IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS LEE BROWN, JR., :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-13-1495

:

SUPT. DANIEL BURNS, : (Judge Brann)

:

Respondent :

MEMORANDUM

November 18, 2015

Background

Thomas Lee Brown, Jr., an inmate presently confined at the Forest State

Correctional Institution, Marienville, Pennsylvania (SCI-Forest), filed this pro se

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as

Respondent is SCI-Forest Superintendent Daniel Burns.

Petitioner states that on April 20, 2007 he was convicted of first degree

murder and retaliation against witness/victim Lamont Nelson following a jury trial

in the Court of Common Pleas of York County, Pennsylvania.1

 During trial,

Brown argued that he was not the assailant. He was subsequently sentenced on

1 According to the Commonwealth, Nelson was the chief witness against

Petitioner in a pending drug related criminal prosecution.

1

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 1 of 30
May 29, 2007 to a mandatory term of life imprisonment without parole.2

Brown acknowledges that his conviction and sentence were affirmed on

October 6, 2008 following a counseled direct appeal to the Superior Court of

Pennsylvania. See Commonwealth v, Brown, 964 A. 2d 429 (Pa. Super 2008). 

The direct appeal asserted that the trial court erred by: (1) denying a motion to

suppress the photo identification and any subsequent identification of the

defendant by witness James Sanders;3

 (2) admitting autopsy photographs; (3)

denying the defendant’s motion in limine to exclude the testimony of

Commonwealth witness Paul Summerbell; (4) giving a jury instruction on

consciousness of guilt relating to the alleged alteration of the defendant’s

appearance during a physical lineup;4

 (5) allowing hearsay testimony by

Summerbell; (6) permitting testimony regarding the collateral Smokey Bones

restaurant case; (7) not excluding the testimony of the Commonwealth’s gunshot

residue expert and (8) there was insufficient evidence to support the verdict. See

2 The jury deadlocked on whether to impose the death penalty.

3

 After hearing gunshots, Sanders allegedly saw Brown running from the area

where Nelson was shot and shortly thereafter identified the Petitioner from a photo

array. Although Nelson was unable to pick Brown out of a physical lineup, the

witness later identified Petitioner in court. 

4 The Commonwealth presented evidence that before the in person line up

identification involving witness Sanders, Brown purportedly encouraged another

person in the line up to wear his eyeglasses in order to confuse Sanders.

2

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 2 of 30
Doc. 1, p. 12.5

Thereafter, Petitioner’s request for allowance of appeal was denied on

February 27, 2009 by the Supreme Court of Pennsylvania. See Commonwealth v.

Brown, 966 A.2d 570 (Pa. 2009). Petitioner indicates that with the exception of

his insufficient evidence argument all of the grounds brought before the Superior

Court were presented before the Pennsylvania Supreme Court. See id. at p. 13.

Petitioner also sought relief via an action pursuant to Pennsylvania’s Post

Conviction Relief Act (PCRA).6

 Brown’s PCRA petition alleged that trial

counsel was ineffective for failing to: (1) call Richard Saferstein, Ph.D. as a

rebuttal gunshot residue expert; (2) request a mistrial upon notification that the

trial court judge had contact with a juror during a trial break; (3) appeal the trial

court’s ruling preventing disclosure of the names of persons arrested based on

evidence disclosed by the decedent while acting as a confidential informant; and

(4) neglecting to investigate the identify of the individual who had a physical

altercation with the decedent the day before his death. See id. at pp. 13-14. 

5

 See also Doc. 11-2, pp. 183-184. 

6 See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for

post-conviction collateral relief for allegations of error, including ineffective

assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights

to appeal by Commonwealth officials, and violation of constitutional provisions." 

Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).

3

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 3 of 30
Following appointment of counsel and an evidentiary hearing, the sentencing

court denied relief on December 29, 2011.

Brown appealed that decision to the Superior Court of Pennsylvania which

affirmed the denial of PCRA relief by decision dated August 15 , 2012. Brown

then filed a petition for allowance of appeal to the Pennsylvania Supreme Court 

which was denied on February 14, 2013. 

Ground One of Petitioner’s pending action reasserts the same PCRA

ineffective assistance arguments with exception of Brown’s contention that

counsel was deficient for not discovering the identify of the individual who had a

physical altercation with the decedent the day before his death. See id. at p. 14.

Ground Two sets forth the following direct appeal arguments that the trial

court erred by: (1) denying a motion to suppress the photo identification by

witness Sanders; (2) admitting autopsy photographs; (3) denying defendant’s

motion in limine to exclude Summerbell’s testimony; (4) giving a jury instruction

on consciousness of guilt; and (5) allowing hearsay testimony by Summerbell. 

Also included in Ground Two is argument (6) which asserts that the trial court

improperly denied a request by the jury to be provided with a book on gun shot

residue. Ground Three maintains that there was insufficient evidence to support

the convictions.

4

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 4 of 30
Respondent concedes that this matter is timely filed. See Doc. 11, ¶ 13. 

However, the response asserts that the petition is nonetheless subject to dismissal

for failure to exhaust state remedies with respect to his procedurally defaulted

claims (Ground Two (6)) that the trial court acted improperly by preventing the

jury from being provided with a book on gunshot residue and insufficient evidence

(Ground Three). The Respondent also contends that the admission of the autopsy

photos was proper and the trial court’s decision to allow Summerbell’s testimony

was not an abuse of discretion. Furthermore, the response contends that there is

no basis for habeas corpus relief with respect to the remaining allegations of

ineffective assistance of counsel and trial court error.

Discussion

It is undisputed that Petitioner was charged with first degree murder arising

from the shooting death of Lamont Nelson during the early morning of April 7,

2006. Nelson was a confidential informant and the Commonwealth argued that

Brown had a motive to kill the victim because Nelson was the chief witness

against him in a pending state criminal prosecution.

An eyewitness, James Sanders, testified that he heard gunshots and then

saw Petitioner running away from the area where the shooting took place. Sanders

identified Brown from a photographic lineup approximately one hour after the

5

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 5 of 30
incident. The Commonwealth also presented testimony that during a second

physical lineup conducted on June 9, 2007, the Petitioner encouraged another man

in the lineup (Summerbell) to wear Brown’s glasses in order to confuse Sanders. 

In addition, the Commonwealth presented expert testimony which linked Brown to

the murder through gunshot residue analysis.

I. Procedural Default

Respondent maintains that Brown did not properly exhaust his available

state court remedies with respect to his claim that the trial court acted improperly

by preventing the jury from being provided with a book on gunshot residue that

was used as evidence during the trial. See Doc. 11, p. 14. Specifically,

Respondent argues that although Petitioner raised claims regarding the gunshot

residue expert testimony given at trial, he “never raised an issue regarding the jury

being allowed to see a book that the expert used.” See id. at p. 15. Furthermore,

Respondent argues that said claim has been procedurally defaulted in state court

and should not be entertained by this Court

In a similar argument, Respondent contends that Ground Three is also

procedurally defaulted and subject to dismissal because the Superior Court

concluded that the insufficiency of evidence argument was waived on direct

appeal. See Doc. 11, p. 15.

6

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 6 of 30
Title 28 United States Code Section 2254(b)(1) provides that an application

for a writ of habeas corpus filed on behalf of a person in custody pursuant to the

judgment of a State court cannot be granted unless the applicant has exhausted the

remedies available in the courts of the State; or there is an absence of available

state corrective process; or there are existing circumstances which render the state

process ineffective.7

 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

prisoner’s federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). 

The United States Court of Appeals for the Third Circuit has stated that

“[U]nder 28 U.S.C. § 2254(c), such a petitioner ‘shall not be deemed to have

exhausted the remedies available in the courts of the State ... if he has the right

under the law of the State to raise, by any available procedure, the question

presented.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001). 

“A state prisoner is generally barred from obtaining federal habeas relief

unless the prisoner has properly presented his or her claims through one ‘complete

round of the State’s established appellate review process.’” Woodford v. Ngo,

7 However, a Section 2254 petition may be denied on the merits

notwithstanding the failure of a petitioner to exhaust available state court remedies. 

7

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 7 of 30
548 U.S. 81, 126 S.Ct. 2378, 2386-87 (2006) (internal citations omitted);

O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)(while exhaustion does not

require state prisoners to invoke extraordinary remedies, the state courts must be

afforded one full opportunity to resolve any constitutional issues via completion of

the State's established appellate review process). The United States Supreme

Court in O’Sullivan explained, that state prisoners must “file petitions for

discretionary review when that review is part of the ordinary appellate review

procedure in the State.” Id. at 847. Our Supreme Court added that, in determining

whether a state prisoner has preserved an issue for presentation in a federal habeas

petition, it must be determined not only whether a prisoner has exhausted his state

remedies, but also whether he has properly exhausted those remedies, i.e., whether

he has fairly presented his claims to the state courts. See id. at 848.

Fair presentation requires that the “substantial equivalent” of both the legal

theory and the facts supporting the federal claim are submitted to the state courts

and the same method of legal analysis applied in the federal courts must be

available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227,

1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). 

Moreover, to satisfy exhaustion, the state court must be put on notice that a federal

claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The

8

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 8 of 30
exhaustion requirement is satisfied if the petitioner’s claims are presented through

a collateral proceeding, such as a petition under the PCRA, and it is not necessary

to present federal claims to state courts both on direct appeal and in a PCRA

proceeding. Evans, 959 F.2d at 1230.

When a claim has not been fairly presented to the state courts but further

state-court review is clearly foreclosed under state law, exhaustion is excused on

the ground of futility. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);

Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir. 1993). Such a claim is

procedurally defaulted, not unexhausted. A federal habeas court cannot review a

procedurally defaulted claim, “if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate to support the

judgment.” Beard v. Kindle, 558 U.S. 53, 55 (2009). Procedural default can only

be excused if a petitioner can show “cause” and “prejudice” or that a “fundamental

miscarriage of justice” would result. Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

As previously discussed, Ground Two (6) of Brown’s Petition raises a

claim that the trial court acted improperly by preventing the jury from being

provided with a book on gunshot residue that was used as evidence during the

trial. Ground Three maintains that the evidence was insufficient to sustain a

9

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 9 of 30
finding of guilt.

In his Petition, Brown acknowledges that the claims listed at “Ground Two

(6) Three” were not previously presented due to the ineffective assistance of

counsel on direct appeal. See Doc. 1, ¶ 13. Accordingly, it is undisputed that 

Petitioner’s claim that the trial court acted improperly by preventing the jury from

being provided with a book on gunshot residue that was used as evidence during

the trial as well as his insufficient evidence argument are both unexhausted. It is

equally apparent that given the passage of time and the fact that Petitioner has

already pursued both a direct appeal and a PCRA action, those arguments have

been procedurally defaulted in state court.

Given Petitioner’s failure to offer any viable explanation as to why he did

not properly present Ground Two (6) and Ground Three in either his direct appeal

or PCRA action, he has failed to establish cause and resulting prejudice for his

procedurally defaulted argument. It is especially noted that while Brown contends

that his trial counsel, who also represented him on direct appeal, erred by not

including those assertions, there is no viable explanation as to why they were not

then included in Brown’s PCRA action filed pro se and thereafter when he was

represented by new counsel. There is also no basis for a finding that a

fundamental miscarriage of justice would result if said claims were not addressed

10

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 10 of 30
on their merits. The Respondent’s request for dismissal of Ground Two (6) and

Ground Three will be granted.

II. Trial Court Error

A. Standard of Review

“The Antiterrorism and Effective Death Penalty Act of 1996 modified a

federal habeas court’s role in reviewing state prisoner applications in order to

prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693

(2002). Specifically, when a federal-law issue has been adjudicated on the merits

by a state court, the federal court reverses only when the decision was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).8

 See

generally, Knowles v. Mirzayance, 556 U.S. 111, 114, ( 2009); Gattis v. Snyder,

8 Specifically, 28 U.S.C. § 2254(d)(1) provides:

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; . . . .

11

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 11 of 30
278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir.

2001). The United States Supreme Court has held that the “contrary to” and

“unreasonable application” clauses of § 2254(d)(1) have independent meaning. 

Williams v. Taylor, 529 U.S. 362, 404-405 (2000) As explained in Bell, 535 U.S.

at 694: 

A federal habeas court may issue the writ under the

‘contrary to’ clause if the state court applies a rule

different from the governing law set forth in our cases,

or if it decides a case differently than we have done on a

set of materially indistinguishable facts. . . . The court

may grant relief under the ‘unreasonable application’

clause if the state court correctly identifies the governing

legal principle from our decisions but unreasonably

applies it to the facts of the particular case. . . . The focus

of the latter inquiry is on whether the state court’s

application of clearly established federal law is

objectively unreasonable . . . .

Furthermore, resolution of factual issues by the state courts are presumed to be

correct unless the petitioner shows by clear and convincing evidence that they are

not. 28 U.S.C. § 2254(e) (1). 

In summary, the appropriate inquiry for federal district courts in reviewing

the merits of Section 2254 petitions is whether the state court decisions applied a

rule different from the governing law set forth in United States Supreme Court

cases, decided the case before them differently than the Supreme Court has done

on a set of materially indistinguishable facts, or unreasonably applied Supreme

12

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 12 of 30
Court governing principles to the facts of the particular case. See Keller v.

Larkins, 251 F.3d 408, 417-18 (3d Cir. 2001) (a district court entertaining a 

§ 2254 action must first address whether the state court decision was contrary to

Supreme Court precedent); Martini v. Hendricks, 188 F. Supp.2d 505, 510 (D.

N.J. 2002) (a § 2254 applicant must show that the state court decision was based

on an unreasonable determination of facts in light of evidence presented in the

state court proceeding). Findings of fact by the state courts are presumed to be

correct unless the petitioner shows by clear and convincing evidence that they are

not. See 28 U.S.C. § 2254(e)(1).

B. Sanders’ Identification

James Sanders testified that he was walking his dog in the neighborhood

where the victim was shot and killed. Sanders allegedly identified Petitioner as 

the person he saw running from the area where he heard gunshots. Petitioner

maintains that the trial court erred by denying a motion to suppress Sanders’

identification of Brown by photograph array and all subsequent identifications

made by Commonwealth witness Sanders.9

 See Doc. 1, p. 14. 

9

 Since Sanders testified at trial the Petitioner was clearly provided with an

opportunity to confront this witness as provided by the Sixth Amendment.

13

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 13 of 30
Respondent contends that the claims pertaining to those identifications are

subject to dismissal because challenges to evidentiary rulings allege violations of

the Fourth Amendment which are not a basis for federal habeas corpus relief under

Stone v. Powell, 428 U.S. 465, 494 (1976) where a petitioner had full and fair

opportunity to litigate the claim in state court. See Doc. 11, p. 11.

As a general rule, federal habeas corpus review is not available to adjudge

the correctness of a state court evidentiary ruling. See Estelle v. McGuire, 502

U.S. 62, 67-68 (1991); Keller v. Larkins, 251 F.3d 408, 416 n.2 (3d Cir. 2001);

Lupkovich v. Cathel, Civil No. 04-5399, 2006 WL 3313975, at *4 (D. N.J., Nov.

14, 2006) (“Because the trial court’s ruling limiting the cross-examination of

Chester Anderson regarding his reputation for violence presents a question of state

evidentiary law, it is not cognizable under § 2254.”) In short, evidentiary rulings

are matters of state law, and are not within the province of a federal habeas corpus

court. See King v. Kerestes, Civil No. 09-1749, 2009 WL 5178805, at *3 (E.D.

Pa., Dec. 21, 2009). It is only where an evidentiary ruling “so infuse[s] the trial

with unfairness as to deny due process of law,” Lisenba v. People, 314 U.S. 219,

228 (1941), that federal habeas corpus review may exist. 

It is equally well settled that “... a state prisoner may not be granted federal

habeas corpus relief on the ground that evidence seized in an unconstitutional

14

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 14 of 30
search or seizure was introduced at his trial,” if the state has already provided an

“opportunity for full and fair litigation” of his Fourth Amendment claim. Stone,

428 U.S. 465, 494; Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir.), cert denied,

512 U.S. 1230 (1994). Stone precludes a habeas petitioner from raising a Fourth

Amendment claim if he has been afforded a full and fair opportunity to litigate

that claim in state court. Gilmore v. Marks, 799 F.2d 51, 54 (3d Cir. 1986), cert.

denied, 479 U.S. 1041 (1987).

The record of this action as summarized above clearly demonstrates that

Brown pursued a direct appeal as well as a PCRA action which provided him with

a full and fair opportunity to litigate any Fourth Amendment claims in state court. 

The state courts concluded that the photo array and physical line up were not

unduly suggestive or otherwise deficient. Furthermore, the trial court’s

evidentiary ruling denying a motion to suppress the identifications by Sanders is a

question of state evidentiary law, not cognizable under § 2254 as it did not render

the trial unfair to the extent that Brown was denied due process. 

Accordingly, Brown is not entitled to federal habeas corpus relief with

respect to any claims (Ground Two (1)) regarding the use of identification

evidence against him which was obtained as the result of an alleged

unconstitutional photo array.

15

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 15 of 30
C. Autopsy Photos

It is undisputed that the trial court allowed the Commonwealth to introduce

two black and white autopsy photographs. Brown describes the photos as being a

close up of a gunshot wound to the back of the victim’s head and a photo of a

gunshot wound to the victim’s upper back. See Doc. 35, p. 74. Petitioner

contends that permitting the introduction of those photos was improper since the

cause of death was undisputed.10

As noted above, federal habeas corpus review is generally not available to

adjudge the correctness of a state court evidentiary ruling such as the admission of

photographic evidence. Moreover, evidence is excluded only if its prejudicial

effect substantially outweighs its probative value. Perryman v. H & R Trucking,

135 Fed. Appx. 538, 541-42 (3d Cir. 2005). This well settled evidentiary principle

“implements a presumption in favor of admissibility.” See id. at 542. It is also

well recognized that a trial judge is in the best position to render a determination as

to potential prejudicial effect. Pennsylvania state law similarly recognizes that

admission of photographs is a matter within the trial court’s sound discretion and

only an abuse of discretion constitutes reversible error. Commonwealth v. Auker,

10 In his traverse, Petitioner admits that the trial court limited the number of

photos which could be introduced and also indicated that they had to be in black and

white format. See Doc. 25, p. 5.

16

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 16 of 30
681 A.2d 1305, 1318 (Pa. 1996). 

The Superior Court in addressing this issue, noted that the evidence at issue

consisted of two “rather clinical” black and white autopsy photographs . Doc. 11-

2, p. 188. The Court added that the photographs did not show the victim’s face,

any blood, or any large wounds. While they did show some small discolorations,

the Superior Court concluded that there was little risk that the jury’s passions

would have been inflamed as to constitute unfair prejudice and that at most the

decision to allow the photographs was harmless error. See id. at p. 189.

Based upon the undisputed description of the two photos, this Court agrees

that their admission was neither unfairly prejudicial nor inflammatory and an

arguably proper exercise of discretion by the state trial court. The state courts’

conclusion that admission of the autopsy photos did not undermine the truth

determining process to the extent that a reasonable adjudication of guilt or

innocence did not occur was not an unreasonable application of Supreme Court

principles. Accordingly, this Court agrees that the admission of the two photos at

most constituted harmless error.

Moreover, there has been no sufficient showing that the outcome of the

proceedings would have been different if the photos were disallowed and as such

their introduction does not warrant federal habeas corpus relief. Habeas corpus

17

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 17 of 30
relief will also be denied with respect to Ground Two (2).

D. Summerbell’s Testimony

As previously discussed, Sanders identified Brown as the individual whom

he saw running from the area. Along with the Petitioner and other individuals,

Summerbell participated in a physical lineup which was conducted on June 9, 2007

at the York County Prison. The Commonwealth presented trial testimony by

Summerbell that before the lineup began Petitioner encouraged Summerbell to

wear Brown’s eyeglasses in an attempt to confuse Sanders, the eyewitness.

Petitioner contends that the trial court erred by denying his motion in limine

which sought to exclude Summerbell’s testimony and by not excluding, as hearsay 

testimony that another person present at the physical lineup remarked that

Summerbell resembled the defendant when wearing the glasses. (Ground Two (3

& 5)). 

It is again noted that federal habeas corpus review is generally not available

to adjudge the correctness of a state court evidentiary ruling such as the admission

of testimony. Furthermore, consciousness of guilt may be inferred under

Pennsylvania state law when a criminal defendant deliberately alters his

appearance in order to avoid identification. Based on an application of those

factors, the decision by the trial court to allow testimony that Brown attempted to

18

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 18 of 30
avoid being selected in the physical lineup by having another participant wear his

eyeglasses was properly admitted consciousness of guilt evidence under

Pennsylvania state law and did not violate clearly established federal law. 

The Confrontation Clause of the Sixth Amendment provides that “in all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with the

witnesses against them.” The Confrontation Clause is applicable to the States

through the Fourteenth Amendment. See Monachelli v. Warden, SCI-Graterford,

884 F.2d 749, 751 (3d Cir. 1989)(citing Pointer v. Texas, 380 U.S. 400, 404

(1965)). It does not guarantee criminal defendants ‘the absolute right to a face-toface meeting with witnesses against them at trial.” Maryland v. Craig, 497 U.S.

836, 844 (1990). The Clause’s “central concern . . . is to ensure the reliability of

the evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversary proceeding before the trier of fact.” Id. at 845.

“Hearsay is a statement, other than one made by the declarant while

testifying at trial, offered in evidence to prove the truth of the matter asserted.” 

United States v. Linwood, 142 F.3d 418, 424-25 (7th Cir. 1998). When the

prosecution seeks to introduce an unavailable declarant’s out-of-court statement

against an accused, courts must decide whether the offered statement is permissible

under the Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 123-24 (1999). 

19

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 19 of 30
In Lilly, the Court recognized that testimony admitted pursuant to “a firmly rooted

hearsay exception” did not violate the Confrontation Clause. Id. at 124. 

Under Pennsylvania state law, “a witness may testify to statements made by

another to the witness or to a third person when the purpose of this testimony is to

evidence the effect the statement had upon the listener.” Commonwealth v.

Wright, 317 A..2d 271, 273 (Pa. 1974); see also Commonwealth v. Smith, 492

A.2d 9, 13 (Pa. Super. 1985) (statement made to or overheard by a witness is

admissible when the purpose of the testimony is to evidence the effect which the

statement had upon the listener). A determination as to whether a challenged

statement is inadmissible hearsay “turns on the purpose for which it is offered.” 

United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993). Testimony offered for

the purpose of showing its effect on the listener is a non-hearsay use and therefore

admissible. United States v. Lambinus, 747 F.2d 592, 597 (10th Cir. 1984)

(testimony offered for its effect on the listener is a non-hearsay use).

In the instant case, the challenged hearsay was not offered to prove the truth

of the matter asserted (that Summerbell resembled Brown when wearing the

eyeglasses) but rather to show the effect it had on Petitioner. Specifically, it was

admitted to establish that it prompted Petitioner’s attempt to avoid identification by

having Summerbell wear the eyeglasses during the lineup. Since the testimony by

20

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 20 of 30
Summerbell as to the resemblance remarks falls under one of the well settled

exceptions to the hearsay rule, its admission did not implicate Sixth Amendment

confrontation rights. Denial of relief with respect to Ground Two (3) and (5) is

appropriate.

E. Jury Instruction

In a related claim, Petitioner contends that the jury was improperly given an

instruction on consciousness of guilt pertaining to Summerbell’s testimony

(Ground Two (4)). Federal habeas corpus relief may issue only if the court finds

that an error in the jury charge “had substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). 

In Burger v. Kemp, 483 U.S. 776, 782 n.5 (1987), the Court ruled that jury

instructions that may have erroneously shifted the burden of proof on criminal

intent to commit murder did not warrant habeas corpus relief where “‘the evidence

was so dispositive of intent’ that it can be said beyond a reasonable doubt that ‘the

jury would have found it unnecessary to rely on the presumption.’”

Propriety of jury instructions is to be determined by assessing the entire set

of instructions. See Victor v. Nebraska, 511 U.S. 1, 5 (1994); United States v.

Issac, 134 F.3d 199, 203 (3d Cir. 1998). The primary point of inquiry is "whether,

viewed in light of the evidence, the charge as a whole fairly and adequately

21

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 21 of 30
submits the issues in the case to the jury, and [we] reverse only if the instruction

was capable of confusing and thereby misleading the jury." Bennis v. Gable, 823

F.2d 723, 727 (3d Cir. 1987) (internal quotations omitted); United States v.

Zehrbach, 47 F.3d 1252, 1264, (3d Cir. 1995). 

Given this Court’s determination that testimony by Summerbell showing

consciousness of guilt by the Petitioner was admissible, it was clearly appropriate

for the trial court to provide a consciousness of guilt jury instruction. Moreover,

there is no indication that this was a case where the challenged jury instruction

misled or caused confusion with the jurors. Relief will also be denied with respect

to this argument.

III. 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). In Deputy, the Third Circuit also noted

that it was not bound by any state court determinations as to a counsel's

performance. Id. at 1494.

22

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 22 of 30
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; 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; 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 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; Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) “Without proof

23

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 23 of 30
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).11

 At the time of Petitioner’s state court proceedings, Strickland’s familiar

two-pronged test was the “clearly established federal law” applicable to ineffective

assistance of counsel claims. In addressing Brown’s present ineffective assistance

claims, the state courts applied essentially the same two-prong test for ineffective

assistance articulated in Strickland. 

Specifically, 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, 527 A.2d 973, 975-77 (Pa.

1987). The Third Circuit has held that Pennsylvania’s test for assessing ineffective

assistance of counsel claims is not 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, it cannot be said that the state courts applied rules contrary to

prevailing principles established by the United States Supreme Court for the

11 A court may choose to address the prejudice prong first and reject an

ineffective assistance claim solely on the basis that the defendant was not prejudiced. 

See Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).

24

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 24 of 30
adjudication of ineffective assistance claims. 

Accordingly, under § 2254(d)(1), the relevant inquiry in addressing the

pending ineffectiveness claims is whether the Pennsylvania state courts’ decisions

involved an unreasonable application of Strickland or were based on an

unreasonable determination of the facts. Jacobs, 395 F.3d at 107 n.9; Werts, 228

F.3d at 204.

Petitioner asserts that his trial counsel was ineffective for failing to present

expert testimony to rebut the Commonwealth’s expert witness who linked

Petitioner to the crime on the basis of gunshot residue. His second ineffective

assistance argument contends that trial counsel erred by not requesting a mistrial

after it was brought to the his attention that the trial court judge had contact with a

juror at the YMCA during a lunch recess.

Petitioner’s third ineffective assistance claim maintains that trial counsel’s

performance was deficient for not challenging the trial court’s determination that

the defense was not entitled to the names of 30-35 persons who had been identified

to law enforcement officials by the victim in conjunction with his work as a

confidential informant and who as such had potential motive to harm the victim.

A. Rebuttal Witness

It is undisputed that the Commonwealth presented expert testimony

25

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 25 of 30
regarding gunshot residue. Petitioner acknowledges that the Commonwealth

expert indicated that traces of gunshot residue were “located on Petitioner’s hands,

his clothing, and vehicle.” Doc. 25, p. 34. The expert also prepared a written

report which was provided to the defense. See. id. Brown’s trial counsel

conducted a cross examination of that witness. Petitioner argues that his defense

attorney’s performance was deficient due to the failure to call Dr. Saferstein, a

rebuttal gunshot residue expert who had been retained by trial counsel to review

the Commonwealth’s expert’s report, prepare a report, and appear as a defense

witness.

Trial counsel gave PCRA testimony that the Commonwealth’s gunshot

residue expert admitted curing cross examination that his expert report contained

many inconclusive results and that gunshot residue could be present even if one

had not fired a gun. Trial counsel also expressed that the Commonwealth’s expert

testified to many of the same matters that he hoped would be established by the

rebuttal witness’ testimony. Moreover, trial counsel was concerned that if he

called Dr. Saferstein, the Commonwealth’s expert could be recalled and thereby

given an opportunity to clear up any confusing parts of his prior testimony.

Petitioner’s traverse concedes that trial counsel’s cross examination was able

to demonstrate that approximately 80% of the Commonwealth’s expert’s findings

26

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 26 of 30
were inconclusive. See Doc. 25, p. 35. Based upon the undisputed record, it is

apparent to this Court the determination not to call Dr. Saferstein as a rebuttal

witness was a reasonably sound tactical decision given that there was effective

cross examination of the Commonwealth expert. Accordingly, there is no basis for

a finding of ineffective assistance.

B. Mistrial

Brown next contends that trial counsel erred by not seeking a mistrial when

it was brought to his attention that the trial court judge had contact with a juror at

the local YMCA during a lunch recess. Petitioner concedes that “no evidence of

the contact appears in the trial record.” Doc. 35, p. 47. However, Petitioner

contends that his trial counsel and the trial judge both acknowledged that contact

had taken place. Moreover, it is undisputed that trial counsel discussed the

incident with his client and informed him that the incident did not raise any flags

or concerns which would warrant seeking a mistrial or even asking that a

cautionary instruction be provided to the jury.

It is apparent that any contact between the judge and juror was nothing more

that a brief unintentional encounter. There is clearly no indication whatsoever that

the trial judge discussed any aspect of Petitioner’s ongoing criminal case with any

member of the jury outside of the courtroom. 

27

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 27 of 30
Since there is no basis for a determination that the a contact between the trial

court judge and a juror was improper to the extent that it resulted in a reasonable

likelihood of prejudice of the defendant’s right to a fair trial in any manner, the

decision by trial counsel not to seek a mistrial or request a cautionary jury

instruction was a reasonable determination and insufficient to support a claim of

ineffective assistance.

C. Disclosure of information

It is undisputed that the victim, Lamont Nelson, had been a confidential

informant for area law enforcement agencies. More importantly, Nelson was to be

a witness against Petitioner in a pending drug related criminal prosecution. 

Brown’s trial counsel filed a pre-trial motion requesting to be provided with the

names of any persons “that Mr. Nelson worked for the police against.” Doc. 35, p.

55. The motion was denied to the extent that it sought specific information

regarding individuals and trial counsel was limited to presenting evidence showing

that Nelson was a confidential informant and the number and general nature of

cases in which the victim was a participant.

The final argument for relief maintains that trial counsel erred by not

challenging on direct appeal the trial court’s decision preventing disclosure of the

specific names of individuals related to the victim’s work as a confidential

28

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 28 of 30
informant.

As discussed above, trial counsel filed an unsuccessful pre-trial motion to

compel disclosure of the specific names. However, counsel was nonetheless able

to elicit trial testimony establishing that the victim was a confidential informant in

at least thirty (30) cases. By presenting that information, trial counsel was able to

show the members of the jury that other individuals also had motive to kill the

victim. 

Since trial counsel was able to establish that there were a large number of

individuals who also arguably had motive to murder the victim, the failure to 

provide specific identities of certain persons does not warrant the conclusion that

the trial may have had a different outcome if the specific names had been provided. 

 Despite the denial of trial counsel’s pre-trial motion, he was still able to

show the jury that multiple other persons had motive to commit the crime. As a

result, there is no basis for a claim of ineffective assistance for failing to pursue the

denial of the pre-trial motion on direct appeal. This determination is further

bolstered by the fact that when the issue was raised by Petitioner in his PCRA

proceeding it was rejected by the Pennsylvania state courts.

IV. Conclusion

In conclusion, and for the reasons set forth above, the petition for writ of

29

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 29 of 30
habeas corpus will be denied. An appropriate Order will enter.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

30

Case 4:13-cv-01495-MWB-JVW Document 26 Filed 11/18/15 Page 30 of 30