Ross v. DIST. ATTORNEY OF THE COUNTY OF ALLEGHENY

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-1320
_____________

GEORGE ANTHONY ROSS,
Appellant

v.

THE DISTRICT ATTORNEY OF THE COUNTY OF
ALLEGHENY; THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA; BRIAN V. COLEMAN
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-09-cv-01322
Magistrate Judge: The Honorable Robert C. Mitchell

Argued November 8, 2011

Before: SCIRICA, SMITH, and JORDAN,
Circuit Judges
1
 (Filed: March 6, 2012)

Diana Stavroulakis (Argued)
262 Elm Court
Pittsburgh, PA 15237
Counsel for Appellant

Leanne K. Shipley (Argued)
Allegheny County Office of District Attorney
436 Grant Street
303 Courthouse
Pittsburgh, PA 15219
Counsel for Appellee
________________

OPINION
________________

SMITH, Circuit Judge.
In May 2001, petitioner George Anthony Ross was
convicted of third degree murder after his third trial on
the same charge. Ross unsuccessfully appealed his
conviction and sought relief under Pennsylvania‟s Post-
Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-46.
Ross then sought federal habeas corpus review under 28
U.S.C. § 2254, raising Constitutional claims under the

2
Fifth, Sixth, and Fourteenth Amendments. The District
Court denied Ross‟s petition, and we granted a certificate
of appealability. Among other issues, Ross argues that
his rights under the Confrontation Clause were violated
when the trial court admitted prior testimony from an
unavailable government witness, even though Ross did
not have the opportunity to cross-examine the witness
with newly-discovered impeachment evidence. For the
following reasons, we conclude that the Confrontation
Clause is not the proper avenue for relief on Ross‟s
claim. We will affirm.
I.

This case arises out of a murder that took place a
decade and a half ago. On December 31, 1996, Cheo
Stevenson was shot dead while riding in a jitney in the
Northside section of Pittsburgh, Pennsylvania. Ross was
implicated in the shooting, and was charged with
criminal homicide, aggravated assault, and carrying an
unlicensed firearm in violation of the Uniform Firearm
Act. On June 4, 1997, Ross was tried before a jury in the
Allegheny County Court of Common Pleas. On June 6,
1997, Ross‟s first trial resulted in a mistrial. Ross was
re-tried, and on October 30, 1997, a jury found Ross
guilty of all three charges. Ross appealed his conviction,
and on May 31, 2000, the Superior Court of Pennsylvania
granted Ross a new trial. This third trial, which began on
May 1, 2001, is the subject of Ross‟s habeas petition and
3
the instant appeal.
A.

At the third trial, the Commonwealth opened its
case-in-chief with testimony from Jonathan Smith, who
was riding in the jitney along with Stevenson at the time
of the shooting. The Commonwealth then called to the
stand a series of witnesses who testified about the crime
scene, and the results of various laboratory tests that were
performed on objects found at the scene.

Finally, the Commonwealth called Randy Erwin to
the stand. At the second trial, Erwin had testified that
Ross, whom he had met at the Allegheny County Jail,
confessed in jail to shooting Stevenson. At the third trial,
however, Erwin refused to testify on the ground that he
feared retribution if he were to testify. The
Commonwealth inquired as to Erwin‟s willingness to
testify, asking whether Erwin would testify if ordered to
do so. Erwin repeated that he would refuse to testify:
Q Would you explain to the Judge,
please, if that is in fact what you would
intend to do on [sic] this case, that you
would not give any testimony?

A I will not give any testimony.

Q And if I call you to the stand while the
4
 jury is in the box, can you answer the
questions that I pose to you?

A No, sir -- no, ma‟am.
...

Q And Mr. Erwin, I ask you again if I
call you as a witness in this case, do you
intend to give testimony against Mr. Ross?
A No, ma‟am.
Trial Tr. at 110:5-12, 112:3-6.

On cross-examination, Erwin suggested that
despite his reluctance, he might testify if he was ordered
to do so. The Commonwealth clarified this suggestion
on re-direct:
Q . . . [Defense counsel] has now asked
you if you‟re called to the stand and the
Judge tells you to testify, are you going to
answer the questions that I ask?

A No, but I didn‟t understand the way
he was putting it. I don‟t want to be
responsible for refusing to the Judge [sic]. I
don‟t know the circumstances behind that,
but I don‟t want to testify in the case.
5
 THE COURT: Let me cut to the heart of
this. Mr. Erwin, if the Commonwealth calls
you to the [stand], is it your present
intention not to respond to any of the
questions, correct?

THE WITNESS: Correct.
Id. at 117:14-22. Erwin also stated that he suffered a
lapse of memory and would not be able to testify even if
ordered to do so. Id. at 118:16-19.

The trial judge found Erwin unavailable over
defense counsel‟s objection. The unavailability
determination having been made, the trial judge allowed
Erwin‟s testimony from the second trial to be read into
the record. At this point, defense counsel had failed to
proffer any reason why Ross might not have had a full
and fair opportunity to cross-examine Erwin at the
second trial. 1

1
At oral argument before this court, Ross‟s attorney
suggested that counsel had, in fact, raised the issue of
newly-discovered impeachment evidence, discussed in
Part IV.B, infra. When pressed on this point, Ross was
unable to provide a citation to the record demonstrating
this point and requested permission to file a follow-up
brief. Ross‟s follow-up brief, along with an independent
6
 After Erwin‟s testimony was read to the jury, the
trial judge permitted the Commonwealth to read into the
record Erwin‟s prior convictions which, under
Pennsylvania law, were classified as crimen falsi
convictions. The Commonwealth read to the jury the
date and name of each conviction:

[Prosecutor]: Thank you, Your Honor.
Your Honor, I‟ll read the date and the crime
of crimen falsi.

First on June 10 of 1987, burglary.
October 2 of 1987, burglary. On March 25
of 1990, receiving stolen property and retail
theft. On April 3 of 1995, receiving stolen
property and retail theft. And on May 31 of
1996, two cases of theft. And that would be
the extent of the crimen falsi.

review of the record, make clear that Ross‟s counsel
misspoke at oral argument. While the record shows that
Ross did object to the judge‟s unavailability
determination, it does not indicate on what basis the
objection was made. Trial Tr. at 120:10-15. Nothing in
the record suggests that Ross raised the issue of newly-
discovered impeachment evidence before the trial judge
allowed Erwin‟s prior testimony to be read into the
record.
7
Trial Tr. at 142:17-143:1. The Commonwealth did not
include in its list Erwin‟s prior conviction for making a
false report to law enforcement. Nor did Ross‟s counsel
introduce this omitted conviction. The Commonwealth
then rested its case.

After presenting testimony from the driver of the
jitney in which Stephenson had been riding at the time of
the shooting, Ross‟s counsel requested a sidebar with the
trial judge to discuss the admissibility of testimony from
Thomas Thornton. Thornton, an inmate who was
allegedly housed next to Randy Erwin, was Ross‟s only
remaining witness. Thornton intended to testify that
Erwin fabricated his testimony regarding Ross‟s
confession.2 The trial judge found that Thornton‟s
testimony was inadmissible hearsay under Pennsylvania
law and excluded his testimony from trial. With no
witnesses left to call, Ross rested his case.

2
Although Ross asserted at trial that Thornton was
housed next to Erwin, the record on this point is unclear.
The Commonwealth noted at trial that “if you check the
computer it appears [Erwin and Thornton] were never
lodged in the same prison at the same time, [where] they
could have had the opportunity to discuss anything with
each other . . . .” Trial Tr. at 172:13-17.
8
 B.
After closing arguments, the trial judge delivered
the jury charge and allowed the jury to deliberate. After
approximately two and a half hours of deliberation, the
jury indicated to the court tipstaff that it had reached a
verdict. Before the verdict could be recorded, however,
one juror asked to speak with the trial judge.
The trial judge held an in camera conference with
the single juror, counsel for both sides, and a court
reporter. Ross himself was not present at the conference.
At the conference, the juror voiced concerns about
retribution should she vote guilty, identifying a spectator
at the trial who may have recognized her:
THE TIPSTAFF: Are you afraid of
something happening to you or your family?

[Juror]: . . . I‟m just saying that I‟m
afraid because I know members, people of
that sort of background.
THE TIPSTAFF: Do you know people in
the courtroom?
[Juror]: There was one guy that was
standing outside, I went to school with him
and I‟m just saying by him knowing me,
they could say, well, okay, I know your
9
sister, your sister stood up for jury duty and
she testified against a killing of so and so
and so and so. . . .
THE COURT: . . . . What I asked you
was whether or not you were fearful of any
repercussions.
[Juror]: I mean, Judge, I am.
...
THE TIPSTAFF: Do you think because
you were here and you were on this jury that
somebody who maybe come [sic] in or out
of the courtroom or was associated with this
case may do something to someone that you
know?

[Juror]: Of course.

THE TIPSTAFF: That‟s what you‟re afraid
of?

[Juror]: . . . [I]f I was on the jury and
they were sitting in the audience . . . if there
was somebody . . . that was sitting in the
audience that knew me they could say, okay,
she made a statement . . . so we‟re going to
make a statement against her. They go
10
 hand-in-hand like that. . . . And I just don‟t
want to make a statement against someone
that may hurt me. Later on down the line,
that‟s like me putting my foot in my mouth
and saying, okay, I‟m killing myself.

Trial Tr. at 266:12-268:15; see also Trial Tr. at 258:24-
259:2; 262:20-21. Throughout this conference, the juror
continued to voice her belief that Ross was guilty of the
charged crime. See, e.g., Trial Tr. at 254:10-11 (“I feel
that he is guilty on his accounts which he was wrong for
doing in God‟s eyes.”). The juror never equivocated on
the issue of Ross‟s guilt.

The trial judge reminded the juror several times
that her job was to vote to convict or not to convict,
regardless of Ross‟s race. The trial judge also tried to
allay the juror‟s fear of retribution by telling her that no
juror in any case he had ever tried had been threatened
after delivering a verdict. The trial judge then instructed
the juror to return to the courtroom to record the verdict.

After the juror left the in camera conference,
Ross‟s counsel moved for a mistrial. The trial judge
denied the motion. Counsel, the court reporter, and the
trial judge reconvened in the courtroom, with Ross and
the twelve jurors present. The jurors, who were
individually polled by the court to ensure the verdict was
correctly reported, unanimously convicted Ross of third-
11
degree murder.
C.

Ross timely appealed his conviction. On October
23, 2003, the Superior Court of Pennsylvania affirmed
the judgment. The Supreme Court of Pennsylvania
denied Ross‟s petition for allowance of appeal.
Having exhausted his direct appeal, on March 9,
2005, Ross petitioned for relief under Pennsylvania‟s
Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat.
§§ 9541-46. The PCRA Court denied Ross‟s petition on
the merits. Ross appealed, and the Superior Court of
Pennsylvania affirmed. The Supreme Court of
Pennsylvania again denied Ross‟s petition for allowance
of appeal.

On September 24, 2009, Ross timely filed for
federal habeas relief under 28 U.S.C. § 2254 in the
Western District of Pennsylvania. On December 2, 2009,
the District Court denied Ross‟s petition on the merits.
The District Court declined to issue a certificate of
appealability under 28 U.S.C. § 2241(a).
On August 26, 2010, we granted Ross‟s
application for a certificate of appealability as to three
issues relating to Erwin‟s testimony at the third trial. We
also granted a certificate of appealability as to two issues
relating to the trial judge‟s in camera conference with the
12
single juror.
II.

The District Court exercised jurisdiction over
Ross‟s petition under 28 U.S.C. §§ 2241, 2254. We
exercise jurisdiction under 28 U.S.C. §§ 1291, 2253.
Because the District Court “relied exclusively on the
state court record and did not hold an evidentiary
hearing, our review is plenary.” Palmer v. Hendricks,
592 F.3d 386, 392 (3d Cir. 2010). “We review the
decision of the state court under the same standard that
the District Court was required to apply.” Saranchak v.
Beard, 616 F.3d 292, 301 (3d Cir. 2010).

A district court‟s authority to review a state court‟s
denial of post-conviction relief is limited by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Because the PCRA Court denied Ross‟s PCRA Petition
on the merits, we may grant habeas relief only if the
PCRA Court‟s adjudication of Ross‟s claims “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 . . . 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). “This is a difficult to meet and highly
13
deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the
benefit of the doubt.” Cullen v. Pinholster, --- U.S. ---,
131 S. Ct. 1388, 1398 (2011) (internal quotation marks
and citations omitted).

III.
Ross raises three Sixth Amendment claims arising
out of the introduction of Erwin‟s testimony from the
second trial, arguing that: (1) he was denied his rights
under the Confrontation Clause when Erwin‟s prior
testimony was read into the record; (2) he was denied his
rights under the Confrontation Clause when the trial
court excluded Thornton‟s testimony; and (3) he was
denied his right to effective assistance of counsel when
trial counsel failed to present evidence of Erwin‟s crimen
falsi conviction for making a false report to law
enforcement.

A.
The Confrontation Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI. Under
the Confrontation Clause, “[A] witness‟s testimony
against a defendant is [ ] inadmissible unless the witness
appears at trial or, if the witness is unavailable, the
14
defendant had a prior opportunity for cross-examination.”
Melendez-Diaz v. Massachusetts, --- U.S. ---, 129 S. Ct.
2527, 2531 (2009). Here, Erwin did not appear at the
third trial. In order for his testimony from the second
trial to have been admissible: (1) Erwin must have been
“unavailable;” and (2) Ross must have “had a prior
opportunity for cross-examination.”3 Id.
Whether a witness is available to testify is a mixed
question of law and fact. See McCandless v. Vaughn,
172 F.3d 255, 265 (3d Cir. 1999). The PCRA Court
concluded that Erwin refused to testify as a factual
matter, and that he was thus unavailable as a matter of
law. Ross first argues as a factual matter that Erwin did
not actually refuse to testify. Ross points to portions of
Erwin‟s testimony on cross-examination where Erwin
suggested that he might, in fact, testify if he were ordered
to do so.

The existence of contrary evidence, however, does
not render the PCRA Court‟s determination unreasonable
in light of the evidence presented. See 28 U.S.C. §
2254(d); Lambert v. Blackwell, 387 F.3d 210, 251-52 (3d

3
The Confrontation Clause separately requires that the
Government have made a good faith effort to produce the
witness at trial. See Barber v. Page, 390 U.S. 719, 724-
25 (1968). Ross has not questioned the Government‟s
good faith effort in this case.
15
Cir. 2004) (upholding a factual determination by a PCRA
Court despite the existence of evidence contradicting the
determination). There were ample statements in the
record from which the PCRA Court could reasonably
have concluded that Erwin would not testify if called to
do so. Under AEDPA, it is not the place of a federal
court to reweigh the evidence, when the state court‟s
determination is supported by the record. Moreover, on
redirect, Erwin explained that he had not understood
Ross‟s questions during cross-examination, and that he
would in fact refuse to testify even if ordered to do so.
See Trial Tr. at 117:14-22.4

Ross also argues that the PCRA Court erred as a
matter of law by concluding that Erwin‟s refusal to
testify was sufficient to render him unavailable within the
meaning of the Confrontation Clause. Rather, Ross
argues that the trial court had an obligation to order
Erwin to testify under threat of sanctions. Only if Erwin
4
The trial judge‟s unavailability determination also
appears to have been informed by non-verbal cues that
the judge was able to observe. For instance, the trial
judge stated that he “noticed Mr. Erwin winking at Mr.
Ross. They can play all the games they want.” Trial Tr.
120:17-19. Under these circumstances, it would be
especially inappropriate to overturn the PCRA Court‟s
conclusion based on a few statements in the transcript,
considered in isolation.
16
refused to comply with the court order, Ross argues,
would he be unavailable for Confrontation Clause
purposes.
The Confrontation Clause does not require a
witness to face the threat of sanctions in order to be
rendered unavailable. A witness is unavailable for
Confrontation Clause purposes when he or she refuses to
testify, regardless of whether the refusal is in response to
an order to testify under threat of sanctions. See, e.g.,
United States v. Bell, 367 F.3d 452, 466 (5th Cir. 2004);
United States v. Reed, 227 F.3d 763, 767 (7th Cir. 2000);
Jennings v. Maynard, 946 F.2d 1502, 1505 (10th Cir.
1991); Rice v. Marshall, 709 F.2d 1100, 1102 (6th Cir.
1983). Ross points to no Supreme Court precedent to the
contrary. The PCRA Court‟s conclusion thus was not an
unreasonable application of clearly established federal
law. See 28 U.S.C. § 2254(d)(1).

B.
As discussed above, in order for Erwin‟s testimony
from the second trial to have been admissible: (1) Erwin
must have been “unavailable” and (2) Ross must have
“had a prior opportunity for cross-examination.”
Melendez-Diaz, 129 S. Ct. at 2531. As to the second
requirement, the Confrontation Clause requires that a
defendant have had “a full and fair opportunity to probe
and expose [testimonial] infirmities” of an unavailable
17
government witness in order for that witness‟s prior
testimony to be admissible. United States v. Owens, 484
U.S. 554, 558 (1988) (quoting Delaware v. Fensterer,
474 U.S. 15 (1985)). Ross argues that he did not have a
“full and fair opportunity” to cross-examine Erwin at the
second trial because he was unable to question Erwin
about Thornton‟s testimony, and that his rights under the
Confrontation Clause were violated when Erwin‟s
testimony was introduced at his third trial.5

In Davis v. Alaska, 415 U.S. 308 (1974), the
Supreme Court held that a defendant may be denied a full
and fair opportunity to cross-examine a government
witness where the defendant is precluded from showing
“why [that witness] might have been biased or otherwise
5
Ross also takes issue with the trial judge‟s evidentiary
determination that Thornton‟s testimony was
inadmissible under Pennsylvania law. The Supreme
Court has “stated many times that „federal habeas corpus
relief does not lie for errors of state law.‟” Swarthout v.
Cooke, --- U.S. ---, 131 S. Ct. 859, 861 (2011) (quoting
Estelle v. McGuire, 502 U.S. 62, 67 (1991)). The only
issue appropriate for our review is whether Ross was
deprived of his constitutional rights. United States ex rel.
Thomas v. Cuyler, 548 F.2d 460, 464 (3d Cir. 1977). We
thus assume that the trial court was correct, and that
Thornton‟s testimony was inadmissible hearsay under
Pennsylvania law.
18
lacked that degree of impartiality expected of a witness at
trial.” Id. at 318. In Delaware v. Fensterer, 474 U.S. 15
(1985), however, the Supreme Court limited Davis and
held that the Confrontation Clause was not violated
where “the trial court did not limit the scope or nature of
defense counsel‟s cross-examination in any way.” Id. at
19. Fensterer clarified that the Confrontation Clause is
not necessarily violated where a defendant is unable to
effectively impeach a government witness. Rather, the
clause may be violated where a defendant‟s inability to
impeach is attributable to a limitation on the scope or
nature of the cross-examination imposed by the trial
court.
The Supreme Court bolstered this more limited
reading of the Confrontation Clause in Pennsylvania v.
Ritchie, 480 U.S. 39 (1987), holding that “the right to
confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that
defense counsel may ask during cross-examination.” Id.
at 52. The Supreme Court noted that “[n]ormally the
right to confront one‟s accusers is satisfied if defense
counsel receives wide latitude at trial to question
witnesses.” Id. at 53. Ultimately, the court held, the
Confrontation Clause is concerned primarily with
“specific statutory or court-imposed restriction[s] at trial
on the scope of questioning.” Id. at 53-54.

19
 Other courts of appeals have adopted the vision of
the Confrontation Clause expounded in Fensterer and
Ritchie. See, e.g., United States v. Watson, 650 F.3d
1084, 1088 (8th Cir. 2011) (declining to find a
Confrontation Clause violation where a defendant‟s
inability to cross-examine a witness on a particular point
was not attributable to the trial court (citing Fensterer,
474 U.S. at 19)); Middlebrooks v. Bell, 619 F.3d 526, 542
(6th Cir. 2010) (noting that Ritchie held that where “the
trial court permit[s a defendant‟s] attorney to cross
examine [a witness] with no limitations aside from
routine evidentiary rulings, it [does] not impinge on his
confrontation rights”); Rizzo v. Smith, 528 F.3d 501, 506
(7th Cir. 2008) (noting that Ritchie held that “„the right to
confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that
defense counsel may ask during cross-examination‟”
(quoting Ritchie, 480 U.S. at 52)); United States v. Mejia,
448 F.3d 436, 458 (D.C. Cir. 2006) (same); Dorsey v.
Chapman, 262 F.3d 1181, 1190 (11th Cir. 2001)
(declining to find a Confrontation Clause violation where
the defendant “was not prohibited from pursuing any line
of inquiry, but strategically chose not to”).

We agree with our sister circuits, and hold that
Ross was not denied a “full and fair opportunity” to
cross-examine Erwin. There were no “specific statutory
or court-imposed restriction[s] . . . on the scope of

20
questioning” at Ross‟s second trial. Ritchie, 480 U.S. at
53-54. If Ross had discovered Thornton‟s testimony
prior to the second trial, he could have cross-examined
Erwin about that testimony. Ross‟s failure to cross-
examine Erwin about Thornton‟s testimony cannot be
attributed to any decision by the court, or statutory
limitation on the scope or nature of Erwin‟s cross-
examination at the second trial. Under Fensterer and
Ritchie, Ross had what the Confrontation Clause
guaranteed—“an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.” Kentucky v. Stincer, 482 U.S. 730, 739 (1987)
(quoting Fensterer, 474 U.S. at 20). Ross‟s claim is
simply not a cognizable Confrontation Clause claim. 6

We also consider it significant that when the trial
judge declared Erwin unavailable, the judge had not been
informed of any newly-discovered evidence. Only after
6
Were we to adopt Ross‟s argument, the prior testimony
of any unavailable witness would be rendered
inadmissible upon finding any newly-discovered
impeachment evidence. If, for example, a critical
government witness died before trial, a defendant would
merely have to uncover a prior inconsistent statement to
render that witness‟s prior testimony inadmissible.
Fensterer makes clear that the Confrontation Clause does
not require such a result.
21
Erwin had been excused, his testimony had been read
into the record, and the Commonwealth had rested its
case, did trial counsel raise the issue of Thornton‟s
testimony.7 The timing of counsel‟s submission of the
issue prevented the trial judge from asking Erwin
whether he would be willing to testify specifically about
Thornton‟s testimony, from declaring Erwin available for
those purposes, or from allowing trial counsel the
opportunity to cross-examine Erwin about the statements
he allegedly made to Thornton.

Ross‟s interpretation of the Confrontation Clause
would allow a defendant to place a trial judge in a
difficult situation: the judge would either have to declare
a mistrial because the defendant‟s right to confront was
violated, or the judge would have to delay trial to recall
the Government witness, who may well have been
transported back to prison, to testify about the newly-
7
As discussed supra in note 1, Ross‟s attorney suggested
at oral argument that trial counsel had indeed raised the
issue of Thornton‟s testimony before the trial judge. The
record does not support this claim, nor has Ross‟s
attorney provided any support for this assertion. Nothing
in the record suggests that trial counsel so much as hinted
to the trial judge of his intent to introduce newly-
discovered impeachment evidence, or to argue that Ross
was deprived of a full and fair opportunity to cross-
examine Erwin at the second trial.
22
discovered evidence. Such a result would encourage
defendants to hide any newly-discovered evidence from a
trial judge, creating the possibility of a Confrontation
Clause violation that might justify reversal later down the
line. We decline to allow such gamesmanship where
case law requires the opposite result.

This is not to say that a defendant in Ross‟s
situation is somehow frozen in time, precluded from
introducing newly-discovered evidence in a later trial.
There are other constitutional avenues by which a
defendant might introduce such newly-discovered
evidence. Ross may have had grounds to bring an
ineffective assistance of counsel claim arising out of trial
counsel‟s failure to raise Thornton‟s testimony earlier at
trial. See Strickland v. Washington, 466 U.S. 668 (1984).
Had trial counsel raised the issue at an appropriate time,
he may have been able to elicit from Erwin a statement
inconsistent with his alleged statement to Thornton. If
counsel had elicited such a statement, Thornton‟s
testimony may have been admissible as extrinsic
evidence of Erwin‟s prior inconsistent statement. See Pa.
R. Evid. 613(b) (“[E]xtrinsic evidence of a prior
inconsistent statement by a witness is admissible only if,
during the examination of the witness, . . . the witness is
given an opportunity to explain or deny the making of the
statement . . . .”), 801(c) (“„Hearsay‟ is a statement . . .
offered in evidence to prove the truth of the matter

23
asserted.”). Instead, trial counsel chose not to raise the
issue of Thornton‟s testimony on the record while the
trial judge was considering Erwin‟s availability.
Additionally, the Due Process Clause guarantees a
defendant the “right to have clearly exculpatory evidence
presented to the jury, at least when there is no strong
countervailing systemic interest that justifies its
exclusion[.]” United States v. Herman, 589 F.2d 1191,
1204 (3d Cir. 1978). As a result, “a defendant‟s right to
due process can be violated by strict rules of evidence
that prevent a defendant from presenting clearly
exculpatory evidence to the jury[.]” United States v.
Mike, 655 F.3d 167, 171 (3d Cir. 2011). A defendant in
Ross‟s situation may be able to petition a trial judge to
admit otherwise inadmissible evidence on due process
grounds. See, e.g., United States v. Prochilo, 629 F.3d
264, 271 (1st Cir. 2011) (rejecting a Confrontation
Clause claim regarding newly-discovered impeachment
evidence on the ground that “[t]he Supreme Court has
thus far only evaluated . . . claims like [the defendant‟s]
under the Due Process Clause of the Fifth and Fourteenth
Amendments.” (citing Ritchie, 480 U.S. at 51-54)). We
do not, and cannot, opine on the merits of such claims;
Ross has only raised and exhausted his claim under the
Confrontation Clause.
Our holding today is limited to the case before us.
We hold only that Ross was not denied his Sixth
24
Amendment rights under the Confrontation Clause where
Ross‟s inability to cross-examine Erwin about
Thornton‟s testimony cannot be attributed to a limitation
imposed by the trial court or by statute. Ross had a full
and fair opportunity to cross-examine Erwin at the
second trial within the meaning of the Sixth Amendment.
His Confrontation Clause rights were not violated when
Erwin‟s prior testimony was read into the record at his
third trial.

C.

The Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . .
. to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI. Ross argues that he was denied
his Sixth Amendment right to effective assistance of
counsel when trial counsel failed to introduce evidence of
Erwin‟s crimen falsi conviction for making a false report
to law enforcement. Under Strickland v. Washington,
466 U.S. 668 (1984), a habeas petitioner claiming a
deprivation of his or her Sixth Amendment right to
effective assistance of counsel must show that: (1)
counsel‟s performance was deficient; and (2) counsel‟s
deficient performance caused the petitioner prejudice. Id.
at 687. “Surmounting Strickland‟s high bar is never an
easy task.” Padilla v. Kentucky, 559 U.S. ---, 130 S. Ct.
1473, 1485 (2010).

25
 To show deficient performance, “a person
challenging a conviction must show that counsel‟s
representation fell below an objective standard of
reasonableness. . . . The challenger‟s burden is to show
that counsel made errors so serious that counsel was not
functioning as the „counsel‟ guaranteed the defendant by
the Sixth Amendment.” Harrington v. Richter, --- U.S. --
-, 131 S. Ct. 770, 787 (2011) (internal quotation marks
and citations omitted).

There is no question that counsel‟s performance
was deficient. A crimen falsi conviction for false reports
is obviously important impeachment evidence, and the
Commonwealth concedes as much. There is no apparent
strategic reason that might explain or excuse counsel‟s
mistake. Thus, viewed objectively, Ross‟s counsel
unreasonably failed to introduce such impeachment
evidence.

In addition to deficient performance, however,
Ross must also show prejudice. “With respect to
prejudice, a challenger must demonstrate „a reasonable
probability that, but for counsel‟s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Richter, 131 S.
Ct. at 787 (quoting Strickland, 466 U.S. at 694). “That
requires a „substantial,‟ not just „conceivable,‟ likelihood
of a different result.” Cullen v. Pinholster, --- U.S. ---,
26
131 S. Ct. 1388, 1403 (2011). “It is not enough „to show
that the errors had some conceivable effect on the
outcome of the proceeding.‟” Richter, 131 S. Ct. at 787
(quoting Strickland, 466 U.S. at 694). In assessing
prejudice, a court “must consider the totality of evidence
before the judge or jury.” Strickland, 466 U.S. at 695.

The PCRA Court concluded that there was no
prejudice here because the Commonwealth read into the
record Erwin‟s other crimen falsi convictions, which
included two convictions for burglary, two convictions
for retail theft, two convictions for receiving stolen
property, and two convictions for theft. There was not a
reasonable probability, the PCRA Court concluded, that
reading one more conviction into the record would have
led to a different result. Ross argues that Erwin‟s false
reports conviction is more damaging to Erwin‟s
credibility than his other convictions, and so its omission
was prejudicial.
A false reporting conviction may well be more
prejudicial than any one of Erwin‟s other convictions.
Depending on the facts underlying the conviction, a jury
might infer that the similarities between Erwin‟s previous
false report and his report against Erwin implied that
Erwin had lied at the second trial. We cannot say,
however, that the PCRA‟s conclusion was an
unreasonable application of Strickland. The jury was
told that Erwin had been convicted of eight separate
27
crimes over a span of ten years. The PCRA Court could
reasonably have concluded that the jury already
discredited Erwin‟s testimony to the point where the
incremental impact of one additional conviction on
Erwin‟s credibility was minimal. Because the PCRA
Court could reasonably have concluded that Ross failed
to demonstrate prejudice, they did not unreasonably
apply Strickland.8
IV.

Ross raises two claims arising out of the trial
judge‟s in camera conference with the juror, arguing that:
(1) the trial judge denied Ross his right to a fair trial by
giving instructions to a single juror; and (2) the trial
judge denied Ross his right to be present at the

8
Although Ross mentioned in his brief and at trial that
the false reports conviction may have resulted from a
situation very close to the testimony he delivered against
Ross, the facts of the conviction would not have been
disclosed to the jury—they would simply have been told
the name of the offense and the date of conviction. The
crime of “making a false report to law enforcement” is
vague and can be interpreted in different ways. A juror
may reasonably conclude that the offense is not
particularly damaging as impeachment evidence.

28
conference.9
A.

Generally, “communications between the court and
the jury should be made in the presence of all of the
jurors.” United States v. Gullia, 450 F.2d 777, 779 (3d
Cir. 1971). Impermissibly influencing an individual juror
may violate a criminal defendant‟s “Sixth Amendment
right to a fair trial before an impartial jury[.]” United
States v. Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994). Just
because a judge has a conversation with a single juror,
however, does not mean that the judge has committed
constitutional error. Rather, as we emphasized in United
States v. Rabb, 450 F.2d 343 (3d Cir. 1971) (per curiam),
whether or not the judge‟s conversation constitutes
reversible error depends on the nature of the conversation
and the “extent and type” of any additional instructions.
Id. at 343-44.

9
Ross also raises ineffective assistance of counsel claims
arising out of trial counsel‟s failure to raise these two
issues. We have held, however, that “counsel cannot be
deemed ineffective for failing to raise a meritless claim.”
Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).
Because we conclude that Ross‟s right to be present and
to a fair trial were not violated here, Ross‟s trial counsel
was not ineffective for failing to raise those claims.
29
 In Gullia, we held that a trial judge erred where he
held a conference with a juror who suggested that she
might want to hold out and not vote guilty. The trial
judge told her that if she held out, “we have just wasted
two weeks” and gave the juror extensive, substantive
instructions regarding the legal standards at issue in the
case. Gullia, 450 F.2d at 778-79. In Rabb, on the other
hand, the judge did not elaborate on the evidence, and
merely informed the juror that his recollection of the
evidence controlled. Rabb, 450 F.2d at 343. As a result,
we declined to find reversible error. Id.
The trial judge‟s conference with the juror here is
far closer to the conduct upheld in Rabb. The judge did
not elaborate on any evidence, and repeatedly
emphasized that it was the juror‟s job to weigh the
evidence presented at trial to reach a verdict. At no point
did the juror, like the juror in Gullia, equivocate on the
issue of Ross‟s guilt. Rather, the juror repeated that she
believed Ross was guilty, but that she was afraid to
deliver a verdict out of fear of retribution.10 The trial
10
Even if the instructions here were closer to those in
Gullia, we could not reverse. The PCRA Court
concluded that the judge‟s conversation with the juror
was not an “additional instruction” that might justify
habeas relief because “there was no communication with
the juror as to her thought process [n]or were additional
instructions being given.” App‟x 253. AEDPA only
30
judge‟s conversation with the juror did not “directly or
indirectly refer to the specifics of the case, [was]
collateral to the issues under consideration, and [was] not
capable of affecting the deliberative process in any
manner.” Truscott v. Chaplin, 403 F.2d 644, 645 (3d Cir.
1968). The trial court thus did not err by conferencing
with the single juror in the absence of the rest of the jury.
B.
Ross argues that he had a constitutional right to be
present at the in camera conference. The Due Process
Clause of the Fifth and Fourteenth Amendments
guarantee a criminal defendant the right “to be present in
his own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity
to defend against the charge.”11 Stincer, 482 U.S. at 745

allows us to reverse if the PCRA Court‟s conclusion
results, among other things, in an unreasonable
application of “clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). Ross has pointed to no Supreme
Court precedent which was unreasonably applied here.
11
A similar right to be present exists under the
Confrontation Clause of the Sixth Amendment, but that
right is implicated only “where the defendant is . . .
actually confronting witnesses or evidence against him.”
31
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06
(1934)). “This does not mean, however, that the
defendant has a „constitutional right to be present at
every interaction between a judge and a juror.‟” Bertoli,
40 F.3d at 1397 (quoting United States v. Gagnon, 470
U.S. 522, 526 (1985)). Rather, the defendant‟s right to
be present extends to “any stage of the criminal
proceeding that is critical to its outcome if [the
defendant‟s] presence would contribute to the fairness of
the procedure.” Stincer, 482 U.S. at 754. There is no
constitutional right to be present “when presence would
be useless, or the benefit but a shadow.” Snyder v.
Massachusetts, 291 U.S. 97, 106-07 (1934), overruled on
other grounds in Malloy v. Hogan, 378 U.S. 1 (1964).

Gagnon is instructive. There, a criminal defendant
in a multi-defendant trial was seen sketching portraits of
the jury during the trial. A juror expressed a safety
concern over the incident. The trial judge held an in
camera conference with the juror, in the presence of
counsel for the defendant who was seen sketching the
portraits, but excluding the defendants themselves. On
appeal, the defendants claimed that they were denied
their Fifth Amendment right to be present at the

United States v. Gagnon, 470 U.S. 522, 526 (1985). The
conference in this case involved no evidence against
Ross, and his challenge thus arises strictly out of the Due
Process Clause.
32
conference. The Supreme Court disagreed, holding that
the defendants‟ presence “was not required to ensure
fundamental fairness or a reasonably substantial . . .
opportunity to defend against the charge.” Gagnon, 470
U.S. at 527 (internal quotation marks omitted).

The Court emphasized that the defendant whose
conduct had resulted in the conference had counsel
present. Id.; see also United States v. Fernandez-
Hernandez, 652 F.3d 56, 66 (1st Cir. 2011) (finding no
Due Process violation where counsel was present at in
camera conference with juror); United States v. McCoy,
8 F.3d 495, 497 (7th Cir. 1993) (same). Additionally, as
the court observed, the defendants “could have done
nothing had they been at the conference, nor would they
have gained anything by attending. Indeed, the presence
of [the defendants] . . . could have been
counterproductive.” Gagnon, 470 U.S. at 527; see also
United States v. Peterson, 385 F.3d 127, 138 (2d Cir.
2004) (finding no due process violation where a
defendant‟s presence at an in camera conference “may
have prevented juror number three from speaking
openly”).

The facts here are virtually indistinguishable from
Gagnon. A juror expressed concerns about her safety.
The trial judge held a conference to discuss matters
extraneous to the questions at issue at trial. Ross‟s
counsel was present to ensure that nothing prejudicial
33
was said. Ross‟s presence would not have contributed to
the fairness of the proceeding, and may well have been
counterproductive, given that the juror was expressing
concern about possible retaliation. Ross‟s Fifth
Amendment rights were thus not violated by the trial
judge‟s decision to hold the conference without his
presence.12
V.
The writ of habeas corpus “is an extraordinary
form of relief and is granted only to remedy
constitutional error.” Evans v. Sec’y Pa. Dept. of Corr.,

12
The PCRA Court and the District Court denied Ross‟s
claim on the basis that the conference with a juror was
not a “critical” stage at trial because the jury already
indicated it had reached a verdict. Ross argues on appeal
that because the verdict had not yet been recorded, the
jurors were free to change their minds and so the verdict
was not yet final. Ross is correct, and the
Commonwealth appears to concede as much.
Nonetheless, “we can affirm a judgment on the merits on
an alternative basis[.]” Szuchon v. Lehman, 273 F.3d
299, 318 n.8 (3d Cir. 2001). Even if the conference was
“critical,” Gagnon makes clear that Ross did not have a
Fifth Amendment right to be present at the conference
because his presence would not have contributed to the
fundamental fairness of the proceeding.
34
645 F.3d 650, 656 (3d Cir. 2011). Ross has not shown
that he was deprived of his constitutional rights under the
theories that he has advanced. We will affirm.13

13
Because we conclude that there was no error, we need
not consider whether any errors were harmless.
35