KEEL v. COLEMAN

Filing 32

MEMORANDUM OPINION. Signed by Chief Judge Joy Flowers Conti on 1/13/2017. (smc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDREW AIMEE KEEL,
Petitioner,
v.
SUPERINTENDENT COLEMAN, et al.,
Respondents.

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Civil Action No. 14-122 Erie

MEMORANDUM OPINION
CONTI, Chief District Judge.
Andrew Aimee Keel (the "petitioner") filed with this court a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in which he challenged the judgment of sentence imposed
upon him in June 2008 by the Court of Common Pleas of Erie County on his convictions of
burglary, robbery and related crimes. He raised four claims in which he contended that his trial
attorney provided him with ineffective assistance in violation of his Sixth Amendment rights.
This case was referred to a United States Magistrate Judge in accordance with 28 U.S.C.
§ 636(b) and Local Rule 72. On June 15, 2016, the magistrate judge issued a report and
recommendation ("R&R") (ECF No. 22) in which she recommended that each of the petitioner's
claims be denied on the merits and that a certificate of appealability be denied.
The petitioner was served with the R&R at his address of record and was advised that he
had until July 5, 2016, to file objections to it. He did not file objections by that deadline and on
July 19, 2016, after de novo review of the R&R and the other documents filed in this case, the
court issued a memorandum opinion (ECF No. 23) and order (ECF No. 24) in which it adopted
the R&R as the opinion of the court, entered judgment in favor of the respondents and against the
petitioner, and closed this case.
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The petitioner subsequently notified the court that he had intended to file a motion for an
extension prior to the date objections were due, but filed it with the court of appeals by mistake.
He asked that this court vacate its final judgment and consider his objections (ECF No. 30). His
request is granted.
Where, as here, objections were filed, the court is required to make a de novo
determination about those portions of the R&R to which objections were made. 28 U.S.C.
§ 636(b)(1). Accordingly, the court examined de novo all arguments raised by the petitioner in
his objections and agrees with the magistrate judge that the petition should be denied and that a
certificate of appealability should be denied.
I.

Discussion
A.

Trial Counsel's Decision Not to Call Edna Keel As an Alibi Witness

In Claim One and Claim Three, the petitioner contended that his trial counsel was
ineffective for failing to present his wife, Edna Keel, as an alibi witness. The PCRA court held
an evidentiary hearing on these claims on May 29, 2012. At that hearing, trial counsel testified
that he did not call Edna Keel as an alibi witness1 because he learned from his pretrial interview
of her that she could place the petitioner at home with her during only the day and early evening
hours of July 13, 2007, and not at the time the crimes were committed (which was after
11:30 p.m. on July 13, 2007). (5/29/12 PCRA Hr'g Tr. at 5-6).

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Although Edna Keel did not testify as an alibi witness, she did testify for the defense at the petitioner's trial.
She discussed the type of sneakers that he owned in order to try to distinguish him from the description that the
victim gave to the police. (5/20/08 Trial Tr. at 96).

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The PCRA court found trial counsel's testimony to be credible. Commonwealth v. Keel,
No. 3028 of 2007, slip op. at 18-19 (C.P. Erie June 5, 2012) (referred to herein and in the R&R
as "Keel II"). The magistrate judge explained that this court must defer to the PCRA court's
finding under 28 U.S.C. § 2254(e)(1). That section of the federal habeas statute provides that "a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence." 28 U.S.C. § 2254(e)(1).
In his objections, the petitioner directed the court to an affidavit signed by Edna Keel in
which she swore that she told trial counsel that the petitioner "was home around about
11:30 p.m." on July 13, 2007, and that she would have testified to that fact if she had been asked
at trial. (Affidavit of Edna Keel, ECF No. 30-1 at 1). This affidavit does not amount to "clear and
convincing evidence" that rebuts the PCRA court's determination to credit trial counsel's
explanation as to why he did not call Edna Keel as an alibi witness. The petitioner submitted that
same affidavit to the PCRA court as an attachment to his PCRA petition, but Edna Keel did not
testify at the subsequent evidentiary hearing, even though she was present in the courtroom.
(5/29/12 PCRA Hr'g Tr. at 5-6).2 The PCRA court noted that Edna Keel did not testify and
observed: "[h]ence, Petitioner did not refute the factual basis asserted by trial counsel for not
calling" her as an alibi witness. Keel II, No. 3028 of 2007, slip op. at 18.

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During his testimony, the petitioner's trial attorney stated that Edna Keel was "in the back of the
courtroom[,]" and that "she can disagree with me if she wants, but my recollection is that she put him in the house
earlier that day and early evening, but not at the time that [the crimes] happened, so she wasn't a proper alibi witness
to call." (5/29/12 PCRA Hr'g Tr. at 6).

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B.

Trial Counsel's Failure to Challenge the Fingerprint and
Photo Lineup Evidence

In Claim Two and Claim Four, the petitioner argued that his trial attorney was ineffective
for failing to challenge the admission of the fingerprint evidence. Corporal William D. Wagner
analyzed that evidence. On or around July 23, 2007, the Erie police sent him the fingerprint lifts
taken from items the victim stated the petitioner touched during the robbery. Corporal Wagner
issued his report on October 30, 2007, and in it he concluded that the petitioner's fingerprint was
on the victim's vase. The petitioner argued that Corporal Wagner's alleged delay in issuing his
report was a ground upon which his expert opinion could be challenged. As the magistrate judge
explained, however, trial counsel made the tactical decision not to exploit the alleged delay
because if he did, the prosecution would be permitted to explain to the jury that the petitioner had
committed another robbery and burglary in the victim's neighborhood and that is what prompted
the investigators to contact Corporal Wagner around October 2, 2007, and ask him to compare
the fingerprints collected from the victim's items with the petitioner's known prints. (5/20/08
Trial Tr. at 98-99).
None of the other arguments that the petitioner contended his counsel should have raised
with respect to the fingerprint evidence have merit. That unidentified fingerprints were found on
other items belonging to the victim does not negate the presence of the petitioner at the scene of
the crime since his fingerprint was found on the victim's vase. As the PCRA court observed, the
petitioner provided no support for his allegation that there was "a breakdown in the chain of

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custody of the latent prints from [Detective Adam] DiGilarmo to [Brian] Lechner to Wagner[.]"3
Keel II, No. 3028 of 2007, slip op. at 11.
In Claim Four, the petitioner also faulted trial counsel for failing to challenge the
admission of the photo lineup from which the victim identified him, which was introduced at his
trial as Commonwealth exhibit 2. In his objections, the petitioner argued that counsel should
have challenged the authenticity of the photo lineup because the copy of it introduced at his trial
was dated May 13, 2008, and not October 17, 2007, the date the victim viewed the lineup. This
argument has no merit. The copy of the photo lineup admitted at the trial indicates merely that it
was "[p]rinted" by the Erie Police Department on May 13, 2008, which was seven days prior to
the start of the petitioner's trial. (Commonwealth Ex. 2, ECF No. 30-1 at 7).
II.

Conclusion
Each of the petitioner's claims are denied and a certificate of appealability is denied with

respect to all claims. The petitioner's objections to the R&R are overruled and the court approves
and adopts the R&R as the opinion of the court, as supplemented by this memorandum opinion.
Appropriate orders follow.
BY THE COURT,
Date: January 13, 2017

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Court Judge

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Adam DiGilarmo, a detective with the Erie Police identification unit, processed the vase and the platter
from victim's apartment for fingerprints. (5/20/08 Trial Tr. at 26). Lechner submitted the fingerprint lifts to the
Pennsylvania State Police for entry into the Automated Fingerprint Identification System to see if a match could be
made. (Id. at 24, 29, 42, 57).

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