Larkins v. Brittain

Decision Date27 October 2022
Docket NumberCivil Action 2:19-cv-721
CourtU.S. District Court — Western District of Pennsylvania



Civil Action No. 2:19-cv-721

United States District Court, W.D. Pennsylvania

October 27, 2022

Chief United States Magistrate Judge


Cynthia Reed Eddy United States Magistrate Judge

Petitioner, Julian Edward Larkins (“Larkins”), a prisoner at the State Correctional Institution in Frackville, filed a pro se Petition and counseled Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), challenging the Judgment of Sentence imposed on him at Criminal Case Nos. CP-02-CR-0015679-2009 (docket number “156792009”) and CP-02-CR-0017394-2009 (docket number “17394-2009”), by the Court of Common Pleas of Allegheny County, on April 10, 2012. (ECF Nos. 7, 8, 10). For the reasons that follow, the Petition will be dismissed with prejudice. Furthermore, because jurists of reason would not find this disposition of the Petition debatable, a certificate of appealability will also be denied.


Factual and Procedural History

This case arises from the shooting death of Stefan Whitfield (“Whitfield”) and the shooting of Herman Moore (“Moore”) by Larkins on in the early morning hours of October 15, 2009, near the Mac-Can-Do Bar in the Homewood section of the City of Pittsburgh. Specifically, Larkins was charged at docket number 17394-2009 with criminal attempt to commit homicide and aggravated assault for shooting and injuring Moore, and at docket number 15679-2009 with criminal homicide and discharging a firearm into an occupied structure for the death of Whitfield. Larkins was tried by a jury from January 10 to January 17, 2012, and the following relevant facts were established. See Trial Transcripts Volumes 1 and 2 (“TT1” and “TT2”).

By way of background, victims Moore and Whitfield were friends who frequented the Mac-Can-Do Bar, located near the intersection of Brushton Avenue and Kelly Street in Homewood, Allegheny County, Pennsylvania. Moore arrived alone at the bar between 10:00 p.m. and 11:00 p.m. on October 14, 2009. Whitfield was already at the bar upon Moore's arrival. Moore and Whitfield eventually were “smoking a little weed outside” and heard gunshots. TT1 at 214. After hearing the third shot, both men ran. Moore ran “to the back of the bar.” Id. at 216. Then, when Moore heard sirens, he went to the front of the bar, saw Whitfield laying on the ground[2] and kept walking. Moore had been shot in the arm while running.

Officer John Shamlin was dispatched to the area near the Mac-Can-Do bar, and he was the first police officer to arrive. He saw “a male laying down on the sidewalk.” TT2 at 51. The


male, later identified as Whitfield, was laying “face-up;” his “face was covered in blood;” and he “appeared to be deceased.” Id. at 52. Whitfield was later pronounced dead.

Meanwhile, Donald Wilson, a former City of Pittsburgh Police Officer who owned a security firm hired to patrol a housing development in the Homewood area, heard gunshots. Specifically, he and his partner, Derek Vasser, were in separate vehicles headed from the housing area they were patrolling to a nearby Sunoco gas station. Wilson testified that after hearing several gunshots and seeing gun flashes, he backed up his vehicle and saw “a black male that had on black pants, [and] a gray hooded top.”[3] TT1 at 267. According to Wilson, Larkins “started running across this open field to an alleyway called Formosa Way.” Id. at 267-68. Wilson also saw “another gentleman that was coming in the opposite direction” who “ran up that alleyway but he turned and cut off.” Id. at 268. Wilson then tried to maneuver his vehicle to chase Larkins, and eventually came upon Vasser, who “had his weapon on [Larkins]” while Larkins was on the ground.[4] Id. at 270. Wilson exited his car and approached the individual, who told Wilson that “he threw something under the car.” Id. at 271. Using his flashlight, Wilson looked under the car, and saw what “appeared to be a black Glock pistol laying on the ground.” Id. Wilson and Vasser then handcuffed Larkins.

According to Wilson, Larkins “started struggling as if he wanted to get up to try to run,” and Larkins told Wilson that “his friend had just been shot.” Id. at 278. Vasser called 911. City of Pittsburgh Police Officer Daniel Zeltner was the first to arrive at this scene. At that time,


Larkins was “handcuffed on his stomach” and lying facedown on the ground. TT2 at 75. Officer Zeltner testified that Larkins was wearing a “gray hooded sweatshirt and dark pants.” Id. Larkins was also wearing a “multi-colored hat with some braids.” Id. at 75-76. Officer Zeltner recognized Wilson and Vasser as “security agents that work in a housing complex in Homewood.” Id. at 76. After Officer Zeltner arrived, Vasser and Wilson stood Larkins up, and they searched him. They recognized a cell phone and a hat that was “inside of his hoody jacket.” Id. at 79. Larkins was then placed in Officer Zeltner's patrol vehicle. Meanwhile, Wilson and Vasser told Officer Zeltner about “a gun under the vehicle, and the gun was recovered.” Id. at 82.

Detective Charles Hanlon “took [Larkins] out of the car and performed a gunshot residue test on his hands.” TT2 at 110. Hanlon transported Larkins back to the homicide office, packaged Larkins's sweatshirt as evidence, and processed the gunshot residue test.[5] Hanlon also collected the “Glock 9 mm located underneath the white Buick SUV and a [] multi-colored knit cap with long hair braids [] attached.”[6] Id. at 115.

Based on the foregoing incident, Larkins was charged at the foregoing docket numbers. Prior to the jury trial, the Commonwealth filed a motion in limine seeking to preclude “evidence related to the fact that [] Derek Vasser engaged in misconduct while acting in his capacity as a deputy constable and/or evidence that Mr. Vasser's appointment as a deputy constable was revoked due to that misconduct.” Motion in Limine (ECF No. 17-1) at 41. Specifically, the


Commonwealth contended that Larkins should be precluded from utilizing this evidence as impeachment of Vasser pursuant to Pennsylvania Rules of Evidence 403and 608. See Hearing Transcript, 3/8/2011, at 4-5.

On March 17, 2011, the trial court entered an order barring Larkins from introducing “evidence in the trial [] related to the fact that Judge Manning found that Derek Vasser engaged in misconduct while acting in his capacity as a deputy constable and/or evidence that Mr. Vasser's appointment as a deputy constable was revoked due to that misconduct and/or evidence that Judge Jeffrey A. Manning found the testimony of Derek Vasser to be incredible.” Order (ECF No. 17-1) at 47.

Larkins proceeded to a jury trial at both docket numbers from January 10-17, 2012, before The Honorable Kathleen A. Durkin, where the aforementioned evidence and testimony were presented. In addition to the aforementioned evidence and testimony from Moore, Shamlin, Wilson, Vasser, Zeltner, and Hanlon, the jury heard evidence and testimony from numerous other witnesses, including Detective Robert Renk. It was the Commonwealth's theory of the case that in early 2009 Larkins and Moore were involved in an altercation between their respective groups at another bar, which provided motive for this shooting.

Prior to Renk's testimony, which was going to include transcripts from 19 telephone calls made to and from Larkins in both May and August 2009, counsel for Larkins objected. TT2 at 5. Larkins contended that the phone calls were “too remote” because they were made months prior to the October shooting. In addition, Larkins argued that because Moore testified at trial that he does not go by the name “Fat Herm,” the calls, which referenced Fat Herm, were irrelevant. Id. at 5-6. According to the Commonwealth, these 19 calls were relevant because Larkins was


discussing an “incident that happened at the Trappers Club where people were fighting.” Id. at 7. Specifically, “Fat Herm was on the other side of that fight.” Id. The Commonwealth contended that despite Moore's testimony that he was not Fat Herm, these calls established motive. Id. Larkins responded that this testimony was essentially the Commonwealth's way of tying the shooting to activity related to the Homewood Crips.[7] Id. at 9. The trial court permitted the introduction of these 19 calls, and the explanatory testimony of Renk, but ruled there could not be a reference to the federal investigation. The trial court anticipated objections during Renk's testimony.

At trial, Renk testified that during 2009, he intercepted “a number of different telephone calls involving [] Larkins, that were either made by him or received by him.” TT2 at 20. He testified that these interceptions were conducted pursuant to court orders on both May 6, 2009, and August 25, 2009, and there were 19 calls “that may relate to this matter.” Id. at 21. The Commonwealth played each of the calls at trial. Id. at 27-43. Relevant at this juncture is the following.

Call 1 occurred on May 6, 2009, and was an incoming call to Larkins from Asa Thompkins lasting nearly six minutes. Id. at 26. The two discussed legal troubles, guns, and gunshot wounds. The relevant portion of the call occurred toward the end, when the two discussed a fight where Larkins said, “Fat Herm and them jumped me” at the Trappers Club. Transcript of Call 1 (ECF No. 17-1) at 364.


Calls 3 through 19 all occurred in the late evening of August 23, 2009. Larkins spoke to “Booter,” Thompkins, Dorian Peebles, Corey Clark, “Tiki,” and Mariah Bey.[8] The inference from these calls was supposed to be that Larkins had previously tried to track down and shoot Moore near the Mac-Can-Do Bar. See Transcripts of Calls 3-19 (ECF No. 17-1) at 366-382. For example, Call 15 was a three-minute call from Larkins to...

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