Perry v. Overmyer

• Decision Date: 04 February 2019
• Docket Number: Civil No. 3:16-cv-1667
• Parties: BRYAN PERRY, Petitioner v. MICHAEL OVERMYER, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

BRYAN PERRY, Petitioner
v.
MICHAEL OVERMYER, et al., Respondents

Civil No. 3:16-cv-1667

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 4, 2019

(Judge Mariani)

MEMORANDUM

Petitioner Bryan Perry ("Perry") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of Dauphin County, Pennsylvania. (Docs. 1, 11). For the reasons discussed below, the petition will be granted in part and denied in part.

I. Factual Background

The factual background of this case has been summarized by the state court as follows:

On the night of April 5, 2011, Priest Hamilton (hereinafter "Mr. Hamilton") was with Derrick Mitterlehner (hereinafter "Mr. Mitterlehner") at Mr. Hamilton's mother's house. (N.T. 15, 33, 53-54). Thereafter, Mr. Hamilton drove Mr. Mitterlehner to his house on Kensington Street. (N.T. 15). Mr. Hamilton stopped the vehicle in the middle of the street to talk with Mr. Mitterlehner. (NT 16, 34-35, 54). Then, Mr. Mitterleh[n]er exited the passenger front side of the vehicle and walked around to the backside of the vehicle. (N.T, 16, 38, 54, 66).

Roughly around the moment Mr. Mitterlehner was exiting the vehicle, [Perry] appeared from the side of a house on the street nearest the passenger side

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of the vehicle and walked towards the vehicle. (N.T. 16, 18, 35, 37). [Perry] stopped and stood about two to three feet in front of the vehicle, pulled out a gun, and pointed it at Mr. Hamilton through the windshield. (N.T. 16, 21, 54, 67). Once Mr. Hamilton realized a gun was pointed, at him, but before a shot was fired, he put the vehicle in drive. (N.T. 16, 37-38, 41, 50,54)[.] [Perry] jumped to the side of the moving vehicle and shot a bullet through the driver's side mirror; which exited through the front of the mirror, went through the driver's door window, and entered the top edge of the driver's side door. (N.T. 160-17, 23, 29-31, 92). After Mr. Hamilton put the vehicle in drive, he testified he heard about three more shots fired. (N[.]T.19). Further, he saw through the remainder of the driver's side mirror [Perry] pointing the gun in [what he assumed to be] Mr. Mitterlehner's direction and then back at his vehicle. (N.T. 19-20, 42-44). Mr. Hamilton identified [Perry] in Court as the man who stood in front of his vehicle with a gun. (N.T. 21). Mr. Hamilton testified he did not know [Perry] before that night. (N.T. 17, 21, 3334, 37, 51). Conversely, [Perry] testified he knew Mr. Hamilton from seeing him around the neighborhood. (N.T. 136-139). [Perry] stated he had no problems with Mr. Hamilton. (N.T. 139-141).

Meanwhile, Mr. Mitterlehner was left in plain view of the individual with the gun, whom he testified he recognized as his neighbor; [Perry]. (N.T. 55, 65-66, 68). Mr. Mitterlehner took off running. (N.T. 56, 68-69). Thereafter, he heard about two or three more shots fired. (N.T. 57, 68). Mr. Mitterlehner said he did not see the gun nor was he sure [Perry] was shooting at him, but he knew [Perry] had a gun because the sound was distinctive, (N.T. 57, 68, 70, 73-74). Mr. Mitterlehner identified [Perry] in Court as the individual he saw that night. (N.T. 55). Mr. Mitterlehner admitted there was friction between himself and [Perry] because he had sold [Perry]'s stereo equipment. (N.T. 65, 80).

Officer Kirk Aldrich is employed by the Harrisburg City Police Department. (N.T. 84). He was dispatched to the 2000 block of Kensington Street the night of April 5, 2011. (N.T. 84). Officer Aldrich testified he photographed, among other things, the overall view of the scene, evidence that was found, and where the evidence was found in relation to the scene. (N.T. 85-90). He agreed that the scene was darker than what was depicted in the photographs.

(N.T. 96-97). Officer Aldrich collected two shell casings and placed them in a sealed envelope. (N.T. 90-91). At the police station, Officer Aldrich photographed Mr.

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Hamilton's vehicle. (N.T. 91-94). He conf[ir]med that part of the driver's side mirror was still intact, but the hole from the bullet was visible. (N.T. 98).

Detective Christopher Krokos, with the Harrisburg Police Department as part of the Special Operations Unit, was assigned to this case. (N.T. 99-100). Detective Krokos and Detective lachini interviewed the two victims separately. (N.T. 101). Both victims separately identified [Perry] in a photo line-up as the man who committed the crimes. (N.T. 23-24, 31-32, 63-64, 102-108, 117; Cmw[l]th Exhibits 1, 2). Thereafter, Detective Krokos located [Perry] in Camp Hill at his girlfriend's house and placed him under arrest. (N.T. 110). He searched the house and found some clothing that was admitted into evidence[.] (N.T. 111-112, 141-142). Later, a neighbor contacted the police to report finding more shell casings. (N.T. 112-113)[.] Detective Krokos testified that the two brass 9 millimeter casings found by the neighbor were the same caliber and brand as the other two casings that were located by Officer Aldrich. (N.T. 113). The Pennsylvania State Police Regional Laboratory report confirmed that all four of these casings were shot from the same firearm; a 9 millimeter handgun. (N.T. 114). Further, Detective Krokos requested a report from the Pennsylvania State Police to check if [Perry] had a license to carry a firea[rm]. (N.T. 115). The parties stipulated to the results of the report: [Perry] did not have a license to carry a firearm in Pennsylvania. (N.T[.] 115-117). However, the gun was never recovered by the police. (N.T. 122).

Commonwealth v. Perry, 2014 WL 10558055, at *4-5 (Pa. Super. 2014) (citing PCRA Court Opinion, dated May 15, 2014)).

II. State Court Proceedings¹

On November 15, 2011, a jury convicted Perry of criminal attempt to commit

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homicide, aggravated assault, carrying a firearm without a license, persons not to possess firearms, and recklessly endangering another person. (Doc. 1, p. 4; see also https://ujsportal.pacourts.us, electronic docket number CP-22-CR-0002139-2011). At trial, Perry was represented by attorney Deanna Muller. On January 27, 2012, the trial court imposed an aggregate sentence of 25 to 50 years' imprisonment. (Id.). On February 6, 2012, Perry filed a post-sentence motion requesting modification of his sentence and a new trial. The trial court granted Perry's request for modification of his sentence, but denied his request for a new trial. On March 15, 2012, the trial court issued an Amended Sentencing Order and again imposed an aggregate sentence of 25 to 50 years' imprisonment. (Doc. 18-1, pp. 50-51, Amended Sentencing Order).

Attorney Andrea Haynes filed a direct appeal on behalf of Perry. (Doc. 1, pp. 4-5; see also https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx, electronic docket number 656 MDA 2012). On December 20, 2012, the Pennsylvania Superior Court affirmed the judgment of sentence. (Id.). Perry did not file a petition for allowance of appeal with the Pennsylvania Supreme Court, therefore his judgment of sentence became final thirty days later on January 21, 2013. See 42 PA. CONS. STAT. § 9545.

On November 8, 2013, Perry filed a pro se petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. See https://ujsportal.pacourts.us, electronic docket number CP-22-CR-0002139-2011. The

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PCRA court appointed counsel, attorney Jennifer Tobias, who subsequently filed an amended PCRA petition. (Doc. 18-1, pp. 66-80, Amended PCRA Petition). On April 16, 2014, the PCRA court conducted an evidentiary hearing. (Doc. 18-1, pp. 89-100). Attorney Tobias represented Perry at the April 16, 2014 hearing. (Id.). On May 15, 2014, the PCRA court dismissed the petition.² See Commonwealth v. Perry, 2014 WL 10558055, at *8 (Pa. Super. 2014). Perry filed a timely notice of appeal with the Pennsylvania Superior Court. (See id.). On appeal, Perry raised the following three issues:

1. Whether the trial court erred by allowing unmarked evidence to be submitted to the jury?

2. Whether trial counsel[, Deanna Muller, Esquire ("Attorney Muller"),] was ineffective for failing to present a defense and for failing to call alibi witnesses?

3. Whether appellate counsel[, Andrea Haynes, Esquire ("Attorney Haynes"),] was ineffective?

(Doc. 18-1, pp. 107-114; Commonwealth v. Perry, 2014 WL 10558055, at *1). On December 30, 2014, the Pennsylvania Superior Court vacated the PCRA court's May 15, 2014 order and remanded the case to the PCRA court for further proceedings. Id. The Superior Court ordered "the PCRA court to conduct an evidentiary hearing on the issue of whether Attorney Haynes [appellate counsel] rendered ineffective assistance by failing to

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raise, on direct appeal, the jury's receipt of unmarked evidence." Commonwealth v. Perry, 2014 WL 10558055, at *3.

On February 4, 2015, the PCRA court held an evidentiary hearing. (Doc. 18-1, pp. 116-136). Attorney Tobias represented Perry at the February 4, 2015 hearing. (Id.). Appellate counsel, attorney Haynes, did not attend the hearing. (Id.). At the conclusion of the hearing, the PCRA court granted the petition and reinstated Perry's direct appeal rights based on initial appellate counsel's alleged failure to raise the issue of unmarked evidence being presented to the jury during deliberations. (Id.).

Both Perry and the Commonwealth appealed the PCRA court's February 4, 2015 ruling. On December 14, 2015, the Pennsylvania Superior Court reversed the PCRA court's reinstatement of Perry's direct appeal rights, decided that the matter need not be remanded for a hearing, and denied Perry's direct appeal as moot. (Doc. 18-1, pp. 138-147; Commonwealth v. Perry, 128 A.3d 1285 (Pa. Super. 2015). In its decision, the Superior Court found that the record did not support the PCRA court's conclusion that appellate counsel was ineffective. (Id.).

Perry filed a petition for allowance of appeal with...