1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-1999

McCandless v. Vaughn

Precedential or Non-Precedential:

Docket 97-1585

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Recommended Citation

"McCandless v. Vaughn" (1999). 1999 Decisions. Paper 86.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/86
Filed March 30, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-1585 

THOMAS MCCANDLESS, 

Appellant 

v. 

DONALD T. VAUGHN; THE ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA; DISTRICT ATTORNEY FOR 

PHILADELPHIA COUNTY 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 96-cv-02310) 

District Judge: Hon. Herbert J. Hutton 

Argued September 18, 1998 

BEFORE: STAPLETON and ROTH, Circuit Judges, and 

HOEVELER,* District Judge 

(Opinion Filed March 30, 1999) 

Peter Goldberger (Argued) 

Pamela A. Wilk 

Law Office of Peter Goldberger 

50 Rittenhouse Place 

Ardmore, PA 19003-2276 

 Attorneys for Appellant 

_________________________________________________________________ 

*Honorable William M. Hoeveler, Senior United States District Judge for 

the Southern District of Florida, sitting by designation. 
 Donna G. Zucker (Argued) 

 Chief, Federal Litigation 

 Ronald Eisenberg 

 Deputy District Attorney, 

 Law Division 

 Arnold H. Gordon 

 1st Assistant District Attorney 

 Lynne Abraham 

 District Attorney 

 1421 Arch Street 

 Philadelphia, PA 19102-1582 

 Attorneys for Appellees 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

Thomas McCandless appeals the District Court's denial 

of his habeas corpus application under 28 U.S.C. S 2254, 

alleging that his conviction for murder and related charges 

in a Pennsylvania Court of Common Pleas violated his 

federal constitutional and statutory rights. McCandless's 

appeal presents four claims for habeas relief. First, he 

contends that admission of a prosecution witness' double 

hearsay testimony violated his Sixth Amendment right to 

confrontation. Second, he argues that a District Attorney's 

Office official's testimony regarding the "corroboration" 

condition of the cooperation agreement between that office 

and the prosecution's key witness amounted to improper 

prosecutorial vouching and deprived him of due process. 

Third, McCandless contends that the trial court lacked 

jurisdiction to try him because Pennsylvania extradited him 

from New Jersey in violation of the Interstate Agreement on 

Detainers Act. Fourth, McCandless claims that admission 

of the prosecution's key witness' preliminary hearing 

testimony violated his Sixth Amendment right to 

confrontation. 

We conclude that McCandless's first two claims are 

procedurally defaulted and that his third is without merit. 

However, because we conclude that the prosecution did not 

 2 
fulfill its duty to protect McCandless's constitutional right 

to confront the key witness against him, we will reverse. 

I. 

On August 11, 1980, Philadelphia police arrived at a 

crime scene where Theodore Stebelski had been shot to 

death. An eyewitness at the scene, William Hopkins, told 

police that he had heard gunshots coming from a garage 

rented by McCandless located at 2206 East Fletcher Street 

in Philadelphia. According to Hopkins, after the gunshots, 

Stebelski crashed through the garage door, collapsed on the 

sidewalk, picked himself up, and ran around the corner 

finding refuge against a blue Buick parked nearby. Hopkins 

then observed another man, later identified as John Barth, 

running from the garage. Barth quickly returned to the 

garage to assist another man in removing the collapsed 

garage door from a blue Chevrolet. The other man sped 

away in the Chevrolet once it was freed. McCandless owned 

a 1955 Chevrolet similar to the one Hopkins observed. 

Barth then ran to the blue Buick where the bleeding

Stebelski lay, grabbed Stebelski by the neck and shook 

him. After Hopkins intervened, Barth sped away in the 

Buick. Police and a medical rescue unit soon arrived. 

Despite the rescue unit's efforts, however, Stebelski died of 

two gunshot wounds to the shoulder and trunk of his body. 

Police arrested Barth for the Stebelski murder. After 

negotiations with the District Attorney's office, Barth agreed 

to serve as a cooperating witness and gave a statement 

implicating McCandless and Patrick Hartey in the murder. 

In return, prosecutors promised that, if Barth's information 

was corroborated by investigators, they would (i) facilitate 

his release on bail, and (ii) at the successful conclusion of 

the case, drop the charges against him. 

On September 15, 1981, the Commonwealth filed 

criminal complaints charging McCandless and Hartey with 

Stebelski's murder and issued warrants for their arrest. At 

the time, however, McCandless and Hartey were both 

incarcerated in New Jersey on unrelated offenses. 

Accordingly, Pennsylvania began extradition proceedings 

under the Interstate Agreement on Detainers Act ("IAD"). 

 3 
See 42 Pa. Cons. Stat. Ann. S 19101. McCandless's 

extradition was sought on the basis of theft and drug 

offenses unrelated to the Stebelski murder. Despite

McCandless's resistance, he was extradited on February 17, 

1982. 

The Commonwealth prosecuted McCandless and Hartey 

jointly for the Stebelski murder. At a preliminary hearing, 

Barth, the only eyewitness to the shooting inside the 

garage, testified about the murder. Barth stated that 

McCandless had "pistol whipped" and shot Stebelski in the 

back as he fled. After the hearing, Barth disappeared and 

did not testify at McCandless's trial. Barth's preliminary 

hearing testimony, however, was admitted at trial. 

The trial judge made three significant evidentiary 

decisions which form the basis of three of McCandless's 

four claims for habeas relief. First, the court determined 

that Barth was "unavailable" and allowed Barth's 

preliminary hearing testimony to be read to the jury. 

Second, the court allowed Joseph Murray, chief of the 

Homicide Unit of the District Attorney's Office, to testify 

regarding the terms of Barth's cooperation agreement, 

including two statements regarding the agreement's 

"corroboration" condition. Third, the court admitted alleged 

double hearsay testimony by Stebelski's friend, David 

Antovich, who had driven Stebelski to McCandless's garage 

on the day of the crime. Antovich testified that, while he 

was waiting for Stebelski, an unidentified man told him 

that "Tommy said to take a ride and come back infive 

minutes." McCandless's first name is Thomas. 

On August 20, 1982, the jury found McCandless guilty of 

first degree murder, criminal conspiracy and possession of 

an instrument of crime. The court sentenced McCandless to 

mandatory life imprisonment on the murder count and an 

aggregate consecutive prison term of seven and one half to 

fifteen years on the other charges. 

McCandless appealed his conviction to the Pennsylvania 

Superior Court raising approximately thirty claims of error. 

The Superior Court affirmed the murder and conspiracy 

convictions, but vacated the possession conviction.

Commonwealth v. McCandless, 512 A.2d 52 (Pa. Super. Ct. 

 4 
1986)(table). McCandless then filed an application for 

permission to appeal to the Pennsylvania Supreme Court. 

The application abandoned the majority of McCandless's 

Superior Court claims and listed only four grounds for 

relief. The Pennsylvania Supreme Court denied the 

application for discretionary review. See Commonwealth v. 

McCandless, 522 A.2d 557 (Pa. 1987)(table). 

Nine years later, on March 21, 1996, McCandlessfiled a 

petition for habeas corpus relief in the District Court. The 

District Court rejected all thirteen claims presented in his 

petition. As we have noted, McCandless appeals the District 

Court's resolution of only four of these claims. This court 

granted McCandless's application for a certificate of 

probable cause and we have jurisdiction under 28 U.S.C. 

S 2253. AEDPA's habeas corpus amendments do not apply 

to this case because McCandless's application was filed 

prior to, and was pending on, AEDPA's effective date. See 

Lindh v. Murphy, 117 S.Ct. 2059 (1997); United States v. 

Skandier, 125 F.3d 178 (3d Cir. 1997). 

"Because the District Court relied entirely upon the state 

court record and did not hold an evidentiary hearing, our 

review [of the District Court's decision] is plenary." Hassine 

v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998)(citing 

Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997). 

Like the District Court, we must presume all state court 

factual findings to be correct, 28 U.S.C. S 2254(d), but we 

"exercise plenary review over state court conclusions on 

mixed questions of law and fact and pure issues of law." 

Hassine, 160 F.3d at 947; see Miller v. Fenton, 474 U.S. 

104, 105 (1985)(holding that while "subsidiary factual 

questions" are subject to S 2254(d)'s presumption, the 

ultimate legal question of confession's constitutional 

voluntariness "is a matter for independent federal 

determination"); Sumner v. Mata, 455 U.S. 591, 597 

(1982)(ultimate question of pretrial identification

procedure's constitutionality presented "mixed question of 

law and fact that is not governed by S 2254(d)"); Daniel v. 

Warden, State Correction Inst. at Huntingdon, Pa., 794 F.2d 

880, 883 (3d Cir. 1986) (S 2254(d) factual presumption does 

not apply to ultimate legal question of whether 

constitutional right against double jeopardy was violated). 

 5 
II. 

Federal courts have the power to entertain habeas corpus 

applications by persons in state custody claiming that they 

"[are] in custody in violation of the Constitution or laws or 

treaties of the United States." 28 U.S.C. S 2254(a). As a 

general rule, federal courts may exercise the power to 

consider habeas applications only where "it appears that 

the applicant has exhausted the remedies available in the 

courts of the State." Walker v. Vaughn, 53 F.3d 609, 614 

(3d Cir. 1995)(quoting 28 U.S.C. S 2254(b)). The exhaustion 

rule requires applicants to "fairly present" federal claims to 

state courts before bringing them in federal court. See 

Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. 

Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackwell, 

134 F.3d 506, 513 (3d Cir. 1998). When a claim is not 

exhausted because it has not been "fairly presented" to the 

state courts, but state procedural rules bar the applicant 

from seeking further relief in state courts, the exhaustion 

requirement is satisfied because there is "an absence of 

available State corrective process." 28 U.S.C.S 2254(b). In 

such cases, however, applicants are considered to have 

procedurally defaulted their claims and federal courts may 

not consider the merits of such claims unless the applicant 

establishes "cause and prejudice" or a "fundamental

miscarriage of justice" to excuse his or her default. See 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

The parties agree that McCandless is procedurally barred 

from asserting his claims in the Pennsylvania state courts. 

Thus, any claim not already fairly presented to 

Pennsylvania's courts would be procedurally defaulted. 

Accordingly, we may only consider the merits of 

McCandless's habeas claims in either of two circumstances. 

First, we may consider any exhausted claim that 

McCandless "fairly presented" to Pennsylvania's courts. 

Second, even if we conclude that McCandless did not"fairly 

present" a particular claim, we may still consider its merits 

if McCandless excuses his procedural default by 

demonstrating "cause and prejudice" or a "miscarriage of 

justice." 

The District Court determined that McCandless had not 

 6 
fairly presented his double hearsay and prosecutorial 

vouching claims to the state courts.1 We agree. 

To "fairly present" a claim, a petitioner must present a 

federal claim's factual and legal substance to the state 

courts in a manner that puts them on notice that a federal 

claim is being asserted. See Anderson v. Harless, 459 U.S. 

4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). 

It is not sufficient that a "somewhat similar state-law claim 

was made." Harless, 459 U.S. at 6. Yet, the petitioner need 

not have cited "book and verse" of the federal constitution. 

Picard, 404 U.S. at 277. 

The Supreme Court most recently applied these 

principles in Duncan v. Henry, 513 U.S. 364 (1995). There, 

the habeas applicant had been convicted in state court for 

sexual molestation. The trial court admitted testimony by 

the parent of a child who claimed to have been molested by 

the applicant 20 years earlier. The applicant's state appeal 

claimed that the trial court erred in admitting the parent's 

testimony without making any reference to federal law. The 

state courts analyzed and rejected the claim under 

California constitutional and evidence law. The applicant 

then filed a federal habeas corpus application claiming the 

evidentiary error deprived him of his constitutional due 

process rights. The Ninth Circuit held that the applicant 

had "fairly presented" his federal claim to the state courts 

because "it is not necessary to invoke `the talismanic 

phrase "due process of law' " or cite the `book and verse on 

the federal constitution' " to notify state courts of federal 

claims. Id. at 366 (citing Henry v. Estelle, 33 F.3d 1037 (9th 

Cir. 1994)). The Supreme Court reversed, holding that the 

federal claim had not been fairly presented to the state 

courts. 

We read Duncan as reaffirming the teaching of Harless 

and Picard that the absence of explicit reference to federal 

law does not resolve the issue of whether a federal claim 

_________________________________________________________________ 

1. The District Court determined that McCandless had "fairly presented" 

his IAD claim and his claim that admitting Barth's preliminary hearing 

testimony violated the Confrontation Clause. Our review of the record 

confirms the District Court's conclusion. Accordingly, we consider the 

merits of these claims infra in section III of this opinion. 

 7 
was fairly presented. It also reaffirms, however, that 

petitioners must have communicated to the state courts in 

some way that they were asserting a claim predicated on 

federal law. As the Court explained: 

 [E]xhaustion of state remedies requires that petitioners 

 `fairly presen[t]' federal claims to the state courts in 

 order to give the State the opportunity to pass upon 

 and correct alleged violations of its prisoners' federal 

 rights. If state courts are to be given the opportunity to 

 correct alleged violations of prisoners' federal rights, 

 they must surely be alerted to the fact that the 

 prisoners are asserting claims under the United States 

 Constitution. If a habeas petitioner wishes to claim 

 that an evidentiary ruling at a state court trial denied 

 him the due process of law guaranteed by the

 Fourteenth Amendment, he must say so, not only in 

 federal court, but in state court. 

Id. at 365-66 (citations and quotations omitted). 

In Evans v. Court of Common Pleas, De. County, Pa., 959 

F.2d 1227 (3d Cir 1992), we noted some of the ways in 

which petitioners may communicate that they are asserting 

a federal claim without explicitly referencing specific 

portions of the federal constitution or statutes. Quoting 

from Daye v. Attorney General of New York, 696 F.2d 186 

(2d Cir. 1982) (en banc), we observed that the required 

message can be conveyed through "(a) reliance on pertinent 

federal cases employing constitutional analysis, (b) reliance 

on state cases employing constitutional analysis in like fact 

situations, (c) assertion of the claim in terms so particular 

as to call to mind a specific right protected by the 

Constitution, and (d) allegation of a pattern of facts that is 

well within the mainstream of constitutional litigation." 

Evans, 959 F.2d at 1232. As in Duncan, however, the

petitioner here did not, by these means or any other, serve 

fair notice that he was asserting either of his due process 

claims. 

McCandless's "double hearsay" claim in state court made 

no reference to a constitutional or federal right and cited 

only state cases considering state evidence law without 

employing any constitutional analysis.2 McCandless's 

_________________________________________________________________ 

2. The Court of Common Pleas opinion cited one case, Commonwealth v. 

Darden, 457 A.2d 549 (Pa. 1983), involving a pure matter of state 

 8 
Pennsylvania Superior and Supreme Court briefs do not 

assert this claim in "terms so particular as to bring to 

mind" a constitutional right, nor do they "allege a pattern 

of facts well within the mainstream of constitutional 

litigation." To the contrary, this "double hearsay" claim 

brings to mind a classic evidence issue which is precisely 

how it was understood by the state courts. 

Similarly, McCandless presented his "prosecutorial 

vouching" claim to Pennsylvania's courts as an evidentiary 

law challenge and not as a violation of a federal or 

constitutional right. He did not assert this claim in terms 

that bring to mind a constitutional right. On the contrary, 

his Superior and Pennsylvania Supreme Court briefs 

articulated this claim in terms similar to a Rule 403 

objection, contending that the cooperation agreement 

testimony was "irrelevant" and "prejudicial" and therefore 

improperly admitted. Nowhere are the terms "constitution", 

"due process" or even "fair trial" mentioned. The cases cited 

were predominantly state cases that considered state 

evidence law issues and did not employ constitutional 

analysis.3 Finally, we note that there is no similarity in the 

_________________________________________________________________ 

evidence law. The Superior Court affirmed without citing authority. 

McCandless's Superior Court brief confined its argument to state 

evidence law and cited Commonwealth v. Floyd, 476 A.2d 414 (Pa. 

Super. Ct. 1984), Commonwealth v. Cruz, 414 A.2d 1032 (Pa. 1980), 

Commonwealth v. Scott, 470 A.2d 91 (Pa. 1983), Commonwealth v. Little, 

364 A.2d 915 (Pa. 1976), Commonwealth v. Cimorose, 478 A.2d 1318 

(Pa. Super. Ct. 1984), all state cases involving evidence law issues. 

McCandless's Pennsylvania Supreme Court brief did not cite any 

additional authority. 

3. The Court of Common Pleas opinion cited Commonwealth v. Reed, 446 

A.2d 311 (Pa. Super.Ct. 1982), which dealt with state evidence law and 

a prosecutor's state law ethical duty to present their case "fairly." It 

held 

that improper vouching was a violation of this duty. Reed did not 

consider a constitutional claim. McCandless's Superior Court brief also 

cited Reed and additionally Commonwealth v. Cygan, 243 A.2d 476 (Pa. 

Super. Ct. 1968), which dealt with state evidence law. The Superior 

Court affirmed without discussion. McCandless's Pennsylvania Supreme 

Court brief cited Floyd, Cygan, Cruz, and Reed and additionally 

Commonwealth v. Tann, 459 A.2d 322, (Pa. 1983); none employed 

 9 
analysis applicable to these two claims. In state court, 

resolution required a determination of relevancy and a 

balancing of possible prejudicial effect. McCandless's claim 

that the same facts amounted to prosecutorial vouching in 

violation of due process involves an inquiry as to whether 

the prosecutorial misconduct undermined the fundamental 

fairness of the entire trial. See Darden v. Wainwright, 477 

U.S. 168, 183 (1986); Ramseur v. Beyer, 983 F.2d 1215, 

1239 (3d Cir. 1992)(en banc). Accordingly, here, as in 

Duncan, the state courts "analyzed the evidentiary error by 

asking whether its prejudicial effect outweighed its 

probative value, not whether it was so inflammatory as to 

prevent a fair trial." Duncan, 513 U.S. at 366. 

Thus, we conclude that McCandless did not fairly present 

his double hearsay and prosecutorial vouching claims to 

Pennsylvania's courts. Because McCandless is procedurally 

barred from asserting these claims in state court, his 

claims are considered exhausted due to procedural default. 

We may only consider these claims if McCandless excuses 

his default by showing "cause and prejudice" or a 

"miscarriage of justice." See Coleman, 501 U.S. at 750. 

McCandless, however, makes no attempt to show either. 

Accordingly, we are not free to consider them on their 

merits. 

III. 

McCandless fairly presented Pennsylvania's courts with 

his IAD claim and his claim that admission of Barth's 

preliminary hearing testimony violated the Confrontation 

Clause. We now consider the merits of these claims.

_________________________________________________________________ 

constitutional analysis. In Tann, the Pennsylvania Supreme Court 

granted a new trial based upon ineffectiveness of defense counsel for 

failing to object to highly prejudicial and irrelevant prosecutorial 

bolstering. While McCandless's state court briefs cited two federal cases 

considering claims of prosecutorial vouching, these cases did not reach 

constitutional issues for the propositions for which they are cited. See 

United States v. Winter, 663 F.2d 1120 (1st Cir. 1981) and United States 

v. Roberts, 618 F.2d 530 (9th Cir. 1980). 

 10 
A. 

The IAD "is a compact which has been adopted by 48 

states, the District of Columbia, and the United States, to 

encourage expeditious and orderly disposition of 

outstanding criminal charges filed against a person

incarcerated in a different jurisdiction." Cooney v. Fulcomer, 

886 F.2d 41, 43 (3d Cir. 1989). IAD violations are 

cognizable in federal habeas corpus because the IAD is a 

"law of the United States" for purposes of 28 U.S.C. S 2254. 

See Reed v. Farley, 512 U.S. 339, 347 (1994)("While the 

IAD is indeed state law, it is a law of the United States as 

well."); Cooney, 886 F.2d at 43 n.1 ("The IAD [was] . . . 

approved by Congress pursuant to the Compact Clause

[and] . . . is a federal law . . . . Thus, the federal courts 

have habeas corpus jurisdiction . . ."). 

The IAD establishes procedures for the transfer of 

prisoners to face criminal prosecution in another state. 

Article V(d) provides: 

 The temporary custody referred to in this agreement 

 shall be only for the purpose of permitting prosecution 

 on the charge or charges contained in one or more 

 untried indictments, informations, or complaints which 

 form the basis of the detainer or detainers or 

 prosecution on any other charge or charges arising out 

 of the same transaction. . . . 

42 Pa. Cons. Stat. Ann. S 9101. 

The parties agree that (i) McCandless was incarcerated in 

New Jersey when Pennsylvania filed murder charges 

against him; (ii) Pennsylvania filed its IAD request based 

upon charges wholly unrelated to the Stebelski murder; 

and (iii) Pennsylvania prosecuted McCandless on the

murder charge when they gained custody under their IAD 

request. The parties also agree that this clearly violated 

Article V(d). They disagree, however, on whether this IAD 

violation warrants habeas relief. We conclude that our 

decision in Cooney v. Fulcomer, 886 F.2d 41 (3d Cir. 1989), 

is controlling here and that habeas relief must be denied. 

In Cooney, Pennsylvania obtained custody of the habeas 

applicant from New Jersey through an IAD request based 

 11 
upon burglary charges. The state then (i) dismissed the 

burglary charges, (ii) filed new robbery charges based upon 

wholly unrelated events, and (iii) convicted the applicant on 

the robbery charges. See id. at 42. The applicant then 

sought federal habeas corpus relief based upon 

Pennsylvania's violation of IAD Article V(d). See id. at 43. 

We concluded that Pennsylvania had blatantly violated 

Article V(d), but nonetheless held that the applicant was 

not entitled to habeas relief because violation of Article V(d) 

"was not so fundamental as to warrant habeas relief." Id. at 

42.4 

McCandless attempts to distinguish Cooney by arguing 

that there the applicant alleged that Pennsylvania's 

violation of Article V(d) deprived him of his "procedural" 

right to contest his transfer before the sending state's 

Governor by knowing the charges upon which his transfer 

was based. By contrast, McCandless contends that he is 

asserting a "substantive" claim that Article V(d) deprived 

the Court of Common Pleas of jurisdiction--both personal 

and subject matter--to try him for the crimes. He argues 

this is "fundamental" rather than merely procedural. We 

find this argument unavailing. 

The Court of Common Pleas did not depend upon the IAD 

for personal or subject matter jurisdiction. Both are 

independently provided by other Pennsylvania statutes. 

Under 42 Pa. Cons. Stat. Ann. S 931, the Court of Common 

Pleas has "unlimited original jurisdiction of all actions and 

proceedings . . . cognizable by law" except where original 

jurisdiction has been delegated to another court in

Pennsylvania's unified court system. The murder and

related charges fall within this category. See Commonwealth 

_________________________________________________________________ 

4. We have found violations of other IAD provisions insufficiently 

"fundamental" to warrant habeas relief. See Casper v. Ryan, 822 F.2d 

1283 (3d Cir. 1987) (violation of article III's requirement of trial 

within 

180 days of request by detainee not "fundamental defect" warranting 

habeas relief); Shack v. Attorney Gen. of Pa., 776 F.2d 1170, 1173-74 (3d 

Cir. 1985)(violation of article IV(a)'s pre-transfer hearing provision not 

sufficient to allow "the extraordinary sanction of a collateral attack on 

an 

otherwise valid criminal conviction"); but see United States v. Williams, 

615 F.2d 585 (3d Cir. 1980)(violation of article IV(e)'s antishuttling 

provision "fundamental" enough to warrant habeas relief). 

 12 
v. Matlock, 393 A.2d 26, 28 (Pa. 1978)("The court of 

common pleas has jurisdiction to hear murder cases."). The 

Court of Common Pleas' personal jurisdiction is provided by 

42 Pa. Cons. Stat. Ann. S 5301(a)(1), which inter alia 

provides personal jurisdiction over individuals who are 

present or domiciled in the Commonwealth when process is 

served. McCandless was present in Pennsylvania when he 

was arrested for the murder charges. Personal jurisdiction 

does not depend upon how McCandless came to be present 

in Pennsylvania. Indeed, as the District Court noted, under 

Supreme Court precedent the Court of Common Pleas 

might even have had jurisdiction if McCandless had been 

brought into Pennsylvania by forcible abduction. Frisbee v. 

Collins, 342 U.S. 519, 522 (1952).5 In short, we conclude 

that we are bound by our holding in Cooney that violations 

of IAD Article V(d) are not fundamental enough to warrant 

habeas relief. 

B. 

We now turn to McCandless's claim that admission of

Barth's preliminary hearing testimony violated his rights 

under the Confrontation Clause. The Sixth Amendment

guarantees criminal defendants "the right to be confronted 

with the witnesses against [them]." U.S. Const. amend. 6. 

Read literally, this clause "would require, on objection, the 

exclusion of any statement made by a declarant not present 

at trial." Ohio v. Roberts, 448 U.S. 56, 62 (1980). The 

_________________________________________________________________ 

5. McCandless also argues that the Supreme Court's decisions in United 

States v. Rauscher, 119 U.S. 407 (1886) and Johnson v. Browne, 205 

U.S. 309 (1907), regarding the "rule of specialty" in international 

extradition law, apply to this case. We find this argument unpersuasive. 

In Rauscher, the Court interpreted an extradition treaty between the 

United States and Great Britain as impliedly requiring that individuals 

extradited under the treaty are tried only for the specific offenses upon 

which extradition was sought. 119 U.S. 407. The Browne Court 

reaffirmed this rule of international law in a habeas corpus proceeding. 

205 U.S. 309. These cases did not arise under a domestic statute with 

its own controlling jurisprudence. Moreover, the Supreme Court has 

specifically held that the international law "rule of speciality" does not 

apply to domestic extraditions under the Extradition Clause. Lascelles v. 

Georgia, 148 U.S. 537, 542-43 (1893). 

 13 
Supreme Court, however, has interpreted the clause to 

allow admission of non-testifying declarants' out of court 

statements where the prosecution establishes that (i) the 

declarant is "unavailable" and (ii) the statement bears 

adequate "indicia of reliability." Id. at 65-6. 

When prosecutors seek to admit a non-testifying witness' 

preliminary hearing testimony the Confrontation Clause 

requires two things. First, the prosecution must establish 

that the declarant is "unavailable" by showing that

"prosecutorial authorities have made a good-faith effort to 

obtain [the declarant's] presence at trial." Id. at 74; see also 

United States v. Steele, 685 F.2d 793, 808 (3d Cir.

1982)("The Confrontation Clause of the sixth amendment 

permits [admission of depositions in criminal trials] when 

the witness is unavailable despite good-faith efforts 

undertaken prior to trial to locate and present that 

witness."). Judging whether a "good faith" effort has been 

made is "a question of reasonableness," and"the 

prosecution bears the burden of establishing this 

predicate." Roberts, 448 U.S. at 74-5 (quoting California v. 

Green, 399 U.S. 149, 189 n.22 (1970)). Second, to satisfy 

the "indicia of reliability" requirement, the prosecution 

must demonstrate that the defendant had an adequate

opportunity to cross-examine the declarant at the 

preliminary hearing. See id. at 73. 

McCandless claims that neither of these constitutional 

prerequisites were satisfied for the admission of Barth's 

preliminary hearing testimony. We find it necessary to 

address only the issue of whether Barth was 

constitutionally unavailable.6 

_________________________________________________________________ 

6. Because we find a Confrontation Clause violation based upon the 

prosecution's failure to establish Barth's unavailability, we find it 

unnecessary to address McCandless's additional claim that admission of 

Barth's testimony violated the Confrontation Clause because he did not 

have an adequate opportunity to cross-examine Barth at the preliminary 

hearing. In his brief, McCandless conceded that he did not present this 

claim to the Pennsylvania Supreme Court and that it is procedurally 

defaulted. He attempted, however, to excuse this default on the ground 

that his counsel had been ineffective in failing to raise this claim in 

his 

allocatur petition to the Pennsylvania Supreme Court. Because the same 

 14 
As noted, we must presume all state court factual 

findings to be correct in our analysis of McCandless's 

Confrontation Clause claim. 28 U.S.C. S 2254(d). "[W]hile 

the presumption of correctness applies to the basic, 

primary or historical facts, the ultimate issue of 

unavailability for purposes of the Confrontation Clause is a 

mixed question of fact and law, reviewable de novo." 

Martinez v. Sullivan, 881 F.2d 921, 926 (10th Cir. 1989); 

see Burns v. Clusen, 798 F.2d 931, 941-42 (7th Cir. 1986); 

Dres v. Campoy, 784 F.2d 996, 998 (9th Cir. 1986)("[W]e 

review de novo the question of whether the Supreme 

Court's standards for unavailability have been satisfied in 

this case."); see also Thomas v. Gunter, 962 F.2d 1477, 

1483 (10th Cir. 1992)(whether hearsay statements met 

Confrontation Clause's indicia of reliability requirement 

presents "a mixed question of law and fact we review de 

novo"). 

The prosecution's Sixth Amendment duty requires it to 

undertake reasonable "good faith" efforts to locate

witnesses before a court will admit a non-testifying witness' 

preliminary hearing testimony. See Roberts, 448 U.S. at 74- 

75. The Supreme Court has noted that in fulfilling this 

duty: 

 The law does not require the doing of a futile act. Thus, 

 if no possibility of procuring the witness exists (as for 

_________________________________________________________________ 

counsel had included this argument in McCandless's Superior Court 

brief, the District Court concluded that the failure to reassert it was a 

strategic decision and not ineffective assistance of counsel. 

In rebuttal at oral argument, McCandless alternatively argued that he 

had indeed "fairly presented" this claim because he had included it in 

his only state appeal as a matter of right to the Superior Court. 

McCandless requested this Court to consider whether"exhaustion" 

requires an applicant to present claims in state discretionary appeals. 

We are not free to do so. This Court's precedents indicate that habeas 

petitioners must present their federal claims to the state's highest 

court. 

See Evans, 959 F.2d at 1230 ("A claim must be presented not only to the 

trial court but also to the state's intermediate court as well as to its 

supreme court."); Caswell v. Ryan, 953 F.2d 853, 861 (3d Cir. 1992); 

Beaty v. Patton, 700 F.2d 110, 111 (3d Cir. 1983). But see Boerckel v. 

O'Sullivan, 135 F.3d 1194 (7th Cir.) cert. granted, 119 S. Ct. 508 (1998). 

 15 
 example the witness' intervening death), "good faith" 

 demands nothing of the prosecution. But if there is a 

 possibility, albeit remote, that affirmative measures 

 might produce the declarant, the obligation of good faith 

 may demand their effectuation. The lengths to which the 

 prosecution must go to produce a witness . . . is a 

 question of reasonableness. 

Id. at 74 (emphasis added). 

The reasonableness of the prosecution's efforts must be 

evaluated with a sensitivity to the surrounding 

circumstances and the defendant's interest in confronting 

the absent witness. Confrontation Clause concerns are 

heightened and courts insist on more diligent efforts by the 

prosecution where a "key" or "crucial" witness' testimony is 

involved. See United States v. Foster, 986 F.2d 541, 543 

(D.C. Cir. 1993) ("The more important the witness to the 

government's case, the more important the defendant's 

right, derived from the Confrontation Clause of the Sixth 

Amendment"); United States v. Lynch, 499 F.2d 1011, 1022 

(D.C. Cir. 1974) ("Confrontation Clause considerations `are 

especially cogent when the testimony of a witness is critical 

to the prosecution's case against the defendant.' "); United 

States v. A&S Council Oil Co., 947 F.2d 1128, 1133 (4th 

Cir. 1991) ("Where [a case] involves the government's most 

crucial witness, the [Confrontation Clause] concerns are 

especially heightened."); United States v. Quinn, 901 F.2d 

522, 529 (6th Cir. 1990) (same); Dorsey v. Parke, 872 F.2d 

163, 166 (6th Cir. 1989) ("Where the trial court has 

curtailed a defendant's cross-examination of a `star' 

government witness--as it has done in this case--its ruling 

must be more carefully scrutinized."); cf. Davis v. Alaska, 

415 U.S. 308 (1974) (repeatedly emphasizing crossexamination of "key" and "crucial" witness as significant 

factor for determining that defendant's confrontation rights 

outweighed key witness' privacy interest in non-disclosure 

of juvenile record under state law). 

The defendant's interest in confrontation is, of course, 

further heightened where the absent witness has special 

reason to give testimony favorable to the prosecution. 

Confrontation Clause protections are " `especially important 

with respect to accomplices or other witnesses who may 

 16 
have substantial reason to cooperate with the 

government.' " United States v. Mayans, 17 F.3d 1174, 1184 

(9th Cir. 1994) (quoting United States v. Onori , 535 F.2d 

938, 945 (5th Cir.1976)); see United States v. Greenberg, 

423 F.2d 1106 (5th Cir. 1970) (curtailing cross-examination 

of cooperating co-defendant witness regarding witness' plea 

arrangement with prosecution violated Confrontation

Clause). 

Finally, special sensitivity to Confrontation Clause 

concerns is appropriate where the consequences of a

conviction based on the absent witness' testimony are 

grave. In a capital case, for example, it is fair to ask more 

of the prosecution than in a situation involving significantly 

less serious consequences. 

In this case, McCandless's interest in confrontation with 

Barth could not have been higher. He was charged with an 

offense which carried a mandatory life sentence, and the 

prosecution was seeking the death penalty. Barth was the 

prosecution's only eye witness to the alleged shooting, and 

his testimony was the only substantial evidence implicating 

McCandless in the murder. These factors would have made 

full cross examination before the jury of crucial importance 

to McCandless even if Barth had been a wholly impartial 

witness. But he was not. He had been charged with and 

arrested for the same homicide and had reached an 

agreement with the prosecution that he would go free if he 

testified against McCandless and Hartey and they were 

convicted. With McCandless's acute Sixth Amendment 

interest in confronting Barth in mind, we turn to the 

evidence pertaining to the government's efforts to secure 

Barth's presence at trial. 

Barth was arrested and charged with Stebelski's death in 

March of 1981. He agreed to cooperate with the government 

and gave a written statement implicating McCandless in 

September of 1981, a little over a year after the alleged 

crime. The prosecution agreed to support a reduction of 

Barth's bail as part of the cooperation agreement. Barth 

was released on bail and his father, Edward Barth, became 

the surety on his bond. Barth was required to report every 

other week to a designated room in the courthouse where 

he was to sign a subpoena. In February, 1982, Barth failed 

 17 
to report to the designated room and failed to appear at a 

preliminary hearing regarding an unrelated weapons 

charge, which resulted in the issuance of a bench warrant 

for his arrest. Barth was arrested and released. In April, 

1982, Barth again failed to appear in court, this time at a 

preliminary hearing in McCandless's case. Another bench 

warrant was issued and police arrested Barth at his home. 

Barth was temporarily incarcerated at Holmsberg prison, 

but was released on the same bail conditions after testifying 

at McCandless's preliminary hearing. Approximately one 

month later, in early May, 1982, Barth again failed to 

report and yet another bench warrant was issued for his 

arrest on May 14th. This time, however, police were unable 

to find Barth before the McCandless trial commenced on 

August 9, 1982. 

Four witnesses testified regarding the Commonwealth's 

efforts to locate and secure Barth's presence at trial after he 

disappeared in early May, 1982. First, Detective Frank 

O'Brien, the detective assigned to the Stebelski murder, 

testified that he told other police officers to keep an eye out 

for Barth and that he personally looked for him when he 

was in Barth's neighborhood "on other business." O'Brien 

admitted, however, that he made no effort to locate Barth 

during the two months prior to McCandless's trial. During 

the month preceding trial, he was on vacation. 

Second, Detective Joseph Guerrera, a detective assigned 

by the District Attorney's office to locate and serve Barth 

with a subpoena, testified that he attempted to serve Barth 

with a subpoena on two occasions in July. First, in early 

July, he (i) checked police and prison records, (ii) visited the 

Barth house and slipped a subpoena under the door, and 

(iii) questioned a grocer and neighborhood youth regarding 

Barth's whereabouts. Guerrera repeated these efforts on 

July 27, 1982, less than a week before jury selection 

commenced on August 2, 1982. This time, he spoke with a 

neighbor who told him that Mrs. Barth was at the shore 

and that Barth had been in the neighborhood in June. 

Guerrera never attempted to contact Barth's father, mother 

or siblings because he was "more or less used on a one day 

basis" and his assigned task was to serve Barth and five 

other witnesses in the case with subpoenas. He assumed 

 18 
that the detective assigned to the murder case, Detective 

O'Brien, was investigating Barth's whereabouts. 

Third, Detective Tyres, a detective assigned to locate 

Barth one week before trial, testified that he (i) checked 

police, prison and Department of Public Assistance records, 

and (ii) went to the Barth residence where he spoke to Mrs. 

Barth and a man he assumed to be Barth's brother on

August 4, 1982. Both claimed to have no knowledge of 

Barth's whereabouts. 

Finally, Joan Burren, a representative from Pretrial 

Services ("ROR"), read the notations from Barth's ROR file 

detailing that department's efforts to locate Barth. ROR's 

activities centered around three dates. First, after the 

bench warrant was issued in May, the ROR made a series 

of unsuccessful phone calls to the Barth home to schedule 

a "walk in" surrender. Mrs. Barth advised that Barth no 

longer lived there. Second, on July 1, 1982, ROR officers 

visited the Barth house, found the door open, and searched 

the home, but found the residence empty. Third, on August 

6, 1982, an ROR officer called Mrs. Barth, who reported 

that she had met Barth two weeks earlier in Dover, 

Delaware. She gave no further information, but the officer's 

notation indicated that he believed that she knew Barth's 

location because the meeting was pre-arranged. Following 

this conversation, the officer sought to obtain the Barth 

residence phone records of all calls to and from Delaware. 

The telephone company representative, however, refused to 

surrender the information without a warrant. No warrant 

was sought. An ROR officer also called the Dover police 

department, which returned the call forty minutes later 

indicating that they had no record of Barth in Delaware. 

Finally, a call was made to the Pennsylvania Department of 

Motor Vehicles. 

Burren also testified that ROR knew Barth's parents' 

identity and address, and that they knew that Barth's 

father was the surety for Barth's bond. Nonetheless, no 

effort was made to contact Barth's parents or siblings. No 

federal warrant was sought. 

Thus, the record shows the following. The government 

supported a bail reduction that allowed Barth to gain his 

 19 
freedom. After two failures to appear, two bench warrants 

and two rearrests, it sought no alteration in conditions of 

his bail. In early May of 1982, three months before trial, 

Barth failed to appear for the third time and a bench 

warrant was issued. Follow-up calls by Barth's pre-trial 

services officers established that Barth could not be 

expected to voluntarily cooperate. As of mid-May, two and 

a half months prior to trial, it is fair to say that Barth's 

presence at trial would not be assured unless the 

prosecution took affirmative action to secure it. Its response 

to this situation over the next ten weeks can only be 

described as casual. 

These efforts focused around two dates. First, 

approximately one month before trial in early July,

prosecutorial authorities checked Pennsylvania police and 

prison records and twice unsuccessfully visited the Barth 

household, once slipping a subpoena under the door.

Second, in the week immediately preceding jury selection 

and trial in early August, authorities repeated these efforts. 

In the month between these dates prosecutorial authorities 

were idle. This was perhaps attributable to the fact that the 

detective assigned to the case was on vacation, and the 

Assistant District Attorney who tried the case did not 

receive her assignment until one week before trial. Neither 

explanation, however, can excuse the consequent 

infringement of constitutional rights. 

Nothing in the record suggests that Mrs. Barth was 

avoiding authorities, yet officials delayed serious efforts to 

question her about Barth's whereabouts until August 4th, 

two days after jury selection commenced. When an ROR 

officer talked to Mrs. Barth two days later, he learned that 

she had met Barth in Dover, Delaware just two weeks

earlier. Drawing the reasonable inference that the meeting 

might have been prearranged by telephone, and that other 

telephone contacts might have taken place, the officer 

attempted to get the telephone company to voluntarily 

provide the McCandless residence phone records, but did 

not expend the minimal effort necessary to follow up with 

a warrant. Moreover, despite the officer's notation that this 

meeting had been prearranged, no follow up was made to 

further press Mrs. Barth regarding her husband's location. 

 20 
With regard to Barth's possible presence in Delaware, 

authorities simply accepted the quick assurance of the 

Dover police that they had no record of Barth. 

Finally, we note that prosecutorial authorities did not 

contact Barth's parents or siblings. Indeed, they did not 

even call Barth's father whom they knew to have both a 

financial and familial incentive to keep track of Barth.7 

Given Barth's crucial role in the prosecution's case, we 

are left with the firm conviction that the prosecution's 

efforts to assure Barth's presence would have been far less 

casual had the shoe been on the other foot. If the 

prosecution had not had Barth's preliminary hearing

testimony and had needed Barth's presence at trial, we are 

confident that the resources and effort devoted tofinding 

him prior to trial would have been greater than they in fact 

were. To countenance such a disparity would ill serve the 

interests protected by the Confrontation Clause. See United 

States v. Mann, 590 F.2d 361, 367 (1st Cir. 1978) (noting 

that "[t]he government did not make as vigorous an attempt 

to secure the presence of the witness as it would have made 

if it did not have the prior recorded testimony."); Lynch, 499 

F.2d at 1024 ("It is difficult to believe that if the preliminary 

hearing testimony of this critical witness were not available, 

_________________________________________________________________ 

7. The four witnesses who testified about the efforts of the state to 

secure 

Barth's presence did so during the week before trial. After hearing their 

testimony, the trial judge was sufficiently concerned about the situation 

that he directed the ROR officer to contact Barth's family over the 

weekend preceding trial. On August 9, the day trial commenced, the 

prosecutor informed the trial judge that ROR officers had unsuccessfully 

attempted to contact Barth's brother, but had spoken with Barth's 

parents who told them that they had not seen Barth in months. Defense 

counsel refused to stipulate to the prosecutor's summary of ROR efforts 

and instead demanded the opportunity to cross-examine the officer. The 

trial judge then announced his ruling that Barth was unavailable, and 

requested the prosecution to continue its efforts to locate Barth. We have 

reviewed the record and have found no other discussion of the ROR's 

efforts to locate Barth before his testimony was read to the jury. This 

information does change our analysis. In light of defense counsel's 

refusal to stipulate to this information, the trial judge's decision was 

based upon the prior information received in court. Accordingly, we 

believe that our focus must be on the record of the prosecutorial efforts 

established in the trial court's evidentiary hearing discussed above. 

 21 
the prosecution would have abandoned its efforts at this 

point to locate [the witness]."). Accordingly, we hold that 

Barth was not constitutionally unavailable and that the 

prosecution's use of Barth's preliminary hearing testimony 

violated McCandless's rights under the Sixth Amendment. 

Given the facts we have recounted, we believe the District 

Court's reliance on Roberts v. Ohio, 448 U.S. 56 (1980), was 

misplaced. There, the defendant was indicted and convicted 

of forgery and receiving stolen property. An acquaintance of 

the defendant, Anita, testified at the defendant's 

preliminary hearing but did not appear at trial. The 

prosecution sought to introduce Anita's preliminary hearing 

testimony at trial, and offered the following evidence to 

establish Anita's "unavailability": 

 Anita, according to her mother, left home for Tucson, 

 Ariz., soon after the preliminary hearing. About a year 

 before the trial, a San Francisco social worker was in 

 communication with [her parents] about a welfare 

 application Anita had filed there. Through the social 

 worker, the [parents] reached their daughter once by 

 telephone. Since then, however, Anita had called her 

 parents only one other time and had not been in touch 

 with her two sisters. When Anita called, some seven or 

 eight months before trial, she told her parents that she 

 `was traveling' outside Ohio, but did not reveal the 

 place from which she called. . . . [Her mother] knew of 

 no way to reach Anita in case of an emergency. Nor did 

 she `know of anybody who knows where she is.' 

Id. 59-60. The Supreme Court concluded that Anita was 

"unavailabl[e] in the constitutional sense." Id. at 75. The 

court noted that prosecutors had taken affirmative steps to 

locate Anita by contacting her parents at Anita's last known 

address, but that the prosecutors had "no clear indication, 

if any at all, of Anita's whereabouts." Id. at 75-6. The Court 

further found no constitutional violation in the 

prosecution's failure to contact the San Francisco social 

worker because "the great improbability that such efforts 

would have resulted in locating the witness, and would 

have led to her production at trial, neutralize[d] any 

intimation that a concept of reasonableness required their 

execution." Id. at 76. 

 22 
We find McCandless's case materially different. First, the 

Roberts prosecutors had no current reliable lead regarding 

Anita's location; they knew nothing more about Anita's 

whereabouts than that she was "traveling" outside the state 

and had stopped in San Francisco a year earlier. Here, 

however, authorities had a fresh lead from Mrs. Barth. 

Their failure to adequately investigate this fresh lead is not 

comparable to a failure to follow up on the year-old tip that 

Anita had been in San Francisco. Second, the facts of 

Roberts did not trigger heightened Sixth Amendment 

concerns because (i) Anita's testimony was not as crucial to 

the prosecution's case as Barth's was in the instant case, 

and (ii) the Roberts defendant was charged with the

relatively minor crimes of forgery and possession of stolen 

property, not capital murder. Finally, the prosecution in 

Roberts had no connection or relationship with Anita 

comparable to the cooperation agreement in this case. 

IV. 

We conclude that McCandless failed to fairly present his 

double hearsay and prosecutorial vouching claims to

Pennsylvania's courts, and that his unexcused procedural 

default of those claims precludes their review in federal 

habeas corpus. We will also reject McCandless's claim for 

habeas relief based upon Pennsylvania's violation of Article 

V(d) of the IAD because, under our circuit jurisprudence, 

violations of Article V(d) do not justify habeas relief. 

We conclude, however, that the prosecution did not 

satisfy its Sixth Amendment duty to make reasonable good 

faith efforts to obtain Barth's presence at trial. Accordingly, 

we will reverse the judgment of the District Court and 

remand with instructions that it order McCandless's release 

from confinement unless he is retried and convicted within 

a reasonable time. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23