Ross v. Dist. Attorney of the Cnty. of Allegheny

Decision Date06 March 2012
Docket NumberNo. 10–1320.,10–1320.
Citation672 F.3d 198
PartiesGeorge Anthony ROSS, Appellant v. The DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY; The Attorney General of the State of Pennsylvania; Brian V. Coleman.
CourtU.S. Court of Appeals — Third Circuit


Diana Stavroulakis (Argued), Pittsburgh, PA, for Appellant.

Leanne K. Shipley (Argued), Allegheny County Office of District Attorney, Pittsburgh, PA, for Appellee.

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.


SMITH, Circuit Judge.

In May 2001, petitioner George Anthony Ross was convicted of third degree murder after his third trial on the same charge. Ross unsuccessfully appealed his conviction and sought relief under Pennsylvania's Post–Conviction Relief Act, 42 Pa. Cons.Stat. §§ 9541–46. Ross then sought federal habeas corpus review under 28 U.S.C. § 2254, raising Constitutional claims under the Fifth, Sixth, and Fourteenth Amendments. The District Court denied Ross's petition, and we granted a certificate of appealability. Among other issues, Ross argues that his rights under the Confrontation Clause were violated when the trial court admitted prior testimony from an unavailable government witness, even though Ross did not have the opportunity to cross-examine the witness with newly-discovered impeachment evidence. For the following reasons, we conclude that the Confrontation Clause is not the proper avenue for relief on Ross's claim. We will affirm.


This case arises out of a murder that took place a decade and a half ago. On December 31, 1996, Cheo Stevenson was shot dead while riding in a jitney in the Northside section of Pittsburgh, Pennsylvania. Ross was implicated in the shooting, and was charged with criminal homicide, aggravated assault, and carrying an unlicensed firearm in violation of the Uniform Firearm Act. On June 4, 1997, Ross was tried before a jury in the Allegheny County Court of Common Pleas. On June 6, 1997, Ross's first trial resulted in a mistrial. Ross was re-tried, and on October 30, 1997, a jury found Ross guilty of all three charges. Ross appealed his conviction, and on May 31, 2000, the Superior Court of Pennsylvania granted Ross a new trial. This third trial, which began on May 1, 2001, is the subject of Ross's habeas petition and the instant appeal.


At the third trial, the Commonwealth opened its case-in-chief with testimony from Jonathan Smith, who was riding in the jitney along with Stevenson at the time of the shooting. The Commonwealth then called to the stand a series of witnesses who testified about the crime scene, and the results of various laboratory tests that were performed on objects found at the scene.

Finally, the Commonwealth called Randy Erwin to the stand. At the second trial, Erwin had testified that Ross, whom he had met at the Allegheny County Jail, confessed in jail to shooting Stevenson. At the third trial, however, Erwin refused to testify on the ground that he feared retribution if he were to testify. The Commonwealth inquired as to Erwin's willingness to testify, asking whether Erwin would testify if ordered to do so. Erwin repeated that he would refuse to testify:

Q Would you explain to the Judge, please, if that is in fact what you would intend to do on [sic] this case, that you would not give any testimony?

A I will not give any testimony.

Q And if I call you to the stand while the jury is in the box, can you answer the questions that I pose to you?

A No, sir—no, ma'am.


Q And Mr. Erwin, I ask you again if I call you as a witness in this case, do you intend to give testimony against Mr. Ross?

A No, ma'am.

Trial Tr. at 110:5–12, 112:3–6.

On cross-examination, Erwin suggested that despite his reluctance, he might testify if he was ordered to do so. The Commonwealth clarified this suggestion on re-direct:

Q ... [Defense counsel] has now asked you if you're called to the stand and the Judge tells you to testify, are you going to answer the questions that I ask?

A No, but I didn't understand the way he was putting it. I don't want to be responsible for refusing to the Judge [sic]. I don't know the circumstances behind that, but I don't want to testify in the case.

THE COURT: Let me cut to the heart of this. Mr. Erwin, if the Commonwealth calls you to the [stand], is it your present intention not to respond to any of the questions, correct?


Id. at 117:14–22. Erwin also stated that he suffered a lapse of memory and would not be able to testify even if ordered to do so. Id. at 118:16–19.

The trial judge found Erwin unavailable over defense counsel's objection. The unavailability determination having been made, the trial judge allowed Erwin's testimony from the second trial to be read into the record. At this point, defense counsel had failed to proffer any reason why Ross might not have had a full and fair opportunity to cross-examine Erwin at the second trial.1

After Erwin's testimony was read to the jury, the trial judge permitted the Commonwealth to read into the record Erwin's prior convictions which, under Pennsylvania law, were classified as crimen falsi convictions. The Commonwealth read to the jury the date and name of each conviction:

[Prosecutor]: Thank you, Your Honor. Your Honor, I'll read the date and the crime of crimen falsi.

First on June 10 of 1987, burglary. October 2 of 1987, burglary. On March 25 of 1990, receiving stolen property and retail theft. On April 3 of 1995, receiving stolen property and retail theft. And on May 31 of 1996, two cases of theft. And that would be the extent of the crimen falsi.

Trial Tr. at 142:17–143:1. The Commonwealth did not include in its list Erwin's prior conviction for making a false report to law enforcement. Nor did Ross's counsel introduce this omitted conviction. The Commonwealth then rested its case.

After presenting testimony from the driver of the jitney in which Stephenson had been riding at the time of the shooting, Ross's counsel requested a sidebar with the trial judge to discuss the admissibility of testimony from Thomas Thornton. Thornton, an inmate who was allegedly housed next to Randy Erwin, was Ross's only remaining witness. Thornton intended to testify that Erwin fabricated his testimony regarding Ross's confession.2 The trial judge found that Thornton's testimony was inadmissible hearsay under Pennsylvania law and excluded his testimony from trial. With no witnesses left to call, Ross rested his case.


After closing arguments, the trial judge delivered the jury charge and allowed the jury to deliberate. After approximately two and a half hours of deliberation, the jury indicated to the court tipstaff that it had reached a verdict. Before the verdict could be recorded, however, one juror asked to speak with the trial judge.

The trial judge held an in camera conference with the single juror, counsel for both sides, and a court reporter. Ross himself was not present at the conference. At the conference, the juror voiced concerns about retribution should she vote guilty, identifying a spectator at the trial who may have recognized her:

THE TIPSTAFF: Are you afraid of something happening to you or your family?

[Juror]: ... I'm just saying that I'm afraid because I know members, people of that sort of background.

THE TIPSTAFF: Do you know people in the courtroom?

[Juror]: There was one guy that was standing outside, I went to school with him and I'm just saying by him knowing me, they could say, well, okay, I know your sister, your sister stood up for jury duty and she testified against a killing of so and so and so and so....

THE COURT: .... What I asked you was whether or not you were fearful of any repercussions.

[Juror]: I mean, Judge, I am.


THE TIPSTAFF: Do you think because you were here and you were on this jury that somebody who maybe come [sic] in or out of the courtroom or was associated with this case may do something to someone that you know?

[Juror]: Of course.

THE TIPSTAFF: That's what you're afraid of?

[Juror]: ... [I]f I was on the jury and they were sitting in the audience ... if there was somebody ... that was sitting in the audience that knew me they could say, okay, she made a statement ... so we're going to make a statement against her. They go hand-in-hand like that.... And I just don't want to make a statement against someone that may hurt me. Later on down the line, that's like me putting my foot in my mouth and saying, okay, I'm killing myself.

Trial Tr. at 266:12–268:15; see also Trial Tr. at 258:24–259:2; 262:20–21. Throughout this conference, the juror continued to voice her belief that Ross was guilty of the charged crime. See, e.g., Trial Tr. at 254:10–11 (“I feel that he is guilty on his accounts which he was wrong for doing in God's eyes.”). The juror never equivocated on the issue of Ross's guilt.

The trial judge reminded the juror several times that her job was to vote to convict or not to convict, regardless of Ross's race. The trial judge also tried to allay the juror's fear of retribution by telling her that no juror in any case he had ever tried had been threatened after delivering a verdict. The trial judge then instructed the juror to return to the courtroom to record the verdict.

After the juror left the in camera conference, Ross's counsel moved for a mistrial. The trial judge denied the motion. Counsel, the court reporter, and the trial judge reconvened in the courtroom, with Ross and the twelve jurors present. The jurors, who were individually polled by the court to ensure the verdict was correctly reported, unanimously convicted Ross of third-degree murder.


Ross timely appealed his conviction. On October 23, 2003, the Superior Court of Pennsylvania affirmed the judgment. The Supreme Court of Pennsylvania denied Ross's petition for allowance of appeal.

Having exhausted his direct appeal, on March 9, 2005, Ross petitioned for relief under Pennsylvania's Post–Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. §§ 9541–46....

To continue reading

Request your trial
129 cases
  • Simon v. Gov't of the V.I.
    • United States
    • U.S. District Court — Virgin Islands
    • July 29, 2015
    ...claim was premised was meritless, defendant could not demonstrate an error entitling him to relief); Ross v. Dist. Attorney of the Cnty. of Allegheny, 672 F.3d 198, 211 n. 9 (3d Cir.2012) ("We have held ... that ‘counsel cannot be deemed ineffective for failing to raise a meritless claim.’ ......
  • State v. Alexander
    • United States
    • Wisconsin Supreme Court
    • July 12, 2013 be present ‘... to the extent that a fair and just hearing would be thwarted by his absence.’ ”); Ross v. Dist. Attorney of the Cnty. of Allegheny, 672 F.3d 198, 212–13 (3d Cir.2012) (considering whether a defendant's absence from a conference between trial judge, counsel, and juror resu......
  • Rosen v. Superintendent Mahanoy SCI
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 26, 2020
    ..., Civil Action No. 15-4539, 2018 WL 4030740 (E.D. Pa. Aug. 22, 2018).31 Id . at *1 n.1.32 Id .33 Id .34 A3.35 Ross v. Dist. Atty. Allegheny Cnty. , 672 F.3d 198, 205 (3d Cir. 2012).36 28 U.S.C. § 2254(d).37 Williams v. Taylor , 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).38......
  • Preston v. Superintendent Graterford SCI
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 5, 2018
    ...statements. Because "counsel cannot be deemed ineffective for failing to raise a meritless claim," Ross v. Dist. Att'y of the Cty. of Allegheny , 672 F.3d 198, 211 n.9 (3d Cir. 2012) (quoting Werts v. Vaughn , 228 F.3d 178, 202 (3d Cir. 2000) ), we must consider whether a Confrontation Clau......
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...(Confrontation Clause does not apply to probation, parole revocation, or supervised release revocation proceedings); Ross v. Dist. Att’y, 672 F.3d 198, 209, 211-12 (3d Cir. 2012) (Confrontation Clause does not apply to in camera conference with single juror regarding juror’s fear of retribu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT