2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-18-2011

Mark Breakiron v. Martin Horn

Precedential or Non-Precedential: Precedential

Docket No. 08-9003

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 08-9003 

___________ 

MARK BREAKIRON, 

Appellant 

v. 

Commissioner MARTIN HORN; Pennsylvania Department 

of Corrections; CONNER BLAINE, Superintendent of the 

State Correctional Institution at Greene; JOSEPH 

MAZURKIEWICZ, Superintendent of the 

State Correctional Institution at Rockview 

____________________________________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil Action No. 00-cv-00300) 

District Judge: Honorable Nora B. Fischer 

____________________________________ 

Argued: November 16, 2010 

Before: AMBRO, FUENTES and 

NYGAARD, Circuit Judges

(Opinion filed April 18, 2011) 
Stuart B. Lev, Esq. 

Claudia Van Wyk, Esq. (Argued) 

Defender Association of Philadelphia 

Federal Capital Habeas Corpus Unit 

The Curtis Center, Suite 545 West 

Independence Square West 

Philadelphia, PA 19106 

Counsel for Appellant

James P. Barker, Esq. (Argued) 

Office of the Attorney General of Pennsylvania 

Appeals & Legal Services 

Strawberry Square 

16th Floor 

Harrisburg, PA 17120 

Counsel for Appellees

_______________ 

OPINION OF THE COURT 

_______________ 

NYGAARD, Circuit Judge

 A Pennsylvania jury found Mark Breakiron guilty of 

first-degree murder and robbery for killing a bartender and 

stealing her purse and money bags from the bar. At the 

penalty phase, the jury found as an aggravating factor that he 

committed the murder “while in the perpetration of a 

felony”—i.e., the robbery. 42 Pa. Cons. Stat. § 9711(d)(6). 

2 
The trial court sentenced him to death. On Breakiron’s 

petition for a writ of habeas corpus, the District Court 

invalidated the murder conviction (and thus the death 

sentence) because it found that the prosecution withheld 

material evidence regarding one of its witnesses in violation 

of the rule set forth in Brady v. Maryland, 373 U.S. 83 

(1963). The District Court concluded, however, that the 

Brady evidence was not material to Breakiron’s robbery 

conviction and did not disturb it. 

 The Commonwealth1

 has not appealed the District 

Court’s ruling and states that it is prepared to retry Breakiron 

for murder. Breakiron appeals the denial of relief from his 

robbery conviction, which, if invalidated, would no longer 

constitute an aggravating factor during any future penalty 

phase. Breakiron argues that the Brady violations found by 

the District Court require the invalidation of his robbery 

conviction as well, and he raises four other claims addressed 

to that conviction. We agree with Breakiron on the Brady

claim and conclude that three of his other claims also warrant 

relief. Accordingly, we will reverse the District Court’s 

judgment to the extent that it denied Breakiron’s habeas 

petition as to his robbery conviction and remand for the 

District Court to grant his petition as to that conviction.2

I. Background 

 

1

 For ease of reference, we refer to appellees collectively as 

“the Commonwealth.” 

2

 Nothing said herein, however, would preclude retrying him 

on this charge as well. 

3 
Because Breakiron’s murder conviction no longer is at 

issue, we need only briefly summarize the background 

relevant to the issues we address. On March 24, 1987, 

Breakiron killed Saundra Marie Martin, the bartender of a bar 

called “Shenanigan’s” in Uniontown, Pennsylvania, at which 

he was the night’s last patron. He also stole her purse and 

bags of money from the bar. The Commonwealth charged 

him with murder and robbery and tried him before a Fayette 

County jury in April 1988. As explained in more detail 

below, that jury included a member who had been exposed to 

testimony by another panel member at voir dire that 

Breakiron “used to do a lot of robbing[.]” (N.T. 448; 

A.717.)3

At trial, Breakiron never denied killing Martin or 

committing theft by stealing the money. Instead, he put on a 

voluntary intoxication/diminished capacity defense and 

argued that he was guilty of third-degree murder because he 

did not have the specific intent to kill. He also argued that he 

was guilty of theft, but not robbery, because he decided to 

steal after his attack on Martin was complete. See 18 Pa. 

Cons. Stat. § 3701(a)(1) (defining robbery as, inter alia, 

infliction of injury or use of force “in the course of 

committing a theft”). 

The only evidence potentially relevant to that issue 

was the testimony of the Commonwealth’s witness Ellis 

Price, who was incarcerated with Breakiron before 

Breakiron’s trial, and Breakiron’s own testimony. Price 

testified that, while imprisoned with Breakiron, he and 

 

3

 Citations to the record are to the state trial court record and 

the appendix on appeal, respectively.

4 
Breakiron had “conversations regarding the offenses with 

which [Breakiron] has been charged,” and that Breakiron 

made “statements . . . regarding whether or not he participated 

in these crimes.” (N.T. 1112; A.1410.) Price testified that 

Breakiron “told me that when he was at the bar, that there was 

another guy and girl there. So, he went into the bathroom to 

hide until they left.” (N.T. 1114; A.1412.) According to 

Price, Breakiron told him that he then returned to the bar area 

and asked for another drink. (Id.) Martin, however, told him 

that it was closing time and asked him to leave, “so he picked 

up the ashtray and started hitting her.” (Id.) Price further 

testified that Breakiron said “[h]e hit her a few times. She 

wouldn’t go to the floor. So, he just—he pulled out the knife 

and I don’t know what he did after that. Then, he drug her 

out to his truck and took her to . . . his pap’s house” and 

“finished her off there.” (N.T. 1114-15; A.1412-13.) 

Breakiron, by contrast, testified that Martin started the 

altercation by hitting him over the head with “something 

heavy” after he put his arm around her. (N.T. 1253; A.1551.) 

He further testified that he “blacked out,” awoke to find 

Martin with a knife sticking out of her back, left the bar and 

drove away. (N.T. 1254-55; A.1552-53.) He then returned to 

the bar, put Martin’s body in his truck, went back into the bar, 

“[a]nd then when I started to leave, I saw two money bags 

laying on the floor to the entrance by the dance floor” and 

“[p]ut them in the back of the truck.” (N.T. 1260-61; A.1558-

59.) At closing, Breakiron’s counsel argued that he was not 

guilty of robbery because he decided to steal the money after 

killing Martin. (N.T. 1260-61; A.1558-59.) Breakiron’s 

counsel, however, did not request a charge on the lesserincluded offense of theft, and the trial court did not give one. 

5 
 The jury found Breakiron guilty of first-degree murder 

and robbery. At the penalty phase, the jury recommended a 

death sentence after finding as an aggravating factor that he 

murdered Martin “while in the perpetration of a felony”—i.e., 

the robbery. 42 Pa. Cons. Stat. § 9711(d)(6). (It found as an 

additional aggravating factor that he committed the murder 

“by means of torture.”) The trial court sentenced Breakiron 

to death on the murder conviction plus five to ten years of 

imprisonment on the robbery conviction. The Pennsylvania 

Supreme Court affirmed. See Commonwealth v. Breakiron, 

571 A.2d 1035 (Pa. 1990). Breakiron filed a petition under 

Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons. Stat. 

§§ 9541-9546 (the “PCRA”) in 1996, and the PCRA court 

denied it after holding an evidentiary hearing. The 

Pennsylvania Supreme Court affirmed that ruling as well. 

See Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999) 

(“Breakiron-2”). 

 Breakiron then instituted the federal habeas proceeding 

at issue here in 2000. Shortly thereafter, he filed a second 

PCRA petition in state court. The PCRA court dismissed it as 

untimely and the Pennsylvania Supreme Court affirmed. See

Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001) 

(“Breakiron-3”). The parties then litigated the federal habeas 

petition before three different District Judges for almost seven 

years, during which Breakiron amended his petition several 

times, took discovery, and received an evidentiary hearing. 

Breakiron ultimately asserted eighteen claims, including 

claims addressed to the guilt and penalty phases of his trial 

and to his murder and robbery convictions. Among them 

were claims that the prosecution withheld evidence in 

violation of Brady that he could have used to impeach Ellis 

Price. 

6 
 The District Court issued findings of fact on the Brady

claims on September 19, 2007. It then issued its opinion and 

order on September 24, 2008, granting relief on three of those 

claims and invalidating the murder conviction. The District 

Court did not find Price’s testimony relevant to the robbery 

charge, however, so it did not grant relief from the robbery 

conviction on that basis (or any other). The District Court 

granted Breakiron a certificate of appealability on one claim, 

but the parties agree that it is moot in light of the invalidation 

of his murder conviction and he has not pursued the claim on 

appeal.4

 The Commonwealth moved for reconsideration, 

which the District Court denied. The Commonwealth has not 

appealed and asserts that it is prepared to retry Breakiron for 

murder. Breakiron appealed and filed a motion to expand the 

certificate of appealability to raise the claims at issue here, 

which we granted. 

II. Analysis 

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 

and 2253(a). Our review of the District Court’s legal 

conclusions is plenary. See Coombs v. DiGuglielmo, 616 

F.3d 255, 260 (3d Cir. 2010). Like the District Court’s, our 

review of Breakiron’s claims is governed by the 

Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”). “AEDPA provides that, where a habeas 

 

4

 That claim was that counsel rendered ineffective assistance 

by failing to present mental health evidence in support of 

Breakiron’s diminished capacity/voluntary intoxication 

defense at the guilt phase and in support of mitigation at the 

penalty phase. 

7 
petitioner’s claim was ‘adjudicated on the merits’ in state 

court, the petition may not be granted unless the state court 

decision ‘was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined 

by the Supreme Court of the United States,’ or ‘was based on 

an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.’” Simmons 

v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (quoting 28 

U.S.C. § 2254(d)). 

Under AEDPA, a state court decision is “contrary to” 

established federal law “if the state court reaches a conclusion 

opposite to the Supreme Court’s own conclusion on a 

question of law or decides the case differently where the 

Supreme Court was confronted by a set of materially 

indistinguishable facts.” McMullen v. Tennis, 562 F.3d 231, 

236 (3d Cir. 2009). A state court decision is an 

“unreasonable application” of established federal law “if the 

state court unreasonably applies the correct legal rule to the 

particular facts, unreasonably extends a legal principle to a 

new context, or unreasonably refuses to extend the principle 

to a new context where it should apply.” Id. This test “‘is an 

objective one—a federal court may not grant habeas relief 

merely because it concludes that the state court applied 

federal law erroneously or incorrectly.’” Id. (citation 

omitted). Instead, “[a] state court’s determination that a claim 

lacks merit precludes federal habeas relief so long as 

‘fairminded jurists could disagree’ on the correctness of the 

state court’s decision.” Harrington v. Richter, — U.S. —, 

No. 09-587, 2011 WL 148587, at * 11 (U.S. Jan. 19, 2011) 

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

Where the state court has not addressed the merits of a 

8 
claim, and the merits of the claim are properly before us, then 

this deferential standard of review does not apply and we 

instead review the claim de novo. See Porter v. McCollum, 

130 S. Ct. 447, 452 (2009); Wilson v. Beard, 589 F.3d 651, 

658 (3d Cir. 2009). In doing so, we nevertheless must 

presume that state-court factual findings are correct unless the 

presumption is rebutted by clear and convincing evidence. 

See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010) 

(citing 28 U.S.C. § 2254(e)(1)). 

 In this case, Breakiron argues that: (1) the Brady

violations require relief from his robbery conviction; (2) the 

state trial court improperly precluded him from testifying as 

to when he formed the intent to steal; (3) trial counsel 

rendered ineffective assistance by failing to request a jury 

charge on the lesser-included offense of theft; (4) trial counsel 

rendered ineffective assistance by failing to take corrective 

action after a venire member testified at voir dire that 

Breakiron “used to do a lot of robbing” and a different 

member of the same panel ended up on Breakiron’s jury; and 

(5) the cumulative effect of these four errors deprived him of 

a fair trial. We conclude that Breakiron’s Brady claims and 

his two claims of ineffective assistance of counsel, whether 

considered alone or cumulatively, require relief from his 

robbery conviction.5

 

5

 The District Court addressed Breakiron’s claim of 

cumulative error, but limited its analysis to his claims of 

ineffective assistance of counsel instead of considering his 

alleged errors of all kinds. Cf. Albrecht v. Horn, 485 F.3d 

103, 138-39 (3d Cir. 2007). Because we conclude that three 

of Breakiron’s claims individually warrant relief, their 

9 
A. The Brady Claims 

 Breakiron argues that his robbery conviction must be 

invalidated because the prosecution withheld evidence that he 

could have used to impeach the testimony of Ellis Price. In 

his second PCRA petition, Breakiron raised several 

Brady claims, including a claim that the prosecution failed to 

disclose that Price had been convicted of an impeachable 

crimen falsi—i.e., a Michigan state conviction of assault with 

the intent to rob. The Pennsylvania Supreme Court did not 

address this claim on the merits because it held that 

Breakiron’s second PCRA petition was untimely. See

Breakiron-3, 781 A.2d at 98, 101. Breakiron asserted the 

same claim in his habeas petition, which he later amended to 

argue that the prosecution also failed to disclose that Price 

had sought a deal from Breakiron’s prosecutor in exchange 

for his testimony and was a suspect in an investigation 

pending when he testified (in which he ultimately was not 

charged). The Commonwealth argued in the District Court 

that Breakiron had procedurally defaulted his Brady claims 

and all the other claims he raised in his second PCRA 

petition. The District Court rejected that argument by order 

entered October 15, 2004, and the Commonwealth has not 

challenged that ruling on appeal.6

 

cumulative effect necessarily does as well. In light of our 

disposition, we need not address Breakiron’s second claim. 

6

 We nevertheless may consider the issue sua sponte. See

Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997). In the 

District Court, the Commonwealth argued that the claims 

Breakiron raised in his second PCRA petition were 

10 
 Thereafter, Breakiron took discovery on his Brady

claims and the District Court held an evidentiary hearing. It 

ultimately granted relief from the murder conviction under 

Brady because it concluded that the prosecution failed to 

disclose that Price: (1) had sought a deal from prosecutors in 

exchange for his testimony against Breakiron; (2) was a 

suspect in another criminal investigation pending at that time; 

and (3) had been convicted of a crimen falsi. The District 

Court concluded that this evidence was material impeachment 

evidence because Price’s testimony contradicted Breakiron’s 

testimony that he had not intended to kill Martin and was the 

only direct evidence that Breakiron’s attack on Martin was 

intentional. (Dist. Ct. Op. at 59-61.) The District Court 

found Price’s testimony irrelevant to the robbery charge, 

 

procedurally defaulted because the Pennsylvania Supreme 

Court dismissed it as untimely. The District Court properly 

rejected that argument because Pennsylvania’s former 

“relaxed waiver” rule in capital cases meant that the PCRA 

statute of limitations did not constitute an adequate and 

independent state-law ground for denying the claims at the 

time of the alleged default. See Bronshtein v. Horn, 404 F.3d 

700, 708-10 (3d Cir. 2005). The Commonwealth also argued 

that the Brady claims Breakiron had not raised in state court 

were unexhausted and now procedurally defaulted as well. 

The District Court agreed, but properly concluded that 

Breakiron necessarily would show “cause and prejudice” to 

excuse the default if his underlying claims had merit (i.e., if 

the prosecution withheld material evidence). See Banks v. 

Dretke, 540 U.S. 668, 691 (2004) (“cause and prejudice” 

inquiry parallels elements of substantive Brady claim). 

11 
however, because Price “did not reference the bar’s money 

bags, Martin’s purse, or any statement Breakiron allegedly 

had made to him regarding the intent to steal or the robbery.” 

(Dist. Ct. Op. at 58 & n.25.) Thus, it did not grant relief from 

the robbery conviction. Breakiron argues on appeal that the 

prosecution’s suppression of evidence requires relief from 

that conviction as well.7

 

We agree. A Brady violation occurs if: (1) the 

evidence at issue is favorable to the accused, because either 

exculpatory or impeaching; (2) the prosecution withheld it; 

and (3) the defendant was prejudiced because the evidence 

was “material.” See Wilson, 589 F.3d at 659 (citing, inter 

alia, Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In 

 

7

 The Commonwealth argues that Breakiron waived this issue 

because he did not meaningfully raise it in the District Court, 

where he focused instead on the effect of the Brady violations 

on his murder conviction. Although the District Court 

addressed the effect of the Brady evidence on the robbery 

conviction, neither the District Court nor the parties have 

cited any document filed in the District Court actually raising 

that issue. We nevertheless reach it because the District 

Court did so and the merits are fully briefed. See Albrecht, 

485 F.3d at 120 (reaching issue that Commonwealth had not 

raised in the District Court because the District Court 

addressed it sua sponte and the merits were fully briefed on 

appeal); see also Silva v. Brown, 416 F.3d 980, 991 (9th Cir. 

2005) (considering materiality of Brady evidence to robbery 

charge, though noting that, “[o]n appeal, [petitioner] 

understandably focuses on the effect of the undisclosed deal 

on his murder conviction”). 

12 
this case, the Commonwealth has not appealed the District 

Court’s rulings that the evidence at issue was favorable to 

Breakiron or that the prosecution withheld it and does not 

argue that we can or should review those issues on 

Breakiron’s appeal.8

 Thus, the only issue on appeal is 

whether the evidence was material to the robbery charge. See

Simmons, 590 F.3d at 233-34. We exercise plenary review 

over that legal issue, see Wilson, 589 F.3d at 657 & n.1, and 

no deference under AEDPA is due because the state courts 

did not adjudicate this claim on the merits, see id. at 658. 

 

8

 In this regard the prosecutor has much to answer for. When 

asked at oral argument why the prosecutor did not disclose 

this material, the Commonwealth conceded that it “seems a 

little strange.” The Commonwealth also conceded that such 

material would have been disclosed “under the modern rules 

of discovery.” That response is at once true and insufficient. 

It was so well-established before Breakiron’s trial as to have 

been axiomatic that prosecutors must disclose impeachment 

evidence like that at issue here. See, e.g., United States v. 

Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 

405 U.S. 150, 154 (1972). The Commonwealth has not 

otherwise attempted to explain why this material was not 

disclosed or to defend the prosecutor’s failure to disclose it. 

Like the District Court, we are troubled by that failure. We 

are at a loss to understand why prosecutors, so long after 

Brady became law, still play games with justice and commit 

constitutional violations by secreting and/or withholding 

exculpatory evidence from the defense. What the District 

Court found, and we declare now, was known and should 

have been revealed—years ago at the commencement of 

Breakiron’s trial, thus obviating the need for all these 

protracted years of litigation. 

13 
Under Brady, “[e]vidence is material if there is a 

reasonable probability that, if the evidence had been 

disclosed, the result of the proceeding would have been 

different.” Wilson, 589 F.3d at 665 (citing Giglio, 405 U.S. 

at 154). “‘[T]he question is not whether the defendant would 

more likely than not have received a different verdict with the 

evidence, but whether in its absence he received a fair trial, 

understood as a trial resulting in a verdict worthy of 

confidence. A reasonable probability of a different result is 

shown when the government’s evidentiary suppression 

undermines confidence in the outcome of the trial.’” Id.

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)) 

(internal quotation marks omitted). 

 

 The District Court concluded that the prosecution’s 

suppression of impeachment evidence undermines confidence 

in the murder conviction because Price’s testimony supported 

the prosecution’s theory that Breakiron intended to kill 

Martin. Breakiron argues that Price’s testimony also 

supported the prosecution’s theory that he intended to steal at 

the time he attacked her. The Commonwealth, by contrast, 

argues that Price’s testimony did not support the robbery 

conviction because he never testified that Breakiron told him 

anything about the theft. 

 As an initial matter, the Commonwealth’s argument is 

undercut by the prosecution’s own closing argument, in 

which it expressly argued that Price’s testimony supported the 

robbery charge. The prosecution argued: “The second 

element, in the cour[se] of committing a theft, ladies and 

gentlemen. . . . Ellis Price told you that when Mr. Breakiron 

came back to the bar area that the bartender was counting the 

14 
money.” (N.T. 1335; A.1633.) When Breakiron’s counsel 

objected that Price had not so testified, the trial court 

instructed: “The jury will recall the testimony. The Court 

does not have any recollection of that, but the jury will recall 

what was testified to by Ellis Price.” (N.T. 1335-36; A.1633-

34.) Thus, although Price in fact had offered no such 

testimony, and although the trial court’s instruction suggested 

as much, the Commonwealth’s position is at odds with the 

prosecution’s express argument during closing. 

 We need not decide whether this point is dispositive, 

however, because we agree with Breakiron that Price’s actual 

testimony supported the robbery charge in three ways. 

 First, Breakiron argues that Price’s testimony 

suggested that the incident as a whole was a “premeditated 

and intentional plan,” which contradicted his own testimony 

that he did not intend to steal the money until after he had 

killed Martin, left, and then returned to the bar. This 

argument is persuasive. Price opened his testimony by 

testifying that Breakiron told him about his “offenses with 

which he has been charged” and his “crimes,” plural, which 

included the robbery charge. Price then testified that 

Breakiron said he waited in the bathroom until the other 

patrons left before attacking Martin. This testimony indicates 

that Breakiron was “lying in wait” and raises an inference that 

the incident as a whole was premeditated. 

The Commonwealth nevertheless argues that Price’s 

testimony was not relevant to the robbery charge because he 

never mentioned Breakiron’s theft of the money. To the 

contrary, it argues that all of the evidence supporting the 

robbery charge came from Breakiron himself, who testified 

15 
that (1) Martin had possession of the money bags and her 

purse when Breakiron attacked her, and (2) Breakiron later 

took the money bags from the scene. It further argues that 

this evidence was sufficient to convict for robbery because 

the jury could have inferred the requisite intent from acts 

committed shortly after the killing. See Commonwealth v. 

Robertson, 463 A.2d 1133, 1136 (Pa. Super. Ct. 1983). 

 That much is true. As Breakiron argues, however, the 

Brady materiality standard is not a “sufficiency of the 

evidence” test, and instead turns on whether the withheld 

evidence could reasonably “put the whole case in such a 

different light as to undermine confidence in the verdict.” 

Kyles, 514 U.S. at 435 & n.8. Jurors, of course, are entitled 

to draw all reasonable inferences from the evidence 

presented, see United States v. Vosburgh, 602 F.3d 512, 537 

(3d Cir. 2010); Commonwealth v. Wright, 328 A.2d 514, 516 

(Pa. 1974), and the trial court so instructed the jury in this 

case (N.T. 1344; A.1642). Just as the jury could have inferred 

that Breakiron intended to steal when he attacked Martin 

because he later took the money, so too could it have drawn 

that inference from Price’s testimony suggesting that the 

incident as a whole was premeditated. 

 

 Second, Breakiron argues that Price’s testimony about 

Breakiron supposedly “finishing off” Martin after he left the 

bar supported the conclusion that he stole the money before 

he killed Martin, and that he thus killed her “in the course of 

committing a theft” and thereby committed robbery. See 18 

Pa. Cons. Stat. § 3701(a)(1)(i). The Commonwealth counters 

that Breakiron himself testified that he was not sure whether 

Martin was dead when he returned to the bar, and that she 

thus might have been alive when he took the money. (N.T. 

16 
1259-60; A.1557-58.) That argument is beside the point. 

Although Breakiron frames his argument in terms of when he 

“killed” Martin, the relevant consideration under the statute is 

when he used the force that led to her death, not when she 

actually died. See 18 Pa. Cons. Stat. § 3701(a)(1)(i). 

Breakiron testified that the assault was over when he returned 

to the bar and took Martin’s body and the money. Price 

contradicted that testimony by testifying that Breakiron told 

him he took Martin from the bar and later “finished her off” 

at his “pap’s” house, which would have been after Breakiron 

took the money and thus “in the course of committing” that 

theft. See 18 Pa. Cons. Stat. § 3701(a)(2) (“An act shall be 

deemed ‘in the course of committing a theft’ if it occurs in an 

attempt to commit theft or in flight after the attempt or 

commission.”). Price’s testimony was the only evidence that 

Breakiron committed the theft during the course of an 

ongoing assault. 

 Finally, Breakiron argues that Price’s testimony 

undermined his credibility in general because Price’s account 

differed from his own. The Commonwealth has not 

addressed this argument, and we agree with Breakiron. Price 

testified that Breakiron told him a different story than 

Breakiron told the jury. The District Court held that there is a 

reasonable probability that the jury would have believed 

Breakiron’s account instead of Price’s if the defense had been 

able to impeach Price’s credibility with the undisclosed 

evidence. Even though Price did not testify directly that 

Breakiron told him anything about the theft, Price’s testimony 

undermined Breakiron’s credibility as a whole. With no other 

direct evidence on when Breakiron formed the intent to take 

the money, Breakiron’s own credibility was crucial. 

Accordingly, the impeachment evidence that the prosecution 

17 
withheld was material to the robbery charge and its Brady

violations require relief from the robbery conviction.9

B. Counsel’s Failure to Request a Theft Instruction 

Breakiron argues that trial counsel rendered ineffective 

assistance by failing to request a jury instruction on theft, 

which is a lesser-included offense in the charge of robbery. 

See 18 Pa. Cons. Stat. § 3701(a)(1); Commonwealth v. 

Williams, 559 A.2d 25, 27 n.2 (Pa. 1989). We agree. At 

trial, Breakiron testified that he took the money bags only 

after he left the bar following the assault, returned, put 

Martin’s body in his truck, went back into the bar, and then 

spotted the bags as he was on his way back out. (N.T. 1260-

61; A.1558-59.) At closing, his counsel argued that, although 

Breakiron stole the money bags, he was not guilty of robbery 

 

9

 The parties have not cited any cases in which a court has 

addressed whether Brady evidence was material to some 

charges but not others. We have located one case, which is 

informative by comparison. In Silva, the Court of Appeals 

for the Ninth Circuit invalidated a murder conviction because 

the prosecution withheld evidence that the defense could have 

used to impeach a witness whose testimony provided the only 

evidence of the defendant’s role in the murder. See 416 F.3d 

at 990-91. The court declined to invalidate the defendant’s 

convictions of robbery and other crimes, however, because 

“strong evidence in the record” corroborated that witness’s 

testimony regarding the defendant’s role in those crimes. Id.

at 991. In this case, by contrast, there is no direct evidence of 

record—strong or otherwise—that Breakiron intended to take 

the money at the time he attacked Martin. 

18 
because he decided to take the money only after Martin was 

dead. (N.T. 1320-21; A.1618-19.) The trial court then 

instructed the jury that it could find Breakiron guilty of 

robbery only if it found both that Breakiron committed a theft 

and that he inflicted serious bodily injury on Martin “in the 

course of” committing that theft. (N.T. 1352-53; A.1650.)10 

 

10 The robbery charge reads in relevant part: 

In order to find the defendant guilty of robbery, you 

must be satisfied that the following two elements have 

been proven beyond a reasonable doubt by the 

Commonwealth. First, that the defendant inflicted 

serious bodily injury on Saundra Marie Martin. . . . 

The second element for robbery is that the defendant 

did so in the course of committing a theft. . . . As I 

have already indicated, you cannot find the defendant 

guilty of robbery unless you are satisfied beyond a 

reasonable doubt that he committed a theft. A person 

commits a theft if he unlawfully takes the movable 

property of another person with intent to deprive that 

person of it permanently. You would need to decide in 

this case whether the defendant took money and/or a 

purse which were the movable property of Saundra 

Marie Martin by inflicting serious bodily injury or the 

threat of serious bodily injury or the threat oto [sic] 

commit the crime of murder and that the defendant did 

these acts in the course of committing the theft. 

Basically, members of the jury, there are therefore two 

elements. First, that the theft occurred or that it 

occurred by infliction of serouus [sic] bodily injury or 

theft as I have explained it to you. 

19 
Breakiron’s counsel did not request a further instruction that 

the jury could find him guilty solely of the lesser-included 

offense of theft, and the trial court did not give one. 

 Breakiron claims that his counsel rendered ineffective 

assistance in that regard. He raised this claim in his first 

PCRA proceeding. The PCRA court held an evidentiary 

hearing, at which counsel testified, then rejected the claim on 

the merits. The Pennsylvania Supreme Court affirmed. See

Breakiron-2, 729 A.2d at 1094-95. The District Court 

deferred to that ruling under AEDPA, but explained that it 

would deny the claim even under de novo review. 

 

 This claim is governed by the standard set forth in 

Strickland v. Washington, 466 U.S. 668 (1984), which 

constitutes “clearly established Federal law” for AEDPA 

purposes. Williams v. Taylor, 529 U.S. 362, 391 (2000); 

Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A 

habeas petitioner asserting a claim under Strickland must 

establish two elements. “First, the defendant must show that 

counsel’s performance was deficient. This requires showing 

that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” Strickland, 466 U.S. at 687. In 

evaluating counsel’s performance, “a court must indulge a 

strong presumption that counsel’s conduct falls within the 

 

(N.T. 1352-53; A.1650-51.) As Breakiron notes, the last 

sentence of this charge reads “or” where it should read “and,” 

and thus suggests that theft alone is sufficient to convict of 

robbery. Breakiron has raised no independent claim for relief 

in this regard on appeal but, as explained below, this 

suggestion informs our assessment of prejudice. 

20 
wide range of reasonable professional assistance[.]” Id. at 

689. Thus, counsel’s performance will be deemed deficient 

only if it “fell below an objective standard of 

reasonableness.” Id. at 688. The question ultimately is 

“whether, in light of all the circumstances, the [challenged] 

acts or omissions were outside the wide range of 

professionally competent assistance.” Id. at 690. 

“Second, the defendant must show that the deficient 

performance prejudiced the defense. 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.” Id. at 

687. To establish prejudice, “[t]he 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. 

1. Counsel’s Performance

 The Pennsylvania Supreme Court did not address the 

issue of performance and instead rejected this claim solely on 

the ground that Breakiron failed to show prejudice. See

Breakiron-2, 729 A.2d at 1094-95. The District Court also 

did not address counsel’s performance. Nevertheless, we 

may do so in the first instance because the record is 

adequately developed. See Hodge v. United States, 554 F.3d 

372, 379 n.9 (3d Cir. 2009). We will review the issue de 

novo because the state court did not address it. See Porter, 

130 S. Ct. at 452. 

 We conclude that counsel’s failure to request a theft 

21 
instruction was objectively unreasonable. As Breakiron 

argues, he would have been entitled under Pennsylvania law 

to an instruction on the lesser-included crime of theft if 

counsel had requested one because the charge was supported 

by the evidence. See Commonwealth v. Polimeni, 378 A.2d 

1189, 1192 & nn.3-4 (Pa. 1977) (citing, inter alia, Keeble v. 

United States, 412 U.S. 205, 213 (1973)); see also Beck v. 

Alabama, 447 U.S. 625, 635-36 & n.12 (1980) (counting 

Pennsylvania among the states that have “unanimously” so 

held and citing Commonwealth v. Terrell, 393 A.2d 1117 (Pa. 

1978)).11 The Commonwealth does not argue otherwise. 

 

The Commonwealth also does not defend counsel’s 

performance on this point, and it is apparent from the record 

that counsel did not have a strategic reason for not requesting 

a theft instruction. When asked at the PCRA hearing whether 

he ever considered doing so, he answered merely “I don’t 

believe so.” (N.T. PCRA 7/17/97 PM at 70; A.1892.) Thus, 

the record establishes that counsel’s decision not to request a 

theft instruction was not the kind of strategic choice entitled 

to deference under Strickland. See Thomas v. Varner, 428 

F.3d 491, 499-500 (3d Cir. 2005). 

 

The record also establishes that it was objectively 

 

11 Breakiron argues that instructions on lesser-included 

offenses that are supported by the evidence are required by 

the Due Process Clause as well. See Beck, 447 U.S. at 637, 

638 n.14; Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir. 

1988). Because Breakiron has not raised an independent due 

process claim, and because he would have been entitled to a 

theft instruction if requested under Pennsylvania law, we need 

not address that issue. 

22 
unreasonable. Counsel’s sole theory of defense to the 

robbery charge was that Breakiron had committed a theft but 

not a robbery. Without a theft instruction, the jury was left 

with only two choices—conviction of robbery or outright 

acquittal. In such all-or-nothing situations, “‘[w]here one of 

the elements of the offense charged remains in doubt, but the 

defendant is plainly guilty of some offense, the jury is likely 

to resolve its doubts in favor of conviction.’” Beck, 447 U.S. 

at 634 (quoting Keeble, 412 U.S. at 212-13). Thus, even 

though juries are obligated “‘as a theoretical matter’” to 

acquit if they do not find every element of a crime, there is a 

“‘substantial risk that the jury’s practice will diverge from 

theory’” when it is not presented with the option of 

convicting of a lesser offense instead of acquitting outright. 

Id. (quoting Keeble, 412 U.S. at 212). By conceding theft but 

not requesting a theft instruction, Breakiron’s counsel 

exposed him to that “substantial risk,” and the record reveals 

that he had no strategic reason for doing so. 

Nor could there have been any. Counsel did not 

pursue an all-or-nothing strategy at trial by arguing that 

Breakiron had not committed any crime. Instead, he 

conceded that Breakiron had committed theft, but neglected 

to request the theft instruction that not only would have been 

consistent with that theory of defense but would have given 

the jury an opportunity to effectuate it. Under the 

circumstances, no reasonable counsel would have failed to 

request that instruction. See Richards v. Quarterman, 566 

F.3d 553, 569-70 (5th Cir. 2009) (holding that failure to 

request a lesser-included-offense instruction consistent with 

theory of the defense “fell below an objective standard of 

reasonableness”); cf. Lopez v. Thurmer, 594 F.3d 584, 588 

(7th Cir. 2010) (holding that decision not to request lesser23 
included-offense instruction “appears to have been strategic” 

where instruction would have been inconsistent with 

defendant’s testimony that he “was innocent of any crime”). 

2. Prejudice

 To show prejudice, Breakiron must establish that there 

is a reasonable probability that the jury would have convicted 

him of theft only and not of robbery if counsel had requested 

the theft instruction to which he was entitled. The 

Pennsylvania Supreme Court held that Breakiron had not 

made that showing. Thus, under AEDPA, we may not grant 

relief on this claim unless that ruling either was “contrary to, 

or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court 

of the United States[.]” 28 U.S.C. § 2254(d)(1). If we 

determine that the Pennsylvania Supreme Court’s ruling was 

contrary to or an unreasonable application of Strickland, then 

we still must review the claim de novo to determine whether 

Breakiron is entitled to relief. See Bronshtein v. Horn, 404 

F.3d 700, 724 (3d Cir. 2005). 

 The Pennsylvania Supreme Court’s prejudice analysis 

reads in relevant part: 

We find that even if this argument had merit 

and that trial counsel could have requested a 

theft and a robbery jury charge, Breakiron 

cannot establish that he was prejudiced. 

The charge of the trial court instructed the jury 

not to return a guilty verdict of robbery without 

first finding that a theft had occurred. (N.T. at 

24 
1352-54) Moreover, trial counsel argued to the 

jury during closing argument that there could be 

no robbery, but solely a theft because Breakiron 

took money only after Ms. Martin was dead. 

(N.T. at 1312, 1320-21) The jury rejected this 

argument and convicted Breakiron of robbery. 

In Breakiron I, we held that the evidence 

supported this verdict because there was no 

question that Breakiron took the victim’s purse 

and the bags of money from the bar. Breakiron 

I, 524 Pa. at 296-97, 571 A.2d at 1042. Had a 

theft instruction been given, it is not likely that 

the jury would have returned a verdict only on 

the theft charge. 

Breakiron-2, 729 A.2d at 1095. Thus, the Pennsylvania 

Supreme Court rejected this claim because (1) the trial court’s 

instruction made it clear that Breakiron was not guilty of 

robbery based on a theft alone, so the jury necessarily rejected 

counsel’s argument that Breakiron committed theft alone, and 

(2) the evidence of robbery was sufficient.12

 Breakiron challenges both rationales, arguing that the 

first is an “unreasonable application” of Strickland and that 

the second is “contrary to” Strickland. We agree on both 

counts. First, the Pennsylvania Supreme Court reasoned that 

 

12 The Pennsylvania Supreme Court went on to find no 

prejudice at the penalty phase because the jury found another 

aggravating circumstance in addition to the robbery. See id. 

That issue is no longer relevant given the District Court’s 

invalidation of the murder conviction and death sentence. 

25 
the jury would have found Breakiron guilty of robbery even if 

a separate theft instruction had been given because the trial 

court’s instruction made clear that theft alone was not enough 

to convict of robbery, and the jury thus necessarily rejected 

Breakiron’s argument that he committed theft alone. This 

reasoning is a significant stretch of plausibility. The problem 

with this analysis is that it rests solely on the jury’s duty “‘as 

a theoretical matter’” to acquit if it does not find every 

element of a crime and does not acknowledge the 

“‘substantial risk that the jury’s practice will diverge from 

theory’” when it is not presented with the option of 

convicting of a lesser offense instead of acquitting outright. 

Beck, 447 U.S. at 634 (quoting Keeble, 412 U.S. at 212). The 

crux of Breakiron’s claim of prejudice is that he was exposed 

to this “substantial risk,” but the Pennsylvania Supreme Court 

did not acknowledge it.13

 Second, the Pennsylvania Supreme Court also noted 

that the evidence of robbery was “sufficient” because 

Breakiron admitted taking money from the bar. Breakiron 

argues that it was contrary to Strickland to rely on the mere 

sufficiency of the evidence of robbery because the only 

relevant question is whether there was a “reasonable 

probability” that the jury would have convicted him only of 

 

13 Breakiron has not argued that the Pennsylvania Supreme 

Court’s decision is contrary to or an unreasonable application 

of Beck and Keeble themselves, but the principles set forth in 

those decisions are relevant in evaluating the Pennsylvania 

Supreme Court’s assessment of prejudice. Cf. Strickland, 466 

U.S. at 695 (“The governing legal standard plays a crucial 

role in defining the question to be asked in assessing the 

prejudice from counsel’s errors.”). 

26 
theft instead. The District Court rejected this argument 

because (1) the Pennsylvania Supreme Court did not rely 

solely on the sufficiency of the evidence, and (2) it is proper 

to consider the weight of the evidence in assessing prejudice 

under Strickland. (Dist. Ct. Op. at 94-95.) 

 The District Court is right that the Pennsylvania 

Supreme Court did not solely rely on the sufficiency of the 

evidence, and thus did not apply a “sufficiency of the 

evidence” standard that is contrary to the “reasonable 

probability” standard set forth in Strickland. The 

Pennsylvania Supreme Court’s partial reliance on the 

sufficiency of the evidence, however, is nevertheless 

problematic. It is of course true that courts must weigh the 

evidence in assessing prejudice. See Buehl v. Vaughn, 166 

F.3d 163, 172 (3d Cir. 1999) (citing Strickland, 466 U.S. at 

695). The Pennsylvania Supreme Court, however, merely 

noted the sufficiency of the evidence without examining its 

weight. It did not weigh all the evidence of record (including 

Breakiron’s testimony that he took the bags of money only 

after spotting them after the assault was over) to determine 

whether there was a reasonable probability that the jury 

would have convicted him only of theft if it had been given 

that option. Merely noting that the evidence was sufficient to 

convict does not accomplish that task. In sum, the 

Pennsylvania Supreme Court did not acknowledge the 

substantial risk to which Breakiron was exposed in the 

absence of a theft instruction and did not weigh the evidence 

of record to determine whether it prejudiced him. Thus, its 

ruling is both contrary to and an unreasonable application of 

Strickland. 

 The question remains whether Breakiron suffered 

27 
prejudice when the issue is considered de novo. Breakiron 

argues that the failure to request a theft instruction deprived 

the jury of the only way to give effect to counsel’s theory of 

defense (i.e., that Breakiron committed a theft but not a 

robbery). The District Court reasoned that it would deny this 

claim even considered de novo essentially for the same reason 

as the Pennsylvania Supreme Court: the trial court properly 

instructed the jury on the elements of robbery, so the jury 

must have found those elements and not merely a theft in 

finding Breakiron guilty. (Dist. Ct. Op. at 95-96.) Thus, 

under the District Court’s reasoning, counsel’s failure to 

obtain a theft instruction did not deprive the jury of a way of 

giving effect to counsel’s argument because the jury could 

have done so simply by finding Breakiron not guilty of 

robbery. 

 Like the Pennsylvania Supreme Court, however, the 

District Court did not account for the substantial risk that a 

jury will convict of an unproven offense when the defendant 

is guilty of some crime but the jury instructions present it 

with an all-or-nothing choice. See Beck, 447 U.S. at 634. 

The question in assessing prejudice is whether there is a 

reasonable probability that the jury did so here, and we 

conclude that there is. Breakiron testified that he did not 

decide to take the money bags until after his assault on Martin 

was complete and he left and then returned to the bar. The 

only evidence to the contrary was the mere fact that he took 

the money and Price’s testimony suggesting that the incident 

as a whole was premeditated and that Breakiron took the 

money before his assault on Martin was complete. Thus, 

although Price’s testimony supported the robbery charge for 

Brady purposes and the evidence was sufficient to convict, 

the prosecution’s evidence on that charge was not particularly 

28 
strong and was far from overwhelming. Moreover, the 

robbery instruction actually given by the trial court, though 

initially proper, compounded the error by closing with the 

erroneous suggestion that the jury could convict Breakiron of 

robbery on the basis of a theft alone. Under the 

circumstances, there is a reasonable probability that the jury 

would have convicted Breakiron only of theft if the jury 

instructions had given it that option.14

C. Counsel’s Failure to Take Corrective 

Action at Voir Dire 

Finally, Breakiron argues that his counsel rendered 

ineffective assistance in failing to take corrective action after 

a venire member testified that Breakiron “used to do a lot of 

robbing.” During voir dire, a venire member (Charles Gerba, 

No. 67) testified under oath in front of the panel that he knew 

Breakiron and that Breakiron had committed robberies: “I 

know the boy. I lived in the terrace and he used to do a lot of 

robbing there.” (N.T. 448; A.717.) Gerba also testified that, 

based on what he knew, he had a “fixed opinion” about the 

case and could not be an impartial juror, and the trial court 

excused him. (Id.) Breakiron’s counsel did not object to 

Gerba’s testimony or move to strike the venire panel or for a 

 

14 Breakiron also argues that he was prejudiced by the 

absence of a theft instruction because the robbery charge did 

not include a so-called “afterthought” instruction—i.e., an 

instruction emphasizing that he could not be guilty of robbery 

if he committed theft only as an “afterthought” following the 

murder. In his reply brief, Breakiron clarifies that this 

argument is not an independent claim for relief, so we need 

not address it. (Breakiron Reply Br. at 19-20.) 

29 
mistrial, and the trial court took no corrective action sua 

sponte. One of the venire members on the same panel who 

was in the room at the time (Paul Manges, No. 114) ended up 

serving on Breakiron’s jury. 

The trial court opened voir dire by questioning the 

venire members regarding their general knowledge of the 

parties and the case. Before reaching Gerba, the trial court 

conducted its initial questioning of Manges. The trial court 

asked him whether he had formed any opinion about the case 

from what he had read in the newspaper. Manges testified 

that he had not and agreed that he could decide the case 

“solely on the basis of what transpires in this room[.]” (N.T. 

444-45; A.713-714.) The trial court later questioned Gerba, 

who testified that Breakiron “used to do a lot of robbing.” 

After the trial court excused Gerba, counsel questioned the 

venire members left on the panel, including Manges, but 

neither counsel nor the trial court asked Manges about 

Gerba’s statement. (N.T. 512-20; A.781-89.) 

 Breakiron argues that his counsel rendered ineffective 

assistance by failing to move to strike the venire panel, seek a 

mistrial, or take other corrective action to insure that no one 

exposed to Gerba’s statement served on the jury. Breakiron 

raised this claim during his first PCRA proceeding. The 

PCRA court held an evidentiary hearing, at which his counsel 

testified. It then denied the claim on the merits, and the 

Pennsylvania Supreme Court affirmed. See Breakiron-2, 729 

A.2d at 1093-94. The Pennsylvania Supreme Court based its 

ruling solely on the issue of counsel’s performance. The 

District Court deferred to that ruling under AEDPA, but also 

explained that it would deny the claim on de novo review of 

the issue of prejudice as well. 

30 
1. Counsel’s Performance

 As the Supreme Court recently emphasized, the 

standard for evaluating counsel’s performance under 

Strickland “is a most deferential one” that, under AEDPA, 

becomes “‘doubly’” deferential when a state court already has 

found counsel’s performance constitutionally sufficient. 

Harrington, 2011 WL 148587, at *13 (quoting Knowles v. 

Mirzayance, 129 S. Ct. 1411, 1420 (2009)). Thus, we may 

not grant relief on this claim unless we conclude, not only 

that counsel’s performance was objectively unreasonable, but 

that “there is no possibility fairminded jurists could 

disagree[.]” Id. at *12. Even under this doubly deferential 

standard, we conclude that counsel’s failure to take corrective 

action was objectively unreasonable and that the 

Pennsylvania Supreme Court unreasonably applied Strickland

in concluding otherwise. 

The Pennsylvania Supreme Court concluded that 

counsel’s decision not to move to strike the venire panel or 

for a mistrial was part of a reasonable trial strategy. Its 

reasoning reads in full: 

Under these circumstances, a motion to 

strike the jury panel may have been an 

appropriate course of action. Nonetheless, trial 

counsel is not ineffective for failing to do so. 

At the PCRA hearing, trial counsel testified that 

he did not make a motion to strike or move for a 

mistrial because the seated juror had stated that 

he could render an unbiased opinion, and 

consequently there was no basis to strike the 

31 
panel or move for a mistrial. The PCRA court 

found that this was a plausible trial tactic, and 

therefore Breakiron failed to meet his burden 

that counsel’s actions were not reasonably 

based. 

After reviewing the jury voir dire of the 

juror in question, we agree with the PCRA 

court, and find that trial counsel had a 

reasonable basis for his actions. The juror 

stated that he could be a fair and unbiased juror, 

and that no one spoke of the case in his 

presence. The PCRA court did not err in 

denying Breakiron’s petition. 

Breakiron-2, 729 A.2d at 1094 (citations and footnotes 

omitted). Thus, the Pennsylvania Supreme Court concluded 

that counsel’s belief that Manges could be fair and impartial 

was a strategic reason for allowing him on the jury and that 

counsel’s belief was reasonably supported by the record. 

Breakiron argues that this ruling 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)(2), because the Pennsylvania Supreme Court 

misread the PCRA and voir dire transcripts. He also argues 

that its ruling was an unreasonable application of Strickland. 

 

 We agree that the Pennsylvania Supreme Court’s 

characterization of the record is not entirely accurate. It 

based its ruling on two factual determinations. First, it 

concluded that counsel testified at the PCRA hearing that the 

reason he did not take corrective action was that “the seated 

juror had stated that he could render an unbiased opinion.” 

32 
Breakiron-2, 729 A.2d at 1094. Counsel did not actually 

testify that he took no corrective action because Manges 

“stated that he could render an unbiased opinion.” Counsel’s 

actual testimony, in relevant part, was: 

 A. Why didn’t I ask for a mistrial at that point? 

Q. Yes, sir. 

A. Well, he was — that juror [apparently 

Gerba] was excused and — 

 

 * * * * * 

A. I don’t know why there was no request 

for a mistrial at that time, other than the 

fact that this guy [apparently Gerba] was 

excused, and I believe that we 

questioned all of the jurors individually 

after that. The court had asked several 

questions based on what Mr. Manges 

said, number 114, after consultation with 

Mr. Breakiron, we felt that he would be a 

fair and impartial juror toward Mr. 

Breakiron. 

(N.T. PCRA 7/17/97 P.M. at 75-76; A.1897-98.) Thus, 

counsel testified merely that he “felt” Manges would be a fair 

and impartial juror, not that Manges actually said he could or 

that he declined to take corrective action on that basis. 

 Second, the Pennsylvania Supreme Court concluded 

that Manges’s testimony at voir dire made counsel’s decision 

33 
reasonable because its own review of the voir dire transcript 

confirmed that “[t]he juror stated that he could be a fair and 

unbiased juror[.]” Breakiron-2, 729 A.2d at 1094. Manges 

actually never testified that he could be a “fair and impartial 

juror,” either in the abstract or in light of Gerba’s statement. 

Under initial questioning by the trial court, Manges testified 

merely that he had not formed a fixed opinion from what he 

read in the newspapers and agreed that he could judge the 

case “solely on the basis of what transpires in this room[.]” 

(N.T. 444-45; A.713-14.) That questioning referred only to 

Manges’s exposure to newspaper articles, and it occurred 

before Gerba made the statement at issue here (which, of 

course, “transpire[d] in th[at] room”). Manges also did not 

state that he could be a “fair and impartial juror” in response 

to counsel’s questioning after Gerba testified. Manges did 

testify that he had not formed an opinion as to Breakiron’s 

guilt or innocence, but only when asked whether he had done 

so on the specific bases of reading the newspaper or 

discussing the case with his wife. (N.T. 512-13; A.781-82.) 

And again, neither counsel nor the trial court asked him about 

Gerba’s statement. 

 Even if we assume that the Pennsylvania Supreme 

Court’s factual findings are entitled to deference under 

AEDPA, however, we still conclude that its ultimate ruling is 

objectively unreasonable. The Pennsylvania Supreme Court 

concluded that counsel’s decision to allow Manges on the 

jury was a reasonable strategic decision because counsel 

believed that Manges could be fair and impartial. The 

primary problem with that conclusion is that counsel could 

have had no reasonable basis for that belief because neither 

he nor the trial court questioned Manges about Gerba’s 

statement. Counsel’s “feeling” that Manges could be fair and 

34 
impartial despite that statement thus was insufficiently 

informed. Cf. Strickland, 466 U.S. at 691 (“[C]ounsel has a 

duty to make reasonable investigations or make a reasonable 

decision that makes particular investigations unnecessary.”). 

 In addition, counsel’s testimony does not explain why 

he took no action when Gerba made the statement in the first 

place. His initial testimony on that point was “I don’t know 

why there was no request for a mistrial at that time[.]” (N.T. 

PCRA 7/17/97 P.M. at 75; A.1897.) Manges’s answers to the 

trial court’s questioning provided no basis not to do so 

because the trial court questioned Manges before Gerba made 

his statement. 

 

 Counsel later testified that he did not move for a 

mistrial because he did not think “that anything egregious had 

occurred” during jury selection. (N.T. PCRA 7/18/97 A.M. at 

36; A.2021). That statement could mean that counsel did not 

believe anything “egregious” had occurred in light of his and 

the trial court’s questioning of Manges, in which case it 

suffers from the same deficiencies just discussed. That 

statement could also mean that counsel did not believe that 

the panel’s exposure to Gerba’s testimony itself was 

sufficiently “egregious” to warrant corrective action. Either 

way, there is no reasonable basis to conclude that counsel’s 

performance in this regard was constitutionally adequate. 

Manges was exposed to sworn testimony that 

Breakiron “used to do a lot of robbing”—i.e., that Breakiron 

had a history of committing the very same crime of which he 

was accused at trial. Federal courts have long recognized that 

evidence suggesting a propensity to commit crimes is patently 

prejudicial. See, e.g., Old Chief v. United States, 519 U.S. 

35 
172, 181 (1997) (explaining that propensity evidence “‘is said 

to weigh too much with the jury and to so overpersuade them 

as to prejudge one with a bad general record and deny him a 

fair opportunity to defend against a particular charge’”) 

(quoting Michelson v. United States, 335 U.S. 469, 476 

(1948)); Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) 

(“Evidence that a defendant has committed prior criminal acts 

is highly prejudicial.”). As we have explained, when 

evidence suggesting “a propensity or disposition to commit 

crime . . . reaches the attention of the jury, it is most difficult, 

if not impossible, to assume continued integrity of the 

presumption of innocence. A drop of ink cannot be removed 

from a glass of milk.” Government of the Virgin Islands v. 

Toto, 529 F.2d 278, 283 (3d Cir. 1976). 

Such evidence is all the more prejudicial where, as 

here, it reveals that the defendant previously committed the 

very kind of crime of which he or she stands accused. See

Old Chief, 519 U.S. at 185 (“Where a prior conviction was 

for a . . . crime . . . similar to the other charges in a pending 

case, the risk of unfair prejudice would be especially 

obvious[.]”); United States v. Bagley, 772 F.2d 482, 488 (9th 

Cir. 1985) (“To allow evidence of a prior conviction of the 

very crime for which a defendant is on trial may be 

devastating in its potential impact on a jury. . . . [W]here, as 

here, the prior conviction is sufficiently similar to the crime 

charged, there is a substantial risk that all exculpatory 

evidence will be overwhelmed by a jury’s fixation on the 

human tendency to draw a conclusion which is impermissible 

in law: because he did it before, he must have done it 

again.”). 

The Pennsylvania courts have long recognized the 

36 
prejudicial nature of propensity evidence as well. See, e.g., 

Commonwealth v. Harkins, 328 A.2d 156, 157-58 (Pa. 1974) 

(“When the jury learns that the person being tried has 

previously committed another crime, the prejudicial impact 

cannot be considered insignificant. ‘The presumed effect of 

such evidence is to predispose the minds of the jurors to 

believe the accused guilty, and thus effectually to strip him of 

the presumption of innocence.’”) (citation omitted). The 

situation in Harkins was similar to that presented here. In 

Harkins, a potential juror testified during voir dire that the 

defendant had stolen his car, and the defendant’s counsel 

moved to strike the venire panel. The trial court denied the 

motion and, though it excused that venire member, other 

members of the same panel went on to serve on the 

defendant’s jury, which ultimately convicted him. The 

Pennsylvania Supreme Court reversed the conviction and 

remanded for a new trial, explaining that “‘[t]he fact that a 

reasonable inference of a prior criminal record is present in 

the minds of the jurors in and of itself mandates a new trial.’” 

Id. at 158 (quoting Commonwealth v. Allen, 292 A.2d 373, 

376 (Pa. 1972)). Thus, as Breakiron argues, it would have 

been obvious to any reasonably competent counsel that 

corrective action was both available under Pennsylvania law 

and essential to preserve Breakiron’s presumption of 

innocence.15 

Counsel, however, took no such action. He declined to 

 

15 The Pennsylvania Supreme Court appears to have assumed 

that counsel would have received corrective action if he had 

requested it, see Breakiron-2, 729 A.2d at 1094 (citing 

Harkins), and the Commonwealth has not argued otherwise. 

37 
do so, he testified, because he “felt” that Manges could be fair 

and impartial and did not believe that anything “egregious” 

had occurred. But avoidance of “egregiousness” is not the 

standard for constitutionally adequate performance; the 

standard is one of objectively reasonable performance under 

the circumstances. No objectively reasonable counsel would 

fail to recognize the patently prejudicial nature of testimony 

that Breakiron “used to do a lot of robbing” (which certainly 

qualifies as “egregious” in any event), and counsel provided 

no legitimate explanation for failing to take corrective action 

following that testimony. The Pennsylvania Supreme Court 

nevertheless accepted counsel’s explanation at face-value 

without recognizing that it was insufficiently informed and 

without acknowledging the patently prejudicial nature of 

Gerba’s testimony. For these reasons, we conclude both that 

counsel’s performance was deficient under Strickland and 

that the Pennsylvania Supreme Court’s conclusion to the 

contrary was objectively unreasonable.16

2. Prejudice

The Pennsylvania Supreme Court did not reach the 

issue of prejudice, so the District Court reviewed it de novo 

and we will do the same. See Porter, 130 S. Ct. at 452. The 

District Court concluded that Breakiron had not shown 

prejudice because, after Gerba made the statement at issue, 

Manges testified that he had not formed any opinion 

 

16 Although Breakiron’s claim in this regard is one of 

ineffective assistance of counsel, we are surprised and 

troubled that the state trial court took no steps to address this 

patently prejudicial exposure sua sponte. 

38 
regarding Breakiron’s guilt and that he understood that 

Breakiron was presumed innocent unless proven guilty 

beyond a reasonable doubt. (Dist. Ct. Op. at 35.) The 

District Court further reasoned that nothing in these responses 

led counsel or the trial court to question Manges’s 

impartiality. (Id.) Thus, the District Court concluded that 

“Breakiron has failed to show that Juror 114 [Manges] was 

anything but a fair and impartial juror or that his presence on 

the jury prejudiced him.” (Id.) 

 Although the parties have not squarely addressed it, 

this claim raises the threshold issue of how prejudice should 

be assessed in this context. The District Court appeared to 

require some indication that Gerba’s statement actually 

rendered Manges biased or partial as a subjective matter, and 

the Commonwealth too argues that Breakiron failed to 

“establish” that Manges was anything other than fair and 

impartial. Thus, the District Court’s reasoning and the 

Commonwealth’s argument assume that a subjective 

approach to prejudice is appropriate in this case. Breakiron, 

by contrast, focuses on the prejudicial nature of the statement 

in question and assumes that its probable effect should be 

determined objectively. See Hummel v. Rosenmeyer, 564 

F.3d 290, 303 (3d Cir. 2009) (“It is not necessary that the 

defendant show that the deficient conduct ‘more likely than 

not altered the outcome in the case,’” but only that there is a 

“‘reasonable probability’” that it did.) (quoting Strickland, 

466 U.S. at 693, and adding emphasis). We agree that 

Strickland requires an objective inquiry here. 

 The parties have not cited, and we have not located, 

any authority squarely addressing the standard for prejudice 

when counsel is alleged to have rendered ineffective 

39 
assistance in connection with statements made during voir 

dire that potentially rendered one or more actual jurors biased 

or partial. Claims of juror bias or partiality themselves 

generally require a showing of actual or legally implied bias. 

See, e.g., Smith v. Phillips, 455 U.S. 209, 215 (1982) (“This 

Court has long held that the remedy for allegations of juror 

partiality is a hearing in which the defendant has the 

opportunity to prove actual bias.”). Some courts have 

required petitioners to show actual or legally implied juror 

bias in similar contexts in order to satisfy the Strickland

standard as well. See, e.g., Sanders v. Norris, 529 F.3d 787, 

790-94 (8th Cir. 2008) (no prejudice from counsel’s likely 

deficient voir dire questioning where no actual or legally 

implied juror bias); Fields v. Brown, 503 F.3d 755, 775-76 

(9th Cir. 2007) (citing Strickland standard but holding that 

defendant was not prejudiced by counsel’s deficient 

questioning during voir dire where habeas evidentiary hearing 

revealed that juror was not actually biased). The District 

Court and the Commonwealth both assume without 

explanation that this subjective approach is the proper one in 

this case. 

 Evidence of a juror’s subjective bias or lack thereof 

may well be relevant in some cases involving allegations of 

ineffective assistance at voir dire. The narrow question 

presented here, however, is the standard for assessing 

prejudice when a panel member who ultimately serves on the 

jury is exposed to sworn testimony that the defendant 

previously committed crimes. Applying a subjective rather 

than an objective standard of prejudice in this context would 

conflict with Strickland. The proper inquiry under Strickland

is not whether Gerba’s statement actually rendered Manges 

biased or partial, but whether there is a reasonable probability 

40 
that a juror who had not been exposed to that statement would 

have voted to acquit Breakiron of robbery. See Saranchak v. 

Beard, 616 F.3d 292, 309 (3d Cir. 2010) (holding that state 

court improperly considered likely effect of evidence on the 

“particular [trial] judge . . . rather than considering, more 

abstractly, the effect the same evidence would have had on an 

unspecified, objective fact-finder, as required by Strickland”) 

(citing Strickland, 466 U.S. at 695). Indeed, “evidence about 

the actual process of decision, if not part of the record of the 

proceeding under review, . . . should not be considered in the 

prejudice determination.” Strickland, 466 U.S. at 695. Thus, 

Breakiron was not required to show that Manges was actually 

influenced by Gerba’s statement, but had only to show a 

reasonable probability that any given juror would have 

been.17

 Although we have not applied Strickland in this 

precise context, determining the objectively probable effect of 

prior-crimes evidence is hardly a novel task. We have 

 

17 The District Court reasoned that Breakiron could not show 

prejudice because Manges’s voir dire testimony suggested 

that he could decide the case fairly. If counsel or the trial 

court had questioned Manges about Gerba’s statement, and if 

Manges had testified that he could and would disregard it, 

then the District Court’s reasoning might have more force 

(though we do not so hold). But neither counsel nor the trial 

court questioned Manges about Gerba’s statement, so there is 

no record evidence bearing on whether Manges was actually 

influenced by that statement. Under the circumstances, 

Strickland requires that we assess its reasonably probable 

effect. 

41 
applied Strickland’s “reasonable probability” standard in 

assessing the effect of counsel’s failure to object at trial to 

testimony revealing that the defendant had a criminal record, 

see Carpenter v. Vaughn, 296 F.3d 138, 150-51 (3d Cir. 

2002), counsel’s failure to object to evidence concerning a 

defendant’s prior crimes, see Buehl, 166 F.3d at 175-76, and 

counsel’s failure to request a limiting instruction regarding 

evidence of a defendant’s prior crimes, see Albrecht, 485 

F.3d at 128-29. We also have applied an objective standard 

in assessing the effect of references to a defendant’s prior 

crimes in a variety of other contexts. See, e.g., United States 

v. Morena, 547 F.3d 191, 194-97 (3d Cir. 2008) (prosecutor’s 

reference to defendant’s uncharged criminal activity); Toto, 

529 F.2d at 283 (evidence of prior crimes).18 The case before 

us thus calls for nothing more than a straightforward 

application of Strickland’s “reasonable probability” standard. 

 

18 In Toto, the trial court improperly admitted evidence of 

prior criminal acts. In assessing whether the error was 

harmful, we asked “‘whether the error itself had substantial 

influence (on the minds of the jury.) If so, or if one is left in 

grave doubt, the conviction cannot stand.’” Toto, 529 F.2d at 

283 (quoting Kotteakos v. United States, 328 U.S. 750, 765 

(1946)). We further noted that this test required us to “resort 

to probabilities” and determine its probable effect in light of 

the other evidence presented. Id. The Supreme Court later 

adopted the Kotteakos standard we applied in this context as 

the standard for determining harmless error on collateral 

review, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), 

and, as we have noted, “Strickland prejudice and Brecht

harmless error are essentially the same standard[.]” Albrecht, 

485 F.3d at 139 (citing Whitney v. Horn, 280 F.3d 240, 258-

59 & n.18 (3d Cir. 2002)). 

42 
 Having clarified the proper standard, we have no 

difficulty in concluding that it is satisfied in this case. As 

explained above, the prosecution’s case on the robbery 

charge, though sufficient, was far from overwhelming. There 

was little evidence of record to rebut Breakiron’s testimony 

and argument that he decided to commit theft only after the 

assault was complete and thus was not guilty of robbery. One 

of his jurors, however, had been exposed to sworn testimony 

that Breakiron “used to do a lot of robbing.” As explained 

above, such propensity evidence is patently prejudicial. 

Indeed, exposure to such testimony may be so prejudicial that 

it cannot be cured even by a proper limiting instruction, 

which was neither requested nor given here. See Morena, 

547 U.S. at 196-97; Toto, 529 F.2d at 283. Given the dearth 

of evidence on the robbery charge and the patently prejudicial 

nature of Gerba’s sworn testimony that Breakiron “used to do 

a lot of robbing,” there is a reasonable probability that 

corrective action by counsel would have produced a different 

result. Cf. Albrecht, 485 F.3d at 128-29 (although issue was 

“a very close one,” defendant was not prejudiced by counsel’s 

failure to request a limiting instruction regarding evidence of 

prior crimes because there was “ample” evidence of his guilt). 

III. Conclusion 

 Although our review and opinion, as they must, focus 

on the procedural aspects of Breakiron’s trial, three essential 

factors remain central and cannot be marginalized: a woman 

named Saundra Marie Martin is dead; money was stolen from 

the owner of “Shenanigan’s”; and Mark Breakiron must 

respond for the horrible sequence of events that occurred 

there. The procedural pathway to the final disposition for 

43 
44 

Breakiron, however, must follow strict guidelines. 

Accordingly, we will reverse the District Court’s judgment to 

the extent that it denied Breakiron’s habeas petition as to his 

robbery conviction and remand with an instruction to grant 

his petition as to that conviction for the reasons explained in 

this opinion.