McAleese v. Mazurkiewicz

Decision Date27 July 1993
Docket NumberNo. 92-1820,Nos. 92-1718,No. 92-1718,92-1820,92-1718,s. 92-1718
PartiesFrank G. McALEESE, Appellant at, v. J.F. MAZURKIEWICZ, Warden; Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County, J.F. Mazurkiewicz, Appellant at
CourtU.S. Court of Appeals — Third Circuit

Stephen D. Ellis (argued), Richard L. Scheff, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for appellant Frank G. McAleese.

Donna G. Zucker (argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy Dist. Atty., Law Div., Arnold H. Gordon, Chief Deputy Dist. Atty., Lynne Abraham, Dist. Atty., Philadelphia, PA, for appellant Joseph Mazurkiewicz.

Before: BECKER, HUTCHINSON and WEIS, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants are John F. Mazurkiewicz, Superintendent of the State Correctional Institute at Rockview, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Lynne Abraham, District Attorney of Philadelphia County (collectively the "Commonwealth"). They appeal an order of the United States District Court for the Eastern District of Pennsylvania granting a writ of habeas corpus to appellee Frank G. McAleese because his counsel was ineffective. The district court had subject matter jurisdiction under 28 U.S.C.A. Sec. 2254 (West 1977). This Court has appellate jurisdiction under 28 U.S.C.A. Secs. 1291 (West Supp.1993) and 2253 (West 1971). After careful consideration, we have concluded McAleese's trial counsel was not constitutionally ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we will reverse.

I. Procedural History

On June 17, 1983, following a jury trial in the Philadelphia Court of Common Pleas, McAleese was convicted of third degree murder and possession of an instrument of crime in the killing of his ex-wife, Ramona Grabowski. McAleese retained a new lawyer post-verdict, who raised claims of ineffective assistance of counsel and trial error. Following lengthy evidentiary hearings, during the course of which McAleese's second retained counsel withdrew and court-appointed counsel was provided, the court of common pleas denied post-verdict relief and sentenced McAleese to ten to twenty years imprisonment for murder, and a consecutive 2.5 to five years for the weapons offense.

McAleese appealed directly to the Pennsylvania Superior Court, which affirmed. See Commonwealth v. McAleese, 371 Pa.Super. 645, 534 A.2d 132 (1987) (unpublished mem. op.). The Supreme Court of Pennsylvania allowed an appeal limited to the issue whether trial counsel was ineffective in presenting an alibi defense. After briefing and argument, however, the supreme court dismissed the appeal as improvidently granted. See Commonwealth v. McAleese, 520 Pa. 92, 552 A.2d 667 (1989).

On March 27, 1989, McAleese filed a petition for a writ of habeas corpus in the district court. 1 The magistrate judge to whom the district court assigned the case for a report and recommendation appointed counsel to represent McAleese in his quest for federal habeas relief.

On March 18, 1992, the magistrate judge issued a report and recommendation rejecting six of the seven claims McAleese had raised in his petition, but recommending that the writ be granted on McAleese's Sixth Amendment claim that trial counsel was ineffective. The magistrate judge concluded that trial counsel's investigation of facts that might have supported McAleese's alibi defense was inadequate because counsel made no effort to obtain telephone records that were available for only a thirty to sixty-day period. McAleese claims that these records would have shown an absence of long distance calls placed about the time of the murder to the Wilmington office of James Natalie, Jr., Esq., a Delaware lawyer who was then representing McAleese in unrelated criminal insurance fraud proceedings in Delaware.

McAleese's claim that trial counsel departed from Strickland 's objective standard of reasonableness when he failed to check the long distance records warrants separate discussion. McAleese claimed that he had telephoned Natalie at about 3:00 p.m. on the afternoon of the murder, close to the time it apparently was committed. Natalie likewise represented to trial counsel that he had received a phone call from McAleese at about that time, and that McAleese had not reversed the charges. 2 The magistrate judge reasoned that the telephone records could have shown that no long distance telephone calls were made to Natalie's Wilmington office from Philadelphia at or around 3:00 p.m., the approximate time the crime was committed; and, if so, that a jury could have inferred McAleese was in or near Wilmington at the time the crime was being committed in Philadelphia. Despite the present unavailability of the phone records and the consequent absence of any direct evidence of what they would show, the magistrate judge apparently inferred they would support McAleese's alibi from evidence that showed he was in Wilmington at other times on the day of the crime even though those other times would not rule out his presence in Philadelphia at the time the crime was committed. The magistrate judge then went on to conclude that trial counsel's failure even to attempt to retrieve the records was inexcusable and so did not meet the objective standard of competence under Strickland.

Alternately, the magistrate judge determined that trial counsel had promised the jury in his opening statement that he would present an alibi defense, and then unreasonably failed to do so by not calling Natalie as a witness to establish McAleese's whereabouts at the time of the murder. The magistrate judge concluded that this mishandling of the defense likewise constituted ineffectiveness and undermined the reliability of the jury's verdict. Therefore, he recommended the writ be granted unless the Commonwealth granted McAleese a new trial. See McAleese v. Mazurkiewicz, Civ.A. No. 89-2151 (E.D.Pa. Mar. 18, 1992) (hereinafter "Report and Recommendation"); Appendix ("App.") at 1289-1327. The Commonwealth filed objections to the report and, after McAleese responded, the district court approved and adopted the report and recommendation and, on June 17, 1992, issued an order granting the writ unless the Commonwealth cured the constitutional error by retrying McAleese within 180 days.

McAleese filed a motion to alter or amend the June 17 order to shorten the time within which retrial would be allowed. Before the district court had ruled on McAleese's motion, the Commonwealth filed a notice of appeal from the June 17, 1992 order of the district court granting McAleese's petition for writ of habeas corpus. The district court denied the motion to alter or amend because of the pending appeal. On July 28, 1992, this Court dismissed the Commonwealth's appeal, with the agreement of the parties, as premature under Federal Rule of Appellate Procedure 4(a)(4). See McAleese v. Mazurkiewicz, No. 92-1579 (3d Cir. July 28, 1992). At that point, McAleese renewed his motion to alter or amend and filed a motion for enlargement, i.e., release from prison pending decision on his appeal. The Commonwealth responded by filing a motion to stay issuance of the writ pending appeal. On August 18, 1992, after hearing argument, the district court vacated its earlier order and granted McAleese's motion to alter or amend the judgment by allowing the Commonwealth 120 days in which to retry McAleese instead of the 180 days for retrial provided by the original order. Simultaneously the court granted the Commonwealth's motion for a stay pending appeal and denied McAleese's motion for enlargement on bail. The Commonwealth then filed a timely notice of appeal in this Court. 3

II. Statement of Facts

Ramona Grabowski was brutally murdered between 2:30 and 3:00 on the afternoon of December 1, 1982. The murder took place in the basement of her residence on Hawthorne Street in northeast Philadelphia. A post mortem examination revealed that Grabowski had suffered forty anterior stab wounds to the head, neck, trunk, and extremities, as well as anterior fractures of the skull with incised wounds to the brain, and laceration of her lower lip, both nipples, and the right labia. Her injuries also included cuts or wounds to her forehead, nose, right eyebrow, neck, and chin. Fourteen small wounds distributed over Grabowski's back were caused by the knife or weapon that had inflicted the wounds on the front of her body completely passing through her.

At trial, the Commonwealth's case-in-chief established that nine-year old Monica Hendricks, Grabowski's daughter by another marriage, arrived home from school on the date of the murder at about 3:00 p.m. Monica entered the house through the basement and went up the cellar steps to the first floor. There she encountered her younger siblings, Tanya, Rebecca, and Joseph. They were screaming. Monica went back down to the basement. Seeing nothing, she returned to the kitchen. On her way back to the kitchen she looked out a window and saw a green car with stripes down its side and a luggage rack on its roof.

Entreated by her younger sisters and brother, Monica returned to the basement where she saw a man walking out of the door. She described him as fat with gray hair, a mustache, blue eyes, no bottom teeth, and bumps on his face. She said that he was wearing a tan jacket and trousers of a darker brown. Monica testified at trial that he mumbled something as he walked out of the basement door. Later she identified McAleese as the man she had seen in the basement. After he left, Monica saw her mother lying in a corner of the basement, stabbed, with clothing stained and in disarray.

Monica ran for help and encountered her school's crossing guards. She did not at once tell the crossing guards why she needed help because she wanted to talk to her...

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