Priester v. Vaughn

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

8-19-2004

Priester v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 03-2956

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"Priester v. Vaughn" (2004). 2004 Decisions. Paper 366.
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 PRECEDENTIAL Thomas W. Dolgenos (Argued)
Chief, Federal Litigation
UNITED STATES COURT OF Ronald Eisenberg
APPEALS FOR THE THIRD CIRCUIT Deputy District Attorney
Law Division
Arnold H. Gordon
No. 03-2956 First Assistant District Attorney
Lynne Abraham
District Attorney
BARRY PRIESTER, Philadelphia, PA 19102-1582
Appellant
Attorneys for Appellees
v.
OPINION OF THE COURT
DONALD T. VAUGHN;
THE DISTRICT ATTORNEY OF SLOVITER, Circuit Judge.
THE COUNTY OF PHILADELPHIA;
This appeal arises from appellant
THE ATTORNEY GENERAL OF THE
Barry Priester’s 1991 state conviction of
STATE OF PENNSYLVANIA
first degree murder, two counts of
aggravated assault, criminal conspiracy,
and possession of an instrument of crime.
Priester appeals the decision of the United
On Appeal from the United States
States District Court for the Eastern
District Court for the Eastern District of
District of Pennsylvania denying his
Pennsylvania
petition for a writ of habeas corpus. The
(D.C. Civil No. 02-cv-00075)
District Court had subject matter
District Judge: Hon. Stewart Dalzell
jurisdiction over Priester’s habeas corpus
petition pursuant to 28 U.S.C. § 2254 and
we have jurisdiction pursuant to 28 U.S.C.
Argued May 4, 2004
§§ 1291, 2253.
Before: SLOVITER, FUENTES and I.
BECKER, Circuit Judges
FACTS AND PROCEDURAL
HISTORY
(Filed: August 19, 2004)
On May 19, 1990, Priester and
Nathaniel Butler met Tracey Postell at the
Johanna E. Markind (Argued) corner of 8th and Louden Streets in
Philadelphia, PA 19102 Philadelphia. Priester told Postell that he
was meeting a group of people to confront
Attorney for Appellant the individuals who had “rolled” Darius
Barnes – a mutual friend. Postell agreed to
accompany Priester and Butler to locate murder, two counts of aggravated assault,
these individuals. Priester drove one car criminal conspiracy and possession of an
while Barnes drove another. Two or three instrument of crime. They were tried
other cars containing additional gang together in the Philadelphia Court of
members joined the caravan. According to Common Pleas before a jury. During
Postell’s trial testimony, at one point along testimony at trial, Postell attempted to
the way Priester pulled alongside Barnes’ recant the story he told the police and
car and said, “[w]hen we get up there, no stated that he had lied to the police and
questions asked, start busting.” Trial Tr. at was asleep in the car when the incident
190 (Sept. 13, 1991). occurred. Having been forewarned by
defense counsel about this change, the
The cars arrived at the Belfield
prosecution sought the trial court’s
Recreational Center in North Philadelphia
approval to admit Butler’s previous
and Barnes began searching the
statement, which the trial court granted
playground for their targets. Once Barnes
subject to redaction. Thereafter, a
identified the individuals who “rolled”
redacted version of the prior statement
him, Priester removed a gun from his
made by Butler, describing the incident,
jacket and handed it to Butler. Butler fired
was introduced at trial. This redacted
several shots into the crowd. Shots were
statement replaced Priester’s name, and all
also fired from the other vehicles. Soon
other names, with phrases such as “the
after the shooting, Priester and the others
other guy.” App. at 91-97. At the
drove away from the scene. As a result of
conclusion of the trial, the jury convicted
the shooting, Terrence Lucan died, and
Priester as well as Butler on all counts. At
Ronald Holliman and Walter Jefferson
the sentencing phase, the jury returned a
sustained significant injures.
sentence of life imprisonment for each
On June 7, 1990, Philadelphia defendant on the murder convictions and
Homicide Detective Frank M cGouirk the court imposed sentences on the
questioned Postell about the shooting. At remaining counts, to run concurrently for
that time, Postell, who subsequently pled both defendants.
guilty in a negotiated plea, detailed the
After the trial court denied post-
factual scenario surrounding the shooting
verdict motions, Priester appealed to the
as well as Priester’s and Butler’s
Pennsylvania Superior Court, contending
involvement. Butler was then arrested and
that the Commonwealth breached its
questioned. He stated that Priester was in
agreement not to introduce Butler’s prior
the car with him and Postell, and that
statement and challenging the sufficiency
Butler shot twice into the crowd with a .38
of the redaction, the admission of Postell’s
caliber pistol.
earlier statement as substantive evidence,
After further investigation, Priester and the sufficiency of the evidence to
and Barnes were indicted on first degree convict him of first degree murder. The

2
court rejected these claims. The accomplice liability. 1 We now consider
Pennsylvania Supreme Court denied these issues on appeal.
allocatur. Commonwealth v. Priester, 634
II.
A.2d 220 (Pa. 1993). Priester then filed a
petition for collateral review under the DISCUSSION
Pennsylvania Post-Conviction Relief Act,
A. Standard of Review
42 Pa. Cons. Stat. § 9541 et seq. (2003)
(“PCRA”), which was denied by both the At the outset, we set forth our
trial court and the Superior Court. standard of review. Under the Anti-
Terrorism and Effective Death Penalty Act
Priester next petitioned for allocatur
(“AEDPA”):
in the Pennsylvania Supreme Court of
three issues. He argued that Butler’s An application for a writ of
statement was insufficiently redacted in habeas corpus on behalf of a
violation of Bruton v. United States, 391 person in custody pursuant
U.S. 123 (1968); that the trial court erred to the judgment of a State
because it admitted Postell’s prior court shall not be granted
inconsistent statements as substantive with respect to any claim
evidence; and that the jury instructions that was adjudicated on the
regarding accomplice liability were merits in State court
deficient. The Pennsylvania Supreme proceedings unless th e
Court denied allocatur. adjudication of the claim –
Thereafter, Priester filed a pro se
petition for a writ of habeas corpus in the 1
Counsel for Priester attempts to
District Court, which was amended after
add an ineffectiveness of counsel claim
the appointment of new counsel. The
based on a failure to object to the
matter was referred to a Magistrate Judge,
admission of the redacted statement. See
who issued an opinion recommending that
Appellant’s Br. at 20-24. However, the
Priester’s claims be denied. The District
District Court certified only the two
Court appro ved a nd ad opted the
issues set forth above for appeal, App. at
Magistrate Judge’s recommendation, but
7, and we denied Priester’s request to
certified for appeal two of the many claims
certify other issues on September 23,
raised by Priester: the claim that the
2003. Therefore, we decline to discuss
admission of Butler’s redacted statement
this issue herein. In any event, in his
violated the Confrontation Clause of the
reply brief Priester states that the issue is
Sixth Amendment, and the claim that trial
properly presented as a Confrontation
counsel was ineffective because of his
Clause claim. Appellant’s Reply Br. at 2
failure to object to the jury instruction on
n.1. We decline to discuss the due
process claims related to the arguments
made on appeal for the same reason.

3
 (1) resulted in a decision Supreme Court of the United States have
that was contrary to, or made clear that as long as the reasoning of
involved an unreasonable the state court does not contradict relevant
application of, clearly Supreme Court precedent, AEDPA’s
established Federal law, as general rule of deference applies. Early v.
determined by the Supreme Packer, 537 U.S. 3 (2002); Woodford v.
Court of the United States . Visciotti, 537 U.S. 19 (2002). In Early,
... the Supreme Court held that qualification
for AEDPA deference “does not require
28 U.S.C. § 2254(d) (emphasis added).
citation of our cases – indeed, it does not
Priester argues that because the even require awareness of our cases, so
Pennsylvania Superior Court cited only long as neither the reasoning nor the result
Pennsylvania law with no reference to of the state court decision contradicts
federal law, we need not apply AEDPA’s them.” Early, 537 U.S. at 8 (emphasis in
deferential standard of review. In granting original). Similarly, in Woodford, the
a certificate of appealability, the District Supreme Court held that the California
Court stated it believed that the deferential Supreme Court’s “shorthand reference” to
standard was applicable, but cited in a the ineffective assistance of counsel
footnote this court’s opinion in Everett v. standard, while imprecise, did not render
Beard, 290 F.3d 500 (3d Cir. 2002), which the decision unworthy of deference.
held otherwise. We need not dwell on this Woodford, 537 U.S. at 24; see also Bell v.
issue2 because subsequent opinions of the Cone, 535 U.S. 685, 698 (2002) (applying
the deferential AEDPA standard of review
where the state court had relied only on its
2
We note that in Everett, the
accomplice liability instruction was
patently erroneous as a matter of law, as time of Everett’s trial, but we held that
the trial court peppered its instructions Everett’s trial counsel was ineffective for
with legal admonitions such as, “[a] failing to object to an instruction that
killing is willful and deliberate if the allowed a juror to ascribe an
defendant and/or his accomplice . . . accomplice’s intent to the defendant and
consciously decided to kill the victim . . . that a Pennsylvania Superior Court
.” Everett, 290 F.3d at 504 (emphasis in decision filed well before Everett’s trial
original). Instead of objecting, trial should have given counsel a basis to
counsel actually “complimented the object. The Everett opinion noted that
judge on the fairness of these instructions the Pennsylvania Supreme Court
after the jury left the courtroom.” Id. at thereafter specifically held that for an
505. The Commonwealth argued that accomplice to be found guilty, s/he must
accomplice liability for first-degree have intended that the victim be killed.
murder was not clearly established at the Id. at 512-14.

4
own precedent to reject the petitioner’s Confrontation Clause of the Sixth
ineff ectiv e assistance of counsel Amendment.” Id. at 126. The Court noted
allegation); Rompilla v. Horn, 355 F.3d that some courts had redacted the
233 (3d Cir. 2004) (applying AEDPA statement to avoid the Sixth Amendment
deference to Pennsylvania co urt’s issues. See id. at 134 n.10 (“Some courts
determination of petitioner’s allegation of have required deletion of references to
ineffective assistance of counsel despite code fend ants whe re practicable.”).
the court’s failure to expressly cite to the Thereafter, the courts generally followed
Strickland standard). the practice of redacting co-defendants’
statements in order to eliminate all explicit
Accordingly, we hold that the
references to other defendants on trial
deferential standard of AEDPA applies
before those statements were admitted into
even if the state court does not cite to any
evidence.
federal law as long as the state court
decision is consistent with federal law. Priester argues that the admission of
Butler’s redacted statement violated his
B. Bruton Issue
Sixth Amendment right to confrontation.
In order to protect a defendant’s The issue arose in the instant case because
Sixth Amendment rights to confrontation Postell gave testimony at trial that differed
and cross-examination, trial courts that from the statements that he gave to police.
admitted statements of non-testifying co- The state moved to admit Butler’s
defendants would routinely instruct jurors statement as evidence of B utler’s
that the statements were not to be involvement in the shooting. The statement
considered evidence against the defendant was redacted to replace all references to
at trial. In Bruton, the Supreme Court Priester and other participants in the
recognized the inadequacy of such shootings with words such as “the other
instructions, stating that “there are some guy,” “someone,” “someone else,” “the
contexts in which the risk that the jury will guy,” and “another guy.” App. at 91-97.
not, or cannot, follow instructions is so In relevant part, the redacted statement
great . . . that the practical and human read at trial was:
limitations of the jury system cannot be
A: Well like 15 guys came
ignored.” Bruton, 391 U.S. at 135.
and we were all sitting on
The Court held that “because of the the corner of 8th and
substantial risk that the jury, despite Louden Sts. It was like 4
instructions to the contrary, looked to the something in the afternoon.
incriminating extrajudicial statements in Several guys came up to the
determining petitioner’s guilt, admission corner some were walking
of [the co-defendant’s] confession in this and others were in cars.
joint trial violated petitioner’s right of They started fighting and
cross- exam ination secured b y the shooting at anybody who

5
 was out there. . . . jurors:
Somebody gave one of the
A statement made by a
guys a .38 caliber gun . . . .
defendant before trial may
Then another guy shot
be considered as evidence
twice. After the first guy
but only a ga inst the
shot they pulled off and
defendant who made the
after the other two shots I
statement. You may not
pulled off.
consider one defendant’s
.... statement as evidence
against the other defendant[
Q: In what car was the guy
]....
who shot first?
Trial Tr. at 416 (Sept. 17, 1991).
A: He was the passenger in
the front seat of the brown Priester argues that the admission of
Toyota. That was the first this redacted statement violated the Sixth
car. Amendment because replacing Priester’s
name with varying phrases and pronouns
Q: How many were in the
did not adequately shield his identity, as
car with him?
other trial testimony made clear who was
A: Two other guys. in the second car. During Postell’s
testimony, he identified the occupants of
Q: How many were in the
his car as being “Barry [Priester] and Nate
second car?
[Butler].” App. at 108 (quoting Trial Tr. at
A: I was the driver and two 182 (Sept. 13, 1991)). Furthermore, in his
others. opening statement, the prosecutor claimed,
Q: How many shots did you in the first of those cars was
see fired from the second an individual by the name of
car? Darius Barnes. In another
c a r, t h e d e f e ndants ,
A: Two.
Nathaniel Butler and Barry
.... Priester, were riding along
with an individual named
Q: Who did the guy in your
Tracey Postell.
car shoot at?
App. at 106 (quoting Trial Tr. at 20 (Sept.
A: He just put out the
12, 1991)).
window and shot twice. He
wasn’t looking. From Postell’s testimony and the
prosecutor’s opening statement, which is
App. at 91-93. The trial court instructed
not evidence, the jury could have inferred

6
that the “other guy” in Butler’s statement U.S. 185 (1998), and this court’s decision
was Priester. But this inference is not a in United States v. Richards, 241 F.3d 335
foregone conclusion. There were at least (3d Cir. 2001), clarify the rule set forth in
fifteen perpetrators in various cars Richardson in a manner that supports his
involved in the shooting. The redacted argument. We find this unpersuasive. In
statement by Butler is unclear as to the the first place, both decisions were
people in the first car, in the second car, announced after Priester’s merits appeal
who was shooting when and from which was heard in the Pennsylvania Superior
car. This is because the trial court Court and it did not act unreasonably in
removed not just references to Priester, but failing to predict the Supreme Court’s
removed references to every name in the decision in Gray. Moreover, the decision
statement, making the statement difficult in Gray, even if applicable, does not
to follow. support Priester’s contention. The Court
explained in Gray that it “granted certiorari
Subsequent to Bruton, the Supreme
in order to consider Bruton’s application to
Court held that the introduction of the
a redaction that replaces a name with an
redacted statement of a nontestifying co-
obvious blank space or symbol or word
defendant was not unconstitutional. It
such as ‘deleted.’” Gray, 523 U.S. at 188.
rejected the contextual implication
It then held that such redactions were
argument Priester makes here. It stated
constitutionally impermissible. In
that where ascertaining the identity of a
Richardson, the issue was “whether Bruton
co-defendant in a redacted statement
requires the same result when the
requires an inference drawn from linking
codefendant’s confession is redacted to
other evidence to the statement, the risk
omit any reference to the defendant, but
that the jury cannot follow limiting
the defendant is nonetheless linked to the
instructions is not sufficiently substantial
confession by evidence properly admitted
to violate the S ixth Amendment.
against him at trial.” Richardson, 481 U.S.
Richardson v. Marsh, 481 U.S. 200, 208
at 202. The Court held that the admission
(1987) (“Where the necessity of such
of the redacted confession was not
linkage is involved, it is a less valid
unconstitutional.
generalization that the jury will not likely
obey the instruction to disregard the The Court in Gray explained that
evidence.”). “In short, while it may not the key difference between Gray and
always be simple for the members of a jury Richardson was the extent to which the
to obey the instruction that they disregard statement’s alterations directly connected
an incriminating inference, there does not the statement to the defendant, as
exist the overwhelming probability of their “nicknames and specific descriptions fall
inability to do so . . . .” Id. inside, not outside, Bruton’s protection.”
Gray, 523 U.S. at 195. The reasons given
Priester argues that the Supreme
in Gray for holding such redactions
Court’s decision in Gray v. Maryland, 523

7
impermissible – such as “an obvious blank Sixth Amendment.
will not likely fool anyone,” “the obvious
C. Jury Instruction Issue
deletion may well call the jurors’ attention
specially to the removed name,” and that Priester argues that the District
“a blank or some other similarly obvious Court erred in concluding that his trial
alteration” are “directly accusatory,” Gray, attorney’s failure to object to the jury
523 U.S. at 193-94 – do not apply to the instructions did not constitute ineffective
instant case. There are no such assistance of counsel. The parameters of
“nicknames,” descriptions or phrases that the Sixth Amendment right of a criminal
directly implicate Priester in the instant defendant to receive effective assistance of
case. counsel were set forth in Strickland v.
Washington, 466 U.S. 668, 686 (1984). A
Finally, in this court’s Richards
defendant claiming a violation of this right
opinion, on which Priester relies, there
must make a two-part showing:
were only three people involved in the
case, one of whom was the confessor and First, the defendant must
one of whom was the co-defendant show that c oun sel’s
Richards, and the word “friend” was performance was deficient.
substituted for Richards’ name. Richards, This requires showing that
241 F.3d at 341. As the prosecutor called counsel made errors so
the co-defendant’s mother to testify that serious that counsel was not
the confessor and co-defendant Richards functioning as the “counsel”
were “friends,” the word “friend” guaranteed the defendant by
unequivocally pointed to Richards. In the Sixth Amendment.
contrast, in this case there were at least Second, the defendant must
fifteen perpetrators involved in the show that the deficient
shooting, and the phrases “the other guy” performance prejudiced the
or “another guy” are bereft of any defense. This requires a
innuendo that ties them unavoidably to show ing that coun sel’s
Priester. In Richards, the replacement was errors were so serious as to
tantamount to an explicit reference to the deprive the defendant of a
co-defendant; the same cannot be said for fair trial, a trial whose result
the redaction in the instant case. is reliable.
Because the trial court redacted the Id. at 687.
statement carefully, and because it gave
“Judicial scrutiny of counsel’s
appropriate limiting instructions before the
performance must be highly deferential” to
admission of the statement and during jury
ensure “the wide latitude counsel must
instructions, the District Court did not err
have in making tactical decisions.” Id. at
in holding that the admission of Butler’s
689. “[A] court must indulge a strong
redacted statement did not run afoul of the

8
presumption that counsel’s conduct falls A defendant does not
within the wide range of reasonable become an acco mplice
professional assistance . . . .” Id. merely by being present at
the scene or merely by
The portion of the trial judge’s jury
knowing of the crime. He is
instruction which Priester claims was
an accomplice if, with the
misleading was:
intent of promotion or
[M]urder of the first degree facilitating commission of
is a criminal homicide the crime, he solicits or
committed with a specific commands or encourages or
intent to kill. An intentional requests another person to
killing is a killing by means commit it or if he aids or
of poison or by lying in wait agrees to aid or attempts to
or by any other kind of aid the other person in
willfu l, deliberate and planning or committing it.
premeditated act.
You may fin d the
Therefore, in order to find defendants guilty of a crime
the defendants guilty of on the theory that they were
murder in the first degree, an accomplice as long as
you must find that the you are satisfied beyond a
killing was a willful, reasonable doubt that the
deliberate and premeditated crime was committed and
act. the defendants were an
accomplice of the persons
....
who committed it.
Members of the jury, you
Trial Tr. at 564-65, 577-78 (Sept. 19,
may find a defendant guilty
1991).
of a crime without finding
that he personally engaged Priester argues that although he was
in the conduct required for charged with three different degrees of
commission of that crime or homicide, including first degree murder
even that he was personally which requires a specific intent to kill,
present when the crime was Smith v. Horn, 120 F.3d 400, 422 (3d Cir.
committed. 1997), “the import of the instruction
regarding the requirement of specific
A defendant is guilty of a
intent to kill was diluted by the court’s
crime if he is an accomplice
instr uctions regarding acco mp lice
of another person who
liability.” Appellant’s Br. at 25. As the
commits that crime.
District Court stated:

9
 Priester claims that 1367, 1384 (Pa. 1991) (same).
the instruction to the jury
Bound by the state court’s
enabled the jury to find him
determination that the instruction at issue
guilty as an accomplice to
comported with state law, it is evident that
first-degree murder even if
Priester cannot satisfy the first component
he did not have the intent to
of a viable ineffective assistance of
kill. This instruction,
c ouns e l claim – that c oun sel’ s
Priester continues, violated
performance was deficient. Thus Priester
Pennsylvania law – which
cannot overcome the “strong presumption”
makes specific intent to kill
that his counsel’s conduct fell outside the
an essential element for
“wide range of reasonable professional
accomplice liability to first
assistance.” Strickland, 466 U.S. at 689.
degree murder – and
burdened his fundamental III.
right under the Due Process
CONCLUSION
Clause to be convicted only
upon proof beyond a Applying AEDPA’s deferential
reasonable doubt of every standard in reviewing Priester’s habeas
element of the offense. petition, we hold that the District Court did
not err in concluding that the admission of
App. at 20 (footnotes omitted). On state
the redacted statement comported with the
collateral review, the Pennsylvania
requirements of the Sixth Amendment and
Superior Court held that the instructions
that trial counsel’s failure to object to the
were correct as a matter of state law. App.
accomplice liability instruction did not
at 71.
constitute ineffective assistance of
Federal courts reviewing habeas counsel.
claims cannot “reexamine state court
For the reasons given above, we
determinations on state-law questions.”
will affirm the District Court’s order
Estelle v. McGuire, 502 U.S. 62, 67-68
denying the petition for a writ of habeas
(1991). This is particularly true in the
corpus.
instant case because the issue of
a p p r o priate jury instr u c t i o n s on
accomplice liability in first-degree murder
trials has been squarely addressed by the
P e n n s y lv a n i a S u p r e m e C o u r t .
Commonwealth v. Thompson, 674 A.2d
217, 222-23 (Pa. 1996) (upholding
accomplice liability instructions nearly
identical to those quoted above);
Commonwealth v. Chester, 587 A.2d

10