Abdul-Salaam v. Beard, et al

Filing 213

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SEIFULLAH ABDUL-SALAAM,
Petitioner
v.
JEFFREY BEARD, Commissioner,
Pennsylvania Department of
Corrections; WILLIAM S.
STICKMAN, Superintendent of the
State Correctional Institution at Greene;
and JOSEPH P. MAZURKIEWICZ,
Superintendent of the State Correctional
Institution at Rockview,
Respondents

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No. 4:02-CV-2124
Hon. John E. Jones III

THIS IS A CAPITAL CASE

MEMORANDUM
April 24, 2014
Pending before the Court is a counseled petition for writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254, on behalf of Petitioner Seifullah Abdul-Salaam
(“Petitioner” or “Abdul-Salaam”), a state inmate under sentence of death and
currently incarcerated at the State Correctional Institution at Greene (“SCIGreene”) in Waynesburg, Pennsylvania. (Doc. 8.) Abdul-Salaam is challenging
his 1995 convictions and sentence in the Court of Common Pleas of Cumberland
County, Pennsylvania. For the reasons set forth below, and after careful
consideration of the petition, this Court concludes that Petitioner’s claims are

without merit. Thus, the petition for writ of habeas corpus will be denied.
I.

FACTUAL AND PROCEDURAL HISTORY
On March 15, 1995, Abdul-Salaam was found guilty of first degree

murder, robbery, and conspiracy, following a six-day jury trial in the Court of
Common Pleas of Cumberland County, Pennsylvania (“trial court” or
“Cumberland County court”). The Pennsylvania Supreme Court summarized the
relevant facts as follows:
The record reveals that on the morning of August 19, 1994, [AbdulSalaam] and Scott Anderson drove toward the town of New
Cumberland, Pennsylvania in a borrowed Suzuki Sidekick. First, in
Camp Hill, Pennsylvania, then outside of New Cumberland, the two
men asked for directions. At approximately 10:30 a.m., [AbdulSalaam] and Anderson arrived in New Cumberland and parked their
car in Maple Alley. Maple Alley runs perpendicular to Fourth Street.
[Abdul-Salaam] walked across Fourth Street to the D&S Coin Shop
which was owned by Mr. Dale Rishel. The coin shop was a one-room
building with storefront windows. [Abdul-Salaam] knocked on the
door to the coin shop and entered. A resident of Fourth Street, Mr.
Vinh Tran, observed [Abdul-Salaam] pass him on the street and noted
that [Abdul-Salaam] knocked on the coin shop door, since few people
knocked before entering. Anderson followed and entered the coin
shop shortly thereafter, carrying gloves and a bag. Again, Mr. Tran
observed Anderson and found remarkable Anderson’s heavy clothing
on such a warm summer’s morning.
Once inside the coin shop, [Abdul-Salaam] asked Mr. Rishel about
specific gold coins. Mr. Rishel responded that he did not carry that
inventory but suggested another dealer. [Abdul-Salaam] then pulled a
revolver from under his shirt and he and Anderson came across the
counter onto Mr. Rishel to subdue him. The front window of the store
was broken during this altercation. Mr. Rishel was taped across the
2

face and around his legs, and his hands were tied behind his back with
a cord. [Abdul-Salaam] kicked Mr. Rishel in the head, while
Anderson began to go through Mr. Rishel’s goods.
Immediately upon hearing the breaking of the front window of the
coin shop, Mr. Tran alerted his landlord, Mr. James Howie, of the
situation. Mr. Howie called 911. Officer Willis Cole of the New
Cumberland Police Department ultimately responded to the 911 call.
Officer Cole parked his squad car on Fourth Street in front of Mr.
David Michael’s barbershop, which is on the same side of Fourth
Street as the coin shop. As Officer Cole approached the coin shop, the
perpetrators apparently became aware of his presence and, finding no
rear escape, exited the front door, first [Abdul-Salaam], then
Anderson.
[Abdul-Salaam] was able to escape from the scene, however, Officer
Cole intercepted Anderson. Officer Cole ordered Anderson to lie face
down and prepared to handcuff him. Mr. Michaels watched as
[Abdul-Salaam], with his back against a building and revolver drawn,
reappeared from Maple Alley as if he had circled part of the block.
[Abdul-Salaam] then sprinted from the alley toward Officer Cole
shooting at Officer Cole as he ran. Having been warned by
individuals in the street, Officer Cole was able to return [AbdulSalaam]’s fire, hitting [Abdul-Salaam] in the leg. However, [AbdulSalaam] continued shooting. Officer Cole staggered into the middle
of Fourth Street and collapsed after receiving a bullet through his
heart. These events, literally unfolding in front of them, were
observed by various witnesses who lived and/or worked in the
neighborhood, including Mr. Rishel, Mr. Tran, Mr. Howie, and Mr.
Michaels.
[Abdul-Salaam] and Anderson fled the scene, dropping the revolver
used to kill Officer Cole as they ran. They returned to their car and
proceeded in the direction of Harrisburg.
After receiving a description of the Suzuki and of [Abdul-Salaam] and
Anderson via police radio, Officer Rodney Smith of the Middlesex
Township Police Department spotted and pursued the two individuals
3

outside of Harrisburg. After a high speed chase, [Abdul-Salaam] and
Anderson lost control of the Suzuki which then came to a stop. The
men abandoned the car, fleeing on foot. As [Abdul-Salaam] exited
the vehicle, he looked directly at Officer Smith. Anderson was found
several blocks away and was arrested. Shortly thereafter, [AbdulSalaam] was arrested in an alley near the home of his girlfriend,
Christina Reeves, while the two were walking her dog.
Ms. Reeves agreed to allow the police to search her home, where
[Abdul-Salaam] occasionally spent the night. She also signed a
consent form indicating that the police were searching for a handgun
and clothing. Pursuant to the search, the police found a briefcase in
Ms. Reeves’ bedroom closet which contained ammunition and
correspondence belonging to [Abdul-Salaam].
After his arrest, [Abdul-Salaam] invoked his right to counsel and his
right to remain silent. [Abdul-Salaam] requested treatment for his leg
wound and was taken to a local hospital accompanied by a custodial
officer, Detective Victor Rivera. [Abdul-Salaam] and the officer
engaged in small talk when [Abdul-Salaam] asked the officer, “What
are my options?” The officer readvised [Abdul-Salaam] of his rights
and told him that he could tell his attorney whatever it was that he
wanted to tell him. [Abdul-Salaam] then stated: “All I’m going to say
is that ‘Scotty Love’ did it.” No follow-up questions were asked by
Detective Rivera.
At trial, various witnesses, including Mr. Rishel, Mr. Tran, Mr.
Howie, Mr. Michaels, and Officer Smith, testified as to the events
surrounding the robbery and the murder of Officer Cole. Among
those witnesses, a ballistics expert was able to match the revolver left
at the scene with the bullet recovered from Officer Cole’s body and a
Pennsylvania State Police Officer employed in the Latent Print and
Automated Fingerprint Identification sections of the Laboratory
Division was able to match [Abdul-Salaam]’s fingerprint with a latent
fingerprint found in the Suzuki.
Commonwealth v. Abdul-Salaam, 678 A.2d 342, 345-47 (Pa. 1996) (“Abdul4

Salaam-I”). The penalty phase commenced on the following day, March 16, 1995.
During the penalty phase, the jury found four aggravating circumstances: (1) the
victim was a peace officer who was killed in the performance of his duties, see 42
Pa. Cons. Stat. § 9711(d)(1); (2) Abdul-Salaam committed a killing while in the
perpetration of a felony (robbery), see 42 Pa. Cons. Stat. § 9711(d)(6); (3) in the
commission of the offense, Abdul-Salaam knowingly created a grave risk of death
to another person in addition to the victim of the offense, see 42 Pa. Cons. Stat. §
9711(d)(7); and (4) Abdul-Salaam has a significant history of felony convictions
involving the use or threat of violence to the person, see 42 Pa. Cons. Stat. §
9711(d)(9). The jury also found one mitigating circumstance: “[a] background that
includes both physical and mental abuse does have a negative impact on a person’s
development and therefore his future behavior,” see 42 Pa. Cons. Stat. § 9711(e)(8)
(relating to the character and record of the defendant). The jury concluded that the
aggravating circumstances outweighed the mitigating circumstances and returned a
sentence of death, see 42 Pa. Cons. Stat. § 9711(c)(1)(iv).
On March 24, 1995, the trial court formally imposed the sentence of death
for first degree murder rendered by the jury. In addition, Abdul-Salaam was
sentenced to concurrent terms of imprisonment of four (4) to eighteen (18) years
on the robbery conviction, one and one half (1-1/2) to five (5) years and
5

prosecution costs on the conspiracy conviction.
Represented by his trial counsel, Spero T. Lappas, Esquire, Abdul-Salaam
filed a timely direct appeal to the Pennsylvania Supreme Court,1 raising six (6)
claims for relief. Specifically, Abdul-Salaam presented the following issues for
review, as characterized by the Pennsylvania Supreme Court:
1. Does a suppression court err by denying a pre-trial motion to
suppress eyewitness identifications where the witnesses had a poor
opportunity to observe the perpetrator, and where the identifications
follow prejudicial pre-trial exposure to the defendant, in-person and in
media reports?
2. Does a suppression court err when it refuses to suppress a
statement which results from custodial interrogation after the
defendant’s expression of his desire to exercise his rights to silence
and to counsel?
3. Does a suppression court err when it denies a motion to suppress
the fruits of the warrantless search of a closed container, where there
is no effective consent for the search?
4. Does a trial court err in denying a defense motion for payment of
eyewitness expert witness expenses, when the Commonwealth’s case
is based in large part on eyewitness identifications?
5. Does a trial court err in denying the defendant’s pre-trial motions
which are aimed to preclude the death penalty in a case where the
Commonwealth did not file or serve any Rule 352 notice at formal
arraignment?

1

The appeal of a death sentence is directly to the Pennsylvania Supreme Court rather
than to the Superior Court. See 42 Pa. Cons. Stat. § 9711(h).
6

6. Does a trial court err by failing to charge the jury that if they were
not convinced that the defendant fired the fatal shot, that could be
considered a mitigating factor?
(Doc. 197, Vol. 1, Ex. 1, App.’s Br, at 2.)
The Pennsylvania Supreme Court affirmed Abdul-Salaam’s convictions and
sentence by its order of June 18, 1996. Abdul-Salaam-I, 678 A.2d 342 (Pa. 1996).
Following the conclusion of the direct appeal, then-Governor Thomas J. Ridge
signed a warrant scheduling Abdul-Salaam’s execution for the week of October 27,
1996. Abdul-Salaam then filed a motion for a stay of execution in the
Pennsylvania Supreme Court on October 10, 1996, and a stay was issued on
October 25, 1996, see Commonwealth v. Abdul-Salaam, 684 A.2d 539 (Pa. 1996),
pending the resolution of Abdul-Salaam’s petition for writ of certiorari by the
United States Supreme Court. That petition was denied on March 31, 1997.
Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 (1997).
On April 29, 1997, then-Governor Ridge signed a second warrant scheduling
Abdul-Salaam’s execution for the week of May 25, 1997. Abdul-Salaam filed a
motion for a stay of execution in the trial court in order to obtain state postconviction review of his convictions and sentence. The Honorable Kevin A. Hess
of the Cumberland County court issued a stay of execution on May 22, 1997.
In addition to filing the motion for a stay of execution, on May 13, 1997,
7

Abdul-Salaam filed a pro se petition (“First PCRA Petition”) for relief under
Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 95419546. Counsel was appointed to represent Abdul-Salaam and an amended petition
was filed on September 23, 1997. (Doc. 197, Vol. 1, Ex. 4.) In the amended
petition, Abdul-Salaam raised the following claims:
I. Ineffective assistance of counsel at capital sentencing rendered
Seifullah Abdul-Salaam’s death sentence constitutionally infirm and
requires relief under the Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and the corresponding portions of the
Pennsylvania Constitution.
II. The prosecutor violated the dictates of Brady v. Maryland and its
progeny, the due process clause of the Fourteenth Amendment to the
United States Constitution and the corresponding portions of the
Pennsylvania Constitution when it withheld Petitioner’s juvenile
records from Petitioner.
III. Petitioner[ ] was denied due process of law guaranteed under the
State and Federal Constitutions when the court failed to instruct the
jury during the penalty phase that it could find mitigation under 42
Pa.C.S. § 9711(e)(2) & (3). Petitioner was also denied the effective
assistance of counsel at trial and on appeal when trial counsel failed to
request such an instruction and when appellate counsel failed to
litigate this issue on direct appeal.
IV. Petitioner is entitled to relief from his death sentence because the
arbitrary, inconsistent and unprincipled broadening of the (d)(9)
aggravating circumstance - - “felony convictions involving the use or
threat of violence to the person” - - to include juvenile adjudications
of delinquency deprived Petitioner of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution and the
corresponding portions of the Pennsylvania Constitution.
8

V. Pennsylvania’s “significant history” of violent felony convictions
aggravating circumstance is unconstitutionally vague on its face and
as it was applied to Petitioner, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and the
corresponding provisions of the Pennsylvania Constitution.
VI. Petitioner’s death sentence must be vacated because the
“proportionality review” performed by the Pennsylvania Supreme
Court did not provide him the meaningful appellate review mandated
by 42 Pa. C.S. § 9711(h)(3)(iii) and State and Federal Constitutional
law.
VII. Counsel was ineffective for failing to raise the issues presented
in this petition at trial, in post-trial motions and for failing properly to
litigate these issues on direct appeal to the Pennsylvania Supreme
Court.
VIII. Petitioner is entitled to relief from his conviction and sentence
because of the cumulative effect of the errors described in this
petition.
(Id.) The trial court, now serving as the PCRA court, held hearings in late 1997
and early 1998. In addition, during the PCRA hearings, Abdul-Salaam filed a
supplement to his amended PCRA petition on March 3, 1998, asserting the
following additional claim:
Petitioner was denied due process of law secured by the Eighth and
Fourteenth Amendments to the United States Constitution and the
corresponding provisions of the Pennsylvania Constitution when the
Commonwealth and its agents suppressed material and exculpatory
evidence in violation of Brady v. Maryland and made false evidentiary
presentations and argument which were contradicted by the
suppressed evidence.
(Doc. 197, Vol. 1, Ex. 6.) Following the hearing, the PCRA court denied all of
9

Abdul-Salaam’s claims for relief on November 12, 1998. Commonwealth v.
Abdul-Salaam, 94-1499 Crim. Term, In re Post-Conviction Relief Hearing (filed
Nov. 12, 1998) (Hess, J.) (Doc. 19-2 at 8-23) (“PCRA Op.”). The Pennsylvania
Supreme Court affirmed that decision on December 31, 2001. Commonwealth v.
Abdul-Salaam, 808 A.2d 558 (Pa. 2001) (“Abdul-Salaam-II”). On January 10,
2002, Abdul-Salaam filed an application for reconsideration of Pennsylvania
Supreme Court’s December 31, 2001, decision.
While this application was pending, Abdul-Salaam filed a second state postconviction petition (“Second PCRA Petition”) in the trial court on February 28,
2002. In this petition, Petitioner presented the following claims:
I. The Pennsylvania Supreme Court’s failure to review the merits of
the bulk of Petitioner’s substantive claims on appeal violated due
process. In order to vindicate Petitioner’s right to due process, this
court must permit renewed post-conviction proceedings and
subsequently, restore Petitioner’s appellate rights which were denied
to him by the Pennsylvania Supreme Court’s retroactive application of
new rules.
II. Petitioner’s death sentence violates due process of law under the
State and Federal Constitutions because the jury was not instructed to
find that the aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt as required by Apprendi v.
New Jersey. The Pennsylvania death penalty statute permitting the
imposition of a death sentence upon a finding of less than beyond a
reasonable doubt also violates due process.
III. Petitioner’s conviction resulted from the unavailability at the time
of trial of exculpatory evidence regarding the scientific unreliability of
10

fingerprint evidence. Moreover, since this evidence was in the
possession of the prosecutor’s expert witness, failure to disclose it
violated due process.
IV. New scientific evidence reveals brain abnormalities in victims of
childhood abuse, neglect and dysfunction. This new evidence must be
considered in mitigation of the offense.
(Doc. 198, Vol. 2, Ex. 9.)
On July 10, 2002, the PCRA court issued a notice of its intention to dismiss
the Second PCRA Petition, and, on July 18, 2002, it entered an order giving
Abdul-Salaam twenty (20) days within which to show cause why his Second
PCRA Petition should not be dismissed without a hearing. In response to that
order, Abdul-Salaam asserted, inter alia, that any dismissal of his Second PCRA
Petition while his request for re-argument was pending on his First PCRA Petition
would be premature. The PCRA court agreed and withheld judgment in the case
pending disposition of the First PCRA Petition. Subsequently, on September 20,
2002, the Pennsylvania Supreme Court denied Abdul-Salaam’s application for
reconsideration of his First PCRA Petition. See Abdul-Salaam-II, 808 A.2d 558
(Pa. 2001).
On October 22, 2002, then-Governor Mark Schweiker signed AbdulSalaam’s third death warrant, scheduling his execution for December 12, 2002.
Because the PCRA court had not yet acted on the Second PCRA Petition and given
11

the imminent execution date, on November 8, 2002, Abdul-Salaam filed an
emergency motion for a stay of execution in the Pennsylvania Supreme Court. On
that same day, the PCRA court filed its opinion pursuant to Pa. R. App. P. 1925 in
support of its denial of the Second PCRA Petition. Commonwealth v. AbdulSalaam, 94-1499 Crim. Term, In re Opinion Pursuant to Rule 1925 (filed Nov. 8,
2002) (Hess, J.). After hearing oral argument on one of Abdul-Salaam’s claims
presented in his Second PCRA Petition, on December 4, 2002, the Pennsylvania
Supreme Court issued an order denying Abdul-Salaam’s November 8, 2002
request for a stay of execution. An opinion followed on December 12, 2002.
Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002) (“Abdul-Salaam-III”).
In the meantime, on November 25, 2002, Abdul-Salaam filed in this Court a
motion for a stay of execution, as well as for appointment of counsel and leave to
proceed in forma pauperis. (Doc. 1.) The Court granted the motion by Order
dated December 9, 2002, staying Abdul-Salaam’s execution pending disposition of
the forthcoming habeas petition. (Doc. 6.)
On March 25, 2003, Abdul-Salaam filed the instant petition for writ of
habeas corpus, in which he alleges twelve (12) claims for relief. (Doc. 8.)
Specifically, those claims are set forth as follows:
I. Petitioner was denied due process of law in violation of the
Fourteenth Amendment to the United States Constitution, when the
12

prosecution suppressed exculpatory evidence;
II. Petitioner was denied due process of law when unreliable
identification testimony was admitted against him at trial, when the
identifications were made under highly suggestive circumstances and
where the identifying witness did not possess an independent source;
III. Petitioner received ineffective assistance of counsel when trial
counsel failed to make a sufficient, specific proffer to support his
request for the appointment of an eyewitness identification expert,
where eyewitness identification was crucial to the case;
IV. Petitioner’s right to due process of law was violated when the
Commonwealth consumed an entire blood sample that would have
exculpated him. Due process was further violated by the
Commonwealth’s manipulation of a photo of the co-defendant so as to
falsely eliminate him as the source of the blood evidence in question;
V. Petitioner’s conviction resulted from the unavailability at the time
of trial of exculpatory evidence regarding the scientific unreliability of
fingerprint evidence. Moreover, since this evidence was in the
possession of the prosecution’s expert witness, failure to disclose it
violated due process;
VI. The jury’s finding of the (d)(9) aggravating circumstance, that
Petitioner had a “significant history of felony convictions involving
the use or threat of violence to the person” violated Petitioner’s rights
in multiple respects;
VII. Petitioner’s death sentence must be vacated because the arbitrary
“proportionality review” performed by the Pennsylvania Supreme
Court violated his right to due process and denied him the meaningful
appellate review of death penalty cases constitutionally mandated by
the Eighth Amendment;
VIII. Pennsylvania’s capital sentencing scheme, and therefore
Petitioner’s death sentence violate the notice and jury trial guarantees
of the Sixth Amendment and the due process clause of the Fifth
13

Amendment in failing to require either that aggravating circumstances
be pled in a charging mechanism or that a finding that aggravating
circumstances outweigh mitigating circumstances be made beyond a
reasonable doubt;
IX. Petitioner received constitutionally ineffective assistance of
counsel at capital sentencing;
X. The prosecution also withheld from defense counsel documents in
its possession that would have mitigated punishment in violation of
the due process clause;
XI. Trial counsel was also ineffective when he failed to request
instructions that the jury could consider evidence of Petitioner’s
abusive and dysfunctional upbringing under 42 Pa. C.S. § 9711(e)(2)
&(3) and the trial court erred when it failed to provide such
instructions; and,
XII. The jury improperly found the existence of the (d)(6)
aggravating circumstance in violation of due process of law and the
Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.
(Doc. 8.) Respondents, represented by the Cumberland County District Attorney,
filed a response to the petition on August 11, 2003. (Doc. 19.) On October 27,
2003, Abdul-Salaam filed his reply memorandum. (Doc. 23.)
On that same day, Abdul-Salaam filed a motion for omnibus intermediate
relief in habeas corpus proceedings, requesting various forms of relief, including
the right to conduct additional discovery and to have the Court conduct an
evidentiary hearing on a number of his claims. (Doc. 22.) Following responsive
and reply briefing, the Court granted in part and denied in part the motion on July
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26, 2004. (Doc. 33.) Specifically, among other things, the Court denied AbdulSalaam’s request for an evidentiary hearing, but permitted Abdul-Salaam to
conduct limited discovery.
In permitting limited discovery, the Court allowed Abdul-Salaam to: (1)
propound an interrogatory regarding whether the Commonwealth had provided the
so-called Harlacker Report (which contains information about one Tony Clifton) to
trial or appellate defense counsel; (2) inspect certain biological evidence; and (3)
take limited depositions. (See Doc. 33 at 8-10.) Subsequent to the Court’s
determination, the parties reached a stipulation, filed August 11, 2004, in lieu of
the interrogatory regarding the Harlacker Report. (Doc. 35.) The stipulation
stated, in relevant part:
[T]he parties agree that based upon the state of the full record before
this Court that there is no evidence that the Harlacker Report was
provided to Petitioner’s counsel at any time prior to April 16, 1998,
and Respondents do not contend to the contrary.
(Id.)
The Court also permitted Abdul-Salaam to inspect all remaining biological
evidence in order to determine whether additional discovery and/or scientific
testing of such would be appropriate. (Doc. 33 at 9-10.) Following that
inspection, Abdul-Salaam filed a second motion for discovery on March 1, 2005,
seeking the Court’s permission to conduct DNA testing of apparent blood found on
15

the steering wheel of the Suzuki sport utility vehicle, presented by the
Commonwealth as the getaway vehicle. (Doc. 43.)
Following additional briefing on the motion, oral argument, and an
evidentiary hearing, on August 11, 2005, the Court granted in part Abdul-Salaam’s
motion and allowed his expert to gather the apparent blood evidence from the
steering wheel and to conduct DNA testing. (See Doc. 77.) Respondents took an
interlocutory appeal of that Order to the United States Court of Appeals for the
Third Circuit. (See Doc. 78.) On October 6, 2005, the Third Circuit dismissed the
appeal for lack of appellate jurisdiction. (See Doc. 83.) Respondents then filed in
this Court a motion for a stay of the Court’s August 11, 2005 Order, (Doc. 85),
which the Court granted on January 2, 2006, (Doc. 87). The Court also stayed the
August 11, 2005 Order, pending Respondents’ appeal to the United States Supreme
Court. (Id.) Respondents’ petition for writ of certiorari was denied on May 22,
2006. Beard v. Abdul-Salaam, 126 S. Ct. 2295 (May 22, 2006).
Following these interlocutory appellate proceedings, biological evidence
from the steering wheel was gathered and DNA testing was conducted. The results
of testing established that the blood gathered from the steering wheel was not
Abdul-Salaam’s; rather, the blood on the steering wheel was that of the codefendant, Scott Anderson. Respondents did not contest the results of this DNA
16

testing.
On January 16, 2007, while the instant action remained pending, AbdulSalaam protectively filed a third state post-conviction petition (“Third PCRA
Petition”) in the Cumberland County court. (See Doc. 109.) In that petition,
Abdul-Salaam presented the results of his expert Dr. Blake’s testing of the steering
wheel. Additionally, Abdul-Salaam requested that the court hold the petition in
abeyance pending this Court’s disposition of the instant motion.
On April 6, 2007, Abdul-Salaam filed in this Court a motion for relief on the
merits, seeking relief on the merits of two of his claims presented in his habeas
petition. (Doc. 118.) Specifically, Abdul-Salaam asked the Court to review the
following claims: (1) the Commonwealth withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose the
existence of blood remaining on the steering wheel that, after subsequent DNA
testing, proved to be that of Scott Anderson and not Abdul-Salaam; and (2) the
Commonwealth withheld exculpatory evidence in violation of Brady when it failed
to provide to defense counsel the Harlacker Report containing information from
Tony Clifton, which suggested that Abdul-Salaam was not the man discussing a
robbery with Scott Anderson in a vehicle the night before the robbery and killing
of Officer Cole. After reviewing the submissions of the parties and hearing oral
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argument on November 14, 2007 (see Doc. 131), on July 7, 2008, this Court denied
the motion for relief on the merits without prejudice, but stayed litigation in this
matter pending exhaustion of state court remedies of unexhausted claims, (Doc.
155, Order).
Thereafter, Abdul-Salaam filed supplements to his Third PCRA Petition in
the Cumberland County court on August 27, 2008, and April 21, 2009,
respectively. (Doc. 200, Vol. 4, Exs. 14 & 15.) After holding an evidentiary
hearing on October 28, 2010, the Cumberland County court denied the Third
PCRA Petition on April 1, 2011. (See Doc. 172-1.) On April 5, 2012, the
Pennsylvania Supreme Court affirmed the denial of relief on the Third PCRA
Petition. Commonwealth v. Abdul-Salaam, 42 A.3d 983 (Pa. 2012) (“AbdulSalaam-IV”). Further, Abdul-Salaam’s motion for reconsideration was denied by
the Pennsylvania Supreme Court on September 13, 2012. (See Doc. 178.)
On September 17, 2012, Abdul-Salaam filed a notice of exhaustion of state
remedies and motion to reactivate habeas corpus proceedings. (Doc. 178.) By
Order dated September 18, 2012, the Court granted Abdul-Salaam’s motion to
reactivate his habeas proceedings and scheduled a status conference. (Doc. 182.)
As a result of the conference, on October 1, 2012, the Court issued an Order
directing supplemental briefing to address the Pennsylvania Supreme Court’s
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disposition of the claims that were presented to the state court for exhaustion, and
updating the case law on other claims contained in Abdul-Salaam’s habeas
petition. (Doc. 185.) That supplemental briefing has been submitted. (See Docs.
188-190.) Thus, Abdul-Salaam’s petition for writ of habeas corpus (Doc. 8) is
now ripe for disposition.
II.

STANDARDS OF REVIEW
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and
amended the standards for reviewing state court judgments in federal habeas
petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to §
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). “[I]t is not
the province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather,
federal habeas review is restricted to claims based “on the ground that [petitioner]
is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
A.

Exhaustion and Procedural Default

Habeas corpus relief cannot be granted unless all available state remedies
19

have been exhausted, or there is an absence of available state corrective process, or
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).
A state prisoner exhausts state remedies by giving the “state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Respect for the state court system requires that the petitioner
demonstrate that the claims in question have been “fairly presented to the state
courts.”2 Castille v. Peoples, 489 U.S. 346, 351 (1989). To “fairly present” a
claim, a petitioner must present its “factual and legal substance to the state courts
in a manner that puts them on notice that a federal claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank,

2

A petitioner bears the burden of demonstrating that he has “fairly presented” his claims
to the state’s highest court, either on direct appeal or in a state post conviction proceeding.
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Further, pursuant to Pennsylvania
Supreme Court Order 218, effective May 9, 2000, issues presented to the Pennsylvania Superior
Court are considered exhausted for the purpose of federal habeas corpus relief under section
2254. See In re: Exhaustion of States Remedies in Criminal and Post-Conviction Relief Cases,
No. 218, Judicial Administration Docket No. 1 (May 5, 2000) (per curiam).
20

488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented
when a petitioner presents the same factual and legal basis for the claim to the state
courts). While the petitioner need not cite “book and verse” of the federal
Constitution, Picard v. Connor, 404 U.S. 270, 278 (1971), he must “give the State
‘the opportunity to pass upon and correct’ alleged violations of its prisoners’
federal rights” before presenting those claims here, Duncan v. Henry, 513 U.S.
364, 365 (1995) (quoting Picard, 404 U.S. at 275).
In this case, the Court will address exhaustion and procedural default in its
discussion of each issue herein.
B.

Merits Standard

Once a court has determined that the exhaustion requirement is met and,
therefore, that review on the merits of the issues presented in a habeas petition is
warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That
section states, in relevant part, that exhausted claims that have been adjudicated on
the merits by the state courts are subject to review under the standard of whether
they are “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
21

State court proceeding,” § 2254(d)(2). AEDPA places the burden on the petitioner
to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
The “contrary to” and “unreasonable application of” clauses of Section 2254
have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court
judgment is “contrary to” federal law when it is “diametrically different, opposite
in character or nature, or mutually opposed” to “clearly established” decisions of
the United States Supreme Court. Williams, 529 U.S. at 405. This may occur if
“the state court ignores or misapprehends clear precedent or it ‘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.’”
Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005) (quoting Williams, 529 U.S.
at 406). Alternatively, “[a]n ‘unreasonable application’ occurs when a state court
‘identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts[] of petitioner’s case.”
Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S.
510, 519, 520 (2003)). For the purposes of Section 2254(d)(1), “[i]t is not enough
that a federal habeas court, in its independent review of the legal question, is left
with a firm conviction that the state court was erroneous.” Lockyer v. Andrade,
538 U.S. 63, 75 (2003) (internal citations omitted). “Under § 2254(d)(1)’s
22

‘unreasonable application’ clause . . . a federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 75-76, 123 S. Ct. 1166 (quoting Williams, 529 U.S. at 411).
Rather, “[t]he state court’s application of clearly established law must be
objectively unreasonable” before a federal court may grant the writ. Andrade, 538
U.S. at 75, 123 S. Ct. 1166.
By its terms, Section 2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision comports with “clearly
established Federal law, as determined by the Supreme Court.” 28 U.S.C. §
2254(d)(1). Thus, § 2254(d)(1)’s “clearly established Federal law” signifies the
holdings, not the dicta, of Supreme Court decisions. Howes v. Fields, ___ U.S.
___, ___, 132 S. Ct. 1181, 1187 (2012). Specifically, only Supreme Court law
established at the time of the state court’s decision can be a basis for habeas relief
under AEDPA. See Green v. Fisher, ___ U.S. ___, ___, 132 S. Ct. 38, 44 (2011)
(“§ 2254(d)(1) requires federal courts to ‘focu[s] on what a state court knew and
did,’ and to measure state-court decisions ‘against this Court’s precedents as of
‘the time the state court renders its decision.’”) (quoting Cullen v. Pinholster, ___
U.S. ___, ___, 131 S. Ct. 1388, 1399 (2011) (emphasis added)). Therefore, federal
23

habeas review “is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen, ___ U.S. at ___, 131 S. Ct. at 1398.
Finally, “under the AEDPA standard, the ‘[s]tate court[s’] relevant factual
determinations are presumed to be correct unless the petitioner rebuts [that]
presumption by clear and convincing evidence.’” McBride v. Superintendent, SCI
Houtzdale, 687 F.3d 92, 101 (3d Cir. 2012) (quoting Han Tak Lee v. Glunt, 667
F.3d 397, 403 (3d Cir. 2012)) (citing 28 U.S.C. § 2254(e)(1)).
Turning to Section 2254(d)(2), the test for the “unreasonable determination
of facts” clause is whether the petitioner has demonstrated by “clear and
convincing evidence,” 28 U.S.C. § 2254(e)(1), that the state court’s determination
of the facts was unreasonable in light of the record. Rountree v. Balicki, 640 F.3d
530, 537 (3d Cir. 2011) (citing Rice v. Collins, 546 U.S. 333, 338-39, 126 S. Ct.
969, 163 L.Ed. 2d 824 (2006) (“State-court factual findings, moreover, are
presumed correct; the petitioner has the burden of rebutting the presumption by
‘clear and convincing evidence.’”); see also Simmons v. Beard, 590 F.3d 223, 231
(3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume
that the state court’s factual findings are correct, with the burden on the petitioner
to rebut those findings by clear and convincing evidence.”). Further, as with
Section 2254(d)(1), the evidence against which a federal court measures the
24

reasonableness of the state court’s factual findings is the record evidence at the
time of the state court’s adjudication. Rountree, 640 F.3d at 538 (citing Cullen,
___ U.S. at ___, 131 S. Ct. at 1401-03).
Further, the United States Supreme Court has clarified the test a district
court must apply before granting relief where the court finds constitutional error:
[I]n § 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
v. California, 386 U.S. 18 (1967).
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the Court concludes that
constitutional error occurred in the state court, the Court may not grant relief unless
the error “had a substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 631; Bond v. Beard, 539 F.3d 256, 276 (3d Cir.
2008); see also O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (“When a federal
judge in a habeas proceeding is in grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s
verdict, that error is not harmless.” (quotations omitted)).
In addition, the Supreme Court has stated, “If this standard is difficult to
meet, that is because it was meant to be.” Harrington v. Richter, ___ U.S. ___,
25

___, 131 S. Ct. 770, 786 (2011). Section 2254(d) “preserves authority to issue the
writ in cases where there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [Supreme Court] precedents. It goes no
farther.” Id. Further, it was designed to be difficult “to ensure that state-court
judgments are accorded the finality and respect necessary to preserve the integrity
of legal proceedings within our system of federalism.” Martinez v. Ryan, ___ U.S.
___, ___, 132 S. Ct. 1309, 1316 (2012).
Finally, AEDPA scrutiny is applicable only if the state court adjudicated the
petitioner’s claims “on the merits.” 28 U.S.C. § 2254(d); see Appel v. Horn, 250
F.3d 203, 210 (3d Cir. 2001). “An ‘adjudication on the merits’ has a well settled
meaning: a decision finally resolving the parties’ claims, with res judicata effect,
that is based on the substance of the claim advanced, rather than on a procedural,
or other, ground.” Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev’d on
other grounds, Rompilla v. Beard, 545 U.S. 374 (2005) (quoting Sellan v.
Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). Further, an “adjudication on the
merits” can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115
(3d Cir. 2009). However, “to qualify as an ‘adjudication on the merits,’ the state
court decision must finally resolve the claim. This means that the state court’s
resolution of the claim must have preclusive effect.” Id. (citing Rompilla, 355 F.3d
26

at 247 (quoting Sellan, 261 F.3d at 311)). Where a state court has not reached the
merits of a claim thereafter presented to a federal habeas court, the deferential
AEDPA standards do not apply, and the federal court must exercise de novo review
over pure legal questions and mixed questions of law and fact. Simmons v. Beard,
581 F.3d 158, 165 (3d Cir. 2009) (citing Appel, 250 F.3d at 210). However, the
state court’s factual determinations are still presumed to be correct, rebuttable upon
a showing of clear and convincing evidence.3 Simmons, 581 F.3d at 165 (citing
Appel, 150 F.3d at 210).
C.

Ineffective Assistance of Counsel Standard

Because several of Abdul-Salaam’s habeas claims presented herein raise the
issue of whether his counsel was effective, we will set forth the applicable standard
here. A claim for ineffective assistance of counsel is governed by the two-pronged
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an
ineffective assistance claim, a petitioner must show that: (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) the
deficient representation was prejudicial to the petitioner. Id. at 688; see also
Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007). In determining whether

3

In fact, “the § 2254(e)(1) presumption of correctness applies regardless of whether there
has been an ‘adjudication on the merits’ for purposes of § 2254(d).” Thomas, 570 F.3d at 116
(quoting Nara v. Frank, 488 F.3d 187, 200-01 (3d Cir. 2007)).
27

counsel has met the objective standard of reasonableness, courts must be highly
deferential towards trial counsel’s conduct. See Strickland, 466 U.S. at 686. “In
assessing counsel’s performance, ‘every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time. There is a ‘strong presumption’ that counsel’s performance was reasonable.”
Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (alteration in original) (citations
and quotations omitted). Counsel cannot be deemed ineffective for failing to raise
a meritless claim. See United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999).
To satisfy the prejudice prong, a petitioner must show a reasonable probability that,
but for the errors of his or her counsel, the outcome of the proceeding would have
been different. Strickland, 466 U.S. at 694.
The two-prong test for ineffective assistance of counsel established in
Strickland “qualifies as ‘clearly established Federal law’” for purposes of AEDPA.
Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor,
529 U.S. 362, 391 (2000)).4 Thus, under § 2254(d)(1)-(2), the relevant inquiry in
4

Pennsylvania applies the same test for ineffective assistance of counsel as the federal
courts. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). In Pennsylvania, the ineffective
assistance of counsel standard requires the petitioner to “rebut the presumption of professional
competence” by demonstrating: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis designed to effectuate
his interest; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the
28

assessing ineffectiveness claims that have been adjudicated on the merits is
whether the state court’s decision involved an unreasonable application of
Strickland or is based on an unreasonable determination of the facts. Jacobs v.
Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts v. Vaughn, 228 F.3d 178, 204
(3d Cir. 2000). In conducting this analysis, the Court is cognizant that:
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,”
[Strickland, 466 U.S.] at 689; Lindh v. Murphy, 521 U.S. 320, 333, n.
7 (1997), and when the two apply in tandem, review is “doubly” so,
[Knowles v. Mirzayance, 556 U.S. 111 (2009) ]. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S. at 123-25.
Harrington, 131 S. Ct. at 788; see also Knowles, 556 U.S. at 123 (“[B]ecause the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Finally, the reviewing court must evaluate counsel’s performance in light of
the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs, 395
F.3d at 106-07. It is the petitioner’s burden to establish both deficient performance
and resulting prejudice in order to state an ineffective assistance of counsel claim.
outcome of the proceedings would have been different.” Commonwealth v. Sneed, 899 A.2d
1067, 1076 (Pa. 2006) (citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001)). If the
petitioner fails to satisfy any of the standard’s prongs, the claim will be rejected. Id.
29

Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
III.

DISCUSSION
Abdul-Salaam’s habeas petition contains twelve claims for relief and

involves both the guilt phase and the penalty phase of Abdul’s Salaam’s trial. The
Court will address his claims in turn. For purposes of discussion, the Court will
address Claims I and IV together because both allege suppression of exculpatory
evidence that could have been used during the guilt phase of trial. As stated by
Petitioner, those claims are as follows.
A.

Claim I - Petitioner was denied due process of law in violation of
the Fourteenth Amendment to the United States Constitution,
when the prosecution suppressed exculpatory evidence; and,
Claim IV - Petitioner’s right to due process of law was violated
when the Commonwealth consumed an entire blood sample that
would have exculpated him. Due process was further violated by
the Commonwealth’s manipulation of a photo of the co-defendant
so as to falsely eliminate him as the source of the blood evidence in
question.5

5

In his original petition and in connection with this claim, Abdul-Salaam argues that the
Commonwealth destroyed all the blood evidence on the steering wheel and that the “bad faith
destruction was exacerbated by the Commonwealth’s manipulation of its Exhibit 41, depicting
the co-defendant, Scott Anderson.” (Doc. 8-2 at 44.) According to Abdul-Salaam, the
manipulation of the photograph consisted of covering up Anderson’s hands in the picture so as to
hide the fact that he had fresh cuts on his hands. (Id.) He contends that the Commonwealth was
attempting to eliminate Anderson as the source of the blood that was subject to the
Commonwealth’s testing by misleading the jury as to whose blood was on the wheel. (Id. at 4445.) In a footnote, Abdul-Salaam baldly asserts, in one sentence, that trial counsel was
ineffective for failing to object to the manipulation of the photograph. (Id. at 44 n.42.) Because
this claim relating to the blood evidence has evolved from one under Youngblood to one under
Brady, see infra, and it appearing that Abdul-Salaam is not making a connection between the
30

In Claim I, Abdul-Salaam claims that the Commonwealth withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),6 when
it failed to provide to defense counsel the Harlacker Report containing information
from Tony Clifton, which suggested that Abdul-Salaam was not the man
discussing a robbery with Scott Anderson in a vehicle the night before the robbery
and killing of Officer Cole. In Claim IV, Abdul-Salaam claims that the
Commonwealth withheld exculpatory evidence in violation of Brady when it failed
to disclose the existence of blood remaining on the steering wheel which, after
subsequent DNA testing, proved to be that of Scott Anderson and not AbdulSalaam. Upon careful review, habeas relief on both claims will be denied.
In Brady, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. To
establish a Brady violation, a petitioner must demonstrate that: (1) evidence was
suppressed by the state, either willfully or inadvertently; (2) the evidence is

Brady blood claim and the alleged manipulation of the photograph, the Court will not address
this sub-issue regarding the photograph, nor will we entertain the one-sentence “argument”
related to trial counsel ineffectiveness.
6

Briefly, in Brady the United States Supreme Court established the principle that a
defendant has a due process right to request and receive evidence in the government’s possession
that is material to his guilt or punishment, and that failure to adhere to this principle constitutes a
violation irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 86-88.
31

favorable to the accused, either because it is exculpatory or impeaching; and (3)
that the evidence was material to the outcome of the case. Strickler v. Greene, 527
U.S. 263, 281-82 (1999). The materiality standard is satisfied when the evidence
places the “whole case in such a different light as to undermine confidence in the
verdict.” Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). Further, this standard is
satisfied “if there is a reasonable probability that, had the evidence been disclosed,
the result of the proceeding would be different.” Strickler, 527 U.S. at 281-82. In
order for evidence to be material, it is not necessary that the evidence establish by a
preponderance that disclosure of the evidence would have resulted in an acquittal.
Kyles, 514 U.S. at 434-35. However, in making a determination of materiality, the
assessment of the omitted evidence’s impact must take account of the cumulative
effect of the suppressed evidence in light of the other evidence, not merely the
probative value of the suppressed evidence standing alone. Id. at 436-37.
In this case, Abdul-Salaam argues that the Commonwealth suppressed two
items of favorable evidence that are material. With respect to this evidence, the
Court notes the following factual background in addition to the procedural history
that has already been discussed, see supra, Section I, at 15-19.
1.

Clifton Evidence

Approximately four months after the killing of Officer Cole, New
32

Cumberland Police Officer Brian Nailor prepared a report dated December 29,
1994, which described his attempts to investigate a tip that a previously
unidentified man may have information on the robbery and killing of Officer Cole.
(See Petitioner’s Appendix, Ex. 1, Doc. 11) (“Nailor Report”). Through
information provided by several persons, Officer Nailor tracked down Viola
Troyan, a woman who had an individual named Tony Clifton in her employ around
the time of Officer Cole’s killing. According to Ms. Troyan,
Tony would talk about being involved with the two (2) guys that were
in prison for shooting a Police Officer in New Cumberland. . . . [H]e was
with them in a vehicle and that they had talked about robbing a jewelry
store in New Cumberland and when he found out what they were going
to do, he didn’t want any part of it, they dropped him off at a gas station
and he walked back across the bridge into Harrisburg.
(Nailor Report at 2.)
Officer Nailor then spoke with Mr. Clifton’s ex-girlfriend, Terri Garret, and
her daughter, Tasha, by telephone. Both women recalled, “Tony saying something
about being with some guys and that they were talking about doing something
stupid at a coin store and when Tony found out what was going to happen, he got
out of the vehicle and walked back.” (Id. at 3-4.)
Finally, Officer Nailor attempted to find Tony Clifton, but was unsuccessful.
He did note, however, Mr. Clifton’s ties to both Pennsylvania (through his
employer and acquaintances) and Virginia (through relatives and a criminal history
33

in that state). (Id. at 4.)
Officer Nailor’s report of December 29, 1994, was provided to AbdulSalaam’s defense counsel prior to the trial. (Doc. 8 at 26.) Mr. Clifton was not
called as a witness at trial, and in fact the record indicates that he was located by
Abdul-Salaam’s appellate counsel in February 1998, approximately three years
after Abdul-Salaam was convicted and sentenced. (Id.)
As stated above, Abdul-Salaam filed his counseled First PCRA Petition on
September 23, 1997. Hearings on the petition took place in late 1997 and early
1998. After Abdul-Salaam’s PCRA counsel located Mr. Clifton, he signed a
declaration on February 12, 1998, describing his knowledge of the robbery and
killing of Officer Cole. (See Petitioner’s Appendix, Ex. 2, Doc. 11) (“Clifton
Declaration”). Specifically, he stated the following:
On the night of August 18th 1994, I approached Gary [Miller,
manager of the Midnight Special,] inside the Midnight Special [bar in
Harrisburg] and asked whether he knew anyone at the bar that could give
me a ride home. Gary indicated he might be able to find someone that
could provide me with a ride home and he approached another man
inside the bar whom I now know was Scott Anderson. I was able to hear
Gary ask Scott whether Scott could give me a ride and overheard Scott
ask Gary whether I was “cool.” I understood Scott’s question of Gary
as an attempt to determine whether I could be trusted. Gary indicated he
knew me and that I could be trusted.
Very early in the morning, I along with Scott Anderson, and
another black man that I had not previously met left the Midnight Special
and got into a car driven by Scott Anderson. As we pulled out of the
34

parking lot and Scott Anderson began speaking with the other man and
pretty soon it became clear to me that they were discussing plans to
commit a robbery. Although I did not hear what the specific target of the
robbery was, I did understand that the robbery was of a jewelry or coin
store across the river from Harrisburg. It was clear that the robbery was
Scott Anderson’s plan and he was the one in charge. It was also clear
that the other man agreed to do the robbery as Anderson had planed [sic]
it. When I realized what was going on I became frightened and asked
them to drop me off at the next intersection which they did.
I managed to get home by myself and as I didn’t have to go to
work the next day, I slept in and woke up in the afternoon. Later that
same day I was watching TV when the show I was watching was
interrupted for a special news report about a shooting of a police officer
that had taken place in New Cumberland. The report indicated that the
officer had been shot during a robbery and immediately, I began to think
about the conversation that I overheard the night before. The TV report
said that the police had captured two suspects in the shooting and
showed pictures of the two men that had been taken into custody.
I immediately recognized one of those men as Scott Anderson, the
same man planing [sic] the robbery as he was driving me home.
However, the pictures of the other man in custody I did not recognize
and had never seen before. This man was most definitely not the man
that was in the front seat with Scott Anderson as Scott discussed his
plans for a robbery.
***
A couple months later I was approached by a Detective from
Cumberland County. Apparently, some of my friends had told the police
about what I had told them about how I had been given a ride by one of
the men arrested for the shooting of the officer. I do not recall the name
of the Detective from Cumberland County that interviewed me. All I can
remember was that he was a large white man in plain clothes that showed
me law enforcement identification from Cumberland County.
This Detective began to ask me about the events of August 18th
35

and August 19th and I proceeded to tell him what I have stated in this
Affidavit/Declaration. I recall that as I was talking to him he was taking
notes and asked me several times to slow down so he could catch up with
what I was telling him. I also recall that he asked me specifically if the
other individual in the car with Scott Anderson on the night of August
18th was Seifullah Abdul-Salaam. I told him that the other man in the
car was most definitely not the other man shown on TV on August 19,
1994 when Scott Anderson was arrested.
I have since been shown a single photograph of a man that has
been identified to me as Seifullah Abdul-Salaam. This was the same
man that I saw on TV who was identified as one of the robbers. As I told
the detective from Cumberland County in 1995, I am positive that
Seifullah Abdul-Salaam was not the other man in the car with Scott
Anderson and myself on the night of August 18, 1994.
(Clifton Declaration at 1-3.)
In light of Clifton’s Declaration, Abdul-Salaam filed a supplement to the
amended First PCRA Petition, in which he argued, inter alia, that the
Commonwealth had failed to provide defense counsel with information on the
identity of the officer who had interviewed Mr. Clifton after submission of the
Nailor Report and before trial, as well as information on Mr. Clifton’s
whereabouts. (See Petitioner’s Appendix, Ex. 3, Doc. 11) (“Petitioner’s PCRA
Supplement”). Abdul-Salaam requested, inter alia, that the PCRA court conduct
an evidentiary hearing on the Clifton issue; that the Commonwealth identify the
officer who interviewed Mr. Clifton; and that the Commonwealth produce a copy
of the notes and police report of that officer. (Id. at 13-14.) The Commonwealth
36

filed an answer to Petitioner’s PCRA Supplement, but did not at the time provide
the requested information.
Instead of conducting a separate evidentiary hearing, the PCRA Court
continued to hear evidence in early 1998 in proceedings on the First PCRA
Petition. In particular, on April 16, 1998, Abdul-Salaam called as a witness
Officer Nailor. During his testimony Officer Nailor identified Detective John
Harlacker of the Dauphin County Criminal Investigation Division (“CID”) as the
“person that actually spoke to Mr. Clifton.” (PCRA Hearing, Notes of Testimony
(“PCRA NT”) 4/16/1998, at 11, Doc. 125.) Mr. Nailor also provided a copy of the
report which detailed Detective Harlacker’s efforts to gather information on Mr.
Clifton in January 1995. (See Petitioner’s Appendix, Ex. 5, Doc. 11) (“Harlacker
Report”). Further, Mr. Nailor provided a transmittal sheet showing that Detective
Harlacker faxed his report to New Cumberland Police Chief Oren Kauffman and
the Cumberland County CID on January 17, 1995, approximately two months prior
to the commencement of jury selection in Abdul-Salaam’s case. (See id.) Officer
Nailor also expressed his opinion that the Cumberland County District Attorney’s
(“D.A.”) Office received the Harlacker Report at that time as well. (PCRA NT
4/16/1998, at 21.) Detective Norman Chronister of the Cumberland County D.A.’s
Office also testified at the PCRA hearings that the Commonwealth’s prosecuting
37

attorneys7 were provided with the Harlacker Report prior to commencement of jury
selection. (PCRA NT 4/22/1998, at 16-17, Doc. 126-2.)
As a result of the foregoing, Detective Harlacker was called and testified
about his investigation and interview of Tony Clifton. Detective Harlacker
testified that he interviewed Mr. Clifton in January 1995 in Harrisburg,
Pennsylvania. (Id. at 37-38.) As recounted by Detective Harlacker, Mr. Clifton
explained to Harlacker that he had been with Scott Anderson in a vehicle driven by
another unknown individual in the early morning hours of August 19, 1994. (Id. at
38.) Mr. Anderson and the unknown individual were discussing a plan to rob a
coin shop the next day. (Id.) The day after the robbery of the coin shop and killing
of Officer Cole, Mr. Clifton saw Mr. Anderson on the local news covering the
incident, but was not sure that the other man identified as a suspect in the killing
(Abdul-Salaam) was the same man who had been in the vehicle with Mr. Anderson
and Mr. Clifton. (Id. at 39.) Mr. Clifton did tell Detective Harlacker, however,
that he was willing to look at a photographic array or a lineup in order to identify
the man from the vehicle. (Id. at 39-40.) Detective Harlacker testified that neither
he nor, to his knowledge, any other detective followed up with Mr. Clifton about

7

Prosecuting the case for the Commonwealth were then-District Attorney, and now
Pennsylvania Supreme Court Justice, Michael J. Eakin, and Assistant District Attorney Allison
Taylor.
38

such an identification. (Id. at 40.) He simply “gathered the information and
forwarded it.” (Id.)
Detective Harlacker transmitted his report to Chief Kauffman of the New
Cumberland Police Department within a few days of interviewing Mr. Clifton, but
received no further requests from that Department, Cumberland County CID, or
the Cumberland County D.A.’s Office. (PCRA NT 4/22/1998, at 37.) Detective
Harlacker did indicate, however, that he would have performed further
investigation after the report was transmitted, had it been requested of him. (Id.)
Tony Clifton also testified at the PCRA hearing.8 Mr. Clifton testified that
he had been drinking the night he got in the vehicle with Mr. Anderson and the
unidentified man, but was still able to remember what he saw and heard in the
vehicle. (PCRA NT 4/23/1998, at 101-02.) When Mr. Clifton saw the television
news coverage, he focused mainly on the photograph of Mr. Anderson because he
remembered him from the vehicle. (Id. at 105.) When asked about the
unidentified individual in the vehicle, Mr. Clifton provided the following
testimony:
Q:

Mr. Clifton, the other individual that was in the car along with
Mr. Anderson, did you have an opportunity to see that

8

While Mr. Clifton did make some corrections to his affidavit during his testimony,
(PCRA NT 4/23/1998, at 91-92, 110, 119-20), generally his testimony reflected the declarations
made in the affidavit.
39

individual?
A:

Yeah, I saw him.

Q:

You saw him approach the vehicle and get into the front of the
vehicle with Mr. Anderson?

A:

No, I didn’t see him get in, but when I looked up he was like I
told you. You know, I was like leaning out the window. When
he got in the car and started the car, I looked up to see who was
getting in and who was driving, right, okay?

Q:

Okay.

A:

I looked up and I seen the dude, the other guy.
***

Q:

You did see the other gentleman in the car; is that correct?

A:

Yeah.

Q:

Okay. Were you able to see the other gentleman’s profile, the
side of his face?

A:

Yeah.

Q:

Okay. Were you able to see the back of his head?

A:

Yeah.

Q:

Were you able to get an idea of his approximate size?

A:

Yeah.
***

Mr. Nickerson:

Mr. Abdul-Salaam, please stand up.
40

Q:

Mr. Clifton, I would ask you to look at the gentleman that’s
standing next to me right now, is this the gentleman that was in
the car with Scott Anderson on the early morning hours of
August the 19th, 1994?

A:

Not when I was in the car.

(Id. at 106-08.)
Finally, at the PCRA hearing, Abdul-Salaam’s trial counsel, Speros Lappas,
Esquire, testified about both Mr. Clifton and the Harlacker Report. Attorney
Lappas indicated that he did have knowledge of Mr. Clifton’s existence prior to
trial through Detective Nailor’s report, but he did not “recall making an issue out
of Mr. Clifton’s existence.” (PCRA NT 4/23/1998, at 157.) Further, he did not
recall receiving the Harlacker Report prior to trial. (Id. at 126.)
2.

New Blood Evidence

At Abdul-Salaam’s original 1995 trial in the Cumberland County court,
Donald P. Bloser, Jr., a forensic scientist with the Pennsylvania State Police Crime
Laboratory, testified on behalf of the Commonwealth that, when he tested the
Suzuki steering wheel for the presence of blood, he found Type B blood, which
matched Abdul-Salaam’s blood type to within ten percent (10%) of the
population.9 (Trial, Notes of Testimony (“Trial NT”) 3/14/1995, at 125, Doc. 144.)
9

Mr. Bloser also tested for blood type a pair of blue jeans and two pairs of boxer shorts
belonging to Abdul-Salaam and found Type B blood on all of the items. (Trial NT 3/14/1995, at
118-19.)
41

Mr. Bloser, however, performed this testing without using DNA testing modalities.
(Id. at 118.) Rather, he separated the Type B blood to identify enzymes which
would further narrow the results. (Id. at 120-21.) When the Commonwealth asked
why he did not get results on two enzymes he had tested, Mr. Bloser stated,
A:

I did not get a result. There was not enough blood there to do
those two.

Q:

Not enough blood on the steering wheel?

A:

Yes.

(Id. at 121.) On cross examination, Mr. Bloser further testified:
Q:

Now, can you recognize on that photograph [of the steering wheel]
discolored areas on the steering wheel consistent with the blood which
you found when it was delivered to you for testing?

A:

Yes.

Q:

And your testimony is that even with this quantity of discoloration
that we see, there was insufficient blood for the purposes of doing the
Isoenzyme tests?

A:

On some I got three of the five enzymes. So I used most of it for the
three. And I did not have enough - - what I used for the last two did
not give me results.
***

Q:

And I guess you tried to remove all of the blood from the
wheel?

A:

As much as I could.
42

(Id. at 124, 128.)
In light of Mr. Bloser’s trial testimony, before the PCRA court AbdulSalaam asserted that the Commonwealth violated his due process rights in
violation of Arizona v. Youngblood, 488 U.S. 51 (1988),10 when it consumed the
entire blood sample for testing. In relying on Youngblood, Abdul-Salaam
contended that the police had destroyed the entire blood sample in bad faith. The
PCRA court disagreed, however, finding that Abdul-Salaam had failed to offer
evidence that the blood sample was in fact destroyed in bad faith. (Doc. 19-2 at
16, PCRA Op.) Noting that “[t]he presence or absence of bad faith by the police
must necessarily turn on the police’s knowledge of the exculpatory value of the
evidence at the time it was lost or destroyed,” Youngblood, 488 U.S. at 56 n.1, the
PCRA court denied Abdul-Salaam’s claim that his due process rights were violated
when the entire blood sample was used. (Doc. 19-2 at 16, PCRA Op.)
In his habeas petition filed in this Court, Abdul-Salaam originally raised this
same claim regarding the blood evidence pursuant to Youngblood. (See Doc. 8-2 at
84-88.) In support of that claim, at the hearing on Abdul-Salaam’s second motion

10

Briefly, in Youngblood the Supreme Court held that when considering evidence lost by
the government, “of which no more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant,” a defendant must show that the
government acted in bad faith in order to demonstrate a due process violation. Youngblood, 488
U.S. at 57-58.
43

for discovery, the Court heard testimony from Mr. Bloser. Specifically, Mr. Bloser
read from his laboratory notes which had been generated contemporaneously with
his work on the case. His notes read, in pertinent part,
Inside [an evidence box] is one dark green steering wheel with
suspected blood. Lots of blood, but on different areas.
(Discovery Hearing, Notes of Testimony (“Discovery NT”) 8/2/2005, at 36-37,
Doc. 107.) He also testified as follows:
Q:

Do I understand your testimony to be, sir, that when you
handed off the wheel to the fingerprint folks, that in your view
there was blood remaining on the wheel?

A:

I could not say it was blood, I did not test it, but it looked like it
was possible blood.
***

Q:

Are you suggesting, after having read that [his own trial
testimony], that you meant to say that there was still remaining
blood on the steering wheel?

A:

The question was, was there - - the results mean there was not
enough blood on the steering wheel, not enough - - and I said
not enough - - they said not enough blood on the steering
wheel, I said yes, for - -

Q:

But you meant - -

A:

- - the enzymes. I did not - - of the sample I collected. Of the
sample - - of the sample I collected there was not enough blood.

Q:

That’s what you’re saying now. My question is, your answer at
the time was that there was not enough - - you responded yes to
44

the question that there’s no remaining blood - A:

I answered the question yes.

(Discovery NT 8/5/2005, at 51-52.)
By Memorandum and Order dated August 11, 2005, the Court found that
Abdul-Salaam had demonstrated good cause for his discovery request, and that
state exhaustion of the request in the context of this case was not required. (See
Doc. 77.) As a result, the Court crafted a protocol for examination of remaining
biological evidence on the steering wheel, removal of a sample, and for DNA
testing of the same. (See id. at 12-14.)
Pursuant to the Court’s directives, Abdul-Salaam’s DNA expert, Dr. Edward
T. Blake of the Forensic Science Associates in Richmond, California, conducted
the DNA testing of the biological evidence remaining on the steering wheel in
cooperation with Respondents. Dr. Blake subsequently authored three reports,
which were provided to Respondents and the Court. (See Docs. 99, 101, 116.)
These reports, read together, establish that the blood recovered from the steering
wheel according to our protocol was that of the co-defendant, Scott Anderson,
rather than Abdul-Salaam’s. Respondents did not contest the results of this DNA
testing.
On April 6, 2007, Abdul-Salaam filed a motion for relief on the merits,
45

asking the Court to consider these Brady claims related to the Clifton evidence and
new blood evidence. (Doc. 118.) By Order dated July 7, 2008, the Court denied
the motion, but stayed litigation pending exhaustion of these claims before the state
courts. (Doc. 155.) Thereafter, Abdul-Salaam filed supplements to his Third
PCRA Petition in the Cumberland County court on August 27, 2008, and April 21,
2009, respectively. (Doc. 200, Vol. 4, Exs. 14 & 15.) After holding an evidentiary
hearing on October 28, 2010, the Cumberland County court denied the Third
PCRA Petition on April 1, 2011. (See Doc. 172-1.)
3.

Pennsylvania Supreme Court Decision

Thereafter, on April 5, 2012, the Pennsylvania Supreme Court affirmed the
denial of relief on the Third PCRA Petition containing both the Clifton and blood
claims. See Abdul-Salaam-IV, 42 A.3d 983. In so ruling, the court specifically
addressed the Brady cumulation analysis for materiality. Addressing the Clifton
evidence first, the court found:
Respecting the Clifton evidence, it appears that the Harlacker
report was not turned over to the defense before trial. The interview
with Clifton occurred on or about January 10, 1995 (2 months before
trial).[ ] Detective John Harlacker testified to the contents of the report
during the first PCRA proceeding. Specifically, his testimony
outlined that Clifton had stated that he was with appellant’s coconspirator, Scott Anderson, and another individual six hours prior to
the robbery during which appellant murdered New Cumberland Police
Officer Willis Cole. At that time, Clifton overheard the two men
discussing a robbery. Clifton also told Detective Harlacker that he
46

was intoxicated when he was with the two men. Furthermore, Clifton
told Detective Harlacker that he was able to identify Anderson, but
was unable to identify the man who was with him. Clifton also
testified at the first PCRA proceeding and claimed that the man he
saw with the co-conspirator six hours prior to the robbery and murder
was not appellant.
***
For purposes of the Kyles / Brady cumulation analysis now of
concern to Judge Jones, even if it is assumed that this information in
the possession of governmental authorities was subject to Brady
disclosure under U.S. Supreme Court precedent governing in March
of 1995, we agree with the initial PCRA court’s determination that the
Clifton interview was neither material nor exculpatory. Clifton’s
account may have been relevant to further inculpate Anderson,
indicating his intention to commit a robbery, but it did nothing to
exculpate appellant. Detective Harlacker’s testimony indicated that
Clifton claimed that he was able to identify Anderson, but was unable
to identify the individual who was with Anderson. Clifton’s inability
to identify the other individual to Detective Harlacker does not
exculpate appellant, it just fails to inculpate him in an association
many hours before the robbery and murder. By the same token,
Clifton’s account to police that he had overheard Anderson and
another individual discussing a robbery six hours before it occurred
does nothing to exculpate appellant for his conduct, attested to by
numerous eyewitnesses, and corroborated by, among other things, the
gunshot wound he suffered in his exchange of lethal gunfire with
Officer Cole. Therefore, it is not apparent that this evidence should
even be considered in a cumulative effect of “suppressed” evidence
analysis under Kyles and Brady.
Abdul-Salaam-IV, 42 A.3d at 985-86.
The court found the following with respect to the blood evidence:
For purposes of a Kyles / Brady cumulation inquiry, there is a
similar difficulty with appellant’s new claim deriving from
47

blood/DNA evidence uncovered through federal habeas supplemental
discovery. This evidence showed that DNA testing of another sample
of blood on the steering wheel of the getaway car, which testimonial
and other evidence at trial had shown had been driven by Anderson,
was consistent with Anderson’s DNA profile. Evidence that would
further incriminate Anderson, and corroborate the Commonwealth’s
evidence that he was the driver of the getaway vehicle, does not tend
to exculpate appellant.
Id., 42 A.3d at 986. The court also noted:
Appellant’s briefing to this Court does not accurately account
for the actual trial and PCRA evidence. Both appellant and Anderson
were injured during the criminal episode: the evidence suggested that
appellant was shot by Officer Cole, and Anderson’s hand was injured
during a skirmish with the store owner. At trial, the Commonwealth
presented evidence that blood taken from the steering wheel of the
getaway car, when tested, matched the blood type and blood enzymes
of appellant and did not match the blood type and enzymes of
Anderson. The Commonwealth used this evidence to help establish
appellant’s presence in the getaway car. The Commonwealth also
presented evidence that blood taken from the driver’s side door of the
getaway car when tested, was determined to match the blood type of
Anderson and did not match appellant’s blood type. The new blood
evidence, deriving from the habeas proceedings and relating to
different blood samples taken from the steering wheel than that tested
by the Commonwealth before trial, corroborated Anderson’s role, but
did not disprove or negate the evidence of appellant’s presence. Nor
does the new evidence prove appellant’s federal counsel’s
unsupported accusation that the Commonwealth “fabricated” the trial
evidence. It is unsurprising that two confederates, on the run after
having just murdered a police officer, and both having been injured,
would both leave blood on the steering wheel of the vehicle.
Id., 42 A.3d at 986 n.4.
In addressing both pieces of evidence together for purposes of the
48

cumulation analysis, the court concluded the following:
In any event, assuming that both the Clifton evidence and the
new blood evidence should be considered in a Kyles cumulation
analysis, the cumulative effect of these allegedly suppressed items of
evidence does not warrant relief. In the Brady context, materiality
includes an assessment of whether there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. Kyles, 514 U.S. at 433-34, 115
S. Ct. 1555; see also Strickler v. Greene, 527 U.S. 263, 280, 119 S.
Ct. 1936, 144 L. Ed. 2d 286 (1999); Commonwealth v. Lambert, 584
Pa. 461, 884 A.2d 848, 854 (2005). Notably, in his argument on
Brady materiality, appellant fails to address the breadth of the trial
evidence. That evidence makes clear that whatever marginal use may
have been made of Clifton’s account and the blood evidence, its
collective effect does not establish a reasonable probability that the
result of the trial would have been different, i.e., that appellant would
have been acquitted.
The trial evidence included the following. The robbery and
murder here occurred on a Friday morning during business hours on a
commercial street. No less than four eyewitnesses identified appellant
as Officer Cole’s shooter at trial. The getaway car, driven by
Anderson, was followed by an off-duty police officer. When
appellant and Anderson abandoned the car and fled on foot, the offduty police officer observed them and identified appellant as the
individual exiting the passenger side of the car. In addition, trial
evidence showed that the shooter was injured at the scene of the crime
by Officer Cole; notably, when appellant was apprehended mere hours
after the crime, he was transported to a hospital for a bullet wound to
his leg. After appellant was apprehended, police conducted a
consensual search of his girlfriend’s residence where they found
bloody clothing and a briefcase containing ammunition. Finally,
appellant told the police officer who transported him to the hospital
that he would tell his lawyer that “‘Scotty Love’[ ] did it,” further
implicating himself by revealing his knowledge of the fresh crime and
Anderson’s involvement. Given this overwhelming evidence, and
considering the minimal, if any, effect of the Harlacker report and the
49

blood/DNA evidence in exculpating appellant, he has not established
a reasonable probability that the outcome of the trial would have been
different.
Id., 42 A.3d at 986-87.
4.

Analysis
a.

Exhaustion; Standard of Review

Both the Clifton and blood claims have taken a decidedly winding path to
exhaustion in order for us to finally reach their merits. However, Abdul-Salaam
nevertheless now makes two arguments in support of his position that no AEDPA
deference is due to our review of the Pennsylvania Supreme Court decision. First,
Abdul-Salaam suggests that the state courts have “prejudged the [Clifton-Brady]
claim as a frivolous delay tactic and in doing so demonstrated a bias against
Petitioner and counsel.” (Doc. 188 at 32.) Because of this bias, he argues, this
Court is free to abandon the state court’s analysis and decision on these issues and
apply de novo review rather than a more narrow review under AEDPA. To
demonstrate bias, Abdul-Salaam points to the Abdul-Salaam-II decision in which
the Pennsylvania Supreme Court found that his claim that the Commonwealth
suppressed the exculpatory Clifton evidence was waived because it was not raised
at either trial or on direct appeal. See Abdul-Salaam-II, 808 A.2d at 560-61. This
finding of waiver, Abdul-Salaam argues, made “little sense,” and thus suggests that
50

it was linked to Justice Michael Eakin’s taking his seat on the court less than one
week after the court issued its opinion. (Doc. 188 at 27.) Abdul-Salaam seemingly
bolsters this argument by reminding us of the subsequent procedural history in the
state court in which his attempts to raise a conflict of interest were thwarted,
despite conceding in a footnote that Justice Eakin has recused himself from
decisions regarding Abdul-Salaam. (See id. at 27-29.) He also contends that in
subsequent opinions, the state court made statements against counsel and AbdulSalaam suggesting a “less than an unbiased view of the issues in this case.” (Id. at
28-29.) All of these speculative assertions relative to bias are meritless. AbdulSalaam and his counsel’s suggestion that the Pennsylvania Supreme Court was
anything but professional and unbiased in its review and disposition of the issues is
without foundation and in no way a justification for bypassing AEDPA review of
the state court decision at hand.
Second, Abdul-Salaam suggests that because the Pennsylvania Supreme
Court stated in its review of these claims that “[w]e write in elaboration primarily
to address concerns of the federal district court . . . Out of respect for the concerns
of Judge Jones . . . we will address Brady cumulation,” the court somehow did not
resolve the claims in a manner that would enable us to employ AEDPA deference
in our review. Rather, Abdul-Salaam contends, the state court simply “answered”
51

our opinion regarding exhaustion, and did so by engaging in a “superficial and
distorted review of the facts and baldly declared the due process violation was not
material.” (Doc. 188 at 32.) What Abdul-Salaam fails to point out is that, in
introducing its Brady cumulation analysis, the court’s entire statement is as
follows: “Out of respect for the concerns of Judge Jones, and cognizant that
appellant adverts to the cumulation theory in his brief, albeit he does not separately
argue the point, we will address Brady cumulation.” Abdul-Salaam-IV, 42 A.3d at
985. In light of this complete statement, we easily conclude that the Pennsylvania
Supreme Court’s opinion is a thorough analysis addressing the issues and concerns
of all parties, rather than the superficial treatment posited by Petitioner.
In sum, Abdul-Salaam has not persuaded the Court to bypass AEDPA
review of the Pennsylvania Supreme Court decision on these claims. Rather, upon
review under AEDPA, and for the reasons set forth below, the Court concludes that
the state court’s determination regarding this issue is consistent with federal law
and is based on a reasonable determination of the relevant facts. See 28 U.S.C. §
2254(d)(1)-(2).
b.

Brady / Kyles Analysis

In its decision, the Pennsylvania Supreme Court determined that AbdulSalaam failed to prove Brady violations occurred because he did not prove that the
52

Clifton evidence or new blood evidence would be both favorable, i.e., exculpatory,
and material. See Abdul-Salaam-IV, 42 A.3d at 985-87. Upon review, the Court
fully agrees with the state court’s decision in this regard.11
Turning first to whether the Clifton evidence was favorable to AbdulSalaam, even assuming as true Clifton’s later statement that the man in the vehicle
with Anderson on the night before the incident was someone other than AbdulSalaam, we agree with the state court that this information does nothing to
exculpate Abdul-Salaam. See id., 42 A.3d at 986. Rather, it simply further
inculpates Anderson by providing further information on his whereabouts the day
before he robbed the coin shop with Abdul-Salaam. As the state court found,
Abdul-Salaam’s involvement was corroborated by numerous eyewitnesses and the
gunshot wound he suffered in the exchange of fire with Officer Cole. Id. We
agree with the state court that the Clifton evidence indicating that Anderson was in
a vehicle the night before the incident planning a robbery with a man Clifton could

11

In his supplemental memorandum of law in support of his habeas petition, AbdulSalaam asks the Court not to consider the trial fingerprint evidence in assessing the materiality of
the due process violations related to these claims. (See Doc. 188 at 63-68.) In doing so, he cites
to a 2009 analysis of the state of forensic science in the United States by the National Academy
of Sciences which addressed the unreliability of forensic evidence generally. (See id. at 63)
(citing NATIONAL ACADEMY OF SCIENCES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED
STATES: A PATH FORWARD (Feb. 2009) (“NAS Report”)). Because the Pennsylvania Supreme
Court did not rely on fingerprint evidence in its analysis of materiality with respect to these
claims, see infra, we need not consider it here in our review of the state court decision.
53

not readily identify as Abdul-Salaam is not exculpatory.12 See 28 U.S.C. §
2254(d)(2), (e).
Next, in determining whether the new blood evidence was favorable to
Abdul-Salaam,13 the Pennsylvania Supreme Court found that the DNA testing on
the new sample of blood from the steering wheel served to further incriminate
Anderson and identify him as the driver of the getaway vehicle rather than
exculpate Abdul-Salaam from the murder of Officer Cole. Abdul-Salaam-IV, 42
F.3d at 986. Here, Abdul-Salaam requests the Court to find that the state court’s
decision was objectively unreasonable under § 2254(d)(2) because it allegedly
presumes a previous state court finding that both Anderson’s and Abdul-Salaam’s
blood were on the steering wheel. Specifically, in Abdul-Salaam-IV, the state court
provides in a footnote that the new blood evidence taken from samples on the
steering wheel were different than those tested by the Commonwealth before trial,

12

We cannot gainsay that the Clifton evidence would have arguably been relevant if
offered at Petitioner’s trial. But relevant testimony in the context of a trial does not equate to
that which is exculpatory for purposes of our analysis.
13

In light of the procedural posture of this issue, the Court will not address whether the
new blood evidence was actually “suppressed” by the Commonwealth. Therefore, the Court will
not entertain Abdul-Salaam’s argument that the original report by Donald Bloser on blood taken
from the steering wheel was falsified. Instead, because during oral argument held before this
Court on November 14, 2007, we stated, “We now know, apparently, in an unequivocal way,
that Mr. Abdul-Salaam’s blood was not on the wheel,” (Notes of Testimony, Oral Argument
11/14/2007, at 27), we will determine whether the new blood evidence is favorable to AbdulSalaam and material so as to warrant habeas relief.
54

and which matched only Anderson’s DNA, does not “disprove or negate the
evidence of [Abdul-Salaam]’s presence,” presumably in the getaway vehicle. Id.,
42 F.3d at 986 n.4. Abdul-Salaam argues the erroneous presumption, that he was
in the getaway vehicle, should be deemed unreasonable under Section 2254(d)(2),
and this Court should, therefore, apply de novo review. (See Doc. 188 at 34.)
However, while the language with respect to the blood evidence expressed in a
footnote by the state court invokes, in part, the matter of Abdul-Salaam’s presence
in the getaway vehicle, the state court’s ultimate conclusion does not turn on that
point. Rather, the state court relied on the findings of the new blood evidence,
which proved only that Anderson was present in the getaway vehicle. See AbdulSalaam-IV, 42 A.3d at 986 (“This [blood/DNA evidence uncovered through
federal habeas supplemental discovery] showed that DNA testing of another
sample of blood on the steering wheel of the getaway car, which testimonial and
other evidence at trial had shown had been driven by Anderson, was consistent
with Anderson’s DNA profile. Evidence that would further incriminate Anderson,
and corroborate the Commonwealth’s evidence that he was the driver of the
getaway vehicle, does not tend to exculpate appellant.”). We agree with the state
court that the new blood evidence only proves to be further inculpatory to Mr.
Anderson rather than exculpatory to Abdul-Salaam. See 28 U.S.C. § 2254(d)(2),
55

(e).
Despite finding that both the Clifton and new blood evidence were not
favorable to Abdul-Salaam, the Pennsylvania Supreme Court went further in its
analysis of these claims. Notably, the state court expressly concluded “[A]ssuming
that both the Clifton evidence and the new blood evidence should be considered in
a Kyles cumulation analysis, the cumulative effect of these allegedly suppressed
items of evidence does not warrant relief.” Abdul-Salaam-IV, 42 F.3d at 986-87
(emphasis added). In doing so, the state court looked to the “collective effect” of
the Clifton evidence and the new blood evidence with the “overwhelming
evidence” of guilt presented at trial to determine that Abdul-Salaam had not
established a reasonable probability that the outcome of the trial would have been
different. Id. at 987. Specifically, the court relied on ‘[n]o less than four
eyewitnesses” who identified Abdul-Salaam as the shooter of Officer Cole. Id., 42
F.3d at 987. Also, an off-duty police officer, Rodney Smith, observed the getaway
vehicle and identified Abdul-Salaam as the individual exiting the passenger side in
flight.14 Id. The court also noted that trial evidence demonstrated that the shooter
14

Officer Smith, who pursued the getaway vehicle from New Cumberland to Harrisburg,
testified that Abdul-Salaam was the individual who exited the passenger side of the vehicle,
(Trial NT 3/11/1995, at 202), describing the encounter as follows:
As the passenger got out of the vehicle, when he got out he kind of - - he got out
backwards. And he stepped out. It was kind of like a backwards step-out, so that
56

had been injured at the scene by Officer Cole,15 and when Abdul-Salaam was
apprehended just hours after the shooting, he was transported to hospital with a
bullet wound in his leg.16 Id. In connection, a consensual search of AbdulSalaam’s girlfriend’s residence revealed bloody clothing and a briefcase containing
ammunition. Id. Finally, the court noted that Abdul-Salaam told the police officer
who transported him to hospital mere hours after the shooting that he would tell his
attorney that “‘Scotty Love’ [(a nickname of Anderson)] did it.” Id. In light of this
evidence of guilt relied upon by the state court, this Court concludes that AbdulSalaam has not established that the Clifton material or new blood evidence was
material and would have changed the outcome of the trial. See Kyles, 514 U.S. at
420 (the defendant must show “the favorable evidence [withheld] could reasonably
he had to turn around. He had to turn around and face me to get turned back
around. . . . At that time I was roughly thirty feet [from the getaway vehicle]. . . .
As he turned around we made eye contact. I saw him looking at me. And I knew
that he was looking back. And I was looking back at him. As he turned around,
in his left hand, I believe I saw what I believed to be a firearm in his left hand. As
he made that turn and began to run up the hill I was looking a little more.
(Id. at 160-61.)
15

By way of example, Wendy Gerberich, an individual who witnessed the incident in
New Cumberland that morning, testified that Officer Cole “was shooting back at the black male
that was doing the shooting.” (Trial NT 3/10/1995, at 165.)
16

The director of the emergency department at the time of Polyclinic Hospital in
Harrisburg, Pennsylvania, Edward Hildrew, M.D., testified that he evaluated Abdul-Salaam for a
gunshot wound on his right thigh on the day of the shooting of Officer Cole. (Trial NT
3/13/1995, at 152-53.) The doctor estimated that, given the aging of the wound, it was “certainly
less than a day old.” (Id. at 155.)
57

be taken to put the whole case in such a different light as to undermine confidence
in the verdict”). In evaluating the cumulative effect of the Clifton and new blood
evidence in light of the evidence of guilt found at trial, the state court’s decision on
these matters that Abdul-Salaam has not established materiality because there is no
reasonable probability that the outcome of the trial would have been different, see
Strickler, 527 U.S. at 281-82, is not contrary to, or an unreasonable application of,
clearly established federal law, or an unreasonable determination of the facts. 28
U.S.C. § 2254(d)(1)-(2).
Abdul-Salaam also argues that the materiality prong of Brady is met with
both the Clifton and new blood evidence because both pieces of evidence were
material for impeachment purposes, not just as exculpatory evidence. Even if we
were to find the Clifton and new blood evidence favorable to Abdul-Salaam for
impeachment purposes, we cannot escape our finding that this evidence is not
material or that its inclusion would not have produced a different result. The Court
does recognize that additional, non-cumulative impeachment evidence may have
the potential to be material under Brady. See Lambert v. Beard, 633 F.3d 126,
134-35 (3d Cir. 2011), rev’d on other grounds. As the Third Circuit Court has
recognized, “‘[c]onfidence in the outcome is particularly doubtful when the
withheld evidence impeaches a witness whose testimony is uncorroborated and
58

essential to the conviction.’” Id. at 134 n.3 (quoting Norton v. Spencer, 251 F.3d
1, 9 (1st Cir. 2003)). However, even where withheld evidence is found to be
favorable for impeachment purposes, unless the evidence is also found to be
material, the prosecution’s failure to disclose the evidence does not constitute a
Brady violation. Again, “evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985).
Here, as to the Clifton evidence, Mr. Clifton’s account to Detective
Harlacker of being unable to identify Abdul-Salaam as the passenger in the vehicle
the night before the robbery and shooting, and his testimony at the PCRA hearing
that Abdul-Salaam was not the passenger, could not have been used to cast doubt
on the testimony of the eyewitnesses on the scene because Mr. Clifton’s encounter
with Mr. Anderson and the unknown passenger in the vehicle occurred many hours
before the robbery and shooting. Nothing Mr. Clifton stated to either Detective
Harlacker in January 1995 or during the PCRA hearing about the presence of
another individual in the vehicle brings into serious question Abdul-Salaam’s
presence that morning in New Cumberland at the coin shop or on the street
encountering Officer Cole, as overwhelming evidence of his presence was
59

demonstrated. Thus, the Court rejects Abdul-Salaam’s contention that the Clifton
evidence could have been used to discredit testimony of the eyewitnesses on the
scene and therefore his evidence is exculpatory under Brady.
As to the new blood evidence, even if the new evidence was used in an
attempt to impeach the credibility of Mr. Bloser or to call into question whether
Abdul-Salaam was in the getaway vehicle, in light of the other evidence of AbdulSalaam’s guilt, we do not believe a jury would have been reasonably troubled by
the lack of blood evidence linking Abdul-Salaam to the getaway vehicle.
Importantly, there was other significant testimony from Officer Smith, as
aforestated, placing Abdul-Salaam in the getaway vehicle such that the jury had an
independent basis upon which to rely that was fully separate from Mr. Bloser’s
testimony. Thus, the Court is not persuaded that this blood evidence was favorable
as impeachment or exculpatory evidence under Brady.
In sum, in light of the overwhelming evidence of Abdul-Salaam’s guilt, the
Court finds that even if the Commonwealth had produced the Clifton and new
blood evidence, it cannot be said that a reasonable probability exists that the
outcome of the trial would have been different. Therefore, the Pennsylvania
Supreme Court’s decision on these issues is not contrary to, or an unreasonable
application of, clearly established federal law, nor is it an unreasonable
60

determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). Habeas relief on
Claims I and IV will be denied.
B.

Claim II - Petitioner was denied due process of law when
unreliable identification testimony was admitted against him at
trial, when the identifications were made under highly suggestive
circumstances and where the identifying witness did not possess
an independent source.

Abdul-Salaam argues that his right to due process was violated when various
identification testimony was admitted at trial, despite that testimony being a
product of impermissibly suggestive influences and identification procedures that
created a significant risk of misidentification. In support, he claims that “[a]
review of the totality of the circumstances surrounding the identifications reveals
that the identifying witnesses who were subjected to these suggestive influences
had no reliable independent basis upon which to ground their identifications of
Petitioner.” (Doc. 8-2 at 21.)
The federal standard for evaluating the reliability of identification evidence
was articulated by the United States Supreme Court in Neil v. Biggers, 409 U.S.
188 (1972). In Neil, the Court held that “convictions based on eye-witness
identification at trial following a pretrial identification by photograph will be set
aside on that ground only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of
61

irreparable misidentification.” Id. at 196-97 (quoting Simmons v. United States,
390 U.S. 377, 384 (1968)). The Court observed that the central question in this
analysis is “whether under the ‘totality of the circumstances’ the identification was
reliable even though the confrontation procedure was suggestive” and specified
that the factors to be considered are “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of
the witness’ prior description of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of time between the crime and
the confrontation.” Id. at 199-200.
In considering the instant identification claim, the Pennsylvania Supreme
Court articulated a standard which is clearly in line with prevailing federal law, as
it recited the Biggers factors as the guideposts it would use in assessing the
propriety of the witness identifications:
We recently held that in-court identifications, despite impermissibly
suggestive pre-trial procedures, are admissible if there exists an
independent basis for the identifications. In Commonwealth v. Carter,
537 Pa. 233, 643 A.2d 61 (1994), we set forth the analysis to be used
when considering the issue of an impermissibly suggestive
identification. To allow an in-court identification following a
suggestive pre-trial identification, the Commonwealth must establish,
by clear and convincing evidence, that the identification was not a
product of the events occurring between the time of the crime and the
in-court identification. Carter, 537 Pa. at 253, 643 A.2d at 71.
Therefore, an in-court identification will be permitted if, considering
the totality of the circumstances, the in-court identification “had an
62

origin sufficiently distinguishable to be purged of the primary taint.”
Id.
In determining whether an independent basis exists for the
identification, the factors to be considered in this determination are:
“(1) the opportunity of the witness to view the criminal at the time of
the crime; (2) the witness’ degree of attention; (3) the accuracy of the
witness’ prior description of the criminal; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the length of
time between the crime and the confrontation.” Id., at 253-54, 643
A.2d at 71.
Abdul-Salaam-I, 678 A.2d at 349.
In the instant petition, Abdul-Salaam points out that, although trial counsel
challenged the identifications of each of the five witnesses (Rishel, Michaels, Tran,
Gerberich, and Howie), both the trial court and the Pennsylvania Supreme Court
found suggestivity as to all witnesses, but only made independent source findings
with regard to Rishel and Michaels. (Doc. 8-2 at 29.) As a result, Abdul-Salaam
argues that: (1) this Court must credit the state court’s finding of suggestivity as to
all witnesses; (2) this Court must conduct a de novo review of whether an
independent basis exists for the identifications made by witnesses Tran, Gerberich,
and Howie; and (3) the state court’s independent source findings as to witnesses
Rishel and Michaels were contrary to clearly established federal law and involved
an unreasonable application of the facts in light of available evidence. (Id. at 2930.)
63

Initially, the Court agrees with Abdul-Salaam as to the state court’s
treatment of the suggestivity as to all witnesses. Specifically, the Pennsylvania
Supreme Court stated, “the trial court noted that the one-on-one confrontation at
the preliminary hearing as well as certain pre-trial publicity may have been
suggestive. . . . Our review of the record confirms the trial court’s findings.”
Abdul-Salaam-I, 678 A.2d at 349-350. The Court will credit the state court’s
decision on that issue. See 28 U.S.C. § 2254(e).
In crediting the state court’s finding on suggestivity, we are left with a
consideration of whether an independent basis exists for the five witness
identifications. The Pennsylvania Supreme Court addressed this issue at length as
follows:
Mindful that our scope of review is limited to a determination of
whether sufficient evidence has been offered to establish an
independent basis for the in-court identification, we believe that the
trial court’s determination concerning the in-court identifications was
supported by sufficient evidence. [Commonwealth v. Carter], 537 Pa.
233, 254, 643 A.2d 61, 71 (Pa. 1994)].
In the case sub judice, the trial court noted that the one-on-one
confrontation at the preliminary hearing as well as certain pre-trial
publicity may have been suggestive. However, the trial court
reviewed the testimony of various eyewitnesses to the crime. The
court determined that each of the witnesses viewed the Appellant in
extremely favorable circumstances. Further, the trial court credited
the testimony of their ability to identify Appellant and that their
identification had an independent basis, separate from any taint. Our
review of the record confirms the trial court’s findings.
64

Appellant specifically objects to the identifications made by Mr.
Rishel and Mr. Michaels, both of whom testified at the preliminary
hearing. The testimony at trial by Mr. Rishel, the owner of the coin
shop, established that he had more than sufficient opportunity to
observe Appellant. Mr. Rishel observed Appellant as he entered the
coin shop. Mr. Rishel engaged in conversation with Appellant,
watched him draw a revolver and ultimately knock Mr. Rishel to the
ground. Mr. Rishel testified that his view of Appellant was
unimpeded and that he viewed Appellant on a sunny day in a well lit
room at close range. (N.T. 3/9/95 p. 96.) Mr. Rishel was unwavering
in his identification of Appellant. The period of time between the
crime and the initial confrontation at the preliminary hearing was only
ten days, although the period of time between the crime and the trial
was seven months. Although the description of Appellant given to
police was somewhat general (N.T. 3/3/95 p. 132), and the encounter
somewhat brief, we find that there was sufficient evidence to support
the trial court’s determination that Mr. Rishel’s in-court identification
of Appellant had a basis independent of any suggestive encounter
between the crime and the in-court identification.
Mr. Michaels, the owner of a barber shop on Fourth Avenue, testified
at trial that on August 19, 1994, he watched Anderson emerge from
Maple Alley. He observed Officer Cole’s arrival, Officer Cole’s
attempt to arrest Anderson, Appellant’s later emergence from Maple
Alley firing at Officer Cole, and Anderson and Appellant’s escape.
(N.T. 3/10/95 pp. 86-87, 89. 94-96, 104-05, and 106). Later that day,
Mr. Michaels immediately announced to a friend when watching a
newscast showing Appellant, “That is the shooter.” (N.T. 3/10/95 p.
112). Mr. Michael[s] gave a detailed description of Appellant. (N.T.
3/10/95 pp. 101, 112). As to the level of certainty exhibited by Mr.
Michael[s], he identified Appellant and testified that his in-court
identification was based solely on his observations at the scene of the
crime. (N.T. 3/10/95 p. 113). Again, we believe that there was
sufficient evidence that Mr. Michaels’ in-court identification of
Appellant was distinguishable from any taint.
Although Appellant does not specifically object to other eyewitnesses’
identification of Appellant, he argues generally that the circumstances
65

under which the eyewitnesses observed the perpetrators of the crime
were such as to make the identifications unreliable. Our review of the
record confirms the trial court’s determination that the
Commonwealth established that the other witnesses who testified
were not induced by events occurring between the time of the crime
and the in-court identification. Appellant was given the opportunity
to, and did cross-examine each of the witnesses as to the accuracy of
their identification. Therefore, we find Appellant’s first issue on
appeal to be without merit.
Abdul-Salaam-I, 678 A.2d at 349-50.
As stated above, Abdul-Salaam contends that we should conduct a de novo
review of whether an independent basis exists for the identifications made by
witnesses Tran, Gerberich, and Howie because neither the trial court nor the
Pennsylvania Supreme Court made any such findings in their opinions. Upon
review of the record, the Court disagrees that we should conduct a de novo review
with respect to these eyewitnesses. In the trial court’s February 10, 1995 opinion
and order addressing Abdul-Salaam’s omnibus pretrial motions, the trial court
stated:
We agree with the defendant that the one-on-one confrontation
between the defendants and the witnesses, as well as the fact that
certain of the witnesses saw the defendant(s) on an evening newscast,
might prove to be suggestive. Thus, it is incumbent upon the
Commonwealth to establish, by clear and convincing evidence, that
the identification was not induced by events occurring between the
time of the crime and the in-court identification.
(Trial Ct. Op. re. Ominbus Pretrial Motions 2/10/1995, Doc. 197-1 at 29) (citation
66

omitted). After setting forth the factors for determining whether an independent
basis for identification existed, the trial court provided this factual analysis:
Here, the witnesses included Dale Rishel. He was the coin store
operator who observed the defendants for a number of minutes at
close range. Mr. David Michaels and Mr. Vinh Tran were outside the
coin shop on the street and watched the entire event unfold from
beginning to end. They observed the incident in broad daylight. The
witnesses testified credibly that they were unwavering in their ability
to identify the perpetrator. There was no evidence of any impediment
in either their sight line or their vision. We are satisfied that the
Commonwealth has more than established an independent basis for incourt identification as far as these witnesses are concerned.
(Id. at 29-30.) Further, in his brief on direct appeal, Abdul-Salaam argued as
follows with respect to the eyewitness identifications:
All of the “eyewitnesses” testified that they had never seen the
perpetrator before or since the date of the crime. (NT Preliminary
Hearing, 20, 95.) However, after the inherently prejudicial
circumstances of the preliminary hearing “show up,” they claimed that
they could recognize and identify the Defendant. (NT Preliminary
Hearing, 9, 62.) The prejudice inherent in that in-court “show up”
was the direct result of the fact that the Defendant was forced to attend
a preliminary hearing without a prior determination of probable cause
to arrest.
With respect to Rishel and Michaels, the alleged eyewitnesses
made an identification of this Defendant at the preliminary hearing in
this case. (NT Preliminary Hearing, 9, 62.) The occurrence of that
one on one identification was itself unduly and impermissibly
suggestive, it compounded the taint which already existed by virtue of
the circumstances described above, and it was itself unreliable based
on these same circumstances and facts. Where there exists an
impermissible risk that a witness would be identifying the person
whom they saw at a pre-trial prejudicial “show up” procedure, and not
67

making an identification based upon their alleged recollection of the
date and time of the crime, the testimony should be excluded. The
pre-trial identification procedure was so infected by suggestiveness as
to give rise to a substantial likelihood of irreparable misidentification.
See, Commonwealth v. Sample, 468 A.2d 799 (Pa. Super. Ct. 1983).
Furthermore, where the circumstances under which the alleged
eyewitnesses observed the perpetrator of these crimes - - including
duration of observation, surrounding circumstances, and other factors
- - are such as to make any testimony about the identity of the
perpetrator fundamentally unreliable, the in court testimony should be
suppressed. The factors which apply in this case include the
following: prior to the day in question the alleged eyewitnesses had
never seen and did not know the alleged perpetrator; the alleged
eyewitnesses’ statements to the police which have included
descriptions of the perpetrator may have been inconsistent in material
respects with respect to those descriptions; the poor opportunity of the
witness to view the criminal at the time of the crime; the witness’s
degree of attention; the accuracy of this prior description of the
criminal; the level of certainty demonstrated at the confrontation; and
the time between the crime and the confrontation. See, e.g.,
Commonwealth v. Thompkins, 457 A.2d 925, 928 (Pa. Super. Ct.
1983); Manson v. Brathwait, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253
(1977). The “totality of the circumstances analysis” militates against
the admission of this alleged eyewitness identification.
Commonwealth v. Spiegal, 457 A.2d 531, 536 (Pa. Super. Ct. 1983).
(App. Direct Appeal Br., Doc. 197 at 19-21) (emphasis added). In light of the trial
court’s decision on Abdul-Salaam’s Omnibus Pretrial Motions, as well as AbdulSalaam’s subsequent argument on direct appeal, both of which make specific
references to witnesses Rishel and Michaels,17 but also refer to “all” eyewitnesses,
17

While the trial court does reference witness Tran, Abdul-Salaam’s direct appeal brief
makes no such reference. Applying a plain reading of the direct appeal brief, the Court finds that
Abdul-Salaam makes general assertions with respect to all eyewitnesses other than witnesses
68

this Court will not set aside the Pennsylvania Supreme Court’s analysis with
respect to the other witnesses raised here by Abdul-Salaam. Again, that court
noted that “[a]lthough Appellant does not specifically object to other eyewitnesses’
identification of Appellant, he argues generally that the circumstances under which
the eyewitnesses observed the perpetrators of the crime were such as to make the
identifications unreliable.” Abdul-Salaam-I, 678 A.2d at 350. Therefore, because
the Pennsylvania Supreme Court addressed this issue with respect to witnesses
Rishel, Michaels, Tran, Gerberich, and Howie, the Court will employ AEDPA’s
deferential standard of review in addressing Abdul-Salaam’s claim as to all these
witnesses.
Applying that deferential standard, the Court first recognizes that the
Pennsylvania Supreme Court determined that the identification procedure as to all
the eyewitnesses was unduly suggestive, but, based on the totality of the
circumstances, there was sufficient evidence to establish an independent basis for
the in-court identifications. After careful review of the record, the Court finds that
the Pennsylvania court’s determination was not contrary to or an unreasonable
application of federal law. 28 U.S.C. § 2254(d)(1). In particular, the court’s
determination that the identifications possessed sufficient aspects of reliability was

Rishel and Michaels.
69

not contrary to or an unreasonable application of Biggers. See Biggers, 409 U.S. at
199. As to witness Rishel, the state court evaluated Mr. Rishel’s testimony and
found that he had more than sufficient opportunity to observe Abdul-Salaam, and
that his view of Abdul-Salaam was unimpeded. The court also found that although
Mr. Rishel’s description of Abdul-Salaam to the police was somewhat general, and
that his encounter with Abdul-Salaam was somewhat brief, Mr. Rishel’s
identification of Abdul-Salaam was unwavering. In addition, the court noted that
the period of time between the crime and the trial was seven months, but the period
of time between the crime and the initial confrontation at the preliminary hearing
was only ten days. Turning to witness Michaels, the state court evaluated his
testimony and found that he actually witnessed Abdul-Salaam emerge from Maple
Alley and fire his weapon at Officer Cole, and later gave a detailed description of
him. The court found significant that when Mr. Michaels saw a newscast later that
day showing Abdul-Salaam, he immediately announced to a friend that AbdulSalaam was the shooter. Further, the court noted that Mr. Michaels clearly stated
that his in-court identification was based entirely on his observations of AbdulSalaam at the time of the crime. Finally, turning to the remaining witnesses, the
court reviewed their testimony and found that the identifications made were not
induced by events occurring between the time of the crime and the in-court
70

identifications. The court also noted that Abdul-Salaam cross-examined each of
the witnesses as to the accuracy of their identifications.
Consequently, under these circumstances, and recognizing that the state
court’s analysis clearly reflects its consideration of the Biggers factors, the Court
concludes that the state courts’ adjudication of this identification claim was not
contrary to, or an unreasonable application of, clearly established federal law. 28
U.S.C. § 2254(d). Further, Abdul-Salaam has not demonstrated by clear and
convincing evidence that the state court’s factual findings pertaining to any
witness’ testimony were incorrect, as required by 28 U.S.C. § 2254(e)(1).
Therefore, Abdul-Salaam is not entitled to habeas relief on this claim.
C.

Claim III - Petitioner received ineffective assistance of counsel
when trial counsel failed to make a sufficient, specific proffer to
support his request for the appointment of an eyewitness
identification expert, where eyewitness identification was crucial
to the case.

Abdul-Salaam argues that trial counsel was ineffective for failing to make a
sufficient and specific proffer to support his request for the appointment of an
eyewitness identification expert. Upon review, the Court will deny this claim as it
was not exhausted in the state courts prior to filing the instant federal petition.
The background of this claim is as follows. Prior to trial, Abdul-Salaam’s
trial counsel, Attorney Lappas, filed a pretrial motion in which he requested, inter
71

alia, the payment of expert witness fees for an expert in the “psychology of
eyewitness testimony.” (Defendant’s Brief in Support of Pre-Trial Motions, Doc.
11, Ex. 15.) In support, trial counsel offered the following reasoning for the
request:
Psychology of eyewitness testimony - - to testify as to the unreliability
of any eyewitness testimony which the court does not suppress. On
this point defense counsel notes that he does not believe that a
vigorous and exhaustive cross-examination will by itself suffice.
(Id.) In a January 20, 1995 order, the trial court denied trial counsel’s request for
the appointment of a psychologist to testify as to the unreliability of eyewitness
testimony. (In re: Motion for Payment of Expert Witness Expenses Order (Jan. 20,
1995), Doc. 11, Ex. 18.) On direct appeal, Abdul-Salaam, still represented by
Attorney Lappas, argued that the trial court erred in denying his motion for the
funding for an expert on eyewitness identification. The Pennsylvania Supreme
Court affirmed the trial court’s ruling, finding that an “expert on the psychology of
eyewitness identification was not necessary for the preparation of a defense.”
Abdul-Salaam-I, 678 A.2d at 352.
Abdul-Salaam did not raise the instant ineffective assistance of counsel
claim in the state courts. In his habeas petition, he contends that he did not raise
the claim in his PCRA petition because the substantive and underlying claim of
trial court error was denied by the Pennsylvania Supreme Court on direct appeal,
72

and therefore the related ineffectiveness claim “would have been deemed
‘previously litigated’” by the PCRA court. (Doc. 8-2 at 42) (emphasis added). In
opposition, the Commonwealth argues that this claim is unexhausted because
Abdul-Salaam failed to present it in his PCRA petition.
A review of this issue as presented in the habeas petition reveals that AbdulSalaam has not presented the federal ineffective assistance of counsel claim raised
here to any state court for review. Pursuant to § 2254(b)(1), exhaustion of state
court remedies is excused if there is “an absence of available State corrective
process[,] or . . . circumstances exist that render such process ineffective to protect
the rights of the applicant.” Courts use the term “futile” or “futility” in referring to
these exceptions to exhaustion. See, e.g., Lines v. Larkin, 208 F.3d 153, 162-63
(3d Cir. 2001). In Lines, the Third Circuit Court of Appeals identified one such
situation as “where a state’s highest court has ruled unfavorably on a claim
involving facts and issues materially identical to those undergirding a federal
habeas petition and there is no plausible reason to believe that a reply will persuade
that court to reverse its field.” Id. at 162 (quoting Allen v. Attorney Gen. of Me., 80
F.3d 569, 573 (1st Cir. 1996)).
In the instant petition, Abdul-Salaam argues in favor of this exception, that
is, that exhaustion of this claim would be futile “because the Pennsylvania
73

Supreme Court has already decided factually and procedurally indistinguishable
claims.” (Doc. 8 at 83 ¶ 162.) He adds:
Here, the state courts have clearly spoken to circumstances identical to
those at hand - that Petitioner has raised the predicate claim below,
and now, in light of subsequently appointed counsel, raises counsel’s
ineffectiveness with regard to his presentation of that claim. For this
reason, it would be futile to require the technical exhaustion of
returning to state court to have the claim rejected as barred by
Pennsylvania law. Accordingly, this issue is exhausted for federal
habeas purposes.
(Id. at 83 ¶ 163.)
The problem with Abdul-Salaam’s argument is that he is essentially asking
the Court to extend the futility doctrine to this ineffectiveness claim not presented
to the state courts on the speculative basis that there appears to be no possibility of
success on the merits of his claim in state court. However, as the Third Circuit
Court of Appeals has established, “likely futility on the merits does not excuse a
failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d
Cir. 2005). Here, Abdul-Salaam has not even afforded the state courts the
opportunity to consider his ineffectiveness claim “previously litigated” based on
the Pennsylvania Supreme Court’s disposition of the substantive and underlying
claim in Abdul-Salaam-I. To emphasize, this is not a case where the PCRA court
already denied a claim of ineffectiveness as “previously litigated” based on
disposition of the underlying claim. If that were the case, it is possible that we
74

could excuse exhaustion based on futility. See Hughes v. Beard, Civ. No. 06-250,
2012 WL 1569567, at *21 n.19 (E.D. Pa. Apr. 30, 2012) (finding PCRA court’s
denial of an ineffectiveness claim as “previously litigated” not to be a bar to
consideration of the claim). Rather, the Court must follow the Third Circuit
Court’s precedential statement in Parker, namely “that the exhaustion requirement
is not excused merely because a petitioner’s claim will likely be denied on the
merits in state court.” Parker, 429 F.3d at 63. To do otherwise is to turn the
exhaustion requirement on its head. As such, Abdul-Salaam’s ineffectiveness
claim here is unexhausted because the state courts have not yet had the opportunity
to review it, and therefore the Court cannot review this claim on the merits.
Notwithstanding the foregoing analysis, Petitioner would not be entitled to
relief, even if the Court were to consider the merits of Abdul-Salaam’s
ineffectiveness claim. In Abdul-Salaam-I, the Pennsylvania Supreme Court
resolved that underlying claim as follows:
Appellant argues that the trial court improperly denied his motions for
the payment of expert witness expenses with respect to an expert on
eyewitness identification. Appellant contends that as eyewitness
testimony was critical to the Commonwealth’s case, an expert in the
field of psychology of eyewitness testimony was necessary.
The decision to appoint an expert witness is within the sound
discretion of the trial court. The trial court’s determination will not be
disturbed except for a clear abuse of that discretion. [Commonwealth
v. Carter, 537 Pa. 233, 257, 643 A.2d 61, 73 (1994)]. However, in a
75

capital case such as this, a defendant is entitled to the assistance of
experts necessary to prepare a defense. Id.
Here, the trial court granted Appellant’s request for funding for
experts in the fields of ballistics, fingerprints, serology, and hair and
fiber analysis. However, the trial court denied Appellants request for
funds for experts in the fields of forensic pathology and the
psychology of eyewitness testimony, thereby finding such experts to
be unnecessary.
In the capital case of Commonwealth v. Simmons, 541 Pa. 211, 230,
662 A.2d 621, 630-31 (1995)[,] we recently addressed the issue of
whether the trial court’s exclusion of an expert in the field of
eyewitness identification was proper. As we stated in Simmons,
testimony concerning the reliability of eyewitness identification by
appellant’s expert “would have given an unwarranted appearance of
authority as to the subject of credibility, a subject which an ordinary
juror can assess. Moreover, appellant was free to and did attack the
witnesses’ credibility and point out inconsistencies of all the
eyewitnesses at trial through cross-examination and in his closing
argument.” Simmons, 541 Pa. at 230, 662 A.2d at 631.
Our analysis in Simmons is instructive for our determination of the
necessity of an expert in eyewitness testimony. For the reasons
offered in Simmons, we find that the trial court properly determined
that an expert on the psychology of eyewitness identification was not
necessary for the preparation of a defense, and that therefore, the trial
court properly denied Appellant’s request for expert witness fees.
Abdul-Salaam-I, 678 A.2d at 352. Here, the Pennsylvania Supreme Court
reasoned that, while a defendant is entitled to the assistance of experts “necessary
to prepare a defense” in a capital case, expert testimony on the reliability of
eyewitness identification in this capital case is not such “necessary” testimony.
Abdul-Salaam-I, 678 A.2d at 352. See also Washington v. Beard, Civ. No. 0776

3462, 2012 WL 1033526, at *2 n.3 (E.D. Pa. Mar. 28, 2012) (“Expert testimony
that eye-witness identification is not reliable is not admissible in Pennsylvania state
court.”) (citing Abdul-Salaam-I, 678 A.2d at 352); Commonwealth v. Selenski, 18
A.3d 1229, 1232-33 (Pa. Super. Ct. 2011) (acknowledging Pennsylvania’s “longstanding principle guarding the jury’s function of deciding credibility by
prohibiting expert testimony on the reliability of eyewitness identifications”);
Commonwealth v. Bormack, 827 A.2d 503, 512 (Pa. Super. Ct. 2003) (“Courts of
this Commonwealth have deemed [expert testimony on the unreliability of
eyewitness identification] inadmissible because it intrudes upon the jury’s
credibility determination.”); Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa.
1995) (affirming exclusion of expert on reliability of eyewitness identification as
“[s]uch testimony would have given an unwarranted appearance of authority as to
the subject of credibility, a subject which an ordinary juror can assess”);
Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993) (“Expert opinion may
not be allowed to intrude upon the jury’s basic function of deciding credibility.”).
Clearly, then, trial counsel cannot be found ineffective for failing to secure the
appointment of an expert on the reliability of eyewitness testimony, if such
testimony would not have been admissible. See Strickland, 466 U.S. at 691
(reasoning that counsel’s performance cannot be deficient based on a failure to
77

advance meritless claims).
Based on the foregoing discussion, Abdul-Salaam is not entitled to relief on
this claim. Further, Petitioner’s request for an evidentiary hearing on this issue is
denied.
D.

Claim V - Petitioner’s conviction resulted from the unavailability
at the time of trial of exculpatory evidence regarding the scientific
unreliability of fingerprint evidence. Moreover, since this
evidence was in the possession of the prosecution’s expert witness,
failure to disclose it violated due process.

Abdul-Salaam argues that his conviction was based on what new scientific
evidence has proven to be unreliable fingerprint evidence introduced at trial by the
Commonwealth, and the failure of the prosecution to disclose the infirmities in
such evidence violated due process of law.18 (Doc. 8-2 at 48-50; Doc. 8-3 at 1-2.)
Upon review, the Court will deny relief on this claim.
The background of this claim is as follows. At trial, Pennsylvania State
Police Sergeant Dennis Loose testified that the latent print recovered from an
extension cord wrapper found at the crime scene matched the ink impressions

18

In his petition, Abdul-Salaam does not make this argument relating to failure to
disclose beyond simply stating it in a caption. Insofar as he argues that the fingerprint evidence
should not be considered in assessing the materiality of the due process violations related to
Claims I and IV, we have already addressed that argument. See supra Section III.A.4.b, at 54
n.11.
78

taken from Abdul-Salaam.19 (Trial NT, 3/14/1995, at 152-53.) Also at trial,
Federal Bureau of Investigation Specialist Michael Wieners opined that AbdulSalaam’s inked impression matched two latent impressions recovered from the
cord wrapper.20 (Trial NT, 3/15/1995, at 26.) Abdul-Salaam now claims that this
testimony on fingerprint evidence was unreliable based on three reports published
after Abdul-Salaam’s trial: (1) a National Institute of Justice Report - FORENSIC
SCIENCES: REVIEW OF STATUS AND NEEDS (1999); (2) a Department of Justice,
National Institute of Justice Solicitation: FORENSIC FRICTION RIDGE (FINGERPRINT)
EXAMINATION VALIDATION STUDIES (2000); and (3) a National Academy of
Sciences report - STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A
PATH FORWARD (2009).
Abdul-Salaam presented this claim in the state courts. The Pennsylvania
Supreme Court addressed it on the merits in its disposition of Abdul-Salaam’s
Second PCRA petition. The state supreme court concluded as follows:
Appellant raises a claim challenging the adequacy of the

19

Sergeant Loose was questioned on direct examination on his qualifications and did
state that he has previously testified as an expert in fingerprint identification, but was neither
formally offered by the Commonwealth nor accepted by the court as an expert in fingerprint
identification. (See Trial NT 3/14/1995, at 144-47.)
20

Mr. Weiners was questioned on direct and cross-examination on his qualifications, and
ultimately offered by the Commonwealth and accepted by the court as an expert in fingerprint
identification. (Trial NT 3/15/1995, at 18.)
79

fingerprint evidence. According to Appellant, recent scientific
disclosures undermine the reliability and admissibility of fingerprint
evidence. Thus, Appellant is attempting to craft an after-discovered
evidence claim that fits within an exception to the jurisdictional time
bar. See 42 Pa.C.S. § 9545(b)(1)(ii).
Appellant’s argument conveniently overlooks that even in the
absence of such fingerprint evidence, there was overwhelming
eyewitness testimony placing Appellant at the scene of the crime. At
least four persons who were at the scene of the crime testified that
Appellant shot the police officer. See Commonwealth v. AbdulSalaam, 544 Pa. 514, 678 A.2d 342, 346 (1996). Thus, even if we
were to accept Appellant’s argument regarding the fingerprint
evidence, Appellant is simply unable to show that the evidence would
have altered the outcome of the trial. 42 Pa.C.S. § 9543(a)(2)(vi).
Abdul-Salaam-III, 812 A.2d at 503. Further, when the Pennsylvania Supreme
Court affirmed the denial of Abdul-Salaam’s Third PCRA petition, it noted
towards the conclusion of its opinion:
Appellant raises a second claim on appeal, unrelated to the Brady
claim Judge Jones directed him to exhaust. This claim alleges that a
“new” National Academy of Science Report demonstrated the
unreliability of the fingerprint evidence introduced at his trial.
Appellant attacked the same fingerprint evidence, albeit premised
upon different “new” evidence, in the appeal from the denial of his
first serial PCRA petiton in Abdul-Salaam III. This Court rejected the
serial claim as follows: “Appellant’s argument conveniently overlooks
that even in the absence of such fingerprint evidence, there was
overwhelming eyewitness testimony placing Appellant at the scene of
the crime. At least four persons who were at the scene of the crime
testified that Appellant shot the police officer. Thus, even if we were
to accept Appellant’s argument regarding the fingerprint evidence,
Appellant is simply unable to show that the evidence would have
altered the outcome of the trial.” Abdul-Salaam III, 812 A.2d at 503.
Since our disposition in Abdul-Salaam III turned on appellant’s failure
80

to demonstrate prejudice, his present claim, alleging a new basis for
the same theory, does not remotely affect the prejudice assessment
finally litigated during his second collateral proceedings and is plainly
frivolous. Cf. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d
294, 320 (2008) (conclusion on direct appeal that error was harmless
because of overwhelming evidence of guilt undermined and ultimately
defeated appellant’s claim of ineffectiveness on collateral review
because appellant could not demonstrate prejudice); Commonwealth v.
Collins, 585 Pa. 45, 888 A.2d 564, 574-75 (2005).
Abdul-Salaam-IV, 42 A.3d at 987 n.7. Because the state courts addressed this
claim on the merits, we will review it under the AEDPA standard of review.
To succeed in this claim, Abdul-Salaam must show that the admission of the
testimony on the fingerprint evidence “undermined the fundamental fairness of the
entire trial,” Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001), because “the
probative value of the [fingerprint] evidence, though relevant, is greatly
outweighed by the prejudice to the accused from its admission.” Han Tak Lee v.
Glunt, 667 F.3d 397, 403 (3d Cir. 2012) (quoting Bisaccia v. Attorney Gen., 623
F.2d 307, 313 (3d Cir. 1980)). Here, the Pennsylvania Supreme Court denied this
claim on the basis that Abdul-Salaam failed to demonstrate prejudice. AbdulSalaam-III, 812 A.2d at 503. Specifically, the court determined that, in light of the
overwhelming evidence placing Abdul-Salaam at the scene of the crime, even if
the fingerprint evidence at issue was to be excluded, the outcome of the trial would
not have been altered. Id. Upon review, we agree with the Pennsylvania Supreme
81

Court. 28 U.S.C. § 2254(d)(2). As the state court found, in light of the
overwhelming evidence of Abdul-Salaam’s involvement in the crimes, the Court
finds that even had the fingerprint evidence been excluded as unreliable, it cannot
be said that a reasonable probability exists that the outcome of the trial would have
been different due to the overwhelming evidence placing Abdul-Salaam at the
scene. Thus, Abdul-Salaam has not shown that the fingerprint evidence’s inclusion
undermined the fundamental fairness of the entire trial on the basis that the
probative value of the fingerprint evidence is greatly outweighed by the prejudice
to Abdul-Salaam from its admission. See Han Tak Lee, 667 F.3d at 403.
Therefore, the Pennsylvania Supreme Court’s decision on this issue is not contrary
to, or an unreasonable application of, clearly established federal law, nor is it an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). Habeas
relief on this claim will be denied.
E.

Claim VI - The jury’s finding of the (d)(9) aggravating
circumstance, that Petitioner had a “significant history of felony
convictions involving the use or threat of violence to the person”
violated Petitioner’s rights in multiple respects.

Abdul-Salaam argues that the jury’s finding of the (d)(9) “significant
history” aggravating circumstance violated his constitutional rights in that the
aggravating circumstance is facially vague and, in this case, was impermissibly
found based upon juvenile “adjudications” rather than “convictions.” In addition,
82

he claims that his trial and appellate counsel were ineffective for failing to litigate
this claim. Upon review, the Court will deny relief on this claim.
The background of this claim is as follows. Among the four aggravating
circumstances found by the jury in the sentencing phase was that Abdul-Salaam
had a “significant history of felony convictions involving the use or threat of
violence to the person” pursuant to 42 Pa. Cons. Stat. § 9711(d)(9).21 During the
sentencing phase, the Commonwealth had offered the following evidence in
support of the “significant history” aggravating circumstance: (1) a juvenile
delinquency adjudication dated March 31, 1986, from Northampton County,
Pennsylvania, relating to charges of robbery and conspiracy when Petitioner was
age 15; (2) a juvenile delinquency adjudication dated January 23, 1987, from
Lehigh County, Pennsylvania, relating to charges of robbery, assault, and theft
when Petitioner was age 16; (3) a juvenile delinquency adjudication dated
February 20, 1987, from Lehigh County, Pennsylvania, relating to a charge of

21

The full text of this aggravating circumstance is:

(d) Aggravating circumstances. Aggravating circumstances shall be limited to the
following:
***
(9) The defendant has a significant history of felony convictions involving
the use or threat of violence to the person.
42 Pa. Cons. Stat. § 9711(d)(9).
83

assault when Petitioner was age 16; and (4) a criminal conviction dated February 1,
1989, from Cumberland County, Pennsylvania, on a charge of robbery when
Petitioner was age 18. (Sentencing NT 3/16/1995, at 53.) At a sidebar discussion
before the jury heard testimony, defense counsel objected to the use of the juvenile
adjudications in support of the “significant history” aggravator. (Id. at 5-11.)
However, counsel acknowledged that under Commonwealth v. Baker, 614 A.2d
663 (Pa. 1992), the law in Pennsylvania is settled that juvenile acts are admissible
for sentencing purposes in a capital proceeding, and the trial court overruled his
objection. (Sentencing NT 3/16/1995, at 11.) As a result, the jury heard evidence
of the previous juvenile adjudications, and in its charge to the jury the trial court
instructed the jury to consider, inter alia, whether the Commonwealth had proven
the aggravating circumstance “that the defendant has a significant history of felony
convictions involving the use or threat of violence to the person” beyond a
reasonable doubt. (Id. at 113.) The trial court added:
Now, in this regard the Commonwealth did make argument to you
concerning undertaking the career in armed robbery. And I make the
observation to you that there is no evidence that the prior robberies
involved any particular kind of weapon, though I add that in this case
and in the matter that you heard and as to which you rendered a
verdict yesterday there was a firearm that was used.
(Id. at 114.) After deliberation, the jury found all four (4) aggravating factors,
including the “significant history” aggravator, and one (1) mitigating circumstance,
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and thus handed down the penalty of death. (Id. at 121-22.)
Abdul-Salaam raised this claim in his PCRA petition and on appeal to the
Pennsylvania Supreme Court. However, the Pennsylvania Supreme Court deemed
this claim waived because Petitioner could have raised it in his direct appeal but
failed to do so. Abdul-Salaam-II, 808 A.2d at 560. Thus, we will review this
claim de novo.
1.

“Significant History” Aggravator as Vague

As stated above, Abdul-Salaam first contends that the § 9711(d)(9)
aggravating circumstance is unconstitutionally vague on its face in violation of the
Eighth Amendment. An aggravating circumstance is unconstitutionally vague
when “the challenged provision fails adequately to inform juries what they must
find to impose the death penalty and as a result leaves them and appellate courts
with the kind of open-ended discretion which was held invalid in Furman.”22
Maynard v. Cartwright, 486 U.S. 356, 362 (1988).
In support of his contention that § 9711(d)(9) is unconstitutionally vague,
Abdul-Salaam cites three state supreme court cases from outside Pennsylvania.
See State v. David, 468 So. 2d 1126, 1129-30 (La. 1984) (invalidating an
22

Briefly, in Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court
held that Georgia’s then-standardless capital punishment statute was being applied in an
arbitrary and capricious manner, as there was no principled means provided to distinguish those
that received the penalty from those that did not. Id., 408 U.S. at 310, 311.
85

aggravating circumstance based on the defendant’s “significant prior history” of
criminal activity); Gall v. Commonwealth, 607 S.W.2d 97, 111 n.8 (Ky. 1980)
(invalidating an aggravating circumstance based on the defendant’s “substantial
history” of serious assaultive criminal convictions); Arnold v. State, 224 S.E.2d
534 (Ga. 1976) (same). In addition, Abdul-Salaam attempts to distinguish Proffitt
v. Florida, 428 U.S. 242 (1976), in which the United States Supreme Court
rejected a vagueness challenge to a mitigating circumstance in Florida’s death
penalty statute that permitted a sentencing jury to consider that a defendant had “no
significant history of prior criminal activity.” Petitioner posits that because
mitigating circumstances do not perform the narrowing function of determining
who is eligible for the death penalty unlike aggravating circumstances, the Court’s
decision in Proffitt is “simply inapposite” to this claim and cannot be binding on
our determination of the constitutionality of Pennsylvania’s aggravating
circumstance at issue here. However, we do not read the Proffitt Court’s analysis
on this matter as making the distinction as argued by Abdul-Salaam. See Holland
v. Horn, 150 F. Supp. 2d 706, 776 (E.D. Pa. 2001) (rejecting the petitioner’s
interpretation of Proffitt as inapposite to vagueness challenge to § 9711(d)(9)
aggravator). In explaining its decision to uphold Florida’s mitigating circumstance
statutory provision, the Proffitt Court stated:
86

While the various factors to be considered by the sentencing
authorities do not have numerical weights assigned to them, the
requirements of Furman are satisfied when the sentencing authority’s
discretion is guided and channeled by requiring examination of
specific factors that argue in favor of or [against] imposition of the
death penalty, thus eliminating total arbitrariness and capriciousness
in its imposition. The directions given to judge and jury by the
Florida statute are sufficiently clear and precise to enable the various
aggravating circumstances to be weighed against the mitigating ones.
As a result, the trial court’s sentencing discretion is guided and
channeled by a system that focuses on the circumstances of each
individual homicide and individual defendant in decided whether the
death penalty is to be imposed.
Proffitt, 428 U.S. at 258. Further, the Pennsylvania Supreme Court has repeatedly
applied Proffitt in finding that the § 9711(d)(9) is constitutional. See, e.g.,
Commonwealth v. Fahy, 516 A.2d 689, 698 (Pa. 1986) (“We find no basis . . . to
ignore the holding[ ] of Proffitt . . . . Appellant’s contention that 42 Pa. C.S. §
9711(d) is vague and overbroad is dismissed as being meritless.”); Commonwealth
v. Holcomb, 498 A.2d 833, 854 (Pa. 1985) (“[Section 9711(d)(9)] as here
interpreted and applied does sufficiently channel jury consideration of the factors
which warrant the imposition of the death penalty.”). Abdul-Salaam has cited to
no Supreme Court cases that would require a different outcome. As a result, and in
light of the federal and state court precedent, Abdul-Salaam has failed to establish
that the § 9711(d)(9) aggravator is unconstitutionally vague and thus violates the
Eighth Amendment. See Holland, 150 F. Supp. 2d at 775-76 (finding
87

Pennsylvania Supreme Court’s denial of petitioner’s vagueness claim regarding
§ 9711(d)(9) is not contrary to, or an unreasonable application of, clearly
established federal law). Abdul-Salaam is not entitled to relief on this subclaim.
2.

“Significant History” Aggravator Based on Juvenile
Adjudications Rather Than Convictions

Abdul-Salaam also argues that the § 9711(d)(9) aggravator was
unconstitutionally applied in his case because the jury was permitted to consider
not only his one previous conviction, but also three previous juvenile
adjudications. It is Abdul-Salaam’s position that, at the time of his trial in 1995,
Pennsylvania law was “inconsistent” on the question of whether juvenile
adjudications could be used as part of the significant history aggravator.
Contrary to Abdul-Salaam’s assertion, at the time of his trial, Pennsylvania
law was clear on the subject of whether to include juvenile adjudications in a
capital sentencing proceeding. In Commonwealth v. Baker, 614 A.2d 663 (Pa.
1992), the Pennsylvania Supreme Court held that, for evidentiary purposes during
a capital sentencing proceeding, juvenile adjudications are admissible to establish a
defendant’s “sgnificant history of felony convictions involving the use or threat of
violence to the person.” 42 Pa. Cons. Stat. § 9711(d)(9). The court reasoned that:
Pennsylvania adheres to a system of individualized sentencing which
must explore the defendant’s prior behavior and dangerousness before
sanctions are imposed. For the care of capital sentencing, indeed, is
88

“a function of character analysis . . . and the central idea of the present
sentencing status is to allow a jury to take into account such relevant
information, bearing on a defendant’s character and record, as is
applicable to the task of considering the enumerated aggravating
circumstances.”
Baker, 614 A.2d at 676 (quoting Commonwealth v. Beasley, 479 A.2d 460, 465
(Pa. 1984)). The court also recognized the limitations of its holding:
[W]hile the delinquent record could not be used as “evidence . . . in
another court,” to “deprive the Courts of the right to be informed of
and to consider the history and background of the person subject to
sentence may result in sentences which are unjust and unfair to both
society and defendants.”
Baker, 614 A.2d at 676 (quoting Commonwealth ex rel. Hendrickson v. Myers, 144
A.2d 367, 371 (1958)). The holding of Baker has subsequently been upheld in
Pennsylvania. See Commonwealth v. Birdsong, 24 A.3d 319, 348-49 (Pa. 2011);
Commonwealth v. Moore, 937 A.2d 1062, 1068 (Pa. 2007); Commonwealth v.
Carson, 913 A.2d 220, 274 (Pa. 2006).23 Therefore, in light of the law established
at the time of Abdul-Salaam’s trial, it is clear that the trial court’s decision to
follow precedent and overrule defense counsel’s objection to the introduction of
Abdul-Salaam’s juvenile adjudications was not in error. There is no violation of
the Eighth Amendment here, and thus habeas relief on this subclaim will be denied.
23

Following the state court’s decision in Baker, and before Myers, Birdsong, Moore, and
Carson, the Pennsylvania General Assembly amended the Juvenile Act to expressly authorize
the admission of juvenile adjudications into evidence if the commission of the delinquent act
would be admissible if committed by an adult. See 42 Pa. Cons. Stat. § 6354(b)(4).
89

3.

“Notice” of Use of Juvenile Adjudications for Capital
Sentencing’

Abdul-Salaam also argues that his sentence violated due process when he
did not receive “notice” that his juvenile adjudications could be used in the
“significant history” aggravator because at the time he received those adjudications
(in 1987 and 1989), the law was clear that juvenile adjudications could not be used
to establish the § 9711(d)(9) aggravator. The Court again turns for guidance to the
Pennsylvania Supreme Court’s decision in Baker.
In Baker, the Pennsylvania Supreme Court set forth the state of the law prior
to its decision as follows:
The Commonwealth established a separate court with exclusive
jurisdiction over accused minors in 1933. Up to that time, youthful
offenders were tried equally with adults in the Quarter Sessions
Courts. Act of June 2, 1933, P.L. 1933, 11 P.S. § 261. Section 19
provided:
No order made by any juvenile court shall operate to
impose any of the civil disabilities ordinarily imposed by
the criminal law of the Commonwealth, nor shall any
child be deemed to be a criminal by reason of any such
order or be deemed to have been convicted of crime. The
disposition of a child or any evidence given in a juvenile
court shall not be admissible as evidence against the child
in any case or proceeding in any other court. (Footnote
omitted).
The contemporary counterpart appears in 42 Pa. C.S. 6354:[ ]
Section 6354. Effect of adjudication
90

(a) General rule. – An order of disposition or
other adjudication in a proceeding under this chapter is
not a conviction of crime and does not impose any civil
disability ordinarily resulting from a conviction or
operate to disqualify the child in any civil service
application or appointment.
(b) Effect in subsequent judicial matters. –
The disposition of a child under this chapter may not be
used against him in any proceeding in any court other
than a subsequent juvenile hearing, whether before or
after reaching majority, except:
(1) in dispositional proceedings after
conviction of a felony for the purposes of a presentence
investigation and report.
Both this Court and the Superior Court found occasion to rule
on the issue of whether a record of delinquency could be employed for
the determination of sentence of an adult under the Act of 1933, and
in each instance of review, these tribunals determined that the juvenile
acts indeed were admissible for that purpose. Our seminal case on
point is Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224,
144 A.2d 367 (1958), where the majority held (Justice Musmanno
dissenting on the grounds that the juvenile record was unclear),
specifically addressing Section 19, that while the delinquent record
could not be used as “evidence . . . in another court,” to “deprive the
Court of the right to be informed of and to consider the history and
background of the person subject to sentence may result in sentences
which are unjust and unfair to both society and defendants.” Myers,
393 Pa. at 231, 144 A.2d at 371 (affirming the Superior Court’s
holding that the “judge was entitled to all of the material facts to
inform him as to what kind of offender he was dealing with to assist
him in determining the appropriate penalty.” 182 Pa. Superior Ct.
169, 173-74, 126 A.2d 485, 486-87 [1956]). The Superior Court in
Myers, in fact, baldly concluded that the statute was not applicable to
prevent the sentencing judge from considering the defendant’s
juvenile court record. 182 Pa. Superior Ct. at 174, 126 A.2d at 487.
The rationale behind both decisions in Myers derived from our
91

previous ruling in Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50
(1940), where we settled on the broader principle that sentencing
judges have wide latitude in considering facts, “regardless of whether
such facts are produced by witnesses whom the court sees and hears.”
Petrillo was a death case. Petrillo’s principle was applied in the same
manner in Commonwealth v. Johnson, 348 Pa. 349, 354, 35 A.2d 312,
314 (1944). Moreover, the Superior Court applied Petrillo to the
1933 Act and approved the use of juvenile records as sentencing
considerations. See, Commonwealth ex rel. Miller v. Maroney, 179
Pa. Superior Ct. 305, 116 A.2d 755 (1955); Commonwealth ex rel.
Yeschenko v. Keenan, 179 Pa. Superior Ct. 145, 115 A.2d 386 (1955);
and Commonwealth ex rel. Czarnecki v. Stitzel, 179 Pa. Superior Ct.
80, 115 A.2d 805 (1955).
More recent decisions by the Superior Court have affirmed
uniformly this rule. Commonwealth v. Woodward, 368 Pa. Superior
Ct. 363, 534 A.2d 478 (1987); allocatur denied, 520 Pa. 575, 549 A.2d
135 (1988); Commonwealth v. Krum, 367 Pa. Superior Ct. 511, 533
A.2d 134 (1987); Commonwealth v. Morio, 302 Pa. Superior Ct. 407,
448 A.2d 1106 (1982); and Commonwealth v. Allen, 287 Pa. Superior
Ct. 88, 429 A.2d 1113 (1981) (citing Myers).
Baker, 614 A.2d at 675-76. Given this state of the law with respect to the use of
juvenile adjudications in criminal sentencing matters prior to Baker, the Court
rejects Abdul-Salaam’s argument related to the inconsistent application of the
§ 9711(d)(9) aggravator to juvenile adjudications. Nor is the Court convinced that
the Baker decision and its progeny have expanded the § 9711(d)(9) aggravator to
the point that Abdul-Salaam was subjected to an ex post facto and therefore
unconstitutional change in the law. Therefore, Abdul-Salaam’s right to due
process with respect to notice has not been violated here, and habeas relief on this
92

subclaim will be denied.
Moreover, as the Court has determined that all three subclaims with respect
to the § 9711(d)(9) aggravator are meritless, the ineffective assistance of counsel
claim also fails. See Strickland, 466 U.S. at 691 (reasoning counsel’s performance
cannot be deficient based on a failure to advance meritless claims). Again, as
found supra, Abdul-Salaam’s entire claim here will be denied.
F.

Claim VII - Petitioner’s death sentence must be vacated because
the arbitrary “proportionality review” performed by the
Pennsylvania Supreme Court violated his right to due process and
denied him the meaningful appellate review of death penalty cases
constitutionally mandated by the Eighth Amendment.

At the time of Abdul-Salaam’s direct appeal of his death sentence in 1995,
the Pennsylvania Supreme Court was statutorily required to determine whether his
sentence was “excessive or disproportionate to the penalty imposed in similar
cases, considering both the circumstances of the crime and the character and record
of the defendant.” 42 Pa. Cons. Stat. § 9711(h)(3)(iii) (1992). Abdul-Salaam
argues that the Pennsylvania Supreme Court failed to provide him with a
meaningful proportionality review because the database relied upon by the court
was fundamentally flawed and inaccurate, and that he had no notice or opportunity
to meaningfully participate in the Pennsylvania Supreme Court’s review, thereby
violating his right to due process.
93

Abdul-Salaam raised this claim in his PCRA petition, (Doc. 197, Vol. 1, Ex.
4), and the PCRA court denied it. Further, the Pennsylvania Supreme Court
refused to consider the merits of this claim upon appeal from the PCRA court
decision, finding that it was waived because counsel failed to raise it on direct
appeal. Abdul-Salaam-II, 808 A.2d at 560. Therefore, this Court will review this
claim de novo.
The United States Constitution does not require state appellate courts to
engage in proportionality review in capital cases, Pulley v. Hicks, 465 U.S. 37,
50–51 (1984), and it is not the “province of a federal habeas court to reexamine
state-court determinations on state court questions.” Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). Further, it is “unclear whether, under Third Circuit law, a state
proportionality-review statute creates any cognizable liberty interest for due
process purposes.” Riley v. Taylor, 277 F.3d 261, 311-12 (3d Cir.2001); see also
Frey v. Fulcomer, 132 F.3d 916, 925 n.7 (3d Cir.1997). Even assuming such a
liberty interest exists, a federal court’s review of state proportionality review is
generally limited. If a federal court finds that the state court performed its
proportionality review in good faith, “it cannot ‘look behind’ the state court’s
conclusion of proportionality to consider whether the state court misapplied state
proportionality law.” Id. (quoting Walton v. Arizona, 497 U.S. 639, 656 (1990),
94

rev’d on other grounds Ring v. Arizona, 536 U.S. 584 (2002)); see also Bannister
v. Delo, 100 F.3d 610, 627 (8th Cir.1996).
In this case, in light of the directive set forth in 42 Pa. Cons. Stat. §
9711(h)(3)(iii), the Pennsylvania Supreme Court, relying upon “sentencing data
compiled by the Administrative Office of the Pennsylvania Courts[,]” determined
that “the sentence was not an improper product of passion, prejudice, or any other
arbitrary factor, but, rather, was based upon the overwhelming evidence that
[Abdul-Salaam] murdered Officer Willis Cole.” Abdul- Salaam-I, 678 A.2d at 355
n.16. Specifically with respect to the court’s reliance on the AOPC database, the
court stated,
[W]ith respect to the final consideration, and in accordance with
Commonwealth v. Zettlemoyer, 500 Pa. At 63, 454 A.2d at 961, this
court has performed an independent review of the cases involving the
sentence of death to determine whether [Abdul-Salaam]’s sentence of
death was proportional to the sentences imposed in similar cases
taking into consideration both the circumstances of the offense and the
character and record of [Abdul-Salaam].
Id., 678 A.2d at 355.
Abdul-Salaam now contends that the Pennsylvania Supreme Court’s
proportionality review was not meaningful because the database of cases that it
relied upon included flaws and methodological infirmities. Further, he claims that
when he raised this proportionality challenge in his state post-conviction
95

proceedings, the PCRA court would not permit him to develop an evidentiary
record in support of the claim. Even so, the Pennsylvania Supreme Court has
repeatedly rejected claims challenging its proportionality review process, including
claims based upon the alleged errors Abdul-Salaam relies upon here. In
Commonwealth v. Gribble, 703 A.2d 426, 440 (Pa. 1997), the Pennsylvania
Supreme Court held that “we believe that our proportionality review comports with
the General Assembly’s desire to afford capital defendants an additional check
against the arbitrary imposition of the death penalty.” Id. In Commonwealth v.
Harris, 703 A.2d 441, 451-52 (Pa. 1997), the Pennsylvania Supreme Court
rejected a claim that the “data base maintained by the Administrative Office of
Pennsylvania Courts (AOPC) is substantially flawed and the procedures which
produce the results are inherently defective.” Id.; see also Commonwealth v. Laird,
726 A.2d 346, 361 (Pa.1999); Commonwealth v. Albrecht, 720 A.2d 693, 708-09
(Pa. 1998) (rejecting challenge to proportionality review because “litigants are
afforded no access to the data upon which it is based and because that data, by
virtue of underinclusiveness, is fundamentally flawed”). Given the Supreme
Court’s pronouncement on this issue, there is no indication that the court
performed its proportionality review of Abdul-Salaam’s claim in bad faith.
Therefore, we will not “look behind” the Pennsylvania Supreme Court’s
96

conclusion to consider whether it properly applied state proportionality law. See
Riley, 277 F.3d at 311–12; Stevens v. Beard, 701 F. Supp.2d 671, 706-07 (W.D.
Pa. 2010).
Abdul-Salaam further asserts that he was unable to challenge the integrity of
the database, since he “had no notice or opportunity to meaningfully participate in
what amounted to appellate factfinding done by the Pennsylvania Supreme Court
regarding what constituted ‘similar’ cases and whether the sentence imposed in this
case was disproportionate.” (Doc. 8-3 at 33.) However, it is well-settled that the
information that the Pennsylvania Supreme Court relied upon in performing its
review “is made available by ... [the Administrative Office of Pennsylvania Courts]
free of charge.” Commonwealth v. DeHart, 516 A.2d 656, 260–61 (Pa.1986). In
addition, the proportionality review process was “an appellate process, statutory
mandated, to ensure that sentences of death are not imposed by Pennsylvania juries
and/or jurists, in a disproportionate manner.” Laird, 726 A.2d at 361. Under state
law, it was not an “adversarial part of the trial or the sentencing procedures in a
death penalty case.” Commonwealth v. Banks, 656 A.2d 467, 474 (Pa. 1995).
In denying Abdul-Salaam federal relief on this basis, our decision is in
accordance with decisions in our district, as well as those in other district courts
rejecting challenges to the Pennsylvania Supreme Court’s proportionality review
97

process. Marinelli v. Beard, Civ. No. 4:CV-07-0173, 2012 WL 5928367, at *98100 (M.D. Pa. Nov. 26, 2012) (rejecting the petitioner’s claim that the
Pennsylvania Supreme Court failed to provide meaningful proportionality review
on the basis that the state court’s review of petitioner’s case under its stated
procedures was not “arbitrary or capricious”); Stevens v. Beard, 701 F. Supp.2d
671, 706-07 (W.D. Pa. 2010); Lambert v. Beard, Docket No. 02-9034, 2007 WL
2173390, *51-52 (E.D. Pa. July 24, 2007) (rejecting claims that petitioner was
denied a meaningful proportionality review because he was not given an
opportunity to review and challenge the information relied on by the Pennsylvania
Supreme Court, and because the database, data collection instruments, and
methodology employed in the review process allegedly were “egregiously” flawed;
petitioner presented no evidence that the Pennsylvania Supreme Court conducted
its proportionality review in bad faith; and denying certificate of appealability);
Rollins v. Horn, Docket No. 00-1288, 2005 WL 1806504, *39-40 (E.D. Pa. July
26, 2005) (denying petitioner’s challenges to the procedure by which the
Pennsylvania Supreme Court conducted its proportionality review because that
court had examined the procedures in Commonwealth v. Gribble, 703 A.2d
426(1997), and had found nothing arbitrary or capricious about them, and denying
certificate of appealability); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.
98

2003) (denying petitioner’s claims that the Pennsylvania Supreme Court’s
proportionality review did not provide him with the meaningful appellate review in
violation of the Eighth and Fourteenth Amendments, and denying certificate of
appealability); Laird v. Horn, 159 F. Supp. 2d 58, 124 (E.D. Pa. 2001) (denying
petitioner’s challenge to proportionality review because there was no evidence that
the Pennsylvania Supreme Court had undertaken its review in bad faith); Jermyn v.
Horn, Docket No. 97-634, 1998 WL 754567 *52-54 (M.D. Pa. Oct. 27, 1998)
(rejecting petitioner’s due process and Eighth Amendment challenges to his
proportionality review), aff’d 266 F.3d 257 (3d Cir. 2001) (affirming summarily
district court’s denial of certain claims, including the petitioner’s challenge to
proportionality review).
Here, because the state court reviewed Abdul-Salaam’s case under
procedures found not to be “arbitrary or capricious,” the Court finds that there is no
basis for federal review of this claim.
G.

Claim VIII - Pennsylvania’s capital sentencing scheme, and
therefore, Petitioner’s death sentence violate the notice and jury
trial guarantees of the Sixth Amendment and the due process
clause of the Fifth Amendment in failing to require either that
aggravating circumstances be pled in a charging mechanism or
that a finding that aggravating circumstances outweigh mitigating
circumstances be made beyond a reasonable doubt.

Abdul-Salaam argues that his sentence was impermissibly enhanced to a
99

death sentence because the aggravating factors were neither pled in a charging
document nor proven to outweigh the mitigating circumstances beyond a
reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002). In Apprendi, the United States Supreme
Court held that “other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Thereafter, in
Ring, the Supreme Court applied the rule of Apprendi to capital sentencing
schemes, holding that under the Sixth Amendment, the facts that render a
defendant eligible for the death sentence, including the requisite state of mind and
at least one statutory aggravating factor, are the functional equivalent of elements
of the offense and must be found by a jury beyond a reasonable doubt rather than
by a judge. Ring, 536 U.S. at 607-09. Abdul-Salaam argues that, because the
Pennsylvania statutes related to aggravating factors do not require that the factors
be pled in a charging document or be proven to outweigh the mitigating
circumstances beyond a reasonable doubt, his death sentence violates the Sixth
Amendment and habeas relief on sentencing should be granted. Upon review, the

100

Court finds that neither Apprendi nor Ring is applicable to Abdul-Salaam’s claim,24
and therefore habeas relief here will be denied.
Generally, a federal habeas petitioner may not rely on new rules of criminal
procedure if they were announced after his conviction became final. Schriro v.
Summerlin, 542 U.S. 348, 352 (2004); Teague v. Lane, 489 U.S. 288, 306 (1989)
(stating that “new constitutional rules of criminal procedure will not be applicable
to those cases which become final before the new rules are announced”). In this
case, Abdul-Salaam’s conviction became final before the decisions in Apprendi
and Ring, or on March 31, 1997, when the United States Supreme Court denied
certiorari review. See Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 (1997).
Under the Supreme Court’s retroactivity analysis set forth in Teague, a
federal habeas petitioner may not avail themselves of a new rule of criminal
procedure unless that rule meets one of two narrow exceptions: (1) “it places
certain kinds of primary, private individual conduct beyond the power of the
criminal-law making authority to proscribe,” or (2) it requires the observance of
those procedures that are implicit in the concept of ordinary liberty. Teague, 489
24

Abdul-Salaam raised this claim in his second PCRA petition. In Abdul-Salaam-III, the
Pennsylvania Supreme Court held that the claim was not cognizable because it was raised in a
second petition and Abdul-Salaam did not meet the jurisdictional requirements for the
presentation of such a successor petition. See Abdul-Salaam-III, 812 A.2d at 499-502. Because
the Pennsylvania Supreme Court did not address this claim on the merits, we will review the
claim here de novo.
101

U.S. at 311. The first Teague exception applies to the type of rule characterized as
“substantive” rather than “procedural.” See Banks v. Beard, 542 U.S. 406, 411 n.3
(2004) (citing Schriro, 542 U.S. at 352 n.4). The second Teague exception is
reserved for “watershed rules of criminal procedure that not only improve the
accuracy of trial, but also ‘alter our understanding of the bedrock procedural
elements’ essential to the fairness of a proceeding.” United States v. Swinton, 333
F.3d 481, 487 (3d Cir. 2003) (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)
(emphasis in original) (citations omitted)).
Neither the Third Circuit nor the Supreme Court has held that the rule
announced in Apprendi or Ring meets either Teague exception. First, as to
Apprendi, in United States v. Swinton, 333 F.3d 481, 489-90 (3d Cir. 2003), the
Third Circuit Court initially concluded that Apprendi itself announced a new rule
of criminal procedure,25 and therefore analyzed whether the second Teague
exception applied to permit a retroactive application of Apprendi on collateral
review. In holding that Apprendi does not satisfy Teague’s second exception to
non-retroactivity, the Third Circuit joined the Courts of Appeals from several other
Circuits in finding that the rule in Apprendi is not a “watershed” rule that improved

25

In Schriro v. Summerlin, the United States Supreme Court unequivocally stated that the
Apprendi line of cases, of which Ring is certainly one, announced a new rule of criminal
procedure. 542 U.S. 348, 352-54 (2004).
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the accuracy of determining the guilt or innocence of a defendant, or that an
Apprendi violation does not necessarily undermine the fairness of judicial
proceedings. Swinton, 333 F.3d at 490 (citing Coleman v. United States, 329 F.3d
77 (2d Cir. 2003); United States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002);
Curtis v. United States, 294 F.3d 841, 843-44 (7th Cir. 2002); United States v.
Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir. 2002); United States v. Mora, 293
F.3d 1213, 1219 (10th Cir. 2002); McCoy v. United States, 266 F.3d 1245, 1258
(11th Cir. 2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001);
United States v. Moss, 252 F.3d 993, 998-99 (8th Cir. 2001)). As a result, the
Court in Swinton expressly held that Apprendi itself does not apply retroactively.
Swinton, 333 F.3d 481 at 491 (“[W]e hold that Apprendi does not apply
retroactively to cases on collateral review.”).
As to Ring, in Schriro, the Supreme Court held that the Ring rule “does not
apply retroactively to cases already final on direct review.” Schriro, 542 U.S. at
358; see also Bell v. Cone, 543 U.S. 447, 454 n.6 (2005) (confirming that Ring
does not apply retroactively) (citing Schriro, 542 U.S. at 358). The defendant in
Schriro was convicted of first-degree murder and related charges in an Arizona
state court. Schriro, 542 U.S. at 350. Pursuant to Arizona’s capital sentencing
scheme, the trial court judge found two aggravating factors and no mitigating
103

circumstances, and consequently sentenced the defendant to death. Id. The
Arizona Supreme Court affirmed the sentence on direct review, and the defendant
subsequently filed a post-conviction petition seeking habeas review of his
conviction. Id. While review was pending in the Ninth Circuit, the Supreme Court
decided Ring, which, again, required that aggravating factors be found by a jury
rather than a judge. Id. at 351 (citing Ring, 536 U.S. at 603-09). Relying on Ring,
the Ninth Circuit Court reversed the defendant’s death sentence. Schriro, 542 U.S.
at 351; see Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir. 2003). Thereafter,
the Supreme Court reversed the Ninth Circuit, holding that “Ring announced a new
procedural rule that does not apply retroactively to cases already final on direct
review.” Schriro, 542 U.S. at 358. To hold otherwise would invite “criminal
defendant[s] [who already] had a full trial and one round of appeals . . . [to]
nevertheless continue to litigate [their] claims indefinitely in hopes that we will one
day have a change of heart.” Id.
Considering that Ring is simply the application of the principles of Apprendi
to a particular subject, namely capital sentencing schemes, and that the Supreme
Court and Third Circuit have expressly held that neither holding applies
retroactively to cases on collateral review, see Schriro, 542 U.S. at 358; Swinton,
333 F.3d 481 at 491, it is clear that the rule established in these cases is not
104

applicable to Abdul-Salaam’s case. Because both Apprendi and Ring were decided
after Abdul-Salaam’s case was already final on direct review, we cannot apply the
rules announced therein to his case. Therefore, habeas relief on this claim will be
denied.
H.

Claim IX - Petitioner received constitutionally ineffective
assistance of counsel at capital sentencing.

Abdul-Salaam contends that he is entitled to a new sentencing hearing
because trial counsel was ineffective for failing to investigate and present
mitigating evidence relating to Abdul-Salaam’s mental health and family history.
More specifically, he argues that trial counsel was ineffective during the sentencing
phase for: (1) failing to present additional testimony from family members to
demonstrate the ongoing and steady dysfunction that marked Abdul-Salaam’s life,
(Doc. 8-4 at 16); (2) failing to seek or obtain records relating to Abdul-Salaam’s
school, prior criminal history, and childhood mental health evaluations that all
support identifying him as “troubled, disturbed, physically and sexually abused,
brain damaged and mentally ill child and young man,” (Id. at 8); and (3) failing to
present testimony of a mental health expert who “could have drawn the critical link
between Petitioner’s early childhood illness, deprivations and abuse, and his adult
behavior,” (Id. at 9). For the reasons that follow, habeas relief on this claim will be
denied.
105

1.

Background
a.

Penalty Phase

During the penalty phase, the Commonwealth presented eight witnesses,
seven who presented testimony regarding Abdul-Salaam’s juvenile adjudications
relating to, inter alia, robbery and aggravated assault. (Sentencing Hearing, Notes
of Testimony (“Sentencing NT”) 3/16/1995, at 24-46, Doc. 146.) The
Commonwealth’s final witness, then New Cumberland Police Chief Oren
Kauffman, testified as to the position of various downtown buildings in relation to
the coin shop where the shooting of Officer Cole occurred. (Id. at 46-53.) AbdulSalaam’s attorney, Speros Lappas, presented three witnesses, Abdul-Salaam’s
mother and his two sisters, each of whom testified about Abdul-Salaam’s abusive
upbringing at the hands of his father and how that abuse affected other aspects of
Abdul-Salaam’s life, such as schooling and socialization. (Id. at 54-82.)
Abdul-Salaam’s mother, Dovetta, testified that his father was abusive
towards her and her five children, including Abdul-Salaam. (Id. at 55-56.) Most
of the abuse was mental, and the father was “very angry all the time.” (Id. at 56,
62.) The physical abuse involved “struggles . . . , fights and arguments,” (Id. at
58), between the father and mother and the three sons. Abdul-Salaam’s mother
believed Abdul-Salaam was twelve when he began recognizing his father’s abuse
106

towards his mother. (Id. at 59.) Further, his father would discipline or punish
Abdul-Salaam on most occasions by punching him in the chest. (Id. at 64-65.) His
mother testified that many of the problems the family had with Abdul-Salaam’s
father were due to his drug use. (Id. at 61-63.)
Abdul-Salaam’s mother also testified about his problems with school and
socializing. She stated that when he was young, she had him tested because of the
problems he was having in school. (Id. at 57.) The school initially thought AbdulSalaam had a learning disorder, but, after testing, it was discovered that he had a
“deficient disorder,” based on his inability to concentrate. (Id.) Because he could
not pay attention, Abdul-Salaam was placed in a special school. (Id.) In addition,
when he was approximately sixteen or seventeen, as a result of one of his juvenile
adjudications he was placed in an Alternative Rehabilitation Communities, Inc.
(“ARC”) program, where he met a positive male role model. (Id. at 71-72.)
Abdul-Salaam also had close relationships with both of his sisters. (Id. at 61.)

Abdul-Salaam’s sister Karima, a college student raised in the same home,
testified that her father was verbally abusive towards her mother and all the
children, mainly degrading them by telling them they were “nothing.” (Id. at 75.)
However, she called herself “daddy’s little girl,” testifying that she would sit on
107

her father’s lap and was hurt when he left the home. (Id. at 80.) Nevertheless,
when the family was living in Allentown, she witnessed her father hit AbdulSalaam with a baseball bat. (Id. at 76.) She also testified that her mother tried to
shelter and clothe the children, but at times they only had cans of beans for food.
(Id. at 78.) Finally, she stated that she has a good relationship with Abdul-Salaam,
had some good times with him, but recognized that he needed a positive male role
model while growing up. (Id. at 79-80.)
Abdul-Salaam’s other sister, Safryah, also testified at the sentencing hearing.
(Id. at 80-82.) She remembered her father arguing and yelling at her mom, and
throwing lamps, plates, glasses, and “anything that was in his sight.” (Id. at 81.)
She also “heard behind doors” her father punching and yelling at Abdul-Salaam.
(Id.) She testified that she loves her brother and would continue to visit him in
prison should he be given a life sentence. (Id. at 82.)
During his obviously passionate closing argument to the jury, Attorney
Lappas addressed the jury’s role in weighing of the aggravating factors and
mitigating circumstances for purposes of sentencing, but with rather abstract
references to the mitigation evidence he had presented. His relevant statement to
the jury was as follows:
You have convicted this man. You have concluded he is guilty.
And based upon that conclusion I am not telling you that the fact that
108

he had a bad, a horrible, hellish upbringing excuses the crime for
which you have convicted him. It is not a defense. But you
remember that we told you in the voir dire, and the judge will tell you
again, that mitigating evidence is not designed to excuse the crime. It
goes to the question of penalty.
***
[F]rom the history of civilization the decisions in any kind of criminal
case, the sentencing decisions, have been based upon the upbringing,
the record, the influences on the defendant. Not because it excuses
the crime, not even because it always explains it, but often it does
mitigate it.
***
Now, Mr. Eakin said many people grow up in bad and abusive
homes. I took offense to what he called being beaten with a baseball
bat by your own father vague abuse, but he said many people do grow
up in those situations. I don’t know if many do, but some do. And
they surmount it. And they overcome it. And they turn out okay.
And perhaps that’s true, but we are not here to judge the whole
world. We are not here to determine if it would have been possible to
grow up in an environment where your father never says a decent
word to you. Where not only does he not support the family, but he
takes what meager money he gets with a once every five year job he
holds down and puts it up his nose with cocaine.
We are not here to determine whether anybody could have
surmounted that. We are not here to determine whether my client
could have surmounted that if he had been someone else. We are not
here to judge the whole world. And we are not here to say you are
excused. It is okay. We are just here to say that that is mitigating. I
am not asking you to go back to the jury room and come back out and
say now that we have heard this we find him not guilty. But that life
goes on the scale. That life goes on the scale in your own heart.
109

People think different things about the effect of a life like that.
Some people think, I guess this is what Mr. Eakin was driving at, that
everybody in the world has freedom of choice. That you make your
bed and then you lie in it. Well, did he make his bed? His bed was
made for him before August the 19th. Who knows, I wish quite
honestly and sincerely that I had been there to take the baseball bat
away. Maybe none of us would then need to be here. But who
knows, who knows.
***
What is the mitigation? What is the weight of mitigation as
mitigation? Of growing up thinking because your own father tells you
this that you are no good, that you are worthless. What is the effect in
mitigation of living in a house where you have to tiptoe around so that
somebody doesn’t beat you until you can’t breathe. What is the
weight and mitigation of having it droned into you from youth that
you are trouble? The schools can’t help you. Your mother can’t help
you. And when you reach a certain age, and you are in a bedroom
with your little brother, and your father comes in and takes a ball bat
to the both of you, and you can’t help him because you are little.
Does that mean that he is not guilty. By your verdict he is guilty.
That’s not vague abuse.
(Id. at 102; 104-106; 107.)
At the end of testimony and closing arguments, the trial court charged four
aggravating factors, as offered by the Commonwealth: (1) Abdul-Salaam
committed a killing while in the perpetration of a felony; (2) in the commission of
the offense, Abdul-Salaam knowingly created a grave risk of death to another
person in addition to the victim of the offense; (3) Abdul-Salaam has a significant
history of felony convictions involving the use or threat of violence; and (4) the
110

victim was a peace officer killed in the performance of duty. (Sentencing NT
3/16/1995, at 113.) The trial court also charged the jury with the catch-all
mitigating factor, namely any evidence of mitigation concerning the character and
record of Abdul-Salaam and the circumstances of his offense. (Id. at 114.) After
deliberating for approximately one hour, the jury returned a verdict of death,
finding all four aggravating factors and one mitigating circumstance, but that those
aggravating factors outweighed the one mitigating factor. (Id. at 121.)
Specifically, the jury stated the mitigating circumstance as: “The background that
includes both physical and mental abuse does have a negative impact on a person’s
development and therefore his future behavior.” (Id.)
b.

PCRA Proceedings

At the PCRA proceedings, Abdul-Salaam, represented by new counsel,
presented the testimony of his trial counsel, as well as additional family witness
testimony, extensive background records, and mental health expert testimony. The
Commonwealth countered with its own mental health expert testimony. That
evidence is as follows, in relevant part.
i.

Testimony of Trial Counsel

Attorney Lappas represented Abdul-Salaam at trial and through direct
appeal. At the PCRA hearing, Attorney Lappas recollected presenting testimony
111

from members of Abdul-Salaam’s family concerning his abuse and upbringing as
mitigation evidence despite arguing during his closing at the guilt phase that
“although [Abdul-Salaam] had been convicted of first degree murder, there was a
residual doubt concerning whether he had been the one firing the fatal shot.”26
(PCRA NT 4/23/1998, at 159, Doc. 126-36.)
With respect to the presentation of background witnesses who testified
regarding Abdul-Salaam’s childhood abuse, Attorney Lappas stated that he
presented only the three family members as witnesses “concerning [AbdulSalaam’s] upbringing” at the penalty phase, “to try to get the jury to feel some
level of sympathy for Mr. Abdul-Salaam and the goal to induce them to be
merciful.” (Id. at 159; 179.)
As to presentation of background records, Attorney Lappas testified that,
prior to the penalty phase, he did not obtain any records relating to Abdul-Salaam’s
background, schooling, prior mental health evaluations, or anything regarding his
social history, other than getting some records from the Lehigh County juvenile
probation office and the Pennsylvania Department of Corrections relating to
Abdul-Salaam’s previous convictions. (Id. at 163; 169-71.) He added that he had
26

During his closing argument to the jury in the guilt phase, Attorney Lappas argued, in
part, that the Commonwealth had not proven beyond a reasonable doubt that Abdul-Salaam fired
the fatal shot at Officer Cole by relying mainly on eyewitness testimony. (Trial NT 3/15/1995,
at 71-105.)
112

no strategic or tactical reason for not obtaining such records.27 (Id. at 169.)
Finally, with respect to calling a mental health expert or presenting any other
relevant evidence regarding to mental health issues, Attorney Lappas testified that,
prior to trial, he “hadn’t specifically identified any issues of that sort,” and thus, he
did no preparation or investigation of Abdul-Salaam’s background beyond hiring a
psychiatrist to evaluate Abdul-Salaam prior to the penalty phase. (Id. at 160; 16162.) In fact, Attorney Lappas stated that he “never concluded that there were or
that there were not” mental health issues in this case, adding that “there was
nothing about [his] interactions with Mr. Salaam which suggested to [him]
specifically that [Abdul-Salaam] had a psychiatric diagnosis.” (Id. at 164, 165.)
When asked whether he would have explored the potential presence of organic
brain damage in Abdul-Salaam, such as minimal cerebral dysfunction, had he had
such information, Attorney Lappas stated: “Well, I don’t think I can say that I
would not have explored it. I don’t think that that fact alone in the context
especially of this case would have been one that I thought was of critical
importance.” (Id. at 175.) On cross-examination, Attorney Lappas further stated,

27

When asked specifically why he did not obtain any records of mental health
evaluations addressing Abdul-Salaam’s social history, Attorney Lappas answered, “[T]he only
reason I would have obtained them would be to determine whether I would introduce them. So it
may be that I had a tactical and strategic reason for not presenting that as a mitigating factor.”
(PCRA NT 4/23/1998, at 172.)
113

In a case like this, in this case in particular, the emotional impact of
the testimony throughout the trial was such that I would have thought
it unlikely that a jury would accept psychiatric mitigation as a factor,
especially one that would outweigh the really very devastating
emotional impact of the several days of testimony that they just heard.
(Id. at 180.) Specifically regarding his reason for cancelling the evaluation of
Abdul-Salaam by the mental health expert, Attorney Lappas stated:
I was also concerned that Dr. Crutchley’s value to me as Mr. Salaam’s
defense attorney would be that she would - - if she developed some
favorable information, she would then be called upon to testify in
court, and certainly if she testified statements made to her during the
evaluation process would be fair game for either direct or cross
examination.
(Id. at 190.) He further clarified: “I told her I did not want her to explore the
events, any events relating to the charge that was on trial, and as I recall, she
expressed her view that she either could not or would not conduct an evaluation
under those conditions, and as a result of it we canceled her evaluation.” (Id. at
192.) He added later, “one of the things that was important to [Dr. Crutchley] was
whether there were or were not going to be expressions of remorse.” (Id. at 20910.)
ii.

Family Witnesses

In addition to Mr. Lappas’ testimony, counsel for Abdul-Salaam presented
ten family witnesses. These witnesses provided further information on AbdulSalaam’s childhood experiences, especially those involving his father, Abdul114

Salaam, Sr. Specifically, Raymond Harris, Abdul-Salaam’s older half-brother,
testified that, during his childhood in the early 1970’s, Abdul-Salaam’s father had
an angry temper, drank excessively and used drugs, and was frequently in trouble
with the police. (PCRA NT 10/3/1997, at 40-42; 48-49, Doc. 125-2.) During that
time and after Abdul-Salaam, Sr. joined the Nation of Islam in the early 1970’s,
Abdul-Salaam, Sr. verbally and physically abused his wife and children, including
Abdul-Salaam.28 (Id. at 42-44, 46, 77.) The father also had trouble keeping a job,
and infrequently provided food for the children. (Id. at 50-51.) He sent his
children to a Muslim school that taught students to dislike white people, and he
tried to prevent his family from socializing with certain relatives and friends. (Id.
at 52-55.)
Mr. Harris testified that he was contacted by Abdul-Salaam’s trial counsel to
testify at the sentencing hearing on the morning he was asked to testify, but he had
no way of getting to Carlisle from Harrisburg. (Id. at 60-61.) On cross-

28

Mr. Harris described this verbal abuse as follows:

Like what he would say to us to lower our self-esteem, to me, you know, he
would call me a mommy’s boy, a punk, a silly, you know, you ain’t going to be
nothing. And you are not my child. You don’t need to be living here, you know,
go somewhere else. You know, a lot of stuff like that.
(PCRA NT 10/3/1997, at 49.) Mr. Harris also testified that Abdul-Salaam, Sr. hit Abdul-Salaam
with an aluminum baseball bat, but on cross-examination stated that he was not present at that
incident. (Id. at 89.)
115

examination, he admitted that he was told of Abdul-Salaam’s arrest at the time by
family members who had his contact information in Harrisburg, but that he did not
attend the trial or any related hearings. (Id. at 92-93.)
Florita Goodman, Abdul-Salaam’s paternal aunt, testified that when AbdulSalaam, Sr. was a child, he was “crazy,” stating that he heard voices telling him to
“do crazy things” like “harm people that were his enemies.” (Id. at 98-99.) Ms.
Goodman also recalled that after Abdul-Salaam, Sr. joined the Nation of Islam, he
became fanatical about its teachings, and gave his family’s money to the Nation
rather than provide food or clothing for his family. (Id. at 106-07.) She also
observed Abdul-Salaam, Sr. beat and verbally abuse his wife when they all lived
together after the Abdul-Salaam’s married. (Id. at 108-09.) There is no mention of
whether Abdul-Salaam observed any of this behavior. After the family moved out
of the house when Abdul-Salaam was approximately four-years old, Ms. Goodman
rarely had contact with Abdul-Salaam’s family. (Id. at 110, 140.) However, when
Abdul-Salaam was seventeen, he briefly lived with her “because he wanted to get
away from his father,” but was soon joined by Abdul-Salaam, Sr. in the home. (Id.
at 110, 143-44.) Ms. Goodman observed no incidents of abuse between father and
son during that time. (Id. at 144.)
Ms. Goodman indicated that she had no previous knowledge of Abdul116

Salaam’s arrest, trial, or death sentence in this case. (Id. at 114.) However, had
she been contacted, she would have testified. (Id.)
Abey Abdul-Salaam, Abdul-Salaam’s younger brother, testified that most of
the time, living with his parents was peaceful and quiet, with trips to the park and
cookouts. (Id. at 116, 119.) He recalled that approximately three times a week, his
parents would argue, mainly due to his father’s unpredictable and moody temper.
(Id. at 116.) Also, the family was poor, with no food in the house, no toys or
television, and limited clothing. (Id. at 116-17.) Abdul-Salaam, Sr. would
discipline the children by whipping them or putting them in the corner facing the
wall for hours at a time. (Id. at 117-18.) Abey testified that he was present when
Abdul-Salaam, Sr. hit Abdul-Salaam with an aluminum baseball bat, as Raymond
Harris had earlier testified. (Id. at 118.)
Josephine Hall, Abdul-Salaam’s maternal grandmother, testified that she
witnessed Abdul-Salaam, Sr. arguing with her daughter, Dovetta, and saw her at
times with black eyes.29 (Id. at 155-56.) However, Ms. Hall testified that she
never saw bruising or signs of physical abuse on Abdul-Salaam. (Id. at 170.)
When Ms. Hall did see Dovetta and the grandchildren, she sensed that they were

29

Ms. Hall never witnessed Abdul-Salaam Sr. hit her daughter, Dovetta. (PCRA NT,
10/3/1997, at 166.)
117

afraid of Abdul-Salaam, Sr. (Id. at 157.) The children were fairly clean, but Ms.
Hall and her other daughter would assist the family by purchasing clothing and
food for them. (Id. at 157, 159.)
Ms. Hall knew that Abdul-Salaam was on trial “for something,” but no one
contacted her about the trial or asked her to testify. (Id. at 175.) However, she
maintained that she has regular telephone contact with her daughter, Dovetta. (Id.
at 174.)
Eddie Washington, Jr., Abdul-Salaam’s first cousin on his mother’s side,
testified that at the occasional family gathering, Abdul-Salaam, Sr. was irrational,
unreasonable, non-communicative and non-cordial, and, in his opinion,
“obnoxious” and a “lunatic.” (Id. at 180, 182.) He recalled an instance when he
was riding in a car with Abdul-Salaam, Sr. when Abdul-Salaam was seven or
eight-years old, when Abdul-Salaam, Sr. suddenly turned around to the children as
they spoke to each other and snapped, “be quiet or I will kill you.” (Id. at 181,
183.) Further, when Dovetta did bring her children to Mr. Washington’s house,
they looked scruffy, had torn clothing, and were hungry. (Id. at 184.) When Mr.
Washington played with Abdul-Salaam during these visits, he appeared “slow” and
did not communicate well. (Id. at 186-87.) Also, Mr. Washington stated that he
understood that Dovetta was using drugs and alcohol during this time. (Id. at 187.)
118

Mr. Washington was never contacted by Abdul-Salaam’s trial counsel to
testify at trial. (Id. at 191.)
Christine Reeves, Abdul-Salaam’s girlfriend at the time of the shooting,
testified as to her observations of Abdul-Salaam and what she learned about
Abdul-Salaam’s upbringing and family life. Ms. Reeves testified that when she
met Abdul-Salaam in 1994, he was very reserved and quiet, but very active and
athletic. (PCRA NT 12/11/1997, at 20, Doc. 125-3.) He could be anxious and
high-strung, and when he was angry, he acted like a “spoiled kid, wanting attention
and things like that.” (Id. at 21.) Further, when he saw a police officer while they
were walking or driving together, he would become very anxious and nervous, and
became verbally abusive to her. (Id. at 25.)
Ms. Reeves testified regarding her knowledge of Abdul-Salaam’s
upbringing, recalling that Abdul-Salaam described himself as the protector of his
family, inasmuch as he would gather his siblings in order to get them out of the
house when their parents were fighting. (Id. at 10.) When he described the
incidents of domestic violence between his parents, he appeared “distressed, upset,
anxious, [and] nervous.”30 (Id. at 11.) Ms. Reeves also understood that the family
30

Abdul-Salaam told her of an incident when, at age six or seven, he was kidnapped and
held hostage by a group of drug dealers to whom Abdul-Salaam, Sr. was indebted. (PCRA NT
12/11/1997, at 10-11.) He was held for a number of days until his father could clear the debt.
(Id.) During his PCRA testimony, Abdul-Salaam, Sr. denied that this incident ever took place.
119

financial situation was “shaky” and that the family moved often. (Id. at 12.)
Abdul-Salaam attended at least two alternative school programs for emotionally
impaired children, Glen Mills and ARC. (Id. at 13.)
Abdul-Salaam also told Ms. Reeves that, as part of his association with the
Nation of Islam, he was involved in the 1989 riots at SCI-Camp Hill while
incarcerated there, and resultantly was transferred to SCI-Huntingdon and placed
in solitary confinement for a period of three to four years. (Id. at 15.) While in
solitary confinement, he was called various racial slurs and was beaten. (Id. at 16.)
When he related these events, his eyes would well up and get teary, and he would
get angry. (Id.) Further, Ms. Reeves described his change in thought processes as
a result of this incarceration as follows: “there was a deep sense of paranoia and
anger and resentment towards authority figures and basically to a lot of white
people.” (Id. at 17.) He was well-versed in the teachings of the Nation of Islam,
and was “very adept with historical facts as related to the Koran.” (Id. at 18.)
Ms. Reeves testified at trial, but never spoke to or met with Abdul-Salaam’s
trial counsel or investigator. (Id. at 31-32.) She stated that she would have been
willing to testify about Abdul-Salaam’s upbringing and family history at trial. (Id.
at 32.)

(Id. at 131-32.)
120

Abdul-Salaam, Sr. also testified at the PCRA hearing. At the time of his
testimony, he had been homeless for eight years and was using crack cocaine. (Id.
at 75-76.) He also used methamphetamine in the late 1960’s until he joined the
Nation of Islam in the early 1970’s. (Id. at 76.) He stated that Dovetta used drugs
with him, but not when she was pregnant with Abdul-Salaam. (Id. at 143.) He
admitted that he hit Abdul-Salaam when he was young “if I thought that it was
called for.” (Id. at 79.) He struck Abdul-Salaam for wetting the bed at age ten or
eleven, and ridiculed him for it in front of others. (Id. at 97-98, 107.) He also
called Abdul-Salaam “stupid” or “dumb” in front of other people. (Id. at 106.) He
also admitted that he hit his wife, but stated that the physical abuse stopped when
he joined the Nation of Islam. (Id. at 87-88.) He also tried to force the Nation of
Islam teachings on his children, telling them that black people were superior to
white people. (Id. at 84, 86.) Further, when Abdul-Salaam was approximately
four-years old, Abdul-Salaam, Sr. aspired to be an executioner for the Nation of
Islam, but did not demonstrate any of his tactics to his children. (Id. at 149-51.) In
addition, Abdul-Salaam, Sr. admitted that he spent family money on drugs rather
than pay the rent or provide food for the family. (Id. at 85-86.) At some point,
Abdul-Salaam, Sr. concluded that he “had the devil in [him],” because of what he
had done to his family, including the physical and verbal abuse, as well as
121

spending their money on drugs. (Id. at 103-04.)
Dana Goodman, Abdul-Salaam’s paternal uncle, testified that his older
brother, Abdul-Salaam, Sr., was violent when they were growing up and that he
was scared of him. (Id. at 161-62.) He also testified that Abdul-Salaam, Sr. was
more paranoid when he returned from the war in Korea. (Id. at 164.) When the
Abdul-Salaam’s were living with Abdul-Salaam, Sr.’s parents and sister, Mr.
Goodman witnessed Abdul-Salaam, Sr. strike the five-year old Abdul-Salaam
several times with a “baseball bat or pipe or whatever would be around that’s
available for him to pick up.” (Id. at 167.) But Mr. Goodman only saw the family
occasionally after they moved out of that house. (Id. at 168.) He did see AbdulSalaam between the time he was released from prison and prior to his arrest for
Officer Cole’s murder, and noticed he was bitter and angry. (Id. at 170.) He
recalled that Abdul-Salaam was not bitter and angry prior to that incarceration.
(Id.)
Mr. Goodman was not contacted by Abdul-Salaam’s trial counsel, but stated
that he would have been willing to testify at trial. (Id. at 171-72.)
Lawrence Goodman, Abdul-Salaam’s other paternal uncle, described his
older brother, Abdul-Salaam, Sr., when they were young as “wild” and
“rambunctious,” often losing his temper, getting mad and excited, punching and
122

hitting his siblings, teasing and calling them names, and acting like the
neighborhood bully. (Id. at 186-88.) When they were older, Abdul-Salaam, Sr.
abused alcohol, methamphetamine and crack cocaine. (Id. at 189-192.) As a
result, his behavior became unpredictable, from drunken rages to non-reality-based
conversations about “flying saucers and all that kind of stuff.” (Id. at 191-193.)
After Abdul-Salaam, Sr. and Dovetta married, Mr. Goodman visited their house
“periodically.” (Id. at 193.) He testified that both parents drank and occasionally
used cocaine and other drugs. (Id. at 197-98.) He observed the Abdul-Salaam’s
arguing loudly, and, at times, saw Dovetta wearing sunglasses to hide a black eye.
(Id. at 194.) He also observed on several occasions Abdul-Salaam, Sr. smack
Abdul-Salaam on the side of the head for interrupting him while he was speaking,
and hit Abdul-Salaam on the top of his head with a spoon to discipline him. (Id. at
194-95; 200.) Mr. Goodman stated that Abdul-Salaam acted withdrawn and
introverted around his father. (Id. at 195.)
Prior to Abdul-Salaam’s arrest, the last time Mr. Goodman saw him was
approximately in 1987. (Id. at 206-07.) He testified that he was not contacted by
Abdul-Salaam’s trial counsel prior to trial, but would have testified had he been
asked. (Id. at 199.)
Finally, Karima Abdul-Salaam, one of Abdul-Salaam’s younger sisters who
123

testified at trial, testified that growing up in the household, she heard “a lot of
abusive language” between her parents, but never saw her father strike her mother,
although she heard about it from other family members. (Id. at 210-11.) She also
testified on cross-examination that she witnessed her father hit Abdul-Salaam more
than ten times. (Id. at 225.) She described the family’s financial difficulties,
which caused them to move around often because of evictions or her mother trying
to get away from Abdul-Salaam, Sr., and having little food to eat on many days.
(Id. at 214-16.) She testified that, when she was older, Abdul-Salaam tried to help
her financially with college expenses. (Id. at 217.) At that point in the PCRA
hearing, the PCRA court noted that “we have reached a point where much of this
has become cumulative.” (Id. at 218.)
Ms. Abdul-Salaam testified that she spent about ten to fifteen minutes with
Abdul-Salaam’s trial counsel prior to testifying at trial. (Id. at 219.)
iii.

Background Records

Abdul-Salaam’s counsel also introduced a number of background records on
Abdul-Salaam’s early childhood and young adult life at the PCRA hearing. The
Court will recount relevant portions of that extensive background history below.
Abdul-Salaam entered the Green Tree School, a school for children with

124

special needs, in 1977, at age 7, and remained there until June 1983.31 (Pet.
Appendix, Doc. 11, Ex. 21.) In his discharge summary, his treatment summary
noted:
Roman[32] entered Green Tree with extremely hyperactive, impulsive,
aggressive behavior and a fierce temper that could quickly become
explosive. He also showed severe insecurity and had very little
confidence. His academic achievement was far below his potential
because of these severe emotional and behavioral problems. Goals
have been to help him gain control of impulsive, aggressive behavior,
to build his confidence, and to improve his interpersonal relationships.
He has made significant progress in academic gains and much
improvement in social/emotional goals. However, staff did not feel
his behavior warranted leaving our program yet.
(Green Tree Discharge Summary, Doc. 11, Ex. 21.) It was noted that Abdul-

31

Prior to entering the Green Tree School, Abdul-Salaam was referred to several medical
professionals for psychiatric evaluation by the Kelly School. (See Pet. Appendix, Doc. 11, Ex.
21.) In December 1976, William Neussle, Ph.D, found Abdul-Salaam to be an “emotionally
disturbed youngster who has extreme difficulty in relating to persons in his environment,” but
did not find any signs of “organic impairment” in his examination. (Id.) He also noted that
Abdul-Salaam’s mother “becomes quite upset with him and physically punishes him when her
anger builds up too much.” (Id.) In January 1977, Patricia Mildvan, M.D., evaluated AbdulSalaam for hyperactivity and poor academic performance. (Id.) She noted that his infancy was
very healthy, but hyperactivity was “always a bit of a problem.” She also noted “signs of
minimal cerebral dysfunction,” and prescribed Ritalin. (Id.) The Ritalin was discontinued
within three to four weeks at the direction of Abdul-Salaam’s mother. (Id.) In June 1977,
Katherine Goddard, M.D., evaluated Abdul-Salaam and found him to be “very hyperactive,
undisciplined, and paranoid in his attitudes.” (Id.) She noted his I.Q. ranging about 116, “but
academic skills are poor, and attention span short.” (Id.) She discovered no organic or
neurological impairments. (Id.) When interviewed, Abdul-Salaam “admitted to many
frightening things in his life, including ‘German shepherd dogs,’ admitted to being frightened of
father who he says ‘belts’ him.” (Id.) Dr. Goddard recommended placement in a residential
psychotherapeutic facility. (Id.)
32

In his youth, Abdul-Salaam was known as “Roman” or “Reggie” Goodman. (See Pet.
Appendix, Doc. 11, Exs. 21 & 22.)
125

Salaam’s mother sought his discharge in order to attend public school because she
was “adamant about ‘giving Roman a chance’ at mainstreaming.” (Id.) Further, he
was referred for “intensive further psychiatric help - with Mother and Father
preferably (family therapy) as well as continued counsel at school.” (Id.)
In March 1986, as a 15-year old, Abdul-Salaam was placed on juvenile
probation in March 1986 as a result of an adjudication in Northampton County,
Pennsylvania. (Doc. 8-4 at 22-23.) Progress notes were taken in Lehigh County,
where Abdul-Salaam’s probation was transferred. (Id.) Specifically, in the Social
Summary, the juvenile probation officer took a family history, juvenile history, and
noted Abdul-Salaam’s delinquency record and other social information. (Pet.
Appendix, Doc. 11, Ex. 22.) In his evaluation, the officer concluded the following:
Seifullah is a sixteen-year-old, black male of medium height with a
slender, muscular build. Seifullah has been moderately cooperative
and does not appear to be open and honest, but rather appears
superficial with this officer. He, likewise, tends to be guarded and
defensive.
Seifullah has a history of displaying defiant and manipulative
behaviors. He tends to be impulsive and tries to rationalize the
reasons for his seemingly unpremeditative [sic] behavior. When
confronted with these behaviors, he becomes highly defensive and
has, on occasion, acted out violently. Seifullah has a propensity to use
violence as his major defense. Seifullah can be explosive and
potentially dangerous. He has demonstrated this in a variety of
settings. He has had numerous physical confrontations with school
staff members, as well as other school students.
126

***
Seifullah has been residing in an unstable home environment as his
parents have gone through numerous separations. Seifullah’s father
has been described as a strict and rigid disciplinarian, and as a result,
Seifullah has had a great deal of conflict with his father. Seifullah is
also rebellious of his father’s conversion of the family to the Black
Muslim religion. . . . Seifullah has a strained relationship with his
mother. Mrs. Abdul-Salaam is extremely frustrated with her son due
to his irresponsible behavior and feels her son lacks realistic goals and
is not very motivated.
(Id.) Further, the Chronological Data Sheet indicates that Abdul-Salaam’s juvenile
probation officer had constant contact with Abdul-Salaam and his mother. (Id.)
Reports from Abdul-Salaam’s placement in the Wiley House Diagnostic Center at
this time reflect much of these same observations and conclusions.33 (Id.)
In February 1987, Abdul-Salaam was referred to the ARC program by the

33

In a June 1986 report from the Wiley House, an evaluator noted that:

Seifullah was cooperative, yet somewhat guarded, in the psychiatric evaluation.
No evidence of disturbed thinking was noted. He admitted to the offenses that
caused his placement in the Diagnostic Center. While he first stated that the
robbery was done for money, he later admitted that he was angry with his father.
He stated that he would prefer to live with relatives in Philadelphia. He came
across as an angry person, venting much of it towards his father. In fact, he stated
that he did not want to return home if his father was there. Diagnostically,
Seifullah presented an Adjustment Reaction with Mixed Disturbance of Emotions
and Conduct.
(Pet. Appendix, Doc. 11, Ex. 22.) As a result, the evaluator recommended, inter alia, that the
issues between Abdul-Salaam and his father be addressed and resolved before his return to the
home. (Id.)
127

Lehigh County Juvenile Probation Department, where he remained until April
1988. (Id.) In his Discharge Summary, it was noted that he was assigned goals
such as “developing self-awareness” because of his “inappropriate attitude and
behavior, his resistance toward authority figures, and his tendency not to accept
responsibility for his actions.” (Id.) Although his initial response to treatment was
slow, he began to make progress after a few months. (Id.) In early 1988, however,
his “overall attitude and behavior [was] sporadic.” (Id.) By the end of his stay at
ARC, it was determined that, “Seifullah’s stay at ARC, even through the
adversities, ha[d] been a very productive one. He ha[d] matured and appear[ed] to
be getting his life in order. Seifullah ha[d] developed to the point where it would
be safe to say that he should, given the internalization that he ha[d] obtained,
remain out of the legal system.” (Id.)
iv.

Mental Health Experts

At the PCRA hearing, Abdul-Salaam’s counsel presented the testimony of
four mental health professionals. In its case in rebuttal, the Commonwealth
presented two mental health experts. Again, no mental health expert testimony
was presented at trial. A summary of the PCRA testimony is set forth below.
Patricia Fleming, Ph. D., a clinical psychologist, testified that she conducted
a clinical evaluation of Abdul-Salaam in connection with the PCRA proceedings.
128

(PCRA NT 4/16/1998, at 49.) In connection with the evaluation, Dr. Fleming
reviewed affidavits of family members, evaluations of other mental health experts
Drs. Kessel, Armstrong and Rotenberg, the related legal documents such as court
decisions and trial testimony, and various background records of Abdul-Salaam.
(Id.) She also conducted a clinical interview of Abdul-Salaam in order to “gain
information regarding his background and how he happened to be who he was
when I saw him.” (Id. at 51.)
Initially, Dr. Fleming reported that her impression of Abdul-Salaam at the
time of the interview was of “a young man who had a severely dysfunctional
background starting at an early age.” (Id. at 52.) She opined as to Abdul-Salaam
Sr.’s mental health and the possibility of abuse involving Abdul-Salaam. (Id. at
71-79.) She further noted that an evaluation from June 1986 reported AbdulSalaam to have a full-scale I.Q. of 85. (Id. at 59.) Significantly, she noted Dr.
Mildvan’s report from February 1977 indicating that Abdul-Salaam had signs of
“minimal cerebral dysfunction,”34 including a possible learning disability.35 (Id. at
34

Dr. Julie Kessel, who testified at the PCRA hearing conducted on April 22, 1998,
testified that “minimal cerebral dysfunction” is the “old name” for “attention deficit
hyperactivity disorder.” (PCRA NT 4/22/1998, at 120.)
35

Specifically, Dr. Fleming testified as follows:

It says that Dr. Mildvan was concerned. And that she went further to say that he
needed a special class for - - she was suspecting a learning disability, which could
be an after-effect or one of the things if he were diagnosed with minimal cerebral
129

67.)
Following this testimony, Dr. Fleming discussed the psychological tests she
administered to Abdul-Salaam relating to intelligence and personality.36 (Id. at 8294.) She emphasized that the tests represent a “description” of a subject’s
symptoms, and not a “diagnosis.” (Id. at 92.) The results of one personality test,
the MMPI-2, revealed to her that, in part, Abdul-Salaam “has throughout had
periods of depression, has thought about suicide, has wanted to commit suicide
when he is in despair. He had a high anxiety. He had a high anger.” (Id. at 91.)
As a result of another personality test, the MCMI-II, Dr. Fleming found AbdulSalaam to express antisocial and aggressive traits, as well as avoidance and social
ineptitude. (Id. at 92-94.) Based on her review of records and test results, Dr.
Fleming concluded that Abdul-Salaam has “antisocial behaviors.” (Id. at 94.) On
dysfunction.
Often at that time, in 1977, in the schools there was - - the schools often diagnose
minimal brain dysfunction of children with this constellation of traits, the poor
attention span. They were not adjusting well. They were having interpersonal
problems. And the term learning disability wasn’t used as prevalent as the
minimum brain dysfunction because it was emphasized that that was a probable
causation of the learning disability.
(PCRA NT 4/16/1998, at 67-68.) She did stress, however, that most children were not referred
for special help. (Id. at 68.)
36

Dr. Fleming administered the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”);
a category test from the Halstead-Reitan battery of tests; Seashore Rhythm test; Speech Sounds
Perception test; and personality tests Minnesota Multiphasic Personality Inventory- 2 (“MMPI2”) and Millon Multiaxial Clinical (“MCMI-II”). (PCRA NT 4/16/1998, at 82-94.)
130

cross-examination, she also described him as “hyperactive,” but emphasized that
she was not “diagnosing” him with hyperactivity. (Id. at 115.) While she ruled out
schizophrenia, she stated that he presented with some criteria of schizo-typical
personality disorder.37 (Id. at 130.) Finally, she testified that there is a correlation
between child abuse and neglect and organic brain disease as an adult. (Id. at 140.)

Carolyn Crutchley, M.D., a psychiatrist with a specialty in forensic
psychiatry, testified that she was contacted by Abdul-Salaam’s counsel prior to
trial in order to evaluate Abdul-Salaam for mental health issues relating to
mitigation. (PCRA NT 4/22/1998, at 69.) Prior to an evaluation, Dr. Crutchley
asked counsel for background materials on Abdul-Salaam’s schooling and juvenile
delinquency, but counsel did not comply with her request. (Id. at 70-71, 73.)
Further, Attorney Lappas asked Dr. Crutchley not to speak with Abdul-Salaam
about the offenses at issue in this case. (Id. at 73-74.) When she told him this

37

Specifically, Dr. Fleming testified:

He had some of that fixed belief, the delusion. I believe he had visual and
auditory hallucinations when he was younger and also when he was in prison. He
had difficulty with interpersonal relationships. He had difficulty with intimacy.
The school records show that the other children avoided him. But all the
behaviors were part of it, the acting-out behavior. Part of it was that he didn’t
socialize well and never has. Those were the outstanding characteristics.
(PCRA NT 4/16/1998, at 130-31.)
131

restriction would “seriously impair [her] ability to evaluate him,” (Id. at 74),
counsel withdrew his request for an evaluation. (Id.)
Despite not personally evaluating Abdul-Salaam prior to trial, Dr. Crutchley
reviewed various background materials and reports of other mental health experts
prior to the PCRA hearing, and the PCRA court permitted her to testify regarding
her opinions on Abdul-Salaam’s mental health. (Id. at 79-87.) Based on her
review of the neuropsychological testing, Dr. Crutchley opined that Abdul-Salaam
possessed a neuropsychological impairment that could have an impact on his
behavior, his ability to control his behavior, and his ability to cooperate with
counsel. (Id. at 82-83.) In her opinion, the tests results also only “raise[d]
questions” as to the presence of brain damage.38 (Id. at 84.)
Julie Kessel, M.D., a psychiatrist, testified that she conducted a clinical
evaluation of Abdul-Salaam in connection with the PCRA proceedings. (Id. at
38

On redirect examination, Abdul-Salaam’s PCRA counsel and Dr. Crutchley had the
following exchange:
Q:

Assume hypothetically that the testimony of family members at the time
of trial and in proceedings at this time indicated that Mr. Abdul-Salaam
was beaten and abused as a child, would that fact be consistent or
inconsistent with the presence of organic brain damage?

A:

It could go either way, depending upon how he was beaten. If he was
beaten about the head, for instance, knocked out, then that could be a
contributing factor to organic brain damage.

(PCRA NT 4/22/1998, at 110.)
132

115-16.) As part of her evaluation, Dr. Kessel reviewed family member affidavits,
Veterans Administration records of Abdul-Salaam, Sr., prior mental health
evaluations, the related legal documents such as court decisions and trial
testimony, and various background records of Abdul-Salaam. (Id. at 116-17.) She
also conducted a clinical interview of Abdul-Salaam at SCI-Greene. (Id. at 117.)
Further, Dr. Kessel was present during the evaluation performed by the
Commonwealth’s expert, Dr. Rotenberg. (Id.)
In her review of Abdul-Salaam’s early childhood records, Dr. Kessel found
that Abdul-Salaam had “severe behavioral problems” from the age of four and
required placement in classes for socially and emotionally disturbed children
because of his inability to sit still, listen, concentrate, and avoid fighting. (Id. at
120.) He performed poorly in school and had difficulty learning. (Id.) Childhood
testing revealed that he suffered from “attention deficit hyperactivity disorder”
(“ADHD”), and had “severe behavioral disruptions,” as well as “some type of
behavioral disinhibitions syndrome that’s best characterized at this point as a
cognitive disorder, not otherwise specified. Perhaps at that point as some kind of
impulse control disorder.” (Id. at 120-21.) She stated that this diagnosis suggested

133

“organic impairment” or dysfunction.39 (Id.) She added that, as he aged, AbdulSalaam’s symptoms indicated a schizotypal personality disorder.40 (Id. at 125-26.)
Carol Armstrong, Ph. D., a neuropsychologist, testified that she conducted a
neuropsychological evaluation of Abdul-Salaam in connection with the PCRA
proceedings. (PCRA NT 4/23/1998, at 27.) In connection with the evaluation, Dr.
Armstrong reviewed Abdul-Salaam’s juvenile history records, previous evaluation
records, and progress and treatment records from childhood. (Id. at 29.) From the
records, Dr. Armstrong opined that the abuse Abdul-Salaam suffered as a child was
“moderate,” in that it was “repetitive and chronic.” (Id. at 81-82.)
Dr. Armstrong also administered forty (40) neuropsychological tests to
Abdul-Salaam, finding Abdul-Salaam to be within average limits regarding verbal

39

From her review of the Green Tree School records, she found “the likely presence of
organic dysfunction” in Abdul-Salaam’s “gross impulsivity, his gross aggressivity, his gross
inattention, his gross inability to follow instruction, his gross inability to sit still, to concentrate
and to focus.” (PCRA NT 4/22/1998, at 126.)
40

Dr. Kessel gave the following working definition of schizotypal personality disorder:

[P]ersonality disorders in general refer to after the age of eighteen how an
individual has developed a life-long pattern at this point of interacting with the
world. . . . And basically schizotypal persons relate to the world in a suspicious
manner. They have a lot of anxiety with interacting with others. They tend to
have very few significant relationships outside of their family because of their
interpersonal anxiety. They have magical thinking. They have oddity of the use
of language and of their thought and associations. And they tend not to do as well
as other people.
(PCRA NT 4/22/1998, at 142-43.)
134

memory, (Id. at 37), but impaired in manual movement, (Id. at 33), visual selective
attention, (Id. at 35), verbal fluency, (Id. at 36-37), logical and deductive
reasoning, and cognitive flexibility, (Id. at 38-39), and frontal lobe functioning, (Id.
at 42). Dr. Armstrong opined that these deficits explained Abdul-Salaam’s poor
responses “in so many situations.” (Id. at 44.) She also opined that, based on his
deficits, Abdul-Salaam suffered from extreme mental and emotional disturbance
and impairments in understanding expectations of society and the law. (Id. at 50.)

Turning to the Commonwealth’s case on rebuttal, Paul Delfin, Ph. D, a
clinical psychologist, testified that, although he did not personally examine AbdulSalaam, he reviewed the data from the other experts’ evaluations, including data
from evaluations Abdul-Salaam had in his childhood. (PCRA NT 5/1/1998, at 19,
21.) From his review of the records, Dr. Delfin found Abdul-Salaam to be an
individual with “low average general intellectual functioning,” with “[n]o evidence
of neuropsychological problems.” (Id. at 30.) He also stated that the objective
personality tests results suggested “antisocial personality and aggressive sadistic
personality.”41 (Id.) Dr. Delfin disagreed with Dr. Armstrong that Abdul41

Dr. Delfin explained an “antisocial personality” to be one where the subject is “very
impulsive, very angry or angry with authority, does not control angry impulses well. And
typically is prone to commit antisocial and criminal acts, often associated with drug abuse or
alcohol abuse.” (PCRA NT 5/1/1998, at 31.) He also explained “sadistic characteristics” as
135

Salaam was under the influence of extreme mental or emotional disturbance, or
that his capacity to appreciate the criminality of his conduct was impaired. (Id.)
Further, based on his review of the results, he saw no evidence of schizotypal
disorder, as the results indicated no psychotic thinking or thought disorders. (Id. at
32.) He also found no evidence of organic brain damage.42 (Id.) Dr. Delfin
stressed, however, that because he did not personally examine Abdul-Salaam, he
was not rendering a “diagnosis.” (Id. at 35.)
Larry Rotenberg, M.D., a psychiatrist, testified that he conducted a clinical
evaluation of Abdul-Salaam in connection with the PCRA proceedings. (Id. at 8789; 94-96.) In connection with the evaluation, Dr. Rotenberg reviewed family
member affidavits, prior mental health evaluations, the related legal documents
such as court decisions and trial testimony, and various background records of
Abdul-Salaam. (Id. at 87-89.) He also conducted a clinical interview of AbdulSalaam at Cumberland County Prison in December 1997. (Id. at 95.) Dr. Kessel
possessed by someone for whom “the angry impulses are very hostile, [who wants] to hurt
people, [is] willing to hurt people, and [is] not terribly concerned about the consequences of
hurting people.” (Id.)
42

In one of the tests administered to Abdul-Salaam, the Thematic Apperception Test
(“TAT”), it was noted that Abdul-Salaam had several pauses during the test. (PCRA NT
5/1/1998, at 46-47.) Dr. Delfin explained, “Pauses are not indicators of brain damage. Pauses
may be indicators of a number of things, including a slow speed of thinking. And a slow speed
of thinking can be an indicator of many things. One of which is brain damage. One of which is
evasion.” (Id. at 48-49.) He did note, too, that he reached no conclusions as to whether AbdulSalaam was malingering. (Id. at 49.)
136

and Ms. Holly Evans-Schaffer, a graduate student who aided in administering
various tests, were also present during the evaluation. (Id.)
From his review of the background records, Dr. Rotenberg noted that a
young Abdul-Salaam was described as “a very difficult acting behaviorally
disturbed child, who is described on one occasion as violent, impulsive youngster,
for example, who feels little guilt over his aggressive action.” (Id. at 100.)
Beginning in his early years, Abdul-Salaam was described as manipulative and lied
repeatedly. (Id. at 110.) “Major areas of difficulty were defiance, refusal to accept
responsibility for his actions, explosive temper, and conflictual peer relationship.”
(Id.) He was also described as a “strong dominating leader,” which Dr. Rotenberg
stated was incompatible with a schizotypal person. (Id. at 111.)
Based on his examination,43 Dr. Rotenberg noted that Abdul-Salaam’s had
an early childhood filled with family dysfunction, ranging from his tumultuous
relationship with his father to his “mixed feelings” about his siblings. (Id. at 11743

Dr. Rotenberg made the following findings, in part, in relation to his “mental status
examination” of Abdul-Salaam in 1997:
[H]e was presented as pleasant, alert, cooperative, even an ingratiating young man
with no unusual mannerisms. Psychomotorically he was normal. His speech was
productive and coherent. There was no evidence of any thought disorder. There
were no delusions or hallucinations. His effect was adequate. His mood was
eurythmic, Your Honor, which means normal.
(PCRA NT 5/2/1998, at 128.)
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121.) When Dr. Rotenberg asked Abdul-Salaam about his difficulties in school, he
responded that “whatever he had trouble with by way of school really wasn’t his
fault,” and that it was “the problem that other people didn’t do enough for him.”
(Id. at 122.)
After reviewing the background records and conducting the examination, Dr.
Rotenberg concluded that Abdul-Salaam had a strong history of marijuana
dependence and cocaine abuse, and had a personality disorder, not otherwise
specified (“NOS”), with antisocial obsessive-compulsive and narcissistic features.
(Id. at 132-33.) He disagreed with previous evaluations that indicated a
schizotypal personality disorder or clinically significant organic brain damage. (Id.
at 136.) Along those lines, Dr. Rotenberg stated that Abdul-Salaam had “no
significant and clinically relevant or material neurological problem.” (Id. at 159.)
Finally, he concluded that, while it was apparent that Abdul-Salaam had learning
problems and ADHD in his childhood, his behavior problems and inability to
conform to societal norms was “far more serious.” (Id. at 199.)
c.

State Court Decisions

After the evidentiary hearing, the PCRA court denied relief on this claim,
finding that trial counsel’s decision not to inquire into the mental health of AbdulSalaam during the penalty phase was “strategic in nature and that the decision had
138

a reasonable basis.” (Doc. 19-2 at 16-19, PCRA Op.) A divided Pennsylvania
Supreme Court affirmed. See Abdul-Salaam-II, 808 A.2d 561-62 (holding that
trial counsel’s performance at sentencing was not deficient based on counsel’s
PCRA testimony on strategy); cf. id. at 564-66 (Saylor, J., concurring) (finding
trial counsel was not deficient based on the PCRA court’s requisite credibility
assessments and judgments specific to the case on an adequate record rather than
simply counsel’s PCRA testimony). In doing so, the Pennsylvania Supreme Court
resolved this claim as follows:
Appellant claims that counsel was ineffective for failing to locate
evidence of his mental illness and his organic brain damage and
present such evidence as mitigation at his penalty phase hearing.
Even if this claim had arguable merit, we agree with the PCRA court
that counsel had a reasonable basis for not presenting such evidence.
At the PCRA hearing, counsel specifically stated his reasons for not
presenting mental health mitigation evidence in this particular case,
testifying that:
When you begin to defend a person’s actions or excuse
them by the use of mental health expert testimony, you
hold yourself open to the risk that you are essentially
relitigating the crime. I heard this today during your
cross-examination of Dr. Armstrong [one of the mental
health experts presented by Appellant]. You asked her if
she could tell that there was a specific time on August
19th, 1994 [the date Appellant shot and killed Officer
Cole], when the organic brain disorder manifested itself
in compelling the defendant’s actions, and she said she
could not and no one could. The risk of that is that it
often provides the prosecutor with an opportunity to not
just describe the defendant’s acts in a factual context, but
139

in almost a moral context. For example if a person taking this case as an example, if a person was afflicted
by organic brain disorder or some psychiatric disease or
some mental health problem, I’ve heard asked repeatedly
in other cases, isn’t this inconsistent with the type of
planning that goes into the perpetration of this crime?
Isn’t this inconsistent with the fact that the person,
according to the evidence and testimony, had the
wherewithal to try to escape? Isn’t this inconsistent with
the fact that he returned to the scene of the crime for
perhaps no other reason than to open fire? In a case like
this, in this case in particular, the emotional impact of the
testimony throughout the trial was such that I would have
thought it unlikely that a jury would accept psychiatric
mitigation as a factor, especially one that would outweigh
the really very devastating emotional impact of the
several days of testimony that they just heard.
N.T. 4/23/98, at 179-80. See also Commonwealth v. Pirela, 556 Pa.
32, 726 A.2d 1026, 1035 (1999) (presentation of evidence of
defendant’s troubled childhood might be viewed as attempt to
trivialize brutal murder). This testimony sufficiently supports the
PCRA court’s finding that counsel had a reasonable basis for not
presenting the mitigating evidence Appellant now claims counsel
should have offered.
Abdul-Salaam-II, 808 A.2d at 561-62. Thus, the Pennsylvania Supreme Court held
that Abdul-Salaam’s attorney had not performed deficiently because he had a
reasonable basis for not presenting evidence of mental illness and organic brain
damage as mitigation. Further, with respect to a specific finding of organic brain
damage or other mental illness, the court concluded as follows:
Based on an independent review of the record, we note that we find no
error in the PCRA court’s conclusion that the testimony at the PCRA
140

hearing failed to establish that Appellant suffers from organic brain
damage or any other mental illness. See PCRA Ct. Op., 11/12/98, at
11, 13. As the Commonwealth observes in its brief, the defense
mental health experts could not testify as to when Appellant
contracted organic brain damage, how he contracted it, or what effect,
if any, it had on him on the day he murdered Officer Cole. Moreover,
there was testimony from Dr. Lawrence Rotenberg, who also
examined Appellant, that Appellant does not, in his opinion, have
organic brain damage. See N.T., 5/1/98, at 136.
Id., 808 A.2d at 561 n.4. Additionally, the court found the following with respect
to Abdul-Salaam’s claim relating to counsel’s presentation of his family history:
Appellant also claims that trial counsel was ineffective for failing to
present evidence of the abuse he suffered as a child. This claim is
specious in light of the fact that even Appellant concedes that counsel
presented the testimony of several family members who described
Appellant’s abusive upbringing. If Appellant is suggesting that
counsel should have called additional family members to reiterate that
Appellant had been abused as a child, this claim also fails as such
testimony would have merely been cumulative. See Commonwealth v.
Whitney, 550 Pa. 618, 708 A.2d 471, 477 (1998) (counsel not
ineffective for failing to call witness at penalty phase would merely
have given cumulative mitigating evidence). In addition, we note that
the jury specifically found Appellant’s abusive background to be a
mitigating circumstance.
Id., 808 A.2d at 562 n.5.
d.

Analysis

As stated above, Abdul-Salaam argues that counsel was ineffective for
failing to investigate and present mitigating evidence relating to his background
and mental health. The Court will discuss both prongs of the Strickland test in our
141

disposition of this claim.
Under the Sixth and Fourteenth Amendments, a criminal defendant has the
right to effective assistance of counsel. That right is violated if the attorney’s
performance falls “below an objective standard of reasonableness” and “the
petitioner suffer[s] prejudice as a result of the deficiency.” Blystone v. Horn, 664
F.3d 397, 418 (3d Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Once a Strickland claim has already been adjudicated on the merits by the
state court, a habeas petitioner has the additional burden of showing that the state
court’s decision about the reasonableness of counsel’s performance was itself
unreasonable. Id. “The standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is doubly so.”
Harrington, 131 S. Ct. at 788. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690.
A successful claim of ineffective assistance of counsel requires proving both
deficient performance and prejudice. In its review of the PCRA court decision, the
Pennsylvania Supreme Court correctly identified the governing standard relating to
an ineffectiveness claim, see supra note 4 at 29, but only made a determination as
to deficient performance, and therefore did not address prejudice. Abdul-Salaam142

II, 808 A.2d at 561-62. As a result, our review of the Supreme Court’s
determination of deficient performance must apply the § 2254(d) deference, but a
review of the prejudice prong is de novo.
a.

Deficient Performance

To establish ineffectiveness, a “defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. The United States Supreme Court explained a lawyer’s duty to
investigate and the deference owed to decisions surrounding that investigation:
[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has the duty to make reasonable investigations or to made a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
Id. at 690-91. The relevant inquiry here “is not whether counsel should have
presented a mitigation case. Rather, we focus on whether the investigation
supporting counsel’s decision not to introduce mitigating evidence of [AbdulSalaam’s] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523
(2003) (emphasis in original).
A counsel’s failure to make a reasonable investigation of a defendant’s
143

psychiatric history and family background, and to present mitigating evidence to
the judge or jury at sentencing, can constitute ineffective assistance. Id.
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id. at 521 (quotation
marks omitted). Where a jury in a capital case has been precluded from hearing
mitigating evidence concerning the defendant’s character or background because
counsel has made an objectively unreasonable decision not to look for it, counsel’s
performance violates the dictates of Strickland. See Rompilla v. Beard, 545 U.S.
374, 380-81 (2005); Wiggins, 539 U.S. at 519-34; Outten v. Kearney, 464 F.3d
401, 417 (3d Cir. 2006); Marshall v. Cathel, 428 F.3d 452, 469 (3d Cir. 2005);
Laird v. Horn, 159 F. Supp. 2d 58, 112 (E.D. Pa. 2001), aff’d on other grounds,
414 F.3d 419 (3d Cir. 2001).
Further, in assessing the reasonableness of an attorney’s investigation, the
quantum of evidence known to counsel must be considered, as well as whether that
evidence should have led a reasonable attorney to investigate further. Wiggins, 539
U.S. at 527. Further, in assessing counsel’s investigation, the Court must conduct
an objective review of his performance measured for reasonableness under
prevailing professional norms, including a context-dependent consideration of the
challenged conduct as seen from counsel’s perspective at the time. Id. at 522-27
144

(quoting Strickland, 466 U.S. at 688-89) (internal quotations omitted); see also
Bobby v. Van Hook, 538 U.S. 4, 5-12 (2009). The Third Circuit has explained that
it is “only the rare claim of ineffective assistance of counsel that should succeed
under the properly deferential standard to be applied in scrutinizing counsel’s
performance.” United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997)
(quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).
Counsel in capital cases are under an obligation to understand the
fundamental shift in their duties once their client has been found guilty and a
sentencing hearing begins:
The existence of a penalty phase in capital trials makes such trials
radically different from ordinary criminal trials. A full capital trial is
in fact two separate but intimately related trials: a preliminary guilt
trial focusing on issues pertaining to the commission of a capital
offense, and a subsequent penalty trial about the convicted
defendant’s worthiness to live. The guilt trial establishes the elements
of the capital crime. The penalty trial is a trial for life. It is a trial for
life in the sense that the defendant’s life is at stake, and it is a trial
about life, because a central issue is the meaning and value of the
defendant’s life.
Marshall v. Hendricks, 307 F.3d 36, 99 (3d Cir. 2002) (citation omitted). “The
penalty phase focuses not on absolving the defendant from guilt, but rather on the
production of evidence to make the case for life. The purpose of the investigation
is to find witnesses to help humanize the defendant, given that the jury has found
him guilty of a capital offense.” Id. at 103 (emphasis in original). Reasonable
145

counsel should recognize that “death is different,” see Marshall, 428 F.3d at 467,
and that a person facing the death penalty has a constitutionally protected right to
have available mitigating evidence presented on his behalf, Williams, 529 U.S. at
393 (stating that the petitioner “had a right - indeed, a constitutionally protected
right - to provide the jury with the mitigating evidence that his trial court either
failed to discover or failed to offer”).
Finally, satisfying Strickland’s investigation mandate ultimately turns on
counsel’s adherence to the professional standards for investigation and preparation
of a mitigation case at the time of trial. In defining what constitutes a complete
investigation in this matter, therefore, we look to the prevailing professional norms
as they existed in 1995.
In 1995, the ABA Standard for Criminal Justice (“Standard”) stated:
It is the duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event of
conviction. The investigation should always include efforts to secure
information in the possession of the prosecution and law enforcement
authorities. The duty to investigate exists regardless of the accused’s
admissions or statements to the lawyer of facts constituting guilt or
the accused’s stated desire to plead guilty.
1 ABA Standards for Criminal Justice: Prosecution Function and Defense
Function, 4–4.1 (2d ed.1982 Sup.); see also Strickland, 466 U.S. at 688–89
(discussing the use of ABA standards as guides for determining “prevailing norms
146

of practice”); Rompilla v. Horn, 355 F.3d 233, 259 n.14 (3d Cir. 2004) (referring to
the ABA standards as “important guides” although cautioning against viewing
them as “a codification of the requirements of the Sixth Amendment”). The ABA
standards, coupled with Strickland’s explicit language requiring a thorough
investigation into facts relevant to both guilt and sentencing, clearly show that a
separate penalty phase investigation was the very foundation of reasonable
representation in 1995. See Strickland, 466 U.S. at 690-91.
The United States Supreme Court frequently cites ABA standards in its
discussions of reasonableness of a lawyer’s performance. See, e.g., Wiggins, 539
U.S. at 524 (explaining that the Court has “long referred” to ABA standards “as
guides to determining what is reasonable” (internal quotation omitted)); Williams,
529 U.S. at 396; Rompilla, 545 U.S. at 387. The ABA guidelines in force at the
time of Abdul-Salaam’s trial providing varying advice for lawyers representing a
defendant facing the death penalty. In a recent decision in Bridges v. Beard, 941 F.
Supp. 2d 584 (E.D. Pa. 2013), the Honorable Anita Brody aptly summarized these
guides as follows:
The ABA guidelines . . . advised lawyers to begin investigations
relevant to sentencing immediately, and stressed that such an
investigation “should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.” ABA Guidelines
for the Appointment and Performance of Counsel in Death Penalty
147

Cases (hereinafter “Guidelines”) 11.4.1(C) (1989). The Guidelines
advised counsel to investigate the client’s medical history, educational
history, and family and social history, among other areas. Guidelines
11.4.1(D). The Guidelines also advised counsel to secure expert
assistance for the investigation and presentation of mitigation
evidence, Guidelines 11.4.1(D)(7)(D), and recommended that lawyers
use expert witnesses “to provide medical, psychological, sociological
or other explanations for the offense(s) for which the client is being
sentenced.” Guidelines 11.8.3(F)(2). Indeed, the Guideline
commentary conveyed the importance of experts: “The assistance of
one or more experts (e.g., social worker, psychologist, psychiatrist,
investigator, etc.) may be determinative as to outcome.”
Commentary, Guideline 11.8.6. The Guidelines emphasized that
counsel had a duty to present “all reasonably available evidence in
mitigation unless there are strong strategic reasons to forego some
portion of such evidence,” Guidelines 11.8.6(A) (emphasis added),
and that such a presentation should include medical history, family
and social history, and expert testimony, Guidelines 11.8.6(B).
Bridges, 941 F. Supp. 2d at 613.
As set forth above, in Abdul-Salaam-II, the Pennsylvania Supreme Court
addressed and affirmed the PCRA court’s finding that counsel was not deficient,
i.e., counsel “had a reasonable basis for not presenting the mitigating evidence
[Abdul-Salaam] now claims counsel should have offered.” Abdul-Salaam-II, 808
A.2d at 562. Therefore, AEDPA’s standard of review applies to this prong of the
Strickland test. See 28 U.S.C. § 2254(d). In applying this standard, we are
mindful that a federal habeas court is deferential to the merits determinations made
by a state court. 28 U.S.C. § 2254(d), (e); Lockyer v. Andrade, 538 U.S. 63, 75-76

148

(2003).44 Further, as stated by the United States Supreme Court, “when § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, ___ U.S. ___, ___. 131
S. Ct. 770, 788 (2011).
As stated above, during the sentencing phase, Attorney Lappas presented
three lay witnesses on behalf of Abdul-Salaam, family members who spoke about
the tumultuous relationship Abdul-Salaam had with his father, and how that
relationship affected other aspects of Abdul-Salaam’s life. Attorney Lappas
presented no further evidence during sentencing. While he did request a mental
health evaluation of Abdul-Salaam from Dr. Crutchley prior to trial, he withdrew
that request when she could not guarantee that she would not discuss with AbdulSalaam the events leading to his current incarceration. More importantly here,
there is nothing in the record indicating that Attorney Lappas obtained any
background materials on Abdul-Salaam, such as school records and possibly
previous mental health evaluations. As made clear by the testimony of Abdul44

Under 28 U.S.C. § 2254(d)(2), a factual determination made by a state court should be
adjudged as unreasonable only if the district court finds that a rational jurist could not reach the
same finding on the basis of the evidence in the record. § 2254(d)(2); Porter, 276 F. Supp. 2d at
296. Under 28 U.S.C. § 2254(e), a petitioner may only rebut the presumption that a state court’s
findings of fact are correct with clear and convincing evidence of the state court’s error.
§ 2254(e)(1); Miller-El, 537 U.S. at 341.
149

Salaam’s mother at sentencing, Attorney Lappas was aware that, when he was
young, Abdul-Salaam had been tested because of problems he was having in
school, that he was eventually placed in a special school, and that he attended a
rehabilitative ARC program in his teens as a result of a juvenile adjudication. That
evidence should have prompted Attorney Lappas to more fully explore AbdulSalaam’s childhood and early mental health issues, and to consider introducing
additional evidence at the sentencing phase.
Turning to the state court decision in this matter, we conclude that the
Pennsylvania Supreme Court’s determination that Abdul-Salaam’s attorney
satisfied Strickland’s deferential standard on performance with respect to
investigating and presenting mitigating evidence was an unreasonable application
of Strickland and was based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d)(1); Werts, 228 F.3d at 204. “[I]nvestigation is essential to the
lawyer’s duties as both advisor and advocate.” Blystone, 664 F.3d at 419 (citing 1
ABA Standards for Criminal Justice 4–4.1 (2d ed. 1980)). “[C]ounsel’s general
duty to investigate takes on supreme importance to a defendant in the context of
developing mitigating evidence to present to a judge or jury considering the
sentence of death.” Hendricks, 307 F.3d at 99 (quotation marks omitted). Counsel
must make sufficient “efforts to discover all reasonably available mitigating
150

evidence and evidence to rebut any aggravating evidence that may be introduced
by the prosecutor.” Wiggins, 539 U.S. at 524. “Information concerning the
defendant’s background, education, employment record, mental and emotional
stability, family relationships, and the like, will be relevant.” Blystone, 664 F.3d at
420 (quoting 1 ABA Standards, supra, 4–4.1).
In the case at bar, the Pennsylvania Supreme Court found that “counsel had
a reasonable basis for not presenting the mitigating evidence [Abdul-Salaam] now
claims counsel should have offered.” Abdul-Salaam-II, 808 A.2d at 562. In so
finding, the court relied solely on Attorney Lappas’ statements with regard to the
risk of “relitigating the crime” by putting on expert mental health evidence. See id.
at 561. Attorney Lappas also claimed to have made a strategic decision to not
present further mitigation evidence when he stated:
[I]n this case in particular, the emotional impact of the testimony
throughout the trial was such that I would have thought it unlikely that
a jury would accept psychiatric mitigation as a factor, especially one
that would outweigh the really very devastating emotional impact of
the several days of testimony that they just heard.
Id. at 562. In a footnote, the court also concluded that Attorney Lappas was not
deficient in light of the several family members he presented with evidence of
Abdul-Salaam’s abusive upbringing because any additional family member
testimony would have been cumulative. Id. at 562 n.5. Upon our review of the
151

record, however, we believe that the state court’s reliance on counsel’s statement
here was objectively unreasonable in light of the evidence before it. With an
awareness that we are looking back at Attorney Lappas’s performance under the
well-formed guidance of Strickland and its progeny, we note that the evidence he
gathered through family members, as well as the few records from the Lehigh
County juvenile probation department and the Department of Corrections relating
to Abdul-Salaam’s previous criminal history, should have prompted further
investigation rather than a fear that Abdul-Salaam’s crime would be “relitigated.”
See Abdul-Salaam-III, 808 A.2d at 561. Moreover, we are constrained to find that
counsel’s investigation, which did not include a mental health evaluation or
collection of any substantial background materials, was not the result of the type of
reasoned tactical decision to which we owe deference under Strickland. Indeed, at
the PCRA hearing, Attorney Lappas expressly stated that he had no strategic
reason for not obtaining any records relating to Abdul-Salaam’s background,
schooling, prior mental health evaluations, or anything relating to his social
history. Further, despite an initial desire to obtain a mental health evaluation for
purposes of presentation of mitigating evidence at sentencing, once Dr. Crutchley
made it known to him that she could not comply with his limitations for the
interview, Attorney Lappas withdrew his request for an evaluation and sought no
152

further expert assistance of that type.
As the Third Circuit did in Blystone, this Court recognizes that “[t]he right to
counsel does not require that a criminal defense attorney leave no stone and no
witness unpursued.” Blystone, 664 F.3d at 423 (quoting Jermyn v. Horn, 266 F.3d
257, 308 (3d Cir. 2001) (alteration in original) (quotation marks omitted)).
However, the Sixth Amendment “require[s] a reasoned judgment as to the amount
of investigation the particular circumstances of a given case require.” Jermyn, 266
F.3d at 308; see also Strickland, 466 U.S. at 691. From a review of the record in
this case, and again cognizant that we are acting with the benefit of hindsight and
in accordance with the Strickland mandate, we find that counsel’s amount of
investigation was not the result of any such reasoned judgment. Rather, the action
counsel did take and the subsequent decision he made to not introduce further
mitigating evidence was itself not reasonable. Wiggins, 539 U.S. at 522-23.
In sum, viewing the record as a whole, including evidence introduced at
sentencing and in the subsequent PCRA proceedings, the Court concludes that
there is no reasonable argument to sustain the Pennsylvania Supreme Court’s
decision that counsel had a reasonable basis for not presenting available mitigating
evidence. Furthermore, there could be no disagreement among “fairminded
jurists” that the state court’s decision was incorrect. Harrington, ___ U.S. ___,
153

___, 131 S. Ct. at 786 (“[A] state court’s determination that a claim lack merits
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.”) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). As such, the state court’s application of Strickland here
was objectively unreasonable. See 28 U.S.C. § 2254(d)(1). Also, the state court
decision involved an unreasonable determination of the facts in light of AbdulSalaam’s demonstration of clear and convincing evidence to the contrary. See 28
U.S.C. § 2254(d)(2), (e).
b.

Prejudice

Notwithstanding that counsel’s performance was deficient under Strickland,
we find that Abdul-Salaam was not prejudiced by his counsel’s failure to
investigate and present mitigating evidence at the penalty phase.45 In
Pennsylvania, the jury’s decision on the death penalty must be unanimous.
Jermyn, 266 F.3d at 308. Accordingly, a petitioner can satisfy the prejudice prong
if he can show that the presentation of the available mitigating evidence would
have convinced even one juror to find that the mitigating factors outweighed the
aggravating factors. Id. Therefore, this Court must weigh the totality of the
45

As stated above, because the Pennsylvania Supreme Court did not reach the merits of
the prejudice prong, the deferential AEDPA standard of review does not apply. Instead, we will
review this portion of Abdul-Salaam’s claim de novo. Porter v. McCollum, 558 U.S. 30, 39
(2009).
154

mitigating evidence that could have been presented at trial with the aggravating
evidence that was presented and determine whether, “had the jury been confronted
with this . . . mitigating evidence, there is a reasonable probability that it would
have returned with a different sentence.” Wiggins, 539 U.S. at 534, 536.
Applying these principles, we find that a sufficient showing has not been
made that the outcome of the penalty phase of Abdul-Salaam’s trial would have
been different. The mitigating evidence at issue relates to Abdul-Salaam’s early
mental health issues and abuse history. Had counsel’s investigation not been
deficient, the jury would have heard from the later proffered witnesses more
extensive testimony on Abdul-Salaam, Sr.’s drug abuse and aggressive behavior,46
along with more specific instances of physical and mental abuse by AbdulSalaam’s father. From the introduction of background materials, the jury would
have learned that Abdul-Salaam had severe behavioral and emotional problems
prior to entering the Green Tree School at age seven, and those behavioral and
emotional problems continued through age fifteen and while he was on juvenile
probation. From mental health expert testimony, the jury would have heard that in
childhood, Abdul-Salaam had signs of “minimal cerebral dysfunction,” also known
46

Notably, other than Ms. Reeves’ testimony, most of the PCRA testimony of family
members focused on the background of Abdul-Salaam, Sr. rather than providing additional
evidence of abuse of Abdul-Salaam that might lead us to believe that the jury would have
returned with a different sentence.
155

as ADHD or hyperactivity, and which could be characterized as organic brain
damage, and, as an adult, Abdul-Salaam developed some criteria of schizotypal
personality disorder. However, through the testimony presented at sentencing, the
jury did hear the following: (1) Abdul-Salaam suffered mental and physical abuse
at the hands of his father; (2) Abdul-Salaam’s father was a drug user who was
verbally abusive towards Abdul-Salaam’s mother and siblings; (3) Abdul-Salaam
had problems in school as a child; (4) Abdul-Salaam had a learning disorder in
childhood and required placement in a special school; (5) and, as a teenager,
Abdul-Salaam was placed in a rehabilitative ARC program as a result of a juvenile
adjudication. The jury also heard that Abdul-Salaam had close relationships with
his sisters, and that both sisters wished to continue a relationship with their brother
while he was incarcerated. In addition, during his closing, Attorney Lappas
reminded the jury of Abdul-Salaam’s problems with school as a child as well as his
father’s abuse and mistreatment of the family, and argued that the jury should
consider such evidence in weighing mitigating evidence with the aggravating
factors.
Importantly, and certainly not to be overlooked, the jury did in fact find the
catch-all mitigator, specifically stating, “The background that includes both
physical and mental abuse does have a negative impact on a person’s development
156

and therefore his future behavior.” (Sentencing NT 3/16/1995, at 121.) This
finding alone demonstrates that the jury took into account the evidence of AbdulSalaam’s childhood mental and physical abuse, problems with school and
socializing, and financially-distressed family life, as presented through family
witness testimony and Attorney Lappas’s plea to the jury in his closing argument
to weigh the effect of those issues in mitigation. However, the jury was tasked
with the burden of weighing this mitigation evidence with the overwhelming
evidence in support of four aggravating factors offered by the Commonwealth.
Therefore, the Court is not persuaded that the introduction of the additional
evidence presented at the PCRA hearing “might well have influenced [at least one
juror’s] appraisal of [Abdul-Salaam’s] moral culpability.” Williams, 429 U.S. at
398. The United States Supreme Court has stated that “‘evidence about the
defendant’s background and character is relevant because of the belief, long held
by this society, that defendants who commit criminal acts that are attributable . . .
to emotional and mental health problems, may be less culpable than defendants
who have no such excuse.’” Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting
California v. Brown, 479 U.S. 538, 545 (1987)). Here the jury heard evidence of
Abdul-Salaam’s background, including mental health issues and abuse history. In
light of what the jury heard and what the jury did find in mitigation, the Court
157

concludes that Abdul-Salaam has not demonstrated a reasonable probability that
the result of his sentencing hearing would have been different had counsel
presented additional evidence after conducting a more thorough investigation of
mitigating circumstances. Thus, habeas relief on this claim will be denied.
I.

Claim X - The prosecution also withheld from defense counsel
documents in its possession that would have mitigated
punishment in violation of the due process clause.

Abdul-Salaam contends that he is entitled to a new sentencing hearing
because the Commonwealth withheld exculpatory mitigating evidence material to
punishment in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically,
Abdul-Salaam argues that the prosecution violated the requirements of Brady when
it withheld materials containing evidence of Abdul-Salaam’s troubled youth,
family dysfunction, abusive upbringing, organic brain damage, and emotional
illness.47 Upon review, the Court finds Abdul-Salaam is not entitled to habeas
relief on this claim.
The background of this claim is as follows. The materials in question are
records from Lehigh County detailing Abdul-Salaam’s juvenile adjudications,
including records from the juvenile probation department; Wiley House Diagnostic
47

In their answer to the habeas petition, Respondents argue that Abdul-Salaam’s trial
counsel was not ineffective for failing to obtain this evidence and therefore no Brady violation
occurred. (Doc. 19 at 81-84.) This argument, however, is misplaced, as Abdul-Salaam does not
raise an ineffectiveness claim in connection with this issue.
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Center records from the mid-1980's; ARC records from the mid-1980's; and Glen
Mills School for Boys records from the mid-1980's.48 (Doc. 11, Ex. 23.) AbdulSalaam claims that these records were in the possession of the Cumberland County
District Attorney’s office prior to trial, and were gathered specifically for use in the
trial on three separate occasions by two individuals. Initially, the Assistant District
Attorney assisting in the prosecution, Alison Taylor, Esquire, called the Lehigh
County juvenile probation department in order to secure the court orders of AbdulSalaam’s juvenile adjudications for use during the penalty phase. (PCRA NT
10/3/1997, at 11, 14, 32.) The material within those juvenile adjudication records
consisted of police reports and court orders. (Id. at 12, 19-21.) Attorney Taylor
traveled to the Lehigh County Clerk of Court office prior to trial in order to
examine the records. (Id. at 15.) She recalled seeing “some sort of evaluations” in
the records, but no mental health or psychiatric evaluations. (Id. at 17, 24.)
Further, Attorney Taylor provided Abdul-Salaam’s trial counsel with these records
prior to trial.49 (Id. at 22, 23.) In addition, Darby Christlieb, a probation/parole

48

These records have been discussed in detail in connection with Claim IX, and therefore
further elaboration here is not necessary. See supra, Section III.I.
49

During Attorney Taylor’s testimony at the PCRA hearing, other exhibits containing
Abdul-Salaam’s criminal history, juvenile case history, records from ARC, the Wiley House and
Glen Mills School, and a group of letters were identified, but in the case of each exhibit,
Attorney Taylor had not gathered these records from the Lehigh County Clerk’s office or
probation department. (PCRA NT 10/3/1997, at 24-25; 28-32.)
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officer from Cumberland County assigned to both generate a pre-sentence
evaluation of Abdul-Salaam in connection with his 1989 robbery charges in
Cumberland County and gather information for Abdul-Salaam’s penalty phase in
the instant case, collected juvenile records from the Lehigh County juvenile
probation department that contained evaluations of Abdul-Salaam from ARC, the
Wiley House, and Glen Mills School, as well as police reports relating to his
juvenile adjudications. (PCRA NT 12/11/1997, at 236-239; 242.) Mr. Christlieb
testified that Abdul-Salaam signed a release form in order for Mr. Christlieb to
gather the Lehigh County records prior to his 1989 juvenile adjudication. (Id. at
243.) Further, Mr. Christlieb testified that he gathered the information for this
matter at the behest of the Cumberland County District Attorney’s Office. (Id. at
238, 242.) He stated that had Abdul-Salaam’s trial counsel requested the same
records, he would have directed Mr. Lappas to the source of the records, such as
Lehigh County or Glen Mills School, rather than turn over the records himself.
(Id. at 246.)
Abdul-Salaam raised this claim in his first PCRA petition. See AbdulSalaam-II, 808 A.2d at 560. The PCRA court denied the claim, concluding the
following:
The petitioner’s claim fails because of two reasons: (1) the records
were not exculpatory; and (2) they were still available to the petitioner
160

even though the prosecution had copies of them. The petitioner’s
claim that these records contained anything that was exculpatory is
groundless. The records show that the petitioner was an unhappy
child with violent tendencies. They show that petitioner’s home life
was unfortunate, maybe even tragic. However, there is not one report
in those records that states petitioner was mentally ill, or that
petitioner suffered from organic brain damage. Furthermore, the
petitioner could have obtained these records despite the fact the
Commonwealth had copies of them. In conclusion, petitioner’s
assertion that the withholding of these records satisfies a Brady
violation is without merit, and as such we deny the petitioner’s claim
for relief.
(Doc. 19-2 at 13-14, PCRA Op.) On appeal, the Pennsylvania Supreme Court
deemed this claim waived because Abdul-Salaam could have raised it in his direct
appeal but failed to do so, and therefore the court could not review it under the
PCRA. Abdul-Salaam-II, 808 A.2d at 560 (citing 42 Pa. Cons. Stat. § 9543(a)(3)).
“Although the State is obliged to ‘prosecute with earnestness and vigor,’ it
‘is as much [its] duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just
one.” Cone v. Bell, 556 U.S. 449, 469 (2009) (citing Berger v. United States, 295
U.S. 78, 88 (1935)). Further, the Due Process Clause imposes upon the
prosecution an “affirmative duty” to disclose evidence to the accused that is
favorable to the defense and material to guilt or punishment. Brady, 373 U.S. at
87; Kyles v. Whitley, 514 U.S. 419, 432 (1995) (noting the prosecution’s
“affirmative duty”). As stated here, supra Part III.A, “[a] Brady violation occurs
161

if: (1) the evidence at issue is favorable to the accused, because either exculpatory
or impeaching; (2) the prosecution withheld it; and (3) the defendant was
prejudiced because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d
126, 133 (3d Cir. 2011) (internal citations omitted); see also Banks v. Dretke, 540
U.S. 668, 691 (2004). The requirement that the prosecution disclose such
information extends not only to information that is actually known to the
prosecutors, but also to “all information in the possession of the prosecutor’s
office, the police, and others acting on behalf of the prosecution.” Wilson v. Beard,
589 F.3d 651, 659 (3d Cir. 2009) (citing Youngblood v. West Virginia, 547 U.S.
867, 869-70 (2006)); see also Kyles, 514 U.S. at 437-38. Willful or morally
culpable suppression of Brady evidence is not necessary for relief to be granted.
The Supreme Court has long recognized that “[i]f the suppression of evidence
results in constitutional error, it is because of the character of the evidence, not the
character of the prosecutor.” United States v. Agurs, 427 U.S. 97, 110 (1976).
Even a criminal defendant’s failure to request favorable evidence does not abrogate
the prosecution’s disclosure obligations, and a Brady violation might arise even
“where the Government failed to volunteer exculpatory evidence never requested,
or requested only in a general way.” Kyles, 514 U.S. at 433 (citing Agurs, 427
U.S. at 108).
162

“Materiality” of suppressed evidence is established when a petitioner shows
“a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Kyles, 514 U.S. at 433
(internal quotation marks omitted). As stated in Kyles,
A showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have
resulted ultimately in the defendant’s acquittal . . . . The question is
not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy
of confidence. A “reasonable probability” of a different result is
accordingly shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial.
Id. at 434. Moreover, the materiality of Brady evidence must be “considered
collectively, not item by item.” Id. at 436. In addition, the prosecution’s
obligation to disclose Brady materials applies even to evidence that appears
redundant. “Redundancy may be factored into the materiality analysis, but it does
not excuse disclosure obligations.” Monroe v. Angelone, 323 F.3d 286, 301 (4th
Cir. 2003). Finally, the determination of materiality of evidence under Brady is a
mixed question of law and fact that is not subject to the presumption of correctness
of § 2254(e)(1). Simmons v. Beard, 590 F.3d 223, 233 n.5 (3d Cir. 2009).
As stated above, Abdul-Salaam raised this claim in the state courts, but it
was deemed waived by the Pennsylvania Supreme Court. Reviewing this claim de
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novo, therefore, and in keeping with the mandates of Brady, we find that the facts
pertaining to Abdul-Salaam’s own troubled youth, including his dysfunctional
family and abusive upbringing, were known or readily available to Abdul-Salaam
well before trial. Further, any records containing mental health evaluations
marking Abdul-Salaam’s potential organic brain damage and emotional illness
were also known or readily available to him prior to trial. It is well-settled that the
government does not violate Brady by failing to disclose exculpatory or
impeachment evidence that is available to the defense from other sources in the
exercise of due diligence. See, e.g., United States v. Perdomo, 929 F.2d 967, 973
(3d Cir. 1991) (stating in dicta, “Evidence is not considered suppressed if the
defendant either knew or should have known of the essential facts permitting him
to take advantage of any exculpatory evidence.”); United States v. Todd, 920 F.2d
399, 405 (6th Cir. 1990) (holding that nondisclosure of possible exculpatory
material does not violate Brady when the “defendant was aware of the essential
facts that would enable him to take advantage of the exculpatory evidence”);
United States v. Romo, 914 F.2d 889, 899 (7th Cir. 1990) (directing that, when
defense counsel knows about a witness with possible exculpatory information and
had an opportunity to subpoena that witness, prosecutor has no obligation to seek
out and provide the information); United States v. Hicks, 848 F.2d 1, 4 (1st cir.
164

1988) (finding no Brady violation for failure to disclose grand jury testimony of
potential witness not called to testify at trial because defense knew of and had
access to witness and thus was “on notice of the essential facts required to enable
him to take advantage of [the] exculpatory testimony”); Lugo v. Munoz, 682 F.2d
7, 9-10 (1st Cir. 1982) (holding that government has no Brady burden when facts
are readily available to a diligent defender).
In this case, with respect to Abdul-Salaam’s troubled youth, Abdul-Salaam
himself was a direct “participant” in his own upbringing - a first-hand observer of
his own childhood experiences with his family and any abuse at the hands of his
father. Thus, any information with respect to his troubled youth, including
dysfunctional family life and abuse, does not fall within Brady because AbdulSalaam himself possessed knowledge of his own upbringing long before a
prosecutor was required to hand over records. Indeed, even the witnesses
presented at trial on behalf of Abdul-Salaam, such as his mother, provided this
information to the jury. Moreover, since Abdul-Salaam’s mother, his own witness
at trial, had knowledge of the evaluations from the various schools and centers
Abdul-Salaam attended as a child, it stands to reason that Abdul-Salaam “should
have known of the essential facts permitting him to take advantage of any
exculpatory evidence” contained in those evaluations. See Perdomo, 929 F.2d at
165

973.
Next and importantly, there is no evidence of record that the prosecutor
willfully or inadvertently suppressed the records in question here. The record
reflects that Attorney Taylor provided Abdul-Salaam’s trial counsel with the
records of his Lehigh County juvenile adjudications prior to trial. Moreover, the
records were not intentionally withheld by the District Attorney’s Office. In fact,
Mr. Christlieb stated that, even though he would not have personally handed over
the records to Abdul-Salaam’s counsel, he would have directed Attorney Lappas to
the source of the records.
Lastly, the Court finds that Abdul-Salaam has not established that these
additional background records were material and would have changed the outcome
of the trial. In order to demonstrate a reasonable probability of a different
outcome, the defendant must show “the favorable evidence [withheld] could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 420. In making this determination,
the assessment of the omitted evidence must take account of the cumulative effect
of the suppressed evidence in light of the other evidence, not merely the probative
value of the suppressed evidence standing alone. Id. at 436-37.
Here, in light of the strong evidence of Abdul-Salaam’s guilt, as discussed
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extensively herein, the Court finds that, even had the Commonwealth produced the
evaluations and other records in connection with Abdul-Salaam’s juvenile
adjudications, Abdul-Salaam has failed to establish a reasonable probability that
the outcome of the trial would have been different in light of the duplicative nature
of the contents of the records and Abdul-Salaam’s mother’s testimony. AbdulSalaam is not entitled to relief on this claim.
J.

Claim XI - Trial counsel was also ineffective when he failed to
request instructions that the jury could consider evidence of
Petitioner’s abusive and dysfunctional upbringing under 42 Pa.
Cons. Stat. § 9711(e)(2) &(3) and the trial court erred when it
failed to provide such instructions.

Abdul-Salaam next contends that his due process rights and rights under the
Eighth Amendment were violated when trial counsel failed to request, and the trial
court failed to instruct, that the jury be charged on two mitigating circumstances
related to mental health for which he argues some evidence was presented. Those
two mitigating circumstances at issue here, set forth under 42 Pa. Cons. Stat. §
9711(e)(2) and (e)(3), are “The defendant was under the influence of extreme
mental or emotional disturbance” and “The capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired.” Upon review, the Court finds that Abdul-Salaam is
not entitled to habeas relief on this claim.
167

The background of this claim is as follows. At the beginning of the
sentencing phase, the trial court asked Abdul-Salaam’s counsel at sidebar if he
wanted the court to mention any specific aggravating and mitigating circumstances
that may be argued or simply read the entire list from the sentencing code to the
jury. (Sentencing NT 3/16/1995, at 4.) Trial counsel responded, “I would rather
you say nothing about it.” (Id.) After further brief discussion, the trial court gave
the jury a preliminary instruction prior to opening statements and testimony with
general language regarding the nature of aggravating and mitigating circumstances.
(Id. at 16-18.) The court included in this instruction two aggravating
circumstances the Commonwealth planned to argue from the evidence adduced in
the case: (1) that the victim was a peace officer who was killed in the performance
of his duty; and (2) that the defendant committed the killing in the perpetration of a
felony. (Id. at 17.) The court also included the following instruction on mitigating
circumstances:
Mitigating circumstances are also set forth in the Sentencing Code.
They are several and include basically any and all evidence of
mitigating matters concerning the character or the record of the
defendant, or the circumstances of the offense, which tend to mitigate
this sentence and suggest life imprisonment as opposed to the death
penalty.
(Id. at 18.) Following preliminary instructions, the Commonwealth gave an
opening statement, but Abdul-Salaam’s trial counsel declined to do so. Further,
168

after the jury heard the evidence, Abdul-Salaam’s trial counsel did not expressly
state any of the eight mitigating circumstances as set forth in Pennsylvania’s
sentencing procedures, but made the following relevant remarks during closing
arguments:
[F]rom the history of civilization the decisions in any kind of criminal
case, the sentencing decisions, have been based upon the upbringing,
the record, the influences on the defendant. Not because it excuses
the crime, not even because it always explains it, but often it does
mitigate it.
***
What is the mitigation? What is the weight of mitigation as
mitigation? Of growing up thinking because your own father tells you
this that you are no good, that you are worthless. What is the effect in
mitigation of living in a house where you have to tiptoe around so that
somebody doesn’t beat you until you can’t breathe. What is the
weight and mitigation of having it droned into you from youth that
you are trouble? The schools can’t help you. Your mother can’t help
you. And when you reach a certain age, and you are in a bedroom
with your little brother, and your father comes in and takes a ball bat
to the both of you, and you can’t help him because you are little.
Does that mean that he is not guilty. By your verdict he is guilty.
That’s not vague abuse.
(Id. at 102; 107.) The trial court then provided the jury with the following charge
on mitigating circumstances:
Now, under the Sentencing Code the following matters, if proven to
your satisfaction by a preponderance of the evidence, can be
mitigating circumstances. And they are these. Namely, any evidence
of mitigation concerning the character and record of the defendant and
the circumstances of his offense. And these could include
169

circumstances of the defendant and his past life, and may be regarded
by you as a mitigating circumstance, provided you find that they are
supported by the evidence and are not merely an emotional response.
In other words, mitigating circumstances are those which, while they
do not constitute a justification or excuse for this particular crime,
may in fairness and mercy, be considered as extenuating or reducing
the degree of blame, provided, of course, as I said, that they are
supported by the evidence and not merely an emotional reaction.
***
And in deciding whether aggravating circumstances outweigh
mitigating circumstances, of course, you do not simply count the
number of them. You compare the seriousness and the importance of
the aggravating and the mitigating circumstances. And if you all
agree on one of the two general findings, then you can and you must
sentence the defendant to death in this case.
Now, when voting on the general findings, you are to regard a
particular aggravating circumstance as present only if you all agree
that it is present. On the other hand, each of you is free to regard a
particular mitigating circumstance as present despite what other jurors
believe.
(Id. at 114-15; 116.) After deliberation, the jury found all four aggravating
circumstances charged, and found one catchall mitigating circumstance: “The
background that includes both physical and mental abuse does have a negative
impact on a person’s development and therefore his future behavior.” (Id. at 121.)
Abdul-Salaam raised this issue in his PCRA petition, but the PCRA court
did not address it. See Abdul-Salaam-II, 808 A.2d at 560. On appeal, the
Pennsylvania Supreme Court deemed the claim waived because Abdul-Salaam
170

could have raised it in his direct appeal but failed to do so, and therefore the court
could not review it under the PCRA. Abdul-Salaam-II, 808 A.2d at 560 (citing 42
Pa. Cons. Stat. § 9543(a)(3)). Because there was no decision on the merits in state
court, we will review this claim de novo.
The United States Supreme Court has long recognized the importance which
mitigating evidence plays in ensuring that a capital trial is at once consistent and
principled but also human and sensible to the uniqueness of the individual. See
Eddings v. Oklahoma, 455 U.S. 104, 110-11 (1982); Lockett v. Ohio, 438 U.S. 586,
604 (1978). The Court has further held that the Eighth and Fourteenth
Amendments require that the sentencer not be precluded from considering as a
mitigating factor any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death. Peterkin v. Horn, 176 F. Supp. 2d 342, 378 (E.D. Pa. 2001) (citing
Penry v. Lynaugh, 492 U.S. 302, 317 (1989)).
The Pennsylvania death penalty statute sets forth the trial court’s obligations
to provide instructions to the jury on the statutory mitigating circumstances.
Specifically, the statute states, in part, “the court shall instruct the jury on . . . the
mitigating circumstances specified in subsection(e) as to which there is some
evidence.” 42 Pa. Cons. Stat. § 9711(c)(1)(ii). Accord Commonwealth v.
171

Saranchak, 866 A.2d 292, 305 (Pa. 2005) (holding that where there is “some
evidence” to support one of the statutory mitigators, the trial court must instruct the
jury on that circumstance) (citing Commonwealth v. Frey, 475 A.2d 700, 704 (Pa.
1984)).
As set forth above, the trial court instructed the jury on four aggravating
circumstances and one mitigating circumstance. The mitigating circumstance is
known under Pennsylvania law as the “catchall” mitigator, as it relates to any
evidence regarding a defendant’s character and record, as well as the circumstances
of the offense. See 42 Pa. Cons. Stat. § 9711(e)(8). In his petition, Abdul-Salaam
argues that the lack of an instruction on the subsection (e)(2) and (e)(3) mitigating
factors failed to inform the jurors that the Constitution requires them to consider in
mitigation that Abdul-Salaam had mental health mitigation in his background.
However, as the record clearly shows, the jury did in fact consider in mitigation
Abdul-Salaam’s mental health background. Specifically, the jury found the
catchall mitigator, and expressly stated it as: “The background that includes both
physical and mental abuse does have a negative impact on a person’s development
and therefore his future behavior.” (Sentencing NT 3/16/1995, at 121.) Given the
nature of that language, it is apparent that the jury actually used the mental health
evidence presented to find the subsection (e)(8) mitigating factor. There is nothing
172

in the record to persuade us that other evidence was used to find this factor or, for
that matter, that there was further evidence to find subsection (e)(2) and (e)(3)
mitigating factors in addition to the catchall mitigator.
Moreover, in his petition, Abdul-Salaam argues generally that “his history
and other indicia of mental illness contained in his background” would have led the
jury to a finding of the (e)(2) and (e)(3) mitigating factors. Without a more
specific reference to what “history and other indicia of mental illness” AbdulSalaam believes the jury should have heard, the Court is left to look to the
additional record presented in Claim III. Notably, we have already determined that
the additional evidence presented at the PCRA hearing does not prove mental
illness, and that additional history would not have caused a reasonable jurist to
question the outcome of the trial. As such, in light of all the evidence on record,
the Court cannot conclude that the jury would have found, in addition to the
catchall mitigator, these two other mitigating circumstances.
Even assuming arguendo that the trial court incorrectly instructed the jury as
to the subsection (e)(2) and (e)(3) mitigating factors, habeas relief is not warranted.
The question for consideration in evaluating an allegedly erroneous jury instruction
is “whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72
173

(1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The instruction is
considered in the context of the instructions as a whole and the trial record, Cupp,
414 U.S. at 147, and reviewed to determine “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way” that
violates the Constitution, Boyde v. California, 494 U.S. 370, 380 (1990).
Abdul-Salaam has not met that standard here. Rather, the instructions as a
whole and the rest of the record confirm that the jury was free to consider any
mitigating evidence under the catchall provision 42 Pa. Cons. Stat. § 9711(e)(8).
Further, the evidence presented relating to Abdul-Salaam’s troubled youth does not
show that Abdul-Salaam was extremely mentally or emotionally disturbed at the
time of the killing. Nor does the evidence show that Abdul-Salaam’s capacity to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired at the time of the killing. Thus,
Abdul-Salaam has not demonstrated that there is a reasonable likelihood that the
jury applied the instructions in a way that violates his constitutional rights.
Additionally, because the jury was free to consider evidence of Abdul-Salaam’s
mental health and his being abused under the umbrella of the catchall provision of
42 Pa. Cons. Stat. § 9711(e)(8), Abdul-Salaam has not shown here that the absence
of the (e)(2) and (e)(3) mitigating circumstances violated his federal constitutional
174

rights or that he was prejudiced by his counsel’s decision not to request the
relevant instructions to the jury. Habeas relief on this claim will therefore be
denied.
K.

Claim XII - The jury improperly found the existence of the (d)(6)
aggravating circumstance in violation of due process of law and
the Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.

In his final habeas claim, Abdul-Salaam contends that his constitutional
rights were violated when the jury improperly found the existence of the (d)(6)
aggravating circumstance after the trial court provided a faulty guilt phase
instruction on criminal homicide and failed to provide a corrective instruction at
the penalty phase. Abdul-Salaam argues that, as a result of the trial court’s error,
the jury found an invalid (d)(6) aggravator and therefore his death sentence
violates his Fifth, Eighth, and Fourteenth Amendment rights. Upon careful review,
the Court finds that Abdul-Salaam is not entitled to habeas relief on this claim.
The background of this claim is as follows. At a penalty phase of trial, the
Commonwealth is required to prove aggravating circumstances for which there is
some evidence beyond a reasonable doubt. See 42 Pa. Cons. Stat. §§ 9711(c)(i),
(iii). In this case, the jury was asked to consider, inter alia, the aggravating
circumstance: “The defendant committed a killing while in the perpetration of a
felony.” 42 Pa. Cons. Stat. § 9711(d)(6). As background in connection with this
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aggravator, the trial court gave the jury the following instruction at the guilt phase:
The burden of proof is on the Commonwealth to establish the
defendant’s guilt, and that guilt must be established beyond a
reasonable doubt. Thus in order to convict the defendant in this
particular case, you must be satisfied that the Commonwealth has
established each and every element of the offense as I’m about to
describe them to you, and that it was, in fact, the defendant who
committed the offense beyond a reasonable doubt.
***
Now, I suggest to you that you should first consider whether the
defendant was, of course, present at the scene, and whether he or one
of his co-defendants discharged the firearm leading to Officer Cole’s
death. Once you’ve resolved this question then you should go on to
consider the various degrees of murder, if any, or the various degree
of murder, if any, in which he is guilty.
***
You many find the defendant guilty of first degree murder if you are
satisfied that the following elements have been proven beyond a
reasonable doubt. First, that Willis Cole is dead. Secondly, that the
defendant killed him. And, thirdly, that the defendant did so with the
specific intent to kill, and with malice.
(Trial NT 3/15/1995, at 145, 153-54.) After deliberating for some time, the jury
asked the trial court for a copy of the “definition” of each degree of murder. (Id. at
180.) Although the court refused to send out written instructions to the jury, it did
explain again the degrees of murder. (Id. at 181-86.) Specifically, with respect to
first degree murder, the court stated:
[I]n order to find the defendant guilty of first degree murder, you must
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be satisfied that at the time of the shooting the defendant had the - number one, of course, that he was the person who shot Officer Cole,
and at the time that he did so that he did so with the specific intent to
kill Officer Cole. Or said another way, with the specific intent that
Officer Cole die as a result of what he did or was doing.
(Id. at 181) (emphasis added). After further deliberation, the jury found AbdulSalaam guilty of first degree murder. (Id. at 187.)
At the sentencing phase, the trial court set forth the aggravating
circumstances argued by the Commonwealth, including “the defendant committed
a killing while in the perpetration of a felony.” (See Sentencing NT 3/16/1995, at
113.) In explaining those aggravating circumstances, the trial court also stated,
[T]he fact that you found Seifullah Abdul-Salaam guilty beyond a
reasonable doubt of murder of the first degree, or the crime of
conspiracy, for example, are not themselves aggravating
circumstances. Though as I indicated the commission of this murder
while in the perpetration of a felony or robbery rather is an
aggravating circumstance.
(Id. at 114.) After deliberation, the jury found all four aggravating circumstances
and one mitigating circumstance, and sentenced Abdul-Salaam to death. (Id. at
121.)
Abdul-Salaam raised this issue in his PCRA petition, but the PCRA court
did not address it. See Abdul-Salaam-II, 808 A.2d at 560. On appeal, the
Pennsylvania Supreme Court deemed the claim waived because Abdul-Salaam
could have raised it in his direct appeal but failed to do so, and therefore the court
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could not review it under the PCRA. Abdul-Salaam-II, 808 A.2d at 560 (citing 42
Pa. Cons. Stat. § 9543(a)(3)). Because there was no decision on the merits in state
court, we will review this claim de novo.
When language in jury instructions is challenged, the language in question
“must be considered in the context of the instructions as a whole and the trial
record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991). The Court must then
consider “‘whether there is a reasonable likelihood that the jury has applied the
challenged instructions in a way’ that violates the Constitution.” Smith v. Horn,
120 F.3d 400, 411 (3d Cir. 1997) (quoting Estelle, 502 U.S. at 72).
In his petition, Abdul-Salaam argues that, in light of the guilt phase
instruction the jury received and the absence of any corrective instruction during
the penalty phase, the jury should have been precluded from considering what was
an invalid (d)(6) aggravator. Specifically, he contends that the (d)(6) aggravator
was invalidated by the trial court’s statement that Abdul-Salaam could be found
guilty of criminal homicide if either “he or one of his co-defendants discharged the
firearm leading to Officer Cole’s death.” (Trial NT 3/14/1995, at 153.) By so
instructing, the trial court “left the jury with the impression that this circumstance
could be found beyond a reasonable doubt whether Petitioner ‘or one of his
codefendants’ did the actual shooting,” (Doc. 8-5 at 14-15.) In making this
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argument, Abdul-Salaam contends that the jury may have relied upon a theory of
accomplice liability as a basis for its first degree murder conviction, and therefore
when it sentenced Abdul-Salaam to death based, in part, on the (d)(6) aggravator of
“committ[ing] a killing while in the perpetration of a felony,” which is an invalid
aggravating circumstance.50 However, viewing the trial court’s instructions as a
whole, it is apparent that the trial court instructed the jury that to find AbdulSalaam guilty of first degree murder, it had to determine beyond a reasonable
doubt that, inter alia, he was the person who killed Officer Cole. Notably, when
the jury returned with a question as to degrees of murder, the trial court responded
that in order to find Abdul-Salaam guilty of first degree murder, it had to be
satisfied that at the time of the shooting, Abdul-Salaam “was the person who shot
Officer Cole, and at the time that he did so that he did so with the specific intent to
kill Officer Cole.” (Trial NT 3/15/1995, at 181.) Further, as discussed and found
herein, there is no evidence on record that Abdul-Salaam was in fact an accomplice
in the act of killing Officer Cole. Therefore, in view of the instructions given as
well as the record, it is not reasonably likely that the jury interpreted the trial
court’s comment that Abdul-Salaam could be found guilty of criminal homicide if

50

In Commonwealth v. Lassiter, 722 A.2d 657, 662 (Pa. 1998), the Pennsylvania
Supreme Court held that “Section 9711(d)(6) may not be applied to an accomplice who does not
‘commit’ the killing in the sense of bringing it to completion or finishing it.”
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either “he or one of his co-defendants discharged the firearm leading to Officer
Cole’s death,” (Trial NT 3/14/1995, at 153), to mean that they could consider
accomplice liability as a possible ground for conviction. Instead, because the jury
found Abdul-Salaam guilty of first degree murder based in part on its finding that
he was the person who shot and killed Officer Cole, the subsequent consideration
of the (d)(6) aggravator should not have been precluded upon a theory that the jury
considered Abdul-Salaam to be an accomplice rather than the shooter. Therefore,
the jury’s finding here does not broaden the application of the death penalty statute
in a manner that is inconsistent with the Eighth Amendment and due process of
law. Habeas relief on this claim will be denied.
IV.

CONCLUSION
Nearly two decades have passed since Officer Willis Cole was murdered.

Over nineteen years have elapsed since the trial that resulted in Abdul-Salaam’s
conviction. And yet this Memorandum and the Order that follows will not end the
legal maneuvering that seeks to overturn both his conviction and resulting sentence
of death at the hands of a jury of his peers.
It was not until well after the founding of this nation that the federal writ of
habeas corpus was extended to prisoners in state custody. But like a rolling freight
train, the use of the Great Writ gathered speed in the ensuing decades. It was
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adopted by the federal courts, codified by Congress, revised, and to some degree
limited in certain respects. But the case at bar amply demonstrates that there is
something grievously amiss in both our laws and jurisprudence as they relate to
federal habeas practice. For while we admire zealous advocacy and deeply respect
the mission and work of the attorneys who have represented Abdul-Salaam in this
matter, they are at bottom gaming a system and erecting roadblocks in aid of a
singular goal – keeping Abdul-Salaam from being put to death. The result has
been the meandering and even bizarre course this case has followed. Its time on
our docket has spanned nearly all of our service as a federal judge – almost twelve
years. We have given Abdul-Salaam every courtesy and due process, perhaps even
beyond what the law affords. And yet for the family of Willis Cole, and indeed for
Abdul-Salaam and his family as well, there has been no closure. Rather, they have
endured a legal process that is at times as inscrutable as it is incomprehensible.
Moreover, it will soon take another turn as the Third Circuit Court of Appeals
reviews our determination.
It is right and proper to insure that criminal defendants are given fair and
open trials that fully comport with the protections afforded to them in the
Constitution. But we fear that a process has evolved that in reality is based on the
goal of perfection rather than constitutionality. There are no perfect trials, and
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Abdul-Salaam’s was no exception. However, at the end of the day, this Court is
fully convinced that Abdul-Salaam was afforded a trial and sentencing that did not
violate the Constitution of the United States in any single respect.
Based on the foregoing, the Court will deny Abdul-Salaam’s petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to Local Appellate
Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit,
at the time a final order denying a petition under 28 U.S.C. § 2254, the district
court must make a determination as to whether a certificate of appealability should
issue. 3d.Cir. L.A.R. 22.2. A certificate of appealability should issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To meet this burden a petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484-5 (2000) (internal citations and quotations omitted). In the present
matter, the Court will deny a certificate of appealability because jurists of reason
would not debate whether the Court properly resolved the issues presented.
An appropriate order will issue.

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