Symms v. Wingard

• Decision Date: 04 February 2019
• Docket Number: Civil Action No. 15 - 1384
• Parties: CHRISTOPHER SYMMS, Petitioner, v. SUPERINTENDENT TREVOR WINGARD and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

CHRISTOPHER SYMMS, Petitioner, v. SUPERINTENDENT TREVOR WINGARD and THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 15 - 1384

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 4, 2019

Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Before the Court is a Petition for Writ of Habeas Corpus ("Petition") filed by Petitioner Christopher Symms ("Petitioner") pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (ECF No. 1.) He is challenging his judgment of sentence of fifteen (15) to thirty (30) years imprisonment after he was convicted in a bench trial of third-degree murder and other related crimes on September 18, 2006.

A. Factual History

The Pennsylvania Superior Court set forth the following recitation of facts in its Memorandum dated July 10, 2008.

. . . . Tiffany Harper testified she was walking down the street when she heard gunshots coming from across the street, approximately 80 to 100 feet away. She looked to see one man lying on the ground, and another standing over him. Harper also noted a third man standing two to three feet away. She did not see a gun or gunfire, but heard two more shots and observed the body on the ground jerk with each shot fired. She could not determine who the shooter was. Harper testified that the man standing over the man lying on the ground was wearing a black coat with emblazoned sports team emblems.

Brandon Ford, appellant's friend and the victim of a gunshot fired from the same gun used to shoot the decedent, testified, often in incoherent fashion, that on the afternoon of the shooting, while he and appellant were walking to the market, appellant, who wore a brown or tan coat, explained that he had been involved in an argument with some men the day before, and he was afraid he might encounter them again. According to Ford's testimony, as they approached the market, appellant became "panicked" because he saw the persons from the prior day crossing the street toward them. An argument about "turf" ensued between appellant and the victim, supported by a "big crowd," and Ford stated he tried to get appellant to just walk away. Appellant and the victim eventually came to blows, and Ford testified that he tried unsuccessfully to separate them. Despite Ford's testimony that he had not seen any guns that day, Ford was shot. When he was unable to get help from the aid station to which he had run, and after hearing two more gunshots, Ford testified that he ran back toward the scene, and saw appellant, without his coat, running in the opposite direction. Appellant told Ford, "I'm sorry" and "my fault." Further, on cross-examination, defense counsel had Ford read from previously sworn testimony from the coroner's inquest at which time Ford testified that appellant had told him, "I'm sorry for shooting you. I swear to God I didn't mean to shoot you."

One of the responding officers, Larry Langham, testified that upon his arrival at the scene, he saw a brown coat hanging from a fence, and saw a black handgun, which turned out to be the murder weapon, lying on the ground next to the decedent. Homicide Detective Thomas DeFelice testified that when he inspected the brown coat, he noted a hole and powder burns in the left pocket, baggies of marijuana which were found to bear appellant's fingerprints, and a shell casing from a nine-millimeter handgun. When electrical tape was removed from the handle of the murder weapon, a latent print matching the appellant's was found. Appellant's DNA was likewise found on the coat and handgun. It ultimately was determined that the bullet causing the victim's death was fired from this same handgun.

Appellant chose to testify on his own behalf and stated that on the afternoon of the shooting, while walking to a friend's house, he encountered Ford and the two men decided to walk together. As they walked, appellant testified that he then saw three men, including the victim Davidson and another man, Darien Cunningham, known as "Patchead," sitting on the steps of an abandoned house across the street, and became concerned because he and Patchead had had a verbal altercation that day. At that time, Patchead had advised appellant to mind his own business, and a companion of Patchead's had brandished a handgun in appellant's direction with Patchead stating "he'd be right back." Appellantexplained that he was carrying a handgun on the day of the shooting because he feared for his life as a consequence of this prior confrontation, and because he believed that the men were associated with a known, violent gang. Appellant testified that the three men crossed the street and confronted him, asking him why he was in "their neighborhood." According to appellant's testimony, the six-foot-seven victim shoved him into a fence. Appellant stated that he heard a gun fire, and so reached into his coat pocket and fired his handgun one time, without aiming. He heard his friend Ford say, "I'm hit." Davidson then reached into appellant's pocket and demanded his gun. "I pulled the trigger again[,]" once again through the coat pocket. Appellant stated he did not realize the victim had been struck, as he continued to struggle for control of the handgun. Appellant's gun fired again, and then twice more. The victim ultimately fell to the ground, and when appellant tried to flee, he realized his coat was snagged on the fence requiring him to slide his arms out of the coat in order to leave the scene.

(Resp't Ex. 6, Memorandum, 7/10/08, pp.5-8; ECF No. 7-3, pp.5-8) (internal citations to the record omitted).

B. Procedural History

A Criminal Information filed at CP-02-CR-0003182-2005 charged Petitioner with one count of Criminal Homicide, for the shooting death of Darryl Davidson. (Resp't Ex. 1, Docket Sheet; ECF No. 7-1, pp.1-14.) In another Criminal Information filed at CP-02-CR-005435-2005, Petitioner was charged with two counts of Aggravated Assault¹ and one count each of Carrying a Firearm Without a License, Possession with the Intent to Deliver a Controlled Substance, Possession of a Controlled Substance, and Recklessly Endangering Another Person (REAP). (Resp't Ex. 2, Docket Sheet; ECF No. 7-1, pp.15-27.)

On September 13, 2006, Petitioner waived his right to a trial by jury and proceeded to a bench trial before the Honorable Kevin G. Sasinoski. On September 18, 2006, the trial court found Petitioner guilty of third-degree murder and the other remaining counts at CP-02-CR-0005435-2005. On December 13, 2006, the trial court imposed a sentence of fifteen (15) tothirty (30) years' incarceration at the third-degree murder count, as well as a concurrent five (5) to ten (10) years' incarceration at the aggravated assault count and a concurrent two-and-a-half (2½) to five (5) years' incarceration at the possession with intent to deliver count. No further penalty was imposed at the remaining counts. On December 20, 2006, Petitioner, through his attorney, filed a Petition Requesting Reconsideration of Sentence, which was denied on December 21, 2006. Through new counsel, Petitioner filed post-sentence motions on March 27, 2007, which were denied on April 25, 2007. See Resp't Exs. 1 & 2, supra.

Petitioner appealed and the trial court issued its Pa. R.A.P. 1925(a) Opinion on December 31, 2007. (Resp't Ex. 7, Opinion; ECF No. 7-2, pp.1-9.) His judgement of sentence was affirmed by the Pennsylvania Superior Court in a Memorandum dated July 10, 2008. (Resp't Ex. 3, Docket Sheet; ECF No. 7-1, pp.28-31); (Resp't Ex. 5, Brief for Appellant; ECF No. 7-2, pp.10-58); (Resp't Ex. 6, Memorandum, 7/10/08; ECF No. 7-3, pp.1-14.) Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on December 23, 2008. (Resp't Ex. 7, Docket Sheet; ECF No. 7-3, pp.15-17.)

Petitioner filed a pro se Petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA") on March 3, 2009, but he did not raise any issues in this Petition. He filed an amended pro se PCRA Petition on December 4, 2009, wherein he identified three issues. (Resp't Ex. 8, PCRA Petition; ECF No. 7-3, pp.18-26.) Petitioner was appointed counsel to represent him in his PCRA proceedings but two attorneys had to withdraw due to various conflicts. Thereafter, the PCRA court appointed David A. Hoffman, Esquire, who filed a Motion to Withdraw as Counsel and a Turner/Finley No Merit Brief on June 15, 2012. (Resp't Ex. 10, Motion for Leave to Withdraw as Counsel under Turner and Finley and Brief in Support of Motion for Leave to Withdraw; ECF No. 7-4, pp.1-23.) The PCRA court issued an Order datedSeptember 19, 2012, granting counsel leave to withdraw and directing Petitioner to notify the court of his intention to either proceed pro se, retain private counsel or withdraw his petition and file any supplemental petition within forty-five days. (Resp't Ex. 11, Order of Court; ECF No. 7-4, p.24.) Petitioner filed a pro se Response to the Court's Order granting counsel leave to withdraw wherein he raised several complaints about Attorney Hoffman's representation, including issues he claimed Attorney Hoffman failed to address. (Resp't Ex. 12, Response; ECF No. 7-4, pp.25-43.) The PCRA court dismissed the PCRA Petition without a hearing on December 20, 2012, and Petitioner appealed. (Resp't Ex. 13, Docket Sheet; ECF No. 7-4, pp.44-47); (Resp't Ex. 15, Brief for Appellant; ECF No. 7-5, pp.1-45.) The PCRA court issued its Opinion pursuant to Pa. R.A.P. 1925(a) on December 16, 2013. (Rersp't Ex. 14, Opinion; ECF No. 7-4, pp.49-52.) The Superior Court affirmed the dismissal of Petitioner's PCRA Petition in a Memorandum dated January 29, 2015. (Resp't Ex. 16, Memorandum 1/29/15; ECF No. 7-5, pp.46-53.) Petitioner filed a Petition for Allowance of Appeal, that the Pennsylvania Supreme Court denied on June 10, 2015. (Resp't Ex. 17, Docket Sheet; ECF No. 7-5, pp.54-56.)

The Petition in the above-captioned case...