Brown v. Wenerowicz

• Citation: 663 F.3d 619
• Decision Date: 08 December 2011
• Docket Number: Nos. 10–3203,10–3516.,s. 10–3203
• Parties: Anthony T. BROWN v. * Michael WENEROWICZ, Superintendent, SCI Graterford; * Raymond Lawler, Superintendent, SCI Huntingdon; District Attorney of the County of Philadelphia; Attorney General of the State of Pennsylvania, Appellants* (Amended per Clerk's Order of 12/15/10).
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

663 F.3d 619

Anthony T. BROWN

v.* Michael WENEROWICZ, Superintendent, SCI Graterford; * Raymond Lawler, Superintendent, SCI Huntingdon; District Attorney of the County of Philadelphia; Attorney General of the State of Pennsylvania, Appellants* (Amended per Clerk's Order of 12/15/10).

Nos. 10–3203

10–3516.

United States Court of Appeals, Third Circuit.

Argued Sept. 20, 2011.Filed: Dec. 8, 2011.

Salvatore C. Adamo [Argued], Easton, PA, for Plaintiff–Appellee.

Anne Palmer [Argued], Philadelphia County Office of District Attorney, Philadelphia, PA, for Defendant–Appellants.

Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Anthony Brown was convicted in Pennsylvania state court of first-degree murder, reckless endangerment, and possession of an instrument of crime. After exhausting his state court remedies, Brown filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d)(1), claiming that the decision of the Pennsylvania Superior Court was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States District Court for the Eastern District of Pennsylvania granted Brown's petition following an evidentiary hearing. The Commonwealth appeals, claiming that under the stringent requirements of the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Brown was entitled to neither a federal evidentiary hearing nor the issuance of the writ.

I

A

On September 7, 1998, the Rorie family attended a Labor Day celebration at the 600 block of Conestoga Street in Philadelphia, Pennsylvania. As the block party ended sometime after 8:00 p.m., the matriarch of the family, Frances Rorie, began to sweep the sidewalk while thirty others cleaned. Suddenly, Tiffany Thompson ran toward the crowd yelling “they're coming, they got a gun.” A vehicle rounded the corner of Poplar and Conestoga Streets, and four men emerged from the car. One man fired a gunshot into the air. As Frances Rorie tried to find shelter behind a car, a second shooter pointed an Uzi pistol at the Rorie home and fired seventeen shots into the crowd. One shot hit Frances in the head, killing her instantly.

Frances Rorie's murder capped a day of heated confrontation between neighbors. The trouble began in the morning, when children from Conestoga Street argued with children from Girard Avenue. The mother of some of the Girard Avenue children was Kim Brown, sister of Appellee Anthony Brown. Accompanied by her friend, Sharon Carter, Kim approached Frances's granddaughter, Tamika Thompson, who referred the women to her mother, Alanda Rorie, at 647 Conestoga Street. There, Kim and Sharon argued with Alanda, Frances, and Yvonne Rorie.

The argument at Alanda Rorie's home did not relieve the tensions between the families. Sometime between 3:00 and 4:00 p.m., Kim Brown's son Hakim threw a rock at Yvonne Rorie's son Rafeek. The Rories then grabbed brooms and marched to the corner of Conestoga and Girard. The Browns in turn wielded knives while their friend, Kareema Latimer, threatened to “get her .357 and spray the whole corner.” A few hours after Latimer issued her threat, Tamika and Yvonne spotted Appellee Anthony Brown, Anthony Fingers, Kevin Johnson, and two other men standing at the corner with Kareema Latimer, who pointed at the Rorie home.

According to Yvonne Rorie, the shooting started fifteen to twenty minutes later. Tamika Thompson later testified that she did not know precisely how much time elapsed, but knew it was more than five minutes later. A police radio call reported the shooting at 8:23 or 8:24 p.m.

When police arrived, Tamika and Yvonne reported that they had seen the men standing at the corner, that at least two of them had guns, and that one had pointed a gun at the Rorie home before he started shooting. Tamika described the assailant as tall, light-skinned, skinny, and about 22 years-old. She said he was wearing a blue cap with a red brim, a white shirt, and blue jean shorts, and driving a four-door gray car. Yvonne described the shooter as tall, light-skinned, and wearing a white shirt, blue or black shorts, and a white baseball cap. Yvonne also identified the shooter as Anthony Brown. Three days later, both Tamika and Yvonne picked Anthony Brown out of a photo array. At trial, Tamika again identified Anthony Brown as one of the shooters.

Tiffany Thompson, who saw the gunmen approaching, told police the shooter lived at 5408 Girard Avenue. The police promptly executed a search warrant for that address and discovered some clothing matching the descriptions Tamika and Yvonne had provided, including a white shirt, dark blue jean shorts, brown boots, and an Atlanta Braves cap. They also found a photo of Anthony Brown wearing the same clothes, his mail, and a traffic citation issued on the day of the shooting. A warrant issued for Brown's arrest, and he surrendered later that week.

B

At trial, Brown presented a misidentification defense and an alibi defense. His misidentification defense relied on the testimony of Frances Rorie's grandson, Gary Jones, and Rorie's daughter, Timmsel.

Contrary to the testimony of Tamika Thompson and Yvonne Rorie, Gary Jones testified on direct examination that the shooter was short, dark-skinned, and wearing a plaid shirt, blue shorts, black Timberland boots, and a red and blue Atlanta Braves cap. He described another man (not the shooter) as a light-skinned, bald, mustachioed man, who wore a tee-shirt, blue shorts, and Reebok sneakers. On cross-examination, the prosecution impeached Jones with his prior statement to police, which was not only contrary to his testimony on direct examination, but also similar to the descriptions given by Tamika Thompson and Yvonne Rorie shortly after the shooting. In that statement, Jones described the shooter as tall and light-skinned, wearing an Atlanta Braves cap, light blue shorts, a white shirt, and black boots.

Timmsel Rorie testified on direct examination that she initially described the shooter to police as tall, light-skinned, and wearing a red plaid shirt. She identified another man (not the shooter) as a tall, light-skinned man of 18 or 19, wearing a white shirt and long blue jeans. According to Timmsel, that man was Anthony Brown. On cross-examination, the prosecution impeached Timmsel with the fact that just days after the shooting she identified Anthony Brown as the shooter. Moreover, Timmsel eventually made an in-court identification of Anthony Brown as the shooter and testified that she did not correct her initial misstatement to the police because she wanted her boyfriend to kill Brown to avenge her mother's murder.

Brown's alibi defense relied on the testimony of Lynnette Bright, who was the college roommate of Brown's cousin, Tiyana Miller. According to Bright, she and Miller went to a TGI Friday's restaurant at 17th Street and Benjamin Franklin Parkway to buy take-out food at approximately 7:30 p.m. on the night of the shooting. Bright testified that about fifteen minutes after they arrived, Miller noticed Anthony Brown walking toward the front of the restaurant. Miller and Brown spoke for a few minutes before Brown returned to his table. Bright testified that she and Miller were seated near the front door of the restaurant, that they waited a long time to get their food, and that they left between 8:15 and 8:20 p.m. Bright stated that she never saw Brown leave.

On cross-examination, Bright admitted that she knew several of Brown's relatives. She was impeached with inconsistent statements regarding the time she arrived at the restaurant, as well as with her failure to cooperate with the District Attorney's investigation. Bright also was unable to describe what Brown was wearing at the restaurant. Finally, Bright eventually admitted that she lied to a defense investigator when she told him that she saw Brown eating with his friends when she left the restaurant and she never saw Brown seated at his table.

Brown's cousin Tiyana Miller corroborated Bright's testimony that they went to the TGI Friday's between 7:15 and 7:30 p.m. According to Miller, it already was dark when they left for the restaurant, and they waited fifteen to twenty minutes before placing their order. While they waited, Miller saw Brown emerge from the dining area to use the phone,¹ and she chatted with him. Miller testified that she and Bright waited about an hour for their food and left at approximately 8:20 p.m. She stated that when she left, Brown still was seated with Anthony Fingers, Kevin Johnson, and two women.

Miller was impeached with evidence that after the shooting she returned to the restaurant to ask if they had a video surveillance system that could pinpoint when Brown left on the night of the murder. Her testimony was also undermined because she neither contacted family members to advise them that she had seen Brown that night, nor contacted the police with her information or responded to letters from the District Attorney. Finally, like Bright, she could not describe what Brown was wearing at the restaurant.

Kevin Johnson, who allegedly accompanied Brown to the restaurant, also testified for the defense. According to Johnson, they arrived at TGI Friday's before 7:00 p.m., while it was still daylight, and left after it was dark. He testified that they were seated on the second floor, not in the bar area where Bright and Miller could have seen them.

Finally, Brown testified in his own defense. Brown told the jury that on the day of the murder, he was driving to a different TGI Friday's when he received a traffic citation, which lists the time of the stop as 6:41 p.m. Brown gave the officer an alias and an incorrect address because he often violated traffic laws and feared being arrested. According to Brown, he arrived at the first TGI Friday's with Kevin Johnson, Anthony Fingers, and three women they met that afternoon, but it was crowded, so...