2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-2010

Real v. Shannon

Precedential or Non-Precedential: Precedential

Docket No. 07-4532

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Recommended Citation

"Real v. Shannon" (2010). 2010 Decisions. Paper 1592.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-4532

____________

TORREY B. REAL,

Appellant

v.

SUPERINTENDENT SHANNON; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA; 

FIRST DEPUTY PROSECUTOR 

YORK COUNTY DISTRICT ATTORNEY

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 07-cv-00733)

District Judge: The Honorable Richard P. Conaboy

____________

Argued January 25, 2010
 Honorable Paul S. Diamond, United States District *

Judge for the Eastern District of Pennsylvania, sitting by

designation.

2

Before: FUENTES and FISHER, Circuit Judges, and

DIAMOND, District Judge. *

(Filed: March 3, 2010)

Diana Stavroulakis, Esq.[ARGUED]

262 Elm Court

Pittsburgh, PA 15237

Counsel for Appellant

Jeffrey F. Boyles, Esq.[ARGUED]

David J. Maisch, Esq.

Office of District Attorney of York County

45 North George Street

York County Judicial Center

York, PA 17401

Counsel for Appellees

____________

OPINION OF THE COURT

____________

DIAMOND, District Judge.
3

Torrey Real appeals from the District Court’s denial of

his petition for a writ of habeas corpus. 28 U.S.C. § 2254. We

granted a certificate of appealability to consider whether Real’s

trial counsel was ineffective. For the reasons that follow, we

affirm. 

I.

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

II.

On February 4, 1999, the Commonwealth of

Pennsylvania charged Appellant with rape, statutory sexual

assault, aggravated indecent assault, and corruption of a minor,

alleging that Real attacked a twelve-year-old girl in January

1999. On March 18, 1999, Real was also charged with rape and

corruption of a minor for attacking a fifteen-year-old girl “on or

about December 1996.” The victims in these prosecutions were

stepsisters. The two cases were consolidated, and trial was

scheduled for May 2000 in the York County Common Pleas

Court. 

In a letter dated December 23, 1999, Real’s trial counsel

notified the prosecutor and the court that he intended to present

military records to establish an alibi for Real with respect to the

1996 rape. See Pa. R. Crim. P. 567 (“A defendant who intends

to offer the defense of alibi at trial shall file with the clerk of

courts . . . a notice specifying an intention to offer an alibi

defense, and shall serve a copy of the notice . . . on the attorney

for the Commonwealth.”). 
4

At trial, the 1996 victim (“B.B.”) testified that although

she was not certain, she believed that Real assaulted her

sometime between November and December 1996. Counsel did

not object to this testimony, even though it was arguably

inconsistent with the criminal information charging Real, which

stated that the attack occurred “on or about December 1996.”

Rather, defense counselsought to establish that: (1) both victims

had colluded to make false charges against Real; and (2) Real

had an alibi – military service – for most of November and

December 1996. Accordingly, counsel vigorously crossexamined B.B., suggesting that her inability to remember the

date of the assault was not credible. Counsel also presented

records showing that Real traveled to South Carolina on

November 18, 1996 to begin U.S. Army service and did not

return to York until February 1997. Real testified to these same

facts. 

In their closings, the prosecutor and defense counsel

sought to characterize the evidence to their advantage. The

prosecutor argued that in light of B.B.’s testimony that the rape

might have occurred in November, Real’s alibi defense – which

covered the period beginning November 18th – was incomplete.

Defense counsel argued that Real could not have attacked B.B.

because he was performing military service. Counsel also told

that jury that B.B. was not credible, especially because she could

not recall the date and circumstances of the attack. 

The trial court later charged the jury that

in regards to [B.B.], her testimony was she

believed [the rape] occurred during the period

November, December 1996, although she was not
5

certain of the exact date and, of course, that whole

issue as to when it occurred, if you determine that

it did occur, and the alibi defense. All of that you

will have to reconcile and measure. 

But the point here is that you are not bound by any

particular or specific date. It is not an essential

element of the crime or crimes charged. You may

find the Defendant guilty if you are satisfied

beyond a reasonable doubt that he committed the

crime charged even though you’re not satisfied that

he committed it on a particular day or at the

particular time alleged in the charging documents.

(App. at 87.) Trial counsel did not object to these instructions.

On May 10, 2000, the jury returned a guilty verdict on all

but one charge: corruption of a minor in connection with the

1996 attack. On June 19, 2000, the trial court sentenced Real to

an aggregate term of ten to twenty years imprisonment. The

Pennsylvania Superior Court affirmed, and the Pennsylvania

Supreme Court denied allocatur. See Commonwealth v. Real,

792 A.2d 1286 (Pa. Super. 2001), appeal denied, 831 A.2d 599

(Pa. 2003). 

On November 28, 2004, Real filed a timely pro se

petition in state court under the Post Conviction Relief Act. 42

Pa. Cons. Stat. § 9541. The PCRA Court subsequently

appointed counsel, who contended, inter alia, that trial counsel

was ineffective for failing to object to: (1) B.B.’s testimony that

she was raped in November or December 1996, even though the
6

information stated that the rape occurred “on or about December

1996”; and (2) the trial court’s alibi instruction. Following an

evidentiary hearing, the PCRA Court denied relief on June 6,

2005, and Real appealed to the Superior Court. 

On appeal, Real reiterated his contention that trial

counsel ineffectively failed to raise the purported variance

between the criminal information and B.B.’s testimony. Relying

on Commonwealth v. Devlin, the Superior Court affirmed. 333

A.2d 888 (Pa. 1975). In Devlin, the Pennsylvania Supreme

Court held that the Commonwealth is required to prove the date

on which a crime was committed only to a “reasonable

certainty,” even when the defendant presents an alibi defense.

Id. at 891. The Devlin Court did not create a single test for

determining when a variance as to the date of the charged

offense might be impermissible, noting instead that “[a]ny

leeway permissible [must] vary with the nature of the crime and

the age and condition of the victim, balanced against the rights

of the accused.” Id. at 892. Applying this test to Real’s case,

the Superior Court balanced the serious nature of the crimes

charged, B.B.’s age, and the time that had passed between the

attack and B.B.’s testimony against Real’s due process rights,

concluding that “the variance between the allegations in the

criminal information and the proof adduced during trial was

reasonable . . . .” (App. at 38.) Accordingly, the Court ruled

that trial counsel was not ineffective for failing to raise a

meritless variance objection to B.B.’s testimony. 

The Court similarly rejected Real’s contentions

respecting trial counsel’s failure to object to the trial court’s

instructions:
7

The record supports the PCRA court’s

determination that the trial court properly advised

the jury to consider [Real’s] alibi defense along

with all of the other evidence in determining

whether the Commonwealth satisfied its burden of

proving beyond a reasonable doubt that [Real]

committed the offenses charged. Thus, when read

in its entirety, the court’s jury instruction clearly,

adequately, and accurately reflected the law. As

such, [Real’s] ineffective assistance of counsel

claim lacks arguable merit.

(Id. at 39-40.) Rejecting Real’s remaining claims on April 19,

2006, the Superior Court affirmed the denial of PCRA relief. 

On April 20, 2007, Real, again acting pro se, sought

habeas corpus relief in the District Court, alleging that his trial

counsel was ineffective for failing to: (1) seek a severance with

respect to the 1996 and 1999 attacks; (2) object to the purported

variance between B.B.’s testimony and the criminal information;

and (3) object to the trial court’s jury instruction. 28 U.S.C. §

2254.

On October 29, 2007, the District Court denied relief,

concluding that the Superior Court’s adjudication of Real’s

claims did not “result[] in a decision that was contrary to, or

involve[] an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d). The District Court also

found no basis for the issuance of a certificate of appealability.

On December 3, 2007, Real filed a Notice of Appeal,

along with an Application for a Certificate of Appealability. On

February 7, 2008, we granted Real a certificate of appealability
8

to consider whether trial counsel was ineffective for failing to

object to: (1) the variance between B.B.’s testimony and the

criminal information; and (2) the trial court’s instruction

regarding Real’s alibi defense. 

III.

Because the District Court denied Real’s petition without

conducting an evidentiary hearing, our review of the District

Court’s decision is plenary. Jacobs v. Horn, 395 F.3d 92, 99 (3d

Cir. 2005) (citation omitted). Under the Antiterrorism and

Effective Death Penalty Act of 1996, we apply the same

standards as the District Court: 

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless the

adjudication of the claim – 

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d); see also Marshall v. Hendricks, 307 F.3d

36, 50 (3d Cir. 2002). 
9

Real does not challenge the state courts’ factual

determinations. Rather, he contends that the Superior Court’s

rejection of his claims “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly

established Federal law,” and that he is thus “in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. §§ 2254(a), (d). We do not agree. 

A.

Real argues first that his trial counsel should have raised

the variance between B.B.’s testimony and the criminal

information. To determine whether a variance violates the

Constitution, federal courts look to “whether or not there has

been prejudice to the defendant,” focusing on the defendant’s

right to notice and his ability to defend himself at trial. United

States v. Asher, 854 F.2d 1483, 1497 (3d Cir. 1988) (internal

citations and quotation marks omitted). 

The true inquiry . . . is whether there has been

such a variance as to “affect the substantial

rights” of the accused. The general rule that

allegations and proof must correspond is based

upon the obvious requirements (1) that the

accused shall be definitely informed as to the

charges against him, so that he may be enabled to

present his defense and not be taken by surprise

by the evidence offered at the trial; and (2) that he

may be protected against another prosecution for

the same offense. 

Berger v. United States, 295 U.S. 78, 82 (U.S. 1935) (internal

citations omitted).

Accordingly, a variance violates the Constitution “only

if it is likely to have surprised or otherwise has prejudiced the

defense.” United States v. Daraio, 445 F.3d 253, 262 (3d Cir.

2006) (citing United States v. Schurr, 775 F.2d 549, 553-54 (3d
10

Cir. 1985)). Insofar as the Devlin test applied by the Superior

Court requires courts to balance the rights of the accused against

“the nature of the crime and the age and condition of the

victim,” this test is incompatible with federal law. Devlin is

“contrary to” Berger and related federal decisions, which focus

exclusively on whether a variance violates the defendant’s due

process rights. See Williams v. Taylor, 529 U.S. 362, 405

(2000) (“A state-court decision will certainly be contrary to our

clearly established precedent if the state court applies a rule that

contradicts the governing law set forth in our cases.”).

The Superior Court’s error, however, does not, by itself,

warrant the granting of habeas relief. Rather, where a state

prisoner “surmount[s] 2254(d)’s bar to habeas relief” by

showing that the state court’s decision is “contrary to” federal

law, the federal courts must review the prisoner’s claim de novo

under the correct federal standard. Wiggins v. Smith, 539 U.S.

510, 542 (2003) (citing Williams, 529 U.S. at 393-94, 397, 412).

Applying that standard, we do not believe the “variance”

between B.B.’s testimony and the information violated Real’s

due process rights. The information stated that B.B.’s rape

occurred “on or about December 1996.” “Where ‘on or about’

language is used, the government is not required to prove the

exact dates, if a date reasonably near is established.” United

States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987); accord

United States v. Benson, 591 F.3d 491, 497 (6th Cir. 2010);

United States v. Mata, 491 F.3d 237, 243 (5th Cir. 2007); United

States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989); United

States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988).

Our sister Circuits have held that where, as here, the

government’s evidence proves that an offense was committed

within a month of the month specified in an “on or about”

indictment or information, the “reasonably near” requirement is

satisfied. See, e.g., United States v. Portela, 167 F.3d 687, 698

n.7 (1st Cir. 1999) (“The indictment’s specification of
11

possession ‘on or about’ March 1995 reasonably encompasses

criminal conduct in April 1995.”); United States v. Barsanti, 943

F.2d 428, 438-39 (4th Cir. 1991) (variance of four months did

not prejudice the defendant); Nersesian, 824 F.2d at 1323 (“In

our view, the government’s argument that the date of the actual

transaction was possibly July or early August was not an

improper material variance from the ‘on or about June 1984’

date charged in the indictment.”); cf. United States v. Ross, 412

F.3d 771, 775 (7th Cir. 2005) (“Four years isn’t ‘reasonably

near.’”). Accordingly, in charging that the 1996 rape took place

“on or about December,” the Commonwealth necessarily

charged that the attack may have occurred in November or

January as well. In these circumstances, there was no variance

between B.B.’s testimony and the information, and no violation

of Real’s due process rights. 

Moreover, Real has not shown prejudice: trial counsel did

not testify at the PCRA hearing that he was surprised by B.B.’s

testimony, nor has Real explained how his defense would have

been different had the information explicitly stated that the rape

occurred in November or December 1996. For this reason as

well, we do not believe that the difference between the

information and B.B.’s testimony violated Real’s federal due

process rights. See United States v. Somers, 496 F.2d 723, 746

(3d Cir. 1974) (variance not unconstitutional unless defendant

was “so surprised by the proof adduced that he was unable to

prepare his defense adequately”); cf. Kokotan v. United States,

408 F.2d 1134, 1138 (10th Cir. 1969) (no prejudice to defendant

where proof at trial was within weeks of the specific “on or

about” date charged in the indictment). Accordingly, trial

counsel was not ineffective for failing to raise a meritless due

process objection to the variance between the information and

B.B.’s testimony. See Parrish v. Fulcomer, 150 F.3d 326, 328

(3d Cir. 1998) (counsel not ineffective for failing to raise a

meritless argument). 
12

B.

Real also argues that his trial counsel was ineffective for

failing to object to the trial court’s alibi instruction. In Real’s

view, the instruction: (1) did not comport with due process

because it “did not clarify for the jury that, in light of [Real’s]

alibi defense, time was of the essence”; and (2) contravened

Pennsylvania law, which provides that the alleged date of

occurrence is an essential element of the underlying crime where

the defendant presents an alibi. (Appellant’s Br. at 45, 48.) We

do not agree. 

“Habeas relief for a due process violation concerning an

absent or defective jury instruction is available only when the

absence of an instruction, or a defective instruction, infects the

entire trial with unfairness.” Albrecht v. Horn, 485 F.3d 103,

129 (3d Cir. 2007) (citing Cupp v. Naughten, 414 U.S. 141, 147

(1973)); see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977)

(an improper state court instruction warrants the granting of

habeas relief only upon a showing that “the ailing instruction by

itself so infected the entire trial that the resulting conviction

violates due process, not merely [that] the instruction is

undesirable, erroneous, or even universally condemned”)

(internal citations and quotation marks omitted). “The burden

of demonstrating that an erroneous instruction was so prejudicial

that it will support a collateral attack on the constitutional

validity of a state court’s judgment is even greater than the

showing required to establish plain error on direct appeal.” Id.

Although Real contends that his alibi defense made time

“essential and of the essence in the underlying case,” he offers

no supporting authority. (Appellant’s Br. at 42.) In fact, other

Circuits have expressly “rejected the contention that time

becomes a material element of a criminal offense merely

because the defense of alibi is advanced.” United States v.

Creamer, 721 F.2d 342, 343 (11th Cir. 1983) (citing United

States v. King, 703 F.2d 119, 123-24 (5th Cir.1983)); see also
13

United States v. Stuckey, 220 F.3d 976, 982 (8th Cir. 2000)

(“Time is not a material element of a criminal offense unless

made so by the statute creating the offense.”) (citations omitted).

In these circumstances, Real has failed to demonstrate that the

trial court’s instruction – which confirmed the Commonwealth’s

burden of presenting proof of Real’s guilt beyond a reasonable

doubt – “infect[ed] his entire trial with unfairness.” Albrecht,

485 F.3d at 129; see also United States v. Jacobs, 44 F.3d 1219,

1226 (3d Cir. 1995) (no due process violation where instruction,

“taken as a whole, adequately conveyed the concept of proof

beyond a reasonable doubt”).

Nor has Real shown that this instruction violated

Pennsylvania law. As the Superior Court noted, the challenged

instruction parallels Pennsylvania Suggested Standard Criminal

Jury Instruction 3.19, “Date of Crime: Proof of Date Alleged

Not Essential.” The Superior Court further observed that

Pennsylvania trial courts have “broad discretion in phrasing

[their] instructions so long as the law is clearly, adequately, and

accurately presented to the jury.” (App. at 38) (citing

Commonwealth v. Miller, 746 A.2d 592, 604 (Pa. 2000)). The

Court thus concluded that 

the trial court properly advised the jury to

consider [Real’s] alibi defense along with all of

the other evidence in determining whether the

Commonwealth satisfied is burden of proving

beyond a reasonable doubt that [Real] committed

the offenses charged. Thus, when read in its

entirety, the court’s jury instruction clearly,

adequately, and accurately reflected the law. As

such, [Real’s] ineffective assistance of counsel

claim lacks arguable merit. 

(App. at 39-40.) 
14

A federal court may re-examine a state court’s

interpretation of its own law only where this interpretation

“appears to be an obvious subterfuge to evade consideration of

a federal issue . . . .” Hallowell v. Keve, 555 F.2d 103, 107 (3d

Cir. 1977) (internal citations and quotation marks omitted).

Because there is nothing in the record to suggest that the

Superior Court was attempting “to evade consideration of a

federal issue,” we must accept that Court’s conclusion that the

trial court’s instruction was consistent with Pennsylvania law.

Id. Having done so, we find no basis on which to conclude that

this instruction was improper, either under federal due process

standards or state law. Accordingly, Real’s trial counsel was not

ineffective for failing to raise a meritless claim, and the Superior

Court’s denial of PCRA relief was neither “contrary to, [n]or

involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d); see also Parrish, 150 F.3d

at 328 (counsel not ineffective for failing to raise a meritless

argument). 

IV.

For the reasons stated, we will affirm the judgment of the

District Court.