1This information is taken from the Petition, the Response

thereto, and all attachments to those pleadings.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________

:

DERRICK THOMAS, : CIVIL ACTION

:

 Petitioner, :

:

v. : NO. 03-6273

:

FRANK TENNIS, et al., :

:

 Respondents. :

________________________________:

ARNOLD C. RAPOPORT,

United States Magistrate Judge

REPORT AND RECOMMENDATION

Presently before this Court is a pro se Petition for

Writ of Habeas Corpus filed by the Petitioner, Derrick Thomas

(“Petitioner”). Petitioner is currently serving a life sentence

and is incarcerated in the State Correctional Institution,

Rockview, located in Bellefonte, Pennsylvania. For the reasons

that follow, it is recommended that the Petition should be denied

with prejudice and dismissed without an evidentiary hearing.

I. FACTS AND PROCEDURAL HISTORY.

1

On March 15, 1993, Petitioner was convicted by a jury

before the Honorable David N. Savitt of the Court of Common Pleas

of Philadelphia, for first degree murder, retaliation against a

witness, possession of an instrument of crime, and criminal

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 1 of 34
2The trial court related the following facts:

 On February 8, 1990 at 8:14 a.m. police

discovered the body of the victim, Anthony

Vaughn, in a park at 4300 North 18th Street, 

The cause of death was blunt head trauma and

an incised wound to the neck.

 The previous, [sic] night February 7,

1990 shortly before midnight, defendants

Derrick Thomas, Michael Stokes and Darryl

Harris along with the victim, Anthony Vaughn

and another man, Hassan Bilal were in the

basement of a house at 2457 North Newkirk

Street which was Harris’ residence. The

victim did some target shooting in the

basement and when he ran out of bullets,

Stokes began making remarks about his being a

snitch, Thomas then picked up a baseball bat

and hit him in the head. After Vaughn fell

to the floor, Thomas tied him hand and foot

and handed a machete to Stokes which Stokes

used to slit Vaughn’s throat. Defendants

then loaded the victim’s body into a station

wagon and dumped it in the park where it was

found. The case was tired [sic] by this

court and a jury from February 25th to March

16, 1993 and the defendants found guilty of

First Degree Murder, Retaliation Against a

Witness, Possession of an Instrument of a

Crime and Conspiracy.

Resp., Ex. A, Ex. A, pp. 1-2 (emphasis added).

2

conspiracy.2 The jury set the penalty for first degree murder at

life imprisonment. Petitioner’s trial counsel filed post-verdict

motions. New counsel was thereafter appointed and filed

supplemental post-verdict motions on Petitioner’s behalf. Judge

Savitt denied the post-verdict motions on April 20, 1994, and

sentenced Petitioner to a mandatory term of life imprisonment for

first-degree murder, and concurrent terms of one to two years’

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 2 of 34
3

imprisonment for retaliation against a witness, one to two years’

imprisonment for possession of an instrument of crime, and one to

ten years’ imprisonment for criminal conspiracy. Judge Savitt

filed his trial court opinion on July 29, 1994. See Resp., Ex.

A, Ex. A. Petitioner did not file a direct appeal from the

judgments of sentence.

On April 28, 1995, Petitioner filed a pro se petition

for state post-conviction collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”). See 42 Pa. C.S.A. § 9541, et

seq. Petitioner sought reinstatement of his direct appellate

rights, and was granted the right to a direct appeal nunc pro

tunc on June 19, 1996. He claimed on appeal that: (1) the

evidence was insufficient as a matter of law to sustain his

convictions; (2) the trial court erred in permitting police

detectives to testify as to statements made by the victim

regarding two unrelated homicides; (3) the trial court erred in

permitting police detectives to testify as to Hassan Bilal’s

involvement with crisis intervention; (4) the trial court

improperly limited his cross-examination of Commonwealth witness

Richard Schwartzman, M.D.; and (5) trial counsel was ineffective

for failing to object to Dr. Schwartzman’s statement that he did

not believe that Hassan Bilal was “telling falsehoods.” In an

unpublished memorandum dated June 12, 1997, the Pennsylvania

Superior Court reversed the judgment of sentence imposed for

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4

possession of an instrument of crime because the court found that

the evidence was insufficient to sustain conviction on that

offense, and the court affirmed the judgments of sentence for

first degree murder, criminal conspiracy, and retaliating against

a witness. See Resp., Ex. A, Exs. B, C; Commonwealth v. Thomas,

700 A.2d 1029 (Pa. Super. 1997)(table). On December 9, 1997, the

Pennsylvania Supreme Court denied the petition for allowance of

appeal. Commonwealth v. Thomas, 705 A.2d 1308 (Pa. 1997)(table). 

Petitioner filed a pro se PCRA petition on April 21,

1998. Counsel was appointed, and after reviewing the record,

filed a no-merit letter pursuant to Commonwealth v. Finley, 550

A.2d 213 (Pa. 1988). The PCRA court notified petitioner that it

intended to dismiss the petition without a hearing, and

petitioner filed pro se objections. Judge Savitt nonetheless

denied and dismissed the PCRA petition after independently

reviewing the record, and permitted counsel to withdraw on May

20, 1999. Petitioner appealed to the Pennsylvania Superior

Court, claiming that counsel’s no-merit letter was inadequate. 

The Superior Court determined that the Finley letter was

inadequate because petitioner raised eighteen issues in his PCRA

petition, but counsel listed only eight issues in his no-merit

letter and only addressed three of those issues in any detail. 

See Resp., Ex. B. The Superior Court vacated Judge Savitt’s

order, and remanded for the appointment of new counsel. See Ex.

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5

B; Commonwealth v. Thomas, 758 A.2d 726 (Pa. Super. 2000)(table).

New counsel was appointed on remand and filed a

detailed no-merit letter, addressing all of petitioner’s claims

and asking permission to withdraw from the case. See Resp., Ex.

C. Judge Savitt again dismissed the PCRA petition on April 17,

2001. Petitioner filed a notice of appeal with the Superior

Court, claiming that: (1) he filed a timely notice of appeal

pursuant to the prison mailbox rule; and (2) the PCRA court erred

in adopting a defective no-merit letter without any findings to

show an independent judicial review of the record was conducted

and without any explanation of the nature and grounds for its

conclusions in its written opinion. See Resp., Ex. D. 

On October 28, 2002, the Superior Court, voting 2-1,

vacated the PCRA order denying the petition and remanded the case

to the PCRA court “for a proper opinion which addresses

Appellant’s issues and the adequacy of counsel’s no-merit

letter.” See Resp., Ex. E, p. 10; Commonwealth v. Thomas, 816

A.2d 335 (Pa. Super. 2002)(table). On remand, the PCRA court

issued an opinion on December 16, 2002, specifically delineating

its reasons for dismissing the PCRA petition. See Resp., Ex. F. 

Petitioner filed an appeal in the Superior Court alleging the

following issues: (1) whether the incarcerated appellant filed a

timely notice of appeal pursuant to the prisoner mailbox rule;

and (2) whether the PCRA court committed reversible error by

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 5 of 34
6

adopting a defective no-merit letter, without any findings to

show an independent judicial review of the record was conducted

and without any explanation of the nature and grounds for the

[PCRA] court’s conclusions within its written opinion. See

Resp., Ex. G. The Superior Court concurred with the PCRA court’s

assessment of petitioner’s issues, but differed as to the PCRA

court’s statements regarding two of petitioner’s allegations of

error where the court stated that counsel was ineffective but

petitioner was unable to prove prejudice. The Superior Court

stated that: 

[w]e recognize counsel cannot be deemed ineffective

until Appellant proved there was arguable merit to his

underlying claim, the course counsel had chosen had no

reasonable basis designed to effectuate his interests,

and Appellant demonstrated prejudice caused by

counsel’s acts or omissions. See Knighten, supra. 

Nevertheless, the PCRA court’s conclusions are correct

and, therefore, we agree with its disposition. 

Accordingly, we affirm the order of PCRA court on the

basis of that opinion.

Id. at 8. Petitioner filed another pro se PCRA petition on

October 3, 2003. Judge Savitt dismissed this petition as

untimely on November 17, 2003. Petitioner appealed to the

Pennsylvania Superior Court, which affirmed the dismissal of the

petition as untimely on December 10, 2004. See Resp., Ex. H;

Commonwealth v. Thomas, No. 51 EDA 2004 (Pa. Super. 2004). 

On November 17, 2003, Petitioner filed the instant pro

se Petition containing the following claims: (1) the evidence at

trial was insufficient to support a guilty verdict as to all

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 6 of 34
7

charges; (2) the prosecutor committed misconduct when he (a)

vouched for the credibility of a witness, and (b) withheld a

witness statement; (3) the trial court erred when it allowed the

admission of prejudicial testimony in the form of two

Philadelphia police detectives to read into evidence statements

made by the victim concerning two unrelated homicides; (4) the

trial court erred when it allowed the admission of prejudicial

testimony of a crisis intervention worker regarding a cooperating

co-defendant; and (5) trial counsel was ineffective because he

(a) failed to object to the testimony of the medical examiner who

allegedly was not properly qualified as an expert, (b) failed to

ask for a corrupt source instruction, (c) labored under an actual

conflict of interest, and (d) failed to object to witness

statements regarding the veracity of a co-defendant. 

This case was referred by the Honorable James Knoll

Gardner for preparation of a Report and Recommendation. 

Respondents contend that, because Petitioner did not raise many

of these claims at every level of the state courts, they are

defaulted and unreviewable. They also claim that Petitioner has

not established cause and prejudice to excuse the default of his

claims, and the claims are without merit. Each claim is

hereafter addressed. 

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 7 of 34
8

III. DISCUSSION. 

 A. Petitioner’s Challenge to the Sufficiency of the 

 Evidence.

Petitioner’s first claim is that the evidence at trial

was insufficient to support a guilty verdict as to all charges

against him. This claim was presented in the state court. Judge

Savitt, in his July 29, 1994 opinion denying Petitioner’s posttrial motion for a new trial, stated:

 Finally all defendants argue that the evidence was

insufficient to support the verdict, the verdict was

against the evidence and the verdict was contrary to

law.

 The test for sufficiency of the evidence is

whether, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner and

drawing all proper inferences favorable to the

Commonwealth, the jury could reasonably have determined

the elements of the crime to have been established

beyond a reasonable doubt. Commonwealth v. Porter, 524

Pa. 162, 569 A.2d 942 (1990), cert. denied, 111 S.Ct.

307 (1990); Commonwealth v. Hardcastle, 519 Pa. 236,

546 A.2d 1101 (1988), cert. denied, 110 S.Ct. 1169

(1989).

 Viewing the evidence in the case at bar in the

light most favorable to the Commonwealth, it is clear

that it was sufficient to sustain the defendant’s

conviction for First Degree Murder, Retaliation Against

a Witness, Possessing an Instrument of a Crime and

Conspiracy. There is no merit to defendants’ claim

that the evidence against them was not sufficient.

. . . . 

The record in the instant case discloses that the

convictions are sustained by the weight of the

evidence. Therefore, the defendants’ request for a new

trial on this ground is without merit.

Resp., Ex. A, Ex. A, pp. 11-12. Petitioner appealed this

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 8 of 34
9

decision to the Superior Court. The Superior Court stated in its

June 12, 1997 decision:

 Appellant’s first contention is that the evidence

was insufficient to sustain his convictions. “‘The law

is settled in this Commonwealth that in reviewing the

sufficiency of the evidence, the appellate court is

required to review all the evidence and all reasonable

inferences drawn therefore in the light most favorable

to the Commonwealth, . . . [as verdict winner] .” 

Commonwealth v. Earnest, 386 Pa. Super. 461, 563 A.2d

158, 159 (1989)(citation omitted). “The test is

whether the evidence, thus viewed, is sufficient to

prove guilt beyond a reasonable doubt.” Commonwealth

v. Favinger, 358 Pa. Super. 245, 516 A.2d 1386, 1388

(1986)(citation omitted). Although a conviction must

be based on “more than mere suspicion or conjecture,

the Commonwealth need not establish guilt to a

mathematical certainty.” Commonwealth v. Badman, 398

Pa. Super. 315, 580 A.2d 1367, 1372 (1990)(citation

omitted).

. . . . 

 The Commonwealth argues that appellant has waived

his allegations regarding the sufficiency of the

evidence. We agree with the Commonwealth that

appellant has waived his allegations regarding the

sufficiency of the evidence to support his convictions

for first degree murder, retaliation against a witness

and criminal conspiracy. Appellant has not developed

these claims properly in the argument portion of his

appellate brief as the rationale supplied to this Court

consists solely of the statutory language defining each

offence and a single conclusory statement that the

evidence was insufficient. Commonwealth v. Garcia, 443

Pa. Super. 414, 661 A.2d 1388 (1995)(undeveloped claim

of prosecutorial misconduct which was not supported by

proper argument was waived). Appellant made no

specific claim in addressing the sufficiency of the

evidence. “We have noted repeatedly that the mere

assertion of error, without elaboration, will not be

addressed.” Commonwealth v. Holmes, 444 Pa. Super.

257, 663 A.2d 771, 773 (1995)(citations omitted). 

Appellant also has not referred us to any relevant

authority in support of his positions. Garcia, supra. 

“This Court has held that the argument section of an

appellant’s brief must include relevant discussion of

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 9 of 34
10

points raised along with citations to pertinent

authorities.” Commonwealth v. Zewe, 444 Pa. Super. 17,

663 A.2d 195, 199 (1995)(citation omitted). “It is not

this Court’s function or duty to become an advocate for

the appellant.” Commonwealth v. Birdseye, 432 Pa.

Super. 167, 637 A.2d 1036, 1043 (1994), aff’d, 543 Pa.

25, 670 A.2d 1124 (1996). As this was an extremely

lengthy and complicated trial consisting of twelve days

of testimony and argument, producing a 2000 page trial

record, appellant’s failure to comply with the rules

impedes our ability to review his claims of

insufficiency with regard to murder, conspiracy and

retaliation, and, therefore, we will not address the

merits of his contentions. Commonwealth v. Boyd, 451

Pa. Super. 404, 679 A.2d 1284 (1996).

 However, we find that appellant has stated a

specific claim with regard to the sufficiency of the

evidence supporting his conviction for possession of an

instrument of crime, and, therefore, we find that this

claim has not been waived. Appellant claims that the

evidence was insufficient to support his conviction

because a baseball bat is not an instrument of crime. 

We agree.

. . . . 

 Here, we find that three of the four elements have

been established beyond a reasonable doubt. The

Commonwealth proved that appellant possessed the

baseball bat under circumstances not manifestly

appropriate for lawful use with the intent to employ it

criminally. However, we find that the Commonwealth

failed to offer evidence proving that the baseball bat

was commonly used for criminal purposes. Regarding

this particular issue, in its appellate brief, the

Commonwealth argues that “a jury in an urban setting

such as Philadelphia County would be hard-pressed to

view the criminal use of baseball bats as an

aberration.” Clearly, such a general allegation is

insufficient. Simply put, the Commonwealth offered no

evidence regarding the frequency baseball bats were

used in assault as compared to all assaults, and,

therefore the court was unable to determine that a

significant proportion of assaults involved baseball

bats. Absent this evidence, the Commonwealth’s

contention that the baseball bat was “commonly used for

criminal purposes” is conjecture. Accordingly, we find

that the Commonwealth failed to offer sufficient

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 10 of 34
11

evidence to prove beyond a reasonable doubt that

appellant possessed an instrument of crime.

Resp., Ex. A, Ex. B, pp. 2, 4-5, 7. Petitioner’s second courtappointed PCRA counsel examined the issue of sufficiency of the

evidence in her Finley letter to the court. Counsel stated that:

 A ruling on a post trial motion for a new trial

based on insufficient evidence is within the sole

discretion of the trial court. The Superior Court will

overturn a jury verdict on the basis of insufficient

[sic] of evidence only when the finding of guilt is

based on conjecture and is so unreliable and/or

contradictory as to shock the conscience of the court. 

Commonwealth v. Harrison, 290 Pa. Super. 389, 434 A.2d

808 (1981).

 Moreover, the Supreme Court has stated that: “On

appellate review of a criminal conviction we will not

weigh the evidence and thereby substitute our judgment

for that of the finder of fact. To do so would require

an assessment of the credibility of the testimony and

that is clearly not our function.” Commonwealth v.

Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982).

Resp., Ex. C, pp. 6-7. The PCRA court explained in its December

16, 2002 opinion that:

 The Superior Court in considering defendant’s

appeal held, “ . . . appellant’s failure to comply with

the rules impedes our ability to review his claims of

insufficiency with regard to murder, conspiracy and

retaliation, and therefore, we will not address the

merits of his contentions.” However, this Court did

consider the issue when raised in post-verdict motions. 

Appellate counsel may have been ineffective for failing

to preserve the issue of sufficiency, but the defendant

suffered no prejudice since the evidence was sufficient

to sustain the convictions.

Resp., Ex. F, p. 5. The Superior Court affirmed the PCRA court’s

assessment of petitioner’s issues. Resp., Ex. G. Respondents

note that this claim was reviewed by both Judge Savitt and the

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 11 of 34
12

Pennsylvania Superior Court, and both found that the evidence

presented was sufficient to support Petitioner’s convictions

because it sufficiently established specific intent to kill and

disproved self-defense beyond a reasonable doubt.

 Nonetheless, Petitioner, in the midst of this

sufficiency of the evidence argument, presents a self-defense

argument and states that the Superior Court’s findings were

flawed because: (1) he never provoked the altercation; (2) the

medical examiner was unclear about the order of each shot fired

on the decedent, and therefore the prosecution did not establish

that Petitioner stood over decedent, shooting him repeatedly; (3)

the bullet casings on the street were proof that the decedent

fired at Petitioner; (4) Petitioner testified that he thought he

saw the decedent draw a gun on him; and (5) even if the decedent

was unarmed, it is reasonable to fear for one’s life even when an

assailant is unarmed. Petitioner claims that the evidence, at

the very most, established a shooting that “erupted from an

intense and physical confrontation unprovoked by the

[Petitioner]. Thus, the evidence proving [sic] by the

Commonwealth established nothing more than voluntary

manslaughter.” Mem. Law in Supp. Pet. at 20-21. Petitioner

supports his argument only with the statement that “at trial the

Commonwealth failed to prove each and every element of the

charges and therefore Petitioner’s conviction is constitutionally

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13

invalid.” Pet. at 9. 

At trial, it was established that Petitioner struck the

victim’s head twice with a baseball bat, causing multiple

fractures, bruising, and lacerations to the brain. Under

Pennsylvania law, this was sufficient to allow the jury to infer

that Petitioner possessed the specific intent to kill necessary

for a first-degree murder conviction. Commonwealth v. Terry, 513

Pa. 381, 409-410, 521 A.2d 398, 412 (1987), cert. denied, 482

U.S. 920 (1987)(appellant’s act of repeatedly striking victim on

head with baseball bat sufficient to convict of first degree

murder; jury could infer specific intent to kill from use of

deadly weapon on vital part of body). Thus, there was ample

evidence to convict Petitioner of first degree murder. 

Under Pennsylvania law, the necessary elements for a

conviction of retaliation against a witness are that Petitioner

harmed the victim “by any unlawful act in retaliation for

anything lawfully done in the capacity of the witness. . . .” 

See 18 Pa. C.S.A. § 4953(a). At trial, the prosecution

established that the victim was a witness in two unrelated murder

cases and gave statements to police implicating Petitioner’s

friends. Evidence also established that Petitioner willingly

participated in the unlawful killing of the victim in retaliation

for the victim’s telling police that friends of Petitioner and

his co-defendants had committed the two unrelated murders. 

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 13 of 34
14

Testimony at trial also established that Petitioner and his codefendants lured the victim to co-defendant Harris’ home, where

Petitioner hit him in the head with the bat, and co-defendant

Stokes slit his throat with a machete. The victim pleaded for

his life, and Petitioner told him that he should have thought

about that before becoming a snitch. Stokes made statements

before, during, and after the killing indicating the victim was

killed because he told the police about the two murders he

witnessed. Thus, the prosecution established the necessary

elements for a conviction of retaliation against a witness. 

With respect to Petitioner’s conspiracy conviction, the

prosecution was required to prove “a common understanding, no

matter how it came into being, that a particular criminal

objective be accomplished.” Commonwealth v. Gibson, 447 Pa.

Super. 132, 136, 668 A.2d 552, 555 (1995)(quoting Commonwealth v.

Volk, 298 Pa. Super. 294, 300, 444 A.2d 1182, 1185 (1982)). At

trial, it was established that after the victim gave statements

to police implicating Petitioner’s friends in two prior murders,

co-defendant Stokes warned people to stay away from the victim

and told Hassan Bilal that the victim had to be killed because he

snitched on their friends. Petitioner then helped Stokes and

Bilal lure the victim to co-defendant Harris’ house where

Petitioner struck him in the head with the baseball bat, and

Stokes slit his throat while Petitioner cheered him on. As

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 14 of 34
15

Respondents correctly note, the jury could readily conclude from

these facts presented at trial that Petitioner, Stokes, and

Harris entered into an agreement to kill the victim in

retaliation for his giving statements to the police regarding the

two homicides. Once sufficient evidence was presented to

implicate Petitioner in the conspiracy, Petitioner was also

responsible for the actions of his co-conspirators because their

actions were accomplished in furtherance of the common design,

the killing of the victim. See Commonwealth v. Baskerville, 452

Pa. Super. 82, 93, 681 A.2d 195, 201 (1996), alloc. denied, 547

Pa. 723, 689 A.2d 230 (1997). 

The relevant question in this analysis is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. For

the foregoing reasons, Petitioner has not met this standard for

any of the crimes for which he was convicted. Thus, this claim

should be denied.

 B. Petitioner’s Prosecutorial Misconduct Claims.

Petitioner’s next claims are that the prosecutor

committed misconduct when he: (a) vouched for the credibility of

a witness, and (b) withheld a witness statement. Respondents

contend that these claims are meritless.

 1. Petitioner’s Claim That The Prosecutor Committed

 Misconduct By “Vouching” For the Credibility of 

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 15 of 34
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 A Commonwealth Witness.

Petitioner’s first prosecutorial misconduct claim is

that the prosecutor improperly vouched for the credibility of a

prosecution witness, Hassan Bilal (“Bilal”), when he stated that

Bilal was “marginally responsible” for the death of Anthony

Vaughn, the victim in this case. Respondents argue that this was

not vouching, but was merely a response to defense counsel’s

attacks on Bilal’s credibility made in defense counsel’s closing

argument. In that closing, defense counsel repeatedly argued

that Bilal was a liar who fabricated a story implicating

Petitioner and his co-defendants in the Vaughn murder to obtain a 

favorable deal from the prosecution. (N.T., 3/11/93, pp. 21-23,

47, 50-51, 58, 68, 70-71, 73, 103-108.) 

In United States v. Walker, 155 F.3d 180 (3d Cir.1998),

the Third Circuit extensively reviewed case law regarding

vouching and set forth two criteria that must be met to find

vouching: “(1) the prosecutor must assure the jury that the

testimony of a Government witness is credible; and (2) this

assurance is based on either the prosecutor’s personal knowledge,

or other information not contained in the record.” U.S. v.

Brennan, 326 F.3d 176, 183 (3d Cir. 2003)(citing Walker, 155 F.3d

at 187). In addition, the defendant “must be able to identify as

the basis for [the prosecutor’s comment on witness credibility]

explicit or implicit reference to either the personal knowledge

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 16 of 34
17

of the prosecuting attorney or information not contained in the

record.” Id.

Following defense counsel’s statement that Bilal was

lying to get a favorable plea agreement, the prosecutor argued

that Bilal’s plea agreement permitted him to plead guilty to

third degree murder, not first degree murder, as follows:

 It doesn’t say he’s walking out of jail tomorrow. 

It doesn’t say, if he does whatever the Commonwealth

wants him to do, he’ll be free, and it’s all over. 

It’s up to the Judge, that’s what an open plea means. 

It means there’s no deal. The only thing is, he didn’t

plead guilty to first degree murder.

 And the reason he didn’t plead guilty to first

degree murder is, he wasn’t responsible for first

degree murder. He helped lure Vaughn there, no

question about it. But he, unlike these three people

who sit before you, was not an active participant. He

didn’t hit him. He didn’t slice his neck. He didn’t

tie him up. He didn’t laugh about it.

 And he bears responsibility, because he knew it

was going to happen. And he plead guilty to Third

Degree Murder and Criminal Conspiracy.

. . . .

 . . . Hassan Bilal knew that something might very

well happen to Anthony Vaughn. And he is marginally

responsible for what happened to Anthony Vaughn. And

he plead guilty to third degree murder and criminal

conspiracy.

(N.T. 3/11/93, pp. 135, 173.) The trial court examined and

rejected Petitioner’s current vouching argument in its postverdict decision when it said:

 Improper bolstering or vouching for witnesses by

the prosecutor occurs in two situations; one, when the

prosecutor places the prestige of the government behind

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 17 of 34
18

the witness and two, when the prosecution indicates

that information that is not before the jury supports

the witness’ testimony. Commonwealth v. Hartey, 424

Pa. Super. 29, 621 A.2d 1023 (1993); Commonwealth v.

Reed, 300 Pa. Super. 224, 446 A.2d 311 (1982).

 Defendant relies on Commonwealth v. Bricker, 525

Pa. 362, 581 A.2d 147 (1990) for the proposition that

the trial counsel was ineffective for permitting the

Commonwealth to bolster the testimony of Hassan Bilal

by its references to his plea agreement, in particular,

to the requirement that he tell the truth. Defendant’s

reliance on Bricker is inapposite. In Bricker the

actual documents setting forth the terms and conditions

of the plea agreements including that the witness

“provide complete and truthful information . . . to the

Commonwealth of Pennsylvania and testify as required”,

were sent out with the jury. The documents further

provided that not providing truthful information or

giving a knowingly false statement would result in

prosecution for perjury. The documents were signed by

the United States Attorney, the District Attorney, the

Attorney General for the Commonwealth of Pennsylvania,

the defendants and their attorneys. The Bricker court

concluded that these signed documents placed the

prestige of the government behind the witnesses

impermissibly bolstering the credibility of their

testimony.

 In the case at bar neither saw the plea agreement

nor heard its text. The terms of the plea agreement

that the witness testified truthfully were referred to

only twice by the prosecutor, once in his opening and

once in his closing. In doing so the prosecutor did

not place the prestige of the government behind the

witness and therefore, did not improperly bolster the

credibility of his testimony. Trial counsel was not

ineffective for not objecting to these references and

defendant is not entitled to a new trial on this basis.

 Defendant Harris alleges that the prosecutor, in

his closing argument, stated that Commonwealth witness

Bilal was not guilty of first degree murder as a matter

of law and that trial counsel was ineffective for not

objecting to this statement. There is no merit to this

argument because that is not what the prosecutor said. 

. . . . 

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 18 of 34
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 This is a true and correct statement of Bilal’s

involvement in the crime based on the evidence elicited

from Bilal’s testimony and was properly admitted. 

Trial counsel cannot be deemed ineffective for failing

to object to the prosecutor’s proper argument.

Resp., Ex. A, Ex. A, pp. 8-10. The trial court carefully

instructed the jury how to assess credibility, emphasizing that

the arguments of counsel were not evidence and that it was up to

the jury to decide issues of credibility. (N.T., 3/12/93, pp.

26-29, 34-36, 37, 45-46.) Pursuant to Weeks v. Angelone, 120

S.Ct. 727, 733 (2000), the jury must be presumed to have followed

the trial court’s instructions. Because all of the contested

statements by the prosecutor were based on evidence which had

been presented, Petitioner’s vouching argument should be denied.

 2. Petitioner’s Claim That the Prosecutor Committed

 Misconduct By Withholding a Witness Statement.

Petitioner’s second prosecutorial misconduct claim is

that the prosecution withheld a witness statement until the time

of trial, and Petitioner did not have adequate time to

investigate and prepare a proper defense. In his post-trial

motions, Petitioner’s co-defendant Stokes alleged that the

prosecution failed to call a witness who would have testified

that vials of crack were found by the victim’s body. Judge

Savitt addressed this issue in his December 16, 2002 decision:

The statement was from a witness who was not

called to testify. The witness could have

testified that crack vials were found near

the body of the decedent. When raised via

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post-verdict motions it was agreed that the

witness was available to both sides; that

there was ample testimony that the decedent

was involved in drug dealing; and therefore,

the testimony was cumulative and of no

significance regarding the defendant’s guilt

or innocence.

Resp., Ex. F, p. 7. In order to establish a violation under

Brady v. Maryland, 373 U.S. 83 (1963), a defendant must show that

(1) evidence was suppressed; (2) it was favorable to him; and (3)

it was material to guilt or punishment. Walker v. Lockhart, 763

F.2d 942, 957 (8th Cir. 1985), cert. denied, 478 U.S. 1020

(1986)(citing Moore v. Illinois, 408 U.S. 786, 794-795 (1972) and

Brady, 373 U.S. 83). Evidence is material if there is a

reasonable probability that if it had been disclosed to the

defense, the result of the proceeding would have been different. 

United States v. Bagley, 473 U.S. 667 (1985). A reasonable

probability is one that is sufficient to undermine confidence in

the outcome. Id. There is no Brady implication or violation here

because the witness statement was provided to defense counsel,

and the witness was available to both sides. Thus, the court and

counsel agreed that the statement was cumulative and not

exculpatory because other testimony was presented that the victim

was involved in drug dealing. This claim must therefore be

denied. 

 C. Petitioner’s Trial Court Error Claims.

Petitioner sets forth two trial court error claims. 

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First, Petitioner claims that the trial court erred when it

allowed two Philadelphia police detectives to read into evidence

two statements by the victim regarding the two previous homicides

committed by Petitioner’s friends. Second, Petitioner contends

that the trial court erred in allowing a crisis intervention

worker to testify regarding prosecution witness Bilal. 

 

 1. Whether the Trial Court Erred in Allowing the 

 Victim’s Statements to Be Read into Evidence By 

Philadelphia Police Detectives.

Petitioner’s first claim is that the trial court erred

in allowing two Philadelphia police detectives to read into

evidence statements provided by the victim regarding two prior

and unrelated homicides. Petitioner raised this issue in the

state court, but only as an error of state law, not as an error

of constitutional proportion. The statements which were read

into evidence did not implicate Petitioner in the prior

homicides. The trial court, in its post-trial decision, stated:

 Defendant[s] Stokes and Harris argue

that the court erred in admitting two

statements of the victim Anthony Vaughn to

police. In those statements Vaughn stated

that he was an eyewitness to a shooting in a

bar and that a defendant in another crime

told him that he had done a shooting. None

of these defendants was implicated in a

crime by these two statements. These

statements were not hearsay as they were not

offered for the truth of the matter, but

only to show that Vaughn was a “snitch.” 

Furthermore, the court instructed the jury

that the statements were being offered not

for the truth of Vaughn’s statement, but to

show that he made them. Under these

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circumstances it is clear that the

statements were properly admitted.

Resp., Ex. A, Ex. A, p. 6. Because Petitioner did not present

this claim as a federal constitutional argument, this Court is

precluded from reviewing the claim on its merits. 

As Respondents correctly note, the only potential

federal constitutional claim which might arise from the state

court’s decision would be a due process claim. See Duncan v.

Henry, 513 U.S. 364 (1995)(stating if habeas petitioner claims

state court evidentiary ruling denied him due process of law, he

must have first raised due process claim in state court);

McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999)(stating state

law hearsay claim did not fairly present constitutional

confrontation issue to state courts). However, state court trial

rulings are not reviewable unless there is an error of

constitutional proportion, i.e., one which deprives a defendant

of fundamental fairness in his criminal trial. Crane v.

Kentucky, 476 U.S. 683, 689-690 (1996). In examining violations

of fundamental fairness, the United States Supreme Court advises

the reviewing court to determine only whether the action

complained of violates those fundamental conceptions of justice

that lie at the base of our civil and political institutions and

define the community’s sense of fair play and decency. Dowling

v. United States, 493 U.S. 342, 352-353 (1990). 

In the instant case, the testimony of the two

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detectives was directly relevant to Petitioner’s retaliation

conviction because it established that the victim was a witness

in other homicide cases when he was killed. This information did

not, however, implicate Petitioner in the other two homicides. 

Moreover, the trial court instructed the jury that it could

consider only whether the victim had made these statements, and

not whether the information contained in the statements was true. 

(N.T., 3/3/93, p. 40.) Thus, Petitioner’s claim should be

denied.

 2. Whether the Trial Court Erred in Allowing into 

 Evidence Testimony of a Crisis Intervention 

Worker Regarding Prosecution Witness Bilal.

Petitioner next claims that the testimony of Major

Davis, a crisis intervention worker who worked with prosecution

witness Bilal, should not have been permitted by the trial court,

because such testimony improperly bolstered Bilal’s credibility. 

Respondents contend that this claim, like Petitioner’s prior

trial court error claim, was raised in the state court, but only

as an error of state law, not as an error of constitutional

proportion. Because Petitioner did not present this claim as a

federal constitutional argument, this Court is precluded from

reviewing the claim on its merits. Nonetheless, Respondents

argue that the evidentiary ruling at issue did not deprive

Petitioner of fundamental fairness and provides no basis for

federal relief.

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Respondents also contend that Petitioner’s assertion

that Major Davis’ testimony bolstered Bilal’s credibility is

belied by the record and wholly frivolous. Davis was a case

worker with Crisis Intervention from whom Bilal sought help, and

Davis was called by Stokes, once of Petitioner’s co-defendants,

as a defense witness to testify that Bilal had a bad reputation

for being a truthful person. (N.T., 3/10/93, p. 36.) On crossexamination, the prosecutor asked the circumstances of Davis’

interaction with Bilal, and the trial court ruled that Stokes’

attorney was permitted to explore this line of questioning on redirect examination. (Id. at 37-39, 49-51, 65-77.) Because the

prosecution opened the door to this line of questioning on crossexamination, the court reversed its prior decision that Stokes

could only call Davis as a character witness regarding the facts

surrounding his contact with Bilal. (N.T., 3/4/93, pp. 120-134;

N.T., 3/9/93, pp. 109-131; N.T., 3/10/93, pp. 40-48, 52-65.) 

However, the court prevented both sides from eliciting testimony

from Davis regarding his personal opinion of Bilal’s credibility.

Thus, Petitioner’s contention that Davis’ testimony bolstered

Bilal’s credibility is meritless.

The trial court, in its July 29, 1997 decision, stated:

 All three defendants argue that the

court erred in its ruling regarding the

testimony of Major Davis, a worker in Crisis

Interventions, concerning Commonwealth

witness Hassan Bilal. This argument has no

merit as none of the defendants was

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prejudiced by this ruling. When Davis was

called by the defense as a character

witness, the prosecutor questioned him about

Bilal’s involvement in Crisis Intervention,

thus opening the door to certain facts. 

Defense counsel were then permitted to

question the witness extensively about the

facts of Mr. Bilal’s involvement in Crisis

Intervention.

Resp., Ex. A., Ex. A, p. 6. PCRA counsel, in her Finley letter

to the court, examined this issue and wrote:

 Petitioners [sic] allegations are

without merit. Defense counsel called Major

Davis inter alia to support their claim that

Commonwealth’s main witness, Bilal,

exhibited a history of delusional and

paranoid behavior which was unsubstantiated

by actual circumstances. According to notes

of testimony from an in-chambers discussion

held on March 9, 1993, the trial judge

initially limited the testimony of Major

Davis to character testimony and his

reputation in the community as a truthful

person. (3/9/93, N.T. pgs. 109-113).

 During the course of the crossexamination of Major Davis, the prosecutor

opened the door to areas concerning Mr.

Bilal’s involvement with Major Davis at the

Crisis Prevention Center, which were areas

that defense counsel wanted to inquire into

anyway. At that time, the trial judge

reconsidered his previous ruling from March

9, 1993, and permitted Defense counsel to

inquire into Bilal’s effort to come to the

Crisis Intervention program. (3/10/93, N.T.

pages 40-49). Thus, there was no prejudice

to Defendant by the court’s previous ruling,

since the testimony was ultimately permitted

and defense counsel was permitted to

question the witness extensively about Mr.

Bilal’s involvement in crisis intervention.

 Moreover, the issue was litigated,

raised on appeal and rejected by the

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Superior Court in its memorandum opinion

dated June 12, 1997. “An issue may not be

relitigated merely because a new or

different theory is posited as a basis for

reexamining an issue that has already been

decided.” Commonwealth v. Senk, 496 Pa.

630, 437 A.2d 1218, 1220 (1981);

Commonwealth v. Tenner, 377 Pa. Super. 540,

547 A.2d 1194, 1197 (1988), appeal denied,

562 A.2d 826 (Pa. 1989). 

Resp., Ex. C., p 7. Because nothing in Major Davis’ testimony

could be construed as bolstering Bilal’s credibility, this claim

should be denied.

 D. Petitioner’s Ineffective Assistance of Trial Counsel 

 Claims.

Petitioner lastly contends that his trial counsel was

ineffective because he: (a) failed to object to the testimony of

the medical examiner who was not properly qualified as an expert;

(b) failed to ask for a corrupt source instruction; (c) labored

under an actual conflict of interest; and (d) failed to object to

witness statements regarding the veracity of a co-defendant. 

Petitioner only presented one of his ineffective assistance of

trial counsel claims to all levels of the state courts. 

1. Whether Trial Counsel Was Ineffective For Not 

 Objecting to the Testimony of the Medical 

Examiner Who Was Not Qualified As An Expert.

Petitioner claims that trial counsel was ineffective

for not objecting to the testimony of the medical examiner, Ian

Hood, M.D. Petitioner contends that his counsel should have

sought an offer of proof concerning Dr. Hood’s qualifications as

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a medical examiner. Judge Savitt, sitting as the PCRA court,

concluded that “Dr. Hood was, and is, a well qualified medical

examiner. An attack on his qualifications would have been an

effort in futility.” Resp., Ex. F., p. 4. Dr. Hood testified

that he had performed three thousand autopsies and had been

qualified many times in Pennsylvania courts as an expert in

forensic pathology. Thus, it is not surprising that defense

counsel did not want to bring added attention in the jurors’

minds to the doctor’s qualifications by cross-examining him

regarding those qualifications.

Counsel is never ineffective for failing to undertake

an arguably meritorious trial strategy. Strickland v.

Washington, 466 U.S. 668 (1984). Moreover, “[t]here can be no

Sixth Amendment deprivation of effective counsel based on an

attorneys’ failure to raise a meritless argument.” United States

v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)(citations omitted). 

Because the argument presented by Petitioner was meritless, his

trial counsel cannot be considered ineffective for failing to

raise it at the time of trial. Thus, this claim must be denied.

 2. Whether Trial Counsel Was Ineffective For 

 Failing to Request A Corrupt Source Jury 

Instruction.

Petitioner next claims that his trial counsel was

ineffective because he did not request a corrupt source jury

instruction. Respondents note that this claim is refuted by the

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record in this case. The trial court specifically instructed the

jury to view the testimony of an accomplice with caution “because

it comes from a corrupt and polluted source.” (N.T., 3/12/93,

pp. 34-35.) The court also instructed the jury to consider the

status of Bilal, who was awaiting sentencing for his role in the

murder of the witness at the time of Petitioner’s trial, as

showing his potential bias as a witness. (N.T., 3/12/93, pp. 35-

36.) Again, “[t]here can be no Sixth Amendment deprivation of

effective counsel based on an attorneys’ failure to raise a

meritless argument.” United States v. Sanders, 165 F.3d at 253

(citations omitted). Thus, this claim must be denied. 

3. Whether Trial Counsel Was Ineffective Because He

 Labored Under a Conflict of Interest.

Petitioner’s third ineffective assistance of trial

counsel claim involves an alleged conflict of interest. 

Petitioner claims that his trial counsel was ineffective because 

of his own legal problems. This claim was presented at the PCRA

level, and the court rejected it as meritless. Judge Savitt, who

was also the trial judge in this case, specifically stated that:

This is pure speculation by the defendant

which is not supported by the record. Trial

counsel’s representation was zealous and

there was no indication that counsel was

distracted or unable to perform his duties

as defense attorney adequately.

Resp., Ex. F, p. 3. Respondents again correctly note that vague,

conclusory allegations of ineffectiveness must be denied. 

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Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert.

denied, 502 U.S. 902 (1991). 

 

 4. Petitioner’s Claim That Trial Counsel Was 

 Ineffective Because He Failed to Object to 

the Testimony of Dr. Schwartzman.

Petitioner’s final ineffective assistance of trial

counsel claim is that counsel was ineffective for failing to

object to the testimony of Dr. Schwartzman, Bilal’s treating

psychiatrist, who stated that Bilal was “telling falsehoods.” 

 Dr. Schwartzman testified that Bilal had complained of

being tense and not being able to sleep. An examination revealed

that Bilal was alert and thinking clearly, and Dr. Schwartzman

prescribed medication to relieve his anxiety and to promote

sleep, although it was unclear if he ever actually took the

medication. Dr. Schwartzman testified that Bilal was not

suffering from any major mental illnesses such as schizophrenia

or manic depression, and he did not have any hallucinations or

delusions. (N.T., 3/2/93, pp. 36-47.) Dr. Schwartzman

characterized Bilal as having a mixed character disorder, which

he described as a pattern of maladaptive behavior, or an

inability to adapt to certain of life’s circumstances. (N.T.,

3/2/93, pp. 75-77, 104-105.)

During cross-examination, Petitioner’s co-defendant

Stokes asked whether one of the manifestations of a mixed

character disorder was the development of a pattern of lying, to

Case 2:03-cv-06273-JKG Document 17 Filed 04/29/05 Page 29 of 34
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which Dr. Schwartzman replied, “[c]ould be, yes.” (N.T., 3/2/93,

p. 114.) The trial court asked Dr. Schwartzman whether or not

telling untruths was a particular manifestation of Bilal’s mixed

character disorder. Dr. Schwartzman replied that he did not

think Bilal “was telling falsehoods.” (Id. at 115-116.) He also

testified that he received no indication that Bilal was lying to

him during treatment. (Id. at 116.) Thus, Respondents correctly

contend that Petitioner “completely mischaracterizes Dr.

Schwartzman’s answer to the court’s question and argues that such

response gave rise to an inference that the doctor believed

Bilal’s trial testimony. This contention is devoid of any

merit.” See Resp., p. 47. 

The trial court examined this issue in its July 29,

1994 opinion and stated:

 Defendants Harris and Thomas argue that trial

counsel was ineffective for not objecting to Dr.

Richard Schwartzmann’s alleged testimony that Bilal was

telling the truth. This argument has no merit. Dr.

Schwartzmann did not testify that Bilal was telling the

truth. At trial the court asked Dr. Schwartzmann

whether one of the manifestations of Bilal’s mental

illness was telling falsehoods and Dr. Schwartzmann

replied, “no, I don’t think he was telling falsehoods.” 

Thus, Dr. Schwartzmann did not testify that Bilal was

telling the truth, but only that his mental illness did

not manifest itself in telling falsehoods. Defendants

Thomas and Harris are not entitled to a new trial on

this basis. 

 Finally, there is no merit to the claim of all

three defendants that the court erred in limiting their

cross-examination of Dr. Schwartzmann concerning the

mental condition of Commonwealth witness Hassan Bilal. 

Counsel’s cross examination was not limited. Counsel

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cross examined Dr. Schwartzmann thoroughly and

completely. The only questions that were precluded

were those that were argumentative or which called for

speculation on the part of the witness.

See Resp., Ex. A, Ex. A, pp. 10-11. Petitioner presented this

issue to the Superior Court on direct appeal. The Superior Court

held that:

 Appellant’s final contention is that trial counsel

was ineffective for failing to object to Dr.

Schwartzman’s statement that he did not believe that

Hassan Bilal was “telling falsehoods.” Appellant

argues that Dr. Schwartzman invaded the province of the

jury because he made an improper credibility

determination of Bilal. Therefore, he argues trial

counsel was ineffective for failing to object to Dr.

Schwartzman’s statement. We disagree.

 In order to find counsel ineffective, it must be

demonstrated that the underlying claim is of arguable

merit, that counsel’s action or inaction has no

reasonable basis designed to serve the client’s

interest, and that trial counsel’s action or inaction

so prejudiced his client’s case that it is likely that

the result would have been different absent the errors. 

Commonwealth v. Smith, 539 Pa. 128, 650 A.2d 863

(1994), cert. denied, 115 S.Ct. 1799 (1995). 

 At trial, it was established that Bilal was

treated by the prison’s psychiatrist, Dr. Schwartzman. 

It was alleged that Bilal had a character disorder. 

During cross-examination, appellant’s co-defendant’s

counsel questioned Dr. Schwartzman about Bilal’s mental

condition. Specifically, the defense asked Dr.

Schwartzman whether people who suffer from a character

disorder tend to lie. Dr. Schwartzman indicated that

whether an individual with a character disorder would

lie depended on the particular individual and the type

of character disorder at issue. In order to clarify

defense counsel’s line of questioning, the trial court

asked Dr. Schwartzman whether Bilal’s mental illness

manifested itself in the telling of lies. Dr.

Schwartzman answered, “No, I don’t think that he was

telling falsehoods.” From this testimony, we cannot

conclude that Dr. Schwartzman’s statement was an

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improper statement concerning Bilal’s credibility. 

Rather, the doctor’s statement established that lying

was not a manifestation of Bilal’s character disorder. 

Accordingly, we find appellant’s contention to be

meritless. Moreover, we find that even if there was

merit to appellant’s contention, he has not

demonstrated that he was prejudiced. We fail to see

how Dr. Schwartzman’s isolated statement made during

twelve days of testimony so prejudiced the jury that

appellant is entitled to a new trial. Appellant has

failed to show that “but for” the failure of counsel to

object to Dr. Schwartzman’s statement there is a

reasonable probability that the result would have been

different. Commonwealth v. Crawley, 541 Pa. 408, 663

A.2d 676 (1995). Also, we note that the trial court

instructed the jury on numerous occasions that the jury

was solely responsible for determining the facts and

making credibility determinations. N.T. 3/12/93, pp.

3, 37, 43-44. “It is well-settled that juries can be

trusted to follow the trial court’s instructions.” 

Commonwealth v. Strickland, 306 Pa. Super. 516, 452

A.2d 844, 847 (1982). Accordingly, we cannot find that

trial counsel was ineffective on this basis.fn 

fnWe note that both appellant and his counsel

have filed a brief in this case. 

Appellant’s appellate counsel appended

appellant’s pro se brief to counsel’s own

brief. Counsel invites this Court to review

the pro se brief and consider the arguments

made therein. This we decline to do. It is

well-settled in this Commonwealth that an

appellant does not have a right to file a

pro se supplemental brief while that

appellant is represented by counsel. 

Commonwealth v. Rompilla, 539 Pa. 499, 653

A.2d 626 (1995); Commonwealth v. Ellis, 534

Pa. 176, 626 A.2d 1137 (1993). “We [have]

held that although an appellant has a clear

right to terminate representation prior to

the filing of an appeal, there is no

concomitant right to file a separate pro se

brief once appellate counsel has filed a

brief.” Rompilla, 653 A.2d at 629 n.8

(citation omitted)(emphasis in original). 

Accordingly, we will not address any of the

issues raised in appellant’s pro se brief.

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See Resp., Ex. A, Ex. B, pp. 9-10. Dr. Schwartzman was not

permitted to give opinion testimony regarding Bilal’s credibility

at trial. Instead, he responded to defense questioning regarding

whether Bilal’s mental disorder manifested itself in telling

lies. 

Credibility determinations were never taken out of the

jury’s hands. The trial court carefully instructed the jury that

it was solely the jury’s responsibility to determine the facts

and decide which witnesses’ testimony to believe, and that it was

up to the jury to decide issues of credibility. (N.T., 2/25/93,

pp. 11-12; N.T., 3/12/93, pp. 3, 37, 43-44.) Pursuant to Weeks,

120 S.Ct. at 733, the jury must be presumed to have followed the

trial court’s instructions.

Due to the trial court’s instructions and the fact that

Dr. Schwartzman’s remark about Bilal was a brief and isolated

one, it is unlikely that the doctor’s remark had any effect on

the outcome of the trial. Accordingly, “[t]here can be no Sixth

Amendment deprivation of effective counsel based on an attorneys’

failure to raise a meritless argument.” United States v.

Sanders, 165 F.3d 248, 253 (3d Cir. 1999)(citations omitted). 

Thus, Petitioner’s claim must be denied.

For all of the above reasons, I make the following:

RECOMMENDATION

AND NOW, this day of April, 2005, IT IS

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RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas

Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED

with prejudice and DISMISSED without an evidentiary hearing. 

There is no probable cause to issue a certificate of

appealability.

 BY THE COURT:

 ________________________________

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE

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