2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-11-2011 

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1465NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 08

- 4303

_____________ TIMOTHY HANSON,

Appellant

v. SUPERINTENDENT MARTIN L. DRAGOVICH; *TOM CORBETT, ATTORNEY GENERAL OF P ENNSYLVANIA *(Pursuant to Rule 43(c), F. R. A. P.)

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No

. 02

- cv - 00069 ) District Judge: Honorable Kim R. Gibson

______________ Argu ed on Oc tober 20, 2010

______________ Before: HARDIMAN, GREENAWAY, JR., and NYGAARD , Circuit Judges

(Opinion Filed: February 1, 2011 ) Bruce A. Antokwiak , Esquire (argued) Duquesne University School of Law 600 Forbes Avenue Pittsburgh, PA 15282 Counsel for Appellant Trudy G. Lumadue , Esquire (argued) Office of District Attorney 230 East Market Street Clearfield, PA 16830 Counsel for Appellees2 ______________ OPINION

______________ GREENAWAY, JR., Circuit Judge Timothy Hanson (―Tim‖) appeals the M emorandum Order of the United States District Court for the Western District of Pennsylvania adopting the Magistrate Judge‘s Report and Recommendation (―R&R‖) and ordering that Tim ‘s petition seeking the
issuance of a writ of habeas corpus be denied. The Court determined that Tim was not denied effective assistance of counsel. Tim argues that the Court‘s determination was based on an unreasonable application of the law and on an unreasonable determination of the facts in evidence. For the following reaso ns, we will affirm.
I. BACKGROUND We write primari ly for the benefit of the parties and recount only the essential facts. On the afternoon of December 24, 1987, Tim (then fifteen years old ) , his older brother, Tom Hanson (―Tom‖) (then twenty years old), and Tom‘s girlfriend, Betty Jo
Wootan 1 (―Betty Jo‖) (then sixteen years old), were at the Hanson family‘ s house. David Smith, Tom‘s friend, came to the front door of the house as Tim, Tom, and Betty Jo sat in the living room. David was told to go to the back door, by the kitchen, because the front door was stuck. When David went to the kitchen and walked into the house, he was shot

1 As a result of a plea bargain that dismissed charges of interference with the custody of children and corruption of minors, Tom had pled guilty to, and was on probation for, disorderly conduct.3

and killed by a single gunshot from a shot gun that Tom owned. Tim, Tom, and Bett y Jo left the house and walked or ran back and forth between the woods and t he house several times. O ther Hanson family members arrived at t he house shortly after the shooting and contacted local authorities. Helen, a sibling of Tim and Tom, also came to the Hanson house

. Betty Jo left the scen e through the woods and did not return that day. Pennsylvania State Troopers arrived and Tom and Tim came out of the woods and met with the trooper s. After being advised of his Miranda rights, Tim told a trooper that he had b een trying to fix the shotgu n when it fired accidentally. Tim did not agree to have his hands tested to determine whether he had fired a gun recently. Tom told the trooper s that Tim shot David and he allow ed testing of his ha nds to determine whether he had fired a gun recently . Th e test indicated that the levels of chemicals present on his hands were insignificant. Tom also had a burn or mark on the right side of his face that, at trial, the Commonwealth argued was the result of Tom‘s proximity to Tim‘s gunshot blast

. Tim was arre sted that same day, December 24, 1987, and charge d with criminal homicide, in violation of 18 Pa. C.S. § 2501A. F. Cortez Bell and Christopher Shaw of the Clearfield County public defender‘s office were appointed to represent Tim. Judge John K. Reilly, J r. denied counsel‘s motion to certify Tim as a juven ile. H e was tried as an adult. Tom and Betty Jo testified at trial that Tom opened the back door for David and that Tim loaded Tom‘s shotgun, then went into the kitchen, and fired a single shot past
Tom and at David, killing David. Tom and Betty Jo also testified that Tim took David‘s4

glasses and ran into the woods. Tom and Betty Jo said they chased Tim after he ran into the woods and they tried to convince Tim to go back to the house and report the mat ter. They testified that Tim told Helen he would pay her if she drove him to Florida. Tom and Betty Jo said that they di d not know why Tim shot David. At trial, Tim told his counsel, and testified to, a different account of the events than the one he ha d told the trooper s the day of the shooting

— he now said that Tom had accidentally shot David during a prank

. 2 Tim state d that, when David arrived, Tim went with Tom and Betty Jo in to the bedroom and they saw , through the bedroom window, that David was a t the door . According to Tim, Tom suggested the y play ―a little joke‖ on
David

— that Tom would scare him with the shot gun. Tim testified that he opened the door for David and Tom came in to the kitchen with the shotgun. Although Tom intended
to scare Da vid as a prank , Tim stated that he thought the shot gun ―went off ‖ accidentally. (App. a t 611 a .) Tim testified that , on the walks into the wood s after the shooting, Tom had convinced him to take responsibility for the shooting because, as a juvenile, Tim would be trea ted more leniently. Tim said he had lied to the trooper s on the day David was killed when he said the gun went off accidentally as he was cleaning it.

2 During cross

- examination at trial , Tim t estified that he first told defense attorneys this new account during the second day of trial. (App. at 638 a ; 642 a ; 647 a

– 48a. ) Defense counsel repeatedly tried to help Tim remember that he told them on the first day of trial. (App. at 647 a

– 48 a .) Defens e counsel also cross

- examined Tom on the first day of trial in a manner indicating that the theory of the case at that time was consistent with Tim‘s new account. (App. at 171 a (defense counsel asked Tom if he had ―fired that gun,‖ if he was sure he ―didn ‘t tell Tim to take the rap‖ because Tim was a juvenile).) Tim now claims that he was confused about the days and that he told his trial counsel the account of events that he testified to before any testimony began on the first day of trial. (Appellant‘s Br. 52

– 53.)5

Janet Lindberg, Tim‘s sister , and Bertha Hanson, Tim‘s mother , testified that they heard Tom tell Betty Jo, ―if I go down, you‘re going down , too, Bitch .‖ (App. at 653 a ; 659 a .) Tim‘s mother also testified that, on the night of the shooting, Tom told her that he , not Tim, had shot David

. The jury returned a verdict of murder in the first deg ree. On January 17, 1989, Tim received a sentence of life imprisonment without the possibility of parole. In 1993, after his appeal was dismissed because his court

- appointed attorneys had failed to make the necessary filings, Tim filed a pro se Post Convi ction Relief Act (―PCRA‖) petition to have his appellate rights reinstated. An evidentiary hearing was held and Tim‘s PCRA petition was granted

— his appellate rights were reinstated

. On November 18, 1999, the Court of Common Pleas of Clearfield County , Pennsylvania issued an Opinion and Order dismissing Ti m‘s petition under the PCRA and denying all relief.
Pursuant to 28 U.S.C. § 2254, Tim filed a timely, counseled habeas corpus petition to the United States District Cour t on February 25, 2002

. Magist rate Judge Keith A.
Pesto was assigned the matter and issued his R&R denying the habeas petition on September 12, 2008

— more than six years after the petition was filed

. 3 Tim‘s objection s to the R&R were summarily denied by the District Court . Further, the District Court denied Tim‘s Certificate of Appealability (―COA‖) on September 29, 2008. Although Tim sought relief on a number of grounds related to ineffective

3 We are aware of no justification for the shocking delay of over six years between the filing of the habeas corpus petition and the issuance of the Magistrate Judge‘s R&R.6

assistance of counsel, we granted a COA only on the claims arising from: defense counsel so liciting , and failing to object to , Trooper Brown‘s testimony regarding Tim‘ s invocation of his rights to silence and counsel; defense counsel stipulating to evidence regarding Tim‘s juvenile proceeding s; defense counsel so liciting testimony from David‘s girlfriend , Sara Brant ; and defense counsel failing to object to testimony of David‘s mom , Linda Pollard

. We denied the request for a COA on all other issues presented in the request. II. JURISDICTION AND STANDARD OF REVIEW The District Court exercise d jurisdiction over Tim ‘s petition seeking the issuance
of a writ of habeas corp us, pursuant to 28 U.S.C. § 2254. We have jurisdiction to review the District Court‘s denial of the writ , pursuant to 28 U.S.C. § 2253. 4 When reviewing a district court deci sion regarding a petition for a writ of habeas
corpus , filed pursuant to 28 U.S.C. § 2254, we must ―apply the same standards as the District Court, as mandated by the Antiterrorism and Effe ctive Death Penalty Act of 1996 ‖ (―AEDPA‖). Jacobs v. Horn , 395 F. 3d 92, 99 (3d Cir. 2005). Section 2254(d) provides that, where, as here, a habeas petitioner‘s claim was adjudicated on the merits in a state court proceeding, a federal court may grant a habeas corpus petition only if the petitioner establishes that the state court proceedings:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States; or

4 Although Appellant presents arguments regarding his trial counse l‘s failure to object to cross - examination questions asked of Tim, our limited COA does not include this issue.7 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). We must presume that the state court‘s findings of fact are correct unless the findings are not fairly supported by the reco rd or the petitioner rebuts the presumption of correctness with clear and convincing evidence. Jacobs , 395 F.3d at 99 (citing 28 U.S.C. § 2254 (e)(1)); Meyers v. Gillis , 142 F.3d 664, 667 (3d Cir. 1998). A state court decision is contrary to clearly est ablished federal law if it reaches a

―  ̳conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.‘‖ Marshall v. Hendricks , 307 F.3d 36, 51 (3d Cir. 2002) (quoting Williams v. Taylor , 529 U.S. 362, 413 (2000)). A state court decision is an unreasonable application of clearly established federal law if the court ―identifies the correct governing leg al rule from t he Supreme Court‘s cases but unreasonably applies it to the facts of the particular case,‖ ―unreasonably extends a legal pr inciple from the Supreme Court‘s precedent to a new context where it should not apply,‖ or ―unreasonably refuses to extend that princ iple to a new context where it should apply.‖ Gattis v. Snyder , 278 F.3d 222, 228 (3d Cir. 2002) (citing Williams , 529 U.S. at 407). ― To find a stat e court‘s application of Supreme Court precedent  ̳ unreasonable, ‘ the state court decision
must be  ̳ more th an inco rrect or erroneous‘; it must have been  ̳ objectively unreasonable. ‘ ‖ Marshall v. Cathel , 428 F.3d 452, 462 (3d Cir. 2005) (quoting Wiggins v. Smith , 539 U.S. 510, 520 (2003))

.8 III. ANALYSIS For AEDPA purposes, t he clearl y established federal law fo r ineffective assistance of counsel claim s is the two

- prong test in Strickland v. Washington , 466 U.S. 668, 687 (1984). First, the defendant must show that counsel's performance

was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ―counsel‖ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Thi s requires showing that counsel‘ s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. 5 To establish deficiency in counsel performance, a defendant must show that counsel‘s performance ―fell below an objective standard of reasonableness.‖ Id. at 688

. Our scrutiny of co unsel ‘s performance must be highly deferential and we must make every effort ―to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.‖ Id. at 689. There is a strong presumption that counsel‘s performance is within the wide range of reasonable assistance and the defendant must overcome the assumption that the challenged action might be sound trial strategy. Id.

5 Our analysis of the deficiency and prejudice prongs does not have to proceed in any specific order; it is likely often ―easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.‖ Strickland , 466 U.S. at 697.9

To show prejudice, a defendant must demonstrate that the act or omission ―actually had an adverse effect on the defense.‖ Id. at 693. According to Strickland ,

The defendant must show that there is a reasonable pr obability that, but for counsel‘ s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. We must consider the totality of the evidence because ―a verdict or conclusion only weakly suppo rted by the record is more likely to have been affected by errors than one with overwhelming record support.‖ I d

. at 696. S howing that counsel‘s performance was deficient ―requires showing that counsel
made errors so serious that counsel was not functio ning as the  ̳counsel‘ guaranteed the defendant by the Sixth Amendm ent. ‖ Id. at 687 (emphasis added)

. Thus, deficiency may be assessed by considering multiple alleged errors together , rather than requiring that any single error render counsel ineffective

. Similarly, showing that the deficient performance prejudiced the defendant ―requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial

. ‖ Id. (emphasis added). This language implies that , while each alleged error may not individually be prejudicial to the defense, the errors may be prejudicial when combined. Id. Our standard of review is ―doubly deferential‖ because both AEDPA and
Strickland are highly deferential standards. Knowles v. Mirzayance , --- U.S.

---- , ---- , 129 S. Ct. 1411, 1420 (2009). To evaluate whether the Pennsylvania Superior C ourt‘s rejection of Tim ‘s claim either is contrary to, or in volved an objectively un reasonable application of, Strickland ,10

w e begin by determining whether the standar d employed by the state court is ―contrary

to ,‖ or contradicted by , Strickland

. The Superior Court ‘s test presumes that trial counsel was effective and , to rebut that presumption, the petitioner must show:

(1) that the claim is of arguable merit; (2) tha t counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. (App. at 1163 a (cit ing Commonwealth v. Kimball , 724 A.2d 326, 333 (Pa. 1999) ) .) The Superior Court‘s presumption is the same as the presumption in Strickland and the Superior Court divides Strickland ‘s two prongs into three prongs

. Thus, the Superior Court‘s standard is su bstantively identical to Strickland and is not contrary to Strickland

. See Werts v. Vaughn , 228 F.3d 178, 20 2

– 04 ( 3d Cir. 2000) (holding that a Pennsylvania state court applying the Pennsylvania ineffective assistance of counsel standard did not contradic t Strickland ). Next, we determine whether the Superior C ourt ‘s application of the law was

― objectively unreasonable

. ‖ Wiggins , 539 U.S. at 520. A. I nvocation of rights to silence and counsel Tim claims ineffective assistance o f counsel o ccurred during te stimony regarding his invocation of his rights to silence and counsel. At trial , after Trooper Brown (―Brown‖) explained that he had tested Tom‘s hands for gunshot residue on the day of the shooting , the Commonwealth asked why Tim‘s hands were not tested for gunshot residue

. Brown responded, ―he said that he wasn‘t going to permit it, to say anything to us, and he requested his attorney.‖ (App. at 552 a .) Defense counsel did not object and11

direct examination of Brown ended soon after Brown gave this test imony

. On cross examin a tion of Brown , defense counsel stated, ―[i] n relationship to what you just said, it sounds to me like Mr. Hanson exercised his Miranda rights, for his right to speak to an attorney before talking to you, et cetera; is that right?‖ (App. at 553 a .) Tim claims that his counsel was ineffective when neither of them objected to the Commonwealth‘s questions and when defense counsel mentioned Tim‘ s invocation of his Miranda rights.

1. Refusing the gunshot residue test The court was not objec tively unreasonable in concluding that defense counsel‘s failure to object during Brow n‘s testimony was not an error so serious as to render counsel‘s performance deficient

. T he trooper testified that Tim did not have his hands tested because ―he said he wasn‘t going to permit it .‖ (App. at 552 a .) Under Supreme Court and Pennsylvania precedent, the testimony that Tim did not p ermit a gunshot residue test does not implicate Tim‘s right to silence because the admission into evidence of a defendant‘s refusa l to submit to a physical test does not offend the right against self

incrimination under the Fifth Amendment. See South Dakota v. Neville , 459 U.S. 553, 564 (1983); Commonwealth v. Monahan , 549 A.2d 231, 235

– 36 (Pa. 1988).

2. Invoking right to silence After being asked why the gunshot residue test was not conducted on Tim‘s hands, Brown answered that Tim said ―he wasn‘t going to . . . say anything to us, and he requested his attorney.‖ (App. at 552 a .) Because Brown‘s statement was an unso licited passing r eference to Tim‘s invocation of his rights, the Commonwealth‘s question is not inherently objectionable . Even if counsel was deficient in not objecting and not moving12

for a mistrial, the Superior Court‘s finding that this testimony did not result in actua l prejudice is not objectively unreasonable. Shortly before invoking his rights to silence and to an attorney, Tim confessed to trooper s that he was holding the shot gun when it went off

. Because Tim had already confessed, the jury would have no reason t o assume Tim‘s silence demonstrated guilt.
The abundance of other evidenc e of Tim‘s guilt, including Tom ‘s and Betty Jo ‘s testimony , Tim‘s initial statement to the troopers , and the results of Tom‘s gunshot residue test, make it reasonable to conclude tha t the outcome of the trial would have been the same even without this alleged error. Thus, the court was not objectively unreasonable by concluding that the prejudice prong was not met. Additionally, t he court was not objectively unreasonable in finding t hat defense counsel‘s perfo rmance was not deficient when counsel referenced and solicited testimony regarding Tim‘s invocation of his right to remain silent. On cross - examin ation of a witness who referred to Tim‘s invocation of his rights to silence and c ounsel, Tim‘s counsel said, in part, ―it sounds to me like Mr. Hanson exercised his Miranda rights, or his right to speak to an attorney before talking to you, et cetera; is that right?‖ (App. at 553 a .) Trial counsel stated that he referred to Tim‘s invo cation of his rights ―to convey that [Tim] exercising his constitutional rights was a proper and common thing to do‖ ―in an effort to minimize any negative inference.‖ (App. at 1152a.) After Trooper Brown responded to the question, defense counsel ask ed , ―[h] ad Corporal Wrable already spoken to [Tim], however, if you know, prior to your arrival?‖ (App. at 553a.) This second cross - examin ation question shows the broader context of the13

question regarding Tim‘s invocation of his Miranda rights. D efense co unsel was likely trying to emphasize that Tim had already been cooperative and made a statement to the troopers prior to invoking his right to silence. Moreover, it is reasonable for a court to conclude that the statements on direct examination regarding Tim ‘s invocation were

unso licited passing reference s . On these facts, a court could reasonably conclude that Tim‘s defense counsel‘s reference to the invocation could be a strategic choice that fell within the wide range of reasonable and effective assist ance of counsel

. Because the court was not objectively unreasonable in finding that Tim did not establish error regarding his counsel‘s reference to his invocation, we need not reach the issue of prejudice.
B. Stipulation to evidence regarding Tim’s juvenil e proceedings 6 During Tom‘s testimony at trial , Tom testified that, before the shooting, he was talking to Tim about ―turning himself in‖ to ―the law

. ‖ (App. at 76a.) Defense counsel made no objection. Next, t he Commonwealth asked why Tim and Tom were d iscussing Tim turning himself in. Defense counsel objected

. 7 T he Commonwealth asked no further questions about Tim‘s juvenile proceeding s during Tom‘s testimony

. Later on during the trial, d efense counsel stipulated to reading certain statements that s pecific state t roopers would have testified to and introduced into evidence , had they indeed testified

. Specifically, defense counsel stipulated to testimony that would have

6 Although both Appellant and Appellees refer to this issue as a stipulation to admit Tim‘s ―juvenile record,‖ there was no juvenile record admitted int o evidence under this stipulation. 7 There is a dispute regarding whether the objection was overruled or sustained, which we need not resolve now.14

been given by Sergeant Smeal

— that visitation re cords at the Clearfield County J ail indicated that Helen Gallaher , Tim‘s sister, visited Tim at the jail six times from 1987 to 1988

. Defense counsel also stipulated to testimony that would have been given by Trooper Zimmerman

— that he had gone to the Hanson home twice in December 1987 , looking for Tim because Tim , on December 2, 1987 , had left a juvenile facility where he had been placed the previous day by court order as a result of a separate juvenile ch arge that was irrelevant to the instant case. 8 Appellant claims that defense coun sel stipulating to these statements regarding Tim‘s juvenile proceedings was deficient performance of counsel that prejudiced the defense even though Tom had already testified without objection, prior to the stipulation, regarding Tim potentially turning h imself in to the law. Appellant‘s COA did not claim
ineffective assistance of counsel due to defense counsel‘s failure to object to Tom‘s first reference to Tim turning himself in to the law. The Superior C ourt was not objectively unreasonable in concluding that entering
into this stipulation was not deficient performance

. Prior to the stipulation, the court had allowed testimony regarding Tim running from the house after the shooting, pursuant to Pennsylvania case law , and the court had informed the jury that Tim‘s flight could be evidence of his consciousness of guilt. The court found that defense counsel entering

8 Defense counsel stipulated to testimony that would have been given by other troopers, but this other evid ence is not related to Tim‘s juvenile proceedings and is not at issue on appeal. Defense counsel stipulated that Trooper Davidson would testify that he had been to the Hanson home twenty

- three times during 1987 because he was looking for Carl Hanson, Jr. , Tim‘s brother, on unrelated charges and that Trooper Davidson usually heard voices coming from inside the home, but nobody would answer the door for him.15

into the stipulation was a strategic choice to explain that Tim went into the woods after the shooting , not because he was the shoote r, but because he did not want to be detained due to his juvenile proceedings

. Tim asserts that defense counsel objecting to th e questions regarding his juvenile proceedings during Tom‘s testimony demonstrates that stipulating to the admission of
similar testimony later was ineffective assistance of counsel. The M agistrate J udge opined that this shift in strategy could be explained by defense counsel not learning of
T i m‘s new account of events until the second day of trial, which was after Tom‘s
testimon y. Even though Tim‘s counsel was aware of his new description of the shooting shortly before Tom testified on the first day of trial , defense counsel might not have had sufficient time to develop, or act according to, the new theory of the case during Tom ‘s testimony. Alternatively, defense counsel could have made a strategic decision to object to Tom‘s testimony while later stipulating to testimony regarding similar topics. 9 Tim‘s counsel could have stipulated to the additional information as part of a strategic decisi on because Tom‘s testimony that he talked to Tim about Tim ―turning himself in‖ to ―the law‖ was already in evidence and because it is likely that the evi dence in the stipulation would have b e en admitted under Pennsylvania precedent . Evid ence of criminal charges, crimes, wrongs, or acts can be admissible for the limited purpose of establishing motive.
See , e.g. , Commonwealth v. Glover , 286 A.2d 349 , 351 (Pa. 1972)

. ―It is well settled that

9 Defense counsel may have objected to similar testimony from Tom because Tom may have testified to incriminating facts or statements made by Tim that were not included in the testimony to which defense counsel later stipulated.16

 ̳[e] vidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible.‘ ‖ Commonwealth v. Glover , 286 A.2d 349 , 351 (Pa. 1972) (citing Commonwealth v. Kravitz , 161 A.2d 861, 870 (1960), cert. denied , 365 U.S. 846 (1961) )

. This evidence regarding Tim‘s juvenile proceedi ngs would likely have be en admissible under Pennsylvania case law

. 10 Tim argues that d efense counsel‘s failure to request a limiting instruction for this evidence was deficient performance of counsel. However, the statement was merely that Tim had ―a sepa rate juvenile charge, that juvenile charge havi ng nothing to do with the case,‖ so it is unlikely that this statement

w ould unduly prejudice Tim‘s defense or lead a jury to make improper conclusions regarding character in a murder trial

. Because the stat e court‘s decision regarding the stipulation was not objectively unreasonable , we need not inquire into prejudice. Even if defense counsel did not stipulate to the admission of the juvenile proceedings , the fact that the evidence was likely admissible to prove motive and that Tom testified to talking with Tim about Tim ―turning himself in‖ to ―the law‖ would have mad e it reasonable for the state court to conclude that the trial result would have been the same , even without the stipulation

. 11
C. Testimony of Sara Brant

10 Although Tim claims that admission of this evidence would have be en prohibited by 42 Pa. C.S.A. § 6354, which, at the time Ha nson was tried, prohibited admission of juvenile dispositions against a defendant in a criminal proceeding, it is not clear that evidence regarding Hanson‘s escape from a juvenile facility would have been barred. Consequently, under these circumstances, H anson‘s attorney could have entered into the stipulation for strategic reasons. 11 On direct examination, defense counsel solicited testimony from Tim regarding his ―burglary charge‖ and Tim leaving the juvenile facility. (App. at 597a.)17

At trial, the Commonwealth asked Tom about a statement he allegedly made to David, David‘s girlfriend (Sara Brant ), and David‘s mother (Linda Pollard)

. Defense counsel objected to the question. O utside of the jury‘s presence, the Commonwealth stated that they were trying to introduce st atements Tom allegedly made. Specifically, his statement that, if he and Tim thought ―pigs‖ were at their door, ―they‖ would shoot. (App. at 117 a

– 20 a .) The Court declined to admit the statement because it w as hearsay unless Tim, not Tom, had made the statement. (App. at 120 a .) The Commonwealth
tried , once again, to ask Tom about the statement. Defense counsel objected and, after a sidebar, Tom denied making the alleged statement to Linda Pollard

. Def ense counsel called Sara Brant and so licited testimony from her regarding the same statement. She said that she heard Tom tell David the day before the shooting that David, ―better make sure that they knew who he was when he came or else they‘d shoot.‖ (App. at 592 a

– 93 a .) The Superior Cour t was not objectively unreasonable when it found that defense
counsel so liciti ng this testimony from Sara Brant was n ot deficient performance. The
C ourt found that trial counsel had a ―reasonable strategic basis‖ for this d ecision; trial counsel testified that the testimony fit into Tim ‘s defense theory. (App. at 1165a.) Although Tim argues that this testimony fit the Commonwealth ‘s theory and not the defense theory , it is not objectively unreasonable to conclude that defe nse counsel might have reasonably chosen to use the testimony ―to show that it was more plausible for T om to be the shooter because he was the person who‖ stated th at ―we‘d shoot.‖ (App. at 1165a

– 66a.) That defense counsel objected to the Commonwealth‘s earlier attempts to18

so licit similar testimo ny from Tom does not make counsel‘s subsequent so licitation of this testimony unreasonable. Because the Superior C ourt was not objectively unreasonable i n finding that this

so licitation of testimony was not er ror, we nee d not inquire into prejudice.
D. Testimony of Linda Pollard During the direct examination of Linda Pollard, David‘s mother, the Commonwealth so licited testimony that David had a child ―on the way ‖ and that David had planned to marry Sara Brant. (A pp. at 417 a .) Defense counsel did not object. Tim argues that the lack of objection deprived him of his Sixth Amendment right to counsel. The state court was not objectively unreasonable in finding that the failure to object did not prejudice Tim‘s def ense. Even though this testimony was arguably irrelevant, Tim did not demonstrate that these statements were ―so serious as to deprive the defendant of a fair trial‖ or that, but for the failure to object, the result of the proceeding would have been diff erent. Strickland , 466 U.S. at 687. Because the state court was not objectively unreasonable in reach ing its conclusion regarding prejudice on this concern , we nee d not inquire into whether defense counsel was deficient

.19

E. The a ggregated alleged defici encies Finally, Tim argues that the state court unreasonably concluded that counsel‘s errors, in the aggregate, were prejudicial under Strickland

. 12 This argument is foreclosed by the fact that, with the potential exception of the testimony of Linda Pollar d, we have upheld the state court‘s findings that counsel‘s performance was not otherwise deficient. Here, counsel‘s alleged errors, individually or collectively, do not amount to a constitutional violation.
IV. CONCLUSION For the reasons set forth above , we will affirm.

12 The language of Strickland implies that, while alleged errors may not individually be deficient performance of counsel or prejudicial to the defense, the errors may be deficient performance of counsel or prejudicial when combined. See Strickland , 466 U.S. at 687 (refer ring to analyzing errors, in plural, in the standard for ineffective assistance of counsel

— showing that counsel‘s performance was deficient ―requires showing that counsel made errors so serious that counsel was not functioning as the  ̳counsel‘ guaranteed the defendant by the Sixth Amendment,‖ and showing the deficient performance prejudiced the defendant ―requires showing that counsel‘s errors were so serious as to deprive the def endant of a fair trial‖ (emphase s added)).