IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RODERICK JOHNSON, : CIVIL ACTION

: NO. 04-2835

Petitioner, :

:

v. :

:

LOUIS FOLINO, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. August 12, 2010

TABLE OF CONTENTS

I. BACKGROUND.................................................2

II. PROCEDURAL HISTORY.........................................5

III. APPLICABLE LAW.............................................7

A. Standard of Review....................................7

B. Ineffective Assistance of Counsel....................10

IV. DISCUSSION................................................12

A. Failure to Request Accomplice Liability Instruction..12

B. Failure to Object to Co-Conspirator Hearsay..........20

1. Confrontation Clause Violation..................27

2. Finding of Prejudice............................35

C. Failure to Object to Admission of “Other Bad Acts”

Evidence.............................................39

D. Cumulative Effect of All Errors......................44

V. CONCLUSION................................................45

Before the Court is Petitioner Roderick Johnson’s

(“Petitioner”) motion for habeas corpus pursuant to 28 U.S.C. §

2254. Petitioner’s original petition asserted five grounds for

relief. By way of Memorandum Opinion, the Court found that

Petitioner’s claim concerning the alleged failure of the
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Commonwealth to disclose Brady material was procedurally default

and unavailable for review. See Johnson v. Folino, 671 F. Supp.

2d 658 (E.D. Pa. 2009). Petitioner’s four remaining claims are

ripe for final adjudication. 

I. BACKGROUND

On July 14, 1998, Petitioner, was convicted of

first-degree murder and related charges in the Berks County Court

of Common Pleas with respect to the November 1, 1996 shooting

death of Jose Martinez (“Martinez”). (Petition for Writ of

Habeas Corpus ¶ 4.) On July 15, 1998, Petitioner was sentenced

to life imprisonment without parole. (Id.) The Commonwealth's

case relied heavily on testimony of three witnesses: George

Robles (“Robles”), Luz Cintron (“Cintron,” Robles' girlfriend)

and Mylta Velazquez (“Velazquez,” Petitioner's estranged

girlfriend). (Id. at ¶¶ 17-21.)

An abridged summary of the facts supporting

Petitioner’s conviction is as follows. At approximately 11:15

p.m. on November 1, 1996, Pearl Torres (“Torres”) observed two

men run across Schuykill Avenue in Reading, Pennsylvania. (Trial

Tr. 119, July 9, 1998.) One of the men, later found by the jury

to be Petitioner, was carrying a black semi-automatic handgun

which he used to shoot the other individual, Martinez. (Id.) 

After Martinez fell to the ground, Petitioner fired three shots
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into Martinez’s body, after which Torres saw Petitioner flee the

scene. (Id. at 119, 121-22.) 

Shannon Sanders (“Sanders”) testified that at the same

time on November 1, 1996, she was in the vicinity of the 300

block of Schuykill Avenue in Reading. (Id. at 228.) Sanders

testified that at this time she heard three gunshots, and

immediately after hearing the gunshots she observed an AfricanAmerican male run by her. (Id. at 230.) She testified that the

individual was in possession of a semi-automatic handgun. (Id.

at 231-32.) Sanders testified that when the individual ran by

her she heard him exclaim “yo, that motherfucker’s dead. You

know what I mean. I just killed him.” (Id. at 230.) 

Immediately after the exchange, the male fled the area. (Id. at

233.) Sanders testified that she could not identify Petitioner

as the individual that she observed during this exchange because

she did not get an adequate look at the individual’s face. (Id.) 

Robles testified that Petitioner showed up at his

residence at 428 Buttonwood Street at approximately midnight on

November 1, 1996, and was out of breath when he arrived. (Id. at

370.) Robles testified that Petitioner told him that “Yo, I just

killed this dude. I just killed this dude.” (Id. at 372.) 

Robles testified that Petitioner showed Robles a semi-automatic

handgun that Petitioner stated he had just used to shoot someone. 

(Id. at 372-74.) Petitioner told Robles that he and Richard
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Morales (“Morales”) had seen Martinez at a convenience store on

Schuykill Avenue, at which point Petitioner questioned Martinez

about a drug debt owed to Petitioner’s associate, Shawn Bridges. 

(Id. at 375-79.) Petitioner told Robles that Martinez fled on

Schuykill Avenue and that Petitioner and Morales pursued Martinez

in a van. (Id. at 376.) When Martinez crossed the intersection

of West Elm Street, Petitioner exited the van driven by Morales

and chased Martinez on foot. (Id. at 376-77.) Petitioner told

Robles that he fired several shots into Martinez’s body. (Id. at

376-78.) After recounting the event to Robles, Petitioner left

Robles’ residence. 

Robles testified that shortly after Petitioner’s

departure, Morales arrived at his residence. (Id. at 378.) 

Robles testified that Morales told him that he had driven

Petitioner in pursuit of Martinez on Schuykill Avenue and that

Petitioner shot Martinez. (Id. at 378-80.) Robles testified

that Morales also told him that after Petitioner shot Martinez,

Morales circled the block and returned to fire another gunshot

into Martinez’s body to “make sure he did the job right.” (Id.

at 380.) Cintron was present at Robles’ residence at the time of

this conversation and testified consistently as to the substance

of this conversation. 

Cintron testified that one to two days after the

shooting incident she entered the residence that she shared with
The Court's recitation of the complex and extensive 1

procedural history of Petitioner's case is based upon the

comprehensive February 25, 2008 memorandum opinion written by

Judge Ludgate of the Court of Common Pleas of Berks County.

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Robles and Tyhir Biggs (“Biggs”) at 428 Buttonwood Street in

Reading and overhead a conversation between Petitioner and Biggs. 

(Id. at 286.) Cintron testified that she overheard Petitioner

tell Biggs that he and Morales had confronted Martinez on

Schuykill Avenue and that Martinez became scared and ran away, at

which point Petitioner ran after him and shot him. (Id.) 

Cintron further testified that she overheard Petitioner tell

Biggs that he shot Martinez in the back. (Id. at 326.) 

Velazquez testified that approximately one to two days

after the incident, she and Petitioner were watching a news

broadcast that showed a story about Martinez’s murder. (Id. at

156, 162-68.) Velazquez testified that in response to the news

story, Petitioner asked her if he could trust her, at which point

he told her that he was the one who shot Martinez. (Id.) 

Petitioner went on to state to Velazquez that he was a “hitman”

and “that’s what he does.” (See id. at 158-59, 162-68, 177.)

II. PROCEDURAL HISTORY1

Petitioner filed a direct appeal of his sentence on

August 14, 1998. The Superior Court affirmed the verdict on July

15, 1999, and the Pennsylvania Supreme Court denied Petitioner's
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allowance of appeal on December 30, 1999.

On December 21, 2000, Petitioner filed his first

Petition for Post-Conviction Relief pursuant to 42 Pa.C.S.A. §

9543 (“PCRA”) and was denied relief on November 29, 2001. This

denial was affirmed by the Superior Court on January 8, 2003, and

the Pennsylvania Supreme Court denied Petitioner's further

request for relief on March 22, 2004. During the pendency of

appeal from his first PCRA petition, Petitioner filed a second

PCRA petition on September 12, 2003, which was later refiled on

April 13, 2004. Petitioner sought to supplement this second PCRA

petition with alleged Brady material, but the Court of Common

Pleas refused to grant this request and denied Petitioner's

second PCRA petition on September 22, 2004. The Court of Common

Pleas held that Petitioner's newly asserted Brady claim was

untimely under the PCRA statute and none of the statutory

exceptions were applicable. The Superior Court affirmed the

denial of this second PCRA petition on September 22, 2005.

During the interim in which Petitioner's first and

second PCRA petitions were under review by the Pennsylvania state

courts, Petitioner filed the instant habeas petition. Petitioner

filed the petition in this matter on June 25, 2004, and the Court

has accommodated Petitioner in several instances in staying

certain aspects of these proceedings in order to facilitate

exhaustion of Petitioner's state court petitions.
On November 23, 2009, the Court addressed Petitioner’s 2

Brady claim in the context of a motion by Petitioner for

additional discovery as to the Brady claim. Johnson, 671 F.

Supp. 2d at 669-72. In that Memorandum Opinion, the Court

determined that Petitioner’s Brady claim has been procedurally

defaulted and was unavailable for review, and thus Petitioner’s

motion for additional discovery was moot. See id. As

Petitioner’s Brady claim is unavailable for review, it is not

addressed in this Memorandum and will be dismissed along with the

remaining claims asserted in Petitioner’s habeas petition. 

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On June 19, August 2, and November 16, of 2007,

Petitioner filed his third, fourth, and fifth “protective” PCRA

petitions, respectively. These petitions were dismissed by the

Court of Common Pleas on December 6, 2007, again based upon the

untimeliness of the petitions. The Superior Court affirmed this

decision on January 22, 2009.

On November 23, 2009, this Court issued an Order and

Memorandum finding that Petitioner’s claim based on alleged Brady

violations was procedurally defaulted and unavailable for

review. The Commonwealth concedes that Petitioner’s remaining 2

four claims are exhausted and available for review. The Court

permitted the parties to submit supplemental briefing as to

Petitioner’s remaining claims for ineffective assistance of

counsel, which are now ripe for decision.

 

III. APPLICABLE LAW

A. Standard of Review

Federal courts are vested with jurisdiction over
28 U.S.C. § 2254(d) provides: 3

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim (1) resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding. 

Id. 

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petitions for writs of habeas corpus for a prisoner “in custody

pursuant to the judgment of a State court” in violation of the

United States Constitution. 28 U.S.C. § 2254(a). Pursuant to

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) a claim that is adjudicated on the merits in state

court is to be afforded deference by a reviewing federal court.

See 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254, as 3

amended by the AEDPA, the determinations of state courts are

entitled to considerable deference from federal courts. Duncan

v. Morton, 256 F.3d 189, 196 (3d. Cir. 2001). Section 2254(d)

precludes federal habeas relief as to:

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

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

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court interpreted these two

prongs in Williams v. Taylor, and stated the following:

Under the “contrary to” clause, a federal habeas court

may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing

legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the

prisoner's case.

529 U.S. 362, 412-13 (2000). 

In order to determine whether a state court's

application of federal law is “unreasonable,” a court must apply

an objective standard, such that the relevant application “may be

incorrect but still not unreasonable.” Duncan, 256 F.3d at 196

(citing Williams, 529 U.S. at 409-10). The test is whether the

state court decision “resulted in an outcome that cannot

reasonably be justified [under existing Supreme Court

precedent].” Matteo v. Superintendent, SCI Albion, 171 F.3d 877,

891 (3d Cir. 1999) (en banc). A petitioner is required to do

more than simply show that his proposed interpretation of the

relevant precedent is “more plausible;” rather it is necessary to

demonstrate that the precedent “requires a contrary outcome.” 

Id. A petitioner is not entitled to habeas relief “solely on the

basis of simple disagreement with a reasonable state court
The text of section 2254(e)(1) provides: 4

In a proceeding instituted by an application for a writ

of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and

convincing evidence.

Id. 

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interpretation of the applicable precedent.” Id.

With regard to the factual findings of a state court,

courts are instructed to apply a presumption of correctness which

can only be overcome by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1); Duncan, 256 F.3d at 196. This presumption 4

applies equally to factual determinations rendered by state trial

and appellate courts. Duncan, 256 F.3d at 196. This presumption

of correctness has been extended to implicit factual findings of

state courts as well. See Campbell v. Vaughn, 209 F.3d 280,

285-86 (3d Cir. 2000) (noting that the Supreme Court interpreted

this statute and “held that an implicit finding of fact is

tantamount to an express one, such that deference is due to

either determination”) (citing Parke v. Raley, 506 U.S. 20, 35

(1992)).

B. Ineffective Assistance of Counsel 

Determination of ineffective assistance of counsel

claims are governed by the familiar two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Shelton v.
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Carroll, 464 F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v.

Smith, 539 U.S. 510, 521 (2003)). In the context of the AEDPA,

the Strickland test qualifies as “clearly established Federal

law, as determined by the Supreme Court.” Williams, 529 U.S. at

391. In order to satisfy Strickland, a habeas petitioner must

demonstrate that: (1) counsel's representation fell below an

objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's error, the result

would have been different. 466 U.S. at 687; Knowles v.

Mirzayance, 129 S. Ct. 1411, 1420 (2009) (explaining that to

establish ineffective assistance of counsel, a defendant “must

show both deficient performance and prejudice.”) (citation

omitted). For the deficient performance prong, “[t]he proper

measure of attorney performance remains simply reasonableness

under prevailing professional norms.” Strickland, 466 U.S. at

688. This standard of review is deferential. Id. 

Even where the errors committed by counsel were

unreasonable, the habeas petitioner must still show deficient

performance, i.e., prejudice. See Rainey v. Varner, 603 F.3d

189, 197-98 (3d Cir. 2010). “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
The Court’s November 23, 2009 Memorandum disposed of 5

Petitioner’s claim based on a Brady violation asserted in his

habeas petition. See Johnson, 671 F. Supp. 2d at 669-72. 

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outcome.’” Id. (quoting Strickland, 466 U.S. at 694).

IV. DISCUSSION

Following the Court’s finding that Petitioner’s claim

with respect to the Brady issue is unavailable for federal habeas

review, Petitioner’s habeas corpus petition asserts four

remaining claims concerning ineffective assistance of counsel:

(1) failure to request accomplice liability instruction; (2)

failure to object to co-conspirator hearsay; (3) failure to

object to admission of “other bad acts” evidence; and (4)

cumulative error. Each of these claims is addressed in turn. 5

A. Failure to Request Accomplice Liability Instruction

Petitioner asserts that his trial counsel erred by

failing to request an instruction on accomplice liability

consistent with the Pennsylvania Supreme Court’s decision in

Commonwealth v. Huffman, 638 A.2d 961 (Pa. 1994). In Huffman,

the Pennsylvania Supreme Court held that an instruction as to

accomplice liability was a harmful error because it did not

specifically instruct that in order for a defendant to be found

guilty of first degree murder, he himself must have had the

specific intent to kill. Id. at 963-64. 

Petitioner contends that the failure to request an
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accomplice liability instruction represents error because in

order for him to be found guilty of murder he must have had the

specific intent to kill, and because the trial court failed to

instruct the jury that this specific intent to kill cannot be

imputed to him based on Morales’ actions. In other words,

Petitioner argues that if the jury was presented with an

accomplice liability instruction, it could have elected to find

that only Morales had a specific intent to kill and would have

made clear that Morales’ intent to kill cannot be transferred to

him. 

The Pennsylvania Superior Court addressed Petitioner’s

argument and found that the failure of Petitioner’s counsel to

request an accomplice instruction did not constitute ineffective

assistance of counsel. In accordance with § 2254(d) and the

Supreme Court’s decision in Williams v. Taylor, this conclusion

must be reviewed to determine whether it is (1) “contrary to” or

an “unreasonable application” of established Federal law; or (2)

an unreasonable determination of the facts based on the evidence

presented. See 28 U.S.C. § 2254(d); Duncan, 256 F.3d at 196. 

The Superior Court’s conclusion that counsel was not

ineffective was based on the finding that the evidence presented

did not provide a basis to request an accomplice liability

instruction, i.e., counsel cannot be ineffective for failure to

raise a meritless issue. The Superior Court’s conclusion was
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based on the fact that sufficient evidence of record established

that Petitioner acted as a principal, rather than an accomplice,

in Martinez’s homicide. The Superior Court reasoned: 

The evidence adduced at trial established that the victim

suffered four separate gunshot wounds, three in the head

and one in the arm. Expert testimony established that

two of the gunshot wounds to the head, one in the back of

the head and one in the front of the head, were fatal.

The evidence further established that appellant shot the

victim three times, then fled on foot. Morales circled

the block in his van and then fired another shot. In

light of this evidence, at least one shot fired by

appellant had to have been fatal.

Commonwealth v. Johnson, No. 15 MDA 2002, at *6 (Pa. Super. Ct.

Jan. 8, 2003). Thus, the Superior Court concluded that since the

evidence presented did not warrant an accomplice liability

instruction, it could not have been error for trial counsel to

fail to request one. Id. 

First, Petitioner claims that this conclusion was

contrary to established Federal law on the basis that when a jury

returns a general verdict of guilty, a court cannot presume that

a jury relied on the theory of the case accepted by the court. 

In support of this proposition, Petitioner cites to Sandstrom v.

Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471 U.S.

307 (1985). These cases are inapposite to the issue presented by

Petitioner. Both Sandstrom and Franklin address the situation

where a jury was presented with a mandatory presumption

concerning criminal liability, and stand for the general

principle that when a case is submitted to the jury on
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alternative theories, the unconstitutionality of any of the

theories requires that the conviction be set aside. See

Sandstrom, 442 U.S. at 526 (collecting cases); see also Stromberg

v. California, 283 U.S. 359, 367-69 (1931) (establishing that

when there exists a reasonable possibility that the jury relied

on an unconstitutional understanding of the law in reaching a

guilty verdict, that verdict must be set aside). 

Defendant further cites to the Third Circuit’s decision

in Laird v. Horn, 414 F.3d 419 (3d Cir. 2005), in support of his

argument that the Pennsylvania Superior Court erred in failing to

give the accomplice liability instruction. Laird is

distinguishable from the instant case. In Laird, the Third

Circuit found that it was reversible error for the trial court to

give a general accomplice liability instruction that a defendant

could be guilty as an accomplice without specifying that the

accomplice need to have the specific intent to kill in order to

be found guilty of first degree murder. There, the Third Circuit

rejected the Commonwealth’s argument that “the jury understood an

‘accomplice’ to first-degree murder must have the specific intent

to kill required for a conviction of that crime.” Id. at 426. 

In contrast, the instruction given here (as set forth below) did

not give a misleading instruction that an accomplice could be

convicted of first degree murder without a specific intent to

kill. Petitioner fails to articulate how the holding in Laird
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applies to the instant case.

The Commonwealth responds that the Pennsylvania

Superior Court’s conclusion was not contrary to Federal law

because the jury instruction given needed only to conform to the

evidence presented, and that here, the evidence of record

demonstrated that Petitioner acted as a principal, and not an

accomplice, in Martinez’s murder. 

 Petitioner’s contention that an unconstitutional jury

instruction cannot be absolved based on a court’s finding that

the jury may not have relied upon the unconstitutional

instruction in adjudicating guilt is correct as a general

principle. Petitioner fails to recognize, however, that his

reliance on this general principle is misplaced here. In this

case, the Superior Court did not provide an unconstitutional

instruction on accomplice liability and then provide some post

hoc reasoning that the jury did not rely on the infirm

instruction. Rather, the Pennsylvania Superior Court correctly

examined whether there was a basis for the accomplice liability

instruction in the first instance. The relevant question is

whether the instruction given conforms with the evidence

presented at trial.

Here, the Pennsylvania Superior Court clearly

articulated the standard for an accomplice jury instruction and

the factual basis for its conclusion that such an instruction was
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not warranted under the circumstances. 

Regardless of whether a request for a specific

instruction is made by a party, a trial court is obligated to

charge the jury in a manner supported by the evidence. See

Commonwealth v. Harper, 660 A.2d 596, 598 (Pa. Super. Ct. 1995)

(citing Commonwealth v. Donahue, 630 A.2d 1238, 1247 (Pa. Super.

Ct. 1993) and Commonwealth v. Danzy, 310 A.2d 291 (Pa. Super. Ct.

1973)). When reviewing a challenge to jury instructions, the

reviewing court must consider the charge as a whole to determine

if the charge was inadequate, erroneous, or prejudicial. 

Commonwealth v. Wright, 961 A.2d 119, 145 (Pa. 2008);

Commonwealth v. Carson, 913 A.2d 220, 255 (Pa. 2006). “The trial

court has broad discretion in phrasing its instructions, and may

choose its own wording so long as the law is clearly, adequately,

and accurately presented to the jury for its consideration.”

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990). A

new trial is required on account of an erroneous jury instruction

only if the instruction under review contained fundamental error,

misled, or confused the jury. Wright, 961 A.2d at 145. 

Under Pennsylvania law, first-degree murder requires

the specific intent to kill, and that mens rea is also required

of accomplices and co-conspirators. See 18 Pa. C.S. § 2502(a);

Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997) (citing Huffman,

638 A.2d 961). Accomplice liability requires evidence that the
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person: (1) intended to aid or promote the substantive offense;

and (2) actively participated in that offense by soliciting,

aiding, or agreeing to aid the principal. Commonwealth v. Rega,

933 A.2d 997, 1014 (Pa. 2007). In contrast, a principal is the

perpetrator who actually commits the crime. Commonwealth v.

Parmer, 70 A.2d 296, 297 (Pa. 1950). Furthermore, “[s]pecific

intent to kill can be proven by the use of a deadly weapon upon a

vital part of the body.” Commonwealth v. May, 656 A.2d 1335,

1340 (Pa. 1995) (citing Commonwealth v. Bricker, 326 A.2d 279

(Pa. 1974)).

Here, the trial court elected not to treat Petitioner

as an accomplice and instructed the jury that:

When deciding whether the Defendant had a specific

intent to kill, you should consider all the evidence

regarding his words and conduct and the attending

circumstances that may show his state of mind.

If you believe that the Defendant intentionally used

a deadly weapon on a vital part of the victim’s body, you

may regard that as an item of circumstantial evidence

from which you may, if you choose, infer that the

Defendant had the specific intent to kill.

(Trial Tr. 724-25, July 13, 1998.) 

The proper question before the Court is whether the

instruction given was warranted by the evidence in the first

instance. The Pennsylvania Superior Court clearly articulated

the evidence it relied upon in concluding that Petitioner fired

at least one shot that struck Martinez’s head. The presentation

of this evidence was sufficient to warrant an instruction that
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Petitioner acted as a principal and that the jury could infer

that he had a specific intent to kill, which is conveyed clearly

by the charge to the jury. Therefore, Petitioner has failed to

show that the Pennsylvania Superior Court’s conclusion that an

accomplice jury instruction was not warranted and that the

instruction given was not constitutionally defective was either

contrary to or an unreasonable application of Federal law. 

Second, Petitioner raises an issue with respect to the

factual determination made by the Pennsylvania Superior Court

with respect to whether an accomplice liability instruction was

required. Petitioner contests the Superior Court’s conclusion

that Petitioner qualified only as a principal on the basis that

Cintron testified that she overheard Petitioner state that he

shot Martinez twice and not three times, and therefore neither of

the bullets he fired may have struck Martinez in the head. 

Petitioner cites to the following exchange.

Q: Did [Petitioner] say how many times he shot [the

victim], if you remember?

A: He told Tyhir [Biggs] twice.

(Trial Tr. 289, July 9, 1998.) Petitioner claims that this

single factual statement contradicts the Superior Court’s holding

that at least one shot fired by appellant had to have been fatal. 

Under section 2254(e)(1), factual findings of a state

court are entitled to a presumption of correctness and this

presumption can only be overcome where a habeas petition presents
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clear and convincing evidence to the contrary. See 28 U.S.C. §

2254(e)(1). Here, a single potential inconsistent statement

raised during trial testimony does not qualify as the clear and

convincing evidence needed to overcome the Pennsylvania Superior

Court’s finding that the evidence of record supported the

conclusion that since Morales only fired one shot, one of the

shots to the head of Martinez must have been fired by Petitioner. 

Therefore, there is no basis to overturn the finding of the

Pennsylvania Superior Court on this point. This cannot be said

to constitute an “unreasonable determination of the facts” as

required by section 2254(d)(2). 

Based on these conclusions, the Pennsylvania Superior

Court found that no accomplice liability instruction was

warranted by the evidence presented, and therefore counsel for

Petitioner could not have been ineffective for failing to request

such an instruction. The Pennsylvania Superior Court’s legal

conclusions that an accomplice liability instruction was not

warranted by the evidence and that failure to request such an

instruction did not constitute ineffective assistance of counsel

are not contrary to Federal law. As Petitioner has presented no

error of law or fact of the Pennsylvania court’s rejection of

this issue, Petitioner’s claim will be dismissed. 

B. Failure to Object to Co-Conspirator Hearsay

Petitioner asserts a claim for ineffective assistance
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of counsel based on the failure to object to the admission of

hearsay statements made by co-defendant Morales in violation of

his Sixth Amendment right under the Confrontation Clause. The

statements in question were made by Morales to Robles when

Morales went to Robles’ home following the murder of Martinez. 

Cintron, Robles’ girlfriend, testified as to the substance of the

exchange as follows:

[Morales], came to the house and he told Tyhir Biggs to

go get [Robles]. [Morales] had asked [Robles] if he has -

if Roderick Johnson had come to the house. [Robles] told

him no. [Robles] then asked him why? [Morales] started to

tell [Robles] what had happened. [Morales] told [Robles]

that he and [appellant] had seen the guy that owed Shawn

Bridges money. Then . . . they had seen him right . . .

at the I.G.A. on Buttonwood Street and Schuykill Ave.

Roderick Johnson had jumped out of the car and approached

the guy and asked if he remembered him, that he owed

Shawn Bridges $500. The guy started to run, and Roderick

Johnson ran behind the guy and chased him to Barbey’s

Park; and Roderick Johnson shot the guy - shot the guy in

the back.

Then, after that, Roderick Johnson ran . . .

When Roderick Johnson ran, then [Morales] had pulled up

in the car. Richard Morales got out of the car, and he

leaned over the guy and shot him in the head. He was

showing [Robles] how he did this. I was sitting on the

floor in the second floor hallway, and leaved over,

looking into the living room floor . . . watching Richard

Morales show George Robles how he shot the guy. After

that, he left the house. I went back into the room. 

Commonwealth v. Johnson, No. 15 MDA 2002, *7 (Pa. Super. Ct. Jan

8., 2003) (alterations in original).

Robles also testified at trial as to the statements

made by Morales as follows:
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[Robles]: Then after [appellant] left, then Richard

Morales came looking for [appellant]. So then I was

like, What happened? And he didn’t want to tell me at

fist because he thought I didn’t know. And I said,

Look, [appellant] came here already, so you might as

well tell me what’s going on

. . . 

He came in. After I explained to him that [appellant]

came here already and to let me know. And I questioned

him on it, and he said, Yeah, it happened. As a matter

of fact, I circled the block in the van, and I fired

another shot into the body to make sure he did the job

the job right. He said, Where is he? Where is he? He

said he was going to try and find you and go to the club

[where appellant, Morales, and Shawn Bridges worked].

So he said, All right then. And he left in the van.

(Id.) (alterations in original). 

The trial court admitted these statements under the coconspirator hearsay exception. On review of Petitioner’s habeas

petition, the Pennsylvania Superior Court found that the trial

court erred in admitting these statements as co-conspirator

hearsay because they were not so closely connected to the

commission of the substantive offense that they may reasonably be

considered part of a continuing course of criminal conduct

emanating from the substantive offense. See Commonwealth v.

Cull, 656 A.2d 476, 482 (Pa. 1995). Since the Pennsylvania

Superior Court found that these statements were inadmissible

under the co-conspirator exception and trial counsel did not have

a reasoned trial strategy for failing to object, the Pennsylvania

Superior Court found that the deficient performance prong under
The Pennsylvania Superior Court actually analyzed the 6

ineffective assistance of counsel claims under the Pennsylvania

state standard for ineffective assistance established in

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). However,

both the Pennsylvania Supreme Court and the Third Circuit Court

of Appeals have recognized that the standard for ineffective

assistance of counsel under Pennsylvania law-which the state

courts applied here-is the same as the Strickland standard. See

Commonwealth v. Tedford, 960 A.2d 1, 12 (2008) (citing Pierce,

527 A.2d at 975 (adopting U.S. Supreme Court's holding in

Strickland)); Boyd v. Waymart, 579 F.3d 330, 334 n.2 (3d Cir.

2009) (recognizing that the Pierce standard and Strickland

standard are uniform); Werts v. Vaughn, 228 F.3d 178, 204 (3d

Cir.2000) (finding that the Pennsylvania standard is “not

contrary to” the Strickland test). Therefore, for the purposes

of simplicity and clarity, the Court will refer only to the

Strickland standard.

-23-

Strickland was satisfied. However, the Pennsylvania Superior 6

Court found that the ineffectiveness claim failed because

Petitioner could not show prejudice on the basis that the failure

to object constituted harmless error. The Pennsylvania Superior

Court adopted the finding of the PCRA court that the wrongly

admitted testimony was cumulative of other evidence, and

therefore harmless. 

Petitioner asserts that the Pennsylvania Superior

Court’s finding was contrary to Federal law with respect to its

harmless error analysis. Petitioner contends that because the

admission of these co-conspirator statements violated his right

under the Confrontation Clause, the error should not be deemed

harmless. 

As an initial matter, the Commonwealth, for the first
In fairness, at oral argument was the first time that 7

Petitioner clearly articulated that his claim for a violation of

the right to confrontation implicated Bruton v. United States,

391 U.S. 123 (1968).

-24-

time at oral argument, raised the issue that Petitioner’s 7

asserted Confrontation Clause claim was procedurally defaulted

because it was not ruled upon the Pennsylvania state courts. 

Pursuant to the AEDPA, a habeas petitioner must “fairly present”

a federal constitutional claim in order such claim to be

available for federal habeas review. See 28 U.S.C. § 2254(b). 

In order to “fairly present” his claim, a prisoner must present

in state court the factual and legal substance of his federal

claim, in a manner that puts the state court on notice that a

federal claim is asserted. McCandless v. Vaughn, 172 F.3d 255,

261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 6

(1982)).

The state court's consideration of a petitioner's

federal Constitution claim is not conclusive as to whether the

claim was exhausted at the state level. Even if the state court

does not consider the claim, it is still exhausted if the state

court had the opportunity to address it. Nara v. Frank, 488 F.3d

187, 198 (3d Cir. 2007) (citing Bond v. Fulcomer, 864 F.2d 306,

309 (3d Cir.1989)). Thus, here it is not determinative that the

Pennsylvania courts did not address Petitioner’s claim as a

Confrontation Clause violation, so long as Petitioner presented
-25-

the claim as such, i.e., giving the state court an opportunity to

consider it. 

To fairly present his federal claim, petitioner may

employ several methods: (1) reliance upon pertinent federal

cases; (2) reliance upon state cases employing constitutional

analysis in like fact situations; (3) assertion of the claim in

terms so particular as to call to mind a specific right protected

by the Constitution; and (4) allegation of a pattern of facts

that is well within the mainstream of constitutional litigation.

McCandless, 172 F.3d at 260 (citing Evans v. Court of Common

Pleas, DE County, PA., 959 F.2d 1227 (3d Cir. 1992) (articulating

“fair presentation” factors)).

Here, the Pennsylvania Superior Court summarized

Petitioner’s claims as follows: “Appellant was denied effective

assistance of counsel and the due process rights and right of

confrontation of witnesses, as guaranteed by the Pennsylvania and

United States Constitutions, when trial counsel (a) failed to

preserve objections to the admission of non-co-conspirator

statements.” Commonwealth v. Johnson, No. 15 MDA 2002, at *5

(Pa. Super. Ct. Jan. 8, 2003). 

In his brief to the Superior Court, Petitioner

presented the following argument concerning the admission of

Morales’ statements:

Hence, the admission of these statements violated not

only traditional hearsay rules but, separately,
-26-

appellant's state and federal right of confrontation.

Where a statement is not admissible as a firmly-rooted

hearsay exception, it is presumptively unreliable; in

such circumstances its use deprived an accused of the

constitutional right to confront witnesses. Lilly v.

Virginia, U.S., 199 S. Ct. 1887 (1999).

(Petr.’s Brief on Appeal From The Denial Of P.C.R.A., 18, March

2002.) 

In essence, Petitioner’s argument to the Pennsylvania

state court was that the mischaracterization of Morales’

statement as co-conspirator hearsay violated his right under the

Confrontation Clause because he was not permitted to crossexamine Morales concerning the inculpatory statements. Under the

circumstances, it appears that Petitioner has met the minimum

standard necessary to show that he “fairly presented” his Bruton

claim in the state court in order to avoid procedural default. 

This conclusion, however, is not free from doubt. 

Merely citing to the Sixth Amendment Confrontation Clause does

not serve as a blanket presentment of all issues which can arise

in the context of the Confrontation Clause. In fact, the

admission of a non-defendant co-conspirator statement which may

raise concerns under the Confrontation Clause, may not implicate

Bruton at all.

Here, however, giving Petitioner the benefit of the

doubt, it appears that Petitioner asserted his Bruton claim with

sufficient particularity to be deemed “fairly presented” to the

Pennsylvania state courts. Petitioner’s argument with respect to
-27-

Morales’ statements expressly invoked the Sixth Amendment

Confrontation Clause, alleged a pattern of facts, i.e., admission

of a conspirator confession, that falls within the mainstream of

constitutional litigation as potentially implicating Bruton, and

cited to the Supreme Court’s decision in Lilly v. Virginia, 527

U.S. 116 (1999), which discussed Bruton and its progeny. See

McCandless, 172 F.3d at 260. Therefore, the Court concludes that

based on the limited record available, that Petitioner has fairly

presented his Confrontation Clause claim to the Pennsylvania

state courts in a sufficient manner to avoid procedural default. 

Petitioner asserts that the conclusion reached by the

Pennsylvania Superior Court is contrary to Federal law on two

grounds: (1) the state courts failed to recognize that a

violation of the Confrontation Clause had occurred through the

admission of Morales’ statements; and (2) the Superior Court

incorrectly found that counsel’s failure to raise the

Confrontation Clause issue was not prejudicial. These issues are

addressed in turn.

1. Confrontation Clause Violation

Petitioner argues that the Superior Court’s decision

was contrary to Federal law because it failed to recognize that

the admission of Morales’ statements violated Petitioner’s Sixth

Amendment right under the Confrontation Clause. The Superior

Court expressly found that Morales’ statements did not qualify
-28-

under the co-conspirator hearsay exception, however, the Superior

Court did not address specifically the effect of these

incorrectly admitted statements with respect to Petitioner’s

Sixth Amendment rights. 

Petitioner asserts that the admission of Morales’

statements violated his Sixth Amendment rights under the Supreme

Court’s decision in Bruton v. United States, 391 U.S. 123 (1968).

The Sixth Amendment to the United States Constitution, and

specifically its Confrontation Clause, guarantees criminal

defendants the right to confront the witnesses against them. In

Bruton, the Supreme Court explained that a defendant is denied

his right to confront witnesses against him when a prosecutor

presents a co-defendant's confession implicating the defendant at

a joint trial and the co-defendant does not testify because the

defendant has no opportunity to cross-examine. 391 U.S. at 126. 

Subsequent to Bruton, the Supreme Court held that admission of a

non-testifying co-conspirator's statement against a defendant

does not offend the Confrontation Clause as long as the statement

satisfies the co-conspirator exclusion under the relevant rules

of evidence. See Bourjaily v. United States, 483 U.S. 171,

182-83 (1987). 

Relying on Bruton, Petitioner argues that because

Morales’ statements were not made during the commission of the

conspiracy or in furtherance of the conspiracy, and thus do not
-29-

fit within the hearsay exception, the admission of these

statements violated Bruton. Based on the findings of the

Pennsylvania Superior Court that these statements do not fit

within the co-conspirator hearsay exception, Bruton on its face

would apply. 

Petitioner fails to recognize that Bruton does not

apply here for an independent reason, namely Morales’ statements

were not admitted during a joint trial of Morales and Petitioner. 

In Bruton, two defendants were accused of participating in the

same crime and both were tried jointly. 391 U.S. at 124. One

defendant confessed, naming and incriminating the other

defendant. Id. The trial judge instructed the jury only to

consider the confession against the confessing defendant. Id. at

125. The Supreme Court, however, found that a Confrontation

Clause violation, caused by the admission of a nontestifying

codefendant's “powerfully incriminating” confession, is not

necessarily cured by a limiting instruction. Id. at 135-36. 

Therefore, Bruton is based on the rationale that where the

“powerfully incriminating extrajudicial statements” of one

co-defendant would be admitted against another co-defendant,

without the opportunity of cross-examination, then effective

confrontation is not possible in spite of a limiting instruction

that is given to the jury. Id. 

The Third Circuit in Johnson v. Tennis explained that
-30-

the “basis of Bruton was that even a carefully instructed jury

cannot be expected to disregard completely the incriminating

confession of a non-testifying codefendant.” 549 F.3d 296, 300

n.4 (3d Cir. 2008); see also Bruton, 391 U.S. at 135-36 (“[T]here

are some contexts in which the risk that the jury will not, or

cannot follow instructions is so great, and the consequences of

failure so vital to the defendant, that the practical and human

limitations of the jury system cannot be ignored. Such a context

is presented here, where the powerfully incriminating

extrajudicial statements of a co-defendant, who stands accused

side-by-side with the defendant, are deliberately spread before

the jury in a joint trial.”). In light of this rationale, the

Supreme Court has found that where a potential for Bruton

evidence exists, the special prejudice that occurs can be

eliminated by holding separate trials. See Gray v. Maryland,

523 U.S. 185, 192-95 (1998) (stating that because the use of an

accomplice's confession “creates a special, and vital, need for

cross-examination,” a prosecutor desiring to offer such evidence

must comply with Bruton, hold separate trials, use separate

juries, or abandon the use of the confession); Lilly v. Virginia,

527 U.S. 116, 128 (1999) (recognizing that Bruton applies when a

co-defendant confession has been admitted into evidence in a

joint trial) (emphasis added); see also Tennis, 549 F.3d at 300-

01 (holding that Bruton does not apply to a bench trial because
-31-

Bruton deals only with situations where a jury would be unable to

apply a limiting instruction concerning a co-defendant’s

confession during a joint trial); United States v. Hill, 901 F.2d

880, 883 (10th Cir. 1990) (noting that if co-defendants are tried

separately, “Bruton problems will never arise.”); United States

v. Cirrincione, 780 F.2d 620, 632 (7th Cir. 1985) (“One way to

avoid Bruton problems is to conduct separate trials, so the

confession may be used against the declarant without adverse

effects on co-defendants.”); United States v. Morris, No. 07-20,

2008 WL 5188826, at *10 (W.D. Pa. Dec. 8, 2008) (noting that the

remedy for a potential Bruton violation is that a co-defendant

should be granted a separate trial); United States v. Sigler, 559

F. Supp. 2d 906, 914 (N.D. Ill. 2008) (“One of the common

remedies for a potential Bruton problem-which arises when one

defendant has given a statement inculpating the other-is to order

separate trials. That is what the trial court did here. . . In

short, unlike Bruton, this case does not involve the admission

against a defendant of a jointly tried co-defendant's statement

that is concededly hearsay. Rather, it involves admission of the

fact (and arguably part of the contents) of a statement by a

separately tried co-defendant, for what is claimed to be a

proper, non-hearsay purpose.”); United States v. Grullon, 482 F.

Supp. 429, 431 (E.D. Pa. 1979) (granting motion to sever where

introduction of defendants' post-arrest statements in
-32-

consolidated trial would jeopardize codefendants' rights under

Bruton and result in prejudice). 

Here, because Petitioner and Morales were tried

separately, the admission of Morales’ statements did not

implicate Bruton. Therefore, Petitioner’s argument on this point

is inapposite to his Confrontation Clause claim. 

To the extent that Petitioner asserts that the

admission of Morales’ statements violated his Sixth Amendment

right under Crawford v. Washington, 541 U.S. 36 (2004), this

claim is also without merit. In Crawford, the Supreme Court held

that “[t]estimonial statements of witnesses absent from trial”

can be admitted under the Confrontation Clause “only where the

[out-of-court] declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine” the

declarant. Crawford, 541 U.S. at 40. The decision in Crawford,

however, applies only to out-of-court statements that are

“testimonial” in nature. See id. at 68 (“Where nontestimonial

hearsay is at issue, it is wholly consistent with the Framers'

design to afford the States flexibility in their development of

hearsay law-as does Roberts [Ohio v. Roberts, 448 U.S. 56, 100

(1980)], and as would an approach that exempted such statements

from Confrontation Clause scrutiny altogether.”).

In Crawford the Supreme Court eschewed a comprehensive

definition of what qualifies as “testimonial” evidence. Id. The
-33-

Court in Crawford explained that “testimony” is typically in the

form of “[a] solemn declaration or affirmation made for the

purpose of establishing or providing some fact.” Id. at 51

(internal quotation marks and citations omitted). The Court did

establish that, at a minimum, “testimonial” evidence includes

prior testimony at a preliminary hearing, before a grand jury, or

at a former trial; and police interrogations. Id. at 68. In

contrast, the Crawford decision makes clear that casual

statements to an acquaintance are not testimonial. Id. at 51. 

Therefore, under Crawford, the statements made by

Morales to Robles concerning Martinez’s homicide could not be

considered testimonial in nature as they represented merely

informal statements among acquaintances. See generally Horton v.

Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding that informal

statements made by co-conspirator during a private conversation

were nontestimonial and thus outside the scope of Crawford

because the statements were not made under circumstances in which

an objective person would reasonably believe would be available

for use at a later trial); Williams v. SCI-Huntingdon, No. 02-

7693, 2004 WL 2203734, at *11 n.7 (E.D. Pa. Sept. 30, 2004)

(recognizing that an off-hand mark to an acquaintance is outside

the scope of Crawford and does not violate the Confrontation

Clause); United States v. Vaghari, No. 08-693-01, 2009 WL

2245097, at *8 (E.D. Pa. July 27, 2009) (finding that informal e-
-34-

mails from alleged co-conspirators are not “testimonial” in

nature and therefore are not within the purview of Crawford).

As to nontestimonial statements, the Confrontation

Clause does not preclude their admission if they are subject to a

firmly rooted hearsay exception or bear an adequate indicia of

reliability. Albrecht v. Horn, 485 F.3d 103, 135 (3d Cir. 2007);

United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005)

(addressing Roberts). Neither of the parties, nor the

Pennsylvania state courts, considered whether these

nontestimonial statements have sufficient indicia of reliability

or would be deemed to qualify as a firmly rooted hearsay

exception in order to comply with the Confrontation Clause. It

is not necessary for the Court to make that determination here,

because even assuming that these nontestimonial statements were

found to violate Petitioner’s Confrontation Clause rights, the

harmless error test would apply. Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986) (stating that errors under the Confrontation

Clause are subject to harmless error analysis); United States v.

Hardwick, 544 F.3d 565, 574 (3d Cir. 2008) (recognizing that the

harmless error test applies to violations of the Confrontation

Clause). For the reasons discussed more fully below, since

Morales’ statements were cumulative in nature, any prejudicial

effect of the incorrectly admitted statements would be negated

and Petitioner’s conviction need not be set aside.
As explained above, although the Pennsylvania Superior 8

Court actually reached its decision under the Pennsylvania

standard established by Pierce, because the Pierce standard and

Strickland standard are recognized as equivalent, the Court

refers only to the Strickland standard for purposes of clarity.

See Boyd, 579 F.3d at 334 n.2 (recognizing that the Pierce

standard and Strickland standard are uniform); Werts, 228 F.3d at

204 (finding that the Pennsylvania standard is “not contrary to”

the Strickland test). 

-35-

2. Finding of Prejudice 

Petitioner claims that the Pennsylvania Superior

Court’s conclusion that failure to raise the Confrontation Clause

issue was not prejudicial under Strickland is contrary to Federal

law. Assuming arguendo that Petitioner has established a 8

Confrontation Clause violation, any resulting error was harmless. 

Following the Supreme Court’s decision in Fry v. Pliler

551 U.S. 112, 121-22 (2007), this Court must perform its own

harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619

(1993), rather than review the state court's harmless error

analysis under the AEDPA standard. See Bond v. Beard, 539 F.3d

256, 275-76 (3d Cir. 2008) (explaining that Fry instructs federal

courts to conduct an independent harmless error analysis). In

Brecht, the Supreme Court explained that an error will be deemed

harmless where it did not have “substantial and injurious effect

or influence in determining the jury's verdict.” 507 U.S. at 637

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

“Under this standard, habeas petitioners may obtain plenary

review of their constitutional claims, but they are not entitled
-36-

to habeas relief based on trial error unless they can establish

that it resulted in actual prejudice.” Id. (quotation marks

omitted). “When a federal judge in a habeas proceeding is in

grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the

jury's verdict, that error is not harmless.” O'Neal v. McAninch,

513 U.S. 432, 436 (1995) (quotation marks omitted).

Petitioner argues that the admission of a coconspirator cannot be deemed harmless error. In support of this

argument, Petitioner cites to Cruz v. New York, 481 U.S. 186

(1987), for the proposition that where a co-conspirator’s

admission is cumulative or “interlocking” with a defendant’s own

admission, then prejudice results. 

Petitioner misreads the holding of the Supreme Court in

Cruz. The decision in Cruz resolved a split of authority as to

whether a Bruton violation could occur with respect to an

“interlocking” confession as well as a contradictory confession. 

See id. at 190-93 (explaining that the Court was resolving the

conflict between the plurality opinion of Parker v. Randolph, 442

U.S. 62 (1979), that Bruton did not apply to an interlocking

confession with Justice Blackmun’s view that Bruton applied to

both types of confession). It is true that Justice Scalia,

speaking for the majority in Cruz, recognized that a

corroborating co-conspirator confession can be more damaging than
-37-

a contradictory co-conspirator confession, however, this

conclusion was limited to consideration of whether Bruton should

apply at all to an interlocking confession and not whether

admission of such an interlocking confession would per se qualify

as harmful error. See id. at 192-93 (“Quite obviously, what the

‘interlocking’ nature of the codefendant's confession pertains to

is not its harmfulness but rather its reliability: If it confirms

essentially the same facts as the defendant's own confession it

is more likely to be true. Its reliability, however, may be

relevant to whether the confession should (despite the lack of

opportunity for cross-examination) be admitted as evidence

against the defendant . . . .”). 

Contrary to Petitioner’s assertion, Cruz does not stand

for the principle that admission of an interlocking confession

standing alone necessitates a finding of harm. Rather, as

explained above, courts employ an independent harmless error

analysis in order to determine whether a Bruton violation

warrants a retrial regardless of whether the co-conspirator

confession is contradictory or corroborating. See Bond, 539 F.3d

at 275-76 (recognizing that harmless error analysis is applicable

to a Bruton claim) United States v. Richards, 241 F.3d 335, 341

(3d Cir. 2001) (same). Furthermore, courts consistently have

found that a co-conspirator admission which violates Bruton

constitutes harmless error where sufficient other evidence of
-38-

guilt is present in the record. See, e.g., United States v.

Coleman, 349 F.3d 1077, 1086-87 (8th Cir. 2003) (holding that

erroneously admitted evidence under Bruton is harmless where the

evidence is “merely cumulative of other overwhelming and largely

uncontroverted evidence properly before the jury.”) (quoting

Brown v. United States, 411 U.S. 223, 231 (1973) (harmless error

despite Bruton violation where the testimony erroneously admitted

was merely cumulative)); United States v. Lage, 183 F.3d 374, 388

(5th Cir. 1999) (where incorrectly admitted statements merely

corroborated other uncontroverted testimony, any Bruton error

arising from the admission was harmless); United States v.

Gillam, 167 F.3d 1273, 1277 (9th Cir. 1999) (finding Bruton

error harmless beyond a reasonable doubt where “the testimony

erroneously admitted was merely cumulative of other overwhelming

and essentially uncontroverted evidence properly admitted”); Fogg

v. Phelps, 579 F. Supp. 2d 590, 610 (D. Del. 2008) (holding that

Bruton violation stemming from admission of co-conspirator

statement constituted harmless error because it was merely

cumulative of the other evidence properly admitted at trial). 

Based on the available record here, any error in

admitting Morales’ statements was harmless under Brecht. 

Although the admission of Morales’ statements implicates

questions concerning Petitioner’s Sixth Amendment rights, the

Commonwealth presented such extensive evidence of Petitioner’s
-39-

guilt that any error cannot be found to have had a substantial

and injurious effect in determining the jury’s verdict. The

evidence in this case was more than sufficient to support the

jury’s verdict without inclusion of Morales’ statements. At

trial, several witnesses testified as to the direct participation

of Petitioner in the murder of Martinez. Both Robles and

Velazquez testified that Petitioner recounted his role in the

homicide to them independently. These accounts are corroborated

by Cintron’s testimony that she overheard Petitioner admit his

direct role in the shooting to Biggs. Furthermore, Petitioner’s

statements to Robles, Velazquez and Biggs (as testified to by

Cintron) are consistent with the independent eye witness accounts

of Martinez’s murder from the night of November 1, 1996. The

Commonwealth also offered testimony of the coroner’s review of

Martinez’s homicide that was consistent with the accounts of the

witnesses presented. 

The overwhelming evidence presented, most critically

Petitioner’s own admissions of his role in the shooting, leaves

no basis for a “grave doubt” as to the harmlessness of the error. 

Thus, as any error was harmless, Petitioner cannot assert a

cognizable habeas claim for ineffective assistance of counsel on

this basis. 

C. Failure to Object to Admission of “Other Bad Acts”

Evidence

Petitioner contends that the testimony of Velazquez,
-40-

Petitioner’s then-girlfriend, relaying Petitioner’s

characterization of himself as a “hitman” constitutes

inadmissible prior “bad acts” evidence, such that the failure to

object to this evidence rose to the level of ineffective

assistance of counsel. 

During direct examination, Velazquez testified as

follows:

Q: And after November 1 of 1996, that Friday evening,

did you have a conversation with your then boyfriend,

Roderick Johnson, about the shooting at Barbey’s

Playground.

A: We was [sic] watching the news, the Berks County

news, and he told me that he was the one who had shot

Jose Martinez.

Q: What else did he say?

A: He also told me that he was a hit man.

Q: Anything else?

A: Not that I remember right now.

(Trial Tr. 158-59, July 8, 1998.)

During re-direct examination, the Commonwealth questioned

Velazquez concerning a statement made to police, and Velazquez

read the following statement into the record:

Roddy said, Can I trust you? I looked at him, and he

told me that he was the one that shot the guy at

Barbey’s. Roddy told me that he was a hit man, and

that’s what he does.

(Id. at 196) (emphasis added). 

The Pennsylvania Superior Court adopted the PCRA

court’s conclusion that this type of evidence did not
-41-

qualify as “other bad acts” evidence under Pennsylvania Rule

of Evidence 404(b). Rather, both the PCRA Court and the

Superior Court found that Petitioner’s statement should be

analyzed as an exception under the hearsay rule rather than

as character evidence. Relying on Pennsylvania Rule of

Evidence 803(25), the PCRA Court and the Superior Court

found that Petitioner’s statement constituted an extrajudicial admission by a defendant that is admissible even

though it contains an admission of guilt. 

First, it is well settled that claims asserting a

violation of a state law, or challenging a state court's

interpretation of state law, are not cognizable on federal

habeas review. Estelle v. McGuire, 502 U.S. 62, 67-8 (1991)

(“We have stated many times that federal habeas corpus

relief does not lie for errors of state law”), Johnson v.

Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997) (“‘it is well

established that a state court's misapplication of its own

law does not generally raise a constitutional claim. The

federal courts have no supervisory authority over state

judicial proceedings and may intervene only to correct

wrongs of constitutional dimension.”); White v. Carroll,

416 F. Supp. 2d 270, 282 (D. Del. 2006). Thus, Petitioner

cannot use the instant habeas petition to challenge the

Pennsylvania state courts interpretation of the Pennsylvania
-42-

Rules of Evidence. See, e.g., Roulhac v. Lawler, No. 08-

5124, 2009 WL 5910245, at *5 (E.D. Pa. Oct. 29, 2009)

(holding that a challenge of the trial’s court evidentiary

ruling under the Pennsylvania Rules of Evidence is not

cognizable on federal habeas review); Swainson v. Varner,

No. 99-6480, 2002 WL 241024, at *9 (E.D. Pa. Feb. 19, 2002)

(“It is not the court's role on habeas review to decide

whether a state trial judge's decision to admit evidence

pursuant to state evidentiary rules was proper.”). 

Therefore, to the extent that Petitioner asserts that the

Pennsylvania courts incorrectly admitted these statements as

extra-judicial admissions under the Pennsylvania Rules of

Evidence, such a claim is barred from federal habeas review.

Second, in an attempt to couch his claim as one

for federal habeas review, Petitioner asserts that the

admission of this statement violated his right to due

process, and therefore the failure to object to such

evidence constitutes ineffective assistance of counsel. As

explained above, claims based on state court evidentiary

errors cannot warrant habeas relief unless the petitioner

demonstrates that the error was so pervasive that he was

denied the fundamental right to a fair trial. See Estelle,

502 U.S. at 67-68; Keller v. Larkins, 251 F.3d 408, 413 (3d

Cir. 2001) (recognizing that in order to show that
-43-

evidentiary error amounted to a due process violation under

habeas review, a petitioner must show that the error is of

“such magnitude as to undermine the fundamental fairness of

the entire trial”).

Based on the available record, even if the trial

court did erroneously admit Velazquez’s testimony concerning

Petitioner’s statements to her, Petitioner has failed to

demonstrate that the admission of that testimony rendered

his trial fundamentally unfair. Here, Petitioner’s

statement that he was a “hitman” and “that’s what he does”

was independent of Petitioner’s admission that he himself

shot Martinez. In other words, the remaining unchallenged

portion of Petitioner’s statement admitted that he had

committed the murder of Martinez for which he was on trial,

irrespective of whether his classification of himself as a

“hitman” suggested to the jury that he had committed other

non-related homicides in the past. When viewed in context,

it cannot be said that the admission of Petitioner’s

characterization of himself as a “hitman” rendered the trial

fundamentally unfair in light of the corresponding

confession given by Petitioner contemporaneous with that

statement. 

Furthermore, as explained above, a substantial

amount of inculpatory evidence was admitted at trial
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demonstrating Petitioner’s guilt in Martinez’s homicide. 

Based on the entire record of available evidence, Petitioner

has failed to demonstrate that the admission of his vague

statement to Velazquez describing himself as a “hitman”

served to render his entire trial fundamentally unfair. See

Keller, 251 F.3d at 413. Therefore, as Petitioner’s

asserted due process claim is meritless he cannot

demonstrate that his trial counsel was deficient in failing

to raise the issue. In light of his failure to satisfy the

first prong of Strickland, Petitioner’s claim will be

dismissed. 

D. Cumulative Effect of All Errors

Petitioner’s final claim is that the cumulative

effect of all of the errors at trial entitle him to habeas

relief. The Third Circuit has pronounced that “[i]ndividual

errors that do not entitle a petitioner to relief may do so

when combined, if cumulatively the prejudice resulting from

them undermined the fundamental fairness of his trial and

denied him his constitutional right to due process.” Fahy

v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (quoting Albrecht

v. Horn, 471 F.3d 435, 468 (3d Cir. 2006). Cumulative

errors will only be deemed not harmless where “they had a

substantial and injurious effect or influence in determining

the jury's verdict, which means that a habeas petitioner is
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not entitled to relief based on cumulative errors unless he

can establish ‘actual prejudice.’” Id. (internal citation

omitted); see Brecht, 507 U.S. at 637. To demonstrate

actual prejudice, Petitioner must show that the errors

during his trial created more than a possibility of

prejudice; he must show that the errors “worked to his

actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions.” Murray v.

Carrier, 477 U.S. 478, 494 (1986). Where weighty evidence

of guilt is in the record, even in spite of all of the

petitioner’s alleged errors, the cumulative error standard

has not been met. Fahy, 516 F.3d at 205.

As explained above, the overwhelming evidence of

guilt presented by the Commonwealth forecloses Petitioner’s

argument in favor of cumulative error. Here, the

Commonwealth presented three witnesses, Robles, Cintron and

Velazquez each of whom testified that Petitioner admitted

his culpability in the shooting death of Martinez. In light

of these uncontradicted admissions, Petitioner’s argument

that his alleged errors had a “substantial and injurious”

effect on the jury’s verdict fails. 

V. CONCLUSION

For the foregoing reasons, Petitioner has failed
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to establish a cognizable habeas violation. Therefore,

Petitioner’s habeas corpus petition will be dismissed. An

appropriate Order follows.