Rock v. Zimmerman

Decision Date22 January 1990
Docket NumberCiv. No. 88-2011.
Citation729 F. Supp. 398
PartiesGary Lee ROCK, Petitioner, v. Leroy S. ZIMMERMAN, and Franklin County District Attorney, Respondents.
CourtU.S. District Court — Middle District of Pennsylvania


David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., for petitioner.

John F. Nelson, Dist. Atty., Office of the Dist. Atty. for Franklin County, Pa., Chambersburg, Pa., for respondents.


CONABOY, Chief Judge.

Before the Court is Gary Lee Rock's petition for a writ of habeas corpus, filed through his counsel pursuant to 28 U.S.C. § 2254. The petition requests that we set aside Rock's 1985 Pennsylvania state court convictions on two counts of first degree murder, four counts of attempted murder and two counts of aggravated assault because of alleged constitutional infirmities in the jury charge on the elements of intent and diminished capacity and because Rock believes that he was improperly denied a change of venue or venire. The petition also alleges that Rock was denied due process by the trial court's imposition of sentences in excess of those he received after his original convictions in 1978 on basically the same charges.

We have thoroughly reviewed the record of the trial proceedings, Rock's petition and supporting brief, and the Commonwealth's response thereto. For the reasons which follow, we shall deny the writ.


On July 2, 1977, Gary Lee Rock set fire to his Franklin County, Pennsylvania house and a nearby shed. As neighbors and Fayetteville volunteer firefighters approached the blaze, the Petitioner fired rifle shots which struck and killed both a neighbor, Wilbur Brookens, and James Cutchall, the chief of the local volunteer fire department. The Petitioner also fired shots which injured several other firemen, while other individuals were subjected to the gun fire but not wounded. After the shootings, Rock fled into the woods near his burning house, but was later apprehended, arrested and charged with two counts of first degree murder, seven counts of attempted murder and one count of arson.

Shortly afterward, two Franklin County Public Defenders were appointed to represent Rock. Prior to trial, those attorneys obtained both a demurrer on one attempted murder count and a dismissal of the arson charge. On May 9, 1978, a jury trial commenced on the remaining charges in the Court of Common Pleas of Franklin County, the principal issue at trial being whether Rock was legally sane during the tragic shooting spree. After three days of proceedings, the jury convicted the Petitioner of two counts of first degree murder and six counts of attempted murder. Post trial motions were denied. The court, through then President Judge George C. Eppinger, issued the Petitioner a life sentence on both of the first degree murder convictions and three to eight year terms in prison for each of the six attempted murder convictions. Judge Eppinger directed the murder sentences to run concurrently, and ordered that the attempted murder sentences run consecutively to each other and concurrently with the first degree murder sentences.

The Supreme Court of Pennsylvania affirmed the judgment in a per curiam decision. Commonwealth v. Rock, 494 Pa. 128, 430 A.2d 1150 (1981). Rock, through his present counsel, David Rudovsky, Esquire, then filed a petition for a writ of habeas corpus in this Court and alleged the following in support thereof: (1) a Commonwealth witness violated the Petitioner's Fifth Amendment rights by commenting upon his post arrest silence; (2) the trial court committed an error of constitutional proportion when it refused to grant a motion to change venue or sequester the jury in light of prejudicial pre-trial publicity; (3) the trial court deprived the Petitioner of his Miranda rights by allowing the introduction of certain of Petitioner's statements; (4) the trial court issued constitutionally defective jury instructions; and (5) trial counsel was ineffective. After detailed consideration, we denied the writ on the basis of the first four enumerated claims, and ordered an evidentiary hearing on the fifth. Rock v. Zimmerman, 543 F.Supp. 179 (M.D.Pa.1982). After two hearings on the matter, we granted the writ on the grounds that trial counsel were ineffective for failing to seek suppression of certain evidence and failing to offer evidence of the Defendant's good character. Rock v. Zimmerman, 586 F.Supp. 1076 (M.D.Pa. 1984).

Rock stood trial for a second time in January of 1985, and placed into issue whether he was insane or of diminished capacity on July 2, 1977 and whether he had the requisite intent to kill or injure the victims. The jury rejected both defenses, deliberating ten hours before returning convictions on two counts of first degree murder, four counts of attempted murder and two counts of aggravated assault. Judge Keller, who presided at the second trial, sentenced the Petitioner to two consecutive life sentences for the first degree murders and ordered that an aggregate of 26 to 60 years on the other convictions run concurrently.

After the second trial court denied Rock's extensive post trial motions, he appealed his convictions without success in the Pennsylvania appellate system. The Petitioner, currently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania, now continues his challenge to those convictions by way of the habeas corpus petition before this Court.


Rock' first argument is that the trial judge's jury charge on the issue of intent impermissibly shifted the burden of proof as to that element of the crime of murder away from the state in violation of his right to due process. He vigorously contests the constitutional vitality of these portions of Judge Keller's initial instructions on intent to the jury:

We should at this point also tell you the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.
This is a presumption of fact based on common knowledge that such use is almost certain to be fatal. Every person is presumed to intend the natural and probable consequences of his act, but being a presumption of fact it may be rebutted by other circumstances in this case; and whether it is so rebutted is a question for you to decide.

Rock also takes exception to the content of this reinstruction on intent, issued by the judge upon a request from the jurors after they had deliberated for several hours:

Then you inquired as to the intent in regard to the hitting of a vital organ; and if you will recall, I told you in the charge on first degree murder that the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed. This is a presumption of fact based upon common knowledge that such use is almost certain to be fatal.
Every person is presumed to intend the natural and probable consequences of his act; but being a presumption of fact, it may be rebutted by other circumstances in the case, and whether it is so rebutted is a question for you to decide.


One of the most fundamental tenants of American jurisprudence is that in order to prevail in a criminal proceeding the state must prove the defendant guilty of every element of the offense charged beyond a reasonable doubt. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court made it clear that a criminal conviction will not pass constitutional muster unless the prosecution satisfies this burden completely, stating that "lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., at 364, 90 S.Ct. at 1072. See Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). The purpose of this principle, made applicable to evidentiary presumptions in a jury charge in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), is "to insure that only the guilty are criminally punished". Rose v. Clark, 478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1985).

In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984)1, the Supreme Court held that language in a jury instruction on the element of intent is constitutionally defective when it creates a "mandatory presumption" which effectively relieves the state of its burden of persuasion beyond a reasonable doubt of the intent element of a murder charge. Franklin, supra at 314, 105 S.Ct. at 1971. See Sandstrom, supra 442 U.S. at 510, 520-524, 99 S.Ct. at 2452, 2457-2459; Patterson, supra 432 U.S. at 210, 215, 97 S.Ct. at 2327, 2329; Mullaney v. Wilbur, 421 U.S. 684, 698-701, 95 S.Ct. 1881, 1889-1891, 44 L.Ed.2d 508 (1975). The Franklin Court noted, though, that instruction language which "requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved" creates a "permissive inference" which does not necessarily deny the accused due process. Franklin, supra 471 U.S. at 314, 105 S.Ct. at 1971. The court ruled that a permissive inference in a jury charge only amounts to a constitutional infraction when the "suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." Id., at 314-315, 105 S.Ct. at 1971; See Ulster County Court v. Allen, 442 U.S. 140, 157-163, 99 S.Ct. 2213, 2224-2227, 60 L.Ed.2d 777 (1979).

Consequently, our "threshold inquiry in ascertaining the constitutional analysis applicable to the jury instruction complained of is to determine...

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3 cases
  • Rock v. Zimmerman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 1992
    ...OPINION OF THE COURT STAPLETON, Circuit Judge: In this appeal from the district court's denial of relief in a habeas corpus proceeding, 729 F.Supp. 398, Gary Lee Rock asks us to set aside his 1985 Pennsylvania state court convictions on two counts of first-degree murder, four counts of atte......
  • Brown v. Roth
    • United States
    • U.S. District Court — District of New Jersey
    • January 31, 1990
  • State v. Barry Mitcham
    • United States
    • United States Court of Appeals (Ohio)
    • April 23, 1993
    ...... Pearce was inapplicable when a second sentencing judge. imposed a harsher sentence. Id. at 304. See also,. Rock v. Zimmerman, (N.D., 1990) Pa. 729 F. Supp. 398. We believe this is a more appropriate and. palatable statement of the law on this issue. ......

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