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. e du/thir dc ir c uit_1999/14Filed 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 AppellantMary 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 petitio n 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 assistanc e of counsel at trial and on direct appeal. Because we c onclude that Buehl's due process rights were not violated a nd that
his ineffective assistance claims fail to meet the standard of Strickland v. Washington, 466 U.S. 668 (1984), we a ffirm the judgment of the District Court.

I.

On July 16, 1982, police found the bodies of Courtl and Gross, his wife Alexandra Gross, and their housekee per Catherine VanderVeur shot to death at the Gross est ate in Montgomery County, Pennsylvania. The police determi ned
that the murders had occurred in the afternoon or e arly evening of July 15. The killings appeared to have b een 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 rev eal the dial and handles. The safe was unopened.

The victims at the Gross residence had been shot wi th .380 caliber bullets, and the police recovered six .380 caliber cartridge casings from the rooms in which t he victims were found. The police found Mr. Gross's bo dy 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 c heek. Mrs. Gross had been shot in the elbow and the eye. Mrs.

2VanderVeur, who was found tied to a chair in a bedr oom,

had been shot once in the head. There were no eyewitnesses to these murders, but the Commonwealth assembled the following circumstantial evidence aga inst

Buehl.

In June 1982, an acquaintance of Buehl's named Fran cis 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, K elly returned to the junkyard with a police officer who retrieved two .380 shell casings for ballistics analysis. Thi s analysis revealed that the shell casings from the junkyard w ere fired from the gun used in the murders at the Gross estat e.

On July 7, Joseph Dwyer stole a red Buick Skylark i n the City of Philadelphia. Dwyer damaged the Buick's fro nt left tire and lost the tire's hubcap, and he then sold t he 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, wh ere he would force people to "open the safe." Buehl invite d 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 w as incompatible with the PPK, he exchanged his origina l purchase for compatible ammunition and received a c redit slip in the amount of $4.50. Buehl signed the form required to buy the ammunition, but his signature was illegi ble. The store's assistant manager therefore asked for Buehl 's driver's license and printed Buehl's name on the fo rm. This manager later identified Buehl as the man who purch ased
the ammunition.

After Buehl purchased ammunition for the PPK, he us ed the Buick and the gun to rob the Good Scents Shop o n Pine Street in Philadelphia. During the robbery, Buehl s hot Nathan Cohn in the ankle and exclaimed: "I'm not pl aying

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1. All of the dates mentioned are in 1982.

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

anybody comes out here, I'll blow your eyes out." B uehl was observed leaving the store and driving away in the Buick. Buehl admitted to this robbery, and a ballistics an alysis determined that the shell casings ejected from the PPK at the store were fired in the same gun as that used a t 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 Townshi p. 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. Th is gunman told Kirkpatrick: "I've shot two other peopl e. I'll shoot you also. I'll start with your leg and work u p." He also warned Kirkpatrick: "I'm not fooling." The robber t ook jewelry from Kirkpatrick's house and fled. Kirkpatr ick initially identified a photograph of someone other than
Buehl as the robber and made no identification at B uehl'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 exp ert determined that the .380 cartridge casings found at the Kirkpatrick home came from the gun that was fired a t the junkyard, the Pine Street robbery, and the Gross re sidence.

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 an d a flowered dress bought a box of Domino powdered suga r at the Liberty Bell Meat Market near the Gross residen ce. When the police discovered Mrs. Gross's body at her home, she was wearing a flowered dress, and a straw hat w as found near her head. A box of Domino sugar was in a paper bag with the receipt on the kitchen counter. Cather ine Fitzgerald, who cleaned house for the Gross family, testified that Mrs. Gross always put groceries away as soon a s she

came home.

Between 3:30 and 4:00 p.m. on July 15, Buehl arrive d at Joseph LaMotte's office in an agitated state and as ked if he could borrow LaMotte's gray Datsun because he had " just

4pulled 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 stoppe d by the police. When LaMotte refused to loan Buehl his car, Buehl said: "Look, this is my life we're talking ab out. I just wasted three people and I want your car." LaMotte n oticed that Buehl had a gun in his waistband and asked whe re Buehl had gotten it. Buehl replied that he had obta ined it from Kelly. LaMotte loaned Buehl his car but said t hat he needed it back at about 5:00 p.m. Buehl told LaMott e that he would be driving to Conshohocken. A police offic er testified at trial that the Conshohocken exit of th e Schuylkill Expressway is about 1.5 miles from the G ross residence. The officer also testified that it was p ossible 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 reside nce observed a small gray car that appeared to be a Dat sun speeding toward the expressway. Buehl returned to m eet LaMotte near his office between 5:00 and 5:30 p.m. Buehl still had a pistol in his waistband. LaMotte and Bu ehl then picked up Mary Treat, who testified that Buehl look ed

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 an y such news, Buehl said: "Think. It's important." LaM otte then inquired whether Buehl knew anything about an attempted burglary in which three people were kille d, 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 imag e of St. Christopher. Mrs. Gross carried a gold money clip w ith such an engraving, but it was missing after her mur der.
Miller testified that Buehl told him that he had ki lled people
with a PPK and had thrown it into a lake or river. Buehl
asked Miller if he had ever heard of the Gross fami ly, and he offered Miller the gold St. Christopher money cl ip. Miller testified that he and Buehl argued about money and that

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

[Miller] away."

Peter Ross met Buehl on July 19 in the Tropicana Ho tel 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 Ros s that he had killed people before, and he asked if Ross want ed him to kill anyone.

Buehl was arrested on July 30, 1982 for burglary. A t the time of his arrest, Buehl had in his possession the credit slip from Pearson's Sporting Goods Store; a paper w ith 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 po lice could match shell casings.

Based on this evidence, Buehl was convicted of thef irst degree murder of Mr. and Mrs. Gross and Mrs. Vander Veur,2 and he was sentenced to death. The Pennsylvania Sup reme Court affirmed Buehl's conviction on direct review. Commonwealth v. Buehl, 508 A.2d 1167 (Pa. 1986). Bu ehl then filed a petition under the Pennsylvania Post C onviction Relief Act (PCRA), which was denied by the state tr ial court. The Supreme Court of Pennsylvania affirmed the tria l court's decision. Commonwealth v. Buehl, 658 A.2d 7 71 (Pa. 1995). Thereafter, Buehl filed a petition for a wri t of habeas corpus in federal court, seeking relief with respec t to both the guilt and penalty phases of the state proceedin gs. The District Court granted habeas relief with respect t o the penalty phase of Buehl's trial and ordered a new pe nalty hearing. The Commonwealth did not appeal that rulin g. 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

.

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2. He was also convicted of several lesser offenses

.

6II.

A. Buehl's ineffective assistance of counsel claims . We
turn first to Buehl's contention that his Sixth Ame ndment rights were violated because his trial and appellat e counsel
were ineffective. Because Buehl filed his federal h abeas petition prior to the enactment of the Antiterroris m and Effective Death Penalty Act of 1996 (AEDPA), this c ase 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 amendme nts to Chapter 153 of Title 28 generally apply only to cases filed after the AEDPA became effective); Death Row Prison ers of Pennsylvania v. Ridge, 106 F.3d 35 (3d Cir. 1997) (concluding that Pennsylvania is not an "opt-in" st ate 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. Mo rton, 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 f airly supported by the record, see 28 U.S.C. S 2254(d) (1 994); Berryman, 100 F.3d at 1094, but "[a]n effectiveness claim require[s] the application of a legal standard to t he historical-fact determinations," and thus the ultim ate question whether counsel was effective is a uniquel y legal conclusion subject to de novo review. See id. at 10 95 (quoting Townsend v. Sain, 372 U.S. 293, 310 n.6 (1 963)); United States v. Cleary, 46 F.3d 307, 309-10 (3d Ci r.), cert. denied, 516 U.S. 890 (1995).

We review a claim of ineffective assistance of coun sel under the two-pronged test announced in Strickland v. Washington, supra. Under that standard, the defenda nt 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 ma de 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

7performance, we are "highly deferential" and "indul ge a

strong presumption" that, under the circumstances, counsel's challenged actions "might be considered s ound . . . strategy." Id. at 689; see also Sistrunk v. V aughn, 96 F.3d 666, 670 (3d Cir. 1996). Because counsel is af forded 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 stand ard 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 erro rs were so serious as to deprive the defendant of a fair tr ial, 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 t he 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 lim iting
instruction. Buehl's first Sixth Amendment claim is that his trial counsel was constitutionally ineffective in f ailing to request a limiting instruction with respect to cert ain "other
crimes" evidence. The Commonwealth introduced evide nce of the Pine Street and Kirkpatrick robberies to ide ntify Buehl as the killer,3. and at this stage, Buehl doe s not
maintain that the admission of this evidence to est ablish identity was improper. Buehl contends, however, tha t 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 limi ting

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3. Buehl argues that his trial attorney was ineffec tive in failing to object to inadmissible evidence regarding other crimes and bad acts. We address this argument separately in part III of thi s opinion.

8instruction and stated that this failure was a "ser ious lapse

in . . . assistance." Buehl v. Vaughn, No. 95-5917, slip op. at 37 (E.D. Pa. Dec. 31, 1996). However, the Distri ct Court
concluded that Buehl did not receive ineffective as sistance of counsel because his defense was not sufficiently prejudiced to satisfy the second prong of the Stric kland test. The Court stated that "the evidence of [Buehl's] gu ilt 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 reasona bly competent assistance. When evidence of a defendant' s other crimes is introduced to show identity, there is"som etimes . . . a substantial danger of unfair prejudice" bec ause the jury may consider the evidence as proof of bad char acter or propensity to commit the crime charged. United Stat es v. Murray, 103 F.3d 310, 316 (3d Cir. 1997), cert. den ied, 119 S. Ct. 254 (1998). To alleviate this risk, counsel may request a cautionary instruction. See generally Les ko v. Owens, 881 F.2d 44, 55 (3d Cir. 1989), cert . denie d, 493 U.S. 1036 (1990). In some circumstances, such an instruction may be strongly advisable; in others, c ounsel may reasonably conclude that it is strategically pr eferable to omit such a request since the instruction might have the undesired effect of highlighting the other crimes e vidence.

In this case, there has been some uncertainty throu ghout Buehl's post-trial litigation as to whether his tri al attorney did in fact request a limiting instruction. As the District Court noted, the Court of Common Pleas, in ruling o n Buehl's PCRA petition, stated that Buehl's lawyer r equested a limiting instruction with regard to the Pine Stre et and Kirkpatrick robberies but that the trial court inad vertently 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 Pl eas was in error on this point because, when the Pennsy lvania Supreme Court reviewed the Court of Common Pleas' decision on appeal, the Justices appeared to take i t for granted that Buehl's trial counsel had not sought s uch an
instruction. See id.

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

trial counsel did in fact request that the trial ju dge caution the jury about the proper use of the evidence in qu estion. The record contains a colloquy between trial counse l and the court that was conducted in chambers following the jury charge. In that discussion, Buehl's counsel co mplained 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 instructi on. Joint App. at 180-81. The judge responded that he realize d that he had "not restricted [the jury's] purview to the homicides of the Grosses." Id. at 181. This colloquy is somew hat confusing because it refers to a request that Buehl 's counsel apparently made in an unrecorded pre-instru ction conference and because the objection was bound up w ith a discussion of a separate issue, i.e., whether the j udge's charge had improperly implied to the jury that the homicides legally qualified as murders. Nevertheles s, 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

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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 cou rt's clarifying
instruction stated:

If I inadvertently used any loaded nouns, pr onouns or adjectives

let me caution you that all the charges surround incidents alleged to have occurred on 7/15/82 at 1230 Arrowmink R oad, the residence
of Mr. and Mrs. Courtland Gross and Catherin e VanderVeur. The charges arise out of the alleged three killi ngs and with respect to

the responsibility, degree and proof of these al leged crimes are for

you, the jury, as fact finders and are to be dete rmined from the
evidence and the evidence alone. Any language by me o r counsel referring to these incidents are terms used by me or coun sel, and are not to infringe on your fact finding function in an y 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 e lsewhere. However, Buehl has taken the position that his counsel never requested a limiting instruction; he has not argued that his counsel was ineffective for failing10trial judge responded to this objection by giving a brief

supplementary instruction that Buehl has not challe nged in this appeal.

As stated above, when a state prisoner's habeas pet ition alleging ineffective assistance of counsel is consi dered under pre-AEDPA law, state court findings of fact m ade in the course of determining the ineffectiveness claim are subject to deference so long as they are fairly sup ported by the record. See, e.g., Berryman, 100 F.3d at 1094-9 5. Here, although the Pennsylvania Supreme Court stated that Buehl's counsel failed to request a cautionary inst ruction, the Court did not discuss the record or acknowledge that
the Court of Common Pleas had found that trial coun sel made such a request, see Buehl, 658 A.2d at 777-79, and
our review of the record convinces us that the Penn sylvania Supreme Court's contrary statement is not fairly su pported by the record. Accordingly, since the record reveal s 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 faili ng 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 Cou rt's conclusion that Buehl cannot satisfy Strickland's p rejudice prong. See Buehl, No. 95-5917, slip op. at 37, 54-5 9 (E.D. Pa. Dec. 31, 1996).5 In view of the magnitude of th e

(Text continued on page 13)

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to object to this remedial instruction. Moreover, g iven counsel's reasonable concern that the court not highlight the evidence of other crimes or the court's use of the term "murders," th e failure to object to
the instruction would not fall outside the wide bou nds of professionallycompetent assistance.

5. Noting that "[t]he verdict in this case had over whelming 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 bull et 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, Petitio ner purchased ammunition for the Walther at a sporting goo ds shop.

11On 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 requ est, Petitioner said, "Look, this is my life we're talking about. I just wasted three people and I want your car." LaMotte noticed that P etitioner had a gun in the waistband of his jeans. LaMotte lent Pet itioner 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 La Motte 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 o n 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, Peti tioner 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 simila r car had been seen

near the Good Scents Shop at the time of the robb ery 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 s imilar red car, missing a left front hubcap, was also seen on Kirkpa trick's street and a

red Skylark was seen at the Kirkpatrick residenc e at about the time of the robbery there. Items stolen at the Kirkp atrick and Gross
residences were linked to Petitioner. The ev ening of the robbery at the Kirkpatrick residence, Petitioner sold s ome jewelry to a jeweler in Philadelphia, and most of it was later id entified as having been stolen in the robbery at the Kirkpatricks' r esidence. A gold St. Christopher money clip that Mrs. Gross alway s used was missing when her body was found. Duon Miller testifi ed that Petitioner had tried to give him a gold St. Christopher mon ey 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 Simo ne, saw such a money clip in Miller's briefcase in Zurich some da ys later.

There were similarities in the crimes commit ted at the Good Scents Shop, the Kirkpatrick residence, and the Gro ss estate. In all three, robbery appeared to be the motive, the same gun was used, and in12evidence that the Commonwealth presented, Buehl can not

show that the absence of a limiting instruction dep rived him a "a fair trial, a trial whose result is reliab le." Strickland, 466 U.S. at 687.

It is firmly established that a court must consider the strength of the evidence in deciding whether the St rickland 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. Thi s is necessary because Strickland's prejudice prong requ ires a
court to determine whether there is a reasonable probability that, but for counsel's errors, the res ult of the
trial would have been different. See Flamer v. Dela ware, 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), ce rt. denied, 516 U.S. 1088 (1996); Todaro v. Fulcomer, 9 44 F.2d 1079, 1085 (3d Cir. 1991). A court simply cannot ma ke this determination without considering the strength of t he 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 oth er circuit has also recognized that, in analyzing Stri ckland's prejudice prong, a court must consider the magnitud e of the evidence against the defendant. See, e.g., Huff ington v. Nuth, 140 F.3d 572, 578 (4th Cir.), cert. denied, 1 19 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, 6 92-93 (10th Cir. 1997); Hays v. Alabama, 85 F.3d 1492, 14 96 (11th Cir. 1996), cert. denied, 117 S.Ct. 1262 (199 7); United

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the first two robberies, there was substanti al 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 ev idence 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 oth er more minor items of evidence that further strengthened the prose cution's case.

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

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

v. DuBois, 38 F.3d 1, 16 (1st Cir. 1994), cert. den ied, 513 U.S. 1129 (1995); United States v. Royal, 972 F.2d 643, 650 (5th Cir. 1992) ("The overwhelming evidence of Defe ndant's guilt further supports our conclusion that he suffe red no prejudice as a result of his counsel's performance. "), cert. denied, 507 U.S. 911 (1993); Strouse v. Leonardo, 9 28 F.2d 548, 556 (2d Cir. 1991); Otey v. Grammer, 859 F.2d 575, 580 (8th Cir. 1988), cert. denied, 497 U.S. 1031 (1 990); Krist v. Foltz, 804 F.2d 944, 947 (6th Cir. 1986). We thus agree with the District Court that Buehl is not ent itled to
habeas relief based on trial counsel's failure to r equest a limiting instruction relating to the other crimes e vidence.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 righ t to effective assistance of counsel on direct appeal, s ee Evitts v. Lucey, 469 U.S. 387, 393-94 (1985), was violated be cause the attorney who represented him at that stage fail ed to argue that trial counsel had rendered ineffective a ssistance in neglecting to request the cautionary instruction discussed above. In making this argument, Buehl rel ies chiefly on the manner in which the Pennsylvania Sup reme Court treated this argument when Buehl raised it in his appeal from the denial of his PCRA petition. Six ju stices heard the appeal, and as previously noted, all of t hem seem to have proceeded on the erroneous assumption that

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6. In arguing that the Strickland's prejudice prong is met in this case, Buehl contends that in his appeal from the denial o f PCRA relief a majority of the Justices of the Pennsylvania Suprem e 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 courtf inding is factual in
nature or because deference is otherwise to be acco rded 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 B uehl's contention that his appellate counsel was ineffective), we will add ress in some detail the Pennsylvania Supreme Court's discussion of the prej udicial effect of trial counsel's asserted error. For present purposes, how ever, 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 St rickland test must be reviewed de novo. Berryman, 100 F.3d at 1094.

14Buehl's trial attorney never requested a cautionary

instruction. The plurality, in an opinion written b y Justice Montemuro and joined by Justices Zappala and Castil le,
first stated that Buehl's "trial counsel was ineffe ctive for failing to request a cautionary instruction regardi ng these crimes because it cannot be said with any reasonabl e 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 posit ion was entitled to relief "only in those instances in whic h counsel's ineffectiveness `so undermined the truth-determinin g process that no reliable adjudication of guilt or i nnocence 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 evid ence presented by the Commonwealth, including the evidence linking the bullets and shell casin gs from the robberies of the Good Scents Shop and the Ki rkpatrick home to the murder weapon, created overwhelm ing evidence of Appellant's guilt. Thus, while w e are able to say that due to the prejudicial nature of th e evidence in question the outcome of Appellant's trial may have been different had counsel requested a cauti onary instruction, we are unable to say that due t o this omission the adjudication of guilt is unreli able. As a result, appellant's claim does not constitut e 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 prejudic e 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 Just ice Nix
concluded that Buehl had not "met his burden of establishing that he was prejudiced by counsel's fa ilure to request a cautionary instruction." 658 A.2d at 782- 83 (Nix, C.J., concurring).

15Justice 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 ass istance of counsel and the PCRA provision cited by the plurali ty. Id. at 785. Referring to Justice Montemuro's opinion, h e wrote that "[t]he Majority does not explain why the adjud ication of guilt is reliable if the outcome would have been di fferent." Id. (emphasis in original). Then, without discussin g 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 recei ved ineffective assistance of counsel on direct appeal because, if the attorney who represented him at that stage h ad argued that trial counsel had rendered ineffective assistance in failing to request a cautionary instr uction, 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: "Thr ee Justices stated that a new trial would have been or dered if the issue was raised on direct appeal and two Justi ces would have ordered a new trial on direct or collate ral attack." Appellant's Br. at 23.

We reject Buehl's argument because he has not satis fied 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 cautio nary instruction argument on appeal fell outside "the wi de range of reasonable professional assistance; that is,[he would have to] overcome the presumption that, under the circumstances, the challenged action `might be cons idered sound [appellate] strategy.' " Strickland, 466 U.S. at 689 (citation omitted). One element of effective appell ate strategy is the exercise of reasonable selectivity in deciding which arguments to raise. In this case, an appellat e attorney familiar with the record could not have et hically argued that trial counsel's handling of the caution ary instruction issue was constitutionally deficient wi thout calling to the attention of the Pennsylvania Suprem e Court the passages in the record that we discussed above and that convince us that Buehl's trial attorney did in fact

16request a cautionary instruction. Knowing this, a

competent appellate attorney could have reasonably concluded he was unlikely to convince the Pennsylva nia Supreme Court that trial counsel was constitutional ly ineffective in his handling of the cautionary instr uction 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 convinc e the Pennsylvania Supreme Court that trial counsel's performance was deficient, appellate counsel could have reasonably concluded that it was unlikely that he c ould satisfy Strickland's prejudice prong and that it wa s therefore strategically unwise to select this argum ent as
one of those to be raised.

As previously noted, our examination of the record convinces us that there is no reasonable probabilit y that the jury's verdict would have been any different if a more explicit cautionary instruction had been given. Aft er carefully reviewing the record, the District Court reached the same conclusion. And while we have given carefu l consideration to the opinions written by Justices Montemuro and Cappy in Buehl's PCRA appeal, those opinions do not convince that competent appellate c ounsel
could not have concluded that the likelihood of sat isfying Strickland's prejudice prong was not high enough to justify raising the argument in question. We note that Just ice Montemuro characterized that evidence against Buehl as "overwhelming" and that Justice Cappy's opinion doe s not discuss the evidence and does not explain why there is a reasonable probability that a stronger or more expl icit cautionary instruction would have caused the jury t o return a different verdict. Consequently, we hold t hat appellate counsel did not render constitutionally i neffective
assistance.

D. Pennsylvania Supreme Court's alleged violat ion of due process. In conjunction with his Sixth Amendment argument regarding his representation on direct app eal, Buehl raises a related due process issue. Buehl con tends that the Pennsylvania Supreme Court violated his du e process rights because the plurality's interpretati on of the standard for obtaining PCRA relief was "untenable o r

17amounts 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 whi ch, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudica tion of guilt or innocence could have taken place." Buehl s uggests that the plurality deliberately ignored another pro vision of the same statute, 42 Pa. Cons. Stat. Ann. S 9543(a) (2)(v) (repealed 1995), which permitted relief to be grant ed for "[a] violation of the provisions of the Constitution, la w or treaties of the United States which would require t he 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 statu tory quotation in its opinion . . . ." Appellant's Br. a t 26. Buehl contends that the plurality's misinterpretation of the PCRA was " `untenable or amount[ed] to a subterfuge to a void federal review of a constitutional violation,' " th at his due process rights were therefore violated, and that "f ederal habeas relief is mandated." Appellant's Br. at 26 ( quoting Taylor v. Kinchleloe, 920 F.2d 599, 609 (9th Cir. 1 990)).

We are not persuaded by this argument. First, the Pennsylvania Supreme Court plurality's interpretati on of the PCRA was neither "an `obvious subterfuge to eva de consideration of a federal issue,' " Mullaney v. Wi lkur, 421 U.S. 684, 691 n.11 (1975) (quoting Radio Station WO W, Inc. v. Johnson, 326 U.S. 120, 129 (1945)) nor a"plainly untenable" interpretation in the sense possibly rel evant here.7 See Ward v. Love County, 253 U.S. 17, 22 (1919). Bu ehl's charge of subterfuge flies in the face of the error s that the plurality made in his favor -- i.e., its erroneous factual assumption that trial counsel never sought a limiti ng instruction and its erroneous legal conclusion that

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7. The Supreme Court's decision in Ward v. Love Cou nty, 253 U.S. 17, 23 (1919), seems to be the origin of the Ninth Circ uit'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 interpr etation is "untenable." (Taylor cited Knapp v. Caldwell, 667 F.2d 1253, 126 0 (9th Cir.), cert. denied, 459 U.S. 1055 (1982), which in turn cited W ard.)

18Strickland's prejudice prong was met. His suggestio n 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 t wo 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 c harge 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 ha beas court may reject a state court's "plainly untenable " interpretation of state law, we find that this dema nding test is not met. Since 42 Pa. Cons. Stat. Ann. S 9543(a) (2)(ii) (West 1998) specifically addresses claims of ineffe ctive assistance of counsel, it was not "plainly untenabl e" for the plurality (and, indeed, for the entire Pennsylvania Supreme Court) to treat that provision, rather than the mor e general rule set out in 42 Pa. Cons. Stat. Ann. S 9543(a)(2 )(v) (repealed 1995), as the governing provision. Nor wa s it "plainly untenable" for the plurality to view the t est prescribed in 42 Pa. Cons. Stat. Ann. S 9543(a)(2)( ii) (West 1998) (whether the ineffective assistance "so under mined the truth-determining process that no reliable adju dication of guilt or innocence could have taken place") as m ore demanding than Strickland's prejudice prong (whethe r "there is a reasonable probability that, but for co unsel's unprofessional errors, the result of the proceeding s 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 prerogati ve to review that interpretation de novo or (b) whether i t seems to us that this interpretation was consistent with prior state cases. Limiting ourselves to the narrow question wh ether the plurality's interpretation was "plainly untenab le," we
hold that it was not.

Furthermore, even if we were to conclude otherwise, we would still not hold that Buehl is entitled to fede ral habeas corpus relief. Buehl wants us to overrule the Penns ylvania Supreme Court's interpretation of Pennsylvania law (the

19PCRA) while deferring to that court's interpretatio n of

federal law (the Sixth Amendment standard for ineff ective assistance of counsel). We see no basis for such an approach. If we were to hold that Buehl was entitle d to
PCRA relief on his ineffective assistance of counse l claim if
he could establish "a violation of the federal Cons titution that would require the granting of Federal habeas c orpus relief," 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v) (r epealed 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 ot her than the Pine Street and Kirkpatrick robberies. Buehl as serts 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 t estimony that Buehl offered to kill Ross's enemies, Detectiv e Richard
Natoli's reference to the service of a search warra nt 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 w as introduced solely to demonstrate his bad character and his propensity to commit murder.

Observing that these references to other criminal a ctivity were "neither extensive nor detailed," the Pennsylv ania Supreme Court rejected Buehl's argument on two grou nds. Commonwealth v. Buehl, 658 A.2d 771, 778 n.6 (Pa. 1 995). First, it held that Buehl failed to satisfy Strickl and's performance prong, since his counsel might have had a reasonable basis for electing not to object to thes e statements. Because the statements were fleeting, t he Court noted that "trial counsel may have wished to avoid emphasizing what might have gone relatively unnotic ed by the jury." Id. Second, the Court concluded that the re was no reasonable probability that these references cha nged the

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

prejudice created by these fleeting remarks was ins ufficient
to establish constitutional violation. See id.

We agree with the Pennsylvania Supreme Court's analysis. An objection to these brief portions of t estimony might have simply highlighted the statements for th e 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 exam ple, Miller's testimony that Buehl threatened to get his PPK is relevant to show that Buehl was in possession of th e type of gun used in the murders. However, even if none o f this evidence was properly admissible, since the testimo ny was such a small part of the inculpatory evidence prese nted against Buehl, there is no reasonable probability t hat the
result of Buehl's trial would have been different i f the evidence had been excluded, and therefore Buehl's argument also fails Strickland's prejudice requirem ent.

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 th e prosecutor's closing argument.8 Claiming that the prosecutor improperly vouched for witnesses and exp ressed 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 defendan t creates a risk that the jury will "trust the Government's jud gment
rather than its own view of the evidence." United S tates v. Young, 470 U.S. 1, 18-19 (1985). However, the fact that a prosecutor made improper statements is insufficient , by

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8. The Commonwealth asserts that Buehl failed to ex haust this issue and the issue discussed below regarding inconsisten t jury verdicts. However, we conclude that these issues were exhaust ed because they were presented to the Pennsylvania Supreme Court in Buehl's pro se
brief.

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

defendant must also demonstrate that the prosecutor 's improper statements prejudiced his defense. See Uni ted States v. Gross, 961 F.2d 1097, 1108 (3d Cir. 1992) (citing United States v. Swinehart, 617 F.2d 336, 339 (3d C ir. 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 knowledg e 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 ca se. These comments did not suggest to the jury that the prosecutor possessed evidence of guilt other than t hat which had been presented in open court. Rather, the comments merely expressed a belief that the evidenc e presented to the jury was credible. We have previou sly held this kind of comment insufficient to establish prej udice 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 f rom making these assertions. Accordingly, we conclude t hat Buehl cannot show the requisite prejudice to establ ish
ineffective assistance of counsel on this claim.

G. Trial counsel's failure to object to an ins truc tion on intent. Buehl's next argument is that his trial cou nsel'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 fo llowing jury charge, which was delivered by the trial court
, improperly established a mandatory presumption of i ntent:

In the trial of a person for committing or a ttempting 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 eviden ce of his
intention to commit said crime of violence.

22Joint App. 145. Buehl complains that the written ve rdict

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. Fra nklin, 471 U.S. 311-12 (1985), and the use of the term "sh all," rather than "may be," in the instruction at issue s eems 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 e ntitled to relief. A writ of habeas corpus should issue only i f the reviewing court concludes that the instructional er ror "had a substantial and injurious effect or influence in determining the jury's verdict." Id. at 623. In thi s case, the nature of the prosecution's evidence and Buehl's de fense
rendered the error in this instruction harmless. Bo th the prosecution and defense either expressly or implied ly conceded that the killings at issue were done inten tionally,
and therefore the matter of Buehl's intent to kill was not an issue in his defense. Rather, Buehl based his entir e defense on a claim of mistaken identity--that he was not th e 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 s hot 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 ide ntity of
the killer. We therefore conclude that the court's
instructional error on intent did not have a substa ntial and injurious effect on the jury's verdict.

H. Failure to object to allegedly inconsistent gui lty verdicts. Buehl argues that his counsel was also constitutionally ineffective because he failed to o bject to the entry of inconsistent verdicts. With respect to eac h 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 deg ree

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9. The jury found Buehl not guilty of voluntary man slaughter. 18 Pa. Cons. Stat. Ann. S 2503 defines voluntary manslaugh ter as follows:

23murder under Pennsylvania law requires an intent to kill

and malice, whereas involuntary manslaughter requir es neither.10 Consequently, Buehl argues that the verd icts are
inconsistent and that the trial court would have be en required to vacate them if his trial counsel had ra ised a timely objection.11

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

lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and inte nse 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 individ ual killed.

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

(a) Murder of the first degree.--A criminal ho micide constitutes murder of the first degree when it is commit ted by an intentional killing.

. . .

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

be murder of the third degree. Murder of the th ird degree is a felony

of the first degree.

(d) Definitions.--As used in this section th e following words and phrases shall have the meanings given to the m in this subsection:

. . .

"Intentional killing." Killing by means of p oison, 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) provi des:

A person is guilty of involuntary manslaught er 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 a ct in a reckless or grossly negligent manner, he causes the deat h of another person.

11. The District Court reconciled Buehl's murder an d involuntary manslaughter convictions by reference to the Suprem e Court's statementin United States v. Powell, 469 U.S. 57 (1984), tha t a court may let stand

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

"the jury, convinced of guilt, properly reached its conc lusion on the [offense

24In order to determine whether Buehl's trial attorne y fell

below the minimum level of competence demanded by t he Sixth Amendment, we must first consider the governi ng 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 ha d long been that a guilty verdict could not be attacked on the ground that it was inconsistent with a not-guilty v erdict, 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 ha d held that this rule (generally called the Dunn Rule) was consistent with constitutional requirements. In a d ecision 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 t hat 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 d ecide 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 except ion to the

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for which the guilty verdict was returned], and the n through mistake, compromise, or lenity, arrived at an inconsistent c onclusion of the [offense for which it returned the not-guilty verdi ct]." See Buehl, No.
95- 5917, slip op. at 68-69 (E.D. Pa. Dec. 31, 1996) (c iting Powell, 469 U.S. at 64); see also, e.g., United States v. Wilson, 19 93 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 inconsisten t guilty verdicts, and we have stated that logically incompatible guilty v erdicts may not stand. See Gross, 961 F.2d at 1106.

12. In this situtation, the Supreme Court has reaso ned, it is impossible to determine whether the prosecution or defense is prejudiced. It is entirely possible that the guilty verdict represent s 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 prejudi ced, but the defendant is protected by the "independent review o f the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67.

25Dunn 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 pat ently unjust because a defendant would be convicted of tw o crimes, at least one of which he could not have com mitted." See also Masoner v. Thurman, 996 F.2d 1003, 1005 (9 th Cir.) ("a due process challenge to a jury verdict o n the ground that convictions of multiple counts are inco nsistent
with one another will not be considered if the defe ndant cannot demonstrate that the challenged verdicts are necessarily logically inconsistent. If based on evi dence presented to the jury any rational fact finder coul d have found a consistent set of facts supporting both con victions, due process does not require that the convictions b e vacated."),13 cert. denied, 510 U.S. 1028 (1993).

Because the Powell footnote and our opinion in Gros s 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 w ill 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 inconsis tent guilty verdicts and the defense objected, the judge was ob ligated to instruct the jury to retire and cure the inconsi stency. 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 comp etent assistance," Strickland, 466 U.S. at 690, in failin g to object that the jury's verdicts of guilty on the charges o ffirst 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

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13. Other courts, however, have expressed the view that the Dunn rule extends to cases in which the jury returns inconsis tent guilty verdicts. See United States v. Grier, 866 F.2d 908, 929 (7th Cir. 1989).

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

26inconsistency in the verdicts. To be sure, the mini mum

requisite mens rea for each of these offenses diffe rs, but the Pennsylvania Criminal Code generally follows the Mo del Penal Code rule that a lesser mens rea may be satis fied 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, al though involuntary manslaughter requires only recklessness or gross negligence,16 that element may be satisfied b y proof that the defendant intentionally killed the deceden t, as the first degree murder statute requires. See 18 Pa. Co ns. Stat. Ann. S 2502(a) (West 1998). Accordingly, afinding t hat Buehl intentionally killed the victims (which is im plicit in the verdicts of guilty of first degree murder) is l ogically 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 co uld be
viewed as subsumed within the element of malice nee ded 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 manifest ing
extreme indifference for the value of human life."1 7 Justice

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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 rec klessness suffices to establish an element, such element also is e stablished if a person acts purposely or knowingly. When acting kno wingly suffices to establish an element, such element also is e stablished if a person acts purposely.

Similarly, 18 Pa. Cons. Stat. Ann. S 302(e) (West 1 998) 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 know ingly suffices to establish an element, such element also is e stablished if a person acts intentionally.

16. See footnote 10, supra.

17. Commonwealth v. Garcia, 378 A.2d 1199, 1206 n.1 1 (Pa. 1977) (plurality opinion). Pennsylvania cases define mali ce as "wickedness of27Roberts's plurality opinion in Commonwealth v. Garc ia, 378

A.2d 1199, 1205-07 & n.14 (Pa. 1977), made precisel y this point. Justice Roberts carefully explained why the state of
mind that suffices to establish the commission of involuntary manslaughter constitutes a lesser inclu ded kind of culpability with respect to the malice that is an essential element of murder, and he therefore concl uded that the offense of involuntary manslaughter is inc luded
within the offense of murder. Id. It is difficult t o 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 jurisdict ions have recognized that multiple guilty verdicts for the sa me conduct that are based on varying levels of mens re a 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 incon sistency
flows from a conviction on a lesser included offens e); Engram v. Hallahan, 1997 WL 579112 (9th Cir. Sept. 11, 1997) (same).

In view of these authorities, a lawyer whose perfor mance met the Strickland standard of professional compete nce could have easily failed to perceive at the time in question that the Buehl verdicts might be attacked as incons istent. This is not to say that Pennsylvania case law provi ded no basis for such argument. Commonwealth v. Brightwell , 424 A.2d 1263, 1264 (Pa. 1981), which suggested that gu ilty

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disposition, hardness of heart, wanton conduct, cru elty, recklessness of consequences and a mind regardless of social duty." Commonwealth v. Lopez, 627 A.2d 1229, 1230 (Pa. Super. Ct. 1993). M alice may also be found "where the principal acts in gross deviation from the standard of reasonable care, failing to perceive that such acti ons might create a substantial and unjustifiable risk of death or seri ous bodily injury." Stidman v. Midvale Sportsmen Club, 618 A.2d 945, 95 1 (Pa. Super. 1992), appeal denied, 637 A.2d 290 (Pa. 1993). The Pennsylvania Supreme Court has stated that malice "consists of e ither an express intent to kill or inflict great bodily harm." Commo nwealth v. Paquette, 301 A.2d 837, 840 (Pa. 1973); see also Commonwealth v. Seibert, 622 A.2d 361, 366 (Pa. 1993) (citing Commonwealth v. Pi gg, 571 A.2d 438 (Pa. Super. Ct. 1990); Commonwealth v. Kersten , 48 2 A.2d 600 (Pa. Super. Ct. 1984)).

28verdicts for murder and voluntary manslaughter were

inconsistent,18 furnished such a basis.19 But a law yer's failure to perceive the ground for crafting an argu ment that might have succeeded is very different from the fai lure to meet the level of competence required by the Sixth
Amendment. We thus hold that Buehl has failed to me et 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 t hat the verdicts were inconsistent, the most that the trial judge might have done was to direct the jury to retire an d reconsider its verdict. Brightwell, 424 A.2d at 126 4. In light
of the evidence in this case -- which left little d oubt that the perpetrator acted with a greater mens rea than that required for involuntary manslaughter -- we see no substantial likelihood that the jury (which subsequ ently sentenced Buehl to death) would have retracted its verdicts of first and third degree murder and found Buehl gu ilty of involuntary manslaughter only. It seems very likely that the jury initially found Buehl guilty of involuntary manslaughter, not because it concluded that he kill ed the victims unintentionally, but because it believed th at his intent to kill, while more than required to prove i nvoluntary manslaughter, was nevertheless sufficient. We thus hold that Buehl's trial attorney did not violate his cli ent's Sixth Amendment rights by failing to object to the verdic ts as
inconsistent.

I. Cumulative prejudice. As a final Sixt h Amendmen t argument, Buehl contends that, in applying Strickla nd, 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 mansl aughter if he acted "under a sudden and intense passion resulting from serious provocation . . . ." 18 Pa. Cons. Stat. Ann. S 2503(a) (West 19 98). A defendant may also be convicted of voluntary manslaughter if he i ntentionally or knowingly kills the victim based on the unreasonabl e belief that the killing is justified. Id. The presence of these aff irmative elements might be viewed as logically inconsistent with malice, bu t the offense of involuntary manslaughter contains no similar elemen ts.

19. See also Commonwealth v. Kemmerer, 584 A.2d 940 , 945 (Pa. 1991),
which came well after the Buehl verdicts.

29conducting this review, we conclude that the Distri ct Court

correctly determined that the overwhelming evidence of Buehl's guilt prevents him from satisfying Strickla nd's prejudice prong.

III

We turn now to Buehl's claim that the prosecution violated his due process rights by improperly withh olding exculpatory and impeaching evidence. Buehl asserts that the prosecution did not inform his counsel that cou nty detectives had overheard prosecution witness Joseph Dwyer state that he had seen Kelly in possession of his P PK a few weeks after the Gross family was murdered. Buehl al so 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 t he Commonwealth provided to Dwyer. Since Buehl's defen se proceeded on the theory that Kelly--who was the own er of the PPK--was the real killer, Buehl asserts that th e prosecution's failure to reveal this information de prived him of exculpatory evidence and impeachment material an d
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 pros ecution must also disclose evidence that goes to the credib ility 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 prosecut ion's
failure to disclose such evidence amounts to a viol ation of due process only if there is a reasonable probabili ty that the jury would have returned a different verdict if the information had been disclosed, or, stated differen tly, if "the Government's evidentiary suppression undermines confidence in the outcome of the trial." Kyles v. W hitney, 514 U.S. 419, 434 (1995). "[T]he Constitution is no t violated every time the government fails or chooses not to d isclose 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 m andate
automatic reversal. . . . A reversal is warranted o nly where

30the suppression of the Brady evidence undermines

confidence in the outcome of the trial."). In evalu ating whether the government's failure to turn over Brady or Giglio material undermines confidence in the outcom e 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 n ot provide the information listed above but asserts th at it was not required to provide all of that information. Th e Commonwealth argues that it was not required to inf orm Buehl of Dwyer's alleged statement because the pros ecution was unable to verify whether Dwyer in fact made suc h a statement. When the prosecution investigated the detectives' report, Dwyer denied making the stateme nt, 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 allegedstatement, 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 overhear d by the detectives could have been used for impeachment, an d the statement itself might have been admissible dependi ng on how the detectives recorded Dwyer's statement. See Commonwealth v. Sholcosky, 719 A.2d 1039, 1044 (Pa. 1998) (prior inconsistent statement is admissible a s substantive evidence if it is embodied in an electr onic, audiotaped or videotaped recording).

Nevertheless, we conclude that Buehl's Brady argume nt lacks merit because the prosecution's failure to di sclose the information is not sufficient to "undermine[ ] conf idence in the outcome of the trial." Kyles, 514 U.S. at 434. Dwyer's statement that Kelly had the PPK several weeks afte r the murders does not seriously undercut the evidence th at Buehl was in possession of the gun at the time of t he
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 even ing. On the afternoon of the murders, Buehl appeared in LaM otte's

31office 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 w ith a PPK, and Buehl threatened to "blow Miller away" wit h the same weapon. In light of this overwhelming evidence that Buehl had the PPK at the time of the killings and t hat 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 pos sessed the gun several weeks after the killings.

Additionally, the government's failure to disclose its witnesses' complete criminal histories does not suf ficiently
undermine confidence in the outcome of his case bec ause 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 ab le to discredit Dwyer and Kelly effectively at trial.

Moreover, the government's failure to disclose Dwye r's alleged statement, the witnesses' complete criminal histories, and the alleged favors provided to Dwyer is offset by the significant amount of evidence presented aga inst Buehl. Given the weight of this evidence and the mi tigating 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 Bue hl's trial and appellate counsel were not constitutional ly ineffective and that his due process rights were no t violated. We therefore affirm the judgment of the D istrict

Court.

32A True Copy:

Teste:

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

33