IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

LAMAR GRIFFIN : CIVIL ACTION

:

v. :

:

EDWARD KLEM, et al : NO. 05-3009

REPORT AND RECOMMENDATION

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE October 19th , 2005

This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by

an individual currently incarcerated at the Mahanoy State Correctional Institution at Frackville,

Pennsylvania. For the reasons that follow, I recommend that the petition be denied. 

FACTS AND PROCEDURAL HISTORY:

On April 8, 1999, a jury, sitting before the Honorable Willis W. Berry, Jr., found Griffin

guilty of robbery, aggravated assault, carrying a firearm without a license, and possession of an

instrument of crime. The charges arose from an incident that occurred on a Septa bus on

September 30, 1998. According to eyewitness testimony, shortly after boarding the bus, Griffin

confronted Lisa Casurra, a 26 year old woman who was riding on the bus. Griffin demanded

Ms. Casurra’s purse and when she refused, Griffin shot her in the chest. (N.T. 4/6/99, 434-38). 

Fortunately, Ms. Casurra survived the attack. However, she suffered permanent injuries to her

left hand as a result of the gunshot wound. (N.T. 4/7/99, 572). 

On June 1, 1999, Judge Berry sentenced Griffin to 131⁄2 - 27 years’ incarceration. Griffin

filed a direct appeal, claiming that the trial court should have instructed the jury on the crimes of

second degree robbery and second degree aggravated assault, rather than giving them only the

instructions on first degree. He also claimed the evidence was insufficient to sustain the robbery

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conviction and that the robbery conviction was against the weight of the evidence. On August

31, 2000, the Superior Court affirmed the judgments of sentence, finding the weight of the

evidence claim was waived and the remainder of the claims were without merit. Commonwealth

v. Griffin, 2062 EDA 1999. Griffin did not seek discretionary review in the Pennsylvania

Supreme Court.

On June 25, 2001, Griffin filed a pro se petition pursuant to Pennsylvania’s Post

Conviction Relief Act, (“PCRA”). After an amended petition was filed by court appointed

counsel, the PCRA Court denied the petition. On appeal to the Superior Court, Griffin claimed

that his trial counsel was ineffective for failing to challenge the weight of the evidence

supporting the robbery conviction in a post-verdict motion. On December 22, 2004, the Superior

Court affirmed the denial of collateral relief. Commonwealth v. Griffin, 511 EDA 2003. 

The Pennsylvania Supreme Court denied allocatur on April 28, 2005. Commonwealth v. Griffin,

16 EAL 2005.

On June 23, 2005, Griffin filed this petition for habeas corpus, claiming:

1. The evidence was insufficient to support the robbery conviction;

2. The trial court erred in failing to charge the jury on second degree robbery, denying

the petitioner his due process rights;

3. The trial court erred in failing to charge the jury on second degree aggravated assault,

denying the petitioner his due process rights; and

4. Trial counsel was ineffective in failing to file a post-sentence motion, alleging that the

robbery conviction was against the weight of the evidence. 

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DISCUSSION:

Because Griffin presented all four of his claims either on direct or collateral review in the

state courts, the claims are considered exhausted for purposes of habeas corpus. Therefore, we

will proceed to address each of the claims on the merits.

A. Sufficiency of the Evidence

Griffin first complains that the evidence was insufficient to sustain the conviction for

robbery because the victim testified that she did not recall Griffin trying to take anything from

her, and, in fact, nothing was taken from her. In reviewing challenges to the sufficiency of the

evidence, the question for the habeas court is "whether, after reviewing 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." Sullivan v. Cuyler, 723 F.2d 1077, 1083-84

(3d Cir. 1983)(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). 

Pursuant to Pennsylvania law, a person is guilty of first degree robbery if, “in the course

of committing a theft, he . . . inflicts serious bodily injury upon another [or] threatens another

with or intentionally puts him in fear of immediate serious bodily injury. . . .” 18 Pa.C.S.A. §

3701(a)(1)(emphasis added). Although the victim testified that she did not remember Griffin

saying anything about her bags or demanding them, (N.T. 4/5/99, 382-83), Wayne Witherspoon,

who was sitting diagonally from Ms. Casurra on the bus, testified that Griffin pulled out a gun

and told the victim to “give me your shit.” (N.T. 4/6/99, 437). When she refused, Griffin said,

“you think I’m playing,” and pulled the trigger, shooting Ms. Casurra in the chest. (N.T. 4/6/99,

437). Additionally, Mr. Witherspoon stated that, once Ms. Casurra fell after being shot, Griffin

continued his attempt to take the purse, but the victim would not let it go. (N.T. 4/6/99, 437-38).

This evidence, as the Superior Court noted in disposing of this claim, was sufficient to support

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the conviction for robbery, despite the victim’s inability to remember exactly what happened

when “somebody was standing in [her] face with a gun.” (N.T. 4/5/99, 383). 

B. Failure to Charge on Second Degree Robbery and Aggravated Assault

In his next two claims, which are related, Griffin complains that the trial court failed to

instruct the jury on the crimes of robbery and aggravated assault as felonies of the second

degree. Rather, the court provided instructions for robbery and aggravated assault of the first

degree only. When the state courts addressed these issues, they found that the court committed

no error because the evidence presented at trial supported the charges of robbery and aggravated

assault of the first degree, not the second degree.

In responding to the petition for habeas corpus, the District Attorney first argues that in

non-capital cases there is no federal constitutional right to a jury instruction on lesser-included

offenses, or at the very least, that there is no clearly established Federal law requiring a lesserincluded offense instruction in non-capital cases. Thus, argues the District Attorney, the state

court’s determination was not “contrary to . . . clearly established Federal law, as determined by

the Supreme Court,” as is required for habeas corpus relief. 28 U.S.C. § 2254(d).

 In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that “a capital

defendant is entitled to a lesser included offense instruction if there is evidence in the record to

support such an instruction.” Gilmore v. Taylor, 508 U.S. 333, 360 (1993). The Court left open

the question of whether instructions on lesser-included offenses were required in non-capital

cases. Id. After Beck, the Supreme Court decided Schad v. Arizona, 501 U.S. 624 (1991), in

which the Court focused on the gravity of the punishment in Beck. “Our fundamental concern in

Beck was that a jury convinced that the defendant had committed some violent crime but not

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convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if

the only alternative was to set the defendant free with no punishment at all.” Schad, at 646. 

Although, even after the decision in Schad, the Supreme Court left open the question of

Beck’s applicability to non-capital cases, see Gilmore, at 360, the Third Circuit has observed that

Schad casts doubt on the theory that due process requires the court to instruct on lesser-included

offenses in non-capital cases. See Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir. 1992). 

We find no need to enter this foray because, as the state courts found, the evidence presented at

trial clearly supported charging the jury on robbery and aggravated assault of the first degree, not

second. See Khalif v. Hendricks, F.Supp.2d , 2005 WL 2397227 *20 (D.N.J. Sep. 28, 2005)

(quoting Kontakis v. Beyer, 19 F.3d 110, 118 (3d Cir. 1994)(“Nothing in Beck permits us to

grant habeas relief when a state court refuses to charge a jury that it may convict a defendant for

an offense when under state law the evidence could not justify the conviction.”)).

In this case, with respect to the robbery charge, the Superior Court explained that the

focus in differentiating first and second degree robbery is on the degree of bodily harm

threatened. Commonwealth v. Griffin, 2062 EDA 1999, at 4. As previously discussed in the

disposition of the sufficiency of the evidence claim, according to Pennsylvania law, a person is

guilty of first degree robbery if, “in the course of committing a theft, he . . . inflicts serious

bodily injury upon another [or] threatens another with or intentionally puts him in fear of

immediate serious bodily injury. . . .” 18 Pa.C.S.A. § 3701(a)(1)(emphasis added). 18 Pa.C.S.A.

§ 3701(a)(1)(emphasis added). Second degree robbery occurs “if, in the course of committing a

theft, he . . . inflicts bodily injury upon another or threatens another with or intentionally puts

him in fear of immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv). 

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“Serious bodily injury” is defined as “[b]odily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. “Bodily harm,” requires only

“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301. The Superior

Court concluded that the evidence supported the greater, not lesser charge with respect to

robbery.

Here, the evidence established that Griffin threatened Casurra with a

handgun as he attempted to take her purse. . . . Griffin did not merely simulate

possession of a handgun; he possessed, displayed, and actually discharged his

weapon. . . . Because the evidence could only support a conclusion that Griffin

intended to place Casurra in mortal fear of a deadly weapon, we conclude that the

trial court properly declined to instruct the jury on the crime of robbery as a

felony of the second degree. Accordingly, we cannot grant Griffin relief on this

claim. 

Commonwealth v. Griffin, 2062 EDA 1999, at 6. 

As the Superior Court concluded, the fact that Griffin shot the victim in the chest,

resulting in her resuscitation and arterial surgery, see N.T. 4/7/99, 571-72, clearly established

serious bodily injury under state law. Because the Superior Court’s determination of the facts

was consistent with the eyewitness testimony, see supra, at 3-4, and was not unreasonable,

Griffin is not entitled to habeas corpus relief.

Griffin’s claim regarding an instruction for second degree aggravated assault suffers a

similar fate. Like first and second degree robbery, aggravated assault is graded by the degree of

bodily injury attempted or inflicted - first degree requiring serious bodily injury. Again the

Superior Court concluded that Griffin clearly intended and caused serious bodily injury.

The stipulated medical records revealed Casurra sustained a close range gunshot

wound. . . . The bullet entered Casurra’s left chest below the collarbone and

exited three centimeters above the left shoulder blade. . . . As a result of her

wound, Casurra had to be resuscitated using advanced cardiac life support. . . .

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The bullet caused the blockage of the brachial artery, which is the chief artery in

the upper arm. . . . Following surgery to repair the artery, Casurra was placed in

the surgical intensive care unit. . . . As a result of her injuries, Casurra never

regained the full use of her left hand. 

Thus, the evidence presented at trial could only establish that Griffin

intended to and caused serious bodily injury. There is no evidence that Griffin

merely intended to cause “bodily injury.” Accordingly, we conclude that the trial

court did not err or abuse its discretion when it declined to instruct the jury

regarding aggravated assault as a second-degree felony.

Commonwealth v. Griffin, 2062 EDA 1999, at 7-8.

The Superior Court’s conclusion is absolutely reasonable considering the evidence

presented at trial. Thus, Griffin is not entitled to habeas relief on this claim.

C. Ineffective Assistance of Counsel

Finally, Griffin complains that his trial counsel was ineffective for failing to file a postverdict motion arguing that the verdict was against the weight of the evidence. The state courts

concluded that the underlying issue, the challenge to the weight of the evidence, was without

merit. Thus, counsel could not be found ineffective for failing to file a claim found to be without

merit. Commonwealth v. Griffin, 511 EDA 2003, at 4-5. We agree.

In order to be found ineffective, counsel’s representation must have been deficient and

the deficient performance must have prejudiced the defense. Strickland v. Washington, 466 U.S. 

668 (1984). Applying this concept to trial counsel’s failure to present a specific issue on appeal,

the Supreme Court has held “appellate counsel who files a merits brief need not (and should not)

raise every nonfrivolous claim, but rather may select from among them in order to maximize the

likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)(citing Jones v.

Barnes, 463 U.S. 745 (1983)). Focusing on Strickland’s prejudice requirement, the Third Circuit

has held that counsel cannot be deemed ineffective for failing to present a meritless argument at

Case 2:05-cv-03009-AB Document 13 Filed 10/19/05 Page 7 of 10
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trial or failing to bring a meritless claim on appeal. Parrish v. Fulcomer, 150 F.3d 326, 327 (3d

Cir. 1998).

The weight of the evidence is governed by state law and is ordinarily not subject to

habeas review unless the record is “completely devoid of evidentiary support” resulting in a due

process violation. Douglas v. Henricks, 236 F.Supp.2d 412, 435-36 (D.N.J. 2002). Pursuant to

Pennsylvania law, a weight of the evidence claim requires the defendant to establish that the

verdict was “so contrary to the evidence as to shock one’s sense of justice and make the award of

a new trial imperative.” Commonwealth v. Hunter, 554 A.2d 550 (Pa.Super. 1989). After

discussing the evidence, the state courts determined that any challenge to the weight of the

evidence would have been fruitless. In fact, both the trial court and Superior Court noted that

Griffin’s case was “crystal clear.” Commonwealth v. Griffin, 511 EDA 2003, at 4 (quoting

PCRA Court opinion, 4/6/04, at 4). After reviewing the evidence, as previously discussed, see

supra, at 1, 3, 6, we find no error in the state courts’ application of state law. The evidence

clearly supports the state courts’ conclusion.

Because Griffin’s underlying claim was meritless, counsel cannot be considered

ineffective for failing to challenge the weight of the evidence on appeal. Parrish, supra. 

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For the foregoing reasons, I make the following:

R E C O M M E N D A T I O N

AND NOW, this 19th day of October , 2005, IT IS

RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be

denied. There has been no substantial showing of the denial of a constitutional right

requiring the issuance of a certificate of appealability. Based on a review of the petition

and in light of this Recommendation, IT IS ALSO RECOMMENDED that the Motion for

Appointment of Counsel be DENIED.

 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-03009-AB Document 13 Filed 10/19/05 Page 9 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAMAR GRIFFIN : CIVIL ACTION

:

v. :

:

EDWARD KLEM, et al : NO. 05-3009

O R D E R

ANITA B. BRODY, J.,

AND NOW, this day of , 2005,

upon careful and independent consideration of the petition for writ of habeas corpus, and

after review of the Report and Recommendation of United States Magistrate Judge Jacob

P. Hart, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition for a writ of habeas corpus is DENIED.

3. The Motion for Appointment of Counsel is DENIED

4. There is no basis for the issuance of a certificate of appealability.

BY THE COURT:

 

ANITA B. BRODY, J.

Case 2:05-cv-03009-AB Document 13 Filed 10/19/05 Page 10 of 10