1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-1997

Smith v. Horn

Precedential or Non-Precedential:

Docket 96-9001,96-9002

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Recommended Citation

"Smith v. Horn" (1997). 1997 Decisions. Paper 170.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/170
iled July 24, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 96-9001 and 96-9002 

CLIFFORD SMITH 

v. 

MARTIN HORN, COMMISSIONER, PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS; JAMES PRICE, 

SUPERINTENDENT, OF THE STATE CORRECTIONAL 

INSTITUTION AT GREENE, AND; JOSEPH P. 

MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE 

CORRECTIONAL INSTITUTION AT ROCKVIEW 

District Attorney of Bucks County, 

Appellant No. 96-9001 

CLIFFORD SMITH, 

Appellant No. 96-9002 

v. 

MARTIN HORN, COMMISSIONER, PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS; JAMES PRICE, 

SUPERINTENDENT, OF THE STATE CORRECTIONAL 

INSTITUTION AT GREENE, AND; JOSEPH P. 

MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE 

CORRECTIONAL INSTITUTION AT ROCKVIEW 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 95-cv-03671) 
Argued March 11, 1997 

BEFORE: MANSMANN, COWEN and ALITO, Circuit Judges

(Filed July 24, 1997) 

David D. Langfitt, Esq. 

Gerard M. McCabe 

Montgomery, McCracken, Walker 

 & Rhoads 

123 South Broad Street 

Philadelphia, PA 19109 

Billy H. Nolas, Esq. (argued) 

Yvonne R. Bradley 

Center for Legal Education 

 Advocacy & Defense Assistance 

437 Chestnut Street 

Suite 501 

Philadelphia, PA 19106 

COUNSEL FOR APPELLEE/ 

CROSS APPELLANT 

Stephen B. Harris, Esq. (argued) 

Office of District Attorney 

55 East Court Street 

Bucks County Courthouse 

Doylestown, PA 18901 

COUNSEL FOR APPELLANT/ 

CROSS APPELLEE 

OPINION OF THE COURT 

COWEN, Circuit Judge. 

This is an appeal from a judgment of the district court 

granting in part petitioner-appellee/cross-appellant Clifford 

Smith's petition for a writ of habeas corpus. The district 

court held that certain comments made by the prosecutor 

 2 
at the penalty phase of Smith's trial for first-degree murder 

violated Smith's rights pursuant to the Eighth and 

Fourteenth Amendments. The district court further held 

that the failure of Smith's attorney to object to these 

comments violated Smith's right to the effective assistance 

of counsel pursuant to the Sixth and Fourteenth 

Amendments. The district court rejected Smith's claim that 

instructions to the jury at the guilt phase of the trial, 

concerning the elements of first-degree murder pursuant to 

Pennsylvania law, violated Smith's right to a fair trial 

pursuant to the Due Process Clause of the Fourteenth 

Amendment. Similarly, the district court rejected Smith's 

arguments that other constitutional errors occurred at the 

penalty phase. 

Respondents-appellants/cross-appellees ("Pennsylvania" 

or "the Commonwealth") contend that the district court 

erred in its determination that the prosecutor's closing 

argument at the penalty phase, and the failure of Smith's 

attorney to object to that argument, violated Smith's federal 

constitutional rights. Smith cross-appeals, contending that 

the district court erred in denying him habeas relief with 

regard to his conviction for first-degree murder, and in 

rejecting his other arguments for granting relief based on 

alleged defects at the penalty phase. 

We agree with Smith that errors in the jury instructions 

at the guilt phase of his trial violated his rights pursuant to 

the Due Process Clause of the Fourteenth Amendment. We 

thus do not reach the district court's holding that errors at 

the penalty phase violated Smith's rights pursuant to the 

Sixth, Eighth, and Fourteenth Amendments. We also do not 

reach Smith's arguments concerning other claims of error 

that occurred at the penalty phase. Accordingly, we will 

vacate the judgment of the district court in part, reverse in 

part, and remand with directions to grant habeas relief. 

I.

On November 22, 1983, in the Court of Common Pleas,

Bucks County, Pennsylvania, Smith was convicted offirstdegree murder, among other crimes. The evidence at trial 

showed that on June 17 of that year, Smith and Roland 

 3 
Alston entered a pharmacy with the intention of robbing it, 

that they forced three persons inside the store to lie in a 

prone position on the floor as they committed the robbery, 

and that one of the robbery victims, Richard Sharp,

sustained a fatal gunshot wound to the head. 

Yvette Barrow and Cheryl Yancey, who later pled guilty to 

being accomplices to the robbery, testified that Alston and 

Smith committed the robbery while Barrow and Yancey

waited in Barrow's car. One eyewitness saw Alston and 

Smith enter and leave the pharmacy at the time of the 

robbery. A second eyewitness saw the pair walk in the 

direction of the pharmacy just prior to the robbery. A third 

eyewitness identified the car in which Smith and Alston 

were traveling just after the robbery. All three independent 

eyewitnesses identified the clothing worn by the robbers, 

which was later found at the homes of Alston, Yancey, and 

Frances Atkins, Smith's former girlfriend. Items taken from 

the three robbery victims were later found at the homes of 

Barrow and Yancey. 

Although there was evidence that both Alston and Smith 

carried handguns that day, the evidence tended to show 

that Smith actually committed the killing. According to the 

Commonwealth, Barrow testified that immediately after the 

murder, Alston yelled at Smith, "Why did you shoot the 

motherf[uck]er, why did you shoot him?" Appellant's Br. at 

11.1 Smith responded, "He walked into the store and he 

scared me -- the guy lifted his head and I had to do it, I 

had to do it." Id. Barrow also testified that Smith told 

Alston that "[s]ince [Smith] did the murder, he wanted the 

ring" that was one of the proceeds of the robbery. Id.

Yancey similarly testified that Alston yelled at Smith, "Why 

did you shoot that motherf[uck]er, man? You almost shot 

me," to which Smith replied, "I had to." Id. She also testified 

_________________________________________________________________ 

1. Because Smith has not contested the version of the trial testimony 

related in the Commonwealth's briefs, we accept this version as accurate 

for purposes of this appeal. Nonetheless, we feel the need to express our 

bafflement at the Commonwealth's disregard of 3d Cir. LAR 30.3(a) 

(1993) ("Relevant portions of a trial transcript . . . referred to in the 

briefs shall be included in the appendix . . . ."). In light of the importance 

of the testimony in question to the Commonwealth's position, it cannot 

be disputed that this testimony is "[r]elevant." 

 4 
that Smith stated that "he should have the ring because 

he's the one that killed the man." Id. There was also 

evidence that Smith's shoes had human blood on them. 

Finally, there was evidence that unfired cartridges found at 

Yancey's house had been loaded into and ejected from 

Alston's pistol, indicating that Alston's weapon had not 

been fired. 

At the guilt phase of the trial, the district attorney made 

the following comments in closing argument: 

[W]ho shot Richard Sharp is of no moment in this trial, 

because as His Honor will tell you, it makes no 

difference under the law and under the facts. It doesn't 

make one bit of difference who shot Mr. Sharp, 

because if you find as a fact, and I suggest you can 

based on the evidence, that Richard Sharp was killed

by either Roland Alston or Clifford Smith, you canfind

as a fact that there was murder in the first degree. It 

makes no difference who pulled the trigger. The acts of

one accomplice are the acts of the other. The doings of

one are the doings of the other.

 . . . . 

 . . . [I]t makes no difference who fired the fatal shot 

. . . [F]or your purposes, it doesn't make any difference. 

The act of one is the act of the other. . . . 

 . . . . 

 . . . [I]f you find that this defendant or both 

defendants or either of them had the conscious purpose

to take human life, you can find as a matter of fact and 

as a matter of law that it's murder in the first degree. 

. . . 

 . . . . 

 . . . [I]f you find that either Smith or Alston fired that 

bullet . . . if you find that either did this, both as

conspirators or as accomplices are guilty of the crime of

first degree murder.

 . . . . 

 . . . Does the evidence indicate that Clifford Smith or 

Roland Alston, either or both of them, made a

 5 
conscious decision to take human life, a willful, a

deliberate, an intentional killing, no accident? 

Cross App. at 1007-08, 1010, 1012-13, 1014, 1017 

(emphasis added). 

The court first instructed the jury on homicide without 

reference to any specific offense or degree: 

[I]f . . . you find that Smith and Alston were 

accomplices of each other, then it is not important for 

you to determine which one actually pulled the trigger 

that brought about the killing of Richard Sharp, if you

find beyond a reasonable doubt that one of the two did

so and were [sic] acting as the accomplice of each other

at the time. In order, however, to find Clifford Smith to 

be guilty, you need not conclude, as I said, that he was 

the actor; that is, if I can use the word "shooter," but 

he was, nevertheless, acting as an accomplice of Alston

and it was his intent of promoting or facilitating that 

act and the killing was done in furtherance of the 

robberies, if you so find, then he would be guilty as 

though he were the actual perpetrator. . . . 

 . . . [T]he Commonwealth must prove all of the 

elements of the case beyond a reasonable doubt, but

they do not have to prove beyond a reasonable doubt

which of the two, Smith or Alston, actually brought

about the killing of Richard Sharp by showing who 

pulled the trigger and placing [sic] the shot in his head. 

If, and I emphasize this, you find that one was the

accomplice of the other and that one of the two actually

performed the killing, you, the jurors, need not agree on

the role or roles played by the respective parties; that is,

by this defendant and his accomplice, if you find that

that was the position of both, provided that each of you

is satisfied that the crime was actually perpetrated by

the defendant or by the accomplice of the defendant. 

Conversely, if you find that one was not the accomplice 

of the other but that a criminal homicide occurred,

then you must determine who performed the act of 

killing and, of course, it follows that if Alston was the 

killer and Smith was not his accomplice, he, Smith,

would not be guilty of the crime of murder for the 

 6 
Commonwealth has not proven this accomplice theory 

beyond a reasonable doubt. 

Id. at 1030-31, 1031-32 (emphasis added). 

The court then instructed the jury specifically on firstdegree and second-degree murder: 

[T]he elements of first degree murder are the unlawful 

killing of another person done intentionally; that is, 

willfully, deliberately and with premeditation, plus 

malice, as I will define that term to you. If these

elements have been established beyond a reasonable

doubt, you may, on the theory that one was the

perpetrator and the other the accomplice, find Clifford

Smith guilty of murder in the first degree . .. . 

 . . . You may find the defendant guilty of second 

degree murder if you are satisfied that the following 

elements have been proven beyond a reasonable doubt: 

First, again you must find that a person caused the

death of Richard Sharp. Secondly, that the defendant,

or an accomplice of the defendant, was the person who

killed him. Thirdly, that the killing was committed 

while the defendant was engaged, or an accomplice was 

engaged, in the commission of . . . the felony of 

robbery. Fourth, that the act of the defendant, or the

defendant's accomplice, that brought about the killing

and death of Richard Sharp was done in furtherance of 

that robbery. Fifth, that the killing was with malice on 

the part of the defendant [which] may be inferred by 

you if you conclude that the defendant was engaging

in, or was an accomplice in, the commission or 

attempted commission of a felony dangerous to human

life . . . . 

Id. at 1035, 1035-36 (emphasis added). 

The court then instructed the jury on the crime of 

conspiracy, without reference to a specific substantive 

crime: 

You should . . . determine . . . whether there was the

requisite intent to enter into this conspiracy to commit

the robbery and the killing which the Commonwealth

contends flowed therefrom or whether there was the

 7 
requisite intent to enter in and be the accomplice with

the other in bringing this about. That is to say, did

Clifford Smith agree, although not necessarily by 

words, but by conduct and circumstances to bring

about this robbery which, in turn, led to the ultimate

shooting, so the Commonwealth contends, and the 

killing of Richard Sharp? If so, then the major basis of

conspiratorial liability exists as to him. 

Id. at 1047-48 (emphasis added). 

Finally, the court distinguished among the different 

degrees of murder: 

You would . . . have to decide whether the act of the

perpetrator, or his accomplice, at the time of the killing

was acting [sic] with malice, as we have defined that 

term to you. Was he acting willfully, deliberately and 

with premeditation, although at that time not having 

the specific intent to kill, but having the specific intent 

to inflict grievous bodily harm upon Richard Sharp,

because that really is the distinction between third

degree murder and first degree murder. . . . 

 If you would conclude that there was specific intent 

to take life, you would then have to determine if it was 

second degree murder, or as we call it felony murder, 

because it involves killing incidental to a felony. . . . 

[F]or persons to be accomplices in felony murder they 

must have a common design. In other words, the 

shared intent to commit that felony, the robbery in this 

case, and in furtherance thereof the killing was 

perpetrated as a natural act which flowed from the 

robbery itself. However, . . . even though you would 

conclude that there was the felony of robbery 

committed, but would further conclude that all of the 

elements of first degree murder were present, you . . . 

would be justified in returning a verdict of first degree 

murder, if you determine beyond a reasonable doubt 

that the killing was intentional; that is, that there was

a specific conscious intent to kill and this was done

willfully, deliberately, and with premeditation.

Id. at 1057-58 (emphasis added). 

 8 
Smith was convicted of, inter alia, first-degree murder 

and conspiracy to commit murder. He was not convicted of 

conspiracy to commit first-degree murder. At the penalty 

phase of the trial, the jury found two aggravating factors 

and no mitigating factors. The jury imposed the death 

penalty, which it was required to do under these 

circumstances pursuant to Pennsylvania law. See 42 PA. 

CONS. STAT. ANN. § 9711(c)(1)(iv) (West 1982). 

Smith filed a motion for a new trial, which was denied by 

the trial court on June 18, 1985. Smith subsequently was 

sentenced to death. He then appealed his conviction and 

sentence to the Supreme Court of Pennsylvania. On July 

29, 1986, the judgment was affirmed, and Smith's petition 

to the Supreme Court of the United States for a writ of 

certiorari was denied thereafter. See Commonwealth v.

Smith, 513 A.2d 1371 (Pa. 1986), cert. denied, 480 U.S. 

951, 107 S.Ct. 1617 (1987) ("Smith I"). 

The Governor of Pennsylvania subsequently signed 

Smith's death warrant, fixing his execution for November 

13, 1990. On October 16, 1991,2 Smith filed a petition in 

the Court of Common Pleas, Bucks County, pursuant to 

the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. 

CONS. STAT. ANN. §§9541-9546 (West 1996 Supp.). His

execution was stayed several days later. After holding an 

evidentiary hearing, the court denied the petition. The 

Supreme Court of Pennsylvania affirmed on November 22, 

1994, and the United States Supreme Court denied Smith's 

petition for a writ of certiorari. See Commonwealth v. Smith, 

650 A.2d 863 (Pa. 1994), cert. denied, ___ U.S. ___, 115 

S.Ct. 1799 (1995). 

In May of 1995, the Governor of Pennsylvania again 

signed Smith's death warrant, fixing July 11, 1995, as the 

date of execution. On June 30, 1995, the district court 

granted Smith a stay of execution. Smith subsequently filed 

the instant petition for a writ of habeas corpus in the 

district court pursuant to 28 U.S.C. § 2254 (1994). That 

court held an evidentiary hearing. On February 22, 1996, 

the court granted the petition in part and denied it in part 

_________________________________________________________________ 

2. The record does not indicate why Smith's execution was stayed past 

November 13, 1990. 

 9 
on the grounds that the prosecutor's comments in 

summation at the penalty phase violated Smith's Eighth 

and Fourteenth Amendment rights pursuant to Caldwell v.

Mississippi, 472 U.S. 320, 105 S.Ct. 2633 (1985), and 

California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446 (1983). 

The district court also held that the failure of Smith's 

counsel to object to the closing argument constituted 

ineffective assistance of counsel in violation of the Sixth 

and Fourteenth Amendments. The district court rejected 

Smith's contention, regarding the guilt phase, that the jury 

instructions on first-degree murder denied him due 

process. It also rejected Smith's additional arguments 

concerning the penalty phase that his sentence violated the 

federal constitution. The court ordered that Smith be either 

re-sentenced or released from confinement within 180 days, 

and stayed its order pending appeal. See Smith v. Horn, No. 

CIV. A. 95-3671, 1996 WL 172047 (E.D. Pa. Feb. 22, 1996). 

This appeal and cross-appeal followed. 

II.

As an initial matter, we find it necessary to address two 

issues raised by the dissent. The dissent suggests, for the 

first time, that we require the parties to brief the threshold 

procedural issues of exhaustion of state remedies and 

procedural default. See Dissent slip op. at 38, 40. We note 

at the outset that the Commonwealth never raised either of 

these issues at any time: not in the district court, not in its 

briefing before this Court, and not at oral argument. 

A.

The dissent concedes that it is likely an exhaustion 

argument would fail on the grounds that further state 

review of the due process issue would be foreclosed to 

Smith. See id. at 37-38. Nevertheless, the dissent presses 

the point, arguing that this might present a case where the 

Pennsylvania courts would apply the narrow "miscarriage of 

justice" exception to the stringent requirements of the 

PCRA. See Doctor v. Walters, 96 F.3d 675, 681-83 (3d Cir. 

1996). In Doctor, 96 F.3d at 683, we concluded that we 

ought to require exhaustion unless there is "no chance that 

 10 
the Pennsylvania courts would find a miscarriage of

justice." 

However, in that case, the exhaustion issue was raised 

and addressed in the district court. See id. at 678. Where 

the issue was never raised in the district court, we are 

afforded discretion pursuant to Granberry v. Greer, 481 

U.S. 129, 134, 107 S.Ct. 1671, 1675 (1987), to "determine 

whether the interests of comity and federalism will be better 

served by addressing the merits forthwith or by requiring a 

series of additional state and district court proceedings 

before reviewing the merits of the petitioner's claim." See

also Evans v. Court of Common Pleas, 959 F.2d 1227, 1233 

(3d Cir. 1992); Brown v. Fauver, 819 F.2d 395, 398 (3d Cir. 

1987). We must exercise our discretion on a case-by-case 

basis and with reference to the values of, not only comity 

and federalism, but also "judicial efficiency," Granberry, 

481 U.S. at 135, 107 S.Ct. at 1675, and "the ends of 

justice," Keller v. Petsock, 853 F.2d 1122, 1127 & n.6 (3d 

Cir. 1988). 

The dissent suggests that we ought to exercise our 

discretion in favor of requiring exhaustion in this case on 

the ground that it "falls squarely within" the category of 

cases that " `present[ ] an issue on which an unresolved 

question of fact or of state law might have an important 

bearing,' " Dissent slip op. at 36 (quoting Granberry, 481 

U.S. at 134-35, 107 S.Ct. at 1675) (alteration added), and 

"it would be helpful to have the benefit of a decision by the 

Pennsylvania courts on the underlying issue of state law." 

Id. at 6. See Brown, 819 F.2d at 399; cf. Zettlemoyer v.

Fulcomer, 923 F.2d 284, 309-10 (3d Cir. 1991). However, 

this case presents no "unresolved question . . . of state 

law." Granberry, 481 U.S. at 134, 107 S.Ct. at 1675. The 

only question of state law presented -- the elements of firstdegree murder in Pennsylvania -- has been resolved by the 

Pennsylvania Supreme Court, not once but twice. See infra

at 16-18. No one disputes that specific intent to kill is one 

of those elements. All remaining questions presented by 

this case -- whether there is a reasonable likelihood that 

the jury understood its instructions in a certain way, 

whether this understanding had the effect of relieving the 

Commonwealth of the burden of proving this element 

 11 
beyond a reasonable doubt, and whether this error was 

harmless -- present issues of federal law. 

Accordingly, we see no reason to delay review of this 

petition in order to provide briefing on an issue the 

Commonwealth never raised in any court and on which

even the dissent concedes the Commonwealth has very

little chance of succeeding. 

B.

The dissent also suggests that we direct the parties to 

brief the related issue of procedural default. The dissent 

correctly notes that we and several of our sister circuits 

have held that this issue may be raised sua sponte by the 

court of appeals. See Dissent at 38 (citing Hull v. Freeman, 

932 F.2d 159, 164 n.4 (3d Cir. 1991), overruled on other

grounds by Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992), 

Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994), 

Washington v. James, 996 F.2d 1442 (2d Cir. 1993), and 

Hardiman v. Reynolds, 971 F.2d 500, 502-04 & n.4 (10th 

Cir. 1992)). Nonetheless, it is evident from these cases that 

whether we do so is discretionary, and that our discretion 

is guided by the same considerations as those discussed in 

Granberry. See Hull, 932 F.2d at 164 n.4; Washington, 996 

F.2d at 1448-49; Hardiman, 971 F.2d at 504. 

In Washington, 996 F.2d at 1449-50, the Court of 

Appeals for the Second Circuit recognized that it might be 

inappropriate for the court to raise the issue of procedural 

default sua sponte where " `it is evident that a miscarriage 

of justice has occurred' " (quoting Granberry, 481 U.S. at 

135, 107 S.Ct. at 1675). The court also recognized that 

"miscarriage of justice" in this context should be defined 

somewhat more loosely than in the nonexhaustion context 

because "[u]nlike in exhaustion cases, if we decline to reach 

the merits in a procedural default case, the defendant has 

no further recourse to either state or federal relief." Id. at 

1450. Nevertheless, the court narrowly limited the 

application of the miscarriage of justice exception to those 

cases where the habeas petitioner challenges the validity of 

the trial itself and not just the conviction, and those cases 

where the claimed federal violation was the product of 

malice. See id.; see also Ortiz, 19 F.3d at 715. 

 12 
We believe, as did Judge Oakes in dissent in that case, 

that the court unduly limited the meaning of "miscarriage 

of justice" in contravention of the language of Granberry, 

481 U.S. at 135, 107 S.Ct. at 1675. See Washington, 996 

F.2d at 1454 (Oakes, J., dissenting). We agree with Judge 

Oakes, and with Judge Stahl of the Court of Appeals for the 

First Circuit, that " `miscarriage of justice' should include 

cases where the record is well developed and the merits 

strongly support the petitioner's claim." Id. at 1453 (Oakes, 

J., dissenting); see also Ortiz, 19 F.3d at 717 (Stahl, J., 

dissenting). 

In this case, not only do the merits strongly support 

Smith's claim, as we shall demonstrate, but the record as 

it relates to the merits is as well-developed as it can be. We 

have been presented with the entirety of the charge

delivered at Smith's trial. We can lay alongside this charge 

the unequivocal holdings of the Pennsylvania Supreme 

Court in two separate cases that specific intent to kill is an 

essential element of first-degree murder. 

By contrast, the record with regard to the procedural 

default issue itself is sparse. For example, we have not been 

provided with the crucial jury instruction defining firstdegree murder requested by Smith's trial counsel and 

rejected by the trial court. There is similarly nothing in the 

record with regard to whether Smith can show "cause" for 

the alleged default (such as by showing that appellate 

counsel was constitutionally ineffective) and "prejudice" 

resulting therefrom, or that the procedural rule does not 

provide an independent and adequate basis for precluding 

habeas review. See Doctor, 96 F.3d at 683. Thus, 

consideration of the procedural default issue at this late 

stage in the proceedings would likely require not simply 

supplemental briefing but a remand to the district court for 

supplemental fact finding. In these circumstances, where 

relief is "plainly warranted," Granberry, 481 U.S. at 135, 

107 S.Ct. at 1676, and consideration of the procedural 

default defense would result in undue delay, see Odum v.

Boone, 62 F.3d 327, 330 (10th Cir. 1995); Manlove v.

Tansy, 981 F.2d 473, 476 n.4 (10th Cir. 1992), we exercise 

our discretion to decline to raise that defense sua sponte. 

 13 

C.

With regard to both nonexhaustion and procedural 

default, we are also persuaded that when the state has 

never raised an issue in either the district court or this 

Court we should be even less inclined to raise it sua sponte 

than when the state either has raised the issue here only 

belatedly or has raised it in the district court but has not 

pursued that line of attack in the court of appeals. But see

Washington, 996 F.2d at 1448 n.3 (stating that complete 
failure to raise defense should be treated same as belatedly 

raising defense); Hardiman, 971 F.2d at 504 n.6 (same). In 

any of these situations, consideration of the issue

contravenes our standard practice. However, where the 

issue has been raised either in the district court or the 

court of appeals, we are at least maintaining our roles as 

judges, addressing only the issues flagged, at some point, 

by the parties. Moreover, we are often aided in our

endeavor by the fact that the district court has addressed 

the issue. 

By contrast, where the state has never raised the issue at 

all, in any court, raising the issue sua sponte puts us in 

the untenable position of ferreting out possible defenses 

upon which the state has never sought to rely. When we do 

so, we come dangerously close to acting as advocates for 

the state rather than as impartial magistrates. See United

States v. Burke, 504 U.S. 229, 246, 112 S.Ct. 1867, 1877 

(1992) (Scalia, J., concurring in the judgment) ("The rule 

that points not argued will not be considered . . . at least 

in the vast majority of cases, distinguishes our adversary 

system of justice from the inquisitorial one."); accord

Hardiman, 971 F.2d at 505. While considerations of 

federalism and comity sometimes weigh in favor of raising 

such issues sua sponte, consideration of that other great 

pillar of our judicial system -- restraint -- cuts sharply in 

the other direction. 

We certainly have the discretion to raise these issues sua 

sponte. As Granberry and its progeny direct, that discretion 

should be exercised with reference to the values of

federalism and comity, judicial efficiency, and the ends of 

justice. In cases in which an issue has not been raised by 

either party in either the district court or in this Court, we 

 14 
will decline to address the issue unless consideration of 

these factors clearly indicates that we should depart from 

our standard practice. We apply this presumption in such 

cases lest we subtly transform our adversarial system into 

an inquisitorial one. 

The dissent has not persuaded us that consideration of 

federalism and comity, judicial efficiency, and the ends of 

justice clearly dictate that we consider the defenses of 

nonexhaustion and procedural default. Accordingly, we 

decline to do so. 

III.

Smith argues that the jury instructions rendered by the 

trial court erroneously informed the jury that Smith could 

be convicted of first-degree murder even if he did not have 

the specific intent to kill. He asserts that the jury was 

incorrectly instructed that if it found beyond a reasonable 

doubt that one of the men had the specific intent to kill, 

and that Smith intended to commit the robbery that 

resulted in the killing, this would be sufficient to convict 

Smith of first-degree murder. He further argues that this 

instruction was incorrect under Pennsylvania law, and that 

this incorrect instruction violated his constitutional rights. 

The district court summarily rejected Smith's contention, 

stating: "Smith has raised several other arguments in his 

petition concerning both the guilt and penalty phases of his 

1983 trial. These we find to be without merit." Smith v.

Horn, 1996 WL 172047, at *15. 

We conclude from a fair reading of the jury instructions 

that there is a reasonable likelihood that the jury convicted 

Smith of first-degree murder without finding beyond a 

reasonable doubt that he intended that Sharp be killed. 

Such an instruction is contrary to Pennsylvania law. We 

hold that these jury instructions had the effect of relieving 

the Commonwealth of its burden of proving beyond a 

reasonable doubt one of the elements of first-degree murder 

under Pennsylvania law. The delivery of these improper 

instructions amounted to a violation of Smith's right to a 

fair trial pursuant to the Due Process Clause of the 

Fourteenth Amendment. Finally, we hold that this 

 15 
constitutional error was not harmless and that Smith must 

be discharged unless the Commonwealth determines to

retry him for first-degree murder. 

A.

Under Pennsylvania law, both today and at the time of 

Smith's trial, an accomplice or co-conspirator in a crime 

during which a killing occurs may not be convicted of firstdegree murder unless the Commonwealth proves that he 

harbored the specific intent to kill. See 18 PA. CONS. STAT. 

ANN. § 2502(a) (West 1983); Commonwealth v. Huffman, 638 

A.2d 961, 962-63, 964 (Pa. 1994); Commonwealth v.

Bachert, 453 A.2d 931, 935 (Pa. 1982). This is so even 

where the identity of the actual killer is unknown. See

Huffman, 638 A.2d at 964-65 (Papadakos, J., dissenting). 

The Commonwealth need not prove that the defendant 

actually performed the killing, see Commonwealth v.

Bachert, 412 A.2d 580, 583 (Pa. Super. 1979), aff'd in part,

rev'd on other grounds in part, 453 A.2d 931 (Pa. 1982), but 

it must prove he intended for the killing to occur. In other 

words, felony-murder simpliciter does not constitute murder 

in the first degree in Pennsylvania. 

In Bachert, 453 A.2d at 933-34, the evidence showed that 

the defendant and a cohort committed a kidnaping and 

robbery, during the course of which the cohort killed the 

victim. The Pennsylvania Supreme Court wrote that to 

constitute first-degree murder, the evidence had to show 

beyond a reasonable doubt that the defendant harbored "a 

specific intent to kill." Id. at 935. It wrote: 

To determine the kind of homicide of which the 

accomplice [defendant] is guilty, it is necessary to look 

to his state of mind; the requisite mental state must be 

proved beyond a reasonable doubt to be one which the 

accomplice harbored and cannot depend upon proof of 

intent to kill only in the principal. 

Id. (emphasis added). 

In Huffman, 638 A.2d at 962, the trial court had advised 

the jury that 

 16 
"in order to find a Defendant guilty of murder in the 

first degree, you must find that the Defendant caused 

the death of another person, or that an accomplice or

co-conspirator caused the death of another person . That 

is, you must find that the Defendant's act or the act of

an accomplice or co-conspirator is the legal cause of 

death of [the victim], and therefore you must determine 

if the killing was intentional." 

(quoting trial transcript) (emphasis added) (alteration in 

original). This, the Pennsylvania Supreme Court held, was 

"patently erroneous" and "an outright misstatement of the 

law on a fundamental issue relating to culpability." Id. The 

court wrote that Bachert "express[ly] and unambiguous[ly]" 

held that an accomplice to an underlying felony that results 

in death could be convicted of first-degree murder only if 

the Commonwealth proves that the accomplice specifically 

intended to kill. Id. at 962-63. 

The Commonwealth cites in its reply brief two cases in 

support of the proposition that a shared intent to enter into 

a conspiracy to commit a crime is sufficient to confer 

criminal liability for a killing that is the natural and 

probable result of the conspiracy, even if the killing were 

not shown to be specifically intended by the defendant. See

Commonwealth v. Roux, 350 A.2d 867, 870 (Pa. 1976); 

Commonwealth v. La, 640 A.2d 1336, 1345-46 (Pa. Super. 

1994). However, neither of these cases involved first-degree

murder. See Roux, 350 A.2d at 868 (second-degree murder 

and conspiracy);3 La, 640 A.2d at 1340 (third-degree 

murder and conspiracy); see also Huffman, 638 A.2d at 964 

n.9 (criticizing dissent for relying on cases involving 

manslaughter and lesser degrees of murder). As the 

Commonwealth unambiguously conceded at oral argument, 

Huffman and Bachert make clear that specific intent to 

commit a killing, not simply intent to commit some other 

_________________________________________________________________ 

3. Additionally, the events in Commonwealth v. Roux, 350 A.2d 867, 869 

(Pa. 1976), took place on November 10, 1973. Before March 26, 1974, 

the definition of murder in the first degree in Pennsylvania included 

felony-murder. See 18 PA. CONS. STAT. ANN.§ 2502, Historical Note (1983). 

Thus, Roux would be inapposite even if the defendant there had been 

convicted of first-degree murder. 

 17 
crime from which a killing results, is a prerequisite to a 

conviction for first-degree murder in Pennsylvania. Cf. Tison

v. Arizona, 481 U.S. 137, 175 n.13, 107 S.Ct. 1676, 1697 

n.13 (1987) (Brennan, J., dissenting) (listing Pennsylvania 

as a jurisdiction that "restrict[s] the imposition of capital 

punishment to those who actually and intentionally kill"). 

B.

Our analysis of jury instructions claimed to impair a 

constitutional right "must focus initially on the specific 

language challenged." Francis v. Franklin, 471 U.S. 307, 

315, 105 S.Ct. 1965, 1971 (1985); see also Rock v.

Zimmerman, 959 F.2d 1237, 1246 (3d Cir. 1992) (en banc). 

The allegedly constitutionally infirm language must be 

considered in the context of the charge as a whole. See

Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482 

(1991); Flamer v. Delaware, 68 F.3d 736, 752 (3d Cir. 

1995); Kontakis v. Beyer, 19 F.3d 110, 115-16 (3d Cir. 

1994). The proper inquiry is " `whether there is a reasonable

likelihood that the jury has applied the challenged 

instructions in a way' that violates the Constitution." 

Estelle, 502 U.S. at 72, 112 S.Ct. at 482 (quoting Boyde v.

California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198 (1990)) 

(emphasis added); see also Victor v. Nebraska , 511 U.S. 1, 

6, 114 S.Ct. 1239, 1243 (1994); Flamer, 68 F.3d at 752. 

A fair reading of the jury instructions given in this case 

permitted the jury to convict Smith of murder in the first 

degree without first finding beyond a reasonable doubt that 

Smith intended that Sharp be killed. Portions of the 

instructions are ambiguous as to the requisite finding of 

intent. Other portions affirmatively inform the jury that it 

need not find beyond a reasonable doubt that Smith 

specifically intended that the victim die in order for Smith 

to be guilty of murder in the first degree. Taken as a whole, 

there is a reasonable likelihood that the jury understood 

the instructions in this way. 

One of the two portions of the jury charge that 

specifically mentions first-degree murder reads as follows: 

[T]he elements of first degree murder are the unlawful 

killing of another person done intentionally; that is, 

 18 
willfully, deliberately and with premeditation, plus 

malice, as I will define that term to you. If these

elements have been established beyond a reasonable

doubt, you may, on the theory that one was the

perpetrator and the other the accomplice, find Clifford

Smith guilty of murder in the first degree . .. . 

Cross App. at 1035 (emphasis added). Taken in isolation, 

this charge might convey the idea that the jury must find 

that Smith harbored the specific intent to kill Sharp. This 

interpretation would be reasonable only if the jury were to 

understand the word "accomplice" to mean "accomplice in 

the killing," and not simply "accomplice in the robbery." 

Only in that way would the instructions convey the critical 

idea that Smith must be found to have intended to kill 

Sharp for Smith to be found guilty of first-degree murder. 

Taken together with the remainder of the pertinent 

instructions, it is clear that jury was not made to

understand "accomplice" in this way. In other portions of 

the charge, in which the trial court mentioned the killing 

but did not specifically discuss first-degree murder, the 

court generally did not clarify whether it was using 

"accomplice" in reference to the robbery, the killing, or 

both. Further, when it did make the meaning of 

"accomplice" reasonably clear, it appears that the court was 

using that term in reference to the robbery only. 

For example, the court instructed: 

[T]he Commonwealth must prove all of the elements of 

the case beyond a reasonable doubt, but [it] do[es] not 

have to prove beyond a reasonable doubt which of the 

two, Smith or Alston, actually brought about the killing 

of Richard Sharp by showing who pulled the trigger 

and plac[ed] the shot in his head. If, and I emphasize 

this, you find that one was the accomplice of the other

and that one of the two actually performed the killing, 

you, the jurors, need not agree on the role or roles 

played by the respective parties; that is, by this

defendant and his accomplice, if you find that that was 

the position of both, provided that each of you is 

satisfied that the crime was actually perpetrated by the 

defendant or by the accomplice of the defendant.

 19 
Conversely, if you find that one was not the accomplice

of the other but that a criminal homicide occurred, 

then you must decide who performed the act of killing 

and, of course, it follows that if Alston was the killer

and Smith was not his accomplice, he, Smith, would not

be guilty of the crime of murder for the Commonwealth 

has not proven this accomplice theory beyond a 

reasonable doubt. 

Id. at 1031-32 (emphasis added). 

The court also instructed: 

[I]f . . . you find that Smith and Alston were 

accomplices of each other, then it is not important for 

you to determine which one actually pulled the trigger 

that brought about the killing of Richard Sharp, if you 

find beyond a reasonable doubt that one of the two did 

so and were [sic] acting as the accomplice of each other

at the time. In order, however, to find Clifford Smith to 

be guilty, you need not conclude, as I said that he was 

the actor; that is, if I can use the word "shooter," but 

he was, nevertheless, acting as an accomplice of Alston

and it was his intent of promoting or facilitating that 

act and the killing was done in furtherance of the 

robberies, if you so find, then he would be guilty as 

though he were the actual perpetrator. 

Id. at 1030-31 (emphasis added). 

The jury was further instructed on "the distinction

between third degree murder and first degree murder." Id.

at 1057. Murder in the third degree occurs where"the 

perpetrator,4 or his accomplice . . . [w]as . . . acting willfully, 

deliberately and with premeditation, although . . . not 

having the specific intent to kill." Id. (emphasis added). The 

clear implication is that first-degree murder occurs where 

"the perpetrator, or his accomplice" did have "the specific 

intent to kill." 

In these portions of the charge, the court did not clarify 

whether "accomplice" means "accomplice in the killing," 

_________________________________________________________________ 

4. The court presumably meant "the defendant": by definition, the 

"perpetrator" necessarily did the "acting." 

 20 
"accomplice in the robbery," or both. The charge thus 

blurred the distinction between "accomplice in the robbery" 

and "accomplice in the killing," leading the jury to believe 

that an accomplice for one purpose is an accomplice for all 

purposes. This confusion was exacerbated when, in the 

course of enumerating the elements of second-degree

murder, the court repeatedly used the word "accomplice" to 

mean "accomplice in the robbery." Without an explicit 

disclaimer, it is extremely unlikely that the jury understood 

the same word to have two different meanings when used 

only moments apart in the same charge. The charge thus 

allowed Smith to be convicted of first-degree murder if the 

jury found that either he or his accomplice in the robbery

intended to kill Sharp. 

Additionally, with regard to the conspiracy counts, the 

court instructed: "You should . . . determine . .. whether 

there was the requisite intent to enter into this conspiracy 

to commit the robbery and the killing which the

Commonwealth contends flowed therefrom or whether there 

was the requisite intent to enter into and be the accomplice 

with the other in bringing this about" Id. at 1047 (emphasis 

added). In this portion of the charge, it is unclear whether 

one could have the "requisite intent to enter into th[e] 

conspiracy to commit the robbery," without also having the 

"requisite intent to enter into the conspiracy to commit the 

. . . killing which the Commonwealth contends flowed" from 

the robbery. It is likely that a reasonable juror would have 

inferred that the "requisite intent to enter into th[e] 

conspiracy to commit the robbery" also necessarily 

establishes the "requisite intent to enter into th[e] 

conspiracy to commit . . . the killing which . . . flowed 

therefrom." The court's conflation of the two independent 

requirements of intent was aggravated by the court's next 

instruction that the jury determine "whether there was the 

requisite intent to enter into and be the accomplice with the 

other in bringing this about," without clarifying whether the 

"this" referred to the robbery, the killing, or both. 

The court immediately attempted to explain the above 

instruction, but in doing so it conveyed the impression that 

Smith was criminally liable for conspiracy to commit 

murder if he intended to enter into a conspiracy to commit 

robbery: 

 21 
That is to say, did Clifford Smith agree, although not 

necessarily by words, but by conduct and 

circumstances to bring about this robbery which, in

turn, led to the ultimate shooting, so the Commonwealth 

contends, and the killing of Richard Sharp? If so, then

the major basis of conspiratorial liability exists as to

him. 

Id. at 1047-48 (emphasis added). The court did not clarify 

to which crime this "conspiratorial liability" applies; the 

charge was given in the context of the general conspiracy 

instruction. Thus, it is likely that the jury understood this 

charge as instructing that Smith could be found guilty of 

conspiracy to commit first-degree murder if he intended to 

commit the robbery, even if he did not intend that the 

killing be committed. 

The closest the court came to instructing the jury that 

specific intent on the part of Smith was necessary to 

convict him of first-degree murder was the following: "[Y]ou 

. . . would be justified in returning a verdict of first degree 

murder, if you determine beyond a reasonable doubt that 

the killing was intentional; that is, that there was a specific

conscious intent to kill and this was done willfully,

deliberately, and with premeditation." Id. at 1058 (emphasis 

added). However, this language fails to convey the crucial 

point that the jury must find that Smith, as opposed to 

Alston, intended the killing to occur in order for Smith to 

be found guilty of murder in the first degree. Thus, this 

portion of the charge is "not rhetorically inconsistent," 

Rock, 959 F.2d at 1248, with the portions that convey the 

idea that an intent on the part of Alston to kill, coupled 

with Smith's participation in the robbery, rendered Smith 

guilty of first-degree murder. 

The Commonwealth contends that we are bound by the 

Pennsylvania Supreme Court's determination, on Smith's 

direct appeal, that the instructions fairly conveyed to the 

jury the elements of first-degree murder. The court wrote: 

"We have reviewed the record in the present case and find 

no inadequacies in the trial court's instructions as to 

elements of the crime of murder of the first degree and as 

to pertinent requirements of criminal culpability." Smith I, 

513 A.2d at 1377. Nonetheless, where an allegedly faulty 

 22 
jury charge implicates a habeas petitioner's federal 

constitutional rights, as we conclude in the next section 

this charge did, we have an independent duty to ascertain 

how a reasonable jury would have interpreted the 

instructions at issue. See Francis, 471 U.S. at 315-16, 105 

S.Ct. at 1972; Sandstrom, 442 U.S. at 516-17, 99 S.Ct. at 

2455; Kontakis, 19 F.3d at 116. 

The dissent contends that the trial court's initial

rendition of the meaning of "accomplice" pursuant to 

Pennsylvania law adequately conveyed to the jury that each 

subsequent use of the term was offense-specific. See

Dissent slip op. at 42-43. The court instructed: 

[A]n accomplice is a person if with the intent of 

promoting or facilitating the commission of a crime he 

solicits, commands, encourages or requests the other 

person or persons to commit that crime or crimes, or 

aids, agrees to aid, or attempts to aid the other person 

in the planning or committing the [sic] crime. 

App. at 1029. Yet nothing in this charge would lead the 

jury to think that, when the court instructed the jury on 

murder, and the court used the word "accomplice," that 

word meant only "accomplice in the murder." Indeed, this 

charge reinforces the notion that an accomplice for one 

purpose is an accomplice for all purposes. There is at least 

a reasonable likelihood that, without further elaboration, 

the jurors understood the instruction as stating that if 

Smith harbored "the intent of promoting or facilitating the 

commission of a crime [robbery] [and] he solicit[ed], 

command[ed], encourage[d] or request[ed] [Alston] to 

commit that crime [robbery] or aid[ed], agree[d] to aid, or 

attempt[ed] to aid [Alston] in . . . planning or committing 

the crime [robbery]," then Smith is "an accomplice." Id.

(emphasis added). The dissent seeks mightily to read into 

this charge the additional words that might have conveyed 

the correct impression -- "an accomplice in that crime" or 

"an accomplice for purposes of that crime." That critical 

impression, however, was not conveyed. 

The Commonwealth urges that, taken as a whole, the 

charge informed the jury that it must find that Smith 

intended for the killing to occur in order to convict him of 

 23 
first-degree murder. However, the Commonwealth has cited 

us no additional language from the charge concerning the 

elements of first-degree murder. Indeed, we have quoted 

above the entirety of the charge as pertinent to the firstdegree murder count and, taken as a whole, we must 

conclude that there is at least a reasonable likelihood that 

the jury understood the charge as imposing upon the

Commonwealth no burden of proving that Smith intended 

for the victim to die in order to convict Smith offirst-degree 

murder. 

C.

Having determined that the jury instructions in this case 

were incorrect, we must further determine whether the 

error is of constitutional magnitude. " `[I]t 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.' " Johnson v.

Rosemeyer, No. 96-1861, 1997 WL 318064, at *5 (3d Cir. 

June 13, 1997) (quoting Geschwendt v. Ryan, 967 F.2d 

877, 888-89 (3d Cir. 1992) (en banc)) (alteration and 

emphasis added). However, this does not foreclose the 

possibility that, in the rare case, "a state court's 

misapplication of its own law" may itself result in a 

"wrong[ ] of constitutional dimension." In other words, a 

state court's misapplication of its own law, in and of itself, 

cannot be corrected by a federal court. However, when that 

misapplication has the effect of depriving a person of life, 

liberty, or property without due process of law in violation 

of the Fourteenth Amendment, the resulting federal 

constitutional error can be corrected by a federal habeas 

court. See Gilmore v. Taylor, 508 U.S. 333, 348-49, 113 

S.Ct. 2112, 2121 (1993) (O'Connor, J., concurring in the 

judgment). On the other hand, "errors of state law cannot 

be repackaged as federal errors simply by citing the Due 

Process Clause." Johnson, 1997 WL 318064 at *6. We 

conclude that the jury instruction at issue here was not 

merely an error of state law. By removing the 

Commonwealth's burden of proving beyond a reasonable 

 24 
doubt one of the essential elements of the crime of firstdegree murder, the instruction also contravened the Due 

Process Clause of the Fourteenth Amendment. 

It is axiomatic that Pennsylvania may, within certain 

constitutional limits, define first-degree murder in whatever 

way the Commonwealth sees fit. See McMillan v.

Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415-16 

(1986); Johnson, 1997 WL 318064 at *6. It certainly may 

include within that definition felony-murder. Indeed, many 

states do include such killings in their definitions of firstdegree murder. See Tison, 481 U.S. at 152-54 & nn.5-9, 

107 S.Ct. at 1683-86 & nn.5-9. Pennsylvania itself defined 

first-degree murder in this way until 1974. See 18 PA. CONS. 

STAT. ANN. § 2502, Historical Note. The Supreme Court has 

held that the inclusion of felony-murder within the

definition of first-degree murder, and the consequent 

imposition of the death penalty, does no violence to the 

federal Constitution so long as the defendant was a major 

participant in the felony and exhibited a reckless 

indifference to human life. See Tison, 481 U.S. at 158, 107 

S.Ct. at 1688. 

However, once the state has defined the elements of an 

offense, the federal Constitution imposes constraints upon 

the state's authority to convict a person of that offense. It 

is well-settled that "the Due Process Clause [of the 

Fourteenth Amendment] protects the accused against 

conviction except 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, 90 S.Ct. 

1068, 1073 (1970); see also Victor, 511 U.S. at 5, 114 S.Ct. 

at 1242; Francis, 471 U.S. at 316-17, 105 S.Ct. at 1973-74; 

Sandstrom v. Montana, 442 U.S. 510, 520-22, 99 S.Ct. 

2450, 2457-58 (1979). A jury instruction that omits or 

materially misdescribes an essential element of an offense 

as defined by state law relieves the state of its obligation to 

prove facts constituting every element of the offense beyond 

a reasonable doubt, thereby violating the defendant's 

federal due process rights. See Carella v. California, 491 

U.S. 263, 265, 109 S.Ct. 2419, 2420 (1989) (per curiam); 

Rock, 959 F.2d at 1245-46; see also Polsky v. Patton, 890 

F.2d 647, 651 (3d Cir. 1989) (no due process violation 

 25 
where jury instruction "did not omit any essential element 

of the crime charged"). 

This result is not inconsistent with Johnson, 1997 WL 

318064 at *6-8. In that case, the federal habeas petitioner 

contended that the jury instructions concerning 

justification rendered at his Pennsylvania trial for 

aggravated assault, and later affirmed by an intermediate 

appellate court, violated his rights pursuant to the Due 

Process Clause. See id. at *3-5. We noted that a conviction 

for aggravated assault in Pennsylvania required that the 

Commonwealth prove beyond a reasonable doubt that the 

defendant acted with malice. See id. at *6. We further noted 

that justification on the part of the defendant would 

necessarily negate a showing of malice. See id. Thus, the 

Commonwealth was required to prove that the defendant 

acted without justification. See id. The petitioner argued 

that, by misdescribing justification pursuant to 

Pennsylvania law, the trial court violated his Due Process 

rights. See id. He reasoned that the allegedly erroneous 

instruction allowed the Commonwealth to convict him of 

the offense without having proved every element, as

properly defined, beyond a reasonable doubt. See id.

We rejected this argument, holding that no federal issue 

was raised. See id. at *8. We further held that a federal 

habeas court is bound by the definition given a state 

criminal offense even by intermediate state appellate 

courts. See id. at *10-13. However, in Johnson the 

Pennsylvania Supreme Court had not yet defined 

justification pursuant to state law. See id. at *4. The 

petitioner simply challenged the definition of that term 

rendered by the state trial and intermediate appellate 

courts, urging that the Pennsylvania Supreme Court would 

rule differently. Thus, Johnson stands for the unremarkable 

proposition that the states are free to define criminal 

offenses in any way they see fit, within certain 

constitutional limitations, even through their lower courts. 

This is so even if the definition they choose makes it 

somewhat easier to convict a person of the offense than 

would be the case under a different definition. Johnson

most emphatically does not stand for the proposition that, 

once a state has defined a criminal offense, the state may 

 26 
then proceed to convict a person of that offense on anything 

less than proof beyond a reasonable doubt of all the 

elements of the offense. Thus, whether a state is relieved of 

that burden via an instruction that omits an element of an 

offense, materially misdescribes that element, or shifts to 

the defendant the burden of proof on that element, the 

result is the same -- the defendant has been denied his 

federal constitutional rights. 

The dissent accuses us of holding that "the Due Process 

Clause is violated whenever a state trial judge, in

instructing a jury on an element of a state offense, gives an 

ambiguous instruction that prejudices the defendant." 

Dissent slip op. at 45-46. We do no such thing. First, 

rather than being "ambiguous," the language must be such 

that "there is a reasonable likelihood that the jury has" 

understood and applied it in a certain way. Supra at 18 

(emphasis and internal quotation marks omitted). Second, 

we require more than that the defendant simply be 

"prejudice[d]." Our recent holding in Johnson, 1997 WL 

318064 at *6-8, makes this clear. The standard requires 

that the defendant be prejudiced in a very particular way -- 

it requires that the erroneous instructions have operated to 

lift the burden of proof on an essential element of an 

offense as defined by state law. 

The dissent notes that the Supreme Court has never 

expressly held that a jury charge that eases the state's 

burden of proof on an element of an offense by omitting or 

materially misdescribing it violates the Due Process Clause. 

The proposition is true as far as it goes. If our duty as a 

court of appeals were simply to sustain only those claims 

the legal bases for which have already been settled by the 

Supreme Court, the dissent's observation would have some 

relevance. However, our duty also extends to predicting, in 

circumstances where there is no specific guidance, how 

that Court would decide if it were to consider the case 

before us. 

Contrary to the dissent's assertions, our holding follows 

inexorably from the Supreme Court's decisions in 

Sandstrom, Franklin, and Carella. As the dissent recognizes, 

those cases "held that the Due Process Clause[i]s violated 

where jury instructions in [a] criminal case[ ] set out either 

 27 
a conclusive presumption or a mandatory rebuttable 

presumption that relieve[s] the prosecution of the burden of 

persuasion on the presumed fact." Dissent slip op. at 46. 

Here, the jury was not instructed on an essential element 

of first-degree murder -- Smith's intent. Instead, as we read 

the charge (and we understand the dissent disputes this 

point) the jury was instructed that as long as either Smith 

or Alston killed Sharp, and as long as Smith and Alston 

were accomplices in the robbery, Smith could be found 

guilty of first-degree murder. This charge was the 

functional equivalent of an instruction that as long as 

either Smith or Alston killed Sharp, and as long as Smith 

and Alston were accomplices in the robbery, the jury should

conclusively presume that Smith had the intent to kill Sharp, 

and therefore he could be found guilty of first-degree 

murder. Yet the dissent apparently would find that the 

former charge does not violate Smith's constitutional rights, 

because it is not identical in form to the latter, which 

indisputably is repugnant to the Due Process Clause under 

Sandstrom, Franklin, and Carella. 

In this case, there is no dispute that Pennsylvania law 

requires the Commonwealth prove specific intent to kill on 

the part of the defendant in order to convict him of firstdegree murder. The Commonwealth unambiguously 

conceded as much at oral argument. However, the jury was 

instructed that Smith could be found guilty of first-degree 

murder even if it did not find beyond a reasonable doubt 

that Smith intended for a killing to take place. The 

instruction thus relieved the Commonwealth of the burden 

of proving beyond a reasonable doubt facts necessary to 

constitute every element of the offense with which Smith 

was charged. The instruction therefore constituted error 

pursuant to the Due Process Clause of the Fourteenth 

Amendment. 

D.

Finally, we must determine whether the constitutional 

error that occurred in this case was harmless. 

1.

We must first determine whether a jury charge that omits 

or misdescribes an element of an offense can ever be 

harmless. We have explained that 

 28 
[c]onstitutional errors have been categorized as one of 

two types: structural error or trial error. A structural 

error is a defect in the trial mechanism itself, affecting 

the entire trial process, and is per se prejudicial. Trial 

error occurs during the presentation of the case to the 

jury, and may be qualitatively assessed in the context 

of all other evidence. Thus, trial errors are subject to a 

harmless error analysis. 

Yohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996) (citations 

omitted); see also Arizona v. Fulminante, 499 U.S. 279, 

307-10, 111 S.Ct. 1246, 1264-65 (1991).5 

In California v. Roy, ___ U.S. ___, ___, 117 S.Ct. 337, 339 

(1996) (per curiam), the Supreme Court characterized "an 

error in the instruction that defined the crime" as a trial 

error rather than a structural error. In that case, the 

defendant was accused of aiding a confederate in 

committing first-degree murder. See id. at ___, 117 S.Ct. at 

337. The trial court had instructed the jury the defendant 

could be convicted if it found beyond a reasonable doubt 

that he had knowledge of his cohort's unlawful purpose and 

that the defendant aided him in the commission of the act. 

See id. at ___, 117 S.Ct. at 337-38. The instruction was 

erroneous under state law because it failed to convey the 

critical idea that the defendant must also have intended to 

aid in the commission of the crime in order to be found 

guilty. See id. at ___, 117 S.Ct. at 338. 

The Roy Court arguably did not decide that all "error[s] in 

the instruction that define[ ] the crime" constitute trial 

error, id. at ___, 117 U.S. at 339, but only that that label 

attaches "to errors that concern fairly narrow departures 

from proper charge language." Peck v. United States, 102 

F.3d 1319, 1325 (2d Cir. 1996) (en banc) (per curiam) 

_________________________________________________________________ 

5. In Kontakis v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994), we stated 

broadly that "unconstitutional jury instructions" constitute trial error. 

There is at least one type of erroneous jury instruction, however, that 

constitutes structural error. See Sullivan v. Louisiana, 508 U.S. 275, 

279-80, 113 S.Ct. 2078, 2082 (1993) (defective reasonable doubt charge). 

While most erroneous jury instructions that rise to the level of 

constitutional error will be trial error, we undertake to determine how to 

classify the specific type of instructional error that occurred here. 

 29 
(Newman, C.J., concurring); see also id. at 1326 (Newman, 

C.J., concurring). It may be that a "mere" misstatement of 

an element of an offense is a trial error, while a complete 

omission of an element is a structural error. See Roy, ___ 

U.S. at ___, 117 S.Ct. at 339; see also Waldemer v. United

States, 106 F.3d 729, 736 n.3 (7th Cir. 1997); United States

v. Wiles, 102 F.3d 1043, 1059 (10th Cir. 1996) (en banc), 

modified, 106 F.3d 1516 (10th Cir.), petition for cert. filed, 

65 U.S.L.W. 3632 (U.S. Mar. 10, 1997) (No. 96-1430); cf.

Peck, 102 F.3d at 1325 (Newman, C.J., concurring). 

However, we need not decide this issue. The charge error 

in the instant case is so similar to the one at issue in Roy

that we believe that this case is controlled by that decision. 

In addition, several pre-Roy decisions from both the 

Supreme Court and this Court all hold that similar types of 

instructional error constitute trial error. See Yates v. Evatt, 

500 U.S. 391, 402, 111 S.Ct. 1884, 1892 (1991) 

(instructions that impermissibly impose mandatory, 

rebuttable presumption on element of offense); Carella, 491 

U.S. at 266, 109 S.Ct. at 2421 (mandatory, conclusive 

presumption); Rose v. Clark, 478 U.S. 570, 579-82, 106 

S.Ct. 3101, 3106-08 (1986) (mandatory, rebuttable 

presumption); Pope v. Illinois, 481 U.S. 497, 501-03, 107 

S.Ct. 1918, 1921-22 (1987) (instructions that misdescribe 

element of offense in violation of First and Fourteenth 

Amendments); United States v. Edmonds, 80 F.3d 810, 824 

(3d Cir. 1996) (en banc) (instructions that effectively 

abridge federal criminal defendant's Sixth Amendment right 

to jury unanimity); Kontakis, 19 F.3d at 116 (instructions 

that alter burden of proof on element of offense). We 

conclude that the error that occurred here was trial error, 

not structural error. 

2.

In a collateral proceeding, the standard for harmlessness 

is "whether the error had substantial and injurious effect or 

influence in determining the jury's verdict." Roy, ___ U.S. at 

___, 117 S.Ct. at 338 (internal quotation marks omitted); 

see also Brecht v. Abrahamson, 507 U.S. 619, 637, 113 

S.Ct. 1710, 1722 (1993); Yohn, 76 F.3d at 523; Alston v.

Redman, 34 F.3d 1237, 1252 (3d Cir. 1994). 

 30 
Pursuant to the Brecht standard, 

[t]he crucial inquiry is the impact of the error on the 

minds of the jurors in the total setting. It is thus 

inappropriate to ask whether there was sufficient 

evidence to support the result, apart from the phase of 

the trial affected by the error. The correct inquiry is 

whether the error had a substantial influence on the 

verdict despite sufficient evidence to support the result 

apart from the error. 

Yohn, 76 F.3d at 523 (citations omitted); see also Alston, 34 

F.3d at 1252. 

The Supreme Court has held that if a habeas court "is in 

grave doubt as to the harmlessness of an error," habeas 

relief must be granted. O'Neal v. McAninch, 513 U.S. 432, 

___, 115 S.Ct. 992, 995 (1995). Thus, if the court concludes 

from the record that the error had a "substantial and 

injurious effect or influence" on the verdict, or if it is in 

"grave doubt" whether that is so, the error cannot be 

deemed harmless. See Roy, ___ U.S. at ___, 117 S.Ct. at 

338. 

3.

We now apply the harmless error analysis set forth above 

to the facts of this case. The Commonwealth urges that this 

error was harmless because the jury's findings, in light of 

the evidence, embrace the finding that Smith actually killed 

Sharp and intended to do so. According to the 

Commonwealth, the harmlessness of the error follows

syllogistically: (1) the trial court essentially instructed the 

jury that Smith was guilty of first-degree murder if at least 

one of the robbers both killed Sharp and intended to kill 

him; (2) by finding Smith guilty of first-degree murder, the 

jury necessarily found beyond a reasonable doubt that 

either Smith or Alston killed Sharp and intended to do so; 

and (3) because there was evidence that Smith killed Sharp, 

and no evidence that Alston killed Sharp, the jury found 

beyond a reasonable doubt that Smith both killed Sharp 

and intended to do so. 

While this reasoning has some superficial appeal, it does 

not withstand close scrutiny. The fundamental flaw arises 

 31 
in the leap from step two to step three of the analysis. The 

jury was never asked to evaluate the respective 

probabilities that Smith or Alston killed Sharp. The verdict 

demonstrates that the jury found beyond a reasonable 

doubt that one of them killed Sharp. The evidence 

supporting this verdict demonstrates that it is more likely

that Smith, rather than Alston, killed Sharp. However, this 

evidence and the factual findings it supports are not the 

" `functional[ ] equivalent' " of, nor do they "effectively 

embrace[ ]," a finding beyond a reasonable doubt that Smith 

killed Sharp. Edmonds, 80 F.3d at 824 (quoting Carella, 

491 U.S. at 271, 109 S.Ct. 2423-24 (Scalia, J., concurring 

in the judgment)), cert. denied, ___ U.S. ___, 117 S.Ct. 295 

(1996) (alteration added); Roy, ___ U.S. at ___, 117 S.Ct. at 

339 (Scalia, J., concurring). We cannot say that a finding 

that either Smith or Alston killed Sharp is " `so closely 

related' " to a finding that Smith killed Sharp, in light of the 

evidence presented, that " `no rational jury' " that made the 

former finding would have failed to make the latter finding. 

Edmonds, 80 F.3d at 824 (quoting Carella, 491 U.S. at 271, 

109 S.Ct. at 2423-24 (Scalia, J., concurring in the

judgment)). 

The strongest evidence that Smith actually killed Sharp 

were his admissions, made immediately after the robbery, 

related at trial by Barrow and Yancey. These two witnesses 

were admitted accomplices to the robbery whose credibility 

was therefore in question. Smith's participation in the 

robbery was well established by independent evidence -- 

the jury did not need to believe either Barrow or Yancey in 

order to find him guilty of robbery and therefore (because of 

the erroneous jury instructions) first-degree murder. It is 

thus unclear whether and to what extent the jury believed 

or disbelieved Barrow and Yancey. Since the jury charge 

did not necessitate that the jury make this determination, 

we can only speculate as to its conclusion with regard to 

Barrow and Yancey's credibility. We cannot assume that 

the jury, having found Smith guilty, "believed all properly 

admitted evidence against him and disbelieved all evidence 

in his favor." ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS 

ERROR 28 (1970). 

The situation here is analogous to the one contemplated 

in Yates, 500 U.S. at 405-06, 111 S.Ct. at 1894. In that 

 32 
"mandatory rebuttable presumption" case, the Supreme 

Court cautioned that if it appears that the jury did not 

consider 

all the evidence bearing on the issue in question[,] 

before it made the findings on which the verdict rested 

. . . an examination of the entire record would not

permit any sound conclusion to be drawn about the 

significance of the error to the jury in reaching the 

verdict. . . . [T]he terms of some presumptions so 

narrow the jury's focus as to leave it questionable that 

a reasonable juror would look to anything but the 

evidence establishing the predicate fact in order to infer 

the fact presumed. 

Id. (footnote omitted). Analogously, the effect of the

instructions here was to "so narrow the jury's focus as to 

leave it questionable that a reasonable juror would" 

endeavor to answer the rather difficult question whether 

Smith killed Sharp, rather than to rest upon the answers to 

the relatively straightforward questions whether Smith 

participated in the robbery and whether either Smith or 

Alston killed Sharp. 

Moreover, the Commonwealth proceeded on the theory 

that Smith was guilty of first-degree murder whether or not 

he intended the victim to be killed. Although the prosecutor 

in summation contended that Smith committed the killing, 

he also repeatedly admonished the jury that it need not 

consider whether Smith actually killed Sharp. See Cross 

App. at 1007-08, 1010, 1012-13, 1014, 1017. Having 

repeatedly urged the jury to base its verdict on a theory 

predicated on a fundamental constitutional error, the 

Commonwealth cannot now seriously contend that that

error had no "substantial and injurious effect or influence" 

on the verdict. See Yohn, 76 F.3d at 523-24 (repeated 

emphasis by prosecution on importance of erroneously 

admitted evidence demonstrated error was not harmless). 

For these reasons, our harmless-error analysis leads 

inexorably to the conclusion that the error here was not 

harmless. Upon a review of the record, we cannot say that 

the error had no "substantial and injurious effect or 

influence" on the jury's verdict. 

 33 
IV.

The judgment of the district court will be reversed to the 

extent that it denied Smith habeas relief with regard to his 

conviction for first-degree murder. The judgment will be 

vacated in all other respects. The matter will be remanded 

to the district court with directions that it conditionally 

order Smith released from confinement. Smith shall be 

released unless the Commonwealth retries him for the 

crime of first-degree murder within 180 days.6 

_________________________________________________________________ 

6. We express no opinion whether, following the grant of habeas relief, 

the Commonwealth may properly move to resentence Smith for any 

lesser included homicide (such as murder or manslaughter where 

specific intent is not an element of the crime). Nor do we express an 

opinion concerning the propriety of the Commonwealth moving to 

resentence Smith on the other crimes for which he was convicted along 

with first-degree murder. 

 34 
ALITO, Circuit Judge, dissenting. 

The majority's decision in this case is troubling. In 1983, 

Clifford Smith was convicted in state court forfirst-degree 

murder. At his trial, the prosecution introduced strong 

evidence that Smith and another man, Roland Alston,

robbed a pharmacy and that, after the pharmacist was 

ordered to lie face down on the floor, Smith proceeded to 

execute him with a gunshot to the head. Fourteen years 

later, when retrial will almost certainly be difficult at best, 

the majority holds that Smith's federal habeas petition 

must be granted based on a perceived ambiguity in the jury 

instructions. According to the majority, certain references 

to the concept of an "accomplice" are ambiguous in that 

they could be interpreted to mean either " `accomplice in 

the killing,' `accomplice in the robbery,' or both." Maj. Op. 

at 20-21. This supposed ambiguity, the majority concludes, 

not only created confusion about the requirements of state 

law but rose to the level of a federal due process violation. 
e majority takes this course even though (1) the trial 

judge, before making the references to "accomplice"

that the majority finds to be ambiguous, provided an 

accurate and detailed definition of that term which, if 

read into all of the challenged references, renders them 

accurate; (2) Smith's attorney did not object at trial to 

the relevant portions of the jury charge; and (3) Smith 

never argued in either of his two appeals to the 

Pennsylvania Supreme Court that these portions of the 

jury instructions violated either state law or the Due 

Process Clause. Under these circumstances, I cannot agree 

with the majority's decision. 

I. 

An important threshold question is whether Smith 

exhausted state remedies. Although the Commonwealth has 

not raised this issue, I believe that we should nevertheless 

address it under the circumstances present here.1 In 

_________________________________________________________________ 

1. In this opinion, I rely on the caselaw regarding exhaustion and 

procedural default as they existed prior to the enactment of the 

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 

 35 
Granberry v. Greer, 481 U.S. 129, 134-35 (1987), the 

Supreme Court stated that "both comity and judicial

efficiency" might make it appropriate for a court to raise the 

issue of exhaustion on its own where a case "presents an 

issue on which an unresolved question of fact or of state 

law might have an important bearing." 481 U.S. at 134-35. 

The present case falls squarely within this description. As 

noted, the majority's decision is founded upon its 

conclusion that the jury instructions inaccurately explained 

Pennsylvania's rule of accomplice liability. Before

considering whether this purported misstatement of state 

law rose to the level of a federal due process violation, it 

would be helpful to have the benefit of a decision by the 

Pennsylvania courts on the underlying issue of state law. 

We have no such decision, however, because Smith did 

not challenge the relevant portions of the jury instructions 

on any ground in either of his two appeals to the 

Pennsylvania Supreme Court. Not only did he fail to raise 

the federal due process claim on which the majority's 

decision rests, but he did not even contend that the 

instructions misstated state law.2 

_________________________________________________________________ 

110 Stat. 1221, which became law on April 24, 1996, after Smith's 

federal habeas petition was filed. Under a provision of that Act applicable 

to a state prisoner under a capital sentence, a district court is generally 

precluded from considering a claim unless it was "raised and decided on 

the merits in the State courts." 28 U.S.C. § 2264(a). This provision 

applies to federal habeas petitions already pending when the Act became 

law. See Lindh v. Murphy, 1997 WL 338568 (U.S. Sup. Ct. June 23, 

1997). However, this provision applies only if a state satisfies certain 

conditions, see U.S.C. § 2261, and in Death Row Prisoners of

Pennsylvania v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997), the 

Commonwealth declared, and our court agreed, that Pennsylvania did 

not meet the requirements of § 2261 as of January 31, 1997. It therefore 

appears that § 2264(a) is inapplicable here. Under the current version of 

28 U.S.C. § 2254(b)(3), consideration of the issue of exhaustion would be 

required. However, Smith's petition was filed before this provision took 

effect. See Lindh, supra. 

2. On direct appeal, Smith argued that the trial judge erred in refusing 

to give three instructions requested by the defense, namely, Nos. 8, 11, 

and 12. Number 8 defined first degree murder; number 11 defined 

 36 
Although Smith did not exhaust state remedies, "[a]

petitioner's failure to exhaust state remedies is . . . excused 

. . . when state law `clearly foreclose[s] state court review of 

[the] unexhausted claims.' " Doctor v. Walters, 96 F.3d 675, 

680 (3d Cir. 1996) (quoting Toulson v. Beyer, 987 F.2d 984, 

987 (3d Cir. 1993)). Here, the Pennsylvania courts might 

well hold that review of Smith's claim is foreclosed under 

the Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. S. 

§§ 9541-46 (Supp. 1996). In Doctor, 96 F.3d at 681, we 

explained that under Pennsylvania law 

"[a]n issue is waived if the petitioner could have raised 

it but failed to do so before trial, at trial, during unitary 

review, on appeal or in a prior state postconviction 

_________________________________________________________________ 

involuntary manslaughter; and number 12 defined the terms 

"intentionally," "knowingly," "recklessly," and "negligently." None of these 

requested instructions related to the claim on which the majority relies. 

The Supreme Court of Pennsylvania rejected Smith's argument 

regarding the requested instructions on involuntary manslaughter on the 

ground that the evidence at trial did not support such a charge. 

Commonwealth v. Smith, 513 A.2d 1371, 1377-78 (Pa. 1986). The court 

rejected Smith's argument concerning the other two requested 

instructions on the ground that the substance of those requests was 

adequately covered by the trial judge. The state supreme court wrote: 

It is established that a trial court is not required to accept points 

submitted by counsel verbatim, but rather is free to select its own 

forms of expression. Commonwealth v. McComb, 462 Pa. 504, 509, 

341 A.2d 496, 498 (1975). "The only issue is whether the area is 

adequately, accurately and clearly presented to the jury for their 

consideration." Id. We have reviewed the record in the present case 

and find no inadequacies in the trial court's instructions as to 

elements of the crime of murder of the first degree and as to 

pertinent requirements of criminal culpability. 

513 A.2d at 1377. 

This passage cannot reasonably be interpreted to mean that the state 

supreme court sua sponte considered the federal due process claim now 

before us. Indeed, it would be utterly unrealistic to interpret the court's 

statements to mean even that it had rejected all possible objections to 

the instructions that might be raised under state law. To go further and 

read that statement as a rejection of an unraised federal due process 

claim would be absurd. 

 37 
proceeding." [42 Pa. Cons. Stat. Ann.] § 9544(b). As the 

Pennsylvania courts have noted, "nearly all claims are 

waived under the PCRA since nearly all claims 

potentially could have been raised on direct appeal

. . . . Commonwealth v. Eaddy, 419 Pa. Super. 48, 614 

A.2d 1203, 1207-08 (1992), appeal denied, 534 Pa. 

636, 626 A.2d 1155 (1993); accord Commonwealth v.

Stark, 442 Pa. Super. 127, 658 A.2d 816, 820 (1995). 

We recognized, however, that PCRA review might not be 

foreclosed if a petitioner is "able to demonstrate a 

`miscarriage of justice' warranting `departure from the 

PCRA's stringent eligibility requirements.' " Doctor, 96 F.3d 

at 681 (quoting Commonwealth v. Fiore, 445 Pa. Super. 

401, 665 A.2d ll85, 1193 (1995) (Hoffman, J., concurring) 

(citations omitted), appeal denied, 675 A.2d 1243 (1996)). I 

question whether at this time the Pennsylvania courts 

would entertain Smith's challenge to the jury instructions, 

but I would certainly request briefing from the parties on 

this question. 

If, as seems likely, PCRA review is foreclosed because of 

Smith's failure to raise his federal due process claim in the 

prior state-court proceedings, we should consider the 

doctrine of procedural default. See Coleman v. Thompson, 

501 U.S. 722, 735 n.* (1991). This doctrine, like 

exhaustion, has not been raised by the Commonwealth, but 

I believe that we should apply this doctrine nevertheless. 

Our court, see Hull v. Freeman, 932 F.2d 159, 164 n.4 (3d 

Cir. 1991), and many others have held that procedural 

default may be raised sua sponte by a court of appeals. 

See, e.g., Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994); 

Washington v. James, 996 F.2d 1442 (2d Cir. 1993); 

Hardiman v. Reynolds, 971 F.2d 500, 502-04 & n.4 (10th 

Cir. 1992).3 In Washington , the Second Circuit explained 

_________________________________________________________________ 

3. Cf. Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-jurisdictional 

Teague rule may but need not be raised by federal court sua sponte; 

Granberry, 481 U.S. at 134-35 (same for exhaustion); Patsy v. Board of

Regents of Fla., 457 U.S. 498, 515 n.19 (1982) (same for Eleventh 

Amendment defense). Compare Trest v. Cain, 94 F.3d 1005 (5th Cir. 

1996), petition for cert. granted, 117 S.Ct. 1842 (1997) (presenting 

question whether court of appeals is required to raise procedural 

 38 
that "[p]rinciples of comity and federalism bear on the 

relations between court systems, and those relations will be 

affected whether or not the litigants have raised the issue 

themselves." 996 F.2d at 1448. In Hardiman, the Tenth 

Circuit, quoting our opinion in Brown v. Fauver, 819 F.2d 

395, 398 (3d Cir. 1987) (holding that a court could raise 

exhaustion sua sponte), stated that it was appropriate for a 

court to raise the issue of procedural default because it 

implicates " `values that may transcend the concerns of the 

parties to [the] action.' " 971 F.2d at 502. 

In Ortiz, the First Circuit, when confronted with a federal

constitutional claim closely resembling Smith's, held that it 

was appropriate to raise the issue of procedural default on 

its own motion. The petitioner in Ortiz, argued that "his 

right to due process was violated because the jury was not 

properly instructed on the elements of felony-murder under 

Massachusetts law, and therefore did not find every

element of the offense beyond a reasonable doubt." 19 F.3d 

at 710. Although the petitioner argued on direct appeal that 

the instructions were deficient, the Supreme Judicial Court 

of Massachusetts declined to review his claim on the merits 

because he had not objected to the instructions at trial. Id.

at 713. Instead, the Supreme Judicial Court "limited its 

inquiry to whether the error gave rise to a substantial 

likelihood of miscarriage of justice." Id. at 714. Accordingly, 

the First Circuit found that "the state procedural default 

_________________________________________________________________ 

default). The petition in Trest argues that, under Gray v. Netherland, 116 

S.Ct. 2080, 2082 (1996), procedural default is an affirmative defense 

that is lost if not properly raised by the state. But while it is certainly 

true that a state may lose the "right" to have the doctrine of procedural 

default considered if it does not properly raise that issue, see Gray, 116 

S.Ct. at 2082, it is far from clear that Gray meant to go further and say 

that the lower federal courts lack the discretion to raise the issue on 

their own. See id. (citing Schiro v. Farley, 510 U.S. 222, 227-28 (1994) 

(refusing as a matter of discretion to consider Teague bar where not 

raised at cert. petition stage), and Jenkins v. Anderson, 447 U.S. 231, 

234 n.1 (1980) (refusing to consider procedural default where raised for 

the first time in Supreme Court). 

 39 
[was] clear on the face of the record," and thus found it 

unnecessary to review the merits of the petitioner's claim.4 

Like the First Circuit in Ortiz, I think that it is 

appropriate for us to raise the issue of procedural default in 

this case on our own motion, particularly since Smith's 

federal constitutional claim is grounded on an issue of state 

law. Since Smith has not had an opportunity to address the 

issue of procedural default, I would request further briefing 

on that issue before determining whether there is any basis 

for excusing default in this case. 

The majority refuses to consider the issues of exhaustion 

and procedural default -- indeed, refuses even to request 

briefing on these serious issues. The majority voices 

concern that consideration of these issues would "result in 

undue delay." Maj. Op. 13; see also id. at 12. This concern 

is curious -- and not only because of the pace of the postconviction proceedings to date. Consideration of procedural 

default would not simply delay a decision on the merits of 

Smith's claim; rather, it holds the potential for precluding 

a decision on the merits of that claim. If the claim is 

procedurally defaulted, if Smith cannot show cause and 

prejudice, and if no other exception applies (questions on 

which I express no view without hearing from the parties), 

then neither the state nor the federal courts would decide 

the merits of Smith's claim. Obviously, then, the refusal to 

consider procedural default cannot be defended on the 

ground that to do so would only delay an inevitable

decision on the merits. 

The majority also contends that the jury instructions 

resulted in a "miscarriage of justice." As I show below, 

however, the instructions at issue here were at most 

ambiguous -- and that is undoubtedly why they did not 

even elicit an objection from Smith's trial counsel, why 

challenges to these instructions were not included among 

the numerous arguments raised in Smith's two appeals to 

the Supreme Court of Pennsylvania, and why the district 

court judge in this federal habeas corpus proceeding 

thought that the alleged errors that the majority is willing 

_________________________________________________________________ 

4. The First Circuit did state that it would have rejected the claim even 

if it had reached the merits. 

 40 
to label "a miscarriage of justice" were meritless and did not 

even warrant discussion. See Smith v. Horn, 1996 WL 

172047 (E.D. Pa. 1996), page 12. 

There is one reasonable argument that can be made in 

support of the conclusion that we should not raise the 

doctrines of exhaustion and procedural default on our own, 

i.e., that these doctrines, which serve to protect state 

prerogatives, should be raised by the state's attorneys. But, 

as I previously noted, our court and others have recognized 

that the values served by these doctrines "may transcend 

the concerns of the parties to an action." Brown v. Fauver, 

819 F.2d at 398. 

Aiming to curb federal habeas corpus abuses, 

particularly in death penalty cases, Congress endorsed this 

view when it enacted the Antiterrorism and Effective Death 

Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1221. In 

capital cases subject to chapter 154, 28 U.S.C. §§ 2261-66, 

Congress prohibited federal courts from considering a claim 

unless it was "raised and decided on the merits in the State 

courts." 28 U.S.C. § 2264(a). In other cases, Congress 

provided that a state may not be deemed to have waived 

exhaustion unless it does so expressly. 28 U.S.C. 

§ 2254(b)(3). These new provisions do not apply here (see

footnote 1, supra), but they are animated by the same 

respect for the state court systems that informed our 

court's prior decisions. Accordingly, I believe that we should 

not proceed to review the merits of Smith's due process 

claim without considering the issues of exhaustion and 

procedural default. However, since the majority has skipped 

over these questions and plunged into the merits of Smith's 

federal constitutional claim, I will address the merits of that 

claim as well. 

II. 

A. The Pennsylvania rule of accomplice liability is as 

follows: 

When causing a particular result is an element of an 

offense, an accomplice in the conduct causing such 

result is an accomplice in the commission of that 

offense if he acts with the kind of culpability, if any,

 41 
with respect to that result that it is sufficient for the

commission of the offense. 

18 Pa. Cons. Stat. Ann. § 306(d) (emphasis added). An 

"accomplice" is defined in pertinent part as follows: 

A person is an accomplice of another person in the 

commission of an offense if: 

(1) with the intent of promoting or facilitating the

commission of the offense, he: 

(i) solicits such other person to commit it; or 

(ii) aids or agrees or attempts to aid such other 

person in planning or committing it. 

18 Pa. Cons. Stat. Ann. § 306(c) (emphasis added). Thus, in 

order for an "accomplice" to be criminally responsible for a 

particular offense, the "accomplice" must have "the intent 

of promoting or facilitating the offense" -- which means 

that the accomplice must at a minimum possess the intent 

necessary for conviction of that offense as a principal. 

In this case, Smith was charged with first degree murder, 

robbery, possession of instruments of crime, and 

conspiracy. The trial judge instructed the jury on the 

elements of all of these offenses, as well as the lesser 

included homicide offenses of second and third degree 

murder and voluntary manslaughter. 

Before setting out the elements of these offenses, 

however, the trial judge instructed the jury on the

principles of accomplice liability, which were relevant, not 

only to the first degree murder charge, but to all of the 

other substantive offenses as well. The trial judge

accurately stated that an accomplice is criminally 

responsible for the acts of the principal. CA 1028.

"Therefore," the court stated, "it is necessary that you 

understand and that we spell out what is meant under our 

Crimes Code by the term accomplice." See CA 1028-29. 

Tracking the language of 18 Pa. Cons. Stat. Ann. 

§ 306(c)(1), the trial judge then explained that a person is 

an accomplice "if with the intent of promoting or facilitating

the commission of a crime he solicits, commands, 

encourages or requests the other person or persons to 

 42 
commit that crime or crimes, or aids, agrees to aid, or 

attempts to aid the other person in the planning or

committing the crime." Id. (emphasis added). Under this 

instruction, as under 18 Pa. Cons. Stat. Ann. § 306(c), a 

person can be an accomplice with respect to the 

commission of a particular crime only if that person has 

"the intent of promoting or facilitating" the commission of 

"that crime." 

When a trial judge, in instructing a jury, provides a 

definition of a complicated legal term, the judge is not 

generally required to repeat that definition every time the 

term is subsequently employed. Rather, the judge may 

reasonably rely on the prior definition, and that is what the 

trial judge did here -- without objection. If the previously 

provided definition is read into the instructions whenever 

the judge referred to an "accomplice," the judge's 

instructions are correct. Under this procedure, every 

reference to "an accomplice" should be read as a reference 

to an "accomplice" with respect to the particular offense or 

offenses that the judge is discussing. In finding that certain 

references to the concept of an "accomplice" are ambiguous, 

the majority ignores the significance of the definition that 

preceded these references. 

For example, the majority holds (Maj. Op. 18-19) that the 

trial judge violated due process when he gave the following 

instruction: 

[T]he elements of first degree murder are the unlawful 

killing of another person done intentionally; that is, 

willfully, deliberately and with premeditation, plus 

malice, as I will define that term to you. If these

elements are established beyond a reasonable doubt,

you may, on the theory that one was the perpetrator

and the other the accomplice, find Clifford Smith guilty 

of murder in the first degree . . . . 

CA 1035. The majority finds this instruction objectionable 

because it did not clearly convey the message that, if Alston 

pulled the trigger, Smith could be convicted of first degree 

murder only if Smith was Alston's " `accomplice in the 

killing' and not simply [his] accomplice in the robbery.' " 

Maj. Op. 19. But if the previously supplied definition of an 

 43 
"accomplice" is applied, this alleged ambiguity is dispelled. 

As noted, an "accomplice" must have the intent required for 

the offense in question (see Pa. Cons. Stat. Ann. § 306(c); 

CA 1029); therefore, to be an accomplice in a first degree 

murder a person must have the intent required for that 

offense, i.e., the person must act intentionally, willfully, 

deliberately, and with premeditation. 18 Pa. Cons. Stat. 

Ann. §§ 2502(a), (d). 

To be sure, if Smith's trial attorney had objected to this 

and the other instructions at issue on the ground that they 

were suspectable to the misinterpretation that troubles the 

majority, if the trial judge had overruled this objection, if

the objection had been raised on direct appeal, and if we 

sat on a Pennsylvania appellate court, rather than a federal 

court, I could understand a decision requiring a new trial. 

But for a federal appeals court to order a new trial 14 years 

later based on such a previously unchallenged ambiguity is 

shocking. 

The remaining portions of the instructions that the

majority has singled out are similar. The majority objects 

(Maj. Op. 19-20) to certain instructions in which the trial 

judge attempted to explain in generic terms the application 

of the principles of accomplice liability to any of the 

homicide offenses that were before the jury, i.e.,first, 

second, and third degree murder and voluntary 

manslaughter. See CA 1030-32. Probably because he was 

speaking about all of these offenses at the same time, the 

judge did not at this point specify the intent required for 

conviction for each offense (he did that a few pages later), 

but if the definition of an accomplice that he gave on the 

previous page is applied, the challenged instructions were 

correct. In retrospect, one might argue that it was

inadvisable for the trial judge to have attempted to explain 

in one breath how the principles of accomplice liability 

relate to all four of the homicide offenses that were before 

the jury, and one might fault the particular language that 

the judge chose. But I see nothing in these instructions 

that justifies federal habeas relief.5 

_________________________________________________________________ 

5. The majority goes so far as to cite alleged ambiguities in the 

instructions on criminal conspiracy as support for its decision to strike 

 44 
Having identified what is at most an ambiguity in the 

jury instructions on a point of state law, the majority 

alchemizes this ambiguity into a violation of the Due 

Process Clause. The majority writes: 

In this case, the misapplication of state law resulted in 

a federal constitutional error. It is well-settled that "the 

Due Process Clause [of the Fourteenth Amendment] 

protects the accused against conviction except 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, 90 S.Ct. 

1068, 1073 (1970); see also Victor, [v. Nebraska, 511 

U.S. 1, -- (1994), 511 U.S. 114 S.Ct. -- 1242 (19 ); 

Francis, 471 U.S. at 317, 105 S.Ct. at 1973; Sandstrom

v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 2458 

(1979). A jury instruction that omits or materially

misdescribes an essential element of an offense as 

defined by state law relieves the state of its obligation 

to prove facts constituting every element of the offense 

beyond a reasonable doubt, thereby violating the 

defendant's federal due process rights. See Carella v.

California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420 

(1989) (per curiam); Rock, 959 F.2d at 1245-46; see

also Polsky v. Patton, 890 F.2d 647, 651 (3d Cir. 1989) 

(no due process violation where jury instruction "did 

not omit any essential element of the crime charged"). 

Maj. Op. at 25. 

In essence, the majority holds that the Due Process

Clause is violated whenever a state judge, in instructing a 

jury on an element of a state offense, gives an ambiguous 

_________________________________________________________________ 

down Smith's first degree murder conviction. See Maj. Op. 18-19; CA 

1047-48. This argument is far-fetched indeed. By this point in the 

instructions, the trial judge had turned to the last "remaining crimes in 

the Information, . . . the crimes of criminal conspiracy to commit the 

various robberies . . . criminal conspiracy to commit first degree murder 

and murder and criminal conspiracy to commit the act of possession of 

instruments of crime." CA. 1043. If there were any serious flaws in these 

instructions -- and I see none -- they could at most undermine Smith's 

conspiracy conviction, not his conviction for first degree murder. 

 45 
instruction that prejudices the defendant -- even if defense 

counsel does not object. None of the decisions cited by the 

majority supports this holding. In Winship, the Supreme 

Court held that the Due Process Clause requires proof 

beyond a reasonable doubt to support a finding that a 

juvenile committed an act that would constitute a crime if 

committed by an adult. Sandstrom, Francis, and Carella all 

held that the Due Process Clause was violated where jury 

instructions in criminal cases set out either a conclusive 

presumption or a mandatory rebuttable presumption that 

relieved the prosecution of the burden of persuasion on the 

presumed fact. Victor reviewed instructions that defined the 

concept of reasonable doubt. No Supreme Court case cited 

by the majority -- or any other Supreme Court decision of 

which I am aware -- has held that the Due Process Clause 

is violated whenever a state trial judge, in instructing a jury 

on the elements of a state offense, uses ambiguous 

language that prejudices the defendant. Nor is the 

majority's decision supported by either of the Third Circuit 

cases it cites. In Rock, 959 F.2d at 1245-46, we merely 

restated in dicta the holdings of Winship and Sandstrom. In 

Polsky, we held that a particular instruction conveyed the 

essence of the element that was allegedly omitted. 890 F.2d 

at 651. 

Although not cited by the majority, the Supreme Court 

opinion that appears to be most closely on point, 

Henderson v. Kibbe, 431 U.S. 145 (1977), cuts against the 

majority's argument. In Henderson, a federal court of 

appeals, relying on Winship, ordered that federal habeas 

corpus relief be granted because the trial judge (without 

objection) failed to instruct the jury on an essential element 

of the offense of second-degree murder. Reversing, the 

Supreme Court wrote: 

 Orderly procedure requires that the respective 

adversaries' views as to how the jury should be 

instructed be presented to the trial judge in time to 

enable him to deliver an accurate charge and to 

minimize the risk of committing reversible error. It is 

the rare case in which an improper instruction will

justify reversal of a criminal conviction when no 

objection has been made in the trial court. 

 46 
 The burden of demonstrating that an erroneous 

instruction was so prejudicial that it will support a 

collateral attack on the constitutional validity of a state 

court's judgment is even greater than the showing 

required to establish plain error on direct appeal. The 

question in such a collateral proceeding is "whether the 

ailing instruction by itself so infected the entire trial 

that the resulting conviction violates due process," 

Capp v. Naughten, 414 U.S. at 147, not merely whether 

"the instruction is undesirable, erroneous, or even

`universally condemned,' " id. at 146. 

431 U.S. at 154 (footnotes omitted). 

Here, the instructions cited by the majority did not " `so 

infect[ ] the entire trial that the resulting conviction violates 

due process.' " Id. (citation omitted). Thus, I would reject 

Smith's due process claim. 

It is a cardinal principle that "it is not the province of a 

federal habeas court to reexamine state court 

determinations on state law questions. In conducting 

habeas review, a federal court is limited to deciding whether 

a conviction violated the Constitution, laws, or treaties of 

the United States." Estelle v. McGuire, 112 S.Ct. 475, 480 

(1991). Our court has emphasized this important rule. 

Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992) 

(en banc); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3rd 

Cir. 1991). Cf. Johnson v. Rosemeyer, 1997 WL 318064, (3d 

Cir. June 13, 1997). The majority's extension of Winship

and related precedents threatens to undermine this 

important principle and to claim for a federal habeas court 

the power to decide, long after a state trial has been 

completed, whether previously unchallenged jury 

instructions set out the requirements of state law with 

sufficient clarity to satisfy the federal court's taste. "[I]t is 

difficult to think of a greater intrusion on state sovereignty 

than when a federal court instructs state officials on how to 

conform their conduct to state law." Pennhurst State School

& Hospital v. Halderman, 465 U.S. 89, 106 (1984). The 

majority's decision here not only works an injustice in an 

important case but it creates a dangerous precedent. I 

must therefore dissent. 

 47 
A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 48