GORBY v. WETZEL et al

Filing 83

MEMORANDUM OPINION re 2 Petition for Writ of Habeas Corpus filed by THOMAS J. GORBY. The Court will sustain Petitioner's objections to the Report and Recommendation 42 . The Court will grant the habeas petition and issue a conditional writ of habeas corpus obligating the Commonwealth to either release Petitioner or retry him within 120 days. Signed by Chief Judge Joy Flowers Conti on 09/28/2016. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS J. GORBY,
Petitioner,
v.
JOHN WETZEL, Secretary Pennsylvania
Department of Corrections, DISTRICT
ATTORNEY OF WASHINGTON
COUNTY, PENNSYLVANIA, and JAY
LANE, Superintendent of the State
Correctional Institution at Fayette,1
Respondents.

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Civil Action No. 2: 12-cv-1170

MEMORANDUM OPINION
CONTI, Chief District Judge.
I. Introduction
Presently before the court is the counseled petition for writ of habeas corpus filed on
behalf of Thomas J. Gorby, also known as Jeff Gorby (“Gorby” or “petitioner”), pursuant to 28
U.S.C. § 2254. (ECF No. 2). Gorby is challenging his 1986 conviction for first-degree murder
in the Court of Common Pleas of Washington County, Pennsylvania. The magistrate judge to
whom the case was referred issued a report and recommendation (“R&R”) in accordance with 28
U.S.C. § 636(b)(1)(B), which recommended that both the petition and a certificate of
appealability be denied. (ECF No. 42.) Gorby filed objections to the R&R arguing that

Records of the Pennsylvania Department of Corrections state that Petitioner Thomas J.
Gorby is currently incarcerated at SCI-Fayette, http://inmatelocator.cor.pa.gov/#/, and the
warden of this institution is Jay Lane, http://www.cor.pa.gov/Facilities/StatePrisons/Pages/
Fayette.aspx#.V9V3053D_OE (last visited September 28, 2016). Therefore, in accordance with
Rule 2(a) of the Rules Governing 2254 Cases and Fed.R.Civ.P. 25(d), the caption is updated
accordingly.
1

1

counsel’s failure to present a diminished capacity defense at trial resulted from counsel’s
unreasonably limited investigation and he was, accordingly, ineffective. (ECF No. 48.)
Where, as here, objections have been filed, the court is required to make a de novo
determination about those portions of the R&R to which objections were made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The court may accept, reject, or modify the recommended
disposition, as well as receive further evidence or return the matter to the magistrate judge with
instructions. After reviewing de novo the record in this case, including Gorby’s objections to
the R&R (ECF No. 48), his supplement to the objections (ECF No. 57), Respondents’ reply
(ECF No. 60), the arguments of counsel presented at the January 19, 2016 status conference, the
evidence presented at the hearing on September 7, 2016, and the supplemental briefing submitted
by the parties (ECF Nos. 80, 81), the court disagrees with the magistrate judge’s ultimate
conclusion that Gorby is not entitled to habeas relief. Therefore, the court declines to adopt the
R&R as the opinion of the court. For the reasons that follow, the court will sustain Gorby’s
objections and issue a conditional writ of habeas corpus obligating the Commonwealth to either
release Gorby or retry him within 120 days.
II. Procedural and Background History
A.

Trial and Direct Appeal
On September 17, 1986, a jury empaneled by the Court of Common Pleas of Washington

County, Pennsylvania, found Gorby guilty of first-degree murder in the death of Drayton Sphar
(“Sphar”). The jury also found Gorby guilty of robbery for having taken Spahr’s belongings
including, inter alia, his wallet, money, and belt during the course of the killing. (The robbery
conviction is not being challenged in this case.) The Commonwealth presented overwhelming

2

evidence establishing that Gorby had committed the murder and robbery. The Pennsylvania
Supreme Court summarized the trial evidence as follows:
On Friday, December 20, 1985, James Yeager, a friend of the victim,
Drayton Sphar, telephoned Sphar and asked Sphar to pick him up at the Old Trails
Inn. Spahr arrived at the Old Trails Inn at approximately 10:00 p.m. that evening.
Also present that evening at the Old Trails Inn was the appellant, Thomas Gorby.
When he arrived, Sphar was wearing a leather jacket and a chain belt with
a buckle which bore his name on the back. He was also carrying a wallet which
was embossed with a Harley Davidson emblem. While there, he bought several
drinks for Yeager and [Gorby]. He also bought at least one round of drinks for
the entire bar that evening. Each time he bought drinks, the victim displayed a
large roll of bills which was particularly visible to Yeager and Gorby who were
seated next to him.
After a couple hours passed, [Gorby] asked the victim to give him a ride to
the Somerset Inn so that [Gorby] could retrieve his car which was supposedly
parked in the Somerset Inn’s parking lot. The Somerset Inn is located
approximately six miles from the Old Trails Inn. Gorby and the victim left the
Old Trails Inn somewhere between midnight and 12:30 a.m. on December 21,
1985, in Sphar’s 1976 dark green, Mercury Marquis. Upon leaving, the victim
assured Yeager that he would return to drive Yeager home.
At approximately 1:00 a.m. that morning, [Gorby] arrived at the Somerset
Inn bar alone. Shortly after arriving, [Gorby] bought a round of drinks for
everyone in the bar. He then went into the rest room and after returning, bought
another round of drinks for everyone and wanted to again buy everyone a drink
about ten minutes later. Each time he bought drinks, he displayed a roll of bills.
While at the Somerset Inn, [Gorby] pulled a belt out of his pants similar to
the one the victim was wearing earlier that evening. He placed the belt on the bar
and it was passed among several of the patrons. Next, [Gorby] gave the
bartender, Harold Cain, a wallet which matched the description of the victim’s
wallet. Very soon thereafter, he displayed a knife stating that he wanted to show
Cain how sharp it was and began shaving Cain’s arm. Cain testified that while
[Gorby] was shaving the hair on his arm, he noticed blood stains on the knife.
[Gorby] remained at the Somerset Inn until closing, whereupon he asked
Cain if Cain could drive him to the Old Trails Inn. Cain dropped [Gorby] at the
Old Trails Inn between 2:30 and 3:00 a.m. on December 21, 1985. Before leaving
the Somerset Inn, Cain noticed Drayton Sphar’s vehicle parked in the lot.

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When [Gorby] returned to the Old Trails Inn, he again purchased drinks
for all the patrons. At that time, [Gorby] was wearing the belt, which was later
identified as belonging to the victim, wrapped around his hand. While there,
[Gorby] played pool with Nanette Leeper. Leeper noticed dried blood stains on
[Gorby’s] pants and when she questioned him as to those stains, he told her that
he had been gutting deer earlier that day. [Gorby] and Leeper left the Old Trails
Inn around 4:00 a.m. Leeper last saw [Gorby] when she dropped him off at the
Eighty-Four Truck Stop shortly after 4:00 a.m. on December 21, 1985.
[Gorby’s] girlfriend, Susan Loveland, testified that [Gorby] called her on
Friday, December 20, 1985 and asked her if she had any money. That same day,
at approximately 3:00 p.m., she drove [Gorby] to the Old Trails Inn and gave him
$20.00. She did not see [Gorby] again until 4:30 p.m., Saturday, December 21,
1985 when she met him and his mother at the corner of LeMoyne and Lockhart
Streets, in Washington, Pennsylvania. [Gorby’s] mother drove Loveland and
[Gorby] to the Howard Johnson Motor Lodge where a room was registered in
Susan Loveland’s name. It was in this room that [Gorby] confessed to Loveland
to killing Drayton Sphar. [Gorby] told Loveland that he had stabbed Sphar and
then slit his throat with a knife. He told her that the killing occurred in the
Somerset Inn parking lot in Sphar’s car. He also told Loveland that he had taken
money from Spahr. In addition, Loveland testified that [Gorby] had Sphar’s
leather jacket and his belt in the room. Later in the evening, [Gorby] placed the
victim’s wallet, belt and leather jacket as well as a wash cloth and one glove in a
pillow case and disposed of the pillow case in a trash can located on the premises
of the Howard Johnson Motor Lodge.
On Monday, December 23, 1985, John Logar, an employee of the Howard
Johnson Motor Lodge, found, while emptying the trash, a pillow case containing a
leather jacket, a wallet, a lighter, a belt, a pair of gloves and a wash cloth. Logar
testified that after finding the belt, he tried it on and noticed that the name
Drayton Sphar was embossed on the back of the buckle. Because Logar had just
read in the newspaper about the murder of Drayton Sphar prior to finding the
pillow case, he called the County Coroner.
Pursuant to their investigation, members of the Pennsylvania State Police
questioned [Gorby] at the home of his mother, Mrs. Betty Stevens on December
22, 1985. On December 23, 1985, the police filed a Criminal Complaint against
[Gorby] and attempted to serve him with an arrest warrant at his mother’s home.
When they arrived, Mrs. Stevens informed them that [Gorby] had left her home
shortly after being questioned on December 22, and that she had not seen him
since.

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After an extensive search, [Gorby] was finally located in Houston, Texas,
following his arrest there under an assumed name. [Gorby] waived extradition
and returned to Pennsylvania on April 24, 1986.
Commonwealth v. Gorby, 588 A.2d 902, 904-06 (Pa. 1991) (“Gorby-1”).
Gorby was sentenced to death on the first-degree murder conviction and a consecutive
term of eight to sixteen years of imprisonment on the robbery conviction. Gorby was
represented at trial by retained counsel Daniel L. Chunko, Esquire (“Chunko”). After trial,
Attorney Chunko was permitted to withdraw and John Lieker, Esquire, the Public Defender of
Washington County, represented Gorby on his post-trial motions and direct appeal.
Gorby filed a direct appeal to the Pennsylvania Supreme Court, which affirmed both the
convictions for first-degree murder and robbery, as well as the imposition of the death penalty.
B.

State Court Collateral Challenges
On January 10, 1996, Gorby filed a pro se post-conviction relief petition pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541-9546, which began a ten-year
odyssey of PCRA proceedings and appeals to the Pennsylvania Supreme Court with two
remands back to the PCRA court for further development of the record. The PCRA court
appointed Christopher L. Blackwell, Esquire, to represent Gorby with leave to file an amended
PCRA petition. After the granting of several continuances and requests to extend time for filing
the amended PCRA petition, Attorney Blackwell, with the assistance of the federal Defender
Association of Philadelphia, Capital Habeas Corpus Unit, filed on May 30, 1997, a 188-page
amended petition, raising twenty-two claims for relief. The Commonwealth filed an answer on
September 28, 1999, and in response, on November 3, 1999, Gorby filed seventeen affidavits of
proposed witnesses in support of his amended PCRA petition.

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The PCRA court determined that a hearing on the merits was necessary only with respect
to what trial counsel, Daniel L. Chunko, “knew or should have known of the Petitioner’s mental
health status at the time of trial.” Commonwealth v. Gorby, No. 555(a)(b) 1986, slip op. at 3
(C.P. Washington April 19, 2000) (“PCRA Opinion”) (ECF No. 31). On January 19, 2000, the
PRCA court held an evidentiary hearing and allowed Gorby to present his trial counsel as a
witness and admitted other witness declaration-affidavits and records “for the limited purpose of
a proffer as to what the various affiants would testify if called to do so.” PCRA Opinion, at 4,
n.4. On April 18, 2000, the PCRA court denied relief on all twenty-two claims.
Gorby appealed and on December 31, 2001, the Pennsylvania Supreme Court affirmed
the denial of relief on all claims except the claim that trial counsel was ineffective at capital
sentencing for failing to reasonably investigate, develop, and present mitigating evidence.
Commonwealth v. Gorby, 787 A.2d 367 (Pa. 2001) (“Gorby-II”). The case was remanded for an
evidentiary hearing on the ineffectiveness of counsel during the penalty-phase of the trial.2
On remand, the PCRA court conducted hearings on April 2 and 3, 2002, on the issues of
Gorby’s mental history and capacity and trial counsel’s failure to investigate mitigating
evidence. The PCRA court limited the presentation to mental-health evidence, and did not allow
Gorby to develop a record with regard to broader social-history evidence. Testimony was
adduced from psychiatrist, Dr. Robert C. Fox, Jr., and two psychologists, Harry D. Krop and

On many claims, including the claim presented in the instant federal habeas petition, the
Pennsylvania Supreme Court was fractured and a majority of the justices did not endorse a single
rationale for denying the claims. The case was remanded for factual development of the
ineffectiveness claim centered only on the absence of mental-health mitigation. The parties agree
that the AEDPA deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and the
standard of review for this court is de novo.
2

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Jethro W. Toomer, whose testimony is summarized by the Pennsylvania Supreme Court as
follows:
All three mental health professionals confirmed that, after examinations and
testing of Gorby, they had each determined that he suffers (and suffered at the
time of the offense) from cognitive disorder, other major mental health
conditions, and the effects of substantial and prolonged childhood abuse,
impacting on his thinking and conduct, and implicating the mitigating
circumstances . . . of the death penalty statute, 42 Pa.C.S. § 9711(e)(2), (e)(3),
(e)(8). Although the expert witnesses generally testified that the etiology of the
asserted cognitive disorder was difficult to determine, they emphasized that there
were “red flags” present in Appellant’s medical and social history, including his
irrational behavior at the time of the offense, [ ], head injury involving a
fracturing of the portion of the skull adjacent to the left frontal lobe of the brain
[ ], maltreatment during his childhood as evidenced by his life-history
declarations and medical records indicating, inter alia, malnutrition, dehydration,
and abandonment; incidence of high fever [ ]; alcoholism and poly-substance
abuse, [ ], dysfunctional and abuse family situation, [ ]; relatively high
intelligence as distinguished from poor educational performance, [ ] and
consistently poor decision making.
The professionals also testified that it is not unusual for people with mental-health
issues to lack self-recognition, [], nor is it unusual for persons involved in abusive
family situations to demonstrate reluctance to discuss the abuse – in these regards
and others, they emphasized the essential role of collateral data in the form of
medical, mental-health, and social-history records in making an informed
assessment concerning an individual’s mental-health makeup. . . . According to
the expert witnesses, the life-history records that were assembled at the postconviction stage closely correlated with the results of neuropsychological testing
and evaluations. Further, the witnesses specifically testified that the facts that
were known to trial counsel, even when considered in the generalized manner in
which he discussed them, presented “clear indicia of serious emotional problems.”
Commonwealth v. Gorby, 909 A.2d 775, 786-790 (Pa. 2006) (“Gorby-III”) (internal citations to
the record omitted).
The PCRA court again denied relief and Gorby again appealed. Commonwealth v.
Gorby, No. 555(a)(b) 1986, slip op. (C.P. Washington May 23, 2002) (ECF No. 31). On March
22, 2004, the Pennsylvania Supreme Court remanded the matter for further development of

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Gorby’s claim that direct appeal counsel was ineffective for failing to raise trial counsel’s
ineffectiveness.
Upon remand, the PCRA Court held an evidentiary hearing on October 15, 2004. Gorby
was unable to question his direct appeal counsel as that attorney had died during the course of
the litigation. Gorby did present testimony from two attorneys with substantial defense
experience in capital litigation who both “opined that Appellant’s claim of ineffective assistance
of trial counsel at the penalty phase of trial was strong and apparent from the record.” Gorby-III,
909 A.2d at 788. Both attorney-witnesses testified that, based on circumstances actually known
to trial counsel, additional investigation into Gorby’s mental health condition was warranted.
The PCRA court did not issue a subsequent opinion, as one was not required under the remand
order.
On June 20, 2006, the Pennsylvania Supreme Court vacated Gorby’s death sentence,
finding that counsel was ineffective during the penalty phase of trial and that appellate counsel
was ineffective for failing to raise trial counsel’s ineffectiveness. The court found that trial
counsel failed to reasonably investigate Gorby’s case by “inappropriately limit[ing] his
investigation to the acquisition of rudimentary information from a narrow set of sources.”
Gorby-III, 909 A.2d at 790-91. The court found that Gorby was prejudiced at capital sentencing
by counsel’s failure to reasonably investigate. Id.
The Commonwealth declined to seek the death penalty on resentencing, and agreed that
Gorby should be sentenced to life imprisonment. On August 24, 2011, almost twenty-five years
after his conviction, Gorby was resentenced to the mandatory sentence of life in prison on his
conviction for first-degree murder.

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C.

Federal Habeas Proceedings
Gorby filed the instant counseled petition for writ of habeas corpus on August 21, 2012.

He raises a single claim in support of his request for federal habeas relief; specifically, that trial
counsel was ineffective for failing to reasonably investigate, develop, and present a diminished
capacity defense that complemented the voluntary intoxication defense upon which the jury was
instructed at trial. Gorby argues that had his trial counsel conducted a reasonable investigation
into diminished capacity, he would have obtained and presented expert testimony, such as that
proffered in the PCRA proceedings, that supports that kind of defense.
Following briefing by the parties, the magistrate judge recommended that the petition be
denied and that no certificate of appealability be issued as Gorby had not met the deficient
performance prong of Strickland v. Washington, 466 U.S. 668 (1984). (ECF No. 42.) The
report contained no recommendation regarding the prejudice prong of the ineffectiveness claim.
Gorby filed objections to the report and recommendations. (ECF No. 48.)
This court’s review of the report and recommendation is de novo. The court scheduled a
status conference to discuss whether an evidentiary hearing or supplemental briefing was needed
on the following issues:
1. In light of the prevailing professional norms in 1985, was counsel’s
failure to pursue or further investigate the potential for the limited defense of
diminished capacity unreasonable?;
2. Under those norms, was counsel’s failure to discuss with Gorby the
potential for the limited defense of diminished capacity before trial
unreasonable?;
3. Would a defendant at trial be able to pursue a diminished capacity
defense as well as the defense of actual innocence?; and
4. Was Petitioner prejudiced by counsel’s failure to discuss with him the
potential diminished capacity defense.
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Order of November 20, 2015 (ECF No. 51). A status conference was held on January 19, 2016,
and, at the conclusion, the court made a preliminary determination that trial counsel’s conduct
during the guilt phase of trial fell below an objective standard of reasonableness under the first
prong of Strickland, due to counsel’s failure to investigate evidence of Gorby’s diminished
capacity in light of the facts that were known to him at the time. HT 1/19/16 (ECF No. 61) at 23.
The court ordered the parties to submit supplemental briefing on the issue of prejudice. The
parties filed their respective supplemental briefs (ECF Nos. 57, 60) and both parties requested an
evidentiary hearing to further develop the record. The court agreed that in order to make a
determination with respect to the second prong of Strickland, the current record must be
supplemented on the limited issue of whether Gorby was prejudiced by his trial counsel’s
deficient performance.
On September 7, 2016, the court held an evidentiary hearing at which Gorby and
Chunko, his trial counsel, testified. The parties were permitted to file supplemental briefs with
respect to the prejudice issue. On September 21, 2016, the parties each filed a timely
supplemental brief with the court. (ECF Nos. 80, 81.)
1.

Evidentiary Hearing on September 7, 2016

Section 2243 of Title 28, United States Code, provides that “[u]nless the application for
the writ and the return present only issues of law the person to whom the writ is directed shall be
required to produce at the hearing the body of the person detained.” 28 U.S.C. § 2243 (para. 5).
The Supreme Court of the United States has held that when a person is in state custody it is the
responsibility of the state custodian to produce the prisoner before a federal court when directed
to do so. See Penn. Bureau of Correction v. U.S. Marshals Svc., 474 U.S. 34 (1985).
10

Although the court issued a Writ of Habeas Corpus Ad Testificandum (ECF Nos. 74, 75)
to the Warden at the State Correctional Institution at Fayette, the state custodian failed to
produce Gorby for the hearing. After being notified that the state custodian had failed to produce
Gorby for the hearing, the court made arrangements for Gorby to attend the evidentiary hearing
via videoconference.
a.

Gorby waived his right to be physically present

After consultation with his attorney, Gorby explicitly waived his right to appear in
person. The court asked Gorby a number of questions and, being satisfied with his responses,
made the finding that Gorby was fully competent, and that he knowingly and intelligently
waived his right to be physically present at the hearing. HT 9/7/16 (ECF No. 79) at 6-7. Gorby’s
waiver did not adversely affect the decision on his habeas claims. This court was able to see and
hear Gorby clearly, his own testimony was lucid, and Gorby was able to see and hear the person
who was speaking at all times during the hearing. The courtroom was cleared prior to the
commencement of the hearing and then again at the conclusion of the testimony of Daniel L.
Chunko to afford Gorby an opportunity to consult privately with his counsel.
b.

Trial counsel

Chunko, Gorby’s trial counsel, has been practicing law for over forty years. During the
course of his career, he has held numerous positions, including prosecutor, juvenile prosecutor,
and first assistant district attorney, and has worked with a number of law firms in private
practice. He currently is a solicitor for the Washington County Children and Youth Services in
Washington, Pennsylvania. HT 9/7/16 at 8.
Chunko testified that in March or April 1986, Gorby’s mother, Betty Stevens, retained
him to represent her son, Gorby.
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During the course of the trial, Chunko cross-examined approximately twenty
Commonwealth witnesses. Id. at 10. He tried to establish evidence that Gorby was drinking and
was intoxicated on the night in question.
Chunko testified that the Commonwealth evidence was almost entirely circumstantial.
The primary Commonwealth witness was Susan Loveland (“Loveland”), who testified that
Gorby had admitted to her that he had killed the victim. Chunko testified he thought that “we
could have won if Susan Loveland had not testified.” Id. at 23. (“Without Susan Loveland, we
had a 50-50 chance or better of prevailing on first-degree murder.”) According to Chunko, prior
to trial, Loveland had given a number of factually inconsistent statements, none of which
inculpated Gorby. Chunko considered her an unreliable witness, as she had given approximately
seven or eight statements in total, and “[t]hey were to some extent inconsistent factually.” Id. at
34. He had interviewed her twice and both times she stated she would not testify against Gorby.
Id. at 24. Chunko learned for the first time during trial that Susan Loveland was going to testify
unfavorably towards his client. This came as a surprise to him because up until that point, it was
his understanding that she would not testify. Id. at 30. Additionally, according to Chunko, prior
to trial, Chunko was not aware that his client had confessed to her. Id. at 31.
Chunko testified that he did not seek a continuance of the trial after learning that
Loveland had changed her testimony. When asked if anything prevented him from seeking a
continuance at that point, Chunko replied:
She was the last witness, other than Trooper Luppino, that the Commonwealth I
believe had called, so we were already in the fourth day or fifth day of trial at that
time. The answer is no. I mean, I could have requested a continuance, but
realistically, knowing what she was going to testify then, I did my best to crossexamine her.
Id. at 27.
12

Chunko testified that at some point during the trial, Gorby admitted to him that he had
killed Sphar. Chunko could not recall the exact date Gorby made the admission, but remembered
that “we were in the trenches at the time the confession was made.” Id. at 22. Although he could
not recall specifically when the admission was made, he did recall that it “was right around the
time [Susan Loveland] testified. It was probably at least the fourth or fifth day of trial,” id. at 31,
and “would have been at the cell we usually used to discuss the case at the Washington County
Jail.” Id. at 19.
Having heard the confession from Gorby, Chunko testified that he did not discuss with
Gorby whether he would consider making the admission in a court of law because, according to
Chunko, there was never an offer of anything less than capital punishment prior to the verdict.
Id. at 20, 21. Chunko testified that prior to trial, he had a conversation with Gorby about the
possibility of entering into a plea or allowing Chunko to go to the prosecution in pursuit of a life
sentence as opposed to death. It was after this conversation with Gorby that Chunko learned
from the assistant district attorney that the Commonwealth was not willing to offer any sort of a
plea bargain. Id. at 20.
Chunko testified that his strategy throughout trial was “actual innocence.” He recalled
talking with Gorby about the strategy and that the two of them consulted during trial almost on a
nightly basis. He testified that Bob Poland, the Warden of the Washington County Jail, provided
them a particular room in which they could consult during the trial. Chunko testified that he
talked to Gorby three to five times pre-trial, and that he would have also spoken to Gorby after
he interviewed a number of witnesses during his pre-trial investigation. Chunko testified that
Gorby was “on board” with the strategy, and if Gorby had objected to the defense, he would

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have given Chunko his thoughts. Chunko described Gorby’s defense as being formulated and
crafted by him, but discussed with Gorby. According to Chunko, he did not
believe [Gorby] ever disagreed with it. We talked about [the strategy] as
extensively as I could to the extent of explaining to him what was going on, not
only prior to the trial, but during the trial itself. . . . If [Gorby] had an objection,
yes, he was more than free to [speak up]. . . He never objected. He did give me
his thoughts, though, and I appreciated his thoughts.
Id. at 25-26.
Chunko testified that he thought “actual innocence” was a viable defense until Loveland
took the stand. Id. at 18. His goal was for a not guilty verdict; if he could have gotten a third
degree verdict, that would have been a victory in light of all the circumstantial evidence and the
testimony of Loveland.
Chunko testified that he understood the parameters of a diminished capacity defense and
he knew that he would have needed expert testimony to support such a defense. Chunko testified
that if he had evidence of diminished capacity, like the expert testimony that was presented
during the PCRA hearing, he would have argued both diminished capacity and reasonable doubt/
actual innocence to the jury. Id. at 16. Chunko conceded that he never considered seeking an
extension of the trial so that he could obtain expert testimony to support a diminished capacity
defense.
Chunko testified that he did not recall discussing with Gorby the possibility of a
diminished capacity defense and did not have any reason at the time of trial to suspect that was a
viable defense. Chunko described his “investigation” as follows:
We [Gorby and Chunko] had discussed a number of things. Because I had asked
him is there any information that you can give me – I think I testified previously
that I did question his mother about that and her husband at the time, Mr. Gilbert
Stevens, about that. I tried to inquire from her what information she could give
me about [Gorby] and his childhood and any other information. Other than the
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fact that I knew he drank a good bit and had a juvenile delinquency record as
well. But as far as diminished capacity in other respects, I’m not sure we talked
about that.
Id. at 32. Chunko testified that at the time of trial, he did not have any reason to suspect that
diminished capacity factors may be present, but acknowledged, “[l]ooking in hindsight, sure, but
at that time I don’t believe that I did or I would have pursued it.” Id. at 33.
c.

Gorby

Gorby testified that he is currently confined at SCI-Fayette. He has “done every job
that’s just about available in prison,” including law librarian, cook, and block cleaner. Id. at 38.
Gorby has an eighth grade education. He testified that he had a limited understanding of what
was going on at trial and was told to “sit at the desk and be quiet and let [Chunko] do what he
needed to do . . . .” Id. at 49. According to Gorby, he was not told that Chunko was going to try
to convince a jury that he was not guilty of the crime. Id.
Gorby recalled meeting Chunko sometime after his preliminary hearing, between May 10
and June 20, 1986, the date of his formal arraignment. He testified that he met with Chunko five
times prior to trial. Gorby testified that he told Chunko “everything” about his background – that
he “had been abused as a kid, you know, and basically where I ended up at, where I was at,
drinking and drugs. It was nothing really specific.” Id. at 39. Gorby told Chunko to contact his
mother and she could confirm his background. Id.
Gorby testified that he confessed to the crime to Chunko as soon as he came on the case;
that he never denied guilt to his attorney. Id. at 39-40. He testified that he confessed to Chunko
while he was at the Washington County Jail:
I told him as much as I could recollect of the night in question. I did the crime, I
mean, you know. I didn’t invite Mr. Sphar out to kill him or rob him, but that I
had committed the crime of killing him.
15

Id. at 45. Gorby testified that the topic of his guilt came up with Chunko a couple of times prior
to trial. Id. Gorby testified that he learned on August 29, 1986, that the District Attorney was
seeking the death penalty.
He testified that he told Chunko before trial that he had confessed to Loveland that he had
killed Sphar. Id. at 41.
According to Gorby, he was told by Chunko that he was “going for a third-degree
homicide” and that his defense would be that he had committed the crime and was drunk and
intoxicated on the night of the crime. Id. at 40-41. Gorby testified that at the time of trial had
Chunko explained to him that it would be necessary for Gorby to admit guilt for a voluntary
intoxication defense, he would have given permission for Chunko to pursue this defense, even if
it put him at risk for a life sentence. Id. at 41, 42.
Gorby testified that Chunko never discussed with him the possibility of pursuing a
diminished capacity defense; rather, Gorby was advised that because he was intoxicated and on
drugs, “it would negate it down to third-degree homicide.” Id. at 42. Gorby described his
understanding of his defense as follows:
It was just as simple as I thought that I had committed the crime, and because I
was the way I was the night of the crime and couldn’t remember most parts of it,
that I was going to get third-degree homicide.
Id. at 42. Gorby testified that prior to trial, Chunko told him nothing about a diminished capacity
due to mental defect defense. Had he been informed of this defense, Gorby would have given
Chunko permission to pursue it, even if it put him at risk for a second-degree murder conviction
and the risk of a life sentence. Id. at 42-43.

16

Completely contrary to Chunko’s testimony, Gorby testified that on two occasions he
“was called before the District Attorney’s office” to negotiate a plea. Id. at 46. He recalled with
“particularity” that the first meeting occurred on August 25, 1986, id., right before the District
Attorney sent a letter saying he was pursuing the death penalty. Id. at 52. Gorby and his counsel
met with First Assistant District Attorney Bill Johnson. Gorby was offered a plea deal in which
in return for pleading guilty to third degree homicide and robbery, he would be sentenced to 20 –
40 years incarceration. On the advice of counsel, Gorby turned down this offer. On August 27,
1986, Gorby was again brought to the district attorney’s office. This time, Chunko and he met
with John C. Pettit, the district attorney of Washington County. He was offered a plea deal in
which he would plead guilty to third degree homicide and robbery in exchange for being
sentenced to 10 to 20 years for the murder and 8 to 16 years for robbery. Id. at 53. Again, on the
advice of counsel, Gorby rejected the plea offer. Chunko explained to him that he was going to
try to convince the jury that Gorby was responsible for third-degree murder. Id. at 47, 53.
Gorby testified that, based on his conversations with Chunko, he thought that if the jury was
convinced that Gorby was intoxicated at the time of the killing, he would get 10 to 20 years for
third-degree murder. Id. at 48.
Gorby denied that he rejected the plea offers and chose to go to trial because he thought
he could convince a jury that he was not guilty or that he was not willing to admit to the crime in
a court of law.

17

III.
A.

Ineffective Assistance of Trial Counsel

Ineffective Assistance of Counsel Standards
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the assistance of counsel for his defence.” U.S. Const. amend VI.
The purpose of the right to the assistance of counsel is to ensure a fair trial, and “the Court has
recognized that ‘the right to counsel is the right to the effective assistance of counsel’.”
Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)).
“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Id. “The Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8
(2003).
The United States Court of Appeals for the Third Circuit recently addressed the familiar
Strickland framework in determining an ineffective assistance of counsel claim:
[Petitioner] can demonstrate ineffective assistance of trial counsel only if
he first demonstrates that his counsel’s performance fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.
[Petitioner] also must determine that his trial counsel’s deficient performance was
prejudicial, such that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694, 104 S.Ct. at 2068. A “reasonable probability” means a probability
“sufficient to undermine confidence in the outcome.” Id.
Importantly, the
Supreme Court has made clear that “there is no reason for a court deciding an
ineffective assistance claim to . . . address both components of the inquiry if the
defendant makes an insufficient showing on one” of the requisite prongs. Id. at
697, 104 S.Ct. at 2069. Thus, unless there is a finding that counsel acted
unreasonably, there is no need to consider whether there was prejudice that can be
attributed to his representation. Id.
With respect to the first Strickland prong, it is well established that ‘“the
Constitution guarantees criminal defendants only a fair trial and a competent
18

attorney. It does not insure that defense counsel will recognize and raise every
conceivable constitutional claim.”’ United States v. Travillion, 759 F.3d 281, 289
(3d Cir. 2014) (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575
(1982)). On appeal, we “must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional assistance.” Id.
(citation and internal quotation marks omitted). In short, Strickland directs that
“[j]udicial scrutiny of counsel’s performance must be highly deferential” and
“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.” Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
Nguyen v. Attorney General of New Jersey, No. 15-3902, -- F.3d --, 2016 WL 4204796, at *6
(3d Cir. Aug. 10, 2016). The burden is on the petitioner to establish both Strickland prongs.
Under the first prong, Gorby must establish that counsel’s performance was deficient.
Strickland, 466 U.S. at 687. To do so, he must establish that “counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. “The challenger's burden is to show ‘that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 687).
Under the second prong of Strickland, Gorby must establish prejudice. He “need not
prove that the evidence would have been insufficient if not for counsel’s errors . . . [or] ‘that
counsel’s deficient conduct more likely than not altered the outcome’.” Saranchak v. Secretary,
Pa. Dept. of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland, 466 U.S. at 693). The
issue is whether there is a reasonable probability of a different result. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v.
Pinholster, 563 U.S.170, 189 (2011) (quoting Harrington, 562 U.S. at 112). “Further, the
prejudice inquiry focuses on ‘the effect the same evidence would have had on an unspecified,
19

objective factfinder’ rather than a particular decisionmaker in the case.” Saranchak, 802 F.3d at
588 (citation omitted).
B.

Diminished Capacity Defense
“The extremely limited defense of diminished capacity, which encompasses voluntary

intoxication and mental defect, is only available to defendants who admit criminal culpability but
contest the degree of culpability based upon an inability to formulate the specific intent to kill.”
Commonwealth v. Weiss, 81 A.3d 767, 796 (Pa. 2013) (citations omitted); see Commonwealth
v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013), cert. denied, Padilla v. Pennsylvania, -- U.S. ----, 134
S. Ct. 2725 (2014) (“[T]o prove diminished capacity due to voluntary intoxication, a defendant
must show that he was overwhelmed to the point of losing his faculties and sensibilities.”);
Commonwealth v. King, 57 A.3d 607, 622 (Pa. 2012) (noting that “under this Court’s prevailing
precedent, [ ] a [defense of diminished capacity] to first-degree murder is only available to
defendants who admit that they killed the victim, but contest the degree of guilty based on an
inability, at the time of the offense, to formulate a specific intent to kill due to a mental defect or
voluntary intoxication.”). Further, “the authority to concede liability and to authorize the
presentation of a diminished capacity defense rests solely with the accused.” Commonwealth v.
Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (finding that a diminished capacity defense was not
available to defendant because he “did not concede any liability in the killing of the victim.
Rather [defendant] relied on an innocence defense, presenting an alibi witness, attempting to
undermine the credibility of the child witnesses, and attempting to inculpate the victim’s husband
in her murder.”).
Only expert mental health testimony that “ ‘speaks to mental disorders affecting the
cognitive functions necessary to formulate specific intent’ ” is relevant to support the defense.
20

Commonwealth v. Terry, 521 A.2d 398, 404 (Pa. 1987) (quoting Commonwealth v. Weinstein,
451 A.2d 1344, 1347 (Pa. 1982)); Commonwealth v. McCullum, 738 A.2d 1007, 1009 (Pa.
1999); Commonwealth v. Legg, 711 A.2d 430, 444-45 (Pa. 1998).
C.

Trial Counsel’s Performance was Deficient
To establish that his trial counsel was ineffective, Gorby must show that Chunko’s

performance was deficient. The magistrate judge concluded that Gorby had not met his burden
to establish that Chunko’s performance was deficient. After reviewing the submissions of the
parties, and after considering the testimony presented at the September 7, 2016, evidentiary
hearing, this court disagrees with that conclusion.
Gorby argues that Chunko was ineffective by failing to investigate, develop, and present
a diminished capacity defense at the guilt phase of his trial. Gorby contends that his many
cognitive and mental impairments are so severe that they would have established a diminished
capacity defense at the guilt phase of his trial. Strategic 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 to the extent that
reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S.
at 690-91. Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. Lewis v. Mazurkiewicz, 915 F.2d
106, 111 (3d Cir. 1990) (citing Strickland, 466 U.S. at 690-91). 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 judgment. Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986).

21

Defense counsel may properly rely on information supplied by the defendant in
determining the nature and scope of the needed pretrial investigation. Lewis, 915 F.2d at 111.
As the Supreme Court stated in Strickland,
The reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions. Counsel's actions are
usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on such information. For
example, when the facts that support a certain potential line of defense are
generally known to counsel because of what the defendant has said, the need for
further investigation may be considerably diminished or eliminated altogether.
And when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's failure to pursue those
investigations may not later be challenged as unreasonable. In short, inquiry into
counsel's conversations with the defendant may be critical to a proper assessment
of counsel's investigation decisions, just as it may be critical to a proper
assessment of counsel's other litigation decisions. See United States v. Decoster,
supra, at 372–373, 624 F.2d, at 209–210.
Strickland, 466 U.S. at 691.
The Pennsylvania Supreme Court aptly stated in finding that Chunko rendered deficient
stewardship during the sentencing phase of Gorby’s trial, that “the record amply demonstrates
both that trial counsel inappropriately limited his investigation to the acquisition of rudimentary
information from a narrow set of sources, and that the information that counsel did acquire
through his limited efforts should have prompted additional investigation.” Gorby-III, 909 A.2d
at 790-91. This court finds that the same conclusion is true of Chunko’s investigation for the
guilt phase of Gorby’s trial. Counsel had sufficient indicia of Gorby’s history of drug and
alcohol abuse as well as mental health problems to warrant further investigation; yet, he failed to
conduct an investigation from which he could have presented evidence of diminished capacity.
The record reflects that trial counsel interviewed a number of fact witnesses regarding the
night in question. However, at best, counsel conducted only a limited, rudimentary investigation
22

of Gorby’s mental health and social history, which investigation consisted solely of talking with
Gorby, his mother, and step-father. He did not request any mental health evaluations and he did
not retain mental health experts to present available evidence of voluntary intoxication and
diminished capacity to the jury. According to Chunko, he had no tactical or strategic reason for
not investigating a diminished capacity defense. Id. at 95.
During the PCRA hearing held on January 19, 2000, Chunko testified that at the time of
trial he had no knowledge of any mental health problems Gorby may have had. He testified that
he had lengthy conversations with Gorby’s mother and stepfather, that he questioned Gorby’s
mother a lot about her son, and that she told him “all she could about him.” HT of PCRA
Hearing, 1/19/00 (ECF No. 28) at 49. Counsel specifically testified that Gorby’s mother “never
indicated that he had a mental problem in her opinion. He was just a rough and tumble
teenager.” Id. at 64.
He testified that he knew that Gorby did extremely poor on standardized tests, received
low scores on intelligence and achievement tests, and did poorly in school. Id. at 41, 65.
Counsel also testified that he knew Gorby had been hospitalized for head trauma and that he
knew Gorby had scars on his head. Id. at 53, 64. He testified that he asked Gorby’s mother
about the car accident Gorby had while he was a teenager and was not given any indication that
the injuries Gorby sustained in the car accident had an impact on his mental health. Id. at 47 –
53.
Counsel testified that none of the discussions he had with Gorby or his mother and stepfather gave him any reason to investigate further into the status of Gorby’s mental health. Id. at
56 – 58.

23

Given the limited information trial counsel did know, it is difficult to comprehend why
Chunko did not obtain educational records, medical records, or consult a mental health
professional during his investigation and preparation for trial, especially when counsel knew this
was a capital case and was aware of the volume of circumstantial evidence the Commonwealth
would rely on in its case against Gorby. Other than his interview with Gorby’s mother and stepfather, counsel did not interview other family members to investigate Gorby’s family life or
background.
Moreover, Chunko did no investigation into Gorby’s history of drug and alcohol abuse,
any mental health issues, or his mental state at the time of the offense. During post-conviction
proceedings, the mental health experts reviewed various records, witness statements, and tests
results to evaluate Gorby’s life history and mental state. They each confirmed that multiple
factors in Gorby’s life, including his cognitive deficiencies, head injuries, continued alcohol and
drug use, intoxication on the night in question, and experiences as a child rendered Gorby
incapable of forming a specific intent to commit first degree murder on the night of the crime.
Chunko agreed during the evidentiary hearing on September 7, 2016, that mental health reports,
such as the one given by Dr. Fox, would have been useful. NT 9/7/16 at 14. (ECF No. 79.)
Additionally, during the guilt phase of the trial, counsel elicited testimony that Gorby was
a heavy drinker, was drinking heavily for hours before the offense, and appeared intoxicated.
For example, during cross-examination, James Yeager, testified that he told Trooper John
Luppino that Gorby was “drunk” and “intoxicated” on the night of December 20, 1985, and that
Yeager regularly drank with Gorby. NT 9/12/86 at 299-300, 304. (ECF No. 22.)
Katherine Barnes, a bartender on the night in question at the Old Trails Inn, testified that
Gorby was drinking Jack Daniels and Coke that night. Id. at 397. Another bartender at the Old
24

Trails Inn, Billie Joe Wrubleski, testified that, on the night of the offense, she made Gorby
“probably about four” whiskey and Cokes, that the other bartenders who were working also
served him, and that he was drinking whiskey and Coke the entire time he was at the Old Trails
Inn that night. Id. at 516-17.
Harold Richard Cain, a bartender at the Somerset Inn, testified that when Gorby entered
the bar that evening he ordered a Jack Daniels and Coke. Although in his statement to the police
Cain reported that Gorby appeared to have been drinking prior to coming in to the bar that
evening, id. at 464, at trial, he testified that Gorby did not appear to have been drinking prior to
coming in to the bar. Id. He also testified that he was familiar with Gorby’s drinking habits and
he mixed Gorby’s drink as soon as he saw Gorby come in to the bar. Id. at 472.

Moreover,

police reports contained eyewitness accounts of Gorby’s drinking and intoxication that day.
Yeager, in an 1997 affidavit, averred that he had given the police a statement which described
Gorby’s use of alcohol and drugs and that Gorby’s attorney never asked him about Gorby’s
condition on the night of the murder:
Jeff was drinking a lot that night and was very drunk. He may also have been on
drugs. I had known Jeff for about three years and I knew him to do drugs every
chance he got. He did a lot of pills and you could tell he was on something. Jeff
had a reputation for doing a lot of drugs. . . I told the police everything I knew,
including how drunk Jeff was that night. I gave them a statement which I signed.
. . . Jeff’s attorney never talked to me about Jeff’s drinking, use of drugs, or his
condition that night. If he had asked me I would have told him how drunk Jeff
was.
Declaration-Affidavit of James Yeager. (ECF No. 18 at 32.)
At the PCRA hearing, Chunko testified that he knew Gorby was drinking heavily for
hours before the offense and appeared to be intoxicated at the time. NT 1/19/00 at 16-18, 24-27,
72. (ECF No. 28.) He testified he knew this information from police reports, from witnesses
25

who saw Gorby drinking before the offense, from Gorby himself, and from Gorby’s mother and
step-father.
Yet, the record clearly reflects that throughout the trial, Chunko presented only an actual
innocence defense. Although he asked for an instruction on voluntary intoxication, he presented
no evidence or argument that Gorby’s intoxication prevented him from forming the specific
intent to kill. Even with the testimony of Susan Loveland, and Gorby admitting his liability to
him, trial counsel ended his closing argument as follows:
What is the function of the jury? To find the truth, sift the wheat from the
chaff, to look through the forest for the trees, to find the truth, to listen to the
black and white, see the red and sort out the grey. What will you find? You will
find, number one, Jeff Gorby did not kill Drayton Sphar. You will find out,
number two, Jeff Gorby did not rob Drayton Sphar. What are you going to do
with that when you find it? What other choice do you have? You must acquit
him. Why? Because he didn’t do it, because he’s innocent, because somebody
else did it. His life is in your hands. When you go back there, think hard and
long to what each of you have to say. Thank you.
NT 9/17/86 at 1214. (ECF No. 27) (emphasis added).
The court also finds it unreasonable that counsel did not consider seeking a continuance
of the trial to obtain expert opinions on Gorby’s mental state, especially after his client conceded
guilt to him or after finding out that Susan Loveland would testify that Gorby had admitted his
guilt to her.
The court recognizes that Gorby’s testimony was inconsistent about the terms of any plea
negotiations with the District Attorney’s office and what he was told by Chunko about his
defense at trial. Despite this inconsistency, the record is crystal clear that Gorby was never
advised by Chunko of the possibility of a diminished capacity defense.

26

Given Chunko’s lack of investigation, the court concludes that Chunko’s representation
of Gorby was blatantly deficient at least with respect to his failure to investigate a diminished
capacity defense.
D.

Gorby Was Prejudiced by Counsel’s Deficient Performance
In addition to establishing that Chunko’s performance was deficient, Gorby also must

show that he was prejudiced by Chunko’s performance. Chunko testified during the September
7, 2016, hearing that had he investigated a diminished capacity defense and obtained the same
evidence as that presented by counsel during the post-conviction hearings, he would have
pursued a diminished capacity defense. HT 9/7/16 at 14, 33. Importantly, Gorby testified that he
understood that a diminished capacity defense requires admitting guilt, and that had his trial
counsel told him about this kind of defense, he would have authorized his counsel to pursue it,
even if such a defense put Gorby at risk for a second-degree murder conviction and a life
sentence. Id. at 43. Gorby relied on his trial counsel’s expertise, as was his Sixth Amendment
right. Had his attorney adequately investigated the available defense, Gorby would have made
an informed decision to authorize his counsel to concede liability and pursue a diminished
capacity defense in pursuant of a third degree murder conviction.
Respondents argue that Gorby has suffered no prejudice because at best, with a
diminished capacity defense, Gorby would have been convicted of second degree murder, which
would result in a mandatory sentence of life imprisonment. Respondents further argue that:
in order for this Court to find that trial counsel was ineffective, the Court must
find that there is a reasonable probability that the Petitioner would have been
convicted of third degree murder, which does not carry an automatic life sentence.
Resp. Reply at 7. (ECF No. 60.) During argument held on January 19, 2016, the court inquired
about the possibility of a finding by a jury of a lesser offense. Respondents’ counsel responded:
27

Well, the possibility always exists, but I think you would have to accept
that the jury would - - they would basically have to nullify second degree murder.
Jury nullification, it’s their burden to prove that there’s a reasonable probability
that the outcome of this trial would be different had this been pursued, had the
diminished capacity been pursued.
It is our position to nullify second degree murder is not based on reason,
that’s not a reasonable probability. That’s basically just an optimism. That’s a
guess, that’s a hope that the jury would be swayed emotionally in some way to
ignore what is I think very clear law in Pennsylvania, that if a killing occurs in the
commission of a felony, such as robbery, then you are subjected to a mandatory
life imprisonment.
HT 1/19/2016 (ECF No. 61) at 8-9.
The court finds this argument unavailing. It is not within the province of this court to
conclude what a jury will actually decide as no court may remove from the jury its responsibility
to decide the degree of culpability. Commonwealth v. McClendon, 385 A.2d 1337, 1340 (Pa.
1978) (it is the “exclusive province of the jury to determine the appropriate degree of guilt”);
Commonwealth v. Leonhard, 485 A.2d 444, 446 (Pa. Super. 1984) (courts cannot “remove from
the jury its responsibility to decide the degree of culpability”). In McClendon, the defendant was
convicted of felony murder, arson, and related charges. The Pennsylvania Supreme Court held
that the trial court worded the jury instructions in a biased manner so that the jury had no choice
but to find defendant guilty of felony murder. In its original charge, the trial court stated that:
[I]f you find that the defendant committed arson and that arson was the cause of
the death . . . he is guilty of murder of the second degree. If you find that the
defendant is not guilty of arson or if you find that he was guilty of arson but that
arson was not a cause of the death of the decedent, you should consider the
charges of third degree murder and voluntary manslaughter which I shall not
define for you.
Id. at 1338-39. The Pennsylvania Supreme Court concluded that this charge informed the jury
“that it should not consider third degree murder or voluntary manslaughter unless it found that
appellant did not commit arson or that the arson, if committed, was not the cause of death. That
28

is not the law in this Commonwealth.” Id. at 1339 (emphasis added). The court opined that,
“[t]he jury could have returned, pursuant to its mercy dispensing power or awareness of
extenuating circumstances, verdicts of either voluntary manslaughter or murder of the third
degree even if it found [defendant] guilty of arson, and found that the arson caused the victim’s
death.” Id. The court in McClendon reversed the judgment of sentence for murder of the second
degree because it found that the trial court’s charge infringed upon the exclusive province of the
jury to determine the appropriate degree of guilt.
The Pennsylvania Supreme Court found that the evidence of Gorby’s mental defects
likely would have persuaded the jury away from a death sentence. Gorby-III, 909 A.2d at 775.
This court finds that Gorby established that it is equally as likely that a diminished capacity
defense would have negated the Commonwealth’s case for specific intent. Accordingly, this
court cannot find that a jury, after considering the evidence related to the diminished capacity
defense, would convict Gorby of second-degree murder; rather, the court finds that Gorby met
his burden and established that had a diminished capacity defense been presented to the jury
there is a reasonable probability that the result of the trial would have been different.
For these reasons, the court finds that Gorby is entitled to habeas relief based on his
attorney’s failure to investigate the potential diminished capacity defense.
IV. Conclusion
For the foregoing reasons, the Court will sustain Gorby’s objections to the R&R. The
court will grant the habeas petition and issue a conditional writ of habeas corpus obligating the

29

Commonwealth to either release Gorby or retry him within 120 days.3
An appropriate order will be entered.

BY THE COURT,

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge

Dated: September 28 , 2016

cc:

Samuel J. Angell
Kimberly Newberry
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)

When a Pennsylvania state trial court has granted a new trial and no appeal has been
perfected, the new trial shall commence within 120 days from the date on which the trial court’s
order is filed. Pa.R.Crim.P. 600(B)(4) (revised in 2012). In exercising its discretion to set the
period of release or order a new trial, this court looks to the established state procedural rule.
3

30