Bennett v. Superintendent Graterford SCI

• Decision Date: 26 March 2018
• Docket Number: No. 16-1908,16-1908
• Citation: 886 F.3d 268
• Parties: Tony L. BENNETT, Appellant v. SUPERINTENDENT GRATERFORD SCI; Attorney General Pennsylvania
• Court: U.S. Court of Appeals — Third Circuit

886 F.3d 268

Tony L. BENNETT, Appellant

v.SUPERINTENDENT GRATERFORD SCI; Attorney General Pennsylvania

No. 16-1908

United States Court of Appeals, Third Circuit.

Argued: May 9, 2017

Filed: March 26, 2018

Richard H. Frankel, Esq., Ke Gang, Student Counsel [ARGUED], Mischa Wheat, Student Counsel [ARGUED], Appellate Litigation Clinic, Drexel University Kline School of Law, 3320 Market Street, Philadelphia, PA 19104, Counsel for Appellant

Christopher P. Lynett, Esq. [ARGUED], Simran Dhillon, Esq., Susan E. Affronti, Esq., Philadelphia County Office of District Attorney, Three South Penn Square, Philadelphia, PA 19107–3499, Counsel for Appellees

Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges.

OPINION OF THE COURT

RESTREPO, Circuit Judge.

In 1990, nineteen year old Tony Bennett was sitting in the passenger seat of a getaway car when his conspirator entered a jewelry store to commit a robbery, shooting the clerk and killing her. Bennett was convicted of first degree murder. After a capital sentencing hearing, the jury returned a sentence of life imprisonment without the possibility of parole. Two state courts later vacated Bennett's first degree murder conviction, finding that the trial court erroneously instructed the jury that it could convict Bennett of first degree murder based on the shooter's intent to kill. Bennett never got relief; instead, the Pennsylvania Supreme Court reversed. Before us is Bennett's habeas corpus petition, asserting that the trial court's erroneous jury instructions deprived him of due process of law under the United States Constitution. Applying de novo review, we agree and will grant the writ.

I. Factual and Procedural Background

A. Trial and Sentencing

The Pennsylvania Supreme Court summarized the factual history of this case as follows:

[Bennett] conspired with four individuals, Michael Mayo, Kecia Ray, Kevin Wyatt, and Paul Johnson, to rob a jewelry store in Philadelphia at gunpoint. The store was selected because a salesperson, Ms. Ju Yang Lee, had made what the conspirators believed to be an insultingly low offer for a gold chain that Mayo and Johnson earlier had sought to pawn. Appellee Bennett supplied the loaded gun, but did not enter the store, remaining in the getaway car with Wyatt. Mayo and Johnson were caught on videotape entering and robbing the store. During the robbery, Mayo shot Ms. Lee with [Bennett]'s gun, killing her.

Commonwealth v. Bennett (Bennett VI) , 618 Pa. 553, 57 A.3d 1185, 1187 (Pa. 2012).

Bennett proceeded to a jury trial on charges of murder, criminal conspiracy, possession of an instrument of crime, and robbery. The Commonwealth charged murder generally, and the trial court instructed the jury on first, second, and third degree murder, as well as voluntary manslaughter. The Commonwealth also charged conspiracy generally. The trial court instructed the jury that the objective of the conspiracy was murder, robbery, possession of an instrument of crime, and a firearms offense.

Bennett was tried jointly with two other non-shooters, Johnson and Wyatt. Johnson entered the jewelry store with the shooter. Wyatt, like Bennett, remained in the getaway car. Id . The fourth non-shooter, Ray, testified for the Commonwealth and later received a lenient sentence.¹ Mayo, the shooter, was initially on trial with Johnson and Wyatt, but during jury selection suffered "an acute psychotic episode" requiring hospitalization. App. 284. Mayo was declared incompetent after voir dire and his case severed.

Bennett was charged capitally.² Under Pennsylvania law, the Commonwealth could only obtain a death sentence if the jury convicted Bennett of first degree murder. See 18 Pa. Cons. Stat. § 1102(a)(1). Therefore, from the start of trial, a central issue was whether Bennett was guilty of this offense. See Bennett VI , 57 A.3d at 1204 n.12. First degree murder in Pennsylvania requires that each defendant have the specific intent to kill. 18 Pa. Cons. Stat. § 2502(a). An accomplice or conspirator cannot be convicted of first degree murder based on the specific intent to kill of the principal. See Commonwealth v. Huffman , 536 Pa. 196, 638 A.2d 961, 962 (Pa. 1994) (citing Commonwealth v. Bachert , 499 Pa. 398, 453 A.2d 931, 935 (Pa. 1982) ).

At Bennett's trial, the Commonwealth never argued that Bennett had the specific intent to kill. Rather, its theory was that he was guilty of first degree murder solely because he was an accomplice and conspirator of the shooter. In the Commonwealth's opening statement, the prosecutor told the jury that "lest you think I am crazy for saying [Bennett, Johnson and Wyatt] are guilty of first degree murder, when I told you that Michael Mayo fired the fatal shots ... I will urge upon you that the law of conspiracy makes all of these defendants first degree murderers." App. 312–13. In closing, the prosecutor argued that "accomplices are equally guilty with the principal. First degree murder, intent to kill. There is no doubt, there can be no doubt that [the shooter] Michael Mayo intended to kill [the victim]. ... Co-conspirators and accomplices are equally guilty with the principal." App. 591–92.

This argument—that an accomplice or conspirator is "equally guilty" of first degree murder—was incorrect as a matter of state law. Nevertheless, the trial court echoed it in its jury instructions. Bennett's petition turns on these jury instructions, and so we describe them in detail.

First, the trial court charged the jury on criminal conspiracy, in relevant part, as follows:

Where two or more join in the commission of an unjustified assault which results fatally, all are guilty regardless of which one inflicts the mortal wounds. When two or more combine to commit a felony or to make an assault, and in carrying out the common purpose another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for the homicide as the one who directly causes it.

...

Such responsibility ... extend[s] even to a homicide which is the consequence of the natural and probable execution of the conspiracy even though such homicide is not specifically contemplated by the parties .

App. 602–03 (emphases added).

In response to a jury question the trial court later repeated this instruction.

The trial court also instructed the jury on accomplice liability, in relevant part, as follows: "[O]ne may be legally accountable for conduct of another not only if he is a coconspirator, but also if he is an accomplice who aids and abets the commission of a crime." App. 603. "The degree of concert or collusion between parties to an illegal transaction means the act of one is the act of all ." App. 604 (emphasis added).

The trial court further instructed the jury on murder, beginning with this introduction:

Each defendant comes before you charged with murder and voluntary manslaughter.

Now on this bill, you may find each defendant guilty of murder in the first degree, guilty of murder in the second degree, or guilty of murder in the third degree, or guilty of voluntary manslaughter, or not guilty.

App. 605.

Five paragraphs later, the trial court instructed the jury on first degree murder, which it defined as follows:

A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. As used in this statute, intentional killing means among other things a willful, deliberate and premeditated killing.

A killing is willful and deliberate if the defendant consciously decided to kill the victim and it is premeditated if the defendant possessed a fully-formed intent to kill at the time when he acted and though there need not have been any appreciable amount of time between the time when the defendant first conceived the idea of killing and the time when he acted.

The design to kill can be formulated in a fraction of a second.

In determining whether or not the defendants committed said kind of intentional killing required for first degree murder, you should consider the testimony of expert witnesses, as well as all other evidence which may shed light on what was going on in the defendant's mind at the time of the alleged killing.

If a defendant intentionally uses a deadly weapon on a vital part of the body, you may infer from this that the killing was intentional.

Specific intent as well as malice may be inferred from the use of a deadly weapon on a vital part of the body.

App. 606–07.³

The jury convicted Bennett of first degree murder and related charges.⁴ A penalty hearing followed. The Commonwealth sought the death penalty, despite stipulating that Bennett was nineteen years old at the time of the crime and had no significant criminal history. After additional deliberation, the jury returned a sentence of life imprisonment. On June 1, 1993, the trial court formally sentenced Bennett to life imprisonment without the possibility of parole. Bennett VI , 57 A.3d at 1189.⁵

B. Post–Conviction Proceedings

Bennett did not file a direct appeal. In 1995, he filed a pro se petition under the Pennsylvania Post–Conviction Relief Act (PCRA), in which he asserted, inter alia , two claims relevant to this appeal. First, Bennett asserted that the trial court violated his state and federal due process rights by instructing the jury that he could be convicted of first degree murder without the specific intent to kill. Second, Bennett asserted that trial counsel was ineffective for failing to object to the trial court's erroneous jury instructions.⁶

In 1999, the trial court dismissed Bennett's PCRA petition. Bennett filed an appeal. In 2000, the Superior Court dismissed the PCRA appeal because post-conviction counsel failed to file a brief. Bennett subsequently filed a second PCRA petition seeking to reinstate his right to appeal his first PCRA petition.

Meanwhile, as Bennett's PCRA was winding through the courts, his conspirator, Wyatt, reached the Superior Court on post-conviction proceedings. Wyatt was the other man sitting with Bennett in the...