881 F.2d 44 (3rd Cir. 1989), 88-3333, Lesko v. Owens

Docket Nº:88-3333.
Citation:881 F.2d 44
Party Name:John Charles LESKO v. David S. OWENS, Jr., Commissioner of the Pennsylvania Department of Corrections; Charles Zimmerman, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview; Morey M. Meyers, General Counsel of Pennsylvania; and Leroy Zimmerman,
Case Date:July 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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881 F.2d 44 (3rd Cir. 1989)

John Charles LESKO


David S. OWENS, Jr., Commissioner of the Pennsylvania

Department of Corrections; Charles Zimmerman,

Superintendent of the State Correctional Institution at

Graterford; Joseph P. Mazurkiewicz, Superintendent of the

State Correctional Institution at Rockview; Morey M.

Meyers, General Counsel of Pennsylvania; and Leroy

Zimmerman, Attorney General of the Commonwealth of

Pennsylvania, Appellants.

No. 88-3333.

United States Court of Appeals, Third Circuit

July 27, 1989

Argued Oct. 17, 1988.

Rehearing and Rehearing In Banc Denied Sept. 1, 1989.

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[Copyrighted Material Omitted]

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Robert A. Graci (Argued), Office of Atty. Gen., Harrisburg, Pa., John W. Peck, Office of the Dist. Atty., Greensburg, Pa., for appellants.

Rabe F. Marsh, III (Argued), Welsh White, Costello and Berk, G eensburg, Pa., for appellee.

Before STAPLETON, SCIRICA and COWEN, Circuit Judges.


SCIRICA, Circuit Judge.

The Commonwealth of Pennsylvania appeals the district court's grant of a writ of habeas corpus. The question presented is whether the introduction of "other crimes" testimony deprived petitioner John Lesko of his Fourteenth Amendment right to a fair trial. We will reverse the judgment of the district court and remand for determination of other claims raised by petitioner.


In the early hours of January 3, 1980, John Lesko, Michael Travaglia and Richard Rutherford were cruising the outskirts of the city of Pittsburgh in a stolen sports car. The trio drove past police officer Leonard Miller, sitting in his patrol car parked at the side of the road outside the Stop-and-Go convenience store. Travaglia, the driver of the car, stated that he "wanted to have some fun with this cop." Travaglia raced past the officer's car beeping his horn, but no pursuit followed. Travaglia turned the car around, again sped past the patrol car, and again failed to elicit a response. The third time Travaglia sped past, Officer Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to "lay down in the back, because it might turn into a shooting gallery."

A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal.

The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia's instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm.

After Travaglia took the driver's seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Lesko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls's belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Lesko dragged Nicholls down to the lake and rolled him into the water, where he disappeared.

The three men drove to Travaglia's father's house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Lesko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father's house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the

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trunk of the car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford "had six shots to get out." Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller.

After the Miller shooting, Lesko and Travaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, "I shot a cop." Lesko added, "I wanted to." Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found Montgomery with that same gun later that evening, Montgomery told the police how he had gotten the gun, and that it had been used to shoot a policeman. Lesko and Travaglia were arrested that night. Before surrendering, Lesko pointed a gun at the police.

After receiving Miranda warnings, Lesko and Travaglia each gave statements admitting involvement in the killing of Officer Miller. Lesko told the police that he and Travaglia had instigated the car chase with Officer Miller, "So he'd be chasing us ... and the car was fast and that--we'd lose him and could go and knock off the Stop-N-Go." In contrast, Travaglia told the police that he was "playing around with [Officer Miller], trying to aggravate him, and I figured he couldn't chase me across county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn't stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and the shot discharged." Lesko and Travaglia also admitted killing William Nicholls. Additionally, they both implicated themselves in two other shooting murders--that of Peter Levato and Marlene Sue Newcomer--committed within the last three days.

In January, 1981, Travaglia and Lesko were tried jointly for the Miller homicide. There had been two changes in venue and a change in venire. Although the trial was held in Westmoreland County, Western Pennsylvania, the jury was selected in Berks County, located in the eastern part of the state. By that time, Travaglia and Lesko had already pled guilty to second degree murder in Indiana County for the Nicholls homicide. For the Miller shooting, both men were charged with first degree murder, Lesko as an accomplice to the principal Travaglia, and for criminal conspiracy to commit murder. They were both convicted of first degree murder and sentenced to death.

At trial, Lesko and Travaglia's sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill. Lesko's counsel argued principally that his client was at most guilty of felony-murder. 1 He argued that in instigating the police chase, defendants planned first to divert the officer from the Stop-and-Go store, and later return to rob the establishment. Therefore, Lesko's lawyer urged, the killing was not pre-meditated, but was the unintended result of a botched robbery attempt. Travaglia's lawyer, meanwhile, emphasized that pulling the trigger had been accidental, a result of the hammer of the gun having slipped as Travaglia aimed at the officer. 2 Neither defendant testified at the guilt phase of the trial. However, statements they made in their taped confessions to the police, which the Commonwealth introduced into evidence, were relied on by defense counsel in

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support of their respective defense theories.

Rutherford was the Commonwealth's principal witness at trial. Rutherford testified about the Miller homicide 3 and the abduction and killing of Nicholls. Both Lesko and Travaglia objected to Rutherford's testimony of the Nicholls murder. Initially, both defendants moved to exclude all reference to the Nicholls murder, contending that its sole purpose was to demonstrate defendants' bad character and propensity to commit similar crimes.

The trial judge permitted Rutherford's testimony to prove motive and state of mind. He stated that he was admitting the evidence because it was probative of the Commonwealth's theory that the officer was not killed as a result of an accident, but was killed because he had approached perpetrators of theft and murder in possession of incriminating evidence, namely, Nicholls' stolen car and wallet, and the gun used to shoot Nicholls in the arm when he was first abducted. Both defendants thereafter moved to limit Rutherford's testimony on the Nicholls' murder to establishing only that the car was stolen, Nicholls was murdered, and they possessed items linking them to these prior crimes when Officer Miller approached the car. The trial judge denied the motion, ruling that the details of the Nicholls murder were relevant to petitioner's state of mind. The court explained that the severity of the Nicholls murder, and its temporal proximity, made it more likely than not that the defendants would attempt to avoid apprehension at any cost, going so far as to murder a police officer.

After determining that the evidence was admissible to prove motive or intent, the trial judge balanced the testimony's probative value against its potential for prejudice, as Pennsylvania law requires. He concluded that the former outweighed the latter, as the...

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