Reese v. Fulcomer, No. 90-5825

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before STAPLETON, SCIRICA and ALDISERT; SCIRICA
• Citation: 946 F.2d 247
• Decision Date: 15 October 1991
• Docket Number: No. 90-5825
• Parties: Francis Ordean REESE, Appellant, v. Thomas A. FULCOMER.

Page 247

946 F.2d 247 Francis Ordean REESE, Appellant,
v.
Thomas A. FULCOMER. No. 90-5825. United States Court of Appeals,
Third Circuit. Submitted May 21, 1991.
Decided Oct. 15, 1991.

Page 249

Melinda C. Ghilardi, Office of the Federal Public Defender, Scranton, Pa., for appellant.

Martha J. Duvall, Office of the Dist. Atty., Gettysburg, Pa., for appellee.

Before STAPLETON, SCIRICA and ALDISERT, Circuit Judges.

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OPINION OF THE COURT

SCIRICA, Circuit Judge.

Francis Ordean Reese appeals the dismissal of his petition for writ of habeas corpus. We will affirm.

I.

On June 6, 1989, Reese filed a petition for habeas corpus challenging his 1983 convictions for rape, kidnapping, indecent assault, and terroristic threats, for which he was sentenced to an aggregate term of seven and one-half to fifteen years imprisonment. Reese's petition set forth five claims. Three claims concerned ineffective assistance of counsel because of: (1) failure to file a motion to suppress witness identification resulting from a suggestive showup, photographic display, and confrontation at the preliminary hearings and trial; (2) failure to subpoena several alibi witnesses for trial; and (3) failure to effectively cross-examine the prosecuting officer and lab specialist about scientific tests of materials taken from the victim and her clothing, as well as other tests. ¹ Reese also alleged that the Commonwealth withheld a statement by the victim in violation of Pa.R.Crim.P. 305(B)(1)(a) (1989) ² and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In addition, Reese contended that the magistrate judge and the district court never ruled on his request for counsel.

A.

In support of his claim that the witness identification was suggestive, Reese outlined the events following the rape, contending that the "collective effects" of the pretrial identification procedures tainted the victim's in-court identification. Reese alleged that on April 30, 1982, the victim provided the state police with a description of the man who raped her in the late evening and early morning hours of April 29-30, 1982. On May 1, 1982, the victim's boyfriend, who thought that Reese matched the description of the victim's assailant, drove the victim by Reese's home where they observed him sitting at a picnic table in his yard. Reese also stated that on that same day the victim selected his photograph from a display of seven photographs, asserting that he was her assailant. He contended that his photograph was distinctive, however, because only it depicted a man with long sideburns and a card revealing his name and height.

Reese was jailed on May 2, 1982. While being transported by a car driven by a state trooper to a preliminary hearing set for May 12, 1982, Reese claimed that the trooper made a detour for the purpose of permitting the victim to see him. Reese stated that the victim was again permitted to view him three more times: (1) before the preliminary hearing was to be held on that same day; (2) immediately before the preliminary hearing was held when it was continued to May 21, 1982; and (3) outside the courtroom, immediately prior to her in-court identification on November 16, 1982. Reese contended that because these pretrial identification procedures tainted the victim's in-court identification, counsel should have filed a motion to suppress the tainted evidence and the victim should not have been allowed to make an in-court identification without providing an independent source for her testimony.

On March 30, 1983, following Reese's conviction, a hearing was held to review Reese's post-trial motions and to determine his claims of after-discovered evidence and ineffective assistance of counsel. In denying

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the post-trial motions, the court held that the photographic display was not conducted in a suggestive manner. The PCHA court later noted that at the March 30 hearing, the trooper who presented the photographic display to the victim testified that the photographs were similar and that Reese's trial counsel also testified that he found the photographs to be unobjectionable.

On direct appeal, the Pennsylvania Superior Court rejected Reese's "tainted identification" argument based on its review of the attack and the face-to-face contact between the victim and her assailant. The Superior Court recounted the victim's trial testimony that on April 29, 1982, at 9:30 p.m., she was driving a car looking for her boyfriend when a vehicle with flashing lights approached her from behind. Thinking it was her boyfriend, she pulled off the road. Reese, the vehicle's driver, opened her door, grabbed her, and sat in her car, claiming that she had struck his vehicle and owed him fifty dollars. Telling the victim he would take the money "in trade," he then drove her to a dead-end road, repeatedly threatening to hit her if she tried to leave the vehicle. When they stopped, Reese made her leave the vehicle, remove her slacks, and engage in sexual intercourse, all the while threatening to strike her if she resisted. After the assault, Reese and the victim drove back to where Reese had left his vehicle and he released her.

The victim testified that she was able to see Reese clearly during the entire two-hour incident. Before she was taken to the hospital for treatment, she contacted her boyfriend and the police, whom she provided with a detailed description of Reese's features, clothing, type of vehicle, and the fact that the vehicle had a Pennsylvania license plate with an "H" in it.

The magistrate judge's report summarized the Superior Court's conclusions:

The superior court noted that at trial the victim recounted being face to face with her attacker during the sexual assault and that the whole episode lasted about two hours. The superior court noted that further, on redirect examination, victim stated she was absolutely sure that Reese was the guilty party. Based on these facts, the superior court held that the victim's in-court identification testimony was purged sufficiently of any alleged pre-trial taint so as to render it admissible to establish petitioner's involvement as a perpetrator. The court held that counsel cannot be held less than competent for failing to do a useless act, such as filing a suppression motion concerning identification.

Reese v. Fulcomer, No. 89-0850, slip op. at 9 (M.D.Pa. April 25, 1990).

In his petition for habeas corpus, Reese contended once again that counsel was deficient in failing to request an independent source for the victim's in-court identification. The magistrate judge agreed with the Superior Court's analysis, adding that an independent source had been established. "Certainly, the superior court's finding with regard to the length of the face to face confrontation would furnish such evidence to show that there was an independent basis." Id. at 10. In view of these circumstances, the magistrate judge determined he was "entitled to rely on the findings of the state court." Id.

B.

Reese also contended that his counsel was ineffective for failing to call alibi witnesses. He stated that on April 29, 1982, he was at a tavern with three friends from 9:30 to 11:15 p.m., at which time he left with another friend and proceeded to visit the homes of two other friends. He alleged that he stayed with friends at the second home until 5:00 a.m., then had breakfast, and was dropped off at his home at 9:30 a.m. He claimed that since the attack occurred between 10:00 and 12:00 p.m. on April 29, he could not have been culpable because he was accompanied by two or more of these persons during that time. Reese contended that although his trial counsel was aware of these witnesses, he did not call them to testify.

Before the Superior Court, Reese claimed that Donald Andrews, his key alibi witness,

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was never called, and that five other key witnesses were never fully investigated by his trial counsel. Although Reese's counsel gave reasons for not calling Donald Andrews at the hearing on March 30, 1983 on post-trial motions, Reese stated that no reasons were provided for failing to investigate the other witnesses.

The Superior Court disagreed. The court held that Reese had limited his alibi defense at the March 30 hearing to his counsel's failure to call only Donald Andrews. Therefore, he was precluded from claiming for the first time on appeal that his counsel was ineffective for not calling the other alibi witnesses. Furthermore, there was information that Donald Andrews was a potentially damaging witness for Reese. Andrews' wife had informed trial counsel that Reese was with her husband on the night of April 29, but that Reese had left their home in Andrews' automobile. Her description of the automobile and license number (which contained a letter) corroborated the victim's description of her assailant's vehicle. Thus, Andrews' testimony could have linked Reese with a car matching the victim's description. The Superior Court held that counsel's decision not to subpoena Donald Andrews (and informing Reese of this decision) was intended to benefit Reese.

In the habeas corpus petition, Reese contended that in transcripts of earlier hearings, trial counsel was not clear to whom he had spoken about Donald Andrews. The magistrate judge noted that there was no inconsistency because both transcripts indicated that trial counsel had spoken to Mrs. Andrews. Moreover, the magistrate judge emphasized that the common pleas court that ruled on the PCHA petitions stated that testimony by Andrews or any other alibi witness would have damaged Reese's case for two reasons: (1) Andrews' testimony could link Reese with a car matching the victim's description, and (2) trial counsel's informing the Commonwealth of any other proposed alibi witnesses "would have invariably led the Commonwealth to Andrews and the damaging statements." Reese v. Fulcomer, No. 89-0850, slip op. at 13 (M.D.Pa. April...