GORBY v. WETZEL et al

Filing 77

MEMORANDUM OPINION re 67 MOTION in Limine to Enforce Petitioner's Right Against Self-Incrimination and Limit Cross-Examination of Petitioner at the August 2, 2016 Evidentiary Hearing filed by THOMAS J. GORBY. Petitioner's motion [ECF 67] is granted for the reasons set forth more fully within. Signed by Chief Judge Joy Flowers Conti on 9/6/2016. (cal)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS J. GORBY,
Petitioner,
v.
JOHN WETZEL, Secretary Pennsylvania
Department of Corrections, and JAY
LANE, Acting Superintendent of the State
Correctional Institution at Fayette,
Respondents.

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Civil Action No. 2: 12-cv-1170

MEMORANDUM OPINION
CONTI, Chief District Judge.
Presently pending before the court is petitioner’s motion in limine to enforce petitioner’s
right against self-incrimination and limit cross-examination of petitioner at the evidentiary
hearing scheduled for September 7, 2016. (ECF No. 67). Respondents filed a response in
opposition. (ECF No. 70).
Petitioner Thomas J. Gorby (“petitioner”) raises one claim in support of his request for
habeas relief; to wit: his trial counsel was ineffective for failing to reasonably investigate,
develop, and present a diminished capacity defense. Because the sole issue raised is an issue of
ineffectiveness of counsel, the determination is governed by the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail, 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.
This court made a preliminary determination that trial counsel’s conduct during the guilt
phase of trial fell below an objective standard of reasonableness. In light of this determination,
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the court must next determine whether the deficient representation was prejudicial to the
petitioner. To this end, the court scheduled an evidentiary hearing and will receive evidence on
the following topic: “If informed by trial counsel that a diminished capacity defense was
available, would Petitioner have authorized his trial counsel to contest the degree of culpability
based upon an inability to formulate the specific intent to kill.” (May 3, 2016 Order, ECF No.
62). To pursue that defense in his trial, petitioner could not have “maintained his innocence.”
Jacobs v. Horn, 395 F.3d 92, 108 (3d Cir. 2005).
Petitioner filed the instant motion in which he requests that the court limit any crossexamination to the direct examination to which petitioner testifies at the upcoming evidentiary
hearing. Petitioner asserts that testimony will relate solely to the issue of whether he would have
authorized trial counsel to pursue a diminished capacity defense. Respondents argue that they
should be permitted to question petitioner, inter alia, on whether he now admits that he is
generally liable for the killing in the underlying criminal case. Such an admission, according to
respondents, “would provide this Court some assurance that the Petitioner is being credible when
he avers that he would, in fact, pursue a defense of diminished capacity upon retrial and not a
defense of actual innocence.” Resp. at ¶ 8 (ECF No. 70).
The court finds respondents’ arguments to be unavailing. Initially, the court notes that the
Federal Rules of Evidence apply in habeas cases. Federal Rule of Evidence 611(b) defines the
scope of cross examination. The court could not find any case law to directly support
respondents’ position. The determinative issue is whether petitioner was prejudiced by the
failure to pursue a diminished capacity defense at his original trial. See Jacobs, 395 F.3d at 105,
108 (the court of appeals noted that a “diminished capacity defense is inconsistent with an
assertion of of innocence” and addressed whether the outcome at trial would have been different;
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the court did not expressly address whether petitioner would actually pursue such a defense on
retrial); Commonwealth v. Legg, 711 A.2d 430, 448 (Pa. 1998) (Pennsylvania Supreme Court
framed prejudice in terms of the factfinder’s inability to consider evidence of diminished
capacity, which could have changed the outcome of the trial, but did not require Legg to agree to
a diminished capacity for a retrial).
For these reasons, the motion in limine will be granted. An appropriate order will be
entered.
BY THE COURT:
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge
Dated: September 6, 2016

cc:

Samuel J. Angell
Federal Community Defender Office for the Eastern District of Pennsylvania
(via ECF electronic notification)
Jerome A. Moschetta
Washington County District Attorney's Office
(via ECF electronic notification)

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