Frey v. Fulcomer, 91-1344

• Citation: 974 F.2d 348
• Decision Date: 15 September 1992
• Docket Number: No. 91-1344,91-1344
• Parties: Roderick Herman FREY, Appellee, v. Thomas A. FULCOMER, Warden, State Correctional Institution at Huntingdon, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 348

974 F.2d 348

Roderick Herman FREY, Appellee, v. Thomas A. FULCOMER, Warden, State Correctional Institution

at Huntingdon, Appellant.

No. 91-1344.

United States Court of Appeals,

Third Circuit.

Argued Nov. 21, 1991.

Decided Aug. 20, 1992.

Rehearing Denied Sept. 15, 1992.

Henry S. Kenderdine, Jr., John A. Kenneff (argued), Office of Dist. Atty., Lancaster County, Pa., Lancaster, Pa., for appellant.

Penn B. Glazier, Lancaster, Pa., Louis M. Natali, Jr. (argued), Temple University Law School, Philadelphia, Pa., for appellee.

Before: BECKER, GREENBERG, and COWEN, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Thomas Fulcomer, the warden of a Pennsylvania state prison, appeals from an order of the district court for the Eastern District of Pennsylvania granting a writ of habeas corpus to a death row inmate, appellee Roderick Frey. A jury in Pennsylvania state court had convicted and sentenced Frey to death for the contract murder of his estranged wife. Frey unsuccessfully appealed his conviction and sentence and was rebuffed in two subsequent attempts to obtain post-conviction relief in the Pennsylvania courts. He then petitioned for habeas corpus relief in federal district court under 28 U.S.C. § 2254 (1988). The district court ruled that none of Frey's challenges to his conviction were meritorious, but held that he had received ineffective assistance of counsel at the sentencing stage and that the trial court had improperly admitted the testimony of witness Sharon Bowers at that stage. The district court therefore vacated Frey's death sentence, without prejudice to Pennsylvania's right to sentence him to life imprisonment or to conduct a new sentencing hearing.

We conclude that Frey was not denied due process by the admission of the Bowers testimony. As to the ineffective assistance claim, the performance of Frey's counsel at the death penalty phase was, as Pennsylvania concedes, deficient in several respects. Among other things, Frey's attorney, who was handling the sentencing stage of a capital case for the first time, read from and argued based upon a Pennsylvania death penalty statute that had been held unconstitutional three years earlier, largely because it had overly restricted a defendant's ability to argue mitigating circumstances. The first prong of the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was thus satisfied, and hence we must decide whether Frey has shown sufficient prejudice to meet the second prong of Strickland. That is, the case turns on the existence of a "reasonable probability" that Frey's jury would have given him a life sentence if he had had effective assistance of counsel.

Undoubtedly, Frey's counsel could have and should have made a stronger argument on mitigating factors by using the proper statute as his frame of reference. In particular, he should have argued that statutory mitigating circumstances not recognized in the superseded statute, including Frey's lack of a prior criminal record and his "substantial domination" by a coconspirator, helped outweigh the aggravating circumstance of contract murder. Frey's lawyer only indirectly raised Frey's lack of a criminal record, and although he argued the facts supporting "substantial domination" quite forcefully, he did so under the rubric of "duress," a similar but presumably slightly more difficult to prove mitigating factor.

On the other hand, the prosecutor openly conceded that Frey's lack of a criminal record was a mitigating factor. Moreover defense counsel, despite laboring under the wrong statute, still managed to introduce all the evidence supporting findings of "substantial domination" and other "miscellaneous" statutory mitigating factors, although he did not neatly dovetail the arguments into the revised statute. Furthermore, the trial judge properly instructed the jury as to which aggravating and mitigating factors to consider and how to balance them, and the evidence suggests that the jury understood the law correctly.

Under these circumstances, we conclude that although it is theoretically possible that, if Frey had had proper assistance of counsel, the jury would have sentenced him to life imprisonment, that outcome was not "reasonably probable." We will therefore vacate the order of the district court granting habeas corpus, and will remand the case for that court to consider those of Frey's claims that it has yet to pass upon. ¹

I. FACTS AND PROCEDURAL HISTORY

A. The Crime

Roderick and Barbara Frey were married in 1956 and had three sons, one of whom died in an automobile accident in late 1977. By 1979, the Freys' relationship had become strained. Mr. Frey openly spoke of his desire for a divorce but expressed concern that the settlement would be a severe financial drain on him.

As part of his duties as a truck driver for the Turkey Hill dairy, Mr. Frey made deliveries to a Turkey Hill convenience store managed by Charles Zehring, whom the Pennsylvania Supreme Court has described as "a paranoid schizophrenic who collected exotic weaponry and anarchist/survivalist literature," Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 702 ("Frey I" ), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). Some time in mid-1979, Mr. Frey told Zehring of his woes, and Zehring agreed to serve as a private detective to surveil Mrs. Frey. Evidently, however, Mrs. Frey, unlike Mr. Frey, was not indulging in extramarital affairs, and Zehring therefore suggested that, instead of proceeding with a financially unattractive divorce, Mr. Frey might have Mrs. Frey killed in a manner that made her death appear accidental.

Although the Freys subsequently attempted to reconcile, in October 1979 Mrs. Frey sued for divorce, and Mr. Frey moved out of their home. At about that time, Mr. Frey and Zehring agreed that Mr. Frey would pay Zehring $5000 to murder Mrs. Frey, $3000 in advance and the remainder when the deed was done. As the district court wryly put it, "[i]n a display of sensitivity which no doubt later contributed to the verdict and sentence, [Mr. Frey] financed the transaction by borrowing the money from his wife, against their future property settlement."

Although Zehring arranged most of the details of the murder, Mr. Frey was crucially involved in at least some of the planning. ² To be certain where Mrs. Frey would be at the time of the attempted murder, Mr. Frey asked Mrs. Frey to meet him very early in the morning of November 8, 1979 at the Turkey Hill convenience store where she worked, so that she could deliver some luncheon meat that she was to slice for him. Mr. Frey advised Zehring of Mrs. Frey's probable route and the time of her journey to the store. Mr. Frey then spent part of the evening before the planned murder engaging in intimate relations with his girlfriend (also a Turkey Hill employee), and later met with Zehring to ensure that arrangements were set for the murder.

To assist in the murder, Zehring recruited a young ex-Coast Guardsman named Richard Heberlig in exchange for $500. Zehring apparently misled Heberlig to believe that the two would merely beat up the victim in order to collect a debt. By the time that the two actually set out at approximately 4:00 a.m. on the morning of November 8, 1979, however, Heberlig was aware that murder was planned. Shortly thereafter, Zehring and Heberlig, posing as police officers, encountered Mrs. Frey's car on the highway near her home, pulled her over to the side of the road, and approached her. The plan had been to beat Mrs. Frey into unconsciousness and then to stage an automobile accident. When Mrs. Frey remained conscious despite severe beating, however, Heberlig panicked and shot her in the chest. The two men moved her and her car to a cornfield some distance away and attempted unsuccessfully to set fire to the car. Mrs. Frey was later discovered dead from massive hemorrhaging.

After the crime, Zehring met with Mr. Frey and received the final payment for the contract killing. When Mrs. Frey failed to appear for work, the police began inquiries. Mr. Frey denied involvement, but the police were suspicious based on an examination of Mrs. Frey's bank records, which revealed a substantial payment to him shortly before the murder. Mr. Frey at first attempted to explain that he had gambled away the money (which he no longer possessed), but on December 6, 1979, he gave a detailed confession, implicating Zehring, who in turn fingered Heberlig. All were arrested and charged with murder and conspiracy.

B. Frey's Trial and Sentencing Hearing

Notwithstanding his confession, Frey elected to stand trial in the Court of Common Pleas of Lancaster County, which lasted several days. Because the guilt phase is not at issue here, we summarize only the testimony that remained especially relevant at the sentencing phase.

The prosecution's case was extremely strong. It relied primarily on Frey's voluntary confession to the police. It corroborated this with extensive evidence of Zehring's perpetration of the crime (Heberlig was barely mentioned and was referred to as "Mr. X"), circumstantial evidence (including bank and phone records) that Frey had paid Zehring to commit it, and evidence of Frey's motive.

The defense first called several inmates from the Lancaster County Prison, who testified that, while in prison, Zehring had boasted that he had set up the murder scheme in order to extort money from Frey, and that he intended to kill Frey once he had milked Frey for all the money that he could obtain, including money that came to Frey upon his wife's death. Those witnesses also testified that Zehring appeared crazed.

The defense also called a psychologist, Dr. Bruce Wittmaier, who testified in great detail. Wittmaier had interviewed Frey in prison and had given him various psychological tests. Wittmaier testified on direct examination that Frey has a 91 I.Q., which is at the low end of the...