925 F.2d 1527 (3rd Cir. 1991), 90-3295, Lesko v. Lehman

Docket Nº:90-3295.
Citation:925 F.2d 1527
Party Name:John Charles LESKO, Appellant, v. Joseph LEHMAN, 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; James J. Haggerty, General Counsel of Pennsylvania; and Ernest D
Case Date:February 11, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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925 F.2d 1527 (3rd Cir. 1991)

John Charles LESKO, Appellant,


Joseph LEHMAN, 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; James J. Haggerty, General Counsel

of Pennsylvania; and Ernest D. Preate, Jr., Attorney

General of the Commonwealth of Pennsylvania, Appellees.

No. 90-3295.

United States Court of Appeals, Third Circuit

February 11, 1991

Argued Oct. 10, 1990.

Rehearing and Rehearing In Banc Denied March 11, 1991.

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Welsh S. White (argued), Pittsburgh, Pa., Rabe F. Marsh, III, Greensburg, Pa., for appellant.

Robert A. Graci (argued), Chief Deputy Atty. Gen., Appeals & Legal Services Section, Office of Atty. Gen. of Pennsylvania, Harrisburg, Pa., John W. Peck, Asst. Dist. Atty., Sp. Deputy Atty. Gen., Office of Dist. Atty., Greensburg, Pa., for appellees.

Before HIGGINBOTHAM, MANSMANN and COWEN, Circuit Judges.


A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Appellant John Charles Lesko was convicted and sentenced to death by the Westmoreland County Court of Common Pleas for the murder of Leonard Miller, an officer of the Apollo, Pennsylvania police department. This is the second appeal involving Lesko's petition for a writ of habeas corpus. On July 27, 1989, we reversed the district court's issuance of the writ, holding that Lesko was not deprived of a fair trial by the introduction at trial of evidence of his role in the prior murder of William Nicholls. We remanded for consideration of Lesko's other habeas claims. Lesko v. Owens, 881 F.2d 44 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). On remand, the district court dismissed Lesko's habeas petition after considering and rejecting those other claims.

We now hold that the district court erred in failing to hold an evidentiary hearing on Lesko's claim that the introduction of evidence of his guilty plea to the Nicholls murder at the penalty phase of his trial violated his due process rights. We also hold that the jury's sentencing determination was tainted by improper prosecutorial comments during the penalty phase. Accordingly,

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we will reverse and remand to the district court for the issuance of a conditional writ of habeas corpus insofar as Lesko's death sentence is concerned. We will affirm the dismissal of the petition insofar as Lesko challenges the jury's guilty verdict, as we find no errors of constitutional significance in the determination of Lesko's guilt.


In our prior opinion, we summarized the facts underlying Lesko's conviction and death sentence.

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 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.

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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 tSU21 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.

Lesko, 881 F.2d at 46-47.

After their capture, Lesko and Travaglia faced murder charges in the Court of Common Pleas of Indiana County for the Nicholls homicide and in the Court of Common Pleas of Westmoreland County for the Miller homicide. Lesko was represented at all relevant periods in the Indiana County proceedings by John Armstrong. He was represented throughout the Westmoreland County proceedings by his present counsel.

A. Indiana County Guilty Plea

On May 19, 1980, Lesko pled guilty in Indiana County to second degree murder. No written record of a plea agreement exists, but Armstrong and the Indiana County prosecutor stated at the plea hearing that Lesko's guilty plea was made with the understanding that the other charges related to the Nicholls murder would be dismissed and that sentencing on the murder charge would be delayed until "late June." Record of Guilty Plea Proceedings (May 19, 1980) at 32. Although the parties now disagree about the purposes underlying the agreement to defer sentencing, it is undisputed that, as a minimum, Armstrong and the prosecutor intended that sentencing be delayed until the conclusion of Lesko's trial in Westmoreland County. 1 On December 3, 1980, before a sentence had been imposed, Armstrong filed a motion to withdraw Lesko's Indiana County guilty plea, stating that his client wished to stand trial for the charges related to the Nicholls homicide.

B. Westmoreland County Proceedings

In January 1981, Lesko and Travaglia were tried jointly in Westmoreland County for the Miller homicide. We have previously summarized the guilt phase of this trial.

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. 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,

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emphasized that pulling the trigger had been accidental, a result of...

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