Selenski v. Capozza

• Decision Date: 01 November 2021
• Docket Number: Civil 1:21-cv-101
• Parties: HUGO MARCUS SELENSKI, Petitioner, v. MARK CAPOZZA, Superintendent, SCI Fayette, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

HUGO MARCUS SELENSKI, Petitioner,
v.
MARK CAPOZZA, Superintendent, SCI Fayette, et al., Respondents.

Civil No. 1:21-cv-101

United States District Court, M.D. Pennsylvania

November 1, 2021

Brann Chief Judge.

REPORT AND RECOMMENDATION

Martin C. Carlson United States Magistrate Judge.

I. Introduction

Hugo Selenski is a convicted robber and murderer who now requests that this court grant him a new trial on his 2009 convictions for kidnapping, robbery, and other related charges stemming from a home invasion and robbery in Monroe County, Pennsylvania in 2003. Pending before the court is a petition for writ of habeas corpus filed by Selenski, who alleges that his trial and appellate counsel were ineffective in a host of ways, that the trial court abused its discretion with respect to his request for an expert witness at trial, and that the Assistant District Attorney committed several Brady^[1] violations and prosecutorial misconduct, all of which he insists violated his right to a fair trial.

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After review of the record, we find that Selenski's claims in his petition are either unexhausted or without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied.

II. Statement of Facts and of the Case

The factual background of the instant case was aptly summarized by the Pennsylvania Superior Court in its decision affirming the denial of Selenski's petition for post-conviction relief:

On July 10, 2009, a jury convicted Appellant of multiple offenses, including kidnapping, robbery, attempted burglary criminal conspiracy, theft by unlawful taking, simple assault, false imprisonment, and terroristic threats-all with respect to a home invasion and attack on a jeweler named Samuel Goosay. The trial court recounted the facts adduced at trial as follows

On January 27, 2003, two men broke into Mr. Goosay's residence just after dinner wearing ski masks and brandishing a gun. The men handcuffed Mr. Goosay and placed duct tape over his eyes while threatening him and questioning him about the alarm code to his jewelry store and $20, 000 in cash. Mr Goosay gave the men a partial code and one of them went, in Mr. Goosay's car, to the jewelry store where he attempted and failed to break in and disarm the alarm. During this time, the other man stayed with Mr. Goosay. At some point during the altercation, the metal handcuffs initially used to bind Mr. Goosay's hands were switched to plastic flex cuffs.

Mr. Goosay was seated on the bed while the man who had stayed behind ransacked the master bedroom. At this time, Mr. Goosay was able to push the duct tape over one eye and see that his assailant had left the gun on top of a nearby dresser. Mr. Goosay grabbed the gun and a fight ensued where the assailant overtook Mr. Goosay, obtained the gun, and sat Mr. Goosay back on the bed to put a flex cuff around his ankles. While the assailant was

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putting the flex cuff on his ankles, Mr. Goosay saw the assailant's face without the ski mask. The assailant commented that it did not matter that Mr. Goosay saw his face because the assailant was not “from around here” and that Mr. Goosay would “never recognize [him]” and will “never know who [he] is.”

Shortly thereafter, the alarm company at Mr. Goosay's jewelry store called his home phone and indicated that police were being dispatched to the store because the alarm had been triggered. Upon receiving this information, the assailant hit Mr. Goosay in the head and quickly left. Mr. Goosay removed some of his restraints and telephoned the police. The police collected the flex cuffs and duct tape from inside Mr. Goosay's house as well as pictures of footprints in the snow outside of Mr. Goosay's home. Among the footprints was one from a New Balance sneaker.

During the time this case was being investigated, police located human remains on [Appellant's] property in Luzerne County. Two bodies, those of Michael Kerkowski, Jr., and Tammy Fasset, were found buried behind [Appellant's] residence. Police determined that Kerkowski was a small business owner and Fasset was his girlfriend. Both victims were bound with flex cuffs: Fasset was bound around her hands, ankles, and neck and Kerkowski was bound around his hands. Additionally, Kerkowski had duct tape over his eyes. Upon searching [Appellant's] garage, home, and the vehicle he used, police located flex cuffs, duct tape, ski masks, metal handcuffs, a black BB pistol, and New Balance sneakers.

The flex cuffs on [Appellant's] property and those used to bind Mr. Goosay were found to be from a common source. The New Balance sneakers that were found in [Appellant's] garage were identified by [Appellant's] ex-girlfriend, [Christina] Strom, as belonging to [Appellant]. Moreover, an expert in the field of footwear impressions concluded that the prints left outside Mr. Goosay's home could have been left by [Appellant's] sneakers because “the physical size, the general state of wear, and the lack of accidental characteristics” on [Appellant's] sneakers matched the same on the impression in the snow.

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During the trial, both the Commonwealth and [Appellant] presented evidence regarding Mr. Goosay's pretrial identifications of [Appellant]. Six months after the incident, Corporal Shawn Noonan showed Mr. Goosay a photo array that contained a picture of [Appellant] from 2001. Mr. Goosay failed to identify [Appellant] in this first array. Approximately two years later, Agent Scott Endy showed Mr. Goosay another photo array containing a picture of [Appellant] from May of 2003. Mr. Goosay was able to identify [Appellant]. Mr. Goosay was also able to identify [Appellant] at trial.

Trial Court Opinion, 3/4/16, at 2-4 (citations to notes of testimony and footnotes omitted).

Prior to trial, Appellant sought to contest Mr. Goosay's identification of him as the perpetrator by presenting an expert witness on eyewitness identification and on factors that can lead to inaccurate identification. Because Pennsylvania law at that time precluded such testimony, the trial court declined to permit this evidence. After three days of trial, a jury convicted Appellant of the aforestated charges, and on September 21, 2009, the trial court sentenced Appellant to an aggregate 32½ to 65 years' incarceration.

Commonwealth v. Selenski, 228 A.3d 8, 12-13 (Pa. Super. Ct. 2020) (Doc. 17-1, at 6-7).

Selenski filed his direct appeal to the Pennsylvania Superior Court on February 1, 2010. On appeal, Selenski raised four issues for the court's consideration: the denial of his motion in limine to admit expert testimony on eyewitness identification and memory; the failure to exclude evidence under Rule 404(b) of crimes and other acts as it related to evidence from Selenski's Luzerne County case; the Commonwealth's failure to produce discovery; and the format of the verdict slip, which Selenski argued improperly shifted the burden of proof. The

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Superior Court denied Selenski's appeal on April 20, 2011. (Doc. 17-22). Selenski filed a Petition for allowance of Appeal to the Pennsylvania Supreme Court, and the Supreme Court vacated the Superior Court's decision only as to the issue of the denial of expert testimony, as the Court had decided an intervening case that overturned the longstanding rule that prohibited expert testimony on eyewitness identification. (Doc. 17-22); see Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). Thus, this sole issue was remanded to the Superior Court, which remanded to the trial court to conduct an evidentiary hearing.

Following the hearing, the trial court denied Selenski's request for a new trial based on the denial of an expert witness. (Doc. 17-28). In its decision, the court first noted that the Walker decision imposed a relevancy requirement with respect to expert testimony on eyewitness identification. (Id., at 8). In Walker, the Commonwealth's case was based primarily on the eyewitness identification of the defendant. (Id., at 7). However, the trial court reasoned that Selenski's proffered expert testimony did not fit the relevancy standard under Walker because the Commonwealth's case against him “consisted of an abundance of circumstantial evidence which placed [Selenski] in Mr. Goosay's home on January 27, 2003.” (Id.) Accordingly, Selenski's request for a new trial was denied. Selenski appealed, and the Superior Court affirmed the trial court's decision. The Pennsylvania Supreme

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Court denied Selenski's Petition for Allowance of Appeal on September 19, 2017. (Doc. 17-32).

Selenski then filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”) on March 5, 2018. This petition alleged eleven claims of ineffective assistance of trial and appellate counsel. These claims included trial counsel's alleged failure to investigate the case, impeach witnesses, object to prejudicial evidence and testimony, call an expert witness in eyewitness testimony, and call favorable witnesses to the defense. (Doc. 17-33). PCRA counsel was appointed and filed an amended petition alleging additional claims of trial counsel's ineffectiveness, after which a hearing was held. Following the hearing, PCRA counsel submitted another supplemental petition. Ultimately, the trial court denied Selenski's PCRA petition. (Doc. 17-40). Selenski appealed to the Superior Court, and on February 4, 2020, the Superior Court affirmed the denial of Selenski's petition. The Pennsylvania Supreme Court denied Selenski's Petition for Allowance of Appeal on October 19, 2020.

Thereafter, Selenski filed the instant habeas corpus petition on January 4, 2021. (Doc. 1). In his petition, Selenski raises five grounds that he believes entitle him to relief. On this score, he alleges that the prosecution used false testimony and failed to correct false testimony, committed several...