Tyson v. Superintendent Houtzdale SCI

• Decision Date: 24 September 2020
• Docket Number: No. 19-1391,19-1391
• Citation: 976 F.3d 382
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Aaron Edmonds TYSON, Appellant v. SUPERINTENDENT HOUTZDALE SCI; Attorney General Pennsylvania

976 F.3d 382

Aaron Edmonds TYSON, Appellant

v.SUPERINTENDENT HOUTZDALE SCI; Attorney General Pennsylvania

No. 19-1391

United States Court of Appeals, Third Circuit.

Argued March 24, 2020

Opinion Filed: September 24, 2020

Michael Wiseman [ARGUED], Wiseman & Schwartz, 718 Arch Street, Suite 702, Philadelphia, PA 19106, Counsel for Appellant

Andrew M. Kroeckel [ARGUED], Mark S. Matthews, Monroe County Office of District Attorney, 701 Main Street, Second Floor, Stroudsburg, PA 18360, Counsel for Appellee

Before: JORDAN, RESTREPO and GREENBERG, Circuit Judges

OPINION OF THE COURT

RESTREPO, Circuit Judge

Aaron Edmonds Tyson handed his gun to Otis Powell and waited in the getaway car while Powell shot and killed two men in a stopped van. A jury in Monroe County, Pennsylvania, convicted Tyson of two counts of first-degree murder as an accomplice. In seeking post-conviction relief in state court, Tyson claimed his trial counsel was ineffective for not objecting to the court's erroneous instruction, which he argued allowed the jury to find him guilty without finding he possessed the requisite intent to kill. After the state court deemed the claim meritless, Tyson pursued a habeas petition. The District Court held the state court reasonably applied federal law in finding his trial counsel was not ineffective and denied relief. For the reasons set forth below, we disagree and will reverse the District Court.

I. Factual and Procedural Background

The Pennsylvania Superior Court summarized the facts of this case as follows:

On April 24, 2002, [Tyson], [Powell] and Kasine George ("George") were riding in a vehicle. At some point, [Tyson] exited the car and, when he returned, stated that two white boys had just pulled a gun on him. George described [Tyson] as angry at that time. [Tyson], who was at that point a passenger in the car, took a 9 millimeter handgun from the center console. He racked the slide of the gun, thus arming it. [Tyson] told Powell, who was driving, to pull out from the location where the vehicle was parked.

[Tyson] pointed to a van and indicated it was being driven by the two who had pulled a gun on him. With Powell driving, the three followed the van to a club.

When the two white men entered that club, Powell gave George a knife, directing him to puncture the tires on the van. George did so to at least one of the tires. When George returned to the car, [Tyson] was in the driver's seat. Powell was now a passenger and he asked [Tyson] for the gun. After five or ten minutes, the two white men exited the bar, entered the van and left the location.

With [Tyson] now driving, the three again followed the van. It eventually stopped due to the flat tire. At that point, [Tyson] and his two companions were going to exit the car, but Powell told the other two to wait. Powell then walked to the van. As he did so, [Tyson] backed the car to a point where he and George could see what was transpiring at the van. At that point, Powell shot its two occupants, Daniel and Keith Fotiathis. ... He then ran back to the car. Powell, George and [Tyson] left the scene. [Tyson] drove the vehicle. The three discussed whether they should go to New York but eventually decided to return to their nearby home.

Commonwealth v. Tyson , 947 A.2d 834 (Pa. Super. 2008) (unpublished memorandum) at 6-8, appeal denied , 605 Pa. 686, 989 A.2d 917 (Pa. 2009).

Brothers Daniel and Keith Fotiathis died from the gunshot wounds inflicted by Powell. Tyson was charged with being an accomplice to two counts of first and third-degree murder and tried by jury in May of 2006. Kasine George, who was later arrested on unrelated drug charges, provided information to the police and testified for the Commonwealth at trial. Tyson was found guilty as an accomplice to the first-degree murders of the Fotiathis brothers. In July 2006, the trial court sentenced him to the mandatory term of life imprisonment without parole.

Under Pennsylvania law, the specific intent to kill is an element of first-degree murder. Commonwealth v. Thomas , 194 A.3d 159, 167 (Pa. Sup. Ct. 2018). To be guilty as an accomplice in Pennsylvania, a person must act with the same intention of promoting or facilitating the crime as the principal. 18 Pa.C.S. § 306(c), (d). Thus, to be guilty as an accomplice to first-degree murder, the state must prove the accused possessed the specific intent to kill. Commonwealth v. Speight , 578 Pa. 520, 854 A.2d 450, 460 (2004). See also Everett v. Beard , 290 F.3d 500, 513 (3d Cir. 2002) ("Pennsylvania law has clearly required that for an accomplice to be found guilty of first-degree murder, s/he must have intended that the victim be killed.") (abrogated on other grounds, Porter v. McCollum , 558 U.S. 30, 130, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) ).

At trial, the Commonwealth's theory of the case was that Tyson was guilty because he assisted the principal, Powell. In his closing argument, the prosecutor stated that the "rule" in Pennsylvania is "if you help a shooter kill, you are as guilty as a shooter." A-885. He expounded on this statement with an analogy:

So in a bank robbery, when there's a look out sitting outside the bank and he tells his friends who are armed now, don't go shooting any bank guards. Go and get the money and come back out. And I am going to stay in the car and we will drive off and live happily ever after. And the two friends go in a shoot a bank guard. Guess what? He is as guilty as they are even though he told them not to shoot because the law can sometimes be sensible, especially with a criminal.

A-885-86. The prosecutor concluded the explanation by stating that "anyone who is with the shooter ... either helped to drive a vehicle, providing the vehicle, handing the gun over, slashing the tire, any of those acts make those people equally guilty of the criminal offense as a helper, as an accomplice. That is beyond any doubt whatsoever." A-886.

The Commonwealth's explanation of accomplice liability was a misstatement of Pennsylvania law. The court's jury instruction reinforced this misstatement and similarly failed to convey that an accomplice to first-degree murder must possess the intent to kill. After emphasizing that Tyson was charged as an accomplice, not the principal, the court defined both first and third-degree murder by focusing entirely on the mental state of "the killer." A-926. In explaining the elements of first-degree murder, the court mistakenly identified Powell as the accomplice and told the jury he committed an intentional killing, stating that "in this case – not this Defendant – but Otis Powell killed them as an accomplice with the Defendant, Aaron Tyson. And this was done with the specific intent to kill." A-927. The instruction was further marred by the court mistakenly naming the elements of first-degree murder as the elements of third-degree murder.

The court's instruction for accomplice liability was general and not tied to either murder charge. Instead, the court explained that Tyson "is an accomplice if with the intent to promote or facilitate the commission of a crime he encourages, requests or commands the other person to commit it or agrees or aids or agrees to aid or attempts to aid the other person in planning, organizing, committing it." A-930 (emphasis added). The court finished its explanation with a circular statement: "You may find [Tyson] guilty on the theory that he was an accomplice as long as you are satisfied beyond a reasonable doubt that the crime was committed; that [Tyson] was an accomplice of the person who actually committed the crime." A-930. The court failed to mention that, under Pennsylvania law, an accomplice to first-degree murder must intend to promote or facilitate a killing.

After the instruction concluded, the court entertained the jury's request for clarification on the degrees of murder. It reiterated the elements of first and third-degree murder, this time correctly, but again focused entirely on the intent of the "killer" without citing the requisite mens rea of the accomplice. A-948. It then practically directed the jury to find for first-degree murder because, "in this particular case," the charge of being an accomplice "almost by definition ... encompasses the concept of first degree murder," while the charge of accomplice to third-degree murder is "offered as another possibility even though it does not fit as well within the confines of the explanation because counsel agreed you may consider that as a possibility." A-950-51.¹

Tyson appealed to the Pennsylvania Superior Court, raising numerous claims not relevant to this appeal, and the court affirmed his conviction of two counts of accomplice to first-degree murder. In November 2010, Tyson filed a timely pro se petition and accompanying brief in accordance with the Post-Conviction Relief Act (PCRA) before the trial court. In his petition, Tyson stated he was "deprived of his Constitutional Rights to Due Process and right to effective assistance of counsel." A-172. In the accompanying brief, Tyson articulated that Pennsylvania law requires proof that an accomplice to first-degree murder possess the specific intent to the kill. A-178. He alleged that the trial court's instruction did not convey this burden of proof to the jury, in violation of his due process rights under federal law. A-179.

Counsel was appointed and filed an amended PCRA petition, which expounded upon Tyson's claim that, based on federal law, trial counsel was ineffective for failing to object to the trial court's instruction. PCRA counsel argued an objection was warranted because "[t]he instruction as given could easily have confused the jury as to what kind of intent must be shown beyond a reasonable doubt." A-182.

A PCRA hearing was held before the trial court in October 2011. Tyson's post-conviction counsel questioned trial counsel about his failure to object to the accomplice instruction; trial counsel responded that he did not remember the charge. A-973. In...