Kindler v. Horn

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 03-9010 & 03-9011
_____________

JOSEPH J. KINDLER
Appellant in
No. 03-9011,

v.

MARTIN HORN, Commissioner, Pennsylvania Department
of Corrections;
*DAVID DIGUGLIELMO, Superintendent of the State
Correctional
Institution at Graterford; JOSEPH P. MAZURKIEWICZ,
Superintendent
of the State Correctional Institution at Rockview,
Appellants in
No. 03-9010

(*Amended - See Clerk's Order dated 1/6/05)

_____________

Appeal from the District Court
for the Eastern District of Pennsylvania
(Civil Action No. 99-cv-00161)
District Judge: Honorable J. Curtis Joyner
_____________

Argued October 12, 2010
On Remand from the Supreme Court of the United States
December 8, 2009

BEFORE: McKEE, Chief Judge, FUENTES, and
STAPLETON, Circuit Judges

1
 (Opinion Filed: April 29, 2011)

Leigh Skipper, Esq.
Jennifer L. Givens, Esq.
Matthew C. Lawry, Esq. (ARGUED)
Billy H. Nolas, Esq.
Maria Pulzetti, Esq.
Stephen L. Marley, Esq.
Federal Community Defender Office
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106-0000

Counsel for Apellee/Cross-Appellant

Ronald Eisenberg, Esq. (ARGUED)
David Curtis Glebe, Esq.
Thomas W. Dolgenos, Esq.
Joseph E. McGettigan III, Esq.
R. Seth Williams, Esq.
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107-3499

Counsel for Appellant/Cross-Appellees

_____________

OPINION OF THE COURT
_____________

FUENTES, Circuit Judge.

In 1983, a state court jury convicted Joseph Kindler of
killing a witness against him and recommended a sentence of
death. Following his trial, but before the death sentence had
been formally imposed, Kindler filed several post-verdict
motions. Before those motions could be heard, Kindler
escaped from custody, was captured, escaped again, and was
finally arrested and returned to Philadelphia in 1991.
Kindler's efforts to reinstate his post-verdict motions upon his
return were unsuccessful, and his judgment of conviction was

2
thereafter affirmed, based on Pennsylvania's fugitive
forfeiture doctrine. Commonwealth v. Kindler, 639 A.2d 1, 3
(Pa. 1994) ("Kindler I"); Commonwealth v. Kindler, 722 A.2d
143, 146-48 (Pa. 1998) ("Kindler II"). On review of his
petition for habeas relief, we agreed with the District Court
that the state's forfeiture rule did not provide an adequate
basis to bar federal habeas review. Kindler v. Horn, 291 F.
Supp. 2d 323, 343, 351 (E.D. Pa. 2003) ("Kindler III");
Kindler v. Horn, 542 F.3d 70, 78-80 (3d Cir. 2008) ("Kindler
IV"). After granting certiorari, the Supreme Court vacated
our decision and remanded the case, concluding that a state
procedural rule is not automatically inadequate and
unenforceable just because the state rule is discretionary
rather than mandatory. Beard v. Kindler, 130 S. Ct. 612, 618
(2009) ("Kindler V"). Kindler now argues on remand that
Pennsylvania did not apply a discretionary rule, but, instead,
applied a mandatory rule that represented a break from past
decisions. We agree and, for the following reasons, we will
affirm in part and reverse in part the District Court's order.

I.

Kindler's case is well-known. In 1982 he burglarized a
store in Pennsylvania with Scott Shaw and David Bernstein
and was captured by the police. He escaped. Meanwhile,
Bernstein fingered Kindler as the mastermind of the burglary
and offered to testify against both Kindler and Shaw. Kindler
was then arrested and released on bail. While out on bail he
devised and carried out a plan to prevent Bernstein from
testifying. Working with Shaw's girlfriend, Michelle Raifer,
Kindler lured Bernstein from his apartment, brutally struck
him over the head twenty times with a baseball bat, jabbed
him five times in the ribs with an electric prod, dragged
Bernstein's immobilized body into Raifer's car, and drove to
the banks of the Delaware River, where Kindler wrapped a
cinder block around Bernstein's neck and threw him into the
water.

A jury found Kindler guilty of murder and
recommended a death sentence. Afterwards, Kindler filed
post-verdict motions in which he argued, among other things,
(1) that the instructions given to the jury created a reasonable
likelihood that, when deciding on whether to recommend the

3
death penalty, the jury believed it could only consider
mitigating circumstances if those circumstances were
unanimously agreed upon and (2) that the prosecutor had
engaged in misconduct by improperly vouching for the
evidence against him. While those motions were pending, on
September 19, 1984, Kindler organized an effort to saw
through the external bars of his prison, escaped, and fled to
Canada. Approximately seven months later, he was arrested,
once again, for burglary. Once again, he was imprisoned.
And, once again, he escaped, this time through an organized
effort in which Kindler's fellow inmates hoisted him up to the
roof through a skylight, where he rappelled down the side of
the prison using a rope made of bed sheets. A fugitive for
two more years, Kindler was finally identified by Canadian
viewers of the television program "America's Most Wanted"
and arrested in September 1988. He contested extradition and
was not returned to Pennsylvania until September 16, 1991.

Kindler returned to find that, at the request of the
Commonwealth, the trial judge had dismissed his post-verdict
motions on account of his escape. Kindler filed a motion to
reinstate those motions. In an oral ruling, the Court of
Common Pleas denied the motion, finding that "the defendant
did voluntarily remove himself from the Detention Center by
escaping and loses all rights and privileges for post-trial
motions." S.A. 63. In October 1991, Kindler's death sentence
was formally imposed. On appeal, the Pennsylvania Supreme
Court affirmed the trial judge's decision to deny his motion to
reinstate his post-verdict motions, first explaining that the
general rule in Pennsylvania at the time was that fugitives
have "no right to any appellate review" and then crafting a
new rule barring appellate review if (1) the defendant's flight
has a connection to the court's ability to rule on the
defendant's case and (2) the sanction of dismissing the
defendant's appeal is reasonable under the circumstances.
Kindler I, 639 A.2d at 3.

Kindler then filed for relief under Pennsylvania's Post-
Conviction Relief Act (the "PCRA"), 42 Pa. C.S. §§ 9541 et
seq. (West 2007), arguing, among other things, that counsel
was constitutionally ineffective at the death penalty phase of
his trial. The PCRA court denied his petition and the
Pennsylvania Supreme Court affirmed, each concluding that

4
Kindler had no right to PCRA review because the
Pennsylvania Supreme Court had previously ruled that
Kindler forfeited his right to an appeal by escaping. Kindler
II, 722 A.2d at 146-48.

Kindler then turned to the federal courts for habeas
relief. The District Court concluded that the state fugitive
forfeiture rule used to dismiss Kindler's post-trial motions
was inadequate to bar federal review because it was not
"clearly established" that Pennsylvania courts were required
to dismiss a fugitive's appeals in situations where the fugitive
had fled and been captured before the appellate process was
ever initiated. After finding constitutional errors in the
penalty phase of his trial, the District Court issued an order
granting in part and denying in part Kindler's Petition for Writ
of Habeas Corpus. Kindler III, 291 F. Supp. 2d at 343, 351-
52 (E.D. Pa. 2003). On appeal, we agreed that the rule is
inadequate and, upon reviewing the merits, affirmed the
District Court's order granting habeas relief on Kindler's
claim that the jury instructions violated the Supreme Court's
decision in Mills v. Maryland, 486 U.S. 367 (1988) and
reversed the District Court's order denying habeas relief on
Kindler's claims that his counsel was constitutionally
ineffective and that he was the victim of prosecutorial
misconduct. Kindler IV, 542 F.3d at 72.

The Supreme Court then granted certiorari to decide
whether "a state procedural rule [is] automatically
'inadequate' under the adequate-state-grounds doctrine—and
therefore unenforceable on federal habeas review—because
the state rule is discretionary rather than mandatory."
Kindler V, 130 S. Ct. at 614-15. During the oral argument in
the Supreme Court, the parties agreed that the answer to this
question was "no." Transcript of Oral Argument at 29-31,
Kindler V, 130 S. Ct. 612 (2009)(No. 08-992). The Supreme
Court thus held that "a discretionary rule can serve as an
adequate ground to bar federal habeas review." Kindler V,
130 S. Ct. at 618. The court vacated our judgment and
remanded for further proceedings consistent with its opinion.
With the Supreme Court's holding in mind, we are once again
asked by the parties to determine whether Pennsylvania's
fugitive forfeiture rule, as applied to Kindler's case, is

5
inadequate, and therefore unenforceable on federal habeas
review.

II.

In its ruling, the Supreme Court stated that the test for
determining whether a rule is adequate is whether that rule is
"firmly established and regularly followed." Walker v.
Martin, 131 S. Ct. 1120, 1127 (2011) (quoting Kindler V, 130
S.Ct. at 617-18) . Adequacy in this case is determined
according to the law in effect when Kindler escaped from
prison on September 19, 1984. See Doctor v. Walters, 96
F.3d 675, 684 (3d Cir. 1996) (citing Reynolds v. Ellingsworth,
843 F.2d 712, 722 (3d Cir. 1988)).

The purpose of the adequacy doctrine is twofold: to
ensure that state courts do not set traps for unwary litigants
bringing disfavored claims, and to ensure that habeas
petitioners have fair notice of what they must do to avoid
default. Campbell v. Burris, 515 F.3d 172, 179 (3d Cir.
2008). "In applying these principles, this Court seeks to
determine whether the state rule itself provides guidance
regarding how the rule should be applied or whether such
standards have developed in practice." Id. (citing Doctor, 96
F.3d at 684-85). A state procedural rule consistently applied
in the majority of cases, but occasionally overlooked in
others, may nevertheless be adequate. Doctor, 96 F.3d at 684
(citing Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989)).
Thus, as we explained in the course of enforcing a state
equivalent of the federal plain error rule in Campbell,

[t]he issue is not whether the state procedural
default rule leaves room for the exercise of
some judicial discretion – almost all do.
Rather, the issue is whether, at the relevant
point in time, the judicial discretion
contemplated by the state rule is being
exercised in a manner that lets people know
when they are at risk of default and treats
similarly-situated people in the same manner.

515 F.3d at 181.

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 The trial court ruled that the fugitive forfeiture rule
was mandatory, i.e., that it was required to dismiss Kindler's
post-verdict motions. S.A. 58 (order granting
Commonwealth's motion to dismiss Kindler's motions "by
reason of his escape from lawful custody and current status as
a fugitive from justice."); S.A. 63 (oral ruling that "the
defendant did voluntarily remove himself from the Detention
Center by escaping and loses all rights and privileges for
post-trial motions"(emphasis added)); S.A. 73 (opinion noting
that the original trial court judge was applying Pennsylvania
Superior Court precedent stating that he was "without
discretion in denying defendant's post-verdict motions as long
as he remained a fugitive outside the court's jurisdiction"
(emphasis added)). But the same court also believed that it
had the discretion to reinstate those motions upon Kindler's
return to custody. S.A. 74 (opinion describing the standard
for review of the denial of a motion to reinstate post-trial
motions as "whether the trial court abused its discretion").

Thus, the fugitive forfeiture rule, as articulated by the
trial court judges in Kindler's case, mandated that his motions
be dismissed, but gave them discretion to reinstate those
motions if Kindler asked them to upon his recapture. This
curious mix of obligation and discretion created the confusion
that has plagued this case—a state that was compounded
when the Pennsylvania Supreme Court subsequently set forth
the entirely new rule that appellate court review of post-trial
motions dismissed on account of a defendant's status as a
fugitive is limited to whether the sanction of dismissal is
reasonable under the circumstances. Kindler I, 639 A.3d at 3.

We have previously concluded that there was no
firmly established fugitive forfeiture rule mandating the
dismissal of an appeal first filed upon a fugitive's return to
custody. See Doctor, 96 F.3d at 685-86. In that case,
defendant Gary Lee Doctor escaped during the lunch recess
of his bench trial for the crime of aggravated assault. Upon
his recapture five years later, Doctor filed an appeal to the
Pennsylvania Superior Court. That court dismissed the
appeal, explaining that by choosing to flee, "Doctor forever
forfeited his right to appeal." Id. at 684. We understood this
language to indicate that the Superior Court believed it had no
discretion to consider Doctor's appeal.

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 Then we surveyed the relevant Pennsylvania Supreme
Court decisions to determine whether this was a new rule. In
Commonwealth v. Galloway, 333 A.2d 741 (1975), the
Supreme Court of Pennsylvania addressed a situation in
which the defendant had escaped twice – once during the
pendency of post-trial motions in the trial court and again
during the pendency of an appeal to the Supreme Court of
Pennsylvania. Following his initial escape, the trial court
dismissed his motions pursuant to the fugitive forfeiture
doctrine. After his return to custody and sentencing, the
defendant appealed. When the defendant escaped again, the
Commonwealth moved to dismiss the appeal. The defendant
returned to custody, however, before the Pennsylvania
Supreme Court acted on the Commonwealth’s motion. The
Court denied the motion, explaining:

The rationale behind dismissal of an appeal
while a convicted defendant is a fugitive from
justice rests upon the inherent discretion of any
court to refuse to hear the claim of a litigant
who, by escaping, has placed himself beyond
the jurisdiction and control of the court, and,
hence, might not be responsive to the judgment
of the court.

. . . Since Galloway is no longer a
fugitive from justice and is now subject to the
jurisdiction of this Court, he will be responsive
to any judgment this Court renders. Therefore,
this Court has no basis upon which to grant a
motion to dismiss the appeal at this juncture.

Id. at 743 (citations omitted).

While the Galloway Court did not fault the trial court
for dismissing the post-trial motions, the absence of rulings
on them did not preclude judicial review. It ruled:

In order to give the trial court the first
opportunity to rectify any errors that may have
occurred in the trial process, and to aid in
clarifying and framing the issues on appeal, we
remand the record to the trial court for
disposition of the post-trial motions on the

8
 merits. See Commonwealth v. Grillo, 208
Pa.Super. 444, 449 n.1, 222 A.2d 427, 430 n.1
(1966). Upon remand the trial court is directed
to consider the issues raised in the ―motions‖
filed January 17, 1973.

Id.

―After Galloway, Pennsylvania’s intermediate courts
consistently recognized their discretion to hear a properly
filed appeal as long as the criminal defendant had returned to
the jurisdiction before the appeal was dismissed.‖ Doctor, 96
F.3d at 685. Thus, in Doctor we concluded that the rule at the
time of Doctor's escape was as follows: "if the defendant is
returned to custody while his appeal is pending, an appellate
court has the discretion to hear the appeal, but if the
defendant is returned to custody after the appeal is dismissed
an appellate court lacks the discretion to reinstate and hear the
appeal." Id. Because Doctor's case presented a new
situation—he escaped before the appellate process had even
begun—we concluded that "it was not 'firmly established' that
Pennsylvania courts lacked the discretion to hear an appeal
first filed after custody had been restored." Id at 686.

Both Kindler and Doctor were subjected to a
mandatory rule that stymied their appeals. When the question
of adequacy was presented to us previously, we were thus
confronted with the sub-question whether the differences
between Kindler's case and Doctor's were legally relevant.
We concluded that they were not. The procedural default rule
applied in Kindler’s case was not only not firmly established
in 1984 but was directly inconsistent with Pennsylvania law
at that time as reflected in Galloway. It follows that the rule
did not treat Kindler in the same manner as similarly situated
individuals would have been treated in Pennsylvania in 1984.
Accordingly, we held that Pennsylvania’s fugitive forfeiture
rule did not preclude us from reaching the merits of this
habeas proceeding.1 Now, on remand, we must determine

1
Contrary to the suggestion of the Commonwealth,
Commonwealth v. Passaro, 476 A.2d 346 (Pa. 1984), does
not support a contrary conclusion. As we noted in our prior
opinion, Passaro holds only that when an appellate court has
9
whether the Supreme Court's opinion compels a different
result.

III.

The Supreme Court's review of our prior decision
resulted in what it described as a "narrow" holding in
response to a "narrow" question of federal habeas law.
Kindler V, 130 S. Ct. at 619. It held that a discretionary rule
can be adequate to bar federal habeas review and then
expressly left it to us to decide, on remand, whether the
Pennsylvania courts applied a "new rule mandating
dismissal," which "constituted a break from past discretionary
practice." Id. We so decide. Here, just as in Doctor, a
mandatory rule was not firmly established and was thus
inadequate to bar federal review. Our holding in both cases
was in no way dependent on a conclusion that discretionary
rules are automatically inadequate. To the contrary, we held
in our prior decision that the rigid, mandatory, rule requiring
dismissal of post-verdict motions was inadequate because it
was novel. Kindler IV, 542 F.3d at 80. Because the Supreme
Court's opinion leaves our prior holding undisturbed, we
reaffirm our prior decision.

The Commonwealth protests. It points out that after
confirming that the general rule was mandatory, the
Pennsylvania Supreme Court distinguished Kindler's case,
applied a new, discretionary, rule and then used that rule as
the basis for refusing to hear the merits of Kindler's appeal.
However, we must look at the law as it was understood at the
time of Kindler's escape. See Doctor, 96 F.3d at 684 (citing
Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988)

dismissed an appeal under the fugitive forfeiture rule in the
defendant’s absence, it lacks discretion to reinstate the appeal
when the defendant is returned to custody. ―Galloway . . .
underscores a critical distinction between dismissed post-
verdict motions and a dismissed final appeal. That distinction
arises from the fact that after an appeal is dismissed, a court
no longer retains jurisdiction. However, appellate courts can
exercise jurisdiction after post-verdict motions are dismissed,
and they therefore can exercise discretion to hear the claims
of defendant's appeal.‖ Kindler IV, 542 F. 3d at 79.
10
(citing Spencer v. Kemp, 781 F.2d 1458, 1469 (11th Cir.
1986)(en banc) and Lumpkin v. Ricketts, 551 F.2d 680, 682 &
n.2 (5th Cir. 1977))). The Pennsylvania Supreme Court was
applying a new rule in Kindler's case. This rule obviously did
not exist in 1984 and was thus not "firmly established."

Moreover, the rule applied to bar Kindler's appeal was
hardly discretionary in the usual sense of the term. The
Pennsylvania Supreme Court concluded that its review of the
trial court's decision to dismiss the post-verdict motions was
"limited to determining whether the flight has a connection
with the court's ability to dispose [of] the defendant's case and
whether the sanction imposed in response to the flight is
reasonable under the circumstances." Kindler I, 639 A.2d at
3. This amounts to a mandatory rule with narrow conditions.
Worse, in Kindler's case the new rule announced by the
Pennsylvania Supreme Court sharply and suddenly skewed
the rules in the Commonwealth's favor because the trial court
judges applied a mandatory rule to dismiss Kindler's post-
verdict motions, even though one of those judges thought "the
better practice would have been to consider the post-verdict
motions, particularly in light of the death sentence imposed."
S.A. 74. Once that initial decision had been made by the trial
court, imposing a new appellate standard of review sharply
deferential to the trial court's determination simply served to
reinforce the mandatory, and inadequate, fugitive forfeiture
rule.

The Commonwealth also asserts that the Supreme
Court's holding in this matter encompasses the broad
proposition that a rule can be adequate, even if its contours
are still being developed on a case-by-case basis through the
methodology of the common law and even if it is announced
for the first time in a defendant's particular case. We
disagree. The Supreme Court stated and applied its standard
for adequacy—a rule is adequate if "firmly established and
regularly followed"—and expressly declined the
Commonwealth's invitation to craft a new standard. Kindler
V, 130 S.Ct. at 617-619; Walker 121 S. Ct. at 1127. Under
this long-existing standard, a state court decision applying "a
rule unannounced at the time of petitioner's trial"—like the
mandatory rule applied to bar Kindler's appeal—is
inadequate. Ford v. Georgia, 498 U.S. 411, 424 (1991). See

11
also Walker, 121 S. Ct. at 1130 ("[F]ederal courts must
carefully examine state procedural requirements to ensure that
they do not operate to discriminate against claims of federal
rights.").

The Commonwealth's final argument is that, under the
Supreme Court's holding, Pennsylvania's fugitive forfeiture
rule is adequate because it mirrors the federal fugitive
forfeiture rule. In its opinion, the Supreme Court stated that
"[t]he States seem to value discretionary rules as much as the
Federal Government does," and then remarked that "it would
seem particularly strange to disregard state procedural rules
that are substantially similar to those to which we give full
force in our own courts." Kindler V, 130 S.Ct. at 618. But
these sentences did not impose a new standard requiring
lower courts to first compare state rules to their federal
equivalents and then find them adequate if they are
"substantially similar." The standard remains whether the
state rule is firmly established and regularly applied.

In short, we find the Commonwealth's position
unpersuasive. In time, the Supreme Court may reconsider its
standard for determining adequacy. But that time has not yet
arrived and we are constrained, both by the existing standard
requiring that adequate rules be firmly established and
regularly followed and by our holding in Doctor.

IV.

The rule of procedure applied to Kindler's case, which
mandated the dismissal of an appeal based on the claims
raised in his post-verdict motions, was a new rule that was not
firmly established at the time of his escape. Accordingly, that
bar is unenforceable on habeas review. We thus reaffirm our
prior decision. In that decision, we reviewed the merits of
Kindler's petition and concluded, among other things, (1) that
the jury instructions and verdict sheet used during the penalty
phase of his trial denied him due process of law pursuant to
the Supreme Court's holding in Mills and (2) that Kindler was
denied effective assistance of counsel during the penalty
phase.

The order of the district court granting a conditional
writ of habeas corpus and ordering either a new sentencing

12
hearing within 180 days or a sentence of life imprisonment is
thus affirmed.

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KINDLER v. HORN -- Nos. 03-9010 and 03-9011

STAPLETON, J., concurring:

I concur in the judgment of the Court because Kindler
was denied appellate review to which he would have been
entitled under the law of Pennsylvania as reflected in
Commonwealth v. Galloway, 333 A.2d 741 (1975), at the
time of his escape.

Having once again focused on the Pennsylvania case
law in 1984, I also conclude that the rule applied by the
Pennsylvania Supreme Court in Kindler’s case was not firmly
established and regularly followed at that time for an
additional reason - Pennsylvania’s “relaxed waiver rule” for
capital cases.

When Kindler escaped in 1984, the Pennsylvania
Supreme Court had issued four opinions in which it had
applied the relaxed waiver rule. See Commonwealth v.
Stoyko, 475 A.2d 714 (Pa. 1984); Commonwealth v. Frey,
475 A.2d 700 (Pa. 1984); Commonwealth v. Zettlemoyer, 454
A.2d 937 (Pa. 1982); Commonwealth v. McKenna, 383 A.2d
174 (Pa. 1978). That relaxed waiver rule was first invoked by
the Pennsylvania Supreme Court in a 1978 case,
Commonwealth v. McKenna. There, McKenna was convicted
of first degree murder and rape and was sentenced to death
for the murder conviction. On direct appeal, McKenna
challenged his conviction but refused to allow his attorney to
raise any challenge to the constitutionality of the death
sentence because he preferred the death penalty to life
imprisonment. Amicus curiae, however, filed briefs
challenging the constitutionality of the death penalty statute
under which McKenna was sentenced. Although the issue of
the death penalty statute’s constitutionality was explicitly
waived by McKenna, the Pennsylvania Supreme Court
declined to apply usual waiver rules and find that McKenna
had waived the issue of the statute’s constitutionality.

The Court based its decision to reach the constitutional
claim “expressly” waived by McKenna on the sentence
imposed - death - and the public interest in preventing
unconstitutional executions. The Court explained:

We recognize . . . that the doctrine
of waiver is, in our adversary
system of litigation, indispensable
to the orderly functioning of the
judicial process. There are,
however, occasional rare
situations where an appellate
court must consider the interests
of society as a whole in seeing to
it that justice is done, regardless
of what might otherwise be the
normal procedure. One such
situation is surely the imposition
of capital punishment. That this is
a unique penalty requiring special
jurisprudential treatment is a
concept now embodied in the
statutory law of this
Commonwealth. . . . This is
illustrative of a general
proposition that while a defendant
may normally make an informed

2
and voluntary waiver of rights
personal to himself, his freedom
to do so must give way where a
substantial public policy is
involved; in such a case an
appeals court may feel fully
warranted in seeking to reach an
issue. We have no doubt that this
is such a case. Because imposition
of the death penalty is irrevocable
in its finality, it is imperative that
the standards by which that
sentence is fixed be
constitutionally beyond reproach.
....
The waiver rule cannot be exalted
to a position so lofty as to require
this Court to blind itself to the real
issue the propriety of allowing the
state to conduct an illegal
execution of a citizen.

In short, where an overwhelming
public interest is involved but is
not addressed by the parties, the
Court has a duty to transcend
procedural rules which are not, in
spirit, applicable, to the end that
the public interest may be
vindicated. Such an
overwhelming interest insuring
that capital punishment in this
Commonwealth comports with

3
 the Constitution of the United
States is present here.

McKenna, 383 A.2d at 180-81 (citations and footnotes
omitted) (emphases added). The Court thus declined to
apply ordinary waiver rules in McKenna’s case, found the
death penalty statute unconstitutional, and remanded for
resentencing.

Four years later, the Pennsylvania Supreme Court
again addressed the issue of waiver in a capital case. See
Zettlemoyer, 454 A.2d at 937. There, Zettlemoyer was
convicted of first degree murder and sentenced to death. In
his appeal, Zettlemoyer argued, inter alia, that the trial court
erred by allowing the Commonwealth to read the indictments
of another criminal proceeding to the jury. The Pennsylvania
Supreme Court observed that the argument was waived
because it was not raised in post-verdict motions.
Nevertheless, relying on McKenna, the Court addressed the
issue on the merits, explaining that it would “not adhere
strictly to [its] normal rules of waiver.” Id. at 955 n.19.
Again, the Pennsylvania Supreme Court explained its
application of the relaxed waiver rule as based on the nature
of the sentence at issue.

In two cases decided less than six months before
Kindler escaped, the Pennsylvania Supreme Court again
applied the relaxed waiver rule in capital cases. In both, the
Court cited Zettlemoyer in support of its decision not to find
waiver and offered no significant alteration of the rule as
announced in McKenna and Zettlemoyer.

4
 The Pennsylvania Supreme Court continued to apply
the relaxed waiver rule in capital cases on collateral review
until 1998 and on direct review until 2001. Although it is not
decisive with regard to determining the established law as of
1984, it is notable that the Pennsylvania Supreme Court
thereafter continued to explain the relaxed waiver rule as
having been “created to prevent [the Court] from being
instrumental in an unconstitutional execution.” See
Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).
As of 1984, however, the Pennsylvania Supreme Court had
already explicitly and repeatedly stated that its relaxation of
its traditional appellate rules in death penalty cases was based
on the nature of penalty involved and on the public interest in
avoiding unconstitutional executions. Accordingly, it is not
surprising that this Court has held that, as of 1981, “McKenna
. . . rather firmly established that a claim of constitutional
error in a capital case would not be waived by a failure to
preserve it.” Suzchon v. Lehman, 273 F.3d 299, 326 (3d Cir.
2001).

As of 1984, the relaxed waiver rule was applied in
Pennsylvania to any constitutional claim of any defendant
facing the death penalty, and it was not firmly established that
a specific type of waiver - fugitive forfeiture - would cause a
Pennsylvania court to decline to apply that rule.

5