Rolan v. Coleman

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-4547
_____________

FLORENCIO ROLAN,
Appellant

v.

BRIAN V. COLEMAN; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
______________

APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 08-cv-5438)
District Judge: Honorable Berle M. Schiller
______________

Argued January 23, 2012
______________
 Before: FISHER, GREENAWAY, JR., Circuit Judges, and
JONES *, District Judge.

(Opinion Filed: May 17, 2012)

Bruce P. Merenstein, Esq. (argued)
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for Appellant Florencio Rolan

Marilyn F. Murray, Esq. (argued)
Assistant District Attorney
District Attorney of the County of Philadelphia
Three South Penn Square
Philadelphia, PA 19107
Counsel for Appellees Brian V. Coleman, the District
Attorney of the County of Philadelphia and the
Attorney General of the State of Pennsylvania
______________

OPINION
______________

GREENAWAY, JR., Circuit Judge.
Appellant Florencio Rolan appeals the District Court
for the Eastern District of Pennsylvania’s denial of his
petition for habeas corpus. Rolan was convicted of

*
Hon. John E. Jones III, District Judge, United States
District Court for the Middle District of Pennsylvania,
sitting by designation.

2
murdering Paulino Santiago in 1984. His original petition for
habeas corpus sought relief based on his claim of ineffective
assistance of counsel. The District Court granted the petition,
and we affirmed. After a retrial, the jury convicted Rolan of
murder again. He submitted a petition seeking a writ of
habeas corpus. The District Court denied the petition. Rolan
now appeals. For the reasons stated herein, we will affirm the
District Court’s order.

I. BACKGROUND

In 1984, Florencio Rolan was convicted of first degree
murder and possession of an instrument of crime in the 1983
shooting death of Paulino Santiago (“Paulino” or “Santiago”).
The Superior Court summarized the events surrounding the
shooting and leading up to Rolan’s arrest as follows:

On the evening of Friday, May 13, 1983,
the victim, Paulino Santiago, and Robert
Aponte were selling marijuana near 17th and
Wallace Streets in Philadelphia. Paulino’s
brother, Francisco, and [Rolan] were nearby,
among a crowd estimated at thirty to fifty
people. Around 8:30 P.M. a driver pulled up to
buy a “nickel bag,” five dollars worth of
marijuana. Aponte and Paulino Santiago argued
over who should get the money for the sale.
[Rolan] sided with Aponte, his cousin. The
argument continued for about fifteen minutes
until [Rolan] departed for the house of a friend
across the street. Francisco Santiago went to an
abandoned house, at 1629 Wallace Street, a few
doors from the corner, to relieve himself. His
brother followed.

3
 It is undisputed that a few minutes later,
inside the abandoned house, [Rolan] killed
Paulino Santiago with a single shot to the chest
from a .22 caliber rifle, then fled out a back
alley and left the neighborhood. Police found
the rifle in the alley about a block away from
the abandoned house. The next day [Rolan] fled
to New York City, and was not apprehended
until the following November, when he returned
to Pennsylvania after waiving extradition.

Commonwealth v. Rolan, 964 A.2d 398, 401 (Pa. Super. Ct. 2008).

During the trial, Francisco Santiago, the victim’s
brother, testified that Rolan argued with Paulino on a street
corner. After arguing outside, Francisco testified that he and
Paulino entered an abandoned house nearby and that Rolan
followed, carrying a rifle. Rolan demanded money from
Paulino. Rolan then shot Paulino and ran out of the house.

Another witness, Edwin Rosado, provided contrasting
testimony. Rosado stated that Paulino entered the abandoned
house after Rolan, not before. Rolan did not testify at trial.
The jury convicted Rolan and sentenced him to death. Rolan
appealed. The Pennsylvania Supreme Court affirmed the
conviction on October 18, 1988.

In 1996, Rolan filed a petition under Pennsylvania’s
Post Conviction Relief Act (“PCRA”). Rolan testified at the
PCRA hearing that Paulino entered the house after he was
already inside, and charged at him with a kitchen knife.
Rolan also testified that he entered the house unarmed, but
found a loaded rifle lying on the floor of the house, picked it
up, and fired at Santiago in self-defense. He also testified that

4
trial counsel, Melvin Goldstein, failed to investigate two
witnesses who would have bolstered a self-defense theory:
Daniel Vargas and Robert Aponte.

Vargas testified at the PCRA hearing. According to
Vargas, Rolan entered the house unarmed, after which
Paulino ran into the house with a kitchen knife in hand
threatening to kill him. The PCRA court held that Goldstein
had been constitutionally ineffective at the penalty phase of
the trial and vacated Rolan’s death sentence. After a penalty
phase retrial, the jury sentenced him to life in prison. The
Superior Court affirmed, and the Pennsylvania Supreme
Court denied allocatur.

In 2001, Rolan filed a 28 U.S.C. § 2254 petition for
writ of habeas corpus in the District Court. 1 The District
Court granted the habeas petition, holding, among other
things, that Goldstein had provided ineffective assistance of
counsel by failing to investigate Vargas’s testimony and
failing to call him as a witness. This Court affirmed the
District Court’s decision granting Rolan’s writ of habeas
corpus. See Rolan v. Vaughn, 445 F.3d 671, 683 (3d Cir.
2006).

The Commonwealth retried Rolan in 2007. By that
time, many of the key witnesses had passed away. The prior
testimony of those now unavailable witnesses was read into
the record. During the prosecutor’s closing argument, he

1
Rolan’s 2001 federal habeas petition was stayed pending the
result of the re-sentencing trial. In May 2004, after the jury
re-sentenced Rolan to life in prison, the District Court
conducted an evidentiary hearing on Rolan’s habeas petition.

5
highlighted Vargas’s absence from the 1984 trial and his
(Vargas’s) failure to testify until the 1996 PCRA hearing.
The trial court instructed the jury that both Rolan and the
Commonwealth knew of Vargas at the first trial, but that
Rolan’s counsel failed to call him as a witness. The trial
court did not explain to the jury that Rolan’s failure to call
Vargas, at the first trial, was due to his trial counsel’s
ineffectiveness, as Rolan had requested. Rolan was convicted
of first degree murder and possession of an instrument of
crime. He received a sentence of life imprisonment.

Rolan appealed the second conviction. The Superior
Court ordered him to file a Concise Statement of Matters
Complained of on Appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b) (“Rule 1925(b) statement”).
Rolan filed the Rule 1925(b) statement. The Superior Court
rejected all of the claims appearing in his Rule 1925(b)
statement and affirmed the trial court. See Commonwealth v.
Rolan, 964 A.2d 398 (Pa. Super. Ct. 2008). Rolan did not
seek allocatur in the Pennsylvania Supreme Court and did not
file a PCRA petition.

In November 2008, Rolan filed a 28 U.S.C. § 2254
petition for habeas corpus in the District Court. The
Magistrate Judge assigned to the matter recommended in her
Report and Recommendation (“R&R”) that Rolan’s petition
for habeas corpus be denied. Specifically, the Magistrate
Judge (largely referencing the Superior Court’s substantive
analysis) held, inter alia, that: (1) Rolan’s claim of a due
process violation based on the prosecutor’s closing argument,
regarding Vargas’s failure to come forward earlier, was
procedurally defaulted and, in the alternative, adopted the
Superior Court’s merits analysis denying the claim; (2) the
Superior Court’s conclusion that the prosecutor’s comments

6
regarding Rolan’s failure to raise self-defense during the first
trial were not improper was neither contrary to, nor an
unreasonable application of, Supreme Court precedent; (3)
the Superior Court’s rejection of Rolan’s prosecutorial
misconduct claim relating to the prosecutor’s comments about
his post-arrest silence was neither contrary to, nor an
unreasonable application of, Supreme Court precedent; (4)
the Superior Court’s determination that Francisco Santiago’s
prior testimony was properly admitted at trial was neither
contrary to, nor an unreasonable application of, Supreme
Court precedent; and (5) Rolan’s claim regarding the
prosecutor’s alleged misrepresentation of key facts and
impermissible comments on inadmissible evidence was
procedurally defaulted and, therefore, not subject to habeas
review.

The District Court approved and adopted the
Magistrate Judge’s R&R by order dated November 2, 2010.
Rolan filed a timely appeal. We granted a certificate of
appealability only as to the following issues:

(1) Appellant’s arguments arising out of the
prosecutor’s statements regarding Daniel
Vargas’s failure to come forward earlier; (2)
whether the prosecutor’s statements regarding
Appellant’s failure to mount a self-defense case
theory until 1996 constituted prosecutorial
misconduct; (3) whether the prosecutor’s
comments regarding Appellant’s post-arrest
silence (but not his failure to testify at trial)
violated his Fifth Amendment privilege against
self-incrimination; (4) whether the introduction
of Francisco Santiago’s prior testimony was a
violation of Rolan’s Confrontation Clause

7
 rights; and (5) whether the prosecutor’s various
alleged misstatements of the evidence in closing
arguments rose to the level of a due process
violation.

App. at 2a.

II. JURISDICTION

The District Court had jurisdiction, pursuant to 28
U.S.C. § 2253. We have jurisdiction over the appeal from the
District Court’s final order denying the petition under 28
U.S.C. § 1291 and § 2253(c)(1)(A).

III. STANDARD OF REVIEW

A. Procedural Default Challenges

Title 28 U.S.C. § 2254 requires that a habeas petitioner
exhaust the remedies available in the state courts before a
federal court can exercise habeas corpus jurisdiction over his
claim. In order for Rolan to fulfill this requirement, he must
have presented both the factual and legal substance of his
claims in the state court’s highest tribunal. See Castille v.
Peoples, 489 U.S. 346, 351 (1989). Procedural default occurs
when a claim has not been fairly presented to the state courts
(i.e., is unexhausted) and there are no additional state
remedies available to pursue, see Wenger v. Frank, 266 F.3d
218, 223-24 (3d Cir. 2001); or, when an issue is properly
asserted in the state system but not addressed on the merits
because of an independent and adequate state procedural rule,
see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
“Ordinarily, violation of firmly established and regularly
followed state rules . . . will be adequate to foreclose review

8
of a federal claim. There are, however, exceptional cases in
which exorbitant application of a generally sound rule renders
the state ground inadequate to stop consideration of a federal
question.” Lee v. Kemna, 534 U.S. 362, 376 (2002) (internal
quotation marks and citations omitted).

B. AEDPA Deference

If the claim was not procedurally defaulted, and was
adjudicated on the merits by the state court, we afford the
state court’s determinations deference under AEDPA. In
doing so, we determine whether the state court’s
determinations,

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2)
resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d).

Absent adjudication on the merits, our review of the
claim is de novo. Bond v. Beard, 539 F.3d 256, 263 (3d Cir.
2008).

IV. ANALYSIS

Rolan’s claims before this Court consist of three
prosecutorial misconduct claims, a Fifth Amendment claim
and a Confrontation Clause claim. We will address each of
these claims in turn.

9
 A. Prosecutorial Misconduct

Rolan argues that his conviction should be vacated
based on (1) the prosecutor’s statements regarding Vargas’s
failure to testify earlier in the case (“Vargas statements
claim”); (2) the prosecutor’s comments about Rolan’s failure
to assert the self-defense theory until 1996 (“self-defense
statements claim”); and (3) the prosecutor’s alleged
misstatements of evidence in his closing argument
(“misstatements of evidence claim”). The District Court,
adopting the Superior Court’s conclusions, held that Rolan’s
claims regarding the prosecutor’s comments about Vargas
and alleged misstatements of evidence were procedurally
defaulted. 2 Rolan now appeals the procedural default
conclusions as well as the District Court’s determination that
his prosecutorial misconduct claims each lack merit.

1. Procedural Default Issues

The District Court held that Rolan’s Vargas statements
claim was waived due to an independent and adequate state
procedural ground—specifically, Pennsylvania Rule of
Appellate Procedure 1925(b), which requires the appellant to
file a concise statement of the matters complained of on
appeal. The Superior Court and District Court both held that
Rolan had not asserted the Vargas statements claim in his
Rule 1925(b) statement, and therefore, waived any relief
based on those claims. See Commonwealth v. Robinson, 931
A.2d 15, 25-26 (Pa. Super. Ct. 2007) (“Where the trial court

2
We do not address procedural default for the self-defense
statements claim as both the Superior Court and the District
Court addressed this issue on the merits.

10
orders an Appellant to file a concise statement of matters
complained of on appeal under Rule 1925(b), any issue not
contained in that statement is waived on appeal”).

Rolan argues that paragraph 2 of his Rule 1925(b)
statement sufficiently conveys his concerns about the
prosecutor’s statements regarding Vargas’s testimony. 3
While we acknowledge that he raises this claim within the
context of a broader argument regarding the trial court’s jury
instructions, we find that his Rule 1925(b) statement was
sufficient to allow the court to identify his claims relating to
the prosecutor’s statements about Vargas in his closing
arguments. See Commonwealth v. Lemon, 804 A.2d 34, 37
(Pa. Super. Ct. 2002) (“Pa. R. A. P. 1925 is intended to aid
trial judges in identifying and focusing upon those issues
which the parties plan to raise on appeal.”); see also

3
Paragraph 2 of Rolan’s Rule 1925(b) statement states,
2. The Court erred in not instructing the jury
that the federal court of appeals had held that
[Petitioner’s] original trial counsel was
ineffective for not calling Daniel Vargas as a
self defense witness at [Petitioner’s] original
trial, after the prosecutor had repeatedly argued
in his closing argument that the jury should
discredit Vargas’s testimony because he did not
testify on [Petitioner’s] behalf until more than
ten years after his original trial. (Id.)

See Commonwealth v. Rolan, No. CP-51-CR-0228931-1984,
slip op. at 5-7 (C.C.P. Phila. Cnty., May 31, 2007).

11
Commonwealth v. Butler, 756 A.2d 55, 57 (Pa. Super. Ct.
2000) (“When the trial court has to guess what issues an
appellant is appealing, that is not enough for meaningful
review.”). Therefore, Rolan “substantially, if imperfectly,”
complied with the requirements of Rule 1925(b). Lee, 534
U.S. at 366-67. Consequently, Rolan’s claim concerning the
Vargas statements was not procedurally defaulted. The
District Court’s procedural default determination on this point
is erroneous; thus, the issue is preserved for our review.

The District Court (adopting the Superior Court’s
rationale) also held that Rolan had waived his misstatement of
evidence claim for failing to comply with Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure ( “Rule
2119(a)”). Rule 2119(a) states, “[t]he argument shall be
divided into as many parts as there are questions to be argued;
and shall have at the head of each part . . . the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Here, we must consider
whether the Superior Court’s application of Rule 2119(a) is
appropriate for precluding federal habeas review. See Lee,
534 U.S. at 376.

Rolan’s brief before the Superior Court provided
detailed factual allegations with copious citations to the
record. Rolan explicitly stated that the prosecutor
misrepresented important pieces of evidence in his closing
argument; pointed to fifteen examples of alleged misstated
evidence, with citations to the record; incorporated the
statement of facts into his argument section by reference and
included a nine-page discussion on the issue of prosecutorial
misconduct. In support of his misstatements of evidence
claim, Rolan cited cases where the Pennsylvania Supreme
Court reversed convictions based on an improper remark in

12
closing arguments, see, e.g., Commonwealth v. Smith, 861
A.2d 894, 896-98 (Pa. Super. Ct. 2004); Commonwealth v.
Toth, 314 A.2d 275, 277-78 (Pa. Super. Ct. 1974), and
emphasized the cumulative effect of the numerous statements
identified in the facts section. Although Rolan did not
provide a verbatim recitation of each alleged misstatement in
the argument section of his brief, he did provide ample notice
of the nature of his claims by identifying the specific facts
involved in the misstatements of evidence claim.

Rolan’s discussion sufficiently identified his claim for
the court. Given Rolan’s substantial compliance with Rule
2119(a), procedural default is not appropriate. Therefore, the
Superior Court’s application of Rule 2119(a) should not
preclude our consideration of Rolan’s federal habeas claim.
The District Court’s procedural default determination on this
ground is in error; consequently, this issue is preserved for
our review.

2. Prosecutorial Misconduct Merits Analysis

Before considering the merits of Rolan’s claims, we
must first determine the appropriate standard of deference.
Rolan asserts that AEDPA deference does not apply to the
state court determinations regarding the Vargas statements
claim because the state court never adjudicated the claim on
the merits. Rather, the Superior Court (and later the District
Court adopting the same rationale) dismissed his claim as
defaulted under Rule 1925(b), and then found in the
alternative, that his claim lacked merit. We must now
determine whether AEDPA deference applies when a state
court decides a claim on procedural grounds and,
alternatively, on the merits.

13
 The weight of authority of our sister circuits suggests
that the merits analysis is owed AEDPA deference. See
Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009)
(“[W]e agree with our sister circuits that an alternative merits
determination to a procedural bar ruling is entitled to AEDPA
deference.”); Brooks v. Bagley, 513 F.3d 618, 624-25 (6th
Cir. 2008) (“[W]e must consider whether the court’s
alternative merits ruling receives AEDPA deference. We
think that it does. The language of the statute does not draw a
distinction between cases involving alternative rulings; it
refers broadly to any claim that was adjudicated on the merits
in State court proceedings.” (internal quotation marks and
citation omitted)) 4; see also Zarvela v. Artuz, 364 F.3d 415,
4
In Brooks, the Sixth Circuit articulated a thoughtful analysis,
justifying its application of AEDPA deference to alternative
merits decisions:
While the state court of appeals need not have
addressed the claim on the merits once it
identified a procedural bar, it surely had the
authority to do so as an additional ground for
decision-making this additional ground no less
a “claim that was adjudicated on the merits in
State court proceedings” than if the case had not
presented a procedural-bar issue at all. In this
respect, we see no material difference between
this type of alternative ruling and another one –
where a state court offers alternative merits
grounds for rejecting a claim. Here, for
example, the state court ruled that Brooks failed
to satisfy the deficient-performance and
prejudice prongs of an ineffective-assistance
claim, even though it need only have

14
determined that Brooks failed to satisfy just one
of these prongs to resolve the claim. Yet it
would be strange to say that just one of these
contentions was resolved on the merits or,
worse, that neither one was. See Wiggins v.
Smith, 539 U.S. 510, 534, (2003) (applying
AEDPA deference to those prongs of Strickland
that the state courts “reached”).
This interpretation, moreover, would
seem to favor judicial practices that in the main
will benefit both sides in criminal cases. It is the
rare criminal defendant who would prefer that
the state courts not reach the merits of his
constitutional claim. And it is the rare State that
would object to a state court ruling that offers
an additional ground for denying the defendant
relief. Above all, this practice will “show a
prisoner . . . that it was not merely a procedural
technicality that precluded him from obtaining
relief.” Carey v. Saffold, 536 U.S. 214, 226
(2002). Just as a state court wishing to invoke
an independent and adequate state ground to
dispose of a case “need not fear reaching the
merits of a federal claim in an alternative
holding,” Harris v. Reed, 489 U.S. 255, 264
n.10 (1989) (emphasis omitted); see also White
v. Schotten, 201 F.3d 743, 750-51 (6th Cir.
2000), overruled on other grounds by Lopez v.
Wilson, 426 F.3d 339 (6th Cir. 2005) (en banc),
so it need not fear losing the benefit of the
doubt that AEDPA gives to state court rulings
whenever it invokes an independent and

15
417 (2d Cir. 2004); Busby v. Dretke, 359 F.3d 708, 721 n.14
(5th Cir. 2004); Johnson v. McKune, 288 F.3d 1187, 1192
(10th Cir. 2002).

The Supreme Court’s decision in Harris v. Reed, 489
U.S. 255 (1989) provides additional guidance on this point.
In Harris, the Supreme Court considered the application of
the adequate and independent state ground doctrine to claims
on habeas review and held that state courts may both rely on
state procedural bars and reach federal substantive questions
in denying habeas relief:

Moreover, a state court need not fear
reaching the merits of a federal claim in an
alternative holding. By its very definition, the
adequate and independent state ground doctrine
requires the federal court to honor a state
holding that is a sufficient basis for the state
court’s judgment, even when the state court also
relies on federal law. See Fox Film Corp. v.
Muller, 296 U.S. 207, 210 (1935). Thus, by
applying this doctrine to habeas cases, Sykes
curtails reconsideration of the federal issue on
federal habeas as long as the state court
explicitly invokes a state procedural bar rule as
a separate basis for decision. In this way, a
state court may reach a federal question without
sacrificing its interests in finality, federalism,

adequate state ground as an alternative holding.
Brooks, 513 F.3d at 624.

16
 and comity.

Harris, 489 U.S. at 264 n.10. This language suggests that
where a holding provides sufficient basis for the state court’s
judgment, it should be upheld by the federal court. The
Supreme Court’s language does not limit the federal court’s
consideration based upon whether such state court
articulations form the primary basis for its decision, or an
alternative and sufficient basis for the decision. 5

We similarly believe that in referencing “adjudication
on the merits,” AEDPA draws no such distinction for
alternative rulings. Rather, it suggests that where a state court
has considered the merits of the claim, and its consideration
provides an alternative and sufficient basis for the decision,
such consideration warrants deference. Consequently, after
considering our sister circuits’ analyses alongside the
Supreme Court’s articulation in Harris, we will apply
AEDPA deference to the Superior Court’s alternative holding
on the merits of Rolan’s claim. 6

5
We note that this is consistent with our decisions in Albrecht
v. Horn, 485 F.3d 103, 116 (3d Cir. 2007), in which we
applied AEDPA’s deferential standard of review to a claim
that the state courts had found waived, but went on to address
in the prejudice prong of an ineffective assistance of counsel
claim, and in Lambert v. Blackwell, 387 F.3d 210, 239-40 (3d
Cir. 2004), in which we applied AEDPA’s deferential
standard of review to a state court decision where the state
court determined that it lacked jurisdiction, but went on to
address the merits.
6
Because the Superior Court considered all three of Rolan’s

17
 When analyzing a claim of prosecutorial misconduct,
the key question is whether a state prosecutor’s comments to
the jury “so infec[ted] the trial with unfairness as to make the
resulting conviction a denial of due process.” Greer v. Miller,
483 U.S. 756, 765 (1987) (quotation marks and citation
omitted). More specifically, a “reviewing court must
examine the prosecutor’s offensive actions in context and in
light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of
evidence against the defendant.” Moore v. Morton, 255 F.3d
95, 107 (3d Cir. 2001); see also United States v. Rivas, 493
F.3d 131, 140 (3d Cir. 2007) (“A mistrial is not required
where improper remarks were harmless, considering their
scope, their relation to the context of the trial, the
ameliorative effect of any curative instructions and the
strength of the evidence supporting the conviction.” (citations
omitted)). Invoking this standard, we address each
prosecutorial misconduct claim in turn.

In his closing, the prosecutor made the following
statements regarding Vargas’s failure to testify at the previous
trial:

Danny Vargas in 1984, characterized as
an alibi witness, didn’t want to cooperate, didn’t
want to give a statement, didn’t want to testify.

Then thirteen years later, thirteen years
later,—can you imagine this?—in 1996, they

prosecutorial misconduct claims on the merits, we will apply
AEDPA deference in our review of the merit determinations
of each claim.

18
parachute him in out of nowhere to say, oh, this
was self-defense, I saw Paulino Santiago with a
knife. . . . .

....

. . . . And the only thing that was missing
from Danny Vargas’s testimony thirteen years
after the crime were four little words: Once
upon a time. Once upon a time. Because if ever
there was a fairy tale being spun in a court of
law by a witness, it was spun in 1996 by Danny
Vargas. Thirteen years later it was fairy tale
time.

....

Now, the defendant was arrested in . . .
November of ‘83. We have these proceedings
in ‘84. Vargas knows they’re going on because
the DA detective goes out to interview him as a
possible witness for the defendant. And yet he
doesn’t come to court, doesn’t testify, doesn’t
tell the defendant or his family anything about
seeing the victim with a knife. Their witness.

....

. . . . Where has he been for thirteen
years, until he finally takes the stand and
testifies at the proceedings in ‘96?

. . . . [H]ow do they even know thirteen
years later to go speak to Mr. Vargas and take
his affidavit? Are they psychic? Are you guys

19
 psychic, that you somehow just know? What
did you find, the phone book and look through
it for all the Hispanic names and say Danny
Vargas, this is a guy that might know
something, let’s go talk to him? . . . .

....

. . . . [Vargas’s 1996 affidavit] was the
very first time anyone ever heard from Danny
Vargas.

The very first time we have anything
from Danny Vargas is in February of 1996
when he completes and signs under oath by a
notary public this affidavit setting forth these
facts, deposing these facts which he testified to
in ‘96 when he testified were true, accurate and
correct to the best of his information and belief.

App. at 1108a-1116a.

These comments were intended to convince the jury
that Vargas’s testimony was unreliable because he did not
immediately come forward. However, Rolan avers that the
comments were misleading because the jury was never told
that this Court had found trial counsel, Goldstein, to be
ineffective for not investigating Vargas as a witness.
According to Vargas, the Commonwealth should not have
been allowed to comment on Vargas’s failure to testify
without attributing the absence to the prior ineffective
assistance of counsel ruling. 7 Vargas also argues that the trial

7
Rolan argues that the trial court infected the second trial

20
court’s failure to provide a sufficient curative instruction
further exacerbated the impact of the prosecutor’s comments. 8

with the errors from the first trial by allowing the prosecutor
to reference Vargas’s failure to come forward earlier. He
suggests that our prior ineffective assistance finding extends
to future proceedings and prohibits any further reference to
the error. Rolan further asks that we grant a retrial to allow
him to be tried without reference to Vargas’s prior failure to
testify. We find no such meaning in our prior decision.
In our 2006 decision, we held that Goldstein’s failure to
conduct a pretrial investigation after Rolan provided him with
Vargas and Aponte’s names, and his subsequent failure to
present a self-defense theory of the case “fell below the
objective standard of reasonableness.” Rolan, 445 F.3d at
682. At the time of the second trial, counsel not only
conducted an investigation, but also presented testimony in
support of a self-defense theory of the case. Additionally, the
alleged improper comments about Vargas were directed at his
decision to come forward years after the shooting, thus
providing information about the sequence of events, not
Goldstein’s prior inadequacies. Therefore, we reject Rolan’s
assertion that our prior findings were so broad that a second
trial with the benefit of Vargas’s testimony and a self-defense
claim would still harbor effects of Goldstein’s prior
ineffectiveness.
8
We note that Rolan did not move for a mistrial when the
Commonwealth referenced Vargas’s absence. Rather, he
only asked for a curative instruction and made no formal
objection to the instruction provided by the trial court. In
light of these facts, we question the extent to which Rolan has
properly preserved this claim.

21
Vargas’s assertion that our prior ineffective assistance of
counsel finding bears any impact on the second trial is
without merit. We will, however, consider his due process
claim, and determine whether the District Court properly
found there to be no constitutional violation.

Considered in the context of the entire trial, the
prosecutor’s statements did not infect the trial with unfairness
so as to constitute a denial of due process. See Greer, 483
U.S. at 765. The prosecutor’s comments focused on the fact
that Vargas failed to come forward with his version of the
events for thirteen years. Although Rolan attempts to ascribe
Vargas’s prior absence solely to Goldstein’s ineffectiveness,
Vargas’s testimony suggests that he made a personal decision
not to provide additional information at the early stages of the
case. When approached by law enforcement in May of 1984
(as a possible alibi witness for Rolan), Vargas did not disclose
that he had information about the case and stated that he was
not willing to provide a statement. He further testified that he
did not tell anyone what he knew about the case until he
spoke to Rolan’s attorney in 1996. He stated that he did not
tell police officers at the scene what he knew and did not
reach out to family members of either Rolan or the victim to
say that he had additional information. It was not until he
saw Rolan in jail, that he decided to reveal his version of the
events to Rolan’s counsel – thirteen years later.

The Commonwealth’s attempts to undermine Vargas’s
testimony were important because Vargas provided testimony
that conflicted with the Commonwealth’s theory of the case.
According to the Commonwealth, his failure to come
forward, or otherwise support Rolan’s self-defense theory at
the initial trial, had adverse implications regarding his
credibility. However, the statements complained of were not

22
the only means by which the prosecution attacked Vargas’s
credibility. In fact, the jury was faced with other evidence
that undermined Vargas’s self-defense testimony (e.g., the
fact that no knife was found at the crime scene despite his
testimony that Paulino came charging in with a knife and the
testimony of other witnesses supporting the Commonwealth’s
theory of the case). See Greer, 483 U.S. at 765-66 (“When a
defendant contends that a prosecutor’s question rendered his
trial fundamentally unfair, it is important as an initial matter
to place the remark in context.” (internal quotation marks,
brackets, and citation omitted)).

The trial court also provided an instruction to cure any
prejudice raised by the prosecutor’s closing arguments. App.
at 1236a (“Ladies and gentlemen, Daniel Vargas was known
to both the Commonwealth and the defense at the time of the
prior proceedings in 1984. However, prior defense counsel
failed to call Daniel Vargas at the earlier proceeding in
1984.”). In light of the other evidence and the court’s
curative instruction, the denial of Rolan’s due process claim
based on the prosecutor’s comments about Vargas was
neither contrary to, nor an unreasonable application of, Greer.

Second, Rolan alleges prosecutorial misconduct based
on the prosecutor’s comments regarding his failure to
previously raise a self-defense theory of the case. The
prosecutor stated:

They claim self defense. Twenty-four
years later they claim self defense. Where was
the self defense in May of 1983? Where was
the self defense for the five months that that
man was a fugitive from the law? Where was
the self defense when he went to Brooklyn and

23
 hid out until the police caught him? . . . .

. . . . Self defense? What does he do?
Does he contact the police? Does he call them
on the phone? Does he surrender himself?
Does he get a lawyer? No. He runs and he
hides.

. . . . Where was the self defense in 1984
when these proceedings were going on and the
witnesses were being called to testify? . . . .

. . . . He never contacted the police, never
got a lawyer, never surrendered, never called
911. . . . [A]t some point do you call the police
and tell them, look, I killed somebody, I had to,
he had a knife, I had no choice, he was going to
stab me. That call never came. Never came.

When they did catch the defendant in
November of ‘83, they brought him back to
Philadelphia and they processed him and they
told him multiple times, you are being charged
with the murder of Paulino Santiago, sir, you
are being charged with his murder. And the
only statement he made was, “I know I need
help.” That’s it. That’s it. “I know I need
help.” That’s it.

App. at 1107a-1110a, 1162a. In granting Rolan’s first
petition for habeas corpus, we held that Goldstein’s failure to
investigate and put forward a self-defense theory was
objectively unreasonable. See Rolan, 445 F.3d at 682
(“Although the decision to forgo a self-defense claim is of the

24
type that may be entitled to a presumption of validity,
Goldstein’s decision not to present the defense cannot be
according [sic] the normal deference to strategic choices
because it was uninformed.”).

Rolan now objects to the prosecutor’s comments,
arguing that they implied that Rolan did not assert a self-
defense theory at trial because it was a fabrication, not
because of his ineffective trial counsel. The prosecutor’s
comments about Rolan’s failure to previously assert self-
defense were not so injurious so as to result in a due process
violation under Greer. 9 The statements were a permissible
attack on Rolan’s credibility. The prosecutor discussed
Rolan’s failure to assert self-defense alongside other
evidence, such as his flight to New York after the shooting, to
allow the jury to determine the reliability of his testimony that
he acted in self-defense. Rolan attempts to characterize
Vargas’s unavailability at the initial trial and Rolan’s failure
to assert self-defense as resting solely on Goldstein’s
ineffectiveness. However, it is impossible for us at this
juncture to know what would have happened if Goldstein had
effectively investigated Vargas as a potential witness and
whether or not Vargas’s corroboration had any impact on
Rolan’s failure to otherwise assert self-defense. As the
Superior Court previously stated, our prior determination of
ineffectiveness does not grant Rolan both a new trial and
“virtual immunity from any challenge to the credibility of his
self-defense claim.” Commonwealth v. Rolan, 964 A.2d 398,
410 (Pa. Super. Ct. 2008).

9
We apply AEDPA deference to this claim as it was
adjudicated on the merits by the Superior Court.

25
 Because the trial court provided an instruction
explaining why evidence of Rolan’s self-defense theory was
not previously presented and because there is other evidence
in the record to further discredit Rolan’s assertion of self-
defense, the Superior Court’s holding that the prosecutor’s
comments did not result in a due process violation was
neither contrary to, nor an unreasonable application of, Greer.
We will affirm the District Court’s denial of federal habeas
relief on this ground.

Third, Rolan asserts prosecutorial misconduct based on
a number of alleged misstatements of the evidence in the
prosecutor’s closing argument. According to Rolan, the
prosecutor articulated discrepancies between Vargas’s
affidavit and his PCRA testimony that did not exist.
Specifically, Rolan argues that the prosecutor erroneously
claimed that Vargas’s affidavit stated that the Santiago
brothers and Rolan all went into the house together. He also
alleges that the prosecutor misstated evidence by referencing
Vargas’s testimony about Paulino Santiago entering the house
with a knife and then stating that Vargas failed to include
facts about the knife in his original affidavit. Additionally,
Rolan claims that the prosecutor mischaracterized the
following: Rosado’s testimony about if and when he saw
Rolan with the murder weapon; whether the 911 caller saw
Rolan enter the house with a rifle; and the amount of time and
extent of the police’s search of the house. Finally, he avers
that the prosecutor improperly emphasized the consistency of
Francisco Santiago’s statement to the police with his
preliminary hearing and trial testimonies despite the trial
court’s ruling that the police statement was inadmissible. Not
surprisingly, the Commonwealth asserts that the prosecutor’s
statements were fair and proper arguments within the context

26
of the trial.

Considering these statements within the context of the
case, we find no constitutional violation. 10 Rather, the record
indicates that the alleged misstatements were either supported
by other statements in the record or acceptable arguments
based on the trial testimony and the defense’s arguments. 11

10
Although the Superior Court did not specifically address
each alleged misstatement (and alternatively held that these
claims were procedurally defaulted), it concluded that
Rolan’s cumulative impact argument regarding the alleged
misstatements lacked merit. For this reason, we apply
AEDPA deference to this claim.
11
Our review of the record comports with the District Court’s
analysis, which we adopt in affirming its decision to deny
habeas relief based on the prosecutor’s alleged
misrepresentations:
The credibility of Daniel Vargas’[s]
testimony was thoroughly addressed by both
sides. Petitioner asserts that the prosecutor
made several misstatements concerning his
testimony in his closing argument. During his
argument, the prosecutor reviewed Vargas’[s]
testimony and compared it to his affidavit,
pointing out discrepancies. He also argued that
Vargas had opportunity to tell the police what
he knew about the murder of Paulin[o] Santiago
prior to 1996; however, he did not do so. This
was a fair argument.
Mr. Rolan also claims that the prosecutor

27
argued that Edwin Rosado saw Petitioner with
the rifle at the same time of the shooting, and
called it a blatant misrepresentation of the
evidence. The record reveals that that is not
exactly what the prosecutor said; he was
properly commenting on the evidence presented
at trial. It was also a fair response to defense
counsel’s statement of the evidence.
Additionally, Petitioner claims that the
prosecutor misrepresented both the context and
the content of the 911 call. These alleged
misrepresentations were logical arguments and
inferences from the evidence. Moreover, the
911 call was played for the jury during
summation, allowing the jury to make their own
inferences from the call.
Mr. Rolan further complained that the
prosecutor misrepresented the evidence by
saying the house was searched for 3 ½ hours.
The inadequacy of the crime scene was brought
up in the defense closing, to which the
prosecutor appropriately responded.
Francisco Santiago’s statement to police
being mentioned in the prosecution’s closing is
another subject with which Mr. Rolan has taken
issue. Though the statement was mentioned,
the court sustained [Rolan]’s objection made at
the time, and the statement was never admitted
into evidence. The remarks of the prosecutor
concerning Francisco Santiago were in response

28
Further, the trial court provided adequate instruction to cure
any harm caused by the prosecutor’s characterizations of the
evidence. It instructed the jury to rely on the evidence
presented at trial and to form their opinions of the case based
on their independent recollections of the testimony, not the
arguments of counsel. 12 The Superior Court’s holding that

to defense counsel’s comments in his closing
about Mr. Santiago’s credibility.
Rolan v. Coleman, No. 2:08-cv-05438, slip op. at 41 n.20
(D.N.J. July 30, 2010).
12
The trial court provided the following instruction:
As I’ve told you before, what counsel
says is not evidence. But even though these
statements do not constitute evidence, you
should consider them very carefully. In their
closing statements, counsel will call to your
attention the evidence that they consider
material and will ask you to draw certain
inferences from that evidence.
Ladies and gentlemen, please keep in
mind, however, that you’re not bound by
counsel’s recollection of the evidence. It is
your recollection of the evidence and your
recollection alone which must guide you during
your deliberations. If there is a discrepancy
between counsel’s recollection and your
recollection, you’re bound by your own
recollection . . . .
App. at 1043a-44a.

29
the prosecutor’s comments did not result in a due process
violation was neither contrary to, nor an unreasonable
application of, Greer. We will affirm the District Court’s
denial of Rolan’s petition for habeas corpus on the basis of
prosecutorial misconduct.

B. Fifth Amendment Claim

Rolan further avers that the prosecutor’s comments
about his post-arrest silence violated his Fifth Amendment
privilege against self-incrimination. 13 The Fifth Amendment
guarantees “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const.
amend. V. The Supreme Court has recognized that where a
prosecutor, on his own initiative, asks a jury to draw an
adverse inference from a Mirandized criminal defendant’s
post-arrest silence or to treat that defendant’s silence as
substantive evidence of guilt, the defendant’s privilege
against self-incrimination is violated. Doyle v. Ohio, 426
U.S. 610, 620 (1976) (“We hold that the use for impeachment
purposes of petitioners’ silence, at the time of arrest and after
receiving Miranda warnings, violated the Due Process Clause
of the Fourteenth Amendment.”).

13
This claim was adjudicated on the merits; therefore, we
apply AEDPA deference to the Superior Court’s
determinations. See Horn, 570 F.3d at 115.

30
 During trial, the prosecutor stated:

When they did catch the defendant in
November of ‘83, they brought him back to
Philadelphia and they processed him and they
told him multiple times, you are being charged
with the murder of Paulino Santiago . . . . And
the only statement he made was, “I know I need
help.” That’s it. That’s it. “I know I need
help.” That’s it.

App. at 1162a. Rolan characterizes this statement as a
comment on his failure to make a specific statement (i.e., the
fact that he was silent on the matter). However, the record
clearly indicates that the prosecutor did not comment on
Rolan’s post-arrest silence, but rather on the substance and
limited nature of what he did say. Neither the Fifth
Amendment nor Doyle shield a defendant from a prosecutor’s
comments about statements made to the police. Therefore,
the Superior Court’s decision to deny Rolan’s claim on this
ground was not contrary to, or an unreasonable application of,
Supreme Court precedent as stated in Doyle. 14 We will

14
We note that the District Court did not apply explicitly
AEDPA deference in reviewing this claim. Rather, it
identified Griffin v. California, 380 U.S. 609 (1965) as the
relevant Supreme Court precedent and reviewed the state
court’s resolution for reasonable application. To that point,
we, first, find Doyle to be more applicable to this case, as the
Griffin analysis most pointedly addresses a prosecutor’s

31
affirm the District Court’s denial of Rolan’s petition for
habeas corpus for violation of the Fifth Amendment.

C. Confrontation Clause

Because Francisco Santiago died before Rolan’s
retrial, the transcript of his testimony from Rolan’s original
trial and his preliminary hearing was read into evidence.
Rolan now argues that the trial court’s decision to admit
Santiago’s testimony violated his rights under the
Confrontation Clause because he was deprived of an adequate
cross-examination of the witness. 15 Because we find no
constitutional error, we reject Rolan’s position that the
Santiago testimony should be struck from the record and a
retrial granted.

In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court held that out-of-court testimonial statements
may not be offered against a defendant at trial unless the
declarant of the statement is unavailable and the defendant
had an opportunity to cross-examine the declarant. Id. at 68
(“Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-

adverse comments about a defendant’s failure to testify at
trial. Second, to the extent that the reasonable application
review is separate from AEDPA, we refuse to adopt such a
standard of review in favor of AEDPA deference.
15
This claim was adjudicated on the merits; therefore, we
apply AEDPA deference to the Superior Court’s
determinations. See Horn, 570 F.3d at 115.

32
examination.”). We now must consider whether the Superior
Court’s determination that admitting Francisco Santiago’s
testimony at trial did not violate Rolan’s rights under the
Confrontation Clause is contrary to, or an unreasonable
application of, Crawford. See 28 U.S.C. § 2254(d)(1).

In Rolan’s first habeas corpus proceeding, we held that
his trial counsel had been constitutionally ineffective by
failing to investigate Rolan’s self-defense theory and failing
to call two witnesses in support of that theory. Rolan now
argues that his prior counsel was ineffective in his cross-
examination of Francisco Santiago because prior counsel did
not question him about inconsistent statements or explore a
grant of immunity given by the Commonwealth. The parties
do not dispute the fact that Rolan cross-examined Francisco
Santiago when he testified at the first trial. The issue here is
whether prior counsel’s cross-examination of Francisco
Santiago was adequate under Crawford despite our previous
finding that counsel was ineffective for other reasons. We
hold that it was more than adequate.

Crawford does not provide a specific standard for
determining whether a defendant had an opportunity to cross-
examine a witness, but it does suggest that the prior
opportunity must be adequate. Crawford, 541 U.S. at 57
(“Our later cases conform to [the holding in Mattox v. United
States, 156 U.S. 237 (1895)] that prior trial or preliminary
hearing testimony is admissible only if the defendant had an
adequate opportunity to cross-examine.” ). As the Supreme
Court has previously stated, “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

33
 In analyzing Rolan’s initial ineffectiveness claim, the
Superior Court found that prior counsel’s cross examination
“established that both Santiago brothers had been drinking
heavily, that the abandoned house was without electricity and
therefore dark, that the victim’s girlfriend had recently left
him for Appellant, and that despite [Francisco] Santiago’s
claim that Appellant demanded money, he did not stop to take
any cash from either brother.” Rolan, 964 A.2d at 409. It
also noted that both Goldstein and the prosecutor asked
whether either Francisco or Paulino Santiago had a weapon.
Id. (“Regarding the self-defense theory, counsel, like the
prosecutor, did ask whether either brother has a weapon”). It
also specifically addressed Rolan’s claim that Francisco
Santiago was not adequately cross-examined by Goldstein
because Goldstein did not fully explore his immunity
agreement with the Commonwealth and concluded that it was
a baseless argument. 16 There is no Supreme Court precedent
to suggest that Goldstein’s cross-examination was inadequate,
and the record does not support such a conclusion.
Consequently, the Superior Court’s finding was not contrary
to, or an unreasonable application of, Crawford. We will
affirm the District Court’s denial of Rolan’s writ of habeas
corpus on this ground.

16
In doing so, the Superior Court noted that Francisco
Santiago’s testimony at the preliminary hearing (before
making the agreement with the Commonwealth) was
consistent with his trial testimony. Those consistencies
combined with the fact that the jury was aware of his criminal
record indicated that additional disclosure of the immunity
agreement would have been of little consequence as
impeachment evidence. Rolan, 964 A.2d at 407.

34
 V. CONCLUSION

For the reasons stated above, we will affirm the
District Court’s order denying Rolan’s petition for writ of
habeas corpus.

35