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D ock e t 96-9001,96-9002

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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 c ourt granting in part petitioner-appellee/cross-appellan t Clifford Smith's petition for a writ of habeas corpus. The d istrict court held that certain comments made by the prosec utor

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

violated Smith's rights pursuant to the Eighth and
Fourteenth Amendments. The district court further h eld that the failure of Smith's attorney to object to t hese comments violated Smith's right to the effective as sistance of counsel pursuant to the Sixth and Fourteenth Amendments. The district court rejected Smith's cla im that instructions to the jury at the guilt phase of the trial, concerning the elements of first-degree murder purs uant to Pennsylvania law, violated Smith's right to a fair trial pursuant to the Due Process Clause of the Fourteent h Amendment. Similarly, the district court rejected S mith's arguments that other constitutional errors occurred at the penalty phase.

Respondents-appellants/cross-appellees ("Pennsylvan ia" or "the Commonwealth") contend that the district co urt erred in its determination that the prosecutor's cl osing argument at the penalty phase, and the failure of S mith's attorney to object to that argument, violated Smith 's federal constitutional rights. Smith cross-appeals, contend ing that the district court erred in denying him habeas reli ef with regard to his conviction for first-degree murder, a nd in rejecting his other arguments for granting relief b ased on alleged defects at the penalty phase.

We agree with Smith that errors in the jury instruc tions 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 d o 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 re lief.

I.

On November 22, 1983, in the Court of Common Pleas, Bucks County, Pennsylvania, Smith was convicted off irstdegree murder, among other crimes. The evidence at trial showed that on June 17 of that year, Smith and Rola nd

3Alston entered a pharmacy with the intention of rob bing it,

that they forced three persons inside the store to lie in a prone position on the floor as they committed the r obbery, 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 gui lty to being accomplices to the robbery, testified that Al ston and Smith committed the robbery while Barrow and Yancey waited in Barrow's car. One eyewitness saw Alston a nd Smith enter and leave the pharmacy at the time of t he robbery. A second eyewitness saw the pair walk in t he direction of the pharmacy just prior to the robbery . A third eyewitness identified the car in which Smith and Al ston were traveling just after the robbery. All three in dependent eyewitnesses identified the clothing worn by the ro bbers, which was later found at the homes of Alston, Yance y, and Frances Atkins, Smith's former girlfriend. Items ta ken from the three robbery victims were later found at the h omes of Barrow and Yancey.

Although there was evidence that both Alston and Sm ith carried handguns that day, the evidence tended to s how that Smith actually committed the killing. Accordin g to the Commonwealth, Barrow testified that immediately aft er 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 d o it, I
had to do it." Id. Barrow also testified that Smith told Alston that "[s]ince [Smith] did the murder, he wan ted the ring" that was one of the proceeds of the robbery. Id. Yancey similarly testified that Alston yelled at Sm ith, "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 t he trial testimony related in the Commonwealth's briefs, we accept thi s version as accurate for purposes of this appeal. Nonetheless, we feel t he need to express our bafflement at the Commonwealth's disregard of 3d Ci r. 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."

4that Smith stated that "he should have the ring bec ause

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 fro m Alston's pistol, indicating that Alston's weapon ha d not
been fired.

At the guilt phase of the trial, the district attor ney made the following comments in closing argument:

[W]ho shot Richard Sharp is of no moment in this tr ial, because as His Honor will tell you, it makes no
difference under the law and under the facts. It do esn'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 kille d by either Roland Alston or Clifford Smith, you canf ind as a fact that there was murder in the first degree

. It makes no difference who pulled the trigger. The act s of one accomplice are the acts of the other. The doing s 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 diff erence. 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 purp ose 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 de gree.

. . .

. . . .

. . . [I]f you find that either Smith or Alston fi red that bullet . . . if you find that either did this, both as conspirators or as accomplices are guilty of the cr ime of first degree murder.

. . . .

. . . Does the evidence indicate that Clifford Smi th or Roland Alston, either or both of them, made a

5conscious 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 wit hout 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 trig ger 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 h e was the actor; that is, if I can use the word "shooter, " but he was, nevertheless, acting as an accomplice of Al ston 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 hi s head. If, and I emphasize this, you find that one was the accomplice of the other and that one of the two act ually performed the killing, you, the jurors, need not ag ree on the role or roles played by the respective parties; that is, by this defendant and his accomplice, if you find t hat that was the position of both, provided that each o f you is satisfied that the crime was actually perpetrate d by the defendant or by the accomplice of the defendant

. Conversely, if you find that one was not the accomp lice 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 w as the killer and Smith was not his accomplice, he, Smith, would not be guilty of the crime of murder for the

6Commonwealth 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 unlaw ful killing of another person done intentionally; that is, willfully, deliberately and with premeditation, plu s 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 Clif ford Smith guilty of murder in the first degree

. .. .

. . . You may find the defendant guilty of second degree murder if you are satisfied that the followi ng 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 defendan t, or an accomplice of the defendant, was the person w ho
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 kill ing and death of Richard Sharp was done in furtherance of that robbery. Fifth, that the killing was with mali ce on the part of the defendant [which] may be inferred b y 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 substan tive
crime:

You should . . . determine . . . whether there was the requisite intent to enter into this conspiracy to c ommit the robbery and the killing which the Commonwealth

contends flowed therefrom or whether there was the

7requisite 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 ultim ate shooting , so the Commonwealth contends, and the killing of Richard Sharp? If so, then the major bas is of conspiratorial liability exists as to him

.

Id. at 1047-48 (emphasis added).

Finally, the court distinguished among the differen t degrees of murder:

You would . . . have to decide whether the act of t he 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 havin g the specific intent to kill, but having the specifi c intent to inflict grievous bodily harm upon Richard Sharp, because that really is the distinction between thir d degree murder and first degree murder

. . . .

If you would conclude that there was specific inte nt to take life, you would then have to determine if i t was second degree murder, or as we call it felony murde r, because it involves killing incidental to a felony.

. . . [F]or persons to be accomplices in felony murder th ey 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 woul d conclude that there was the felony of robbery committed, but would further conclude that all of t he 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 do ne willfully, deliberately, and with premeditation.

Id. at 1057-58 (emphasis added).

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

and conspiracy to commit murder. He was not convict ed of conspiracy to commit first-degree murder. At the pe nalty phase of the trial, the jury found two aggravating factors and no mitigating factors. The jury imposed the dea th 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 den ied by the trial court on June 18, 1985. Smith subsequentl y was sentenced to death. He then appealed his conviction and sentence to the Supreme Court of Pennsylvania. On J uly 29, 1986, the judgment was affirmed, and Smith's pe tition to the Supreme Court of the United States for a wri t 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 Nov ember 13, 1990. On October 16, 1991,2 Smith filed a petit ion in the Court of Common Pleas, Bucks County, pursuant t o 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 hold ing 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 Sm ith'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 c ourt granted Smith a stay of execution. Smith subsequent ly 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 i t in part

___________________________________________________ ______________

2. The record does not indicate why Smith's executi on was stayed past November 13, 1990.

9on the grounds that the prosecutor's comments in

summation at the penalty phase violated Smith's Eig hth and Fourteenth Amendment rights pursuant to Caldwel l 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 Sm ith's counsel to object to the closing argument constitut ed
ineffective assistance of counsel in violation of t he Sixth and Fourteenth Amendments. The district court rejec ted 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 argume nts concerning the penalty phase that his sentence viol ated the
federal constitution. The court ordered that Smith be either
re-sentenced or released from confinement within 18 0 days, and stayed its order pending appeal. See Smith v. H orn , 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 addre ss two issues raised by the dissent. The dissent suggests, for the first time, that we require the parties to brief th e threshold procedural issues of exhaustion of state remedies a nd procedural default. See Dissent slip op. at 38, 40. We note
at the outset that the Commonwealth never raised ei ther of these issues at any time: not in the district court , not in its briefing before this Court, and not at oral argumen t.

A.

The dissent concedes that it is likely an exhaustio n argument would fail on the grounds that further sta te 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 w here the Pennsylvania courts would apply the narrow "miscarr iage 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 cha nce that

10the Pennsylvania courts would find a miscarriage of

justice."

However, in that case, the exhaustion issue was rai sed
and addressed in the district court. See id. at 678. Where the issue was never raised in the district court, w e are afforded discretion pursuant to Granberry v. Greer , 481 U.S. 129, 134, 107 S.Ct. 1671, 1675 (1987), to "det ermine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by req uiring a series of additional state and district court proce edings before reviewing the merits of the petitioner's cla im." 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," Gra nberry , 481 U.S. at 135, 107 S.Ct. at 1675, and "the ends o f 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 cate gory of cases that " `present[ ] an issue on which an unres olved question of fact or of state law might have an impo rtant bearing,' " Dissent slip op. at 36 (quoting Granber ry , 481 U.S. at 134-35, 107 S.Ct. at 1675) (alteration adde d), and "it would be helpful to have the benefit of a decis ion by the Pennsylvania courts on the underlying issue of stat e 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 element s 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 k ill is one of those elements. All remaining questions presente d by
this case -- whether there is a reasonable likeliho od that the jury understood its instructions in a certain w ay, whether this understanding had the effect of reliev ing the Commonwealth of the burden of proving this element

11beyond a reasonable doubt, and whether this error w as

harmless -- present issues of federal law.

Accordingly, we see no reason to delay review of th is petition in order to provide briefing on an issue t he 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 partie s to brief the related issue of procedural default. The dissent correctly notes that we and several of our sister c ircuits 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 dis cretion is guided by the same considerations as those discu ssed 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 m ight be inappropriate for the court to raise the issue of p rocedural default sua sponte where " `it is evident that a mi scarriage 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 con text because "[u]nlike in exhaustion cases, if we declin e to reach the merits in a procedural default case, the defend ant has
no further recourse to either state or federal reli ef." 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 va lidity of the trial itself and not just the conviction, and t hose cases where the claimed federal violation was the product of
malice. See id. ; see also Ortiz , 19 F.3d at 715.

12We believe, as did Judge Oakes in dissent in that c ase,

that the court unduly limited the meaning of "misca rriage of justice" in contravention of the language of Gra nberry , 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' shou ld include cases where the record is well developed and the me rits 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 suppo rt Smith's claim, as we shall demonstrate, but the rec ord 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 th is charge the unequivocal holdings of the Pennsylvania Suprem e 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 procedur al default issue itself is sparse. For example, we hav e not been provided with the crucial jury instruction defining firstdegree murder requested by Smith's trial counsel an d rejected by the trial court. There is similarly not hing in the record with regard to whether Smith can show "cause " for the alleged default (such as by showing that appell ate counsel was constitutionally ineffective) and "prej udice" resulting therefrom, or that the procedural rule do es not provide an independent and adequate basis for precl uding
habeas review. See Doctor , 96 F.3d at 683. Thus, consideration of the procedural default issue at th is late stage in the proceedings would likely require not s imply 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 procedu ral default defense would result in undue delay, see Od um v.
Boone , 62 F.3d 327, 330 (10th Cir. 1995); Manlove v. Tansy , 981 F.2d 473, 476 n.4 (10th Cir. 1992), we exerci se 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 s ua sponte
than when the state either has raised the issue her e only belatedly or has raised it in the district court bu t has not pursued that line of attack in the court of appeals . But see Washington , 996 F.2d at 1448 n.3 (stating that completefailure 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 t he
issue has been raised either in the district court or the court of appeals, we are at least maintaining our r oles 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 ad dressed
the issue.

By contrast, where the state has never raised the i ssue at all, in any court, raising the issue sua sponte put s us in the untenable position of ferreting out possible de fenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocate s 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) ("T he rule that points not argued will not be considered . . . at least in the vast majority of cases, distinguishes our ad versary system of justice from the inquisitorial one."); ac cord
Hardiman , 971 F.2d at 505. While considerations of federalism and comity sometimes weigh in favor of r aising 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 iss ues 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 ra ised by either party in either the district court or in thi s Court, we

14will decline to address the issue unless considerat ion of

these factors clearly indicates that we should depa rt from our standard practice. We apply this presumption in such cases lest we subtly transform our adversarial syst em 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 defens es 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 Smit h could be convicted of first-degree murder even if he did not have the specific intent to kill. He asserts that the ju ry was incorrectly instructed that if it found beyond a re asonable doubt that one of the men had the specific intent t o kill, and that Smith intended to commit the robbery that resulted in the killing, this would be sufficient t o convict Smith of first-degree murder. He further argues tha t this instruction was incorrect under Pennsylvania law, a nd that
this incorrect instruction violated his constitutio nal rights. The district court summarily rejected Smith's conte ntion, stating: "Smith has raised several other arguments in his petition concerning both the guilt and penalty phas es of his
1983 trial. These we find to be without merit." Smi th v.

Horn , 1996 WL 172047, at *15.

We conclude from a fair reading of the jury instruc tions 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 kil led. 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-degre e murder under Pennsylvania law. The delivery of these impro per instructions amounted to a violation of Smith's rig ht to a fair trial pursuant to the Due Process Clause of th e Fourteenth Amendment. Finally, we hold that this

15constitutional error was not harmless and that Smit h 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 h e 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 par t, 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 an d robbery, during the course of which the cohort kill ed the victim. The Pennsylvania Supreme Court wrote that t o constitute first-degree murder, the evidence had to show beyond a reasonable doubt that the defendant harbor ed "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 t o look
to his state of mind; the requisite mental state must be proved beyond a reasonable doubt to be one which th e 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 t he

first degree, you must find that the Defendant caus ed 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 a ct of an accomplice or co-conspirator is the legal cause of death of [the victim], and therefore you must deter mine if the killing was intentional."

(quoting trial transcript) (emphasis added) (altera tion in original). This, the Pennsylvania Supreme Court hel d, 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 tha t results in death could be convicted of first-degree murder only if the Commonwealth proves that the accomplice specifi cally
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 con fer criminal liability for a killing that is the natura l and probable result of the conspiracy, even if the kill ing were not shown to be specifically intended by the defend ant. 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 fir st-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 invol ving manslaughter and lesser degrees of murder). As the Commonwealth unambiguously conceded at oral argumen t,
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 Pen nsylvania included felony-murder. See 18 PA. CONS. STAT. ANN.§ 2502, Historical Note (19 83). Thus, Roux would be inapposite even if the defendant there ha d been convicted of first-degree murder.

17crime from which a killing results, is a prerequisi te 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 Penn sylvania 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 s pecific 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 Constituti on."
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 th is case permitted the jury to convict Smith of murder in th e first degree without first finding beyond a reasonable do ubt that Smith intended that Sharp be killed. Portions of th e instructions are ambiguous as to the requisite find ing of intent. Other portions affirmatively inform the jur y 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 a s a whole, there is a reasonable likelihood that the jury unde rstood 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 unlaw ful killing of another person done intentionally; that is,

18willfully, deliberately and with premeditation, plu s

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 Clif ford Smith guilty of murder in the first degree

. .. .

Cross App. at 1035 (emphasis added). Taken in isola tion, this charge might convey the idea that the jury mus t find that Smith harbored the specific intent to kill Sha rp. This interpretation would be reasonable only if the jury were to understand the word "accomplice" to mean "accomplic e in the killing," and not simply "accomplice in the rob bery." Only in that way would the instructions convey the critical
idea that Smith must be found to have intended to k ill 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 porti ons of the charge, in which the trial court mentioned the killing but did not specifically discuss first-degree murde r, the court generally did not clarify whether it was usin g "accomplice" in reference to the robbery, the killi ng, 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 o f the case beyond a reasonable doubt, but [it] do[es] not have to prove beyond a reasonable doubt which of th e two, Smith or Alston, actually brought about the ki lling of Richard Sharp by showing who pulled the trigger and plac[ed] the shot in his head. If, and I emphas ize this, you find that one was the accomplice of the o ther and that one of the two actually performed the kill ing , you, the jurors, need not agree on the role or role s 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 b y the defendant or by the accomplice of the defendant.

19Conversely, if you find that one was not the accomp lice

of the other but that a criminal homicide occurred, then you must decide who performed the act of killi ng and, of course, it follows that if Alston was the k iller 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 trig ger 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 Al ston 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"th e 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 occur s 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 killi ng,"

___________________________________________________ ______________

4. The court presumably meant "the defendant": by d efinition, the "perpetrator" necessarily did the "acting."

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

blurred the distinction between "accomplice in the robbery" and "accomplice in the killing," leading the jury t o believe that an accomplice for one purpose is an accomplice for all purposes. This confusion was exacerbated when, in t he course of enumerating the elements of second-degree murder, the court repeatedly used the word "accompl ice" to mean "accomplice in the robbery." Without an explic it disclaimer, it is extremely unlikely that the jury understood the same word to have two different meanings when u sed only moments apart in the same charge. The charge t hus allowed Smith to be convicted of first-degree murde r 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 c onspiracy 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 a ccomplice with the other in bringing this about" Id. at 1047 (emphasis added). In this portion of the charge, it is unclea r whether one could have the "requisite intent to enter into th[e] conspiracy to commit the robbery," without also hav ing the "requisite intent to enter into the conspiracy to c ommit the . . . killing which the Commonwealth contends flowe d" from the robbery. It is likely that a reasonable juror w ould have inferred that the "requisite intent to enter into t h[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 indep endent 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 accomplic e with the other in bringing this about," without clarifying whether the "this" referred to the robbery, the killing, or bot h.

The court immediately attempted to explain the abov e instruction, but in doing so it conveyed the impres sion that Smith was criminally liable for conspiracy to commi t murder if he intended to enter into a conspiracy to commit robbery :

21That 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 cla rify to which crime this "conspiratorial liability" appl ies; the charge was given in the context of the general cons piracy instruction. Thus, it is likely that the jury under stood this charge as instructing that Smith could be found gui lty of conspiracy to commit first-degree murder if he inte nded 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 followin g: "[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 inconsis tent,"
Rock , 959 F.2d at 1248, with the portions that convey t he 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 Smit h's direct appeal, that the instructions fairly conveye d to the jury the elements of first-degree murder. The court wrote: "We have reviewed the record in the present case an d find no inadequacies in the trial court's instructions a s 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 f aulty

22jury charge implicates a habeas petitioner's federa l

constitutional rights, as we conclude in the next s ection this charge did, we have an independent duty to asc ertain 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 t o Pennsylvania law adequately conveyed to the jury th at each subsequent use of the term was offense-specific. Se e 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 othe r person or persons to commit that crime or crimes, o r aids, agrees to aid, or attempts to aid the other p erson 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 j ury on murder, and the court used the word "accomplice," t hat 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 elabo ration, the jurors understood the instruction as stating th at if Smith harbored "the intent of promoting or facilita ting the
commission of a crime [robbery] [and] he solicit[ed], command[ed], encourage[d] or request[ed] [Alston] t o commit that crime [robbery] or aid[ed], agree[d] to aid, or attempt[ed] to aid [Alston] in . . . planning or co mmitting

the crime [robbery]," then Smith is "an accomplice ." Id. (emphasis added). The dissent seeks mightily to rea d into this charge the additional words that might have co nveyed the correct impression -- "an accomplice in that cr ime " 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 Smi th intended for the killing to occur in order to convi ct him of

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

us no additional language from the charge concernin g the elements of first-degree murder. Indeed, we have qu oted above the entirety of the charge as pertinent to th e firstdegree murder count and, taken as a whole, we must
conclude that there is at least a reasonable likeli hood that the jury understood the charge as imposing upon the Commonwealth no burden of proving that Smith intend ed
for the victim to die in order to convict Smith off irst-degree

murder.

C.

Having determined that the jury instructions in thi s case were incorrect, we must further determine whether t he error is of constitutional magnitude. " `[I]t is we ll 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 s tate judicial proceedings and may intervene only to corr ect 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 a nd emphasis added). However, this does not foreclose t he 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 wo rds, a state court's misapplication of its own law, in and of itself, cannot be corrected by a federal court. However, wh en 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 i n the judgment). On the other hand, "errors of state law cannot be repackaged as federal errors simply by citing th e Due
Process Clause." Johnson , 1997 WL 318064 at *6. We conclude that the jury instruction at issue here wa s not merely an error of state law. By removing the Commonwealth's burden of proving beyond a reasonabl e

24doubt 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 certa in constitutional limits, define first-degree murder i n 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. Indee d, many states do include such killings in their definition s 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 Cou rt has held that the inclusion of felony-murder within the definition of first-degree murder, and the conseque nt imposition of the death penalty, does no violence t o 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 constrain ts upon the state's authority to convict a person of that o ffense. It is well-settled that "the Due Process Clause [of th e Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable do ubt of every fact necessary to constitute the crime with w hich 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 o bligation to prove facts constituting every element of the offen se beyond a reasonable doubt, thereby violating the defendant 's federal due process rights. See Carella v. Californ ia , 491 U.S. 263, 265, 109 S.Ct. 2419, 2420 (1989) (per cur iam);

Rock , 959 F.2d at 1245-46; see also Polsky v. Patton , 890 F.2d 647, 651 (3d Cir. 1989) (no due process violat ion

25where 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 pe titioner contended that the jury instructions concerning justification rendered at his Pennsylvania trial fo r aggravated assault, and later affirmed by an interm ediate appellate court, violated his rights pursuant to th e Due
Process Clause. See id. at *3-5. We noted that a conviction for aggravated assault in Pennsylvania required tha t the Commonwealth prove beyond a reasonable doubt that t he
defendant acted with malice. See id. at *6. We further noted that justification on the part of the defendant wou ld necessarily negate a showing of malice. See id. Thus, the Commonwealth was required to prove that the defenda nt 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 sta te criminal offense even by intermediate state appella te
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 appell ate courts, urging that the Pennsylvania Supreme Court would rule differently. Thus, Johnson stands for the unremarkable proposition that the states are free to define crim inal offenses in any way they see fit, within certain constitutional limitations, even through their lowe r 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. Joh nson most emphatically does not stand for the propositio n that, once a state has defined a criminal offense, the st ate may

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

less than proof beyond a reasonable doubt of all th e elements of the offense. Thus, whether a state is r elieved of
that burden via an instruction that omits an elemen t of an offense, materially misdescribes that element, or s hifts 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 Pro cess 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. Fir st, rather than being "ambiguous," the language must be such that "there is a reasonable likelihood that the jur y has" understood and applied it in a certain way. Supra at 18 (emphasis and internal quotation marks omitted). Se cond, 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 requ ires that the defendant be prejudiced in a very particul ar way -- it requires that the erroneous instructions have op erated 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 st ate's burden of proof on an element of an offense by omit ting or materially misdescribing it violates the Due Proces s Clause. The proposition is true as far as it goes. If our d uty 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 predic ting, 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 f ollows 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 v iolated where jury instructions in [a] criminal case[ ] set out either

27a 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 e lement 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 eith er Smith or Alston killed Sharp, and as long as Smith and Al ston were accomplices in the robbery, Smith could be fou nd guilty of first-degree murder. This charge was the functional equivalent of an instruction that as lon g as either Smith or Alston killed Sharp, and as long as Smith and Alston were accomplices in the robbery, the jur y should conclusively presume that Smith had the intent to k ill Sharp , and therefore he could be found guilty of first-deg ree murder. Yet the dissent apparently would find that the former charge does not violate Smith's constitution al 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 o f firstdegree murder. The Commonwealth unambiguously conceded as much at oral argument. However, the jur y was instructed that Smith could be found guilty of firs t-degree murder even if it did not find beyond a reasonable doubt that Smith intended for a killing to take place. Th e instruction thus relieved the Commonwealth of the b urden of proving beyond a reasonable doubt facts necessar y 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 Fourteent h
Amendment.

D.

Finally, we must determine whether the constitution al
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 on e of

two types: structural error or trial error. A struc tural error is a defect in the trial mechanism itself, af fecting 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 cont ext of all other evidence. Thus, trial errors are subje ct 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 characterize d "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 de fendant could be convicted if it found beyond a reasonable doubt that he had knowledge of his cohort's unlawful purp ose and
that the defendant aided him in the commission of t he act.
See id. at ___, 117 S.Ct. at 337-38. The instruction was
erroneous under state law because it failed to conv ey the
critical idea that the defendant must also have int ended to
aid in the commission of the crime in order to be f ound guilty. See id. at ___, 117 S.Ct. at 338.

The Roy Court arguably did not decide that all "error[s] i n the instruction that define[ ] the crime" constitut e trial error, id. at ___, 117 U.S. at 339, but only that that label attaches "to errors that concern fairly narrow depa rtures from proper charge language." Peck v. United States , 102 F.3d 1319, 1325 (2d Cir. 1996) (en banc) (per curia m)

___________________________________________________ ______________

5. In Kontakis v. Beyer , 19 F.3d 110, 116 (3d Cir. 1994), we stated broadly that "unconstitutional jury instructions" c onstitute trial error. There is at least one type of erroneous jury instru ction, however, that
constitutes structural error. See Sullivan v. Louis iana , 508 U.S. 275, 279-80, 113 S.Ct. 2078, 2082 (1993) (defective reas onable doubt charge). While most erroneous jury instructions that rise to the level of constitutional error will be trial error, we undert ake to determine how to classify the specific type of instructional error t hat occurred here.

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

C.J., concurring). It may be that a "mere" misstate ment of an element of an offense is a trial error, while a complete
omission of an element is a structural error. See R oy , ___ 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 Sta tes
v. Wiles , 102 F.3d 1043, 1059 (10th Cir. 1996) (en banc),
modified , 106 F.3d 1516 (10th Cir.), petition for cert. fil ed , 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 iss ue in Roy that we believe that this case is controlled by tha t 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 Yat es v. Evatt , 500 U.S. 391, 402, 111 S.Ct. 1884, 1892 (1991) (instructions that impermissibly impose mandatory, rebuttable presumption on element of offense); Care lla , 491 U.S. at 266, 109 S.Ct. at 2421 (mandatory, conclusi ve 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 misde scribe
element of offense in violation of First and Fourte enth Amendments); United States v. Edmonds , 80 F.3d 810, 824 (3d Cir. 1996) (en banc) (instructions that effecti vely abridge federal criminal defendant's Sixth Amendmen t 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 tria l error,
not structural error.

2.

In a collateral proceeding, the standard for harmle ssness 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 omi tted);
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).

30Pursuant 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 thu s inappropriate to ask whether there was sufficient evidence to support the result, apart from the phas e of the trial affected by the error. The correct inquir y is
whether the error had a substantial influence on th e verdict despite sufficient evidence to support the result apart from the error.

Yohn , 76 F.3d at 523 (citations omitted); see also Alst on , 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," ha beas 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 a nd injurious effect or influence" on the verdict, or i f 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 t hat this error was harmless because the jury's findings, in light of the evidence, embrace the finding that Smith actual ly killed Sharp and intended to do so. According to the Commonwealth, the harmlessness of the error follows syllogistically: (1) the trial court essentially in structed the jury that Smith was guilty of first-degree murder i f at least one of the robbers both killed Sharp and intended t o kill him; (2) by finding Smith guilty of first-degree mu rder, the jury necessarily found beyond a reasonable doubt th at either Smith or Alston killed Sharp and intended to do so; and (3) because there was evidence that Smith kille d Sharp, and no evidence that Alston killed Sharp, the jury found beyond a reasonable doubt that Smith both killed Sh arp and intended to do so.

While this reasoning has some superficial appeal, i t does not withstand close scrutiny. The fundamental flaw arises

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

jury was never asked to evaluate the respective probabilities that Smith or Alston killed Sharp. Th e verdict demonstrates that the jury found beyond a reasonabl e doubt that one of them killed Sharp. The evidence supporting this verdict demonstrates that it is mor e likely that Smith, rather than Alston, killed Sharp. Howev er, this evidence and the factual findings it supports are n ot the " `functional[ ] equivalent' " of, nor do they "eff ectively 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., con curring 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 c losely related' " to a finding that Smith killed Sharp, in light of the evidence presented, that " `no rational jury' " tha t 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 S harp were his admissions, made immediately after the rob bery, related at trial by Barrow and Yancey. These two wi tnesses were admitted accomplices to the robbery whose cred ibility was therefore in question. Smith's participation in the robbery was well established by independent evidenc e -- the jury did not need to believe either Barrow or Y ancey in order to find him guilty of robbery and therefore ( because of the erroneous jury instructions) first-degree murde r. It is thus unclear whether and to what extent the jury be lieved or disbelieved Barrow and Yancey. Since the jury ch arge did not necessitate that the jury make this determi nation, we can only speculate as to its conclusion with reg ard to Barrow and Yancey's credibility. We cannot assume t hat the jury, having found Smith guilty, "believed all properly admitted evidence against him and disbelieved all e vidence in his favor." ROGER J. TRAYNOR, THE RIDDLE OF HARM LESS ERROR 28 (1970).

The situation here is analogous to the one contempl ated
in Yates , 500 U.S. at 405-06, 111 S.Ct. at 1894. In that

32"mandatory rebuttable presumption" case, the Suprem e

Court cautioned that if it appears that the jury di d not
consider

all the evidence bearing on the issue in question[, ] before it made the findings on which the verdict re sted
. . . 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 t he 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 t o infer the fact presumed.

Id. (footnote omitted). Analogously, the effect of the instructions here was to "so narrow the jury's focu s as to leave it questionable that a reasonable juror would " endeavor to answer the rather difficult question wh ether Smith killed Sharp, rather than to rest upon the an swers to the relatively straightforward questions whether Sm ith participated in the robbery and whether either Smit h or Alston killed Sharp.

Moreover, the Commonwealth proceeded on the theory that Smith was guilty of first-degree murder whethe r or not he intended the victim to be killed. Although the p rosecutor
in summation contended that Smith committed the kil ling, 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, t he Commonwealth cannot now seriously contend that that error had no "substantial and injurious effect or i nfluence"
on the verdict. See Yohn , 76 F.3d at 523-24 (repeated emphasis by prosecution on importance of erroneousl y admitted evidence demonstrated error was not harmle ss).

For these reasons, our harmless-error analysis lead s inexorably to the conclusion that the error here wa s not harmless. Upon a review of the record, we cannot sa y that the error had no "substantial and injurious effect or influence" on the jury's verdict.

33IV.

The judgment of the district court will be reversed to the extent that it denied Smith habeas relief with rega rd to his conviction for first-degree murder. The judgment wi ll be vacated in all other respects. The matter will be r emanded
to the district court with directions that it condi tionally
order Smith released from confinement. Smith shall be
released unless the Commonwealth retries him for th e crime of first-degree murder within 180 days.6

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6. We express no opinion whether, following the gra nt of habeas relief, the Commonwealth may properly move to resentence Sm ith for any lesser included homicide (such as murder or manslau ghter where specific intent is not an element of the crime). No r do we express an opinion concerning the propriety of the Commonwealt h moving to
resentence Smith on the other crimes for which he w as convicted along with first-degree murder.

34ALITO, Circuit Judge , dissenting.

The majority's decision in this case is troubling. In 1983,
Clifford Smith was convicted in state court forfirs t-degree murder. At his trial, the prosecution introduced st rong evidence that Smith and another man, Roland Alston, robbed a pharmacy and that, after the pharmacist wa s ordered to lie face down on the floor, Smith procee ded to execute him with a gunshot to the head. Fourteen ye ars later, when retrial will almost certainly be diffic ult at best, the majority holds that Smith's federal habeas peti tion must be granted based on a perceived ambiguity in t he jury instructions. According to the majority, certain re ferences to the concept of an "accomplice" are ambiguous in that they could be interpreted to mean either " `accompl ice in the killing,' `accomplice in the robbery,' or both. " Maj. Op. at 20-21. This supposed ambiguity, the majority con cludes, not only created confusion about the requirements o f state law but rose to the level of a federal due process violation.e majority takes this course even though (1) the tr ial

judge, before making the references to "accomplice" that the majority finds to be ambiguous, provided a n 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 tr ial to the relevant portions of the jury charge; and (3) S mith never argued in either of his two appeals to the Pennsylvania Supreme Court that these portions of t he 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 nev ertheless address it under the circumstances present here.1 I n

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1. In this opinion, I rely on the caselaw regarding exhaustion and procedural default as they existed prior to the ena ctment of the Antiterrorism and Effective Death Penalty Act of 19 96, Pub. L. 104-132,

35Granberry 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 t o raise the issue of exhaustion on its own where a case "presen ts an issue on which an unresolved question of fact or of state law might have an important bearing." 481 U.S. at 1 34-35. The present case falls squarely within this descrip tion. 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 viol ation, it would be helpful to have the benefit of a decision by the Pennsylvania courts on the underlying issue of stat e law.

We have no such decision, however, because Smith di d not challenge the relevant portions of the jury ins tructions 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 th e instructions misstated state law.2

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110 Stat. 1221, which became law on April 24, 1996, after Smith's federal habeas petition was filed. Under a provisio n of that Act applicable to a state prisoner under a capital sentence, a dis trict court is generally precluded from considering a claim unless it was "r aised 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 st ate 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 P ennsylvania did not meet the requirements of § 2261 as of January 3 1, 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 befor e this provision took
effect. See Lindh , supra

.

2. On direct appeal, Smith argued that the trial ju dge erred in refusing to give three instructions requested by the defense , namely, Nos. 8, 11, and 12. Number 8 defined first degree murder; numbe r 11 defined

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

petitioner's failure to exhaust state remedies is . . . excused . . . when state law `clearly foreclose[s] state co urt 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 foreclose d 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, duri ng unitary review, on appeal or in a prior state postconvictio n

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involuntary manslaughter; and number 12 defined the terms "intentionally," "knowingly," "recklessly," and "ne gligently." None of these requested instructions related to the claim on whic h 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 s uch 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 th ose requests was adequately covered by the trial judge. The state su preme court wrote:

It is established that a trial court is not require d to accept points submitted by counsel verbatim, but rather is free t o select its own forms of expression. Commonwealth v. McComb , 462 Pa. 504, 509, 341 A.2d 496, 498 (1975). "The only issue is whethe r 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 instr uctions 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 me an 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 po ssible objections to the instructions that might be raised under state l aw. To go further and read that statement as a rejection of an unraised f ederal due process
claim would be absurd.

37proceeding." [42 Pa. Cons. Stat. Ann.] § 9544(b). A s 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.' " Docto r , 96 F.3d at 681 (quoting Commonwealth v. Fiore , 445 Pa. Super. 401, 665 A.2d ll85, 1193 (1995) (Hoffman, J., concu rring) (citations omitted), appeal denied, 675 A.2d 1243 ( 1996)). I question whether at this time the Pennsylvania cour ts would entertain Smith's challenge to the jury instr uctions, but I would certainly request briefing from the par ties on this question.

If, as seems likely, PCRA review is foreclosed beca use of Smith's failure to raise his federal due process cl aim in the prior state-court proceedings, we should consider t he doctrine of procedural default. See Coleman v. Thom pson , 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 nevert heless. Our court, see Hull v. Freeman , 932 F.2d 159, 164 n.4 (3d Cir. 1991), and many others have held that procedur al 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

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3. Cf. Caspari v. Bohlen , 510 U.S. 383, 389 (1994) (non-jurisdictional Teague rule may but need not be raised by federal court s ua 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 ra ise procedural

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

relations between court systems, and those relation s will be affected whether or not the litigants have raised t he 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 beca use it implicates " `values that may transcend the concern s 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, he ld that it was appropriate to raise the issue of procedural de fault 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-murde r 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 ap peal that the instructions were deficient, the Supreme Judici al Court
of Massachusetts declined to review his claim on th e merits because he had not objected to the instructions at trial. Id. at 713. Instead, the Supreme Judicial Court "limite d its inquiry to whether the error gave rise to a substan tial likelihood of miscarriage of justice." Id. at 714. Accordingly, the First Circuit found that "the state procedural default

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default). The petition in Trest argues that, under Gray v. Netherland , 116 S.Ct. 2080, 2082 (1996), procedural default is an a ffirmative defense that is lost if not properly raised by the state. B ut 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 th at 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 t o 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 Tea gue bar where not raised at cert. petition stage), and Jenkins v. And erson , 447 U.S. 231, 234 n.1 (1980) (refusing to consider procedural def ault where raised for the first time in Supreme Court).

39[was] clear on the face of the record," and thus fo und 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 Smi th's federal constitutional claim is grounded on an issu e of state law. Since Smith has not had an opportunity to addr ess the issue of procedural default, I would request furthe r briefing on that issue before determining whether there is a ny basis for excusing default in this case.

The majority refuses to consider the issues of exha ustion and procedural default -- indeed, refuses even to r equest briefing on these serious issues. The majority voic es concern that consideration of these issues would "r esult in undue delay." Maj. Op. 13; see also id. at 12. This concern is curious -- and not only because of the pace of t he postconviction proceedings to date. Consideration of pr ocedural default would not simply delay a decision on the me rits of Smith's claim; rather, it holds the potential for p recluding
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 pa rties),
then neither the state nor the federal courts would decide the merits of Smith's claim. Obviously, then, the r efusal to consider procedural default cannot be defended on t he ground that to do so would only delay an inevitable
decision on the merits.

The majority also contends that the jury instructio ns resulted in a "miscarriage of justice." As I show b elow, however, the instructions at issue here were at mos t ambiguous -- and that is undoubtedly why they did n ot 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 appeal s to the Supreme Court of Pennsylvania, and why the dist rict court judge in this federal habeas corpus proceedin g thought that the alleged errors that the majority i s willing

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4. The First Circuit did state that it would have r ejected the claim even
if it had reached the merits.

40to 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 i n support of the conclusion that we should not raise the doctrines of exhaustion and procedural default on o ur own, i.e., that these doctrines, which serve to protect state prerogatives, should be raised by the state's attor neys. But, as I previously noted, our court and others have re cognized that the values served by these doctrines "may tran scend 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 endor sed this
view when it enacted the Antiterrorism and Effectiv e Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 122 1. 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, Congr ess provided that a state may not be deemed to have wai ved exhaustion unless it does so expressly. 28 U.S.C. § 2254(b)(3). These new provisions do not apply her e (see footnote 1, supra ), but they are animated by the same respect for the state court systems that informed o ur court's prior decisions. Accordingly, I believe tha t we should not proceed to review the merits of Smith's due pro cess 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 me rits 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 a n 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,

41with respect to that result that it is sufficient f or the

commission of the offense

.

18 Pa. Cons. Stat. Ann. § 306(d) (emphasis added). An "accomplice" is defined in pertinent part as follow s:

A person is an accomplice of another person in the
commission of an offense if:

(1) with the intent of promoting or facilitating th e 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 responsi ble 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 i ntent necessary for conviction of that offense as a princ ipal.

In this case, Smith was charged with first degree m urder, 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 l esser included homicide offenses of second and third degr ee 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 rele vant, 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 tha t you understand and that we spell out what is meant unde r 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 f acilitating
the commission of a crime he solicits, commands, encourages or requests the other person or persons to

42commit 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 perso n has "the intent of promoting or facilitating" the commi ssion of
"that crime."

When a trial judge, in instructing a jury, provides a definition of a complicated legal term, the judge i s not generally required to repeat that definition every time the term is subsequently employed. Rather, the judge ma y reasonably rely on the prior definition, and that i s what the trial judge did here -- without objection. If the p reviously provided definition is read into the instructions w henever the judge referred to an "accomplice," the judge's instructions are correct. Under this procedure, eve ry reference to "an accomplice" should be read as a re ference to an "accomplice" with respect to the particular o ffense or offenses that the judge is discussing. In finding t hat certain references to the concept of an "accomplice" are am biguous, the majority ignores the significance of the defini tion that preceded these references.

For example, the majority holds (Maj. Op. 18-19) th at the trial judge violated due process when he gave the f ollowing
instruction:

[T]he elements of first degree murder are the unlaw ful killing of another person done intentionally; that is, willfully, deliberately and with premeditation, plu s 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 g uilty of murder in the first degree . . . .

CA 1035. The majority finds this instruction object ionable because it did not clearly convey the message that, if Alston pulled the trigger, Smith could be convicted of fir st degree murder only if Smith was Alston's " `accomplice in the killing' and not simply [his] accomplice in the rob bery.' " Maj. Op. 19. But if the previously supplied definit ion of an

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

As noted, an "accomplice" must have the intent requ ired 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 t hat offense, i.e., the person must act intentionally, w illfully, 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 t hat they were suspectable to the misinterpretation that trou bles 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 ne w trial. But for a federal appeals court to order a new tria l 14 years later based on such a previously unchallenged ambig uity 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 t he trial judge attempted to explain in generic terms the app lication of the principles of accomplice liability to any of the homicide offenses that were before the jury, i.e.,f irst, 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 ti me, the judge did not at this point specify the intent requ ired for conviction for each offense (he did that a few page s later), but if the definition of an accomplice that he gave on the previous page is applied, the challenged instructio ns were correct. In retrospect, one might argue that it was inadvisable for the trial judge to have attempted t o explain in one breath how the principles of accomplice liab ility
relate to all four of the homicide offenses that we re before the jury, and one might fault the particular langua ge that the judge chose. But I see nothing in these instruc tions that justifies federal habeas relief.5

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5. The majority goes so far as to cite alleged ambi guities in the instructions on criminal conspiracy as support for its decision to strike

44Having identified what is at most an ambiguity in t he

jury instructions on a point of state law, the majo rity alchemizes this ambiguity into a violation of the D ue Process Clause. The majority writes:

In this case, the misapplication of state law resul ted 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 obli gation to prove facts constituting every element of the of fense 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 "d id 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 instr ucting a jury on an element of a state offense, gives an amb iguous

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down Smith's first degree murder conviction. See Maj. Op. 18-19; CA 1047-48. This argument is far-fetched indeed. By th is point in the instructions, the trial judge had turned to the las t "remaining crimes in the Information, . . . the crimes of criminal consp iracy to commit the various robberies . . . criminal conspiracy to comm it first degree murder and murder and criminal conspiracy to commit the ac t of possession of instruments of crime." CA. 1043. If there were any serious flaws in these instructions -- and I see none -- they could at mos t undermine Smith's conspiracy conviction, not his conviction for first degree murder.

45instruction that prejudices the defendant -- even i f defense

counsel does not object. None of the decisions cite d by the majority supports this holding. In Winship , the Supreme Court held that the Due Process Clause requires pro of beyond a reasonable doubt to support a finding that a juvenile committed an act that would constitute a c rime 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 con clusive presumption or a mandatory rebuttable presumption t hat relieved the prosecution of the burden of persuasio n 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 decis ion of
which I am aware -- has held that the Due Process C lause is violated whenever a state trial judge, in instru cting 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 Thir d 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 th e essence of the element that was allegedly omitted. 890 F.2d
at 651.

Although not cited by the majority, the Supreme Cou rt 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 (w ithout objection) failed to instruct the jury on an essent ial 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. I t 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.

46The 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 "whethe r 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 no t " `so infect[ ] the entire trial that the resulting convi ction 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 prov ince of a
federal habeas court to reexamine state court determinations on state law questions. In conductin g habeas review, a federal court is limited to decidi ng whether a conviction violated the Constitution, laws, or tr eaties of
the United States." Estelle v. McGuire , 112 S.Ct. 475, 480 (1991). Our court has emphasized this important rul e. 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 Wi nship and related precedents threatens to undermine this important principle and to claim for a federal habe as court the power to decide, long after a state trial has b een completed, whether previously unchallenged jury instructions set out the requirements of state law with sufficient clarity to satisfy the federal court's t aste. "[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 Stat e School & Hospital v. Halderman , 465 U.S. 89, 106 (1984). The majority's decision here not only works an injustic e in an important case but it creates a dangerous precedent . I
must therefore dissent.

47A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

48