                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

Grant v. Wilson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2727




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 06-2727

                               DEMETRIUS J. GRANT,
                                        Appellant

                                             v.

                                 HARRY T. WILSON,
                                     Warden


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              District Court No. 04-cv-1904
                    District Judge: The Honorable Arthur J. Schwab


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 22, 2008

                              Before: SMITH, FISHER,
                            and NYGAARD, Circuit Judges

                                 (Filed: May 28, 2008)


                                       OPINION


SMITH, Circuit Judge.

      Demetrius J. Grant appeals from the District Court’s denial of his Petition for a
Writ of Habeas Corpus.1 This Court granted a certificate of appealability on two issues

only: (1) whether there was ineffective assistance of trial counsel by not objecting to the

asserted hearsay testimony of Kevin McKnight, Stephen Hitchings and Marvin Paul;2 and

(2) whether there was ineffective assistance of trial counsel by not attempting to impeach

the credibility of Marvin Paul by inquiring whether, in exchange for his testimony against

appellant, he expected preferential treatment on a charge of automobile theft that was

pending against him at the time of appellant’s trial.3

       Our determination of whether the state appellate courts erred in denying Grant’s

ineffective assistance of counsel claims requires us to review the state courts’ application

of Supreme Court precedent to a particular set of facts. See Werts v. Vaughn, 228 F.3d

178, 204 (3d Cir. 2000). Here, the state appellate courts did not apply a rule of law that

contradicts the Supreme Court’s holding in Strickland v. Washington, 466 U.S. 668

(1984). See Werts, 228 F.3d at 204. As such, we find that the state appellate courts’

decisions were not contrary to established Supreme Court precedent. However, we must



   1
    The District Court assigned this case to a Magistrate Judge for a report and
recommendation. The Magistrate Judge recommended that Grant’s Petition for Writ of
Habeas Corpus be denied and a certificate of appealability be denied. The District Court
adopted the Magistrate Judge’s Report and Recommendation as the opinion of the Court.
   2
    These claims were exhausted on direct appeal to the Superior Court of Pennsylvania
from Grant’s conviction and sentencing.
   3
    This claim was exhausted by the Superior Court of Pennsylvania on appeal from the
dismissal of Grant’s petition brought pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541–9546.

                                              2
also analyze Grant’s ineffectiveness claim under the “unreasonable application” provision

of 28 U.S.C. § 2254(d)(1). “Under that provision, the appropriate inquiry is whether the

Pennsylvania courts’ application of Strickland to [Grant’s] ineffectiveness claim was

objectively unreasonable, i.e., the state court decision, evaluated objectively and on the

merits, resulted in an outcome that cannot reasonably be justified under Strickland.” Id.

While our discussion of the claims is somewhat different than that of the state courts’,

“[w]e find that under the facts of the case, the Pennsylvania Superior Court’s

determination that trial counsel rendered effective assistance was not an unreasonable

application of Strickland.” Id. Accordingly, we will affirm the judgment of the District

Court.4

       In 1994, Grant was convicted by a jury on separate counts of aggravated assault for

the shooting of two men—Duncan Plowden and Marvin Paul.5 The trial court sentenced

him to an aggregate term of incarceration of not less than twenty-two-and-a-half nor more

than forty-five years. Testimony at trial revealed the following facts surrounding the

shootings. Paul and Plowden were engaged in a conversation when a man approached.

After this man greeted Plowden, Paul began to walk away. After taking about six or

seven steps, Paul heard the man say to Plowden, “What’s that shit you been saying about



   4
    The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 2241
and 2254. We exercise appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
   5
    Grant was also convicted of violating the Uniform Firearms Act: Firearms Not to be
Carried Without a License. 18 Pa.C.S.A. § 6106.

                                              3
me.” Paul then heard a bang and looked back to see Plowden falling to the ground. He

saw the man holding a black gun in his hand. Paul attempted to run, but the man shot him

in the right buttock. As Paul was lying in the street, the man shot him a second time. The

man attempted to shoot Paul a third time, but the gun did not go off. At trial, the only

direct evidence implicating Grant as the shooter was Paul’s in-court identification of him

as the shooter, an identification Paul previously made from a photo array shortly after the

shooting. Plowden, by contrast, testified that he did not know who shot him and he

refused to implicate Grant. The prosecutor’s principal theory was that the jury should

believe Paul and not Plowden. In addition, the trial court allowed three witnesses to

testify that Plowden had told them out of court that Grant was indeed the shooter, all

without objection from Grant’s counsel. There was no physical or other direct evidence

linking Grant to the crime.

       Grant asserts that trial counsel was ineffective for failing to object to the three

witnesses’ testimony regarding Plowden’s alleged out-of-court statements that Grant was

the shooter. We take each witness’s testimony in turn.

       Kevin McKnight, Plowden’s parole officer, testified that Plowden told him that

Grant was the shooter. This testimony contradicted Plowden’s immediately preceding

testimony that he did not know whether it was Grant who shot him. On direct appeal, the

Superior Court of Pennsylvania stated that, “Although this statement qualified as hearsay,

counsel was not ineffective for not objecting because there was never any dispute that



                                              4
Plowden had been shot. Thus, there was no prejudice resulting from the failure to

object.” This explanation misses the mark. Counsel was not ineffective for failing to

object because the testimony was not hearsay; it was impeachment testimony. See

Pa.R.E., Rule 613; Pa.R.E., Rule 607. The trial court gave a cautionary instruction

following McKnight and Detective Ciganik’s testimony, explaining that their testimony

was admitted for the sole purpose of helping the jurors assess the credibility and weight

of the testimony previously given by Plowden. The court instructed the jury that it could

not regard the evidence of the earlier inconsistent statement as proof of the truth of

anything that was said in the statement. This instruction was repeated at the close of

evidence. Thus, counsel’s performance did not fall below an objective standard of

reasonableness for failure to object. See Strickland, 466 U.S. at 688.

       City of Pittsburgh Police Detective Stephen Hitchings testified that he got a call

from another police detective, George Ciganik, who advised Hitchings that Kevin

McKnight told Ciganik that Plowden had identified Grant as the shooter.6 Detective

Hitchings then assembled a six-photograph array which included Grant’s picture. He

showed these photos to Paul in his hospital room, and Paul positively identified Grant as

the person who shot him. On direct appeal, the Superior Court determined that Hitchings’



   6
     As stated in the immediately preceding paragraph, the District Court gave a limiting
instruction following the testimony of parole officer McKnight and Detective Ciganik,
cautioning that their testimony of the prior inconsistent statement was only to be
considered to help the jury to judge the credibility and weight of the testimony given by
Plowden at trial. This instruction was repeated after closing arguments.

                                              5
testimony falls within the course of police conduct exception to the hearsay rule and as

such, trial counsel cannot be deemed ineffective for failing to object. The police conduct

rule is not a rule of automatic admissibility. Instead, if defense counsel objects, the court

“must balance the prosecution’s need for the statements against any prejudice arising

therefrom.” Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995). Our Court has

cautioned against the admissibility of these out-of-court statements when it is shown that

additional background is unnecessary. See United States v. Sallins, 993 F.2d 344, 347 (3d

Cir. 1993). However, even if we determined that Grant proved the reasonableness

component under Strickland, Grant must show that he was actually prejudiced by

counsel’s deficient performance. Because McKnight and Ciganik had already testified to

the same facts, albeit subject to a limiting instruction, Grant cannot show prejudice

resulting from the failure to object to Detective Hitchings’ testimony. As such, the state

court decision resulted in an outcome that can be reasonably justified under Strickland.

       Finally, Paul testified that Plowden told him that Grant was the shooter during a

conversation they had at the hospital some weeks after the shooting. As the Superior

Court recognized, this statement was hearsay. The Court stated that “[t]he aforesaid

conversation took place after Paul already identified appellant from the photographs.

Thus, Paul’s identification was not influenced by the conversation and the hearsay

statement, therefore, caused no appreciable prejudice when compared to the considerable

evidence of appellant’s guilt.” The effect of Plowden’s statement on Paul’s



                                              6
identification, however, is besides the point; what matters is the effect of Paul’s hearsay

testimony on the jury. Again, even if we determined that Grant proved the reasonableness

component under Strickland, we do not believe the prejudice component has been met.

As such, we are satisfied that the Superior Court judgment resulted in an outcome that can

be reasonably justified under Strickland.

       Even if the hearsay statements had been objected to and excluded, there was

independent evidence of Grant’s guilt. Paul testified in great detail about being shot by

Grant at close range. Paul also testified to witnessing Grant shooting Plowden

immediately prior. Paul further testified to making an out-of-court identification of Grant

as the shooter shortly after the incident. That testimony, coupled with that of Detective

Hitchings, which confirmed Paul’s prior unequivocal selection of Grant’s picture from a

six-photograph array, provided strong evidence of Grant’s guilt.

       Grant also claims that trial counsel was ineffective for not attempting to impeach

the credibility of Marvin Paul with an inquiry about whether, in exchange for his

testimony against appellant, he expected preferential treatment on a charge of automobile

theft that was pending against him at the time of appellant’s trial. Paul was arrested and

charged with auto theft in March 2004, some ten months after he identified Grant as the

shooter from a photo array. The Superior Court decided that this claim lacked merit

because Paul had already identified Grant as the shooter before he was charged with auto

theft “so there was no reason for Paul to accuse [Grant] falsely in the hope of gaining



                                              7
favor with police.” It is true, however, that whether Paul had a motive for testifying

against Grant is distinct from his initial identification. Nevertheless, the evidence of

Paul’s identification is compelling. Eight days after the shooting, prior to any criminal

charges filed against Paul, he identified Grant as the shooter. The trial transcript

establishes that Paul, from his hospital bed, positively identified Grant at the time of the

shooting, nearly a year before the auto theft charges were brought against him. Not only

did Paul testify that, at the time he identified Grant as the shooter from the photo array, he

was “one hundred percent” certain Grant was responsible for the shooting, but Detective

Hitchings also testified that Paul indicated he was “[one] hundred percent positive.” As

the Superior Court noted, at the time when Paul implicated Grant and identified him as

the shooter, there were no charges against him.

       The Superior Court explained that “[w]hen the prejudice prong of the test for

finding ineffectiveness fails, the claim may be dismissed. See Commonwealth v. Thomas,

783 A.2d 328 (Pa. Super. 2001) (where victim positively identified defendant prior to

victim’s arrest for unrelated charges, claim that victim’s testimony was given to curry

favor with the prosecution has no merit and does not establish prejudice).” The Court

found that, in light of the evidence presented at trial, Grant could not establish prejudice

for counsel’s failure to cross-examine Paul about his theft charge. While we realize that

Paul’s testimony was the only direct evidence linking Grant to the crimes, in light of the

previous out-of-court identification, which was corroborated by Detective Hitchings



                                              8
testimony, as well as the strength of Paul’s in-court testimony, we are satisfied that the

state court’s application of Strickland to Grant’s ineffectiveness claim was not objectively

unreasonable.

       Accordingly, we will affirm the judgment of the District Court.




                                              9
