Stevens v. Beard

• Decision Date: 29 March 2010
• Docket Number: Civil Action No. 99-1918.
• Citation: 701 F.Supp.2d 671
• Parties: Andre STEVENS, Petitioner,v.Jeffrey A. BEARD, Secretary, Pennsylvania Department of Corrections, Lois S. Folino, Superintendent, SCI Greene, Franklin J. Tennis, Superintendent, SCI Rockview Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

701 F.Supp.2d 671

Andre STEVENS, Petitioner,v.Jeffrey A. BEARD, Secretary, Pennsylvania Department of Corrections, Lois S. Folino, Superintendent, SCI Greene, Franklin J. Tennis, Superintendent, SCI Rockview Respondents.¹

Civil Action No. 99-1918.

United States District Court W.D. Pennsylvania.

March 29, 2010.

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Kathy Swedlow, Billy H. Nolas, Defender Association of Philadelphia Capital Habeas Unit West, Philadelphia, PA, for Petitioner.

Jonelle L. Harter, Christopher D. Carusone, Christy H. Fawcett, Office of The Attorney General, Harrisburg, PA, for Respondents.

OPINION

ARTHUR J. SCHWAB, District Judge.

I. Introduction

In the early morning hour of February 8, 1992, Petitioner Andre Stevens shot and killed his estranged wife, Brenda Jo Stevens, age 45, and Mike Love, age 28, at Armando's Bar in Beaver County, Pennsylvania. Stevens and Brenda Jo were divorcing and they had arrived at the bar separately. He became enraged when he saw her dancing near Love and he went outside to his car and retrieved a loaded nine-millimeter semi-automatic pistol. When he came back into the crowded establishment, he approached the dance floor and opened fire on the victims. He shot Brenda Jo at close range in the back of the head, killing her. He then turned and shot Love multiple times in different parts of the body. Several of Love's wounds were defensive in nature, inflicted when he raised his arms to deflect the attack. After a brief pause, Stevens fired a final shot into Love's groin area and stated “you'll f____ no more.” Love died as a result of the many injuries he sustained.

Stevens waived his right to a jury trial as to his guilt. On April 21, 1993, the trial court (the Honorable Robert E. Kunselman of the Court of Common Pleas of Beaver County) convicted him on the two counts of first-degree murder. A jury was empaneled for a separate penalty hearing, at the conclusion of which Stevens was sentenced to death on each conviction.

As discussed in more detail below, Stevens' first-degree murder convictions are not at issue at the present time. In 2004, I issued a decision in which I denied his single habeas guilt-phase claim, which was that his counsel was ineffective for failing to develop and present evidence of his alleged diminished capacity as a defense to the charges of first-degree murder. Stevens v. Horn, 319 F.Supp.2d 592 (W.D.Pa.2004). In that same decision, I granted Stevens a writ of habeas corpus on his claim that he is entitled to a new sentencing hearing because the trial court improperly excluded a prospective juror for cause based upon her general objection to the death penalty (Claim VII).² The United States Court of Appeals for the Third Circuit affirmed Stevens v. Horn, 187 Fed.Appx. 205 (3d Cir.2006) (non-precedential) but the Supreme Court of the United States vacated its decision with respect to Claim VII and remanded for reconsideration in light of a recent decision issued by it. The Court of Appeals has in turn remanded the case back to this Court to reconsider Claim VII and, if need be, all of Stevens' sentencing-phase claims.

Thus, currently pending are Stevens' habeas claims filed pursuant to 28 U.S.C. § 2254 challenging his sentences of death. He contends they were obtained in violation of his federal constitutional rights and as relief seeks a new sentencing hearing. In support, he raises the following fourteen claims, which include numerous sub-claims:

Claim I His lead trial counsel, Wayne S. Lipecky, Esq., was ineffective for failing to investigate and present available mitigating evidence at the sentencing hearing;

Claim II The second panel of prospective jurors was selected improperly;

Claim III The Pennsylvania Supreme Court failed to provide him meaningful proportionality review on direct appeal a mandated by 42 Pa.Cons.Stat. § 9711(H)(3)(III);

Claim IV The trial court's instruction concerning the aggravating circumstance of torture (42 Pa.Cons.Stat. § 9711(d)(8)) was unconstitutionally vague; in addition, the evidence was insufficient to establish that aggravating circumstance;

Claim V The trial court's instruction concerning the aggravating circumstance of “created a grave risk of death to another in addition to the victim” (42 Pa.Cons.Stat. § 9711(d)(7)) was unconstitutionally vague;

Claim VI The aggravating circumstances of “created a grave risk of death to another in addition to the victim” and “convicted of another murder” (42 Pa.Cons.Stat. §§ 9711(d)(7) & (11)) impermissibly double counted the same aggravating evidence;

Claim VII The jury was not properly death qualified or life qualified;

Claim VIII The trial court erred in deny his motion for a change of venue or venire;

Claim IX The Commonwealth introduced prejudicial, improper evidence about his relationships with other women;

Claim X The trial court's instructions violated the constitutional mandate that the prosecution prove beyond a reasonable doubt every element of every aggravating circumstance;

Claim XI The Commonwealth improperly introduced evidence and argument concerning invalid non-statutory aggravating factors, and the jury improperly considered such evidence and argument;

Claim XII The trial court failed to instruct the jury properly on the nature and use of mitigating factors;

Claim XIII The trial court erred in permitting the Commonwealth to introduce the testimony of a forensic pathologist to discuss Brenda Jo's injuries and cause of death;

Claim XIV The trial court failed to accurately instruct the jury on his parole ineligibility.

After careful consideration, I conclude that Stevens is not entitled to habeas relief on Claim VII or on any of his other sentencing-phase claims, and I therefore deny his petition for writ of habeas corpus.

II. Relevant Procedural Background ³

After his arrest, Stevens retained Wendell Freeland, Esq., as his defense counsel. He represented Stevens for approximately nine months and then withdrew in November 1992. The trial court appointed the Beaver County Public Defender's office to replace Freeland and Wayne S. Lipecky, Esq., assisted by Thomas C. Phillis, Esq., assumed representation. They represented Stevens through his trial, and Lipecky continued as counsel on the direct appeal.

As set forth above, Stevens waived his right to a jury trial as to his guilt. On April 21, 1993, the trial court convicted him of two counts of first-degree murder. Jury selection for the sentencing hearing took place over the next three weekdays and the actual hearing commenced on Tuesday, April 27, 1993.

At the hearing, the Commonwealth had the burden of proving beyond a reasonable doubt that at least one statutorily-defined aggravating circumstance accompanied the murder. Stevens could introduce, and the jury could consider, mitigating evidence. Mitigating circumstances had to be proved by a preponderance of the evidence. The jury could impose the death penalty only if it found that the statutorily-defined aggravating circumstances proven by the Commonwealth outweighed any mitigating circumstances proven by Stevens. See 42 Pa.Cons.Stat. § 9711.

The Commonwealth pursued the following two aggravating circumstances regarding the sentence to be imposed for the murder of Brenda Jo: (1) while in the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim id. § 9711(d)(7); and (2) the defendant has been convicted of another murder committed either before or at the time of the offense at issue id. § 9711(d)(11). Regarding the sentence to be imposed for the murder of Love, the Commonwealth pursued those two aggravating circumstances, as well as the third aggravator that the offense was committed by means of torture, id. § 9711(d)(8).

Stevens relied upon the following mitigating circumstances: (1) he had no significant history of prior criminal convictions, id. § 9711(e)(1); (2) he was under the influence of extreme mental or emotional disturbance, id. § 9711(e)(2); and (3) any other evidence of mitigation concerning his character and his record or the circumstances of the offense, id. § 9711(e)(8) (commonly referred to as the “catch all” mitigating factor). ⁴ In its verdict, the jury found that Stevens established the first two mitigating circumstances, but not the third. It found that the Commonwealth proved all of the aggravating circumstances outlined above. With respect to each murder, it found that the aggravating circumstances outweighed the mitigating circumstances and Stevens was sentence to death.

Following his trial, Stevens filed post-trial motions, which were denied by the Court of Common Pleas en banc. (Dkt 15, App. 11, Commonwealth v. Stevens, Docket No. 365A of 1992, slip op. (C.P. Beaver Oct. 21, 1994) (“ Opinion Denying Post-Trial Motions ”)). In his direct appeal to the Pennsylvania Supreme Court, Stevens raised, in relevant part, Claim VIII ⁵ (challenging the trial court's denial of his motion for change of venue or venire), as well as the part of Claim IV challenging the sufficiency of the evidence of the aggravating circumstance of torture. On January 18, 1996, the Pennsylvania Supreme Court, in a unanimous decision, affirmed Stevens' judgments of sentence. Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623 (1996) (“ Stevens I ”). It denied Claims VIII and IV on the merits. Id. at 625-28. The Supreme Court of the United States denied Stevens' petition for writ of certiorari on October 7, 1996. Stevens v. Pennsylvania, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

Upon the conclusion of his direct appeal, Stevens filed a pro se petition with the Court of Common Pleas seeking collateral relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”). The PCRA Court (Judge Kunselman) appointed Stevens' present counsel to represent...