MULLARKEY v. TICE et al

Filing 21

MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus,, filed by JOHN MULLARKEY, Jr. dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 09/05/2017. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN MULLARKEY, JR.,
Petitioner,

)
)
)
) 2:16-CV-1658
)
)
)

v.
ERIC TICE, et al.,
Respondents.

MEMORANDUM and ORDER
John Mullarkey Jr., by his counsel has submitted a petition for a writ of habeas corpus.
For the reasons set forth below, the petition (ECF No.1) will be dismissed, and because
reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability
will be denied.
Mullarkey is presently serving a life sentence imposed on June 29, 2009 following his
conviction by a jury of first degree murder.(Petition at p.3). An appeal to the Superior Court was
filed in which the questions presented were:
Whether the trial court erred in failing to instruct the jury on
voluntary manslaughter where there was evidence that the killing was
a product of the heat of passion?
Whether the trial court erred in failing to grant a continuance or
mistrial at the close of all evidence where newly discovered evidence
available first on that day that would have discredited the
Commonwealth's chief rebuttal witness?
Whether the trial court erred in admitting the photographs
Commonwealth Exhibit 4, a photo of the deceased that was
inflammatory, gruesome and the probative value was outweighed by
its prejudice? (Answer, Exhibit 4 at p.3).
On August 10, 2011 the judgment of sentence was affirmed (Answer Ex. 5), and allowance of
appeal was denied by the Pennsylvania Supreme Court on February 15, 2012 (Answer Ex. 6 at
p.3).

A post-conviction petition was filed on February 13, 2013 and denied on September 4,
2014. An appeal to the Superior Court was filed in which the issue presented was "whether the
trial court erred by denying/dismissing appellant's petition for post-conviction collateral relief
without a hearing?" (Answer Exhibit 10 p.2). However, the individual allegations in support of
this claim were:
I.

II.
III.

IV.
V.

VI.
VII.
VIII.
IX.

Trial counsel was ineffective for failing to move to suppress statements
made by the appellant while the appellant was in the hospital and/or for
failing to request a jury instruction on the voluntariness of the statements.
(p.25) 1
Trial counsel was ineffective for failing to object to statements made by
the prosecutor during closing argument (p.32)
Trial counsel was ineffective for failing to present evidence of the
character of the victim and the nature of the victim's relationship with the
appellant such to establish "adequate provocation" to merit a jury
instruction on voluntary manslaughter… (p.36).
Trial counsel was ineffective for failing to secure a proper witness to
testify as to the severe psychological side effects of the prescription drug
Accutane P.39).
Trial counsel was ineffective for failing to present an expert witness to
testify to the nature of the wounds sustained by the victim and the
petitioner and the conclusions and inferences that could be drawn
therefrom and/or failing to effectively cross-examine the Commonwealth's
expert witness, Dr. Todd Luckasevic (p.43).
Trial counsel was ineffective for failing to investigate and secure a proper
expert witness to conduct a multiaxial evaluation of the appellant and to
present evidence regarding an Axis II diagnosis of the appellant (p.46).
Trial counsel was ineffective for failing to present character witnesses
(p.50).
Trial counsel was ineffective for failing to present evidence that the
appellant was known to carry the knife used to perpetrate the killing on a
regular basis (p.52).
Trial counsel was ineffective for failing to present evidence of the
tumultuous relationship between the victim and the appellant (p.53).

On November 16, 2015 the denial of post-conviction relief was affirmed (Answer Exhibit 11).
Allowance of appeal to the Pennsylvania Supreme Court was denied on August 3, 2016 (Answer
Exhibit 12).
In the instant counseled petition filed on November 1, 2016, Mullarkey raises the
following issues:
1

Page numbers refer to the petitioner's post-conviction appeal arguments located in Ex.10 to the answer at the
designated pages.

2

I.

Trial counsel was ineffective for failing to investigate the circumstances in
which the petitioner told a police detective: (1) "If I did something …If
someone did something wrong and they were on medication that made
them do it, can they still be found guilty?" (2) "The coroner was wrong
when he said she had 16 stab wounds. It was more like 2 times… [or] …
3"; "How can someone still be alive to say who stabled them if they were
stabbed 16 times?" and (4) "The coroner was wrong when the [sic] stated
the size of the knife that was used to stab [the victim] … the knife was 3.5
inches and not what the coroner said it was," while petitioner was in
custody in the hospital and being treated for a laceration on his neck from
which he nearly died of exsanguination.

II.

Trial counsel was ineffective for failing to file a motion to suppress
statements made by the petitioner to a detective while the petitioner was in
the hospital based on a violation of the petitioner's Sixth Amendment
rights pursuant to Massiah v. United States, 377 U.S. 201 (1964) i.e.
because the plainclothes detective continued to interrogate the petitioner
after having been notified that petitioner was represented by counsel.

III.

Trial counsel was ineffective for failing to file a motion to suppress
statements made by the petitioner to a detective while the petitioner was in
the hospital pursuant to Miranda v. Arizona, 384 U.S. 466 (1966).

IV.

Trial counsel was ineffective for failing to file a motion to suppress
statements made by the petitioner to a detective while the petitioner was in
the hospital on the basis that the statements were not voluntarily made.

V.

Trial counsel was ineffective for failing to object to statements made by
the prosecutor during closing arguments.

VI.

Trial counsel was ineffective for failing to present evidence via crossexamination or defense witnesses regarding the nature of the relationship
between the petitioner and the victim. Alternatively, the trial court erred
by failing to instruct the jury on voluntary manslaughter when sufficient
evidence had been presented over the course of the trial to support the
charge.

VII.

Trial counsel was ineffective for failing to present proper expert testimony
regarding the prescription drug Accutane.

VIII.

The trial court erred by failing to grant a mistrial/continuance when, after
the close of the defense's case, but before closing arguments, new
evidence that Accutane had been removed from the market had been
discovered; alternatively, the state appellate court(s) erred by failing to
grant a new trial on this basis.

3

IX.

Trial counsel was ineffective for failing to present a forensic pathologist to
testify to the nature of the wounds sustained by the victim and the
petitioner, and the inferences that can be drawn therefrom.

X.

Trial counsel was ineffective for failing to secure a proper
psychological/psychiatric expert witness to conduct a multiaxial
evaluation of the petitioner and to testify as to the findings therefrom,
particularly regarding the presence and impact of any Axis II diagnosis up
to and at the time of the killing.

XI.

Trial counsel was ineffective for failing to present character witnesses on
behalf of the petitioner.

XII.

Trial counsel was ineffective for failing to present witnesses or to crossexamine witnesses to show that the petitioner regularly carried the knife
used to perpetrate the killing with him in order to rebut the
Commonwealth's allegation of premeditation.

XIII.

Trial counsel was ineffective for failing to file a motion to suppress
evidence seized from the petitioner's cell phone.

XIV. The petitioner was deprived of his Constitutional right to trial by a fair and
impartial jury because one of the jurors knew a family member of the
petitioner and was biased against the petitioner's family as a result and
trial counsel was ineffective for failing to strike the juror from the jury
panel.2
The factual background to this prosecution is set forth in the November 16, 2015
Memorandum of the Superior Court:
Appellant and the victim, sixteen-year-old Demi C., were involved in an
intermittent romantic relationship. Attempting to rekindle his relationship with the
victim, Appellant continually text-messaged her over a period of days. During this
time, Appellant displayed signs of depression to his close friend Greg B., who
was also a neighbor of the victim. After learning that the victim and a male friend
of hers were spending time together at her home, Appellant threatened to use a
screwdriver to break the windows of her friend's car. On the date of the murder,
Appellant and the victim text-messaged one another throughout the day before
Appellant travelled to the victim's home. Prior to proceeding to the victim's
residence, Appellant asked the victim if her older brother, who was also a friend,
was home.The victim informed Appellant that her brother was not at the house.
Before leaving for the victim's residence, Appellant told Greg B that the victim
told him that he could not hug or kiss her. Appellant asked his friend if he should
still go and see the victim. Greg B. advised Appellant that there was no reason to
2

The Commonwealth concedes that the instant petition is timely (Answer at p.13).

4

see her, but Appellant decided that he had to talk with the victim. Appellant then
stated to Greg B. that he hoped that he did not do anything stupid.
Meanwhile, Gale S., one of the victim's neighbors, walked to her daughter and
son-in-law's house, which was next door to the victim's residence. While
conversing, the three individuals heard blood-curdling screams coming from next
door. Demi C. then exited her home covered in blood, staggered over to Gale S.,
and said that Appellant stabbed her. The victim and Gale S. collapsed onto the
ground, as Gale S's son-in-law telephoned 911. While attempting to reach 911, he
saw Appellant approach. Appellant appeared to be on a cellular phone and tossed
the telephone to him before falling to the ground. In an attempt to commit suicide,
Appellant had sever[ely] cut his own throat, causing a gaping wound from ear to
ear.
Police, paramedics, and EMT's [sic] arrived shortly thereafter. Initially,
Appellant's injuries were considered more serious and police directed the first
paramedics to arrive on the scene to treat him first. Appellant was rushed to a
hospital where his life was saved. The second paramedic to arrive immediately
began life saving measures on the victim; despite these efforts, the victim died.
She suffered a total of sixteen stab wounds from a three-and-one-half-inch pocket
knife owned by Appellant. Several wounds were the length of the entire blade of
the knife.
While under armed guard at the hospital, Appellant's ability to communicate was
initially limited to writing statements on a dry erase board. At one juncture,
Appellant questioned the officer guarding him whether a person could still be
found guilty if that person did something wrong when he was on medication that
made that person do it. Appellant added that he had been taking Accutane, a
prescription medication designed to combat severe acne, which he alleged caused
suicidal thoughts and violent outbursts. In addition, Appellant indicated to the
officer that he stabbed the victim two or three times, not sixteen as reported.
The Commonwealth charged Appellant with criminal homicide. Appellant
proceeded to a jury trial, asserting as a defense diminished capacity. In support of
his position, he contended that his use of the prescription drug Accutane caused
uncontrollable and aggressive actions. Both Appellant and the Commonwealth
called expert witnesses. The expert testimony largely consisted of a discussion of
Appellant's depression and whether Accutane could have caused him to stab the
victim sixteen times. At the close of the evidence, but prior to the jury receiving
its instructions, the manufacturer of Accutane removed it from the market.
Appellant requested the trial court to either instruct the jury on this action, permit
him a continuance to investigate, or declare a mistrial. The court denied these
requests and the jury returned a guilty verdict and Appellant received the
mandatory sentence of life imprisonment (Answer Exhibit 11 at pp.1-3).

5

In seeking relief here, Mullarkey asserts thirteen contentions that he was denied the
effective assistance of trial counsel and finally in his fourteenth issue that he was denied trial
before a fair and impartial jury.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained
that there are two components to demonstrating a violation of the right to the effective
assistance of counsel. First, the petitioner must show that counsel's performance was
deficient. This requires showing that "counsel's representation fell below an objective
standard of reasonableness." Id. at 688; see also Williams v. Taylor, 529 U.S. 362, 39091 (2000). Second, under Strickland, the defendant must show that he was prejudiced by
the deficient performance. "This requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687, 104 S.Ct. 2052. To establish prejudice, the defendant "must show that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id. at 694. The Strickland test is conjunctive
and a habeas petitioner must establish both the deficiency in performance prong and the
prejudice prong. See Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189,197
(3d Cir.2010) cert. denied 131 S.Ct. 1673 (2011). As a result, if a petitioner fails on either
prong, he loses. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006).
The petitioner's first four allegations raise issues of ineffectiveness regarding
failing to move to suppress petitioner's inquiry to the police while he was hospitalized
and failing to move to suppress the ensuing statements, including his statements
regarding the findings of the coroner.
While there is little doubt that the petitioner who was hospitalized as a result of
his self-inflicted wounds was shackled to a bed and in police custody, the record also
reflects that he was never interrogated but rather voluntarily asked questions of the
guard.3 Specifically, he tapped on the board to gain the officer's attention and inquired
about the nature of a preliminary hearing (TT.265); about three hours later petitioner
inquired whether if he did something, which he then modified to if someone did anything
wrong and was on medication, could that person still be convicted (TT.266, 283-284);
3

The petitioner was unable to speak and so wrote his inquiries on a dry erase board (TT. 264).

6

petitioner then related that he was on Accutane which was known "to cause suicidal
thoughts and violent tendencies"(TT.267); that the television news reports frequently got
the facts wrong (TT.268) including facts about him and the victim (TT.268); that the
reports erroneously said his ex-girlfriend was fifteen years old and that he was nineteen
(TT.268); that the coroner "was wrong when [he] stated the size of the knife that was
used to stab Demi, and he went on to write that the knife was 3.5 inches and not what the
coroner had said it was (TT.268); that the coroner was wrong when he said the victim had
been stabbed 16 times and "it was more like two times" (TT.269, 284); that the criminal
complaint had reported that the victim "told an ambulance driver that he had stabbed her,
and he said, how can someone that was stabbed 16 times be alive to tell somebody who
stabbed them" (TT.269, 284) and that the victim "drove him crazy and … ruined his
relationship with his more current girlfriend" (TT.269, 278). On cross-examination the
detective conceded that petitioner was "just trying to ask questions to understand his
position as far as the legal process" (TT.273).
In reviewing this claim, the Superior Court cited the post-conviction court's
finding that "Detective Kuma did not question Appellant. Appellant volunteered the
information in question without any action by police likely to induce Appellant to write
his statements."4 Factual findings by the state courts are entitled to a presumption of
correctness. 28 U.S.C. §2254(e)(1); Felkner v. Jackson, 131 S.Ct. 1305 (2011).
While the Court clearly held in Miranda v. Arizona, 384 U.S. 436 (1966) that the
Fifth Amendment required certain safeguards be employed before a custodial
interrogation can occur, the Court also held that,
Confessions remain a proper element of law enforcement. Any
statement given freely and voluntarily without any compelling
influences is of course, admissible in evidence. (384 U.S. at
478)(emphasis added).
See: Rhode Island v. Innis, 446 U.S. 291, 300 (1980); Robertson v. Pichon, 849 F.3d 1173, 1184
(9th Cir. 2017).
In the present case, while Mullarkey was clearly in custody, there is also no doubt that he
voluntarily initiated the exchange with the officer who never questioned him. Accordingly, these
claims do not present a basis for relief under the Fifth Amendment. The petitioner also claims
4

Exhibit 10 to the answer at p.10.

7

that counsel was ineffective by failing to allege that his Sixth Amendment right to counsel was
violated by the police who did not advise him of this right during the hospital "interrogation".
Since the record clearly demonstrates that an interrogation never occurred, counsel cannot be
deemed to have been ineffective under the Sixth Amendment for failing to raise meritless
arguments. Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010).5
Petitioner next contends that counsel was ineffective for failing to object to the
statements made in the prosecutor's opening and closing remarks. We observe that Dr. Wagner
initially testified that "all drugs have issues where you should never go off cold turkey on these
drugs". Whereas defense witness Dr. Wettstein testified that the petitioner had not reported any
side effects from his discontinuation of Accutane, nor was he aware of any reports in the
literature suggesting dire consequences of sudden termination.6 In his closing, the prosecutor
stated "folks, let me digress for a few minutes and talk about this boogeyman that's been
conjured by in the openings and that Dr. Wagner tried to frighten you about. This cold turkey
nonsense." (TT. 720- 721). The terms, "cold turkey" and sudden cessation were used
interchangeably.
Specifically in his challenge to the prosecutor's arguments, petitioner points to his
opening where he stated:
Accutane, this pimple pill that Mr. Mullarkey was on for a total of
four months and never had any problems with except that his pimples
went away (TT.41),
and his closing,

5

The record also demonstrates that the petitioner never made a showing that his statements were involuntary due to
a drugged induced state. (Exhibit 11 to the answer at p. 10).
6
Dr. Wagner, a defense witness who holds a Doctor of Pharmacy degree (TT. 403) which is not the equivalent of a
Ph.D. in pharmacy (TT. 424), testified that Accutane had possible side effects of depression, psychosis and suicide
(TT. 409). He testified that although he had no specific experience with Accutane "cold turkey" withdrawal from
some drugs could possibly result in psychotic episodes, overwhelming depression, insomnia, rage and aggressive
behavior (TT. 419-420, 438-439). He conceded that he had no experience nor was he aware of any studies dealing
with "cold turkey" Accutane withdrawal or any linkage with homicide (TT. 440-442). Dr. Wettstein also testified for
the defense that he was aware of "links between Accutane and depression and irritability" (TT. 464) and that he
believed the petitioner was suffering from a cognitive impairment (TT. 467) although some of his actions
immediately after the crime appeared to demonstrate cognitive ability (TT. 472). Dr. Wettstein also testified that the
petitioner had related that he discontinued his Accutane two or three days prior to the homicide (TT. 488); that the
records from his dermatologist reflected that he had not reported any side effects from the Accutane (TT. 490) and
that the literatiure does not demonstrate any link between the use of Accutane and depression, suicide or homicide
(TT. 492).

8

let me digress for a few minutes and talk about this boogeyman that's
been conjured up in the openings and that Dr. Wagner tried to frighten
you about. This cold turkey nonsense …
What do we know about Accutane? We know from Dr. Seraly who
has treated approximately 3,000 patients with Accutane in 15 years
that worldwide, of the in excess of 13 billion doses that have been
given, out of the 12 million people that have received Accutane, 12
million in the last 27 years, how many incidents of suicide have they
had? 146. Less than the suicide rate you would expect in that same
age group in the general population…
Both Dr. Wright and Dr. Seraly agreed with that statement that I read
from Dr. Wettstein… [who] found no causal link because of a lack of
studies…
The people from AGH that saw him closest in time to this incident,
what did they diagnose … an adjustment disorder. Accutane in and of
itself, ladies and gentlemen, is not what this case is about… (TT.720722).
Certainly the opening and closing referenced the petitioner's allegation that his acts where
cause by Acutane, and represented reasonable comments on the evidence produced at trial. Such
comments provide a basis for relief only where they so infected the trial as to create a due
process violation. Parker v. Matthews, 132 S.Ct. 2148 (2012). Such clearly is not the case here.
In addition, the court instructed the jury that arguments of counsel do not constitute evidence
(TT.759). For these reasons the argument raised here is without merit.
Petitioner's next argument is that counsel was ineffective for failing to present evidence
of the volatile relationship between him and the victim so as to warrant a jury instruction on
voluntary manslaughter.7 In rejecting this argument, the Superior Court wrote,
The facts of this case that Appellant contends support serious
provocation were that the victim had kissed another boy in front of
him, lied to him about quitting cheerleading, flirted with someone on
MySpace, socialized with another boy, told him that she was sick of
him, and struck him while he was physically restraining her on the
day of the killing… None of the actions allege by Appellant, even
when combined, constitutes serious provocation and Appellant points
to no case law that so hold.8
7

18 Pa.C.S.A. §2503(a)(1) provides that "a person who kills an individual without lawful justification commits
voluntary manslaughter, if at the time of the killing he is acting under a sudden and intense passion resulting from
serious provocation by the individual killed."
8
Exhibit 11 to the answer at p.17.

9

The resolution of this matter was based on state law, and for this reason is not subject to review
here, Swarthout v. Cooke, 131 S.Ct. 859 (2011), and counsel cannot be faulted for failing to raise
a meritless issue. Real v. Shannon. 600 F.3d 302, 310 (3d Cir.2010).
Petitioner next argues that counsel was ineffective in failing to call an expert witness to
testify about the severe psychological effects of Accutane. As observed above, petitioner called
Dr. Wagner to testify that as a result of the use of Accutane, petitioner could not form the
specific intent to kill. While he did testify that the possible side effects of Accutane intoxication
included psychotic episodes, overwhelming depression, insomnia, rage and aggressive behavior,
he was not asked the ultimate question of whether petitioner "was overwhelmed to the point of
losing his sensibilities" but rather concentrated on the effects of sudden withdrawal. 9 Petitioner
seeks to bolster his claim that trial counsel was inadequate for calling Dr. Wagner as an expert
rather than another individual, i.e. Frederick W. Fochtman, Ph.D. to testify. In a report dated
October 26, 2016, seven years after the trial, Fochtman wrote that
Side effects of Accutane include psychiatric manifestations of depression and
aggression as well as a myriad of other possible ones. These side effects are
estimated to occur [infrequently]. It is not inconceivable that anyone at any time
may experiences these side effects. John Mullarkey's actions that led to the death
of Demi Cuccia and his own suicide attempt …are consistent with the
documented side effects reports for [Accutane] therapy. In the absence of any
other cause the side effects of his drug therapy would have contributed to his state
of mind and resultant actions taken.10
While both doctors supported the possible infrequent side effects from the use of
Accutane, neither one was able to state that petitioner's Accutane intoxication so overwhelmed
him to reduce the degree of murder to a lesser degree of murder. See: Commonwealth v.
Blakeney, 946 A.2d 645, 653 (Pa. 2006) ("Evidence of intoxication may be offered by a

defendant to reduce murder from a higher degree to a lower degree.") 18 Pa.C.S. § 308.11
Intoxication, however, may only reduce murder to a lower degree if the evidence shows that
the defendant was “overwhelmed to the point of losing his faculties and
9

See: Petition at p.65.
See: Exhibit T to the petition.
11
18 Pa.C.S.A. §308 provides "neither voluntary intoxication nor voluntary drugged condition is a defense to a
criminal charge, nor may evidence of such condition be introduced to negative the element of intent of the offense,
except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant
whenever it is relevant to reduce murder from a higher degree to a lower degree of murder"(emphasis added).
10

10

sensibilities.” Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035, 1041
(1990) (citation omitted), cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179
(1990)").
Thus, even if Dr. Fochtman had been called to testify, he was unable to provide any
demonstration that the petitioner's sensibilities where "overwhelmed" by the use of Accutane,
and for this reason counsel cannot be deemed to have been ineffective for failing to call him
as a witness.
Petitioner also contends that the trial court erred when it failed to grant a
mistrial/continuance when it was learned that Accutane had been removed from the market.
At the close of testimony but prior to closing arguments and jury instructions, defense
counsel moved for a continuance/mistrial based on "after discovered evidence on the
withdrawal of Accutane" from the market (TT.675-677). Whereupon, the court relying on
information contained in PharmaTimes related that "'Roche announced that it is withdrawing
its acne drug Accutane from the U.S. market. The company has notified the U.S. Food and
Drug Administration that it is pulling Accutane after a reevaluation of its portfolio revealed
that the drug faces serious generic competition'"(TT. 678-679). Based on its conclusion that
the decision to remove Accutane from the market was an economic decision, the court
denied the motion (TT. 679). Or, as the Superior Court wrote in the direct appeal "the
learned trial judge noted on the record that the reason given for removing the drug from the
market was the result of the lack of profitability due to cheap generic competition" (Exhibit 5
to the answer at pp.10-11). State court findings of fact are presumed correct. 28 U.S.C.
§2254(e)(1), and nothing in the record demonstrates a basis for concluding otherwise. Thus,
this claim likewise is without merit.
Petitioner's next argument is that trial counsel was ineffective in failing to adequately
cross-examine the prosecution's forensic pathologist, Dr. Todd Luckasevic, and also for
failing to call Dr. Eric Lee Vey who is also a forensic pathologist (Exhibit 7 to the answer at
Exhibit A) to testify as to the petitioner's state of mind ("the character and number of sharp
force wounds to the homicide victim in this case, with their varying depths, orientations, and
lengths… are supportive of a violent, maniacal, frenzied assault").

11

Petitioner argues that Dr. Luckasevic who is a board certified forensic pathologist
(TT. 342), was not cross examined by defense counsel "regarding the inferences that could
be drawn from these types of wounds in terms of the likely mental state of the attacker …
[and] could have established that the killing occurred while the Petitioner was 'acting under a
sudden and intense passion'") (petition at p.76)(emphasis added). There is nothing in the
record to demonstrate that further cross-examination of Dr. Lickasevic would have supported
petitioner's claim.
As to Dr. Vey the Superior Court wrote "Dr. Vey's expert report does nothing to show
serious provocation nor … that Appellant's stabbing of the victim and himself were the result
of such a mental defect that he could not formulate specific intent" (Exhibit 11 to the answer
at p.21). In Saranchak v. Beard, 616 F.3d 292, 308 (3d Cir. 2010) , cert. denied 565 U.S. 831
(2011), the Court wrote "diminished capacity is 'an extremely limited defense' that requires a
defendant to establish through 'extensive psychiatric testimony [that he] suffered from one or
more mental disorders which prevented him from formulating the specific intent to
kill'” (citations omitted)(emphasis added). No such demonstrate is made here, and the
petitioner's claims do not support relief.
Petitioner next contends that counsel was ineffective in failing to introduce expert
psychological/psychiatric testimony. Specifically, petitioner contends that counsel was
ineffective in failing to request his expert to provide a multi-axial diagnosis. That is the
expert failed to evaluate the petitioner's cognitive function despite the fact that the petitioner
had been "evaluated by a number of mental health professions" (petition at pp.81-84).12
In this regard, petitioner refers us to the report of a January 2013 examination by Dr.
Ernest Boswell which was conducted 6 ½ years after the events. In that report Dr. Boswell
concludes,
It is the opinion of the current examiner that Mr. Mullarkey's actions
were the result of a combination of serious provocation and
underlying personality disorder with borderline features, which
rendered him incapable of normal reflection between the time of the
provocation and the actual assault. (Post-conviction petition Ex.M at
p.24).
12

Petitioner's expert witness reported that he "cannot state with reasonable psychiatric certainty that the defendant
… completely lacked the cognitive ability to premeditate and deliberate the alleged offense" (petition at p.83).

12

In reviewing this claim, the Superior Court wrote,
Although Dr. Boswell set forth that it was his opinion that Appellant's actions
were "the result of serious provocation" and his personality disorder … the actual
provocation discussed in Dr. Boswell's report was the victim's angry comments
that she hated him and did not want to see him again. As a matter of
[Pennsylvania] law, such words to not rise to the level of serious provocation.
Hence, even if Dr. Boswell testified at trial, Appellant still would not have met
the legal criteria for a heat of passion or diminished capacity defense (Exhibit 11
to the answer at pp.23-24).
Thus, as a matter of Pennsylvania law, even if Dr. Boswell's testimony at been presented
at trial, if would have not lessened the offense level and counsel cannot be deemed to have been
inadequate for failing to secure this testimony. Real v. Shannon, supra.
Petitioner next contends that counsel was ineffective in failing to call character witnesses
including a priest and a police officer to testify on his behalf.
At trial and out of the presence of the jury but in the presence of the defendant, defense
counsel represented that the petitioner was aware of his right to testify or remain silent, as well as
to call character witnesses, and that he elected to do neither (TT.507-509). In reviewing this
claim, the Superior Court wrote,
Appellant's defense was not that he did not commit the crime. Instead, Appellant
was seeking a finding of guilt that was lesser than first-degree murder. Contrary to
Appellant's claim, evidence that Appellant had a peaceful character does not give
rise to a legal inference that he was seriously provoked or suffering from
voluntary intoxication because he was seriously provoked or suffering from
voluntary intoxication because he stabbed the victim outside of that character. In
order to establish a lesser culpability than first-degree murder, Appellant was
required to provide evidence of serious provocation or that his taking of Accutane
so impaired him that he was unable to form specific intent. The presentation of
character evidence does not do either and would not have warranted a jury
instruction relative to voluntary manslaughter. Appellant cannot establish actual
prejudice (Ex.11 to the answer at p.26).
The record demonstrates that petitioner and his counsel had discussed the calling of
character witnesses, and that neither concluded that their testimony was necessary. Additionally,
as a matter of state law, the calling of those witnesses would not have provided a valid defense to
first degree murder, and that counsel cannot be deemed to have been ineffective in failing to
raise a meritless defense. Real v. Shannon, supra.
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Petitioner next contends that he is entitled to relief as a result of counsel's inadequacy in
failing to call or cross examine witnesses regarding the fact that the petitioner carried the knife
involved in the homicide on a regular basis thereby permitting an inference that he did not
premeditate the crime by the unusual act of carrying a knife. Petitioner argues that lack of such
evidence permitted the jury to conclude that the petitioner purposefully brought the knife with
him on the evening in question for the purpose of conducting a homicide (Petition at p. 94).
Evidence in the form of testimony and an outstanding police report presented conflict on the
petitioner's knife carrying propensity but had no relevance to the issue of premeditation and
counsel cannot be deemed to have been ineffective for failing to call Jaccob Cuccia as a
witness.13
The next issue raised is the alleged ineffectiveness of counsel for failing to move to
suppress the text messages secured from the petitioner's cell phone without a warrant. In support
of this claim, the petitioner relies on Riley v. California, 134 S.Ct. 2473, 2485 (2014)("officers

must generally secure a warrant before conducting [a cell phone] search"). The problem with
the claim of ineffectiveness is that Riley was decided five years after the petitioner's trial. For
this reason counsel cannot be deemed ineffective for not raising a claim that did not exist at
the time of trial. See: Chaidez v. United States, 133 S.Ct. 1103, 1111 (2013). Thus, this
claim does not provide a basis for relief.
Petitioner's final issue that trial counsel was ineffective in failing to strike one of the
jurors who knew a family member and was biased against the petitioner. The Sixth
Amendment provides in part that "the accused shall enjoy the right to a …trial by an
impartial jury…" "[I]mpartiality, we have reiterated, does not require ignorance." Skilling
v. United States, 130 S.Ct. 2896, 2915 (2010).
Specifically, in this regard the petitioner contends that:
One of the jurors, Anthony Panza… during jury selection/voir dire
stated under oath that he did not know the Petitioner or anyone in the
Petitioner's family. Information obtained since the Petitioner's trial
has shown this to be false. In fact, Mr. Panza knew the Petitioner,
John Joseph Mullarkey, Jr.'s cousin, John Michael Mullarkey.Mr.
13

Of note is the fact that petitioner's friend was called as a prosecution witness and testified that he was unaware of
the petitioner carrying a knife (TT.309-310). However, petitioner's father testified that his son regularly carried a
knife (TT. 398-400). In addition, it is alleged that in a supplemental police report dated August 17, 2007, Jaccob
Cuccia acknowledged that he had observed the petitioner with the knife on other occasions (ECF 13-5 pp.46-48).

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Panza went to Hampton High School with John Michael Mullarkey.
In fact Mr. Panza had dated a young lady who then broke up with him
and began dating John Michael Mullarkey.(Petitioner at p.99).
Petitioner now contends, without any support, that as a result of this conduct he was
denied a trial before an impartial jury and counsel was ineffective in failing to remove Mr. Panza
from the panel. This claim has never been raised in the state courts, can no longer be raised in
those courts and for this reason is procedurally defaulted and need not be address here. Coleman
v. Thompson, 501 U.S. 722,750 (1991).
However, even if properly preserved this claim fails for two reasons. First, there is no
record support for it and there is no showing that this claim could not have been determined
through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(ii). Secondly, as noted above
counsel cannot be deemed to have been ineffective for failing to raise an issue which was
unknown at the time of trial. Chadiz, supra.
Accordingly, because the petitioner has failed to demonstrate that his conviction was
secured in any manner contrary to federal law as determined by the Supreme Court nor that his
conviction result from improper application of that law, he is not entitled to relief here. For this
reason, the petition will be dismissed and because reasonable jurists could not conclude that a
basis for relief exists, a certificate of appealability will be denied.
An appropriate Order will be entered.

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ORDER
AND NOW, this 5th day of September, 2017 for the reasons set forth above, the petition
of John Mullarkey, Jr (ECF No.1) is DISMISSED, and because reasonable jurists could not
conclude that a basis for appeal exists, a certificate of appealability is DENIED.

s/ Robert C. Mitchell
United States Magistrate Judge

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