Peterkin v. Horn

• Decision Date: 29 December 1998
• Docket Number: No. CIV.A. 95-CV-3989.,CIV.A. 95-CV-3989.
• Citation: 34 F.Supp.2d 289
• Parties: Otis PETERKIN v. Martin HORN, et. al.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 289

34 F.Supp.2d 289

Otis PETERKIN v. Martin HORN, et. al.

No. CIV.A. 95-CV-3989.

United States District Court, E.D. Pennsylvania.

December 29, 1998.

Billy H. Nolas, Center of Legal Education, Advocacy & Defense Assistance, Philadelphia, PA, for Plaintiff.

Donna G. Zucker, Philadelphia District Attorneys, Office — Federal Litigation, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

JOYNER, District Judge.

In September, 1982, Otis Peterkin was convicted of robbery, possession of an instrument of crime and two counts of first degree murder in the Court of Common Pleas of Philadelphia County and sentenced to death. Following the denial of his direct appeal and a petition under the Pennsylvania Post Conviction Relief Act by both the Philadelphia County Court of Common Pleas and the Pennsylvania Supreme Court, Mr. Peterkin filed this petition for writ of habeas corpus seeking to have his convictions and sentence vacated. As discussed below, we find that the petition must be dismissed without prejudice.

History of the Case

This case arose on November 29, 1981 when the Sunoco Service Station located at Broad and Catherine Streets in South Philadelphia was robbed and two service station employees were murdered. On December 2, 1981, Petitioner turned himself in to the police after learning that a warrant was out for his arrest for these crimes. Petitioner was thereafter tried and, on September 25, 1982, was found guilty of two counts of first degree murder for the shooting deaths of Sunoco station manager John Smith and attendant Ronald Presbury, as well as one count each of robbery and possession of an instrument of crime. Following the denial of his post-trial motions, Petitioner was sentenced to death on the murder convictions and 10 to 20 and 2½ to 5 years' imprisonment on the robbery and possession of instrument of crime convictions, respectively, to run consecutively.

Thereafter, Mr. Peterkin appealed his convictions and sentences to the Pennsylvania Supreme Court, making the following arguments on direct appeal:

1. That the Pennsylvania Death Penalty Statute is unconstitutional because it creates a conclusive presumption favoring death.

2. That he received ineffective assistance from his trial counsel in that counsel failed to investigate, research and apply the law, failed to interview witnesses, failed to object to the exclusion of those potential jurors who expressed opposition to the death penalty and to the death qualification of the jury, failed to raise constitutional challenges to the death penalty and failed to present evidence of mitigating circumstances and factors.

3. That the trial court erred in allowing the admission of irrelevant and hearsay testimony from, inter alia, Stanley Trader, Maurice Rogers, Diana Dunning and Clarence Sears and in denying petitioner standing to challenge the search of Sherry Diggins' apartment.

4. That trial counsel was further ineffective in: introducing himself to the jury as petitioner's "court-appointed" counsel; delivering a closing argument to the jury that was not based on the evidence presented; failing to prepare for sentencing and failing to present mitigation evidence at the penalty stage of the trial.

5. That a proportionality review reflects that the sentence of death was inappropriate and disproportionate in his case.

With the exception of finding that the hearsay statements made by Ronald Presbury to Stanley Trader and Clarence Sears were improperly admitted but were nonetheless harmless error, the Pennsylvania Supreme Court rejected petitioner's assignments of error and upheld his convictions and sentences. See: Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Mr. Peterkin appealed to the U.S. Supreme Court, which denied certiorari in 1987.

Petitioner then sought relief pro se under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. § 9541, et. seq. Counsel was appointed for him, but after reviewing the issues which Mr. Peterkin sought to raise, concluded that they either lacked merit or had been litigated earlier. Appointed counsel therefore filed a "no-merit" letter and requested permission to withdraw his appearance. The trial court granted counsel leave to withdraw and denied the PCRA petition without a hearing. Mr. Peterkin then appealed pro se to the Pennsylania Superior Court which transferred the appeal to the Pennsylania Supreme Court in accord with 42 Pa.C.S. § 9546(d). The Supreme Court remanded the case to the trial court to determine whether Mr. Peterkin was eligible for appointed counsel. Another attorney was subsequently appointed to represent the petitioner and the Pennsylvania Supreme Court then considered whether his convictions and sentences should be set aside on any of the following grounds:

1. He was denied his constitutional right to effective assistance of counsel where trial counsel failed to present character witnesses on his behalf at trial and where post-trial counsel failed to properly raise and argue this issue on direct appeal and in the court below on his PCRA petition.

2. He was denied his constitutional right to a fair trial and to due process of law where the prosecutor engaged in gross misconduct in his closing argument at trial and that both trial and post-trial counsel were ineffective in failing to raise and preserve this issue for appeal purposes.

3. The court failed to advise the jury that mitigating circumstances need not be found unanimously to be weighed and considered by individual jurors and prior counsel were ineffective in failing to raise and previously litigate this issue.

4. No sentence of death was imposed by the jury on either bill of information upon which he was found guilty of murder in the first degree, as both murder bills were submitted jointly to the jury for a single consideration and imposition of penalty.

5. Trial counsel failed to present available evidence in mitigation and an inadequate closing argument at sentencing thereby depriving him of his constitutional right to effective representation and post-trial counsel were ineffective in failing to properly raise this issue on direct appeal and to the court below on his PCRA petition.

6. He was denied his constitutional right to a fair trial and to due process of law as a result of prosecutorial misconduct in the sentencing argument and trial and post-trial counsel were ineffective in failing to object and preserve this error on direct appeal or in the court below on PCRA petition.

The Supreme Court found that the prosecutor may have committed error in requesting the jury to be as cold and ruthless as Petitioner had been when he murdered the victims and in telling the jury that the "best witnesses," i.e., the victims, "are not here," but if they were, he was "sure" that "they would tell you that it was not my choice to go this way, it was not my choice to go in that kind of pain." Nevertheless, the Supreme Court found that petitioner had failed to demonstrate that these remarks prejudiced the jury or that if they did, this error was also harmless given the overwhelming evidence of Petitioner's guilt. Accordingly, the trial court's denial of Petitioner's PCRA petition was affirmed.

By way of the petition for writ of habeas corpus which is now before this Court, Mr. Peterkin continues to seek to have his convictions and sentences overturned. In addition to reiterating the claims which he raised on direct appeal and in his PCRA petition, however Mr. Peterkin now also asserts the following grounds¹ for the relief sought:

1. That the Commonwealth improperly withheld exculpatory evidence and presented inaccurate, misleading and false evidence and argument to the jury (with regard to the testimony of Sherry Diggins and Officers McCabe and Kane, to the statements of Arlene Foster, to fingerprint evidence and the results of the polygraph examination given to Stanley Trader).

2. That trial counsel was ineffective at the pre-trial stage in:

— failing to conduct proper discovery;

— failing to investigate the crime scene;

— failing to review fingerprint and ballistic evidence;

— failing to consult and retain forensic experts;

— failing to investigate the background and potential involvement of Stanley Trader;

— failing to investigate the background and potential involvement of Leroy Little;

— failing to investigate previous crimes and incidents at the Sunoco Service Station at Broad and Catherine Streets;

— failing to request a bill of particulars;

— failing to request or move for disclosure from the prosecution;

— failing to provide notice of an alibi defense; and

— failing to challenge the affidavits in support of the warrants pursuant to Franks v. Delaware.

3. That trial counsel was ineffective at the trial stage in:

— failing to make an effective opening statement;

— failing to humanize petitioner;

— failing to even suggest the remote possibility to the jury that petitioner was innocent;

— failing to cross-examine prosecution witnesses Stanley Trader, Clarence Sears, Sherry Diggins, Alex Charyton, Detective Kane, Officer McCabe, Assistant Medical Examiner Paul Hoyer and Ballistics expert William Fort;

— failing to effectively cross-examine the prosecution witnesses that were cross-examined;

— failing to present a single witness for the defense, including alibi witnesses; and

— failing to present an effective closing argument.

4. That numerous instances of prosecutorial misconduct occurred entitling him to relief from his convictions, including:

— despite the fact that he had no prior criminal record, the prosecutor erred in producing three witnesses who testified that petitioner received public assistance payments at a vacant lot address, that he was registered to vote under two different names (Otis Loach and Otis Peterkin), and that he owned two firearms, neither of which were used in the crimes at issue;

— the prosecutor improperly vouched for the strength and...