017 WL 1735244, at *2. It was further recognized that the Superior’
Court’s refusal to consider such claims on the merits “is consistent with other
decisions.” Id. citing Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 940 n.
2 (2001). See also Leake, 594 F. App’x. at 759; Kirnon v. Klopotoski, 620
F.Supp.2d 674, 683-84 (E.D. Pa. 2008) (collecting cases and holding that Rule
2119 “offer[s] clear guidelines for compliance, and careful review confirms that
state and federal courts have applied these rules consistently”). Smith’s failure to
comply with these basic rules, and the state court’s refusal to review the issues on
appeal, bars the review of these issues in federal court.
Further, Smith cannot overcome this procedural default because he does not
demonstrate “cause for the default and prejudice attributable thereto,” or “that the
failure to consider the federal claim will result in a fundamental miscarriage of
justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). See also, Werts v. Vaughn,
228 F.3d 178, 192-93 (3d Cir. 2000) (A petitioner can overcome procedural
default, and thereby empower the habeas court to entertain the merits of the habeas
claim, with a showing of “cause and prejudice” or by demonstrating a fundamental
15

“miscarriage of justice.”); see also Schlup v. Delo, 513 U.S. 298, 321 (1995) (The
miscarriage of justice exception is “explicitly tied...to the petitioner’s innocence.”).
B.

Claims Adjudicated on the Merits by the State Courts

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
federal courts reviewing a state prisoner’s application for a writ of habeas corpus
may not grant relief “with respect to any claim that was adjudicated on the merits
in State court proceedings” unless the claim (1) “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 (2) “resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice
systems, and not as a means of error correction,” Greene v. Fisher, 564 U.S. 34,
—, 132 S.Ct. 38, 43 (2011) (internal quotations and citations omitted), “[t]his is a
difficult to meet and highly deferential standard . . . which demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (internal quotation marks and citation omitted). The burden is on
Smith to prove entitlement to the writ. Id.
16

A decision is “contrary to” federal law if “the state court applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [Supreme
Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is
an “unreasonable application” of federal law if the state court identified the correct
governing legal rule but applied the rule to the facts of the case in an objectively
unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is
based on an “unreasonable determination of the facts” if the state court’s factual
findings are objectively unreasonable in light of the evidence presented to the state
court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue shall be presumed to
be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
1.

Doyle claim

Smith asserts that following his testimony at trial, the prosecutor elicited
rebuttal testimony from the arresting officer, Officer Zeidler, that impermissibly
17

referenced his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610
(1976); the trial court denied his motion for a mistrial. (Doc. 1, p. 10; Doc. 2, p.
6). Smith pursued the issue in his direct appeal contending that “Officer Zeidler’s
rebuttal testimony constituted and impermissible reference to post-arrest silence.”
(Doc. 13-3, p. 8).
Pursuant to clearly established federal law, a trial court has discretion to
grant or deny a motion for mistrial in the absence of a showing of manifest
necessity or that the ends of public justice would otherwise be defeated. Renico,
559 U.S. at 774 (“The decision to declare a mistrial is left to the sound discretion
of the judge, but the power ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.”). The Superior Court
recognized, via citations to prevailing state court law, that the decision to declare a
mistrial is within the sound discretion of the court, and affirmed the denial of the
motion for a mistrial. (Doc. 13-3, p. 9).
In reaching the merits of the underlying issue, the court opined as follows:
Of course, any reference to a defendant’s post-arrest silence is
generally impermissible as a violation of his Fifth Amendment rights.
However, in Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d
537, 539-40 (1982), our supreme court observed that:
the Commonwealth must seek to impeach a defendant’s
relation of events by reference only to inconsistencies as they
factually exist, not to the purported inconsistency between
18

silence at arrest and testimony at trial. Silence at the time of
arrest may become a factual inconsistency in the face of an
assertion by the accused while testifying at trial that he
related this version to the police at the time of arrest when
in fact he remained silent.
Citing Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976) (emphasis added
[in original]). See also Commonwealth v. Johnson, 788 A.2d 985, 991
(Pa.Super. 2001) (“had Appellant taken the stand and testified that he
made an exculpatory statement to police, the prosecution would have
been able to rebut that assertion with testimony to the effect that he
made no post-arrest statement.”).
Appellant testified at trial that he told Officer Zeidler that he
was the victim of the robbery, that he had been pepper sprayed, and
that Officer Zeidler heard him yelling for help. (Notes of testimony,
6/10/09 at 187, 199, 213.) The Commonwealth was then free to call
Officer Zeidler, on rebuttal, to testify that appellant never said any
such thing. The purpose of Officer Zeidler’s rebuttal testimony was to
point out a factual inconsistency, not for impeachment. See Johnson,
788 A.2d at 991 (“It is impermissible to highlight an arrestee’s silence
on a matter for purposes of impeachment”). Therefore, the trial court
did not err in denying appellant’s motion for mistrial.
(Doc. 13-3, pp. 10-11). The summary of the pertinent testimony, as set forth in the
Superior Court opinion, is as follows:
[W]hile he was in the store, a woman sprayed him with pepper spray.
(Id. at 183.) A male voice told him to “shut up, don’t move.” (Id. at
184.) [Smith] testified that after Officer Zeidler arrived and the
unidentified woman walked out the back door, he ran after her in
pursuit. (Id. at 187.) He further testified that the last thing he said to
Officer Zeidler was “don’t let her get away, don’t let her get away.”
And a [sic] I ran out the store. I wasn’t fleeing from the [sic] Officer
Zeidler. I wasn’t thinking about [O]fficer [Z]eidler. I chased the
woman, and I was screaming and yelling through the streets “help
help, help, stop that car, help, stop that car.”
19

Id. at 187. [He] testified that he was also a victim of the robbery and
that he was trying to apprehend the female suspect:
I just was screaming at the top of my lungs “help, help.”
A car pulled up on the side of me and I was screaming,
“help, stop that car.” I don’t know I don’t want to offend
nobody [sic], but I am running through the streets. So,
they just looked at me crazy.
Id. at 188.
In rebuttal, the Commonwealth recalled Officer Zeidler. Officer
Zeidler testified that he never heard appellant shouting for assistance
in apprehending the female suspect:
Q.
What assistance did he request from you in going
after a third party that he was, according to his testimony,
trying to chase or capture?
A.

Absolutely none whatsoever.

Q.
What did he tell you when you apprehended him
about any woman or any person attacking him in the
store?
A.

Nothing.

Id. at 217-218.
(Doc. 13-3, pp. 7-8).
“As established by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d
91 (1976), the right to remain silent contains an implicit promise that a defendant’s
post-Miranda silence will not carry adverse consequences. This promise prohibits a
20

prosecutor from impeaching a defendant with his or her post-Miranda silence.
Otherwise, a prosecutor could diminish a defendant’s credibility by suggesting that
a defendant’s silence raises suspicion, thereby burdening the defendant’s right to
remain silent with a costly, unconstitutional penalty.” United States v. Lopez, 818
F.3d 125, 126 (3d Cir. 2015).
In Doyle, Co-defendants Doyle and Wood were arrested and charged with
selling marijuana to a local narcotics informant. Doyle, 426 U.S. 611. Each took
the stand at his respective trial and claimed that he was framed. Id. at 613. On
cross-examination, the prosecutor asked each defendant why he had not told the
“frameup story” when arrested. Id. The Supreme Court found that “it would be
fundamentally unfair and a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation subsequently offered at
trial.” Doyle, 426 U.S. at 618.
In finding that the reference to post-arrest silence was permissible, the
Superior Court specifically relied on footnote 11 in Doyle. The footnote states as
follows: “It goes almost without saying that the fact of post-arrest silence could be
used by the prosecution to contradict a defendant who testifies to an exculpatory
version of events and claims to have told the police the same version upon arrest.
In that situation the fact of earlier silence would not be used to impeach the
21

exculpatory story, but rather to challenge the defendant’s testimony as to his
behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383
(CA5 1975).” Doyle, 426 U.S. at 620 n.11. Note 11 speaks to the use of postarrest silence to contradict a defendant’s trial testimony of an exculpatory version
of events when a defendant “claims to have told the police the same version upon
arrest.” (Id.) In this very limited circumstance, some inquiry is permitted to
prevent a defendant from misleading a fact-finder about his claimed cooperation
with law enforcement. Such a circumstance is not present in the matter sub judice.
All indications are that Smith was silent up until the time he took the stand in his
own defense. At the preliminary hearing, Officer Zeidler testified as follows:
Q.
Okay. When – when you took the male into custody, did you
have any conversation with him at that point?
A.
If I did, I could not tell you what. That was a very stressful and
exciting – not exciting in a good way, but a very emotional charged
incident for me. And at that point it was over and I was – once
Sergeant Wilt and I had him restrained and in custody, I do not
remember any conversation.
Q.

So you don’t remember any statement from the Defendant?

A.

No, I don’t know. No.

(Doc. 14-1, p. 21). Sergeant Wilt testified at the hearing that he transported Smith
to the police station and that his communication was limited to ascertaining
Smith’s identity. (Id. at 22). There is nothing in the record that demonstrates that
22

Smith offered Zeidler, Wilt, or any other law enforcement officer an exculpatory
version upon arrest or post-arrest or that there was any level of cooperation on
Smith’s part. As such, the state court improperly relied on footnote 11 in
determining that the rebuttal testimony at issue was permissible and, in turn, failed
to recognize constitutional error.
To be clear, calling Officer Zeidler to rebut Smith’s exculpatory version of
the events was entirely permissible. “It is the proper function and purpose of
rebuttal testimony to ‘explain, repel, counteract, or disprove the evidence of the
adverse party.’ ” United States v. Mallis, 467 F.2d 567, 569 (3d Cir. 1972) (quoting
Luttrell v. United States, 320 F.2d 462, 464 (5th Cir. 1963)). However, when the
prosecutor posed the question “What did [Smith] tell you when you apprehended
him about any woman or any person attacking him in the store?”, and Zeidler
responded “Nothing[,]” attention was impermissibly drawn to Smith’s silence at
the time of his arrest. This is a violation of Doyle. “[I]t does not comport with due
process to permit the prosecution during trial to call attention to [the defendant’s]
silence at the time of arrest and to insist that because he did not speak about the
facts of the case at the time, as he was told he need not do, an unfavorable
inference might be drawn as to the truth of his testimony….’” Doyle, 426 U.S. at
619 (quoting United States v. Hale, 422 U.S. 171, 182–183 (1975) (WHITE, J.,
23

concurring in judgment)). See also Gov't of the V.I. v. Davis, 561 F.3d 159, 165 (3d
Cir.2009); Hassine v. Zimmerman, 160 F.3d 941, 947–49 (3d Cir.1998).
Because the state court did not recognize the constitutional error, it did not
conduct a harmless error analysis in accordance with Chapman v. California, 386
U.S. 18 (1967). In such an instance, the Supreme Court instructs “in § 2254
proceedings a court must assess the prejudicial impact of constitutional error in a
state-court criminal trial under the ‘substantial and injurious effect’ standard set
forth in Brecht [v. Abrahamson, 507 U.S. 619 (1993)], whether or not the state
appellate court recognized the error and reviewed it for harmlessness under the
‘harmless beyond a reasonable doubt’ standard set forth in Chapman, 386 U.S. 18,
87 S.Ct. 824, 17 L.Ed.2d 705.” Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
“Under the Brecht standard, ‘habeas petitioners may obtain plenary review of their
constitutional claims, but they are not entitled to habeas relief based on trial error
unless they can establish that it resulted in actual prejudice.’ ” See Sanders v. Klem,
341 F. App’x. 839, 843 (3d Cir. Aug.6, 2009) (quoting Bond v. Beard, 539 F.3d
256, 276 (3d Cir.2008) (citation and quotation marks omitted)). Therefore, in
order for a trial error to justify overturning a petitioner’s conviction, that error must
have had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v.
24

Abrahamson, 507 U.S. at 637. “[A] prisoner who seeks federal habeas corpus
relief must satisfy Brecht, and if the state court adjudicated his claim on the merits,
the Brecht test subsumes the limitation imposed by AEDPA.” Davis v. Ayala, —
U.S. —, 135 S.Ct. 2187, 2198-99 (2015) (citing Fry, 551 U.S. at 119-120). See
also Johnson v. Lamas, 850 F.3d 119, 134 (2017).
Brecht involved a Doyle violation. In Brecht, the Supreme Court determined
that the Doyle violation was harmless error because: (1) the state’s references to
the defendant’s post-Miranda silence were infrequent, (2) they were cumulative in
light of the permissible references to the defendant’s pre-Miranda silence, and (3)
the evidence of guilt was “if not overwhelming, certainly weighty.” Brecht, 507
U.S. at 639.
In Smith’s case, there was but a single reference to his post-Miranda silence
and there were no references to his pre-Miranda silence. Most important is the
third factor. When considering the Doyle error against the weight of the other
evidence, the “crucial inquiry is the impact of the error on the minds of the jurors
in the total setting. . . . [W]e must of necessity weigh the impact of evidence on
the jury and cannot help but make a judgment as to how the jury would reasonably
perceive [the defendant’s] version of events with and without the Doyle violation.”
Hassine, 160 F.3d at 955 (internal quotations and citations omitted). Review of the
25

facts set forth in the Superior Court opinion which are entitled to a presumption of
correctness, 28 U.S.C. § 2254(e)(1), reveals that evidence of Smith’s guilt was
overwhelming.
Smith testified that on July 14, 2008, he witnessed a Caucasian woman in a
gray suit enter Ryan’s Jewelers in Danville, Pennsylvania. (Doc. 14-2, pp. 5-7,
39). Immediately thereafter, he entered the store to buy hoop earrings for his
daughter. (Id. at pp. 6-10). He was wearing jeans, sneakers, a t-shirt, a light
sweatshirt, and a baseball cap. (Id.) Upon entering, the Caucasian woman sprayed
him with pepper spray and a male voice told him to “shut up, don’t move.” (Doc.
13-3, p. 7; Doc. 14-2, pp. 5-7). He testified that when Officer Zeidler entered the
store he ordered him to get on the floor. (Doc. 14-2, p. 9). Then, the woman in the
gray suit “just walked past the officer, walked over me and walked out the door.”
(Doc. 13-3, p. 8; Doc. 14-2, p. 11). Smith testified that he then ran out of the store
in pursuit of the woman, not to flee Officer Zeidler. (Doc. 13-3, p. 7; Doc. 14-2, p.
12). Smith essentially testified that he was among the victims of the robbery, not
the perpetrator, and that he was trying to apprehend the female suspect. (Id. at 8).
Conversely, Joseph Ozelek (“Ozelek”) the individual that reported the
robbery, witnessed a male carrying a black bag and wearing a black leather coat,
and a female, who was wearing a light grey business suit, jointly enter Ryan’s
26

jewelry store. (Doc. 13-3, p. 3). Shortly thereafter, Ozelek heard a scream. (Id.).
He observed the male and female in the store, surmised that there was a robbery in
progress, and immediately walked up the street to a nearby police station and
alerted authorities. (Id.)
Two employees, Linda Cavanaugh (“Cavanaugh”) and Margaret Hunsinger
(“Hunsinger”), and one customer, Dr. Michelle Olson (“Dr. Olson”), testified that
they were in the jewelry store on July 14, 2008, when two African-Americans, one
male and one female, entered the store. (Id. at 3- 5). All three women were
sprayed with pepper spray in the face and the male immobilized Cavanaugh and
Hunsinger with a stun gun. (Id. at 4-5). The male suspect told them to “shut up”
and repeatedly demanded “where are the Rolexes?” (Id. at 4). Cavanaugh testified
that the male wore a baseball hat low, covering his forehead, as well as sunglasses
that concealed a good portion of his face. (Id. at 4). Hunsinger testified that the
male wore a baseball hat pulled down low over his eyes. (Id.) Dr. Olson testified
that the male wore dark sunglasses. (Id. at 5). The male suspect’s hat and
sunglasses, and the effects of the pepper spray, prevented the women from
identifying the suspect. (Id. at 4-5). The hat identified as Smith’s hat worn during
the robbery, was admitted into evidence. (Id. at 12).
The Superior Court described Officer Zeidler’s testimony as follows:
27

Officer Zeidler testified that at approximately 5:15 p.m. on July 14,
2008, he was informed by the police clerk that “someone thinks there
is a robbery going on down the street.” (Id. at 140.) He was told that
it was at Ryan’s Jewelers, which is only 270 feet from the police
station. (Id. at 140-141.) After observing the actions of the two
individuals through the store window, Officer Zeidler concluded that
there was, in fact, a robbery in progress. (Id. at 142-143.)
Officer Zeidler drew his weapon, opened the door, and shouted,
“Police, stop. Show me your hands. Get to the ground.” (Id. at 143,
145.) Officer Zeidler testified that the female suspect stood still
behind the counter, near the vault; the male suspect was squatting on
the ground and concealing his right hand. (Id. at 144.) Concerned
that the male was holding a weapon, Officer Zeidler continued to yell
“show me your hands. Get on the floor.” (Id. at 145-146.) Finally,
when the male individual continued to refuse to obey Officer Zeidler’s
commands, Officer Zeidler told him “don’t make me shoot you.” (Id.
at 146.) The male replied, “you are going to shoot me?” (Id.) Officer
Zeidler stated, “not if you show me your hands and get on the floor.”
(Id.) At that point, the male suspect knelt down and placed both
hands on the floor. (Id.)
As the male slowly went down to the floor, his female accomplice
started to walk out the back door. (Id.) Officer Zeidler instructed her
to stop but she did not. (Id. at 147.) At that time, the male suspect
leapt up and sprinted out the back door of the jewelry store. (Id. at
148.) Officer Zeidler re-holstered his weapon and gave chase. (Id.)
Eventually, Officer Zeidler tackled the male suspect and, with backup assistance, was able to handcuff him. (Id. at 151). The male
individual, subsequently identified as appellant herein, had a can of
pepper spray labeled “Whoop Ass” in his pants pocket. (Id. at 153.)
An identical can of “Whoop Ass” red pepper spray was found behind
the jewelry store counter. (Id. at 118; Commonwealth’s Exhibit 26.)
[He was wearing a baseball hat when he was tackled by Officer
Zeidler, which was identified as the hat worn during the robbery and
admitted into evidence.]
28

Officer Zeidler testified that during the chase, he never lost sight of
appellant. (Id. at 150, 159.) He also positively identified appellant at
trial as the person he saw in the jewelry store and the person he took
into custody. (Id. at 159.)
(Doc. 13-3, pp. 5-7; 12). Based on the overwhelming evidence that Smith was one
of the two perpetrators of the robbery, and not a victim thereof, this Court cannot
conclude that Officer Zeidler’s reference to Smith’s post-arrest silence,
specifically, that upon apprehension, Smith told him “nothing” about “any woman
or any person attacking him in the store,” had a substantial and injurious effect or
influence on the jury’s verdict. Smith, therefore, is not entitled to habeas relief on
this claim.
2.

Prosecutorial Misconduct

Smith contends that his constitutional right to a fair trial was violated when
the prosecutor engaged in improper conduct during his closing argument. He first
contends that the district attorney made an improper demonstration to the jury
when he placed Smith’s baseball cap on his head during closing argument. (Doc. 1,
p. 11; Doc. 2, p. 8). He next argues that the district attorney “made an improper
appeal to the jury to bring back a guilty verdict based on being ‘the conscience of
the community’ rather than basing the verdict solely on the facts of the case.”
(Doc. 1, p. 12; Doc. 2, p. 8).

29

The appropriate standard of review on habeas corpus for a claim of
prosecutorial misconduct is the narrow one of due process and not the broad
exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
The relevant question is whether the prosecutor’s comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Id.
(citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A court must
examine the prosecutor’s statements in context to determine their probable effect
on the jury’s ability to judge the evidence fairly, bearing in mind that arguments of
counsel carry less weight with a jury than do instructions from the court. Boyde v.
California, 494 U.S. 370, 384 (1990); United States v. Young, 470 U.S. 1, 11–14
(1985). Habeas relief is not available simply because the prosecutor’s comments
were undesirable or even universally condemned. Darden, 477 U.S. at 180–81;
Donnelly, 416 U.S. at 643.
The standard of review utilized by the state court is as follows:
The standard for granting a new trial because of the comments of a
prosecutor is a high one. Generally, a prosecutor’s arguments to a
jury are not a basis for granting a new trial unless the unavoidable
effect of such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility towards the accused which would
prevent them from properly weighing the evidence and rendering a
true verdict. This standard permits us to grant a new trial based on the
comments of a prosecutor only if the unavoidable effect of the
comments prevented the jury from considering the evidence. A
prosecutor must have reasonable latitude in fairly presenting a case to
30

the jury and must be free to present his or her arguments with logical
force and vigor.
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)
(citation omitted). See also Commonwealth v. Hood, 872 A.2d
175,185 (Pa. Super. 2005).
(Doc. 13-3, pp. 11-12). It is clear, and Smith does not dispute, that the state
court’s prosecutorial misconduct standard of review state is in accord with, and a
reasonable application of, clearly established Federal law as established by the
Supreme Court of the United States. 28 U.S.C. § 2254(d)(1).
Nor is there any indication that the decision resulted in an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. The Superior Court set forth the following excerpt from the
prosecutor’s closing argument:
Now what did he have on his head when Officer Zeidler
tackled him? This hat right here. Think about how consistent
the testimony is from Joe Ozelek. What was the guy wearing
down over his head? Now why would anyone wear a hat like
this to a jewelry store?
THE COURT: Don’t put it on.
MR. BUEHNER:

Sorry.

Notes of testimony, 6/10/09 at 234.
(Doc. 13-3, p. 12). The court then concluded that “[c]ertainly the prosecuting
attorney could show the hat to the jury during closing arguments. The hat was
identified as appellant’s hat worn during the robbery and was admitted into
31

evidence. (Id. at 152, 177); Commonwealth’s Exhibit 31.) Apparently, the
prosecutor donned the hat to the jury to show how appellant attempted to hide his
appearance as he walked into the jewelry store. Even assuming that actually
wearing the hat in front of the jury was somehow improper, it did not rise to the
level of prejudice requiring a new trial.” (Doc. 13-3, p. 12).
(Doc. 13-3, p. 12).
Smith cites to a footnote from the state court case of Commonwealth v.
Parker, 591 Pa. 526, 539, 919 A.2d 943, 951 (2007) and then states in conclusory
fashion that “[t]he face of the record will support Petitioner’s contention that
prosecutorial misconduct took place in this particular instance.” (Doc. 2, p. 8).
The footnote in Parker is as follows:
To be clear, however, permission from the trial court to display a
piece of tangible evidence during a prosecutor’s opening statement
will not serve as a license to display tangible evidence in any way that
prosecutor sees fit. While nothing prohibits a prosecutor from
displaying admissible evidence, the manner by which the prosecutor
conducts the display may itself constitute prosecutorial misconduct or
result in a mistrial. For instance, where the display goes beyond
permissible oratorical flair, is done in a flamboyant, erratic, or
frightening manner, or where the prosecutor effectively converts
himself into an unsworn witness, such actions may well result in a
mistrial. By way of example, see People v. Williams, 90 A.D.2d 193,
196, 456 N.Y.S.2d 1008, 1010 (N.Y.A.D.1982). In Williams, the
concealability of a gun was at issue. To demonstrate that it was
possible to hide the gun, the prosecutor hid the sawed-off shotgun
under his clothing and pulled it out during his opening statement. The
Supreme Court of New York, Appellate Division found this reversible
error, holding that the demonstration converted the prosecutor into an
unsworn witness. That court concluded that the prosecutor's actions
created a substantial likelihood that prejudice resulted that could never
be dispelled from the minds of the jury. Id.
32

(Doc, 2, p. 8, citing Parker, 591 Pa. at 539). Smith fails to set forth any facts that
would lead to the conclusion that the prosecutor’s wearing of the baseball cap went
beyond permissible oratorical flair, was done in a flamboyant, erratic, or
frightening manner, or that the prosecutor converted himself into an unsworn
witness, such that jury’s ability to judge the evidence fairly was so infected as to
make the resulting conviction a denial of due process, as required by the Supreme
Court. We conclude that the Superior Court’s adjudication of the claim resulted in
a decision that was based on a reasonable determination of the facts in light of the
evidence presented. Consequently, he is not entitled to relief on this claim.
He also contends that the prosecutor committed misconduct when he made
the statement to the jury that they “serve as the conscience of our community.” He
argues the “[p]rosecuting attorneys are not allowed to incite the jurors’ passions by
suggesting that they act as the community’s conscience to society’s problem. ‘A
prosecutor may not urge jurors to convict a defendant in order to protect the
community values, preserve civil order or deter future lawbreaking’. United States
v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005).” (Doc. 2, p. 9).
In evaluating whether the remarks of the prosecutor rise to the level of a
constitutional violation, the court is required to examine those remarks in the
context of the whole trial. Ramseur v. Beyer, 983 F.2d 1215, 1239 (1992)(citing
33

Greer v. Miller, 483 U.S. 756, 766 (1987)). The remarks must be sufficiently
prejudicial in the context of the entire trial to violate a petitioner’s due process
rights. Greer, 483 U.S. at 766 (citing Donnelly, 416 U.S. at 639).
The state court opined as follows: “The prosecuting attorney is allowed a
certain degree of oratorical flair and was simply reminding the jury of their
responsibility. As the trial court observed, the district attorney did not tell the jury
that they had to return a guilty verdict to ‘send a message’ to the community.
(Notes of testimony, 6/10/09 at 245.) In fact, as District Attorney Buehner stated,
“that cuts both ways.” (Id.) In other words, if the jury believed appellant’s
testimony and found the Commonwealth’s witnesses not to be credible, they could
not, in good conscience, render a guilty verdict.” (Doc. 13-3, pp. 13-14).
Smith fails to set forth any facts that would lead to the conclusion that the
remark was sufficiently prejudicial in the context of the entire trial to violate his
due process rights. We conclude that the Superior Court’s adjudication of the
claim resulted in a decision that was based on a reasonable determination of the
facts in light of the evidence presented. Consequently, Smith is not entitled to relief
on this prosecutorial misconduct claim.

34

3.

Sentencing

In his final ground, Smith asserts that “the Sentence Court imposed an [sic]
sentence in the aggravated range by stating that this Petitioner terrorized the
victims in this case. Petitioner asserts that the Sentence Court erred where the
above stated factor is already taken into account as it pertains to the Sentencing
Guidelines.” (Doc. 2, p. 10). (Doc. 2, p. 10). He also challenges the state court’s
failure to provide a contemporaneous written statement of reasons for deviating
from the guidelines as required by 42 PA.C.S.A. § 9721(b). (Id.) The Superior
Court addressed this issue during the direct appeal as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. To constitute an
abuse of discretion, the sentence imposed must either exceed
the statutory limits or be manifestly excessive. In this context,
an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference
to the record, that the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)
(citations and quotation marks omitted). “It is impermissible for a
court to consider factors already included within the sentencing
guidelines as the sole reason for increasing or decreasing a sentence to
the aggravated or mitigated range.” Long, supra at 751, citing
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003).

35

Here, the factors relied upon by the trial court in imposing an
aggravated range sentence were not included in the guidelines, nor
were they elements of the offense of robbery and criminal conspiracy.
The trial court cited as aggravating factors that there were multiple
victims (three) where appellant was convicted of single counts of
robbery, criminal conspiracy, and theft; that one victim was tied up
with duct tape and two were shocked with a stun gun; the evident
planning involved, including the use of disguises, tools and pepper
spray; and the terrorizing of the victims, particularly Cavanaugh’s
testimony that she thought she was about to be killed when she felt the
stun gun being pressed against the back of her neck. (Notes of
testimony, 7/8/09 at 7-8). Appellant went far beyond what was
necessary to accomplish his goals, even using the stun gun on
Hunsinger five times, after she was already immobilized. The court
also cited the fact that the victims were placed in grave danger when
police responded with weapons drawn. (Id.; trial court opinion,
5/26/10 at 2-3.) None of these aggravating factors relied upon by the
trial court, including the degree of force actually used against the three
victims, are elements of offenses charged. Therefore, there is no merit
to appellant’s challenge.
(Doc. 13-3, pp. 16-17).
A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the
basis of some transgression of federal law binding on the state courts. Engle v.
Isaac, 456 U.S. 107, 119 (1982). Violations of state law, standing alone, will not
entitle a petitioner to federal habeas relief, absent a showing that those violations
are so great as to be of a constitutional dimension. Estelle v. McGuire, 502 U.S.
62, 67–68 (1991) (federal habeas courts are not permitted to review questions of
state law); Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (questions of state
36

substantive law not cognizable on federal habeas review); Priester v. Vaughn, 382
F.3d 394, 401–02 (3d Cir. 2004) (same).
Smith’s sentencing claim does not implicate the laws or the Constitution of
the United States. In fact, habeas challenges to a state court’s sentencing discretion
are unreviewable by a federal court provided that the sentence lies within the
statutory guidelines, is not based upon arbitrary considerations, and the defendant’s
constitutional rights were not violated. See Estelle, 502 U.S. at 67–68 (explaining
that federal habeas courts are not permitted to review questions of state law); Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (same); Wainwright, 433 U.S. at 81 (indicating
that questions of state substantive law are not cognizable on federal habeas
review); Townsend v. Burke, 334 U.S. 736, 741 (1948) (stating that when a state
“sentence [is] within the limits set by the statute, its severity would not be grounds
for [habeas] relief”); see also Jones v. Superintendent of Rahway State Prison, 725
F.2d 40, 42–43 (3d Cir.1984) (finding that court’s sentencing discretion was not
cognizable in federal habeas petition); Smith v. Kerestes, Civ. A. No. 08–0061,
2009 WL 1676136, at *16 (E.D.Pa. June 15, 2009) (rejecting petitioner’s claim
that his state sentence was excessive because “absent a Constitutional violation, a
federal court has no power to review a sentence in a habeas corpus proceeding
unless it exceeds statutory limits”). The Superior Court held that Smith’s sentence
37

fell within the aggravated range of the applicable state sentencing guidelines and
that the sentence was based upon facts specific to the offenses for which he was
convicted. Accordingly, this sentence was applied within the broad limits
established by the Constitution, and his claim concerning either the length, or
discretionary imposition, of his sentence fails to raise a cognizable claim for
federal habeas relief.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
Petitioner fails to demonstrate that a COA should issue.
The denial of a certificate of appealability does not prevent Smith from
appealing the order denying his petition so long as he seeks, and obtains, a

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certificate of appealability from the Third Circuit Court of Appeals. See FED. R.
APP. P. 22(b)(1), V.

CONCLUSION

For the reasons set forth above, the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 will be denied.
A separate order will enter

39