Kennedy v. Smith

• Decision Date: 21 July 2022
• Docket Number: Civil Action 22-238
• Parties: DONTAY KENNEDY v. BARRY SMITH, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

DONTAY KENNEDY
v.
BARRY SMITH, et al.

Civil Action No. 22-238

United States District Court, E.D. Pennsylvania

July 21, 2022

REPORT AND RECOMMENDATION

SCOTT W. REID, UNITED STATES MAGISTRATE JUDGE

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254 by Dontay Kennedy, who is currently incarcerated at SCI Houtzdale, in Houtzdale, Pennsylvania.

For the reasons that follow, I recommend that the petition be denied in part and dismissed in part, with prejudice.

I. Factual and Procedural Background

Following a jury trial in the Court of Common Pleas for Delaware County, Kennedy was convicted on September 25, 2019, of carrying a firearm without a license, possession of a firearm by a person prohibited, fleeing police, recklessly endangering another person, and accident involving injury. Petition at ¶¶ 2(a) and 5. On October 25, 2019, he was sentenced to 6 - to 15 years' incarceration. Id. at ¶¶2(b), 3.

As described by the Pennsylvania Superior Court, the evidence underlying Kennedy's conviction was as follows:

At trial, the Commonwealth first called to the stand Tinicum Township Police Officer Sean Ryan. Officer Ryan testified that on November 29, 2018, he was on routine patrol in a marked police vehicle from 6:00 p.m. to 6:00 a.m. At approximately 1:00 a.m., he attempted to stop a vehicle later determined to be driven by Appellant, for going 10 m.p.h. above the posted speed limit. When the officer activated his lights and sirens, Appellant “took off at a very high rate of speed.” Appellant's vehicle ultimately crashed into another car, at which point Appellant exited his vehicle, “made eye contact” with the

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officer, and then “began to run.” As Appellant fled, Officer Ryan observed that “his right hand was near his right pocket[,]” although the officer did not see a firearm in Appellant's hand at any point, and he never saw Appellant make a motion or gesture like he was throwing something. Appellant ran into a marshy area with very thick mud and brush, at which point the officer lost sight of him. Officer Ryan called for backup as he returned to the site of the accident to check on the driver of the car Appellant hit

Within minutes, approximately 10 to 15 backup officers arrived and set up a perimeter around the marshy area into which Appellant had run. A canine officer and dog also quickly arrived and, within “[o]ne to two minutes[,]” they located Appellant in the marsh Officer Ryan testified that Appellant was immediately “walked to ]the officer's] patrol vehicle,” and “was placed in the rear” of the car. The windows of the vehicle were rolled up.

Officer Ryan was then notified that a firearm had been found in the “travel lanes” of the highway beside the marsh, approximately 10 to 15 feet away from where Appellant had been found and apprehended. The gun had “some gashes” on the “butt end” as if it had been “dropped at a significant pace or from a significant height ..” Officer Ryan testified that he “could tell that ][the gun] was obviously recently dropped” because there was “a large gash in it as if it [had been] tossed.” “There w[ere] also water spots on the gun itself, and ... there was water splatter around the firearm on the ground.” Notably, the weather that night was dry.

Officer Ryan also testified that he observed that “there was no magazine in the firearm.” The officer was asked if he “ever [told Appellant] the firearm was found without a magazine[,]” to which he answered, “No, I did not.” The Commonwealth's witness at trial, Tinicum Township Police Detective James Simpkins, testified that he encountered Appellant in the holding cell area of the police station later in the morning on the day Appellant was arrested. According to the detective, Appellant was “hollering . towards [the detective] like he wanted to talk[,]” at which point Appellant said to him, “why would I have a gun that didn't have a magazine in it?” Detective Simpkins testified that he “spoke to Officer Ryan and any other officers that were there [at the station] and asked them if anybody had ever . said anything to [Appellant] . about the magazine not being in the firearm.” The detective stated that “they all told me no, that [it] was never said to [Appellant] or . ever said in his presence.” Detective Simpkins memorialized Appellant's remark in his incident report.

Commonwealth v. Kennedy, No. 3303 EDA 2019 (Pa. Super. Apr. 12, 2021) at 5-7. (Citations to the trial transcript omitted).

Kennedy appealed his conviction to the Pennsylvania Superior Court. In his appeal, he argued that (1) the trial court erred by denying his motion for judgment of acquittal on the firearm charges where the evidence was insufficient to show that he possessed the firearm

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recovered by the police; and (2) the trial court abused its discretion in denying his motion for a new trial on the basis that the weight of the evidence did not permit a conclusion that he possessed the firearm. Id. at 2. The Superior Court denied relief in an opinion dated April 12, 2021. Id. The Pennsylvania Supreme Court denied Kennedy's petition for allowance on October 14, 2021. Petition at ¶9(g).

Kennedy filed the present petition for habeas corpus relief on January 14, 2022. In it, he raises the same issues he raised before the Commonwealth courts:

GROUND ONE: Insufficiency of the evidence. The trial court erred when it denied Petitioner's motion for Judgment of Acquittal on the firearm charges because the Commonwealth presented insufficient evidence that petitioner constructively possessed a firearm discovered on a busy public road in a high crime area;

GROUND TWO: Abuse of discretion. The verdict was against the weight of the evidence where the evidence weighs in favor of concluding that petitioner fled the police to avoid arrest for marijuana possession [rather than for possession of a firearm] and that he could not have been

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