PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 15-1833

______________ 

JAMES DELLAVECCHIA, 

 Appellant 

v. 

SECRETARY PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; ATTORNEY GENERAL 

PENNSYLVANIA; DISTRICT ATTORNEY 

DELAWARE COUNTY 

______________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 2-14-cv-05014) 

Honorable Harvey Bartle, III, District Judge 

______________ 

Submitted under Third Circuit LAR 34.1(a) 

March 3, 2016 

BEFORE: JORDAN, GREENBERG, and 

SCIRICA, Circuit Judges 
2 

(Filed: April 15, 2016) 

______________ 

Burton A. Rose 

1731 Spring Garden Street 

Philadelphia, PA 19103 

 Attorney for Appellant 

Kelly M. Sekula 

Bruce R. Beemer 

First Deputy Attorney General 

Lawrence M. Cherra 

Executive Deputy Attorney General 

Criminal Law Division 

Amy Zapp 

Chief Deputy Attorney General 

Appeals and Legal Services Section 

Suite 310 

1000 Madison Avenue 

Norristown, PA 19403 

 Attorneys for Appellees 

______________ 

OPINION OF THE COURT 

______________ 

GREENBERG, Circuit Judge. 
3 

I. INTRODUCTION 

 On this appeal from an order denying a petition for a writ 

of habeas corpus we consider the Sixth Amendment right to 

counsel in an unusual set of circumstances. In September 2012, 

a state-court jury convicted appellant, James Dellavecchia, of 

first-degree murder, criminal attempt (homicide), three counts of 

recklessly endangering another person, and weapons-related 

offenses. At the trial, Lieutenant Scott Willoughby of the 

Ridley Township, Pennsylvania, Police Department, the lead 

officer investigating the crimes, gave testimony that is at the 

center of this opinion. In particular, Willoughby testified that 

Dellavecchia made an incriminating statement immediately 

following a bedside arraignment conducted while he was 

hospitalized for a self-inflicted head injury on the day following 

his arrest for the commission of the offenses. 

 

 It is undisputed that when Dellavecchia made his 

statement without counsel present and without having been 

given Miranda1

 warnings, he had not waived the right to 

counsel. Thus, as the case law we discuss below demonstrates, 

the dispute concerns whether Willoughby deliberately elicited 

Dellavecchia’s statement or was a mere “listening post” when 

Dellavecchia, spontaneously and without prompting, 

volunteered incriminating information. 

 We conclude that Willoughby did not deliberately elicit 

Dellavecchia’s statement and consequently did not violate 

Dellavecchia’s Sixth Amendment right to counsel. We also 

 

1 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). 
4 

conclude that the evidence at the trial, even disregarding 

Dellavecchia’s statement, overwhelmingly supported his 

convictions and thus, even if his Sixth Amendment rights had 

been violated when he gave the statement, the ensuing error 

when Willoughby recounted the statement at trial was harmless. 

 Therefore, we will affirm the District Court order denying 

Dellavecchia’s petition for habeas corpus. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

A. Factual Background 

 Because the District Court did not hold an evidentiary 

hearing, we draw our statement of facts from the evidence at the 

trial and a state-court pretrial hearing on a motion that 

Dellavecchia filed seeking to suppress his statement.2

 

Dellavecchia committed the crimes on October 10, 2011. The 

events of that day started at approximately 6:00 a.m., when Scott 

Robins exited his house on Sylvania Avenue in Folsom in 

Ridley Township, Pennsylvania, to leave for work. His 

colleague, Rick Wallace, was waiting for him in the front 

passenger seat of their work van, which was parked in Robins’s 

driveway. According to Wallace, who testified at the trial, 

Robins opened the driver’s side door and then placed his 

belongings in the center console of the van and started to step 

into the vehicle. Then Wallace heard gun shots and looked in 

the direction of Robins who told him to run. Instead, Wallace 

exited the van and hid underneath it. From that position when 

 

2 The parties submitted separate appendices. We will cite 

Dellavecchia’s appendix as “Pet. App.” and will cite the 

Attorney General of Pennsylvania’s appendix as “Pa. App.” 
5 

he looked in the direction of the driver’s side of the vehicle, he 

saw the legs and feet of an individual wearing white sneakers 

and jeans walking toward the street. Wallace testified that when 

that individual turned left toward the back bumper of the van, he 

rolled out from under the vehicle and started to run across the 

street. At that time, Wallace heard additional gunshots. 

 Robins’s stepdaughter, Kristen Snow, was in a 

downstairs bedroom in the Robins’s family house when Robins 

left for work. When she heard gunshots, she ran upstairs and 

went out the front door to look for Robins. Dellavecchia then 

shot Snow in the stomach and she fell to the ground. Snow 

testified that after she was shot, “somebody—Mr. Dellavecchia 

came from behind the van,” walked up to her, and “held the gun 

to [her] head.” (Pa. App. at 98a, 136:13-15). She stated that she 

“stared at his face, [he] stared back [at me, and then] he just 

turned around and walked away.” (Pa. App. at 98a, 136:15-18). 

 

 Francis Freeman, a neighbor and long-time acquaintance 

of Scott Robins, awakened when he heard gunshots that 

morning. He heard a second round of gunshots and then “heard 

a woman say, help, call the police.” (Pa. App. at 120a, 158:17-

18). Freeman called 911, reported the gunshots, and then ran 

over to Robins and Snow. He was with Robins when the police 

arrived, and his wife, who came to the scene of the shootings 

shortly after he did, was with Snow when they arrived. 

 The first police officer to reach the scene of the shootings 

was Corporal Michael Bongiorno of the Ridley Township Police 

Department. Bongiorno knew Robins and Dellavecchia because 

the latter had made complaints to the Ridley Township Police 

Department regarding Robins. When he arrived, Bongiorno saw 

Snow sitting in “a crunched position” on the front lawn 
6 

“writhing in pain.” (Pa. App. at 140a, 178:15-18). When 

informed that there was another victim, Bongiorno went around 

the van and found Robins partially underneath the front of the 

vehicle. Bongiorno testified at the trial that he then had the 

following conversation with Robins: “I said to him, you know, 

what the hell happened? What happened? Who shot you? And 

he said, Dellavecchia. And I said, your neighbor? And he said, 

yeah. And he went like that with his left hand and kind of 

pointed towards Ninth Avenue.” (Pa. App. at 142a, 180:6-11). 

Snow and Freeman testified at the trial that they also heard 

Robins identify Dellavecchia as the shooter to Bongiorno. 

 After the above exchange, other officers arrived, and 

Bongiorno, along with Officer Robert Ruskowski, also of the 

Ridley Township Police Department, left the scene of the 

shootings and moved toward Ninth Avenue in the direction to 

which Robins had pointed. While going toward Ninth Avenue, 

Bongiorno contacted the police dispatcher via his radio 

communication system and provided the name “Dellavecchia” 

to the dispatcher whom he asked to get Dellavecchia’s address 

and telephone number. The dispatcher did so and gave 

Bongiorno this information minutes later. At approximately the 

same time, a neighbor called out to Bongiorno from across the 

street, “Dellavecchia’s house is that one,” and pointed to a 

particular house. (Pa. App. at 145a, 183:9-17). While still 

outside the Dellavecchia house, Bongiorno called the dispatcher 

with a direction to call the Dellavecchia telephone number and 

ask whoever answered to step outside. “Some seconds later,” 

the dispatcher informed Bongiorno that Mrs. Dellavecchia was 

on the phone, and she then came to the front door where 

Bongiorno was standing. (Pa. App. at 146a, 184:11 to 147a, 

185:2). In response to Bongiorno’s questioning about who else 

was in the house, Mrs. Dellavecchia stated that her husband was 
7 

in the shower. Bongiorno then escorted Mrs. Dellavecchia 

down the driveway and handed her off to another officer with a 

direction to prevent her from returning to the house. 

 

 Bongiorno, along with Ruskowski, then entered the house 

and walked up the stairs in the direction of the shower. After 

they found Dellavecchia in an upstairs bedroom getting dressed, 

they instructed him to freeze. Bongiorno handcuffed 

Dellavecchia and informed him that he was being detained for 

an investigation involving a shooting. The officers then 

removed Dellavecchia from the house, and Ruskowski 

transported him to the police station. Bongiorno testified that as 

he stood with Dellavecchia in the upstairs bedroom, he noticed a 

spot of blood on the bureau and saw a pair of white sneakers that 

appeared to be wet. Ruskowski, while securing the house, 

discovered a partially obscured briefcase underneath the bed 

near where Dellavecchia was dressing. Ruskowski informed 

Bongiorno of the discovery and pointed out that there was an 

additional spot of blood on top of the briefcase. At that time, 

Bongiorno cautioned Ruskowski and another officer who was 

securing the house not to touch the briefcase and to make sure 

that no one else was inside the house. While Ruskowski was 

taking Dellavecchia to the police station and Robins and Snow 

were being transported to a hospital, Bongiorno turned the crime 

scene over to detectives and supervisors from the next shift who 

had begun to arrive at the scene. 

 Willoughby was one of the officers who arrived at the 

crime scene at that time. According to Willoughby, he had the 

responsibility to direct the other officers in the collection of 

evidence, containment of the crime scene, and coordination with 

witnesses, among other tasks. Under his supervision, Ridley 

Township police officers collected evidence from the scene of 
8 

the shootings including 13 .40 caliber federal ammunition shell 

casings and four bullet fragments. 

 

 Shortly after his arrival on the scene, Willoughby 

directed a sergeant who was back at the police station to seek a 

search warrant for the Dellavecchia home. The sergeant 

obtained the warrant and delivered it to Willoughby. Then, with 

the assistance of other members of the Ridley Township Police 

Department, Willoughby entered the Dellavecchia home to 

execute the warrant. During the ensuing search the police seized 

the pair of white sneakers that Bongiorno earlier had noticed. 

Willoughby explained that as he circled the residence, he 

noticed a hose in the back of the house where there was a fresh 

puddle of water with muddy footprints. He surmised that 

someone recently had cleaned off his shoes at that location. 

Inasmuch as the white sneakers in the bedroom were wet, 

Willoughby collected them as evidence. 

 

 The officers next seized the briefcase that Ruskowski had 

discovered underneath the bed. When Willoughby removed the 

briefcase from that location, he noted “drippings of blood” on 

the visible top portion. (Pa. App. at 197a, 20:1). The contents 

of the briefcase included a black plastic box in a plastic bag 

containing a Ruger .40 caliber semi-automatic handgun and two 

boxes of .40 caliber federal ammunition which, like the 

handgun, were inside a black plastic bag. The .40 caliber 

federal ammunition matched the shell casings found at the scene 

of the shootings. One box was full and contained all 50 live 

rounds but the other box was missing 17 rounds. 

 

 During the search, Willoughby seized a pair of jeans and 

a white sweater from Dellavecchia’s basement from a spot 

immediately inside the back door near the place where the hose 
9 

and fresh puddle were found. Willoughby observed what he 

thought was a blood stain on the white sweater. It appeared to 

him that someone hurriedly had removed the clothing so he 

seized both articles as evidence. 

 

 After the officers collected evidence, Willoughby 

returned to the Ridley Township police station to speak with 

Dellavecchia. As he prepared to do so, he “heard a loud bang up 

in the cell.” (Pa. App. at 204a, 27:6-8). When Willoughby went 

to the cell to investigate the noise, he discovered that 

Dellavecchia had run head first into the jail cell bars and 

required immediate medical attention. The police then took him 

to the Chester-Crozer Hospital where he was admitted. 

 

 The following day, Willoughby learned that Dellavecchia 

was coherent, though still hospitalized. Willoughby then 

brought Vincent Gallagher, Magisterial District Judge for Ridley 

Township, to the hospital to conduct a bedside arraignment for 

Dellavecchia. At the arraignment, Dellavecchia was advised 

that he had been charged with various crimes including the 

murder of Scott Robins who had died and also was advised of 

his defendant’s rights. Thereafter, as described below, he made 

the statement to Willoughby that is the basis for this appeal. 

 After he was indicted, Dellavecchia made a motion to 

suppress his bedside statement and the state common pleas court 

held a hearing on the motion on July 18, 2012. At the hearing 

Willoughby gave, inter alia, the following testimony: 

[A]s soon as District Justice Gallagher arraigned 

the Defendant he turned and started to walk out of 

the room. Mr. Dellavecchia asked me who are 

you. I introduced myself as Lieutenant Scott 
10 

Willoughby from the Ridley Township Police 

Department. I told him I was in charge of the 

investigation, at which time he asked me to sit. I 

sat. He put out his hand. I shook his hand. And 

he stated this. I really fucked up. He asked me to 

sit down. And he says Scotty, I want to tell you 

what happened. I sat in the chair and Mr. 

Dellavecchia began to talk freely and openly. 

(Pet. App. at 65a, 48:8-19). Willoughby testified that he did not 

go to the hospital intending to interview Dellavecchia and 

consequently did not bring a notepad or a Miranda waiver form 

with him when he went there. Willoughby explained that until 

the arraignment, the Ridley Township Police Department was 

responsible for supervising Dellavecchia’s custody, but that 

after the arraignment that responsibility shifted to prison 

personnel. Accordingly, Willoughby intended to have 

Dellavecchia arraigned as soon as possible to facilitate this 

administrative transition. Willoughby testified that after 

Dellavecchia blurted out the above statement, he asked 

Willoughby “if I say anything can it be used against me[?]” 

(Pet. App. at 70a, 53:11-13). Willoughby responded that 

anything he said could be used against him. 

 

 The first substantive topic that Dellavecchia addressed 

after his initial statement to Willoughby was his relationship 

with Scott Robins. Dellavecchia said that they had known each 

other since Robins was a child because Robins had grown up in 

the house in which he was living at the time he was shot. 

Dellavecchia stated that he never was fond of Robins. 

Dellavecchia told Willoughby that for several months, Robins 

had been building a shed too close to the property line without 

the required permits. Dellavecchia also complained that, while 
11 

Robins was building the shed, he played loud music and used an 

air staple gun near the property line. On several occasions in the 

months leading up to the shooting, Dellavecchia had contacted 

the Ridley Township Police Department to complain about the 

construction of the shed. He explained that on one occasion, 

Robins threatened him, and he was intimidated by Robins’s size, 

which prompted him to buy the gun. 

 Willoughby testified that Dellavecchia continued his 

uninterrupted narrative and provided the following account of 

the events of the previous morning. He was “awoken by the 

sound of somebody tapping on a tin shed” in his yard. (Pet. 

App. at 73a, 56:16-17). He got up, got dressed, got out his 

gun, went downstairs, and loaded the gun. “His plan was to go 

out back and investigate the noise.” (Pet. App. at 73a, 56:20-

21). He searched his yard, but “wasn’t able to find anyone near 

the shed.” (Pet. App. at 73a, 56:24-25). He did, however, 

“notice that the light was on over at Scott’s house,” so he 

“figured that Scott was fucking with him.” (Pet. App. at 74a, 

57:1-3). He left his yard and walked away from Sylvania 

Avenue toward Swarthmore Avenue, in the opposite direction 

from Robins’s house. He then made the first left on 

Swarthmore, the first left on Tenth Avenue, and the first left on 

Sylvania Avenue—the street on which Scott Robins lived—on 

his route to return home. 

 

 As Dellavecchia approached Robins’s house, “Scott’s 

van was running and Scott was standing outside the van door.” 

(Pet. App. at 74a, 57:23-24). Dellavecchia “thought of turning 

around,” but he didn’t. (Pet. App. at 74a, 57:24-25). “He just 

kept walking until he saw that Scott had given him a stare.” 

(Pet. App. at 74a, 57:25 to 75a, 58:2). Then, “Dellavecchia felt 

really threatened by the way that Scott was looking at him,” so 
12 

he “pointed his gun and he fired.” (Pet. App. at 75a, 58:4-7). 

Dellavecchia fired the gun “until Scott was gone,” at which time 

“he saw a figure in a white shirt running at him” so he turned 

and “aimlessly started firing at the figure.” (Pet. App. at 75a, 

58:10-14). He then noticed that “the gun wouldn’t fire any 

more” and “the slide had been locked back, which meant the 

gun was empty.” (Pet. App. at 75a, 58:14-17). Dellavecchia 

then ran home, and while doing so defecated on himself. He 

entered his house through the basement, removed his clothing, 

and went upstairs to shower. “[T]he next thing he knew the 

police were coming up the steps and they put him in handcuffs.” 

 (Pet. App. at 76a, 59:9-10). 

 After recounting Dellavecchia’s statement at the 

suppression hearing, Willoughby reiterated that during 

Dellavecchia’s entire narrative, he did not pose any questions to 

Dellavecchia. Rather, he “just sat and listened” and took notes 

on several Crozer Hospital forms that he took from a nearby 

table. (Pet. App. at 76a, 59:24 to 77a, 60:14). Willoughby 

stated that following this narrative, he asked a series of 

questions that Dellavecchia answered. Willoughby indicated 

that he did not give Dellavecchia Miranda warnings. Moreover, 

even though, as Willoughby was aware, Dellavecchia’s son had 

obtained an attorney for him, Willoughby did not inform 

Dellavecchia that his son had done so. At the trial, Willoughby 

provided an account of Dellavecchia’s statement similar to the 

one he gave at the suppression hearing, although in slightly less 

detail. 

 Dellavecchia testified at the trial. He first explained his 

fear of Robins, as well as their feud related to Robins’s shed. 

He then provided a narrative of the events of the day of the 

shooting, which was, in many respects, consistent with 
13 

Willoughby’s account of Dellavecchia’s October 2011 

statement. This narrative differed, however, with respect to the 

point at which Dellavecchia was walking past Robins’s house 

when returning home. Specifically, at trial Dellavecchia 

testified as follows: 

[Robins] had this expression on his face. He had 

his left hand on the steering wheel, his right hand 

on the door and he was leaning forward. So I 

looked away and within a moment’s notice I felt 

his presence on me and he had me by my right -- 

right side of my clothing. I went to duck and he 

hit me right here on the side of my left temple and 

my ear, knocking my glasses down. As I bent 

down, he uppercut at me. This guy, amazing. I 

started seeing stars and I hear my ears ringing. I 

got my gun in my -- belt, my hands -- my glasses 

in my hand and he’s throwing me around. 

 

(Pa. App. at 320a, 94:3-14). He continued: 

I tried to pull away from [Robins] and he was 

pulling up on my shirt and what not and my -- I 

felt my gun come up and I had -- had my gun in 

my hand and we were banging against the -- the 

van’s side and I was trying . . . to pull away from 

him, but unfortunately he swung me around the 

door and now we’re in the front of the van. 

(Pa. App. at 325a, 99:21 to 326a, 100:10). When asked what 

happened next, Dellavecchia responded, “I heard gunshots, so 

obvious[ly] I was firing the gun.” (Pa. App. at 326a, 100:25 to 

327a, 101:1). Dellavecchia testified that he does not remember 
14 

pulling the trigger or aiming the weapon at Robins but stated 

that they: “were flailing around. I was flailing around. I was 

just trying to get away from him.” (Pa. App. at 328a, 102:15- 

22). 

Dellavecchia continued his testimony as follows: 

I was let loose. I broke away. I ran to the van 

and I notice as I’m running down Sylvania 

Avenue that I was -- I was in pain. My back was 

hurting and I was limping and I felt something 

wet on my spine. I thought I had been shot. I got 

to my basement. I start taking my clothes off and 

I soiled myself. I left my clothing there, went 

upstairs and I was going to clean off. 

(Pa. App. at 329a, 103:15-22). He concluded this portion of his 

testimony by stating that he did not recall being arrested. 

 After Dellavecchia gave the above testimony he was 

questioned about the statement he gave to Willoughby in the 

hospital. When asked whether he understood Willoughby, 

Dellavecchia stated as follows: “He said do you understand and 

I said, no. And he said do you want a lawyer, I said I need a 

lawyer. I don’t understand the meaning of what you’re saying 

to me.” (Pa. App. at 334a, 108:7-12). Dellavecchia also stated 

that during this meeting Willoughby asked questions, and when 

Dellavecchia said he wanted to see his wife, Willoughby 

responded that he needed a statement first. 

 On cross-examination, Dellavecchia stated that at the 

time of his arrest on October 10, 2011, he “had two black eyes, 

[a] bloody nose, cut lip, bit [his] tongue, [his] right shin area was 
15 

bleeding and [he] had bruises and contusions [on his] back and 

arms.” (Pa. App. at 351a, 125:11-14). He several times made 

the crucial statement that he shot Scott Robins. In fact, he stated 

that it was “obvious” that he “shot and killed Scott Robins.” 

(Pa. App. at 377a, 138:21-25). 

 To counter Dellavecchia’s testimony implying that he 

shot Robins in self-defense and had sustained injuries in their 

struggle, the Commonwealth called a law enforcement officer to 

introduce photographs of Dellavecchia taken on October 12, 

2011, two days after the shootings. These photographs did not 

show that Dellavecchia had been injured. The Commonwealth 

also introduced testimony from Ruskowski, who had taken 

Dellavecchia to the Ridley Township police station from his 

house when he was arrested. Ruskowski testified that during 

that transport, Dellavecchia did not have black eyes, a bloody 

nose, a split lip, or any other visible injuries to his face. 

 The Commonwealth also introduced evidence from the 

medical examiner in the case, Dr. Frederic Hellman, who 

testified about, among other things, the cause of death, manner 

of death, and the removal and transfer of ballistics related to 

Robins. Hellman said that the cause of death was multiple 

gunshot wounds and the manner of death was homicide. He 

testified that he recovered three bullets from Robins’s body, 

including one that entered the right lower back, one that entered 

the left buttock, and one that entered the beginning of the right 

thigh bone. Hellman also recovered several bullet fragments in 

Robins’s left and right forearms. 

 Hellman testified that he did not find in any of these 

gunshot wounds evidence of “soot, which is the residual of the 

primer at the base of the bullet,” or evidence of “gunpowder 
16 

stippling, which would be small scrapes or abrasions” on 

Robins’s skin that would have resulted from “gunpowder 

particles impacting adjacent to an entrance wound.” (Pa. App. 

at 275a, 29:15-24). Hellman explained that generally he finds 

soot when the distance between the muzzle of the gun and the 

target area at the time of the shooting measures approximately 

eight to ten inches and that he generally finds stippling when the 

distance between the muzzle of the gun and the target area 

measures two-and-a-half to three feet. Based on this evidence, 

Hellman indicated that in his opinion the gunshot wounds were 

not inflicted by a weapon fired within two-and-a-half to three 

feet of Robins. 

B. Procedural History 

 As we have indicated, prior to the trial Dellavecchia filed 

a motion to suppress his October 11 statement to Willoughby. 

On September 25, 2012, the common pleas court denied the 

suppression motion with respect to Dellavecchia’s spontaneous 

and unsolicited statement but suppressed his responses to 

Willoughby’s subsequent questions. These rulings were oral, 

but after Dellavecchia appealed, the common pleas court filed a 

written opinion explaining the reasons for its decision.3

 

 On September 28, 2012, a jury convicted Dellavecchia of 

the offenses that we set forth above. The common pleas court 

sentenced Dellavecchia to a mandatory term of life in prison 

without parole for the murder of Scott Robins and to custodial 

 

3 The written opinion also rejected Dellavecchia’s claim 

contending that the prosecutor was guilty of misconduct relating 

to credibility issues but we are not concerned with that issue on 

this appeal. 
17 

sentences consecutive to the life sentence for the other offenses. 

 

 On December 12, 2012, Dellavecchia filed a timely 

appeal to the Superior Court of Pennsylvania, and on November 

20, 2013, a three-judge panel of the Superior Court affirmed his 

conviction. See Commonwealth v. Dellavecchia, 91 A.3d 1291 

(Pa. Super. Ct. 2013); Commonwealth v. Dellavecchia, No. 

3418 EDA 2012, 2013 Pa. Super. Unpub. LEXIS 2776 (Pa. 

Super. Ct. Nov. 23, 2013). That court held that although the 

Sixth Amendment right to counsel had attached by the time 

Dellavecchia gave his statement because the Commonwealth 

already had initiated an adversarial proceeding against him, 

Dellavecchia’s Sixth Amendment rights had not been infringed 

as Willoughby did not elicit the statement. Dellavecchia filed an 

application for reargument en banc, which the Superior Court 

denied on January 28, 2014. Dellavecchia then filed a petition 

for allowance of an appeal by the Supreme Court of 

Pennsylvania but that court denied the petition on July 8, 2014. 

Commonwealth v. Dellavecchia, 95 A.3d 275 (Pa. 2014). 

 Following the exhaustion of his state-court remedies, 

Dellavecchia filed a petition for a writ of habeas corpus in the 

District Court pursuant to 28 U.S.C § 2254 asserting that his 

Sixth Amendment rights were violated when he gave his 

statement.4

 The Court referred the case to a magistrate judge 

who on January 28, 2015, issued a report with a 

recommendation that the Court deny the petition. On March 2, 

2015, the Court approved and adopted the magistrate judge’s 

report and recommendation and denied the petition. 

Dellavecchia then appealed to this Court and sought a certificate 

 

4 Dellavecchia does not contend that his Fifth Amendment rights 

were violated. 
18 

of appealability which we granted. 

 

III. STATEMENT OF JURISDICTION AND STANDARD 

OF REVIEW 

 The District Court had jurisdiction over this action 

pursuant to 28 U.S.C. § 2254, and we have jurisdiction pursuant 

to 28 U.S.C. § 1291. Because the District Court did not conduct 

an evidentiary hearing, our review of its denial of 

Dellavecchia’s petition for habeas corpus is plenary. See 

Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009). However, 

the state court’s factual findings are entitled to a presumption of 

correctness, and Dellavecchia bears the burden to rebut that 

presumption by clear and convincing evidence. 28 U.S.C. § 

2254(e)(1); see also Kuhlmann v. Wilson, 477 U.S. 436, 459, 

106 S.Ct. 2616, 2630 (1986). 

IV. DISCUSSION 

A. Habeas Corpus 

 A district court has authority to issue a writ of habeas 

corpus on a petition filed by a prisoner in state custody solely on 

the ground that he “is in custody in violation of the Constitution 

or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

28 U.S.C. § 2254(d), as amended by the Antiterrorism and 

Death Penalty Act of 1996 (“AEDPA”), sets forth as follows: 

An application for a writ of habeas corpus on 

behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted 
19 

with respect to any claim that was adjudicated on 

the merits in State court proceedings unless the 

adjudication of the claim – 

(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly 

established Federal law, as determined by the 

Supreme Court of the United States; or 

(2) resulted in a decision that was based on an 

unreasonable determination of the facts in light of 

the evidence presented in the State court 

proceeding. 

28 U.S.C. § 2254(d). 

 We have explained that this provision “mandates a twopart inquiry.” Matteo v. Superintendent, SCI Albion, 171 F.3d 

877, 880 (3d Cir. 1999) (en banc). “[F]irst, the federal court 

must inquire whether the state court decision was ‘contrary to’ 

clearly established federal law, as determined by the Supreme 

Court of the United States.”5

 Id. “[S]econd, if it was not, the 

federal court must evaluate whether the state court judgment 

rests upon an objectively unreasonable application of clearly 

established Supreme Court jurisprudence.” Id. Furthermore, we 

recognize that, in conducting this inquiry, “[f]actual issues 

 

5 Although Dellavecchia has argued that the state courts 

unreasonably applied federal law, he has not argued that the 

state courts’ decisions were contrary to clearly established 

federal law, nor has he rebutted the Commonwealth’s contention 

that such decisions were not contrary to such law. Therefore, 

our analysis does not address that part of the AEDPA test. 
20 

determined by a state court are presumed to be correct and the 

petitioner bears the burden of rebutting this presumption by 

clear and convincing evidence.” Werts v. Vaughn, 228 F.3d 

178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)). 

 It is a well-established principle that “habeas corpus is 

not to be used as a second criminal trial, and federal courts are 

not to run roughshod over the considered findings and 

judgments of the state courts that conducted the original trial 

and heard the initial appeals.” Williams v. Taylor, 529 U.S. 

362, 383, 120 S.Ct. 1495, 1508 (2000). Rather, the Supreme 

Court has “long insisted that federal habeas courts attend closely 

to those considered decisions, and give them full effect when 

their findings and judgments are consistent with federal law.” 

Id. The respect given to state-court decisions by the federal 

courts on habeas proceedings is demonstrated by “the fact that 

[even if] constitutional error occurred in the proceedings that led 

to a state-court conviction [that circumstance] may not alone be 

sufficient reason for concluding that a prisoner is entitled to the 

remedy of habeas.” Id. at 375, 120 S.Ct. at 1503 (citations 

omitted). 

B. Constitutionality of the Admission of the 

Statement Pursuant to Established 

Sixth Amendment Precedent 

 The Sixth Amendment, made applicable to the states 

through the Fourteenth Amendment, provides in relevant part 

that “[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to have the Assistance of Counsel for his defense.” 

U.S. Const. amend VI. Dellavecchia relies on the progeny of 

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964), to 

contend that the trial court’s admission of his hospital statement 
21 

to Willoughby was an “unreasonable application of” Supreme 

Court precedent. 

 The Sixth Amendment “serves to safeguard the 

adversarial process by ensuring that once the right to counsel 

has attached the accused ‘need not stand alone against the State’ 

at any ‘critical stage’ of the aggregate proceedings against 

him.”6

 Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997) 

(quoting Estelle v. Smith, 451 U.S. 454, 470, 101 S.Ct. 1866, 

1876-77 (1981)). The Supreme Court long has held that “an 

individual who stands indicted of a crime is denied his right to 

counsel when agents of the state circumvent that right by 

‘deliberately eliciting’ inculpatory statements from him in the 

absence of his counsel, absent a voluntary and knowing waiver.” 

 Id. (alteration omitted) (quoting Michigan v. Harvey, 494 U.S. 

344, 348-49, 110 S.Ct. 1176, 1179 (1990)). The “deliberate 

elicitation” doctrine is derived from Massiah, a case in which 

the Court concluded that the Sixth Amendment protections 

extend to “indirect and surreptitious interrogations as well as 

those conducted in the jailhouse.” Massiah, 377 U.S. at 206, 84 

S.Ct. at 1203. 

 The Supreme Court applied this doctrine in the wellknown case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232 

(1977), which involved a Christmas Eve murder of a ten-yearold girl in Des Moines, Iowa. Id. at 390, 97 S.Ct. at 1235. Two 

days after the girl disappeared while her whereabouts still were 

unknown, an individual who became the defendant in the case, 

Robert Williams, on advice of a Des Moines attorney, Henry 

 

6

 The Commonwealth does not dispute that Dellavecchia’s Sixth 

Amendment right to counsel had attached at the time that he 

made his post-arraignment hospital statement. 
22 

McKnight, turned himself in to the police in Davenport, Iowa, 

160 miles from Des Moines. Id. In Davenport, a second 

attorney represented Williams at his arraignment and advised 

Williams not to make any statements until he consulted with 

McKnight. Id. at 391, 97 S.Ct. at 1236. Moreover, the police 

advised Williams of his Miranda rights while he was in 

Davenport. 

 After Williams surrendered, two officers from the Des 

Moines police department traveled to Davenport to take custody 

of him to transport him to Des Moines. Id. Before the trip, 

McKnight, who was waiting in Des Moines, advised Williams 

on the telephone not to speak to the officers while they were 

taking him to Des Moines. Id. at 391, 97 S.Ct. at 1235. 

Moreover, McKnight told the officers not to interrogate him. Id. 

at 391, 97 S.Ct. at 1236. The Supreme Court indicated that “[a]t 

no time during the trip did Williams express a willingness to be 

interrogated in the absence of an attorney. Instead, he stated 

several times that ‘[w]hen I get to Des Moines and see [my 

attorney], I am going to tell you the whole story.’” Id. at 392, 

97 S.Ct. at 1236. 

 During the transport, a Des Moines detective delivered 

what has since been called the “Christian burial speech.” Id. 

The detective, who knew that Williams was an escaped mental 

patient and a deeply religious man, id. at 403, 97 S.Ct. at 1241, 

asked Williams to think about the fact that the weather 

conditions were poor and a delay in identifying the location of 

the girl’s body could prevent her eventual discovery, thus 

denying her parents the ability to give her a “Christian burial.” 

Id. at 392-93, 97 S.Ct. at 1236-37. Following this speech, 

Williams informed the officers that he would show them the 

location of the body, and ultimately he did so. Id. at 393, 97 
23 

S.Ct. at 1237. 

 The critical point in the Supreme Court’s opinion holding 

that there was a Sixth Amendment violation was that a detective 

transporting him to Des Moines “deliberately and designedly set 

out to elicit information from Williams just as surely as—and 

perhaps more effectively than—if he had formally interrogated 

him.” Id. at 399, 97 S.Ct. at 1240. The Court expressly noted 

that “he purposely sought during Williams’ isolation from his 

lawyers to obtain as much incriminating information as 

possible.” Id. In the Court’s view, this approach amounted to 

an interrogation so that its occurrence in the absence of counsel 

constituted a violation of Williams’s Sixth Amendment rights. 

Id. at 401, 97 S.Ct. 1240-41. 

 The Supreme Court’s development of Sixth Amendment 

law continued in United States v. Henry, 447 U.S. 264, 100 

S.Ct. 2183 (1980). In Henry, the government obtained the 

assistance of a confidential informant inmate housed in the same 

cellblock with Henry who was then awaiting trial for bank 

robbery. Id. at 266, 100 S.Ct. at 2184. The FBI agent in charge 

of the investigation instructed the confidential informant “to be 

alert to any statements” but “not to initiate any conversation 

with or question Henry regarding the bank robbery.” Id. at 266, 

100 S.Ct. at 2184-85. Ultimately, the informant testified at trial 

that he had “an opportunity to have some conversations with Mr. 

Henry while he was in jail” and Henry had “described to him the 

details of the robbery[.]” Id. at 267, 100 S.Ct. at 2185 (internal 

quotation marks omitted). 

 The Supreme Court concluded that the above interaction 

was impermissible. Id. at 274, 100 S.Ct. at 2189. The Court 

highlighted the fact that, according to the testimony of the 
24 

informant, he was “not a passive listener; rather, he had some 

conversations with Mr. Henry while he was in jail and Henry’s 

incriminatory statements were the product of this conversation.” 

 Id. at 271, 100 S.Ct. at 2187 (internal quotation marks omitted). 

 The Court likewise emphasized that Henry was unaware of the 

inmate’s role as a government informant. Id. at 272, 100 S.Ct. 

at 2188. In light of these factors, the Court held that “[b]y 

intentionally creating a situation likely to induce Henry to make 

incriminating statements without the assistance of counsel, the 

Government violated Henry’s Sixth Amendment right to 

counsel.” Id. at 274, 100 S.Ct. at 2189. 

 In contrast to what happened in Henry, the Supreme 

Court found that the facts in Kuhlmann did not constitute a Sixth 

Amendment violation. Kuhlmann, like Henry, involved a 

jailhouse informant, but in Kuhlmann the trial court expressly 

noted that the defendant’s statements to the informant were 

“unsolicited” and “spontaneous.” Kuhlmann, 477 U.S. at 440, 

106 S.Ct. at 2620 (internal quotation marks omitted). 

Specifically, the trial court found that the informant “at no time 

asked any questions with respect to the crime” and that he “only 

listened to [the defendant] and made notes regarding what [the 

defendant] had to say.” Id. (internal quotation marks omitted). 

The Supreme Court made clear that “the Sixth Amendment is 

not violated whenever—by luck or happenstance—the State 

obtains incriminating statements from the accused after the right 

to counsel has attached[.]” Id. at 459, 106 S.Ct. at 2630 

(quoting Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 

487 (1985)). Rather, to show a violation, “the defendant must 

demonstrate that the police and their informant took some 

action, beyond merely listening, that was designed deliberately 

to elicit incriminating remarks.” Id. 
25 

 Applying the Supreme Court’s Sixth Amendment 

precedent to the facts here, we conclude that Willoughby by his 

conduct did not deliberately elicit a statement from 

Dellavecchia.7

 As was true of the informant in Kuhlmann, 

Willoughby did nothing more than listen to a defendant’s 

spontaneous and unsolicited statement that was both 

unprompted and willingly provided. In contrast to what 

happened in Brewer where the Court found “no serious doubt” 

that the police officer “deliberately and designedly set out to 

elicit information,” here the state courts concluded that 

Willoughby did not go to the hospital with the intent to question 

Dellavecchia. Brewer, 430 U.S. at 499, 97 S.Ct. at 1240. We 

have no basis on which to reject that finding. Moreover, 

Dellavecchia asked whether—and was advised by Willoughby 

that—anything he said could be used against him. Thus, 

Willoughby rather than eliciting a statement from Dellavecchia 

in effect encouraged him to remain silent. After all, a police 

 

7 Although our analysis turns, as it must, on “clearly established 

federal law[] as determined by the Supreme Court,” 28 U.S.C. § 

2254(d)(1), our conclusion also comports with our own 

precedent. In Bey v. Morton, we analyzed the Supreme Court’s 

Sixth Amendment line of cases to determine if “there are any 

circumstances under which the state can deliberately undertake 

to secure incriminating information from a represented 

defendant in the absence of counsel and can thereafter use in 

court the incriminating information it obtains.” 124 F.3d at 530. 

 We concluded that the “answer that has evolved is that it can, 

only if there is not ‘elicitation’—only if the government does no 

more than listen.” Id. “It cannot if the police or their informants 

question or otherwise encourage or facilitate the defendant’s 

discussion of the crime, and this is true even if the defendant 

initiates the discussion of the criminal conduct.” Id. 
26 

officer seeking to induce a defendant to make a statement would 

recognize that he would not be doing so by warning the 

defendant that if he made a statement, his statement could be 

used against him. 

 In light of the unassailable state-court findings on the 

motion to suppress, the Superior Court, in affirming the 

common pleas court’s decision denying the motion with respect 

to Dellavecchia’s spontaneous statement, did not come to a 

conclusion that unreasonably applied clearly established Federal 

law as determined by the Supreme Court and did not make an 

unreasonable determination of the facts.8

 In short, there is 

nothing in the Massiah line of cases requiring a police officer to 

reject or ignore a defendant’s voluntary statements. To the 

contrary, when a defendant provides an uninterrupted narrative 

about his offenses, a state has no obligation to hinder him in 

making that statement and is not required to persuade an 

otherwise willing individual to remain silent. 

 Even though the Supreme Court has said “that the clear 

rule of Massiah is that once adversary proceedings have 

commenced against an individual, he has a right to legal 

representation when the government interrogates him,” Brewer, 

430 U.S. at 401, 97 S.Ct. at 1240, spontaneous and unprompted 

statements voluntarily provided to the police may be used at trial 

when there has not been an interrogation of the type the Court 

described in Brewer. Here there was no such interrogation so 

Dellavecchia’s statement could be used at the trial. 

 

8 While we review the Superior Court decision, we would reach 

the same result if we directly were reviewing the common pleas 

court’s decision. 
27 

 C. Harmless Error 

 Finally we point out that even if the state courts erred 

when they did not exclude evidence of Dellavecchia’s statement, 

we still would affirm the District Court order denying 

Dellavecchia’s petition because the evidence of Dellavecchia’s 

guilt was overwhelming. See Brecht v. Abrahamson, 507 U.S. 

619, 637, 113 S.Ct. 1710, 1721-22 (1993); Alston v. Redman, 

34 F.3d 1237, 1252 (3d Cir. 1994). It is well established that 

“[t]he writ of habeas corpus has limited scope” as “the federal 

courts do not sit to re-try state cases de novo, but, rather, to 

review for violation of federal constitutional standards.” Milton 

v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178 (1972). 

But “[i]n that process we do not close our eyes to the reality of 

overwhelming evidence of guilt fairly established in the state 

court . . . .” Id. Applying this principle to the facts at hand, we 

conclude that the unchallenged evidence of Dellavecchia’s guilt 

would require that we affirm the District Court’s order denying 

his petition even if there was a Sixth Amendment violation 

because it is clear that the admission of Dellavecchia’s statement 

was harmless even if judged on the most exacting standard. 

 To start, there is no dispute that Dellavecchia shot and 

killed Scott Robins. After all, Dellavecchia conceded this point 

numerous times during his testimony at trial. Thus, 

Dellavecchia does not dispute Robins’s identification of him to 

Bongiorno as his shooter at the time the police arrived on scene. 

 Rather, Dellavecchia’s sole defense was that he shot and killed 

Robins in self-defense during a struggle. But the physical 

evidence cannot be reconciled with Dellavecchia’s self-defense 

account of the homicide. The medical examiner’s testimony 

showed that two of the three penetrating gunshot wounds 

entered Robins’s body through his right lower back and his left 

buttock, thus indicating that Robins was shot with his back to 
28 

his shooter—a point which is consistent with the testimony of 

Robins’s colleague, Richard Wallace. Moreover, the medical 

examiner noted that the lack of soot or stippling on Robins’s 

body indicates that the shots were fired from more than three 

feet away, again contradicting Dellavecchia’s testimony that the 

shots were fired during a hand-to-hand struggle. Finally, 

photographs entered in evidence as well as the testimony of the 

officer who transported Dellavecchia from his residence to the 

police station contradicted Dellavecchia’s testimony that he had 

two black eyes and various other facial injuries as a result of this 

struggle. In short, we hold that even if Willoughby’s testimony 

regarding the October 11 statement was improperly admitted at 

trial, such admission was harmless in light of the overwhelming 

evidence of Dellavecchia’s guilt.9

V. CONCLUSION 

 For the foregoing reasons, we will affirm the District 

Court’s order of March 2, 2015, denying Dellavecchia’s petition 

for a writ of habeas corpus. 

 

9 Although we focus our harmless error analysis on the murder 

conviction, it applies to all of the offenses for which the jury 

convicted Dellavecchia.