ANDRULEWICZ v. LAMAS et al

Filing 22

MEMORANDUM ORDER. Signed by Judge Mark R. Hornak on 10/28/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD M. ANDRULEWICZ,
Petitioner,

v.

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Civil Action No.2: 13-cv-0429

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STEVEN GLUNT and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYL VANIA,
Respondents.

United States District Judge
Mark R. Hornak

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MEMORANDUM ORDER
The petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, was filed on or
around April 24, 2013, and was referred to United States Magistrate Judge Cynthia Reed Eddy for a
report and recommendation in accordance with 28 U .S.c. § 63 6(b)( 1) and Rule 72 ofthe Local Rules
for Magistrate Judges.
On September 4, 2014, the magistrate judge issued a Report and Recommendation
recommending that the Petition for Writ of Habeas Corpus be denied and that a certificate of
appealability be denied (ECF No. 21). Petitioner was served with the Report and Recommendation
at his listed address and was advised that he had until September 22, 2014, to file written objections
to the Report and Recommendation. To date, Petitioner has not filed any objections nor has he
sought an extension of time in which to do so.
The Court is in agreement with the conclusion ofthe Report and Recommendation, but finds
it necessary to supplement the analysis addressing Claim Seven of the Petition. In that claim,

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Petitioner contends that the trial judge erred in denying his post-sentence motion for new trial based
on the weight of the evidence in light of inconsistent testimony from the witnesses. Petitioner
attempted to present this matter to the Pennsylvania Superior Court on direct appeal. The Superior
Court refused to entertain the merits of the matter, finding that the issue was waived due to
Petitioner's failure to comply with Rule 2116 of the Pennsylvania Rules of Appellate Procedure.
Specifically, the Superior Court noted the following:
As a prefatory matter, we note that Appellant's Statement of Questions Involved does
not conform to the requirements of Pa.R.A.P. 2116. This rule states, in pertinent
part, that such Statement "should not ordinarily exceed 15 lines, must never exceed
one page, and must always be on a separate page, without any other matter appearing
thereon. This rule is to be considered in the highest degree mandatory, admitted of
no exception . . . ." Pa.R.A.P. 2116(a) (emphasis added). Herein, Appellant's
Statement clearly exceeds 15 lines and encompasses 2 pages. See Appellant's Brief
at 10-11. In the discussion infra, we will address the six questions for review set
forth on the t1rst page of Appellant's statement.
Com. v. Andrulewicz, 911 A.2d 162, n.7 (Pa. Super. 2006). Petitioner did not present this same issue

in his PCRA Petition. Respondents argue that this issue does not warrant merits review because it is
barred under the exhaustion and procedural default bars to federal habeas review and that Petitioner
did not present any exception to these bars which would warrant merits review.
The Magistrate Judge agreed with the Respondents and recommended that Claim Seven be
denied because the exhaustion and procedural default requirements had not been met as the issue had
been waived pursuant to Rule 2116. After a careful review, the Court disagrees and finds that Claim
Seven was not procedurally defaulted and should, therefore, be reviewed de novo. However, even
under a de novo review, Claim Seven of the instant Petition will be denied.

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In 2010, the United States Court of Appeals for the Third Circuit, in an unpublished decision,
held that "Rule 2116(a) is not 'adequate' because it is not 'regularly followed.' " Nolan v. Wynder,
363 F. App'x 868, 872 (3d Cir. 2010) (quoting Szuchon v. Lehman, 273 F.3d 299,325 (3d Cir.
2001)). In Nolan, the Pennsylvania Superior Court addressed the merits of only four of the
petitioner's claims on appeal ofthe decision ofthe PCRA court because the petitioner's statement of
questions involved was three pages long, in direct violation of Rule 2116(a). Id. at 870. The
petitioner subsequently filed a petition for a federal writ of habeas corpus. Id. The district court
concluded that the claims not addressed by the Superior Court "were procedurally defaulted due to
[the petitioner's] failure to adequately present them to the Superior Court in accordance with Rule
2116(a)." Id. at 871.
The Court of Appeals vacated the district court's decision because "case law demonstrates
that Pennsy lvania courts prior to [the petitioner's] purported procedural default routinely addressed
the substantive merits of claims despite a party's failure to comply with the mandatory page
limitation imposed by Rule 2116(a)." Id. at 871-72 (citations omitted). Indeed, in the case at bar,
since Petitioner's PCRA appeal was denied, the Superior Court has acknowledged that "while this
Court has the authority to sanction an appellant who violates Rule 2116(a), the authority is typically
not exercised, absent pervasive non-compliance with the Rules of Appellate Procedure." Silver v.
Pinksey, 981 A.2d 284, 291 n. 4 (Pa. Super. 2009).1

The Court notes that the 2013 amendments to Rule 2116 eliminated the page limit for the
Statement of Questions involved.
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Based on Nolan and the foregoing Pennsylvania case law, the Court finds that at the time
Petitioner filed his appeal, Rule 2116(a) was not "adequate" because it was not "regularly followed,"
and, thus Claim Seven should be afforded a merits review. Wilson v. Beard, 589 F.3d 651,658 (3d
Cir. 2009). However, as explained infra, Claim Seven will nevertheless be denied under this
standard of review as it fails to set forth a cognizable claim for relief.
A petitioner's challenge to the weight ofthe evidence is not a cognizable ground for federal
habeas corpus relief because it does not claim a constitutional violation. See Tibbs v. Florida, 457
U.S. 31,37-38 (1982) (weight of the evidence claim raises questions of credibility; it is different
from a claim that the evidence was insufficient to support the conviction); Marshall v. Lonberger,
459 U.S. 422, 434 (1983) (state courts' credibility determinations are binding on federal court);
Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000) (same). A weight of the evidence claim
challenges "issues of credibility," arguing that "a greater amount of credible evidence supports one
side ofan issue or cause than another." Id at 38-39. Federal courts, however, are precluded from re­
evaluating the credibility of witnesses on habeas corpus review. Longberger, 459 U,S. at 434-35.
Accordingly, a claim that a trial court decision was against the weight of the evidence is not a valid
basis for habeas corpus review.
In the instant case, Petitioner is arguing that the trial court erred in denying his post-sentence
motion for new trial based on the weight of the evidence in light of inconsistent testimony from the
victims. This argument sounds entirely in the reasonableness of the verdict based on issues of

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credibility, which is purely a state law claim that is distinct from a federal due process claim, and as
such, it is not a claim that is cognizable in federal habeas corpus?
After de novo review of the pleadings and documents in the case, together with the Report
and Recommendation, the following order is entered:
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AND NOW, this

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day of October, 2014:

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 21) is
ADOPTED as the Opinion of the Court as supplemented herein. 3

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The Court notes that the record reflects that the trial court considered and rejected
Petitioner's Post-Sentence Motion regarding the weight ofthe evidence as follows:
The evidence against Petitioner was overwhelming. The victims testified
in graphic detail of the circumstances which led to convictions at all three case
numbers. Their testimony was corroborated by additional witnesses including a
police officer and social worker.

While a trial court can merely speculate as to the reasoning behind ajury's
decision, there is evidence in this case that the Jury meticulously considered the
details of each charge. After deliberations, the Jury found Defendant guilty of some
charges, while not guilty ofothers. This indicates that the deliberations went beyond
a mere instinctual reaction to the charges. The Jury analyzed the evidence presented
and returned a verdict consistent with the credible testimony of record. There is
nothing in the record that shocks the sense ofjustice; there is no merit to Defendant's
claim that the Jury's verdict was against the weight of the evidence, and therefore,
petitioner suffered no prejudice from the waiver.
(ECF No. 1-2, at 73) (emphasis added).
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The Court also notes that the quotation on Page 15 of the Report and Recommendation
from Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001), should be corrected to read as follows:
the "reviewing court must examine the prosecutor's offensive actions in context and in light of
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IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(I) of the Federal Rules of
Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of
the Federal Rules of Appellate Procedure.

BY THE COURT:

Mark R. Hornak
United States District Judge
cc:

RICHARD M. ANDRULEWICZ
GD-3293
SCI Rockview
BoxA
Bellefonte, P A 16823
(via U.S. First Class Mail)
Jerome A. Moschetta

Washington County District Attorney's Office

(via CM/ECF electronic notification)

the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and
the quantum of evidence against the defendant.")
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