Rivera v. Folino

• Decision Date: 02 June 2014
• Docket Number: CIVIL NO. 3:CV-06-0716
• Parties: REUBEN RIVERA, Petitioner v. LOUIS FOLINO, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

REUBEN RIVERA, Petitioner v. LOUIS FOLINO, et al., Respondents

CIVIL NO. 3:CV-06-0716

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: JUNE 2, 2014

(Judge Caputo)

MEMORANDUM

I. Introduction

Reuben Rivera, a state prisoner incarcerated at the Graterford State Correctional Institution (SCI-Graterford), in Graterford, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254, a supporting memorandum and exhibits. (See Docs. 1 - 4.) Mr. Rivera challenges his 1994 convictions in the Court of Common Pleas of Lebanon County, Pennsylvania for first degree murder and criminal conspiracy to commit criminal homicide. Mr. Rivera was convicted following a jury trial and is serving a life sentence.

For the reasons expressed below, this Court will deny the Petition with prejudice and decline to issue a certificate of appealability.

II. Background

A. Factual Background

This case arises out of the murder of Dennis Glant (victim) on August 16, 1993. Mr. Rivera does not dispute that he stabbed Mr. Glant, but rather claims he did so in self-defense, and without any intent to kill him.

On November 12, 1993, Mr. Rivera was charged with one count each of criminal homicide and criminal conspiracy. He was tried before a jury on April 6 - 8, 1994. (Doc. 3, ECF p. 4, Commonwealth v. Rivera, No. 93-10961 (Lebanon Ct. Com. Pl., Nov. 18, 1994).

A detailed recitation of the underlying facts is necessary to the discussion of the claims presented in this matter. The following is a lengthy excerpt from the trial court's opinion denying Mr. Rivera's post-sentence motions, and provides a helpful summary of the testimony adduced at trial:

Waldo Mercado, who also was charged in the murder, testified for the prosecution. Mercado testified that early in the evening on August 16, 1993, he, Reuben Rivera and Jon Lebo were sitting on the steps of a house ... in Lebanon ... drinking beer.

Mercado testified that after the three men saw the victim, Dennis Glant, drive up and stop in front of the house, Lebo told [Rivera] to punch the victim. [Rivera] went to the victim's car window and complied with the request, and the victim drove off ... Lebo then suggested to [Rivera] that they 'go beat somebody up,' and [Rivera] and Lebo walked [away] ... Mercado followed them shortly thereafter, believing they were going to get into trouble.¹

Mercado followed Lebo and [Rivera] down Lehman Street and saw [Rivera] stop at an establishment called 'The Spanish Store.' He saw Lebo continue down Lehman Street and stop at the corner of 10th and Lehman Streets. Mercado followed Lebo, and when he caught up with him on 10th Street, saw the victim standing a couple of feet away. The victim was holding a wrench.

Lebo approached the victim, addressed him, then hit him in the face. The victim did not fight back; instead, he crossed 10th Street and went north to Lehman Street. [Rivera] came down 10th Street and approached Lebo and Mercado. Lebo told [Rivera] the victim was 'talking shit.'

[Rivera] then crossed 10th Street, went north and began to follow the victim on Lehman Street. Lebo went south to Church Street and turned north on Partridge Street, which connects Church and Lehman Streets. Mercado followed Lebo, and when he arrived at the corner of Church and Partridge, he saw the victim and Lebo arguing. Mercado then saw [Rivera] walk south on Partridge toward the victim and Lebo, and stop directly behind the victim. He heard [Rivera] ask, 'What's up?' He saw [Rivera] pull out a knifeand stab the victim in the back. The victim died the next day in a local hospital.

Mercado testified that the victim never swung the wrench at either [Rivera] or Lebo, and never made any threatening gestures at all. Mercado followed [Rivera] from the scene to a home on Lehman Street, where [Rivera] told Mercado, 'I think I stabbed him.' [Rivera] asked Mercado to retrieve the knife, but Mercado refused. [Rivera] also told Mercado to tell the police that the victim had hit him with the wrench.

Mercado testified that he had agreed to plead guilty to Hindering Apprehension and to assist in the prosecution of [Rivera], provided the District Attorney were to recommend to the sentencing judge that he receive a one-to two-year sentence for his offense.

Michael Felty, a 10-year-old boy who lives on Partridge Street in Lebanon, was riding his bicycle near his home when he saw four men. He identified one of the men as Dennis Glant, the murder victim. He stated three men were beating the victim and that one man was south of the victim and one was north of the victim. Alarmed, he went home and returned with his father. When he returned, he heard the victim screaming for an ambulance.

Michael Felty testified that the victim was holding a wrench near his head during the fight but was not swinging it. He testified that he did not see the victim punching at the other men.

Witness Tonya Arehart testified that on the night of the assault she was riding in a car with four friends when she saw Jon Lebo, Waldo Mercado, and Reuben Rivera on Partridge Street. She saw Waldo Mercado as he stood on the corner of Partridge and Lehman Streets, and saw Jon Lebo and Reuben Rivera as they were walking down Partridge Street toward Church Street. She also saw the victim staggering in the street, saying he was dying and asking for help. She asked the driver to stop the car and, after seeing that the victim was wounded, knocked on a door to seek help. Tonya, like Michael, did not see the victim strike anyone with the wrench he was holding.

. . .

William Davis, Jr., testified that he lived near the corner of 10th and Partridge Street at the time of the murder, and saw a knife on the sidewalk next to the house where he lived immediately after he noticed the activities surrounding the victim.

Detective Greg Holler of the Lebanon City Police Department stated that he interviewed the Defendant Reuben Rivera after receiving information, via an anonymous phone call, that he might be connected with the murder. [Rivera] told Detective Holler that he was in Allentown, Pennsylvania, on the date of the murder.

Detective Daniel Kauffman of the Lebanon City Police testified that [Rivera] voluntarily came to the Lebanon Police Department on August 20, about 36 hours after the Police Department made it known that a warrant had been issued for his arrest. [Rivera] told Detective Kauffman that he and Jon Lebo had talked with the victim on the night of the murder and [that Rivera] had hit the victim while the victim was in his car. He told Detective Kauffman that afterward, he, Mercado, and Lebo walked to 10th and Lehman Streets, and [that] Lebo and Mercado went south on 10th Street while he stayed at the corner talking with another person. He then saw the victim with Mercado and Lebo on 10th Street and walked down 10th Street to join the group. He said he saw that the victim was holding a wrench.

[Rivera] then told Detective Kauffman that the victim crossed 10th Street and returned to Lehman Street, and he followed. When [Rivera] arrived at the intersection of Lehman and Partridge streets, he looked south on Partridge to see Lebo, Mercado and the victim. [Rivera] said he approached the group and the victim turned and struck him on the forearm with a wrench. [Rivera] then took out his knife and, using his left hand to make a 'roundhouse' swing, stabbed the victim.

Dr. Wayne K. Ross, a forensic pathologist, testified that the wound inflicted upon the victim caused his death. He testified that the victim also had a large bruise on the left side of his head, which had been inflicted less than an hour before he was admitted to the hospital. The stab woundbegan in the lower back and continued through the victim's diaphragm and kidney and ended in his liver. The wound caused uncontrollable bleeding.

Dr. Ross testified that the knife, which he examined during the autopsy of the victim, entered the victim's back at a downward angle of 60 degrees, and [that] its upper haft struck the victim's back with such force as to abrade the skin. The knife was nine inches long, including its handle, and its blade was five inches long. The stab wound was five and a quarter inches long. Dr. Ross explained that the wound was longer than the knife blade because the human body is somewhat compressible. Dr. Ross opined that the wound was consistent with a person delivering a side blow directed downward. He also opined that a 'severe amount of force' was needed to inflict the wound he saw, consistent with a purposeful, determined movement.

Dr. Ross also testified that the victim exhibited no defensive wounds, implying that he was taken by surprise by the knife attack. He concluded that the wound was the result of a 'determined aggressive insertion' of a knife. Moreover, Dr. Ross opined that the victim would not have been [in] a position to use deadly force against the person who wielded the knife at the time the wound was inflicted, as he was not in the correct position to use such force.

Dr. Ross also testified that a left-handed 'roundhouse' blow was not consistent with the nature and location of the wound. He also stated the parties to the wounding were not in motion relative to each other at the time of the wounding.

Detective Holler testified that when he interviewed [Rivera] on August 17, the day after the murder, he saw no bruises or other injuries to [Rivera].

[Rivera] called Nicholas T. Forbes, M.D., a forensic pathologist, to testify in support of his argument that he was struggling with the victim when he accidentally stabbed him. Dr. Forbes testified that what Dr. Ross described as 'defensive wounds' do not always explain the nature of wounds if a struggle occurred. He noted that the victim may have moved backward at the time when the knife was in a position to wound him. Given the sharp nature of theknife's point and its heaviness, Dr. Forbes stated the knife could have inflicted a five-inch wound

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