290 F.3d 500 (3rd Cir. 2002), 00-1662, Everett v. Beard

Docket Nº:00-1662
Citation:290 F.3d 500
Party Name:Everett v. Beard
Case Date:May 02, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 500

290 F.3d 500 (3rd Cir. 2002)

Gerald EVERETT, Appellant,


Jeffrey A. BEARD, Ph.D., Warden Sci Camp Hill; The District Attorney of the County of Philadelphia, Lynn Abraham; The Attorney General of the State of Pennsylvania, Michael Fisher.

No. 00-1662.

United States Court of Appeals, Third Circuit

May 2, 2002

Argued: Oct. 30, 2001.

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[Copyrighted Material Omitted]

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Norris E. Gelman, (Argued), Philadelphia, PA, for appellant.

Thomas W. Dolgenos, (Argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy District Attorney Law Division, Arnold H. Gordon, First Assistant District Attorney, Office of District Attorney, Philadelphia, PA, for appellees.



SLOVITER, Circuit J.


Gerald Everett, who drove the automobile carrying two men who robbed and then murdered the proprietor of a grocery store, was convicted of first-degree murder in the Court of Common Pleas of Philadelphia County, Pennsylvania, following a charge that explicitly permitted the jury to

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impute to Everett the murderer's intent to kill. The Pennsylvania Supreme Court thereafter specifically held such a charge to be reversible error, although its holding followed inexorably, as the court itself said, from previously enunciated state law. The Supreme Court of the United States has also held that such a charge violates the Due Process Clause of the United States Constitution. The question before us is whether we can do anything about Everett's conviction for first-degree murder following the erroneous charge.

No one alleges that Everett intended that anyone would be shot. Nonetheless, the state trial judge, in charging the jury, said over and over again that Everett could be found guilty of intentional murder if his accomplice intended to cause the death of the. victim. Everett's counsel failed to object to this charge. In the appeal before us, Everett challenges the denial of his petition for a writ of habeas corpus claiming violations of his Sixth Amendment right to effective assistance of counsel by virtue of his counsel's failure to object.



On July 17, 1979, Gerald Everett drove Raymond Gray and Robert Burgess to the 1600 block of Kater Street in Philadelphia. During the drive Gray and Burgess said they were going to commit a robbery. Gray and Burgess entered a candy store owned and operated by Jon Jennings and drew guns. Jennings attempted to grab the gun of one of the perpetrators and a struggle ensued. The other perpetrator walked over to Jennings and shot him once in the chest, causing his death. When the two men fled the store, Everett picked them up and drove them away from the scene. Everett admits that he drove the others to and from the store and does not deny that he was an accomplice.

A. State Court Proceedings

Everett was charged with first-degree murder, robbery, and criminal conspiracy. At Everett's trial, the prosecutor said in his opening statement:

At no point in time will I stand here and tell you that this defendant was the actual shooter; at no point in time has or is anyone in this case ever going to say that this defendant was inside Mr. Jennings['] candy store that day. He wasn't. There's no question about that. What we are proceeding on is something called an accomplice theory, accomplice liability and a conspiracy theory.

App. at 45. In his closing statement, the prosecutor said:

And the one thing I want to stress to you ladies and gentlemen, to convict this man of murder you don't have to find that they discussed shooting anyone beforehand because they obviously didn't. I'm not going to stand here and make a moron out of myself and tell you that they planned to shoot Jon Jennings. They didn't. It happened.

Supp.App. at 598-99.

After the close of trial, the judge charged the jury in pertinent part as follows:

Now, ladies and gentlemen, I am going to discuss with you the various concepts of homicide.

The defendant in this case is charged with an offense involving what we call criminal homicide, which is the taking of a human life without justification or excuse.

. . . .

It is your duty in this case to determine whether the victim, Mr. Jennings, died

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as a result of an act of the defendant amounting to criminal homicide, or whether the defendant's act or that of an accomplice actually caused the criminal homicide, and if so, if it was done by the defendant, as you determine the facts, and/or an accomplice of the defendant, if so, whether the killing that resulted therefrom, if you were to so find that it did occur, was murder in the first degree, murder of the second degree, murder of the third degree or voluntary manslaughter.

I shall now instruct you in the elements of each of these offenses. . . .

First: Murder of the first degree: In order to find this defendant guilty of murder in the first degree, you must find that all of the following elements have been established by the Commonwealth beyond a reasonable doubt: One, that the defendant or an accomplice caused the death of another person—in this case Mr. Jennings; that is, you must find that the death of Mr. Jennings would not have occurred but for the alleged acts of the defendant or his accomplices, if there are any in this case.

Two: that the killing was intentional. A killing is intentional if it is done by means that are determined to be willful, deliberate and premeditated . . . .

A killing is willful and deliberate if the defendant and/or his accomplice, if there were any, consciously decided to kill the victim, and it is premeditated if the defendant or his accomplice,' if there were any accomplices, possessed a fully informed intent to kill at the time when the killing took place, even though there need not have been any appreciable amount of time between the time when the defendant and/or the accomplice, if any, first conceived the idea of killing, and the time when the action took place.

An intentional killing, as I have defined the term for you, may be found from any expressed words used by the defendant or his accomplice, if any exist, or may be implied from the words or conduct of the defendant or his accomplice. It should be noted that if the defendant or his accomplice, if any, intentionally used a deadly weapon, such as a gun, with bullets in it, on a vital part of the victim's body, you may infer from this fact, or these facts, that the killing was intentional, and therefore willful, deliberate and premeditated.

App. at 68-71 (emphasis added). In addition, with respect to accomplice liability generally, the judge instructed the jury as follows:

You may find the defendant guilty of a crime without finding that he personally performed the acts or engaged in the conduct required for the commission of the crime or crimes that I have already mentioned, or even that he was personally present when the crime or crimes were committed.

A defendant is guilty of a crime if he is an accomplice of another person who commits the crime here involved, or crimes here involved. Such a defendant is an accomplice if, with the intent of promoting or facilitating the commission of the crime or crimes here involved, he, the defendant, solicits, commands, encourages or requests that the other person or persons involved commit the crime or crimes, or he aids, or agrees to aid, or attempts to aid, or abets in the other person committing or planning the commission of the crime. . . .,

You may find the defendant guilty of the crime on the theory that he was an accomplice, as long as you are satisfied, ladies and gentlemen of the jury, beyond a reasonable doubt that the crime or crimes were committed and that the defendant

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was the accomplice of the person or persons who committed it under the definitions of an accomplice that I just gave you.

App. at 82-83.

Trial counsel failed to object to these instructions. Further, trial counsel complimented the judge on the fairness of these instructions after the jury left the courtroom.

Mr. Greene [Everett's attorney]: I think probably it would be a waste of time to go over each and every point. You certainly have covered most everything here, and—

The Court: I want to cover everything, not most.

. . . .

Mr. Greene:— I would also like to state for the record that I consider your charge eminently fair, and my compliments to the Court for the quality of the charge that it gave to this jury.

App. at 86. During its deliberations, the jury requested an explanation of the different degrees of murder. The trial judge repeated the same instructions. App. at 101-04.

On October 9, 1980, Everett was convicted of first-degree murder, robbery, and criminal conspiracy. He was sentenced to life in prison on February 25, 1981. Represented by the same attorney who represented him at trial, Everett appealed his conviction. His direct appeal to Superior Court failed. Commonwealth v. Everett, 299 Pa.Super. 182, 445 A.2d 514 (1982). The Pennsylvania Supreme Court denied allocate. Commonwealth v. Everett, No. 310 E.D.Alloc.Dkt.1982.

B. State Collateral Proceedings

Everett then obtained new counsel and, starting on October 4, 1982, filed post-conviction relief petitions in accordance with the Post Conviction Relief Act (PCRA), 42 Pa.Cons.Stat. §§ 9541-46 (2001). Prior to the PCRA hearing, the lawyer withdrew three of the four claims made in the last petition and, on the day of the hearing, withdrew the remaining claim. Relief was denied. Represented by new counsel, Everett appealed arguing that previous counsel had poorly served Everett's interests by withdrawing all his claims. The Superior Court remanded for further proceedings. On remand, Everett raised ineffective...

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