dissenting:
Before the Pennsylvania Superior and Supreme Courts, Hartey’s first point on appeal was this: “Trial counsel was ineffective for failing to object to the Court’s accomplice instruction which permitted the conviction of an accomplice based on his joining the actor in ‘an illegal act’ and failed to focus the attention of the jury on whether or not the accomplice shared or harbored the specific intent to kill that had to be found as to the actor.”
Hartey made ineffective assistance of counsel in regard to this instruction his first claim in his habeas petition to the district court. As the majority observes, it is this claim that is before us now.
Hartey was tried for a murder committed by McCandless, as to which the state’s theory was that Hartey was an accomplice. The trial court instructed the jury: “A defendant is guilty of a crime if he is an accomplice of another person who commits a crime. He is an accomplice if with the intent of promoting or facilitating the commission of the crime, he solicits, commands, encourages, requests the other person to commit it, or aids, agrees to aid or attempts to aid the other person in planning or committing it.... You may find the defendant guilty of a crime on the theory that he was an accomplice as long as you are satisfied beyond a reasonable doubt that the crime was committed and that the defendant was an accomplice of the person who committed it.”
The trial court went on to define murder in the first degree. It instructed the jury that first degree murder was an intentional killing. Intentional killing, the court said, was “by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing. Therefore, in order to find the defendants guilty of murder in the first degree, you must find that the killing was a wilful, deliberate, and premeditated act. You must ask yourself the question, Did the defendants have the wilful, deliberate and premeditated specific intent to kill at the time of the killing?”
Defense counsel did not competently object to these instructions. The instructions, however, permitted the jury to convict Hartey of first degree murder if it *375found that be had the intent of promoting McCandless’s crime of murder. Under Pennsylvania law, specific intent to kill is an ingredient of first degree murder. See Smith v. Horn, 120 F.3d 400, 411 (3rd Cir.1997). The trial court omitted this factual requirement and so instructed the jury in a way contrary to Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Defense counsel’s failure to object to Sandstrom error constituted ineffective assistance. It fell below professional standards of competence and there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The commonwealth contends that the jury instructions were correct as the decision of the Superior Court so holds, Commonwealth v. Hartey, 424 Pa.Super. 29, 621 A.2d 1023, 1028 (1993), and that this decision of state law binds this court. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); 28 U.S.C. § 2254(d)(1). But the omission in a jury instruction of an element of the crime is contrary to Sandstrom; the Superior Court’s endorsement of the error does not supply the omission or correct the error.
The majority in this court states: “We need not evaluate the accomplice liability instruction itself because we conclude that the record establishes that Hartey’s counsel was effective on this issue by making and preserving his objections.” But in no way did counsel point out the Sandstrom error. No one looking at the vague and halting remonstrance of counsel could imagine that he was calling the attention of the trial judge to a problem of constitutional dimensions and citing to Supreme Court authority already five years old and already employed to vacate a number of state criminal convictions. See e.g., Arroyo v. Jones, 685 F.2d 35, 39-41 (2d Cir.1982); Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820, 826 (4th Cir.1982).
The majority opinion goes on to say, “In any event, the Superior Court considered Hartey’s challenge to the accomplice liability instruction and thus Hartey suffered no prejudice from counsel’s alleged failure to preserve his objections to the instructions.” But the Superior Court reached the unconstitutional conclusion that the accomplice instructions were correct; and therefore the Superior Court did not adequately address Hartey’s contention that his counsel failed to object to them.
The Superior Court contented itself with noting that the trial court’s charge on accomplice liability had “mirrored the relevant statutory definitions” and that the trial court had told the jurors to ask themselves if “the defendants” had the “premeditated specific intent to kill at the time of killing.” Commonwealth v. Hartey, 621 A.2d at 1028. The reference to “the defendants” in the plural did not save a charge that had unequivocally told the jury they could find Hartey to be guilty as an accomplice to murder if he had had the intent of promoting the killing. The single reference to “defendants” was cloudy; it was not specified that each of the defendants must independently have the specific intent to kill; a juror could reasonably have understood that the intent of one defendant should be attributed to the other as the instruction on accomplice suggested. At the very least, the instruction, if taken to require the specific intent to kill on the part of the accomplice, was contradicted by the instruction on accomplice liability. Contradictory instructions cancel each other out, leaving no instruction. They do not cure the Sandstrom error. The error was of constitutional dimension. See Smith v. Horn, 120 F.3d at 415. So was counsel’s failure to object to it.
The commonwealth has a fallback position: the error was harmless because the jury convicted Hartey of conspiracy to murder, and conspiracy to murder is an agreement intentionally to kill. The commonwealth relies on the trial court’s instruction that first degree murder consists *376in intentional killing. But the trial court’s instruction on conspiracy to murder blunted the focus on intentional killing by stating that the jurors would have to find that in planning or committing murder “the defendants do so with the intent of promoting or facilitating the commission of the crime of murder.” Specific intent to kill was not noted. That the jury was in fact at sea because of the erroneous instruction is confirmed by their note during deliberations asking the court “to explain what an accomplice is according to law” in response to which the court magnified its error by repeating its accomplice instructions without objection. In any event, the commonwealth’s point has no relevance now. Hartey was sentenced to no less than five, and no more than ten, years on the conspiracy count, the term to run concurrently with his life imprisonment for murder. Long ago he finished his sentence for conspiracy.
Hartey’s claim of ineffective assistance of counsel in his prosecution for murder suffices for him to be accorded habeas. Two further considerations make grant of the great writ not only legally appropriate but morally fair. First, review of Hartey’s case is narrowly circumscribed by the AEDPA because no less than three members of the bar undertook to represent him in the 1980’s and defaulted his state appeal by failing to file an appellate brief. The Superior Court cured these defaults as best it could by reinstating the appeal. No federal remedy exists for the harm that they inflicted on Hartey. But no one familiar with the AEDPA can doubt that Hartey’s position today has suffered because of these lapses by his lawyers.
Second, Thomas McCandless, the co-defendant, the already-convicted murderer, has been held by this court to deserve a new trial. See McCandless v. Vaughn, 172 F.3d 255, 270 (3d Cir.1999). It is possible, indeed it is likely, that he will walk. The opinion of this court throws out the principal testimony offered against him by John Barth seventeen years ago, “the only substantial evidence implicating McCandless in the murder.” Id. at 266. Barth, the missing witness whose preliminary hearing testimony the state then relied on, is now deceased, apparently having committed suicide after being arrested in a drug bust. As our opinion in McCandless observes, the state “did not expend the minimal effort necessary” to get a warrant for telephone records by which they could track Barth and have him on hand for the trial. Id. at 268. The prosecutor’s efforts to locate their star witness were “casual.” Id. The prosecutor “did not satisfy its Sixth Amendment duty to make reasonable good faith efforts to obtain Barth’s presence at trial.” Id. at 270. .
Hartey was as deeply injured by the prosecutor’s procedure as McCandless. This court finds that a procedural bar, enacted in the interest of state-federal comity, forbids us to consider this injury now. This court concedes that the disparate results “might appear to be incongruous.” Not incongruous, I should say, but unjust. It is good that there be a way, not procedurally barred, by which the injustice may be avoided.