UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

SCOTT GERBER, :

:

Petitioner : No. 4:CV-09-0223

:

vs. : Petition Filed 2/03/09) 

:

PA. ATTORNEY GENERAL, : (Judge Muir)

:

Respondent :

MEMORANDUM AND ORDER

April 28, 2010

 Petitioner, Scott Gerber, filed the instant petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254. He

attacks a conviction imposed by the Court of Common Pleas for

Lebanon County, Pennsylvania. (Doc. 1). For the reasons that

follow, the Court will deny the petition. 

I. Background

The following background has been extracted from the

Pennsylvania Superior Court’s April 1, 2008 Opinion affirming

the denial of Gerber’s petition pursuant to the Post

Conviction Relief Act (PCRA): 

We previously set forth the protracted

history of this case as follows: 

On July 12, 1996, Appellant was charged

with one count each of Criminal Attempt to

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Commit Criminal Homicide, Aggravated

Assault, Rape, Burglary, and Unlawful

Restraint in connection with a violent

assault effectuated upon a co-worker. On

December 4, 1996, Appellant was tried

before a jury regarding the charges lodged

against him. At trial, it was established

that Appellant had been flirting with the

victim, who was Appellant’s co-worker at

McDonald’s restaurant. While the victim was

undressing in her home one evening,

Appellant appeared at the victim’s house.

The victim tried to run out of the house,

but Appellant grabbed her and wrapped a

vacuum cleaner cord around her neck.

Appellant then had vaginal sexual

intercourse with the victim while he

inflicted cuts upon the victim’s body.

Appellant left the victim for dead. The

jury convicted Appellant of all of the

charges lodged against him. On January 22,

1997, the trial court sentenced Appellant

to an aggregate term of fourteen (14)

years, six (6) months to forty-five (45)

years’ imprisonment as a result of his

convictions. Appellant filed Post Sentence

Motions, which subsequently were denied by

the trial court. Appellant took no direct

appeal of his judgment of sentence.

Subsequently, Appellant filed two separate

[PCRA petitions], which alleged, inter

alia, that Appellant’s trial counsel was

ineffective for failing to file a direct

appeal. After a protracted period of

inactivity and then the issuance of this

Court’s order on September 22, 2004,

Appellant filed a motion on September 27,

2004, for a hearing on the claims he raised

in his first PCRA petition. The trial court

held a hearing on November 18, 2004, at

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which time Appellant filed a motion to

compel DNA testing. The trial court granted

Appellant’s motion, and after Appellant

received the results of the DNA tests which

did not physically link him to the crime

scene, he filed a motion for a new trial on

September 9, 2005.

On November 18, 2005, the [PCRA] court

determined that Appellant’s claim,

contained in his first PCRA petition, that

his trial attorney was ineffective for

failing to file a direct appeal, was

meritorious. Accordingly, the [PCRA court]

reinstated Appellant’s direct appeal rights

nunc pro tunc. 

Commonwealth v. Gerber, 909 A.2d 870 (Pa.

Super. 2006) (unpublished memorandum)

(citations and footnotes omitted). Thereafter,

Appellant filed a direct appeal wherein he

raised issues challenging whether there was

sufficient evidence to sustain his convictions

and the discretionary aspects of his sentence.

On August 15, 2006, a panel of this Court

affirmed the judgment of sentence. Id.

Appellant’s subsequent petition for allowance

of appeal was denied by our Supreme Court on

December 29, 2006. Commonwealth v. Gerber, 591

Pa. 661, 916 A.2d 631 (2006). 

On February 1, 2007, Appellant filed the

instant PRA petition. On April 12, 2007, the

PCRA court issued notice to Appellant, pursuant

to Pennsylvania Rule of Criminal Procedure

907(1), indicating its intention to dismiss the

PCRA petition and an accompanying opinion. On

May 8, 2007, the PCRA court issued an order

denying relief and dismissing the PCRA

petition. This timely appeal followed. 

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...Accordingly, after a comprehensive review of

Appellant’s arguments, we have discerned the

following issues for our review: 

1. Whether prior counsel was ineffective

for failing to emphasize the

importance of the 2005 DNA test

results to the court?

2. Whether prior counsel was ineffective

for failing to file pre-trial motions

and for failing to ask for a judgment

of acquittal?

3. Whether prior counsel was ineffective

for failing to object to the victim’s

testimony? 

Commonwealth v. Gerber, 953 A.2d 828 (Pa.Super. April 1, 2008)

(Table, No. 1016 MDA 2007)(footnote omitted)(Doc. 5, copy

attached at Ex. 16).

By Memorandum Order filed April 1, 2008, the Pennsylvania

Superior Court affirmed the PCRA court’s denial of Gerber’s

PCRA petition. Id. Petitioner filed for allowance of appeal

to the Pennsylvania Supreme Court, which was denied on October

1, 2008. Commonwealth v. Gerber, 598 Pa. 773, 958 A.2d 1047

(Pa. Oct. 1, 2008) (Table, No. 288 MAL 2008).

On February 3, 2009, Gerber filed the instant petition

for writ of habeas corpus in which he raises the following

challenges to his conviction and sentence:

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1. Twice tested DNA samples exclude petitioner

and the victim’s husband, which indicates

a third party. The DNA evidence obtained

from victim’s clothing revealed

“unidentified” male genetic profile. 

2. Counsel was ineffective for failing to

request dismissal of all charges because

DNA results excluded petitioner. 

3. Counsel was ineffective for failing to move

for directed verdict of acquittal because

there was no evidence linking petitioner to

crime. 

(Doc. 1, petition). 

 In accordance with United States v. Miller, 197 F.3d 644

(3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir.

2000), the Court issued formal notice to Gerber that he could

either have the petition ruled on as filed, that is, as a §

2254 petition for writ of habeas corpus and heard as such, but

lose his ability to file a second or successive petition,

absent certification by the court of appeal, or withdraw his

petition and file one all-inclusive § 2254 petition within the

one-year statutory period prescribed by the Antiterrorism

Effective Death Penalty Act (“AEDPA”). (Doc. 2). On March

16, 2009, Gerber returned the notice of election form,

indicating that he wished to proceed with the petition for

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writ of habeas corpus as filed. (Doc. 3). Thus, a Show Cause

Order was issued on March 31, 2009. (Doc. 4). Although a

response was filed, (Docs. 5, 6), petitioner elected not to

file a traverse. The petition is now ripe for disposition. 

II. Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is

the proper mechanism for a prisoner to challenge the “fact or

duration” of his confinement. Preiser v. Rodriguez, 411 U.S.

475, 498-499 (1973). “[I]t is not the province of a federal

habeas court to reexamine state-court determinations on

state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-8

(1991). Rather, federal habeas review is restricted to claims

based “on the ground that [petitioner] is in custody in

violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at

67-8 (1991); see also Pulley v. Harris, 465 U.S. 37, 41

(1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997). 

A. Exhaustion

“A federal court may not grant a writ of habeas corpus

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unless (1) ‘the applicant has exhausted the remedies available

in the courts of the state’, (2) no such state remedy is

available or (3) available remedies are ineffective to protect

the applicant’s rights. 28 U.S.C. § 2254(b)(1).” Henderson

v. Frank, 155 F.3d 159, 164 (3d Cir. 1998). “The exhaustion

requirement is satisfied when the state courts have had an

opportunity to pass upon and correct alleged constitutional

violations.” Evans v. Court of Common Pleas, Delaware County,

Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). The exhaustion

requirement “is not a mere formality. It serves the interests

of comity between the federal and state systems by allowing

the state an initial opportunity to determine and correct any

violations of a federal prisoner’s federal rights.” Gibson v.

Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). “Unless it

would be patently futile to do so [state prisoners] must seek

relief in state court before filing a federal habeas

petition....” Santana v. Fenton, 685 F.2d 71, 77 (3d Cir.

1982). 

The habeas corpus petitioner shoulders the burden of

establishing exhaustion of state court remedies. McMahon v.

Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987). The threshold

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inquiry in the exhaustion analysis is whether the claims

asserted in the habeas corpus petition have been “fairly

presented” to the state courts. Picard v. Connor, 404 U.S.

270, 275 (1971). “All claims that a petitioner in state

custody attempts to present to a federal court for habeas

review must have been fairly presented to each level of the

state courts.” Lines v. Larkins, 208 F.3d 153, 159 (3d Cir.

2000), cert. denied, 531 U.S. 1082 (2001). Fair presentation

requires that the “substantial equivalent” of a petitioner’s

federal habeas claims be presented to the state courts. 

Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). 

The respondent concedes that Petitioner has exhausted his

state court remedies. The merits of the claims will therefore

be addressed. 

B. Merits

Section 2254(d) of Title 28 of the United States Code

provides, in pertinent part, that an application for a writ of

habeas corpus premised on a claim previously adjudicated on

the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

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the United States; or

(2) [the decision] was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). To establish that the decision was

contrary to federal law “it is not sufficient for the

petitioner to show merely that his interpretation of Supreme

Court precedent is more plausible than the state court’s;

rather, the petitioner must demonstrate that Supreme Court

precedent requires the contrary outcome.” Matteo v.

Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly,

a federal court will only find a state court decision to be an

unreasonable application of federal law if the decision,

“evaluated objectively and on the merits, resulted in an

outcome that cannot reasonably be justified under existing

Supreme Court precedent.” Id.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is

required to presume that a state court’s findings of fact are

correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court’s error. 

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that

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the clear and convincing standard in § 2254(e)(1) applies to

factual issues, whereas the unreasonable application standard

of § 2254(d)(2) applies to factual decisions) Matteo, 171 F.3d

at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). 

This presumption of correctness applies to both explicit and

implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280,

286 (3d Cir. 2000). Consequently, a habeas petitioner “must

clear a high hurdle before a federal court will set aside any

of the state court’s factual findings.” Mastracchio v. Vose,

274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph

(1), a factual determination should be adjudged “unreasonable”

under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the

evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v.

Horn, 276 F. Supp 2d 278, 296 (E.D. Pa. 2003); see also Torres

v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson

vs. Virginia, 443 U.S. 307, 316 (1979). “This provision

essentially requires the district court to step into the shoes

of an appellate tribunal, examining the record below to

ascertain whether sufficient evidence existed to support the

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findings of fact material to the conviction.” Breighner v.

Chesney, 301 F. Supp 2d 354, 364 (M.D. Pa. 2004) (citing 28

U.S.C. § 2254(d)(2) and (f)1). Mere disagreement with an

inferential leap or credibility judgment of the state court is

insufficient to permit relief. Porter, 276 F. Supp 2d at 296;

see also Williams v. Taylor, 529 U.S. 362, 408-09 (2000);

Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when

the finding lacks evidentiary support in the state court

record or is plainly controverted by evidence therein should

the federal habeas court overturn a state court’s factual

determination. Porter, 276 F. Supp 2d at 296; see also

Williams, 529 U.S. at 408-09.

III. Discussion

1. Sufficiency of Evidence

Gerber asserts that the DNA evidence presented at trial

categorically excluded him as the perpetrator of the alleged

1

“If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support the

State court’s determination of a factual issue made therein,

the applicant, if able, shall produce that part of the record

pertinent to a determination of the sufficiency of the

evidence to support such determination.” 28 U.S.C. § 2254(f).

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offenses. (Doc. 1, petition). 

In its analysis, on direct review, of the sufficiency of

the evidence, the Pennsylvania Superior Court was guided by

the following standard of review:

We begin our analysis by noting: 

A challenge to the sufficiency of the

evidence is a question of law. In

reviewing the sufficiency challenge, we

must determine whether the evidence, and

all reasonable inferences deducible from

that, viewed in the light most favorable to

the Commonwealth as verdict-winner, are

sufficient to establish all the elements of

the offense beyond a reasonable doubt. We

may not weight the evidence and substitute

our judgment for that of the fact-finder. 

Issues of witness credibility are the

province of the fact-finder, not the

appellate court. However, where the

evidence offered to support the verdict is

in contradiction to the physical facts, in

contravention to human experience and the

laws of nature, then the evidence is

insufficient as a matter of law. 

Commonwealth v. Heater, 899 A.2d 1126, 1131 (Pa.

Super. 2006)(citations omitted). 

Commonwealth v. Gerber, 909 A.2d 870 (Pa.Super. Aug 15, 2006)

(Table, NO. 68 MDA 2006).

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The state superior court reviewed the factual record and

concluded that “evidence admitted at trial was sufficient to

support Appellant’s conviction.” Id. at 8. 

A criminal defendant may be convicted only “upon proof

beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship,

397 U.S. 358, 364 (1970). The Supreme Court announced the

federal standard for determining the sufficiency of the

evidence to support a conviction in Jackson v. Virginia, 443

U.S. 307 (1979). Although direct evidence may be more

probative of a fact, circumstantial evidence alone may suffice

for a finding of guilt beyond a reasonable doubt. Id. at

324-25; see also Fed. Power Comm'n v. Fla. Power & Light Co.,

404 U.S. 453, 469 & n. 21 (1972) (“[E]ven in criminal cases,

guilt beyond a reasonable doubt often can be established by

circumstantial evidence.”) (quoting Ind. & Mich. Elec. Co. v.

Fed. Power Comm'n, 365 F.2d 180, 184 (7th Cir.1966)).

Under Jackson, the federal court is to determine 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.” 

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Id. at 319 (emphasis in original). Federal review of a

sufficiency of the evidence claim under Jackson must be based

upon state law, that is, the substantive elements of the crime

as defined by applicable state law. Id. at 324 n. 16. The

credibility of witnesses, the resolution of conflicts of

evidence, and the drawing of reasonable inferences from proven

facts all fall within the exclusive province of the fact

finder and, therefore, are beyond the scope of federal habeas

review. Id. at 309; see also Johnson v. Mechling, 541 F.

Supp. 2d 651, 666-67 (M.D. Pa. 2008).

The state court applied a sufficiency of evidence

standard that is indistinguishable from the Jackson standard.

It found the evidence sufficient to support the jury verdict,

and Gerber has made no showing that this determination rests

upon an unreasonable determination of the facts. 

Under Pennsylvania law, a person is guilty of attempt to

commit criminal homicide if “a person commits an attempt when,

with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that

crime”. See 18 Pa.C.S.A. § 901. A person is guilty aggravated

assault if he:

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(1) attempts to cause serious bodily injury to

another, or causes such injury intentionally,

knowingly or recklessly under circumstances

manifesting extreme indifference to the value of

human life;

(4) attempts to cause or intentionally or knowingly

causes bodily injury to another with a deadly

weapon;

18 Pa.C.S.A. § 2702. A person commits a felony of the first

degree (rape) when the person engages in sexual intercourse

with a complainant:

(1) By forcible compulsion. 

(2) By threat of forcible compulsion that would

prevent resistance by a person of reasonable

resolution. 

(3) Who is unconscious or where the person knows

that the complainant is unaware that the sexual

intercourse is occurring. 

(4) Where the person has substantially impaired the

complainant's power to appraise or control his or

her conduct by administering or employing, without

the knowledge of the complainant, drugs, intoxicants

or other means for the purpose of preventing

resistance. 

(5) Who suffers from a mental disability which

renders the complainant incapable of consent. 

18 Pa.C.S.A. § 3121. Under Pennsylvania law: 

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(a) A person is guilty of burglary if he enters a

building or occupied structure, or separately

secured or occupied portion thereof, with intent to

commit a crime therein, unless the premises are at

the time open to the public or the actor is licensed

or privileged to enter.

18 Pa.C.S.A. § 3502(a). Finally, a person commits the offense

of unlawful restraint if he knowingly:

(1) restrains another unlawfully in circumstances

exposing him to risk of serious bodily injury; or 

(2) holds another in a condition of involuntary

servitude. 

18 Pa.C.S.A. § 2902. 

At petitioner’s trial, testimony was introduced

concerning the results of DNA testing. (Doc. 5, Trial

Transcript, N.T. 151-153). Detective Steven Bord testified

that a biological stain was located on the underwear of the

victim and that the stain was tested for DNA material. Id. DNA

material extracted from the stain was identified as being that

of the victim and her husband. Id. Detective Bord

acknowledged that there was no DNA material located linking

Petitioner to the crime. Id. Contrary to petitioner’s claim,

DNA evidence did not implicate an unknown third party.

However, although the DNA evidence did not prove that

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petitioner was the perpetrator of the crime, it also did not

establish that some other person committed the crime as

petitioner contends.

Thus, the Superior Court held that there was sufficient

evidence to support Petitioner’s convictions of attempt to

commit criminal homicide, aggravated assault, rape, burglary,

and unlawful arrest, relying on the following evidence:

In the case sub judice, careful review reveals that

the Commonwealth presented ample evidence to

establish that Appellant was at the crime scene. 

First and foremost, the victim, a former co-worker

of Appellant, positively identified Appellant as her

assailant. Moreover, Appellant’s cellmate, James

Bell, testified that Appellant admitted raping the

victim and leaving her for dead.

Commonwealth v. Gerber, 953 A.2d 828 (Pa.Super. Apr. 1, 2008)

(Table, NO. 1016 MDA 2007). The state court’s analysis is

cogent and entirely consistent with federal standards. 

Petitioner is, therefore, not entitled to relief.

Based on the foregoing, this Court finds that the

Pennsylvania Superior Court’s decision to deny petitioner

relief was not contrary to, or involved an unreasonable

application of, clearly established federal law as determined

by the Supreme Court of the United States. 

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2. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668, 688,(1984),

the United States Supreme Court held that to prove a

constitutional violation for ineffective assistance of

counsel, a habeas petitioner must meet a two-pronged test. The

petitioner must show “that counsel's performance was

deficient” and that “the deficient performance prejudiced the

defense.” Id. at 687; accord Deputy v. Taylor, 19 F.3d 1485,

1493 (3d Cir.1994).

To demonstrate deficient performance, a petitioner must

show that “counsel's performance fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688;

accord Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.2001). A

reviewing court must “indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689; accord

Jermyn, 266 F.3d at 282; Berryman v. Morton, 100 F.3d 1089,

1094 (3d Cir.1996). If, under the circumstances, counsel's

actions might be considered sound trial strategy, the

presumption is not rebutted, Strickland, 466 U.S. at 689,

because “substantial deference is to be accorded counsel's

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tactical decisions.” United States v. Wiener, 127 F.Supp.2d

645, 648 (M.D.Pa.2001). A decision supported by “reasonable

professional judgment does not constitute ineffective

assistance of counsel. See Burger v. Kemp, 483 U.S. 776, 794,

(1987). It follows that counsel cannot be deemed ineffective

for pursuing a meritless claim. Hartey v. Vaughn, 186 F.3d

367, 372 (3d Cir.1999).

A petitioner satisfies the second prong and shows

prejudice when “there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694; accord Frey v.

Fulcomer, 974 F.2d 348, 358 (3d Cir.1992) “Without proof of

both deficient performance and prejudice to the defense ... it

could not be said that the sentence or conviction resulted

from a breakdown in the adversary process that rendered the

result of the proceeding unreliable, and the sentence or

conviction should stand.” Bell, 535 U.S. at 695 (internal

quotations and citation omitted). In assessing whether the

result of the proceeding might have been different, a

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reviewing court must consider the “totality of the evidence

before the judge or jury.” Strickland, 466 U.S. at 695;

Jermyn, 266 F.3d at 283. However, “a court can choose to

address the prejudice prong before the ineffectiveness prong

and reject an ineffectiveness claim solely on the ground that

the defendant was not prejudiced." Rolan v. Vaughn, 445 F.3d

671, 678 (3d. Cir. 2006). “The object of an ineffective

assistance claim is not to grade counsel's performance. If it

is easier to dispose of an ineffective assistance claim on the

ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed." Id. 

At the time the state court reviewed the claims raised by

Gerber, Strickland's familiar two-pronged test was the

“clearly established federal law” applicable to ineffective

assistance of counsel claims. Under Pennsylvania state

jurisprudence, a three-prong test is applied to ineffective

assistance of counsel claims, but is, in substance, identical

to the Strickland test. See, e.g., Commonwealth v. Pierce,

515 Pa. 153, 527 A.2d 973, 975-77 (Pa.1987). The Third Circuit

Court of Appeals has held that Pennsylvania's test for

assessing ineffective assistance of counsel claims is not

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contrary to Strickland. Jacobs v. Horn, 395 F.3d 92, 107 n.

9 (3d Cir.2005); Werts v. Vaughn, 228 F.3d 178, 204 (3d

Cir.2000). Thus, under § 2254(d)(1), the relevant inquiry in

addressing an ineffectiveness claim that has been adjudicated

on the merits is whether the Pennsylvania's Supreme Court's

decision involved an unreasonable application of Strickland.

Jacobs, 395 F.3d at 107 n. 9; Werts, 228 F.3d at 204. 

Petitioner’s remaining two claims allege trial counsel’s

ineffectiveness for failing to file a pre-trial motion to

quash the results of the DNA tests and for failing to move for

a directed verdict judgment of acquittal. (Doc. 1, petition). 

These issues were addressed by the Pennsylvania Superior

Court on appeal from the denial of Gerber’s PCRA petition. 

The state court held the following: 

Appellant first argues that prior counsel was

ineffective for failing to emphasize the importance

of DNA test results, which Appellant contends

establish that he was not at the scene of the crime. 

Essentially, Appellant claims that his evidence

challenges the credibility of the victim’s testimony

and allows the jury to infer that another individual

could have committed the crimes in question. 

Our review of the record reflects that the results

of DNA testing performed in 1996 and 2005 were

identical. Results from both tests failed to

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establish the presence of Appellant’s DNA in the

samples taken from the crime scene and from the

victim’s person. Rather, the results indicated that

the victim’s DNA was present at the scene. 

Detective Steven Bord, a qualified expert, testified

at trial that no evidence was obtained from the

scene linking anyone other than the victim and her

husband to the scene of the crime. N.T., 12/4-

5/1996, at 153. While this physical evidence does

not prove that Appellant was the perpetrator of the

crimes, it also does not establish that a person

other than Appellant was involved in the incident. 

Therefore, Appellant’s contrary argument lacks

merit. Accordingly, because there is no merit to

the underlying claim, Appellant has failed to

establish the ineffective assistance of prior

counsel. 

Appellant next argues that trial counsel was

ineffective for failing to file a pre-trial motion

to quash the results of the DNA tests and for

failing to move for a judgment of acquittal. 

Regarding Appellant’s claim that counsel should have

filed a motion to preclude the admission of the DNA

test results, we are aware of the fact that the

results failed to establish that Appellant was at

the scene of the crime. It would appear that such

results would actually favor Appellant at trial. 

Thus, we conclude that such evidence was not

prejudicial to Appellant. Moreover, we fail to see

how Appellant has presented a reasonable probability

that the outcome of the proceedings would have been

different if the DNA results had not been admitted

at trial. Accordingly, this claim fails to offer

Appellant an avenue of relief. 

Next, concerning Appellant’s claim that trial

counsel was ineffective for failing to move for a

judgment of acquittal, our review of the record

reflects that counsel did, in fact, move for a

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judgment of acquittal. N.T., 12/4-5/1996, at 231. 

Thus, the record belies Appellant’s argument. 

Therefore, in light of the fact that trial counsel

actually presented the motion Appellant now argues

should have been presented, the underlying claim

lacks merit. Accordingly, this challenge to the

effective assistance of counsel also fails. 

In denying Gerber’s claim, the Superior Court used the

ineffective assistance of counsel test articulated in

Commonwealth v. Pierce, 724 A.2d 916, 921 (Pa. 1999), which

the Third Circuit has held is not contrary to Strickland.

Jacobs, supra. Therefore, the legal standard applied by the

Pennsylvania Superior Court to Gerber’s PCRA petition was not

contrary to Supreme Court precedent. Applying the principles

enunciated in Pierce, the Pennsylvania Superior Court found

petitioner’s claims to be without merit, and as a result,

trial counsel not ineffective. The Superior Court’s decision

to deny the ineffective assistance of counsel claim was not

unreasonable. Thus, habeas relief is unavailable under

§ 2254(d), and the Court will deny the petition. 

 An appropriate Order accompanies this Memorandum

Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-00223-MM-DB Document 7 Filed 04/28/10 Page 23 of 24
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

SCOTT GERBER, :

:

Petitioner : No. 4:CV-09-0223

:

vs. : Petition Filed 2/03/09) 

:

PA. ATTORNEY GENERAL, : (Judge Muir)

:

Respondent :

ORDER

April 28, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus

(Doc. 1), is DENIED pursuant to 28 U.S.C.

§ 2254(d).

2. The Clerk of Court is directed to CLOSE

this case.

3. There is no basis for the issuance of a

certificate of appealabilty. See 28 U.S.C.

§ 2253(c). 

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-00223-MM-DB Document 7 Filed 04/28/10 Page 24 of 24