1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-20-1999

Buehl v. Vaughn

Precedential or Non-Precedential:

Docket 97-1241

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Recommended Citation

"Buehl v. Vaughn" (1999). 1999 Decisions. Paper 14.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/14
Filed January 20, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1241 

ROGER PETER BUEHL, 

 Appellant, 

v. 

DONALD VAUGHN, SUPERINTENDENT OF SCIGRATERFORD; THE DISTRICT ATTORNEY FOR 

MONTGOMERY COUNTY; THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil Action No. 95-cv-05917) 

(District Judge: Honorable John J. Padova) 

Argued January 28, 1998 

Before: MANSMANN, COWEN, and ALITO, Circuit Judges 

(Opinion filed: January 20, 1999) 

 David Rudovsky (Argued) 

 Kairys, Rudovsky, Epstein, 

 Messing & Rau 

 924 Cherry Street, Suite 500 

 Philadelphia, PA 19107 

 Attorney for Appellant 
 Mary MacNeil Killinger (Argued) 

 Executive Assistant District Attorney 

 Chief, Appellate Division 

 District Attorney's Office 

 Montgomery County Courthouse 

 Norristown, PA 19404 

 Attorney for Appellees 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

Roger Peter Buehl appeals the denial of his petition for a 

writ of habeas corpus. Convicted in state court for a triple 

homicide, Buehl claims that his due process rights were 

violated and that he received ineffective assistance of 

counsel at trial and on direct appeal. Because we conclude 

that Buehl's due process rights were not violated and that 

his ineffective assistance claims fail to meet the standard of 

Strickland v. Washington, 466 U.S. 668 (1984), we affirm 

the judgment of the District Court. 

I. 

On July 16, 1982, police found the bodies of Courtland 

Gross, his wife Alexandra Gross, and their housekeeper 

Catherine VanderVeur shot to death at the Gross estate in 

Montgomery County, Pennsylvania. The police determined 

that the murders had occurred in the afternoon or early 

evening of July 15. The killings appeared to have been 

carried out as part of a robbery, since drawers had been 

pulled out of cabinets in several rooms and a cloth covering 

a safe in the basement had been pulled aside to reveal the 

dial and handles. The safe was unopened. 

The victims at the Gross residence had been shot with 

.380 caliber bullets, and the police recovered six .380 

caliber cartridge casings from the rooms in which the 

victims were found. The police found Mr. Gross's body near 

the top of a flight of steps that led to the cellar. He had 

been shot in the right foot, the abdomen, and the cheek. 

Mrs. Gross had been shot in the elbow and the eye. Mrs. 

 2 
VanderVeur, who was found tied to a chair in a bedroom, 

had been shot once in the head. There were no 

eyewitnesses to these murders, but the Commonwealth

assembled the following circumstantial evidence against 

Buehl. 

In June 1982, an acquaintance of Buehl's named Francis 

Kelly purchased a .380 caliber Walther PPK handgun. Kelly 

test-fired the gun at a junkyard on or about June 7.1 In 

August, after the murders of the Gross household, Kelly 

returned to the junkyard with a police officer who retrieved 

two .380 shell casings for ballistics analysis. This analysis 

revealed that the shell casings from the junkyard were fired 

from the gun used in the murders at the Gross estate. 

On July 7, Joseph Dwyer stole a red Buick Skylark in the 

City of Philadelphia. Dwyer damaged the Buick's front left 

tire and lost the tire's hubcap, and he then sold the car to 

Kelly the next day. On July 10, Kelly lent both the Walther 

PPK handgun and the Buick to Buehl. Dwyer saw Buehl in 

possession of the PPK and the Buick that same day. Buehl 

told Dwyer that he intended to commit robberies on Pine 

Street in Philadelphia and in Montgomery County, where he 

would force people to "open the safe." Buehl invited Dwyer 

to help in these robberies, but Dwyer declined. 

On July 13, Buehl purchased 50 cartridges of 

ammunition for the PPK at Pearson's Sporting Goods Store. 

Because Buehl initially purchased ammunition that was 

incompatible with the PPK, he exchanged his original 

purchase for compatible ammunition and received a credit 

slip in the amount of $4.50. Buehl signed the form required 

to buy the ammunition, but his signature was illegible. The 

store's assistant manager therefore asked for Buehl's 

driver's license and printed Buehl's name on the form. This 

manager later identified Buehl as the man who purchased 

the ammunition. 

After Buehl purchased ammunition for the PPK, he used 

the Buick and the gun to rob the Good Scents Shop on Pine 

Street in Philadelphia. During the robbery, Buehl shot 

Nathan Cohn in the ankle and exclaimed: "I'm not playing 

_________________________________________________________________ 

1. All of the dates mentioned are in 1982. 

 3 
around." As Buehl left the store, he told an employee: "If 

anybody comes out here, I'll blow your eyes out." Buehl was 

observed leaving the store and driving away in the Buick. 

Buehl admitted to this robbery, and a ballistics analysis 

determined that the shell casings ejected from the PPK at 

the store were fired in the same gun as that used at the 

junkyard and the Gross residence. 

On July 15 at around 2:00 p.m., David Mazzocco 

witnessed a red car that was missing its front left hubcap 

driving slowly down Berks Road in Worcester Township. 

Around this same time, Richard Kirkpatrick returned home 

to find a red Buick Skylark parked in the driveway of his 

home on Berks Road. When he entered his home, 

Kirkpatrick was accosted by a man with a pistol. This 

gunman told Kirkpatrick: "I've shot two other people. I'll 

shoot you also. I'll start with your leg and work up." He also 

warned Kirkpatrick: "I'm not fooling." The robber took 

jewelry from Kirkpatrick's house and fled. Kirkpatrick 

initially identified a photograph of someone other than 

Buehl as the robber and made no identification at Buehl's 

trial. However, on the same day as the Kirkpatrick robbery, 

Buehl sold jewelry stolen from the Kirkpatrick home to a 

jeweler in Philadelphia. Moreover, a ballistics expert 

determined that the .380 cartridge casings found at the 

Kirkpatrick home came from the gun that was fired at the 

junkyard, the Pine Street robbery, and the Gross residence. 

The Kirkpatrick home is less than a half hour away by 

car from the Gross residence. At approximately 2:30 p.m. 

on July 15, an elderly woman wearing a straw hat and a 

flowered dress bought a box of Domino powdered sugar at 

the Liberty Bell Meat Market near the Gross residence. 

When the police discovered Mrs. Gross's body at her home, 

she was wearing a flowered dress, and a straw hat was 

found near her head. A box of Domino sugar was in a paper 

bag with the receipt on the kitchen counter. Catherine 

Fitzgerald, who cleaned house for the Gross family, testified 

that Mrs. Gross always put groceries away as soon as she 

came home. 

Between 3:30 and 4:00 p.m. on July 15, Buehl arrived at 

Joseph LaMotte's office in an agitated state and asked if he 

could borrow LaMotte's gray Datsun because he had "just 

 4 
pulled a job" and "had to go back and wipe off the 

fingerprints." Buehl told LaMotte that he could not drive 

the red Buick because he was afraid of being stopped by 

the police. When LaMotte refused to loan Buehl his car, 

Buehl said: "Look, this is my life we're talking about. I just 

wasted three people and I want your car." LaMotte noticed 

that Buehl had a gun in his waistband and asked where 

Buehl had gotten it. Buehl replied that he had obtained it 

from Kelly. LaMotte loaned Buehl his car but said that he 

needed it back at about 5:00 p.m. Buehl told LaMotte that 

he would be driving to Conshohocken. A police officer 

testified at trial that the Conshohocken exit of the 

Schuylkill Expressway is about 1.5 miles from the Gross 

residence. The officer also testified that it was possible to 

drive from the Gross residence to LaMotte's office in 36 

minutes, observing all speed limits. At about 4:45 p.m., 

Buehl called LaMotte to say that he was on the way back. 

At about 5:00 p.m., a witness near the Gross residence 

observed a small gray car that appeared to be a Datsun 

speeding toward the expressway. Buehl returned to meet 

LaMotte near his office between 5:00 and 5:30 p.m. Buehl 

still had a pistol in his waistband. LaMotte and Buehl then 

picked up Mary Treat, who testified that Buehl looked 

nervous. 

On July 17, Buehl called LaMotte from Atlantic City and 

asked him about "any big burglaries or anything on the 

news." When LaMotte said that he didn't remember any 

such news, Buehl said: "Think. It's important." LaMotte 

then inquired whether Buehl knew anything about an 

attempted burglary in which three people were killed, but 

Buehl did not answer. 

On that same day, Buehl met a man named Duon Miller

in Atlantic City. Miller noticed that Buehl had in his 

possession a gold money clip engraved with the image of St. 

Christopher. Mrs. Gross carried a gold money clip with 

such an engraving, but it was missing after her murder. 

Miller testified that Buehl told him that he had killed people 

with a PPK and had thrown it into a lake or river. Buehl 

asked Miller if he had ever heard of the Gross family, and 

he offered Miller the gold St. Christopher money clip. Miller 

testified that he and Buehl argued about money and that 

 5 
Buehl threatened to "get his PPK and come back and blow 

[Miller] away." 

Peter Ross met Buehl on July 19 in the Tropicana Hotel 

in Atlantic City. Ross observed Buehl arguing with Miller 

and threatening to kill him with a PPK. Buehl told Ross 

that he had Miller's vehicle registration and thus could 

track Miller down and kill him. Buehl also told Ross that he 

had killed people before, and he asked if Ross wanted him 

to kill anyone. 

Buehl was arrested on July 30, 1982 for burglary. At the 

time of his arrest, Buehl had in his possession the credit 

slip from Pearson's Sporting Goods Store; a paper with 

Miller's name, address and phone number; and Miller's 

vehicle registration. A police officer testified at trial that, 

while Buehl was being transferred to Broadmeadows 

prison, Buehl asked one of the detectives if the police could 

match shell casings. 

Based on this evidence, Buehl was convicted of thefirst 

degree murder of Mr. and Mrs. Gross and Mrs. VanderVeur,2 

and he was sentenced to death. The Pennsylvania Supreme 

Court affirmed Buehl's conviction on direct review.

Commonwealth v. Buehl, 508 A.2d 1167 (Pa. 1986). Buehl 

then filed a petition under the Pennsylvania Post Conviction 

Relief Act (PCRA), which was denied by the state trial court. 

The Supreme Court of Pennsylvania affirmed the trial 

court's decision. Commonwealth v. Buehl, 658 A.2d 771 (Pa. 

1995). Thereafter, Buehl filed a petition for a writ of habeas 

corpus in federal court, seeking relief with respect to both 

the guilt and penalty phases of the state proceedings. The 

District Court granted habeas relief with respect to the 

penalty phase of Buehl's trial and ordered a new penalty 

hearing. The Commonwealth did not appeal that ruling. 

However, the District Court denied Buehl's petition insofar 

as it sought a new trial on the guilt phase of the state 

proceedings, and Buehl then took the present appeal. 

_________________________________________________________________ 

2. He was also convicted of several lesser offenses. 

 6 
II. 

A. Buehl's ineffective assistance of counsel claims. We 

turn first to Buehl's contention that his Sixth Amendment 

rights were violated because his trial and appellate counsel 

were ineffective. Because Buehl filed his federal habeas 

petition prior to the enactment of the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA), this case 

must be decided under the law as it existed before the 

AEDPA became effective. See Lindh v. Murphy, 117 S. Ct. 

2059, 2068 (1997) (stating that the AEDPA's amendments 

to Chapter 153 of Title 28 generally apply only to cases filed 

after the AEDPA became effective); Death Row Prisoners of 

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

(concluding that Pennsylvania is not an "opt-in" state for 

purposes of the AEDPA and that therefore the AEDPA's 

amendments to Chapter 154 of Title 28 do not apply to 

habeas petitions in capital cases from Pennsylvania). Under 

that law, ineffective assistance of counsel claims present 

mixed questions of law and fact. See Berryman v. Morton, 

100 F.3d 1089, 1095 (3d Cir. 1996); McAleese v. 

Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993). State court 

findings of fact are presumed correct if they are fairly 

supported by the record, see 28 U.S.C. S 2254(d) (1994); 

Berryman, 100 F.3d at 1094, but "[a]n effectiveness claim 

require[s] the application of a legal standard to the 

historical-fact determinations," and thus the ultimate 

question whether counsel was effective is a uniquely legal 

conclusion subject to de novo review. See id. at 1095 

(quoting Townsend v. Sain, 372 U.S. 293, 310 n.6 (1963)); 

United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir.), cert. 

denied, 516 U.S. 890 (1995). 

We review a claim of ineffective assistance of counsel 

under the two-pronged test announced in Strickland v. 

Washington, supra. Under that standard, the defendant 

must first show that his counsel's performance was so 

deficient that it fell below an objective standard of 

reasonableness under prevailing professional norms. 466 

U.S. at 688. "This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

`counsel' guaranteed the defendant by the Sixth 

Amendment." Id. at 687. In evaluating counsel's 

 7 
performance, we are "highly deferential" and "indulge a 

strong presumption" that, under the circumstances, 

counsel's challenged actions "might be considered sound 

. . . strategy." Id. at 689; see also Sistrunk v. Vaughn, 96 

F.3d 666, 670 (3d Cir. 1996). Because counsel is afforded 

a wide range within which to make decisions without fear 

of judicial second-guessing, we have cautioned that it is 

"only the rare claim of ineffectiveness of counsel that 

should succeed under the properly deferential standard to 

be applied in scrutinizing counsel's performance." United 

States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). 

If a defendant succeeds in establishing that his or her 

counsel's performance was deficient, the defendant must 

then show that the deficient performance prejudiced the 

defense. "This requires showing that counsel's errors were 

so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable." Strickland, 466 U.S. at 687. To 

satisfy this test, it must be shown that "there is a 

reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome." Id. at 694. Both prongs of the Strickland test 

must be met before the defendant may obtain relief. United 

States v. Nino, 878 F.2d 101, 103-104 (3d Cir. 1989). 

B. Trial counsel's alleged failure to request a limiting 

instruction. Buehl's first Sixth Amendment claim is that his 

trial counsel was constitutionally ineffective in failing to 

request a limiting instruction with respect to certain "other 

crimes" evidence. The Commonwealth introduced evidence 

of the Pine Street and Kirkpatrick robberies to identify 

Buehl as the killer,3. and at this stage, Buehl does not 

maintain that the admission of this evidence to establish 

identity was improper. Buehl contends, however, that his 

trial attorney was ineffective because he neglected to 

request a limiting instruction. The District Court assumed 

that Buehl's trial counsel failed to request a limiting 

_________________________________________________________________ 

3. Buehl argues that his trial attorney was ineffective in failing to 

object 

to inadmissible evidence regarding other crimes and bad acts. We 

address this argument separately in part III of this opinion. 

 8 
instruction and stated that this failure was a "serious lapse 

in . . . assistance." Buehl v. Vaughn, No. 95-5917, slip op. 

at 37 (E.D. Pa. Dec. 31, 1996). However, the District Court 

concluded that Buehl did not receive ineffective assistance 

of counsel because his defense was not sufficiently

prejudiced to satisfy the second prong of the Strickland test. 

The Court stated that "the evidence of [Buehl's] guilt was so 

strong that it rendered any such error harmless and[thus] 

there was no prejudice." Id. 

As noted above, the first issue in analyzing Buehl's 

ineffectiveness claim is whether his trial counsel's 

performance fell outside the wide bounds of reasonably 

competent assistance. When evidence of a defendant's other 

crimes is introduced to show identity, there is"sometimes 

. . . a substantial danger of unfair prejudice" because the 

jury may consider the evidence as proof of bad character or 

propensity to commit the crime charged. United States v. 

Murray, 103 F.3d 310, 316 (3d Cir. 1997), cert. denied, 119 

S. Ct. 254 (1998). To alleviate this risk, counsel may 

request a cautionary instruction. See generally Lesko v. 

Owens, 881 F.2d 44, 55 (3d Cir. 1989), cert . denied, 493 

U.S. 1036 (1990). In some circumstances, such an 

instruction may be strongly advisable; in others, counsel 

may reasonably conclude that it is strategically preferable 

to omit such a request since the instruction might have the 

undesired effect of highlighting the other crimes evidence. 

In this case, there has been some uncertainty throughout 

Buehl's post-trial litigation as to whether his trial attorney 

did in fact request a limiting instruction. As the District 

Court noted, the Court of Common Pleas, in ruling on 

Buehl's PCRA petition, stated that Buehl's lawyer requested 

a limiting instruction with regard to the Pine Street and 

Kirkpatrick robberies but that the trial court inadvertently 

neglected to give one. See Buehl v. Vaughn, No. 95-5917, 

slip op. at 37 & n.7 (E.D. Pa. Dec. 31, 1996). The District 

Court, however, assumed that the Court of Common Pleas 

was in error on this point because, when the Pennsylvania 

Supreme Court reviewed the Court of Common Pleas' 

decision on appeal, the Justices appeared to take it for 

granted that Buehl's trial counsel had not sought such an 

instruction. See id. 

 9 
From our review of the record, we conclude that Buehl's 

trial counsel did in fact request that the trial judge caution 

the jury about the proper use of the evidence in question. 

The record contains a colloquy between trial counsel and 

the court that was conducted in chambers following the 

jury charge. In that discussion, Buehl's counsel complained 

that he had previously asked the court "to instruct the jury 

that [the murders at the Gross estate] have nothing to do 

with [the robberies at] Worchester Township or Pine Street" 

but that the court neglected to give this instruction. Joint 

App. at 180-81. The judge responded that he realized that 

he had "not restricted [the jury's] purview to the homicides 

of the Grosses." Id. at 181. This colloquy is somewhat 

confusing because it refers to a request that Buehl's 

counsel apparently made in an unrecorded pre-instruction 

conference and because the objection was bound up with a 

discussion of a separate issue, i.e., whether the judge's 

charge had improperly implied to the jury that the 

homicides legally qualified as murders. Nevertheless, we 

believe that the record shows that Buehl's counsel did in 

fact request that the trial judge instruct the jury on the 

proper use of the evidence of Buehl's other crimes.4 The 

_________________________________________________________________ 

4. Buehl's counsel requested that the court address his objections by 

cautiously instructing the jury in a way that would avoid "highlighting" 

the court's alleged errors. Joint App. 181. The court's clarifying 

instruction stated: 

 If I inadvertently used any loaded nouns, pronouns or adjectives 

let 

 me caution you that all the charges surround incidents alleged to 

 have occurred on 7/15/82 at 1230 Arrowmink Road, the residence 

 of Mr. and Mrs. Courtland Gross and Catherine VanderVeur. The 

 charges arise out of the alleged three killings and with respect to 

the 

 responsibility, degree and proof of these alleged crimes are for 

you, 

 the jury, as fact finders and are to be determined from the 

evidence 

 and the evidence alone. Any language by me or counsel referring to 

 these incidents are terms used by me or counsel, and are not to 

 infringe on your fact finding function in any way whatsoever. 

Joint App. at 184-85. 

This instruction only briefly cautioned the jury to focus on the killings 

at the Gross residence and not any acts committed elsewhere. However, 

Buehl has taken the position that his counsel never requested a limiting 

instruction; he has not argued that his counsel was ineffective for 

failing 
 10 
trial judge responded to this objection by giving a brief 

supplementary instruction that Buehl has not challenged in 

this appeal. 

As stated above, when a state prisoner's habeas petition 

alleging ineffective assistance of counsel is considered 

under pre-AEDPA law, state court findings of fact made in 

the course of determining the ineffectiveness claim are 

subject to deference so long as they are fairly supported by 

the record. See, e.g., Berryman, 100 F.3d at 1094-95. Here, 

although the Pennsylvania Supreme Court stated that

Buehl's counsel failed to request a cautionary instruction, 

the Court did not discuss the record or acknowledge that 

the Court of Common Pleas had found that trial counsel 

made such a request, see Buehl, 658 A.2d at 777-79, and 

our review of the record convinces us that the Pennsylvania 

Supreme Court's contrary statement is not fairly supported 

by the record. Accordingly, since the record reveals that 

Buehl's counsel did request a limiting instruction and that 

the trial court was aware of his request, we reject Buehl's 

argument that his counsel was ineffective for failing to 

request an instruction. 

Moreover, even if the manner in which trial counsel

handled the issue of the limiting instruction fell below Sixth 

Amendment standards, we agree with the District Court's 

conclusion that Buehl cannot satisfy Strickland's prejudice 

prong. See Buehl, No. 95-5917, slip op. at 37, 54-59 (E.D. 

Pa. Dec. 31, 1996).5 In view of the magnitude of the 

(Text continued on page 13) 

_________________________________________________________________ 

to object to this remedial instruction. Moreover, given counsel's 

reasonable concern that the court not highlight the evidence of other 

crimes or the court's use of the term "murders," the failure to object to 

the instruction would not fall outside the wide bounds of professionallycompetent assistance. 

5. Noting that "[t]he verdict in this case had overwhelming support," the 

District Court summarized the evidence as follows: 

 Petitioner admitted to having committed the robbery at the Good 

 Scents Shop with a Walther PPK, and the bullet casings found at 

 that site were fired from the same gun that was used in crimes two 

 days later at the Kirkpatrick residence and the Gross estate. On 

the 

 day of the Good Scents Shop robbery, Petitioner purchased 

 ammunition for the Walther at a sporting goods shop. 

 11 
 On the afternoon of the murders, Petitioner came to Joseph 

 LaMotte's office asking to borrow LaMotte's car. He told LaMotte he 

 had "just pulled a job" and "had to go back and wipe off the 

 fingerprints." When LaMotte refused his request, Petitioner said, 

 "Look, this is my life we're talking about. I just wasted three 

people 

 and I want your car." LaMotte noticed that Petitioner had a gun in 

 the waistband of his jeans. LaMotte lent Petitioner his car, a 

small 

 grey Datsun, and told him he needed the car back about 5:00 p.m. 

 A car matching the description of the one LaMotte lent Petitioner 

 was seen speeding from the direction of the Gross estate toward the 

 direction of the expressway to Philadelphia at about 5:00 p.m. on 

 the day of the murders. Petitioner returned LaMotte's car between 

 5:15 and 5:30. 

 There was evidence linking Petitioner to the robbery at the 

 Kirkpatrick residence, which was committed on the same afternoon 

 as the murders at the Gross estate and with the same gun. The day 

 of the robbery at the Good Scents Shop, Petitioner told LaMotte he 

 was driving a red Buick, and LaMotte saw the car from his office 

 window. A red Buick Skylark had been stolen several days before 

 the robbery at the Good Scents Shop; at the time it was recovered, 

 it had a missing left front hubcap. A similar car had been seen 

near 

 the Good Scents Shop at the time of the robbery there. A witness 

 saw a man he later identified as Petitioner run from the area of 

the 

 Good Scents Shop at the time of the robbery and speed away in a 

 red Buick Skylark. The man, whom the witness later identified as 

 Petitioner, was carrying a shopping bag. A similar red car, missing 

 a left front hubcap, was also seen on Kirkpatrick's street and a 

red 

 Skylark was seen at the Kirkpatrick residence at about the time of 

 the robbery there. Items stolen at the Kirkpatrick and Gross 

 residences were linked to Petitioner. The evening of the robbery at 

 the Kirkpatrick residence, Petitioner sold some jewelry to a 

jeweler 

 in Philadelphia, and most of it was later identified as having been 

 stolen in the robbery at the Kirkpatricks' residence. A gold St. 

 Christopher money clip that Mrs. Gross always used was missing 

 when her body was found. Duon Miller testified that Petitioner had 

 tried to give him a gold St. Christopher money clip, that he had 

 refused, but that he later found the clip in his car and put it in 

his 

 brief case. Another witness, Eros Peter Simone, saw such a money 

 clip in Miller's briefcase in Zurich some days later. 

 There were similarities in the crimes committed at the Good Scents 

 Shop, the Kirkpatrick residence, and the Gross estate. In all 

three, 

 robbery appeared to be the motive, the same gun was used, and in 
 12 
evidence that the Commonwealth presented, Buehl cannot 

show that the absence of a limiting instruction deprived 

him a "a fair trial, a trial whose result is reliable." 

Strickland, 466 U.S. at 687. 

It is firmly established that a court must consider the 

strength of the evidence in deciding whether the Strickland 

prejudice prong has been satisfied. In Strickland, the 

Supreme Court emphasized that "a court hearing an 

ineffectiveness claim must consider the totality of the 

evidence before the judge or jury." Id. at 695. This is 

necessary because Strickland's prejudice prong requires a 

court to determine whether there is a reasonable 

probability that, but for counsel's errors, the result of the 

trial would have been different. See Flamer v. Delaware, 68 

F.3d 710, 728, 730 (3d Cir. 1995) (citing Lockhart v. 

Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 842 (1993); 

Strickland, 466 U.S. at 695, 104 S.Ct. at 2068), cert. 

denied, 516 U.S. 1088 (1996); Todaro v. Fulcomer, 944 F.2d 

1079, 1085 (3d Cir. 1991). A court simply cannot make this 

determination without considering the strength of the 

evidence against the accused. As the Supreme Court stated 

in Strickland, "a verdict or conclusion only weakly

supported by the record is more likely to have been affected 

by errors than one with overwhelming record support." 

Strickland, 466 U.S. at 696. We note that every other 

circuit has also recognized that, in analyzing Strickland's 

prejudice prong, a court must consider the magnitude of 

the evidence against the defendant. See, e.g., Huffington v. 

Nuth, 140 F.3d 572, 578 (4th Cir.), cert. denied, 119 S. Ct. 

444 (1998); Totten v. Merkle, 137 F.3d 1172, 1175 (9th Cir. 

1998); United States v. Ortiz, 136 F.3d 161, 166-67 (D.C. 

Cir. 1998); United States v. Prows, 118 F.3d 686, 692-93 

(10th Cir. 1997); Hays v. Alabama, 85 F.3d 1492, 1496 

(11th Cir. 1996), cert. denied, 117 S.Ct. 1262 (1997); United 

_________________________________________________________________ 

 the first two robberies, there was substantial evidence that the 

same 

 car was used. In all three, the robber shot or threatened to shoot 

 someone in the leg or foot, and there was evidence of a plan of 

 shooting a victim first in a lower limb and working up to the head 

 or eye. In addition, there were numerous other more minor items of 

 evidence that further strengthened the prosecution's case. 

Buehl, No. 95-5917, slip op. at 37, 54-59 (E.D. Pa. Dec. 31, 1996). 

 13 
States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996); Scarpa 

v. DuBois, 38 F.3d 1, 16 (1st Cir. 1994), cert. denied, 513 

U.S. 1129 (1995); United States v. Royal, 972 F.2d 643, 650 

(5th Cir. 1992) ("The overwhelming evidence of Defendant's 

guilt further supports our conclusion that he suffered no 

prejudice as a result of his counsel's performance."), cert. 

denied, 507 U.S. 911 (1993); Strouse v. Leonardo, 928 F.2d 

548, 556 (2d Cir. 1991); Otey v. Grammer, 859 F.2d 575, 

580 (8th Cir. 1988), cert. denied, 497 U.S. 1031 (1990); 

Krist v. Foltz, 804 F.2d 944, 947 (6th Cir. 1986). We thus 

agree with the District Court that Buehl is not entitled to 

habeas relief based on trial counsel's failure to request a 

limiting instruction relating to the other crimes evidence.6 

C. Appellate counsel's failure to argue on dir ect appeal 

that trial counsel was ineffective in not seeking a limiting 

instruction. Buehl's next argument is that his right to 

effective assistance of counsel on direct appeal, see Evitts v. 

Lucey, 469 U.S. 387, 393-94 (1985), was violated because 

the attorney who represented him at that stage failed to 

argue that trial counsel had rendered ineffective assistance 

in neglecting to request the cautionary instruction

discussed above. In making this argument, Buehl relies 

chiefly on the manner in which the Pennsylvania Supreme 

Court treated this argument when Buehl raised it in his 

appeal from the denial of his PCRA petition. Six justices 

heard the appeal, and as previously noted, all of them seem 

to have proceeded on the erroneous assumption that 

_________________________________________________________________ 

6. In arguing that the Strickland's prejudice prong is met in this case, 

Buehl contends that in his appeal from the denial of PCRA relief a 

majority of the Justices of the Pennsylvania Supreme Court concluded 

that this prong was satisfied. Buehl's brief (which was filed prior to the 

Supreme Court's decision in Lindh) then argues that "if the habeas 

statute requires deference because the state courtfinding is factual in 

nature or because deference is otherwise to be accorded to this state 

court resolution of a legal issue, petitioner must prevail." Appellant's 

Br. 

at 21. In Part II C of this opinion (dealing with Buehl's contention that 

his appellate counsel was ineffective), we will address in some detail the 

Pennsylvania Supreme Court's discussion of the prejudicial effect of trial 

counsel's asserted error. For present purposes, however, it is enough to 

note that under the pre-AEDPA version of 28 U.S.C.S 2254, a state 

court's conclusion regarding either prong of the Strickland test must be 

reviewed de novo. Berryman, 100 F.3d at 1094. 

 14 
Buehl's trial attorney never requested a cautionary

instruction. The plurality, in an opinion written by Justice 

Montemuro and joined by Justices Zappala and Castille, 

first stated that Buehl's "trial counsel was ineffective for 

failing to request a cautionary instruction regarding these 

crimes because it cannot be said with any reasonable 

certainty that but for the this [sic] omission the outcome of 

[Buehl's] trial would not have been different." 658 A.2d at 

778-79. The plurality noted, however, that under a 

provision of the PCRA, a defendant in Buehl's position was 

entitled to relief "only in those instances in which counsel's 

ineffectiveness `so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 

could have taken place.' " 658 A.2d at 779 (quoting 42 Pa. 

Cons. Stat. Ann. S 9543(a)(2)(ii) (West 1998)). The plurality 

then wrote: 

 In the instant case, the circumstantial evidence 

 presented by the Commonwealth, including the

 evidence linking the bullets and shell casings from the 

 robberies of the Good Scents Shop and the Kirkpatrick 

 home to the murder weapon, created overwhelming 

 evidence of Appellant's guilt. Thus, while we are able to 

 say that due to the prejudicial nature of the evidence 

 in question the outcome of Appellant's trial may have 

 been different had counsel requested a cautionary 

 instruction, we are unable to say that due to this 

 omission the adjudication of guilt is unreliable. As a 

 result, appellant's claim does not constitute a basis for 

 relief under the PCRA. 

658 A.2d at 779 (footnote omitted). 

In a concurrence, Chief Justice Nix stated that he did not 

see "a substantive distinction between the prejudice prong 

of the test for ineffectiveness of counsel and the language 

contained in 42 Pa.C.S. S 9543(a)(2)(ii)" on which the 

plurality relied. 658 A.2d at 782. Pointing to the 

"overwhelming proof of [Buehl's] guilt," Chief Justice Nix 

concluded that Buehl had not "met his burden of 

establishing that he was prejudiced by counsel's failure to 

request a cautionary instruction." 658 A.2d at 782-83 (Nix, 

C.J., concurring). 

 15 
Justice Cappy, joined by then-Justice Flaherty, 

dissented. 658 A.2d at 783-86 (Cappy J., dissenting). Like 

Chief Justice Nix, Justice Cappy saw no difference between 

the prejudice prong of the test for ineffective assistance of 

counsel and the PCRA provision cited by the plurality. Id. 

at 785. Referring to Justice Montemuro's opinion, he wrote 

that "[t]he Majority does not explain why the adjudication of 

guilt is reliable if the outcome would have been different." 

Id. (emphasis in original). Then, without discussing the 

evidence against Buehl, he concluded that the PCRA 

petition should have been granted. Id. at 786. 

Based on these opinions, Buehl argues that he received 

ineffective assistance of counsel on direct appeal because, 

if the attorney who represented him at that stage had 

argued that trial counsel had rendered ineffective 

assistance in failing to request a cautionary instruction, the 

Pennsylvania Supreme Court would have reversed his 

conviction and ordered a new trial. Looking at the votes of 

the justices in the PCRA appeal, Buehl states: "Three 

Justices stated that a new trial would have been ordered if 

the issue was raised on direct appeal and two Justices 

would have ordered a new trial on direct or collateral 

attack." Appellant's Br. at 23. 

We reject Buehl's argument because he has not satisfied 

the first prong of the Strickland test. In order to meet the 

requirements of that prong, he was required to show that 

his appellate counsel's failure to raise the cautionary 

instruction argument on appeal fell outside "the wide range 

of reasonable professional assistance; that is,[he would 

have to] overcome the presumption that, under the 

circumstances, the challenged action `might be considered 

sound [appellate] strategy.' " Strickland, 466 U.S. at 689 

(citation omitted). One element of effective appellate 

strategy is the exercise of reasonable selectivity in deciding 

which arguments to raise. In this case, an appellate 

attorney familiar with the record could not have ethically 

argued that trial counsel's handling of the cautionary 

instruction issue was constitutionally deficient without 

calling to the attention of the Pennsylvania Supreme Court 

the passages in the record that we discussed above and 

that convince us that Buehl's trial attorney did in fact 

 16 
request a cautionary instruction. Knowing this, a 

competent appellate attorney could have reasonably 

concluded he was unlikely to convince the Pennsylvania 

Supreme Court that trial counsel was constitutionally 

ineffective in his handling of the cautionary instruction 

issue and that it was strategically inadvisable to select that 

argument as one of those to be raised. Furthermore, even 

if appellate counsel believed that he could convince the 

Pennsylvania Supreme Court that trial counsel's 

performance was deficient, appellate counsel could have 

reasonably concluded that it was unlikely that he could 

satisfy Strickland's prejudice prong and that it was 

therefore strategically unwise to select this argument as 

one of those to be raised. 

As previously noted, our examination of the record 

convinces us that there is no reasonable probability that 

the jury's verdict would have been any different if a more 

explicit cautionary instruction had been given. After 

carefully reviewing the record, the District Court reached 

the same conclusion. And while we have given careful 

consideration to the opinions written by Justices 

Montemuro and Cappy in Buehl's PCRA appeal, those 

opinions do not convince that competent appellate counsel 

could not have concluded that the likelihood of satisfying 

Strickland's prejudice prong was not high enough to justify 

raising the argument in question. We note that Justice 

Montemuro characterized that evidence against Buehl as 

"overwhelming" and that Justice Cappy's opinion does not 

discuss the evidence and does not explain why there is a 

reasonable probability that a stronger or more explicit 

cautionary instruction would have caused the jury to 

return a different verdict. Consequently, we hold that 

appellate counsel did not render constitutionally ineffective 

assistance. 

D. Pennsylvania Supreme Court's alleged violat ion of due 

process. In conjunction with his Sixth Amendment 

argument regarding his representation on direct appeal, 

Buehl raises a related due process issue. Buehl contends 

that the Pennsylvania Supreme Court violated his due 

process rights because the plurality's interpretation of the 

standard for obtaining PCRA relief was "untenable or 

 17 
amounts to a subterfuge to avoid federal review of a 

constitutional violation." Appellant's Br. at 25-26. As 

previously noted, the plurality invoked 42 Pa. Cons. Stat. 

Ann. S 9543(a)(2)(ii) (West 1998), which authorizes PCRA 

relief for "[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the 

truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place." Buehl suggests 

that the plurality deliberately ignored another provision of 

the same statute, 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v) 

(repealed 1995), which permitted relief to be granted for "[a] 

violation of the provisions of the Constitution, law or 

treaties of the United States which would require the 

granting of Federal habeas corpus relief to a State

prisoner." Indeed, Buehl charges that the plurality went "so 

far as to ellipse [this provision] out of the statutory 

quotation in its opinion . . . ." Appellant's Br. at 26. Buehl 

contends that the plurality's misinterpretation of the PCRA 

was " `untenable or amount[ed] to a subterfuge to avoid 

federal review of a constitutional violation,' " that his due 

process rights were therefore violated, and that "federal 

habeas relief is mandated." Appellant's Br. at 26 (quoting 

Taylor v. Kinchleloe, 920 F.2d 599, 609 (9th Cir. 1990)). 

We are not persuaded by this argument. First, the 

Pennsylvania Supreme Court plurality's interpretation of 

the PCRA was neither "an `obvious subterfuge to evade 

consideration of a federal issue,' " Mullaney v. Wilkur, 421 

U.S. 684, 691 n.11 (1975) (quoting Radio Station WOW, Inc. 

v. Johnson, 326 U.S. 120, 129 (1945)) nor a"plainly

untenable" interpretation in the sense possibly relevant here.7 

See Ward v. Love County, 253 U.S. 17, 22 (1919). Buehl's 

charge of subterfuge flies in the face of the errors that the 

plurality made in his favor -- i.e., its erroneous factual 

assumption that trial counsel never sought a limiting 

instruction and its erroneous legal conclusion that

_________________________________________________________________ 

7. The Supreme Court's decision in Ward v. Love County, 253 U.S. 17, 

23 (1919), seems to be the origin of the Ninth Circuit's statement in 

Taylor, 920 F.2d at 609, that a federal court need not accept a state 

court's interpretation of state law if that interpretation is "untenable." 

(Taylor cited Knapp v. Caldwell, 667 F.2d 1253, 1260 (9th Cir.), cert. 

denied, 459 U.S. 1055 (1982), which in turn cited Ward.) 

 18 
Strickland's prejudice prong was met. His suggestion that 

the plurality deliberately failed to mention 42 Pa. Cons. 

Stat. Ann S 9543(a)(2)(v) (repealed 1995) in order to reach 

the result it desired overlooks the fact that the two 

dissenting justices, who would have granted relief, also 

relied exclusively on 42 Pa. Cons. Stat. Ann S 9543(a)(2)(ii) 

(West 1998) and never mentioned 42 Pa. Cons. Stat. Ann 

S 9543(a)(2)(v) (repealed 1995). Thus, wefind the charge of 

subterfuge to be groundless. 

Nor do we agree with Buehl that the plurality's 

interpretation of the PCRA was "plainly untenable."

Assuming for the sake of argument that a federal habeas 

court may reject a state court's "plainly untenable" 

interpretation of state law, we find that this demanding test 

is not met. Since 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(ii) 

(West 1998) specifically addresses claims of ineffective 

assistance of counsel, it was not "plainly untenable" for the 

plurality (and, indeed, for the entire Pennsylvania Supreme 

Court) to treat that provision, rather than the more general 

rule set out in 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v) 

(repealed 1995), as the governing provision. Nor was it 

"plainly untenable" for the plurality to view the test 

prescribed in 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(ii) (West 

1998) (whether the ineffective assistance "so undermined 

the truth-determining process that no reliable adjudication 

of guilt or innocence could have taken place") as more 

demanding than Strickland's prejudice prong (whether 

"there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceedings would 

have been different"). 466 U.S. at 694. We express no view 

as to (a) whether we would agree with the pluralit y's 

interpretation of the PCRA if it were our prerogative to 

review that interpretation de novo or (b) whether it seems 

to us that this interpretation was consistent with prior state 

cases. Limiting ourselves to the narrow question whether 

the plurality's interpretation was "plainly untenable," we 

hold that it was not. 

Furthermore, even if we were to conclude otherwise, we 

would still not hold that Buehl is entitled to federal habeas 

corpus relief. Buehl wants us to overrule the Pennsylvania 

Supreme Court's interpretation of Pennsylvania law (the 

 19 
PCRA) while deferring to that court's interpretation of 

federal law (the Sixth Amendment standard for ineffective 

assistance of counsel). We see no basis for such an

approach. If we were to hold that Buehl was entitled to 

PCRA relief on his ineffective assistance of counsel claim if 

he could establish "a violation of the federal Constitution 

that would require the granting of Federal habeas corpus 

relief," 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v) (repealed 

1995), we would go on to consider whether he had 

established such a constitutional violation. And as we have 

already discussed, we conclude that he has not. 

E. Trial counsel's failure to object to additi onal "other 

crimes" evidence. Buehl next argues that his trial counsel 

was constitutionally ineffective because he failed to object 

to the introduction of evidence regarding crimes other than 

the Pine Street and Kirkpatrick robberies. Buehl asserts 

that his trial attorney should have objected to the

admissibility of Peter Ross's testimony that Buehl 

possessed a knife and killed with a knife, Ross's testimony 

that Buehl offered to kill Ross's enemies, Detective Richard 

Natoli's reference to the service of a search warrant on 

Buehl while he was incarcerated at Delaware County 

Prison, Miller's testimony that Buehl threatened to "get his 

PPK" and kill Miller and his friends, and Richard 

Kirkpatrick's testimony that the person who robbed him 

claimed to have shot two other people. Buehl argues that 

none of this testimony was admissible and that it was 

introduced solely to demonstrate his bad character and his 

propensity to commit murder. 

Observing that these references to other criminal activity 

were "neither extensive nor detailed," the Pennsylvania 

Supreme Court rejected Buehl's argument on two grounds. 

Commonwealth v. Buehl, 658 A.2d 771, 778 n.6 (Pa. 1995). 

First, it held that Buehl failed to satisfy Strickland's 

performance prong, since his counsel might have had a 

reasonable basis for electing not to object to these 

statements. Because the statements were fleeting, the 

Court noted that "trial counsel may have wished to avoid 

emphasizing what might have gone relatively unnoticed by 

the jury." Id. Second, the Court concluded that there was 

no reasonable probability that these references changed the 

 20 
outcome of the case. The Court therefore held that any 

prejudice created by these fleeting remarks was insufficient 

to establish constitutional violation. See id. 

We agree with the Pennsylvania Supreme Court's 

analysis. An objection to these brief portions of testimony 

might have simply highlighted the statements for the jury. 

Accordingly, Buehl's claim fails the first prong of the 

Strickland analysis because he cannot overcome the 

presumption that his trial counsel's actions "might be 

considered sound trial strategy." Strickland, 466 U.S. at 

689. Moreover, as the District Court noted, several of the 

statements appear to have been admissible. For example, 

Miller's testimony that Buehl threatened to get his PPK is 

relevant to show that Buehl was in possession of the type 

of gun used in the murders. However, even if none of this 

evidence was properly admissible, since the testimony was 

such a small part of the inculpatory evidence presented 

against Buehl, there is no reasonable probability that the 

result of Buehl's trial would have been different if the 

evidence had been excluded, and therefore Buehl's 

argument also fails Strickland's prejudice requirement. 

F. Trial counsel's failure to object to prosecutor's 

summation. We next consider Buehl's claim that his trial 

counsel was ineffective for failing to object to the 

prosecutor's closing argument.8 Claiming that the 

prosecutor improperly vouched for witnesses and expressed 

his personal opinion regarding Buehl's guilt, Buehl

maintains that his counsel's failure to object was 

unprofessional and prejudiced his defense. 

A prosecutor's expression of personal opinion about the 

credibility of witnesses or the guilt of a defendant creates a 

risk that the jury will "trust the Government's judgment 

rather than its own view of the evidence." United States v. 

Young, 470 U.S. 1, 18-19 (1985). However, the fact that a 

prosecutor made improper statements is insufficient, by 

_________________________________________________________________ 

8. The Commonwealth asserts that Buehl failed to exhaust this issue 

and the issue discussed below regarding inconsistent jury verdicts. 

However, we conclude that these issues were exhausted because they 

were presented to the Pennsylvania Supreme Court in Buehl's pro se 

brief. 

 21 
itself, to require a new trial. To obtain such relief, a 

defendant must also demonstrate that the prosecutor's 

improper statements prejudiced his defense. See United 

States v. Gross, 961 F.2d 1097, 1108 (3d Cir. 1992) (citing 

United States v. Swinehart, 617 F.2d 336, 339 (3d Cir. 

1980)), cert. denied, 506 U.S. U.S. 965 (1992). In examining 

whether the prosecutor's statements prejudiced the 

defense, our precedents have considered whether the

comments suggested that the prosecutor had knowledge of 

evidence other than that which was presented to the jury. 

See id. 

In this case, the prosecutor stated that the police

investigation had sought the truth, that several of the 

government witnesses were credible, and that the 

prosecutor had put his "heart and soul" into the case. 

These comments did not suggest to the jury that the

prosecutor possessed evidence of guilt other than that 

which had been presented in open court. Rather, the

comments merely expressed a belief that the evidence 

presented to the jury was credible. We have previously held 

this kind of comment insufficient to establish prejudice to 

the defense. See id. Furthermore, given the weight of the 

evidence against Buehl, a reasonable jury would not have 

found Buehl innocent had the prosecutor refrained from 

making these assertions. Accordingly, we conclude that 

Buehl cannot show the requisite prejudice to establish 

ineffective assistance of counsel on this claim. 

G. Trial counsel's failure to object to an ins truction on 

intent. Buehl's next argument is that his trial counsel's 

failure to object to the trial court's instruction on intent 

deprived him of effective assistance of counsel and denied 

him due process of law. Buehl complains that the following 

jury charge, which was delivered by the trial court, 

improperly established a mandatory presumption of intent: 

 In the trial of a person for committing or attempting to 

 commit a crime of violence the fact that he was armed 

 with a firearm, used or attempted to be used and had 

 no license to carry the same shall be evidence of his 

 intention to commit said crime of violence. 

 22 
Joint App. 145. Buehl complains that the written verdict 

slip that the court gave to the jury contained the same 

language. 

Buehl is correct that a state may not establish a 

mandatory presumption of intent, see Francis v. Franklin, 

471 U.S. 311-12 (1985), and the use of the term "shall," 

rather than "may be," in the instruction at issue seems to 

offend that rule. Nevertheless, under the harmless error 

standard set out in Brecht v. Abrahamson, 507 U.S. 619, 

632, 637-38 (1993), it is clear that Buehl is not entitled to 

relief. A writ of habeas corpus should issue only if the 

reviewing court concludes that the instructional error "had 

a substantial and injurious effect or influence in 

determining the jury's verdict." Id. at 623. In this case, the 

nature of the prosecution's evidence and Buehl's defense 

rendered the error in this instruction harmless. Both the 

prosecution and defense either expressly or impliedly 

conceded that the killings at issue were done intentionally, 

and therefore the matter of Buehl's intent to kill was not an 

issue in his defense. Rather, Buehl based his entire defense 

on a claim of mistaken identity--that he was not the person 

who committed the murders. 

Moreover, it cannot reasonably be doubted that the 

assailant who attacked the Gross family and Mrs. 

VanderVeur intended to kill them. The victims were shot 

repeatedly at close range. One of the victims was shot in 

the head at close range, and another was tied to a chair 

before being shot. Accordingly, this case turned on the 

jury's assessment of the evidence regarding the identity of 

the killer. We therefore conclude that the court's 

instructional error on intent did not have a substantial and 

injurious effect on the jury's verdict. 

H. Failure to object to allegedly inconsistent guilty 

verdicts. Buehl argues that his counsel was also 

constitutionally ineffective because he failed to object to the 

entry of inconsistent verdicts. With respect to each of the 

three victims, the jury found Buehl guilty of first degree 

murder, third degree murder, and involuntary 

manslaughter.9 Buehl notes that first and third degree 

_________________________________________________________________ 

9. The jury found Buehl not guilty of voluntary manslaughter. 18 Pa. 

Cons. Stat. Ann. S 2503 defines voluntary manslaughter as follows: 

 23 
murder under Pennsylvania law requires an intent to kill 

and malice, whereas involuntary manslaughter requires 

neither.10 Consequently, Buehl argues that the verdicts are 

inconsistent and that the trial court would have been 

required to vacate them if his trial counsel had raised a 

timely objection.11 

_________________________________________________________________ 

 (a) General Rule. -- A person who kills an indiv idual without 

lawful 

 justification commits voluntary manslaughter if at the time of the 

 killing he is acting under a sudden and intense passion resulting 

 from serious provocation by: 

 (1) the individual killed; or 

 (2) another whom the actor endeavors to kill, but he negligently or 

 accidentally causes the death of the individual killed. 

10. 18 Pa. Cons. Stat. Ann. S 2502 (West 1998) provides: 

 (a) Murder of the first degree.--A criminal ho micide constitutes 

 murder of the first degree when it is committed by an intentional 

 killing. 

 . . . 

 (c) Murder of the third degree.--All other kinds of murder shall 

be 

 murder of the third degree. Murder of the third degree is a felony 

of 

 the first degree. 

 (d) Definitions.--As used in this section the following words and 

 phrases shall have the meanings given to them in this subsection: 

 . . . 

 "Intentional killing." Killing by means of poison, or by lying in 

wait, 

 or by any other kind of willful, deliberate and premeditated 

killing. 

18 Pa. Cons. Stat. Ann. S 2504(a) (West 1998) provides: 

 A person is guilty of involuntary manslaughter when as a direct 

 result of the doing of an unlawful act in a reckless or grossly 

 negligent manner, or the doing of a lawful act in a reckless or 

 grossly negligent manner, he causes the death of another person. 

11. The District Court reconciled Buehl's murder and involuntary 

manslaughter convictions by reference to the Supreme Court's statement 
in United States v. Powell, 469 U.S. 57 (1984), that a court may let stand 

inconsistent guilty and not-guilty verdicts because it is possible that 

"the 

jury, convinced of guilt, properly reached its conclusion on the [offense 

 24 
In order to determine whether Buehl's trial attorney fell 

below the minimum level of competence demanded by the 

Sixth Amendment, we must first consider the governing 

legal rules regarding inconsistent guilty verdicts at the time 

when Buehl's trial ended in January 1983. The rule in the 

federal courts and in the courts of Pennsylvania had long 

been that a guilty verdict could not be attacked on the 

ground that it was inconsistent with a not-guilty verdict, 

see Dunn v. United States, 284 U.S. 390 (1932); 

Commonwealth v. Kline, 164 A. 124 (1933),12 and in Harris 

v. Rivera, 454 U.S 339 (1981), the Supreme Court had held 

that this rule (generally called the Dunn Rule) was

consistent with constitutional requirements. In a decision 

handed within a year after the Buehl verdicts, the United 

States Supreme Court reaffirmed the Dunn rule and 

disapproved decisions of several courts of appeal that had 

"begun to carve exceptions" to it. United States v. Powell, 

469 U.S. 57, 63 (1984). However, in a footnote, the Powell 

Court noted that its opinion was not "intended to decide the 

proper resolution of a situation where a defendant is 

convicted of two crimes, where a guilty verdict on one count 

logically excludes a finding of guilt on the other." Id. at 69 

n. 8. Years later, our court wrote that this exception to the 

_________________________________________________________________ 

for which the guilty verdict was returned], and then through mistake, 

compromise, or lenity, arrived at an inconsistent conclusion of the 

[offense for which it returned the not-guilty verdict]." See Buehl, No. 

95- 

5917, slip op. at 68-69 (E.D. Pa. Dec. 31, 1996) (citing Powell, 469 U.S. 

at 64); see also, e.g., United States v. Wilson, 1993 WL 55193 (9th Cir. 

Mar. 3, 1993). As noted above, however, the Supreme Court has 

expressly reserved decision on the question whether this rationale 

applies to cases where the jury returns inconsistent guilty verdicts, and 

we have stated that logically incompatible guilty verdicts may not stand. 

See Gross, 961 F.2d at 1106. 

12. In this situtation, the Supreme Court has reasoned, it is impossible 

to determine whether the prosecution or defense is prejudiced. It is 

entirely possible that the guilty verdict represents the jury's true 

assessment of the evidence and that the not-guilty verdict is based on 

"mistake, compromise, or lenity." Powell, 469 U.S. at 65. Therefore, it is 

not assumed that it is the defendant who is prejudiced, but the 

defendant is protected by the "independent review of the sufficiency of 

the evidence undertaken by the trial and appellate courts." Id. at 67. 

 25 
Dunn rule "only operates in those situations where a jury 

has convicted a defendant of two crimes and those 

convictions are mutually exclusive." United States v. Gross, 

961 F.2d 1097, 1107 (3d Cir.), cert. denied, 506 U.S. 965 

(1992). We added that "[s]uch a result would be patently 

unjust because a defendant would be convicted of two 

crimes, at least one of which he could not have committed." 

See also Masoner v. Thurman, 996 F.2d 1003, 1005 (9th 

Cir.) ("a due process challenge to a jury verdict on the 

ground that convictions of multiple counts are inconsistent 

with one another will not be considered if the defendant 

cannot demonstrate that the challenged verdicts are

necessarily logically inconsistent. If based on evidence 

presented to the jury any rational fact finder could have 

found a consistent set of facts supporting both convictions, 

due process does not require that the convictions be 

vacated."),13 cert. denied, 510 U.S. 1028 (1993). 

Because the Powell footnote and our opinion in Gross 

postdate the return of the verdicts at issue here, they are 

of little relevance in assessing the performance of Buehl's 

trial attorney. For present purposes, however, we will 

assume that Pennsylvania law at the time of Buehl's trial, 

as opposed to the federal constitution, recognized that as a 

general rule, if a jury returned logically inconsistent guilty 

verdicts and the defense objected, the judge was obligated 

to instruct the jury to retire and cure the inconsistency. See 

Commonwealth v. Brightwell, 424 A.2d 1263 (Pa. 1981). 

Nevertheless, we do not believe that Buehl's trial counsel 

"fell outside the wide range of professionally competent 

assistance," Strickland, 466 U.S. at 690, in failing to object 

that the jury's verdicts of guilty on the charges offirst and 

third degree murder "logically exclude[d] afinding of guilt"14 

on the charge of involuntary manslaughter, and vice versa. 

An examination of the statutory definitions offirst degree 

murder, third degree murder, and involuntary 

manslaughter does not reveal any apparent logical 

_________________________________________________________________ 

13. Other courts, however, have expressed the view that the Dunn rule 

extends to cases in which the jury returns inconsistent guilty verdicts. 

See United States v. Grier, 866 F.2d 908, 929 (7th Cir. 1989). 

14. Powell, 469 U.S. at 69 n.8. 

 26 
inconsistency in the verdicts. To be sure, the minimum 

requisite mens rea for each of these offenses differs, but the 

Pennsylvania Criminal Code generally follows the Model 

Penal Code rule that a lesser mens rea may be satisfied by 

proof of a greater one. See 18 Pa. Cons. Stat. Ann. S 302(e) 

(West 1998); Model Penal Code S 2.02(5).15 Thus, although 

involuntary manslaughter requires only recklessness or 

gross negligence,16 that element may be satisfied by proof 

that the defendant intentionally killed the decedent, as the 

first degree murder statute requires. See 18 Pa. Cons. Stat. 

Ann. S 2502(a) (West 1998). Accordingly, afinding that 

Buehl intentionally killed the victims (which is implicit in 

the verdicts of guilty of first degree murder) is logically 

consistent with a finding that the he caused their deaths 

through recklessness or gross negligence. 

In much the same way, the recklessness or gross 

negligence required for involuntary manslaughter could be 

viewed as subsumed within the element of malice needed 

for murder, which "may be found if the homicide is 

committed with an intent to kill, with an intent to inflict 

serious bodily harm, or with reckless disregard of the 

likelihood of death or serious bodily harm manifesting 

extreme indifference for the value of human life."17 Justice 

_________________________________________________________________ 

15. Model Penal Code S 2.02(5) provides: 

 (5) Substitutes for Negligence, Recklessness and Knowledge. When 

 the law provides that negligence suffices to establish an element 

of 

 an offense, such element also is established if a person acts 

 purposely, knowingly or recklessly. When recklessness suffices to 

 establish an element, such element also is established if a person 

 acts purposely or knowingly. When acting knowingly suffices to 

 establish an element, such element also is established if a person 

 acts purposely. 

Similarly, 18 Pa. Cons. Stat. Ann. S 302(e) (West 1998) states: 

 Substitutes for negligence, recklessness and knowledge. -- When 

 the law provides that negligence suffices to establish an element 

of 

 an offense, such element also is established if a person acts 

 intentionally or knowingly. When acting knowingly suffices to 

 establish an element, such element also is established if a person 

 acts intentionally. 

16. See footnote 10, supra. 

17. Commonwealth v. Garcia, 378 A.2d 1199, 1206 n.11 (Pa. 1977) 

(plurality opinion). Pennsylvania cases define malice as "wickedness of 
 27 
Roberts's plurality opinion in Commonwealth v. Garcia, 378 

A.2d 1199, 1205-07 & n.14 (Pa. 1977), made precisely this 

point. Justice Roberts carefully explained why the state of 

mind that suffices to establish the commission of 

involuntary manslaughter constitutes a lesser included 

kind of culpability with respect to the malice that is an 

essential element of murder, and he therefore concluded 

that the offense of involuntary manslaughter is included 

within the offense of murder. Id. It is difficult to see how 

involuntary manslaughter can be included within the

offense of murder and yet be logically inconsistent with that 

offense. For this reason, courts in other jurisdictions have 

recognized that multiple guilty verdicts for the same 

conduct that are based on varying levels of mens rea are 

not mutually exclusive. See, e.g., United States v. Wilson, 

1993 WL 55193 (9th Cir. Mar. 3, 1993) (holding that

verdicts will not be vacated where an alleged inconsistency 

flows from a conviction on a lesser included offense); 

Engram v. Hallahan, 1997 WL 579112 (9th Cir. Sept. 11, 

1997) (same). 

In view of these authorities, a lawyer whose performance 

met the Strickland standard of professional competence 

could have easily failed to perceive at the time in question 

that the Buehl verdicts might be attacked as inconsistent. 

This is not to say that Pennsylvania case law provided no 

basis for such argument. Commonwealth v. Brightwell, 424 

A.2d 1263, 1264 (Pa. 1981), which suggested that guilty 

_________________________________________________________________ 

disposition, hardness of heart, wanton conduct, cruelty, recklessness of 

consequences and a mind regardless of social duty." Commonwealth v. 

Lopez, 627 A.2d 1229, 1230 (Pa. Super. Ct. 1993). Malice may also be 

found "where the principal acts in gross deviation from the standard of 

reasonable care, failing to perceive that such actions might create a 

substantial and unjustifiable risk of death or serious bodily injury." 

Stidman v. Midvale Sportsmen Club, 618 A.2d 945, 951 (Pa. Super. 

1992), appeal denied, 637 A.2d 290 (Pa. 1993). The Pennsylvania 

Supreme Court has stated that malice "consists of either an express 

intent to kill or inflict great bodily harm." Commonwealth v. Paquette, 

301 A.2d 837, 840 (Pa. 1973); see also Commonwealth v. Seibert, 622 

A.2d 361, 366 (Pa. 1993) (citing Commonwealth v. Pigg, 571 A.2d 438 

(Pa. Super. Ct. 1990); Commonwealth v. Kersten , 482 A.2d 600 (Pa. 

Super. Ct. 1984)). 

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verdicts for murder and voluntary manslaughter were

inconsistent,18 furnished such a basis.19 But a lawyer's 

failure to perceive the ground for crafting an argument that 

might have succeeded is very different from the failure to 

meet the level of competence required by the Sixth 

Amendment. We thus hold that Buehl has failed to meet 

the first prong of the Strickland test. 

Nor do we think that the second Strickland prong is

satisfied. If Buehl's trial attorney had objected that the 

verdicts were inconsistent, the most that the trial judge 

might have done was to direct the jury to retire and 

reconsider its verdict. Brightwell, 424 A.2d at 1264. In light 

of the evidence in this case -- which left little doubt that 

the perpetrator acted with a greater mens rea than that 

required for involuntary manslaughter -- we see no 

substantial likelihood that the jury (which subsequently 

sentenced Buehl to death) would have retracted its verdicts 

of first and third degree murder and found Buehl guilty of 

involuntary manslaughter only. It seems very likely that the 

jury initially found Buehl guilty of involuntary 

manslaughter, not because it concluded that he killed the 

victims unintentionally, but because it believed that his 

intent to kill, while more than required to prove involuntary 

manslaughter, was nevertheless sufficient. We thus hold 

that Buehl's trial attorney did not violate his client's Sixth 

Amendment rights by failing to object to the verdicts as 

inconsistent. 

I. Cumulative prejudice. As a final Sixt h Amendment 

argument, Buehl contends that, in applying Strickland, we 

must consider the cumulative prejudicial impact of the 

constitutional violations that he alleges. However, after 

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18. A defendant may be convicted of voluntary manslaughter if he acted 

"under a sudden and intense passion resulting from serious provocation 

. . . ." 18 Pa. Cons. Stat. Ann. S 2503(a) (West 1998). A defendant may 

also be convicted of voluntary manslaughter if he intentionally or 

knowingly kills the victim based on the unreasonable belief that the 

killing is justified. Id. The presence of these affirmative elements might 

be viewed as logically inconsistent with malice, but the offense of 

involuntary manslaughter contains no similar elements. 

19. See also Commonwealth v. Kemmerer, 584 A.2d 940, 945 (Pa. 1991), 

which came well after the Buehl verdicts. 

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conducting this review, we conclude that the District Court 

correctly determined that the overwhelming evidence of 

Buehl's guilt prevents him from satisfying Strickland's 

prejudice prong. 

III 

We turn now to Buehl's claim that the prosecution 

violated his due process rights by improperly withholding 

exculpatory and impeaching evidence. Buehl asserts that 

the prosecution did not inform his counsel that county 

detectives had overheard prosecution witness Joseph Dwyer 

state that he had seen Kelly in possession of his PPK a few 

weeks after the Gross family was murdered. Buehl also 

asserts that the government failed to disclose the full extent 

of Kelly and Dwyer's criminal histories, LaMotte's active 

probation status, and several alleged favors that the 

Commonwealth provided to Dwyer. Since Buehl's defense 

proceeded on the theory that Kelly--who was the owner of 

the PPK--was the real killer, Buehl asserts that the 

prosecution's failure to reveal this information deprived him 

of exculpatory evidence and impeachment material and 

thus denied him a fair trial. 

Due process requires the prosecution to inform the 

defense of evidence material to guilt or punishment. See 

Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution 

must also disclose evidence that goes to the credibility of 

crucial prosecution witnesses. See Giglio v. United States, 

405 U.S. 150, 154 (1972); United States v. Starusko, 729 

F.2d 256, 260 (3d Cir. 1984). However, the prosecution's 

failure to disclose such evidence amounts to a violation of 

due process only if there is a reasonable probability that 

the jury would have returned a different verdict if the 

information had been disclosed, or, stated differently, if "the 

Government's evidentiary suppression undermines 

confidence in the outcome of the trial." Kyles v. Whitney, 

514 U.S. 419, 434 (1995). "[T]he Constitution is not violated 

every time the government fails or chooses not to disclose 

evidence that might prove helpful to the defense." Id. at 

436-37; see also United States v. Pelullo, 14 F.3d 881, 886 

(3d Cir. 1994) ("a Brady violation . . . does not mandate 

automatic reversal. . . . A reversal is warranted only where 

 30 
the suppression of the Brady evidence undermines 

confidence in the outcome of the trial."). In evaluating 

whether the government's failure to turn over Brady or 

Giglio material undermines confidence in the outcome of 

the trial, the suppressed evidence is "considered 

collectively, not item-by-item." Kyles, 514 U.S. at 436. 

In this case, the Commonwealth admits that it did not 

provide the information listed above but asserts that it was 

not required to provide all of that information. The 

Commonwealth argues that it was not required to inform 

Buehl of Dwyer's alleged statement because the prosecution 

was unable to verify whether Dwyer in fact made such a 

statement. When the prosecution investigated the 

detectives' report, Dwyer denied making the statement, and 

Kelly denied having possession of the PPK after the killings. 

The Commonwealth's argument misses the point. If 

Buehl's counsel had known about Dwyer's alleged 

statement, he could have asked Dwyer on crossexamination whether he had seen Kelly with the gun after 

the murders. If Dwyer had denied seeing Kelly in 

possession of the gun, the prior statement overheard by the 

detectives could have been used for impeachment, and the 

statement itself might have been admissible depending on 

how the detectives recorded Dwyer's statement. See 

Commonwealth v. Sholcosky, 719 A.2d 1039, 1044 (Pa.

1998) (prior inconsistent statement is admissible as 

substantive evidence if it is embodied in an electronic, 

audiotaped or videotaped recording). 

Nevertheless, we conclude that Buehl's Brady argument 

lacks merit because the prosecution's failure to disclose the 

information is not sufficient to "undermine[ ] confidence in 

the outcome of the trial." Kyles, 514 U.S. at 434. Dwyer's 

statement that Kelly had the PPK several weeks after the 

murders does not seriously undercut the evidence that 

Buehl was in possession of the gun at the time of the 

murders. Buehl admitted that he used the PPK to rob the 

shop on Pine Street just two days before the Gross 

murders. On the same afternoon as the murders, the same 

PPK was used to rob the Kirkpatrick home, and Buehl sold 

jewelry stolen from the Kirkpatricks that same evening. On 

the afternoon of the murders, Buehl appeared in LaMotte's 

 31 
office with a gun in his waistband and stated that he had 

just killed three people. Within a few days of the killings, 

Buehl told Miller that he had killed three people with a 

PPK, and Buehl threatened to "blow Miller away" with the 

same weapon. In light of this overwhelming evidence that 

Buehl had the PPK at the time of the killings and that he 

was the murderer, we conclude that Buehl was not 

seriously prejudiced by the inability to use Dwyer's 

statement for impeachment or to show that Kelly possessed 

the gun several weeks after the killings. 

Additionally, the government's failure to disclose its 

witnesses' complete criminal histories does not sufficiently 

undermine confidence in the outcome of his case because 

Buehl was informed that Dwyer had been convicted of theft 

and receiving stolen property and that Kelly had at least 

two prior convictions. Consequently, Buehl had an 

opportunity to discredit the government's witnesses. In fact, 

as the District Court noted, Buehl's counsel was able to 

discredit Dwyer and Kelly effectively at trial. 

Moreover, the government's failure to disclose Dwyer's 

alleged statement, the witnesses' complete criminal

histories, and the alleged favors provided to Dwyer is offset 

by the significant amount of evidence presented against 

Buehl. Given the weight of this evidence and the mitigating 

factors discussed above, Buehl cannot show that the

government's failure to disclose the information 

undermined confidence in the outcome of the trial. 

Accordingly, we reject Buehl's claim. 

IV. 

For the reasons set out above, we conclude that Buehl's 

trial and appellate counsel were not constitutionally 

ineffective and that his due process rights were not 

violated. We therefore affirm the judgment of the District 

Court. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 33